Cepuran v. Carlton, 2022 BCCA 76 (CanLII)
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Source:
Court of Appeal for British Columbia
Date:
2022-02-24
File number:
CA47348
Other citation:
62 BCLR (6th) 277
Citation:
Cepuran v. Carlton, 2022 BCCA 76 (CanLII), <https://canlii.ca/t/jmmf9>, retrieved on 2026-09-01
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Cepuran v. Carlton,
2022 BCCA 76
Date: 20220224
Dockets: CA47348; CA47350; CA47352
Docket: CA47348
Between:
Ana Cepuran also known as Anna Cepuran
Appellant
(Petitioner)
And
Harold Brian Carlton, Sheri Colleen Cepuran, and
Urban Properties Limited
Respondents
(Respondents)
- and -
Docket: CA47350
In the Matter of the Patients Property Act,
R.S.B.C. 1996, c. 349, and amendments thereto
And
In the Matter of Anna Cepuran also known as Ana Cepuran
- and -
Docket: CA47352
Re: The Anna Cepuran Alter Ego Trust
Before:
The Honourable Mr. Justice Groberman
The Honourable Mr. Justice Willcock
The Honourable Justice Griffin
The Honourable Mr. Justice Butler
The Honourable Mr. Justice Abrioux
On appeal from: An order of the Supreme Court of British Columbia, dated March 5, 2021 (Cepuran v. Carlton, 2021 BCSC 542, Vancouver Dockets S1912126, S2012184, and S199918).
Counsel for the Appellant (via videoconference):
D.K. Magnus
E. Watson, Articled Student
Counsel for the Respondent Sheri Cepuran (via videoconference):
E. Clough
P. Storey
Counsel for the Respondent Public Guardian and Trustee (via videoconference):
M.G. Underhill
S.J. Watson
Place and Date of Hearing:
Vancouver, British Columbia
January 6, 2022
Place and Date of Judgment:
Vancouver, British Columbia
February 24, 2022
Written Reasons by:
The Honourable Justice Griffin
Concurred in by:
The Honourable Mr. Justice Groberman
The Honourable Mr. Justice Willcock
The Honourable Mr. Justice Butler
The Honourable Mr. Justice Abrioux
Summary:
The appellant, Ana Cepuran, appeals from orders that she submit to a medical assessment and that the issue of whether she has capacity to manage her affairs be referred to trial, in a petition brought by her daughter Sheri Cepuran under the Patients Property Act. She also appeals from orders that two other petition proceedings be converted into a consolidated action. One petition deals with her revocation of a power of attorney given to her daughter, and the other has to do with a trust created by her daughter dealing with Ana’s property. Held: Appeal in respect of the PPA allowed; other appeals dismissed. The judge erred in making the orders under the PPA, because the required two medical opinions attesting to incapacity were not produced to the court. In addition, the test applied by the judge for referring a petition to trial—namely, whether there is a triable issue—should no longer be the test as it fails to take into account changes in the Rules and the modern approach to civil litigation. The question of whether to refer a petition to trial is a subject of discretion, which should take into account a number of factors, including the statutory context and proportionality. The judge’s orders under the PPA are set aside and as a result the PPA petition is dismissed. The parties have already converted the other two petitions to a consolidated action and so there is no practical benefit in remitting for reconsideration the issue of whether those matters ought to be converted to an action. The appeals from the other two petitions are therefore dismissed. However, the parties are free to seek directions in that action, limiting the procedures available or adopting summary procedures within the action.
Table of Contents
Paragraph Range
Key Statutory Provisions and Rules of Court
[6] – [17]
Leading Cases
[18] – [52]
Interpreting the PPA
[18] – [37]
Parens Patriae Jurisdiction Where There Is a Legislative Gap
[38] – [47]
Procedure of Referring Petitions to Trial
[48] – [52]
Background Facts
[53] – [65]
Medical Evidence
[66] – [84]
Reasons for Judgment of Chambers Judge
[85] – [89]
Issues on Appeal
[90] – [93]
Discussion
[94] – [172]
Did the Judge Err in Making Orders under the PPA?
[94] – [109]
Is an In-person Assessment a Requirement of the Petitioner’s Medical Evidence under the PPA?
[110] – [120]
Can the Judge’s Order Be Sustained under Parens Patriae Jurisdiction?
[121] – [139]
Revisiting When Petitions Should Be Referred to Trial
[140] – [166]
Additional Remedies in the Trustee Petition and the Nullification Petition
[167] – [172]
Conclusion
[173] – [174]
Reasons for Judgment of the Honourable Justice Griffin:
[1] This is an appeal by Ana Cepuran from orders that there be a trial of the issue of whether she is incapable of managing her affairs, converting a petition seeking this relief into an action, and requiring her to submit to examinations of her capacity by two geriatric psychiatrists, all pursuant to the Patients Property Act, R.S.B.C. 1996, c. 349 [PPA].
[2] It is also an appeal by Ana Cepuran from an order, made at the same time, consolidating two petition proceedings relating to the revocation of a power of attorney and the Ana Cepuran Alter Ego Trust, converting them into an action, and referring them to the trial list.
[3] The reasons for judgment explaining the basis of the judge’s orders, made March 5, 2021, are indexed as 2021 BCSC 542.
[4] The appeal raises questions as to when it is appropriate under the PPA to order medical examinations of a person and to refer the issue of the person’s capacity to trial.
[5] The appeal also raises general questions regarding when it is appropriate to convert a petition to an action and refer it to the trial list.
Key Statutory Provisions and Rules of Court
[6] The starting point is that all adults are presumed to have legal capacity over their personal care and finances, unless the contrary is “demonstrated”. This is codified in s. 3(1) of the Adult Guardianship Act, R.S.B.C. 1996, c. 6 [AGA]:
3 (1) Until the contrary is demonstrated, every adult is presumed to be capable of making decisions about the adult’s personal care, health care and financial affairs.
(2) An adult’s way of communicating with others is not grounds for deciding that he or she is incapable of making decisions about anything referred to in subsection (1).
[7] The provisions of the PPA relevant to this appeal are ss. 3 and 5, which provide:
Hearing of application
3 (1) If, on
(a) hearing an application, and
(b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of
(i) mental infirmity arising from disease, age or otherwise, or
(ii) disorder or disability of mind arising from the use of drugs,
incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs,
the court is satisfied that the person is, because of
(c) mental infirmity arising from disease, age or otherwise, or
(d) disorder or disability of mind arising from the use of drugs,
incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs, it must, by order, declare the person
(e) incapable of managing his or her affairs,
(f) incapable of managing himself or herself, or
(g) incapable of managing himself or herself or his or her affairs.
(2) The court may, on hearing an application under this section and reading the affidavits described in subsection (1), direct an issue to be tried, and in that event the following provisions apply:
(a) the question in issue is whether the person who is the subject of the application is, because of
(i) mental infirmity arising from disease, age or otherwise, or
(ii) disorder or disability of mind arising from the use of drugs,
incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs;
(b) this Act applies to the issue and the trial of it;
(c) the Supreme Court Civil Rules apply;
(d) the court must
(i) dismiss the application, or
(ii) by order, declare that the person who is the subject of the application
(A) is incapable of managing his or her affairs,
(B) is incapable of managing himself or herself, or
(C) is incapable of managing himself or herself or his or her affairs.
…
Examination
5 (1) If
(a) an application is made or an issue is tried under section 3,
(b) an appeal is taken from an order under section 3, or
(c) an application is made under section 4,
the court hearing the appeal or application or trying the issue may order the person who is the subject of the application or the patient to attend and submit at the time and place the order directs to examination.
(2) An examination under this section must be made by
(a) one or more medical practitioners other than those whose affidavits were before the court on the appeal, application or trial, or
(b) a board of 3 or more medical practitioners designated by the College of Physicians and Surgeons of British Columbia at the request of the court.
(3) If the person who is the subject of the application or the patient requests an examination under this section, unless the court hearing the appeal or application is satisfied that the person or patient is not mentally competent to form and express the request, the court must order the examination.
[Emphasis added.]
[8] Also relevant to this appeal are certain Supreme Court Civil Rules.
[9] The Rules set out those proceedings that must be commenced by petition, known as a petition proceeding, in contrast to those proceedings commenced by a notice of civil claim, known as an action.
[10] The three proceedings at issue on appeal were all properly commenced by petition.
[11] Rules 1‑2(4) and 2‑1(2)(b) provide that if an enactment authorizes an application to the court, the application must be by petition.
[12] The PPA authorizes applications to the court. Therefore, a PPA application must be commenced by petition.
[13] Rule 2‑1(2) lists the types of proceedings that must be brought by petition as follows (emphasis added to those categories relevant to the petitions here):
(2) To start a proceeding in the following circumstances, a person must file a petition or, if Rule 17‑1 applies, a requisition:
(a) the person starting the proceeding is the only person who is interested in the relief claimed, or there is no person against whom relief is sought;
(b) the proceeding is brought in respect of an application that is authorized by an enactment to be made to the court;
(c) the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract or other document;
(d) the relief, advice or direction sought relates to a question arising in the execution of a trust, or the performance of an act by a person in the person’s capacity as trustee, or the determination of the persons entitled as creditors or otherwise to the trust property;
(e) the relief, advice or direction sought relates to the maintenance, guardianship or property of infants or other persons under disability;
(f) the relief sought is for payment of funds into or out of court;
(g) the relief sought relates to land and is for
(i) a declaration of a beneficial interest in or a charge on land and of the character and extent of the interest or charge,
(ii) a declaration that settles the priority between interests or charges,
(iii) an order that cancels a certificate of title or making a title subject to an interest or charge, or
(iv) an order of partition or sale;
(h) the relief, advice or direction sought relates to the determination of a claim of solicitor and client privilege.
[Emphasis added.]
[14] The requisition category relates to consent orders and proceedings where notice need not be given, and is not relevant to this appeal (R. 17‑1).
[15] Rule 16‑1 provides the requirements for, among other things, the form of a petition and a response to petition, service, affidavits, and setting the petition for hearing.
[16] Rule 16‑1(18) was brought into force in 2010 and provides:
(18) Without limiting the court’s right under Rule 22‑1 (7) (d) to transfer the proceeding referred to in this rule to the trial list, the court may, whether or not on the application of a party, apply any other of these Supreme Court Civil Rules to a proceeding referred to in this rule.
[17] Rule 22‑1 governs chambers proceedings, and applies to the hearing of a petition: R. 22‑1(1)(a). Rule 22‑1(4) provides:
(4) On a chambers proceeding, evidence must be given by affidavit, but the court may
(a) order the attendance for cross‑examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy of that document,
(d) order an inquiry, assessment or accounting under Rule 18‑1, and
(e) receive other forms of evidence.
Leading Cases
Interpreting the PPA
[18] In McNeal v. Few (1975), 63 B.C.L.R. 281, 1975 CanLII 216 (C.A.), this Court held that a trial court cannot order a medical examination under what is now s. 5(1)(a) of the PPA unless the threshold requirement under what is now s. 3(1)(a) and (b) is met—the application must be supported by two medical affidavits of incapacity. This Court reasoned that in the absence of the affidavits of two qualified medical practitioners, it would not be an application under s. 3, it would be “merely an application to have somebody examined by some doctors” (at 284).
[19] In McNeal, concerns were raised about Ms. McNeal’s capacity because she seemed to be irresponsible with large sums of her money and was potentially being exploited by others. There were two affidavits of medical practitioners provided to the lower court. One provided the opinion that Ms. McNeal did not suffer from any mental impairment. The other, by someone who did not examine her, raised concerns about her behaviour, which indicated she “may” have a mental infirmity, and suggested that this question could not be resolved unless she was examined by qualified medical practitioners. In cross‑examination, this latter doctor said Ms. McNeal’s conduct gave reason for wanting to examine her to investigate her capacity.
[20] This Court in McNeal found that there was no medical evidence that could support an order under the PPA, including no justification for an order that Ms. McNeal attend a medical examination.
[21] Subsequently, in Re Scow (1985), 63 B.C.L.R. 287, 1985 CanLII 474 (S.C.), a party wishing to obtain evidence to support an application under the PPA sought to invoke a rule of civil procedure, then Rule 30, that allows the court to order a person submit to medical examination where that person’s mental condition is at issue in a proceeding. Murphy L.J.S.C. rejected the application, citing McNeal for the proposition that there is no procedure in the PPA for ordering the examination of a person for whom a committee is sought prior to the production of the two medical affidavits required by what is now s. 3.
[22] This interpretation of McNeal, in my view, is correct.
[23] As explained by Murphy L.J.S.C. in Re Scow at 291:
The concluding words of McFarlane J.A. in [McNeal], which I have emphasized, are a strong statement as to the requirements for the appointment of a committee, and is still the law today notwithstanding the provisions of R. 30. It is as equally serious to require a person to attend for a medical examination to determine that person’s mental capacity as it is to ask the court to appoint a committee without requiring two preliminary medical affidavits. The advent of R. 30 in its present form has not altered that basic requirement. The Patients Property Act is a code in itself for the appointment of a committee. If the legislature had considered that provisions for obtaining the required medical affidavits in respect of a person who was unwilling to be examined were necessary, desirable or required, the legislature would have enacted them. The Act itself allows the court to order a person to attend for a medical examination, but only after the initial medical affidavits have been provided. I do not think that a procedural provision in the Rules can operate as an amendment to the Act, which would be the result, in effect, if R. 30 is applicable. Rule 30 speaks of the physical or mental condition of a person which is in issue. Under the Act there is no issue until the court directs an issue under s. 2(5). This occurs only on hearing an application and reading the required affidavits.
[Italicized emphasis in original; underlined emphasis added.]
[24] McNeal has thus long stood for the proposition that a threshold requirement for any orders made by the trial court under ss. 3 or 5(1)(a) of the PPA is that the applicant must produce two affidavits of medical practitioners attesting to the person’s incapacity by reason of mental infirmity arising from disease, age or otherwise (or the use of drugs, but this reason was not advanced here, and so I will not continue to mention it).
[25] The interplay of ss. 3 and 5(1)(a) of the PPA creates a two‑stage analysis where the necessary two medical affidavits have been provided. At the first stage, the judge considers whether the judge is “satisfied” by the two medical affidavits that the person is, because of mental infirmity arising from disease, age or otherwise, incapable of managing his or her affairs or person. If the judge is satisfied, the order declaring the person incapable must be granted. If the judge is not satisfied, there is a second stage: the judge has discretion to refer the capacity issue to trial pursuant to s. 3(2), or to order the person submit to medical examination pursuant to s. 5. The judge may also dismiss the petition.
[26] This type of two‑stage analysis occurred in B.C. (Public Trustee Of The Province of) v. Batiuk, 1996 CanLII 2097 (B.C.S.C.). The Public Trustee applied under the PPA to declare Mrs. Batiuk incapable. Justice Allan noted that while the Public Trustee eventually filed the requisite two medical affidavits attesting that Mrs. Batiuk was incapable, this evidence was seriously flawed. The medical practitioners based their opinions on old medical records and had not completed recent assessments of Mrs. Batiuk. As such, Allan J. found that the petitioner’s evidence did not meet the requirement of satisfying the court that Mrs. Batiuk was incapable.
[27] Justice Allan in Batiuk noted that the PPA does not give the court general jurisdiction to inquire into the capacity of an adult. She held:
[9] In proceedings under the Act, it is clear that the Court does not have a broad mandate to investigate and weigh evidence in a manner analogous to the determination of a child’s best interests in custody and access litigation. The Act presumes an adult person competent and specifies the method by which that presumption may be displaced. The strict requirements of the Act reflect the fact that a finding of incapacity may impose serious restrictions upon a person’s liberty and security.
[28] The Public Trustee in Batiuk sought in the alternative that the judge order a further medical examination of Mrs. Batiuk. The court considered the fact that Mrs. Batiuk had obtained her own medical opinions from physicians who examined her and found her to be capable. This evidence was weighed in the court’s discretion and decision not to order a further medical examination. The petition was dismissed.
[29] This brings me to the authority of the Court of Appeal to order a medical examination under the PPA, as distinct from the trial court.
[30] Again, s. 5(1) of the PPA provides:
5 (1) If
(a) an application is made or an issue is tried under section 3,
(b) an appeal is taken from an order under section 3, or
(c) an application is made under section 4,
the court hearing the appeal or application or trying the issue may order the person who is the subject of the application or the patient to attend and submit at the time and place the order directs to examination.
[Emphasis added.]
[31] An application made under s. 4 is an application for an order declaring a person no longer incapable. Section 4 is not relevant to the present case other than to note that this section recognizes that a person’s capacity may improve over time.
[32] In Kartsonas v. Kartsonas, 2009 BCCA 218, this Court found that s. 5(1)(b) gives the Court of Appeal authority to order a medical examination as a remedy on an appeal from a s. 3 order.
[33] Kartsonas involved a PPA application by the children of Mr. Kartsonas to declare him incapable of managing his affairs and to appoint them as co‑committees of his estate. The applicants relied on the affidavits of two geriatric psychiatrists. One, Dr. Rabheru, assessed Mr. Kartsonas and provided the opinion, in report and affidavit form, that he was not capable of managing his financial affairs. The other, Dr. McDonald, did not want to conduct an assessment because he was concerned it would damage his continuing therapeutic relationship with Mr. Kartsonas, whom he had been treating.
[34] In his opinion and affidavit, Dr. McDonald stated that “Mr. Kartsonas has not significantly changed since Dr. Rabheru found him financially incapable. It is also my opinion that the issue of Mr. Kartsonas’s capacity is complex due to his frontal cognitive impairment.” In his appended report, Dr. McDonald noted that he had referred Mr. Kartsonas to Dr. Rabheru for assessment, and that he agreed with Dr. Rabheru’s assessment that Mr. Kartsonas was not capable of managing his finances. Nevertheless, in his affidavit, Dr. McDonald went on to recommend that Mr. Kartsonas have a complete competency assessment to determine his capacity to manage his financial affairs.
[35] In the decision under appeal in Kartsonas, 2008 BCSC 1437, the chambers judge interpreted Dr. McDonald’s opinion as agreeing with Dr. Rabheru’s assessment as to incapacity, and the judge found that the s. 3(1) requirement of two medical affidavits was met. The judge made an order under s. 3 declaring Mr. Kartsonas incapable of managing his financial affairs. She did not make a similar order regarding incapacity to manage personal care decisions, because the physicians’ affidavits had not provided opinions in that regard.
[36] On appeal, this Court in Kartsonas found that Dr. McDonald’s affidavit did not constitute an opinion as to incapacity, and so the judge erred in making the s. 3 order. Justice Newbury held:
[17] It was on this affidavit and Dr. Rabheru’s affidavit described above that the petitioners relied … to meet the requirements of s. 3(1)(b) of the Act. I do not find it necessary to consider the opinions of the other doctors who did not find Mr. Kartsonas to be incompetent, since it is my view that Dr. McDonald’s affidavit did not constitute an opinion that Mr. Kartsonas is “because of mental infirmity arising from disease, age or otherwise, incapable of managing his affairs”. While Dr. McDonald stated in his letter that he had previously agreed with Dr. Rabheru’s opinion of June 15, 2005, his affidavit sworn June 11, 2008 opined only that the issue of Mr. Kartsonas’ capacity was “complex” and that he would benefit from a complete assessment. Given the very serious nature of a committeeship order, it is not appropriate to grant, nor does the Act permit the court to grant, an order of committeeship on the basis of ambiguous or unclear medical opinions, or opinions that are not up to date.
[18] In these circumstances, it seems to me that it would be appropriate for this court to order an assessment of Mr. Kartsonas pursuant to s. 5(1)(b) of the Act. Since the Act specifies that the order must state the time and place which Mr. Kartsonas must attend, I would ask that counsel confer with appropriate medical practitioners or the College of Physicians and Surgeons of British Columbia and advise the Court in writing no later than 60 days after issuance of these reasons. The order may then be prepared and entered.
[Emphasis added.]
[37] It is clear from Kartsonas that s. 5(1)(b) provides a choice of remedy to this Court on appeal from an order made under s. 3, including an order declaring a person to be incapable, where it is found that there was an error by the lower court in making the order. There was no discussion in Kartsonas as to the factors to be weighed in this Court’s exercise of its discretion to order a medical examination, but it clearly turned on the unique facts of the case. There was at least one clear medical opinion as to incapacity, and a supportive albeit ambiguous affidavit of the person’s family doctor, who suggested there should be a further assessment.
Parens Patriae Jurisdiction Where There Is a Legislative Gap
[38] The strict requirements of the PPA have led persons concerned about an ailing senior relative to argue that the trial court has inherent parens patriae jurisdiction to intervene when a vulnerable person is in need of protection in order to assist in obtaining the necessary two assessments.
[39] This inherent jurisdiction was relied upon by the applicant in Temoin v. Martin, 2012 BCCA 250. In Temoin, a daughter became concerned about her 87‑year‑old father, who had substantial assets. She wanted him declared incapable under s. 3 of the PPA but did not obtain the necessary two affidavits. She brought an application to the court for an order that her father attend two medical examinations. She relied on the court’s parens patriae jurisdiction.
[40] In Temoin, the chambers judge held that the court had parens patriae jurisdiction to make such an order in some circumstances. After confirming the existence of this jurisdiction, Justice Fisher (as she then was) nevertheless concluded she would not make the order sought, as the applicant had not provided sufficient evidence to establish prima facie incompetence or that the father was in need of protection.
[41] On appeal, this Court in Temoin accepted that McNeal and Re Scow stand for the proposition that absent the necessary two medical affidavits conforming to s. 3 of the PPA, there is no authority under the PPA for a judge hearing a s. 3 application to order a person to submit for a medical examination (at paras. 46–48).
[42] This Court then considered the scope of the parens patriae jurisdiction. While the exercise of this jurisdiction is discretionary and flexible, three requirements are necessary: the evidence must establish serious questions to be tried as to both the person’s incapacity and the person’s need for protection; and there must be a legislative gap that can only be filled by the court exercising its jurisdiction: paras. 57–61.
[43] The daughter, who was the appellant in Temoin, argued that this standard set the threshold too high for the exercise of the parens patriae jurisdiction. This Court rejected that argument and upheld the decision below, noting the important Charter values of liberty, autonomy, and equality that are engaged by forcing an adult to undergo an involuntary medical examination of capacity:
[57] The chambers judge addressed the evidentiary requirements [for the exercise of the parens patriae jurisdiction], and found an order compelling medical examinations of Mr. Martin for the purpose of s. 3 of the Patients Property Act could only be made if there was prima facie proof of incompetence and a compelling need for protection.
[58] Ms. Temoin argues this set the threshold too high. She points out the Patients Property Act is directed to the protection of vulnerable individuals and stipulates medical evidence is essential in accomplishing that aim. She maintains the evidentiary test should reflect the importance of these objectives by adopting a lower threshold that errs in favour of obtaining the required medical evidence. Ms. Temoin submits that once a person’s capacity is properly raised in a proceeding, an order for a medical examination is justified if the evidence supports a reasonable apprehension that the person lacks capacity. She also complains the threshold set by the chambers judge is impractical as it is circular. It requires the applicant to establish incompetence before an order for medical proof of that incompetence can be made.
[59] I do not find these arguments persuasive as they fail to recognize the significance of personal autonomy and the serious consequences of an order for committeeship or the intrusive nature of compelling an individual to undergo medical examination against his or her will. As well, a less onerous test has the potential to invite unwarranted harassment and abuse by individuals who bring proceedings under the Patients Property Act for self‑serving motives.
[60] There is considerable support for a high evidentiary threshold in these circumstances. The analysis must begin with the premise that Mr. Martin enjoys the benefit of the presumption of capability. The decisions of this Court in McNeal and Kartsonas affirm the significance of losing personal autonomy to a committee. The Supreme Court in Re Eve advocated a cautionary approach to exercising parens patriae jurisdiction, and emphasized it must be used for the benefit of the person in need of protection, and not to benefit others. That Court has also repeatedly affirmed that the common law should be informed and guided by the values set out in the Canadian Charter of Rights and Freedoms: R.W.D.S.U. v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573 at 603, 33 D.L.R. (4th) 174; Hill v. Church of Scientology of Toronto (1995), 1995 CanLII 59 (SCC), 126 D.L.R. (4th) 129 at 155 (S.C.C.); R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., 2002 SCC 8 at paras. 18 and 21, [2002] 1 S.C.R. 156. Ms. Temoin’s application unquestionably implicates principles of liberty, autonomy and equality, and Charter values are thus inescapably engaged. Those values are given meaning by requiring a level of proof that is commensurate with both the importance of the individual interests and the seriousness of the intervention at stake.
[61] Ultimately, the exercise of the parens patriae power is discretionary, and will be governed by the facts of the individual case. Thus, flexibility is required and I decline to endorse one evidentiary standard for all cases of this nature. It is, however, beyond dispute that the applicant must present evidence establishing a serious question to be tried, both with respect to the individual’s capacity and his or her need for protection. In this case, I am satisfied the chambers judge made no error in requiring prima facie evidence of incompetence and a compelling need for protection before she would exercise her parens patriae jurisdiction to make the order sought by Ms. Temoin.
[Emphasis added.]
[44] I turn now to the requirement of a legislative gap.
[45] As held by Justice Neilson in Temoin, a superior court may only exercise its parens patriae jurisdiction if it can do so without contravening a statutory provision—in other words, there must be a legislative gap (para. 44). The question in Temoin was whether there was a legislative gap in the PPA because it did not provide protection for an adult who appears to be incompetent but refuses to undergo medical assessments or has no access to physicians. The Court found there was such a gap:
[50] Whether a legislative gap exists is a question of legislative intent. The Patients Property Act reveals two objectives, both of which serve the goal of free choice. First, it guards the autonomy of capable individuals by requiring a minimum of two medical affidavits to rebut the presumption of capability. Second, it protects the interests of vulnerable adults whose capacity has been compromised by mental infirmity, and who are therefore incapable of making autonomous choices.
[51] The legislative framework of the Act, however, presupposes a willing participant in two medical assessments, as well as ready access to two properly qualified physicians. It provides no protection for individuals who appear to be incapable but have no access to physicians, or who refuse to be medically examined. This gap is particularly acute if the refusal to undergo examinations flows from the apparent incapability. In these cases, the requirement of two medical opinions, designed to protect individual autonomy, become an impediment that places individuals who are incapable of making free choices beyond assistance. The inability to order medical examinations to provide an evidentiary foundation for a hearing under s. 3 of the Patients Property Act leaves these individuals without autonomy or protection, and creates a gap that is incompatible with its legislative objectives.
…
[53] I also find support for this conclusion in the fact that other provinces have filled this gap by enacting legislation that permits an application for professional assessments related to determination of capacity: Adult Guardianship and Trusteeship Act, S.A. 2008, c. A‑4.2, ss. 104-105; Infirm Persons Act, R.S.N.B. 1973, c. I‑8, ss. 5 and 8; Substitute Decisions Act, S.O. 1992, c. 30, s. 79; The Adult Guardianship and Co‑decision-making Act, S.S. 2000, c. A‑5.3, ss. 30 and 38. As the chambers judge noted, s. 4 of Bill 29, Adult Guardianship and Planning Statutes Amendment Act, 3rd Sess, 38th Parl, British Columbia, 2007, addresses the same issue in this province, but it has never been proclaimed and so has no status in this debate.
[Emphasis added.]
[46] In finding this legislative gap for adults who refuse to be assessed but are in need of protection, this Court pointed to proposed legislation that allowed for assessments in such circumstances, which had yet to be enacted in this province.
[47] Temoin was decided in 2012. Subsequently, in December 2014, the legislature brought into force new provisions of the AGA. Based on the new provisions, it could be argued that the legislative gap referenced in Temoin has since been closed, or at least narrowed, in respect of circumstances where there are concerns about an adult’s ability to manage their financial affairs and the adult is refusing to be assessed. I will come back to this point.
Procedure of Referring Petitions to Trial
[48] One of the questions on this appeal is whether a judge hearing a petition and concluding there are disputed issues of fact must necessarily refer the petition to trial.
[49] In British Columbia (Milk Marketing Board) v. Saputo Products Canada G.P. / Saputo Produits Laitiers Canada S.E.N.C., 2017 BCCA 247 [Saputo], a three‑judge division of this Court considered itself bound by previous decisions of the Court that held that a petition must be referred to trial where there is a bona fide triable issue:
[43] This Court has long held that proceedings brought by petition should be referred to the trial list when there are disputes of fact or law, unless the party requesting the trial is bound to lose: Bank of British Columbia v. Pickering (1983), 1983 CanLII 178 (BC CA), 62 B.C.L.R. 136 (C.A.) at 138; Montroyal Estates Ltd v. D.J.C.A. Investments Ltd. (1984), 1984 CanLII 775 (BC CA), 55 B.C.L.R. 137 (C.A.) at 138–139; Douglas Lake Cattle Co. v. Smith (1991), 1991 CanLII 3954 (BC CA), 54 B.C.L.R. (2d) 52 (C.A.) at paras. 35–37; Dia‑Kas Inc. v. Virani (1997), 1997 CanLII 4118 (BC CA), 88 B.C.A.C. 26 at para. 7; Dockside Brewing Co. Ltd. v. Strata Plan LMS 3837, 2007 BCCA 183 at para. 78; Wang v. British Columbia Medical Association, 2010 BCCA 43 at para. 67; Robertson v. Dhillon, 2015 BCCA 469 at paras. 55–56.
[44] In Robertson, the Court set out the test to determine whether a petition should be converted to a trial:
[55] On the hearing of a petition, a judge must be satisfied that there is no dispute as to the facts or law which raises a reasonable doubt or which suggests that there is a defence that deserves to be tried: Douglas Lake Cattle Co. v. Smith (1991), 1991 CanLII 3954 (BC CA), 54 B.C.L.R. (2d) 52 (C.A.) at 59. If such a dispute exists, the judge may refer the matter to the trial list, pursuant to R. 22‑1(7) (former R. 52(11)(d)).
[56] The test is not that used to determine a summary trial. Rather it is akin to that on an application for summary judgment under R. 9‑6. Mr. Justice Lambert summarized the task in Montroyal Estates Ltd. v. D.J.C.A. Investments Ltd. (1984), 1984 CanLII 775 (BC CA), 55 B.C.L.R. 137 (C.A.) at 138-39:
We were referred by counsel for T & A Holdings Ltd. to the judgment of Esson J. (as he then was) in Progressive Const. Ltd. v. Newton, 1980 CanLII 493 (BC SC), 25 B.C.L.R. 330, [1981] 2 W.W.R. 741, 117 D.L.R. (3d) 591 (S.C.), and particularly at p. 334. There Esson J. summarizes, in my opinion, accurately, the law in relation to establishing a defence on an application for summary judgment in these words [pp. 334-35]:
The cases do not establish an invariable rule as to what steps must be taken to resist a R. 18 application for summary judgment. On all such applications the issue is whether, on the relevant facts and applicable law, there is a bona fide triable issue. The onus of establishing that there is not such an issue rests upon the applicant, and must be carried to the point of making it “manifestly clear”, which I take to mean much the same as beyond a reasonable doubt. If the judge hearing the application is left in doubt as to whether there is a triable issue, the application should be dismissed.
In essence, if the defendant is bound to lose, the application should be granted, but if he is not bound to lose, then the application should be dismissed.
[Emphasis in Saputo.]
[50] Referring a petition proceeding to the trial list is shorthand for converting the proceeding into an action, where the full scope of discovery applies and where the issues can be determined at a trial involving live witnesses.
[51] In Saputo, the Court noted that a five‑justice division would be necessary to overrule the test for referring a petition to trial (para. 48).
[52] On this appeal, the appellant therefore sought a five‑justice division to reconsider the proposition relied upon in Saputo.
Background Facts
[53] I turn now to the background facts. The respondent Sheri Cepuran is the only surviving child of the appellant Ana Cepuran and John Cepuran. While the appellant and John also had a son, Grant, he died in April 2017 and was survived by his wife and three children.
[54] John died in April 2019.
[55] It is Sheri’s evidence that she discussed estate planning with her parents while John was alive. She was in regular contact with them, assisting them financially and personally. Her mother, the appellant, was not involved in financial and legal decisions. Sheri was given an enduring power of attorney by both parents, effective immediately. She was named their representative under representation agreements.
[56] When John died, Sheri became concerned about her mother’s health. She noticed her mother’s increasingly strange and inconsistent behaviour. She documented some of this by recording voicemail messages from her mother, which were rambling and incoherent and suggested confusion, and surreptitiously photographing her mother rummaging through public garbage bins to pick garbage. Other witnesses also gave evidence about the appellant acting strangely. Sheri visited her mother’s family doctor, Dr. Vinnitsky, to voice some of her concerns, and she thought that the family doctor expressed similar concerns.
[57] The appellant, on the other hand, became concerned about Sheri’s involvement in managing the appellant’s assets, and formed the opinion that Sheri was becoming too domineering and controlling. These assets consist primarily of real estate properties: a five‑acre parcel in Surrey, on which is located a single‑family home where the appellant lives (the “Surrey Property”); and two lots on or adjacent to West Broadway in Vancouver, one of which has a mix of residential and commercial rental units, and the other of which contains a single‑family home (the “Vancouver Properties”). Sheri, through her company Urban Properties, manages the Vancouver Properties.
[58] The Vancouver Properties have required some remediation work and renovations, which have affected revenues and have become one reason for the appellant’s distrust of Sheri. Sheri is concerned that the appellant has forgotten the discussions they had about these things. The appellant thought that Sheri was not optimizing revenue, as Sheri, Sheri’s ex‑husband, and another associate lived at the properties rent‑free. Sheri explained that this arrangement was in exchange for services, and said she was fully transparent with her mother about it.
[59] In July 2019, Sheri filed a caveat against title to the properties owned by the appellant, asserting that the appellant had become incapable of managing her own financial affairs and was vulnerable to potential financial abuse. A copy of the caveat was mailed to the appellant by the Land Title Office based on standard practice. The appellant was upset by the caveat, but Sheri explained that she did this to protect her mother.
[60] In addition, after obtaining legal advice, Sheri concluded that it was necessary for her to act under the power of attorney to protect her mother’s interests. Sheri took steps to transfer the appellant’s beneficial interest in the properties to a trust, the Ana Cepuran Alter Ego Trust (the “AET”). According to Sheri, she did so because this was the expressed desire of her father before his death, and because she wanted to protect the appellant’s assets from any irrational conduct by the appellant. The appellant is highly critical of this transfer and asserts that Sheri took these steps without discussing them with her. The appellant asserts that she has no pre‑existing relationship with the named trustee, Brian Carlton, and she does not trust him as the person chosen by Sheri without consultation.
[61] The appellant took her own steps. In August 2019, she signed a revocation of the power of attorney held by Sheri.
[62] This overview is for context. Considerably more detail was reviewed in the judgment under appeal.
[63] It is not necessary for this Court to delve into the details and offer opinions on whether Sheri’s concerns about her mother were justified, or whether the appellant’s concerns about Sheri were justified. It is enough to note that these concerns are supported by some evidence and cannot be said to be irrational or based on pure imagination. Unfortunately, these two opposing perspectives have led to fractures in their relationship and to this litigation.
[64] There are three pieces of related litigation:
a) First, a petition was filed by the trustee of the AET, Mr. Carlton, to seek directions from the court, including as to whether he should proceed with registering transfer of legal title to the properties to the trust. This is referred to as the “Trustee Petition”.
b) Second, a petition was filed by the appellant to nullify the AET and to obtain a declaration that her revocation of the power of attorney is valid. This is referred to as the “Nullification Petition”.
c) Lastly, Sheri filed a petition under the PPA seeking various orders, including declaring the appellant incapable of managing her affairs and appointing Sheri as committee of the appellant’s estate. This is referred to as the “Committeeship Petition”. Sheri does not seek an order that the appellant is incapable of managing her person.
[65] All three petitions and related applications came before the judge and were heard over three days in February 2021. At the hearing, Sheri argued that all three petitions should be referred to trial.
Medical Evidence
[66] In support of her petition under the PPA, and in support of her position that the revocation of the power of attorney was invalid, Sheri relied on the affidavit evidence of Dr. Sloan, a family physician, and Dr. Passmore, a geriatric psychiatrist. Neither physician met the appellant. Instead, they were instructed to accept as true the descriptions of the appellant’s behaviour, provided by Sheri and other witnesses, suggesting that the appellant was acting irrationally and was confused and scattered in her communications.
[67] Although the appellant challenged the admissibility of the evidence of Drs. Sloan and Passmore, the judge ruled in favour of admitting the evidence.
[68] Dr. Sloan provided two reports with two opinions: that the appellant would have been “more likely than not” incapable of revoking the power of attorney in August 2019; and that she was “more likely than not” incapable of managing her affairs under the PPA.
[69] Dr. Sloan emphasized the limitations of his opinions, including the lack of a meeting or interview with the appellant, the lack of access to the appellant’s medical records, the instructions to rely on information provided by people who were not health professionals, and the risk of relying on what others described about the appellant’s behaviour. He noted that he was instructed to accept the evidence of Sheri and others, but that there could be other facts that would change his conclusions.
[70] Dr. Sloan provided his opinion that the appellant would be unlikely to remember the assessed value of her properties, state the approximate aggregate value of her assets, retain memory about the details of tenants and rents, assess financial risk and benefit, or be able to implement or direct others to implement decisions or actions relating to her financial affairs.
[71] Since these are topics that could have been covered in an interview of the appellant, clearly the limitations of not interviewing her were worthy of the emphasis given by Dr. Sloan.
[72] Dr. Sloan provided an affidavit in which he stated his opinions more strongly than he did in his reports, stating that it was his opinion (no longer qualified as “more likely than not”) that as at August 2019 the appellant was not capable to revoke a power of attorney and that the appellant is not capable of managing her financial and legal affairs. Dr. Sloan stated in his affidavit that it is possible the appellant has a personality disorder, and it is probable that she suffers from Major Neurocognitive Disorder, which is progressive and so she is unlikely to recover. In his attached report he put it less forcefully, stating that the Major Neurocognitive Disorder could in fact be mild if the appellant has a personality disorder.
[73] Dr. Passmore provided an affidavit in September 2020, appending his report of September 2020. His affidavit gave the opinions that the appellant “is likely incapable” of managing her affairs and “was likely to have been incapable” of revoking the power of attorney. His report was also couched in likelihoods, and, importantly, he emphasized that because he had not personally assessed the appellant, he was not able to provide an opinion as to her capability.
[74] Dr. Passmore’s opinion criticized a note and affidavit provided by the appellant’s family physician, Dr. Vinnitsky, stating that the appellant had capacity. Dr. Passmore’s criticism was based on the fact that there was no record that Dr. Vinnitsky did the standard assessment, which Dr. Passmore described as typically involving cognitive testing. In this regard, although Dr. Passmore was not asked to comment on Dr. Sloan’s evidence and report, his critique should have applied equally to Dr. Sloan’s opinions. Dr. Passmore recommended that the appellant be referred to a specialist physician for a medical assessment of her financial capability.
[75] The appellant did subsequently see a specialist physician, Dr. Larry Dian, for assessment.
[76] Dr. Dian has a certificate of special competence in geriatric medicine and is head of the Clinical Service at the Falls and Fractures Prevention Clinic at Vancouver General Hospital. He has extensive experience in assessing the care needs of patients as they lose function and in developing care plans for them, working with case managers in the regional health authorities. Dr. Dian provided an affidavit and a report.
[77] Dr. Dian explained that he met with the appellant in December 2020 for the purpose of providing an opinion as to whether she is capable of managing herself or her affairs as set out in s. 3 of the PPA and whether she is capable of granting or revoking a power of attorney. Dr. Dian provided a report dated December 10, 2020, in this regard.
[78] In providing his report, Dr. Dian reviewed the clinical records of Dr. Vinnitsky and the affidavits of Drs. Vinnitsky, Sloan, and Passmore. It is important to note that the latter affidavits appended the doctors’ reports, which extensively reviewed the collateral information they had been given about the appellant’s behaviour.
[79] Dr. Dian described the appellant as being aware of the purpose of her visit to him and that she agreed to participate. He described her as feeling stress in the past three years from the death of her son and then her husband, followed by what she felt was a betrayal of her values by her daughter. Dr. Dian described the appellant as being aware she has considerable assets, which she was able to clearly describe. She was also able to describe her income from the properties, as well as from her late husband’s RRIF and her old age security and pension. Dr. Dian administered the Montreal Cognitive Assessment Test on which the appellant scored 21/30. She had a pattern of memory loss that was “amnestic” and “[s]he was fully orientated”. Dr. Dian described her thought process as “clear and consistent, with no evidence of delusions or confusion.” In his view, she demonstrated good cognitive function and did not meet the criteria for dementia syndrome. It was his opinion that she “probably does meet criteria for … Minimal Cognitive Impairment”, which he described as an intermediate or transition zone between normal and dementia.
[80] Dr. Dian stated that the appellant was “clearly able to take care of herself as well as appearing to have a comprehensive awareness of her finances and assets.” He also stated he did not find any reason to prevent the appellant from revoking the power of attorney she had given her daughter.
[81] Dr. Passmore was asked by Sheri’s counsel to review and respond to Dr. Dian’s report, which he did in a letter dated December 15, 2020. Dr. Passmore noted that there was some inconsistency between what the appellant reported to Dr. Dian and collateral information that was “on file”. Dr. Passmore also expressed concern about the appellant’s full understanding of the value of her properties, given what Dr. Passmore had since learned from Sheri as to their likely market value. Further, Dr. Passmore expressed concern that the assessment carried out by Dr. Dian differed from the form created under the AGA, Part 2.1, as part of the process for deciding whether to issue a certificate of incapability under the AGA. (I note again that this same criticism equally undermines the value of Dr. Sloan’s opinion.) Dr. Passmore also expressed concern as to whether the mild cognitive impairment diagnosed by Dr. Dian required further assessment to understand the degree to which it was causing functional impairment.
[82] Dr. Dian responded to Dr. Passmore’s letter by way of his own letter on February 14, 2021. He noted that Dr. Passmore relied on a different set of facts and assumptions, but he did not think it had any impact on the appellant’s cognitive status. He did not think the possible differences in the value of her properties (as between the assessed value and presumed market value) reflected impaired judgment, and noted that the appellant was aware she had considerable assets, had no current wish to sell, and said she would seek out and employ a reputable real estate agent if she did wish to sell. He noted that the assessment forms referred to by Dr. Passmore were used to assist family doctors who might be inexperienced in such assessments.
[83] Dr. Dian’s response letter emphasized that when he assessed the appellant, her thinking was clear and goal‑directed and she was free of any delusions or psychosis. She had a clear plan as to how she would continue to live in her home. He made the point that he believed his assessment of her financial knowledge was in greater detail than what would have been done when she executed the power of attorney in the first place (this is the power of attorney being relied upon by Sheri as valid).
[84] The appellant also filed an affidavit of her family physician, Dr. Vinnitsky. Dr. Vinnitsky disputed some of Sheri’s evidence as to their conversations and said that the appellant does not suffer from Parkinson’s disease, paranoia, or delusions, and, in his opinion, she was capable of managing her person and financial affairs. Dr. Vinnitsky’s opinion was not presented as expert opinion evidence and did not state how he came to his opinion or whether he carried out any mental capacity assessment of the appellant.
Reasons for Judgment of Chambers Judge
[85] The judge reviewed the background facts and evidence of Sheri and the appellant in detail, the leading cases and relevant statutory provisions, and the medical evidence, and reached his conclusion regarding the petition under the PPA.
[86] The judge held at paras. 143–150:
[143] Given my conclusion that the reports of Drs. Sloan and Passmore can be admitted, I must now evaluate them along with the report of Dr. Dian and the collateral evidence to determine whether I can make a finding as to whether Ana is, because of mental infirmity arising from disease, age, or otherwise, incapable of managing her affairs.
[144] A major concern is the less than fully certain conclusion of Dr. Passmore in his report. His conclusion that Ana is “likely to be incapable of managing her affairs under the PPA” does not conform to the very specific requirements of s. 3 of the PPA.
[145] In my view this report gives rise to the same concerns as the report in issue in Kartsonas. As in that case, it is not appropriate or permitted under the act to grant an order of committeeship on the basis of ambiguous or unclear medical opinions. That leaves open the question, however, of whether the circumstances are sufficient to grant an order either pursuant to s. 5(1) of the PPA or pursuant to the parens patriae jurisdiction for medical examinations.
[146] The reports of Drs. Sloan and Passmore are effective in tying the observations of the various witnesses, particularly Sheri and Messrs. Boyko, Duncan and Carlton, to likely medical diagnoses that would flow should that evidence be accepted and that would create a solid evidentiary foundation for a conclusion that Ana was not capable and was in need of protection. The comments about short‑term memory, some of the unusual behaviours observed, her poor treatment of those with a long record of assisting her, and the concerning record of voicemail messages all give rise to real concern about Ana’s capability.
[147] It is difficult to reconcile the reports of Drs. Sloan and Passmore with the report of Dr. Dian. Having read Dr. Dian’s report, it appears to me that he has accepted at face value the comments made [to]him [by] Ana as to what are contested matters in the proceeding. It is not clear to what extent Dr. Dian was aware of the “collateral information” (as that term is used by Dr. Passmore), and if he was aware, whether he attached any weight to it. I am concerned by the differing views taken by Drs. Passmore and Dian of the MOCA score and about Dr. Passmore’s comments as to the process used by Dr. Dian.
[148] Ana’s affairs are not simple. She owns multiple valuable properties that generate rental income. If she is not truly capable of managing these complex affairs, then she is very likely in need of protection.
[149] Given that there are two medical reports supporting a serious issue to be decided as to Ana’s capacity, I conclude that the court, as in Kartsonas, has the jurisdiction to grant orders pursuant to ss. 5(1) and 3(2) for an issue to be tried and for medical assessments to be obtained in support thereof. The legislative gap that rendered recourse to the parens patriae jurisdiction necessary in Temoin and Singh (Re) is not a factor here.
[150] For all of these reasons, I would grant an order equivalent to that granted in Kartsonas. That is:
a) an order pursuant to s. 3(2) of the PPA that an issue be tried as to whether Ana is, because of mental infirmity arising from disease, age, or otherwise, incapable of managing her affairs; and
b) an order pursuant to s. 5(1)(a) of the PPA that Ana attend and submit at times to be determined examinations by two geriatric psychiatrists who are to assess and provide their opinions as to whether Ana is, because of mental infirmity arising from disease, age, or otherwise, incapable of managing her affairs.
[Emphasis added.]
[87] As for the Trustee Petition and Nullification Petition, the judge noted that if the appellant was not competent at the time of settling the AET, her arguments against it fall away (para. 169). Further, the judge felt there were arguments on both sides of the issue regarding the appellant’s concerns about Mr. Carlton as trustee, and these would be “more appropriately determined after the other issues have been determined” (para. 172).
[88] The judge held:
[173] Overall, given the contested fact and opinion evidence, I conclude that the issues raised in the Trustee Petition and the Nullification Petition cannot be resolved on a summary basis and must be referred to trial. Applying the test in Saputo and Kerfoot, there are disputes of fact and law, and the party requesting the trial is not bound to lose.
[89] The judge went on to order consolidation of the Trustee Petition and Nullification Petition, and conversion of the combined proceeding into an action. The Committeeship Petition was also converted into an action, but the judge directed that there should be a case planning conference dealing with all the proceedings, as follows:
[183] I would direct that there be a case planning conference (or, if a judicial management judge is appointed, a judicial management conference), dealing with both the AET Action and the Committeeship Petition. That conference should address the question of which of the Supreme Court Civil Rules should apply to the committeeship proceeding (with reference to PPA s. 3(2)(c)). It should also address ways to minimize the inconvenience to witnesses who might otherwise be called upon to give much the same evidence in two different actions while maintaining the necessary separation between the two proceedings. It should also consider how Sheri’s counsel might obtain the necessary medical evidence for purposes of the AET Action in a way that minimizes the inconvenience to Ana.
Issues on Appeal
[90] The appellant submits on appeal that the judge erred in referring the issue of her capacity to trial pursuant to s. 3(2) of the PPA and in ordering her to submit to further medical examinations pursuant to s. 5(1)(a). The Public Guardian and Trustee (“PGT”) takes a similar position. Several arguments are advanced. These can best be restated as follows:
a) A threshold requirement of either order made under the PPA is that there be two medical practitioners’ affidavits that meet the requirements of s. 3(1)(b). The judge found that Dr. Passmore’s affidavit did not meet the requirements of the Act, and so the judge erred in not recognizing that the threshold was not met here.
b) The judge erred in admitting the opinions of Drs. Sloan and Passmore as they did not assess the appellant in person. This means either the evidence did not meet the requirements of the PPA or that the evidence was so unreliable that it ought not to be admitted.
c) The test articulated in Saputo for referring a petition to the trial list should not govern petitions under the PPA.
[91] The respondent Sheri takes the position that the judge did not err in making his orders under the PPA. She takes the position that the medical evidence was sufficient to support the orders made under the PPA; but if not, that the judge’s order can be supported based on the parens patriae jurisdiction of the court.
[92] The appellant also argues that the judge ought not to have referred the other two petitions, the Nullification Petition and the Trustee Petition, to the trial list. The appellant submits that the test affirmed in Saputo for referring a petition to trial, that is, whenever there is a triable issue, should not govern petitions generally.
[93] The respondent Sheri submits that the judge properly referred the other petitions to the trial list, because the materials give rise to a triable issue.
Discussion
Did the Judge Err in Making Orders under the PPA?
[94] In short, while the judge admitted into evidence the two affidavits of the physicians relied upon by Sheri in support of the Committeeship Petition—the affidavits of Drs. Sloan and Passmore—he found that Dr. Passmore’s affidavit did not meet the requirements of s. 3(1)(b) of the PPA for the purpose of declaring the appellant incapable.
[95] The judge considered that McNeal and Re Scow stand for the proposition that a judge does not have authority under the PPA to order a trial of the issue of capacity or order a person to submit to medical examination unless the application is supported by the necessary two medical affidavits described in s. 3. Nevertheless, the judge considered that Kartsonas gave him authority to make such orders. He appears to have taken Kartsonas as overruling McNeal whenever the evidence falls short of meeting the two‑affidavit requirement of s. 3(1) of the PPA, but raises a “serious issue to be decided” as to capacity (para. 149).
[96] In my view, the judge’s interpretation of Kartsonas was in error.
[97] Kartsonas does not stand for the proposition that when the petitioner does not meet the threshold two‑affidavit requirement of s. 3(1) of the PPA, the judge may still order the person who is the subject of the application to be medically examined and refer the issue of capacity to trial, so long as the judge is satisfied that there is a “serious issue” of capacity.
[98] The proposition in McNeal that no medical examination can be ordered under s. 5(1)(a), unless an application is first brought under s. 3 with the necessary two medical affidavits, was not mentioned or overturned in Kartsonas.
[99] There is an explanation for why it was not necessary to refer to McNeal in Kartsonas. Section 5(1)(b) of the PPA allows the court hearing an appeal from an order under s. 3 to order that the person submit to a medical examination. It is undisputed that there was an appeal from an order made under s. 3 in Kartsonas, an error was found in the s. 3 order, and this Court was then in a position to exercise its discretion as to the remedy under s. 5(1)(b).
[100] In my view, Kartsonas did not interpret s. 5(1)(a) as permitting a trial court, on a s. 3 application, to order a person to submit to a medical examination under the PPA absent the necessary two medical affidavits. As held in McNeal, the two medical affidavits meeting the requirements of s. 3 are a threshold requirement before the trial court may refer the issue of capacity to trial or order that the person submit to a medical examination pursuant to s. 5(1)(a). There is good reason to interpret the PPA this strictly, given that an order that a person attend for medical examination on the question of the person’s capacity is extremely intrusive and implicates several Charter values.
[101] The order under appeal permits the very mischief that McNeal and Re Scow sought to avoid.
[102] Having two medical practitioners’ affidavits creates a significantly higher threshold than one affidavit, reflecting the serious nature of any judicial pronouncement that an adult is incapable of managing their person or their financial affairs.
[103] The way to reconcile McNeal and Kartsonas is to appreciate that the PPA distinguishes between orders that a person attend a medical examination made at the trial court level and at the appeal level, pursuant to ss. 5(1)(a) and (b) respectively.
[104] At the trial level, s. 5(1)(a) requires that an application be properly made, i.e., with the necessary two medical affidavits complying with the PPA requirements, as has been held since McNeal. At the appeal level, s. 5(1)(b) requires that an appeal has been taken from order made under s. 3.
[105] This interpretation does not mean that this Court will order a medical examination whenever there is an appeal of an order made under s. 3. Clearly, it is a rarely exercised discretion. The parties did not refer us to any cases where such an order was made on appeal other than Kartsonas.
[106] Kartsonas involved the rare circumstance where the error of the application judge was in misinterpreting the evidence as supporting the s. 3 order for committeeship, but this Court nevertheless found that there was serious medical evidence of incapacity sufficient to merit further investigation.
[107] The factors that are relevant to making such an order on appeal may develop over time. It seems likely that if the trial court found the evidence not to meet the two‑affidavit requirement and therefore dismissed the PPA petition, and this Court agreed with that assessment, there would be no basis for this Court to interfere, and so no basis for the s. 5(1)(b) remedy of an order for medical examination.
[108] I note that Sheri has not asked this Court to exercise the s. 5(1)(b) remedy on appeal as an alternative to her main position that the appeal should be dismissed. Had this relief been sought, I would not consider this an appropriate case for this Court to order that the appellant attend a medical examination. The physicians who provided the reports relied upon by Sheri are equivocal in their evidence. At best, they have raised questions relying on information that Sheri provided to them, but, according to Dr. Passmore, they could not answer these questions properly absent an assessment of the appellant. In contrast, Dr. Dian did assess the appellant. He provided the opinion that the appellant was able to take care of her finances. There is no reason on the evidence to question the qualifications or independence of Dr. Dian. In my view, the evidence does not justify the extreme intrusion on the appellant’s personal liberty and privacy that would result from an order of this Court that she attend another medical examination.
[109] Based on the above analysis, I am of the view that the judge below erred in ordering that the issue of capacity be tried and in ordering that the appellant submit to further medical examination. The threshold two medical affidavits, stating that the appellant was incapable of managing her affairs by reason of mental infirmity, had not been provided and there was therefore no basis for making these orders under s. 5(1)(a). It is not enough that the judge was of the view the evidence raised a “serious issue” as to capacity. I would therefore set aside the judge’s orders made under the PPA and would dismiss the Committeeship Petition.
Is an In-person Assessment a Requirement of the Petitioner’s Medical Evidence under the PPA?
[110] The appellant further submits that there were other problems with the medical affidavits of Drs. Sloan and Passmore, and neither one should have been admitted into evidence or relied upon by the judge on the Committeeship Petition.
[111] The PGT joins the appellants’ criticism of the medical opinions of Drs. Sloan and Passmore. The PGT submits that this may be the first case where medical opinions were provided by the proponent of a committeeship based purely on the hearsay evidence of that proponent as to how the adult who was the subject of the application was behaving.
[112] The PGT expresses alarm at the potential mischief that can be caused by the type of medical evidence admitted here, on the grounds that it opens the door to someone with ill motives or a conflict of interest misleading the medical practitioners and obtaining an order that either declares a person incapable or requires that person to defend a challenge to their capacity.
[113] The PGT submits that the PPA should be interpreted as requiring the physicians who provide the necessary affidavits to conduct an in‑person examination or assessment of the person who is the subject of the application.
[114] The PGT points to the historic origins of the present‑day PPA, and submits in its factum:
63. The present‑day PPA was enacted in 1962 as the Patients’ Estates Act. It was the first comprehensive reform of the law in this area since the imperial Lunacy Act of 1890, which was continued in British Columbia as the Lunacy Act.
Lunacy Act, (1890) 53 & 54 Vict., c. 5
Lunacy Act, R.S.B.C. 1960 (“Lunacy Act 1960”), c. 226
Patients’ Estates Act, S.B.C. 1962 (“Patients’ Estates Act”), c. 44
Robert M Gordon and Simon Verdun‑Jones, Adult Guardianship Law in Canada (Toronto: Carswell, 1992) at 1‑18
64. The Lunacy Act placed great importance on the personal examination of the alleged “lunatic” by the court. Upon receipt of an application, a Supreme Court “Judge in lunacy” was required to convene an “inquisition” into the question of “whether a person is of unsound mind and incapable of managing himself and his affairs.” The inquisition was required to take place before a jury, unless the judge was “satisfied by personal examination of the alleged lunatic” that he or she was incapable of forming and expressing a wish for a jury. Where the inquisition proceeded without a jury, the judge was required to “personally examine the alleged lunatic, and take such evidence upon oath or otherwise, and call for such information as, in his discretion, such Judge shall deem necessary…”. If a jury was summoned, the alleged lunatic was to “be examined” before the evidence is taken, and also at the close of proceedings, with the judge determining whether the examinations were to be in open court or in private.
Lunacy Act 1960, c. 226, ss. 7-10
65. The Patients’ Estates Act of 1962, although considered outdated today, was at the time a wholesale reform of the Victorian‑era Lunacy Act. One of the major reforms was a move towards examining the adult in private, by doctors, rather than in front of a judge and jury. The spectacle of bringing the “alleged lunatic” before the court was replaced by sworn opinions from two medical practitioners. This requirement remains front and centre in today’s PPA.
PPA, s. 3(1)(b)
66. There is nothing in the available legislative history to suggest that the move from in‑court inquisitions to medical affidavits was meant to dispense with the need for examination of the adult. Indeed, dispensing with an examination would be contrary to the goals of dignity and professionalism that the Patients’ Estates Act sought to advance over its Victorian predecessor.
[115] The problem with the PGT’s argument is that the PPA does not prescribe a method for a medical practitioner to provide the required opinion as to capacity. This can be contrasted with the AGA, which does prescribe a method for assessment.
[116] I am unable to conclude from the historic evolution of the PPA that there is an implicit requirement that the physicians providing the required opinions must in all cases personally meet with and assess the adult whose capacity is being questioned. It appears to me that the PPA leaves the basis for reaching the necessary opinion to the professional standards and ethics of the medical practitioners giving the required affidavit evidence.
[117] I also note that any medical opinion as to incapacity under the PPA requires some type of diagnosis of the reason for incapacity. Section 3(1)(b) requires that the medical practitioners set out their opinion that the person is, “because of (i) mental infirmity arising from disease, age or otherwise or (ii) disorder or disability of mind arising from the use of drugs”, incapable of managing the person’s affairs or person or both.
[118] It is apparent from s. 3(2) that the medical reason for incapacity is an important part of the physician’s opinion and the court’s analysis. If an issue is to be referred to trial, this section sets out that the question is not just whether the person is incapable, but whether the incapability is “because of” the alleged mental infirmity or use of drugs.
[119] It seems to me that while the PPA does not prescribe the method to be employed for a medical assessment of capacity, an opinion from a physician who has not personally assessed the adult in question may be so equivocal that it could lead the judge to conclude that it does not meet the substantive requirements of s. 3(1)(b).
[120] In my view it is best to leave the admissibility and weight of the medical opinions tendered on an application pursuant to s. 3 of the PPA to be determined by judges on a case-by-case basis. Here, the judge properly recognized that Dr. Passmore’s opinion did not meet the requirements of the PPA. It is therefore not necessary to consider the appellant’s additional arguments as to inadmissibility.
Can the Judge’s Order Be Sustained under Parens Patriae Jurisdiction?
[121] As mentioned, in Temoin this Court found that the parens patriae jurisdiction to order a person to submit to a medical examination as to capacity may exist in some circumstances, where there are serious questions as to both the person’s capacity and need for protection and where there is a legislative gap such that the protection could only be provided by the court.
[122] Here, the judge expressly did not rely on the parens patriae jurisdiction as a basis for his order, and instead concluded that he had jurisdiction under the PPA to order the appellant to be examined. However, the judge did so by paraphrasing part of the language of parens patriae jurisdiction described in Temoin, finding that there was a “serious issue to be decided” as to the appellant’s capacity (para. 149). At the same time, the judge made no finding that the evidence raised a serious question as to the appellant being in need of protection.
[123] The parens patriae jurisdiction is very narrow and will only be exercised in exceptional circumstances.
[124] There are many factors that would seem to weigh against exercise of the parens patriae jurisdiction in this case. There is no evidence that the appellant refused medical assessment. The opinions of Drs. Sloan and Passmore were prepared without asking the appellant to participate. Dr. Passmore recommended that the appellant be assessed by a qualified physician, and she subsequently was assessed by Dr. Dian.
[125] Given that Dr. Dian provided a qualified medical opinion that the appellant has capacity to manage her financial affairs, and given that there is no opinion that she is incapable of managing her personal affairs, in my view it could not be said that there was a serious question that she was in in need of the court’s protection.
[126] Further, it cannot be assumed that the same “legislative gap” said to exist in Temoin exists today and in the circumstances of this case, involving a question about an adult’s capacity to manage her financial affairs.
[127] Today the PPA is not the only statutory tool to protect vulnerable adults who may have difficulty managing their financial affairs. There exist a number of legislated tools to assist persons with cognitive disabilities.
[128] Both the PGT and designated agencies (which include the province’s five health authorities and other agencies) have the legal authority to investigate concerns relating to abuse, neglect or self‑neglect of vulnerable persons: Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, ss. 17–19; AGA, Part 3. “Self‑neglect” is a defined term under the AGA, and includes a failure of an adult to take care of himself or herself that causes or is reasonably likely to cause substantial damage or loss in the adult’s financial affairs.
[129] The state continues to presume an adult to be capable, unless the contrary is demonstrated: AGA, s. 3; Power of Attorney Act, R.S.B.C. 1996, c. 370, s. 11.
[130] The principles of statutory powers allowing the state to become involved in the lives of vulnerable adults is set out in s. 2 of the AGA, namely that the approach should be to assist the person in the least intrusive way possible:
2 This Act is to be administered and interpreted in accordance with the following principles:
(a) all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters;
(b) all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their financial affairs;
(c) the court should not be asked to appoint, and should not appoint, guardians unless alternatives, such as the provision of support and assistance, have been tried or carefully considered.
[131] On December 1, 2014, select provisions of Part 2.1 of the AGA came into force under the heading “Statutory Property Guardians”. These provisions replaced the former process for appointing the PGT as committee of the estate of a person, with a new “certificate of incapability” process.
[132] Specifically, s. 32 of Part 2.1 of the AGA provides:
Obtaining a statutory property guardian
32 (1) If a person has reason to believe that an adult may be incapable of managing the adult’s financial affairs, the person may
(a) if the person is a health care provider, request a qualified health care provider to assess the adult’s incapability, or
(b) in any case, notify the Public Guardian and Trustee of the person’s belief, and the Public Guardian and Trustee may request a qualified health care provider to assess the adult’s incapability.
(2) If, after assessing the adult according to prescribed procedures, the qualified health care provider determines that the adult is incapable of managing that adult’s financial affairs, the qualified health care provider may, using the prescribed form, report the adult’s incapability to a health authority designate.
(3) If a health authority designate receives a report under subsection (2) of an adult’s incapability, the health authority designate may issue a certificate of incapability in respect of the adult, if satisfied that, based on the report and any additional information the designate receives,
(a) the adult needs to make decisions about the adult’s financial affairs,
(b) the adult is incapable of making those decisions,
(c) the adult needs, and will benefit from, the assistance and protection of a statutory property guardian,
(d) the needs of the adult would not be sufficiently met by alternative means of assistance, and
(e) either
(i) the adult has not granted power over all of the adult’s financial affairs to an attorney under an enduring power of attorney, or
(ii) an attorney has been granted power as described in subparagraph (i) but is not complying with the attorney’s duties under the Power of Attorney Act or the enduring power of attorney, as applicable.
…
(4) If the health authority designate issues a certificate of incapability, the health authority designate must do all of the following:
(a) forward the certificate to the Public Guardian and Trustee;
(b) advise the adult, and, if contact information is known to the health authority designate, the adult’s spouse or a near relative of the adult, that a certificate of incapability in respect of the adult has been issued, and provide each of them with a copy of the certificate.
(5) The Public Guardian and Trustee is the adult’s statutory property guardian as of the date on which the certificate of incapability was signed by the health authority designate who issued it.
[Emphasis added.]
[133] At the same time on December 1, 2014, the Statutory Property Guardianship Regulation, B.C. Reg. 115/2014 [SPG Regulation] came into force, which sets out the prescribed rules for assessments of incapability under Part 2.1 of the AGA.
[134] The SPG Regulation sets out the requirements for an assessment of an adult’s capability to manage their financial affairs and contemplates circumstances where the adult refuses an assessment or cannot participate in an assessment:
Assessment components
5 An assessment must include both of the following components:
(a) a medical component,
(i) conducted by a medical practitioner within 6 months before the assessment report is completed, and
(ii) consisting of one or more examinations and all resulting diagnoses and prognoses relevant to the adult’s incapability to manage that adult’s financial affairs;
(b) a functional component,
(i) conducted by a qualified health care provider, and
(ii) consisting of one or more evaluations of the adult’s understanding of, and ability to manage, that adult’s financial affairs.
…
Assessment may occur without adult
8 An assessment, or part of an assessment, may be conducted without the adult being present, and based on observational information and information gathered from other sources, if
(a) the adult
(i) refuses, in full or in part, to participate in the assessment, or
(ii) cannot reasonably be accessed or is not reasonably able to participate in the assessment, and
(b) the qualified health care provider conducting the assessment is satisfied that the assessment would be completed accurately using the information available.
[Emphasis added.]
[135] Here, in August 2020, approximately one year after the appellant gave notice that she revoked her power of attorney, Sheri invited the PGT to become involved in the appellant’s case pursuant to ss. 34–35 of the Power of Attorney Act. The PGT decided that the appellant did not need its assistance and declined to pursue an investigation. As noted, the PGT supports the appellant’s position that the appeal should be allowed and the orders made under the PPA set aside.
[136] This brief review illustrates that the legislative context is different today as compared to the situation in Temoin. Where the necessary two medical affidavits required under s. 3 of the PPA cannot be obtained, there exist other statutory mechanisms with built‑in safeguards and prescribed procedures for assessing the adult if another person raises questions about the adult’s ability to manage the adult’s financial affairs, including in the situation where the adult refuses assessment.
[137] All of this is to say that the analysis in Temoin should not be automatically applied without taking into consideration the current legislative context and the facts and circumstances of the adult in question. I would expect any case relying on the parens patriae jurisdiction, as the basis for obtaining a medical assessment of an adult who is suspected of being incapable of managing their affairs, to address whether there exists a gap in the available statutory mechanisms.
[138] In my view, Sheri did not demonstrate in the court below that when it comes to the appellant’s financial affairs, the appellant is a vulnerable adult who needs the court’s protection by exercise of its parens patriae jurisdiction to order that she be medically examined.
[139] Therefore, the order below cannot be supported on the parens patriae jurisdiction of the court.
Revisiting When Petitions Should Be Referred to Trial
[140] The judge instructed himself with the proposition that proceedings brought by petition are to be referred to the trial list when there are disputes of fact or law, unless the party requesting the trial is bound to lose, relying on Saputo.
[141] The judge ought not to have referred the Committeeship Petition to trial, given that the petitioner had not produced the two medical affidavits required by s. 3.
[142] The appellant and the PGT submit that, furthermore, Saputo ought not to apply to petitions brought pursuant to the PPA. The appellant also submits that Saputo ought to be reconsidered as not applying to any petition proceeding.
[143] As a reminder, in Saputo, a three‑judge division of this Court considered itself bound by previous decisions of the Court that held that a petition must be referred to trial where there is a bona fide triable issue. The Court noted that a five‑justice division would be necessary to overrule the test for referring a petition to trial (Saputo at para. 48).
[144] The appellant therefore sought a five‑justice division for the present appeal to reconsider the proposition relied upon in Saputo.
[145] The proposition that where a petition proceeding gives rise to a triable issue it must be referred to trial is an adoption of the rule for summary judgment. The summary judgment rule was an early rule of procedure “designed to provide machinery whereby the defendant can, at an early stage, get rid of an action in a summary way by showing that it has no merit”: Progressive Const. Ltd. v. Newton (1980), 25 B.C.L.R. 330 at 333, 1980 CanLII 493 (S.C.).
[146] The summary judgment rule was limited to only those cases where the plaintiff or defendant’s case had no merit, as it was important to not otherwise deny litigants their day in court. As stated in Progressive Const. at 333:
The most important of the basic principles which governed applications under O. 14 was stated in Hughes v. Sharp (1969), 1969 CanLII 792 (BC CA), 68 W.W.R. 706, 5 D.L.R. (3d) 760 at 763 (B.C.C.A.):
“A litigant must be allowed his day in Court, and must not be deprived of a trial in the ordinary way unless it is manifestly clear that he is without a defence that deserves to be tried. It is not the function of a Judge who hears an application under O. 14 to try disputed issues of fact or law. His duty and power are limited to determining whether, on the relevant facts and applicable law, there is a bona fide triable issue.”
[147] There has been considerable reform in civil litigation since the days when it was thought that the only way to allow litigants their day in court, when there were contested issues, was to have a full trial with all the procedural bells and whistles available in an action.
[148] The adoption of the summary trial rule in BC in 1983, then known as R. 18A, now R. 9‑7, was a significant access to justice initiative that allowed for resolution of cases based on affidavit evidence, shortcutting the ordinary procedures of trial but allowing for hybrid procedures to test the evidence, such as discovery or cross‑examination on affidavits, even where there were disputed facts.
[149] The scope of the summary trial rule was explained by a five‑member division of this Court in Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202, 1989 CanLII 229 (C.A.). The rule provides for determination of disputes by summary trial—that is, by an application in Chambers supported by affidavits—unless the judge is unable to find the necessary facts or is of the view that it would be unjust to do so (at 211). In deciding whether to allow the matter to be determined by summary trial, the judge is to consider such factors as: the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise from delay, the cost of taking the case forward to conventional trial in relation to the amount involved (today described as “proportionality”), the course of the proceedings, whether the evidence is sufficient to decide the dispute, and any other relevant factors: Inspiration Mgmt. at 214.
[150] The Supreme Court of Canada has noted that streamlined procedures for the resolution of civil disputes can increase access to justice and be a more proportionate manner of determining a dispute than a full trial, in some cases: Hryniak v. Mauldin, 2014 SCC 7 at paras. 1, 4, 5, 21, 23–25, 28; Hudema v. Moore, 2021 BCCA 482 at paras. 49–50.
[151] The authorities referred to in Saputo did not refer to the impact and meaning of R. 16‑1(18), which was brought into force in 2010.
[152] As set out above, R. 16‑1 is the rule generally governing petitions, and R. 16‑1(18) provides:
(18) Without limiting the court’s right under Rule 22‑1 (7) (d) to transfer the proceeding referred to in this rule to the trial list, the court may, whether or not on the application of a party, apply any other of these Supreme Court Civil Rules to a proceeding referred to in this rule.
[153] In Bacon v. British Columbia (Minister of Finance), 2020 BCCA 218, Justice Goepel in Chambers noted that:
[26] Rule 16‑1(18) gives the court the power to apply any other of the Supreme Court Civil Rules to a petition. It is not necessary to first convert a petition into an action in order to apply the Rule: Fern Castle Holdings Corp. v. Stonebridge Village Residence Ltd., 2011 BCSC 163 at paras. 7–12.
[154] On its face, R. 16‑1(18) allows the court to pick and choose to apply in a petition proceeding any number of procedures that apply in actions, such as discovery of witnesses or discovery of documents. For example, in Liu v. Du, 2021 BCCA 221, this Court in Chambers held that R. 16‑1(18) can be relied upon to order production of documents in a petition proceeding without first converting the petition to an action (para. 32). Given that these procedures usually are only necessary to employ where an issue is in dispute, in my view R. 16‑1(18) changes the landscape considerably from that considered by the authorities relied upon in Saputo.
[155] Rule 22‑1(4) is also relevant. Among other things, it permits cross‑examination on affidavits in Chambers applications. In Beedie (Keefer Street) Holdings Ltd. v. Vancouver (City), 2021 BCCA 160, this Court noted that R. 22‑1(4) applied to petitions. Justice Newbury distinguished the proposition in Saputo as not applying to petitions brought seeking judicial review under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA]. Justice Newbury noted that the court typically has a supervisory function in judicial review matters, as opposed to adjudicative, and the record is limited (paras. 75– 79). These are good reasons for not referring all triable issues to trial in a petition proceeding brought under the JRPA.
[156] However, it must be recognized that there are some judicial review matters, including those involving complex constitutional challenges, that require the judge to make findings of fact based on contested evidence. Even in those types of judicial review proceedings, it may still be appropriate to hear the matter within the petition proceeding: see, for example, L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique, 2011 BCSC 89 [Conseil scolaire].
[157] The JRPA is one of several enactments that allow an application to be brought to the court (s. 2(1)). As mentioned, R. 1‑2(4) provides that where an enactment authorizes an application to the court, it must be brought by petition. The PPA is another enactment that allows an application to be brought to the court.
[158] It should be kept in mind that the starting point for those matters that are properly brought by way of petition is that the Rules contemplate that a summary procedure will be appropriate: Conseil scolaire at paras. 29–30. This is different than the starting point for an action. There should be good reason for dispensing with a petition’s summary procedure in favour of an action. The mere fact that there is a triable issue is no longer a good reason.
[159] The modern approach to civil procedure, as encouraged in Hryniak, is to allow parties and the trial courts to tailor the pre‑trial and trial procedures to a given case, in the interests of proportionality and access to justice, while preserving the court’s ability to fairly determine a case on the merits. In my view, R. 16‑1(18) and R. 22‑1(4) work to reflect this modern approach within a petition proceeding.
[160] To summarize, I am of the view that a judge hearing a petition proceeding that raises triable issues is not required to refer the matter to trial. The judge has discretion to do so or to use hybrid procedures within the petition proceeding itself to assist in determining the issues, pursuant to R. 16‑1(18) and R. 22‑1(4). For example, the judge may decide that some limited discovery of documents or cross‑examination on affidavits will provide an opportunity to investigate or challenge the triable issue sufficiently to allow it to be fairly determined by the court within the petition proceeding, without the need to convert the proceeding to an action and refer it to trial.
[161] The PGT urges this Court to provide some guidance on the factors that apply when a PPA application should be referred to trial, or for petitions more generally.
[162] I am reluctant to do so. It will be up to the courts to determine on a case-by-case basis whether a petition proceeding is suitable for adopting a hybrid procedure or should be converted to an action and referred to trial.
[163] I do agree with the PGT that where an enactment authorizes a petition proceeding, the statutory context will often be an important factor in determining whether a hybrid petition procedure should be adopted to assist in deciding contested issues, rather than referring the matter to trial.
[164] For example, the statutory context of the PPA provides many good reasons why a PPA application is usually a summary procedure: the adult who is the subject of the proceeding is presumed capable; any trial of capacity will be an extreme intrusion on that adult’s liberty, privacy and autonomy; the adult is an involuntary participant in the proceeding; the adult may be elderly and there may be a need for a quick disposition; and all parties are likely to seek an order that the costs of the proceeding, which may be disproportionate to the size of the adult’s estate, be borne by that adult. Thus, if the threshold of referring the matter to trial is met because the necessary two medical affidavits have been provided, but the court is not satisfied and wants to make further inquiry, R. 16‑1(18) and R. 22‑1(4) give the court discretion to order something less than a full trial. As an example, a judge in such a position might order the medical deponents to give viva voce evidence before the judge, so that they can be questioned on their opinions.
[165] I commend the reasoning of Justice Ballance in Boffo Developments (Jewel 2) Ltd. v. Pinnacle International (Wilson) Plaza Inc., 2009 BCSC 1701, and Justice Dardi in Terasen Gas Inc. v. Surrey (City), 2009 BCSC 627, as setting out some factors that may be relevant in deciding whether to convert a petition proceeding to an action. These decisions were before their time in that they were before the adoption of R. 16‑1(18). The factors that may be relevant will evolve with time and the circumstances of a particular case.
[166] At a minimum, when considering whether to order the use of hybrid procedures within the petition proceeding itself, or to refer the matter to trial, the court will need to be mindful of the object of the Rules set out in R. 1‑3: to secure the just, speedy and inexpensive determination of every proceeding on its merits, and so far as can be achieved, in ways that are proportionate to the amount involved, the importance of the issues, and the complexity of the proceeding.
Additional Remedies in the Trustee Petition and the Nullification Petition
[167] The judge concluded that there was conflicting fact and opinion evidence in the Trustee Petition and Nullification Petition that could not be resolved on a summary basis, and, based on Saputo, those proceedings must be referred to trial (para. 173). He ordered that they be consolidated into a single action.
[168] Of course, the judge cannot be faulted for following Saputo. However, as I have explained above, it is my view that the test identified in Saputo no longer applies. Based on my view of R. 16‑1(18) and R. 22‑1(4), it was not necessary to refer the petitions to trial if there were contested issues.
[169] The difficulty with the appeal from the judge’s order consolidating the Trustee Petition and Nullification Petition and converting the proceeding to an action is that the parties have apparently already complied with it. We were advised during the hearing of the appeal that the parties have filed their pleadings in the consolidated action. Given this situation, I would not remit back to the trial court the application to convert the two petitions to an action. To do so would accomplish very little and would cause the parties unnecessary expense. The parties have already incurred the expense of filing new pleadings.
[170] This is not to say that the appellant will be precluded from seeking to limit the procedures that ordinarily apply to actions. Many of the civil procedures that apply to actions are subject to the proviso “unless the court otherwise orders”. The appellant remains free to seek directions in this regard in the converted action.
[171] The appellant also seeks that this Court decide the merits of the two petitions in the appellant’s favour: dismissing the Trustee Petition; declaring the revocation of the power of attorney to be valid; setting aside transfers of the appellant’s properties into the AET; and discharging the CPLs registered on the appellant’s properties.
[172] The appellant does not provide any legal basis for this Court to decide at first instance the merits of the Trustee Petition and Nullification Petition when the merits have not yet been considered by the trial court, and I would decline to do so.
Conclusion
[173] For these reasons, I would allow the appeal in CA47350, set aside the judge’s orders made under the PPA, and dismiss the PPA proceeding.
[174] The appeals in relation to the orders made in respect of the Nullification Petition and Trustee Petition are dismissed, CA47348 and CA47352 respectively.
“The Honourable Justice Griffin”
I AGREE:
“The Honourable Mr. Justice Groberman”
I AGREE:
“The Honourable Mr. Justice Willcock”
I AGREE:
“The Honourable Mr. Justice Butler”
I AGREE:
“The Honourable Mr. Justice Abrioux”
Cepuran v. Carlton, 2022 BCCA 76 (CanLII)
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Re: Cepuran v. Carlton, 2022 BCCA 76 (CanLII)
AI analysis by CanLII
AI-generated
Patients Property Act: Two Medical Affidavits Are a Threshold Requirement for Ordering Capacity Examinations and Referring Incapacity to Trial
Facts
A daughter brings a petition under the Patients Property Act, R.S.B.C. 1996, c. 349 (PPA) to have her mother declared incapable of managing her affairs (paras 1 and 64). The daughter files medical evidence from two physicians who do not meet the mother in person (paras 66–67).
The mother revokes the enduring power of attorney previously granted to the daughter, and disputes trust steps taken over her properties (paras 57, 60–61 and 64). Related petitions are filed concerning the trust administration and the validity of the revocation (para 64).
Procedural History
2021 BCSC 542 (Supreme Court of British Columbia), 5 March 2021: Capacity issue referred to trial and mother ordered to attend examinations under the PPA; related petitions consolidated, converted to an action, and referred to trial (paras 1–3 and 86–89).
Parties' Submissions
Appellant (Adult subject of PPA petition): The judge lacks PPA authority absent two compliant medical affidavits, the doctors’ opinions are inadmissible without in-person assessments, and the Saputo “triable issue” test should not govern petitions (paras 90 and 92).
Respondent (Petitioner daughter): The PPA evidence supports the orders, and alternatively parens patriae jurisdiction sustains them; the other petitions properly go to trial for triable issues (paras 91 and 93).
Respondent (Public Guardian and Trustee): The PPA orders require two medical affidavits meeting PPA requirements, and the PPA should require in-person assessment for the petitioner’s medical evidence (paras 90–91 and 111–113).
Legal Issues
Did the PPA permit ordering medical examinations and referring the capacity issue to trial without two compliant medical affidavits (paras 4, 90 and 94–109)?
Can the impugned PPA orders be sustained under parens patriae jurisdiction (paras 91 and 121–139)?
Must petition proceedings be referred to trial whenever a triable issue arises (paras 5, 92 and 140–166)?
Should the appellate court decide the merits of the two non-PPA petitions at first instance (paras 171–172)?
Disposition
Appeal allowed respecting the PPA orders; orders set aside and the PPA proceeding dismissed (para 173).
Appeals dismissed respecting the orders on the Nullification Petition and Trustee Petition (para 174).
Reasons
By Griffin J.A. (Groberman J.A., Willcock J.A., Butler J.A., and Abrioux J.A. concurring): Two medical practitioners’ affidavits complying with s. 3(1)(b) of the PPA are a threshold requirement for trial-level orders under ss. 3 or 5(1)(a) PPA (paras 18, 24, 94 and 100). Kartsonas concerns the appellate remedy in s. 5(1)(b) PPA and does not displace McNeal’s trial-level threshold requirement (paras 97–104). The chambers judge accepts Dr. Passmore’s affidavit as non-compliant yet still orders examinations and a trial, which the PPA does not permit (paras 94–96 and 109).
Parens patriae jurisdiction is exceptional and requires serious questions about incapacity and need for protection, plus a legislative gap (paras 121–123 and 137). The record does not support a serious question that the adult needs protection, including because a qualified in-person assessment finds financial capacity (paras 125 and 138). The current legislative context provides statutory mechanisms addressing assessment concerns, undermining reliance on a legislative gap for these circumstances (paras 126–136 and 139).
A triable issue does not automatically require converting a petition to an action, given rule 16-1(18) and rule 22-1(4) of the Supreme Court Civil Rules (paras 152, 155 and 160). Conversion and a trial referral are discretionary and should reflect statutory context and proportionality, including the summary character of PPA proceedings (paras 158–166). The parties have already filed pleadings in the consolidated action, so remitting the conversion issue would provide little benefit (para 169). The appellate court declines to determine at first instance the merits of the trustee and nullification disputes (paras 171–172).
Generated on 2026-03-27
AI-generated
Patients Property Act: Two Medical Affidavits Are a Threshold Requirement for Ordering Capacity Examinations and Referring Incapacity to Trial
Facts
A daughter brings a petition under the Patients Property Act, R.S.B.C. 1996, c. 349 (PPA) to have her mother declared incapable of managing her affairs (paras 1 and 64). The daughter files medical evidence from two physicians who do not meet the mother in person (paras 66–67).
The mother revokes the enduring power of attorney previously granted to the daughter, and disputes trust steps taken over her properties (paras 57, 60–61 and 64). Related petitions are filed concerning the trust administration and the validity of the revocation (para 64).
Procedural History
2021 BCSC 542 (Supreme Court of British Columbia), 5 March 2021: Capacity issue referred to trial and mother ordered to attend examinations under the PPA; related petitions consolidated, converted to an action, and referred to trial (paras 1–3 and 86–89).
Parties' Submissions
Appellant (Adult subject of PPA petition): The judge lacks PPA authority absent two compliant medical affidavits, the doctors’ opinions are inadmissible without in-person assessments, and the Saputo “triable issue” test should not govern petitions (paras 90 and 92).
Respondent (Petitioner daughter): The PPA evidence supports the orders, and alternatively parens patriae jurisdiction sustains them; the other petitions properly go to trial for triable issues (paras 91 and 93).
Respondent (Public Guardian and Trustee): The PPA orders require two medical affidavits meeting PPA requirements, and the PPA should require in-person assessment for the petitioner’s medical evidence (paras 90–91 and 111–113).
Legal Issues
Did the PPA permit ordering medical examinations and referring the capacity issue to trial without two compliant medical affidavits (paras 4, 90 and 94–109)?
Can the impugned PPA orders be sustained under parens patriae jurisdiction (paras 91 and 121–139)?
Must petition proceedings be referred to trial whenever a triable issue arises (paras 5, 92 and 140–166)?
Should the appellate court decide the merits of the two non-PPA petitions at first instance (paras 171–172)?
Disposition
Appeal allowed respecting the PPA orders; orders set aside and the PPA proceeding dismissed (para 173).
Appeals dismissed respecting the orders on the Nullification Petition and Trustee Petition (para 174).
Reasons
By Griffin J.A. (Groberman J.A., Willcock J.A., Butler J.A., and Abrioux J.A. concurring): Two medical practitioners’ affidavits complying with s. 3(1)(b) of the PPA are a threshold requirement for trial-level orders under ss. 3 or 5(1)(a) PPA (paras 18, 24, 94 and 100). Kartsonas concerns the appellate remedy in s. 5(1)(b) PPA and does not displace McNeal’s trial-level threshold requirement (paras 97–104). The chambers judge accepts Dr. Passmore’s affidavit as non-compliant yet still orders examinations and a trial, which the PPA does not permit (paras 94–96 and 109).
Parens patriae jurisdiction is exceptional and requires serious questions about incapacity and need for protection, plus a legislative gap (paras 121–123 and 137). The record does not support a serious question that the adult needs protection, including because a qualified in-person assessment finds financial capacity (paras 125 and 138). The current legislative context provides statutory mechanisms addressing assessment concerns, undermining reliance on a legislative gap for these circumstances (paras 126–136 and 139).
A triable issue does not automatically require converting a petition to an action, given rule 16-1(18) and rule 22-1(4) of the Supreme Court Civil Rules (paras 152, 155 and 160). Conversion and a trial referral are discretionary and should reflect statutory context and proportionality, including the summary character of PPA proceedings (paras 158–166). The parties have already filed pleadings in the consolidated action, so remitting the conversion issue would provide little benefit (para 169). The appellate court declines to determine at first instance the merits of the trustee and nullification disputes (paras 171–172).
Generated on 2026-03-27
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