COURT FILE NO.: CV-19-81051

DATE: 2023/01/25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joy Overtveld, Todd Overtveld, and Gary Katz, in their capacity as powers of attorney for property for Gilles Jozias Overtveld and Joy Overtveld and Todd Overtveld in their capacity as powers of attorney for personal care for Gilles Jozias Overtveld Applicants

– and –

Gilles Jozias Overtveld, The Office of the Public Guardian and Trustee and Enrique M. Jurado and Rachida Youmouri Respondents

Counsel: Yasmin M. Vinograd and Meagan Jennings, for the Applicants Miriam Vale Peters, for the Respondent Gilles Jozias Overtveld Dalkeith Palmer and Latania Dyer for the Respondents Enrique M. Jurado and Rachida Youmouri Nobody appearing for The Public Guardian and Trustee

HEARD: March 10 and 11, 2022

REASONS FOR JUDGMENT

Justice Marc R. Labrosse

Overview

1Since 1977, Gilles Jozias Overtveld has operated a successful property management company known as Gi-Las Management and Maintenance Ltd. (“Gi-Las”). Through that company, he acquired several properties that provided revenues from residential and commercial tenancies. The value of the Gi-Las portfolio of properties has been estimated, in parts of the evidentiary record, at approximately 20 million dollars, subject to some mortgage financing. Also, the value of Gilles’s personal investment portfolio was estimated at several million dollars in other parts of the record.

2In 2011, Gilles Overtveld signed a continuing power of attorney naming his two children and his accountant as attorneys for property. He also signed a power of attorney for personal care naming his children as attorneys for personal care.

3In December 2016, Gilles authorized a share transfer whereby he transferred the controlling shares in Gi-Las to his children Joy and Todd Overtveld. Joy then assumed the role of managing Gi-Las’s properties in 2017.

4On September 6, 2017, Leonard Burnstein, a capacity assessor, prepared a Letter of Opinion following an assessment of Gilles and concluded that Gilles did not meet the minimum standards necessary to manage property or to manage any domain of his personal care. Mr. Burnstein did not opine on Gilles’s capacity to grant or revoke a power of attorney.

5In the fall of 2018, Gilles was further assessed by Dr. Francine Sarazin, a designated capacity assessor, and she concluded that he was incapable of managing his property and personal care in respect of his health and safety. She also concluded that Gilles did not have the capacity to grant or revoke a power of attorney for property and that his capacity to grant or revoke a power of attorney for personal care was “borderline, at best.”

6On November 2, 2018, Dr. Barbara Collins, a capacity assessor, assessed Gilles solely for his capacity to assign or revoke a power of attorney and concluded that there was insufficient evidence to overturn the presumption that Gilles was capable of assigning or revoking a power of attorney for property.

7In November 2018, Gilles executed a new continuing power of attorney appointing his friend Tito Jurado and his then lawyer Michael Rappaport as his attorneys for property. On December 18, 2018, Gilles executed a new power of attorney for personal care appointing his new wife Rachida Youmouri as his attorney for personal care. Several new wills were also drafted for him but not signed. The existing will leaves his estate to his two children, Joy and Todd. The draft wills either leave his estate to Joy, Todd and to the Respondent Ms. Youmouri or disinherited his children completely.

8Gilles met Ms. Youmouri in the Fall of 2018 and married her on December 17, 2018.

9Since December 2018, the parties to this Capacity Application have been embroiled in a number of different litigation files which all touch, in some part on the issue of Gilles’s capacity.

10The Attorneys have commenced this application. They have applied to pass their accounts as attorneys for property and they have commenced a matrimonial proceeding to challenge Gilles’s marriage to Ms. Youmouri. Conversely, Gilles is purported to have commenced actions against the Attorneys for both the management of Gi-Las and his affairs. Much of this has been done through the Respondent Mr. Jurado with the help of others.

11For the reasons set out herein, I conclude that as of September 6, 2017, Gilles was incapable of managing property and incapable of personal care. Further, as of November 6, 2018, he was incapable of granting or revoking a power of attorney. Decisions on his behalf should be made by the attorneys, appointed pursuant to the 2011 POAs.

Factual Background

12Gilles Overtveld was born in the Netherlands on June 4, 1928. At the time of hearing this application, he was 93 years of age. Joy Overtveld and Todd Overtveld are his only children. Gary Katz is Gilles’s long-time accountant for over 30 years.

13Gilles is a retired electrical engineer. In 1977, he founded a successful property management company, Gi-Las, which owns several residential properties and two commercial properties in Ottawa.

14Joy has been working for Gi-Las since 2008 and on a full-time basis since 2011. Over time, Gilles started to transfer the management of Gi-Las to Joy. On December 1, 2016, Joy assumed a more active role in managing the Gi-Las properties but Gilles was involved in decision-making. The Attorneys did not assume the full management of Gi-Las or of Gilles’s personal finances until 2017-2018.

15On March 14, 2011, Gilles executed a continuing power of attorney for property appointing Joy, Todd and Mr. Katz (collectively, the “Attorneys”) as his attorneys for property (the “POA for Property”). That same day, he also executed a power of attorney for personal care appointing Joy and Todd as his attorneys for personal care (the “POA for Personal Care”) collectively the “2011 POAs.” Gilles submitted the POA for Property to two banks shortly after it was executed.

16On March 26, 2014, Gilles suffered an acute middle cerebral artery stroke that resulted in eight (8) days’ hospitalization. The stroke was described by his physician as moderate to severe.

17Following the stroke, the Attorneys, primarily through Joy, state that Gilles began exhibiting cognitive changes, including decreased judgment and decision-making capacity, diminished multitasking abilities, tangential thought processes and changes to his personality.

18The Attorneys take the position that Gilles continued to make all business decisions related to Gi-Las and his personal assets, including a share transfer in December 2016, where the controlling shares of Gi-Las were transferred to Joy and Todd. During this time, he continued to manage his personal care needs, continued to ride his tricycle to the YMCA and continued to reside on the third floor of his walk-up apartment at 325 Frank Street, a property owned by Gi-Las.

19On February 12, 2017, Gilles suffered a fall and as a result, became bedridden and housebound. He moved to the second floor of 325 Frank Street, and one year later, to the main floor. His care needs have since expanded to 24/7 care provided by personal service workers and a live-in caregiver, Maritess Llagas (“Tess”).

20The Attorneys have testified that Gilles suffered a precipitous cognitive and behavioural decline between February and July 2017. His behaviour, interests and demeanour changed significantly. His body was very weak and his memory loss accelerated. In the spring of 2017, he could no longer remember to take his medications without supervision.

21By May 2017, the Attorneys state that Gilles had expressed his own concerns regarding his memory. Joy and Todd state that they began acting pursuant to the POA for Personal Care in mid-2017.

22The Attorneys advance that medical records indicate that Gilles suffers from Alzheimer’s dementia, predominantly vascular with mixed Alzheimer’s disease. The Respondents Youmouri and Jurado dispute such a conclusion.

23On September 5, 2017, Gilles was assessed by Mr. Leonard Burnstein, a designated capacity assessor. On September 6, 2017, Mr. Burnstein provided a Letter of Opinion in which he opined that Gilles did not meet the minimum standards necessary to manage property or to manage any domain of his personal care; that Gilles was impaired in his ability to appreciate the consequences of any financial decision or lack thereof; and that Gilles was vulnerable to potential financial exploitation and/or abuse by unscrupulous people.

24Mr. Burnstein has indicated that he was not performing a capacity assessment pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) and that his assessment of Gilles was only a Letter of Opinion on Gilles’s capacity. As such, he was not required to comply with s. 78(2) of the SDA.

25The evidence establishes that Gary Katz was present for the first 10 minutes or so of the Burnstein assessment. Mr. Katz testified that he would have introduced Gilles to Mr. Burnstein but Mr. Katz was unable to describe with precision the information that Gilles was given. As for Mr. Burnstein, he testified that he would have introduced himself by name and explained that he was a capacity assessor and that he was asked to do an assessment regarding a letter of opinion, specifically regarding his capacity to manage finances and personal care decisions. However, no evidence was provided regarding whether Gilles was advised of the significance and effect of a finding of incapacity or that he had a right to refuse to be assessed as set out in s. 78(2) of the SDA. Mr. Burnstein stated that Gilles was happy to speak to him.

26Mr. Burnstein’s meeting with Gilles lasted 1.5 hours, during which Gilles did not express a desire to terminate the interview or a refusal to engage in the discussion. Gilles had numerous business documents, bank records, letters and emails accumulated in his apartment. During the interview, he showed Mr. Burnstein various documents to support his perceived successes and plans.

27Following Mr. Burnstein’s opinion, Joy, in her capacity as Vice-President of Gi-Las, assumed control of the management of the business. Joy continued to provide Gilles with updates on the business and with documents he requested to review. Gilles remained the President of Gi-Las until November 21, 2018.

28The evidence of the Attorneys is that between September 2017 and August 2018, they became concerned that Gilles was being taken advantage of both financially and personally.

29Gilles requested higher and more frequent sums of cash and/or was attempting to make e-transfers to individuals with whom he had no prior contact and was unable to account for the money. Gilles expressed fear that a woman was coming into his apartment and stealing from him. He was also emailing with a Russian scammer who was trying to extort money from him. Gilles hired a contractor to perform a roof repair on one of Gi-Las’s properties, despite the fact that this contractor had previously doubled the price midway through a project, threatened Gilles, demanded cash up front and had gone personally bankrupt. The work performed in July 2018 by this contractor invalidated the existing warranty on an adjoining roof. In addition, Gilles shared confidential Gi-Las information with his personal trainer and other caregivers and asked them to explain the financial information to him. As a result of this behaviour, and an unexplained disappearance of funds, on August 16, 2018, Gilles’s access to his personal bank accounts was terminated and the Attorneys started acting pursuant to the POA for Property.

30Gilles was not happy with the Attorneys’ decision to activate the 2011 POA for Property and he reached out to Mr. Jurado and asked for his help. Mr. Jurado agreed to help Gilles, charging a fee for his “services.” During his examination, Gilles could not recall when he contacted Mr. Jurado. Mr. Jurado’s invoice from August 16, 2018 to November 30, 2018 was $63,900 plus disbursements of $15,339.15 and subject to interest at 19.99%. A second invoice was provided for December 1, 2018 to February 28, 2019 in the amount of $11,700.00 and subject to interest at 12%.

31On September 7, 2018, at a meeting between the Attorneys, their counsel, Mr. Jurado and his counsel, Ms. Natividad, the parties discussed obtaining a second capacity assessment for Gilles. Dr. Francine Sarazin, a designated capacity assessor, was subsequently retained to assess Gilles’s capacity and his capacity to grant/revoke powers of attorney.

32Gilles met with Dr. Sarazin on September 28, 2018. He withdrew his consent to participate in the assessment on September 29, reinstated his consent on October 11, and met with Dr. Sarazin a second time on November 2, 2018. Dr. Sarazin produced her assessment in the form of two written reports, dated November 6 and 14, 2018. Dr. Sarazin’s conclusions were that (i) Gilles did not have the capacity to grant or revoke a power of attorney for property and that his capacity to grant or revoke a power of attorney for personal care was “borderline, at best;” (ii) Gilles was incapable of managing his property and (iii) Gilles was incapable of personal care in the areas of health and safety.

33Dr. Sarazin did not assess Gilles’s ability to manage shelter, nutrition, hygiene and clothing because Gilles’s needs in these areas have been met for several years by way of his live-in and around-the-clock caregivers.

34As part of her assessment, Dr. Sarazin obtained collateral information and documents from various people, including the Attorneys, Mr. Jurado, Dr. Levenstadt, and Gilles’s live-in caregiver, Tess. Dr. Sarazin also received collateral information regarding Gilles’s capacity from her review of the geriatric assessment reports and MOCA scores.

35Unbeknownst to the Attorneys, Gilles met with Dr. Barbara Collins on October 22 and 24, 2018. The purpose of the assessment was to provide an opinion regarding Gilles’s capacity to assign/revoke a power of attorney for property. Dr. Collins relied solely on information provided to her by Gilles, Mr. Jurado and his previous counsel, Ms. Natividad. She did not gather independent collateral information from the Attorneys, the caregivers or Dr. Levenstadt. At times, Dr. Collins stated that she had no means of independently confirming Gilles’s answers. At one point, she stated that Gilles’s answers were “plausible but I have no way of verifying their accuracy.” This was a result of Dr. Collins not having collateral information as she did not reach out to the Attorneys who could have given her access to that information; although it is assumed that Dr. Collins’s assessment would have likely been opposed by the Attorneys given that Dr. Sarazin was in the midst of her assessment. Mr. Jurado was present during both meetings with Dr. Collins and Gilles required that Mr. Jurado assist him in finding certain information.

36Dr. Collins’s conclusion was that there was insufficient evidence to overturn the presumption that Gilles was capable of assigning/revoking a power of attorney for property.

37Relying on the Collins’s assessment, on November 9, 2018, Mr. Jurado caused Gilles to execute a limited power of attorney for property purporting to appoint Mr. Rappaport and Mr. Jurado as his attorneys for property. This power of attorney was limited in duration and invalid on its face as it was witnessed by Mr. Rappaport and Mr. Jurado. On consent, it was declared invalid in the January 2019 Order of this court.

38On December 17, 2018, Gilles married Ms. Youmouri, whom he had recently met. Ms. Youmouri states that they met in September 2018 and Todd Overtveld states that they only met a few days before their purported marriage. In the days leading up to the marriage, Gilles was afraid of being moved out of his house and into a retirement residence. He therefore proposed marriage to three women, Stacy Pichette, Tess and Anya Savignac and then married Ms. Youmouri. At his examination, Gilles could not recall Youmouri’s first or last name without assistance. The validity of the marriage is subject to a separate application under the Family Law Act, R.S.O. 1990, c. F.3.

39Since August 2018, individuals have caused Gilles to purportedly execute various legal documents, letters and agreements and have prepared other draft documents on his behalf. One example was from the evidence of Gary Katz who considered an e-mail supposedly written by Gilles and was firmly of the opinion that Gilles had not written it. Mr. Katz’s experience was when Gilles writes an e-mail, it is full of mistakes and typos. Other examples of documents that Gilles was brought to sign or that were prepared for him are:

i) An Indemnity Agreement dated February 5, 2020 whereby Gilles undertakes to indemnify his lawyer Michael Rappaport, another lawyer George Windsor who has commenced claims on Gilles’s behalf, Mr. Jurado, Ms. Youmouri and others of various expenses, personal liability and other endeavours.

ii) An agreement between Gilles and Mr. Jurado whereby Gilles is purported to agree to pay Mr. Jurado for funds loaned to retain lawyers and capacity assessors and administrative support assistants on Gilles’s behalf. Gilles agrees to allow Mr. Jurado to invoice him for the “amount owed” plus $200,000 for goodwill, plus pay Mr. Jurado’s legal expenses and interest at 24% per annum. Also, Gilles purports to pay Mr. Jurado at the rate of $150.00 per hour to a maximum of $1,200.00 per day for professional and administrative services.

iii) There were also four drafts wills (December 12, 2018, February 2019, March 2019 and January 2020). The latter of these draft wills dated January 2020 went to great lengths to disinherit both Joy and Todd Overtveld.

iv) Documents which suggest that in or about November 2020, Ms. Youmouri and Mr. Jurado attempted to use the December 18, 2018 power of attorney for personal care, which had been declared invalid on consent by this court in January 2019, to obtain Gilles’s medical records from the Ottawa Hospital.

40The Attorneys claim that Gilles’s care needs are managed and met by Joy and Todd, the attorneys for personal care. Gilles receives extensive around-the-clock care, in an effort to allow him to safely remain in his home.

41The record includes numerous references to instances where Gilles has been non-compliant with his medication, where he has refused treatment or where his cognitive skills are noted as being in decline, including various references to dementia or Alzheimer’s.

Evidence of Gilles Overtveld

42The evidence provided by the Respondent, Gilles Overtveld, is based in large part on hearsay information that he has provided through his counsel and from his examination on February 5, 2021. A review of the transcript of that examination reveals that despite efforts by then counsel for Ms. Youmouri and Mr. Jurado, Mr. Rappaport, to lead Gilles to give evidence, Gilles was unable to provide much coherent evidence.

43Gilles’s counsel advises that he desperately wants to pursue the passing of accounts and have the Attorneys answer questions about how they have managed his assets and Gi-Las over the accounting period. The passing of accounts is set to resume once this Capacity Application is determined.

44Gilles has expressed through his counsel that he would oppose any further capacity assessments. He has expressed his willingness to have contact with Mr. Jurado and Mr. Windsor.

45Gilles had asked for a monthly stipend of $3,500 but the court has ordered that he receive $500 per month given that all of his expenses are otherwise paid for.

46Gilles has expressed to his counsel that he wants his former lawyer Mr. Rappaport and his friend Mr. Jurado to be paid on the invoices they have provided. He also expressed a desire to have Mr. Jurado and Mr. Windsor receive disclosure of certain financial information.

47Dr. Collins assessed Gilles on October 22 and 24, 2018 on the ability to assign and revoke a power of attorney for property. She found him capable of doing so. Dr. Collins noted that Gilles’s voice was “strong and clear.” He provided clear directions to the apartment and where to park. Dr. Collins described Gilles as an “alert, articulate, lucid and very amiable gentleman.” Dr. Collins did not see any indication of “gross cognitive disorder or dementia” or any confusion even after two two-hour interviews.

48Dr. Collins found that Gilles was able to list all of his properties off the top of his head and provide their correct addresses. Gilles knew the number of rental units per property and was quite accurate on average rent and current market value for each building. Gilles also knew that there were mortgages on the properties, and was able to provide a “fairly accurate estimate” of the total amount of the mortgages. Gilles also described his personal investments and real estate holdings. Although this capacity assessor noted that Gilles lacked precision in identifying his assets, she found that the range provided was commensurate with other financial information supplied.

49In Dr. Sarazin’s 2018 reports, Gilles repeatedly expressed concerns that Joy was trying to take over ownership of the company. He worried about Gi-Las’s mismanagement and his lack of access to personal funds. At the capacity assessment, Dr. Sarazin gave Gilles a 9-page summary (largely prepared by the Attorneys), which listed Gilles’s assets and properties. Dr. Sarazin noted that Gilles did not rely on the summary when questioned about various properties. However, the capacity assessor concluded that Gilles “significantly” overestimated revenues and holding. She found that Gilles had a “diminishing awareness” of his properties’ total value or of different items constituting his property.

50When asked about the limits on an attorney for property, Gilles stated that an attorney could freeze a bank account and agreed that one could not make a will. Gilles acknowledged that the value of his assets would be diminished if not appropriately managed. However, Dr. Sarazin concluded that Gilles’s understanding was partial because he failed to recognize that an attorney for property could abuse their authority, and on that basis found that he lacked capacity to grant or revoke a power of attorney.

51Gilles told Dr. Sarazin that it was not necessary for others to provide invoices for services as a means of monitoring funds. On cross-examination, Dr. Sarazin said that to be a “good manager,” you need to be able to account for your funds and keep invoices. When asked if one could be a bad manager of business and capable of managing property, the capacity assessor found that these issues were tied together.

52Dr. Sarazin reviewed Gilles’s medical records dating from March 2014 to June 2020 and produced a further report dated August 21, 2020 (“the August 2020 Opinion”). For the period after August 2018, Dr. Sarazin concluded that it was not necessary to undertake another capacity assessment based on the lack of evidence “to reflect improved cognitive functioning since previously assessed for capacity.”

53Dr. Levenstadt is Gilles’s family physician. He did not assess Gilles’s capacity for personal care or property and did not make a declaration of incapacity at any time for the purpose of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.

54However, Dr. Levenstadt did assess Gilles on his capacity to release his medical chart on May 27, 2019 and found him capable of so doing.

55Gilles disputes that the mental testing results indicate a permanent cognitive decline but no expert testified in support of such a position. However, he does not dispute that the records indicate issues surrounding Alzheimer’s disease and dementia.

Evidence of Mr. Jurado and Ms. Youmouri

56Respondents Jurado and Youmouri have maintained, as part of their evidence, that Gilles’s relationship with his children was strained prior to the commencement of these proceedings, especially with Joy. They blame Joy for being the architect of these proceedings. They maintain that although Gilles has had some health issues, he maintains the ability to make healthcare decisions for himself.

57Jurado and Youmouri dispute that Gilles suffers from Alzheimer’s disease. They acknowledge Dr. Levenstadt’s evidence where he states: “Dementia, likely predominantly vascular, with mixed Alzheimer’s disease considered in the past.” They state that his medical record does not support a finding that Gilles suffers from Alzheimer’s disease.

58In 2017, Joy began refusing to provide Gilles with rental reports and statements. According to her, Gilles’s capacity was at issue for the first time.

59Mr. Burnstein’s original instructions from the Attorneys were to conduct an assessment of Gilles for the purposes of the Canada Revenue Agency (“CRA”). Mr. Burnstein is purported to have assessed Gilles without his knowledge.

60Jurado and Youmouri rely on the fact that Gilles has not been diagnosed with dementia according to Dr. Sarazin.

61They state that the Applicants have restricted Rachida’s involvement and interaction with Gilles, including changing the locks to her home with Gilles and blocking Gilles from receiving phone calls from her.

62Jurado and Youmouri believe that Gilles’s allegations against the Applicants in other proceedings have led to the retaliatory response of the Applicants in bringing this Application to essentially silence Gilles and isolate him from those whom he shares his closest social bonds.

Issues

63The issues as raised by the parties in their materials differ from the Amended Notice of Application. In the Amended Notice of Application, the issues are set out as follows:

i) A declaration that Gilles is incapable of managing property

ii) A declaration that Gilles is incapable of personal care;

iii) A declaration that any power of attorney for property executed after January 30, 2019 is invalid/void ab initio;

iv) A declaration that any power of attorney for personal care executed by Gilles after January 30, 2019 is invalid/void ab initio;

v) An order that no further assessment of Gilles be conducted unless ordered by the Court;

vi) In the alternative, an order directing a further assessment of Gilles’s capacity be conducted by Dr. Richard Shulman; and

vii) Other relief that the Applicants undertook not to pursue at this time.

64At the hearing of the Application, the parties raised the following issues in their facta:

i) Is this Capacity Application an abuse of process?

ii) Is Gilles capable of managing property pursuant to s. 6 of the SDA? If not, as of what date?

iii) Is Gilles capable of managing his personal care pursuant to s. 45 of the SDA? If not, as of what date?

iv) Is Gilles capable of granting/revoking a continuing power of attorney pursuant to s. 8 of the SDA? If not, as of what date?

v) Is Gilles capable of granting/revoking a power of attorney for personal care pursuant to s. 47 of the SDA? If not, as of what date?

vi) If Gilles is incapable of managing property or his personal care, or both, who should make decisions on his behalf?

65As the Applicants did not pursue all of the declaratory relief set out in paras. a) to f) of the Amended Notice of Application, I will only deal with those claims pursued at the hearing of this Application.

Applicable Law

66At law, there is a presumption of capacity.¹

67The onus is on the moving party alleging incapacity.²

68Consideration of the law should begin with the instructive comment of Low J. in Abrams v. Abrams³ where he stated:

An application for a declaration of incapacity under the SDA is an attack on the citizen’s autonomy and, in the event of a finding of incapacity, which is a judgment in rem, results in the abrogation of one or more of the most fundamental of her rights: the right to sovereignty over her person and the right to dominion over her property.

69The relevant provisions of the SDA are:

Incapacity to manage property

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.

Continuing power of attorney for property

7 (1) A power of attorney for property is a continuing power of attorney if,

(a) it states that it is a continuing power of attorney; or

(b) it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property. 1996, c. 2, s. 4 (1).

Same

(2) The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will. 1992, c. 30, s. 7 (2).

Capacity to give continuing power of attorney

8 (1) A person is capable of giving a continuing power of attorney if he or she,

(a) knows what kind of property he or she has and its approximate value;

(b) is aware of obligations owed to his or her dependants;

(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) knows that the attorney must account for his or her dealings with the person’s property;

(e) knows that he or she may, if capable, revoke the continuing power of attorney;

(f) appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her. 1992, c. 30, s. 8 (1).

Capacity to revoke

(2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one. 1992, c. 30, s. 8 (2).

Validity despite incapacity

9 (1) A continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property. 1992, c. 30, s. 9 (1).

Same

(2) The continuing power of attorney remains valid even if, after executing it, the grantor becomes incapable of giving a continuing power of attorney. 1992, c. 30, s. 9 (2).

Determining incapacity

(3) If the continuing power of attorney provides that it comes into effect when the grantor becomes incapable of managing property but does not provide a method for determining whether that situation has arisen, the power of attorney comes into effect when,

(a) the attorney is notified in the prescribed form by an assessor that the assessor has performed an assessment of the grantor’s capacity and has found that the grantor is incapable of managing property; or

(b) the attorney is notified that a certificate of incapacity has been issued in respect of the grantor under the Mental Health Act. 1996, c. 2, s. 5.

Incapacity for personal care

45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 45; 1996, c. 2, s. 29.

Capacity to give power of attorney for personal care

47 (1) A person is capable of giving a power of attorney for personal care if the person,

(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

(b) appreciates that the person may need to have the proposed attorney make decisions for the person. 1992, c. 30, s. 47 (1).

Validity

(2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care. 1992, c. 30, s. 47 (2).

Capacity to revoke

(3) A person is capable of revoking a power of attorney for personal care if he or she is capable of giving one. 1992, c. 30, s. 47 (3).

Capacity to give instructions

(4) Instructions contained in a power of attorney for personal care with respect to a decision the attorney is authorized to make are valid if, at the time the power of attorney was executed, the grantor had the capacity to make the decision. 1992, c. 30, s. 47 (4).

70Capacity is, at its core, a cognitive function. It has two fundamental components: (i) ability to understand information relevant for making decisions; and (ii) ability to appreciate the consequences of a decision. Capacity is function specific.⁴

71The Supreme Court of Canada in Starson v. Swayze,⁵ explained the difference between understanding and appreciation in the context of treatment decisions as follows:

16 The first component of the test for capacity is that the person be “able to understand the information that is relevant to making a decision about the treatment” at issue. The person must be capable of intellectually processing the information as it applies to his or her treatment, including its potential benefits and drawbacks. Two types of information would seem to be relevant: first, information about the proposed treatment; and second, information as to how that treatment may affect the patient’s particular situation. Information relevant to the treatment decision includes the person’s symptoms and how the proposed treatment may affect those symptoms. The patient must be able to acknowledge his or her symptoms in order to be able to understand the information relevant to a treatment decision. Agreement with a medical professional’s diagnosis per se, or with the “label” used to characterize the set of symptoms, is not, however, required.

17 The second component of the test is that the person be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. The appreciation test has been characterized as more stringent than a mere understanding test, since it includes both a cognitive and an affective component: R. Macklin, “Some Problems in Gaining Informed Consent from Psychiatric Patients” (1982), 31 Emory L.J. 345. To be capable, a patient must be able not only to understand the relevant information, but also to “appreciate the reasonably foreseeable consequences of a decision or lack of decision”: s. 4(1) of the HCCA. “An understanding criterion focuses on a patient’s ability to acquire information, while appreciation focuses on the patient’s ability to evaluate information”: Berg et al., Informed Consent: Legal Theory and Clinical Practice (2nd ed. 2001), at p. 102. Appreciation seizes upon the ability of the person who is able to understand the facts (the first component) to weigh or judge and thus evaluate the foreseeable consequences of accepting or refusing treatment (the second component). Arbour J.A. (as she then was) described this distinction as follows in Khan v. St. Thomas Psychiatric Hospital (1992), 1992 7464 (ON CA), 7 O.R. (3d) 303 (C.A.), at p. 314 (citing a Review Board’s comment): “there are situations where a person may understand in an intellectual sense the subject-matter in respect of which consent is requested and further understand the nature of the illness for which treatment is proposed and understand the treatment proposed, but his or her ability to appreciate the same as it relates to themselves may be impaired by the mental disorder”.

18 Commentators have identified three “common clinical indicators” of a person’s ability to appreciate the consequences of accepting or declining treatment: “whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her; whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life; [whether] the person’s choice is not substantially based on a delusional belief”: B. F. Hoffman, The Law of Consent to Treatment in Ontario (2nd ed. 1997), at p. 18. These indicators provide a useful framework for identifying what “ability to appreciate” means in concrete terms.

19 Like understanding, appreciation does not require agreement with a particular conclusion, professional or otherwise. A patient may look at the pros and cons of treatment and arrive at a different conclusion than the medical experts. Nor does it amount to a “best interests” standard. A patient who is capable has the right to refuse treatment, even if that treatment is, from a medical perspective, in his or her best interest. It is crucial to guard against interpreting disagreement with a particular diagnosis or proposed treatment plan as itself evidence of incapacity. But just as it is important to protect patients’ capable wishes to refuse treatment, so is it important to ensure that patients who are not capable of making treatment decisions receive appropriate treatment.

72The Court in Starson cautioned that appreciation does not mean the decision must be in the person’s “best interests.”

73In Elmi v. Hirsi&autocompletePos=1),⁶ Justice Fairburn wrote:

Individual autonomy is to be respected, fostered and encouraged. Whether with respect to property or personal care, an adult individual is presumed to be in a position to make decisions about their own current and future circumstances. The dignity and integrity of the individual depends upon this presumption. It should not be lightly interfered with. Any usurping of an individual’s right to self-determination must be exercised sparingly and only on the basis of clear evidence.

74The test for incapacity is an objective one.⁷

75As stated by Strathy J. in Kischer v. Kischer,⁸ “The assessment process is an important tool for the court in the discharge of its responsibility to protect the vulnerable. It enables the court to obtain an objective, independent and expert assessment of the individual’s capacity, free from the partisan and subjective perceptions of the parties.”

76As noted by Penny J. in Adler, normally, a capacity assessment would tend to fall within the participant expert category of opinion evidence. Such is the case here where the assessments were prepared before the litigation process was initiated. In the present case, both Mr. Burnstein and Dr. Sarazin have filed affidavits that acknowledge their respective duties under Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and they were cross-examined. Dr. Collins has not provided such an acknowledgement.

77While Dr. Collins’s capacity assessment was prepared prior to the commencement of litigation, there was clearly a dispute ongoing. She did not consult the family and was aware of the Burnstein Letter of Opinion. It would have been reasonable for Dr. Collins to assume that her assessment may be in contemplation of litigation but she never questioned whether this was the case. It is certainly not the same situation as in Adler where the capacity assessments were prepared as part of litigation. However, I question why Dr. Collins did not provide the acknowledgment, as her report is hearsay evidence. While not determinative, the circumstances surrounding Dr. Collins’s report are factors to be considered along with the rest of the evidence. The admissibility of Dr. Collins’s report will be dealt with later in this decision.

Analysis

Abuse of Process

78Jurado and Youmouri advance as their primary argument that this capacity application is an abuse of process. They highlight that there has been no challenge to the Attorneys' authority to act under the 2011 POAs and as such, there is no need for the relief sought by the Applicants.

79Jurado and Youmouri rely on the guidance of the Supreme Court of Canada in Toronto (City) v. Cupe., Local 79⁹ which identifies the doctrine of abuse of process as a way to prevent the violation of principles such as judicial economy, consistency, finality and the integrity of the administration of justice.

80In that same vein, the Ontario Court of Appeal in the Catalyst Capital Group Inc. v. VimpelCom Ltd.¹⁰ also considered the doctrine and opined that it seeks to avoid wasting judicial resources and to avoid the risk of inconsistent findings.

81Jurado and Youmouri also rely on s. 22 of SDA to support their position that there is no requirement for the declaratory relief sought in this Application given that the 2011 POAs are in place and there has been no challenge to them.

82I disagree. Since the period of Mr. Burnstein’s capacity assessment, there have been numerous events surrounding Gilles which raise questions around his decision-making ability and which challenge the authority of the Attorneys. While the Attorneys involved Mr. Jurado in the capacity assessment process with Dr. Sarazin, the same cannot be said of Mr. Jurado and Ms. Youmouri who have taken numerous steps which impact Gilles’s rights; they have also intentionally excluded the Attorneys of the validly granted 2011 POAs. I highlight the following:

i) Dr. Collins was caused to do an assessment without involving the Attorneys, being Gilles’ children, and this while Dr. Sarazin was already doing her assessment which Mr. Jurado was participating in;

ii) Gilles married Ms. Youmouri on December 17, 2018, shortly after meeting her, without the knowledge or involvement of his children;

iii) Gilles signed two new powers of attorney in November and December 2018, both which have since been declared invalid. The invalid Power of Attorney for Personal Care was prepared the day after his marriage to Ms. Youmouri. These new POAs completely removed his children from Gilles’s decision-making and care;

iv) Gilles was assisted to prepare several draft new wills which provided for a sharing of his estate between Ms. Youmouri, Todd and Joy (subject to certain conditions). There was also a fourth draft will which proposed to disinherit Gilles’s children entirely;

v) Gilles was encouraged to sign an Indemnity Agreement purporting to indemnify certain individuals for expenses involving numerous open-ended actions and this was done without the benefit of independent legal advice. Some of the indemnitees were individuals who clearly had personal interests in having the Indemnity Agreement signed by Gilles.

83The Attorneys have raised significant objections to these events impacting Gilles and which post-date the Burnstein Letter of Opinion. There is a clear need to consider the various assessments to determine if and when Gilles is found to be incapable and if and when he is deemed to longer be able to grant/revoke a power of attorney. Otherwise, the apparent disputes to control Gilles’s interests will simply continue. Also, it is obvious that Gilles’s capacity and his ability to grant or revoke a power of attorney is relevant going forward given the numerous ongoing proceedings. Finally, there is also a risk that Gilles may have signed other documents which have not been disclosed to the Attorneys and which may impact his rights.

84I further note that my review of all the evidence filed in this proceeding easily allows me to add that Gilles is a very vulnerable individual. He is a 93-year-old-man who had a succession plan in place dating back to 2011, at a time when his capacity was not in issue. When that succession plan was put in place with his daughter assuming the leadership of his corporate interests, as he had planned, he has now taken steps, with the assistance of others, to attempt to completely revoke his succession plan and, to a large extent, cut out those who he previously trusted, including his children. There are red flags that are raised surrounding various events which have transpired since 2017 and it is entirely proper for the Attorneys to have come to court seeking some form of guidance.

85There is no issue of judicial economy, wasting judicial resources or the integrity of the administration of justice in these proceedings. To the contrary, this Application and the related proceedings clearly highlight an ongoing power struggle to control Gilles’s assets and personal care. The situation that currently exists cries out for judicial intervention and this proceeding is certainly not an abuse of process.

Preliminary Issues on Capacity

86The analysis beings with three issues surrounding admissibility of evidence: the Burnstein Letter of Opinion, Dr. Collins’s assessment and Gilles’s medical records. Each of these topics formed part of post-hearing submissions from the parties.

i) Burnstein Letter of Opinion

87On November 6, 2017, Gilles was assessed by Mr. Burnstein. The evidence suggests that the initial purpose of the assessment was to deal with CRA issues by way of a Letter of Opinion on capacity.

88While this decision was under reserve, the court sought further submissions from the parties as to Mr. Burnstein’s need to comply with s. 78 of the SDA and the impact that this would have on the evidentiary value of the Letter of Opinion.

89In his evidence, Mr. Burnstein was clear that he was only performing a letter of opinion and not a capacity assessment. The authority for that distinction was unclear. However, Mr. Burnstein was clear that he did not need to comply with s. 78 of the SDA as he only prepared a letter of opinion.

90Mr. Burnstein’s report is identified as a “Letter of Opinion on Capacity to Manage Property and all Domains of Personal Care.” Mr. Burnstein begins by relying on the “criteria for capacity to manage property as defined by” the SDA. However, the SDA does not distinguish between a capacity assessment and a letter of opinion. Some authorities recognize the difference between the two.

91In Re Koch, Justice Quinn encountered a similar situation where an assessor failed to provide the warning found in s. 78(2) of the SDA when performing an assessment under the Health Care Consent Act. In obiter, Justice Quinn found that the failure to warn rendered the assessor’s findings of incapacity a nullity.

92In Lummack v. Campbell et. al.¹¹, the difference between a letter of opinion and a capacity assessment was addressed by the assessor who stated that a “Letter of Opinion does not require the Capacity Assessor to follow the guidelines outlined by the Ontario Government in the Substitute Decisions Act.”

93The Respondents’ challenge to the Burnstein Letter of Opinion seeks for the court to consider the Letter of Opinion in light of the procedure set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 but no such submission was made for either the Dr. Sarazin or Dr. Collins assessments.

94When considering the criteria for admitting expert evidence under the Mohan test, the evidence must be: (1) relevant; (2) necessary; (3) there must be an absence of an exclusionary rule; and (4) the expert must be properly qualified.

95I am of the view that the Burnstein Letter of Opinion clearly meets the Mohan test for relevance and necessity. As with the opinions stated by both Dr. Sarazin and Dr. Collins, the issue of capacity is clearly relevant and necessary to these proceedings. These experts are qualified capacity assessors who play a vital role in assessing the relevant criteria under the SDA and guide the court in determining if those criteria are met. These are functions that a judge would often do with the benefit of a qualified expert.

96Also, no issue was taken with Mr. Burnstein’s qualifications and no party raised an exclusionary rule.

97However, this does not end the analysis. As set out in White Burgess Langille Inman v. Abbott and Haliburton Co.,¹² beyond the initial threshold requirements of admissibility, the court must move to the gatekeeping stage and balance the potential risks and benefits of admitting the evidence. It is at this gatekeeping stage that the court must further consider the methodology of a Letter of Opinion and its purpose in this case – being a finding of incapacity. I agree with the Respondents that given that Mr. Burnstein is opining on the ultimate issue of capacity as at September 6, 2017, more scrutiny should be given to the ultimate opinion on capacity.

98After having given the parties an opportunity to make additional submissions on the issue, I conclude that the Burnstein Letter of Opinion was properly prepared as an opinion of capacity which was outside of the requirements of the SDA. However, the Applicants seek to use the Burnstein Letter of Opinion in the same manner as Dr. Sarazin’s report is being used: as a capacity assessment under the SDA, which brings the court to make findings of capacity in terms of property and personal care. In that context, the Burnstein Letter of Opinion would have to demonstrate compliance with s. 78 of the SDA. While I am not prepared to go so far as label Mr. Burnstein’s findings of incapacity a nullity, the purpose for which it was prepared and the weight to attribute to it are relevant to my analysis. If full weight is to be given to the Burnstein assessment as requested by the Applicants, then compliance with s. 78 of the SDA was required. As such, I am unable to accept Mr. Burnstein’s ultimate opinions on capacity and I would exercise my gatekeeper function and ignore those opinions on capacity.

99The Letter of Opinion and the factual information it provides are certainly admissible as evidence in this proceeding as collateral evidence of Gilles’s condition at the relevant time. As such, the observations made by Mr. Burnstein still form part of the evidentiary record and his evidence on Gilles’s intellectual capabilities at the time of his assessment are still relevant to the issues before the court. Mr. Burnstein’s evidence that Gilles sat down with him willingly and was open to discussing his personal and corporate affairs was not challenged. The information obtained by Mr. Burnstein, the evidence of his meeting with Gilles and the answers given are admissible evidence which were also tested in cross-examination. That evidence will be considered along with the other collateral evidence to assess Gilles’s capacity as at September 6, 2017.

ii) Dr. Collins’s Assessment

100The Applicants have alleged that Dr. Collins’s report is inadmissible as there has not been compliance with the Evidence Act, R.S.C., 1985, c. C-5 or the Rules of Civil Procedure. I have considered the submissions of the parties in this regard.

101While the Applicants challenge the Dr. Collins’s report as hearsay, which it is, the reality is that the Collins report has formed part of these proceedings since the beginning. With that said, I agree with the Applicants that Dr. Collins’s report should have been properly filed as evidence as part of an affidavit or as a medical report under s. 52 of the Evidence Act. This was not done but it was always an option for the Applicants to seek to examine Dr. Collins; however, I do not place an onus on them to have done so.

102I conclude that the Dr. Collins report is admissible as a non-party expert opinion. I am satisfied that the report has been disclosed at an early date, that the opinion was given based on Dr. Collins’s observations during her assessment and that she formed her opinion as part of the ordinary course of her duties as a qualified capacity assessor: see Westerhoff v. Gee Estate, at para. 60.¹³

103While compliance with s. 52 of the Evidence Act was required, I exercise my discretion to conclude that the prejudicial effect of excluding the Dr. Collins report is greater than the prejudice to the Applicants of including it. It is clear that the Applicants were fully aware of the Dr. Collins report and the intention of the Respondents to rely on it. The Applicants could have moved to examine Dr. Collins on the content of the report and the circumstances of its preparation. They chose not to do so and raised their objection with the court at the hearing of the Application. If the Applicants wanted to properly object, given all the preliminary appearances that have taken place in this proceeding, the Applicants should have put the Respondents on notice and moved to exclude the Dr. Collins report. I conclude that the Applicants were satisfied with leaving the report as such, a limited opinion on the ability to assign/revoke a POA for property and this is how it will be received by the court.

104Dr. Collins’s assessment was not a full capacity assessment. However, the information contained therein should be considered by the court when assessing Gilles’s capacity and his ability to grant/revoke a power of attorney, as collateral information.

iii) Gilles’s Medical Records

105The admissibility of Gilles’s medical records is challenged by Jurado and Youmouri. Written submissions were made following the hearing of the Application.

106Briefly, the most relevant medical records relied upon in this Application contained opinion evidence and thus these records required notice under s. 52 of the Evidence Act. They did not qualify as business records under s. 35 of the Evidence Act. These records relate principally to the records of Dr. Levenstadt and Dr. Songyang Yu together with other geriatric assessments and medical records from various hospital attendances.

107While the Respondents argue that s. 52 of the Evidence Act was not respected, I disagree for the following reasons:

i) Notices under the Evidence Act were served on the Respondents in March 2021 with respect to the productions received in 2020. This included the clinical notes of Dr. Levenstadt to October 10, 2020;

ii) The parties had the opportunity to ask written questions of Dr. Levenstadt and answers were provided and form part of the record;

iii) The Applicants then made attempts to get Gilles’s updated medical records and eventually received the supplementary records on February 11, 2022. On that date, the Applicants confirmed their intention to rely on the supplementary records at the hearing of this Application.

iv) As of February 11, 2022, the Respondents were on notice and had the opportunity to request to examine the medical practitioners in respect of the supplementary records but made no such request;

v) On March 1, 2022, further formal notices under the Evidence Act were provided and these included the supplementary records of Dr. Levenstadt, Dr. Yu and other records relevant to Gilles’s mental health;

vi) No further request was made to examine Dr. Levenstadt, Dr. Yu or any other practitioner.

108I am satisfied that all of the medical records relied upon have been the subject of proper notices under either s. 35 or s. 52 of the Evidence Act. Regardless, the Respondents had ample opportunity to request that the authors be made available for cross-examination and could have also requested an adjournment to allow for such cross-examination. This was not done and the medical records are admissible.

Is Gilles capable of managing property pursuant to s. 6 of the SDA? If not, as of what date?

109The analysis of Gilles’s capacity to manage property begins with the court reminding itself of the presumption of capacity.

i) Finding of Incapacity as at November 6, 2018

110Turning to the first capacity issue, being Gilles’s capacity to manage property, I begin with Dr. Sarazin’s capacity assessment dated November 14, 2018, I conclude that her opinion has not been significantly challenged. Her methodology complied with the requirements of the SDA and her conclusions are accepted by the court. While the Responding Parties have suggested that the assessment should have gone further in certain areas, that there may be some background information missing surrounding the information that Gilles had at the time of the assessment and that she did not sufficiently explore Gilles’s understanding of the consequences of certain opinions stated, I am satisfied that Dr. Sarazin’ conclusion is valid for the following reasons:

i) She is a qualified neuropsychologist with 25 years of experience assessing cognitive abilities of individuals. Since 1995, she has been a designated capacity assessor under the SDA. Her qualifications were not challenged. Her opinion has withstood cross-examination by the Respondents.

ii) Dr. Sarazin informed herself with much collateral information, including Dr. Levenstadt’s clinical impressions.

iii) In terms of compliance with the requirements of the SDA and methodology, there has not been a critique of her findings by any health professional. While the Respondents each try to advance challenges to her methodology or conclusions, those are not made out. Where Dr. Sarazin has agreed with certain suggestions put to her in cross-examination, there was no significant challenge to her conclusions.

iv) The Respondents’ attempt to challenge Dr. Sarazin on the fact that the financial information provided to her for the capacity assessment may have been incorrect, there is no factual basis to support such a hypothesis. Statutory declarations have been provided by the Attorneys that the financial information was accurate. While Gilles had documents available to assist him, right or wrong, he was unable to make use of them to properly estimate the value of his holdings.

v) The Respondents’ main challenge seems to be to Dr. Sarazin’s August 2020 opinion on the need for a further capacity assessment. That opinion is of lesser relevance to the initial findings of incapacity.

111Turning to the assessment of Dr. Collins, its focus was to opine on Gilles’s ability to assign/revoke a continuing power of attorney under s. 8 of the SDA; however, her observations are relevant to the issue of capacity.

112I am unable to attribute the same weight to Dr. Collins’s assessment as I do to Dr. Sarazin’s assessments for the following reasons:

i) Dr. Collins was aware of the Burnstein Letter of Opinion and she proceeded with her assessment without consulting the Attorneys. This raises concerns for the court that she limited her assessment to the information that was given to her by Gilles, Mr. Jurado and Ms. Natividad.

ii) Dr. Collins failed to obtain the proper collateral information from those who cared for Gilles on a day-to-day basis. This should have included the Attorneys, but to a minimum, the caregivers who were with Gilles on a day-to-day basis;

iii) I agree with the Applicants that as a consequence of failing to obtain collateral information, and in particular the accurate financial information surrounding Gilles’s holdings, she was unable to verify many of Gilles’s answers;

iv) The presence of Mr. Jurado by itself is not fatal. However, the fact that Mr. Jurado is clearly noted as having assisted Gilles with some of the information asked of him is of concern.

v) The weight to be provided to Dr. Collins’s observations and opinions is limited as she was not tendered as a witness before this court. She did not meet the requirements of Rule 53.01 of the Rules of Civil Procedure as she failed to provide an affidavit and did not acknowledge her duty as an expert. On its own, this factor is not sufficient to disqualify Dr. Collins as her capacity assessment was not performed strictly within the litigation process and I have concluded that it is admissible as the opinion of a non-party expert. However, it was done with the knowledge of an ongoing dispute of capacity given the Burnstein Letter of Opinion and the context was obviously that of a dispute on capacity between the family members and those who retained her. The failure of Dr. Collins to have provided the acknowledgement of experts’ duty raises issues surrounding her impartiality.

113Finally, the evidence surrounding the Sarazin capacity assessment and the Collins assessment is not comparable. Dr. Sarazin has sworn an affidavit for this proceeding and has been cross-examined on her assessment of Gilles, the information she gathered and her conclusions. Dr. Sarazin’s assessment has withstood the challenges of litigation and merits significant weight.

114The Respondents have attempted to argue that Dr. Sarazin did not go far enough in her questioning with Gilles. They argue that she did not sufficiently explore areas of concern to allow Gilles to further explain himself. On cross-examination, she candidly admitted she could have gone further in certain areas but that it did not change her overall impressions.

115I have no difficulty in concluding that Gilles was incapable of managing property since at least November 6, 2018.

ii) Finding of Incapacity as at September 6, 2017

116I now turn to the period from September 6, 2017 to November 5, 2018. This requires an analysis of the evidence of incapacity as at September 6, 2017.

117I begin with the Burnstein opinion on capacity. In his opinion, Mr. Burnstein certainly recognized the obligation in a capacity assessment to consider the requirements to understand and to appreciate. He found that Gilles did not have an understanding of his present-day financial circumstances and was not able to appreciate the consequences of certain decisions on his ownership portfolio. These findings on incapacity are not relied upon given the failure to comply with s. 78(2) of the SDA.

118Mr. Burnstein highlighted that Gilles did not have any memory of having previously signed powers of attorney and did not appreciate that his attorneys could make decisions for him. He found Gilles to be vulnerable to potential financial exploitation or abuse by unscrupulous people. Of note, Mr. Burnstein’s evidence from his meeting with Gilles was also tested on cross-examination.

119Without going his entire Letter of Opinion, I note that Mr. Burnstein provided the following information from his interaction with Gilles:

i) Gilles did not know if the family trust still existed;

ii) He did not know the difference between the tax department and RBC and denied that he was involved in a tax audit;

iii) He was not able to properly estimate the value of his real estate holdings and could not remember amounts or figures;

iv) He could not appreciate the financial condition (declining value of its assets) of his business.

120The collateral evidence also supports a finding that Gilles began suffering a decline is his health and cognitive functions since 2014 when he suffered an acute middle cerebral artery stroke. Joy Overtveld testified that following the stroke, Gilles began exhibiting cognitive changes, including decreased judgment and decision-making, diminished multitasking abilities, tangential thought processes and changes to his personality. Notwithstanding, Gilles continued to make all decisions related to Gi-Las and his personal assets, including a share transfer in December 2016 which transferred the controlling shares of Gi-Las to Joy and Todd.

121In February 2017, Gilles suffered a fall and became bedridden and housebound. Joy and Todd testified that Gilles suffered a precipitous cognitive and behavioural decline from February 2017 to July 2017. In the spring of 2017, Gilles could no longer remember to take his medications without supervision. By May 2017, Gilles had expressed concerns himself about his memory and the Attorneys began acting pursuant to the POA for Property in mid-2017. He could not remember from one day to the next what his caregiver had done.

122Much of the evidence provided by Joy Overtveld, Todd Overtveld and Gary Katz has been criticized by Mr. Jurado as being in bad faith. I reject this view. Having considered the evidence of these witnesses, I am satisfied that it is the best available evidence of Gilles’s cognitive state since 2014. I highlight the following:

i) In or around 2014, shortly after his stroke, a physician at the Stroke Clinic diagnosed Gilles as suffering from dementia. He was required to surrender his driver’s licence;

ii) In early to mid 2017, Gilles would complain about not getting his monthly financial reports from Gi-Las despite the fact that he was actually receiving them;

iii) In June 2017, Gilles refused to provide funds to pay outstanding taxes and then changed his mind two days later;

iv) By mid 2017, Todd Overtveld testified that Gilles had great difficulty in working with his tablet for emails, e-transfers and other hobby projects. He would lose track of what he was working on and require assistance.

v) It was also during mid 2017 that Gilles began questioning Joy’s work in running Gi-Las. He would be critical of Joy’s work and it was Todd’s view that this criticism was not warranted. Todd has stated his view that Joy has worked very hard for Gi-Las and that since 2017, Gilles has not recognized her efforts.

vi) In August 2017, Gilles tried to hire an inexperienced property manager.

123I am of the view that the evidence of Gary Katz is also significant collateral evidence of Gilles’s cognitive state. Mr. Katz is not a beneficiary under any will and he does not stand to personally benefit from Gilles’s decline in capacity. To simply be paid for one’s work as an accountant or receiving normal trustee compensation does not in my view place an attorney in a conflict with his client. Of particular note, Mr. Katz testified that since fall of 2017, he noticed that Gilles’s cognitive and behaviour abilities were steadily declining.

124Of particular relevance, Mr. Katz testified that as of 2017, he noticed that conversations with Gilles would often repeat as if he had not been a party to the previous conversation. He would repeat stories and often change circumstances. Mr. Katz also described the incident in the fall of 2017 when Gilles rehired a contractor with whom Gi-Las had had negative dealings in the past. The work was done poorly and the roof in question had to be redone at an additional cost of $40,000 because the contractor’s work invalidated the warranty on an adjacent property.

125The circumstances surrounding the Burnstein assessment resulted from a recommendation by Mr. Katz that a plan needed to be in place to arrange for Gi-Las succession and deal with an ongoing CRA audit. The Attorneys retained a family business practitioner who was unable to put a plan in place because Gilles was unable to contribute to the conversations with the practitioner. This led to the Attorneys collectively deciding to have Gilles assessed by Mr. Burnstein.

126Mr. Katz described the information he provided to Mr. Burnstein for his assessment. This included Gilles’s practice of micromanaging Joy, questioning her decisions and his frequent calls to Mr. Katz’s office, sometimes 10-13 times per day. Mr. Katz also described how later in 2018, his firm could no longer attend at Gilles’s residence to present the financial information given Gilles’s difficulties. That accountant said Gilles was half naked and saying things that made it inappropriate to have an accountant attend with Gilles in that environment.

127The affidavits of Tito Jurado and Rachida Youmouri were also reviewed to assess the collateral information surrounding Gilles’s capacity in or about September 2017. Ms. Youmouri did not know Gilles at that time and cannot assist. Mr. Jurado provided no evidence of Gilles’s cognitive abilities at that time in either of his affidavits dated October 30, 2019 and December 14, 2020. Much of the evidence in that affidavit is hearsay or is information that Mr. Jurado has on information and belief, without stating the source of the information. Unfortunately, Mr. Jurado’s evidence does not assist the court in assessing collateral information about Gilles’s cognitive state at the time of the Burnstein assessment.

128Much was made by the Respondents as to whether Gilles had been formally diagnosed with Alzheimer’s disease or dementia. To begin, I acknowledge that a diagnosis of dementia is not determinative of incapacity. It is one piece of evidence to be considered amongst others.

129The Applicants rely on the evidence of Gilles’s physician, Dr. Levenstadt, who has confirmed the diagnosis of Alzheimer’s dementia together with delirium and hallucinations. Dr. Levenstadt’s chart notes dated August 16, 2018 read as follows: “I explained that his scores reflect mild-mod dementia, however he can likely consent to some medical decisions but to not others and we would have to treat each decision differently.” Dr. Levenstadt’s written answers to questions were that Gilles suffered from dementia since 2018, likely a mixed subtype (vascular and Alzheimer’s).

130While the Respondents oppose such a conclusion, this evidence is consistent with the assessments of both Mr. Burnstein and Dr. Sarazin.

131Going forward, the Respondents have maintained that Gilles remains capable and that he suffers from no incapacity. This is inconsistent with much of the medical evidence that highlights the presence of dementia and cognitive challenges. This is also very present in much of the collateral evidence that is before the court from various sources. Sadly, the transcript from Gilles’s examination conducted February 5, 2021 illustrates the extent to which Gilles is not able to recall the history of what has transpired since the fall of 2017. While I appreciate that this is not the test for capacity, the transcript demonstrates the extent to which Gilles is unable to maintain a conversation about these events and this is relevant to my analysis. During that examination, Mr. Rappaport, the lawyer for Mr. Jurado and Ms. Youmouri, is constantly leading Gilles to provide evidence that Gilles clearly does not recall. He cannot recall Ms. Youmouri’s name, he does not recall what was discussed at his assessment by Mr. Burnstein, he is not able to recall what has transpired in these proceedings or relevant events such as when he tried to sign new powers of attorney or even a new will. Even with all the leading questions posed by Mr. Rappaport, Gilles is not able to follow the topics on which he was questioned.

132In considering all the evidence that can be of assistance to the court in assessing Gilles’s cognitive state in the fall of 2017, I conclude that as of September 6, 2017, he was unable to understand information relevant for making decisions and that he was unable to appreciate the consequences of a decision.

133Specifically, I am satisfied that as of September 6, 2017, Gilles did not have a working understanding of his financial circumstances. He was micromanaging Joy in her operational decisions for a business with significant assets, he was not retaining the information that was being given to him on a monthly basis and was even unaware that he had previously signed powers of attorney. He denied having knowledge that he was then facing an audit in the fall of 2017 which was the main reason why Mr. Burnstein was asked to do the assessment.

134I conclude that he was impaired in his ability to receive and process financial information and understand the decisions that needed to be made. Furthermore, he lacked the ability to appreciate the consequences of his financial decisions by refusing to take the steps that were recommended to him to rectify the financial circumstances surrounding the way Gi-Las was being operated at that time. I am satisfied that the criteria set out in s. 6 of the SDA has been met and that Gilles’s incapacity has been established as of September 6, 2017.

Is Gilles capable of managing his personal care pursuant to s. 45 of the SDA? If not, as of what date?

135Section 45 of the SDA states: “A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

136This criterion concerns the ability to understand information that is relevant to making decisions for personal care or not being able to appreciate the consequences of a decision or lack of decision.

137The simple fact that an elderly person has medical issues does not equate to evidence of capacity issues. There must be evidence that the person requires a substitute decision-maker for treatment decisions: see Erlich v. Erlich.¹⁴

i) Finding of Incapacity as at November 6, 2018

138During her capacity assessment, Dr. Sarazin found that Gilles failed both parts of the capacity test as it relates to personal care, in the area of health and safety. There has been no real challenge to her findings in terms of personal care.

139As previously stated in the analysis on capacity to manage property, the evidence is that Gilles’s cognitive abilities worsened in 2017 and 2018 leading to the capacity assessment performed by Dr. Sarazin. While I do not intend to go over the entire analysis in terms of personal care as set out in the November 6, 2018 and November 14, 2018 assessments, I note that Dr. Sarazin relied on the following:

i) There had been a diagnosis of dementia by his former primary physician which was included in a referral to the Geriatric Outreach Assessment Team.

ii) Repeated cognitive screening assessments with the Montreal Cognitive Assessment have shown a gradual decline in mental abilities.

iii) Gilles lacked insight into his cognitive and functional decline and characterized his memory as perfect. He demonstrated a diminished ability to appreciate the severity of symptoms requiring treatment when they occur.

iv) Gilles did not have an appreciation of his ongoing medical problems.

v) Gilles’s judgment in directing care can be lacking due to underestimation of medical concerns.

vi) That Gilles displayed poor insight into his reduced functional mobility and does not appreciate the safety concerns surrounding his behaviours.

vii) Gilles had no memory of having previously signed powers of attorney and felt that he was perfectly able to run his business and personal investments from his home through internet access.

140Dr. Sarazin concluded that Gilles failed to meet the ability to understand and the ability to appreciate in the areas of health and safety. She concluded that he no longer had capacity in these two domains of personal care. Dr. Sarazin stated that she did not assess Gilles in other domains of personal care, being shelter, nutrition, hygiene and clothing as these needs were being met by the level of ongoing services he was received from his caregivers. Clearly, the fact that Gilles’s needs are being met by third parties does not equate to being capable in those other domains. In fact, the evidence suggests otherwise.

141As previously mentioned, Dr. Sarazin obtained collateral information and documents from various people, including the Attorneys, Mr. Jurado, Dr. Levenstadt and Gilles’s caregiver, Tess together with her review of the geriatric assessment reports and cognitive testing scores.

142In terms of challenge by the Respondents, a similar analysis is done in terms of personal care as was done for property. Dr. Sarazin’s opinion on capacity for health and for safety was not successfully challenged. The Respondents argued that the information provided to Gilles may not have been accurate and they attempt to nuance her findings on Gilles’s inability to appreciate the importance of preventative maintenance. In the end, her opinion that Gilles no longer had capacity in the domains of health and safety as of November 6, 2018 is accepted by this court.

ii) Finding of Incapacity as at September 6, 2017

143Turning now to the period from September 6, 2017 to November 6, 2018, the analysis begins with the observations of Mr. Burnstein. The evidence shows that Gilles was:

i) Incontinent;

ii) Required live-in assistance and was dependant on others for almost everything in respect of his personal care;

iii) Incapable of preparing meals and would occasionally refuse meals;

iv) Experiencing falls and would be a danger crossing the street unsupervised;

v) Showering only when reminded and needed reminding to use the toilet; and

vi) Rarely dressed.

144Furthermore, when interviewed by Mr. Burnstein, Gilles was found to be selectively compliant with medications and denied to be taking any medications. Also, Mr. Burnstein noted that Gilles required the assistance of others to manage his health care, nutrition, safety, hygiene, nutrition and clothing needs to ensure his well-being. In sum, he was clearly incapable of managing health care without the 24-hour assistance of those who support him.

145In terms of collateral evidence, Joy Overtveld testified that as of 2017, Gilles’s caregiver had to start ensuring he took his medication. Starting in May 2017, he could not remember from one day to the next as to what his caregiver was doing. As of June 2017, a caregiver was visiting Gilles two to four times a day to assist with personal care tasks. Also, Joy Overtveld arranged for full-time personal support workers to assist with personal hygiene, meal preparation, and attending medical appointments.

146The findings of Dr. Sarazin, even when considering any suggested shortcomings by the Respondents, simply confirm the observations made by Mr. Burnstein in 2017 and the collateral evidence available at the time. Having considered all that evidence, I conclude that Gilles was incapable of managing personal care as of September 6, 2017.

147Finally, I note that since September 6, 2017, there are numerous references where observations or partial diagnoses are made that Gilles has a pattern of refusing to take his medication, that he does not acknowledge his medical conditions, that he refuses medical treatment and that he is deemed to be suffering from some form of dementia or other cognitive impairment. This evidence simply reinforces that although Gilles may have had good days where his mental condition was stable, the overall record allows me to confirm that his incapacity to manage personal care as of September 6, 2017 has been established by the Applicants.

Is Gilles capable of granting/revoking a continuing power of attorney pursuant to s. 8 of the SDA?

148When considering Gilles’s capacity to grant/revoke a continuing power of attorney, the analysis must consider the opinions of Dr. Sarazin in her November 6, 2018 report against those of Dr. Collins in her report dated November 1, 2018.

149While Dr. Collins’s analysis was specific to this issue, I have already noted shortcomings in her approach in terms of lack of collateral evidence, the failure to involve Gilles’s children and obtain information from them and his caregivers, the role played by Mr. Jurado during the assessment and the failure of her report to be tested in the litigation process.

150Finally, Dr. Collins’s report is the exception when considering the bulk of the evidence about Gilles’s cognitive abilities at the end of 2017 and throughout 2018. Gilles may have had good days with Dr. Collins but her findings are inconsistent with the information contained in the assessments of Mr. Burnstein and Dr. Sarazin and also with much of the collateral evidence of those who were caring for Gilles.

151Turning to Dr. Sarazin’s November 6, 2018 report: she identified the criteria set in sections 8 and 47 of the SDA. When considering the ability to grant/revoke a continuing power of attorney, the observations made by Dr. Sarazin about Gilles’s cognitive abilities remain relevant. Dr. Sarazin addressed the criteria in s. 8 of the SDA in the opinion section of her report and concluded that:

i) Gilles had a diminished understanding of the value of his assets;

ii) Gilles had a diminished understanding of what his assets were;

iii) He required prompting for omissions and to remain on topic;

iv) He did not make consistent use of compensatory strategies presented to him;

v) He displayed a diminished appreciation for the extent of authority/responsibility of his attorneys and the risks for financial abuse.

152Based on the above, I accept Dr. Sarazin’s opinion that Gilles was unable to grant or revoke a continuing power of attorney as of November 6, 2018.

Is Gilles capable of granting/revoking a power of attorney for personal care pursuant to s. 47 of the SDA?

153As for Gilles’s capacity to grant/revoke a power of attorney for personal care, the analysis is focussed on Dr. Sarazin’s November 6, 2018 report and the collateral information available from various sources.

154It must be noted that Dr. Sarazin’s conclusion on Gilles’s capacity to grant/revoke states that Gilles’s capacity to grant/revoke a power of attorney for personal care was borderline at best. That was an odd conclusion. When cross-examined, Dr. Sarazin stated that the legislation directs capacity assessors to err on the side of capacity and that she did not feel that he appreciated his attorneys had to make health care decisions for him. By saying “borderline,” she stated that she was saying that she does not feel that he is capable, but she is less confident in terms of her determination of incapacity for personal care. However, when she says “borderline at best”, she meant that he was incapable. This was a strange way to approach the issue of Gilles’s ability to grant/revoke a power of attorney for personal care.

155There is also evidence that suggests that Gilles’s state of incapacity in terms of personal care was not always consistently viewed. In her November 14, 2018 report, Dr. Sarazin concluded that Gilles still retained capacity to consent to the release of his medical records. Dr. Levenstadt came to the same conclusion some years later. These are nuances that are made by medical professionals that do not mean Gilles was capable at the time. Dr. Sarazin came to that conclusion in the context of her assessments of Gilles and this did not change the fact that her ultimate conclusion was that Gilles was incapable of granting/revoking a power of attorney for personal care. This conclusion was arrived at by a capacity assessor with unchallenged qualifications and ample experience in capacity assessments. Her conclusions were not challenged by any professional witness and the issues raised by counsel for the Respondents fall short of bringing the court to question her opinions.

156This was also the case for Dr. Levenstadt, but to a lesser extent. Dr. Levenstadt made findings at different times that Gilles was able to consent to certain treatments and to the release of medical records. However, this did not bring Dr. Levenstadt to conclude that Gilles was either capable of personal care or capable to grant/revoke a power of attorney for personal care.

157In the end, the evidence and conclusions of Dr. Sarazin continue to be the most comprehensive assessment of Gilles’s capacity. Her ultimate conclusion on Gilles’s ability to grant/revoke a power of attorney for personal care is still the best evidence available to the court.

158Also, at the time of the Sarazin capacity assessment, it is relevant that Gilles was unaware that he had granted the powers of attorney and that he stated he was perfectly capable of managing his personal care. These are very concerning elements of the analysis. When considered with all the other evidence previously mentioned in this decision, the collateral evidence, when taken as a whole, supports Dr. Sarazin’s ultimate conclusion.

159I am satisfied after considering all the evidence that as of November 6, 2018, Gilles did not have the ability to understand if his attorneys had a genuine concern for his welfare and that he did not appreciate he needed to have his attorneys for personal care make decisions for him. As of that date and likely before that date, Gilles clearly did not have the ability to grant/revoke a power of attorney for personal care.

If Gilles is incapable of managing property or his personal care, or both, who should make decisions on his behalf?

160As a result of my findings that Gilles was, as of November 6, 2017, incapable of managing property and incapable of personal care, the Applicants seeks a declaration as to who should make decisions on his behalf.

161The Applicants rely on s. 55 of the SDA which allows the court to appoint a guardian. However, s. 55(2) prohibits the appointment of a guardian if the court is satisfied that the need for decisions can be made by an alternative course of action.

162I have no hesitation in confirming that the Attorneys (Joy, Todd and Mr. Katz) and the two attorneys for personal care (Joy and Todd) are appropriate persons for making decisions on Gilles’s behalf. These are the individuals who were appointed by Gilles in 2011 when nobody challenged his capacity. Those appointments remained in place until after November 6, 2017 when the court has now found him to be incapable. Any attempts by the Respondents to suggest that 2011 POAs were improperly prepared is without merit.

163The evidence highlights that Gilles is susceptible to being taken advantage of. There is a need for Gilles to be protected from individuals who may not have his best interests at heart. I conclude that the attorneys named in the 2011 Powers of Attorney are in the best position to take care of Gilles and make decisions for him into the future.

Conclusion

164I therefore answer the issues set out in this application as follows:

i) Is this Capacity Application an abuse of process?

No

ii) Is Gilles capable of managing property pursuant to s. 6 of the SDA? If not, as of what date?

No, as at September 6, 2017.

iii) Is Gilles capable of managing his personal care pursuant to s. 45 of the SDA? If not, as of what date?

No, as at September 6, 2017.

iv) Is Gilles capable of granting/revoking a continuing power of attorney pursuant to s. 8 of the SDA? If not, as of what date?

No, as at November 6, 2018.

v) Is Gilles capable of granting/revoking a power of attorney for personal care pursuant to s. 47 of the SDA? If not, as of what date?

No, as at November 6, 2018.

vi) If Gilles is incapable of managing property or his personal care, or both, who should make decisions on his behalf?

His attorneys for property and personal care as appointed under the 2011 POAs.

Costs

165The parties are encouraged to resolve the issue of costs. If they are unable to do so, they may make written costs submissions no longer than five pages excluding all attachments. The Applicants will provide their costs submissions within 20 days from the date of these Reasons for Judgment and the Respondents will have a right to respond within 20 days thereafter. The Applicants will then have the right of reply 10 days thereafter and must not exceed 3 pages plus attachments.

Justice Marc R. Labrosse

Released: January 25, 2023

Footnotes

1. 1SDA, s. 2, Schedule B.
2. 2Calvert (Litigation Guardian of) v. Calvert (1997), 1997 12096 (ON SC), 27 RFL (4th) 394 (Ont. S.C.)
3. 32009 12798 (ON SCDC), 247 OAC 380 (Ont. Div. Ct.), at para. 56.
4. 4Adler v. Gregor, 2019 ONSC 3037, at paras. 25-26.
5. 52003 SCC 32, [2003] 1 S.C.R. 722.
6. 62015 ONSC 6003, at para. 24.
7. 7Re Koch (1997), 1997 12138 (ON SC), 33 OR (3d) 485 (Ont. S.C.), at para. 16.
8. 82009 495 (Ont. S.C.), at para. 10.
9. 92003 SCC 63, [2003] 3 S.C.R. 77, at paras. 37-38.
10. 102019 ONCA 354, 145 O.R. (3d) 759, at paras. 61-63.
11. 112016 ONSC 3294, at para. 19.
12. 122015 SCC 23, [2015] 2 S.C.R. 182 at para. 24.
13. 132015 ONCA 206, 384 D.L.R. (4th) 343.
14. 142018 ONSC 2911, at para. 31.