Cameron (Re)

2020 BCSC 157 Cameron (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cameron (Re), 2020 BCSC 157 Date: 20200210 Docket: S189228 Registry: Vancouver In the Matter of Margaret Lillian Cameron and In the Matter of the Patients Property Act, R.S.B.C. 1996, c. 349, and amendments thereto Before: The Honourable Mr. Justice Grauer Reasons for Judgment Counsel for the Petitioner: Kenneth B. Friesen Counsel for the Respondent Leigh-Anne Cameron: Mikhael Magaril Counsel for the Respondent Margaret Lillian Cameron: Joseph Cuenca Counsel for the Respondent Public Guardian and Trustee of British Columbia: Kay M. Vinall (Written Submissions) Place and Dates of Hearing: New Westminster, B.C. October 29-31, 2019 November 1, 2019 Vancouver, B.C. December 9, 2019 January 28, 2020 Place and Date of Judgment: Vancouver, B.C. February 10, 2020 Table of Contents Paragraph Range 1.0 INTRODUCTION [1] - [11] 2.0 BACKGROUND [12] - [25] 3.0 DISCUSSION [26] - [114] 3.1 Petition or Action: the test [26] - [36] 3.2 Statutory provisions [37] - [44] 3.3 The question of capacity [45] - [74] 3.4 Who should be committee? [75] - [114] 4.0 CONCLUSION [115] - [118] 1.0 INTRODUCTION [1] This proceeding arises from an unfortunate conflict between two sisters over the care of their mother, the respondent Margaret Cameron, who is 84. In September 2015, Mrs. Cameron was diagnosed with posterior cortical atrophy ("PCA"), a form of

dementia that progresses slowly, and has left her functionally blind. [2] The petitioner, Alison Primerano, is the younger of Margaret Cameron's two daughters. She applies for a declaration under section 3 of the Patients Property Act, RSBC 1996, c 349 [PPA], that Mrs. Cameron is incapable of managing herself and her affairs because of mental infirmity arising from disease, age or otherwise. Ms. Primerano further applies under section 6 of the PPA for an order appointing her committee of Mrs. Cameron's person and estate. Alternatively, Ms. Primerano proposes that she be appointed committee of Mrs. Cameron's person, and an independent party, such as the family business's long time accountant, Mr. Bruce Allen, be appointed committee of Mrs. Cameron's estate. The estate is substantial. [3] The respondent Leigh-Anne Cameron is the elder daughter. For clarity, and meaning no disrespect to the parties, I will henceforth refer to the daughters by their first names. [4] Leigh-Anne does not accept that her mother is incapable of managing herself and her affairs, and opposes the appointment of Alison as committee. By notice of application filed in this proceeding, Leigh-Anne applies for an order converting this petition into an action on both issues: Mrs. Cameron's capacity, and if she is found to be incapable, who should be her committee. [5] Alternatively, if I find myself able to

determine in this hearing that Mrs. Cameron lacks capacity, Leigh-Anne seeks an order appointing her as committee of Mrs. Cameron's person and estate. In the particular circumstances of this case, the parties are agreed that Leigh-Anne may seek that order without having to file a separate petition. [6] Regrettably, due to the mysteries of family dynamics, the sisters are unable to agree on almost anything to do with their mother's care. The conflict between them is deep, and their relationship is marred by a strong mutual distrust. Each seeks to impugn the motives of the other. Nevertheless, I am satisfied that each firmly believes, in good faith, that their respective positions are in their mother's best interests as they perceive them. Their conflict has clearly been significantly exacerbated by the heavy weight of having to deal with an ailing parent. [7] The Public Guardian and Trustee ("PGT"), in written submissions, takes the position that the medical evidence supports a declaration under the PPA that Margaret Cameron is incapable of managing her person or her affairs, and that it is in her interest that this matter be determined in a timely fashion in accordance with the PPA, based on that medical opinion. [8] The PGT further takes the position that a committee should be appointed in a timely fashion, but is not in a position to opine on which of the sisters should be

appointed committee. The PGT would be prepared to act as committee if the court determines that the appointment of a family member would only lead to escalated family conflict, or would otherwise not be in Mrs. Cameron's best interests. The PGT would do so only if appointed as committee of both Mrs. Cameron's person and estate. [9] For the reasons that follow, I find that the evidence supports, and indeed requires, a declaration under section 3 of the PPA that Mrs. Cameron is incapable of managing her person or her affairs by reason of mental infirmity arising from disease. As to the appointment of a committee, I find that there are concerns with respect to either sister, and that triable issues arise. These include whether Mrs. Cameron was of "sound and disposing mind" within the meaning of the PPA when she signed a document nominating Leigh-Anne to be committee of her person and estate. If so, then, by section 9 of the PPA, Leigh-Anne must be appointed Mrs. Cameron's committee in the absence of good and sufficient reason for refusing to do so. In the result, the question of who should be appointed committee is referred to the trial list. [10] I will turn next to a brief review of the background to this matter, which is not without complexity. I remain mindful throughout of the necessity to focus on those facts relevant to Mrs. Cameron's best interests. Regrettably, the

affidavits of both sides are filled with inadmissible hearsay, and attributions, aspersions and interpretations that are meaningless from an evidentiary perspective ("I often recall [Mrs. Cameron] frowning and rolling her eyes when [Alison's husband] came up in conversation or if he said something self-serving") as well as other unhelpful references to subjective observations about the parties, not to mention conclusory opinions expressed as fact. I have had to separate the probative wheat from a great deal of irrelevant chaff. [11] Having done so, I will nevertheless endeavour to limit myself in reviewing the relevant evidence, given that another trier will have to consider it in the future. In addition, I find it unnecessary to exclude affidavits filed on behalf of Leigh-Anne to which Alison objected on the basis of timing. The exception is the one affidavit I rejected during the hearing on the basis that it constituted inadmissible hearsay evidence. 2.0 BACKGROUND [12] Mrs. Cameron was born in London, England, on July 7, 1935. Her husband, Byam Cameron, passed away in 2003. [13] Byam Cameron was a successful entrepreneur and businessman. He left his family financially well off. The family wealth consists primarily of the assets of the family holding company, Byam Properties Ltd., in which Mrs. Cameron, Alison and Leigh-Anne are all shareholders. In addition, Mrs. Cameron has

a substantial investment account with Odlum Brown. [14] In June 2015, while visiting the United Kingdom for a family celebration of her 80th birthday, Mrs. Cameron encountered difficulties. These included confusion, hallucination, and difficulty recognizing relatives. A neurologist she consulted in the UK suspected PCA. In September 2015, Mrs. Cameron was seen by Dr. Virginia Devonshire, a neurologist in North Vancouver, BC. Dr. Devonshire agreed with a diagnosis of PCA, which was felt to be a variant possibly of Alzheimer's or Lewy body dementia. Dr. Devonshire noted that this was a progressive degenerative disorder, with dementia being the overriding problem. [15] Over the ensuing months, Leigh-Anne became primarily responsible for assisting with Mrs. Cameron's care. She was also the sister primarily responsible for assisting with Mrs. Cameron's financial affairs. [16] At this time, Mrs. Cameron lived on her own in her house in Sechelt, BC. In April 2016, she executed both a Power of Attorney and an "Enhanced Representation Agreement for Health Care" (pursuant to section 9 of the Representation Agreement Act, RSBC 1996, c 405) in favour of both daughters. [17] The representation agreement provided that the two representatives may act separately and each will have the same areas of authority. Margaret expressly declares that the Representatives need not act together or provide

evidence of unanimity to anyone. [18] As the agreement provided no practical means for the resolution of disagreement between the two representatives, the provision for full separate authority became a recipe for conflict. [19] In June 2016, after both Leigh-Anne and Alison had researched residence options, and Mrs. Cameron had given two of them a trial, Mrs. Cameron moved to the Tapestry retirement living facility in Wesbrook Village at the University of British Columbia. [20] In January 2018, the staff at Tapestry indicated that Mrs. Cameron's condition had deteriorated to the point where she could no longer safely remain in residence there. She was permitted to remain temporarily, so long as 24-hour companion care was arranged. [21] Leigh-Anne and Alison accordingly had to find alternative living arrangements, never an easy task. They visited a number of assisted living and long-term care facilities, and considered options such as renting an apartment and hiring live-in caregivers, a very expensive proposition. They found one long-term care facility that could take Mrs. Cameron, and which seemed preferable to the others they looked at. This appeared to be the solution. But one concern was that Mrs. Cameron would be placed on the dementia ward, where the other residents were considerably more disabled than Mrs. Cameron; also, there was a limited ability to arrange for

companion care. Leigh-Anne was afraid that her mother would end up in diapers, stuck in front of a television. [22] From Leigh-Anne's perspective, there was another option. Leigh-Anne owns a house in Los Barriles, Baja California Sur, Mexico. She used it both as a vacation property for herself, and for income from vacation rentals through Airbnb. Mrs. Cameron had visited her there often. Leigh-Anne proposed to convert an outbuilding on the property into a self-contained two-bedroom casita, which would provide separate accommodation on the property for both Mrs. Cameron and a live-in caregiver. She proceeded with the renovations. [23] Los Barriles is a largely expatriate community with full medical facilities, and is close to Cabo San Lucas, where there is a modern hospital. Qualified care aides are available to provide 24-hour care at a cost of less than half of what the same coverage would cost in Vancouver. [24] Ultimately, that is where Mrs. Cameron has ended up. Leigh-Anne no longer uses the property for vacation rentals, but rather maintains it as her residence, overseeing Mrs. Cameron's care with the assistance of full-time caregivers. The PGT accepts that Mrs. Cameron is well cared for in Mexico. I agree. [25] Through this process, Alison has had very little contact with Mrs. Cameron. She did not agree to her mother living in Mexico long term, and feels that Leigh-Anne

has interfered with her relationship with Mrs. Cameron. She has raised a number of significant concerns about Leigh-Anne's controlling behaviour, and the manner in which Leigh-Anne has dealt with family finances. She questions, for reasons that are understandable on the evidence, whether wishes and preferences expressed by Mrs. Cameron are truly her own, as opposed to Leigh-Anne's. She feels estranged from her mother, and there is no doubt that whatever happens, every effort should be made to restore their relationship. 3.0 DISCUSSION 3.1 Petition or Action: the test [26] Leigh-Anne argues that, with respect to both questions, capacity and the appointment of a committee, triable issues arise. Accordingly, Leigh-Anne submits, as a matter of law, these questions cannot be determined in a proceeding brought by petition; the court is obliged to remit them to the trial list. There, the parties will have full rights of disclosure, examination for discovery and pretrial examination of witnesses. Then, if so minded, the parties can proceed to a summary trial. But at this stage, she asserts, a summary trial procedure that would permit the court to weigh the evidence is not available. [27] Leigh-Anne submits that the bar for referring an application brought by petition to the trial list is very low, relying on British Columbia (Milk Marketing Board) v Saputo Products Canada GP/Saputo

Produits Laitiers Canada SENC, 2017 BCCA 247 ("Saputo"). [28] In Saputo, the BC Milk Marketing Board commenced a petition to compel Saputo to pay monies it had withheld on the ground that the monies represented losses Saputo had suffered from purchasing bad milk. Saputo applied under the applicable Supreme Court Civil Rules for an order converting the petition into an action, and granting leave for Saputo to issue third-party notices against the dairies responsible for supplying the suspect milk. The Supreme Court chambers judge dismissed the application; Saputo appealed. [29] The Court of Appeal considered, first, whether the proceeding was properly brought by petition, or ought to have been commenced as an action. Mr. Justice Goepel, for the court, concluded that it was properly commenced as a petition in accordance with Rules 1-2(4) and 2-1(2)(b), as it was an application authorized by an enactment. [30] The same is true here. Alison's applications are authorized by sections 2, 3 and 6 of the PPA. Section 9 is also relevant to this discussion, and I set out these provisions below. At this point, it is sufficient to note that Alison's applications were, accordingly, properly brought by petition. [31] In Saputo, Goepel JA then turned to consider two divergent approaches in the case law to determining when proceedings brought by petition should be referred to the trial list.

The first is exemplified by the decision of the Court of Appeal in Robertson v Dhillon, 2015 BCCA 469 at paras 55-56: [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), 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), 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, 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. [32] This, Goepel JA concluded, was the proper approach, rejecting the second line of cases that applied a multifactorial test exemplified by Boffo Developments (Jewel 2) Ltd v Pinnacle International (Wilson) Plaza Inc., 2009 BCSC 1701. Thus, the test for determining whether a matter should be converted into an action is not that used for determining suitability for summary trial, but rather is akin to that applied on application for summary judgment. Accordingly,

unless the judge is satisfied that there is no dispute as to the facts or law that raises a reasonable doubt, or which suggests that there is a defence that deserves to be tried, an application brought by petition should be converted into an action. [33] The Court of Appeal confirmed this approach in Kerfoot v Richter, 2018 BCCA 238, a petition to prove a will in solemn form. One of the deceased's children opposed the application on the ground that the deceased lacked testamentary capacity, and applied to have the petition converted into an action. The judge dismissed that application. [34] Madam Justice Fisher, for the court, emphasized that the test in Saputo required proceedings brought by petition 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. While the court may consider evidence to determine whether it establishes a bona fide triable issue, it is not to weigh the evidence on the hearing of the petition. On the other hand, a party seeking to establish a triable issue cannot rely on "mere allegations", and the court is entitled to draw inferences that are strongly supported by undisputed facts (see paras 27-29). [35] It follows, Leigh-Anne submits, that Alison's applications should be referred to the trial list. There are, she contends, triable issues in relation to both applications which

easily meet the low bar of this test. [36] I turn to review the relevant provisions of the PPA. 3.2 Statutory provisions [37] Section 2 authorizes the bringing of an application for a declaration as to capacity: 2 (1) The Attorney General, a near relative of a person or other person may apply to the court for an order declaring that a person is, because of (a) mental infirmity arising from disease, age or otherwise, or (b) 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. [38] Section 3(1) applies to the hearing of such an 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. [39] Thus, the court must declare incapacity if after (1) hearing an application, and (2) reading the affidavits of two medical practitioners opining that the person in question is incapable because of mental infirmity, disorder or disability, the court is satisfied that the person is indeed incapable. Note that it does not impose a standard such as "satisfied beyond a reasonable doubt". [40] Of significance when we consider Leigh-Anne's application, the PPA itself permits the court to direct a trial of the issue of capacity, as set out in section 3(2): (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. [41] The subsection is, of course, permissive. Reading subsections 3(1) and 3(2) together, the ability to order a trial of the issue of capacity turns, in this legislation, upon whether the court is satisfied as to the person's incapacity upon hearing the application and reading the affidavits of two physicians. If it is, then the court must make the order. If it is not, then it may do one of three things. It may dismiss the application; it may order a trial of the issue under subsection 3(2); or, either on the hearing of an application under subsection 3(1), or on the trial of the issue under subsection 3(2), it may order further medical examination under section 5: 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. [42] Although appearing by counsel at the hearing of this matter, Mrs. Cameron did not request an examination under section 5(3). Leigh-Anne did suggest it as an alternative. [43] A person found to be incapable of managing his or her affairs, and/or himself or herself, in accordance with section 3(1), is, by definition, a "patient" within the meaning of the PPA. The appointment of a committee for a person found to be a patient is governed by section 6: 6 (1) Subject to section 13, on application by the Attorney General or any other person, the court may appoint any person to be the committee of the patient. (2) On

application by the Attorney General, the Public Guardian and Trustee or any other person, the court may, subject to section 13, rescind the appointment of a person appointed as committee. (3) Subject to section 16, except during the time that a person appointed under subsection (1), other than the Public Guardian and Trustee, is the committee of a patient, the Public Guardian and Trustee is the committee of the patient. [44] The PPA makes no specific provision for the trial of that issue. 3.3 The question of capacity [45] Here, the parties have adduced an abundance of evidence, not all of it admissible, and not all of it of probative value. [46] On the issue of capacity, Alison has filed affidavits from two treating medical practitioners: Dr. Deborah Hocking, Mrs. Cameron's family physician since June 2016; and Dr. Haakon Nygaard, a specialist in neurology who treated Mrs. Cameron from 2015 through 2018. Both opined that Mrs. Cameron is, due to the disease from which she suffers, incapable of managing herself or her affairs. This meets the requirements of section 3(1) of the PPA. [47] Leigh-Anne has filed evidence from various persons who have observed Mrs. Cameron, but who are not medical practitioners, suggesting that Mrs. Cameron is not quite so incapable; evidence from medical practitioners who provide their observations of Mrs. Cameron, but who do not pronounce on the

issue that section 3(1) of the PPA raises; and purported expert opinion evidence from a medical practitioner in British Columbia who did not examine Mrs. Cameron but offers a critique of the opinions of those who did. [48] Leigh-Anne submits, correctly, that the law presumes Mrs. Cameron to be of full capacity, and that the onus is on Alison to establish otherwise. Leigh-Anne then contends that the evidence she has filed, including the video and audio recordings, raise at least a triable issue as to whether Mrs. Cameron is incapable of managing herself or her affairs. [49] Saputo and Kerfoot are, of course, binding on me, but the principles they express must, as I apprehend them, be considered in the context of the legislation that gives rise to the application in question, the starting point of the analysis. Neither of those cases considered an application under section 3 of the PPA. That section contains its own scheme for the determination of the question that is the subject of the application, and for directing that the issue be tried if appropriate. To that extent, the force of the reasoning in Saputo and Kerfoot becomes somewhat diluted. [50] On the issue of capacity, I find, for reasons I will discuss more fully below, that, on hearing the application and reading the affidavits of the two medical practitioners in question, I am satisfied that Mrs. Cameron is incapable of

managing herself or her affairs within the meaning of the PPA. The evidence, in short, meets the requirements of section 3(1). [51] Given the structure of that section, and the requirement that a court make the requested declaration if "satisfied", it seems to me that some weighing of the evidence is permissible. Indeed, it is difficult to imagine complying with the section without weighing the evidence of the two medical experts whose opinions the section requires. But even if I am wrong in that, nothing in Saputo or Kerfoot suggests that this must be determined as a certainty or that the existence of any factual issues dictates conversion to an action. The evidence that is relevant and probative satisfies me, and I need go no further. The evidence of the two medical practitioners who actually examined Mrs. Cameron with this question in mind is clear, and amply supported by the surrounding evidence. The evidence Leigh-Anne marshals against it is speculative, of questionable probative value, or irrelevant to the specific issue. [52] I turn first to the two opinions of the treating medical practitioners. Although their opinions are somewhat dated given the length of time it has taken for this matter to come on for hearing, it is important to understand that the condition of PCA from which Mrs. Cameron suffers, as Dr. Nygaard put it, "inevitably leads to a progressively worsening

dementia". There is no cure or effective treatment for it. No one with any expertise suggested otherwise. Consequently, this is not one of those situations considered in cases such as Public Trustee v Batiuk, 1996 CanLII 2097 (BCSC), where there was potential for, and some evidence of, improvement. [53] In the words of Dr. Hocking: It is my opinion that Mrs. Cameron is unable to make decisions regarding her health and personal care due to dementia caused by Alzheimer's posterior cortical atrophy and vascular dementia. Her condition has deteriorated progressively and significantly over the time I have known her. She has tried several medications as prescribed by her neurologist in an attempt to ameliorate her symptoms, none of which have helped. There is no cure for her condition which will unfortunately continue to progress. [54] In her affidavit, Dr. Hocking further expressed the view that Mrs. Cameron was incapable of managing her affairs due to the same condition. [55] Leigh-Anne raised a number of criticisms of Dr. Hocking's affidavit, including an apparent error in Dr. Hocking's report, where she stated that Mrs. Cameron had been suffering with dementia due to PCA for three years prior to her first meeting with her. Leigh-Anne points out that Dr. Devonshire did not diagnose the condition until September 2015, which was not three years before Dr. Hocking started caring for

Mrs. Cameron. But that date was not the starting point of Mrs. Cameron's problems, as noted by Mr. Allen, her accountant. It was simply the first time someone gave a definitive diagnosis. In any event, a discrepancy of that character does not, in my view, detract from the force of Dr. Hocking's opinion. [56] Leigh-Anne further raised the fact that Mrs. Cameron had been prescribed medication which caused drowsiness, affecting her presentation. She suggested that this undermined both medical opinions, but it is clear that both practitioners were well aware of it. [57] Dr. Nygaard is a neurologist with subspecialty qualification in behavioural neurology and neuropsychiatry. He is director of the Clinic for Alzheimer Disease and Related Disorders at the Djavad Mowafaghian Centre for Brain Health at the University of British Columbia. He holds the Fipke Professorship in Alzheimer's Research. He saw Mrs. Cameron on ten occasions between October 2015 and July 2018. [58] According to Dr. Nygaard, the PCA from which Mrs. Cameron suffers is a subtype of Alzheimer's disease that initially and disproportionately affects the visual-spatial system, and can later affect all aspects of cognitive function, including memory, comprehension, and overall decision-making. There is no cure or effective treatment for Posterior Cortical Atrophy, and the condition inevitably leads to a progressively

worsening dementia. [59] Dr. Nygaard expressed the opinion that, when he evaluated Mrs. Cameron on July 23, 2018, her cognitive function had deteriorated significantly since his previous assessment in December 2017. It was his opinion that she was incapable of managing her own personal care or financial affairs. [60] Leigh-Anne filed an affidavit from Dr. Manuel Ezequiel Ramirez Bustos, a general practitioner who practices in La Paz, Baja California Sur. Mrs. Cameron has been his patient while in Mexico. His opinion relates more to the issue of whether Mrs. Cameron retains the capacity for making certain decisions, such as where she wishes to live. He does not comment on whether she retains the capacity to manage her person or her affairs within the meaning of the PPA. Dr. Ramirez notes that, in cases like Mrs. Cameron's, "we can only manage for the person's quality of life, as there is no treatment", and observes that many people "come to Los Barriles from U.S. or Canada for that simple environment, at the last stages of their life." [61] In challenging the medical opinions of Dr. Hocking and Dr. Nygaard, Leigh-Anne relies principally on a "medical file review" conducted by Dr. Michael Passmore, a psychiatrist with a subspecialty in geriatric psychology. [62] As the PGT observed, "the report of Dr. Passmore is not based on any examination of Margaret Cameron. He is unable to

opine as to Margaret Cameron's capacity". That is undoubtedly so. The fact remains that it is not up to Leigh-Anne or Mrs. Cameron to prove that Mrs. Cameron has capacity; rather, the onus is on Alison to satisfy me that she does not. The question, therefore, is whether Dr. Passmore's evidence is such that I cannot be satisfied as to Mrs. Cameron's incapacity. [63] It is not. Dr. Passmore raises a number of bases for questioning the evidence of Dr. Hocking and Dr. Nygaard, but these do not detract from the fundamental difference between his position as a file reviewer, and the position of Drs. Nygaard and Hocking as treating physicians. In one section, for instance, Dr. Passmore discusses the typical approach to formulating a medical opinion regarding a person's capacity, and sets out various assessments that would be of assistance. Such a list is not helpful in reviewing the considered opinions of Dr. Hocking and Dr. Nygaard, given their experience with Mrs. Cameron. They were not carrying out "one-off" assessments. In the end, all Dr. Passmore can really say is that in 2018, Mrs. Cameron appeared to be suffering from a Major Neurocognitive Disorder of moderate severity that would generally present with "a degree of cognitive impairment sufficient to impact on the broad range of capabilities that are required for independent functioning". [64] Observations from various

caregivers are also included, but not helpful in determining the issue that the PPA requires me to determine. Leigh-Anne further relies on an affidavit from a solicitor, who did not otherwise participate in this proceeding, and whom I shall call ML. [65] ML was initially retained by Leigh-Anne to represent her in this proceeding. At the same time, it would seem that Leigh-Anne also retained him to advise Mrs. Cameron, who at that point was in Mexico. The purpose of this was to assist in the execution of documents, including a new power of attorney in favour of Leigh-Anne, together with a revocation of the existing one naming Alison as well as Leigh-Anne. [66] ML prepared the documents, evidently on Leigh-Anne's instructions, before meeting with Mrs. Cameron. He then met with both Leigh-Anne and Mrs. Cameron on June 1, 2018. He took Mrs. Cameron's instructions at that time (in Leigh-Anne's presence), and witnessed her execution of the revocation and the new power of attorney. In his affidavit, he opined that Mrs. Cameron had the capacity to understand the nature of the documents and to execute them, and would also have had the capacity to sign a nomination of committee. [67] I find ML's affidavit to be problematic. It appears to me that he was, perhaps unwittingly, in a position of conflict of interest. But in any event, his opinion cannot go beyond the execution of the specific

documents in question to the general issue of Mrs. Cameron's capacity to manage her estate or her affairs. On the former question, I am concerned about whether I can give it any weight. On the latter question, it is irrelevant. [68] Evidence that is relevant supports the opinions of Dr. Hocking and Dr. Nygaard. [69] Myles Buckman, PhD, carries on a practice of individual and spousal therapy, and in that capacity, saw Mrs. Cameron and her late husband professionally in the early 1990s. When Dr. Buckman saw Mrs. Cameron again in mid-2016, he observed that she had deteriorated markedly with dementia. By then, he noted, she no longer had the capacity or self-awareness to understand her diminishment. [70] In January 2018, Tapestry prepared a report in the ordinary course of its business outlining its concerns about Mrs. Cameron's decline, and why she was no longer a candidate for independent living in the Tapestry community. Both sisters accepted it. The principal points of concern related to Mrs. Cameron's cognitive decline and confusion: being unsure of where she is going or where she lives; wandering at night and getting locked out of her suite without appropriate footwear or clothing; being found out in the hallway sleeping on the bench on the fifth floor; hallucinating about people who were not there; being found wandering the halls looking for her husband; and so on. [71] In

describing the steps she had taken to ensure Mrs. Cameron's safety, Leigh-Anne spoke of motion sensors in the casita to ensure that Mrs. Cameron did not wander off at night without her caregiver being aware, and other such precautions. [72] Alison's evidence is replete with examples of significant lapses in memory and cognition by Mrs. Cameron. The videos and voice recordings I heard did not rule out an ability on the part of Mrs. Cameron to make some decisions, about which I will have more to say shortly, but by no means contradicted the evidence concerning her overall capacity. [73] In the result, having heard the application--six days of argument based on extensive materials that comprised four exceptionally thick binders of evidence, plus audio recordings and videos, as well as briefs of authorities and written submissions--and having reviewed the affidavits of Dr. Hocking and Dr. Nygaard, I am satisfied within the meaning of section 3(1) of the PPA that, because of mental infirmity arising from disease, Mrs. Cameron is a person who is incapable of managing herself or her affairs, and I so declare. [74] I turn now to consider the appointment of a committee. 3.4 Who should be committee? [75] An application for an order appointing a committee is permitted by section 6, set out above. Unlike section 3, section 6 does not set out a test or a process to be followed by the court

in hearing such an application and making such an order. I conclude that where, as here, one of the parties applies for an order converting the application by petition into an action, the Saputo analysis applies undiluted. [76] I turn first to consider Alison's application for an order appointing her as committee. [77] An immediate roadblock to this application is section 9 of the PPA, which requires the court to appoint a person nominated by the patient to be committee unless there is good and sufficient reason not to: 9 On an application for the appointment of a committee, if there is presented to the court a nomination in writing of a committee by the patient, (a) made and signed by the patient at a time when the patient was of full age and of sound and disposing mind, and (b) executed in accordance with the requirements for the making of a will under the Wills, Estates and Succession Act, the nominee must be appointed committee unless there is good and sufficient reason for refusing the appointment. [78] In this case, Mrs. Cameron made and signed such a document, duly executed and witnessed, nominating Leigh-Anne as her committee and guardian, on October 26, 2018. Alison raises two challenges to this nomination: first, she questions whether Mrs. Cameron was of "sound and disposing mind" at the time she executed that document; and second, if she was, Alison submits that

there is nevertheless good and sufficient reason to refuse the appointment. [79] What is good and sufficient reason? The PPA does not say. But the paramount consideration in appointing a committee is the best interests of the patient: see, for instance, British Columbia (Public Trustee) v Pollen, [1996] BCJ No. 2394 (SC); Vranic (Re), 2007 BCSC 1949 at paras 92-93; Sangha (Re), 2013 BCSC 1965 at para 49; Simons v DiClemente-Simons, 2014 BCCA 132 at paras 9-10; and Stewart (Re), 2014 BCSC 2321 at paras 40-41. [80] Accordingly, absent factors that would make the appointment of a nominated committee impracticable, I conclude that a committee nominated under section 9 by a patient of sound and disposing mind should (must) be appointed unless it can be demonstrated that it would not be in the best interests of the patient to do so. [81] Alison argues that it would not to be in Mrs. Cameron's best interests for Leigh-Anne to be appointed committee. Leigh-Anne makes the same argument, on different grounds, about Alison. [82] Based on medical reports and other evidence that predates Mrs. Cameron's nomination, I have found that Mrs. Cameron is incapable of managing herself or her affairs. But it does not necessarily follow that she lacked then, or lacks now, the capacity to make decisions about her care, and to nominate a committee. As Madam Justice Bruce observed in Fraser v Fraser,

2008 BCSC 1733: [19] In this case the nomination is in writing and is signed by Andrew Fraser Sr. in the presence of two witnesses. Thus it meets the requirements under the Wills Act. Although it is apparent the nomination was signed at a time when Andrew Fraser Sr. was not capable of managing his affairs or his person, I am satisfied, based upon Dr. Cameron's opinion, that he was, at the relevant time, capable of understanding the nomination and selecting whom he wished to manage his estate and person. [20] There is a qualitative difference between managing one's business affairs and attending to one's daily care needs and choosing who among family members one wishes to have in charge of those matters. Similar to testamentary capacity, I find the patient's awareness and understanding does not have to be at a very high level to designate a family member to be in charge of their affairs. The patient need only know what his wishes are in that regard. See, McLean v. Gonzalez-Calvo, 2007 BCSC 646 at paras. 53-55. [83] Leigh-Anne has adduced a considerable amount of evidence concerning Mrs. Cameron's capacity to make decisions about where she wishes to live, and whom she wishes to nominate as her committee. [84] I have already referred to the evidence in this regard of ML, but for the reasons I have already given, I am not persuaded that I can give his evidence very much weight,

particularly given that he saw Mrs. Cameron in the presence of Leigh-Anne, and at a time that predated her execution of the nomination. [85] I have also referred to the evidence of Dr. Ramirez, which I have no reason to doubt. Dr. Ramirez has treated Mrs. Cameron since she moved to Los Barriles in April 2018. He deposed that having seen and treated Mrs. Cameron through numerous patient visits: I am of the opinion today [April 16, 2019], that she still has the capacity for making many decisions in her day to day life stop for instance, I am of the opinion that she has capacity to indicate her preference for where she wishes to live, making basic life choices (i.e. what she wishes to have for breakfast, or what you would like to wear), and what activities she wishes to engage in (i.e. yoga, baking, or going to craft groups, etc.). She is of course not mute so she is able to communicate her preferences. [86] I should say at this point, before having to go further through the evidence, that there is nothing that contradicts Dr. Ramirez's statement. Moreover, there is much evidence that is consistent with it, including the evidence of Mrs. Cameron herself, through video interviews, and the evidence of Dr. Nygaard who reported that Mrs. Cameron was content with her living conditions in Mexico. [87] On the question addressed by Dr. Ramirez (and others), being Mrs. Cameron's capacity

to indicate her preference for where she wishes to live, I am left in no doubt whatsoever. Mrs. Cameron has that capacity, and has consistently made her preferences quite clear: she wishes to continue living in Mexico under the arrangements Leigh-Anne has established. Her care is excellent and affordable, and provided by healthcare workers she likes and appreciates. The climate is agreeable. She has access to quality medical care, and to an abundance of activities and social interactions that she enjoys. She experiences a lifestyle that could be replicated in British Columbia, if at all, only at a significantly higher cost. [88] This factor alone suggests to me a second roadblock to Alison's appointment as committee. Although she submits that her appointment as committee would not prevent Mrs. Cameron from spending time in Mexico, she has offered no particular plan that would accommodate Mrs. Cameron's wishes under a different regime, nor has she proposed alternative arrangements that would seem to meet Mrs. Cameron's expressed preferences. I am satisfied that Leigh-Anne is more likely to facilitate a continuation of the lifestyle that Mrs. Cameron quite clearly prefers. [89] This leads me to the question of whether Leigh-Anne should be appointed committee. [90] An apparent consequence of Mrs. Cameron residing with Leigh-Anne in Mexico has been to exclude Alison from her

mother's life. Infirmity has made it difficult for Mrs. Cameron to travel to Vancouver. In this regard, I note that Leigh-Anne has made it clear that Alison and her family are welcome to visit in Mexico with all expenses paid. Alison has never accepted that invitation, and her explanation for not doing so, essentially that she does not feel safe there, is less than persuasive. [91] The fact remains that the reasons are more than just logistic, and Mrs. Cameron's capacity to decide where she would like to live is not necessarily equivalent to the capacity to nominate a committee. As far as that is concerned, the objections raised by Alison to Leigh-Anne's appointment relate less to capacity than to Mrs. Cameron's best interests. In particular, Alison raises concerns about Leigh-Anne influencing Mrs. Cameron inappropriately, with the result that Mrs. Cameron unjustifiably considers Alison to be trying to interfere negatively in her life. [92] As we have seen, when ML drafted documents for Mrs. Cameron's execution, he appears to have done so on the instructions of Leigh-Anne, who then brought Mrs. Cameron to the office and was present while Mrs. Cameron executed the documents. These documents included a revocation of the power of attorney Mrs. Cameron had granted to Alison. Alison questions whether Mrs. Cameron was executing them of her own volition, as opposed to on the basis of

what Leigh-Anne had persuaded her to believe. [93] When we turn to the execution of the nomination of committee, a similar question arises. [94] On October 26, 2018, Mrs. Cameron swore and signed an affidavit, and signed her nomination of committee. She did these with the assistance of Gisela Talamantes Saenz, a lawyer practising in La Paz and Los Barriles, who is fluent in both Spanish and English, and whose practice area includes wills and estates. [95] According to Ms. Talamantes, she was consulted by Mrs. Cameron and met with her on just that one day, October 26, 2018. The context was this petition. [96] I note that what Mrs. Cameron knew about this petition was based upon what Leigh-Anne told her. The materials make it fairly clear that Mrs. Cameron had a somewhat inaccurate view: that Alison was trying to take control away from her, and get at her money. Leigh-Anne seemed to view this proceeding as an adversarial one that was at least partly personal, and communicated that to Mrs. Cameron. It is concerning. [97] In her affidavit, Ms. Talamantes does not say whether she met with Mrs. Cameron alone, or whether Leigh-Anne was present. She does say that she met with Mrs. Cameron to provide independent legal advice, "considering only her interests as my client". She deposed that she spent over two hours in person with Mrs. Cameron to ensure "that the language of her Affidavit

and Nomination of Committee documents were true, accurate, and representative of her intentions and wishes". What she does not say is that she drafted those documents on Mrs. Cameron's instructions. This leaves open the possibility that they had been drafted in advance, on the instructions of somebody else (as apparently was the case with ML). [98] Moreover, although Ms. Talamantes states that she met with Mrs. Cameron to provide "further independent legal advice", it would seem reasonable to infer from the fact that they met only once, for a period of two hours, that the advice was limited to the two documents in question, and not to an overall evaluation and assessment of Mrs. Cameron's situation, particularly given her history. In this regard, it is not insignificant that when she was clearly of full capacity, in April 2016, Mrs. Cameron signed powers of attorney and a representation agreement in favour of both her daughters; she did not prefer one over the other. [99] Ms. Talamantes went on to say this: 18. In our meeting I observed Margaret Cameron as appearing healthy, appropriately dressed and was aware of our location and where she lived in Mexico. Our conversation flowed at a natural speed and Margaret was responsive to my questions. Her answers to my questions were detailed and on point. She did not appear confused and her wishes did not change at any point. In particular - she was always strictly adamant that it would be her daughter Leigh-Anne Cameron rather than her daughter Alison Primerano who would manage her affairs and that she continued to reside in Mexico.

19. Because of the nature of the proceeding before the court I was mindful to the possibility of undue influence, elder abuse, or elder abduction by her daughter Leigh-Anne Cameron with whom she is living in Mexico with [sic].

20. I specifically took steps to address those concerns and engaged Mrs. Cameron in a series of questions to determine if any form of undue influence or elder abuse was occurring, and whether Mrs. Cameron felt that she was forced to prepare the 2nd Affidavit and Nomination of Committee and except the contents of those documents. I also queried her about whether she wished to return to British Columbia and whether she wished for her daughter Alison Primerano to manage her affairs.

21. Based upon Margaret Cameron's responses, her demeanour, and her physical reactions to such questions as well as to suggestions of her daughter Alison handling her affairs or returning to British Columbia, I was satisfied that her answers and instructions were not the result of elder abuse, undue influence, and were made of her own free will and volition. [100] I do not doubt that Ms. Talamantes did what she describes, and came to the conclusions she reports. But can I take this as establishing it as "manifestly clear" that Mrs. Cameron both had the capacity to make the nomination, and did so with a proper understanding of what she was doing, free of influence? [101] On the evidence, including Ms. Talamantes' statements, Dr. Ramirez's report, my own observations of Mrs. Cameron through the video evidence, and the absence of any evidence to the contrary, I am satisfied that in October 2018 Mrs. Cameron had the capacity to decide where she would like to live; the evidence is entirely consistent in this regard. What I find is not "manifestly clear" is whether Mrs. Cameron may have been improperly influenced by Leigh-Anne in relation to her nomination of who was to look after her. [102] When I say "improperly", I do not mean to suggest that Leigh-Anne was motivated by anything other than her perception of her mother's best interests. What concerns me is what I see as a real

potential that Leigh-Anne communicated to her mother an inaccurate and biased understanding of Alison's actions, and that this influenced what Mrs. Cameron did. I do not propose to review all of the evidence in detail because of my ultimate conclusion that the question of the appointment of a committee, and the validity of Mrs. Cameron's nomination, must be converted to an action. This means that findings will need to be made by others. I will therefore review only a few examples. [103] As I indicated above, the context in which Ms. Talamantes consulted Mrs. Cameron was this proceeding, in which Leigh-Anne has taken an unhelpfully adverse position, no doubt feeling that she was defending her mother from attempts to take over her life. That approach rubbed off on Mrs. Cameron. [104] As we have seen, section 3(1) of the PPA requires an application concerning capacity to be supported by two affidavits from physicians. When Alison first brought her application, it was supported only by the affidavit of Dr. Hocking, and Leigh-Anne took the position that it had to be dismissed because it did not meet the PPA's requirement of two medical opinions. But it was Leigh-Anne who deliberately blocked Dr. Nygaard from responding to Alison's counsel's request for an affidavit, by relying on her new power of attorney to instruct him not to respond. Strictly speaking, Alison remained entitled to

get the information from Dr. Nygaard pursuant to the representation agreement, but Dr. Nygaard understandably was unwilling to do anything without court approval, which ultimately was forthcoming. It is difficult to see how this could be considered to have been in Mrs. Cameron's best interest. The effect was to prevent Mrs. Cameron from seeing Dr. Nygaard for further follow-up, as well as to interfere in Dr. Nygaard's ability to provide the affidavit required by the section. [105] Then there was an issue around inquiries Alison made of the family accountant, Mr. Allen, and lawyer, Carl Jacobson, about her concerns that both she and Leigh-Anne were appointed executors of Mrs. Cameron's will. Alison feared that there would be too much conflict between them. [106] In her affidavit No. 3, Leigh-Anne deposed: 33. I have been advised by Margaret, and verily believe to be true, that in July 2016, while on stress leave the first time, Alison began to talk to Bruce Allen and/or Carl Jacobson about either dividing up assets before Margaret's death, or taking management of either Byam Properties Ltd or Margaret's personal financial affairs away from myself. Unfortunately I can't remember the exact words that Margaret used on this occasion.

34. As a result of this, Margaret got very upset with Alison for not talking to her first and "going behind her back". She reminded her that it was the intent of our father that Byam Properties Ltd be maintained as an ongoing company for tax purposes but mostly for her future living resources.

35. After that point Margaret communicated to me that she began to seriously distrust Alison and her husband Mike's motivations and advised her legal and accounting advisors in July 2016 that I was to be included as Margaret's representative in any meetings that Alison wished to initiate. [107] On the evidence as a whole, the best I can say is that Leigh-Anne was being disingenuous about this. It is true that Alison consulted both Mr. Allen and Mr. Jacobson without notifying either Leigh-Anne or Mrs. Cameron. This came to Leigh-Anne's attention when she reviewed statements of account rendered by Mr. Allen and Mr. Jacobson that referred to these discussions. [108] But Mr. Allen was quite clear about the nature of the consultation. It was not about taking over anything. It was about whether Alison would be able to work together with Leigh-Anne on Mrs. Cameron's estate when the time came. Nevertheless, Leigh-Anne jumped to a different conclusion. [109] It is also true that Mrs. Cameron became upset with Alison about this, for "going behind her back", and trying to "meddle" in her affairs and take her money. The question is, where did she get these ideas? She did not read the professional statements of account herself, as she cannot read. As far as I can tell on the evidence placed before me, the only possible source was Leigh-Anne, who had come to the conclusion that Alison was

trying to interfere. Mrs. Cameron then complained to Alison, asking her why she was meddling in her affairs, and going behind her back. This increased the divide between them. But the likelihood is that Mrs. Cameron's concerns were those communicated to her by Leigh-Anne, and did not arise from her own perception of what had happened. I should add that Leigh-Anne may well have believed everything she was saying to Mrs. Cameron, but it does not appear to me that she put things accurately or fairly. [110] From my review of the video interviews with Mrs. Cameron, and the audio recordings of telephone conversations, I get the distinct impression that Mrs. Cameron was fairly easily led. She tended not to originate her comments, but rather spoke in answer to gently leading questions. There is also evidence of Leigh-Anne being in the background whenever Mrs. Cameron was on the telephone, raising a question of whether she was influencing what Mrs. Cameron was saying. Leigh-Anne denies this. It is noteworthy, however, that Leigh-Anne recorded many of the rather short telephone conversations between Alison and Mrs. Cameron. [111] Finally, there are a number of real questions about Leigh-Anne's transparency in relation to financial matters. I suspect that these difficulties have nothing to do with any lack of honesty on Leigh-Anne's part, but flow from her highly defensive approach to

this litigation. She charges her mother $2,500 per month for rent, and charges Byam Properties $3,000 per month (reduced from $4,000 per month) for her services in looking after her mother and looking after the company. These charges may well be reasonable given all she does, but they have not been subjected to any scrutiny or approval by others in the family or in the company. She has dealt with a loan from the company in a manner not approved by the accountant, Mr. Allen, and which gave rise to concerning tax consequences. Her accounting has been less than clear. [112] Leigh-Anne's counsel submits that these "sins" amount to no more than poor bookkeeping, and perhaps some co-mingling of funds and lack of transparency, but do not include any form of misappropriation of funds, or misuse of Mrs. Cameron's assets. He points out, fairly, that Mrs. Cameron's investment account has, to 2019, depleted to a lesser degree than her advisors had projected. [113] Nevertheless, these financial issues, together with the concerns I discussed above, raise what I consider to be a triable issue as to whether it is in the best interests of Mrs. Cameron for Leigh-Anne to act as committee of Mrs. Cameron's estate. [114] It therefore comes down to this. I accept that Mrs. Cameron is happy living in Mexico, and is receiving excellent care. I can think of no reason why that arrangement should not

continue. I am not prepared to appoint Alison as committee in view of the desirability of this arrangement, and in the face of Mrs. Cameron's nomination of Leigh-Anne to be her committee. But whether Mrs. Cameron in fact had the capacity to execute her nomination of committee, and if so, whether it would be in her best interests for Leigh-Anne or someone else to be appointed her committee, are issues that cannot be decided on this petition. Given the law as set out in Saputo and Kerfoot, those issues must be resolved by way of an action. 4.0 CONCLUSION [115] I am satisfied that the requirements of section 3(1) of the PPA have been met, and I declare that Margaret Cameron is incapable of managing herself or her affairs because of mental infirmity arising from disease. Leigh-Anne's application to have this issue converted into an action is dismissed. [116] On the question of who should act as Mrs. Cameron's committee, Alison's application, together with Leigh-Anne's notional application, raise triable issues, and these applications should be converted into an action. The principal issues should be whether Mrs. Cameron was of sound and disposing mind when she executed her nomination of Leigh-Anne as committee, and if so, whether it would be in her best interests for Leigh-Anne to act as her committee. If not, the question arises of whether it would be in Mrs. Cameron's best

interests for Alison to act as her committee, or for other arrangements to be made. [117] In the meantime, by operation of section 6(3) of the PPA, the Public Guardian and Trustee will act as committee of both Mrs. Cameron's person and estate pending further court order. [118] The costs of the parties should be borne by the estate of Mrs. Cameron. If there are matters that require my attention as a result of this judgment, the parties including the PGT are at liberty to apply. Otherwise, I am not seized of this matter as it converts to an action. "GRAUER, J."