DeVenne v. DeVenne (Part III): Liability and Remedies
In Part One of this three-part series on a recent case involving a power of attorney lawsuit in Nova Scotia, DeVenne v. DeVenne, 2026 NSSC 61 (CanLII), we discussed when a declining elderly person can make a power of attorney.
In Part Two we discussed the obligations of an attorney and looked at the Court’s ruling that two of the attorneys, Wesley and Judith DeVenne, were required to repay money to the estate of Wesley’s late mother, Ms. Matheson.
In this part we will consider the claim for immunity that the attorneys made.
The attorneys argued that they should be relieved from liability by the Court pursuant to Section 24 of the New Brunswick Enduring Powers of Attorney Act. This section of the legislation says that a person who acted in good faith and with reasonable care is not liable for a loss arising from the performance of a duty as an attorney under a power of attorney.
The Court began by noting that there is no duty owed to a co-power of attorney. The duty is owed to the grantor. However, a co-power of attorney or another person with standing under the Act can request an accounting. On an accounting the Court may order repayment to the estate of the grantor.
The Court acknowledged that although Suzanne DeVenne, Wesley’s sister and Ms. Matheson’s third appointed attorney, was not personally owed any duty, her claim against Wesley and Judith amounted to a request for an accounting and the Court had the power to order them to repay money to Ms. Matheson’s estate.
The Court did not do a detailed analysis of the legislative immunity provision, but the Court found that Wesley and Judith did not act in good faith or with reasonable care.
Wesley and Judith moved the money into Wesley’s name and then used it to buy a house – which had nothing to do with managing Ms. Matheson’s affairs and everything to do with benefiting Wesley and Judith. The Court ordered Wesley and Judith to repay the money they had taken.
There is an equivalent section in the Nova Scotia legislation. This section has not been interpreted by the Courts, and each case is unique. However, the self-dealing transaction in this case, specifically taking the grantor’s money under a power of attorney for the personal purchase of real estate, fell outside the scope of conduct the Court would excuse under the immunity provision.
Indeed, the Court went on to say that if the estate had been part of the action it would “have seriously considered ordering punitive damages” against Wesley and Judith.
Punitive damages are an exceptional remedy awarded to address malicious, high-handed or fraudulent conduct. The fact that the Court signaled that the transactions by the attorneys in this case approached that threshold indicates how far outside the bounds of good faith and reasonable care this particular self-dealing transaction was.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the author, Tipper McEwan. Tipper is a partner in Stewart McKelvey’s advocacy group who practices in the areas of estate litigation, insurance, and commercial litigation.
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