L Estate, 2014 ABQB 707

Court of Queen ’ s Bench of Alberta Citation: L Estate, 2014 ABQB 707 Date: 20141117 Docket: DA01 011214 Registry: Calgary Court File Number DA01 011214 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Calgary Dependent Adult Name E.M.L. Applicant G.L. Respondent Respondent J.M. D.L. Restriction on Publication Identification Ban – See the Adult Guardianship and Trusteeship Act , section 113(2) (c). By Court Order, no one may publish information that may identify the assisted person. NOTE: This judgment is intended to comply with the restriction so that it may be published.

Corrected judgment: A corrigendum was issued on November 18, 2014; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A.

Hughes _______________________________________________________ I Introduction [ 1 ] G.L. is the wife of E.M.L., the dependent adult. [ 2 ] In 2006, E.M.L.’s and G.L.’s daughter and son became their father’s attorneys and agents pursuant to an Enduring Power of Attorney and Personal Directive. [ 3 ] In 2007, G.L. filed an application seeking an order terminating E.M.L.’s Enduring Power of Attorney and Personal Directive and appointing her, D.L. and J.M. as guardians and trustees of E.M.L. under the Dependent Adults Act, RSA 2000, c D-11 (the “ DAA ”), with two of the three guardians having authority to make decisions on behalf of E.M.L.. [ 4 ] The reasons below set out why I find that her application fails.

II Facts [ 5 ] G.L. and E.M.L. have two children, J.M. and D.L. [ 6 ] In August 1987, G.L. suffered a serious brain injury. She was alone, riding a mountain bike without a helmet and fell, striking her head. She was found unconscious and was taken to Vancouver General Hospital where she was hospitalized for two weeks before being transferred by air to the Foothills Hospital in Calgary.

She was discharged from Foothills Hospital in December 1987. [ 7 ] After her discharge, G.L. continued to be treated for her brain injury by various medical professionals, including as a patient at the Life Skills Centre for the Brain Injured for approximately fifteen months. In November 1989, G.L. was referred to a psychiatrist, Dr. Anderson, by her then family doctor. [ 8 ] Dr. Anderson observed as follows in his report: She had only partial insight into her deficits and had a tendency to conceal them and there was evidence of a lack of abstract thinking.

Her long and short-term memory were good, but she became agitated when her immediate recall or concentration were tested. G.L.’s IQ was felt to be in the below-average range and there was evidence that her judgement was impaired when tested formally. G.L. has been given a diagnosis of post-traumatic dementia. I feel that at the present time her problem is more related to personality change than to cognitive loss, and I feel that she is suffering from an organic personality disorder.

She presents with a classic frontal lobe syndrome with evidence of emotional lability, talkativeness, childish excitement, lack of insight and social awareness and hyperactivity with impaired judgement. Clearly her cognitive functioning has shown the most improvement since the injury. G.L.’s condition has continued to improve to this point but, unfortunately, she is resisting treatment and becomes distressed as her awareness of her deficits becomes more obvious. She fights to organize her life and to restore her previous role within her family.

She presently reacts to each trip to Airdrie with a catastrophic reaction. This panic is often evident in people with brain injuries who become more aware of their deficiencies. At the present time I think G.L.’s family realize their mother has made significant improvements and that she is starting to take some responsibilities. The family are anxious for her to make her own decisions, while realizing that she has rights of her own. G.L.’s personality changes are certainly the most difficult for families to accept.

Unfortunately, they will have to do so as her emotional lability and inappropriate behavior will persist. G.L.’s attitude towards treatment at present will not allow any further progress to take place. However, this may be the time to move towards another treatment that she may be more receptive to.

[ 9 ] In June 1993, G.L. became a patient of Dr. Wong, her current family doctor. [ 10 ] Dr. Suffield, a chartered psychologist, reviewed Dr. Wong’s entire treatment chart for G.L.. He observed an entry in the chart dated January 8, 1999 where G.L. “... asked for a refill of a prescription, while saying she had enough to last. The entry reads, ‘very confused’.” [ 11 ] In July 2000, E.M.L. executed an Enduring Power of Attorney and Personal Directive. He appointed J.M., D.L. and a third person as his attorneys under the Enduring Power of Attorney and appointed J.M. and D.L. as agents under his Personal Directive.

It is possible that G.L.’s 1987 brain injury and the resulting deficits was a factor in his decision not to include her as an attorney or agent. [ 12 ] In March 2006, E.M.L. suffered a series of strokes. In June 2006, two physicians signed Declarations of Incapacity for Enduring Power of Attorney and Declarations of Incapacity under the Personal Directives Act, RSA 2000, c P-6 respecting E.M.L.. G.L. and D.L. allege this was done by J.M. without their knowledge.

Soon after this, the third attorney under the Enduring Power of Attorney renounced his appointment. [ 13 ] On December 21, 2007, G.L. filed an application seeking an order terminating E.M.L.’s Enduring Power of Attorney and Personal Directive and appointing her, D.L. and J.M. as guardians and trustees of E.M.L. under the DAA , with two of the three guardians having authority to make decisions on behalf of E.M.L.. [ 14 ] On November 21, 2008, G.L. filed a second application under the DAA , seeking an order terminating the appointments under the Enduring Power of Attorney and the Personal Directive and the appointment of guardians and trustees.

The stated grounds for this application were that J.M. was no longer a resident of Alberta, that J.M. and D.L. were now the only attorneys and agents, that J.M. and D.L. were incompatible and that there was no mechanism for solving any disagreement.

This application, like the first, sought the appointment of G.L., D.L. and J.M. as guardians and trustees of E.M.L. with the decision of any two to be binding. [ 15 ] On December 8, 2008, Justice Kent made an interim order appointing G.L., D.L. and J.M. as decision makers with respect to the medical care of E.M.L., with the majority of decision makers prevailing in the event of a difference of opinion.

This order has remained in effect since that date. [ 16 ] In an attempt to move the matter forward, Justice Horner made an order on October 18, 2011 that set certain filing deadlines and provided specifically for the following: 1. The application of J.M. to remove G.L. as an interim decision-maker for E.M.L.’s medical care in Court of Queen’s Bench Action No. DA01-011214 (the “Surrogate Action”) is hereby adjourned sine die . 2.

If G.L. is going to revive her application or file a new application to be appointed as guardian and trustee of E.M.L., or any other cross-application, then she must file and serve her application, with all supporting documentation, on counsel for J.M. by November 15, 2011. 3.

If G.L. fails to file her application to be appointed guardian and trustee of E.M.L. by November 15, 2011, then she loses her right to file any such application prior to the hearing of J.M.’s application to remove G.L. as a decision-maker for E.M.L’s medical care. [ 17 ] On November 15, 2011, G.L. filed an application to revive her application under the DAA , or alternatively to bring a new application under the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 (the “ AGTA ”).

No new application under the AGTA has been filed by G.L. to date. [ 18 ] In G.L.’s affidavit sworn November 14, 2011 and filed in support of the above application she states: 6. I have never abandoned or discontinued my Application which was commenced under the Dependent Adults Act . 7. It is my wish and intention to proceed under the Dependent Adults Act with my original Application to be appointed as one of the three Trustees and Guardians (decision makers) of the estate and person of my husband, E.M.L. 8.

I verily believe there will be no prejudice to any party to this Application should my original Application be allowed to proceed under the Dependent Adults Act . 9.

I make this Affidavit in support of an application for an Order to revive my Application to be appointed as one of the Guardians and Trustees of E.M.L. and to be heard at a special Chambers hearing on or prior to June 30, 2012. [ 19 ] On June 27, 2013, I terminated E.M.L.’s Enduring Power of Attorney and appointed D.L., J.M. and the Canada Trust Company as interim trustees. [ 20 ] On March 28, 2014, I made a Trusteeship Order pursuant to s 46 of the AGTA appointing D.L., J.M. and the Canada Trust Company as trustees for E.M.L., with the trustees having joint responsibility, provided that the majority decision of two of the three trustees is binding if Canada Trust Company is included in any majority decision. [ 21 ] The sole issue remaining from G.L.’s DAA application is who should be appointed as guardians of E.M.L.

To determine this question, I must first determine which statute applies at this point – the DAA or the AGTA . II The Legislative Framework [ 22 ] The AGTA came into force on October 30, 2009. The Transitional Regulation , Alta Reg 218/2009 governs the transition from the DAA to the AGTA . The relevant provisions of the Transitional Regulation are as follows:

Application for order 2(1) A person may apply under this

section (

a) for the appointment of a guardian or trustee for an adult, (

b) for a review of a guardianship or trusteeship order granted under the former Act, or (

c) to pass the accounts of a trustee under an order granted under the former Act.

(2) Subject to subsections (3) and (4), an application under this

section shall be made and determined in conformity with the requirements, regulations, forms, practices and procedures that applied to applications under the former Act.

(3) A guardianship or trusteeship order that is granted or continued on an application under this

section shall specify a date within the 6-year period immediately after the coming into force of the [ AGTA ] by which the order must be reviewed under the [ AGTA ].

(4) A guardianship order that is granted or continued on an application under this

section shall not give the guardian powers or authority with respect to a matter referred to in section 10(3)(

f) or (

i) of the former Act. (5) Section 117(2) and (4) of the [ AGTA ] applies to a guardianship or trusteeship order granted or continued under this

section as if the order had been made under the former Act before the coming into force of the [ AGTA ].

(6) An application under this

section that is not completed within the one-year period immediately after the coming into force of the [ AGTA ] shall be continued and determined in conformity with the requirements, regulations, forms, practices and procedures that apply to applications under the [ AGTA ].

(7) An application may be started under this

section only within the 3-month period immediately after the coming into force of the [ AGTA ].

Applications under the former Act 3(1) An application under the former Act for the appointment of a guardian or trustee, the review of a guardianship or trusteeship order or the passing of the accounts of a trustee that was started before the coming into force of the [ AGTA ] shall be continued and determined in conformity with the requirements, regulations, forms, practices and procedures that applied to applications under the former Act. (2) Section 2(2) to (6) applies, with any necessary modifications, to an application referred to in subsection (1). ...

Repeal 8 In accordance with section 117(11) of the [ AGTA ], sections 1 to 3 are repealed on the earliest of the following: (

a) the coming into force of an amendment that adds the subject matter of sections 1 to 3 to the [ AGTA ] or another Act, (

b) the coming into force of a regulation that repeals sections 1 to 3, and (c) 3 years after sections 1 to 3 come into force. [ 23 ] G.L. also makes reference to the following provisions of the

Interpretation Act , RSA 2000, c I-8: 35(1) When an enactment is repealed in whole or in part, the repeal does not ... (

c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed, ... (

e) affect any investigation, proceeding or remedy in respect of the right, privilege, obligation, liability, penalty, forfeiture or punishment.

(2) An investigation, proceeding or remedy described in subsection (1)(

e) may be instituted, continued or enforced and the penalty, forfeiture or punishment imposed as if the enactment had not been repealed. III Analysis [ 24 ] J.M. asserts that

section 2 of the Transitional Regulation has no application because subsection 2(7) provides that the

section applies only to applications brought within the three-month period immediately following the coming into force of the AGTA , which expired on January 31, 2010. G.L. filed her applications under the DAA in 2007 and 2008 and, on November 15, 2011, brought an application to “revive” her DAA application. None of those dates falls within the time frame contemplated by subsection 2(7) of the

Transitional Regulation . [ 25 ] J.M.’s position is that G.L.’s application was never “revived” pursuant to Justice Horner’s order and that if G.L. has lost any right to pursue that application, the loss was due to her failure to comply with that order. [ 26 ] For her part, G.L. argues that

section 2 of the Transitional Regulation can be applied to her application under the DAA notwithstanding that application was not brought in the time frame specified in the regulation. [ 27 ] G.L. argues that the Transitional Regulation must be interpreted in such a way as to avoid interfering with her vested right to have her DAA application determined. [ 28 ] In support of her position, G.L. cites Alberta (Director of Child Welfare) v LK , 2005 ABPC, 377 AR 300. In that case, the Provincial Court considered subsections 35(1) and (2) of the

Interpretation Act and concluded that an existing application for guardianship could be continued notwithstanding repeal of the applicable provisions of the statute. Judge Kvill made these comments at paras. 69, 72, 74-5 and 79 with respect to the preservation of vested rights: Where an action has been commenced in the courts prior to changes made in legislation, courts have expressed a reluctance to determine the issue using the changed legislation. ... Dreidger points out at p. 191 “... a new statute does not apply to pending actions, in the absence of a contrary intention in the statute...” ... ...

The reason for this reluctance is based upon the concern that the change in the legislation might affect the litigant’s existing rights. The law regarding retrospective changes in statutes requires that the court first determine if a litigant has existing rights or a vested interest. In the words of the

Interpretation Act s. 35 (

c) does the litigant have any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed? ... In this case the issue is whether the applicant L.K. has the right to have her application for joint guardianship heard by the court. She filed her application before the right to seek a joint guardianship order was repealed. [ 29 ] G.L. points out that this case was cited with approval by Justice Watson (then of this Court) in Alberta (Child, Youth and Family Enhancement Act, Director) v AS , 2006 ABQB 354 , 28 RFL (6 th ) 310.

In AS , an application for a permanent guardianship order was allowed to proceed despite repeal of the relevant statutory provisions. Justice Watson made these comments at paras. 59-61 and 63: To the extent that the children were receiving such a benefit, it is, in my view, fair to say that their “right” to receive such benefit had crystallized sufficiently for the Director to be in a position to further it by seeking a permanent guardianship order for each of the children.

While a claim by an adult might be characterized as something that should have to be hardened into a right, as in Dikranian , a child’s position is different. Even if retrospective legislation should be subject to a strict reading against injurious intrusions upon only firm rights of adults, I have some difficulty applying the rigour of such a proposition against an ongoing right of an infant to have its actual best interests determined and served under the law. ...

Accordingly, if the only statute giving vitality to the Director’s application for permanent guardianship was the older Act, I am satisfied that, by virtue of Section 35(1) (

c) of the

Interpretation Act and common-law notions of statutory construction, that both the older and the current Act should be read to preserve the ability of the Director to apply for permanent guardianship orders as to each of these five children. [ 30 ] G.L. argues that the “guiding principle” behind these decisions, namely the best interests of those being protected, apply equally to dependent adults. [ 31 ] She also asserts that the decisions are consistent with the criteria for vested rights articulated by the Supreme Court of Canada in Dikranian v Quebec (Attorney General) , 2005 SCC 73 , 3 SCR 530 at para 37 : Few authors have tried to define the concept of “vested rights”.

The appellant cites Professor Côté in support of his arguments. Côté maintains that an individual must meet two criteria to have a vested right: (1) the individual’s legal (juridical) situation must be tangible and concrete rather than general and abstract; and (2) this legal situation must have been sufficiently constituted at the time of the new statute’s commencement... [ 32 ] G.L.’s position is that both she and E.M.L. have a vested right to have a final determination of her application made under the DAA .

She argues that this right is tangible and concrete as she has actively pursued the application and resolution of the matter without further delay is in E.M.L.’s best interests.

IV Conclusion [ 33 ] Contrary to J.M.’s submission, I find that G.L. did not fail to comply with Justice Horner’s order. That order required G.L. to file and serve her application to “revive” her DAA application by November 15, 2011 and the evidence establishes that she did so. That, however, is not the end of the matter. Considerable further time has elapsed without leave having been granted to “revive” G.L.’s DAA application and without a new application. [ 34 ] I cannot find that either G.L. or E.M.L. has a vested right to have this application determined under the DAA .

What E.M.L. has is a right to have a decision made that is in his best interests, not specifically a right to have that decision made pursuant to a particular statute. As G.L. points out at para. 31 of her brief, both the DAA and the AGTA mandate decisions in the best interests of the dependent adult. [ 35 ] I find that the cases cited by G.L. are distinguishable from the matter at bar. Both of those cases concerned applications for orders that were no longer available under the revised statute. That is not the case here.

There is no evidence before me to suggest that guardianship under the DAA is significantly different from that under the AGTA . [ 36 ] As noted above, subsection 2(6) of the Transitional Regulation provides that an application that is not completed within one year of the coming into force of the AGTA shall be continued and determined in conformity with the AGTA .

That subsection, however, applies expressly to applications brought during the transition period; G.L.’s application was not. [ 37 ] Though it was not stressed by the parties, I am mindful that subsection 3(1) of the Transitional Regulation permits DAA applications started before the coming into force of the AGTA to be continued in accordance with the DAA . However, the Transitional Regulation has now been repealed for some time.

I find that the purpose of the Transitional Regulation was to allow for a smooth transition between the DAA and the AGTA by permitting existing applications to be completed under the DAA for a set period of time notwithstanding the repeal of the DAA . The Transitional Regulation was not intended to create a right to continue a DAA application ad infinitum .

I think it likely that the Legislature simply did not contemplate that a dependent adult matter would remain unresolved beyond the specified transitional period. [ 38 ] Leave to “revive” G.L.’s DAA application has never been given and I do not think it appropriate to do so now given the length of time elapsed and the uncertain application of the now-repealed Transitional Regulation . [ 39 ] In my view, G.L. has no currently extant application for guardianship of E.M.L. and the appropriate course, should she still wish to pursue it, is to bring a fresh application pursuant to the AGTA .

While I am mindful that dependent adult matters should be resolved without unnecessary delay, the status quo in this matter has been in place for nearly six years and, on balance, I find that it would be best for any further considerations of the case to be made pursuant to the currently applicable statute. [ 40 ] Costs may be spoken to. Heard on the 25 th day of June, 2014. Dated at the City of Calgary, Alberta this 17 th day of November, 2014. E.A. Hughes J.C.Q.B.A. Appearances: Mr. G.A. Dymond for the Applicant Mr. G.S. Watson and Mr. G. Williams

for the Respondent Ms. C. Amsterdam and Mr. L. Graburn for D.L. _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice E.A. Hughes _______________________________________________________ Correct spelling of the name of counsel in Appearances: Mr. L. Graburn