Wills and estates litigator Sheila Morris' article "Vulnerable litigants and family members: A little help from my friends" was published by The Lawyer's Daily, and looks at an undue influence claim where siblings clash over how their elderly parent was influenced in litigation over property ownership.
The article was published on March 12, 2020. To read the article in The Lawyer's Daily, visit: https://www.thelawyersdaily.ca/articles/18121/vulnerable-litigants-and-family-members-a-little-help-from-my-friends (subscription required).
Vulnerable litigants and family members: A little help from my friends
It often happens that sibling "A" becomes suspicious of sibling "B's" motives when sibling "B" assists an elderly parent in obtaining legal advice or pursuing litigation. Indeed, estate litigators frequently rely on such facts as a basis for an undue influence claim or suspicious circumstances in a will challenge. Can an elderly or vulnerable litigant ever rely on a family member to assist in retaining a lawyer and getting legal advice? And, what is a litigant to do (and, more importantly, not do) when they are concerned that their adversary lacks capacity?
The recent decision of Justice Paul Perell in Kalia v. Kalia 2020 ONSC 935 addresses these questions.
Adarsh Kalia had four children: Vishal Kalia, Neeti Wankhede, Meeta Ingram (Meeta) and Rakhi Kalia (Rakhi). Adarsh moved to Toronto with Rakhi in 2004, and they lived together with Rakhi's husband in a condominium. When the property was initially purchased, the deed showed that Rakhi had a 99 per cent interest, and Adarsh had a one per cent interest. In what Justice Perell referred to as "odd circumstances," the lawyer who acted on the purchase transaction subsequently reversed the registered ownership interests of the property. The property was then reconveyed in September 2014, so that Adarsh and Rakhi became joint tenants with a right of survivorship. Ann Woodruff, a lawyer with the law firm of Copeland McKenna (the law firm), acted on this transaction.
Meeta learned of the property's strange conveyancing history and became concerned. Then, in November 2015, Adarsh granted Meeta a continuing power of attorney for property and personal care. In October 2016, Adarsh moved out of the condominium and began living with Meeta.
On Dec. 15, 2016, Adarsh commenced litigation against Rakhi, Woodruff and the law firm. She sought a declaration that she has a 99 per cent ownership interest in the property, and she sought a partition and sale. She also alleged that Rakhi fraudulently schemed to appropriate her interest in the property, and that Woodruff and the law firm were negligent on the basis that they were never retained to affect any conveyance.
Rakhi claims that her mother knew nothing about having commenced this lawsuit in respect of the property, and, in fact, that it was Meeta who was behind the litigation. Rakhi set off on a long and complicated quest to prove just that.
Rakhi's first step was, on Jan. 5, 2017, to serve her mother's lawyer, Joga Chahal of Bougadis Chang LLP, with a Request to Deliver Notice in accordance with Rule 15.02(1) of the Rules of Civil Procedure. This rule entitles any party who is served with an originating process to demand that the lawyer named in that originating process as the plaintiff or applicant's lawyer deliver a notice declaring that either the lawyer or the client authorized the commencement of the proceeding. Notably, Rule 15.02 does not set out what is required as proof that the client authorized the commencement of the proceeding; the proof depends on the circumstances of each case. Chahal delivered a Notice of Authority to Commence Proceeding, declaring that the action had been commenced with Ardash's authorization.
Rakhi's lawyers followed up with Chahal by e-mail on Jan. 20, 2017, making further inquiries into the creation of the retainer and seeking confirmation as to whether Adarsh's capacity had been assessed.
In early spring 2017, Meeta contacted Chahal to express her own concerns about Adarsh's mental capacity. Chahal sought a number of professional opinions, each of which opined that Adarsh lacked capacity:
- Dr. Kaplovitch, Adarsh's family doctor, opined in April and May 2017 that Adarsh was a) suffering from post-traumatic distress syndrome and early onset dementia; b) not capable of managing her own financial affairs and property; c) not capable of independent personal care; d) not capable of retaining and instructing her lawyer; and e) a "Party Under Disability" pursuant to the Rules and the Substitute Decisions Act (SDA);
- In December 2017, Dr. Sanjeev Kumar, a physician at the Centre for Addiction and Mental Health (CAMH) examined Adarsh and formed the impression that she was suffering from cognitive impairment due to a major neurocognitive disorder (dementia); and,
- On Jan. 31, 2018, George Anand, an independent capacity assessor on the Capacity Assessor Roster opined that Adarsh was a person under a disability as she was unable to understand her role in court proceedings and was unable to appreciate the reasonably foreseeable consequences of her decision.
In March 2018, Chahal brought a motion to appoint a litigation guardian. Rakhi vigorously opposed Meeta's appointment, and, without anyone else willing to act, the Public Guardian and Trustee (PGT) was appointed litigation guardian. The PGT retained Chahal and his firm to represent Adarsh and sought to continue the conveyancing litigation.
Rakhi, however, could not let the matter rest. Presumably, she was emboldened by the medical opinions in respect of her mother's capacity. In December 2018, she brought a motion to have Bougadis, Chang LLP disqualified as lawyers of record, presumably on the basis that the litigation was commenced without Adarsh's authorization. Adarsh brought a cross-motion seeking a litigation timetable, and an order that the action be assigned for case management.
This is part one of a two-part series. Part two will look at the court's response.
originally published by The Lawyer's Daily
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