ASB (RE)

The parents brought competing Applications under the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 (“AGTA”) in respect of their now-adult child, who lacked capacity to make personal and financial decisions. Each sought appointment as sole guardian and trustee. The AGTA Applications were commenced on the prescribed forms under the AGTA Regulation, which Rule 3.2(1)(c) permits as a proper mode of proceeding.

Justice Marion addressed a threshold procedural question: whether to determine the guardianship and trusteeship Applications summarily or to direct a Trial or viva voce process. Although the AGTA and its Regulation do not constitute a complete procedural code for hearings, the Court held that the legislative scheme contemplates summary and expeditious determination in the ordinary case. At the same time, drawing on Section 101(1) of the AGTA Regulation and the Rules (including Rules 3.2(6) and 1.4(1)), the Court confirmed it retains discretion to require a Trial-like process where there is a substantial factual dispute that cannot fairly be resolved on Affidavit evidence.

To harmonize the AGTA process with the Rules, Marion J. adopted the Summary Judgment framework for Originating Applications: the test set out in Hryniak v Mauldin, 2014 SCC 7 and Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49, adapted to the Originating Application context. The inquiry is whether it is possible to fairly resolve the dispute on a summary basis and whether the Court has sufficient confidence in the record to do so, recognizing that Originating Applications typically proceed without pleadings, discovery, or Questioning unless otherwise ordered. That procedural posture informs, but does not preclude, a fair summary disposition where the material facts are not genuinely in dispute and the evidentiary record is adequate.

Applying those principles, Justice Marion found no material factual disputes on the Affidavits before the Court. Both parties had ample opportunity to file evidence; Questioning could have been pursued but was not; and when offered an opportunity to seek leave to file additional evidence, one party declined. In these circumstances, the Court concluded it could fairly and confidently decide the AGTA Applications summarily, which was also the most timely and cost-effective path consistent with the Rules and AGTA’s objectives.