Ontario Superior Court of Justice

Court File No.: CV-22-301 (Kingston)
Date: 2025-04-14

Between:
BMO Trust Company, solely in its capacity as guardian of property for Patricia Hazel Louise Roper
Applicant
and
Lee Aubin
Respondent

Applicant Counsel: Paul G. Andrews
Respondent: Self-represented
Heard: 23 December 2024 and 3 January 2025, at Kingston

Reasons for Decision
Graeme Mew

Introduction

[1] Patricia Roper is an 82-year-old widow who currently lives in an assisted living facility in Kingston. This application is brought by BMO Trust Company, in its capacity as guardian for property of Ms. Roper, and seeks a determination by this court of whether powers of attorney for personal care that purportedly appointed Lee Aubin as Ms. Roper’s attorney for personal care should be terminated, or rendered of no force and effect. The applicant also seeks the court’s direction with respect to determining the nature and extent of the liability (if any) that Ms. Roper might have to Ms. Aubin and/or Seniors Total Care Inc. (“STC”.)

[2] At most of the times material to this proceeding, Lee Aubin was the Business Development Manager and Primary Care Co-ordinator at STC. Prior to that, she worked as a business development manager at a company called Seniors for Seniors. In one of the many affidavits sworn by Ms. Aubin in this proceeding, she states that she has spent her life and built her career by developing relationships with seniors and marginalised individuals. Those relationships have been built on trust, care and mutual respect. She states that her experiences “have crafted a range of talents specifically designed to care for those who need assistance with managing their affairs as well as their personal needs”.

Background

[3] In June 2018, Patricia Roper was diagnosed with multiple myeloma and began chemotherapy.

[4] In July 2020, after failing to appear for numerous chemotherapy appointments, and complaining about “being attacked in the night by a strange man who used a chloroform rag over her mouth”, Ms. Roper’s oncologist referred her for a psychiatric assessment.

[5] On 30 July 2020, Ms. Roper was admitted to Kingston General Hospital, pursuant to the Mental Health Act. The reasons for admission, in addition to the complaint about being attacked during the night, noted that Ms. Roper had made multiple previous reports to the police about being attacked in the night (unsupported by any details), that she had also reported a “Peeping Tom” at her window at night, and that she was suspicious that people were stealing from her, as things had gone missing at home. Her oncologist reported that Ms. Roper had been having memory issues, and had missed as many as 50 appointments for chemotherapy at the cancer clinic.

[6] Clinical observations made of Ms. Roper while she was hospitalised were that she was compliant and quite reasonable on the ward. She was described as “highly intelligent and able to justify gaps in her memory convincingly”. When confronted about how many appointments she had missed at the cancer centre, she refused to believe it. She felt the oncologist’s office was “making it up” and had “obviously done this to other patients before”. The hospital observations continue by noting that Ms. Roper had a fixed delusion that she had been abducted and brought to hospital. She described being “picked up” by two men who tied her hands and put her in the trunk of their car. She could not explain why these two men abducted her only to bring her to hospital.

[7] According to the Kingston General Hospital discharge summary, Ms. Roper’s delusions stemmed from a neurocognitive disorder, possibly accelerated by her cancer diagnosis. She scored 21/30 on the Montreal Cognitive Assessment. A score of 26 or greater is considered normal cognition; a score of 18-25 indicates mild cognitive impairment.

[8] Social work notes from Kingston General Hospital noted that Ms. Roper was engaged in the process of at least three real estate deals, including a condominium closing on 5 August. The social worker spoke to Ms. Roper’s real estate agent, Manson Slik, who said that Ms. Roper had presented oddly over the last few days and weeks. She had missed an appointment to sign real estate documents. The social worker’s note records Mr. Slik saying that Ms. Roper was paranoid and had changed her locks ten times over the last few weeks, as well as her key fob for her car which she said had been stolen multiple times.

[9] Ms. Roper eventually challenged her involuntary status at Kingston General Hospital, and was discharged on 13 August 2020. The mental health team were of the opinion that her fixed delusions did not impair her function or mental faculties to the extent of rendering her incapable with respect to treatment or finances. A social worker was noted as having spoken with Lee Aubin from Seniors to Seniors, “and they will take care of transportation for chemo on Thursdays”. It was further noted that Lee Aubin would pick Ms. Roper up from the hospital at noon on the date of her discharge.

[10] This appears to have been the first contact between Ms. Roper and Lee Aubin. Thereafter, Ms. Aubin, or other individuals associated with Seniors for Seniors, provided various services, including transportation, to Ms. Roper. While details of the nature and extent of the services provided by Seniors for Seniors are not fully documented in the record, the affidavit of Marie Rawson, sworn 17 April 2024, gives some indication. Ms. Rawson is a certified personal support worker. Lee Aubin was her manager at Seniors for Seniors, and it was Ms. Rawson who drove Ms. Roper home from KGH after her hospitalisation in August 2020. Thereafter, she was Ms. Roper’s designated driver, and, if Ms. Roper felt well enough, on Ms. Roper’s “chemo days”, Ms. Rawson would assist Ms. Roper with purchasing groceries. Ms. Rawson’s affidavit makes references to working 12 or 24 hour shifts, at Ms. Roper’s request. It is unclear, however, whether this refers to the period when she was a Seniors for Seniors employee. Like Ms. Aubin, she subsequently moved over to work for STC.

[11] On 29 September 2020, Ms. Roper executed powers of attorney for property and personal care, appointing her then-lawyer, Christopher Williams, and also naming substitutes to act in his place if he were unable or unwilling to do so.

[12] On 11 March 2021, Ms. Roper entered into a service agreement with STC for companion, driver and overnight companion services. The agreement provided for an hourly rate of $31.00. Ms. Aubin signed the agreement as STC’s representative. A pre-authorised debit agreement was also signed by Ms. Roper, authorising STC to debit her bank account for her outstanding balance (boxes for the 1st and 16th of every month were not, however, checked). It would not appear that this pre-authorised debit agreement was ever activated.

[13] The records of the Ministry of Public and Business Service Delivery show that STC was incorporated on 31 March 2021. The President, Secretary and sole director of STC is Ken Douglas Foster. Mr. Foster is Lee Aubin’s common law spouse.

[14] A medical record from Quinte Health Care notes that on 12 April 2021, Ms. Roper had called police, telling them that she had no food (despite having a fridge full of food). The note records that she was worried that she was being poisoned but had not eaten that day. The Emergency Medical Service reported that police had been called to Ms. Roper’s home multiple times over the previous couple of weeks. The nurse’s note indicates that on arrival at the hospital, Ms. Roper was oriented to person, time and place. She said that she had called 911 because she believed that someone was trying to poison her and kill her. When asked who might want to harm or poison her, she replied, “just about anyone”. She was able to give an appropriate history, but became “very paranoid and goes back to poison frequently”. A notation several hours later indicated that she was eating a bag lunch, was happy and co-operative. She was subsequently discharged and placed in a local taxi to take her home.

[15] At around this time (April 2021), Ms. Roper started receiving services from STC for overnight coverage (Seniors for Seniors continued to provide daytime coverage). Ms. Roper’s banking records indicate that in May 2021, she paid $2,188.86 to Seniors for Seniors, and $6,393.90 to STC (May 2021 was the first time that payments were made to STC; previous payments to Seniors for Seniors included $2,971.93 on 25 March, and $3,377.10 on 26 April.) The STC invoice supporting the amount paid to that company reflects overnight care at a rate of $30.50 per hour for the last four days of April (i.e., $366.00 plus HST per night), and thereafter, in May, overnight care for a flat rate of $275.00 per night. Daytime attendances, including transportation to a doctor’s appointment, were charged at $30.50 per hour and 60 cents per kilometre between May 2021 and April 2023.

[16] Thereafter, Seniors for Seniors dropped out of the picture and STC took over as the provider of services to Ms. Roper. According to an email from Ms. Aubin’s former solicitor, on 15 May 2023, the total amount owed by Ms. Roper to STC and Lee Aubin by that time was $194,440.32.

[17] At some point in time prior to August 2021, Ms. Aubin states that Ms. Roper told her that she was uneasy about her current lawyer and attorney under power of attorney for property, Christopher Williams. She thought that there may have been some irregularities with her last real estate transaction. Ms. Roper showed Ms. Aubin power of attorney documents that she said Christopher Williams had provided her with. In one of her affidavits, Ms. Aubin describes this document as having been marked “draft”. However, the document attached to her affidavit is clearly stamped “Client’s copy”. It is not disputed that, in fact, as already noted, Ms. Roper had executed continuing powers of attorney for property and personal care in favour of Mr. Williams on 29 September 2020.

[18] According to Ms. Aubin, on 12 August 2021, Ms. Roper then executed further continuing powers of attorney for property, and for personal care, with each document appointing Ms. Aubin as the substitute decision maker. She explained that by this time she had set in place arrangements for Ms. Roper to consult with a Kingston lawyer, Yuri Tarnowecky, to assist with drawing up new powers of attorney. However, as Ms. Aubin would have it, Ms. Roper was concerned, in the short term, that until she had new powers of attorney drawn up, Mr. Williams would continue to be her only substitute decision maker. Ms. Aubin has explained that the 12 August 2021 powers of attorney came about after she had downloaded power of attorney forms from the Internet, filled them in, and had them signed by Ms. Roper. Affidavits have been sworn by Ms. Aubin’s parents, Hannelore Aubin and Guy Aubin, confirming that they witnessed the signing of these powers of attorney by Ms. Roper at their home.

[19] Ms. Aubin’s evidence is that a first meeting with Mr. Tarnowecky took place in August 2021, after the downloaded powers of attorney had been signed by Ms. Roper. According to Ms. Aubin, Mr. Tarnowecky said that the August 2021 powers of attorney were “no good”. Ms. Aubin says that Mr. Tarnowecky was told that Ms. Roper wished to replace Mr. Williams as her power of attorney.

[20] The records of the Public Guardian and Trustee show that on 8 September 2021, Ms. Aubin contacted the Public Guardian and Trustee Investigation phone line and spoke to an investigator. She indicated that her friend wanted to appoint a new attorney for property, but her current attorney for property would not “relinquish”.

[21] There was a second meeting with Mr. Tarnowecky in September 2021. Mr. Tarnowecky had, by that time, apparently obtained Mr. Williams’ files. Ms. Aubin’s affidavit said that at this second meeting, Mr. Tarnowecky “had a completely different demeanour and was very off-putting”. Mr. Tarnowecky wanted to see Ms. Roper on her own and, having done so, told Ms. Aubin that he could not “work with” Ms. Roper “because she had not been able to remember my name and then basically froze”. In her oral submissions, Ms. Aubin elaborated that Mr. Tarnowecky had said he would need something to indicate that Ms. Aubin had capacity.

[22] Ms. Aubin then embarked on a search for a capacity assessor. She spoke to an assessor called Monica Stein, who, Ms. Aubin says, told her that Ms. Roper would need to have her own lawyer, who could then instruct Ms. Stein as to what type of capacity assessment was required. Accordingly, as Ms. Aubin puts it in one of her affidavits, “Alexandra Manthorpe from Cunningham Swan in Kingston was selected. I contacted their office and Patricia made out a deposit for their standard retainer costs by cheque”. However, having done so, Ms. Aubin says that she was subsequently contacted by Cunningham Swan and was told that they would not be able to proceed with representing Ms. Roper.

[23] During March and April of 2022, one of the STC employees working with Ms. Roper was Erika Robinson. Ms. Robinson made what Ms. Aubin says to have been false claims that Ms. Aubin was “robbing Ms. Roper blind”. Ms. Robinson helped Ms. Roper consult another lawyer, Steve Pengelly. Ms. Roper met with Mr. Pengelly on 5 April 2022 and signed a direction document so that Mr. Pengelly could retrieve her prior power of attorney information and her will. According to an affidavit sworn by Ms. Robinson, Ms. Roper wanted Mr. Pengelly to ask Ms. Aubin questions about her fee charges and the whereabouts of her mail, which she claimed not to have received for the previous six months. At some point while this was going on, Ms. Aubin became aware of the allegations against her of financial impropriety and mail tampering.

[24] A further meeting between Ms. Roper and Mr. Pengelly was scheduled for 16 April 2022. However, when Ms. Robinson, who was to have attended the meeting as well, arrived at Ms. Roper’s home with Mr. Pengelly, a STC staff member was at the home and did not open the door. Ms. Roper had, in the meantime, prepared a letter to Mr. Pengelly, stating that she no longer required his services.

[25] In the meantime, a capacity assessor had been retained (it is not entirely clear how that came about). On 29 April 2022, Shauna MacEachern, an occupational therapist and designated capacity assessor, reported that, as of 20 April 2022, Ms. Roper was:

a. Not capable of granting, or revoking, a power of attorney for personal care;
b. Not capable of granting, or revoking, a continuing power of attorney for property;
c. Not capable of making property decisions as outlined in s. 6 of the Substitute Decisions Act, 1992; but
d. Capable of making personal care decisions including safety, health care, shelter, nutrition, dressing and hygiene decisions as outlined in s. 45 of the Substitute Decisions Act, 1992.

[26] In her report, Ms. MacEachern wrote that she had seen a number of real estate flyers on Ms. Roper’s kitchen island showing various properties valued at nearly $1 million in Kingston. Her report continues:

Ms. Roper shared me [sic] that Ms. Lee Aubin is looking for a new house that is closer to her parents’ home…Ms. Roper shared that Ms. Lee Aubin had suggested to Ms. Roper that she move into a house with her and her husband.

I asked Ms. Roper if she was prepared to assist Ms. Aubin to purchase such a home. Without hesitation Ms. Roper advised, “I would if she needed it.”

[27] In an email which Ms. MacEachern sent to Mr. Williams in his capacity as Ms. Roper’s attorney for personal care and property, Ms. MacEachern stated that she had “considerable concerns” regarding Ms. Roper’s capacity and there was “an imminent risk of financial abuse”. She continued that she did not know who was receiving and potentially intercepting Ms. Roper’s mail.

[28] The Guardianship Investigations Unit of the Office of the Public Guardian and Trustee was copied on Ms. MacEachern’s email to Mr. Williams. As a result, an investigator from the Office of the PGT became involved.

[29] On 12 May 2022, Lucy Payant, an investigator with the Guardianship Investigations Unit, spoke with Mr. Williams. He advised that he had known Ms. Roper for a number of years. He indicated that until a while ago, Ms. Roper had been doing quite well on her own. Recently, however, his law firm had been alerted by one of Ms. Roper’s personal support workers expressing concerns about financial impropriety on the part of her boss, Lee Aubin. This caused Mr. Williams to review Ms. Roper’s bank account records and, after finding that there had been a withdrawal of $24,000 about which, when asked, Ms. Roper had said: “It’s my money I can do what I want with it”, Mr. Williams had contacted Ms. Roper’s bank and had her account frozen.

[30] The same day, Ms. Payant received a call from Ms. Aubin, who said she was calling on behalf of Ms. Roper. Ms. Aubin told Ms. Payant that Ms. Roper was upset because her accounts were frozen and she did not have funds for groceries. Ms. Aubin asked if Ms. Roper could change an existing power of attorney document. She did not, however, mention the 2021 Power of Attorney document which named herself as Ms. Roper’s attorney for property.

[31] At that point, Ms. Payant did not pursue her investigation, because Mr. Williams had legal authority and appeared to be taking an active role.

[32] Ms. Aubin says that Ms. MacEachern’s capacity assessment report was devastating for Ms. Roper. She says that her health took a dive as a result.

[33] Evidence filed by Ms. Aubin provides details of the efforts that were made, following receipt of Ms. MacEachern’s report and the brief dealings with Mr. Pengelly, to obtain a lawyer to represent Ms. Roper and a further capacity assessment. Throughout this time, Ms. Aubin is adamant that Ms. Roper, of her own volition, and uninfluenced by others, wanted to discharge Mr. Williams as her power of attorney for property “due to her concerns of his financial impropriety”.

[34] Ms. Aubin recorded numerous conversations with various other individuals involved with Ms. Roper. According to Ms. Robinson, Ms. Aubin also installed equipment in Ms. Roper’s residence allowing remote audio surveillance at events taking place in her home.

[35] Ms. Aubin invites the court to place little or no weight on the evidence of Ms. Robinson who, according to Ms. Aubin, during her brief time with Seniors Total Care, had caused STC to be fired from a client that STC had serviced for years. Ms. Aubin claims that Ms. Robinson had made false allegations about her committing financial impropriety and stealing mail. Affidavits from other STC employees suggest that Ms. Robinson was controlling Ms. Roper’s home environment and influencing her to contact a lawyer to investigate Ms. Aubin.

[36] On 9 June 2022, Ms. Roper entered into an agreement of purchase and sale to buy a house in Kingston for $683,000. The sale was due to close on 11 August 2022. However, it fell through when Ms. Roper was unable to produce the purchase funds, as her accounts were frozen.

[37] In the meantime, Ms. Roper had also entered into an agreement of purchase and sale on 19 July 2022 to sell her residence in Picton to Robert and Nancy Johnson.

[38] On 19 August 2022, Ms. Roper purported to execute a continuing power of attorney for property in favour of Ken Foster. However, Ms. Roper’s bank refused to accept this power of attorney, as it had been granted after Ms. Roper had been assessed and found incapable of managing her property.

[39] On the same day – 19 August 2022 – another PGT investigator, Terri Bresolin, received a voicemail from Ms. Aubin. She advised that Ms. Roper had an attorney for property who would not resign. Apparently because Ms. Roper had dementia and could not revoke the power of attorney. Ms. Aubin’s message stated that she believed that Ms. Roper was capable. When Ms. Bresolin and Ms. Aubin spoke, she repeated that opinion and said that she would be obtaining an opinion from another capacity assessor, Monica Stein.

[40] On 30 August 2022, Ms. Payant received a telephone call from Mr. Williams. He indicated that Ms. Roper and Ms. Aubin had been threatening to contact the Law Society, that he had been contacted by a lawyer acting in connection with the real estate transactions, that he and Ms. Roper had discussed her move into community living, and that Mr. Williams was not clear if the move to Kingston was what Ms. Roper wanted or if she was being influenced.

[41] Mr. Williams also advised that he had recently been contacted by RBC (Ms. Roper’s bank) which had been provided with copies of both the 2021 power of attorney purporting to appoint Ms. Aubin as attorney, and the 19 August 2022 power of attorney naming Ken Foster. As a result of the dispute about legal authority, RBC had restricted the accounts and requested a court order to resolve authority for Ms. Roper.

[42] On 1 September 2022, Philippa Geddie, a lawyer with the PGT, contacted Jacob Wright, who was the solicitor acting for Ms. Roper in connection with her real estate transactions. Mr. Wright advised that he had been unaware of any power of attorney document until the issue of getting funds arose. Despite acting for Ms. Roper, he acknowledged that he had not actually met her. He advised Ms. Geddie that he felt Ms. Roper had “some level of incapacity” and may have been coached by Ms. Aubin.

[43] Ms. Geddie then sent an email to Mr. Wright and Mr. Williams. After indicating that because Ms. Roper had an extant continuing power of attorney for property, the PGT did not have legal authority to give directions or instructions with respect to the purchase and sale transactions that Ms. Roper was involved with, the letter from Ms. Geddie continued:

At this time, therefore, there is an urgent need for persons who owe a fiduciary duty to Ms. Roper, as her counsel or as her attorney for property, to take appropriate action to protect her interests, considering what protective mechanisms can be implemented on her behalf whether or not the real estate transactions proceed. While my office cannot advise or direct you as to what constitutes appropriate action under the circumstances, I note that:

• Both of you have expressed concern about Ms. Roper’s capacity to make decisions with respect to her own property; • Both of you have expressed concern that Ms. Roper is susceptible to influence by Ms. Aubin; • Both of you have raised as an issue the fact that the continuing power of attorney dated August 12, 2021 which purports to appoint Ms. Aubin was produced only after the August 19, 2022 [power of attorney] naming Ken Foster was rejected by RBC as invalid.

[44] The letter from Ms. Geddie also recorded that on 12 May 2022, Ms. Aubin had contacted the PGT asking whether she could be appointed as Ms. Roper’s attorney. Ms. Aubin claims that this is “false”.

[45] Later, on 1 September 2022, Mr. Williams resigned as attorney for property for Ms. Roper.

[46] On 23 September 2022, RBC submitted a “Suspected Financial Abuse Referral Form” to the Guardianship Investigations Unit, expressing a concern that Ms. Roper was being financially abused. After setting out some of the history, the form mentioned the recent resignation of Mr. Williams as power of attorney for Ms. Roper “leaving her at risk and vulnerable to financial abuse” and needing “immediate assistance from the office of the PGT especially with the concerns of a pending Purchase [sic] Sale Agreement”.

[47] In the meantime, the PGT had commenced this proceeding, and, on 3 November 2022, Tranmer J. made an order pursuant to s. 27 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, appointing the Public Guardian and Trustee as the temporary guardian of property for Patricia Roper for a period of 90 days. The sale of Ms. Roper’s home in Picton did eventually close. However, the purchase of the home in Kingston did not close and, instead, Ms. Roper moved to an assisted living facility in Kingston.

[48] On 2 February 2023, Justice Tranmer ordered the appointment of BMO Trust Company as guardian of property for Ms. Roper.

[49] A further assessment report concerning Ms. Roper’s capacity was provided by Jonathan Gagnon on 9 November 2022. This request had been made in connection with the then pending application by the PGT to be appointed as Ms. Roper’s temporary guardian. Mr. Gagnon concluded that:

…Patricia Roper is incapable of managing her property. She clearly lacks the understanding that is required in making relevant decisions pertaining to the management of her finances. Ms. Roper demonstrated a limited factual knowledge when it comes to the simple and basics [sic] aspects of her finances. Also, despite on-going education about various components of her affairs, she was unable to learn nor retain the information provided to her.

Issues

[50] The applicant seeks the court’s determination and assistance with respect to the following questions:

a. Are the powers of attorney for personal care naming Ms. Aubin valid? Specifically:
i. Did Ms. Roper have the requisite capacity to execute the 2021 power of attorney for personal care appointing Ms. Aubin?
ii. Were the 2021 powers of attorney for personal care executed in circumstances of undue influence or other grounds that would warrant invalidating these documents?

b. In the event that the court finds that the powers of attorney for personal care naming Ms. Aubin are valid, are there sufficient grounds to terminate that authority and remove Ms. Aubin as Ms. Roper’s attorney for personal care? Specifically:
i. Has Ms. Aubin acted in a manner that warrants her removal as Ms. Roper’s attorney for personal care?
ii. Do section 46(3) and/or section 66(10) of the Substitute Decisions Act, 1992 render the power of attorney for personal care appointing Ms. Aubin invalid?

c. What is the nature and extent of the liability that Ms. Roper has or might have to either Seniors Total Care and/or Ms. Aubin? Specifically:
i. Did Ms. Roper have the requisite capacity to enter into the services agreement with STC?
ii. Should the services agreement entered into between Ms. Roper and STC be rendered void for unconscionability, undue influence, or other applicable grounds?
iii. Is there sufficient and/or credible evidence to validate the nature and extent of services purportedly delivered to Ms. Roper by STC and/or Ms. Aubin?
iv. If Ms. Roper does have liability to STC and/or Ms. Aubin, then should such liability be discounted or otherwise reduced in order to reflect the questionable circumstances in which such liability arose?

Analysis

Ms. Aubin Could Not Act under a Power of Attorney Granted to Her

[51] I have approached my analysis by taking the points raised by the applicant in a different order than they were presented.

[52] In considering the questions put to the court, my starting point is section 46(3) of the Substitute Decisions Act, 1992, which provides:

A person may not act as an attorney under a power of attorney for personal care, unless the person is the grantor’s spouse, partner or relative, if the person,
a) provides health care to the grantor for compensation; or
b) provides residential, social, training or support services to the grantor for compensation.

[53] Mr. Foster, Ms. Aubin’s common law partner, is the sole director and shareholder of STC. Despite Ms. Aubin’s claim that she received no benefit from deciding which caregiving service would receive Ms. Roper’s business, there can be little doubt that, on paper at least, STC has derived significant revenue from providing service to Ms. Roper, and that this could result in a financial benefit to Ms. Aubin. As the applicant submits in its factum, if Mr. Foster enjoys a financial benefit, then Ms. Aubin, either directly or indirectly, also enjoys that benefit. I agree.

[54] Accordingly, when, on 12 August 2021, a power of attorney document was executed purporting to appoint Ms. Aubin as Ms. Roper’s attorney for personal care, Ms. Aubin was immediately placed in a position of conflict with the requirements of section 46(3).

[55] As a consequence, aside and apart from any question of Ms. Roper’s capacity to execute the 2021 power of attorney, if Ms. Aubin was validly appointed, she would have been disqualified from acting under a power of attorney for personal care from 12 August 2021 onwards.

Ms. Roper’s Capacity to Enter into the August 2021 Power of Attorney

[56] As to the question of Ms. Roper’s capacity in August 2021, there were already significant indications of incapacity. While she may often have presented as intelligent and articulate, in July of 2020 she had been involuntarily committed, exhibiting increased paranoia and receiving inpatient care for delusions that stemmed from a neurocognitive disorder.

[57] In Hollinger v. Marshall, 2024 ONSC 404, B. Dietrich J. found that it was more likely than not that a grantor’s “paranoid thinking and lack of capacity” prevented him from understanding whether the proposed attorney for personal care had a genuine concern for his welfare. The applicant argues that in the present case, Ms. Roper was suffering from delusions and paranoia predating the execution of the 2021 power of attorney for personal care. In addition to the observations made in August 2020, on 12 April 2021, a triage assessment reported Ms. Roper as delusional, expressing extreme paranoia about being poisoned, and having required the police to attend her home multiple times in the preceding weeks.

[58] I agree with the submission made by the applicant that, given the chronology, the medical history, and the fact that incapacity was confirmed in Ms. MacEachern’s April 2022 assessment, it is more likely than not that Ms. Roper already lacked the requisite capacity to execute the alleged powers of attorney in August 2021.

Undue Influence When August 2021 Power of Attorney Granted

[59] If I am wrong in finding that Ms. Roper did not have capacity to execute a power of attorney in August 2021, there would remain questions of whether the 2021 power of attorney documents were executed under circumstances of undue influence, and when they were executed.

[60] The starting point is section 7 of the Substitute Decisions Act, 1992. This prescribes a general presumption of capacity. However, that presumption is inoperable where suspicious circumstances surround the execution of powers of attorney. In such circumstances the burden of proving the lack of such influence shifts to the grantee, in this case, Ms. Aubin.

[61] Suspicious circumstances can relate to any of:

a. circumstances surrounding the preparation of the document;
b. circumstances tending to call into question the capacity of the grantor; or
c. circumstances tending to show that the free will of the grantor was oppressed by acts of coercion or fraud: Vout v. Hay, [1995] 2 S.C.R. 876.

[62] In the present case, all three of those elements are present. As already noted, the powers of attorney came into existence a few months after Ms. Aubin had apparently engineered a change of service provider from Seniors for Seniors to STC. Knowing that Ms. Roper had a lawyer acting as her POA, Ms. Aubin downloaded power of attorney forms from the Internet, filled them in, and had Ms. Roper sign them in the presence of Ms. Aubin’s parents.

[63] Seen in the context of Ms. Roper’s documented medical concerns (an example being the Quinte Health Care notes from April 2021, which I have already referred to), the manner in which the August 2021 power of attorney came into existence undoubtedly triggers the doctrine of suspicious circumstances. Nothing that Ms. Aubin has said, in her many self-serving affidavits, or which has been said by other witnesses who are all within Ms. Aubin’s sphere of influence, persuades me that Ms. Aubin has, or can, discharge her onus of proving an absence of undue influence.

[64] Concerns about the 2021 powers of attorney are then further exacerbated by the manner in which the power of attorney for property was deployed. When, in May of 2022 the PGT opened an investigative file for Ms. Roper, Ms. Aubin asked Ms. Payant whether Ms. Roper could change her attorney for property. At the time of that inquiry, Ms. Aubin did not mention the existence of any powers of attorney purportedly executed in 2021. Then, in mid-August of 2022, Ms. Aubin contacted a PGT investigator stating that Ms. Roper had an attorney for property who refused to resign (Mr. Williams) despite the existence of the alleged 2021 power of attorney documents which, if genuine and valid, would have meant that he had already been replaced, thus obviating the need for new such documents. It was only when the 2021 power of attorney was produced to RBC (Ms. Roper’s bank) that those powers of attorney were brought to anyone's attention.

[65] I find Ms. Aubin’s explanation for this – namely, that she had been told by Mr. Tarnowecky that the August 2021 power of attorney was “no good” – unpersuasive, given her eventual attempt to deploy it.

[66] As to when the powers of attorney were executed, I accept as more likely than not the following assertion made in the applicant’s factum:

The PGT noted that the chronology was “odd”, and common sense suggests that the purported 2021 POA documents were not in fact executed at the alleged time and that, instead, those purported 2021 POA documents were antedated in an attempt to circumvent the effect of Ms. MacEachern's capacity assessment.

Services Provided by STC

[67] Having found that the 2021 power of attorney for personal care should be invalidated because of the circumstances in which it was executed and, further, having found that Ms. Aubin could not have acted as Ms. Roper’s power of attorney because of s. 46(3) of the Substitute Decisions Act, 1992, it is not necessary for me to deal with any of the other transgressions which the applicant asserts against Ms. Aubin.

[68] There remains, however, the potential liability of Ms. Roper to STC.

[69] In that regard, I make the preliminary observation that, to the best of the applicant’s knowledge and information, STC has not commenced an action, or taken any other formal steps to collect what it says it is owed. Without making any determination of legal principles that may be applicable, in the event that STC seeks a remedy against Ms. Roper or the applicant for non-payment of its invoices, a limitation defence would, presumably, be raised against any claim for payment for services that were rendered more than two years ago.

[70] Setting that practical consideration to one side, the applicant submits that when Ms. Roper entered into a services agreement with STC on 11 March 2021, she likely lacked the ability to appreciate the nature and effect of that agreement. Where there are reasonable grounds to suggest that another party is incapable of entering into a contract, the contract can be voided ab initio: Substitute Decisions Act, 1992, section 2(3).

[71] By March 2021, Ms. Roper had been receiving caregiving services from Ms. Aubin going back to at least August of 2020.

[72] For a party to be relieved of obligations under a contract on the basis that she lacked capacity to enter into it, the other contracting party must have been aware of facts that should have put that party on notice that the state of mind of the incapable party was in question: Lougheed v. Ponomareva, 2013 ONSC 4347, paras. 42-44, citing Grant v. Imperial Trust Co., 1935.

[73] Given her acquaintance with Ms. Roper since Ms. Roper was discharged from Kingston General Hospital in August 2020, I find it is more likely than not that Ms. Aubin would have been aware of facts that would, or should, have made her aware that there was an issue as to Ms. Roper’s capacity to enter into the services agreement with Seniors Total Care.

[74] Even if I am incorrect in concluding that the services agreement should be invalidated by reason of section 2(3) of the Substitute Decisions Act, 1992, there are, as I will explain, grounds to conclude that the contract was unconscionable and, hence, invalid.

[75] A contract will be unconscionable where there is a) an inequality of bargaining power between the parties to the contract; and b) a resulting improvident bargain: Uber Technologies Inc. v. Heller, [2020] 2 S.C.R. 118, 2020 SCC 16, at para. 62.

[76] Ms. Roper had been receiving caregiving services from Ms. Aubin through Seniors for Seniors at the time that she signed the services agreement with STC. Seemingly unbeknown to Ms. Roper, STC was, at the time, in the process of being incorporated by Ms. Aubin’s partner. The applicant argues that Ms. Roper effectively found herself in circumstances where she would have felt that she had no choice but to sign an agreement with STC in order to continue receiving caregiving services, or at least those provided by Ms. Aubin. The services agreement did not include a fee schedule, and referenced only a single hourly rate of $31.00, with no per diem rate, nor did it make any reference to the scope of services to be delivered. It is worth noting that at the time Ms. Roper entered into the services agreement, she also signed a pre-authorised debit agreement that would have allowed STC to automatically draw funds. It does not appear that that pre-authorised debit agreement was ever activated. Nevertheless, the fact that she was essentially signing a blank cheque at the same time as she entered into the services agreement only serves to heighten concerns about the providence of the agreement.

[77] I agree with the applicant that it would be unconscionable to subject Ms. Roper to the claim being advanced against her by STC, given the inequality of bargaining power, the benefit secured under the services agreement by STC, as well as significant concerns about the appropriateness of the caregiving services that were allegedly delivered to her.

[78] While I have found that the services agreement between Ms. Roper and STC is invalid, this would not necessarily preclude STC from asserting a quantum meruit claim for services actually, and reasonably, provided to Ms. Roper. Such a claim is not, however, before the court at this time.

Decision

[79] For the foregoing reasons, I find that the attorney for personal care that purportedly appointed Ms. Aubin as Ms. Roper’s attorney for personal care is terminated. I further find that the services agreement that Seniors Total Care purported to enter into with Ms. Roper on 11 March 2021 is void and of no force and effect.

[80] However, subject to any applicable defences, STC remains at liberty to advance a quantum meruit claim for services actually, and reasonably, provided to Ms. Roper.

Costs

[81] Given that the applicant has been entirely successful and is presumptively entitled to costs, the applicant submits that in the circumstances costs should be awarded on a substantial indemnity scale to reflect the conduct of Ms. Aubin.

[82] The applicant has provided a detailed bill of costs. Excluding costs awards already addressed in previous motions, the applicant’s full indemnity costs (including disbursements and HST) are $57,299.87; substantial indemnity costs are $45,839.88; and partial indemnity costs are $34,379.91.

[83] Having regard to the parties’ expectations concerning their costs exposure, counsel for the applicant points out that his client’s fees and disbursements are only one third of what Ms. Aubin was said to have been charged by the lawyer who represented her up until September 2024.

[84] In the discharge of its own fiduciary responsibilities, the applicant has had to deal with significant issues of guardianship, including the pursuit of disclosure orders, motions, amendment of pleadings, and voluminous productions by Ms. Aubin including multiple recordings and transcripts of those recordings. The manner in which the application has been conducted by the respondent has made it overly complex and unnecessarily prolonged.

[85] Not only are the guardianship issues important; so is the potential liability of Ms. Roper to STC’s invoices.

[86] Substantial indemnity costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.

[87] Courts will generally award substantial indemnity costs to compensate a party for the other party’s conduct during the course of litigation, rather than compensating for conduct that occurred prior to litigation. However, substantial indemnity costs may be sought in relation to conduct that occurred prior to litigation so long as damages sought are not in reference to the same conduct.

[88] Ms. Aubin does not challenge the reasonableness of the applicant’s bill of costs. However, she states that she is already substantially out of pocket as a result of this proceeding and has yet to be paid for moving expenses which she says Ms. Roper should have reimbursed her for. She argues that she should not be required to pay the applicant’s costs.

[89] I have concluded that Ms. Aubin has breached the statutory prohibition against a service provider, such as Ms. Aubin, acting as an attorney under a power of attorney, that Ms. Roper purportedly executed a power of attorney in Ms. Aubin’s favour under her undue influence, and that Ms. Aubin purported to contract with Ms. Roper for the provision of services by STC when she knew or should have known that Ms. Roper lacked capacity. These are all findings which could warrant an enhanced award of costs. I find that Ms. Aubin’s conduct has been reprehensible and outrageous.

[90] I am satisfied that this is a case that merits an award of costs on a substantial indemnity scale. I therefore order Ms. Aubin to pay the applicant’s costs, fixed in the all-inclusive amount of $45,000.

Graeme Mew
Released: 14 April 2025