



COURT OF APPEAL FOR ONTARIO

CITATION: Public Guardian and Trustee v.
    Kennedy, 2019 ONCA 956

DATE: 20191205

DOCKET: FILE C66421

Lauwers, Paciocco and Fairburn
    JJ.A.

BETWEEN

Public Guardian and Trustee

Applicant (Respondent on Appeal)

and

Allan Kennedy and Dan Kennedy

Respondents (Appellant)

Daniel Joseph Kennedy, in person

Lynn Donnelly, for the Public Guardian
    and Trustee

Heard: November 29, 2019

On appeal from the judgment of Justice Lynda
    C. Templeton of the Superior Court of Justice, dated December 19, 2017.

REASONS FOR DECISION

[1]

The Public Guardian and Trustee (PGT) is the
    statutory guardian of an adult, Allan Kennedy (Allan). This guardianship
    enables the PGT to make decisions concerning Allans property. Daniel Kennedy
    (Daniel), the appellant, is Allans brother. He applied to the PGT to replace
    the PGT as Allans statutory guardian. The PGT refused, finding Daniel to be unsuitable
    to manage Allans property, and to lack a suitable management plan. Daniel
    disputed the PGTs refusal. Pursuant to the
Substitute Decisions Act
,
    1992
, S.O., 1992, c. 30, s. 18(2), the PGT was therefore required to apply
    to the court to have its decision approved. That application was brought, and
    the application judge granted an order approving the PGTs refusal. Daniel now
    appeals that decision.

[2]

Daniel raises numerous concerns, but his grounds
    of appeal can fairly be summarized as follows:

·

The application judge erred by failing to
    consider all the evidence; and

·

The application judge misapplied the applicable
    test.

[3]

Daniel also wishes to present fresh evidence on
    appeal and asks for the appointment of a criminal lawyer to investigate the
    surveillance he alleges against himself and his family.

[4]

We would not grant the appeal and would decline
    to accept the fresh evidence.

[5]

Not only did the application judge say
    explicitly that she considered all the evidence, the substance of her ruling demonstrates
    that she did so. The test she applied was also correct.

[6]

We have reviewed the matter thoroughly and have
    fully considered the broad oral and written submissions made by Daniel but can find
    no legal error, error in principle, or palpable or overriding errors of fact
    made by the application judge.

[7]

With respect to the fresh evidence, it must be
    rejected because it cannot meet the legal test in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759. The fresh evidence raised by Daniel could not, along with
    the other evidence presented to the application judge, have affected the
    result.

[8]

We must also decline Daniels request for the
    appointment of a criminal lawyer. We have no authority to do so.

[9]

We therefore dismiss the appeal. We make no
    order with respect to costs.

P.
    Lauwers J.A.
David M. Paciocco J.A.

Fairburn
    J.A.


