Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230303 DOCKET: C69505

Roberts, Nordheimer and Favreau JJ.A.

BETWEEN

Christina Rudin-Brown and Jeanne Brown Applicants (Respondents)

and

Carolyn Emily Brown, Gordon Russell Brown and Public Guardian Trustee Applicants (Appellant / Respondent)

AND BETWEEN

Gordon Russell Brown Applicant (Appellant)

Carolyn Emily Brown, Christina Rudin-Brown and Jeanne Brown and Public Guardian Trustee Respondents (Respondents)

Counsel: Gordon Russell Brown, acting in person J. Alden Christian, for the respondents

Heard: February 27, 2023

On appeal from the judgment of Justice Heather J. Williams of the Superior Court of Justice, dated May 5, 2021, with reasons reported at 2021 ONSC 3366.

Reasons for Decision

[1] This appeal arises out of the dispute among family members concerning the care and guardianship of Ms. Carolyn Brown. Ms. Brown was born in 1930. She earned a PhD in Chemistry and enjoyed a long and successful career before her retirement. At the time of the hearing below, she lived with and financially supported the appellant who began to reside with her in the early 2000s. She has also provided financial gifts to her daughters and her grandchildren.

[2] In 2009, Ms. Brown had updated her will and powers of attorney following the death of one of her daughters. She named one of the respondents, her sister-in-law Jeanne, as the power of attorney for property, and the other respondent, her daughter Christina, as the power of attorney for personal care, jointly and severally with the appellant. On September 16, 2016, she executed new powers of attorney in which she named the appellant as the only attorney for property and personal care.

[3] Sadly, Ms. Brown started exhibiting concerning symptoms of loss of capacity. This commenced several years before she was found incapable of managing her property and personal care by two different assessors respectively in July and August 2017. By order of the case management judge, Kershman J., on May 1, 2018, Ms. Brown was declared incapable of managing her property and personal care. The issue that then went before the trial judge was which of the 2009 or 2016 powers of attorney was valid. The trial judge found that the 2016 powers of attorney were invalid.

[4] The appellant appeals from the trial judge’s invalidation of the September 16, 2016 powers of attorney executed by Ms. Brown at the appellant’s suggestion and without legal advice. He argues that the trial judge erred in her treatment of capacity, ignored and failed to give proper weight to the evidence that she should have accepted, and was biased against him.

[5] At the conclusion of the hearing, we dismissed the appeal with these reasons to follow. We are not persuaded that the trial judge made any error in her thorough assessment of the relevant evidence and in her application of the guiding legal principles. Nor do we accept the appellant’s completely unfounded allegation of bias which finds no support in the record.

[6] The trial judge’s conclusion that the 2016 powers of attorney for property and personal care were invalid because: a) Ms. Brown lacked the requisite capacity when she executed them; and b) they were the product of the appellant’s undue influence over his mother, were amply supported by the evidence that the trial judge was entitled to accept. The trial judge’s confirmation of the appellant’s sister and aunt as powers of attorney for property under the 2009 power of attorney signed by Ms. Brown while she was capable, and the trial judge’s appointment of them as guardians of Ms. Brown’s personal care, were reasonable and justified on the record.

[7] The appellant has not pointed to any reversible error by the trial judge. His submissions effectively boil down to an argument that the trial judge erred in not accepting his version of events and view of the evidence, and amount to a request that this court retry the application and cross-application. That is not this court’s function. Absent reversible error, as is the case here, we cannot intervene.

[8] With respect to the disposition of the costs of the appeal, the respondents ought not to have been put to the expense of responding to this appeal, which was entirely without merit, nor to the appellant’s repetition of his baseless assertions that the respondents’ actions constituted fraud and perjury.

[9] Accordingly, this is one of those exceptional cases where the respondents are entitled to their reasonable costs of the appeal from the appellant on a substantial indemnity basis: see e.g., Lewis v. Lewis, 2019 ONCA 690, 309 A.C.W.S. (3d) 657, at para. 17. We order that the appellant pay forthwith to the respondents the amount of $15,000, inclusive of disbursements and applicable taxes. Until paid by the appellant, the costs ordered will remain a first charge on the appellant’s share from his mother’s estate.

“L.B. Roberts J.A.”

“I.V.B. Nordheimer J.A.”

“L. Favreau J.A.”