



COURT OF APPEAL FOR ONTARIO

CITATION: Vanier v. Vanier, 2017 ONCA 561

DATE: 20170630

DOCKET: C62537

Epstein, Benotto and Trotter JJ.A.

BETWEEN

Jean-Raymond Vanier

Applicant (Appellant)

and

Rita Vanier, 92780
    Canada Ltd., Jean-Pierre Vanier in his capacity as attorney under a Continuing
    Power of Attorney for Property dated May 12, 2015

Respondents (Respondents)

Lionel J. Tupman and John E. S. Poyser, for the
    appellant

Jean-Pierre Vanier, acting in person

David N. Delagran, for the respondent Rita Vanier

Heard: March 15, 2017

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated July 14, 2016, with reasons reported at
2016 ONSC 4620
.

Epstein J.A.:

[1]

During their lengthy marriage, the
    respondent, Rita Vanier
,
and her husband, Frank Vanier, built a
    successful business - the respondent 92780 Canada Ltd.

[1]
Frank died in 2011, leaving his entire estate to Rita. The combination of
    Ritas advancing years (she is now 90 years of age) and some unfortunate family
    dynamics, has given rise to a struggle among Ritas twin sons, Jean-Pierre
    (Pierre) and Jean-Raymond (Raymond) and her daughter, Patricia, over who
    should have power of attorney over Ritas property. This struggle has had a
    devastating impact on the familys finances and, more significantly, on their
    relationships. This appeal arises out of one aspect of that struggle.

[2]

In September of 2011, Rita
    designated Patricia as her attorney for property under a Continuing Power of Attorney
    for Property (the 2011 CPOAP). Patricia allegedly took advantage of her
    authority under the 2011 CPOAP and diverted several hundred thousand dollars
    from Rita to herself, leading to litigation (unrelated to this appeal), which
    ultimately settled. Against the background of Patricias alleged defalcation,
    Rita turned to Raymond and Pierre, and on October 18, 2013 Rita signed a power
    of attorney (the 2013 CPOAP) naming them as her attorneys for property,
    jointly and severally.

[3]

Following settlement of the
    litigation with Patricia, Raymond and Pierre soon grew suspicious of how the
    other was handling Ritas property.
The
    resultant breakdown in the relationship between the two brothers caused Rita to
    make yet another change. On May 12 2015, Rita executed a new CPOAP (the 2015
    CPOAP), the effect of which was to remove Raymond as her co-attorney for property
    and to appoint Pierre as her sole attorney for property.

[4]

Raymond took issue with the 2015
    CPOAP, and on June 19, 2015 he brought an application under the
Substitute
    Decisions Act
, 1992
, S.O. 1992, c. 30 (the 
SDA
), seeking several orders, including the removal of
    Pierre as attorney for property, and a declaration that the 2015 CPOAP was void.
    As part of this application, Raymond brought a motion, heard July 5, 2016, seeking
    an order removing Pierre as attorney for property on an interim basis pending
    determination of the application, an order appointing an interim guardian of property
    for Rita, and an order requiring Pierre to pass accounts.

[5]

Other than ordering Pierre to pass
    his accounts, the motion judge dismissed the motion, and declared the 2015
    CPOAP to be valid. Raymond appeals the dismissal on the basis that the motion judge
    applied the wrong test for undue influence, erred by failing to find suspicious
    circumstances surrounding Ritas execution of the 2015 CPOAP, and erred by
    failing to consider all of the evidence. Raymond also seeks leave to appeal the
    $55,000 in costs the motion judge ordered him to pay Rita.

[6]

For the reasons that follow, I
    would dismiss the appeal.

BACKGROUND

[7]

The events that led up to the
    execution of the 2015 CPOAP are central to this dispute.

[8]

The bulk of 92780s funds were
    held at the Royal Bank of Canada (the RBC), and were frozen pursuant to the
    litigation with Patricia. In March 2015, following the settlement with
    Patricia, the RBC required all three directors of 92780  Rita, Pierre and
    Raymond - to sign documents authorizing a new account. Raymond refused, and as
    a result approximately $600,000 of the corporations funds remained frozen.

[9]

The terms of the settlement with
    Patricia required her to repay Rita approximately $300,000. Raymond, acting
    unilaterally, instructed Ritas lawyer to hold the settlement funds and not to
    release them.

[10]

The effect of Raymonds actions
    led to Ritas not having access to moneys she needed to pay her basic living
    expenses, including the rent at the Marleigh, her retirement home. Ritas rent
    cheque in May 2015 was returned as her account did not have sufficient funds. The
    desperate position in which Rita found herself led to her signing the 2015
    CPOAP.

[11]

The following is a summary of the
    circumstances surrounding Ritas execution of the 2015 CPOAP from the differing
    perspectives of Pierre/Rita and Raymond. I agree with the motion judge that it
    was not necessary to
resolve all factual disputes in order to resolve
    the issues in this case. The issue to be determined was narrow  whether the
    2015 CPOAP was valid. Its resolution did not require the determination of every
    factual issue in dispute.

Pierre and Ritas
    Version of Events

[12]

Following Ritas authorizing the 2013
    CPOAP, both Raymond and Pierre occasionally reimbursed themselves from that
    portion of the corporate account that was not frozen (at the Toronto-Dominion
    Bank), for expenses incurred on Ritas behalf, or expenses related to the
    litigation with Patricia. However, in February 2015, Raymond, who had online
    access to all banking transactions, expressed concern over Pierres
    transactions.

[13]

In response to this concern, Pierre
    provided Raymond with detailed banking receipts. Raymond remained suspicious of
    his brother, and in March 2015 demanded that Pierre and Rita notify the banks that,
    going forward, all cheques were to be co-signed by him. Raymond further
    demanded that the 2015 CPOAP be changed so that he and Pierre would act jointly
    as powers of attorney, rather than jointly and severally.

[14]

Not being able to appease Raymond,
    and concerned that the impasse was restricting Ritas access to much-needed
    funds, Pierre decided to take action.

[15]

On May 3, 2015 Pierre called a
    special meeting of the shareholders of 92780, to be held on May 14, 2015. The
    meeting was to ratify a resolution removing Raymond as director, enabling the
    two remaining directors, Rita and Pierre, to instruct the RBC to release Ritas
    funds to her.

[16]

Pierre also urged Rita to make a new
    CPOAP removing Raymond, so that he (Pierre), as sole power of attorney for
    property, could instruct counsel to release the settlement funds to Rita. On
    May 12, 2015, Pierre went to Ritas retirement home to have her execute the
    2015 CPOAP, which he had prepared following the same wording as the 2013 CPOAP.
    Rita executed the document that day. Her signature was witnessed by two staff
    members at the retirement home where Rita had lived for some time.

[17]

On May 14, 2015, before the
    shareholders meeting, the police were called to Ritas residence in response
    to the escalating family dispute over the management of Ritas finances. Rita
    told the police that Raymond was preventing her from accessing funds she needed
    to pay her living expenses, particularly her rent. The police investigated Raymond's
    suspicion that Pierre was abusing his authority as power of attorney for
    property, and eventually concluded that it was an unfounded, civil matter.

[18]

The shareholders meeting went
    ahead and by 2-1 vote, Raymond was removed as director.

[19]

In response, Raymond arranged for Rita
    to undergo a capacity assessment. On May 27, 2015 Louise Silverston, a
    designated capacity assessor under the
SDA
, performed an assessment of
    Rita. The assessor concluded that Rita was capable of executing and revoking a power
    of attorney for property, pursuant to s. 8(1) of the
SDA
.

Raymonds Version of Events

[20]

Raymonds position is that Pierre
    has maintained a relationship of dominance and control over Rita for many
    years. Since 2012, Pierre has paid the bills and had performed all the
    bookkeeping for Rita and for 92780.

[21]

Following the settlement of the
    litigation with Patricia, Pierre and Raymond became engaged in a dispute
    regarding reimbursements to Pierre for expenditures claimed to have been made
    for Ritas benefit. Raymond grew suspicious over unaccounted for monies, and
    therefore took steps to put Ritas funds out of Pierres unilateral reach.

[22]

According to Raymond, Pierre
    induced Rita into signing the 2015 CPOAP, as well as into approving the
    corporate resolution removing Raymond as director of 92780, by telling her that
    if she did not sign, she would not have access to any of her money. Fearing
    eviction from her retirement home, Rita signed the resolution and the 2015
    CPOAP. The result was to give Pierre exclusive control over the family
    corporation and its assets.

[23]

Raymond says the staff at the
    retirement home called the police out of concern over Pierres conduct towards
    Rita. Raymond says the police report shows that Rita was led to believe that
    the only way she could access her money and pay her rent was by removing him
    (Raymond) as power of attorney for property and as director of 92780.

[24]

Raymond also argues that undue
    influence was a significant factor in Ritas decision to grant the 2015 CPOAP. He
    relies on the assessors report, at p. 6, where the assessor says:

It is my opinion that undue influence was a factor in [Ritas]
    change of Power of Attorney for Property and Personal Care, and that [Rita]
    would not have done these changes on her own or if properly informed as to what
    was actually the concern. I am of the opinion that [Ritas] distress is so
    acute, secondary to her mental status, that this had made her extremely
    vulnerable, and has influenced and guided her signature of any legal documents
    in the past months.

Decision Below

[25]

The motion judge identified the
    main issue as a narrow one  the validity of the 2015 CPOAP. He noted that Ms.
    Silverston had found that, as of May 27, 2015, Rita had the capacity to grant
    and revoke a power of attorney. In the light of this professional evidence,
    Raymond was challenging the 2015 CPOAP on the basis of undue influence.

[26]

The motion judge expressed the
    view, at para. 10, that the burden of proof to establish undue influence rests
    with the party alleging it. The motion judge set out the test for undue
    influence as follows:

The extent of the influence must amount to coercion; simple
    influence is not enough. The testators free will must be overborne. Put
    another way, it is not improper for any potential beneficiary to attempt to
    influence the decision of the testator provided the pleading does not amount to
    coercion and the latter continues to act as a free agent.

[27]

To overcome his burden, Raymond
    sought to rely on
Nguyen-Crawford v. Nguyen
, 2010 ONSC 6836, 71 E.T.R.
    (3d) 55, which held that where there are suspicious circumstances of undue
    influence surrounding the execution of a power of attorney, the presumption of
    capacity under s. 2 of the
SDA
does not operate, and the burden of proof
    with respect to capacity shifts to the grantee of the power of attorney.

[28]

The motion judge acknowledged that,
    according to Raymond, the suspicious circumstances included the fact that
    Pierre had drafted the 2015 CPOAP, that Rita had not been provided with
    independent legal advice and that Pierre had told her that if she did not sign
    the document she would have no access to her funds. Raymond also relied on the
    assessors view that Rita had been subjected to undue influence.

[29]

The motion judge held that the
    evidence did not support a finding of suspicious circumstances. Given the
    assessors opinion that Rita had the capacity to execute a power of authority,
    the motion judge attached little weight to Pierres having drafted the 2015
    CPOAP, or to Ritas having signed it without independent legal advice. The motion
    judge found that Pierre's alleged statements about Ritas not having access to
    her money unless she signed the 2015 CPOAP were uncorroborated. In any event,
    such statements were either true or based on a reasonable perception of what
    was going on, as it was Raymonds conduct that, arguably, had created the
    restrictions on Ritas access to her money.

[30]

The motion judge also held that
    the part of the capacity assessment to the effect that Rita had been the
    subject of undue influence was inadmissible and unreliable  it was beyond the
    scope of the assessors role, and was based, for the most part, on double
    hearsay.

[31]

The motion judge therefore
    concluded that Rita had the capacity to execute the 2015 CPOAP, and that it had
    not been the product of undue influence. Raymond had not shown any evidence of
    impropriety on Pierres part rising beyond the level of Raymonds distrust and
    speculation. There was therefore no basis to interfere with the 2015 CPOAP.

[32]

The motion judge went on to hold
    that as the role of power of attorney was fiduciary in nature, a person holding
    it must be prepared to account for his administration of someone elses
    property. Pierre was therefore ordered to pass his accounts on July 14, 2016,
    and on an annual basis thereafter.

[33]

In a costs endorsement released a
    month later, the motion judge expressed the view that this relatively
    straightforward matter [had] generated an astonishing level of lawyer activity
     all out of proportion to the monetary stakes. He went on to say that Rita
    had been put to significant expense by Raymond, and was therefore entitled to
    her costs from him. Leaving Pierres costs to the passing of accounts, the motion
    judge ordered Raymond to pay Ritas costs fixed in the amount of $55,000.

The Appeal

[34]

Raymond argues the motion judge
    erred in:

1.       applying the wrong
    test for undue influence,

2.       finding that the
    evidence did not establish suspicious circumstances,

3.       failing to consider
    relevant evidence, and

4.       the determination of
    the award of costs.

[35]

Counsel for Rita raises
    an additional issue. He argues that although the motion judge correctly found
    that the assessors opinion on undue influence was inadmissible and unreliable,
    this court ought to censure the practice of seeking and providing opinion
    evidence on undue influence from capacity assessors.

A. Standard of Review

[36]

The parties are in agreement as to
    the standard of review. The question of whether the motion judge erred in
    applying the wrong test for undue influence is one of law, and thus is reviewed
    on a correctness standard. The other issues on appeal are questions of mixed
    fact and law, and subject to a more deferential review.

B. Issues

Issue 1: Did the motion judge err in applying the
    wrong test for undue influence?

[37]

The
    parties do not dispute what constitutes undue influence or its consequences, if
    established. The divide is over who bears the burden of establishing it.

The
    Parties Submissions

[38]

Raymond submits that the test
    relied upon by the motion judge, set out above - the test for testamentary
    undue influence - is not the appropriate test for the granting of a power of
    attorney. The test the motion judge ought to have used is the test for
inter
    vivos
equitable undue influence, either actual or presumed. The effect of
    the
inter vivos
test would be to shift the onus to Pierre to prove that
    Rita signed the 2015 CPOAP, willingly and without undue influence.

[39]

Raymond relies on the decision of
    the House of Lords in
Royal
    Bank of Scotland v. Etridge (No. 2)
, [2001] UKHL 44, that explains how
equity identifies two forms of unacceptable conduct in
    the context of
inter vivos
transactions. One involves overt acts of
    improper pressure or coercion (actual undue influence). The other arises out of
    a relationship between two people, where one acquires a measure of influence or
    ascendancy over another, of which the ascendant person takes unfair advantage.
    The law has long recognized the need to prevent abuse of influence in these
    relationship cases despite the absence of evidence of overt acts of
    persuasive conduct (presumed undue influence).

[40]

Raymond points to a reference to presumed
    undue influence in the
inter vivos
setting in this courts decision in
Bank
    of Montreal v. Duguid
(2000), 47 O.R. (3d) 737, where Feldman J.A., in
    dissent but not on this point, stated:

In the case of presumed undue influence, the claimant must show
    only that there existed a relationship of trust and confidence such that it is
    fair to presume that the wrongdoer abused that relationship to procure the
    transaction. The onus then shifts to the wrongdoer to prove that the
    complainant in fact entered into the transaction freely.

[41]

Raymond argues that in the
    presence of a relationship of dominance, trust or confidence (such as has
    existed between Rita and Pierre for some time), the court will assume that the
    juridical act has occurred by virtue of inappropriate conduct, thereby putting
    the person seeking to rely on the juridical act to the evidentiary burden of
    proving that the act was made as a result of the makers full, free and
    informed thought.

[42]

Raymond submits that although this
    test is traditionally applied to
inter vivos
gifts improperly taken, it
    equally applies to
inter vivos
transfers of power over the grantors
    assets. Accordingly, Pierres dominance over Rita triggers the presumption of
    undue influence in regards to the Ritas execution of the 2015 CPOAP. Since Pierre
    has failed to lead evidence to rebut the presumption of undue influence, the
    2015 CPOAP should be set aside.

[43]

Rita argues that the motion
    judge stated the correct test, that of testamentary undue influence, and
    correctly applied that test. There is no proof of any actual coercion, and
    accordingly no undue influence surrounding the execution of the 2015 CPOAP.

[44]

Rita submits that the
    cases establishing the doctrine of
inter vivos
undue influence are not
    relevant in the circumstances of this case. Rita argues that the test of presumptive
inter vivos
undue influence, in which specific overt acts of coercion
    need not be established where there is a relationship of trust or dominance, is
    restricted to circumstances where the trusted person has a received a large or
    immoderate benefit from the transaction. However, there is no evidence of that
    here. Raymonds argument is not founded on evidence that Pierre misappropriated
    Ritas assets, but on the suspicion that such might occur. Further, Pierre
    gained nothing under the 2015 CPOAP that he did not already have under the 2013
    CPOAP: the only impact was Raymonds loss of authority.

[45]

Rita goes further. She
    submits that even if the doctrine of
inter vivos
presumptive undue
    influence were found to apply to the circumstances surrounding the making of a
    power of attorney for property, the result of this motion would be the same. The
    impact of using the
inter vivos
test is that the onus would shift to
    Pierre to demonstrate no undue influence. This is, of course, a rebuttable
    presumption. At the hearing before the motion judge, Raymond relied upon four
    statements that he said Pierre had made to Rita as establishing undue influence:

1.

She would not be able
    to continue to live at the Marleigh if she did not execute the May 12, 2015
    CPOAP;

2.

She would not have
    access to any money to pay her rent unless she removed [Raymond] from his role
    as Attorney for Property under the October 18, 2013 CPOAP;

3.

She had no choice but
    to execute the May 12, 2015 CPOAP;

4.

Once she executed the
    May 12, 2015 CPOAP and money was released, [Raymond] would again become one of
    her Attorneys pursuant to a future Continuing Power of Attorney.

[46]

The motion judge held,
    at para. 13, that these statements were either true, or based upon an entirely
    reasonable perception of what was going on.
Accordingly, even if the
inter
    vivos
presumed undue influence

test applied, Pierre would have
    successfully rebutted the burden, and demonstrated that there was no undue
    influence.

[47]

Pierre takes no
    position on this issue.

(a)
Analysis

[48]

I would not give effect to this
    ground of appeal.

[49]

First, there is no
    indication that the application of the
inter
    vivos
equitable undue influence test
    was argued before the motion judge. As noted by Weiler J.A. in
Kaiman v.
    Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para. 18, the general rule is that
    appellate courts will not entertain entirely new issues on appeal. The burden
    is on the appellant to persuade the appellate court that "all the facts
    necessary to address the point are before the court as fully as if the issue had
    been raised at trial". While this burden may be more easily discharged
    where the issue sought to be raised involves a question of pure law, the
    ultimate decision of whether to grant leave to allow a new argument is a
    discretionary decision to be guided by the balancing of the interests of
    justice as they affect all parties.

[50]

However, I need not decide whether it is in the
    interests of justice for this issue to be dealt with, as the
inter vivos
equitable undue influence test has no application on the facts of this case. As
    noted by the House of Lords in
Eltridge
, at paras. 21-22, there are two
    prerequisites to the evidential shift in the burden of proof from the
    complainant (Raymond, arguing on behalf of Rita) to the other party (Pierre).
    First, the complainant reposed trust and confidence in the other party. Second,
    the transaction is not readily explicable by the parties relationship. This
    second part of the test has been held by the House of Lords to mean that the
    evidence must support a finding that the transaction is immoderate and
    irrational.

[51]

In oral argument,
    Pierre candidly conceded the first part of the test, in other words that Rita
    reposed trust and confidence in him. However, he submits that Raymond cannot
    meet the second part, in other words show that the 2015 CPOAP was
    "immoderate and irrational".

[52]

I agree. There is
    nothing immoderate or irrational about the 2015 CPOAP. The record supports a finding
    that Ritas decision to give the power of attorney to one son over the other
    was an emotionally difficult but totally rational decision.
Rita was very clear in what she said to the police and
    to Ms. Silverston, none of which evidence was challenged. She knew her money
    was out of reach. She needed her funds to pay basic expenses such as rent. She understood
    that Raymond was interfering with her access to the fund and that the solution had
    to lie with Pierre.

[53]

Moreover, far from
    being immoderate, the 2015 CPOAP conferred little, if any, benefit on Pierre.
    He was left with the same power as he had under the 2013 CPOAP. The minor
    benefit, if one could call it that, is that the 2015 CPOAP protected Pierre
    from the stress and inconvenience of Raymonds being in a position to interfere
    with Ritas finances.

[54]

For these reasons, I am of the
    view that the motion judge was fully justified in applying the testamentary undue
    influence test.

[55]

I add, that even if the
inter
    vivos
equitable undue influence

test were applicable, the record
    does not support a finding of undue influence.

Issue 2: Did the motion
    judge err in finding that the evidence did not establish suspicious
    circumstances?

[56]

Pursuant to s. 2 of the
SDA
,
    a person is presumed to be capable of granting a power of attorney for
    property. However, s. 2(3) states that a person cannot rely on this presumption
    if he or she has reasonable grounds to believe that the other person is
    incapable of entering into the contract or of giving or refusing consent. As
    held in
Nguyen
, where there are suspicious circumstances of undue
    influence surrounding the granting of a power of attorney, the presumption of
    capacity does not operate, and the burden of proof with respect to capacity
    shifts to the grantee of the power of attorney.

[57]

The actual requirements in order to be capable of granting a power of
    attorney for property are set out in s. 8 of the
SDA.
Section 8 makes
    clear that capacity deals with issues beyond undue influence.

(a)
Parties Submissions

[58]

Raymond submits that the motion judge
    erred in failing to find suspicious circumstances. The motion judge should have
    considered:

1.

that Pierre attended at Ritas
    nursing home with the 2015 CPOAP that he had drafted,

2.

the execution of the 2015 CPOAP in
    the context of the corporate vote two days later removing Raymond as a director
    of 92780.

3.

the police report indicating that
    Rita was unsure what she had signed and that she believed she had to sign the
    document to receive money she needed to pay her expenses; and

4.

Ms. Silverstons evidence that
    undue influence was a factor in Rita's change of power of attorney

[59]

Raymond goes on to argue that the motion
    judge failed to weigh the cumulative effect of these factors when considering
    whether there were suspicious circumstances.

[60]

Rita submits that Raymond
    simply disagrees with the manner in which the motion judge weighed the evidence
    in finding that there were no suspicious circumstances of undue influence
    surrounding Rita's execution of the 2015 CPOAP.

[61]

Rita further submits
    that the law regarding suspicious circumstances has historically only been
    applied to wills. It was only in the recent case of
Nguyen
that the
    doctrine was applied in the context of powers of attorney. Rita submits that
Nguyen
was wrongly decided, and should not be applied in these circumstances.

[62]

Where suspicious
    circumstances in the preparation of a will are established, the general
    presumption of capacity to execute a will is displaced, and the onus of proof
    on the question of capacity shifts to the propounder of the document. The most
    commonly recognized example of a suspicious circumstance is when a person who
    is instrumental in the making of a will obtains a benefit under it.

[63]

However, Rita argues,
    there are two reasons why the doctrine ought not to be applied in cases
    involving powers of attorney. First, unlike cases involving wills, an attorney
    for property who is involved in the preparation of a power of attorney cannot
    be said to have received a benefit by that appointment, in that neither legal
    nor equitable title to any property is transferred by virtue of the appointment.
    Second, the doctrine exists, in part, because evidence to prove or disprove
    undue influence is often unavailable in wills cases. Conversely, in cases such
    as this, the grantor of the power of attorney is still alive, has not been
    declared incapable, and can provide evidence surrounding the execution of the
    document.

[64]

Rita argues that there
    is much evidence as to how the 2015 CPOAP came to be signed. There are contemporaneous
    statements made by Rita to Raymond, Pierre, the assessor, and the police about
    why she signed the 2015 CPOAP. This evidence exists because Pierre made no
    attempt to conceal what he was doing from anyone. The motion judge was correct
    in finding that there was no evidence of suspicious circumstances. It is clear
    what Pierre did, and why.

[65]

Pierre submits that the
    evidence does not support a finding of suspicious circumstances or any form of
    wrongful conduct in the context of Ritas execution of the 2015 CPOAP.

(b)
Analysis

[66]

As with the first issue, I do not
    see this appeal as an appropriate one in which to consider the application of
    the doctrine of suspicious circumstances to powers of attorney as a whole. In
    front of the motion judge, counsel for Rita dealt with
Nguyen
briefly,
    arguing that as Pierre had gained no benefit under the 2015 CPOAP, the doctrine
    of suspicious circumstances did not apply. As I read the transcript, counsel
    was not suggesting that the doctrine of suspicious circumstances could never
    apply in the context of powers of attorney, or that
Nguyen
should not be
    followed.

[67]

Moreover, I agree with Rita that Raymonds
    argument is simply a challenge to the motion judges findings of fact leading
    to his conclusion that there were no suspicious circumstances surrounding
    Ritas signing of the 2015 CPOAP. I see no basis to interfere with this
    finding.

Issue 3: Did the motion judge err in not
    considering relevant evidence?

[68]

A failure to consider relevant
    evidence can amount to a palpable and overriding error if the evidence was
    potentially significant to a material finding of fact:
Waxman v. Waxman
(2004), 186 O.A.C. 201, at para. 343, leave to appeal refused, [2004] S.C.C.A.
    No. 291.

(a)
Parties Submissions

[69]

Raymond argues that the motion judge
    failed to consider relevant evidence. He relies on the fact that the
    endorsement contains no reference to the police report that records suspicious
    circumstances, or to Raymonds removal as a director of 92780. Raymond submits
    that this evidence was material to the motion judges determination of the
    issues of undue influence and suspicious circumstances.

(b)
Analysis

[70]

I see no merit to the argument
    that the motion judge failed to consider relevant evidence. A judge is not
    required, in his or her reasons, to mention every single piece of evidence:
R.
    v. C.(T.)
(2005), 74 O.R. (3d) 100 (C.A.), at para. 45. The record
    demonstrates that the motion judge was aware of the evidence referred to by
    Raymond. The fact that the motion judge did not expressly mention the police
    report or the corporate resolution in his reasons does not mean that he failed
    to consider them.

Issue 4: Did the motion judge err in costs?

(a)
Parties Submissions

[71]

Raymond seeks leave, if necessary,
    to appeal the $55,000 costs award made against him. Raymond submits that he
    initiated these proceedings with the sole goal of protecting his mother and
    advancing her best interests. In the circumstances, he should not have to bear
    the onus of paying a $55,000 costs award.

[72]

Furthermore, the overriding
    principal in awarding costs is reasonableness. Raymond submits that the amount
    of costs awarded was excessive and unreasonable, being disproportionate to the
    monetary value of the issues in dispute and not within his reasonable
    expectations.

[73]

Rita argues that
    although Raymond asserts that he initiated these proceedings with the goal of
    protecting her, the motion judge found otherwise. Furthermore, Raymond relies
    on his reasonable expectations as to costs payable. However, he failed to
    deliver a bill of costs. Accordingly, there is no evidence of the costs Raymond
    would have sought, if successful. The motion judge was also provided with an
    offer to settle made by Rita, which was left open for several days.

[74]

Pierre makes no
    submissions concerning the motion judges costs order. He does express concern
    about the ongoing costs that will be incurred as a result of the order
    requiring him to annually pass accounts.

(b)
Analysis

[75]

The order requiring Pierre to
    annually pass Ritas accounts was not appealed. I therefore make no comment on
    Pierres objection to those future expenses.

[76]

I agree with the motion judges
    observations that this litigation reflects a profound lack of judgment on
    Raymonds part. I also agree with the point made by Ritas counsel, in response
    to Raymonds argument about the reasonableness of the costs award, that Raymond
    did not submit a draft bill of costs.

[77]

In the light of these two
    observations, and given that the motion judges determination of costs is entitled
    to considerable deference, I see no basis to interfere with the costs award.

Issue 5: The finding of undue influence by the
    capacity assessor

(a)
Parties Submissions

[78]

Rita submits that the
    scope of capacity assessors is statutorily restricted to inquiring into and
    providing an opinion on capacity. Under s. 78(2) of the
SDA
, the
    assessor was required to advise Rita of the purpose of the assessment, and of
    Ritas right to refuse to participate. The assessor did tell Rita her capacity
    to grant and revoke powers of attorney would be assessed. However, the assessor
    did not tell Rita that allegations of undue influence were being investigated. Rita
    was therefore not able to exercise her statutory right to refuse the
    assessment.

[79]

Rita submits that the
    assessor had neither the understanding of the law nor the authority under the
SDA
to inquire into undue influence, let alone draw conclusions on that issue.
    Her investigation of the topic was entirely one-sided, as she concluded that
    Pierre had unduly influenced Rita without seeking any evidence from him.

[80]

Counsel for Rita argues
    that although the motion judge correctly found that the assessors opinion on
    undue influence was inadmissible and unreliable, this court ought to censure
    the practice of seeking and providing opinion evidence on undue influence from
    capacity assessors. Rita argues that such evidence, in addition to being
    outside the scope of the statute, has the potential, as demonstrated by this
    case, of fueling unnecessary litigation.

(b)
Analysis

[81]

I understand Ritas counsels
    concern. However, the record contains no evidence about how prevalent such a
    practice is. Accordingly, other than

expressing my
    agreement that it was inappropriate for the assessor to provide an opinion on
    undue influence and agreeing, as I have,

that her opinion on undue influence was unreliable and
    inadmissible,
I leave more in-depth consideration of this issue to
    another day, in which it is fully canvassed in the record.

CONCLUSION

[82]

I endorse the wise words of the motion
    judge when he expressed the view that both Raymond and Pierre had lost sight
    of the fact that it is Ritas best interests that must be served here, not
    their own pride, suspicions, authority or desires. I support this view
    particularly in the light of the submissions Rita personally made to the panel
    in the course of the hearing. Notwithstanding that she was ably represented by
    counsel, Rita, on two occasions during argument, asked and obtained permission
    to address the court. On both occasions, Rita professed her love for both of
    her sons, but in no uncertain terms Rita also powerfully conveyed her
    frustration over the damage that the family has suffered as a result of these seemingly
    meritless proceedings.

[83]

Rita asked the panel for
    assistance in ending the litigation. Hopefully, in the light of this decision,
    her sons will honour Ritas wishes.

DISPOSITION

[84]

For these reasons, I would dismiss
    the appeal. I would order Raymond to pay Rita her costs of this appeal in the
    amount of $30,000 including disbursements and HST. Pierre was not represented
    by counsel. However, he requested a significant order for costs. Pierre has
    been put to a great deal of time and effort and personal expense for reasons,
    as I have said, that are questionable. I would


therefore order Raymond
    to pay costs to Pierre in the amount of $5,000.

Released: GE June 30,
    2017

Gloria Epstein J.A.

I agree. M.L. Benotto J.A.

I agree. G.T. Trotter J.A.





[1]

Although a respondent, the company is unrepresented and took
    no part in the motion or the appeal.


