Court of Appeal for Ontario

Date: 20210519 Docket: C68651 Huscroft, Paciocco and Jamal JJ.A.

Between

Barbara Lockhart personally and in her capacity as attorney for property of June Lockhart Applicant/Moving Party (Respondent)

and

Robert Lockhart personally and in his capacity as attorney for property of June Lockhart, and June Lockhart Respondent/Responding Party (Appellant)

Counsel: Robert Lockhart, acting in person Matthew Rendely and Bryan Gilmartin, for the respondent

Heard: May 13, 2021 by videoconference

On appeal from the order of Justice Bernadette Dietrich, of the Superior Court of Justice, dated August 12, 2020.

Reasons for Decision

[1] In 2018, the appellant, Robert Lockhart, arranged for his mother, June Lockhart, to execute a Power of Attorney for Property (“POAP”) and a Power of Attorney for Personal Care (“POAPC”) appointing him as her attorney. His sister, the respondent, Barbara Lockhart, brought a successful motion challenging the validity of those appointments. By order dated August 12, 2020, the POAP and POAPC were declared to be void ab initio and of no force or effect. Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, the appellant and the respondent were also ordered to jointly make personal care, health care and treatment decisions on June’s behalf. Costs were awarded to the respondent in the amount of $55,000 inclusive of HST and disbursements.

[2] The appellant appeals the declaration relating to the POAPC and the Health Care Consent Act order, as well as the costs order.

[3] The appellant submits that the motion judge erred in law by misapplying the capacity test for a POAPC and by placing the onus on him to establish June’s capacity to grant the POAPC. We disagree. The motion judge clearly understood the test of capacity under the POAPC and applied it correctly. Moreover, we see no error in the motion judge’s ruling, pursuant to s. 2(3) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, that the appellant had reasonable grounds to believe that June was incapable of entering into the POAPC, and therefore could not rely upon the presumption of capacity. That holding was supported by factual findings the motion judge was entitled to make relating to the manner in which the POAPC was executed, efforts by the appellant to avoid an assessment of June’s competence to execute a POAPC, and the significant delay by the appellant in disclosing that the POAPC was executed.

[4] Nor do we accept the appellant’s submissions that the motion judge misapprehended or failed to consider evidence, committed palpable and overriding errors in making findings, or failed to give adequate reasons for her decision. We find no errors in her analysis, and her reasons for decision adequately address the evidence and issues before her.

[5] Finally, we see no basis for interfering with the costs decision. Leave to appeal costs is denied.

[6] We need not address the reasonable apprehension of bias claim initially advanced by the appellant, as he abandoned that ground of appeal for tactical reasons at the outset of the oral hearing.

[7] The appeal is therefore dismissed. Costs in this appeal are awarded to the respondent in the amount of $30,000 inclusive of HST and disbursements.

“Grant Huscroft J.A.”

“David M. Paciocco J.A.”

“M. Jamal J.A.”