Ontario Superior Court of Justice

Court File No.: CV-24-00726045-0000
Date: 2025-03-05

BETWEEN:
Daniel Komsky, Appellant
– and –
Akiko Okamoto, Respondent

Appearances:
Ikenna Aniekwe, for the Appellant
Josh Cohen, for the Respondent

Heard: February 25, 2025

Endorsement
Papageorgiou J.

Overview

[1] This case is primarily about whether an assessor, appointed pursuant to the Substitute Decisions Act, 1992, SO 1992, c 30 to conduct an assessment of an individual’s capacity to manage their own financial affairs, must provide disclosure of materials collected and reviewed prior to the assessment. It is also about whether the assessor and the Consent and Capacity Board (the “Board”) considered the correct factors relevant to the management of property.

[2] The Appellant, Daniel Komsky (the "Appellant") seeks to appeal the Board’s August 20, 2024, decision (the "Decision") finding him incapable of managing his property. The Board made the Decision on that date to uphold the prior finding of incapacity made by designated Capacity Assessor, Akiko Okamoto (the "Respondent") on March 1, 2024.

[3] The Appellant also alleges that his right to procedural fairness was breached, and on these grounds the Board’s finding of incapacity to manage property should be quashed.

Decision

[4] Despite the passionate and able arguments of the Appellant’s counsel, for the reasons that follow I dismiss the appeal.

Issues

• Issue 1: What is the standard of review?
• Issue 2: Was the Appellant denied procedural fairness?
• Issue 3: Did the Board err in law in its interpretation and application of the test for capacity under s. 6 of the Substitute Decisions Act?
• Issue 4: Did the Board make palpable and overriding errors?

Facts

[5] Before turning to the issues, I set out the background facts.

[6] The Appellant is a 69-year-old man who currently resides at Rekai Wellesley Central Place, a long-term care home located in Toronto. He has resided there since 2015. Prior to that, the Appellant resided in another long-term care home, the Trilogy Long Term Care Residence located in Toronto, beginning in or around 2008.

[7] On April 27, 2008, the Appellant was found in an unresponsive state while in an alcohol rehabilitation program at the Centre for Addiction and Mental Health ("CAMH"). He had suffered a large subdural hematoma and anoxic brain injury. The Appellant has also suffered from a long history of documented alcohol abuse.

[8] His sister and her husband had a power of attorney but revoked it in 2012. This led to concerns by a Geriatric Addictions Specialist with the Community Outreach Programs in Addictions (the “GAS”) that he might be vulnerable to financial exploitation on account of his memory deficits due to chronic subdural hematoma and alcoholism.

[9] On March 15, 2012, Ms. Marilyn White-Campbell, a Geriatric Addictions Specialist with GAS, requested that the Appellant undergo a capacity assessment, for the purpose of determining whether the Public Guardian and Trustee (the "PGT") should be appointed as the Appellant's statutory guardian of property. Ms. White-Campbell expressed concerns about the Appellant's ability to manage his finances and was worried that he was being financially exploited by his sister and brother-in-law due to his cognitive deficits.

[10] On May 3, 2012, registered capacity assessor Tony Andrew Cheung ("Mr. Cheung") met with the Appellant and found that the Appellant was incapable of managing his property.

[11] The PGT subsequently assumed statutory guardianship of the Appellant's property and has been his guardian of property since the 2012 finding of incapacity.

[12] The Appellant receives $300 in “PIN” money from the PGT and $30 per week in spending money, while all other aspects of his property management including payment of bills have been handled directly by the PGT since 2012.

[13] The Appellant contacted the Respondent on December 19, 2023, on his own accord, requesting a capacity assessment for himself, seeking to terminate the PGT’s statutory guardianship pursuant to s. 20(1)(4)(i) of the Substitute Decisions Act.

[14] The Respondent met with the Appellant on February 24, 2024, and found that the Appellant remained incapable of managing his property.

[15] In her assessment, the Respondent found the following with respect to the Appellant: (a) He had difficulty regulating his emotions; (b) He lacked the minimal skills required to understand and manage decision making demands of his financial circumstances; (c) He was unable to understand basic financial documents or manipulate numbers accurately; (d) He lacked organization and problem solving skills and reasoning capacity; (e) He lacked insight into how his cognitive difficulties affect his financial decision making; (f) He was unable to realistically appraise risk and outcomes of a decision or lack of decision; and (g) He was unable to implement strategies to compensate for cognitive deficits or seek assistance for matters beyond his capability.

[16] On July 18, 2024, the Appellant appealed the assessor’s finding to the Board pursuant to s. 20.2 of the Substitute Decisions Act.

[17] Pursuant to s. 20.2(5), the Board was entitled to confirm the finding of incapacity, or it could determine that the person is capable and substitute its own decision for that of the assessor.

[18] On August 13, 2024, a hearing (the “Hearing”) convened before the Presiding Member, Thomas Merrifield. The Board heard oral evidence from both the Appellant and the Respondent, and it considered seven exhibits, including both the 2012 and 2024 capacity assessments, the Wellesley Central Place Cumulative Patient Profile, the Appellant's PGT Account Statement, and PGT Consolidated Portfolio Report.

[19] In addition, the Respondent testified and identified three main concerns with respect to the Appellant’s ability to appreciate the reasonably foreseeable consequences of decisions relating to the management of his property: 1) his lack of emotional regulation; 2) his deficient organizational and problem-solving skills; and 3) his lack of appreciation of his own limitations.

[20] In the Respondent’s view, the above three concerns, in conjunction with the Appellant's severe short-term memory deficiencies, rendered him unable to apply relevant information to his circumstances and weigh the risks and benefits of decisions regarding the management of his property.

[21] The Board upheld the Certificate of Incapacity issued by the Respondent on March 1, 2024.

[22] It found that at the time of the assessment on February 24, 2024, the Appellant lacked the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision, in relation to the management of his property, and was therefore incapable of managing his property. The Board also found that the incapacity continued to exist at the time of the Hearing.

Analysis

Issue 1: What is the standard of review?

[23] Pursuant to s. 80 of the Health Care Consent Act, 1996, SO 1996, c 2, Sched A, a party that appeared before the Consent and Capacity Board has a statutory right of appeal to the Superior Court of Justice from any of the Board's decisions on questions of law or fact or both.

[24] As set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 23:

where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review.

[25] Both parties agree that on issues of law, the correctness standard means that a reviewing court need not show deference to the reasoning process of the lower court or tribunal and must undertake its own analysis of whether the decision was legally correct: Dunsmuir v. New Brunswick, 2008 SCC 9; H.L. v. Canada (Attorney General), 2005 SCC 25; and S.S. v. Mottaghian, 2021 ONSC 137, paras 7-13.

[26] When an appellant raises a question of mixed fact and law, where a discrete question of law can be extricated from the question of mixed fact and law, the correctness standard will apply to the question of law; however, where a discrete question of law cannot be extricated from the factual considerations, the higher standard of “palpable and overriding error” will apply: Mottaghian, at para. 11.

[27] “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and an error is overriding if it has affected the result: Hydro-Quebec v. Matta, 2020 SCC 37, para 33.

[28] Issues of procedural fairness are a question of law reviewable on the standard of correctness. What the reviewing court must decide is whether there was an appropriate level of procedural fairness having regard to the principles established in Baker v. Canada (Minister of Citizenship and Immigration); JS v. Gelber, 2022 ONSC 2088, para 24.

[29] In Baker v. Canada (Minister of Citizenship and Immigration), without being exhaustive, the Supreme Court of Canada listed relevant factors to determine what the doctrine of procedural fairness requires in any particular case. These include the following: (a) the nature of the decision; (b) the significance of the decision to the party affected; (c) the statutory scheme under which the decision is made, including the role the decision plays under that scheme; (d) the reasonable or legitimate expectation of the party challenging the decision; and (e) the procedure of the board and its autonomy to make its own procedure. When considering whether there is procedural fairness, the process leading up to the administrative tribunal's decision may also be considered: Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396.

[30] Also relevant to the doctrine of procedural fairness are the principles of natural justice. These are flexible and also contextual depending on the particular circumstances, but the minimum requirements are the following: (a) adequate notice of what is to be determined and the consequences; (b) an opportunity to make representations; and (c) an unbiased tribunal: Zettel v. University of Toronto Mississauga Students’ Union, 2018 ONSC 1240.

Issue 2: Was the Appellant denied procedural fairness?

[31] The assessment by the Respondent was part of the process leading to the Board’s decision.

[32] The Appellant says he was denied procedural fairness because prior to the assessment by the Respondent, he was not provided with the previous 2012 assessment and certain records including financial statements from the PGT, his health records and other information.

[33] He is essentially raising the argument that there was an obligation on the assessor to provide disclosure.

[34] The issue is, taking into account the relevant factors set out above in Baker v. Canada, was there an appropriate level of procedural fairness given that the Appellant was not provided with this information prior to the assessment.

a) The Statutory Scheme and the Role of the Decision Maker

[35] Under s. 6 of the Substitute Decisions Act:

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.

[36] As set out in Starson v. Swayze, 2003 SCC 31, para 78, the test for capacity involves considering:

a) Whether a person is able to understand the information relevant to making a financial decision. This requires the cognitive ability to process, retain and understand the relevant information.

b) Whether a person is able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the person to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The SDA does not require actual appreciation of those consequences, only the ability to appreciate them. The courts have noted that this distinction is important and that in practice the analysis begins with an inquiry into the person’s actual appreciation. If the patient shows this appreciation regardless of whether he weighs or values the information differently than the assessor, he has the ability to appreciate the reasonably foreseeable consequences.

[37] Section 20.2 of the Substitute Decisions Act also provides that a person who has been found incapable of managing his or her property may apply to the Board for review. There is also an appeal from the review decision of the Board to the court pursuant to s. 80 of the Health Care Consent Act.

[38] The fact that there is a further process, after the assessor’s determination whereby the assessor’s decision can be challenged is relevant. In Baker, the court held that there should be greater procedural protection when there is no appeal procedure and or where the decision is determinative of the issue: Baker, at para. 24. This is not the case here.

[39] The Substitute Decisions Act also specifies its own procedural safeguards to ensure a capacity assessment is carried out fairly in ss. 16 to 78, namely surrounding how the request to be assessed is received, the right to refuse, and the information the assessor must explain to the person being assessed: HM (Re).

[40] The Substitute Decisions Act does not say that the assessor must provide all the information that he or she gathers to the individual. The Appellant argues that this case is different than other cases because here, the Appellant was already subject to a guardianship order such that he did not have access to his financial records for some time, which would not be the case where a capacity assessment is de novo. However, the Substitute Decisions Act has provisions that contemplate a person who is already subject to a guardianship order seeking to set aside that guardianship by obtaining another assessment. The Act does not specify in these circumstances that any disclosure of financial records or other information is required prior to the assessment.

[41] The Respondent referenced the Guidelines for Conducting Assessments of Capacity, Part III.1 (Referral Information and Informant Interview.) These Guidelines set out that it is the job of the capacity assessor to record, verify, organize and summarize the relevant information gathered from the person being assessed, as well as from family, professional caregivers or multi-disciplinary consultants and review of objective records. The assessor then evaluates this wealth of multidimensional information within the appropriate legal framework to arrive at an opinion about mental capacity.

[42] The Guidelines state:

It is imperative that the person's own perceptions of her or his own abilities and limitations be cross-referenced and verified with more objective information. For example, the person's self-appraisal could be contrasted with his or her behaviour as witnessed or assessed by others, and if data sources do not show agreement, the assessor should consider potential bias in reporting. It may be that the person is denying or underestimating problems due to impaired insight/reality-testing, but the assessor should also question if an informant is deliberately misrepresenting or is not sufficiently informed of the true level of functioning.

[43] The Appellant raised an issue as to how the Respondent could place these Guidelines before the court at this appeal. This is proper because the Guidelines are established by the Attorney General and prescribed by Regulation under the Substitute Decisions Act. An assessor must comply with them pursuant to s. 3 of O. Reg. 460/05 Capacity Assessment.

[44] Accordingly, the purpose of collecting the information pursuant to the Substitute Decisions Act was not to disclose same to the Appellant prior to the Capacity Assessment. The material was collected to assist the Respondent to assist her with her understanding and to cross-reference the material to her own observations. It was also collected to present same to the Appellant during the assessment itself, to determine if he was capable of reviewing, understanding and/or analyzing the information contained therein.

[45] There is no caselaw or authority for the proposition that an assessor must provide disclosure of records collected in advance. A determination that this is required would have far reaching consequences in the field.

[46] The Appellant references by analogy the obligation on a physician to provide a patient with sufficient information about the nature of proposed medical treatment, expected benefits and material risks and side effects, in the context of the capacity to consent to medical treatment: Starson v. Swayze, cited in S.S. v. Mottaghian.

[47] The reason why a patient must be given information about proposed medical treatment is so that the person can make an informed decision. This is not entirely comparable to a person undergoing an assessment of their capacity to manage their property because there is no decision that such person is being asked to make about their financial circumstances at that time.

[48] Even in cases involving the capacity to consent to medical treatment, there is no requirement that assessors provide disclosure to the party being assessed of the nature sought here. And in all of these cases there is an issue or concern as to capacity at the outset which is why the assessment is being done.

[49] Thus, the legislature, in setting out the legislative scheme, knew that assessments of parties would be done by a qualified assessor where there were concerns about the party’s capacity, and did not provide for any disclosure obligation.

[50] Another relevant feature here is that the process set out in the Substitute Decisions Act with respect to assessments does not resemble judicial decision making. It is not an adversarial process at all. The more the process provided by the legislation resembles judicial decision making, the more likely it is that the procedural protections closer to the trial model will be required: Baker, at para. 23.

b) The Nature of the Decision/Significance to the Party Affected

[51] The nature of the decision was an assessment that the Appellant requested. He was seeking to become autonomous again. From his perspective, the assessment was very important. As set out in Baker, at para. 25, the more important the decision is to the individual and the greater the impact on their life, the more stringent the procedural protections will need to be.

[52] The Appellant further argues that the level of participatory rights in this case should also be influenced by the fact that the Appellant has certain medical conditions. This made it more difficult for him to respond quickly to questions about documents he had not seen in over 12 years, since the PGT had been managing his affairs all that time.

[53] He relied upon JS v. Gelber for the proposition that sensitivity to the mental status of a person needs to be taken into account in determining the level of participatory rights or procedural fairness. However, this case was not about the level of participatory rights at all and certainly did not involve the kind of participatory rights that the Appellant seeks here. In fact, this case did not involve any argument that an assessor or Board provide disclosure to the party in question. What happened in this case is that the Board did not hear the Appellant’s appeal because when the Appellant issued the Notice of Appeal, he was no longer a patient, and so the Board interpreted s. 60 of the Substitute Decisions Act to preclude an appeal in those circumstances. The Board argued that he was not deprived of any right of appeal because he received a Form 33 which indicated that a patient who wishes to challenge a Notice of Continuance should file a Form 18 and he could have done that. Justice Koehnen was concerned that this was not necessarily intuitive to a layperson, let alone a layperson that the respondent said was incapable.

c) Legitimate Expectations

[54] The Appellant did not have a legitimate expectation that the Respondent would provide him with all the materials that she had collected in advance of the assessment.

[55] The Appellant was aware that the Respondent was collecting information and speaking to certain members of his medical care team, and he never requested that she share that information with him. He gave her consent to do so.

[56] With respect to the PGT financial documents, the assessor had asked the Appellant on several occasions to obtain his account statement from the PGT. When she followed up, he did not have a clear explanation as to why he did not have it, but on the day of the hearing he said he tried calling the PGT who hung up on him. His relationship with the PGT is somewhat strained.

[57] Then, because he had not obtained these documents from the PGT, the Respondent gave them to him for his review. Each time she encouraged him to take as much time as he needed to review it. After about five minutes of the Appellant reviewing the said statement, he said he was not sure what to make of it.

[58] She explained the document line by line to him, going to the date and then even explained the figures in brackets were funds coming out of his account and that figures not in brackets were funds coming into his account. She testified that she took the time to explain this because it was the first time that he was reviewing this document. After this brief explanation, he could identify what was coming in and going out of his account. He acknowledged the entry that showed the $300 monthly PIN money and said that some of his money was used to purchase beers and that the rest was disbursed into his weekly allowance of $30.

[59] She followed this process with other documents as well.

[60] It is also relevant that the Respondent is a qualified assessor under the regulations and she testified that in her view the time she gave him was sufficient time for him to examine it, and he did so very carefully. She is an expert and I accept her evidence on this point as did the Board.

[61] It is also relevant that the assessor chose the procedure based upon the Substitute Decisions Act, using pre-populated forms and legislation that did not require this disclosure. In Baker, the court indicated that while following statutory procedure is not determinative, important weight must be given to the choice of procedure made by the assessor: at para. 27.

[62] Her assessment also indicates that because he did not remember the assessment was occurring that day, she offered to reschedule the interview for another day. However, he did not wish to do this, even in circumstances where he knew he had not received the information collected by the Respondent. Again, had he had a reasonable expectation that he should have received this material, he could have accepted the offer to have the interview on another day.

[63] Apart from issues related to the failure of the Respondent to provide this material to the Appellant in advance, the Appellant has not raised any other issues as to how the procedural safeguards were not met. The capacity assessment was not forced on him. He requested it and provided consent for the Respondent to work with the Director of Clinical Services at Wellesley Rekai Centre to assist in gathering health records and providing collateral information prior to the assessment.

[64] Prior to performing the Capacity Assessment, the Respondent provided the Appellant with “rights advice” pursuant to s. 78 of the Substitute Decisions Act and advised that he may refuse the assessment at any time, which he declined. The Appellant was also offered regular breaks during the Capacity Assessment which he declined.

[65] The Appellant did not request, nor did he require any special accommodations for the Capacity Assessment, such as to assist with his vision and/or hearing. He did wear eyeglasses and appeared to have no issue reviewing the documents presented to him by the Respondent during the course of the Capacity Assessment.

d) Summary

[66] In my view, the Appellant was not deprived of procedural fairness because the Respondent did not provide the information in advance. Balancing all the criteria, procedural fairness did not require the disclosure of this material in advance of the assessment.

[67] Further there was an appeal to the Board which took place six months after the assessment. The record assembled by the Appellant contained all the materials that were before the Assessor. The Appellant could have studied the materials prior to the hearing before the Board, so that he could demonstrate that he had the ability to understand the information in these documents and that the failure to provide them to him in advance is what affected the outcome of the assessment by the Respondent.

[68] He specifically raised the Respondent’s failure to provide him with the documents in advance. The Board noted the Respondent’s testimony that the Appellant had difficulty understanding financial documents without assistance and explanation from her. He had difficulty adding up his monthly income, even with the use of a calculator. He could not understand simple invoices that he would likely encounter if he was handling his own finances. The Board, however, noted and accepted the Appellant’s explanation that he had difficulty reviewing and understanding some financial documents provided to him because he had no recent experience with them as the PGT had been dealing with them.

[69] The Board also noted that the Appellant appeared to show improvement from the findings of the 2012 assessment in the area of understanding information in regard to his finances. The Board further noted that although he struggled, he was able, with prompting from his counsel, to highlight the main sources of his income and primary expenses.

[70] At least in part because of the concerns raised by the Appellant, the Board said it had difficulty accepting that there was clear and compelling evidence that the Appellant lacked the cognitive ability to satisfy the first branch of the test. It made no finding that the Appellant was unable to understand the information relevant to making a decision.

[71] Rather, its finding of incapacity was based upon the second branch of the test, that the Appellant did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[72] To the extent that there had been any unfairness in the process utilized by the Respondent, the appeal before the Board has made that issue moot since it did not rely upon the Respondent’s conclusion with respect to the Appellant’s ability to understand the financial information that he complains he should have been shown prior to the assessment. It also did not conclude that he did not have the ability to understand this information.

[73] Therefore, the Respondent’s unfamiliarity with the documents, and the impact he says this had on him, did not affect the outcome before the Board.

Issue 3: Did the Board err in law in its interpretation and application of the test for capacity under s. 6 of the Substitute Decisions Act?

[74] The Board correctly considered both parts of the test and correctly noted that the onus was on the assessor to prove on a balance of probabilities that the Appellant lacked the capacity to manage his property. The Board also correctly noted that under s. 2 of the Substitute Decisions Act, there is a presumption that a person is capable of managing his or her property.

[75] The Appellant argues that it is not enough to simply set out the correct test. If the Board set out the correct test but did not apply it correctly, this is still an error of law. The Appellant cites the following principle set out in Housen v. Nikolaisen, 2002 SCC 33, para 27, citing Canada (Director for Investigation and Research) v. Southam Inc., para 39:

if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.

[76] The Appellant argues that the Board made the following two legal errors in its application of the test:

i. It neglected to hold the Respondent to her legal obligation to provide the Appellant with necessary information in advance.

ii. It found the Appellant not capable for reasons that do not relate back to property.

[77] I have already addressed the first issue under procedural fairness. In short, there was no legal obligation on the Respondent to provide this information in advance and the failure to do so did not constitute procedural unfairness.

a) Ability to Appreciate the Reasonably Foreseeable Consequences of the Decision or Lack of One

[78] As noted, the primary reason why the Board concluded that the Appellant did not have the capacity to manage his financial affairs was that he could not appreciate the reasonably foreseeable consequences of a decision or lack of decision, specifically in relation to the management of property because of: a) his lack of emotional regulation; b) deficient organizational and problem-solving skills; and c) lack of recognition of his own limitations, in conjunction with his severe short term memory deficiencies.

b) Emotional Regulation

[79] The Board noted the evidence that showed that when he was emotionally escalated, the Appellant required a great deal of redirection to stay on topic. The Director of Clinical Services at the long-term care facility where he resided and a representative of the PGT (to whom he frequently made calls) confirmed their similar experiences.

[80] He often requested more funds from the PGT and became emotionally escalated when his request was delayed or refused. Nurses observed that when he was emotional, he was under the influence of alcohol. He was unable to explain how he spent his PIN money in general, but ultimately said that he spends it on beer.

[81] The way he participated in the hearing also confirmed this. During the hearing, he could not contain his emotions. He required significant redirection when discussing a high phone bill. He interrupted on numerous occasions while the Respondent was testifying and when his counsel was asking questions. It took a great deal of redirection from his counsel and the Board before he stopped interrupting.

[82] Although the Board referenced his lack of emotional regulation, it also correctly stated that this would not by itself support a finding that he was unable to appreciate the consequences of his financial decisions.

[83] I agree that this factor was a relevant factor because to properly manage his financial affairs, and understand the reasonably foreseeable consequences of financial decisions, he would have to be able to stay on topic and not be distracted by his emotions when making such a decision.

c) Organizational Skills and Problem-Solving Skills

[84] With respect to the deficiencies in his organizational skills, the Board noted that the Appellant’s struggles date back many years. Prior to the 2012 assessment, a family member had been looking after his financial affairs. It is only when someone with the Community Outreach in Addictions became involved was it evident that a family member may have taken advantage of him. The Board concluded that these incidents suggested that he did not recognize he was being taken advantage of or he was unable to organize himself to address and resolve issues.

[85] While the above incident was historical, the Board noted the same kind of behaviour in the present. He had been very upset during the Capacity Assessment by the amount of his phone bill “to the point where he was unable to focus and required a lot of redirection. He was obsessed with his belief that a resident who had previously lived in his room had somehow used his identity to set up another account, and it was applied to his account.” Although he reported that he knew this and it had been going on for years, he advised the Respondent that he did not report this to the telephone company or the PGT. He took no action despite his strong belief for many years. If his concerns were valid, then he was failing to take steps to ensure that he was not being taken advantage of financially by someone.

[86] The Board also noted that the Appellant had difficulty remembering the appointment for the assessment. The assessor called him the day before the assessment as a reminder, but he was surprised to hear it was happening when she arrived at his residence the next day.

[87] Further, he had been unable to obtain the PGT statement despite reminders which began six weeks before the assessment. He said he wrote down the instructions because his memory was very bad. Ten days before the assessment, when the assessor contacted him again, he simply advised he had been unable to obtain them and gave no reason. She encouraged him to contact the PGT and request them again. Then as noted, when he attended, he still did not have them and claimed that the PGT hung up on him.

[88] While this may not appear to be his fault, the Respondent had been in contact with him and was following up. He could have advised her in the first place that he was having difficulty with the PGT and simply asked the Respondent to provide him with the material. His failure to take this step does exhibit a lack of problem-solving skills which are important for financial management.

d) Lack of Recognition of His Own Limitations

[89] In my view, this was the most significant of the concerns noted by the Board.

[90] The Appellant suffers from medical conditions, in particular an anoxic brain injury, alcoholism and short-term memory deficiencies. However, he failed to recognize that these medical conditions could impact his ability to manage his financial affairs.

[91] During his assessment he insisted that there would be no issues with his handling of his financial affairs. He brushed aside questions related to any limitations he might have because of his medical condition. He kept referencing his previous thirty-year career as a stock trader and insisted that this meant he would not have to engage or consult with a financial advisor, but he could not explain how registered retirement savings plans work. He failed to take into account his medical issues that post-dated this career. Even though he had left his financial affairs in the hands of others for at least 12 years, he failed to demonstrate any awareness or insight into the fact that his cognitive and mental abilities were not the same after his subdural hematoma.

[92] At the Board hearing, he continued to insist that his thirty-year career as a stock trader meant he could manage on his own even though he could not explain how RRSPs work. As well he failed to connect his subsequent medical issues to his current ability to manage his financial affairs. The Board concluded that his abilities were greatly diminished.

[93] When asked what he would do if he could manage his own affairs, he said that he would liquidate his assets, put them in a bank account, and invest them because of his past expertise. He denied the need to obtain any advice and assistance from professionals.

[94] He could not appreciate the possibility of dissipating his assets if he were to invest them on his own without assistance. When asked about his investment plan, he simply said, “I can do it.” When asked whether he could lose all his money, he simply said “it won’t happen.”

[95] The Board correctly concluded that his lack of insight meant that he would be unlikely to seek assistance. In fact, he denied the need to do so.

[96] In my view, the Board took into account matters directly related to his ability to manage his financial property and so did not err in its application of the test.

[97] Here I accept the submission of the Respondent’s counsel that the assessor and the Board are experts in their field and their conclusions about what factors are relevant to the determination of whether the Appellant had the ability to reasonably foresee the consequences of a decision or failure to make a decision are entitled to deference. I see no basis to interfere with their decisions.

Issue 4: Did the Board make palpable and overriding errors?

[98] The Appellant’s argument regarding the Board’s palpable and overriding error is the same as his argument in respect of the error of law.

[99] The Appellant argues that the Board made a palpable and overriding error because of his position that the factors the assessor and the Board took into account are unrelated to property.

[100] I have already addressed this above. In my view, the matters they took into account were proper matters to consider in its assessment of this matter.

Conclusion

[101] The appeal is dismissed.

Papageorgiou J.

Released: March 5, 2025