DATE: 20050520

DOCKET: C42550

COURT OF APPEAL FOR ONTARIO

RE:

LYNNE SALZMAN (Applicant/Appellant) -and- TERESA LESLIE EMBRO, CONSTANCE JEAN EMBRO, JAMES GEORGE EMBRO, JR. and PUBLIC GUARDIAN AND TRUSTEE (Respondents/ Respondents in appeal)

BEFORE:

CATZMAN, LABROSSE and MOLDAVER JJ.A.

COUNSEL:

Izaak De Rijcke

for the appellant

Bruce A. Gray

for the respondent James George Embro, Jr.

M. Wesley Philp for the respondent Constance Jean Embro

Cindy Blancher for the respondent Public Guardian and Trustee

HEARD AND RELEASED ORALLY:

May 18, 2005

On appeal from the judgment of Justice G. Bourke Smith of the Superior Court of Justice dated September 28, 2004.

E N D O R S E M E N T

[1] The appellant made an application for the appointment of the Public Guardian and Trustee as guardian of the property and persons of her two sisters, who reside with their brother.

[2] The matter of whether a capacity assessment should be carried out was an issue to be decided by the application judge. He considered the evidence filed by the parties on the application and found that the appellant’s allegations in support of her application were groundless. He was of the opinion that the evidence did not support an order for a capacity assessment, or any of the other relief requested by the appellant. Accordingly, he dismissed the application.

[3] We see no error in the exercise of the application judge’s discretion.

[4] We note the Public Guardian and Trustee supports the decision of the application judge and takes the position that there is no error in the decision.

[5] Accordingly, the appeal is dismissed. Costs to the respondent James George Embro, Jr. are fixed at $3,500. Costs to the Public Guardian and Trustee are fixed at $1,500.

Signed: “M.A. Catzman J.A.” “J.-M. Labrosse J.A.” “M.J. Moldaver J.A.”