Taubner Estate, Re, (2010) 485 A.R. 98 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 27, 2010
• Citations: (2010), 485 A.R. 98 (QB);2010 ABQB 60

Taubner Estate, Re (2010), 485 A.R. 98 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.022

In The Matter Of the Powers of Attorney Act, being S.A. 1991, c. P-13.5, and amendments thereto;

And In The Matter Of the Donor, Paul Taubner;

And In The Matter Of his Attorney, Eric Taubner;

And In the Matter of an Application under Section 10 of the said Act for an Accounting of and in respect of all transactions entered into pursuance of Power of Attorney. (DA03 10901)

Heather MacDonald (plaintiff) v. Eric Taubner and Robert Taubner (defendants)

(0203 21728; 2010 ABQB 60)

Indexed As: Taubner Estate, Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

January 27, 2010.

Summary:

A father and son (Robert) were equal shareholders in a successful company. In 1998, Robert's brother (Eric) held an enduring power of attorney from the father, who was incapable of managing his affairs. Six months later, Eric agreed to sell the father's shares in the company to Robert for fair market value, to be determined by the father's accountant and long-time advisor. The accountant suggested the sale to avoid adverse tax consequences if the father still held the shares when he died. One of the father's granddaughters pressed Eric and Robert (her uncles) for details of the share transaction. The uncles confirmed the sale, but provided no details. In 2000, the granddaughter commenced proceedings against Eric for an accounting. The father died. The granddaughter, in her capacity as a beneficiary under the father's will, then commenced an action against Eric and Robert. The claim against Robert was that he knowingly purchased the shares at less than fair market value on overly favourable terms and that loans from his father were improperly reclassified as gifts and forgiven (unjust enrichment and unconscionable contract). The claim against Eric was that he misused the power of attorney to sell the father's shares below market value and to forgive loans from the father to Robert by accepting them as gifts. The granddaughter pleaded negligence and breach of fiduciary duty.

The Alberta Court of Queen's Bench dismissed the claim against Robert. There was no unjust enrichment. Even if the contract benefitted Robert and was detrimental to the father, the validity of the contract was a valid "juristic reason" for that benefit and detriment. The contract was not unconscionable. Eric, Robert and the father all had independent legal and accounting advice. The sale was neither improvident nor unfair. Robert did not instigate the sale and committed himself to purchasing at the price fixed by his father's accountant. Even if the purchase price and terms of payment turned out to be advantageous to Robert, that result did not arise due to taking advantage of any vulnerabilities. The forgiven loans were intended to be gifts to Robert from his father, even if classified for tax purposes on the father's books as loans. It was reasonable for Eric, as attorney, to accept his father's accountant's determination that the "loans" were in fact "gifts". Although it was unnecessary to decide the issue, having dismissed the claim against Robert on the merits, the court opined that the granddaughter had no status to commence the action against Robert. Further, any claim against Robert respecting the sale of shares was statute barred by the two year limitation period in s. 3(1) of the Limitations Act. The claim respecting forgiven loans was not statute barred. The granddaughter had no status to sue Eric as attorney. Any such claim had to be brought by the father's estate, either by his executor or by an administrator ad litem. However, the granddaughter was entitled, as an "interested person" under s. 10(2)(b) of the Powers of Attorney Act, to apply to the court for an accounting and the court had the authority in the accounting action to give the same remedies as sought in the damages action. Eric breached his fiduciary duty by failing to properly supervise the accountant's valuation of the shares (valued at significantly less than fair market value). However, there was no clear causal connection between that breach of duty and any loss to the father's estate. Further, this was a proper case to apply s. 41 of the Trustees Act to excuse Eric from any personal liability arising out of the breach of duty.

Agency - Topic 1065

Authority of agent - Express authority - Power of attorney - Scope of authority - The Alberta Court of Queen's Bench held that generally, all written powers of attorney were to be strictly interpreted and an attorney's authority was limited to that which was either expressly given or that which was absolutely necessary to carry out the authority in effect - However, under statute law (Powers of Attorney Act, s. 7), an enduring power of attorney conferred on the attorney the power to do anything on behalf of the donor that the donor could lawfully do by attorney - The court stated that "although a POA may be general or specific, the nature of both types of power is to give the attorney all the authority of the donor to enable the attorney to fully accomplish the ends which the donor had in mind when executing the deed" - See paragraphs 246 to 247.

Agency - Topic 1066

Authority of agent - Express authority - Power of attorney - Power to sell - The Alberta Court of Queen's Bench generally discussed an attorney's authority and duties respecting the sale of the donor's property - The court stated, inter alia, that "an attorney acting under a POA thus has a duty to: 1. seriously consider the donor's welfare when taking steps to sell the donor's property; and 2. exercise a standard of care and diligence required of a trustee - namely, the standard of care that would be exercised by a person of ordinary prudence in managing his or her own affairs." - See paragraphs 253 to 254.

Agency - Topic 1076

Authority of agent - Express authority - Power of attorney - Passing of accounts - Section 10(2)(b) of the Powers of Attorney Act empowered any "interested person" to apply to the court to have an attorney pass accounts respecting all transactions entered into under an enduring power of attorney - A son (Eric) held an enduring power of attorney from his father - Eric agreed to sell shares held by the father to another son (Robert) - A granddaughter challenged the transaction, submitting that the shares were sold for less than fair market value - The father died - The granddaughter was a beneficiary under his will - The Alberta Court of Queen's Bench held that the granddaughter was an "interested person" for the purpose of requesting an accounting - The granddaughter had a close relationship with the father and was concerned for his well-being and her own interests as a beneficiary - The court stated that "personal interest on the part of a beneficiary may be sufficient, especially having regard to the ability to set aside transactions or seek relief. There needs to be a mechanism for persons with legitimate interests to obtain information; otherwise they may face Limitations of Actions Act defences ... Being an 'interested person' means only that the person has the right to make applications to court, not that the person has any right to any particular remedy. A judge on any such application may conclude that the person's interest is insufficient to warrant any remedy." - See paragraphs 207 to 219.

Agency - Topic 1077

Authority of agent - Express authority - Power of attorney - Standard or duty of care - [See Agency - Topic 1078 and first Practice - Topic 121 ].

Agency - Topic 1077

Authority of agent - Express authority - Power of attorney - Standard or duty of care - The Alberta Court of Queen's Bench referred to the general duties of an attorney acting under a power of attorney: "(i) putting the donor's welfare first when taking any steps with respect to the donor's property; (ii) taking the wishes of the donor into account; (iii) exercising the judgment and care that a person of 'prudence, discretion and intelligence would exercise in the conduct of his or her own affairs', as required by powers of attorney legislation; and (iv) handling the property in an impartial and even-handed manner." - The court also referred to a more detailed description of an attorney's duties: "(a) stay with the scope of the authority delegated; (b) exercise reasonable care and skill in the performance of acts done on behalf of the donor (if acting gratuitously, the attorney is held to the standard of a typically prudent person managing her or her affairs; if being paid, the attorney is held to the standard applicable to a professional property or financial manager); (c) not make secret profits; (d) cease to exercise the authority if the power of attorney is revoked; (e) not act contrary to the interests of the donor or in conflict; (f) take no compensation unless agreed on or granted by the court; (g) account for dealings with the affairs of the donor when lawfully called upon to do so; (h) not make, change or revoke a will on behalf of the donor; and (i) not exercise the power of attorney for personal benefit unless authorized to do so by the document, or unless the attorney acts with the full knowledge and consent or his or her principal" - See paragraphs 248 to 249.

Agency - Topic 1077

Authority of agent - Express authority - Power of attorney - Standard or duty of care - The Alberta Court of Queen's Bench stated that "it is settled law that attorneys are held to the same standard of care expected of trustees in general, namely, to act as the reasonable and prudent business person would act ... the standard of care and diligence required of a trustee is that of a person of ordinary prudence in managing his or her own affairs, and that this standard must be discharged with honesty, objectivity and care" - See paragraphs 251 to 252.

Agency - Topic 1078

Authority of agent - Express authority - Power of attorney - Fiduciary duty - A father and son (Robert) were equal shareholders in a company - In 1998, Robert's brother (Eric) held an enduring power of attorney from the father, who was incapable of managing his affairs - Six months later, Eric agreed to sell the father's shares in the company to Robert for a fair market value to be determined by the father's accountant and long-time advisor - The accountant suggested the sale to avoid adverse tax consequences if the father still held the shares when he died - In 2000, the granddaughter commenced proceedings against Eric for an accounting - The claim against Eric was for breach of fiduciary duty for permitting the sale of the shares below market value, for forgiving loans from the father to Robert by accepting them as gifts, for delegating the valuation of the shares to the accountant and for improperly supervising the accountant - The Alberta Court of Queen's Bench dismissed the claim against Robert - The alleged loans forgiven were intended to be gifts to Robert from his father, even if classified for tax purposes on the father's books as loans - It was reasonable for Eric, as attorney, to accept his father's accountant's determination that the "loans" were in fact "gifts" - Eric did breach his fiduciary duty by failing to properly supervise the accountant's valuation of the shares (valued at significantly less than fair market value) - However, there was no clear causal connection between that breach of duty and any loss to the father's estate - Further, this was a proper case to apply s. 41 of the Trustees Act to excuse Eric from any personal liability arising out of the breach of duty - See paragraphs 289 to 408, 423 to 440.

Agency - Topic 1080

Authority of agent - Express authority - Power of attorney - Enduring power of attorney (incl. termination) - The Alberta Court of Queen's Bench held that an enduring power of attorney did not clothe the attorney with gift-giving powers unless that power was expressly set out in the power of attorney - See paragraph 162.

Agency - Topic 1080

Authority of agent - Express authority - Power of attorney - Enduring power of attorney (incl. termination) - The Alberta Court of Queen's Bench held that "a power of attorney is a unique power that embodies the law of agency, borrows from the law of contract, and adopts the law of fiduciary obligations. ... 'there appears to be a higher duty on an attorney acting under an enduring power of attorney following the event of the donor's incapacity. The attorney is no longer acting strictly as agent by as trustee'. An attorney acting under a POA is clearly in a fiduciary relationship that imposes the obligations and duties of a trustee upon the attorney." - See paragraphs 243 to 245.

Contracts - Topic 1106

Formation of contract - General principles - Duty to negotiate in good faith - The Alberta Court of Queen's Bench stated that "Alberta law does not recognize a general duty of good faith and fair dealings in contract negotiations between non-fiduciary private parties of roughly equal bargaining power. Such parties are able to negotiate in their own interests, without regard to the interests of others they negotiate with. Absent misconduct or dishonesty, parties are entitled to make a good deal for themselves. Good faith obligations may arise in the performance of a contract once it had been entered into." - See paragraph 109.

Equity - Topic 1122

Equitable relief - Contracts - Unconscionability - Unconscionable bargain defined - The Alberta Court of Queen's Bench stated that the test for unconscionability was "1. A grossly unfair and improvident transaction; 2. The victim's lack of independent legal advice or other suitable advice; 3. An overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility or similar disability; and 4. The other party's knowingly taking advantage of this vulnerability." - See paragraph 126.

Equity - Topic 1122

Equitable relief - Contracts - Unconscionability - Unconscionable bargain defined - [See Restitution - Topic 64 ].

Evidence - Topic 7153

Opinion evidence - Prohibited opinions - Re legal conclusions - Litigation involved, inter alia, determining whether shares were sold for less than fair market value - That valuation depended upon whether the shares were retractable or not - One party proposed to call an expert witness to testify that, on his interpretation of the articles of incorporation, the shares were not retractable - The other party opposed admissibility, arguing that the interpretation of the articles involved determining a question of law, which was for the court to decide - Additionally, the party argued that it would constitute delegating the determination of the ultimate issue to be decided to the expert - The Alberta Court of Queen's Bench held that the expert's evidence was admissible - It did not involve a question of law or the ultimate issue to be decided - The evidence was relevant and would be of assistance to the court - See paragraphs 307 to 338.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - [See Evidence - Topic 7153 ].

Limitation of Actions - Topic 6223

Restitution - Unjust enrichment - Commencement of limitation period - [See Restitution - Topic 64 ].

Practice - Topic 121

Persons who can sue and be sued - Estates - General - A son (Eric) held an enduring power of attorney from his father - Six months later, Eric agreed to sell shares owned by the father to another son (Robert) - A granddaughter commenced proceedings for an accounting by Eric - The father died - The granddaughter was a beneficiary - Eric was the executor - The granddaughter sued Robert and Eric - The Alberta Court of Queen's Bench held that the granddaughter had no status or capacity, as a beneficiary under his estate, to sue Eric for breach of trust or breach of fiduciary while acting under the power of attorney - Any duties owed by Robert were owed to his father and any cause of action belonged to the father and his estate - Only the executor, or an administrator ad litem had status to bring an action for a remedy - The court stated that "while a beneficiary may make claims against the executor of an estate, or against a trustee, there is no duty of care owed by an attorney under a power of attorney to beneficiaries of the donor's estate. The duty is owed to the donor, and may only be enforced by the executor or administrator of the estate" - See paragraphs 220 to 235.

Practice - Topic 121

Persons who can sue and be sued - Estates - General - A son (Eric) held an enduring power of attorney from his father - Six months later, Eric agreed to sell shares owned by the father to another son (Robert) - A granddaughter commenced proceedings for an accounting by Eric - The father died - The granddaughter was a beneficiary - Eric was the executor - The granddaughter sued Robert and Eric - The Alberta Court of Queen's Bench held that the granddaughter had no status as beneficiary to sue Robert - A beneficiary had no direct cause of action against a person alleged to have done something wrong which had the effect of diminishing the beneficiary's share in the estate - If the attorney, trustee or executor was unwilling to advance a claim on behalf of the estate, the procedure to follow was for the beneficiary to apply for advice or directions under s. 60 of the Administration of Estates Act and Part 2 of the Surrogate Court Rules - The granddaughter also could not rely on s. 5 of the Trustee's Act to support her right to sue - See paragraphs 166 to 173.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - A father and son (Robert) were equal shareholders in a successful company - In 1998, Robert's brother (Eric) held an enduring power of attorney from the father, who was incapable of managing his affairs - Six months later, Eric agreed to sell the father's shares in the company to Robert for a fair market value to be determined by the father's accountant and long-time advisor - The accountant suggested the sale to avoid adverse tax consequences if the father still held the shares when he died - One of the father's granddaughters pressed Eric and Robert (her uncles) for details of the share transaction - The uncles confirmed the sale, but provided no details - In 2000, the granddaughter commenced proceedings against Eric for an accounting as attorney - The father died - The granddaughter, in her capacity as a beneficiary under the father's will, then commenced an action against Eric and Robert - The claim against Robert was that he knowingly purchased the shares at less than fair market value on overly favourable terms and that loans from his father were improperly reclassified as gifts and forgiven (unjust enrichment and unconscionable contract) - The Alberta Court of Queen's Bench dismissed the claim against Robert - There was no unjust enrichment - Even if the contract did give a benefit to Robert and was a detriment to the father, the validity of the contract was a valid "juristic reason" for that benefit and detriment - The contract was not unconscionable - Eric, Robert and the father all had independent legal and accounting advice - The sale was neither improvident nor unfair - Robert did not instigate the sale and committed himself to purchasing at the price fixed by his father's accountant - Even if the purchase price and terms of payment turned out to be advantageous to Robert, that result did not arise due to any advantage taken of any vulnerabilities - Any alleged debts forgiven were intended to be gifts to Robert from his father, even if classified for tax purposes on the father's books as loans - It was reasonable for Eric, as attorney, to accept his father's accountant's determination that the "loans" were in fact "gifts" - Although it was unnecessary to decide the issue, the court opined that the granddaughter had no status to commence a direct claim against Robert - Further, any claim respecting the sale of shares was statute barred by the two year limitation period in s. 3(1) of the Limitations Act, as the granddaughter had sufficient information respecting the sale and terms for more than two years - The claim respecting the forgiven loans was not statute barred - See paragraphs 95 to 165.

Restitution - Topic 67

Unjust enrichment - General - Persons entitled to claim - [See Restitution - Topic 64 ].

Trusts - Topic 6148

The trustee - Breach of trust - Statutory immunity - For reasonable and honest acts - The Alberta Court of Queen's Bench held that s. 41 of the Trustee Act applied to an attorney acting under a power of attorney - Section 41 gave the court a discretion to excuse personal liability on the part of a trustee for breach of duty "where the trustee has acted honestly and reasonably and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the manner in which the trustee committed that breach" - The court stated that "for the purposes of s. 41, I cannot imagine a situation where a trustee might be excused for dishonest conduct; I can easily imagine situations where a trustee might be excused for honest but negligent conduct. ... The reasonableness of the trustees' conduct is undoubtedly a factor in the exercise of the court's discretion. As with negligence, there are different degrees of reasonableness. The more unreasonable the conduct, the less likely the court is to excuse it. But a finding of unreasonable conduct does not of itself deprive the court of the power to excuse the trustee. A trustee who has failed to meet the 'prudent investor' standard has undoubtedly acted unreasonably, and may have acted negligently. But if the trustee has acted honestly and in good faith, and for the benefit of the donor or the beneficiaries (as opposed to acting in his or her own self-interest), the court may still be satisfied that the trustee has met the onus of showing that it would be fair and reasonable in the circumstances to relieve the trustee from personal liability. The key analyses related to honesty and good faith in attempting to act in the best interests of the donor or the beneficiaries." - See paragraphs 262 to 288.

Trusts - Topic 6148

The trustee - Breach of trust - Statutory immunity - For reasonable and honest acts - [See Agency - Topic 1078 ].

Cases Noticed:

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 100].

R. v. Neil (D.L.), [2002] 3 S.C.R. 631; 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73, refd to. [para. 100].

3464920 Canada Inc. v. Strother et al. (2007), 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [para. 100].

Alberta Union of Provincial Employees v. United Nurses of Alberta, Local 168 et al. (2009), 448 A.R. 101; 447 W.A.C. 101; 2009 ABCA 33, refd to. [para. 100].

Garland v. Consumers' Gas Co. (2004), 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 120].

Brennenstuhl Estate v. Trynchy et al. (2008), 435 A.R. 85; 2007 ABQB 703; 2008 ABQB 256, refd to. [para. 125].

Lydian Properties Inc. v. Chambers (2007), 427 A.R. 304; 2007 ABQB 541, refd to. [para. 125].

Cain v. Clarica Life Insurance Co. (2005), 384 A.R. 11; 367 W.A.C. 11 (C.A.), refd to. [para. 126].

G.J.V. Estate, Re, [2005] A.R. Uned. 258; 2005 ABQB 160, refd to. [para. 162].

Ericksen Estate, Re (2008), 455 A.R. 305; 2008 ABQB 587, refd to. [para. 162].

Longmuir v. Holland et al. (2000), 142 B.C.A.C. 248; 233 W.A.C. 248; 2000 BCCA 538, refd to. [para. 167].

Tymkow v. Rusnak, [1992] A.J. No. 1055 (Q.B. Master), refd to. [para. 169].

Rotvold v. Rotvold Estate, [1991] B.C.J. No. 3656 (S.C.), refd to. [para. 169].

Glazer v. Glugowski, [1976] A.J. No. 149 (Dist. Ct.), refd to. [para. 169].

Joncas v. Pennock and Durstling, [1959] A.J. No. 48 (C.A.), refd to. [para. 169].

Hoyt v. Murphy (2004), 268 N.B.R.(2d) 322; 704 A.P.R. 322; 2004 NBCA 19, dist. [para. 174].

De Shazo v. Nations Energy Co. et al. (2005), 367 A.R. 267; 346 W.A.C. 267; 2005 ABCA 241, refd to. [para. 200].

Owners-Condominium Plan No. 9421549 v. Main Street Developments Ltd. et al. (2004), 365 A.R. 162; 2004 ABQB 962, refd to. [para. 200].

Quaintance Estate, Re (2006), 380 A.R. 160; 363 W.A.C. 160; 2006 ABCA 47, refd to. [para. 213].

Mittelstadt Estate, Re, [2002] A.R. Uned. 337; 2002 ABQB 656, refd to. [para. 230].

Lefebvre Estate, Re (2007), 419 A.R. 347; 2007 ABQB 195, refd to. [para. 230].

Hartley Estate, Re, [2008] Man.R.(2d) Uned. 75; 2008 MBQB 202 (Master), refd to. [para. 244].

Ericksen Estate, Re (2008), 455 A.R. 305; 2008 ABQB 587, refd to. [para. 245].

Hammond Estate, Re (1999), 173 Nfld. & P.E.I.R. 240; 530 A.P.R. 240 (Nfld. T.D.), refd to. [para. 245].

Lander v. Lyall et al., [2006] Man.R.(2d) Uned. 62; 2006 MBQB 170, refd to. [para. 245].

Roger Estate, Re, [2001] O.T.C. 438; 38 E.T.R.(2d) 226 (Sup. Ct.), refd to. [para. 245].

Leung Estate v. Leung - see Roger Estate, Re.

Egli v. Egli, [2004] B.C.T.C. 529; 2004 BCSC 529, refd to. [para. 245].

McMullen v. McMullen et al., [2006] B.C.T.C. Uned. D61; 2006 BCSC 1656, refd to. [para. 245].

Taylor v. Wallbridge (1879), 2 S.C.R. 616, refd to. [para. 246].

Royal Bank of Canada, Roynat Inc. and Canadian Commercial Bank v. Bauman et al. (1986), 72 A.R. 89 (Q.B.), refd to. [para. 247].

Wagner v. van Cleeff (1991), 53 O.A.C. 161; 5 O.R.(3d) 477 (Div. Ct.), refd to. [para. 251].

Blair v. Canada Trust Co., [1986] B.C.J. No. 1237 (S.C.), refd to. [para. 251].

Dougall v. Dougall Estate, 1995 CarswellOnt 1664 (Gen. Div.), refd to. [para. 251].

Andreasen v. Daniels-Ferrie, [2001] B.C.T.C. 1503; 2001 BCSC 1503, refd to. [para. 251].

Sowa Estate, Re, [2003] A.R. Uned. 538; 2003 ABQB 761, refd to. [para. 253].

Walker et al. v. Walker, [1995] B.C.T.C. Uned. E43 (S.C.), refd to. [para. 260].

Redmond v. Mitchell Estate et al. (1995), 175 A.R. 10; 9 E.T.R.(2d) 203 (Surr. Ct.), refd to. [para. 264].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re (1998), 221 N.R. 241; 106 O.A.C. 1 (S.C.C.), refd to. [para. 271].

Cikanek Estate, Re (2006), 411 A.R. 100; 2006 ABQB 916, refd to. [para. 273].

M.E.B. Estate v. O.B. et al. (2007), 419 A.R. 145; 2007 ABQB 259, refd to. [para. 275].

Pente Investment Management Ltd. et al. v. Schneider Corp. et al., [1998] O.T.C. 32 (Gen. Div.), refd to. [para. 309].

R. v. Mohan (1994), 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419 (S.C.C.), refd to. [para. 310].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 311].

Fraser River Pile and Dredge Ltd. v. Empire Tug Boats Ltd. et al. (1995), 95 F.T.R. 43; 37 C.P.C.(3d) 119 (T.D.), refd to. [para. 313].

Erehwon Exploration Ltd. v. Northstar Energy Corp. (1993), 147 A.R. 1 (Q.B.), refd to. [para. 317].

R. v. Collins (R.) (2007), 316 N.B.R.(2d) 380; 816 A.P.R. 380 (T.D.), refd to. [para. 319].

Pond v. Hovey (2009), 343 N.B.R.(2d) 390; 881 A.P.R. 390 (T.D.), refd to. [para. 320].

R. v. Mai (Q.A.) (2005), 219 B.C.A.C. 272; 361 W.A.C. 272; 2005 BCCA 615, refd to. [para. 326].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 3(1) [para. 187].

Powers of Attorney Act, R.S.A. 2000, c. P-20, sect. 10 [para. 207].

Trustee Act, R.S.A. 2000, c. T-8, sect. 5 [para. 172].

Authors and Works Noticed:

Hull, Ian M., Power of Attorney Litigation (2000), pp. 17, 18 [para. 250].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 545 [para. 309].

Sweatman, M. Jasmine, Guide to Powers of Attorney (2002), pp. 6 [para. 243]; 16 [para. 249].

Western Canada Law Reform Agencies, Enduring Powers of Attorney: Areas for Reform (2008), p. 44 [para. 209].

Counsel:

Ben A. Guido and Terryl J. Rostad (Odishaw & Guido), for Heather MacDonald;

Gregory A. Harding, Q.C. (Field LLP), for Eric Taubner;

Robert M. Curtis, Q.C., and Bryon D. Baltimore (McCuaig Desrochers LLP), for Robert Taubner.

This matter was heard on September 8 and 18, 2009, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 27, 2010.