BC Court of Appeal Confirms Summary Procedure Applied by Lower Court in Appointing two Committees Based Affidavit Evidence

In the recent case of Mendres v. Ramsay1, the British Columbia Court of Appeal heard an appeal from an order made by a Justice of the Supreme Court of British Columbia, appointing two individuals as committees for a patient. The appellant contested the summary nature of the hearing, namely that the hearing Court was not able to properly decide on the appropriate choice for the committee on the basis of affidavit evidence alone. The appellant argued that the hearing Court ought to have ordered a hybrid trial with live cross-examination, or a full trial of the matter.

The parties were members of the same family: the respondents were a married couple, the brother and sister-in-law of the patient, and the appellant was their daughter, the niece of the patient. The appellant had previously served as attorney for the patient, and had provided care for her.

The appellant daughter/niece opposed the appointment of her parents as committees for the patient, and sought by cross-petition an appointment to serve as committee for the patient. The incapacity of the patient was not controversial. The substance of the apparently significant amount of evidence before the hearing Court was a disagreement between the parties as to who should serve as committee. The respondents sought to convince the Court that there had been a falling-out between the patient and the appellant prior to the former’s incapacity, and that the patient had fired the appellant in 2017. The respondents also alleged impropriety against the appellant, and that she had misappropriated funds from the patient. These allegations were denied by the appellant.

The hearing Court held that while it could not determine issues of credibility, it could focus instead on the evidence from the two years preceding the hearing. The Court held that the evidence from the respondents and the patient’s family doctor established that the respondents were engaged in the care for the patient, and that this contradicted the appellant’s evidence that she continued to be involved in the patient’s care.

As to the appellant’s position that the hearing Court had erred in failing to allow further inquiries to determine issues of credibility, the Court of Appeal held that the hearing Court held broad discretion to determine process, and that the expected method for the hearing of a petition was summary disposition by affidavit alone, rather than a hybrid hearing with live evidence, or a full trial. The Court found no error in the hearing Court’s decision to proceed summarily.

The Court of Appeal also found no error with the hearing Court’s consideration and weighing of the evidence, and reliance on certain facts found from the evidence, despite the presence of high conflict between the parties. The Court of Appeal found that the hearing Court found facts based on the evidentiary record before it, and based its decision on such facts. No error was found.

The final ground of appeal was that the hearing Judge’s oral reasons did not consider the individual suitability of the patient’s sister-in-law as co-committee with her husband, and claims in the appellant’s evidence that the patient, prior to incapacity, expressed objection to her sister-in-law acting as her representative. Interestingly, the Court held that the Court had erred in failing to consider the sister-in-law individually, and instead considering her jointly with her husband. In the Court’s reasoning, this created an “opening” for review and intervention of the order. Ultimately, the Court of Appeal declined to intervene, and found that the two co-committees had recently acted collectively to provide care for the patient, and no evidence was shown that the choice of the sister-in-law as co-committee was prejudicial to the patient.

For any questions related to appointment of committees over a patient, please contact a member of our Wills, Estates + Trusts Practice Group.


12023 BCCA 137

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