Default SDM where no Guardianship Order is in Place

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2417
Page Categories:	[Substitute Decision Makers]
Citation:	Default SDM where no Guardianship Order is in Place, CLNP 2417, <https://rvt.link/dc>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/10/26

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Substitute Decisions Act, 1992, S.O. 1992, c. 30

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract. 1992, c. 30, s. 2 (1).

(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. 1992, c. 30, s. 2 (2).

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be. 1992, c. 30, s. 2 (3).

(4) In a proceeding in respect of a contract entered into or a gift made by a person while his or her property is under guardianship, or within one year before the creation of the guardianship, the onus of proof that the other person who entered into the contract or received the gift did not have reasonable grounds to believe the person incapable is on that other person. 1992, c. 30, s. 2 (4).

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4 This Part applies to decisions on behalf of persons who are at least eighteen years old. 1992, c. 30, s. 4.

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6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.

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8 (1) A person is capable of giving a continuing power of attorney if he or she,

(a) knows what kind of property he or she has and its approximate value;

(b) is aware of obligations owed to his or her dependants;

(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) knows that the attorney must account for his or her dealings with the person’s property;

(e) knows that he or she may, if capable, revoke the continuing power of attorney;

(f) appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her. 1992, c. 30, s. 8 (1).

(2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one. 1992, c. 30, s. 8 (2).

...

15 If a certificate is issued under the Mental Health Act certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property. 1992, c. 30, s. 15; 1996, c. 2, s. 9.

16 (1) A person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section. 1996, c. 2, s. 10.

(2) No assessment shall be performed unless the request is in the prescribed form and, if the request is made in respect of another person, the request states that,

(a) the person requesting the assessment has reason to believe that the other person may be incapable of managing property;

(b) the person requesting the assessment has made reasonable inquiries and has no knowledge of the existence of any attorney under a continuing power of attorney that gives the attorney authority over all of the other person’s property; and

(c) the person requesting the assessment has made reasonable inquiries and has no knowledge of any spouse, partner or relative of the other person who intends to make an application under section 22 for the appointment of a guardian of property for the other person. 1996, c. 2, s. 10; 2016, c. 23, s. 70 (2).

(3) The assessor may issue a certificate of incapacity in the prescribed form if he or she finds that the person is incapable of managing property. 1996, c. 2, s. 10.

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17 (1) Any of the following persons may apply to the Public Guardian and Trustee to replace the Public Guardian and Trustee as an incapable person’s statutory guardian of property:

1. The incapable person’s spouse or partner.

2. A relative of the incapable person.

3. The incapable person’s attorney under a continuing power of attorney, if the power of attorney was made before the certificate of incapacity was issued and does not give the attorney authority over all of the incapable person’s property.

4. A trust corporation within the meaning of the Loan and Trust Corporations Act, if the incapable person has a spouse or partner who consents in writing to the application. 1996, c. 2, s. 11; 2006, c. 19, Sched. B, s. 22 (1); 2016, c. 23, s. 70 (2).

(2) The application shall be in the prescribed form. 1996, c. 2, s. 11.

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22 (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 22 (1).

(2) An application may be made under subsection (1) even though there is a statutory guardian. 1992, c. 30, s. 22 (2).

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43 This Part applies to decisions on behalf of persons who are at least sixteen years old. 1992, c. 30, s. 43.

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45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 45; 1996, c. 2, s. 29.

....

46 (3) A person may not act as an attorney under a power of attorney for personal care, unless the person is the grantor’s spouse, partner or relative, if the person,

(a) provides health care to the grantor for compensation; or

(b) provides residential, social, training or support services to the grantor for compensation. 1992, c. 30, s. 46 (3); 1996, c. 2, s. 30 (2, 3); 2016, c. 23, s. 70 (2).

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47 (1) A person is capable of giving a power of attorney for personal care if the person,

(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

(b) appreciates that the person may need to have the proposed attorney make decisions for the person. 1992, c. 30, s. 47 (1).

(2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care. 1992, c. 30, s. 47 (2).

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55 (1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 55 (1).

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59 (1) The court may make an order for full guardianship of the person only if the court finds that the person is incapable in respect of all the functions referred to in section 45. 1992, c. 30, s. 59 (1).

(2) Under an order for full guardianship, the guardian may,

(a) exercise custodial power over the person under guardianship, determine his or her living arrangements and provide for his or her shelter and safety;

(b) be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or to the guardian’s status or powers;

(c) settle claims and commence and settle proceedings on the person’s behalf, except claims and proceedings that relate to the person’s property or to the guardian’s status or powers;

(d) have access to personal information, including health information and records, to which the person would be entitled to have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that relates to the person’s property or to the guardian’s status or powers;

(e) on behalf of the person, make any decision to which the Health Care Consent Act, 1996 applies;

(e.1) make decisions about the person’s health care, nutrition and hygiene;

(f) make decisions about the person’s employment, education, training, clothing and recreation and about any social services provided to the person; and

(g) exercise the other powers and perform the other duties that are specified in the order. 1992, c. 30, s. 59 (2); 1996, c. 2, s. 37 (1); 2006, c. 19, Sched. B, s. 22 (7).

(3) If the guardian has custodial power over the person and the court is satisfied that it may be necessary to apprehend him or her, the court may in its order authorize the guardian to do so; in that case the guardian may, with the assistance of a police officer, enter the premises specified in the order, between 9 a.m. and 4 p.m. or during the hours specified in the order, and search for and remove the person, using such force as may be necessary. 1992, c. 30, s. 59 (3).

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59.1 Any person who has personal information about an incapable person to which the incapable person would be entitled to have access if capable, including health information and records, shall disclose it to the incapable person’s guardian of the person on request if the guardian has the power referred to in clause 59 (2) (d). 2006, c. 19, Sched. B, s. 22 (8).

Health Care Consent Act, 1996

1 The purposes of this Act are,

(a) to provide rules with respect to consent to treatment that apply consistently in all settings;

(b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters;

(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by,

(i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding,

(ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and

(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to;

2 (1) In this Act,

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“personal assistance service” means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service; (“service d’aide personnelle”)

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“recipient” means a person who is to be provided with one or more personal assistance services,

(a) in a long-term care home as defined in the Fixing Long-Term Care Act, 2021,

(b) in a place prescribed by the regulations in the circumstances prescribed by the regulations,

(c) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or

(d) by a provider prescribed by the regulations in the circumstances prescribed by the regulations; (“bénéficiaire”)

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“care facility” means,

(a) a long-term care home as defined in the Fixing Long-Term Care Act, 2021, or

(b) a facility prescribed by the regulations as a care facility; (“établissement de soins”)

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4 (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1996, c. 2, Sched. A, s. 4 (1).

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. 1996, c. 2, Sched. A, s. 4 (2).

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be. 1996, c. 2, Sched. A, s. 4 (3).

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9 In this Part,

“substitute decision-maker” means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment. 1996, c. 2, Sched. A, s. 9.

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20 (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.

4. The incapable person’s spouse or partner.

5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person. 1996, c. 2, Sched. A, s. 20 (1); 2016, c. 23, s. 51 (1); 2021, c. 4, Sched. 11, s. 14 (1, 2).

(2) A person described in subsection (1) may give or refuse consent only if he or she,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent. 1996, c. 2, Sched. A, s. 20 (2); 2021, c. 4, Sched. 11, s. 14 (3).

(3) A person described in a paragraph of subsection (1) may give or refuse consent only if no person described in an earlier paragraph meets the requirements of subsection (2). 1996, c. 2, Sched. A, s. 20 (3).

(4) Despite subsection (3), a person described in a paragraph of subsection (1) who is present or has otherwise been contacted may give or refuse consent if he or she believes that no other person described in an earlier paragraph or the same paragraph exists, or that although such a person exists, the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her making the decision. 1996, c. 2, Sched. A, s. 20 (4).

(5) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee shall make the decision to give or refuse consent. 1996, c. 2, Sched. A, s. 20 (5).

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21 (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests. 1996, c. 2, Sched. A, s. 21 (1).

(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

1. Whether the treatment is likely to,

i. improve the incapable person’s condition or well-being,

ii. prevent the incapable person’s condition or well-being from deteriorating, or

iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.

2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed. 1996, c. 2, Sched. A, s. 21 (2).

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33 (1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf. 1996, c. 2, Sched. A, s. 33 (1).

(2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person. 1996, c. 2, Sched. A, s. 33 (2).

(3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority. 1996, c. 2, Sched. A, s. 33 (3).

(4) The parties to the application are:

1. The incapable person.

2. The proposed representative named in the application.

3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 20 (1).

4. The health practitioner who proposed the treatment.

5. Any other person whom the Board specifies. 1996, c. 2, Sched. A, s. 33 (4).

(5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person’s behalf,

(a) to the proposed treatment;

(b) to one or more treatments or kinds of treatment specified by the Board, whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or

(c) to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it. 1996, c. 2, Sched. A, s. 33 (5).

(6) The Board may make an appointment under this section if it is satisfied that the following requirements are met:

1. The incapable person does not object to the appointment.

2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.

3. The appointment is in the incapable person’s best interests. 1996, c. 2, Sched. A, s. 33 (6).

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41 Section 20 applies, with necessary modifications, for the purpose of determining who is authorized to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission. 1996, c. 2, Sched. A, s. 41.

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56 In this Part,

“substitute decision-maker” means a person who is authorized under section 58 to make a decision concerning a personal assistance service on behalf of a recipient who is incapable with respect to the service. 1996, c. 2, Sched. A, s. 56.

57 (1) If a recipient is found by an evaluator to be incapable with respect to a personal assistance service, a decision concerning the service may be made on the recipient’s behalf by his or her substitute decision-maker in accordance with this Act. 1996, c. 2, Sched. A, s. 57 (1).

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58 For the purpose of determining who is authorized to make a decision concerning a personal assistance service on behalf of a recipient who is incapable with respect to the service,

(a) section 20, except subsections 20 (5) and (6), applies with necessary modifications;

(b) if no person described in subsection 20 (1) meets the requirements of subsection 20 (2), the Public Guardian and Trustee may make the decision concerning the personal assistance service; and

(c) if two or more persons who are described in the same paragraph of subsection 20 (1) and who meet the requirements of subsection 20 (2) disagree about the decision to be made concerning the personal assistance service, and if their claims rank ahead of all others, the Public Guardian and Trustee may make the decision in their stead. 1996, c. 2, Sched. A, s. 58.

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60 (1) Before making a decision on an incapable recipient’s behalf concerning a personal assistance service, a substitute decision-maker is entitled to receive all the information required in order to make the decision. 1996, c. 2, Sched. A, s. 60.

(2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004. 2004, c. 3, Sched. A, s. 84 (10).

Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 SCR 722

77 The law presumes a person is capable to decide to accept or reject medical treatment: s. 4(2) of the Act. At a capacity hearing, the onus is on the attending physician to prove that the patient is incapable. I agree with the Court of Appeal that proof is the civil standard of a balance of probabilities. As a result, patients with mental disorders are presumptively entitled to make their own treatment decisions. Professor D. N. Weisstub, in his Enquiry on Mental Competency: Final Report (1990), at p. 116 (“Weisstub Report”), notes the historical failure to respect this presumption:

The tendency to conflate mental illness with lack of capacity, which occurs to an even greater extent when involuntary commitment is involved, has deep historical roots, and even though changes have occurred in the law over the past twenty years, attitudes and beliefs have been slow to change. For this reason it is particularly important that autonomy and self determination be given priority when assessing individuals in this group.

The Board must avoid the error of equating the presence of a mental disorder with incapacity. Here, the respondent did not forfeit his right to self-determination upon admission to the psychiatric facility: see Fleming v. Reid, supra, at p. 86. The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act.

78 Section 4(1) of the Act describes these elements as follows:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board’s finding of incapacity was based on their perception of Professor Starson’s failure in this regard.

Manuel v. Lafarge et al., 2024 ONSC 3790 (CanLII)

[37] Sections 2(1) and 2(3) of Substitute Decisions Act, 1992, S.O. 1992, c. 30 dictate that an adult is presumed to have capacity to enter into a binding contract unless there are reasonable grounds to question that capacity:

Presumption of capacity

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract. 1992, c. 30, s. 2 (1).

…

Exception

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be. 1992, c. 30, s. 2 (3).

[38] Within the context of medical care, the majority of the Supreme Court of Canada found in Starson v. Swayze, 2003 SCC 32 that capacity contained two constituent elements (at para. 78):

Section 4(1) of the [Substitute Decisions] Act describes these elements as follows:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information. There is no doubt that the respondent satisfied this criterion. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. The Board's finding of incapacity was based on their perception of Professor Starson's failure in this regard.

[39] While, strictly speaking, the Supreme Court’s decision applies to capacity to consent as it relates to medical treatment, I have not seen any jurisprudence that suggests that a different test ought to be imposed in other areas of the law.

[40] Lack of capacity may vitiate a contract and it may also inform unconscionability and duress: see Hart v. O’Connor, [1985] A. C. 1000, [1985] 2 All E.R. 880 (P.Q.).

Ponniah et al. v. Ramachandran et al., 2018 ONSC 2646 (CanLII)

[16] In every respect, there is a presumption of capacity.[1] It is only when the presumption is displaced that a Litigation Guardian will be appointed. There should be reasonable grounds to prompt the request for a formal capacity assessment. To declare someone mentally incapable must be a decision of the court taken largely on the basis of recent medical evidence.[2]

[17] The purpose of requiring a Litigation Guardian for parties under disability is for the protection of the party, the other parties and the court. A Litigation Guardian ensures a competent person is instructing counsel and taking steps in the litigation while exercising a duty to act for the party’s benefit. The other parties are provided the protection of a competent person to instruct counsel, to be responsible for costs and for seeing that court orders and judgments are obeyed. The court is provided assurance that its process is not abused by or against a party under disability and that its orders will be obeyed.[3]

Lockhart v. Lockhart, 2021 ONCA 329 (CanLII)

[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.

Robert Lockhart personally and in his capacity as attorney for property of June Lockhart v. Barbara Lockhart personally and in her capacity as attorney for property of June Lockhart, 2022 CanLII 30680 (SCC)

The motion for an extension of time to serve and file the application for leave to appeal is dismissed. In any event, had the motion for an extension of time been granted, the application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C68651, 2021 ONCA 329, dated May 19, 2021, would have been dismissed.

Lockhart v. Lockhart, 2020 ONSC 4667 (CanLII)

[48] The Applicant submits that if Dr. Shulman’s report is not persuasive, then the 2018 Power of Attorney for Personal Care should be declared to be of no force and effect because the Respondent has failed to prove that Mrs. Lockhart had the capacity to make the 2018 Power of Attorney for Personal Care and he is unable to rely on the presumption of capacity as set out in s. 2 of the SDA. Specifically, she asserts that the presumption is not available to the Respondent because he had reasonable grounds to believe that Mrs. Lockhart was incapable of making a power of attorney for personal care.

[49] I agree that the Respondent had reasonable grounds to believe that Mrs. Lockhart did not have capacity to make the 2018 Power of Attorney for Personal Care. That document was signed on December 28, 2018, a little more than two months before Mrs. Lockhart underwent a capacity assessment with respect to her ability to manage property. If the Respondent believed that Mrs. Lockhart had capacity to make the 2018 Power of Attorney for Personal Care, it would follow that he would permit Ms. Kaye to assess Mrs. Lockhart for that purpose as well so that his belief could be verified.

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[54] Based on the record, the Respondent has not shown that Mrs. Lockhart had the capacity to make the 2018 Power of Attorney for Personal Care. In the circumstances of this case, the presumption of capacity does not assist the Respondent. Accordingly, I find that the 2018 Power of Attorney for Personal Care is not valid.

A.M. v. Benes, 1998 CanLII 14770 (ON SC)

[67] Section 20 of the Act recognizes a hierarchy of persons eligible to be substitute decision‑makers. The highest ranking claimant to be the S.D.M. is a guardian of the person appointed by the court and given the power to make treatment and other personal care decisions for an incapable person. Next in rank is an attorney for personal care appointed under the S.D.A. where the power of attorney confers authority to give or refuse consent to the treatment in question. Third ranking is a “representative” appointed by the Care and Consent Board if the representative has been given authority to give or refuse consent to the treatment.

[68] Categories four through eight are persons related to the patient by marriage or blood (and in some cases, as part of the fifth ranking group, a children’s aid society or other person lawfully entitled to give or refuse consent to the treatment).

[69] The right to be the S.D.M. at a particular time depends on, among other things, the fact that no higher ranking person is in place or available and willing to act. If no eligible person is available and willing to act, the Public Guardian and Trustee is the S.D.M. of last resort.

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[75] In this case we are dealing with the constitutional and other rights with respect to treatment of an adult person, with a long history of schizophrenia and psychotic incidents, who arrives at a psychiatric facility in a psychotic condition, clearly incapable as to any proposed treatment, and without having availed herself when capable, of any of the mechanisms available under the S.D.A. for the appointment of an S.D.M. and for the instruction of that S.D.M. as to treatment decisions.

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[84] Where an S.D.M. has refused to consent to a treatment proposed by a health practitioner, the only recourse of a health practitioner who wishes to proceed with the proposed treatment—and a recourse available only where the health practitioner is of the opinion that the S.D.M. did not comply with s. 21—is to apply to the Care and Consent Board under s. 37(1) of the Act for a determination of whether the S.D.M. complied with s. 21.

...

[155] Section 20 recognizes the various ways in which an S.D.M. may be appointed or recognized and sets forth what appear to me to be reasonable rules of precedence among potential S.D.M.s for a particular person at a particular time.

[156] Paragraph 1 of s. 21(1) of the Act, in requiring an S.D.M. to act in accordance with the applicable prior capable wishes of the patient who is incapable as to the proposed treatment, is in accord with the requirements of s. 7 of the Charter as declared in Fleming v. Reid, supra.

[157] Paragraph 2 of s. 21(1) requires the S.D.M. where the S.D.M. does not know of an applicable prior capable wish, or where it is impossible to comply with that wish, to act in the best interests of the incapable person. Section 21(2) sets out matters and factors which an S.D.M. is to consider when deciding what the best interests of the patient are in the circumstances. I find no fault with s. 21(2) nor did the appellant directly attack any of its provisions.

[158] In my opinion it is reasonable and proper, and not contrary to s. 7 of the Charter that the treatment decision of an S.D.M., where the obligation of the S.D.M. is to act in the incapable person’s best interests, be subject to review by an independent tribunal such as the board. Under the Act a health practitioner, except in an emergency, cannot override the decision of an S.D.M. Except in emergencies, the only recourse of the health practitioner is to apply to the board if the health practitioner is of the opinion that the S.D.M. is not complying with the principles in s. 21(1). It is important to note that such an application may be brought with respect to the S.D.M.’s noncompliance with either or both of paras. (1) and (2) of s. 21(1), although here we are principally concerned with para. 2, i.e., the test of the best interests of the incapable person.

[159] I am not able to accept the proposition that the S.D.M. should be treated as someone who “stands in the shoes” of the incapable person if that means that the same deference must be shown to the treatment decision of an S.D.M. as would be required to be shown to the decision of a capable adult with respect to a treatment proposed for himself or herself. That point was, in effect conceded by counsel for the appellant when she acknowledged, correctly in my view, that it is appropriate that the Act contain provisions for some independent review of an S.D.M.’s treatment decision.

R. v. Webers, 1994 CanLII 7552 (ON SC)

[1] O’CONNOR J.:—On July 1, 1992, a violent incident happened on the psychiatric floor of the Grey-Bruce Regional Health Centre. Henry Webers was speaking to Heather Boys, a friend who was being involuntarily held there. He was calming her down. He got her to put on her pyjamas. A “Code White” team of eight hospital staff and two Owen Sound police officers had assembled. They rushed into the room to forcibly restrain and medicate Ms Boys. They were going to use leather straps to tie her to a bed. A nurse asked Mr. Webers to leave the room. He refused. He wanted to protect Ms Boys. The police officers then attempted to remove him. A fracas ensued. The three large men wrestled and thrashed about the room and out into the hallway. When the dust had settled, Mr. Webers was in handcuffs, charged with obstruct police, two counts of assault police, assault police with intent to resist arrest and two counts of assault causing bodily harm. All three men were injured, one of the officers seriously. He suffered a herniated disc which was ultimately removed. He was unable to work for almost two years.

...

[9] Mr. Webers left the hospital. Ms Boys stayed the night. On July 1st, she was prescribed Haldol, a neuroleptic and tranquillizer, to be taken every four hours, and when necessary for agitation. Some time later, Ms Boys became agitated, hitting the walls and refusing to change into pyjamas or to take medication. She wanted to go home. Dr. Andreychuk, the “on-call” psychiatrist, and Margaret Sweigard, the nurse in charge, decided to ask Mr. Webers to try to settle her down. Dr. Andreychuk then left the floor. Before Mr. Webers arrived, Ms Boys began kicking, judo style, at a locked door in an attempt to get out of the hospital. Ms Sweigard became alarmed that she might hurt herself. She signalled a “Code White” and summoned the Owen Sound police. A Code White calls seven or eight specially trained nurses and other personnel from around the hospital to deal with a crisis involving an acting‑out mental patient. The team assembled. Mr. Webers arrived. Constables William Rusk and Kevin McDonald arrived, both in uniform and wearing unloaded side-arms. Mr. Webers was given time to talk to Ms Boys. He led her from her room to a larger one. The Code White team waited outside this room. She calmed down and was sitting quietly on a bed. Mr. Webers convinced her to put on her pyjamas. He wanted more time to get her to take some medication. Ms Sweigard said that they did not have more time, because they were taking the time of the two police officers and staff from other areas of the hospital. She then gave a signal and the team rushed into the room. They grabbed Ms Boys’ arms, legs and other parts of her body in order to place leather straps around her chest and extremities and to tie her to the bed. They intended to restrain her to facilitate the injection of a sedative. The police officers were fully involved. One had an arm and one a leg. Ms Sweigard asked Mr. Webers to leave the room until the procedure was completed, when he could return. He refused, fearing that Ms Boys was going to be injured. He wanted to protect her. He and Ms Boys were scared. Ms Sweigard agreed that it was a threatening moment for them. She also agreed that Mr. Webers said he did not want Ms Boys to be hurt. Constable Rusk approached Mr. Webers, placed his hand on his shoulder and said that if he did not leave, he would be arrested. Mr. Webers pulled away. Constable McDonald moved to assist his partner. All three men are large. The two officers each grabbed one of Mr. Weber’s arms. They pushed, shoved and grappled with each other around the room and out into the hallway. Several of the witnesses described the mêlée as a wrestling match. All but one of seven witnesses who described the events said that no punches were thrown. Constable McDonald said Mr. Webers punched him once in the chest. Mr. Webers was kicked in the ribs and shoulders. In the hallway, Mr. Webers pushed Constable McDonald against a railing around the wall, causing him to strike the small of his back against it. The officers, with the assistance of an orderly, finally prevailed. They subdued Mr. Webers on the floor. He then became compliant and asked what they wanted him to do. They handcuffed him.

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[12] The police officers had received no specific training in Code White procedure. They knew nothing of Ms Boys’ history or current condition or treatment. They did not know of Mr. Webers’ relationship to Ms Boys, nor of his involvement in de-escalating her prior to their arrival. They were not familiar with the Mental Health Act, of the requirement to serve the Form 42, nor of the hospital’s policy on restraint of patients. They were there to control a potentially violent situation using the training they had received as police officers. They took their direction from the Code White team leader, Ms Sweigard, assuming she and the hospital were acting with proper authority.

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4. Was Henry Webers justified in resisting the officers’ attempts to remove him?

[43] Section 37 of the Criminal Code reads:

37(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

[44] The defence argues that this section entitles Mr. Webers to use force to protect Ms Boys from the assault that was being perpetrated on her. The force used against the officers to resist their attempts to remove him and then to arrest him was, therefore, justified, as it was being used in the defence of Ms Boys. Several questions arise from this position:

(a) What is meant by “…any one under his protection…”?

(b) What is meant by “…no more force than is reasonably necessary…”?

(c) Is the reasonableness test objective or subjective?

(d) Is Mr. Webers a trespasser, such that the police were entitled to remove him at the request of the lawful occupier of the premises?

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[48] a person “like a son”, R. v. Chisam (1963), 47 Cr. App. R. 130, again followed in Canada in Gambriell v. Caparelli, supra, and “stranger” in R. v. Barkhouse (1983), 1983 CanLII 5098 (NS PC), 58 N.S.R. (2d) 393 (Prov. Ct.), where the accused came to the aid of a motorist who was struggling with a police officer. The court acquitted the accused of assault of a police officer in the execution of his duty, holding that the attempted seizure of the motorist’s vehicle by the police officer was unreasonable under s. 8 of the Charter and, therefore, the officer was not engaged in the execution of his lawful duty. The accused was entitled to use force to defend a person “under his protection”, and the driver was possibly under his protection after he responded to the driver’s call for help. In any event, aid to strangers to prevent assault also constitutes a common law defence. At common law, a person may use force to rescue a person, even a stranger, from attack. The common law right provides a defence to assault that is wider than the statutory defence under s. 37(1) of the Criminal Code, and is preserved by s. 7(3) of the Code.

[49] Thus, the term “under his protection” is not limited to a formal guardianship relationship, such as a parent or guardian and child, or a teacher and student. In its broadest sense, it means anyone who requires protection which the accused may be able to provide. The relationship between Ms Boys and Mr. Webers is included under the provisions of s. 37(1) of the Criminal Code.

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[55] Mr. Webers is a 51-year-old farmer, whose formal education ended after Grade 8. He was unaware of the reasons for Ms Boys’ detention, its duration or what the Code White team intended to do to her. Even Ms Sweigard agreed that it was a threatening moment for Ms Boys and Mr. Webers. Given his relative lack of sophistication, the information from his son-in-law that harm was sometimes inflicted in mental institutions, and the intimidating and threatening actions of the Code White team in rushing quickly into the room, I find that his fear that Ms Boys was being assaulted was reasonable. In the words of Lamer C.J.C. in Pétel, supra, he “…reasonably believe(d), in the circumstances, that she was being unlawfully assaulted…”. Further, his fear that they were about to “severely hurt” her was, in the circumstances, reasonable. Mr. Webers was justified under s. 37(1) of the Criminal Code in using force to protect Ms Boys from assault. I find the force he attempted to use was proportionate to the harm he reasonably anticipated was going to befall her. He was attempting to break free of the officers’ restraints to assist her. He was not proactively attempting to hurt or subdue them. He simply wanted to be rid of them in order to prevent the assault on his friend. As part of the Code White team, the officers were exceeding their authority in unlawfully and arbitrarily detaining Ms Boys. The Crown has not proven beyond a reasonable doubt that Mr. Webers was not justified in using the force he did to attempt to escape from the control of the officers.

(d) Was Mr. Webers a trespasser?

[56] The Crown argues that, although Mr. Webers was originally an invitee in the room, he became a trespasser. I find that there can be no question that Mr. Webers was not a trespasser. He had been invited by the lawful occupiers of the premises to attend for a specific purpose. He was engaged in carrying out the task asked of him. The occupier of property is entitled to revoke an invitation and require the invitee to leave, thus making him a trespasser if he refuses. However, the occupier cannot argue the invitee became a trespasser when the purpose of revoking the invitation was to facilitate an assault on the invitee’s friend. Mr. Webers was acting under a right or authority conferred by law, which is referred to in s. 2(1) of the Trespass to Property Act, R.S.O. 1990, c. T.21. That right was the common law right to protect Ms Boys from assault when he reasonably thought she was going to be “severely hurt”. He was not a trespasser.

[57] A most unfortunate aspect, of many, is that these tragic events could have been so easily avoided. If Dr. Babey had taken the time to explain his concerns for Ms Boys’ health, that the hospital attendance was for an assessment only, that it was time-limited and that Ms Boys would not be required to take medication without her consent, perhaps the understanding of what lay ahead would have brought acceptance by her and Mr. Webers. If the hospital personnel—Dr. Look-Hong, Ms Sweigard, the officer in charge and possibly others—had followed the Mental Health Act in serving the Form 42, or at least explaining its contents, again, particularly that the detention was time-limited and that she had the right to counsel, the outcome may have been different. If the, staff had respected the absolute right of Ms Boys, a competent person, to refuse treatment and had not become impatient, the necessity for restraints may not even have been contemplated. If they had permitted Mr. Webers to complete the job they had asked him to do, the ensuing events would probably have not occurred.

[58] In the result, three persons were physically injured, one severely and probably permanently. A woman has been traumatized and her Charter and civil rights disregarded. And a productive member of society has endured the vagaries, expense and vicissitudes of our criminal justice system. However, it is now over for Henry Webers. Sir, I find you not guilty of all the counts before this court.

Accused acquitted.