



COURT OF APPEAL FOR ONTARIO

CITATION: Public
    Guardian and Trustee v. Zammit, 2021 ONCA 648

DATE: 20210921

DOCKET: M52761 (C69730)

Lauwers J.A. (Motion
    Judge)

BETWEEN

The Public Guardian
    and Trustee

Applicant

(Respondent/Responding
    Party)

and

Mary Zammit and
    Patricia Zammit

Respondents

(Appellants/Moving Parties)

Patricia Zammit, acting in person

Matthew Tubie, for the moving party Mary Zammit

Philippa Geddie, for the responding party

Heard: September 7, 2021 by video conference

REASONS FOR DECISION

[1]

The moving party Mary Zammit seeks a stay of the order of
    Dietrich J. dated July 20, 2021 in which she declared that Mary Zammit is
    incapable of making decisions respecting her property, ordering the termination
    of the power of attorney in favour of her daughter Patricia Zammit, and
    appointing the Public Guardian and Trustee (PGT) as the guardian of Mary
    Zammits property.

[2]

The parties agree that the governing precedent is the Supreme Courts
    decision in
RJR-MacDonald Inc. v. Canada (Attorney General)
,

[1994]
    1 S.C.R. 311. The elements of the test are that there is a serious issue
    to be tried, the applicant will suffer irreparable harm if the relief is not
    granted, and the balance of convenience favours the granting of relief.

[3]

This court has put a gloss on the application of the test in
RJR-MacDonald
where a stay is sought pending appeal. In
Ogden Entertainment Services v.
    United Steelworkers of America, Local 440
(1998), 38 O.R. (3d) 448, [1998]
    O.J. No. 1824 (C.A.) Robins J.A. said, at para. 5:

In determining whether a stay should be granted, regard must be
    had to the judgment under appeal and a strong case in favour of a stay must be
    made out. The court must proceed on the assumption that the judgment is correct
    and that the relief ordered was properly granted. The court is not engaged in a
    determination of the merits of the appeal on a stay application.

[4]

In this case, there were three prior judicial processes leading to the
    order under appeal. The first was the order of Koehnen J. on February 23, 2021
    directing a capacity assessment of Mary Zammit on the application of the PGT.
    The certified capacity assessor met with Mary Zammit twice and gave the opinion
    that she lacked capacity to manage her property due to an underlying cognitive
    impairment. Further, during the first meeting, Mary Zammit had no memory of having
    made the power of attorney in favour of her daughter Patricia Zammit, although
    she recalled the power of attorney in the second meeting. Based in part on the
    capacity assessment, the motion judge made an interim appointment of the PGT
    for guardianship of Mary Zammit on June 30, 2021. In the decision under appeal,
    the motion judge made the appointment permanent.

[5]

The core of the motion judges decision is set out in paras. 22-23:

Based on the evidence, Patricia continued to use Ms. Zammit's
    funds for her own benefit and the benefit of her children after she was appointed
    as Ms. Zammit's attorney for property. This conduct is contrary to Patricia's
    fiduciary duty to exercise her powers and duties diligently, with honesty and
    integrity and in good faith, for the incapable person's benefit:
SDA,
s.
    32(1) and s. 38(1). A core duty of an attorney for property is the duty to
    act exclusively for the benefit of the grantor, relinquishing the attorney's
    own self-interest.

It is apparent that Patricia has breached her fiduciary duties
    to Ms. Zammit both before and after she was appointed as Ms. Zammit's attorney for
    property. Even with the restrictions on the CIBC account, thousands of dollars
    have been withdrawn from the CIBC account following the execution of the Power
    of Attorney. Between March and June 2020, $5,592.29 was debited from Ms.
    Zammit's TD Bank chequing account, which is a joint account in the names of Ms.
    Zammit and Patricia. These debits include purchases from retailers, at least some
    of which were not likely for Ms. Zammit's benefit or exclusive benefit (e.g.,
    Apple.com, numerous fast food restaurants, LCBO, Netflix, and gas stations). In
    February 2020, Ms. Zammit paid $3,200 for a car for Patricia, and months later,
    in September 2020, Ms. Zammit paid $3,700 for a replacement car when the
    first was rendered inoperable following an accident. Between June 2020 and January
    2021, there were $13,710 in unexplained ATM withdrawals from Ms. Zammit's
    TD Bank chequing account. Patricia conceded that she, personally, had made only
    a few modest contributions to the TD Bank chequing account. Most of the
    deposits to the account came from Ms. Zammit's property.

[6]

At the first step of the
RJR-MacDonald
test  that there is a
    serious issue to be tried  the moving party states in an affidavit that the
    purchases made by her daughter Patricia Zammit were for Mary Zammits benefit
    and were in line with her intentions or with her consent. The motion judge
    found that Mary Zammits lack of capacity was fatal to the argument based on
    her consent.

[7]

Counsels second argument is that the CIBC disregarded the power of
    attorney in favour of Patricia Zammit when it made the report that resulted in
    an investigation. Mary Zammits incapacity affects the validity of the power of
    attorney.

[8]

On the issue of irreparable harm, Patricia Zammit argues that there are
    bills that must be paid, to which Mary Zammit cannot attend because she is in a
    hospital following a fall that occurred after the order was made. Counsel
    points out that there is no evidence that the PGT is attending to these day-to-day
    expenses so that it would be preferable in the circumstances for the stay to be
    granted in order to allow Patricia Zammit to resume daily care for her mother.
    It is not clear why a temporary, if any, delay in bill payments would constitute
    irreparable harm, assuming that the PGT staff are not yet fully engaged with
    Mary Zammit.

[9]

On the balance of convenience, counsel submits that if a stay is not
    granted then the PGT will take over Mary Zammits bank accounts and daily
    financial activities. This will drastically change the status quo thereby
    impacting her daily activities with her family. Again, it is not clear why the
    order protecting Mary Zammits assets would have such an effect on her daily
    activities with her family.

[10]

The
    complaints made by the moving partys counsel essentially turn on the facts. Counsel
    has not pointed to any palpable and overriding errors of fact made by the
    motion judge. The motion judges reasons are thorough and comprehensively
    address all of the issues raised by counsel in argument. The grounds of appeal
    are not frivolous, but they are not likely to be successful. As noted, the
    basis for a stay has not been established.

[11]

The
    motion is dismissed with costs reserved, as agreed, to the panel hearing the
    merits of the appeal.

P. Lauwers J.A.


