The Case Conference: A Powerful Tool For Efficiency in Guardianship Applications

Background

When an application, including an application for guardianship of an incapable person’s care and property, is brought, there are several steps that need to be taken before the application can be heard and decided by a judge. These steps include filing of application materials, cross-examinations, potentially mediation, the appointment of a neutral lawyer to protect the interests of the person whose capacity is in issue,  and preparation of written arguments. Motions may also need to be brought along the way to compel production of documents, stop inappropriate conduct, etc. These steps can be time consuming. While each case is different, it may take over a year, if not longer before a contested guardianship application can be heard. During that time, ongoing businesses may need to be managed, creditors may have to be paid and investments monitored and managed in a timely fashion. When it comes to the subject person’s care, medical emergencies have to be dealt with in real time and regular care has to be ensured. This raises the question as to whether there is a way to address guardianship issues on an expedited basis.

Chang et  al. v. Hsieh et  al.

Let’s see how Justice Myers dealt with this issue in Chang et al. v. Hsieh et al.[mfn]Chang et al. v. Hsieh et al., 2023 ONSC 5895[/mfn]

The parties were directed to agree on issues relating to the quality of care of their parents, who lived in a retirement home, but were unable to do so. Justice Sanfilippo had previously ordered that the parents’ care cannot be interfered with.

Disagreements arose when the power of attorney withheld her parents’ OHIP codes, out of concern that the retirement home’s fees for pharmaceuticals and doctors were too high. The other siblings blamed the power of attorney for interfering with their parents’ care and medication. Section 3 counsel was appointed by the Public Guardian and Trustee to advocate for the parents. The parties could not agree to terms of an order, and as a result, section 3 counsel booked a case conference to obtain an order respecting the parents’ care.

At a case conference, Justice Myers made an order respecting the care and quality of life of the parents over the objections of some of the siblings.¹ Justice Myers set out his authority to make this decision on a case conference based on the court’s inherent authority to determine a proceeding in the fastest most expeditious manner, the powers of a case conference judge, as well as the court’s “parens patriae” jurisdiction to protect vulnerable individuals.²

What Orders Can a Judge Make at a Case Conference?

A case conference is an attendance before a judge or associate judge that “… provides an opportunity for any or all of the issues in the proceeding to be settled without a hearing and, with respect to any issues that are not settled, to obtain from the court orders or directions to assist in the just, most expeditious and least expensive disposition of the proceeding”.³

According to Rule 50.13 of the Rules of Civil Procedure, a judge or associate judge may deal with the following matters at a case conference:

1.  identify the issues and note those that are contested and those that are not;
2. explore methods to resolve the contested issues;
3. if possible, secure the parties’ agreement on a specific schedule of events in the proceeding;
4. establish a timetable for the proceeding; and
5. review and, if necessary, amend an existing timetable.⁴

Further, and more significantly, a case conference judge has the power pursuant to Rule 50.13(6) to do the following, with or without the consent of the parties, provided all parties have notice:

1. make a procedural order;
2. convene a pre-trial conference;
3. give directions; and
4. in the case of a judge,
   1. make an order for interlocutory relief, or
   2. convene a hearing.⁵

Conclusion

The issues raised in Chang are unfortunately common. In 2012-2013, the Public Guardian and Trustee had 11,041 adult property guardianship clients across Ontario.⁶ Arranging for visitation and care of an incapable person is often required on an urgent basis. Despite this, party dynamics and lack of cooperation can protract proceedings and complicate the grant of orders in guardianship applications. In Chang et al. v. Hsieh et al., Justice Myers noted that “The parents’ lives are not to be weaponized in a sibling dispute.”⁷ and that “…litigants need to learn that there are times when they need to cooperate even though they are at odds with the other parties.”⁸

When the parties fail to do so, the court “…may be contacted to convene a brief case conference to settle the terms of the order.”⁹

In 2014, the Chief Justice of Ontario noted that commitment to perfect fairness at every step has led to an inaccessibly expensive and slow system that had “begun to impede the very justice we are striving to protect”. For that reason, the Supreme Court of Canada required a culture shift in which new, cheaper, faster, processes can apply as long as they do not impair the fairness of the dispute resolution process.¹⁰

The power of a court to make interlocutory orders at a case conference is consistent with the court’s commitment to efficiency and justice. This power can be exercised in civil¹¹ and estate proceedings as well. However, this power is especially important in guardianship applications, where there is often urgency and where the incapable person’s life expectancy and quality of life are in question, and there is a real risk that they may not live to see the benefits of the order, if no relief can be granted until a motion or the application is heard.