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

(Ontario) (Civil) (By Leave)


Charter of Rights — Right to equality — Fundamental justice — Status of persons — Capacity — Dispute between siblings regarding who should have power to make personal care decisions on behalf of their elderly mother — Whether the motions judge erred in making findings which negate the presumption of capacity in the Substitute Decisions Act, 1992, S.O. 1992, c. 30, particularly for individuals suffering from “expressive aphasia,” and infringes the ss. 7 and 15 Charter rights of vulnerable individuals who rely on that presumption and decline to participate in a capacity assessment when granting a Power of Attorney — Whether the motions judge erred in misinterpreting the test for capacity, thereby infringing a party's s. 7 and s. 15 Charter rights, and setting a precedent which will infringe the rights of similarly vulnerable people — Whether the motions judge erred in drawing an adverse inference on an improper basis — Whether adverse inference has set a precedent which will lead courts to reconsider the test set out in Parris v. Laidley, 2012 ONCA 755 — Whether the motion judge erred in reversing in the SDA on a speculative basis as to the impact of expressive aphasia on cognition, which could infringe or deny the s. 7 and s. 15 Charter rights of aphasics


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The applicant and respondent are brother and sister who are involved in a dispute over their elderly mother’s personal care. Each asserted the right to have exclusive decision-making authority. Their mother has resided in a long term care facility for 17 years and has full-time assistance for all of her personal care needs. In 2018, the applicant prepared a Power of Attorney for Personal Care, appointing himself as the sole attorney, which was signed by the mother, without the knowledge of the respondent. This power of attorney came to light shortly after the pandemic hit and the applicant attempted to exercise his authority under it. The respondent challenged its validity. The motion judge held that the power of attorney was of no force and effect and was void ab initio. She further declared that the parties would have joint decision-making authority for their mother’s personal care. This decision was upheld on appeal.

Lower Court Rulings

August 12, 2020
Ontario Superior Court of Justice

03-239/19, 2020 ONSC 4667
Declaration that 2018 powers of attorney for personal care and for property executed by Mrs. Lockhart of no force and effect; declaration that applicant and respondent authorized to make personal care and treatment decisions jointly
May 19, 2021
Court of Appeal for Ontario

2021 ONCA 329, C68651
Applicant’s appeal dismissed