The Applicant, Dale Melin (“Dale”) sought, among other remedies, to terminate his son, Brad Melin’s (“Brad”), appointment as Attorney for him pursuant to an Enduring Power of Attorney and to remove Brad’s role as a director and officer with signing authority of the corporation 324153 Alberta Ltd (“324”). Brad cross-applied seeking, among other remedies, an Order directing that Dale attend for a complete geriatric mental assessment to determine his capacity to make determinations with respect to his legal and business affairs.

Dale was 74 years old with prevailing medical issues. He owned and operated 324 as a franchise auto body shop, CARSTAR, in Leduc, Alberta. Brad had worked for 324 for approximately 20 years. Justice Feehan reviewed the factual and procedural history between the parties and noted that Brad, while holding Power of Attorney for Dale, had acted in ways which constituted oppression, unfairness and unfair disregard for Dale’s interests.

Nonetheless, Brad argued that the Court has jurisdiction to order a capacity assessment under various legislation and specifically pursuant to Rule 5.41. Dale argued responsively that the Court does not have jurisdiction to order a capacity assessment under any of those provisions and that the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 provides the only mechanism by which the Court may order a person to undergo a capacity assessment.

In assessing these arguments, Feehan J. found that, pursuant to Rule 5.41(2)(a) and Rule 5.41(4) respectively and on Application, the Court may “in an action in which the mental...condition of a person is at issue...order that a person submit to a mental...medical examination”, and if the Plaintiff in an Action has been the subject of a medical examination by a health care professional of his choice, “the Court may order that the plaintiff be the subject of a medical examination by one or more health professionals of the defendant’s choice”.

Justice Feehan determined that an adult is presumed to have the capacity to make decisions until the contrary is determined. While His Lordship accepted that there are varying levels of capacity, it is not necessary for the donor of a Power of Attorney to be capable of otherwise managing his or her property and affairs on a regular basis in order to have the capacity to make or revoke a Power of Attorney. What is required is that the donor understands the nature and effect of their actions to effect or revoke that document.

Justice Feehan concluded by finding that the Court does have authority and jurisdiction to issue a capacity assessment pursuant to various Acts, including Rule 5.41, and has inherent jurisdiction and parens patriae jurisdiction. Notwithstanding the foregoing, His Lordship found that, under the circumstances, the Court should not and would not exercise its jurisdiction to order a capacity assessment of Dale at this time.