



COURT OF APPEAL FOR ONTARIO

CITATION: Dzelme v. Dzelme, 2018 ONCA 1018

DATE: 20181212

DOCKET: C64822

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Arnis Raimonds Dzelme

Respondent (Respondent)

and

John Dzelme

Applicant (Appellant)

John Dzelme, acting in person

Jason Little, for the respondent

Heard: December 6, 2018

On appeal from the judgment
    of Justice James A. Ramsay of the Superior Court of Justice, dated December 5,
    2017.

REASONS FOR DECISION

[1]

The appellant, John Dzelme, appeals from the motion
    judges dismissal of his request for an order that his brother, the respondent,
    Arnis Dzelme, disclose information about the assets of his parents, Ritvars and
    Elvira Dzelme, and account for their property and finances under a power of
    attorney for property.

[2]

John clarified at the hearing that he no longer
    seeks relief in respect of his mothers financial affairs; he limits his appeal
    to the dismissal of relief requested about his late fathers financial affairs.

[3]

The motion judge held that the only basis on
    which John would have standing to apply for the relief sought would be under s.
    42(4)6 of the
Substitute Decisions Act, 1992
,
    S.O. 1992, c. 30 (the 
SDA
), which provides
    that [a]ny other person may apply for a passing of accounts of an attorney of
    property with leave of the court.

[4]

John submits the motion judge erred in so
    finding. John argues that since he was one of his fathers attorneys for
    personal care and his father was incapable at the time of the hearing below, he
    had the standing to apply for a passing of accounts under
SDA
s. 42(4)1.

[5]

Arnis concedes that the motion judge erred and
    John could apply under s. 42(4)1 for a passing of accounts without leave.

[6]

However, on our reading of his reasons, the
    motion judge would have refused Johns request in any event.

[7]

Section 42(1) of the
SDA

states: The court
may
, on application, order that all or a specified part of the accounts
    of an attorney or guardian of property be passed (emphasis added). Even if a
    person has standing to apply under s. 42(4) of the
SDA
, it remains in the discretion of the court to order a passing of
    accounts:
McAllister Estate v. Hudgin
(2008),
    42 E.T.R. (3d) 313, at para. 13;
Lacroix v. Kalman
, 2015 ONSC 19, at paras. 32 and 40. Factors a court takes into
    account in exercising its discretion include the extent of the attorneys
    involvement in the grantors financial affairs and whether the applicant has
    raised a significant concern in respect of the management of the grantors
    affairs to warrant an accounting:
McAllister Estate
, at para. 13.

[8]

In the present case, the motion judge made
    several key findings of fact: (i) both parents - Ritvars and Elvira - were
    capable when on May 3, 2016, they executed written instructions to Arnis not to
    produce any financial information about their affairs to John; (ii) Elvira
    maintained this position in response to Johns motion; (iii) a September 30,
    2017 capacity assessment of Elvira found that she was capable of making her own
    decisions; (iv) a third brother, Ivan, corroborated Arnis evidence that he was
    following his parents wishes; (v) the application judge had no doubt that
    Arnis was following his mothers wishes; and (vi) the application judge had no
    reason to suspect that Arnis was not acting properly, including in respect of
    the survivorship designation on his mothers tax-free savings account. We are
    not persuaded the motion judges findings are tainted by any palpable and
    overriding error.

[9]

Given those findings of fact, we see no error in
    the motion judges dismissal of Johns request for an order that his brother
    pass accounts in respect of his fathers finances.

[10]

The appeal is dismissed.

[11]

To the extent John seeks leave to appeal the
    award of substantial indemnity costs made against him by the motion judge, we
    do not grant leave. We see no error in principle by the motion judge. Paras. 3,
    4 and 5 of the motion judges cost endorsement support his award of substantial
    indemnity costs.

[12]

Arnis seeks substantial indemnity costs of the
    appeal against John. We are not persuaded that costs at an elevated level are
    merited. Arnis waited until the hearing to concede that the motion judge made a
    mistake about Johns standing. An earlier concession was warranted; it would
    have narrowed the issues on the appeal. John shall pay Arnis partial indemnity
    costs of the appeal fixed in the amount of $7,500, inclusive of disbursements
    and applicable taxes.

R.G.
    Juriansz J.A.
David Brown J.A.
L.B. Roberts J.A.


