



COURT OF APPEAL FOR ONTARIO

CITATION: Lewis v. Lewis, 2019 ONCA 690

DATE: 20190905

DOCKET: C66394

Lauwers, van Rensburg
    and Roberts JJ.A.

BETWEEN

Sheldon Lewis, Marilyn Lewis, Donna Buckley

and Marlene Lewis

Applicants (Appellants)

and

Donald
    Lewis, Douglas Lewis, Emerson Walker Lewis,

and Estate of Marie Theresa Lewis

Respondents (Respondents)

Patrick J. Kraemer and Brandon Carter, for the
    appellants

Carol Craig, for the respondents

Heard: August 27, 2019

On appeal from the order of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated December 5, 2019.

REASONS FOR DECISION

[1]

The appellants appeal from the dismissal of their application in these
    contested estate proceedings between the children of the late Marie Lewis. 
    They raise several issues on appeal.  We see no merit in any of them. 
    Essentially, the appellants are taking issue with the application judges
    assessment of the evidence and exercise of his case management discretion, but,
    in our view, have raised no error that would permit appellate intervention.

[2]

The determinative issue before the application judge was whether Mrs.
    Lewis had the requisite capacity to execute new powers of attorney for care and
    property on April 16, 2013, in which she appointed the respondents as her
    attorneys for personal care and property.  The appellants sought to invalidate
    the 2013 powers of attorney and bring back into effect the 1995 powers of
    attorney that named the appellant, Donna Buckley, and the respondent, Douglas
    Lewis, as her attorneys for personal care and property.

[3]

As the application judge correctly stated, since capacity is presumed,
    the appellants had the onus to rebut that presumption with clear evidence on a
    balance of probabilities:
Substitute Decisions Act, 1992,
S.O. 1992,
    c. 30, s. 2(1);
Knox v. Burton
(2004)
,
    6 E.T.R. (3d) 285, at para. 26 (Ont. S.C.).  They failed to do so.

[4]

The application judge considered but rejected the appellants proffered
    evidence on the capacity issue, including the letter from Dr. Denis Doren, who
    had been Mrs. Lewis family physician for many years.  He was entitled to do
    so.  Dr. Doren did not submit a proper capacity assessment of Mrs. Lewis for
    2013 or any other period of time.  His statement that Mrs. Lewis had lacked
    capacity since 1999 was inconsistent with the inference that Mrs. Lewis had
    capacity when, in 2010, she entered into a real estate transaction involving
    the appellant, Sheldon Lewis.  The application judge appropriately gave Dr.
    Dorens letter basically no weight.  Dr. Dorens affidavit, which the
    application judge refused to accept pursuant to r. 39.02(2) of the
Rules of
    Civil Procedure
, R.R.O 1990, Reg. 194, after the conclusion of the
    cross-examinations, added little to Dr. Dorens letter and would not have
    changed the outcome.

[5]

The application judge was similarly unpersuaded by the evidence from the
    appellants, Donna Buckley and Sheldon Lewis, which was relevant to but not
    determinative of the issue of their mothers capacity.  Nor was the application
    judge bound to conclude from Emerson Lewis description of his wifes mental
    illnesses and conditions elicited during his cross-examination that Mrs. Lewis
    lacked capacity to execute the 2013 powers of attorney.

[6]

As was properly recognized by the application judge, the fact that Mrs.
    Lewis had various chronic medical conditions throughout her life does not mean
    that she lacked capacity: see
Starson v. Swayze
, 2003 SCC 32, [2003] 1
    S.C.R. 722, at para. 77.  It was open to the application judge to prefer the
    evidence of the respondents who described their mother as a loving and devoted
    mother and spouse who capably raised six children and ran a busy household, and
    whose cognitive abilities did not start to severely decline until around 2015. 
    We note that this description of Mrs. Lewis was reinforced by Helen Storreys
    affidavit which, if admitted, would, in our view, have supported the
    respondents position in these proceedings.

[7]

The application judge also took solace from the fact that Mrs. Lewis
    executed the 2013 powers of attorney before her solicitor of many years, Lorne Plater,
    who had prepared them, as well as the 1995 powers of attorney. Mr. Plater did
    not provide any evidence on the application, although his file notes were
    before the court.  In our view, without evidence to the contrary, it was
    reasonable to infer that Mr. Plater would have properly carried out his duties
    and would not have permitted Mrs. Lewis to execute the powers of attorney if he
    had any concern about her capacity or suspected undue influence by her husband
    or sons:  see
Hall v. Bennett Estate
(2003),
    64 O.R. (3d) 191 (C.A.), at para. 48
.

[8]

In the same way, it was reasonable for the application judge to refer to
    the statements of Jason Ward, section 3 counsel appointed by the Public
    Guardian and Trustee to represent Mrs. Lewis interests on the guardianship
    application, concerning Mrs. Lewis expressed wishes.

[9]

The application judge was entitled to reach this assessment of the
    evidence concerning Mrs. Lewis capacity.

[10]

It
    was equally open to the application judge to reject the appellants submitted evidence
    as insufficient to establish suspicious circumstances and undue influence. 
    Again, it was the appellants burden to establish these allegations on a
    balance of probabilities: see
Vout v. Hay
, [1995] 2 S.C.R. 876 at paras.
27-28;
Nguyen v. Nguyen
, 2010 ONSC 6836, 71 E.T.R.
    (3d) 55
, at paras.
89-93;
Knox

at para. 28
.
They failed to do so.

[11]

With
    respect to Mrs. Lewis death certificate, we do not admit it as fresh evidence:
    it would not have changed the outcome if it had been before the application
    judge.  It could not serve as a proper assessment of Mrs. Lewis capacity as at
    2013.  Dr. Christine Stephenson, who prepared the certificate, did not know
    Mrs. Lewis until she came to live at the long-term care facility in 2016, nor
    did she provide any explanation for her statement that Mrs. Lewis had advanced
    dementia for over ten years.  Again, the fact that Mrs. Lewis may have had
    advanced dementia and lacked the capacity to manage her personal care or
    property for several years does not automatically equate with a lack of
    capacity to execute powers of attorney:
Substitute Decisions Act, 1992
,
    ss. 9(1), 47(2).

[12]

The
    appellants also submit that the application judge unreasonably and unfairly
    curtailed their time to prepare and present their application.  They raise, for
    the first time in their factum, an allegation of bias against the application
    judge.  We note that the appellants made no such complaint in the course of the
    proceedings below.  We see absolutely no basis in the record for these
    submissions and reject them.

[13]

Finally,
    the appellants complain that the application judges reasons were inadequate. 
    We do not accept this submission.  The application judges reasons fulfill the
    substantive purpose of reasons: they adequately explain his consideration of
    the relevant and determinative issues; provide his rationale for reaching his
    conclusions and tell the appellants why they lost; and they provide for
    informed consideration of the grounds of appeal:
F.H. v. McDougall
,
    2008 SCC 53, [2008] SCC 53, at paras. 98-99.

Disposition

[14]

Accordingly,
    this appeal is dismissed.

Costs

[15]

The
    respondents seek their costs on a substantial indemnity scale.  They argue that
    if not moot, this appeal was without merit.

[16]

We
    do not agree.  The appellants were entitled as of right to appeal to this
    court.  Their appeal was not moot; at the very least, the questions of undue
    influence and suspicious circumstances, if resolved in the appellants favour,
    could possibly have affected their outstanding appeal of the application
    judges dismissal of their request for an accounting, as well as their decision
    whether to contest their parents wills.

[17]

It
    is well established that the extraordinary award of substantial indemnity costs
    is reserved for exceptional cases, for example, involving egregious misconduct
    by a party or its counsel, or where the proceedings are clearly vexatious,
    frivolous, or an abuse of process:
Young v. Young
, [1993] 4 S.C.R. 3
    at p. 134.  While their appeal was not particularly strong, we cannot say that
    it meets the criteria to justify costs beyond the usual partial indemnity
    scale.

[18]

In
    our view, the respondents are entitled to their partial indemnity costs of the
    appeal, including the unsuccessful motion to adduce fresh evidence, from the
    appellants in the amount of $15,000, inclusive of disbursements and applicable
    taxes.  This amount approximates the appellants bill of costs and should
    therefore have been in their reasonable contemplation if they were unsuccessful
    on this appeal.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


