The B.C. Court of Appeal’s ruling came up as part of its decision in Cepuran v. Carlton 2022 BCCA 76, which involved a conflict between Ana Cepuran and her daughter Sheri over Ana’s capacity to manage her affairs. A lower court judge had ordered Sheri’s petition on her mother’s capacity, and the issue of whether Ana should undergo medical assessment, to trial under the provincial Patients Property Act (Cepuran v.Carlton 2021 BCSC 542).
But a five-judge panel of the court held the test in British Columbia (Milk Marketing Board) v. Saputo Products Canada G.P. / Saputo Produits Laitiers Canada S.E.N.C. 2017 BCCA 247, which upheld long-standing tradition that proceedings brought by petition be referred to trial when there are disputes of fact or law unless the party requesting the trial is bound to lose, was no longer relevant because it failed to take into account modern approaches to civil litigation.
“The modern approach … is to allow parties and the trial courts to tailor the pre‑trial and trial procedures to a given case, in the interests of proportionality and access to justice, while preserving the court’s ability to fairly determine a case on the merits,” Justice Susan Griffin wrote. “I am of the view that a judge hearing a petition proceeding that raises triable issues is not required to refer the matter to trial. For example, the judge may decide that some limited discovery of documents or cross‑examination on affidavits will provide an opportunity to investigate or challenge the triable issue sufficiently to allow it to be fairly determined by the court within the petition proceeding, without the need to convert the proceeding to an action and refer it to trial.”
Justice Griffin also ruled the lower court had made a mistake in ordering a trial because the two medical affidavits, which are required as a threshold under the Patients Property Act, had not been properly provided. One of the doctors in the case had given a statement which said Ana was “more likely than not” incapable of managing her affairs, but the court noted the legislation required that a physician be more equivocal about a person’s capacity. But she also held it was best to leave the admissibility of medical opinions under the Act to be determined by judges on a case-by-case basis and an in-person assessment was not necessarily required, even though it was noted two of the doctors in the case had never actually met Ana personally.
“At a minimum, when considering whether to refer the matter to trial, the court will need to be mindful of the object [of B.C. Supreme Court civil rules]: to secure the just, speedy and inexpensive determination of every proceeding on its merits, and so far as can be achieved, in ways that are proportionate to the amount involved, the importance of the issues, and the complexity of the proceeding,” she wrote.
Mark Underhill, Arvay Finlay LLP
“I think you are going to have judges in complicated petition proceedings having a lot more flexibility on referring issues to trial. And this is also about access to justice, in terms of not having these full-fledged trials which entail extraordinary costs,” said Underhill, who emphasized his opinions were his own and not those of his client’s. “So, the idea is can we can deal with these petitions in a more efficient and focused way and keep it within the bounds of rationality, efficiency and cost-effectiveness.”
Ana’s counsel Duncan Magnus agreed, saying the decision will hopefully promote dialogue between counsel to consider what options are available to them.
“A court is supposed to assist with the process of facilitating somebody to manage the affairs or finances of a person who is incapable and getting into a very costly trial is counterproductive to that,” he said. “I think one of the other things which came very apparent to me in this decision is the court has really the procedure under the Patients Property Act is invasive and courts should have a hand’s-off approach, unless the proper authority is there.”
And Underhill also said it was helpful for the court to say the Act be interpreted strictly and there needs to be two medical opinions which give a very conclusive opinion about a person’s capacity.
“And going forward I think you will likely see doctors insisting on examining people directly before providing these kinds of opinions — and that is tremendously important,” he said. “To be put on trial about your capacity is a very serious matter.”
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