Dr. Alina Kaminska

This decision concerns the entitlement to the former home of Yvette Poirier and certain funds allegedly misappropriated from her bank account by her late son, Paul Poirier.

The applicant, Lyse Scharfe (Yvette’s daughter and attorney for property and personal care), sought to set aside a 2016 conveyance of the property to Paul, arguing Yvette lacked capacity and was subject to undue influence.

The court found that Yvette Poirier lacked capacity at the time of the transfer and that the presumption of undue influence was not rebutted.

The 2016 conveyance was set aside, and the property was to be re-vested in the joint names of Yvette Poirier and Paul’s estate.

The court also addressed the improper registration of a mortgage on the property by respondent’s counsel.

The applicant sought to invalidate powers of attorney (POAs) executed by Janina Jackiewicz in 2021, which appointed the respondent, Yolanta Zawadzinski, as attorney.

The applicant also sought to confirm the validity of earlier 2019 POAs, which appointed the applicant.

The court found suspicious circumstances surrounding the 2021 POAs, including Ms. Jackiewicz's diminished capacity and the respondent's undue influence, supported by a capacity assessment report.

The court declared the 2021 POAs invalid and the 2019 POAs valid and operative.

The respondent was ordered to provide an accounting of Ms. Jackiewicz's property managed since October 2021.

The defendants brought a motion under Rule 49.09 of the Rules of Civil Procedure to enforce a settlement agreement reached in 2005 but never implemented.

The responding party, acting through a litigation guardian, argued the settlement should not be enforced because the party lacked mental capacity at the time and the agreement was unfair.

The court found insufficient evidence that the party was under a disability in 2005 and held that Rule 7.08 did not apply because no litigation guardian existed at the time of settlement.

The court also found no persuasive evidence that the settlement was substantively unfair, noting the involvement of legal and accounting advice during negotiations.

The settlement was enforced and an order issued implementing its terms.

The accused applied for a declaration that he was unfit to stand trial on three counts of dangerous driving causing death following a high-speed motor vehicle accident that resulted in the deaths of three passengers and caused him a traumatic brain injury.

The defence relied on expert evidence asserting that the accused suffered from frontal lobe dementia and severe cognitive impairment rendering him unable to participate meaningfully in the trial process.

Crown experts concluded that the accused retained sufficient cognitive capacity and that test results suggested malingering.

Applying the “limited cognitive capacity” test from R. v. Taylor, as affirmed in R. v. Whittle and R. v. Morrissey, the court held that the defence failed to prove on a balance of probabilities that the accused was unfit.

The presumption of fitness therefore remained and the application was dismissed.

The moving party sought leave to appeal an interlocutory order compelling her to undergo a further psychiatric assessment under s. 79(1) of the Substitute Decisions Act.

She had previously been found incapable and was under guardianship, but brought an application to terminate the guardianship supported by new assessments indicating she was now capable.

The responding party successfully moved for a further assessment, which the motion judge granted without reasons.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order as it may not have appropriately balanced the individual's autonomy against the state's duty to protect the vulnerable, and noting the issue was of sufficient importance to warrant appellate review.