In the recent decision rendered in J.M. (Re),[1] the Ontario Consent and Capacity Board provided an important reminder that the Superior Court of Justice is the correct venue for Power of Attorney disputes.
Consent and Capacity Board Decision
Background
J.M. (Re) concerned the requisite decisional capacity of JM, an elderly man with two children: FM and LC. JM was admitted to a care facility on the consent of his son, FM, who was his attorney for personal care pursuant to a Power of Attorney for Personal Care dated November 27, 2014 (the “POAPC”).[2]
JM applied to the Consent and Capacity Board (“CCB”) to review a finding made by Ontario Health at Home that he was incapable of making his own decisions regarding admission to a care facility. The procedure to review a finding in this regard is found in section 50(1) of the Health Care Consent Act (“HCCA”).[3]
LC applied to the CCB with a “Form C” application (pursuant to section 51(2) of the HCCA) seeking to be appointed as JM’s representative for decisions relating to admission to a care facility. She disagreed with the decision made by her brother, FM.[4]
The CCB flagged an issue from the start: due to the existence of the POAPC the tribunal was precluded from appointing LC as representative for JM. LC argued that the execution of the POAPC was flawed and it ought to be declared invalid.[5]
Threshold Issue
At the hearing, the central threshold issue for the CCB was whether it had jurisdiction or authority to invalidate or disregard a POAPC that appears, on its face, to be a valid instrument. The CCB ultimately concluded it did not have the requisite authority to do so.[6]
First, the CCB noted that the POAPC was granted in accordance with the statutory formalities for execution pursuant to the Substitute Decisions Act (“SDA”).[7] It was signed by JM, in the presence of two witnesses and even notarised by a notary public in Ontario. There were no technical deficiencies in its execution.[8]
At paragraph IV the POAPC specifically referred to JM’s wish “to remain in my residence for as long as the same is medically and practically possible. I do not wish to be put in a Nursing Home unless there is no alternative type of care that is practical in the circumstances.” It was evident that the POAPC was intended to cover decisions regarding admission to a care facility.[9]
LC alleged that FM had breached the condition expressed in JM’s POAPC and therefore ought to be replaced as JM’s substitute decision-maker. Therefore, LC had applied to be appointed as JM’s representative. LC also alleged that JM was unduly influenced by FM at the time the POAPC was signed and, due to language and cognitive barriers, was not fully aware of what he was signing. Furthermore, LC suggested that the notary who arranged the signing of the POAPC was in breach of her professional code of conduct. For all these reasons, LC urged the CCB to invalidate or disregard the POAPC.[10]
CCB lacks inherent jurisdiction
The CCB began by outlining the following procedural principles of its Board as a tribunal:
It is a foundational principle of our legal system in Ontario that administrative tribunals like the Board lack inherent jurisdiction to settle any kind of dispute among parties. Such inherent jurisdiction belongs only to the courts. In contrast, tribunals are restricted to the decision-making domains conferred on them explicitly by statute. This principle is recognized in s. 3 of the Statutory Powers Procedures Act which states (in part): “…this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature….”.[11] [emphasis added]
For Power of Attorney for personal care disputes, the SDA confirms that the court (specifically the Superior Court of Justice) is the appropriate forum to bring any dispute: this regard, section 68 of the Act is clear:
Directions from court
68 (1) If an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney.[12]
The CCB confirmed that its own enabling legislation is the HCCA, the same statute that creates the framework for bringing a Form C application. There is no provision within the HCCA (or any other statute) that explicitly grants the CCB the requisite power or authority to revoke a POAPC or question its validity if the technical signing requirements appear to be met.[13]
Further still, the CCB confirmed it had no authority to question whether the grantor of a POAPC possessed the requisite capacity to grant the power of attorney for personal care at the time it was granted or explore the validity of a POAPC for any other reason like duress, fraud, undue influence. Rather, the CCB is explicitly given authority to review findings of incapacity for treatment, admission to care and personal assistance services (HCCA) and for incapacity to manage property (SDA), but not to review capacity to grant a power of attorney, which is a very separate domain of capacity. The Board has no specialized expertise in this domain.[14]
Concluding Comments
The CCB provides a helpful reminder of the appropriate venue to determine Power of Attorney and related capacity disputes. Litigation and disputes concerning decisional capacity are becoming increasingly common and its being dealt with in many areas of law including at specialised tribunals.
As such, it is important remember that in Ontario, specialised tribunals are neither legally empowered nor equipped to assess the validity of Powers of Attorney. The Ontario legislature is clear that these are matters are properly brought before the courts.
—
[1] J.M. (Re), 2026 CanLII 52195 (ON CCB) (“J.M. (Re)”)
[2] J.M. (Re) at para 1.
[3] J.M. (Re) at para 2; Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, section 50(1).
[4] J.M. (Re) at para 3.
[5] J.M. (Re) at para 4.
[6] J.M. (Re) at para 25.
[7] Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[8] J.M. (Re) at para 9.
[9] J.M. (Re) at para 10.
[10] J.M. (Re) at para 12.
[11] J.M. (Re) at para 15.
[12] SDA at section 68(1).
[13] J.M. (Re) at para 17.
[14] J.M. (Re) at paras 21 – 23.
Written by: Oliver O'Brien
Posted on: June 30, 2026
Categories: Commentary, WEL Newsletter
In the recent decision rendered in J.M. (Re),[1] the Ontario Consent and Capacity Board provided an important reminder that the Superior Court of Justice is the correct venue for Power of Attorney disputes.
Consent and Capacity Board Decision
Background
J.M. (Re) concerned the requisite decisional capacity of JM, an elderly man with two children: FM and LC. JM was admitted to a care facility on the consent of his son, FM, who was his attorney for personal care pursuant to a Power of Attorney for Personal Care dated November 27, 2014 (the “POAPC”).[2]
JM applied to the Consent and Capacity Board (“CCB”) to review a finding made by Ontario Health at Home that he was incapable of making his own decisions regarding admission to a care facility. The procedure to review a finding in this regard is found in section 50(1) of the Health Care Consent Act (“HCCA”).[3]
LC applied to the CCB with a “Form C” application (pursuant to section 51(2) of the HCCA) seeking to be appointed as JM’s representative for decisions relating to admission to a care facility. She disagreed with the decision made by her brother, FM.[4]
The CCB flagged an issue from the start: due to the existence of the POAPC the tribunal was precluded from appointing LC as representative for JM. LC argued that the execution of the POAPC was flawed and it ought to be declared invalid.[5]
Threshold Issue
At the hearing, the central threshold issue for the CCB was whether it had jurisdiction or authority to invalidate or disregard a POAPC that appears, on its face, to be a valid instrument. The CCB ultimately concluded it did not have the requisite authority to do so.[6]
First, the CCB noted that the POAPC was granted in accordance with the statutory formalities for execution pursuant to the Substitute Decisions Act (“SDA”).[7] It was signed by JM, in the presence of two witnesses and even notarised by a notary public in Ontario. There were no technical deficiencies in its execution.[8]
At paragraph IV the POAPC specifically referred to JM’s wish “to remain in my residence for as long as the same is medically and practically possible. I do not wish to be put in a Nursing Home unless there is no alternative type of care that is practical in the circumstances.” It was evident that the POAPC was intended to cover decisions regarding admission to a care facility.[9]
LC alleged that FM had breached the condition expressed in JM’s POAPC and therefore ought to be replaced as JM’s substitute decision-maker. Therefore, LC had applied to be appointed as JM’s representative. LC also alleged that JM was unduly influenced by FM at the time the POAPC was signed and, due to language and cognitive barriers, was not fully aware of what he was signing. Furthermore, LC suggested that the notary who arranged the signing of the POAPC was in breach of her professional code of conduct. For all these reasons, LC urged the CCB to invalidate or disregard the POAPC.[10]
CCB lacks inherent jurisdiction
The CCB began by outlining the following procedural principles of its Board as a tribunal:
It is a foundational principle of our legal system in Ontario that administrative tribunals like the Board lack inherent jurisdiction to settle any kind of dispute among parties. Such inherent jurisdiction belongs only to the courts. In contrast, tribunals are restricted to the decision-making domains conferred on them explicitly by statute. This principle is recognized in s. 3 of the Statutory Powers Procedures Act which states (in part): “…this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature….”.[11] [emphasis added]
For Power of Attorney for personal care disputes, the SDA confirms that the court (specifically the Superior Court of Justice) is the appropriate forum to bring any dispute: this regard, section 68 of the Act is clear:
Directions from court
68 (1) If an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney.[12]
The CCB confirmed that its own enabling legislation is the HCCA, the same statute that creates the framework for bringing a Form C application. There is no provision within the HCCA (or any other statute) that explicitly grants the CCB the requisite power or authority to revoke a POAPC or question its validity if the technical signing requirements appear to be met.[13]
Further still, the CCB confirmed it had no authority to question whether the grantor of a POAPC possessed the requisite capacity to grant the power of attorney for personal care at the time it was granted or explore the validity of a POAPC for any other reason like duress, fraud, undue influence. Rather, the CCB is explicitly given authority to review findings of incapacity for treatment, admission to care and personal assistance services (HCCA) and for incapacity to manage property (SDA), but not to review capacity to grant a power of attorney, which is a very separate domain of capacity. The Board has no specialized expertise in this domain.[14]
Concluding Comments
The CCB provides a helpful reminder of the appropriate venue to determine Power of Attorney and related capacity disputes. Litigation and disputes concerning decisional capacity are becoming increasingly common and its being dealt with in many areas of law including at specialised tribunals.
As such, it is important remember that in Ontario, specialised tribunals are neither legally empowered nor equipped to assess the validity of Powers of Attorney. The Ontario legislature is clear that these are matters are properly brought before the courts.
—
[1] J.M. (Re), 2026 CanLII 52195 (ON CCB) (“J.M. (Re)”)
[2] J.M. (Re) at para 1.
[3] J.M. (Re) at para 2; Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, section 50(1).
[4] J.M. (Re) at para 3.
[5] J.M. (Re) at para 4.
[6] J.M. (Re) at para 25.
[7] Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[8] J.M. (Re) at para 9.
[9] J.M. (Re) at para 10.
[10] J.M. (Re) at para 12.
[11] J.M. (Re) at para 15.
[12] SDA at section 68(1).
[13] J.M. (Re) at para 17.
[14] J.M. (Re) at paras 21 – 23.
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