Canada Case Law

Eyles v. Eyles

Court

Supreme Court of British Columbia

Applying the Gronnerud test the decisive criterion was whether the nominee was qualified, prepared and indifferent; evidence established Mr. Colin Allan Millar met that test (qualified as retired family lawyer, prepared to act pro bono, no demonstrated conflict or adverse interest), whereas Ms. McIntosh lacked evidentiary support of qualifications and independence; PGT cannot be compelled to act; accordingly the court appointed Millar as litigation guardian and awarded costs to the claimant.

Source excerpt

• Litigation guardian appointment
• Capacity assessment
• Conflict of interest/indifference
• Public guardian and trustee liability/refusal
• Costs

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John Doe v. The King

Court

Tax Court of Canada

The Tax Court of Canada held that John Doe is under a legal disability and must be represented by counsel in his tax appeals.

• Legal disability
• Representation by counsel
• Capacity assessment
• Mental health act
• Public guardian and trustee
• Tax court rules

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A.S. v. Evergreen House Long Term Care

Court

Supreme Court of British Columbia

M.S. was lawfully admitted to EGH because the Public Guardian and Trustee provided substitute consent under s.22 HCCCFAA for an incapable adult; given that lawful admission and the regulatory framework governing residence and supervised leave, the petitioner failed to establish a legitimate ground to question the lawfulness of any deprivation of liberty, and habeas corpus is not the appropriate mechanism to relitigate the care team's decision to disqualify the petitioner as TSDM; the petition is dismissed.

Source excerpt

• Habeas corpus
• Involuntary detention
• Substitute decision-making
• Long-term care admission
• Consent to care
• Capacity assessment

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Vancouver Island Health Authority v. T.W

Court

Supreme Court of British Columbia

The court granted Island Health’s petition, removed T.W. as E.W.’s representative, and declared him unfit to act as TSDM or to give substitute consent.

• Representation agreement
• Support and assistance order
• Temporary substitute decision-maker
• Capacity assessment
• Medical assistance in dying (maid)
• Self-neglect

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Pelletier v. Pelletier

Court

Supreme Court of British Columbia

The court set aside a separation agreement, found fiduciary breaches in handling farm-sale proceeds during Claude Pelletier’s incapacity, and awarded damages.

• Separation agreement
• Power of attorney
• Revocation of poa
• Knowing receipt
• Breach of fiduciary duty
• Unjust enrichment

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Rai v. Bhalla

Court

Court of Appeal for Ontario

The appeal was dismissed because the appellant abandoned the pleaded challenges that created the live issues (challenge to powers of attorney and capacity), leaving no active cause of action for the court to adjudicate; the application judge did not err in exercising his discretion to refuse a s.42 accounting given the pleadings and evidentiary record; fresh evidence was unnecessary and inadmissible on appeal; and there was no basis to disturb the costs award.

Source excerpt

• Powers of attorney
• Capacity assessment
• Undue influence
• Accounting under s.42 sda
• Appointment of s.3 counsel
• Admission of fresh evidence

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Gefen v. Gefen

Court

Court of Appeal for Ontario

The stay was denied because the appeal did not raise serious issues likely to succeed (the motion judge's findings of incapacity and preference for the assessor's evidence were well supported), the moving parties would not suffer irreparable harm while the court‑appointed guardian (Eisen) managed affairs and was accountable to the court, and the balance of convenience favoured allowing the motion judge's order to operate pending appeal.

Source excerpt

• Litigation guardian appointment
• Guardian of property
• Capacity assessment
• Stay pending appeal
• Passing over estate trustee
• Personal costs orders

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H.S.A. v. S.K.A.

Court

Supreme Court of British Columbia

The court removed P.K.A. as litigation guardian for H.S.A., finding she had a personal interest in the proceeding and was not sufficiently disinterested.

• Removal of litigation guardian
• Best interests of dependent adult
• Conflict of interest and indifference
• Parenting time/guardianship
• Capacity assessment
• Litigation-guardian-removal

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Cepuran v. Carlton

Court

Supreme Court of British Columbia

The court held it was premature to award special or indemnity costs on interlocutory petitions, leaving committeeship costs to the trial judge and awarding cause costs on two petitions.

• Special costs
• Indemnity
• Committeeship appointment
• Trustee indemnity
• Management agreement
• Interlocutory costs

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Evans (Re)

Court

Supreme Court of British Columbia

The court found Ursula Evans lacked capacity and appointed Gail Florence Nelson as committee of the person and estate on protective terms, refusing Donna’s competing application.

• Appointment of committee
• Capacity assessment
• Enduring power of attorney
• Transfer of property into joint tenancy
• Wills and wills variation
• Role of public guardian and trustee

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