Bishop v. Bishop

Bishop v. Bishop

The Court upheld the trial judge's finding that Alma lacked capacity to grant the power of attorney based on the totality of the evidence, rejected the non-joinder/procedural unfairness argument for lack of merit, and set aside the s.140(1) order because it was not sought timely, was not argued and lacked reasons; leave to appeal costs was dismissed and costs were fixed to the respondents.

Citation
2007 ONCA 170
Parties
Applicant/respondent: Christine Catherine Bishop; Applicant/respondent: Anne Alma McGourty; Respondent/appellant: James Michael Bishop
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
15 March 2007
Procedural Posture
Civil Appeal / Appeal From Superior Court of Justice Order Dated July 31, 2006 to the Court of Appeal for Ontario
Outcome
Appeal partly dismissed: capacity finding upheld; s.140(1) order set aside; request for leave to appeal costs dismissed; costs awarded to respondents.
Legal Topics
Capacity, Power of Attorney, Procedural Fairness, Non Joinder, Section 140(1) Order, Costs, Passing of Accounts
Source Language
English
Civil Estate and Incapacity Procedure Costs Capacity Power of Attorney Procedural Fairness Non Joinder +2 more

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Parties

Christine Catherine Bishop

Applicant/respondent

Anne Alma McGourty

Applicant/respondent

James Michael Bishop

Respondent/appellant

Procedural Posture

Civil Appeal / Appeal From Superior Court of Justice Order Dated July 31, 2006 to the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether Alma had capacity to grant the power of attorney in September 2005
  2. 2 Whether proceedings were unfair because the mother or the Public Guardian were not made parties (non-joinder)
  3. 3 Whether the s.140(1) order was validly made

Ratio Decidendi

The Court upheld the trial judge's finding that Alma lacked capacity to grant the power of attorney based on the totality of the evidence, rejected the non-joinder/procedural unfairness argument for lack of merit, and set aside the s.140(1) order because it was not sought timely, was not argued and lacked reasons; leave to appeal costs was dismissed and costs were fixed to the respondents.

Court Disposition

Appeal partly dismissed: capacity finding upheld; s.140(1) order set aside; request for leave to appeal costs dismissed; costs awarded to respondents.

Orders

  • Set aside the s.140(1) order.
  • Dismissed the appellant's non-joinder/procedural fairness argument.