Hrycyna v Hood, 2019 SKCA 30

Court of Appeal for Saskatchewan Docket: CACV3210 Citation: Hrycyna v Hood , 2019 SKCA 30 Date: 2019-03-28 Between: Peter Hrycyna, Jr. Appellant (Respondent) And Vera Hrycyna Appellant And Anna Vera Hood Respondent (Applicant) Before: Ottenbreit, Whitmore and Leurer JJ.A. Disposition: Appeal of Peter Hrycyna dismissed Appeal of Vera Hrycyna allowed in part Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Leurer On Appeal From: 2018 SKQB 63 , Battleford Appeal Heard: December 5, 2018 Counsel: Bill Warren for Peter Hrycyna, Jr.

Davin R. Burlingham for Vera Hrycyna Jaylyn E. Lawrence for Anna Vera Hood Ottenbreit J.A. I. Introduction [ 1 ] This matter concerns what was originally two appeals.

Peter Hrycyna appeals the decision of a Queen’s Bench Chambers judge dated February 22, 2018 ( 2018 SKQB 63 ), determining that the enduring power of attorney dated January 18, 2010, granted by Vera Hrycyna to Anna Vera Hood [2010 power of attorney] remains in full force and effect, that Vera lacked the capacity to revoke such power of attorney or to grant powers of attorney to Peter and any such grants are invalid, and appointing Anna as her personal and property guardian.

Peter also appeals the order of costs made against him by the Chambers judge. [ 2 ] Vera appeals the appointment of Anna as her personal and property guardian. She has filed a separate notice of appeal and is separately represented. Vera’s separate representation, in light of the Chambers judge’s finding that she required a personal guardian has been dealt with in an earlier decision of this Court ( 2018 SKCA 49 ). [ 3 ] For the reasons hereinafter set forth, the appeal of Peter is dismissed. The appeal of Vera is allowed in part. II. facts and background [ 4 ] Vera is the mother of Peter and Anna.

After Peter and Anna’s father died in 2007, Peter commenced three actions against Vera and Anna with respect to entitlement to land and other property in his father’s estate. That litigation spanned approximately eight years. During that time, Anna and Vera were in conflict with Peter and united in opposing the claims of Peter. [ 5 ] On January 18, 2010, Vera executed an enduring power of attorney appointing Anna her personal and property attorney.

Shortly thereafter, Vera transferred her land and bank accounts into joint names with Anna. [ 6 ] By the fall of 2016, it became clear to Anna that her mother was suffering from dementia. Vera had begun making complaints to the RCMP about people stealing her things. Anna then began taking care of Vera’s day-to-day financial business, including paying her bills. [ 7 ] In January 2017, Peter, or others on his behalf, had Vera execute powers of attorney in his favour on two different occasions.

They were both invalid for failure to comply with the requirements of The Powers of Attorney Act, 2002 , SS 2002, c P-20.3 [ PAA ]. However, Peter attended the financial institution where Vera did her banking with one of the powers of attorney and attempted to exercise authority over her accounts, but the bank did not honour the power of attorney. [ 8 ] In February 2017, Vera began living in Anna’s home. Vera had not been taking her medicine properly or feeding herself. She had tried to hold a piece of paper over a hot burner. Vera began telling Anna that she did not remember any court proceedings with Peter.

She continued to be paranoid about people stealing from her.

[ 9 ] In March 2017, a nurse practitioner attending to Vera’s health referred her to the Geriatric Assessment and Management Program in Saskatoon for an assessment. [ 10 ] On April 4, 2017, Dr. Lilian Thorpe, a geriatric psychiatrist, and Dr. Vanessa van der Merwe, a geriatric medicine practitioner, conducted a psychiatric and geriatric assessment of Vera, including detailed functional and cognitive testing.

They concluded Vera had advanced cognitive impairment (dementia), as a result of which she was incapable of making informed decisions about her personal life, health care or finances, except for very simple ones. Their assessment suggested that her duly-appointed substitute decision-makers and powers of attorney would need to make those decisions for her now.

Pointedly, the assessment indicated she should not be signing or making any changes to pre-existing versions of any legal documents such as powers of attorney or a will. [ 11 ] On May 29, 2017, Peter attended at Anna’s residence with a friend asking that Vera be permitted to go with them for a visit. They assured Anna that Vera would be returned to her home. At that time, Anna showed Peter and his friend the 2010 power of attorney and the April 4, 2017, geriatric assessment of Vera. [ 12 ] Peter did not return Vera to Anna’s residence. When Anna went to the RCMP for assistance, they declined to become involved.

Peter thereafter filed an assault complaint with the RCMP alleging that Anna had stabbed him with a syringe. An assault charge was laid against Anna. Pending trial, Anna was prohibited from having any contact with Peter. After trial, Anna was found not guilty on the charge. After not returning to Anna’s home, Vera lived with Peter and continues to do so. [ 13 ] On May 31, 2017, Peter took Vera to Paula Bittman, a lawyer, where she executed a form of power of attorney. Ms.

Bittman completed a Legal Advice and Witness Certificate stating that the nature and effect of an enduring power of attorney was explained to Vera and that, in her opinion, Vera could understand the nature and effect of the document at the time she signed it. Peter took this power of attorney to Vera’s financial institution to again attempt to exercise control over her accounts. The financial institution was aware of the geriatric assessment for Vera and refused to honour the power of attorney. [ 14 ] In June 2017, another doctor, Dr.

Andre van der Merwe, signed a “To Whom it May Concern” letter, indicating that he had examined Vera, and found her to be “of sound mind and able to manage her own affairs”. This was followed up in July 2017 with another similar letter stating that Vera had been his patient since 2012, that he had recently seen Vera and that she was of sound mind and fully able to make her own decisions. [ 15 ] In July, Peter, through his lawyer, advised Anna that he was Vera’s personal and property attorney and demanded the return by Anna of certain of Vera’s property.

He also threatened to sue Anna for improperly taking and using Vera’s funds and property. [ 16 ] In July 2017, Anna was informed by Canada Post that Peter had provided it with the May 31, 2017, power of attorney and that it had accordingly redirected Vera’s mail to Peter. In August 2017, Vera’s CPP and old age security cheques stopped going into the joint account that Anna had opened to manage Vera’s affairs. As well, in August 2017, Anna was contacted by the Public Guardian and Trustee who informed her that Peter had contacted them to accuse her of taking Vera’s money and locking the gates on Vera’s property.

As a result, the Public Guardian and Trustee froze the joint account of Vera and Anna. [ 17 ] On September 6, 2017, Michel L. Riou, a lawyer, advised he acted for Vera and that the 2010 power of attorney had been revoked. He advised that a new attorney had been appointed and requested Anna to provide an accounting of her handling of Vera’s affairs. On September 7, 2017, a power of attorney appointing Peter [2017 power of attorney] was executed by Vera. Mr.

Riou completed a Legal Advice and Witness Certificate stating he had explained the nature and effect of the power of attorney to Vera and, in his opinion, she could understand its nature and effect at the time she signed it. [ 18 ] In October 2017, Anna filed an application to be appointed personal guardian for Vera under The Adult Guardianship and Co- decision-making Act , SS 2000, c A-5.3 [ The Adult Guardianship Act ], and an originating application for an order that the 2010 power of attorney was valid.

In support of her applications Anna filed her own affidavit and the affidavits of the geriatric practitioners mentioned earlier. [ 19 ] In response, Peter filed a statement of objection to Anna’s application to be appointed personal guardian for Vera. In support of his opposition to the orders requested by Anna, Peter filed his own affidavits. He did not, however, file an application under The Adult Guardianship Act . [ 20 ] Peter also filed the affidavit of Mr. Riou on the application regarding the validity of the 2010 power of attorney. Mr.

Riou attested that he had met with Vera in August and September 2017 and formed the opinion Vera was fully aware of matters being discussed, was able to give instructions and that she was fully competent to manage her own affairs and to provide him instructions regarding any court action he may undertake on her behalf. III. Decision of the Court Below [ 21 ] The Chambers judge noted that the two main issues before him were whether Vera had capacity to execute the 2017 power of attorney in favour of Peter and whether Anna was entitled to be appointed the personal and property guardian for Vera.

After reviewing the facts and relevant provisions of the PAA and The Adult Guardianship Act , he noted that it was not disputed that the 2010 power of attorney was valid and that unless it was revoked, it remained operative. [ 22 ] The Chambers judge then turned to the issue of Vera’s capacity. He stated: [15] I do not accept, as argued by counsel for Peter, that the test for determining capacity to make or revoke a power of attorney is limited to whether the grantor could understand the nature and effect of the document at the very time of signing the document.

This would be a very circumscribed test both in terms of the level of understanding and the temporal aspect of when that understanding must exist.

… [ 18] The Powers of Attorney Act defines “ capacity” as the ability: (

a) to understand information relevant to making decisions with respect to property and financial affairs or personal affairs, as the case may be; and (

b) to appreciate the reasonably foreseeable consequences of making or not making a decision referred to in clause (a); This definition of capacity goes well beyond a mere basic understanding of the nature and effect of the document being signed at the moment of signing. To have capacity Vera must have also had capacity to understand information relevant to making the decision to grant a power of attorney and the capacity to appreciate the reasonably foreseeable consequences of the decision.

The fact that Vera may have understood at the moment of signing the power of attorney that she was signing a power of attorney document is not sufficient. … [20] The concept of capacity is further supplemented in s. 19(1)(

b) which stipulates that in the case of terminating an enduring power of attorney that the person must understand the effect of terminating an enduring power of attorney. [ 23 ] The Chambers judge noted that whether the 2017 power of attorney revoked the 2010 power of attorney depended on Vera’s capacity as determined in accordance with s. 19(1) (

b) of the PAA . In this regard, he determined that the certificate signed by Mr. Riou in relation to the 2017 power of attorney was problematic. He determined it did not create a presumption of capacity but was merely some evidence of capacity. [ 24 ] The Chambers judge reviewed the affidavit of Mr. Riou dated November 2, 2017, which Peter had filed on Anna’s motion regarding the validity of the 2010 power of attorney. He concluded that because Mr. Riou had not made any mention in his affidavit of the assessment of Vera’s dementia by Drs.

Thorpe and Vanessa van der Merwe, he must not have been informed of it by Peter. He stated: [32] Paragraph 4 of Riou’s affidavit states Riou’s conclusion that Vera was competent to manage her own affairs and to provide him instructions to carry out any court action he may undertake on her behalf. This is a very narrow and specific opinion which does not address the elements of capacity to execute a power of attorney or to revoke an existing power of attorney as outlined above. [ 25 ] The Chambers judge declined to admit into evidence the two “to whom it may concern” letters of Dr.

Andre van der Merwe because they were hearsay. He noted that Peter had failed to file an affidavit from the doctor even though it was open for him to do so. He also declined to admit the letters under s. 22 of The Evidence Act , SS 2006, c E-11.2 , because they were informal opinions unsupported by any details or by any testing and investigations. [ 26 ] The Chambers judge then stated: [35] I accept the opinions of Drs.

Thorpe and Vanessa van der Merwe that as of April 4, 2017 Vera had advanced dementia, that as a result she was incapable of making informed decisions about herself or her finances except very simple ones and that her advanced dementia was likely to deteriorate over time worsening her decision-making abilities. [ 27 ] On the issue of Vera’s capacity and the continuing effectiveness of the 2010 power of attorney, the Chambers judge concluded: [36] I find that on September 7, 2017 Vera did not have the capacity to either grant a power of attorney to Peter nor to revoke the enduring power of attorney previously granted to Anna.

As a result I find the September 7, 2017 grant of power of attorney to Peter to be invalid and unenforceable. For the same reasons as advanced above I also find the grant of power of attorney to Peter that was executed on May 31, 2017 before lawyer Bittman to be invalid and unenforceable. The result is that the enduring power of attorney granted by Vera in favour of Anna on January 18, 2010 remains operative. [ 28 ] With respect to Anna’s application under The Adult Guardianship Act , the Chambers judge stated: [39] I have concluded that no hearing is necessary. Based upon the evidence provided by Drs.

Thorpe and Vanessa van der Merwe in their affidavits regarding their assessments of Vera and the lack of any credible evidence to the contrary I am satisfied that Vera needs a personal and property guardian appointed. Quite apart from the fact that Anna holds a valid and enduring power of attorney from Vera, I am satisfied on all of the evidence that Anna is the appropriate and best person to appoint as Vera’s personal and property guardian. [ 29 ] He concluded: [43] In

summary I find and order that: (

a) The enduring power of attorney granted by Vera Hrycyna to Anna Vera Hood on January 18, 2010 remains in full force and effect. (

b) Vera Hrycyna lacked the capacity to revoke such power of attorney or to grant powers of attorney to Peter Hrycyna in either May or September 2017 and any such grants are invalid. (

c) I grant the application of Anna Vera Hood to be appointed personal and property guardian of Vera Hrycyna. [ 30 ] The Chambers judge dealt with costs as follows: [44] Anna requested costs of her application. Peter sought costs on a solicitor/client basis. Given her success on both applications, I find Anna is entitled to an award of costs. [45] I find that:

a. It was improper of Peter to remove Vera from the home and care of Anna on May 29, 2017 in circumstances where: i. he knew that Vera had appointed Anna as her power of attorney; and ii. he was aware of the assessments of Drs. Thorpe and Vanessa van der Merwe that she had advanced dementia. b.

Given such knowledge it was improper for Peter to make the various attempts he did to obtain grants of powers of attorney from Vera and to take various of the actions he did. [46] I have concluded that Peter’s actions were not actions taken in the best interests of Vera but rather were part and parcel of his long- running disputes with Vera and Anna and him using Vera’s dementia as an opportunity to advance his interests. His actions merit a significant award of costs. [47] In the circumstances I order that Peter shall pay costs of $10,000 to Anna in respect of both proceedings. IV.

Issues [ 31 ] Peter’s appeal raised a number of issues. For the most part, the issues were not set forth in a clear and coherent way in Peter’s factum. In oral argument, counsel for Peter attempted to bring some focus to Peter’s submissions. On this basis, the issues raised by Peter in this appeal can be stated as follows: (

a) Did the Chambers judge err by failing to direct a trial of the issues of Vera’s capacity and the appropriate person to be appointed as Vera’s guardian? (

b) Did the Chambers judge err by excluding the medical evidence tendered by Peter? (

c) Did the Chambers judge err in determining Vera lacked capacity and in determining the relevant time to assess Vera’s capacity? (

d) Did the Chambers judge err in awarding solicitor–client costs? [ 32 ] For the purposes of Vera’s appeal, Anna acknowledged that the Chambers judge erred in appointing her Vera’s property guardian. Indeed, she had specifically acknowledged in her application that she was not seeking property guardianship. Likewise, it is also not disputed by Anna that the Chambers judge failed to engage in the analysis required by ss. 13–15 of The Adult Guardianship Act to specify the extent of Anna’s powers as personal guardian. [ 33 ] With respect to Vera’s appeal, I agree the Chambers judge erred as acknowledged by Anna. On that basis, there remains only one issue to be determined in Vera’s appeal: (

a) In view of the Chambers judge’s failure to specify Anna’s powers, what is the appropriate remedy? V. analysis [ 34 ] At the outset, I note that Peter’s factum is egregiously rife with evidence that was not before the Chambers judge. It is improperly in the factum and will not be considered on this appeal. To the extent that counsel for Peter in oral argument provided embellishment or an expansion of Peter’s arguments beyond those set forth in his factum, I will address those submissions. A.

Did the Chambers judge err by failing to direct a trial of the issues of Vera’s capacity and the appropriate person to be appointed as Vera’s guardian? [ 35 ] It does not appear that this issue was ever argued before the Chambers judge nor was it addressed in Peter’s written argument in Chambers. Peter’s position in the court below was to proceed on the basis of affidavit evidence and argue that Anna had failed to prove her case both as to Vera’s capacity and her suitability as a personal guardian for Vera. There were no submissions there should be a trial of any issues. This argument is new.

This Court has consistently said that it will not usually extend its inquiry on appeal to an entirely new matter argued for the first time ( Newell v Director of Community Operations , 2013 SKCA 110 , 368 DLR (4th) 731). [ 36 ] Peter’s argument in his factum on this issue is rambling and focused on Anna’s alleged bad faith in getting the geriatric assessment of Vera. There is no coherent submission as to why a trial of the issue was necessary given Peter’s position in Chambers. Counsel for Peter before us did not make any serious argument on this issue. Accordingly, for the above reasons this argument fails. B.

Did the Chambers judge err by excluding the medical evidence tendered by Peter? [ 37 ] Peter again focuses on alleged improper motives of Anna. There is no coherent argument in his factum regarding this issue. However, on review of the Chambers judge’s approach to this issue, I see no error in his exclusion of the letter opinions of Dr. Andre van der Merwe. I will explain. [ 38 ] Anna’s application to have the 2010 power of attorney declared valid was started pursuant to an originating application.

Section 13-30(1) of The Queen’s Bench Rules stipulates the evidence in an affidavit on such an application must be confined to facts that are

within the personal knowledge of the affiant. Consequently, the letter medical opinions that were attached to Peter’s affidavit were inadmissible hearsay. I agree with the Chambers judge that Peter could have obtained an affidavit from Dr. Andre van der Merwe or an expert opinion in a form admissible under the Rules but chose not to do so.

He can now not be heard to complain. [ 39 ] Although it was open to the Chambers judge to admit the medical opinions under s. 22 of The Evidence Act , he explained why he was inclined not to do so, i.e., they were informal opinions that were unsupported by any details that would justify attributing expertise on the part of the author or of any investigations that would support the opinions expressed. There was, in short, no indication at all that the doctor had done any appropriate tests or investigations to determine capacity. I see no error in the Chambers judge’s refusing to admit these letters as evidence. C.

Did the Chambers judge err in determining Vera lacked capacity and in determining the relevant time to assess Vera’s capacity? [ 40 ] This issue comprises two parts: the arguments raised by Peter in his factum and the submissions of Peter’s counsel. He argues in his factum that the assessment of Vera’s dementia by Drs. Thorpe and Vanessa van der Merwe was made five to eight months before they filed their affidavits in these proceedings. He submits there is no evidence they followed up their assessment with a treatment plan implying, without directly arguing, that this calls into question their assessment.

Peter further argues the assessment was, in any event, a time-limited snap shot of Vera’s capacity and since that time Dr. Andre van der Merwe had assessed her as having capacity. On this basis, Peter submits that at the time Vera executed the 2017 power of attorney, she had the capacity to do so. [ 41 ] Peter’s counsel argues that the Chambers judge erred in determining the time at which capacity must be assessed as well as the extent of the capacity necessary to execute a power of attorney. He also submits that the legal test for capacity differs from a clinical assessment of capacity and is transactional.

On this basis, he argues that even if Vera was diagnosed with dementia, it would still have been possible for her to instruct counsel in regard to the 2017 power of attorney. He submits the fact Vera instructed counsel on two separate occasions after her diagnosis and the fact both lawyers completed the certificate required by s. 12(1) of the PAA proved she had legal capacity. In this respect he argues that Mr.

Riou’s certificate to the 2017 power of attorney is evidence of such capacity and should have been given great weight by the Chambers judge. [ 42 ] There is no merit to any of the arguments raised by Peter or his counsel on the facts of this case. Peter’s arguments in his factum can be disposed of on the basis that the medical evidence on which he relies was inadmissible as I discussed above. Even if it was admissible, the Chambers judge could have given very little weight to it because it was unsupported by any testing or investigation.

Given the inadmissibility of the letters, the only relevant medical evidence of Vera’s capacity was that of Drs. Thorpe and Vanessa van der Merwe. That evidence indicated that she suffered from advanced dementia with the incapacities implicated by that diagnosis as set out by the doctors. Appropriately, that was the major piece of evidence that informed the Chambers judge’s analysis of Vera’s legal capacity. [ 43 ] With respect to submissions by Peter’s counsel that the Chambers judge erred respecting the time at which capacity must be assessed, I do not agree.

The Chambers judge, when he began his analysis of the parameters of capacity to make or revoke a power of attorney, initially stated that he did not accept that it should be limited to whether the grantor could understand the nature and effect of the document at the very time of signing it. However, despite this statement, he understood that the relevant time to assess capacity is proximate to the execution of the document: [21] The certificate and affidavit of Riou do not satisfy me that Vera had on September 7, 2017 capacity, as defined by The Powers of Attorney Act .

There are significant problems with the grant itself, the certificate and the affidavit. Neither address the concept of whether Vera understood the effect of terminating her previous power of attorney to Anna. … [36] I find that on September 7, 2017 Vera did not have the capacity to either grant a power of attorney to Peter nor to revoke the enduring power of attorney previously granted to Anna. As a result I find the September 7, 2017 grant of power of attorney to Peter to be invalid and unenforceable.

For the same reasons as advanced above I also find the grant of power of attorney to Peter that was executed on May 31, 2017 before lawyer Bittman to be invalid and unenforceable. The result is that the enduring power of attorney granted by Vera in favour of Anna on January 18, 2010 remains operative. [ 44 ] It is trite law that the capacity to execute a document must be assessed proximate to the time of execution of the document. For example, whether a party is incapable of understanding the nature of a contract must be determined at the time of contracting ( Boughton v Knight (1873), LR 3 PD 64 at 72 ).

The relevant time period to assess testamentary capacity is the time of giving instruction and/or the time of executing the will ( Stevens v Morrisroe , 2001 ABCA 195 at para 17 , 202 DLR (4th) 577, leave to appeal to SCC refused, [2002] 1 SCR viii; Karpinski v Zookewich Estate , 2018 SKCA 56 ).

Similarly, the relevant time to assess capacity for the purposes of the PAA is at the time of execution. [ 45 ] On the basis of the foregoing, it is evident that the Chambers judge properly instructed himself on this issue. [ 46 ] Respecting Peter’s counsel’s argument that the Chambers judge erred in determining that capacity required under the PAA is more expansive than understanding the nature and effect of the document, I turn first to the relevant sections of the PAA : 2(1) In this Act: “capacity” means, other than in

section 4, clause 19(1)(

b) and

section 21, the ability: (

a) to understand information relevant to making decisions with respect to property and financial affairs or personal affairs, as the case may be; and (

b) to appreciate the reasonably foreseeable consequences of making or not making a decision referred to in clause (a);

… 4 Any adult who has the capacity to understand the nature and effect of an enduring power of attorney may grant an enduring power of attorney. … 19(1) The authority of an attorney under an enduring power of attorney is terminated: (

a) on the date specified in the enduring power of attorney; (

b) on the written revocation of the enduring power of attorney by the grantor while the grantor has the capacity to understand: (

i) the nature and effect of an enduring power of attorney; and (ii) the effect of terminating an enduring power of attorney; [ 47 ] The PAA ’s provisions respecting capacity set out above, taken as a whole, focus on (

a) an understanding by the grantor of his or her property and financial affairs, (

b) an understanding of information relevant to making decisions about that property and financial affairs, and (

c) an appreciation of the reasonably foreseeable consequences of making or not making a decision. In the case of a revocation of a prior power of attorney, in addition to the foregoing aspects of capacity, the PAA additionally focuses on the ability of the grantor to understand the nature and effect of an enduring power of attorney and the effect of terminating an enduring power of attorney. [ 48 ] The Chambers judge was clearly alive to the broader concept of capacity as it is defined in the PAA .

He did not err in determining that the definition of capacity based on the provisions of the PAA goes well beyond a mere basic understanding of the nature and effect of the document at the time of signing. He made no error in this respect. [ 49 ] With respect to evidence of capacity, Peter essentially argues that on September 7, 2017, despite her advanced dementia, Vera was experiencing a lucid episode and had the capacity required by the PAA . He submits Mr. Riou’s certificate as a whole should carry great weight in that regard because Mr. Riou is a lawyer. He submits Mr.

Riou’s affidavit should be given similar weight. The Chambers judge, however, made no error in concluding the evidence tending to show capacity on September 7, 2017, did not satisfy him. I will explain. [ 50 ] As an initial point, the Chambers judge was correct that capacity must be assessed on all the evidence and not just on the certificate of the lawyer who witnessed the execution of the power of attorney. [ 51 ] Second, assuming Mr. Riou’s certificate is evidence per se of capacity, the Chambers judge’s assignment of little weight to the certificate must be treated with a high degree of deference.

It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence absent palpable and overriding error ( Nelson (City) v Mowatt , 2017 SCC 8 at para 38 , [2017] 1 SCR 138 ). [ 52 ] The Chambers judge correctly observed that neither the content of Mr. Riou’s certificate to the 2017 power of attorney nor his affidavit filed in the proceedings address the issue of whether Vera understood the effect of terminating her previous power of attorney, which is a requirement of s. 19(1) (

b) of the PAA . Although in his affidavit Mr. Riou referenced discussions with Vera regarding various matters related to Anna’s past treatment of her and past issues related to Vera’s property, nowhere in his affidavit did he reference any discussions about the 2017 power of attorney. Given that Mr.

Riou’s affidavit was filed in support of a finding that Vera had the requisite capacity to execute that document, it is surprising that there was no elaboration on how he determined she understood its nature and effect as set out in his certificate or anything to indicate that she understood the effect of terminating the 2010 power of attorney. [ 53 ] The Chambers judge also implicitly found the reliability of statements about Vera’s capacity in the certificate and affidavit of Mr. Riou suspect as the content and wording of the affidavit suggested that Mr. Riou had not been told of Vera’s diagnosis of dementia.

Although Peter submits that Mr. Riou was aware of the assessment of Vera’s dementia, in that respect he proffers facts not before the Chambers judge. Accordingly, these cannot form the basis of any analysis of his arguments under this issue. [ 54 ] Last, the Chambers judge found that Mr.

Riou’s statement in his affidavit that Vera was competent to manage her own affairs and provide him instructions to carry out court actions was narrow and specific and did not address the elements of capacity required by the PAA . [ 55 ] Having found the evidence of capacity tendered by Peter unconvincing, he was entitled to rely on the evidence of the two geriatric specialists: [35] I accept the opinions of Drs.

Thorpe and Vanessa van der Merwe that as of April 4, 2017 Vera had advanced dementia, that as a result she was incapable of making informed decisions about herself or her finances except very simple ones and that her advanced dementia was likely to deteriorate over time worsening her decision-making abilities. [ 56 ] Assuming, without deciding, that the issue of capacity to execute a power of attorney is one of mixed fact and law where, as here, the issue on appeal involves the Chambers judge’s

interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error ( Housen v Nikolaisen , 2002 SCC 33 at para 36 , [2002] 2 SCR 235). I cannot say that the Chambers judge made a palpable and overriding error in determining that the evidence as a whole did not satisfy him that Vera had capacity as defined by the PAA on September 7, 2017, to make a new power of attorney or to revoke the 2010 power of attorney. D.

Did the Chambers judge err in awarding solicitor–client costs? [ 57 ] Peter’s factum is devoid of any argument respecting costs other than that he is asking for this Court to reconsider the matter. Counsel for Peter in oral argument cited Siemens v Bawolin , 2002 SKCA 84 , [2002] 11 WWR 246 [ Siemens ], for the Court’s

consideration arguing solicitor–client costs are only appropriate when there has been some scandalous, outrageous or reprehensibleconduct of a party in the litigation itself. He submits that the Chambers judge wrongly, and contrary to Siemens, used Peter’s pre-litigationconduct in relation to Anna and Vera rather than his conduct in the litigation to justify his award of solicitor–client costs. [58] As an initial observation, I am not certain that the Chambers judge actually awarded solicitor–client costs.

Although Annarequested such costs, it appears the Chambers judge merely said Anna was entitled to costs as a successful applicant. After reviewingsome of Peter’s behaviour, he proceeded to fix costs at $10,000. However, the matter was argued before us by all counsel on the premisethat the costs award was on a solicitor–client basis. Accordingly, I will address it on that basis. [59] I turn first to the governing principles. It is well established and accepted by the parties that an award of solicitor–client costs isdiscretionary and therefore subject to a deferential standard of review.

Such an award should not be taken lightly by this Court unless theChambers judge considered irrelevant factors, failed to consider relevant factors or reached an unreasonable conclusion (Siemens at para98). [60] The basis for an award of solicitor–client costs was set out in Siemens: [118] These are the principles, relevant to this appeal, which I take from my review of the above authorities: 1. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously asscandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censurebehaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party completeindemnification for costs reasonably incurred. [61] The Siemens’ principles generally continue to govern the analysis of the appropriateness of solicitor–client costs awards(Harvard Developments Inc. v Park Manor Condominium Corporation, 2018 SKCA 81 at para 82, 94 RPR (5th) 177; Olson v SkarsgardEstate, 2018 SKCA 64 at para 39, 426 DLR (4th) 151; Kirk v Kirk, 2017 SKCA 97 at para 40, [2018] 1 WWR 123; Phillips LegalProfessional Corporation v Vo, 2017 SKCA 58 at para 151, [2017] 12 WWR 779). [62] The fourth principle in Siemens makes clear that Peter overstates things when he says that solicitor–client costs are onlyappropriate when there has been some scandalous, outrageous or reprehensible conduct of a party in the litigation itself.

Indeed, inSiemens the trial judge had awarded solicitor–client costs on two primary bases, namely, to provide complete indemnification for costsreasonably incurred for a breach of fiduciary duty and to punish the litigant for providing “convoluted, confusing, inconsistent anddishonest evidence” prior to and during the trial (at para 120). Justice Jackson stated that “[b]oth of these bases are defensible in law (atpara 121). [63] The four factors in Siemens noted above were reiterated by Smith J.A. in Lynch v Hashemian, 2006 SKCA 126, [2007] 2 WWR52 [Lynch].

In Lynch, the Court confirmed that while generally solicitor–client costs are reserved to situations where it is necessary tocensure conduct related to the litigation alone, jurisdiction to award such costs exists in exceptional cases: [32] … Clearly, point 3 in the principles enunciated reflects a general conclusion in favour of the latter position.

It would appear thatthe exception set out in point 4, then, relates to those exceptional cases where the principle of indemnification for the wrongdoing (and notmerely disapproval, however strong, of the wrongdoing) justifies such an order. [33] In Siemens, the trial judge had awarded solicitor-client costs on two bases: to provide complete indemnification for costsreasonably incurred by the plaintiff as a result of a breach of fiduciary duty (the plaintiff had, for example, incurred substantial costs forforensic accounting held to be necessary to establish what had become of funds that had been entrusted by the plaintiff to the defendant),and to punish the defendant for convoluted, confusing, inconsistent and dishonest evidence prior to and during the trial.

Both reasons wereupheld, the first on the basis that there was precedent for completely indemnifying the injured party where a breach of fiduciary dutyoccurred, “particularly where, as was the case here, no order for punitive damages has been made.” (at para. 121) Presumably, the Courtfelt that the conduct in that case therefore fell within the “exceptional cases” referred to in point 4.

This comment implicitly recognizedthe possibility of an award of solicitor-client costs as an alternative to an award of punitive damages. (Emphasis added) [64] In Canada (Attorney General) v Saskatchewan Water Corporation (1991), (SK CA), [1992] 4 WWR 712(Sask CA) at 742 [Sask Water Corp.], a case which pre-dated Siemens, this Court awarded solicitor–client costs to parties who hadsuccessfully challenged the expropriation of their land on the basis that in the circumstances the principles of equity required such relief.There was no finding of reprehensible, malicious or high-handed conduct. [65] In Goodtrack v Waverley No. 44 (Rural Municipality), 2013 SKCA 137, 371 DLR (4th) 357, this Court, referring to Sask WaterCorp., made clear that an award of solicitor–client costs in exceptional cases under the fourth category of Siemens need not be restricted tocircumstances where the party’s actions in the litigation were “scandalous, outrageous or reprehensible”: [30] Thus, this Court in Lynch separated the conduct of the parties from the need for indemnification.

In other words, the fourthprinciple in Siemens is not subject to the second principle. [31] Following that reasoning, we conclude that Siemens v. Bawolin provides for solicitor-client costs in exceptional circumstancesincluding but not restricted to situations where the conduct of the party against whom they are awarded is scandalous, outrageous orreprehensible. Viewing Siemens v. Bawolin in this manner allows a trial judge to exercise judicial discretion in awarding costs, which the

Queen’s Bench Rules and the relevant legislation contemplate. [32] The Sask Water case is directly on point and is relevant for the proposition that solicitor-client costs are available if deemed appropriate where a landowner successfully resists expropriation, and where the conduct of the party against whom costs are sought is not necessarily subject to censure.

In fact, the Chambers judge recognized the precedential value of Sask Water in granting leave to appeal to the appellants. [33] Following this reasoning, the Chambers judge erred in interpreting the Siemens case when she stated that “an award of solicitor- client costs is limited to rare and exceptional circumstances where the conduct of the party against whom costs are sought is scandalous, outrageous or reprehensible”.

By limiting solicitor-client costs to circumstances where there is both exceptional circumstances and scandalous, outrageous or reprehensible conduct, the Chambers judge incorrectly fettered her discretion.

This amounts to reversible error. (Emphasis in original) [ 66 ] The admonition that solicitor–client costs are for rare and exceptional cases was again underlined by Richards C.J.S. in Hope v Pylypow , 2015 SKCA 26 , 384 DLR (4th) 255 [ Hope ]: [48] Solicitor-client costs must not be awarded casually and, in my view, never without reasons as to why they are being awarded and an identification of the conduct which is said to warrant them. … [ 67 ] Based on the foregoing, pre-litigation conduct cannot generally be the basis upon which solicitor–client costs are awarded.

However, the foregoing cases are also consistent with the use of a party’s pre-litigation conduct to ground an award of solicitor–client costs under the fourth branch of the Siemens factors, i.e., in exceptional cases where it is appropriate to provide the other party complete indemnification for costs reasonably incurred. As noted in Hope , such costs must not be awarded casually and never without reasons as to why they are being awarded and an identification of the conduct which is said to warrant them.

In short, these kinds of awards are also case specific. [ 68 ] I pause to note that courts in other jurisdictions have held that pre-litigation conduct cannot properly form the basis of an award for solicitor–client costs because such conduct can be addressed by an award of either damages or punitive damages in the litigation. The possibility of double compensation seems to be a significant factor in arriving at such a conclusion. See, for example, Smithies Holdings Inc. v RCV Holdings Ltd. , 2017 BCCA 177 , 410 DLR (4th) 82.

However, it is not all cases where damages or punitive damages can be sought. [ 69 ] In this case, the issues are not monetary. No damages or punitive damages are sought nor does the proceeding lend itself to such claims. The issues concern the protection of a vulnerable person – Vera. Anna has been compelled to litigate for the protection of Vera and expend financial resources for which she will not be fully compensated on a party–party basis.

I now turn to the reasons of the Chambers judge for making the costs award. [ 70 ] The Chambers judge justified his decision regarding costs as follows: [45] I find that: a. It was improper of Peter to remove Vera from the home and care of Anna on May 29, 2017 in circumstances where: i. he knew that Vera had appointed Anna as her power of attorney; and ii. he was aware of the assessments of Drs. Thorpe and Vanessa van der Merwe that she had advanced dementia. b.

Given such knowledge it was improper for Peter to make the various attempts he did to obtain grants of powers of attorney from Vera and to take various of the actions he did. [46] I have concluded that Peter’s actions were not actions taken in the best interests of Vera but rather were part and parcel of his long- running disputes with Vera and Anna and him using Vera’s dementia as an opportunity to advance his interests.

His actions merit a significant award of costs. [ 71 ] These conclusions were expressed after a lengthy review of the facts, including not only the “history of conflict and litigation between the parties” (at para 37), but also the relationships between Peter and Vera and Anna and Vera. [ 72 ] Applying the governing principles set forth above, I conclude in the circumstances of this case the Chambers judge appropriately exercised his discretion in awarding solicitor–client costs by taking into account Peter’s conduct leading to the litigation as part of the factual matrix justifying an award of solicitor–client costs. [ 73 ] I begin by noting that all of Peter’s actions took place against the backdrop of Vera’s personal vulnerability in her twilight years, and what can only be described as Peter’s attempt to exploit that vulnerability.

In January 2017, very shortly after re-establishing contact with Vera, it appears Peter attempted to invalidate Anna’s authority under the 2010 power of attorney by having Vera sign two new forms of power of attorney. His arrival at Vera’s financial institution shortly after one was executed can be seen as an attempt to take control of Vera’s finances and property. He did not succeed. [ 74 ] Undeterred, he thereafter, at the end of May 2017, took and kept Vera from the home she had established with Anna. This was at a time when he had been advised that Vera had advanced dementia.

Two days after he kept Vera from Anna’s home, he arranged to have Vera sign another power of attorney at a lawyer’s office and again appeared at Vera’s financial institution and tried to assert his authority armed with that document. He was again unsuccessful. In June, he sought out a medical opinion that contradicted the geriatric assessment of dementia. Finally, in September he attended another lawyer’s office to have the 2017 power of attorney executed by Vera. In all of this, Peter clearly sought to take advantage of Vera’s vulnerability for his own interests.

[75] In view of Peter’s attempt to strip Anna of her authority under the 2010 power of attorney, she has been put to the expense ofapplying for a declaration that it is still valid. Additionally, because Peter has kept Vera from Anna, she was required to apply for personalguardianship to ensure Vera’s personal interests were protected. Peter’s conduct, not only as outlined by the Chambers judge but also asoutlined above, is egregious.

Accordingly, the Chambers judge’s decision to award solicitor–client costs can be sustained on the basis thisis an exceptional case where Anna was entitled to complete indemnification for costs reasonably incurred and in making such an award hewas entitled, in the circumstances of this case, to consider Peter’s pre-litigation conduct and the circumstances giving rise to the litigation.I see no error made by the Chambers judge in this respect based on the jurisprudence previously set out. [76] I turn now to the issue in Vera’s appeal. A.

In view of the Chambers judge’s failure to specify Anna’s powers, what is theappropriate remedy? [77] The Chambers judge’s conclusion regarding issues under The Adult Guardianship Act is contained in the following paragraph: [39] I have concluded that no hearing is necessary. Based upon the evidence provided by Drs. Thorpe and Vanessa van der Merwe intheir affidavits regarding their assessments of Vera and the lack of any credible evidence to the contrary I am satisfied that Vera needs apersonal and property guardian appointed.

Quite apart from the fact that Anna holds a valid and enduring power of attorney from Vera, Iam satisfied on all of the evidence that Anna is the appropriate and best person to appoint as Vera’s personal and property guardian. [78] It is common ground the Chambers judge did no analysis under ss. 13 and 14 nor did he enumerate the powers of Anna asrequired under s. 15. It is common ground that he erred in that respect. [79] Vera argues, based on her amended notice of appeal, that the failure of the Chambers judge to enumerate Anna’s powers and dothe analysis mandated by s. 14(2)(

b) of The Adult Guardianship Act regarding alternative and less intrusive forms of support for herdecision making requires at least a new hearing or trial. She argues that it is best for the court below to conduct the inquiry required bys. 13, take into consideration the factors in s. 14 and then make the enumeration of powers required by s. 15. [80] Anna submits that there is no need to remit the matter to the court below for a rehearing because Vera is not challenging herunsuitability as guardian but merely arguing the Chambers judge failed to fully apply the provisions of the statute as described above.

Shesubmits that the Chambers judge’s failure to enumerate her powers does not necessitate setting aside her appointment. She further submitsthere is no need to remit the matter back to the Court of Queen’s Bench because this Court can, in the circumstances, make the order theChambers judge should have made. Anna submits that this Court has before it all the necessary evidence and information to make theappropriate factual findings and to specify the extent of her authority.

She argues that Vera’s affairs are in limbo as long as the litigationcontinues regarding the extent of the personal guardianship required. [81] As a preliminary matter, I am not prepared to entertain Vera’s submissions to the extent they deal with the suitability of Annaas guardian. Her amended notice of appeal does not challenge Anna’s unsuitability as personal guardian but focuses solely on theChambers judge’s failure to enumerate powers and on his failure to determine the issue under s. 14(2)(

b) of The Adult Guardianship Act.Vera’s arguments that a new hearing is needed on all the issues raised by ss. 13–15, including suitability of Anna, are an inappropriateattempt to widen the scope of the appeal. Vera’s submissions in this respect are also a veiled attempt to argue, as Peter did, that thereshould have been a trial of all the issues.

Accordingly, any analysis of whether the matter should be remitted to the Court of Queen’sBench will be restricted to whether it is necessary to do so to enumerate the powers of Anna and to comply with s. 14(2)(b). [82] Having concluded the Chambers judge erred respecting the necessary analysis under The Adult Guardianship Act, this Courtclearly has jurisdiction to make any decision that could have been made by the Chambers judge with respect thereto (The Court of AppealAct, 2000, SS 2000, c C-42.1, s 12(1)(d)). [83] The applicable principles as to when this Court should exercise its jurisdiction under s. 12(1)(

d) rather than to remit the matterfor further hearing can be gleaned from a number of cases. This Court can undertake the exercise of making the necessary factual findingsif it is satisfied it had all the necessary evidence (Boardwalk General Partnership v Olson, 2016 SKCA 135 at para 23, 410 DLR (4th)357). Put another way, an appeal court can make any order the court below should have made, provided the record permits it to do so(McKinnon v McKinnon, 2018 ONCA 596 at para 31).

Where a matter proceeds on the basis of affidavit evidence, this Court is often in asgood a position to make findings of fact as the Chambers judge, even where no findings of fact were made (O.K. Economy Stores vRWDSU, Local 454 (1994), (SK CA), 118 DLR (4th) 345 (QL) (Sask CA) at para 5). [84] An appeal court may also make an order that the court below should have made in order to prevent further prejudice to a party(Busse v Chertkow, 1999 BCCA 313 at para 32, [1999] 10 WWR 690).

In Barton v Potash Corporation of Saskatchewan Inc., 2013SKCA 141, 369 DLR (4th) 275, this Court used its jurisdiction to make the decision that the court below could have made withoutremitting the matter to that court in the case where the age of the litigant was a factor and there had been delay. [85] Given the foregoing, I conclude this is a proper case for this Court to exercise its jurisdiction under s. 12(1)(

d) of The Court ofAppeal Act. Vera’s age is a factor. She is 85 years old. She has dementia, which will not improve. This appeal has delayed the resolutionof who will be responsible to make personal decisions for Vera and who will handle her finances. This appeal has resolved the issue of thevalidity of the 2010 power of attorney and therefore Anna’s authority to handle Vera’s financial affairs thereunder. Pending resolution ofthe issue of guardianship, Vera remains in limbo with respect to her residence. It is therefore important to resolve that issue as soon aspossible.

I conclude Vera will suffer prejudice if the matter is remitted back to the Court of Queen’s Bench. [86] Given the medical evidence attesting to the circumstances and incapacity of Vera and the affidavit material filed by Annaregarding her suitability as a guardian, an extensive analysis under ss. 13 and 14 of The Adult Guardianship Act is unnecessary. Likewise,the enumeration of the power and authority of a personal guardian, given the evidence, is straightforward and is driven by the extent ofVera’s incapacity.

[ 87 ] There is ample evidence on the record respecting the incapacity of Vera. That evidence has been adduced by affidavits. I note the Chambers judge has accepted the opinions of Drs. Thorpe and Vanessa van der Merwe as to Vera’s incapacity. He has made findings of fact that Vera is incapacitated to the extent that she cannot make informed decisions about herself or her finances except very simple ones and that as time goes on her incapacity will worsen.

In light of the foregoing, this Court is in as good a position as the Chambers judge to assess and weigh the evidence with respect to the extent of Vera’s need for a personal guardian, make any necessary further findings of fact and to make the appropriate order. I now turn to this task. [ 88 ] Consequent on a finding that a person is in need of a personal guardian, the extent of the authority that can be given to the guardian is set out in s. 15 of The Adult Guardianship Act : 15 Where the court makes an order pursuant to

section 14, the court shall specify which of the following matters are to be subject to the authority of the personal co-decision-maker or personal guardian: (

a) decisions respecting where, with whom and under what conditions the adult is to live, whether permanently or temporarily; (

b) decisions respecting with whom the adult is to associate and who may have access to the adult; (

c) decisions respecting whether the adult should engage in social activities and, if so, the nature and extent of those activities and related matters; (

d) decisions respecting whether the adult should work and, if so, the nature or type of work, for whom he or she is to work and related matters; (

e) decisions respecting whether the adult should participate in any educational, vocational or other training and, if so, the nature and extent of that training and related matters; (

f) decisions respecting whether the adult should apply for any licence, permit, approval or other consent or authorization required by law that does not relate to the estate of the adult; (

g) subject to the powers of any litigation guardian, decisions respecting the carrying on of any legal proceeding that does not relate to the estate of the adult; (

h) subject to The Health Care Directives and Substitute Health Care Decision Makers Act, 2015 , decisions respecting the adult’s health care, including decisions respecting admission to a health care facility or respecting treatment of the adult; (

i) subject to the regulations, decisions respecting the restraint of the adult’s movement or behaviour by the use of a device, medication or physical force, where necessary to protect the health or safety of the adult or others; (

j) decisions respecting the adult’s diet, dress, grooming, hygiene and other matters of daily living; (

k) decisions respecting any other matters specified by the court and required to be made by the personal co - decision - maker or personal guardian in the best interests of the adult. [ 89 ] Based on the medical evidence of the person’s capabilities and the suitability of the proposed guardian, any or all of the subject areas set forth in s. 15 may be incorporated into an order pursuant to s. 14(1)(a). [ 90 ] The affidavit of Dr. Thorpe dated September 11, 2017, clearly sets out for what purposes Vera requires a personal guardian: 8.

That in my opinion the adult’s decision-making ability is as follows: VERA HRYCYNA has significant cognitive impairment which has impaired her ability to understand and manage her personal, health and financial issues. She does not have the necessary capacity to make her own personal, health and financial decisions (other than very simple ones). She is clearly no longer able to make decisions about legal matters such as power of attorney or her will. … 12.

That in my opinion the adult requires a personal guardian: ☒ to make decisions respecting the adult’s living arrangements ☒ to make decisions respecting access to the adult ☒ to make decisions respecting the adult’s social activities ☒ to make decisions respecting the adult’s employment ☒ to make decisions respecting the adult’s educational, vocational or other training ☒ to make decisions respecting whether the adult should apply for any licence, permit, approval or other consent or authorization required by law that does not relate to the estate of the adult ☒ to make decisions respecting legal proceedings that do not relate to the estate of the adult ☒ to make decisions respecting the adult’s health care, including decisions respecting admission to a health care facility or respecting treatment of the adult ☒ to make decisions respecting the restraint of the adult

☒ to make normal day-to-day decisions respecting the adult The affidavit of Dr. Vanessa van der Merwe is virtually identical in this respect. [ 91 ] The application of Anna to become guardian requested authority to make the following decisions: 2. Personal Decision-Making Authority: (

a) I seek the authority to make the following decisions for the adult, VERA HRYCYNA: Note: The Adult Guardianship and Co-decision-making Act provides that the court shall not give the personal co-decision-maker or personal guardian the authority to act with respect to all the matters mentioned below if an order providing particular powers would be sufficient to meet the needs of the adult. ✔ decisions respecting the adult’s living arrangements ✔ decisions respecting access to the adult ✔ decisions respecting the adult’s social activities ✔ decisions respecting whether the adult should apply for any licence, permit, approval or other consent or authorization required by law that does not relate to the estate of the adult ✔ decisions respecting legal proceedings that do not relate to the estate of the adult ✔ decisions respecting the adult’s health care, including decisions respecting admission to a health care facility or respecting treatment of the adult ✔ decisions respecting the restraint of the adult ✔ normal day-to-day decisions respecting the adult (

b) I request that the following limitations, conditions or requirements apply to the authority requested: NONE [ 92 ] Given the medical evidence of Vera’s condition and her prognosis, the extent of the authority sought by Anna in her application is justified. Vera has advanced dementia. She is likely to deteriorate over time, worsening her decision-making abilities. In light of this evidence, I am not satisfied there is any alternative or less intrusive means to assist Vera in making personal decisions.

I find personal guardianship to the extent particularized in Anna’s application would best be able to assist Vera in this respect. [ 93 ] Vera’s condition is unlikely to improve. It is therefore unnecessary to order a review pursuant to s. 22(1)(

b) of The Adult Guardianship Act . [ 94 ] Accordingly, there will be an order that Anna is appointed Vera’s personal guardian pursuant to The Adult Guardianship Act . The extent of Anna’s authority as personal guardian shall be that set forth in her application. There are no limitations on that authority. VI. Conclusion [ 95 ] The appeal of Peter is dismissed. The appeal of Vera is allowed to the extent set forth above. The order for property guardianship is set aside. The order for personal guardianship will be in the terms as set forth above. [ 96 ] There will be no order for costs on Vera’s appeal.

With respect to Peter’s appeal, there will be an order that Peter pay Anna costs fixed in the amount of $7,000. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Leurer J.A.” Leurer J.A.