Court File and Parties

Court File No.: 03-42/14 Date: 2017-06-05 Superior Court of Justice - Ontario

Re: Laura Dale Reisler and Donna Lynn MacDonell, Applicants And: Norman Roth, Deborah Suzanne Roth, The Canada Trust Company and the Public Guardian and Trustee, Respondents

Before: Mr. Justice H.J. Wilton-Siegel

Counsel: N.J. Tourgis and C. Wetmore, for the Applicants D.M. Cunningham, for the Respondent Deborah Suzanne Roth

Heard: January 12, 2017

Endorsement

[1] On this motion, Laura Dale Reisler (“Dale”) and Donna Lynn MacDonell (“Lynn”) (collectively, the “applicants”) seek the costs of a guardianship application commenced May 12, 2014, in which the applicants sought the appointment of The Canada Trust Company as the guardian for property for their father Norman Roth (“Roth”) (the “Application”). The Application was opposed by Roth, who engaged his own legal counsel, and Roth’s other daughter, Deborah Suzanne Roth (“Deborah”). The Application was never determined as Roth died on June 5, 2015 without the Application having been resolved. The applicants seek the costs award against Deborah alone.

Background

[2] The following summarizes the factual background to this motion.

Roth’s Medical Condition in Early 2014

[3] On December 16, 2013, Roth attended at St. Michael’s Hospital on his own, complaining of leg pain. He was referred to Dr. Heather Gilley (“Dr. Gilley”) of the Elders Clinic of the hospital, who saw him, accompanied by Dale, on December 31, 2013. The parties dispute whether Dale arranged this appointment over Roth’s objection. Dr. Gilley concluded that Roth exhibited “significant dementia” and she identified three safety issues given his level of dementia. Her observations regarding Roth’s dementia are as follows:

On cognitive evaluation using the MoCA, he scored 14/30. This is very significant given his prior work as a chief financial officer for a major Canadian bank. He was unable to properly draw a clock, even when he had his watch to consult, was unable to do any of the visuospatial or executive tasks involving drawing, was very slow to do serial sevens, and demonstrated significant language impairment. He also could not remember any of the five words from the beginning to the end of the test, and was disoriented to the date and month. His general neurological examination revealed no focal deficits in strength. He is very slow to walk….

Cognitive Impairment: He has significant dementia. It may be both vascular and degenerative. I have booked him for a CT scan of the brain to assess the vascular burden, and will follow up with him regarding that after completion of the test….

It should be noted that Dr. Gilley’s assessment did not constitute a capacity assessment. Apparently, however, Dr. Gilley did recommend that Roth execute powers of attorney.

[4] Accordingly, on that day, Roth executed a power of attorney for property, appointing Dale as his attorney and Lynn as his alternate attorney, and a power of attorney for personal care, appointing Dale and Lynn jointly and severally (collectively, the “First Powers of Attorney”). Of note, Dr. Gilley did not suggest that Roth was incapable of executing the First Powers of Attorney.

[5] Roth saw Dr. Gilley again on February 19, 2014 after he underwent the brain scan ordered by her. On this occasion, Roth was again accompanied by Dale. Dr. Gilley discussed her diagnosis of “[m]ixed vascular and Alzheimer’s dementia” and reported it to Roth’s long-standing physician, Dr. Mark Huryn (“Dr. Huryn”), by a letter of the same date.

[6] Roth did not accept the diagnosis and its consequences, which included the cancellation of his driver’s licence. As a result, Roth arranged to meet with Dr. Huryn on February 25, 2014 and discussed the same diagnosis with him. Dr. Huryn agreed with the diagnosis of Dr. Gilley.

[7] Roth attended a further appointment with Dr. Gilley on March 19, 2014, again accompanied by Dale. At that appointment, Dr. Gilley conducted further cognitive testing of Roth. Dale says that, in a letter to Dr. Huryn not in evidence, Dr. Gilley stated that Roth exhibited deficits in all domains of cognition and that these test results were very consistent with the testing that she had conducted in December 2013. Dale says that Dr. Gilley also confirmed in that letter that, at the appointment on February 19, 2014, Roth was very unhappy about the revocation of his driver’s licence and disagreed with her diagnosis but that, after his appointment with Dr. Huryn, he was comfortable with the diagnosis and appeared to have come to terms with the revocation of his driver’s licence.

[8] There is evidence that the following day, being March 20, 2014, Deborah took Roth to a medical clinic where he was registered as a new patient of a Dr. Jerome Liu. He may have consulted Dr. Liu on a few occasions. However, commencing with his first appointment on August 12, 2014, Roth more consistently consulted Dr. Kim Johnson (“Dr. Johnson”) at the Royal Health Care Centre. Dale says that Deborah failed to tell either of these physicians of Dr. Gilley’s diagnosis or that Dr. Gilley had prescribed Roth a drug, Aricept, for his condition. She says that Deborah continued to fill Roth’s prescription for Aricept by obtaining, through a pharmacy, refills authorized by Dr. Gilley until February 9, 2015, when Dr. Gilley required a new appointment with Roth before she would authorize further refills. Instead of making an appointment, Deborah obtained a new prescription through a new pharmacy and a new doctor at Royal Health Care Centre. In doing so, Deborah disclosed to the doctor that Roth had been diagnosed with dementia.

[9] On April 15, 2014, Roth, accompanied by Dale, attended an appointment with Dr. Gilley, apparently because he had the flu. In an email of April 17, 2014 to a social worker at the hospital, Dr. Gilley stated that, in her view, Roth was incapable of making decisions as to either his property or his personal care. She stated that he had declined a lot in the last few months, that she was of the view that he “[d]efinitely can’t assign [sic] POA property now”, and that she wasn’t even sure he would be able to “revoke/assign” a power of attorney for personal care. It appears this email was given in the context of the social worker’s consideration of conversations with Dale regarding the developing acrimony between her and Deborah as Deborah became involved with Roth’s affairs. This relationship is described further below. As a result of interactions with this social worker at the hospital, Dale contacted legal counsel later in April to commence the Application, as described below.

[10] On April 25, 2014, Dr. Gilley also summarized her views regarding Roth’s condition in response to a request from Dale’s lawyer. Dr. Gilley stated that Roth had Alzheimer’s-type dementia and had severe impairment across multiple cognitive domains, many of which were critical to decision-making regarding property. Her letter did not, however, purport to be a formal capacity assessment.

[11] Deborah accompanied Roth to his next appointment with Dr. Gilley on April 29, 2014. The following extract from Dr. Gilley’s progress summary of that date evidences the circumstances that generated the Application:

Debbie is spending more time with Mr. Roth. She seemed to have little understanding or insight into his diagnosis of Alzheimer’s disease. I reviewed this with Mr. Roth and Debbie to ensure that she has a sense of his health problem, cognitive impairment, and other issues. Even after the explanation, she seemed to have difficulty accepting and acknowledging his diagnosis.

Mr. Roth, himself, seemed easily led today by Debbie. She was carrying a paper signed by Mr. Roth that described an “incident” in the bank with Mr. Roth’s daughter, Dale.

Debbie is apparently playing the role of a primary caregiver to Mr. Roth now. It was interesting that during the appointment she talked more about her own qualifications, University education and views on things, than about her father.

In addition, on the same day, according to a note of a social worker at the hospital with whom Deborah spoke, Deborah requested that the hospital clinic not speak with Dale and was advised by Dr. Gilley that Dale was Roth’s power of attorney for personal care and that this arrangement would be respected unless subsequent legal documentation was received. The note also states that Roth indicated that he was planning on changing his powers of attorney.

[12] Roth did not see either Dr. Gilley or Dr. Huryn after this appointment. As mentioned, it appears that his principal family doctor became Dr. Johnson of Royal Health Care Centre. Deborah accompanied Roth to all his medical appointments. The extent to which she prepared notes for Roth’s use in these appointments in view of his failing memory and of her participation in discussions with his physicians is disputed between the parties.

The Relationship between the Applicants and Deborah

[13] From the end of February 2014, Deborah increasingly began to take on the role of primary caregiver to Roth, to Dale’s exclusion. Deborah had previously been out of town for a period of time. She had no family of her own but had a residence very close to Roth’s. However, an acrimonious relationship had existed between Deborah and the applicants for a number of years. In addition, Dale believes that Roth held her responsible for what he saw as a false diagnosis of dementia.

[14] The result of these factors was that Dale and Lynn became progressively more estranged from Roth. Dale believes that Deborah was intentionally acting in a manipulative manner to isolate Roth from the rest of his family. She also expressed concern to a hospital social worker that Roth was being subject to psychological abuse, possible financial abuse and possible neglect, insofar as Deborah was restricting Roth’s contact with the Community Care Access Centre (“CCAC”), which had been providing services to Roth, and preventing family members from delivering meals to Roth.

[15] The relationship between Dale and Roth was also affected by several actions of Dale taken in March and April 2014 in the purported exercise of her authority as Roth’s attorney for property under the First Powers of Attorney. These actions are described in an affidavit sworn May 24, 2015 in the Application (the “Respondent Affidavit”), which is further described below.

[16] First, Deborah says that there was a confrontation between Dale and Roth in March when Dale removed Roth’s will from his house, apparently to review and copy it, and returned it with pages missing according to Roth.

[17] Next, on April 1, 2014, there was a verbal confrontation between Dale and Deborah at a local T-D Canada Trust (“T-D”) bank branch when Dale unexpectedly ran into Roth and Deborah. Dale believed that Deborah was attempting to take over the role of managing Roth’s financial affairs and took this meeting as evidence. This was followed by acrimonious telephone calls from Dale to Roth on the same evening, which aggravated the relationship between them.

[18] It appears that, at Roth’s request, Dale did not have direct contact with Roth after accompanying him to his medical appointment on April 15, 2014. In addition, after efforts of Dale’s children to effect a reconciliation between Dale and Roth, Roth advised Dale by a letter of his lawyer on June 10, 2014 that he felt it was best that he not interact with Dale’s children until the Application was resolved.

[19] Subsequent to the incident on April 1, 2014, Dale caused the T-D to place a restriction on Roth’s access to his personal bank account as well as to his investment accounts, and to the accounts of an investment corporation, Noricia Securities Inc. (“Noricia”), of which Roth was the sole director and in respect of which there is a dispute as to whether the shareholders include Roth’s grandchildren as well as Roth. Under these arrangements, Roth was limited to withdrawals not exceeding $500 at any time from his personal bank account and was prevented from trading in the investment accounts. It appears that Dale took this step for two reasons related to her view that Roth was vulnerable financially. She believed that Roth was incapable of making investment decisions and would lose money if he was able to make trading decisions. She also believed that Roth was vulnerable to Deborah’s influence and was concerned that Deborah was influencing Roth to revise his will, although this did not occur. Roth was upset when he learned of these restrictions in mid-May when he attempted to withdraw more than $500 from his bank account.

[20] In addition, during April, May and June, Dale arranged for three cheques totaling $30,000 to be withdrawn from Roth’s bank account and paid to her lawyer for fees in connection with the Application. The cheques, for $10,000 each, were dated April 30, 2014, May 27, 2014 and June 27, 2014. Subsequently, Roth’s lawyer demanded repayment of these monies by Dale. As of the time of the hearing of this motion, Dale has not repaid the monies.

Commencement of the Application

[21] On May 7, 2014, Roth met with a lawyer, Melanie Giroux (“Giroux”). At that time, he executed new powers of attorney for property and personal care, in each case revoking the First Powers of Attorney and naming Deborah as his attorney and Lynn’s daughter, Jennifer Mior, as his alternate attorney (the “Second Powers of Attorney”).

[22] Dale commenced the Application on May 12, 2014. The relief sought included a declaration that Roth was incapable of managing his property, the appointment of The Canada Trust Company as the guardian for property of Roth, the termination of any powers of attorney executed after December 31, 2013 (which would include the Second Powers of Attorney) and an order requiring the Public Guardian and Trustee to appoint legal counsel for Roth pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The grounds for the Application included the statement that Deborah was currently living with Roth and was preventing Dale from accessing Roth and his property and thereby preventing Dale from managing the property of Roth “during his incapacity”.

[23] The Application was supported by an affidavit of Dale sworn May 12, 2014. In that affidavit, in addition to providing the evidence that Dale considered supported Roth’s incapacity, Dale also devoted considerable energy to describing the developing estrangement between her and Roth. She expressed the view that Deborah had “exerted all manner of influence on [Roth] to damage his relationship with [Dale] and Lynn.” She stated that she feared that Deborah’s agenda was to take advantage of Roth financially. She also suspected that Deborah had accessed Roth’s Noricia account and was making trades on behalf of Roth “without authority”.

[24] Roth opposed the Application and engaged his own legal counsel.

[25] The parties reached agreement on a consent order of the court dated June 5, 2014 pursuant to which, among other things, Deborah was added as a party, provision was made for payment of a retainer to Roth’s legal counsel out of his personal funds and restrictions were lifted on Roth’s use of the funds in his personal bank account, into which his pension continued to be deposited. The order contemplated that the Application would be heard on September 26, 2014.

[26] Subsequently, Roth swore an affidavit on June 19, 2014 asserting that he was not incapable of making decisions on his own behalf regarding his property or his personal care. In that affidavit, Roth, among other things, stated that Dale pressured him into signing the First Powers of Attorney without independent legal advice, recounted the events of April 1, 2014 and his frustration on learning of the restrictions on withdrawals from his personal bank account, his investment accounts and those of Noricia, and raised an objection to certain transfers of monies from his bank account apparently authorized by Dale. The applicants allege that the affidavit contains numerous inaccuracies.

[27] In addition, Deborah swore an affidavit dated June 20, 2014 asserting, among other things, that Roth had the capacity to manage his own property and taking exception to Dr. Gilley’s diagnosis, which Deborah considered was based in part on Dr. Gilley’s discussions with Dale and without the benefit of her own views. Deborah also answered Dale’s allegation of undue influence over Roth by suggesting that the First Powers of Attorney had been obtained by undue influence on the part of Dale. She stated that Roth chose to distance himself from Dale as a result of the incident on April 1, 2014 and that Roth was very frustrated with Dale’s actions in her capacity as attorney for property in restricting withdrawals from his personal bank account. She also alleged erratic behaviour on Dale’s part and that Dale was financially dependent on Roth.

[28] On July 25, 2014, a representative of T-D advised that, in view of the question of Roth’s capacity, pending “judicial direction/determination”, T-D would only act on the instruction or consent of all of Roth, Dale and Deborah in respect of Roth’s investment accounts with the T-D organization. The representative also advised that the T-D organization would not accept instructions from Roth with respect to Noricia’s accounts until the shareholders of the corporation appointed one or more authorized officers.

[29] On September 2, 2014, Roth was voluntarily assessed by a capacity assessor, Elizabeth Milojevic (“Milojevic”), who issued her report dated September 5, 2014 (the “Capacity Assessment”). Milojevic found Roth to be capable of managing his property.

[30] On September 17, 2014, after receiving a copy of the Capacity Assessment, the representative of T-D advised that all restrictions regarding Roth’s access to his personal accounts with the T-D organization, including his investment accounts and the accounts of Noricia, had been lifted.

[31] On September 18, 2014, Roth swore a further affidavit asserting his capacity, which is not in evidence on this motion, in anticipation of the hearing scheduled for September 26, 2014.

[32] Dale then brought an emergency motion on September 23, 2014 for an order that T-D again restrict Roth’s access to his investment accounts and to the accounts of Noricia, in accordance with its advice on July 25, 2014. This was supported by affidavits of Dale sworn September 18 and September 22. Roth swore a further affidavit on September 24 in reply, which is not before the Court, and Dale delivered an affidavit the same day in reply to assertions in Roth’s affidavit sworn September 18. Apparently, Deborah was not involved in this motion.

[33] Pattillo J. denied the motion, providing a short endorsement to the effect that there was no evidence of any immediate concern regarding activity on Roth’s accounts and, given that the guardianship issue was scheduled to be heard on September 26, he was not prepared to interrupt the status quo.

[34] The Application was returned on September 26, 2014 before Newbould J. Roth opposed the Application at that time. Newbould J. issued an order (the “Newbould Order”) providing for the parties’ access to the medical records of Dr. Gilley and Dr. Huryn, to the records of the CCAC and to the legal files of Giroux. The Newbould Order also provided for mediation and for the addition of Lynn as a party to the Application.

[35] The parties attended a mediation session on January 21, 2015, which was, however, unsuccessful.

[36] Little appears to have happened with respect to the Application after the mediation until May 11, 2015, when the applicants served a Notice of Motion seeking numerous items of relief including an order that Roth submit to a further capacity assessment and that Roth, Deborah and Giroux be cross-examined on their respective affidavits in the Application.

[37] In connection with this new motion, Dale swore an affidavit on May 8, 2015. The affidavit principally set out the evidence regarding Roth’s capacity that had been obtained from the files of Dr. Gilley and CCAC pursuant to the Newbould Order upon which the applicants intended to rely. It also set out the applicants’ basis for rejecting the evidence of Giroux based on her notes of her meeting with Roth. In addition, the affidavit addressed certain matters pertaining to Noricia and certain family trusts that, in the applicants’ view, demonstrated that Roth did not understand the matters related to these entities that he had addressed in his earlier affidavits and demonstrated that Deborah had created documentation in an attempt to legitimate Roth’s previous statements.

[38] In an affidavit sworn July 4, 2016 for the present motion, the applicants challenged the Capacity Assessment on a number of grounds. They stated that it was inconsistent with CCAC notes, reflected coaching by Deborah, must have been prepared without the benefit of Roth’s brain scan or his medical records, including those of Dr. Gilley, and was written without any independent confirmation of the facts reported by Roth, which contained many errors. In addition, of relevance to the present motion, the applicants argued that Roth resisted the diagnosis of dementia and its implications, and, in doing so, became vulnerable to Deborah’s influence. The applicants submitted that, as a result, Roth had become alienated from the rest of his family, all of whom were prepared to support him in his condition and expected decline.

[39] In connection with the motion, Deborah swore the Respondent Affidavit. This is a very lengthy affidavit that addresses all of the issues raised by the parties to that date and adds some additional issues.

[40] In the Respondent Affidavit, Deborah lists six reasons for her opposition to the motion. These included: (1) the continued assertion that Roth had capacity to manage his property; (2) that the Second Powers of Attorney were valid and in effect; (3) that she was well qualified, given her professional background, to continue acting as Roth’s attorney for property; (4) that the current arrangements respecting Roth’s property were optimal; (5) that the applicants’ guardianship application was unnecessary and contrary to Roth’s wishes; and (6) that there was no reasonable basis on which to require a further capacity assessment. In particular, she asserted that there were serious deficiencies in Dr. Gilley’s assessment and that, in contrast, the Capacity Assessment was thorough and comprehensive and should therefore be relied upon. In this affidavit, Deborah also stated that there had been no material changes in Roth’s health or circumstances that would warrant a further assessment and made statements regarding Dale’s credit rating. These last two sets of statements are discussed in greater detail below.

[41] Roth did not file his own affidavit on this motion although he opposed it through his legal counsel.

The Deterioration of Roth’s Medical Condition in 2015 and the Termination of the Application

[42] On March 25, 2015, Roth, accompanied by Deborah, was seen by a new doctor at the Royal Health Care Center. At that time, he was coughing up blood from some part of his lungs/respiratory tract. On May 4, 2015, he was seen for dysphagia at the other medical clinic at which he had been registered. He was sent to an otolaryngologist who saw him the following day. This specialist wrote in a note to the medical clinic that he strongly encouraged Roth and Deborah to have a hospital investigate the possibility of dementia and stroke.

[43] On May 19, 2015, Roth was hospitalized at Sunnybrook Hospital with respiratory failure and suspected pleural empyema. He was placed in the intensive care unit of the hospital and intubated. Deborah says that that it was not until May 31, 2015, when she was told by hospital staff emphatically that Roth’s death was imminent, that she “came to the final realization that my father was going to die.” It appears that Deborah did not tell the applicants of the condition of their father and that they learned of his hospitalization on June 1, 2015 from a social worker connected with the hospital.

[44] The parties appeared before Pattillo J. on May 29, 2015 for the hearing of the applicants’ motion. At that time, Pattillo J. adjourned the motion to a case conference to be held before him on July 9, 2015. Deborah also did not tell Pattillo J. of the state of Roth’s health.

[45] There is no evidence of any communication between Roth’s lawyer and either Roth or Deborah between May 19, 2015 and June 1, 2015. On that date, Deborah told Roth’s lawyer of his hospitalization and his wish to see her. Roth’s lawyer visited him that evening and reported in a letter to counsel for the applicants on June 3, 2015 that she did not communicate with him as he was sleeping and that she was not advised that Roth was terminally ill or as to the extent of his illness. The applicants also visited Roth that evening and reported that he was intubated and was receiving oxygen.

[46] As mentioned, Roth died on June 5, 2015, rendering the Application moot.

The Issues for the Court

[47] The applicants rely on the principles pertaining to full indemnity costs as set out in Gerula v. Flores (1995), 126 D.L.R. (4th) 506, 83 O.A.C. 128 (C.A.) at p. 529 and, in particular, to the following statement:

Where a defendant’s acts are a deliberate attempt to frustrate the proceedings by fraud or deception, where the conduct of the defendant is calculated to harm the plaintiff, or where the unreasonable conduct of the defendant compounds the complexity of the proceedings, there are proper grounds to order solicitor-and-client costs.

[48] The applicants say that Deborah deliberately frustrated the Application through: (1) deception; (2) undue influence; and (3) fraud. They argue that, as a result, Deborah should bear their costs of the Application.

[49] In their Factum, the applicants indicate that they base their claim on the following six aspects of Deborah’s conduct: (1) withholding complete information from Roth’s medical professionals and taking him to a series of different doctors to hide his true condition; (2) exerting undue influence on him; (3) controlling all of Roth’s contact with anyone other than Deborah and, in particular, controlling his contact with the medical professionals who may have been in a position to assist Roth; (4) withholding from the court vital information regarding Roth’s health, in particular in the Respondent Affidavit; (5) deceiving staff at Sunnybrook Hospital regarding Roth’s family members; and (6) providing false information to the court regarding Dale’s credit.

[50] Of these allegations, items (1), (2) and (3) are relevant to the applicants’ principal argument that Deborah’s deceptive actions prevented the Application from being determined earlier. I will deal with that issue first. Item (2) and to a certain extent item (3) also address the second allegation of undue influence, which I will deal with next. The issues in items (4), (5) and (6) will be dealt with last in the context of the applicants’ allegations of fraudulent activity on the part of Deborah.

[51] I note that the applicants’ arguments regarding the delay in the proceedings and Deborah’s undue influence overlap in certain important respects. I have, however, addressed the arguments separately in order to highlight the particular actions upon which these different arguments focus. Specifically, the first argument focuses particularly on Deborah’s alleged scheme of denying information regarding Roth’s condition to his treating physicians after April 2014 while the second focuses on her alleged plan to replace the applicants in Roth’s affections and her exercise of undue influence over Roth’s decision making in the course of doing so.

Allegations of Deception and Delay in the Determination of the Application

[52] The applicants’ position is that Deborah hid Roth’s true medical condition from the professionals providing care to Roth, the applicants and the court. The applicants submit that the Application would have been determined earlier but for such conduct on the part of Deborah during the course of the Application and but for her undue influence over Roth. There are two broad problems with this argument which I will address in turn.

[53] The first difficulty with the applicants’ position is that, viewing the entire course of the Application, there are no specific points in time at which Deborah’s actions had the result of preventing a determination of Roth’s capacity. In fact, the applicants have not identified any particular proceeding in this action in respect of which Deborah’s involvement had the effect of preventing the hearing of the Application.

[54] The Application was commenced on May 12, 2014. On June 5, 2014, the court ordered a timetable in the Application that contemplated a hearing of the guardianship issue on September 26, 2014. The hearing did not proceed on that date but was instead adjourned pending the production requested by the applicants of the records of Dr. Gilley, Dr. Huryn, CCAC and Giroux and a mediation to occur by November 30, 2014. The mediation was then fixed by order of the court to occur in January 2015. The mediation was unsuccessful. However, the applicants took no further action in this Application until they served a further Notice of Motion on May 11, 2015. Ultimately, this motion was adjourned on May 29, 2015 by Pattillo J. to a case conference to be held on July 9, 2015, which was rendered moot by Roth’s death.

[55] The critical hearing in the Application therefore occurred on September 26, 2014. In this regard, the following two considerations are relevant.

[56] First, any alleged deception at the time of this hearing was at least as much due to Roth as to Deborah. The evidence of Roth’s active opposition cannot be disregarded in the absence of a finding that Roth lacked capacity to make decisions regarding his property. In particular, Roth voluntarily submitted to the capacity assessment by Milojevic and was willingly attending appointments with doctors other than Dr. Gilley and Dr. Huryn at the time. There is no evidence that Deborah was present when the assessment was conducted. Further, through his lawyer, Roth opposed the Application at the hearing on September 26, 2014. There is also no evidence of the active participation of Deborah or her counsel at that hearing, although Deborah filed an affidavit sworn June 20, 2014 and her counsel was present.

[57] Second, there was, in any event, at a minimum, a need for a trial of the issue of Roth’s capacity. I accept that there may well be factual errors in the Capacity Assessment that cast doubt on its reliability. Similarly, there are a few statements in the Capacity Assessment that may suggest that Deborah had influenced Roth’s view of events or of Dale’s actions. On the other hand, it is clear that Milojevic was aware of Dr. Gilley’s assessment of Roth’s condition, even if she did not have Dr. Gilley’s medical records, and that Roth himself made her aware of his problems with his short-term memory loss. Taking the evidence before Newbould J. as a whole, it is not possible to find that the Capacity Assessment lacked credibility.

[58] The Newbould Order therefore reflects the fact that the applicants required evidence from Dr. Gilley and Dr. Huryn, in particular, as well as the records of CCAC to the extent relevant, to support their position that Roth was incapable of managing his property as early as December 31, 2013 and, in particular, to attempt to counter the Capacity Assessment, or at least to obtain an order for a new capacity assessment.

[59] In summary, therefore, there is no evidence that Deborah’s actions in respect of the hearing on September 26, 2014, in particular, resulted in any deception of the parties or the court, much less that her actions prevented the hearing of the Application on September 26, 2014. Given the foregoing circumstances, the applicants had to move the Application forward and to deal with Roth’s opposition. They did not do so after September 26, 2014 in any meaningful way until May 2015, after which events overtook them.

[60] The second major difficulty with the applicants’ argument is that it fails to make a legally meaningful connection between Deborah’s alleged actions and the progress of the Application. The applicants say that Deborah deliberately attempted to frustrate the Application by causing Roth to be seen by doctors other than Dr. Gilley, a geriatric specialist, and Dr. Huryn, his long-standing family doctor, and by ensuring that Roth did not advise the new doctors of his medical condition. The applicants also say that Deborah withheld information from the new doctors regarding Roth’s mental capacity as diagnosed by Dr. Gilley and Dr. Huryn. The applicants say that, as a result, the court was deprived of information regarding Roth’s actual capacity and thereby deceived and manipulated.

[61] As a factual matter, it is certainly correct that Roth stopped seeing both Dr. Gilley and Dr. Huryn after his appointment with Dr. Gilley on April 29, 2014. In fact, it appears that three further appointments with Dr. Gilley were subsequently scheduled and terminated under circumstances that are not clear. It is also the case that, after April 29, 2014, Roth saw several different physicians regarding his general medical condition, principally Dr. Johnson until she took a maternity leave in the spring of 2015, and certain specialists regarding particular conditions that developed.

[62] I discuss the issue of undue influence further below. The issue for present purposes is that there is no link between Roth’s treatment by the physicians he attended after April 29, 2014 and the progress of the Application.

[63] The applicants’ position appears to be based on Deborah’s alleged failure to disclose to the physicians who treated Roth after that date that Dr. Gilley and Dr. Huryn had diagnosed Roth with dementia and that Dr. Gilley had prescribed a drug to treat the dementia. There are, in turn, two problems with this argument.

[64] First, the applicants assume that Deborah had both the right and the obligation to tell these physicians of the diagnosis of Drs. Gilley and Huryn notwithstanding that Roth chose not to tell these facts to the physicians who treated him. It is only if I accept that Roth was not capable of making decisions regarding his personal care that I can find that Deborah had any right, let alone an obligation, to make this disclosure. However, no such finding was ever made by the court. Indeed, the applicants did not pursue an application for a guardianship for personal care.

[65] Second, the connection between Deborah’s failure to advise these physicians of the diagnosis of dementia and the delay in the hearing of the Application is not obvious. While the applicants have not made their reasoning explicit in this regard, I have considered the following two possible connections.

[66] The first possible argument is that the physicians who actually treated Roth after April 2014 would have determined that Roth was incapable of managing his property if they had been more fully informed regarding Dr. Gilley’s diagnosis. This argument is too speculative for present purposes. The physicians who treated Roth were obligated to make their own personal assessments of his capacity prior to treating him. There is no evidence that any of them, in particular Dr. Johnson, considered him to be incapable of making decisions regarding his personal care. In addition, Roth opposed the Application and voluntarily submitted to a capacity assessment that found him to be capable of managing his property.

[67] The second possible argument is that the Application would have progressed to the point of a determination of Roth’s incapacity if Roth had not terminated his relationships with Dr. Gilley and Dr. Huryn. This is, of course, possible. However, it is also counter-factual. The reality is that Roth did not accept the diagnosis of these doctors and chose to terminate the relationships as well as oppose the Application. There is no evidence that he did so involuntarily and, as mentioned, no determination that he lacked the capacity to make that decision on his own behalf. This argument is therefore also too speculative.

Undue Influence

[68] The applicants’ second allegation is that Deborah deliberately frustrated the Application by exercising undue influence over Roth. This alleged undue influence involves three principal elements. First, as mentioned, the applicants say that Deborah unduly influenced Roth in his decision to terminate his relationships with Dr. Gilley and Dr. Huryn and to seek medical advice from other physicians who were not told of the diagnosis of Dr. Gilley and Dr. Huryn or of Dr. Gilley’s prescription of a drug treatment for dementia. Second, the applicants suggest that Deborah unduly influenced Roth in his decision to oppose the Application and in his actions in doing so. Lastly, the applicants say that Deborah unduly influenced Roth in his attitude toward the applicants and their motivation in pursuing the Application.

[69] For the purpose of this analysis, I accept the definition of “undue influence” in Black’s Law Dictionary, 8th ed. (St. Paul, Minn.: Thomson West, 2004) referred to by the applicants: “The improper use of power or trust in a way that deprives a person of free will and substitutes another’s objective.”

[70] Deborah argues that the concept of “undue influence” is a doctrine whose application is limited to legal or financial transactions that are impugned in a proceeding. She says it is inapplicable in the present proceeding given that the applicants are not relying on the doctrine to seek rescission of any particular transaction entered into by Roth.

[71] I am inclined to agree with this position. In any event, however, I conclude that it is not possible to find that Deborah exercised “undue influence” over Roth in a manner that is meaningful for the present motion for the following reasons, which address the first two elements of the applicants’ argument on undue influence, collectively, and then address the estrangement element separately.

[72] The relevant issue for this motion is whether Deborah’s alleged undue influence delayed the determination of the Application. Accordingly, the applicants must establish a link between Deborah’s actions that are alleged to constitute “undue influence” and actions on Roth’s part that delayed the determination of the Application. The applicants make two submissions to this effect.

[73] As mentioned, the applicants say that Deborah’s undue influence over Roth resulted in Roth’s decision to terminate his relationships with Dr. Gilley and Dr. Huryn and to see other medical professionals who were not acquainted with his medical condition as diagnosed by Dr. Gilley and from whom Roth kept Dr. Gilley’s diagnosis of dementia. The evidence relevant to this assertion has been discussed above. In addition, the applicants say that Deborah’s undue influence over Roth resulted in Roth’s decision to oppose the Application in the manner that he did. In particular, the applicants argue that Deborah directed Roth’s counsel regarding the content of Roth’s affidavits in the Application and, more generally, regarding his position in the Application. The implication is that Deborah had not only assisted him but actually influenced him to take a position in the Application that he would not otherwise have taken, i.e. unduly influenced him to oppose the Application.

[74] The evidence clearly establishes that Roth was not happy with, and did not accept, the diagnosis of Dr. Gilley and Dr. Huryn. There is also no suggestion that he objected to seeing Dr. Johnson or any of the other medical professionals that he consulted rather than Dr. Gilley or Dr. Huryn. To the contrary, the natural inference from the evidence is that he agreed with this course of action as it avoided addressing Dr. Gilley’s diagnosis. The fact that Deborah may have “coached” Roth in his dealings with his medical professionals, CCAC or Milojevic is not sufficient to establish that Deborah was exercising undue influence over Roth. Similarly, the fact that she assisted Roth to address his short-term memory loss issues is not evidence that she was exerting undue influence on him, as the applicants’ suggest.

[75] Similarly, the evidence also establishes that Roth engaged legal counsel on his own. His legal counsel, who was an experienced practitioner in the area of estates law, had an obligation to satisfy herself that Roth had the capacity to instruct her on the Application. There is no suggestion from his legal counsel that he lacked the capacity to instruct her and no evidence that would otherwise cast doubt on that question. The only evidence of this nature pertains to the alleged inadequacy of Giroux’s assessment. However, this was not the subject of a judicial determination and, on the record, is by no means clearly established. Further, Roth voluntarily underwent a capacity assessment by Milojevic. In addition, the only evidence pertaining to Deborah’s alleged direction of Roth’s position on the Application takes the form of certain notes that were typed by Deborah regarding the content of Roth’s affidavits in the Application. The fact that Deborah may have assisted, even provided her views, regarding the content of his affidavits in the Application is not sufficient to establish “undue influence”.

[76] In summary, there is no doubt that Deborah agreed with, and facilitated, Roth’s course of action both with respect to his choice of treating physicians and with respect to his actions in opposing the Application. However, in the absence of a finding that Roth was not capable of making decisions regarding his personal care and his property, I cannot find that Roth did not exercise his own free will in deciding which physician to consult for his various medical conditions and in deciding to oppose the Application. Therefore, there is no basis for a finding either that Deborah deprived Roth of his free will or that Deborah substituted her own personal objective for Roth’s objective. Accordingly, Deborah’s actions in respect of these matters do not constitute the exercise of “undue influence” as that term is defined above.

[77] Lastly, the applicants submit that Deborah unduly influenced Roth in his views regarding the motivation of Dale in bringing the Application and in Roth’s decisions to exclude the applicants and his grandchildren from his life.

[78] The applicants say that the family dynamics completely reversed after Roth’s diagnosis of dementia. They say that, before the diagnosis, the applicants spoke to Roth regularly and neither quarrelled with him. In contrast, they say that Deborah had an acrimonious relationship with him, as well as with the applicants, for a number of reasons and that Roth sided with the applicants. They say that after the diagnosis of dementia, Deborah held a privileged position in Roth’s affections and that the applicants, and their children, became estranged from Roth.

[79] The applicants attribute this change of affections solely to Deborah’s actions. In their factum prepared for the motion in 2015, the applicants submit that, in resisting the diagnosis of dementia and its implications, Roth “unwittingly increased his vulnerability” and “left himself open to the pernicious influence of the one family member who, in furtherance of her own agenda, refuse[d] to acknowledge the diagnosis and its implications.”

[80] The applicants submit that, after Dr. Gilley’s diagnosis, Deborah took advantage of Roth’s condition by leading him to believe that he did not have dementia in order to insinuate herself into his life and to attain the prominent place in his affections that they say had previously eluded her. They say that Deborah led Roth to believe that Dale’s belief in the diagnosis of dementia, and Dale’s actions in respect of the Application, reflected her instability and need for his money and that, insofar as Dr. Gilley and Dr. Huryn diagnosed dementia, they were either incompetent or acting in concert with Dale to commit fraud. There are also issues between the parties regarding Deborah’s motivation, in particular, whether she truly disbelieved the assessment of Dr. Gilley or supported Roth for the personal reason of wishing to displace the applicants in Roth’s affections.

[81] The evidence establishes that there was a significant change in Roth’s view of the applicants and of Deborah in 2014 that continued until the time of his death. It is also quite possible that this change was associated with the deterioration of his health and the onset of dementia. The applicants’ evidence of this change in Roth’s views regarding his family members is not, however, enough to establish undue influence on the part of Deborah for two interrelated reasons.

[82] First, there is no question that Roth personally took exception to Dale’s actions in respect of his bank account and investment accounts as well as certain other actions taken in the purported exercise of her authority as his attorney for property under the First Powers of Attorney. More generally, Roth was, at a minimum, a willing participant in the estrangement that occurred between himself and the applicants and their children. Roth made his views known to the applicants through communications from his own lawyer. The court cannot attempt to divine from the record how much of Roth’s actions in this respect were due to Deborah’s actions and how much reflected Roth’s independent views.

[83] In addition, the onset of dementia does not automatically equate to incapacity to manage property. Such a determination requires a more nuanced assessment of the capabilities of an individual in a number of respects. In the absence of a judicial determination that Roth was incapable of managing his property or of taking decisions regarding his personal care, at a minimum, the court must proceed on the basis that Roth’s views regarding the applicants and their motivation in bringing the Application reflected his own independent conclusions. The Court therefore cannot find that Deborah was the sole cause of the estrangement between Roth and the applicants.

[84] Second, and in any event, these issues are not relevant for the issue of whether Deborah exercised undue influence over Roth in a manner that frustrated the determination of the Application. The estrangement between Roth and the applicants was a consequence of, among other things, the applicants’ decision to bring the Application and Roth’s decision to oppose it, rather than the cause any delay in the determination of the Application.

Alleged Fraud

[85] The applicants raise two further issues arising out of the Respondent Affidavit, which they characterize as fraudulent activity on Deborah’s part. They say that certain of Deborah’s actions related to the Respondent Affidavit were a deliberate attempt to mislead the court and should therefore justify an order that Deborah pay the applicants’ costs of the Application.

[86] The first issue pertains to the statement in the Respondent Affidavit that Dale and her husband appear to be “living well beyond their means” and relying on Roth for their financial security. This statement was first made in Deborah’s affidavit sworn June 20, 2014. In support of the statement in the Respondent Affidavit, Deborah referred to an Equifax report respecting Dale’s credit. The suggestion is that the alleged need for access to Roth’s financial resources was a reason, or perhaps the reason, that Roth did not want Dale to have any involvement in managing his property.

[87] Dale alleges in her affidavit sworn July 4, 2016 in this motion that Deborah illegally obtained the Equifax report by submitting a rental application in Dale’s name to a real estate agency. I note that Deborah did not address the circumstances described in Dale’s affidavit in her affidavit sworn July 29, 2016 in this motion. The allegations in Dale’s affidavit are therefore uncontradicted.

[88] It appears that Deborah provided Dale’s social insurance number to certain employees of a local real estate agency together with a purported consent of Dale to conduct a search of her credit status. These individuals ran the Equifax search at issue. In doing so, they appear to have breached internal rules of the real estate agency as a result of which they were later fired. The court is not, however, in a position to find that such activity constituted a criminal offence based on the record before it nor is it necessary to do so for present purposes. More importantly, it cannot be said that Deborah’s actions constituted a fraud upon the court.

[89] However, the statements in Deborah’s affidavit were both unnecessary and inflammatory. The Application did not seek the appointment of Dale as Roth’s guardian for property. It sought the appointment of The Canada Trust Company. Further, Deborah did not oppose the Application on the grounds that Dale was in a conflict of interest. Accordingly, there was no reason to refer to the Equifax report, whether or not Dale and her husband were living beyond their financial means. The result has been to complicate this motion by the inclusion of an extraneous consideration. Such actions did not, however, mislead the court.

[90] The more difficult issue for the court is the second statement in the Respondent Affidavit that “[a] capacity assessment has already been conducted, and there have been no material changes in my father’s health or circumstances that would warrant any further assessment.” On May 24, 2015, the day that the affidavit was sworn, Roth had been in the intensive care unit of Sunnybrook Hospital for five days. There, was, however, no mention of his medical condition in the Respondent Affidavit. At a minimum, full disclosure would have required such a statement in view of the fact that, even if Roth survived, at his age there would have been a significant possibility of a deterioration in his medical condition.

[91] The applicants were understandably upset by the fact that Deborah did not advise them of these circumstances and that they only learned of Roth’s condition through a hospital social worker late on June 1, with the result that they had little opportunity to visit their father before his death on June 5, 2015. They regard the silence in the Respondent Affidavit as intentional and directed toward keeping Roth’s condition from the applicants.

[92] The applicants argue that the failure of Deborah and her counsel to advise Pattillo J. of Roth’s medical state at the hearing on May 29, 2015 is a relevant consideration on this motion. They submit that such actions amounted to intentional deception of the court justifying the imposition of costs of the Application.

[93] Deborah’s silence in court on May 29, 2015 is a matter that warrants serious consideration. Such non-disclosure carries a serious risk that a court could be misled into rendering an inappropriate decision on an ill-informed basis. In this case, however, while the disclosure before Pattillo J. was certainly incomplete and could have misled the court if it had been acted upon, the lack of disclosure had no consequences.

[94] As mentioned, Pattillo J. adjourned the hearing to a case conference before him six weeks later. There is no evidence, and no logical argument, that he would have done anything differently if he had been apprised of Roth’s medical condition. In particular, Roth’s medical condition would not have been a reason to grant the relief sought on the motion before him. At a minimum, any question of granting the principal relief sought on the motion, being an order that Roth submit to a further capacity assessment, would have required the recovery of his health. Nor can I speculate whether Deborah would have continued to remain silent regarding Roth’s physical condition if Pattillo J. had proceeded to render a determination on the basis of the incomplete disclosure in the Respondent Affidavit.

[95] In addition, for completeness, I note that the incomplete disclosure in the Respondent Affidavit came at the end of the litigation respecting the Application. There was no real delay in the progress of the Application after May 29, 2015, whether as a result of the incomplete disclosure in the Respondent Affidavit or otherwise.

[96] Based on the foregoing, I conclude that Deborah’s silence in the Respondent Affidavit and in court on May 29, 2015 before Pattillo J. with respect to the state of Roth’s health did not have any consequences for the disposition of the motion before Pattillo J. or for the Application.

Conclusion

[97] Based upon the foregoing, the applicants’ motion is dismissed.

Costs

[98] Deborah seeks her costs of this motion on a full indemnity basis in the amount of approximately $93,000 before HST. The applicants’ costs outline sought costs on a partial indemnity basis of approximately $22,500 before HST. In view of the large difference, Deborah shall have thirty days to provide written submissions not exceeding four pages and the applicants shall have a further ten days to submit any responding submissions they may choose to make, also not exceeding four pages.

Wilton-Siegel J. Date: June 5, 2017