Court of Appeal for Ontario

Date: September 5, 2019 Docket: C66394 Judges: Lauwers, van Rensburg and Roberts JJ.A.

Between

Sheldon Lewis, Marilyn Lewis, Donna Buckley and Marlene Lewis Applicants (Appellants)

and

Donald Lewis, Douglas Lewis, Emerson Walker Lewis, and Estate of Marie Theresa Lewis Respondents (Respondents)

Counsel

Patrick J. Kraemer and Brandon Carter, for the appellants

Carol Craig, for the respondents

Heard: August 27, 2019

On appeal from the order of Justice Hugh K. O'Connell of the Superior Court of Justice, dated December 5, 2019.

Reasons for Decision

[1] The appellants appeal from the dismissal of their application in these contested estate proceedings between the children of the late Marie Lewis. They raise several issues on appeal. We see no merit in any of them. Essentially, the appellants are taking issue with the application judge's assessment of the evidence and exercise of his case management discretion, but, in our view, have raised no error that would permit appellate intervention.

[2] The determinative issue before the application judge was whether Mrs. Lewis had the requisite capacity to execute new powers of attorney for care and property on April 16, 2013, in which she appointed the respondents as her attorneys for personal care and property. The appellants sought to invalidate the 2013 powers of attorney and bring back into effect the 1995 powers of attorney that named the appellant, Donna Buckley, and the respondent, Douglas Lewis, as her attorneys for personal care and property.

[3] As the application judge correctly stated, since capacity is presumed, the appellants had the onus to rebut that presumption with clear evidence on a balance of probabilities: Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 2(1); Knox v. Burton (2004), 6 E.T.R. (3d) 285, at para. 26 (Ont. S.C.). They failed to do so.

[4] The application judge considered but rejected the appellants' proffered evidence on the capacity issue, including the letter from Dr. Denis Doren, who had been Mrs. Lewis' family physician for many years. He was entitled to do so. Dr. Doren did not submit a proper capacity assessment of Mrs. Lewis for 2013 or any other period of time. His statement that Mrs. Lewis had lacked capacity since 1999 was inconsistent with the inference that Mrs. Lewis had capacity when, in 2010, she entered into a real estate transaction involving the appellant, Sheldon Lewis. The application judge appropriately gave Dr. Doren's letter "basically no weight". Dr. Doren's affidavit, which the application judge refused to accept pursuant to r. 39.02(2) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, after the conclusion of the cross-examinations, added little to Dr. Doren's letter and would not have changed the outcome.

[5] The application judge was similarly unpersuaded by the evidence from the appellants, Donna Buckley and Sheldon Lewis, which was relevant to but not determinative of the issue of their mother's capacity. Nor was the application judge bound to conclude from Emerson Lewis' description of his wife's mental illnesses and conditions elicited during his cross-examination that Mrs. Lewis lacked capacity to execute the 2013 powers of attorney.

[6] As was properly recognized by the application judge, the fact that Mrs. Lewis had various chronic medical conditions throughout her life does not mean that she lacked capacity: see Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 77. It was open to the application judge to prefer the evidence of the respondents who described their mother as a loving and devoted mother and spouse who capably raised six children and ran a busy household, and whose cognitive abilities did not start to severely decline until around 2015. We note that this description of Mrs. Lewis was reinforced by Helen Storrey's affidavit which, if admitted, would, in our view, have supported the respondents' position in these proceedings.

[7] The application judge also took "solace" from the fact that Mrs. Lewis executed the 2013 powers of attorney before her solicitor of many years, Lorne Plater, who had prepared them, as well as the 1995 powers of attorney. Mr. Plater did not provide any evidence on the application, although his file notes were before the court. In our view, without evidence to the contrary, it was reasonable to infer that Mr. Plater would have properly carried out his duties and would not have permitted Mrs. Lewis to execute the powers of attorney if he had any concern about her capacity or suspected undue influence by her husband or sons: see Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), at para. 48.

[8] In the same way, it was reasonable for the application judge to refer to the statements of Jason Ward, section 3 counsel appointed by the Public Guardian and Trustee to represent Mrs. Lewis' interests on the guardianship application, concerning Mrs. Lewis' expressed wishes.

[9] The application judge was entitled to reach this assessment of the evidence concerning Mrs. Lewis' capacity.

[10] It was equally open to the application judge to reject the appellants' submitted evidence as insufficient to establish suspicious circumstances and undue influence. Again, it was the appellants' burden to establish these allegations on a balance of probabilities: see Vout v. Hay, [1995] 2 S.C.R. 876 at paras. 27-28; Nguyen v. Nguyen, 2010 ONSC 6836, 71 E.T.R. (3d) 55, at paras. 89-93; Knox at para. 28. They failed to do so.

[11] With respect to Mrs. Lewis' death certificate, we do not admit it as fresh evidence: it would not have changed the outcome if it had been before the application judge. It could not serve as a proper assessment of Mrs. Lewis' capacity as at 2013. Dr. Christine Stephenson, who prepared the certificate, did not know Mrs. Lewis until she came to live at the long-term care facility in 2016, nor did she provide any explanation for her statement that Mrs. Lewis had advanced dementia for over ten years. Again, the fact that Mrs. Lewis may have had advanced dementia and lacked the capacity to manage her personal care or property for several years does not automatically equate with a lack of capacity to execute powers of attorney: Substitute Decisions Act, 1992, ss. 9(1), 47(2).

[12] The appellants also submit that the application judge unreasonably and unfairly curtailed their time to prepare and present their application. They raise, for the first time in their factum, an allegation of bias against the application judge. We note that the appellants made no such complaint in the course of the proceedings below. We see absolutely no basis in the record for these submissions and reject them.

[13] Finally, the appellants complain that the application judge's reasons were inadequate. We do not accept this submission. The application judge's reasons fulfill the substantive purpose of reasons: they adequately explain his consideration of the relevant and determinative issues; provide his rationale for reaching his conclusions and tell the appellants why they lost; and they provide for informed consideration of the grounds of appeal: F.H. v. McDougall, 2008 SCC 53, [2008] SCC 53, at paras. 98-99.

Disposition

[14] Accordingly, this appeal is dismissed.

Costs

[15] The respondents seek their costs on a substantial indemnity scale. They argue that if not moot, this appeal was without merit.

[16] We do not agree. The appellants were entitled as of right to appeal to this court. Their appeal was not moot; at the very least, the questions of undue influence and suspicious circumstances, if resolved in the appellants' favour, could possibly have affected their outstanding appeal of the application judge's dismissal of their request for an accounting, as well as their decision whether to contest their parents' wills.

[17] It is well established that the extraordinary award of substantial indemnity costs is reserved for exceptional cases, for example, involving egregious misconduct by a party or its counsel, or where the proceedings are clearly vexatious, frivolous, or an abuse of process: Young v. Young, [1993] 4 S.C.R. 3 at p. 134. While their appeal was not particularly strong, we cannot say that it meets the criteria to justify costs beyond the usual partial indemnity scale.

[18] In our view, the respondents are entitled to their partial indemnity costs of the appeal, including the unsuccessful motion to adduce fresh evidence, from the appellants in the amount of $15,000, inclusive of disbursements and applicable taxes. This amount approximates the appellants' bill of costs and should therefore have been in their reasonable contemplation if they were unsuccessful on this appeal.

"P. Lauwers J.A."

"K. van Rensburg J.A."

"L.B. Roberts J.A."