In a recent Ontario Court of Appeal decision, the court upheld a lower court finding that the son of a woman with Alzheimer’s was a vexatious litigant and did not have standing to object to the passing of accounts in the administration of the mother’s property.

What Happened?

The mother was 92 years of age and suffers from Alzheimer’s disease. She lived in her own home under the care of her daughter, who was her guardian for personal care.

The mother also had three sons: Michael, Peter and Andrew.

Michael was her litigation guardian and, jointly with the daughter, was also her guardian for personal care.

The mother’s guardian for property was the BMO Trust Company.

The guardianship appointments had been made under the Substitute Decisions Act, 1992 in 2015. As part of the original court order, BMO Trust had been required to pass its accounts in respect of the administration of the mother’s property for the period April 29, 2015 to June 25, 2017.

However, the passing of accounts for this period had not taken place, primarily because the daughter and Peter had appealed the appointment of BMO Trust. The daughter and Peter contended that they should have been appointed guardians of the mother’s property. The appeal made it all the way to the Supreme Court of Canada and was dismissed in 2018.

After the Supreme Court of Canada judgment, Peter again sought to have BMO Trust removed as guardian of property and to have Michael removed as the litigation guardian. He raised allegations of collusion, conspiracy and an alleged secret agreement between Michael and BMO Trust, though he did not file any evidence in support of the allegations.

In response, Michael submitted that Peter was a vexatious litigant in the proceedings and was engaging in a bad faith attempt to re-litigate matters already determined by the Court of Appeal.

Lower Court Decision

The lower court rejected Peter’s claim, stating:

“In my view, the [Michael]’s position is correct and the arguments [Peter] seeks to advance on this passing of accounts is an abuse of process which can only have the effect of turning what should be a simple accounting and oversight exercise into a lengthy and unproductive re-litigation of positions previously rejected by the court. […]

It is also intolerable that a person appearing in a proceeding such as this can be permitted to put forward allegations of conspiracy, an undisclosed litigation agreement, criminality and breach of trust without a shred of evidence to support such allegations and without providing an affidavit setting out these allegations.”

As a result, the court ordered that Peter would not be accorded standing in the passing of accounts on the basis that he was a vexatious litigant and the court struck out his notice of objection.

Peter appealed the decision.

Court of Appeal Decision

The Court of Appeal began by stating:

“We find it unnecessary to deal with [Peter]’s submissions that, as a beneficiary under the will of the incapable [mother], he had the right to standing in the passing of accounts. While the motion judge expressed the view [Peter] required leave to participate, the primary basis of his decision is that [Peter] is a vexatious litigant.”

The court found that the record provided ample support for the motion judge’s findings.

The appeal was dismissed.

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