Executive Summary: Key Legal and Evidentiary Issues

• Central issues concern the appellant’s capacity with respect to health care decision making, choice of accommodation, choice of associates, legal (non-financial) matters, and financial matters, and her attempt to revoke her personal directive and enduring power of attorney.
• A key evidentiary issue is the chambers justice’s reliance on the RCAT capacity assessment, as opposed to earlier and later private capacity assessments obtained by the appellant.
• The appellant’s allegations that the RCAT report was biased, relied on anecdotal and respondent-supplied information, and failed to consider prior capacity assessments are evaluated against the report’s corroboration from multiple sources and medical records.
• The appellant’s application to remove a caveat registered by her mother against property she owns raises related questions about how findings of capacity affect the continuation of that caveat.
• On appeal, the Court applies the Barendregt v Grebilunas test to the appellant’s three fresh evidence applications and concludes that the proposed new evidence, including volunteer work, online courses, agreements, communications, and two 2025 capacity assessments, would not have affected the result.
• The respondent’s request for indemnity costs is considered but declined, and no specific monetary amount for costs or damages is stated in the reasons.

Background and factual context

The proceedings arise out of instruments that the appellant, Nadia Maria Cerato, executed in 2019. In February and March 2019, she made a personal directive and an enduring power of attorney appointing her brother, the respondent, Francesco Jeffrey Cerato, as her agent and attorney pursuant to the Personal Directives Act, RSA 2000, c P-6, and the Powers of Attorney Act, RSA 2000, c P-20. In August 2019, two medical doctors, Dr. Pandya and Dr. Virjee, made declarations of incapacity and the instruments came into effect. The appellant later challenged both her incapacity and the legal consequences flowing from these instruments. She also sought relief concerning real property that she owned. Ludmilla Maria Cerato, also known as Lucy Maria Cerato, who is not a party to the appeal, had registered a caveat against property owned by the appellant.

Applications before the chambers court

On June 5, 2020, the appellant brought an application seeking to revoke the personal directive and the enduring power of attorney on the basis that she had capacity. This is referred to as the Capacity Application. On June 9, 2023, she brought another application seeking an order removing the caveat that her mother had registered against her property. This is referred to as the Caveat Application. A series of further applications by the appellant followed, seeking the same relief or seeking to add information to the record. The respondent filed a cross application for direction and a litigation plan. These various applications culminated in an order dated October 2, 2023, directing a capacity assessment by the Alberta Health Service Regional Capacity Assessment Team (RCAT) and suspending other deadlines and hearings pending the outcome of the report. The order noted that the appellant had requested a referral to RCAT from her primary care physician, Dr. Dawes.

The RCAT assessment and its findings

On December 14, 2023, RCAT delivered its assessment. RCAT is designated by Alberta Health to conduct capacity assessments for the courts and is intended to serve as an impartial assessor. It had access to the appellant’s medical records. The appellant agreed to participate in its assessment. RCAT conducted two sessions with the appellant. Based on the interviews and its review of the records, RCAT produced a report authored by Ashley Marsh, psychologist, Yi-Nei Kao, occupational therapist, and Dr. Remi Olaosun, psychiatrist. The authors of the RCAT report opined that the appellant lacked decision-making capacity in the domains of health care, accommodation, choice of associates, legal (non-financial) matters, and financial affairs. They recommended that the personal directive and power of attorney remain in effect. The authors of the RCAT report were not called for cross-examination.

Competing capacity reports and the appellant’s position

In the application before the chambers justice on March 4, 2024, the appellant referenced capacity assessments completed prior to the RCAT assessment, including reports dated June 25, 2020, August 5, 2020, and September 7, 2022 from three different qualified assessors. She contended that the RCAT report was biased, based on anecdotal evidence, relied on information from the respondent which was also biased, and failed to consider prior capacity tests she had undertaken. The RCAT report, however, revealed extensive corroboration from multiple sources and described the appellant as ultimately acknowledging or admitting facts she initially disputed. The appellant filed three capacity reports that she had completed privately between June 2020 and September 2022. These reports pre-dated the RCAT report. They referenced dated medical reports at the time of her initial finding of incapacity or did not reference prior medical reports at all. In contrast, the RCAT report was based on a complete and contemporaneous review of her medical records and interactions with care staff at the facility where she resides and was described as the most current and detailed of the reports before the chambers justice.

The chambers decision

After considering the appellant’s submissions and the RCAT report, the chambers justice accepted the conclusions of the RCAT report, declared the appellant to not have capacity in the areas noted by RCAT, and dismissed the Capacity Application and the Caveat Application. The appellant appealed from that decision.

Issues and standard of review on appeal

On appeal, the appellant raised 15 grounds. The Court described the nub of these as reiterating arguments made before the chambers justice that the RCAT report was biased, based on anecdotal evidence, relied on biased information from the respondent, and failed to consider prior capacity tests the appellant had undertaken. The Court emphasized that an appeal is not a new hearing into the appellant’s capacity at present or as it may have been historically. The Court’s task was to review the decision of the lower court based on the record before it. The trial judge’s decision was predicated on accepting the RCAT report. Acceptance or rejection of expert evidence by a trial judge is reviewed on the palpable and overriding error standard, as set out in R v Nqumayo, 2010 ABCA 100 at paragraph 19.

Fresh evidence applications and their rejection

The appellant brought three fresh evidence applications dated October 10, 2024, March 18, 2025, and May 13, 2025. These applications contained evidence in relation to matters occurring before and after the ruling under appeal. Broadly speaking, the evidence related to volunteer work the appellant had engaged in, online courses she had completed, some agreements she made with the respondent and her care facility, and other capacity assessments she had undertaken. The test for the admission of fresh evidence, whether it existed at the time of the proceedings or arose afterwards, is the same. The applicant must demonstrate that the evidence could not, by the exercise of due diligence, have been available for the trial; that it is relevant in that it bears upon a decisive or potentially decisive issue; that it is credible in the sense that it is reasonably capable of belief; and that it is such that, if believed, it could have affected the result at trial, as described in Barendregt v Grebilunas, 2022 SCC 22. The Court grouped the proposed new evidence into two categories. The first category included evidence of volunteer activities and the completion of online courses. The Court found that this evidence was not sufficiently related to the determination of capacity or had other limitations. In some instances, the records shed no light on the issue of capacity, as the activities could be completed regardless of capacity issues. In others, such as volunteering in the count room in a casino as part of a team, the activities were supervised and the skills demonstrated did not address the complex issues relating to incapacity raised in the medical evidence. Other evidence, such as agreements between the appellant and respondent or communications between them, was found not to be relevant to the issue of capacity. The second category consisted of two related capacity assessments dated April 11 and April 25, 2025. The Court focused on the final element of the fresh evidence test. The April 11, 2025 assessment was a short one-page letter from a physician who reviewed one of the pre-RCAT reports and conducted a brief exam review in clinic, concluding that the appellant had capacity. He did not refer to the RCAT report or to any other medical records. The April 21, 2025 report (noted in the reasons as April 21, 2025, although earlier described as April 25, 2025) was completed by a designated capacity assessor based on an interview at a public library. It listed prior medical diagnoses and prior capacity assessments from 2019-2023. Its only reference to the RCAT report was that the 2023 report concluded that the appellant did not have capacity. The Court observed that these assessments suffered from the same limitations as the pre-RCAT assessments: they did not engage with the RCAT report’s comprehensive review. The Court found that in the circumstances of this case the later assessments lacked sufficient cogency and detail to have impacted the result. As a result, the Court concluded that they were not admissible as fresh evidence. The other material included in the fresh evidence applications was also found not to be relevant to the issue of capacity.

Absence of policy terms or clauses

The reasons address statutes and legal standards, including the Personal Directives Act, the Powers of Attorney Act, R v Nqumayo, and Barendregt v Grebilunas. There is no discussion in the text of insurance policy terms or contractual policy clauses, and no specific policy wording or clauses are identified or analyzed.

Court of Appeal’s analysis and ultimate outcome

The Court of Appeal reviewed the evidence and the appellant’s complaints regarding the RCAT report and concluded that the chambers judge made no error in relying on it. The Court noted that the RCAT report was the only report providing both a comprehensive review of the appellant’s complex medical history and contemporaneous examples of behaviour illustrating the challenges she faced even within a supportive living environment. The Court found that the proposed new capacity assessments lacked sufficient cogency and detail to have impacted the result and that the other new material was not relevant to capacity. The Court therefore refused to admit the fresh evidence. Having carefully considered the arguments and evidence advanced by the appellant, the Court concluded that they did not demonstrate that the chambers justice committed any reviewable error in relying on the RCAT report. The appeal was dismissed. The Court then addressed the respondent’s request for indemnity costs. In light of the Court’s conclusion upholding the finding in relation to the capacity of the appellant, it declined the request. The Court did not state any specific amount of costs, damages, or other monetary award in the reasons. Accordingly, while the respondent, Francesco Jeffrey Cerato, was the successful party on the appeal, the total amount ordered in his favour cannot be determined from the decision.