Mok v. Wong

2022 BCCA 418 Mok v. Wong

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Mok v. Wong, 2022 BCCA 418 Date: 20221205 Dockets: CA48159; CA48160 In the Matter of Lin Hing Mok and the Patients Property Act, R.S.B.C. 1996, c. 349, and amendments thereto Between: Wai Kong Mok also known as Eric Wai Kong Mok and Kitty Qingqing Zhang Appellants And Carol Yuet Ngor Wong and Manda Yuet Yee Mok Respondents Before: The Honourable Mr. Justice Harris The Honourable Justice Griffin The Honourable Justice Skolrood On appeal from: An order of the Supreme Court of British Columbia, dated February 9, 2022 (Mok (Re), Vancouver Dockets S216822; CA218106). Oral Reasons for Judgment Counsel for the Appellants: J. Rost A. Girou Counsel for the Respondents: J.W. Zaitsoff R.M. Breeze Place and Date of Hearing: Vancouver, British Columbia December 5, 2022 Place and Date of Judgment: Vancouver, British Columbia December 5, 2022 Summary: Appeal of an order appointing three siblings, but not a daughter‑in‑law, committees of a person. The appellants contend the judge misapplied the test to determine whether the patient had expressed wishes about who should be her committees. Held: Appeal dismissed. The judge did not err in principle in exercising his discretion. HARRIS J.A.: Overview [1] This appeal arises from an order appointing three of the adult children of their mother, Lin Hing Mok, co‑committees of her person pursuant to s. 6

of the Patients Property Act, R.S.B.C. 1996, c. 349 [PPA]. [2] The appellants are Lin Hing Mok's son, Eric, who was one of the adult children appointed, and his wife Kitty, who the judge decided not to appoint. [3] The respondents are Carol and Manda, two of the adult children. [4] For simplicity and clarity, I will refer to the parties by their given names. The parties have referred to Lin Hing Mok as Mother Lin. I will do the same and mean no disrespect by using such familiar language. [5] The appellants say the judge erred in principle in refusing to appoint Kitty as co‑committee of Mother Lin's person. They seek to set aside an order appointing Carol and Manda as co‑committees of the person, and substituting an order appointing Kitty as co‑committee of the person along with Eric. As an alternative, they seek an order that Kitty be added as a co‑committee of the person alongside Carol, Manda and Eric. [6] While acknowledging that the appointment of a committee engages the court's discretion, the appellants say the judge erred in principle in three respects. They contend the judge erred: 1. in applying the wrong test for determining Mother Lin's wishes with respect to the appointment of her committee of the person. This, they say, is the fundamental error in the judgment from which others follow and assume their significance; 2. in concluding Kitty would be in a conflict of

interest as an employee of the care residence in which Mother Lin resides; and 3. in finding "direct" family members should be preferred as committee appointments over in‑laws. Background [7] The order below appointed Manda and Carol as co‑committees of the estate of Mother Lin, after finding that Eric and Kitty, in their capacity as attorney, had failed to comply with some of their obligations under the Power of Attorney Act, R.S.B.C. 1996, c.

370. Though that specific order is not under appeal, it is nevertheless relevant to the order under appeal. [8] Much of the relevant background is not in dispute. Mother Lin is 89 years old. She was born in China on February 18, 1933. She was predeceased by her spouse, who died in 2014. She had four children, three of whom, Eric, Manda and Carol, live in Vancouver. Each of the children has been involved in the care of their mother. [9] Since April 2020, just after the start of the COVID‑19 pandemic, Mother Lin has been living at Villa Cathay Care Home ("Villa Cathay") in Vancouver. Kitty works in Villa Cathay as a care aide. As a result of pandemic restrictions on visiting elderly residents of care homes, Kitty has been consistently involved in Mother Lin's daily life, although the judge found that no family member has been disproportionately involved in caring for Mother Lin. Order on Appeal [10] All parties agreed, and requested the court to declare, that Mother Lin is a "patient" as defined in s. 1(b)(iii) of the PPA; that is, she is incapable of managing both herself and her affairs, and accordingly requires the appointment of committees of her person and estate. The judge was satisfied that Mother Lin is, by reason of mental infirmity arising from disease, age, or otherwise, incapable of managing herself and her estate. He made the necessary declaration as a prelude to

considering who should be appointed to those roles. [11] The judge then turned to the issue of who to appoint to Mother Lin's committee of the person. Carol and Manda's petition was served on the Public Guardian and Trustee, who is not a party on appeal, and declined to appear in the matter below, but provided a response in the court below with a factual summary and recommendations the judge found helpful. [12] The judge noted that s. 6 of the PPA does not set out specific criteria for the selection of an appropriate committee, but s. 18 provides that a committee must "exercise the committee's powers for the benefit of the patient and the patient's family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient's family". [13] The judge recognized that it appeared that all children and their extended families have had a role in caring for Mother Lin. The judge determined that there were no "insurmountable conflicts" between the parties with respect to Mother Lin's care needs, and that they appeared to have been able to form a consensus on most matters, including that she should remain in her current care home. [14] The judge reviewed the non‑exhaustive list of factors that the court can consider in determining an appropriate committee of the person, as set out in Stewart (Re), 2014 BCSC 2321. The judge began with

Mother Lin's wishes concerning the appointment. Eric and Kitty had contended that Mother Lin had previously expressed her wish that they be appointed as co‑committee of her person, or at least that is the inference that should be drawn from previous expressions of the wishes. They submitted this was evidenced by the fact that Mother Lin appointed them as executors of her will in 2004. The judge was not satisfied, however, that Mother Lin's wishes could be determined with "any degree of certainty" at this time and felt it accordingly necessary to consider other factors. [15] The judge considered the level of previous involvement of the proposed committee with the patient. The judge was satisfied that this was not a situation where one family member was caring disproportionately for Mother Lin. He noted in particular the preference that family members be appointed as committees, and agreed that all else being equal, preference should be accorded to "direct" family members over in‑laws. [16] In considering whether a proposed committee member had breached a fiduciary duty owed to the patient, or engaged in an activity that diminishes confidence in their ability to handle the patient's care, the judge expressed concerns regarding Eric and Kitty's failures as appointed attorneys. He also indicated he was hesitant to appoint Kitty, due to the fact that she is currently employed at the

same care facility in which Mother Lin resides. The judge was of the view such a situation had the potential to create a conflict of interest, for example, if Kitty was unable to appropriately advocate for Mother Lin's care or proper treatment given her employment at the same facility. [17] On consideration of the totality of these factors, the judge concluded it was not appropriate for Kitty to be appointed as committee of the person. He ordered Eric, Carol and Manda to be appointed as co‑committees. Discussion [18] An application for appointment of committee of the person invokes the parens patriae jurisdiction of the court. It is an inherently discretionary and fact specific assessment, governed by the overriding concern of who will serve the patient's best interests. Section 18(1) of the PPA states: A committee must exercise the committee's powers for the benefit of the patient and the patient's family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient's family. [19] Though the PPA does not provide a specific test to be used in determining who should be a committee, the courts have developed criteria to guide the exercise of discretion in making such an appointment. The court in Stewart (Re) summarized some of these considerations as follows at para. 29: [29] ... However, cases have identified

various considerations; see for example: Vranic (Re), 2007 BCSC 1949; Bowman (Re), 2009 BCSC 523; Palamarek (Re), 2011 BCSC 563; Re Matthews, 2013 BCSC 1045; and Sangha (Re), 2013 BCSC 1965. They include: (a) whether the appointment reflects the patient's wishes, obviously when he or she was capable of forming such a wish; (b) whether immediate family members are in agreement with the appointment; (c) whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient; (d) the level of previous involvement of the proposed committee with the patient, usually family members are preferred; (e) the level of understanding of the proposed committee with the patient's current situation, and will that person be able to cope with future changes of the patient; (f) whether the proposed committee will provide love and support to the patient; (g) whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient's benefit; (h) whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person's abilities to properly handle the patient's affairs; (i) who is best to advocate for the

patient's medical needs; (j) whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and (k) whether a division of responsibilities such as between the patient's estate and the patient's person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient. [20] A judge's discretion in this assessment is broad; there is no formula that must be rigidly applied. A judge's decision will often be exercised against a complex set of facts, and will typically have to weigh and balance multiple considerations, some of which may be in tension, and may support, standing alone, different outcomes. Moreover, these kinds of decisions often have to respond to exigent circumstances. Courts need to be able to act decisively to protect the interests of patients. There is a powerful imperative to achieve certainty and finality. As such, appellate courts defer to lower courts, and avoid second guessing a judge's exercise of discretion, except in clear cases. It is with that frame of mind that I approach the issues before us. [21] Before turning to consider whether the judge made a reversible error in exercising his discretion, it is useful to set out again the considerations underlying his decision: a) after considering the evidence of

Mother Lin's wishes, Mother Lin's wishes regarding a preferred person to make her healthcare decisions could not be determined with any degree of certainty; b) the local children all care for their mother; all members of the family and extended family, including Raymond and Kitty, have had a role in caring for Mother Lin, both before and after her admission to long term care; and this is not a situation where one of them was disproportionately caring for her; c) the parties have been able to form a consensus about what is in Mother Lin's best interests from a healthcare standpoint, even if they have not always agreed with one another; d) Eric and Kitty previously breached their fiduciary obligations to Mother Lin, and they may have difficulties in understanding the appropriate separation between their own interests and Mother Lin's interests; e) Kitty is employed in the same facility in which Mother Lin resides, and the other applicants' occupations otherwise have little bearing on the decision; f) the court prefers, generally, to appoint family members as committees, all other things being equal; and g) there was not necessarily a conflict of interest arising between Eric and Mother Lin, but Kitty was in a potential conflict of interest in the judge's estimation owing to her employment. Kitty may be in a situation where she is not appropriately able to advocate for Mother

Lin's care, or to argue that a treatment is not being properly provided, given her employment status at the same facility. Did the judge err by applying the wrong test for determining Mother Lin's wishes with respect to the appointment of her committee of the person? [22] The parties agree that, to the extent that a patient's wishes about who should be appointed can be ascertained, those wishes are to be given considerable, perhaps indeed decisive, weight in the appointment. The appellants say, however, that the judge applied the wrong test in determining Mother Lin's wishes. In their submission, the judge incorrectly stated the test as: "to consider whether the appointment reflects the patient's wishes and obviously whether he or she was capable of forming such a wish"; at para.

45. They say the correct test is: "whether the appointment reflects the patient's wishes, obviously when he or she was capable of forming such a wish". [23] In their submission, this incorrect statement of the test led the judge to erroneously dismiss the evidence that Mother Lin had named Eric and Kitty as executors in her will made in 2011. They point to an error in that the judge assumed the will had been made in 2004. As they say, 2011 is closer in time to the point at which Mother Lin was declared incapable of managing her affairs due to mental infirmity. Moreover, Mother Lin's trust in Kitty was confirmed when she executed a power of attorney ("POA") naming Kitty as attorney in 2020. As the appellants put it in their factum: This is a significant oversight given that the appointment in the POA is consistent with the appointment under the Will, that the POA was prepared with the assistance and oversight of a notary just like the Will, and that the January and May 2021 incapacity assessments of Mother Lin determined that she was incapable due to dementia (which is a progressive cognitive decline) and not due to a specific instance of delirium or a traumatic brain injury. There is no contemporaneous evidence that on the date that the POA was executed Mother Lin lacked capacity to execute the POA or at the very least communicate her wishes as to who she trusts and wants to

help her. In fact, the progress notes prepared by the Villa Cathay staff dated June 17, 2020 (six days before the execution of the POA) report that Mother Lin "[w]ants to maintain independence in her daily life and make decision for herself. Good verbal communication and enjoys chats with people misses her family." [24] The appellants point out that at no time has Mother Lin indicated a desire that Kitty not be involved in her care, and that Kitty had been the family member who attended her at the care home during the pandemic. There was no evidence that Mother Lin had ever indicated a preference that her biological daughters should take care of her and make decisions on her behalf. [25] In my view, the judge did not misapprehend the test to be applied in attempting to divine the patient's wishes. Certainly, as I have said, a patient's wishes are important and often decisive. For example, s. 9 of the PPA provides for mandatory appointment of a committee where the patient executed a nomination of committee while the patient was competent to do so, unless there is good and sufficient reason for refusing the appointment. [26] Here, in my respectful view, the evidence of Mother Lin's wishes was limited to the 2011 appointment of executors and the 2020 POA. It seems to me that it was open for the judge to determine that there was no decisive evidence of Mother Lin's wishes as to who

she desired to be her committee of person. There was no direct evidence of Mother Lin's wishes about her personal care decisions. Mother Lin did not execute a nomination of committee or a representation agreement. [27] Significantly, the judge explicitly considered the appointment of Eric and Kitty as executors, and in the reasons for judgment he considered their appointment as attorneys. It cannot be assumed he lost sight of those facts. The fact that Mother Lin may have had a continuous wish that the appellants be executors of her estate could well be entitled to some weight in assessing her wishes about who would make personal decisions, in the sense that it is probative in her trust of those two people. But it is not determinative. [28] The judge had regard to the evidence relied on by the appellants, but simply drew from it different conclusions. He did not fail to understand that wishes expressed earlier, when not incapacitated, can be relevant to determining a patient's wishes. Rather, he weighed probative evidence and reached a conclusion that was open to him on the evidence; namely, that Mother Lin's wishes could not be determined with sufficient certainty to ground a decision about who to appoint as committee. With respect to the argument advanced by the appellants, I think we are being invited to reweigh the evidence to reach a conclusion different than the one

reached by the judge. The weighing of evidence and exercise of discretion by the chambers judge is entitled to deference, and his findings and the ultimate result should not, in my view, be disturbed. I do not think the appellants have succeeded in identifying an error in principle, and I would not accede to this ground of appeal. Did the judge err in concluding Kitty could be in a conflict of interest as an employee of the care residence in which Mother Lin resides? [29] The appellants submit the judge erred by concluding that Kitty's employment at Villa Cathay could place her in a potential conflict of interest as a committee advocating for Mother Lin's care. [30] The appellants say that the mere potential for conflict of interest does not weigh against an applicant, where there is no evidence that the potentially conflicted applicant has put her potentially conflicted interests ahead of the patient's best interests. In their submission, this kind of inherent conflict is no different from circumstances in which a proposed committee is likely a residual beneficiary of the patient's estate. The appellants also submit that the assessment of any potential conflict of interest is as between the proposed committee and the patient, or between the proposed committee and the patient's family members. [31] The appellants also allege that the judge gave no, or inadequate, weight to the

benefits of appointing Kitty as a committee. They contend that Kitty's employment, and the contact this gives her with Mother Lin, demonstrates that she has the best skill set of all family members to deal with future changes in Mother Lin's circumstances. Kitty has close day‑to‑day contact with Mother Lin, and they say she is the only professionally qualified caregiver for an elderly vulnerable person in the family. [32] It would seem to me clear that, if a proposed committee's ability to advocate for a patient could be found compromised in some way, that must be a factor suggesting that appointing that person would not be in the patient's best interests. Indeed, the ninth Stewart consideration asks: "who is best to advocate for the patient's medical needs": at para. 29(i). Here, the judge expressed a concern regarding a potential conflict of interest that was legitimately present on the evidence before him. Contrary to what the appellants submit, the judge need not have proof a proposed committee is, or necessarily would be, in a conflict of interest to make observations on such a consideration and findings in respect of them. Further, there is no support for the suggestion advanced by the appellants that consideration of potential conflicts ought to be limited to those between the proposed committee and the patient or patient's family members. [33] With respect to the

suggestion that Kitty's employment status is more likely to benefit than harm Mother Lin, I can only say that whether that is so is precisely the kind of discretionary decision the judge was called on to make. I do not think the judge's assessment can be said to rest on an error in principle. Again, we are being invited to reassess or reweigh the judge's balancing of considerations, something I would decline to do. Did the judge err in finding "direct" family members should be preferred as committee appointees over in‑laws? [34] The appellants say that the judge erred in giving preference to family members over an in‑law, without considering the closeness and intimacy of Kitty's relationship with her mother‑in‑law. The basis for the judge's preference for "direct" family members comes from the fourth Stewart consideration which reads: "the level of previous involvement of the proposed committee with the patient, usually family members are preferred": at para. 29(d) (emphasis added). The appellants submit this preference for "family members" has relevance where a proposed committee is an "outsider" such as the Public Guardian and Trustee, or a private trust company, but not where a proposed committee is a close in‑law. [35] The appellants say that the judge gave weight to Kitty's status as an in‑law and distinguished her from other family members on that basis. They allege that,

in doing so, the judge improperly favoured biological connections over the true bond between intimately‑related people. Drawing on the Supreme Court of Canada decision in B.J.T. v. J.D., 2022 SCC 24, for support, they say that the appropriate assessment is to evaluate the substance and closeness of the familial bond, not mere biological ties. [36] The judge described the preference that immediate family members be appointed as "a starting point", and one that should be afforded "all other things being equal": at para.

48. It is not apparent to me that the judge in fact concluded that other things were equal. Rather, the judge assessed the facts and chose not to appoint Kitty for a number of factual reasons, including her employment status at the care home and the potential conflict of interest that her employment created. [37] It seems to me that the judge's decision did not turn on Kitty's status as an in‑law. That was not a tie‑breaking factor when all else was equal. The driving factor was the concern about potential conflict of interest in a situation where no family member had been disproportionately involved over the longer term in Mother Lin's care. [38] Overall, I am not persuaded that the judge fell into reversible error in his evaluation of who should be a committee to protect and promote Mother Lin's best interests. The judge has a broad discretion which called on him to evaluate a substantial body of evidence capable of giving rise to multiple considerations, some of which might well be conflicting. The judge had to weigh and balance those factors to reach a conclusion about where Mother Lin's best interests lay. This he did. It is not for us to parse his reasons in an assiduous search for error, especially in a case like this where finality and expedition are important imperatives. Disposition [39] In the result, I discern no reversible error. I would defer to the judge's

exercise of discretion and would dismiss the appeal. [40] GRIFFIN J.A.: I agree. [41] SKOLROOD J.A.: I agree. [42] HARRIS J.A.: The appeal is dismissed. [Submissions from counsel re: costs] [43] HARRIS J.A.: We are all of the view that this was a bona fide appeal. It was an appeal that was brought in an effort to protect and promote the best interests of Mother Lin and, in those circumstances, it is our view the costs come out of the estate. "The Honourable Mr. Justice Harris"