David Garner quoted in The Lawyer’s Daily on his recent appearance at the B.C. Court of Appeal in a case challenging the mental capacity of an adult.

A recent B.C. Court of Appeal decision on competency highlights the need for changes to provincial law. The appeal arises from an order by the Honorable Mr. Justice Nigel Kent of the Supreme Court of British Columbia to consolidate two proceedings. The judge described that the purpose of the consolidation was to allow family members to challenge the mental capacity of an adult by allowing them document disclosure, examinations for discovery and the imposition of medical examinations upon the adult under the Rules of Court. The B.C. Court of Appeal held that the lower Court overreached by consolidating the two separate proceedings and that procedures under the Rules of Court were not available for use to investigate competency in the place of the processes set out in the Patients Property Act of B.C.  The case was sent back to B.C. Supreme Court for disposition on a proper basis, with the consolidation order overturned.  Both Courts noted a gap exists in the Patients Property Act for cases similar to this one, but the Court of Appeal agreed the course adopted here by the Supreme Court ruling was not available to fill that gap.  In particular, none of the parties to the case had asked for the specific remedy imposed by the lower Court.

David Garner of Alexander Holborn Beaudin + Lang LLP, who represented the adult Appellant, said the Court of Appeal reached the right decision. He observed that most practitioners have run into situations where they perhaps haven’t found or thought of a solution to a problem which is then brought up by a judge during submissions.  He further notes, “That’s fine because then at least you have a chance to say let’s go away and look at that and see if there are any missing pieces we haven’t thought of, or say no, this isn’t going to work. But when a purported solution comes in between the time of close of submissions and delivery of judgment, with no opportunity to really put your two cents worth in, that’s difficult.”

You can read more about David’s role in this case which was featured in The Lawyer’s Daily here.

The case, Serban v. Serban, 2018 BCCA 166, can be found here.

David Garner, a partner in the firm, has over thirty years of litigation experience and has appeared at all levels of court in British Columbia as well as in the Yukon and Alberta.


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