



COURT OF APPEAL FOR ONTARIO

CITATION: Overtveld v. Overtveld, 2022 ONCA
    269

DATE: 20220401

DOCKET: C69038

Pardu, Paciocco and Thorburn
    JJ.A.

BETWEEN

Joy
    Overtveld, Todd Overtveld, and Gary Katz, in their capacity
as attorneys for property for Gilles Jozias Overtveld and
Joy Overtveld and Todd Overtveld in their capacity as
attorneys for personal care for Gilles Jozias Overtveld

Applicants (Respondents in Appeal)

and

Gilles Jozias Overtveld
, The Office of the Public Guardian
and Trustee,
Enrique M. Jurado
and Rachida Youmouri

Respondents (
Appellants
)

George F. Windsor, for the appellants
    Gilles Jozias Overtveld and Enrique M. Jurado

Eric Lay, for the respondents Joy
    Overtveld, Todd Overtveld and Gary Katz

Sarah Jones, for the Public Guardian
    and Trustee

Heard: March 24, 2022 by video conference

On
    appeal from the order of Justice Marc R. Labrosse of the Superior Court of
    Justice, dated December 7, 2020, with reasons reported at 2020 ONSC 6988.

REASONS FOR DECISION

[1]

The motion judge has been appointed to act as case management judge in
    this matter. The appellants, Mr. Enrique Jurado and Mr. Gilles Overtveld,
    appeal from his decisions made in that capacity on December 7, 2020. The
    underlying application is brought by Mr. Overtvelds children in their capacity
    as his attorneys for property and personal care. They are pursuing a
    declaration that Mr. Overtveld is incapable of managing property or making
    personal care decisions.

[2]

Multiple parties are involved:

·

Mr. George Windsor, who is currently acting for
    Mr. Overtveld in the latters capacity as a shareholder of two companies;

·

Ms. Rachida Youmouri, who married Mr. Overtveld
    in 2018;

·

Mr. Jurado, Mr. Overtvelds friend;

·

Mr. Michael Rappaport, counsel for Mr. Jurado
    and Ms. Youmouri; and

·

Ms. Miriam Vale Peters, Mr. Overtvelds counsel
    of record.

[3]

This courts executive legal officer alerted the
    appellants to a concern that the orders from which they appeal were
    interlocutory, and that this court lacks jurisdiction to hear the appeals. Mr.
    Windsor maintains that the court should hear the appeals.

[4]

We are satisfied that the orders appealed from
    are interlocutory and that this court does not have jurisdiction to hear the
    proposed appeal.

(i)

Motion to find the respondents in contempt

[5]

Mr. Windsor brought a motion asking the Superior
    Court of Justice to refuse to hear the respondents application based on his
    claim that the respondents are in contempt for failing to pay Mr. Overtvelds
    expenses. Mr. Jurado brought motions for an order compelling examinations for
    discovery and for an order that the attorneys comply with the case management
    judges orders dated January 30, 2019 and January 9, 2020, which set out the
    procedure for discovery.

[6]

The motion judge dealt with these motions
    together and dismissed the claim of contempt. With respect to expenses, he
    found that the underlying order for payment of expenses gave the attorneys
    discretion regarding payment. As for the examinations for discovery, the motion
    judge noted that the parties had just completed the filing of their materials
    and were early on in the litigation process. He also noted that none of the
    parties respected the timetable set out in the January 9, 2020 order.

[7]

This court does not have jurisdiction over this
    order because it is interlocutory. Orders dismissing a contempt motion based on
    a failure to comply with the terms of an order are final where there are no
    ongoing proceedings and the party seeking the order has no other means of
    obtaining relief arising out of the failure to abide by the terms of the order:
Chirico v. Szalas
, 2016 ONCA 586, 132 O.R. (3d) 738;
Simmonds v.
    Simmonds
, 2013 ONCA 479, 117 O.R. (3d) 479. The motion judges contempt order
    does not fall into that category because the underlying proceedings are ongoing.

(ii)

Motion to strike the application

[8]

Mr. Windsor brought a motion to strike the
    application on the form of the pleadings on the basis that Mr. Overtveld was
    both the applicant and the respondent in the proceedings. The motion judge
    found that this argument makes no sense, since the attorneys were the
    applicants, and dismissed the motion. However, the parties agreed that the
    style of cause should refer to the attorneys in their capacity as attorneys
    rather than in their capacity as powers of attorneys, and the motion judge
    granted relief in the form of an amendment to the style of cause.

[9]

This court does not have jurisdiction over this
    order because it is interlocutory. Orders dismissing a motion to strike out all
    or part of a pleading are interlocutory because they do not finally dispose of
    the rights of the parties:
Hendrickson v. Kallio
, [1932] O.R. 675.

(iii)

Motion for an order that the respondents provide
    certain parties with access to Mr. Overtveld

[10]

Mr. Windsor and Mr. Jurado brought motions to order the attorneys to
    provide Ms. Youmouri, Mr. Jurado, Mr. Windsor, and Mr. Rappaport with access to
    Mr. Overtveld. The motion judge dismissed the motion and found that no change
    to access was required pending the hearing of the application. He found that
    the rules set by the attorneys were reasonable, especially given various
    attempts by Mr. Windsor and others to have Mr. Overtveld sign documents going
    against the direction and interests of the attorneys.

[11]

This court does not have jurisdiction over this
    order because it is interlocutory. The refusal to make changes to the terms of
    access to Mr. Overtveld pending the hearing of the application did not finally
    resolve issues at stake in these proceedings:
Hendrickson
.

(iv)

Motion to have Ms. Vale Peters removed as
    counsel

[12]

Mr. Windsor brought a motion for an order that
    Ms. Vale Peters cooperate with Mr. Windsor, and Mr. Jurado brought a motion
    seeking to have Ms. Vale Peters removed as counsel.

The motion
    judge dismissed the motions. The motion judge commended Ms. Vale Peters work
    and noted that the Public Guardian and Trustee chose not to be involved or seek
    the appointment of section 3 counsel. He declined to have her removed as
    counsel of record.

[13]

This court does not have jurisdiction over this
    order because it is interlocutory. Orders granting or dismissing a motion to
    remove or add solicitors of record are interlocutory:
Aptowitzer v. Ontario
(1995), 26 O.R. (2d) 254 (C.A.);
Sun Life Assurance Co. v. York Ridge
    Developments Ltd.
(1998), 116 O.A.C. 103 (C.A.), at para. 12.

(v)

Motion for an order for payment of accounts
    submitted to the respondents

[14]

Mr. Jurado brought a motion for an order for
    payment of the accounts submitted to the respondents by himself, Ms. Youmouri
    and Mr. Rappaport. The motion judge dismissed the motion, finding that he was
    not satisfied on the balance of probabilities that the attorneys failed to act
    in accordance with the statutory principles governing decision-making.

[15]

This court does not have jurisdiction over this
    order because it is interlocutory. The motion judges refusal to order payment
    does not finally dispose of the rights of the parties because the attorneys
    asked for further information from the parties who submitted the accounts to
    determine whether payment could be made. Furthermore, the payments are
    collateral to the real dispute between the parties, which is the capacity application.

(vi)

Additional motions

[16]

The appellants did not object in the court below
    to the attorneys motions for a stay of other related proceedings pending the
    determination of the capacity application. The motion judge decided to stay
    applications relating to passing of accounts, annulment, oppression, defamation,
    assessment under the
Solicitors Act
, R.S.O. 1990, c. S.15 and a separation
    agreement claim. The motion judge dealt with the remainder of the parties
    motions by setting out a new timetable and ordering that the parties attend
    mediation. None of these orders finally resolved the issues in those
    proceedings.

[17]

In their factum, the appellants ask for relief
    that goes well beyond the scope of the appeal of the
December 7, 2020
order, including claims for final orders in a wide variety of
    proceedings and for decisions on the merits in the underlying proceeding, which
    is still ongoing. There is no basis upon which this court could entertain those
    requests.

[18]

The appeal is therefore quashed, with costs
    payable by Mr. Jurado to the respondents Joy Overtveld, Todd Overtveld and Gary
    Katz in their capacity as attorneys fixed at $6,000.00 and to the Public
    Guardian and Trustee in the sum of $250.00.

G.
    Pardu J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.


