Re Binder (Patients Property Act)

2022 BCSC 990 Re Binder (Patients Property Act)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Re Binder (Patients Property Act), 2022 BCSC 990 Date: 20220608 Docket: S222701 Registry: Vancouver In the Matter of the Patients Property Act, R.S.B.C. 1996, Chapter 349 and Amendments Thereto And Johann Binder Before: The Honourable Justice E. McDonald Oral Reasons for Judgment In Chambers Counsel for the Petitioner: R. Breeze Counsel for the Public Guardian and Trustee: A. Szilagyi Place and Date of Hearing: Vancouver, B.C. June 8, 2022 Place and Date of Judgment: Vancouver, B.C. June 8, 2022 Introduction [1] Mr. Hans Binder, the petitioner, seeks an order declaring that his father, Johann Binder, is incapable of managing his affairs by reason of mental infirmity and other orders appointing Hans Binder as the committee of the estate of Johann Binder. [2] However, the relief is not sought pursuant to the usual route under the Patients Property Act, R.S.BC. 1996, c. 349 [PPA], but rather, pursuant to the Court's inherent parens patriae jurisdiction. [3] The application materials were served on the Public Guardian and Trustee and it has no objection to the relief sought. [4] For the reasons that follow, I am satisfied that it is appropriate for the Court to exercise its inherent jurisdiction to make the order sought by the petitioner. Background [5] Johann Binder is presently 80 years old and he resides in a care home in

Switzerland. Johann's wife, Anna Binder, passed away in October 2021. Johann and Anna have two children: Hans Binder, who is the petitioner, and Ruth Schubiger. The children are residents of Switzerland. The children are aware of this application and they consent to the relief sought. [6] Johann used to travel frequently to visit British Columbia and he acquired assets which are located here. Specifically, Johann owns real estate in British Columbia including the two properties identified in the petition. Johann has not visited the properties in British Columbia since approximately October 2019. [7] Johann's health has deteriorated. As I mentioned, he presently lives in a care home in Switzerland. There is evidence before me on this application that two Swiss medical professionals assessed Johann, in late 2020 and early 2021. Those medical professionals concluded that Johann suffers from severe cognitive impairment and that he shows increasing signs of dementia most likely of the Alzheimer's type. The medical professionals also noted that Johann had a negative attitude about undergoing further objectifying examinations such as a testing or imaging. The second medical professional who conducted the most recent assessment of Johann concluded that even if Johann objects, he requires permanent suitable institutional care due to "a lack of capacity to judge the necessity of

supportive measures". [8] I was provided with the evidence of Erich Von Arx, an experienced practising attorney in Switzerland, to explain the jurisdiction of the Swiss child and adult protection agencies that make decisions about the competence of adults and make orders to protect them. Mr. Von Arx explains that the phrase "capable of judgment" has a specific meaning under Swiss law. Namely, a person is capable of judgment if "he or she does not lack the capacity to act rationally because of mental disability, mental disorder or similar circumstances". [9] The agency relevant to this application is KESB, otherwise known as the Child and Adult Protection Authority. Mr. Von Arx explains that due to where Johann lives, KESB is competent to make decisions about adult protection measures for him and the KESB has the necessary jurisdiction under the Swiss Federal Civil Code, SR 210. KESB has been involved with Johann's situation in Switzerland. [10] KESB had the authority to, and it did, conduct an investigation of Johann's capability of judgment as it related to managing his income and assets. KESB appointed Johann's son, the petitioner, Hans Binder, as Johann's representative by way of a decision dated November 23, 2021. Prior to that, the KESB had authorized Anna to manage Johann's usual day-to-day affairs but that arrangement came to an end upon Anna's death. [11] Mr. Von Arx

states that upon being appointed as Johann's representative, Hans, "is competent to represent Johann and to manage his assets". Hans and Ruth wish to sell some of Johann's property in British Columbia and move the proceeds to Switzerland to provide for Johann's needs. The KESB agrees to sell the properties but there are certain stipulations in place regarding the sale price for the properties based on their appraised values. The Legal Basis [12] The petitioner relies on s. 2, 3, 6, 28 and 31 of the PPA as well as the Court's inherent parens patriae jurisdiction. [13] Sections 2, 3 and 6 authorize the Court, upon application by a person, and the satisfaction of various criteria, to appoint a committee. Analysis [14] The petitioner submits that there is a gap in the provisions of the PPA stemming from the absence of provisions for admitting evidence from foreign medical practitioners and the absence of a mechanism for recognizing foreign adult guardianship orders. [15] The petitioner also submits that due to Johann's age, his medical condition, his location in a Swiss care home and the evidence of his resistance to undergoing further medical assessment, the petitioner has no meaningful way to employ the procedure in the PPA, such as s. 3, to obtain medical evidence. [16] The petitioner points out that a master of this Court has interpreted "medical practitioner" under the PPA to

mean a member in good standing of the College of Physicians and Surgeons of BC: Cooper v. Cooper, 2000 BCSC 1650. In other words, the petitioner is concerned that the Swiss medical assessments would not satisfy the requirements of the PPA and there is no realistic prospect of arranging an assessment by a BC doctor. [17] Relying on the parens patriae jurisdiction, or alternatively on s. 28 of the PPA, the petitioner asks the Court to make the declaration and the other orders sought. [18] In Parker v. Barbeau, [1998] B.C.J. No. 841 (B.C.S.C.), Justice Shaw cited Re Eve (1986), 1986 CanLII 36 (S.C.C.) at p. 28 for a description of the source and meaning of the Court's parens patriae jurisdiction. In essence it is founded on necessity, specifically, the need to protect those who cannot protect themselves and the jurisdiction may be exercised in many situations. [19] In Johnston v. Johnson, 2003 BCSC 110 at para. 20, Justice Goepel noted, citing L(M) v. D(F),1999 CanLII 6429 (BCSC) at 142, that the threshold required before the court can consider using its parens patriae jurisdiction as a basis to appoint a committee is the need for a lacuna in the legislative framework for the protection of such persons. [20] I am satisfied on the evidence before me that there is such a gap in the legislative framework of the PPA for protecting an individual such as Johann. There is no mechanism

for recognizing the order of the Swiss authority and given Johann's circumstances, specifically his ill health and his inability to attend examination by doctors in British Columbia, he cannot avail himself of the procedure provided by the PPA. [21] Given the evidence about the existence and significance of the KESB's investigations and orders made in Switzerland, the medical and other evidence concerning Johann's condition and circumstances, I am satisfied that pursuant to my inherent parens patriae jurisdiction the declaration and other orders sought are appropriate to grant. [22] I am also mindful that the petitioner already has status in respect of Johann's estate in Switzerland, that Ruth consents and the Public Guardian and Trustee have raised no concerns. The evidence is that the plan to sell the properties is known by the proper authorities and interested parties, with no objection taken, and the sale funds are to be repatriated to Switzerland for Johann's care and use. [23] I therefore grant the relief sought in the form set out in the vetted order before me. [24] As I have granted the relief sought on the basis of the Court's inherent jurisdiction I do not find that it is necessary to deal with the alternative grounds relied on pursuant to s. 28 of the PPA. "E. McDonald J."