2014 ONSC 6219, 2014 ONSC 6219

CITATION : Lamanna v. Lamanna, 2014 ONSC 6219 COURT FILE NO.: 03-025/13 DATE: 20131024 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Carmella Lamanna and Gianpaolo Lamanna, Applicants AND: Guiseppe Lamanna, Maria DiNapoli (Attorney for Personal Care), and the Office of the Public Guardian and Trustee (Attorney for Property), Respondents BEFORE: E.M. Morgan J. COUNSEL: Mark Jacobson , for the Respondent Maria DiNapoli Graham Webb , for the Respondent Guiseppe Lamanna HEARD: October 24, 2014 CASE MANAGEMENT CONFERENCE – ENDORSEMENT [ 1 ] This case management conference has been convened to set an orderly

schedule for the hearing of a motion for approval of a power of attorney for personal care with respect to Guiseppe Lamanna. [ 2 ] At our telephone conference earlier this month, I asked Ms. Yach (counsel for the Applicants) and Ms. Geddie (counsel for the Public Guardian and Trustee) to stand by today in case they are needed by telephone. It was only necessary for Mr. Jacobson (for Maria DiNapoli) and Mr. Webb (for Guiseppe Lamanna under

section 3 of the Substitute Decision Act ) to have appeared today. In addition, Ms. DiNapoli and her husband attended today with Mr. Jacobson. [ 3 ] Mr. Jacobson asked for permission to have Ms. DiNapoli speak on her own behalf, which I granted. She made a very heartfelt plea to put this matter to rest as soon as possible. I understand her concern, as the matter has been very slow to wind its way through the courts. This is a painful situation for all parties, and I can imagine that it is putting great strains on the family relationships here. [ 4 ] I thank Ms. DiNapoli for expressing her viewpoint.

As I told her in the courtroom, she is very well-spoken; her comments were helpful to me in putting the litigation into perspective and in conveying the human dimension to the legal issues that this case entails. [ 5 ] I gather that although there was some talk of turning today’s session into a settlement conference, this has not transpired. Of course, I am not in a position to require anyone to settle, or even to consider settling, the dispute, although I am firmly of the view that it would be healthier for all concerned to turn their minds to a settlement conference. [ 6 ] Mr.

Jacobson has requested that he be permitted to examine Mr. Guiseppe Lamanna. He concedes that this is unusual, as Guiseppe Lamanna is the subject of this Application and all parties concede that he has capacity issues. However, Mr. Jacobson submits that there is important information to be gleaned through an examination of this kind, regardless of the difficulties involved. He is particularly concerned to bring to light what he contends is misinformation about Ms. DiNapoli being fed to Guiseppe by the Applicants – who are Ms. DiNapoli’s mother and brother. [ 7 ] Much as I understand Mr. Jacobson’s and Ms.

DiNapoli’s desire to set the record straight in this regard, I am not inclined to grant Mr. Jacobson’s request. As Mr. Webb points out, Guiseppe Lamanna has been the subject of medical assessments by qualified professionals, and the question of his capacity to appoint a power of attorney when he did so is to be determined based on the expert evidence in the record. The experts will be cross-examined, and the transcripts of those cross-examinations will also be before the court.

Nothing that Guiseppe Lamanna says under oath (if, indeed, he is even capable of swearing or affirming his testimony) will change the capacity assessments of the qualified experts. [ 8 ] The parties have booked February 12, 2015 for a full day motion. I am of the view that the best I can do for the parties is to

schedule the matter efficiently. [ 9 ] Mr. Jacobson has indicated that an additional problem here is that his clients do not have the financial resources to continue fighting the battle to their fullest. He has indicated that he would like to obtain an advance ruling on costs, potentially to be paid out of Guiseppe Lamanna’s estate, before proceeding with the examination of witnesses necessary for this motion. Ms. DiNapoli herself indicated to me what a financial hardship this has been for her and her family. I certainly sympathize.

The high cost of access to justice is of deep concern to all who participate in the judicial system. [ 10 ] Mr. Webb submits that there is no authority under the Rules of Civil Procedure for the type of costs relief that Mr. Jacobson seeks. He states that this case works like every other case – i.e. costs follow the result; they do not precede it. [ 11 ] I too have never heard of an advanced costs award, but that does not mean that there may not be authority somewhere to grant it. I have not heard full argument on the point and in this case conference I am not seized of a motion seeking that relief. No doubt Ms.

Geddie and Ms. Yach will have submissions that they would like to make on this point. If it is to be determined, Mr. Jacobson will have to bring a motion and have it argued on notice to all parties. [ 12 ] Any such motion will, of course, take time. It will almost certainly derail the February 12, 2015 motion date. I am reluctant to do anything that will cause more delay in this matter. It is only fair to all parties that the motion be heard and determined without being adjourned yet again. If Mr.

Jacobson wishes to bring a motion in the meantime he is free to do so, but that should run parallel to the timetable set out below. It should not delay the current motion. [ 13 ] The following timetable is based on counsel’s recommendations and their advice to me as to their availability and the availability of witnesses. Mr. Jacobson and Mr. Webb have contacted Ms. Geddie and Ms. Yach on the telephone to obtain their availability as well. The timetable for the motion is as follows: Nov. 10, 2014: Cross-examination of Dr.

Venera Bruto for 3 hours, plus 1 hour for re-examination; Nov. 11, 2014: Rule 39.03 examination of Mark Handelman for 1 hour, plus 1 hour for cross-examination; Nov. 18, 2014: cross-examination of Maria DiNapoli on her affidavit for 3 hours, plus 1 hour for re-examination. This is to take place in Simcoe County, commencing at 9:00 a.m.; Nov. 28, 2014: Rule 39.03 examinations of Gianpaolo Lamanna and Carmella Lamanna for 1 hour each, plus 1 hour each for cross- examinations; To be scheduled by counsel prior to December 6, 2014: Rule 39.03 examinations of Dr.

Corinne Fisher and Frank Mendicino for 1 hour each, plus 1 hour each for cross-examinations; Jan. 29, 2015: Delivery of moving party’s/parties’ factum and book of authorities; Feb. 5, 2015: Delivery of responding party’s/parties’ factum and book of authorities; Feb. 9, 2015: confirmation of motion pursuant to Rule 37.10.1; Feb. 12, 2015: hearing of motion. [ 14 ] There will be no costs of today’s case management conference for or against any party. Morgan J. Date: October 24, 2014