Melin v Melin, 2018 ABQB 1056

Court of Queen’s Bench of Alberta Citation: Melin v Melin, 2018 ABQB 1056 Date: 20181221 Docket: 1803 14669 Registry: Edmonton Between: Dale Melin, by his Interim Litigation Representative, Teri Trueman Plaintiff (Applicant) - and - Brad Melin Defendant (Cross-Applicant) - and - Larissa Melin, Jordan Melin, Nicholas Melin, Shane Parker, Darryl Dubrule, Parker Dubrule and 324153 Alberta Ltd. Defendants (Not Parties to this Application)

_______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.P. Feehan _______________________________________________________ I. Overview [ 1 ] Dale Melin seeks, among other remedies, to terminate Brad Melin’s appointment as Attorney for him pursuant to an Enduring Power of Attorney dated February 2, 2018, and to remove Brad Melin as a director, officer and signing authority of 324153 Alberta Ltd (324).

Brad Melin cross-applies, seeking among other remedies an order directing Dale Melin to attend for a complete geriatric mental assessment to determine his capacity to make determinations with respect to his legal and business affairs. II. Identification of the Parties [ 2 ] Dale Melin is 74 years old, has a grade 10 education, and suffers from multiple medical issues including diabetes, advanced pulmonary fibrosis requiring him to be on oxygen 24 hours per day, loss of vision in one eye, a compression fracture of his T12 vertebra, a history of transient psychosis, strokes, myocardial infarction, and depression.

He is confined to a wheelchair. Of importance, his mental capacity is in issue and has been the subject of multiple conflicting capacity assessments. [ 3 ] Dale Melin and his wife, Judi Melin, who died in 2014, owned and operated 324 originally as Northern Collision, and in May 2017 Dale Melin established through 324 a franchise auto body shop, CARSTAR, in Leduc, Alberta. [ 4 ] Dale and Judi Melin had four children: Brad Melin, Teri Trueman, Stephanie Kleine and Conwae Melin. [ 5 ] Brad Melin is married to Larissa Melin. Brad has worked for Northern Collision and CARSTAR for approximately 20 years.

At Northern Collision he worked at car detailing, estimating, ordering parts and body work, eventually rising to the position of general manager. He has been general manager for CARSTAR since it commenced business in May 2017.

Larissa Melin was also active with CARSTAR, assisting with accounting, driving and picking up cars for customers. [ 6 ] Brad and Larissa Melin have two sons, Jordan and Nicholas, who work for CARSTAR: Jordan as an estimator and parts orderer, and Jordan as a labourer and driver. [ 7 ] Teri Trueman was the bookkeeper and accountant for Northern Collision and subsequently CARSTAR until February 2018, when she was either terminated from her employment by her father, Dale Melin, or quit.

Until that date, Teri Trueman, together with Dale Melin, had authority to sign all cheques and review bank statements for the business. III. Issues [ 8 ] The issues are: 1. Should Brad Melin’s appointment as an Attorney for Dale Melin pursuant to an Enduring Power of Attorney dated February 2, 2018 be terminated? 2. Should Brad Melin’s position as a director, officer and signing authority of 324 be terminated? 3. Should Dale Melin be required to attend a complete geriatric mental assessment to determine his capacity to make decisions with respect to his legal and business affairs? IV.

Recent Relevant Litigation History [ 9 ] The Statement of Claim in this matter was filed by Dale Melin on July 24, 2018, and Brad Melin’s application seeking a capacity assessment of Dale was filed July 26, 2018. [ 10 ] On August 17, 2018, Kendall J ordered Brad Melin to bring in and pass accounts in respect of all transactions entered into by him under the February 2, 2018 Enduring Power of Attorney in his personal capacity between April 12 and June 30, 2018, and on behalf of 324 between April 12 and July 31, 2018.

Ongoing accounting was ordered to be provided monthly and all accounting was to be accompanied by supporting documentation. [ 11 ] On August 28, 2018, Nielsen J ordered, among other things, that: 1. Brad Melin be removed as the sole shareholder and director of 324;

2. Dale Melin and Teri Trueman be appointed as joint shareholders and directors of the company; 3.

Larissa Melin be removed as a signatory from banking and financial accounts of 324, and Teri Trueman and Brad Melin be appointed as joint authorized and dual signatories on banking and financial accounts of 324; 4. all credit card transactions payable by 324 require prior written approval from both Teri Trueman and Brad Melin; and 5. the salary payable to Brad and Larissa Melin, combined, not exceed $12,000 gross per month. [ 12 ] On September 18, 2018, Schulz M appointed Teri Trueman as Dale Melin’s interim legal representative until the earlier of the dismissal of this capacity application or a finding that Dale Melin has capacity. [ 13 ] On October 25, 2018, Kenny J ordered, among other things, that Teri Trueman be given unfettered access to all 324 business expenses, ATB Financial statements, internal financial, administration and management records, accounts, entries and reports in QuickBooks and Repair Centre software, passwords, passcodes and security codes, giving her full access as a director of 324 and Attorney for Dale Melin.

Kenny J also ordered that Larissa Melin cease to be an employee of and surrender all property belonging to 324. She provided Teri Trueman with a monthly salary of $2,500, ordered Brad Melin to repay $6,000 to 324 that he had directed be paid to legal firms for his defence in this litigation, and repay to 324 $21,014.06 with respect to personal credit card debts paid through 324. Additionally, Kenny J determined that any hiring or termination of employees of 324 be approved in writing by both Teri Trueman and Brad Melin. V.

Facts Relevant to the Issues of Dismissal of Brad Melin as Attorney, Director, Officer and Signing Authority [ 14 ] In 2011, Dale Melin believed he had caught Brad Melin stealing from 324, including selling equipment without authorization, and he fired him, only allowing him to return in late 2014 after the death of Judi Melin. [ 15 ] In late 2014, following his wife’s death, Dale Melin prepared a Will with his legal counsel, Mr. Kuckertz.

I have not been advised of the particulars of this 2014 Will. [ 16 ] For the purpose of establishing the CARSTAR business in May 2017, Dale Melin injected more than $500,000 cash into 324, reflected in part by a shareholders loan in the amount of $461,374.

Despite that, the audited financial statements of 324 for 2017 showed a loss from operations of $472,102. [ 17 ] On February 2, 2018, Dale Melin, accompanied by Brad, Larissa, and Nicholas Melin, attended at the legal offices of Parker Dubrule where Dale Melin signed a new Will, Personal Directive, and Enduring Power of Attorney. [ 18 ] The February 2, 2018 Will left all of Dale Melin’s shares in 324 to Brad Melin upon Dale’s death.

The Enduring Power of Attorney appointed Brad Melin and Teri Trueman jointly as Attorneys, without compensation, in the event Dale Melin was determined by two medical professionals to be mentally incapable of making reasoned judgments in respect of his estate.

The Personal Directive appointed Brad Melin, Teri Trueman, Stephanie Kleine and Conwae Melin jointly as Agents to make personal decisions with respect to matters of a non-financial nature, including health care, upon determination that Dale Melin lacked capacity to make such decisions. [ 19 ] On February 12, 2018, Teri Trueman left the employ of 324; she says she was fired and Dale Melin maintains she quit.

Brad Melin hired an accounting firm, Keiller & Associates, to complete the T4’s due at the end of February, make GST remissions overdue since October 2017, complete invoicing that had not been sent out for accounts receivable of approximately $130,000, and continue accounting services for 324. [ 20 ] In early April 2018, Larissa Melin advised Parker Dubrule, without Teri Trueman’s knowledge, that Teri wished to renounce her role as Dale’s Attorney under the February, 2018 Enduring Power of Attorney.

Parker Dubrule prepared a form of renunciation for Teri’s signature, which Teri refused to sign. [ 21 ] In late April and early May 2018, Brad Melin and Parker Dubrule began discussions with ATB Financial about restructuring 324 to enable Brad to operate the business while Dale was subject to the Declaration of Incapacity, but on April 30, 2018 ATB Financial rejected the February 2, 2018 Enduring Power of Attorney as the legal basis for Brad Melin’s exercise of control over 324’s facilities with ATB Financial. [ 22 ] After April 23, 2018, ATB Financial cancelled 324’s operating line of credit which had been placed by Dale Melin.

Brad Melin paid off the fully extended $250,000 line of credit, and there is currently $100,000 in the corporate account. Brad Melin entered into three financing agreements: a $277,536.99 Canada Small Business Financing Act loan, an operating line of credit with a maximum balance of $95,000, and an ATB Financial MasterCard with a $25,000 limit, for which Brad Melin signed personal guarantees, although his personal exposure on the line of credit was limited to $60,500. [ 23 ] Also after April 23, 2018, Brad Melin began paying himself, Larissa Melin, Jordan Melin and Nicholas Melin significant salaries.

Jordan Melin received an annual salary of approximately $72,000, although industry salaries for Jordan’s role begin at $48,000. Nicholas Melin, as a casual labourer, was paid a monthly salary equivalent to full-time hours at $18 per hour whether he was working or not. Between February and July 2018, 324 paid salaries to Brad and Larissa Melin, jointly, of $113,541.58, to Jordan Melin of $29,816.17, and to Nicholas Melin of $13,125.62. [ 24 ] On May 6, 2018, Brad Melin, acting in his capacity as one of the joint Attorneys for Dale Melin, appointed himself as the sole director, shareholder and officer of 324.

The corporate resolution of this date indicates that he holds the shares in constructive trust for

Dale Melin. In addition, Brad Melin, through 324, entered into a new vehicle financing arrangement with Ford Credit Canada in May 2018 for a new Ford F-150 pickup truck for himself, and in June 2018, a new vehicle financing contract with Honda Canada for a new Honda CR-V. [ 25 ] On May 16, 2018, Brad Melin sold a 1977 Chevy Toterhome paid for by 324 for which 324 had been compensated by Dale Melin personally. [ 26 ] Brad Melin caused 324 to pay $21,014.06 in personal credit card debt incurred by Larissa Melin, himself, and their family members, which he has now promised to repay by January 31, 2019.

Dale Melin alleges Brad Melin also used 324’s funds to pay for almost $9,000 of new appliances for Brad and Larissa Melin’s son and daughter-in-law, in Kelowna, BC. [ 27 ] On May 22, 2018, Dale Melin reported to his family physician, Dr. Lin, that he believed Brad Melin had stolen $100,000 from him. [ 28 ] In June 2018, ATB Financial restored Dale Melin’s control over his personal accounts based upon a May 22, 2018 letter from Dr. Riediger and June 11, 2018 letter from Dr.

Lin (both reviewed in the facts below with respect to Dale Melin’s mental capacity). [ 29 ] After the August 28, 2018 Order of Nielsen J, Teri Trueman was initially refused access to the premises or to have an office at 324, was advised she could only review records for 324 if she went through legal counsel, and was refused access to deposit books for 324, until the Order of Kenny J of October 25, 2018. [ 30 ] On September 10, 2018, Brad Melin unilaterally terminated the employment of Garrit Kleine, Stephanie’s son, effective August 30, 2018, and he hired another employee, Tanner Schlemp, who ceased working for 324 on November 16, 2018. [ 31 ] As of November 14, 2018, 324 has GST arrears of $35,517.39 and no payroll remittances have been submitted for August or October 2018.

VI. Facts Relevant to the Issue of Dale Melin’s Capacity [ 32 ] On February 5, 2018, days after the execution of the February 2, 2018 Will, Personal Directive and Enduring Power of Attorney, Brad and Larissa Melin took Dale Melin to see his new physician, Dr. Lin, expressing a concern about Dale’s desire to fly to the United States without health insurance, given his fragile state of health and his need for 24 hour oxygen. [ 33 ] Later, on February 13, 2018, Brad Melin again accompanied Dale Melin to an appointment with Dr. Lin, at which time Dr. Lin referred Dale to Dr.

Trevor Byers, a geriatrician, for assessment of Dale’s mental capacity. Dr. Lin’s notes for this date, however, indicate that for the past three weeks the “patient has been stable” and “From my interview today, he is competent in making his own decisions. He is aware of the risks of going to the States.” [ 34 ] On February 28, 2018, Brad Melin again attended with Dale Melin to see Dr. Lin. On that date, Dale was quite ill with pulmonary fibrosis. Dr. Lin told Dale he needed to be admitted to hospital and that he might die at home.

Dale declined to be admitted. [ 35 ] At an unspecified date in April 2018, Dale Melin’s respiratory therapist, Janet Osmond, expressed concerns to Larissa Melin about Dale’s capacity and said she would write to Dr. Lin in that regard. [ 36 ] On April 3, 2018, Dale Melin presented to the Leduc Community Hospital Emergency Ward suffering from an “altered level of consciousness secondary to opioid toxicity” resulting from his overuse of hydromorphone.

Dale merely attributed his problem to dehydration. [ 37 ] On the following day, Stephanie Kleine, accompanied by her daughter Sydney Kleine, a licensed practical nurse, and Larissa Melin, attended with Dale Melin at the appointment with Dr. Byers, as arranged by Dr. Lin. On that date, Stephanie completed a Declaration of Incapacity to Make Decisions About a Personal Matter to be used when a person designated in a Personal Directive consults with a physician or psychologist.

As to Dale Melin’s capacity to make personal, non-financial decisions, Stephanie Kleine said he suffered from “cognitive decline and evidence of poor judgment,” poor memory, early dementia, and was unable to explain possible problems with booking an international trip with lung disease, high oxygen, and no insurance. She said Dale denied he had any problems, and said he lacked mental capacity in the areas of health care, accommodation, with whom to live and associate, and legal matters. [ 38 ] On April 8, 2018, Dr. Byers sent a letter to Dr. Lin.

He indicated that Dale Melin had a history of non-compliance with medications, was inappropriately using Dilaudid, and had been taken to Emergency the day before because he had collapsed due to over- use of medication. Dr. Byers said he found Dale cooperative, but agitated, and unhappy that his capacity was being questioned. Dr. Byers’ impression was that Dale was a complicated patient with significant medical illnesses. He said Dale had reported to him that Teri Trueman had taken advantage of him financially in the past. [ 39 ] Dr.

Byers was of the opinion that Dale Melin “has cognitive problems,” had memory issues for the past few years, suffered from impaired judgment and lack of insight, had become more hostile and disinhibited, although that may have been an augmentation of his underlying personality, and was possibly suffering from underlying dementia. He said Dilaudid over-use may be playing a role, but he did not “think it was the whole explanation.” He concluded: “I think Dale has...neither insight nor capacity to make informed decisions about his health or finances.” [ 40 ] Dr.

Byers said Dale should not be driving a car and reported that Dale was not happy with him by the end of the appointment. [ 41 ] On April 11, 2018, Dr. Byers signed a Declaration of Medical Doctor certifying that Dale Melin was mentally incapable of making reasoned judgments with respect to matters pertaining to his estate and that the contingency specified in the February 2018 Enduring Power of Attorney had occurred.

[ 42 ] On April 12, 2018, Dr. Lin met with Dale Melin in the presence of Stephanie Kleine. Following a discussion about Dale’s vertebra fracture and opioid use, Dr. Lin concluded that he had “capacity issues” and said: “I agree with Dr. Byers. As per discussion with daughter today, I signed the [Declaration of Incapacity] papers with second physician signature,” thereby bringing the February 2018 Enduring Power of Attorney into effect. [ 43 ] On April 23, 2018, Dale Melin telephoned ATB Financial and said he was concerned about Brad Melin’s mismanagement of 324 and its funds.

He was overheard by Jordan Melin and a confrontation occurred. The RCMP was called, Larissa or Brad Melin showed the attending officers the Declaration of Incapacity, and Conwae Melin drove Dale home from the 324 premises. [ 44 ] A short time later, Conwae Melin took Dale Melin to Emergency at the Leduc Community Hospital because he was complaining of chest pain. Dale saw Dr. Lin at the hospital and advised that his family had pushed him to the ground, stolen his oxygen, and was stealing his money. Dr. Lin believed Dale was telling the truth and began wondering if the capacity assessment needed to be reversed.

He telephoned Dr. Byers at home to discuss his concerns. Dr. Byers opined that if a second opinion on capacity was requested, it would be better if another physician provided it, perhaps through Regional Geriatrics in Edmonton. Dr. Lin also reported the alleged attack to the RCMP, and noted a Type 2 myocardial infarction and elder abuse in the April 23, 2018 Leduc Community Hospital Emergency Room record. [ 45 ] On April 30 and May 7, 2018, at his own request, Dale Melin met with Dr.

Al Riediger, psychologist, for a further capacity assessment, and on May 15, 2018, attended for brief neuropsychological testing. [ 46 ] Dr. Riediger consulted with Teri Trueman and Stephanie Kleine, and reviewed the previous capacity opinions of Dr. Byers and Dr.

Lin, the Enduring Power of Attorney and Personal Directive. [ 47 ] He concluded in correspondence of May 22, 2018 that Dale Melin exhibited denial of his physical limitations, did not show evidence of perceptual abnormalities, delusions or thought disorders, was depressed, suffered moderate to severe impairment on tasks requiring planning, problem solving, and judgment, had cognitive ability ranging from well below average to low average, poor verbal skills, and difficulty with abstract reasoning.

He said many of these outcomes reflected Dale Melin’s pre-existing limited education, poor working memory, lack of attentional skills, deficits in cognitive ability, attention deficit disorder, impulsivity, and gregariousness. However, he said Dale Melin demonstrated average performances on fluid reasoning ability. [ 48 ] Dr. Riediger concluded: He is certainly not mentally incapacitated. He has the ability to make sound judgments but does require assistance in coming to sound conclusions....Mr.

Melin does have the ability to understand the information required for sound decisions and does with some assistance appreciate the implication of these decisions. [ 49 ] He recommended that Dale Melin have a “co-decision maker,” receive psychotherapy and group support, or in the alternative, appointment of a trustee independent of the family. [ 50 ] On June 5, 2018, Dale Melin executed a new Immediate Power of Attorney, appointing Teri Trueman and Stephanie Kleine as his joint Attorneys for compensation. [ 51 ] On June 11, 2018, Dr.

Lin conducted a family conference with Dale Melin, Teri Trueman and Stephanie Kleine. His clinical notes say: “In regards to Dale, I do believe his mental capacity has improved” but was “slightly depressed.” He said Dale “understands the situation he is in,” and agreed to some help with decision-making. Although he said Dale was suffering “hallucinations or delusions,” that note is completely contrary to every other comment on this date, and in light of the otherwise positive observations about his capacity, I give little weight to this observation. [ 52 ] In his June 11, 2018 correspondence, Dr.

Lin said that on April 12, 2018, Dale Melin had not seemed to fully appreciate or understand his decisions or their consequences, had suffered an altered level of consciousness secondary to opioid toxicity, did not understand the complexities of travelling to the United States with his high oxygen requirements, and he had received multiple concerns from family members regarding Dale Melin’s decision-making skills and driving abilities. [ 53 ] However, Dr.

Lin said that since April 12, 2018, Dale Melin’s mental capacity had improved “with every visit,” he became less disinhibited, better able to understand the consequences of his actions, and “appears to have increased his capacity.” [ 54 ] Dr.

Lin concluded that Dale Melin “certainly is mentally competent to make capable decisions and instruct legal consent [sic] with assistance,” he is “able to make reasonable judgments in respect of matter [sic] relating to all or any part of his estate with assistance from a co-decision maker,” and “does have mental capacity to execute a new Will, a new Enduring Power of Attorney and/or a new Personal Directive, with assistance from a co-decision maker.” [ 55 ] During the course of the application, I was advised that Dale Melin had recently executed a new Will and a new Personal Directive, over which he claimed privilege, and I was not provided with a copy.

VII. Law Relevant to the Issues of Dismissal of Brad Melin as Director, Officer and Signing Authority [ 56 ] Dale Melin’s claim sounds primarily in oppression, an equitable corporate remedy that seeks to ensure fairness, justice and equity in the context at hand and in regard to the relationships at play ( BCE v 1976 Debentureholders , [2008] 3 SCR 560, 2008 SCC 69 at paras 58 , 59 & 71). It is inherently fact-specific ( BCE at paras 59, 62 & 71 ; and McGovern-Burke v Martineau , 2016 ABQB 514 at para 56 ).

[57] An application for oppression may be made by a “complainant,” defined as a security holder of a corporation or any of itsaffiliates, director or officer, former director or officer of a corporation or any of its affiliates, a creditor, or any other person who in thediscretion of the Court is a proper person to make an application (Business Corporations Act, RSA 2000, c B-9, s 239; the ABCA). [58] “Oppression” describes conduct that is coercive, abusive, or in bad faith. “Unfair prejudice” denotes a “less culpable state ofmind” that nevertheless has unfair consequences, and “unfair disregard” of interests extends the remedy to ignoring an interest as beingunimportant, all of which describe ways in which corporate actors may fail to meet the reasonable expectations of stakeholders (BCE atpara 67, McGovern-Burke at para 60). [59]

Section 122 of the ABCA sets out the duty of care of directors and officers: every director and officer must act honestly and ingood faith, with a view to the best interests of the corporation; exercise the care, diligence and skill that a reasonably prudent personwould exercise in comparable circumstances; and must comply with the Act, Regulations, articles, bylaws, and any UnanimousShareholders Agreement. [60] Directors and officers, however, will not be held to be in breach of their duty of care if they act prudently and on a reasonablyinformed basis at the time the impugned decisions are made (People’s Department Stores

(1992) Inc v Wise, 2004 SCC 68 paras 63-67). [61] Where oppressive conduct is made out, the Court may intervene. Sections 242(1) and (2) of the ABCA provide:

(1) A complainant may apply to the Court for an order under this section.

(2) If, on an application under subsection (1), the Court is satisfied that in respect of a corporation or any of its affiliates (

a) any act or omission of the corporation or any of its affiliates effects a result, (

b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or (

c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, theCourt may make an order to rectify the matters complained of. [62] The Court’s powers are delineated in s 242(3), and include allowing the Court to make an order restraining the conductsubject to complaint (sub (a)), an order appointing directors in place of or in addition to all or any of the directors then in office (sub (f)),and any interim or final order it thinks fit to rectify the matters subject to complaint (see Connelly v Connelly-McKinley Ltd, 2010ABQB 515, a decision of Clackson J, at para 12).

However, the removal of a director of a corporation is an exceptional remedy and onerarely exercised in corporate law. It should be imposed “most sparingly” and as “a measure of last resort” (Stelco Inc (Bankruptcy), Re,(2005), (ON CA), 75 OR (3d) 5 (Ont CA) at paras 51 & 55). [63] In R Floden Services Ltd v Solomon, 2015 ABQB 450, Renke J reviewed the relevant authorities, and set out the test fordetermining whether conduct is oppressive, unfairly prejudicial or unfairly disregards security holders’ interests at paras 28-29: The test has two elements, described in BCE Inc. at paras 68 and 56: (

a) does the evidence support a reasonable expectation asserted by the claimant? (

b) does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression,”“unfair prejudice” or “unfair disregard” of a relevant interest?

The claimant bears the burden of establishing the asserted expectation, the reasonableness of the expectation, and the violation of theexpectation by conduct that was oppressive or unfairly prejudicial or that unfairly disregarded a relevant interest: 1216808 Alberta Ltd.(Prairie Bailiff Services) v Devtex Ltd. at para 39; BCE Inc. at paras 119, 137. [64] To determine whether a stakeholder’s expectation is reasonable, the Court may consider “...general commercial practice; thenature of the corporation; the relationship between the parties; past practice; steps the claimant could have taken to protect itself;representations and agreements; and the fair resolution of conflicting interests between corporate stakeholders” (BCE at para 72). [65] Yamauchi J in McGovern-Burke restated the three important criteria to the finding of oppression.

First, whether oppression,unfair prejudice, or unfair disregarding has occurred is fact-specific. Second, the plaintiff has the onus to establish “reasonableexpectations;” but the Court must determine whether the defendants have complied with or met those reasonable expectations.

Third, theCourt need not find bad faith or want of probity; the focus is on effect, not motive, as the duty of the Court is to rectify the oppression(paras 56-58). [66] Yamauchi J warns, however, that not every unmet expectation gives rise to a claim, as the impugned conduct must amount to“oppression;” “unfair prejudice,” or “unfair disregard” of relevant interests (para 60). [67] Relief under s 242(3) is discretionary.

Wilson v Alharayeri, [2017] 1 SCR 1037, 2017 SCC 39 gives guidance as to remedies(at paras 26 and 27) (reference to CBCA equivalent sections): Section 241(3) thus gives a trial court broad discretion to “make any interim or final order it thinks fit,” before enumerating specificexamples of permissible orders. But this discretion is not limitless. It must be exercised within legal bounds, and, as a starting point, itmust be exercised within the bounds expressly delineated by the CBCA. Any order made under s. 241(3) exists solely to “rectify the matters complained of”, as provided by s. 241(2).

The purpose of theoppression remedy is therefore corrective: “. . . in seeking to redress inequities between private parties”, the oppression remedy seeks to

“apply a measure of corrective justice” (J. G. MacIntosh, “The Retrospectivity of the Oppression Remedy” (1987), 13 Can. Bus. L.J.219, at p. 225; see also Naneff v. Con-Crete Holdings Ltd. (1995), (ON CA), 23 O.R. (3d) 481 (C.A.) (“Naneff”);820099 Ontario Inc. v. Harold E. Ballard Ltd. (1991), 3 B.L.R. (2d) 113 (Ont. C.J. (Gen. Div.)) (“Ballard”), at p. 197).

In other words,an order made under s. 241(3) should go no further than necessary to correct the injustice or unfairness between the parties. [68] In Caron v Canadian Energy Inc, 2017 ABQB 767, Supplementary Reasons at 2017 ABQB 782, Graesser J said Business disputes or business decisions are at the root of many oppressive conduct claims. Courts are not in the business of tellingpeople how to run their businesses, what investments to make, or what opportunities to pursue or forego.

Courts are in the business oftelling directors, officers and shareholders what they cannot do, which is to unfairly disregard the legitimate interests of otherstakeholders (para 50). [69] As such, where oppressive conduct is made out, there is no impediment to the Court intervening in as minimal a way aspossible in the circumstances, to address the imbalance or the conduct subject of complaint. The ultimate test requires an assessment ofthe best interests of the corporation, its shareholders, directors and officers. It involves a balancing of competing interests (Caron at para51). VIII.

Law Relevant to the Issue of Dale Melin’s Capacity [70] The Powers of Attorney Act, RSA 2000, c P-20 provides that at the time of executing a Power of Attorney, the donor must bementally capable of understanding the nature and effect of that document, and it may only be revoked when the donor is mentallycapable of understanding the nature and effect of the revocation (ss 3 & 13(1)(a); see also Midtdal v Pohl, 2014 ABQB 646, a decision ofMoreau, J (as she then was) at para 90; Re K; Re F, [1988] 1 All ER 538 (Ch

D) at p 361(d); Perie v Perie, 2017 ABQB 104, a decisionof Hall J, at para 29).

The Court in Re K pointed out, however, that “it was not necessary for the donor to be capable of managing his orher property and affairs on a regular basis” to meet that criteria (at pp 362(j)-363(a)). (See also Calvert (Litigation Guardian of) vCalvert, (1997) (ON SC), 32 OR (3d) 281 at paras 52 & 57; Re Ohen, 2018 ONCA 65 at paras 79-84). [71] Brad Melin argues that the Court has jurisdiction to order a capacity assessment under s 9 of the Powers of Attorney Act, thegeneral and comprehensive jurisdiction granted to the Court under s 8 of the Judicature Act, RSA 2000, c P-20, and r 5.41 of the AlbertaRules of Court, AR 124/2010.

On the other hand, Dale Melin argues the Court does not have jurisdiction to order a capacity assessmentunder any of those provisions and the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 provides the only mechanism by whichthe Court may order a person to undergo a capacity assessment. [72]

Section 9 of the Powers of Attorney Act provides that an Attorney may apply for the opinion, advice, or a direction of theCourt on any matter respecting the management or administration of the donor’s property. [73]

Section 8 of the Judicature Act gives the Court jurisdiction to grant all remedies to any of the parties to which they may beentitled, so that, as far as possible, all matters and controversy between them may be determined and multiplicity of legal proceedingsavoided. [74] Rule 5.41 of the Alberta Rules of Court provides that on application, the Court may “in an action in which themental...condition of a person is at issue...order that a person submit to a mental...medical examination” (r 5.41(2)(a)), and if the plaintiffin an action has been the subject of a medical examination by a health care professional of his choice (in this case, Dr.

Riediger), “theCourt may order that the plaintiff be the subject of a medical examination by one or more health professionals of the defendant’s choice”(r 5.41(4)). [75] Dale Melin says it is not appropriate to rely upon those provisions because the Adult Guardianship and Trusteeship Act hasfully occupied the field, and no application has been made under that Act. [76]

Section 2 of that Act provides that an adult is presumed to have the capacity to make decisions until the contrary is determinedand the adult’s autonomy must be preserved by ensuring that the least restrictive and least intrusive form of assisted or substitutedecision-making that is likely to be effective is provided (s 2(a) & (c)). [77]

Section 1 of the Act defines “capacity” as the ability to understand the information that is relevant to a decision, to appreciatethe reasonably foreseeable consequences of the decision and the failure to make a decision.

Section 104 permits a Court to order a personto undergo a capacity assessment if an adult’s capacity to make decisions is in issue “in a proceeding under this Act” (s 104(1)). [78] Potential authorizations or applications under the Act are set out in s 4, supported decision-making authorization; s 13,application for appointment of a co-decision-maker; ss 26-32, appointment of a guardian, the Public Guardian, multiple guardians oralternate guardians; ss 46-53, appointment of a trustee, the Public Trustee, multiple trustees or alternate trustees; s 71, determination ofincapacity without appointment of trustee; and s 74, temporary protection order. [79] In Koerner v Capital Health Authority, 2010 ABQB 590, Shelley J gave an order under what was then r 217 of the AlbertaRules of Court (now r 5.41) compelling a plaintiff in a medical malpractice action to submit to a capacity evaluation on the grounds thatthe plaintiff had raised the issue of her psychiatric state expressly in the pleadings, indicated she would call psychiatric evidence at trial,and the discovery (now questioning) process had put her psychiatric condition in issue (para 17).

The Court held that the defendants hadestablished an “air of reality” that there was a psychiatric or psychological component to the plaintiff’s complaints (para 26), concludingthat testing was essential “to obtaining an accurate diagnosis so that the trial court will have all the evidence necessary to make itsfindings” (para 33). This case does not go so far as to indicate that a Court may order a capacity assessment of a plaintiff where he or shehas not put capacity in issue. [80] This approach is consistent with the decision in Ocean v Economical Mutual Insurance Company, 2009 NSCA 81, where

the Court of Appeal held that the similar Nova Scotia rule, providing for independent medical examinations, did not give the Courtjurisdiction to order a competency assessment unless the plaintiff specifically put their mental condition in issue (para 61). [81] Courts in other provinces have held that use of the Rules of Court, statutory or procedural rules, primarily designed forpersonal injury litigation, should not be used to require a capacity assessment of a party who has not put capacity in issue and is acollateral attack on the matters raised by the plaintiff (see Abrams v Abrams #1, [2008] OJ No 5207 (Ont SCJ) at paras 55-59; Abrams vAbrams #2, (ON SCDC), [2009] OJ No 1223 at paras 53-58; Ranieri v Ranieri, at paras 7-8(Ont SC); Temoin v Martin, 2012 BCCA 250 at paras 58-60; Zheng v Zheng, 2012 ONSC 3045 at paras 34-37; Hillier v Burke, 2015NSSC 144 at paras 38-39). [82] Dale Melin also argues that there is no “free-floating jurisdiction to compel an adult to undergo a capacity assessment” (seeNeill v Pellolio, (ON CA), [2001] 151 OAC 343 (Ont CA) at paras 9-17). [83] Further potential sources of jurisdiction may be the Court’s parens patriae jurisdiction and inherent jurisdiction overvulnerable adults who lack capacity.

However, Dale Melin argues that this jurisdiction may not be used where there is a legislativeframework in place to address the issue before the Court and that the Adult Guardianship and Trusteeship Act occupies the field(Temoin at para 44). [84] The Supreme Court of Canada indicated that parens patriae jurisdiction can only be relied on to fill gaps in legislation: Besonv Newfoundland (Director of Child Welfare), (SCC), [1982] 2 SCR 716 at para 14.

In ESC v DAP, 1997 ABCA 285,the Court of Appeal noted at para 13: The parens patriae jurisdiction of the court is described as a residual jurisdiction, founded on necessity, which may be invoked in thebest interests or welfare of a person who cannot act on his or her own behalf. In Canada, the jurisdiction may be called upon wherelegislation fails to address an issue concerning the best interests of a child or other person in need of the court’s protection.

In Beson v.Director of Child Welfare (NFLD.), (SCC), [1982] 2 S.C.R. 716 at 722, the Supreme Court of Canada held that “a gapin the legislation would entitle the Court to assert its parens patriae jurisdiction in what it considered to be [the child’s] best interests.” [85] Additionally, Slatter JA (dissenting but not on this point) in DB v LM 2007 ABCA 99 noted, at para 20: ...It is unlikely that the Alberta court has any residual parens patriae jurisdiction, as there is no obvious gap in the legislation: Re H.(1992), 1992 ABCA 98 , 2 Alta. L.R. (3d) 142, 127 A.R. 218 (C.A.); J.U. v.

Alberta (Regional Director of Child Welfare),2001 ABCA 125, 281 A.R. 396. [86] See also E (Mrs) v Eve, (SCC), [1986] 2 SCR 388 for a more complete historical discussion of parenspatriae jurisdiction. [87] As noted in Temoin, the Courts’ inherent jurisdiction arises from a broader base than its parens patriae jurisdiction.

Inherentjurisdiction is a “residual source of powers the court may draw upon as necessary whenever it is just or equitable to do so”: R v Caron,2011 SCC 5 , [2011] 1 SCR 78, at para 24), while parens patriae is traditionally confined to the protection of children or adultswho have been proven incompetent: Re Eve at 426. [88] The Nova Scotia Court of Appeal in Ocean (at paras 77 and 99) concluded that the Court should only use its inherentjurisdiction as a last resort in exceptional circumstances.

There, the defendant SEF 44 insurer obtained an order requiring the plaintiff toundergo a competency assessment to “determine her fitness to conduct litigation on her own behalf” (paras 1 & 2). The Court of Appealset aside that order, with costs (paras 108-110).

It said the inherent jurisdiction of the Court does not “bestow an unfettered right to dowhat, in the judge’s opinion, is fair as between the parties” (para 77), saying an adult person is presumed to be competent unless anapplication for guardianship, following the procedure under the relevant Act is followed, on the basis that “respect for the autonomy andintrinsic value of all individuals is a basic principle underlying our legal system...[including] respect for individual decision-making inmatters of fundamental personal importance” (paras 81-84; see also R v Swain, (SCC), [1991] 1 SCR 933 at p 972).The Court said that “in exceptional circumstances a court can rely upon its inherent jurisdiction to inquire into a litigant’s competence”but that “an assessment order would be an extraordinary step to be taken only as a last resort in the clearest of cases where the assessmentis necessary to control the court’s process” (para 99). [89] A similar conclusion was reached in Halstead v Anderson (1993), (SK KB), 115 Sask R 257 (QB), inwhich the defendants applied, among other things, for a competency report on the self-represented plaintiff who had repeatedlythreatened his former addiction counsellors and their lawyers.

The Court said: ...there is no clear procedure set out in the legislation [the Queen’s Bench Act] or the Rules by which the court on its own initiative canobtain medical evidence as to whether a party has the legal competence or capacity to conduct litigation nor is there any clear procedureby which one party can seek a determination of the legal competence of an adverse party. (para 52) [90] The Court said that if the mental competence of a party can be challenged by a party adverse in interest “the potential forabuse is significant,” is “a dangerous precedent,” and may “become a diversion tactic in the hands of an adverse party” (para 57).

Withrespect to the inherent jurisdiction of the Court, while the Court has jurisdiction to grant an order that a party submit to a psychiatricexamination to determine competence, the “discretion to make such an order should only rarely be exercised and then only in the clearestof cases” (para 58). [91] The cases make it clear that the use of the Court’s inherent jurisdiction to order a mental capacity evaluation should only bedone in the interests of and to protect the person subject to the order (see Abrams #1 at paras 47-50; Beretta v Beretta, 2014 ONSC 7178at paras 30-32; Kischer v Kischer, [2009] OJ No 96 (SCJ) at para 10).

It is inappropriate to order a capacity assessment in order to rebutan allegation of incapacity, merely to provide certainty to the Court, or to ease the concerns of guardians or relatives (see Beretta at para32; Zheng at paras 34 & 37).

IX. Analysis a. Dale Melin’s Capacity [ 92 ] An adult is presumed to have the capacity to make decisions until the contrary is determined. I accept that there are varying levels of capacity and that the ability to manage finances, consent to treatment, stand trial, manage personal care, and make personal care or health decisions all require separate decision-making capabilities and capacities. 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 understand the nature and effect of their action to effect or revoke that document. [ 93 ] It is also clear to me that Dale Melin’s capacity to understand the nature and effect of a Power of Attorney or the revocation of a Power of Attorney has not been static. [ 94 ] On February 13, 2018, Dr. Lin said Dale Melin had been stable for the past three weeks and was competent to make his own decisions. On April 3, 2018, he was seen to be suffering from an altered level of consciousness, secondary to opioid toxicity.

On April 4, 2018, Stephanie Kleine was of the opinion that he was suffering from early dementia, cognitive decline, and poor judgment. On April 8, 2018, Dr. Byers was of the opinion that he had cognitive problems, memory issues, impaired judgment, lack of insight, and did not have the capacity to make informed decisions about his health and finances. On April 11, 2018, Dr. Byers signed a Declaration of Incapacity, and on April 12, 2018, Dr. Lin countersigned that declaration. [ 95 ] On May 22, 2018, Dale Melin did not show evidence of perceptual abnormalities, delusions or thought disorders, and was found by Dr.

Riediger to be mentally capable and to have the ability to make sound judgments with some assistance from a co-decision- maker. On June 11, 2018, Dr.

Lin believed that Dale’s mental capacity had improved and he was only slightly depressed, but that since April 12, 2018 his mental capacity had improved and he was now mentally competent to make capable decisions and instruct legal counsel with assistance, including the mental capacity to execute a new Will, new Power of Attorney, and a new Personal Directive, again with assistance from a co-decision-maker. [ 96 ] I find on the evidence before me that Dale Melin had capacity from February 13, 2018 to April 8, 2018 to execute a Power of Attorney; he suffered a loss of capacity between April 8, 2018 and early May 2018; and had regained his capacity by early May 2018. [ 97 ] As a result, I find that the February 2, 2018 Personal Directive and Enduring Power of Attorney were valid as at that date.

I find that effective April 12, 2018, Brad Melin and Teri Trueman became joint Attorneys on the February 2, 2018 Enduring Power of Attorney. I find that the June 5, 2018 Immediate Power of Attorney is valid and effective as at that date. On that date, Teri Trueman and Stephanie Kleine became joint Attorneys for Dale Melin, and the joint appointment of Brad Melin and Teri Trueman was terminated. I find the June 5, 2018 Immediate Power of Attorney remains in effect to at least the date of these Reasons for Decision. b.

Termination of Brad Melin’s Appointment as Attorney [ 98 ] I do not need to terminate Brad Melin’s appointment as Attorney. That occurred on June 5, 2018 when Dale Melin executed the new Immediate Power of Attorney replacing Brad Melin and Teri Trueman with Teri Trueman and Stephanie Kleine as joint Attorneys. Dale Melin was competent at that time both to revoke the February 2, 2018 Enduring Power of Attorney and sign the June 5, 2018 Immediate Power of Attorney. c.

Brad Melin’s Oppressive Actions [ 99 ] Between April 12, 2018 and June 5, 2018, Brad Melin was a proper and duly appointed Attorney under the February 2, 2018 Enduring Power of Attorney, jointly with Teri Trueman. In that capacity, but without the consent and approval of Teri Trueman, on May 6, 2018 he appointed himself the sole director, shareholder and officer of 324. I have not been asked to determine whether that appointment was prima facie invalid or void, and I do not, therefore, venture into that issue.

I have been asked to determine whether the actions of Brad Melin, as a director and officer of 324, have been oppressive, unfairly prejudicial, or that they unfairly disregarded the interests of Dale Melin as a security holder, creditor, former director and officer. In that regard, I find that Dale Melin is properly a complainant. [ 100 ] As a complainant, Dale Melin had a reasonable expectation that Brad Melin: (

a) would act honestly and in good faith, with a view to the best interests of 324; (

b) would not act in a way that damaged 324, the shareholders, directors, officers, creditors or security holders of 324,; and (

c) would not act in his own self-interest or in the interest of his family to the detriment of the corporation. [ 101 ] I make that determination, taking into account general commercial practice, the nature of 324, the relationship between Dale Melin and Brad Melin, past practices in the management of 324, the fact that Dale Melin was, from April 12 to May 22, 2018, subject to a Declaration of Incapacity and therefore could not protect himself, and what would constitute a fair resolution of conflicting interests among Dale Melin, Brad Melin, and 324. [ 102 ] I accept that after April 23, 2018, Brad Melin began paying himself, Larissa Melin, Jordan Melin, and Nicholas Melin personal salaries that were out of proportion to what would have been reasonable in the circumstances.

I accept that in May 2018, he arranged financing through 324 for a new Ford F-150 pickup truck for himself, and in June 2018, a new Honda CR-V. I accept that on May 16,

2018, Brad Melin sold the Toterhome paid for by 324 which had then been compensated by Dale Melin personally. I accept that Brad Melin used 324 funds to pay $21,014.06 in personal credit card debt incurred by himself, Larissa Melin, and family members, and that he used 324 funds to pay for almost $9,000 of new appliances for his son and daughter-in-law in Kelowna, BC. I accept that he took aggressive steps to prevent Teri Trueman from exercising her role of Attorney and her responsibilities pursuant to the Nielsen J Order of August 28, 2018.

I also accept that he unilaterally terminated the employment of Stephanie Kleine’s son effective August 30, 2018, and that under his direction and control 324 accumulated GST arrears of $35,517.39, and no payroll remittances had been submitted for August or October 2018. [ 103 ] I find all of that conduct to be abusive and constitutes oppression under the ABCA.

I find that conduct has been unfair to 324 and Dale Melin as a security holder, creditor, and former director and officer, and has unfairly disregarded Dale Melin’s interests, particularly over a period of time when he was subject to a Declaration of Incapacity, making him particularly vulnerable. [ 104 ] I find that Brad Melin acted in breach of his duties of care and that a remedy must be fashioned to ensure fairness, justice, and equity in the context at hand and in regard to the relationships at play. d.

Remedy for Oppression [ 105 ] Having found oppression, unfair prejudice, and unfair disregard of the interests of Dale Melin by Brad Melin, I have broad discretion to fashion a remedy under the ABCA to rectify matters. I may restrain Brad Melin’s conduct, appoint other directors in place of, or in addition to, Brad Melin, and may make any other order I think fit to rectify the matters subject to complaint. I also recognize that removing Brad Melin as a director, at the present time, would be an exceptional remedy and a measure of last resort.

Any remedy I may fashion must minimally intervene in the operation of 324, and must also balance the competing interests of Brad Melin, Dale Melin, 324, its security holders, creditors, officers and directors.

I may go no further than necessary to correct the injustice or unfairness between the parties. [ 106 ] While I have set out above Brad Melin’s oppressive, unfair, and prejudicial conduct, I do recognize that many of his actions were of significant benefit to 324. [ 107 ] In February 2018, Brad Melin hired Keiller & Associates to complete T4s due by the end of February, make GST remissions overdue since October 2017, complete invoicing that had not been sent out for accounts receivable, and continue accounting services for 324.

After April 23, 2018, Brad Melin caused 324 to pay off its fully extended $250,000 line of credit and has returned 324 to a $100,000 positive position in the corporate account.

Additionally, he entered into three financing agreements for the benefit of 324 for which he has signed personal guarantees, leaving him with a personal exposure exceeding $350,000, and he has continued to act as general manager for CARSTAR since May 2017. [ 108 ] In considering a remedy that goes no further than to correct the injustice or unfairness between the parties as a result of Brad Melin’s oppression, unfair practice and unfair disregard of the interests of Dale Melin, and to intervene in the operation of 324 in as minimal way as possible to ensure fairness, justice and equity, I conclude I can do no better than confirm and restate the principle directions in the Orders of Nielsen J of August 28, 2018 and Kenny J of October 25, 2018 as to corporate management: (

a) Brad Melin and Teri Trueman shall continue to be: (

i) appointed joint shareholders and joint directors of 324, (ii) joint authorized and dual signatories on all banking, financial and credit card accounts of 324, and (iii) joint authority over all hiring and firings of 324 employees. (

b) None of the other members of the Melin family shall be shareholders, directors, officers, or signing authorities for 324. (

c) Larissa Melin shall no longer be an employee of 324. (

d) The salary payable to Brad Melin shall not exceed $12,000 gross per month. (

e) Teri Trueman shall have unfettered access to all financial documents, statements of account and credit card statements, administration and management statements of 324, QuickBooks and Repair Centre passcodes, passwords and security access, and shall receive remuneration of $2,500 gross per month. e. Capacity Assessment of Dale Melin [ 109 ] I conclude this Court does have jurisdiction and authority to order a capacity assessment of Dale Melin, under the circumstances presented in the above fact situation.

I conclude that the Adult Guardianship and Trusteeship Act does not “occupy the field” as the only method of a court-ordered capacity assessment.

That is clear because s 104 permits a court to order a person to undergo a capacity assessment if that person’s capacity to make decisions is in issue “in a proceeding under this Act.” By definition, it does not negate jurisdiction or authority for proceedings other than under the Act. [ 110 ] I find that under s 9 of the Powers of Attorney Act , the Court may give its opinion, advice or direction on any matter respecting the management or administration of the donor’s property. Determination of capacity of the donor is a matter respecting the management or administration of that donor’s property.

I also find that r 5.41 of the Alberta Rules of Court provides jurisdiction and authority to the Court to order a capacity assessment, both of its own accord and where a capacity assessment has already been completed through a medical examination of a health care professional of the donor’s choice. [ 111 ]

Section 8 of the Judicature Act is always a residual source of powers the Court may draw upon whenever it is just and equitable

to do so, although its use is as a last resort in exceptional circumstances. I also find this Court has authority and jurisdiction pursuant to its parens patriae jurisdiction over vulnerable adults who lack capacity, although that jurisdiction should only be used in exceptional circumstances as an extraordinary step in the clearest of cases where an assessment is necessary. [ 112 ] The real question is not whether this Court has authority and jurisdiction to order a capacity assessment in the present case, but whether it should do so.

I accept that a court should be reluctant to order a capacity assessment of an individual who has not put his or her capacity at issue in the litigation, and where it appears that the request for such an assessment is a collateral attack on the matters raised by that person.

I accept that the ordering of a capacity assessment in such circumstances should only be a last resort in exceptional circumstances as it seriously impinges upon the individual’s autonomy, respect for the individual’s decision-making in matters of fundamental personal importance, and should only be used in the clearest of cases in the interests of and to protect the person subject to the order. I accept that the ordering of a capacity assessment is inappropriate to rebut an allegation of incapacity, to merely provide certainty to the Court, or ease concerns of guardians or relatives.

Under the circumstances, I do not order a capacity assessment of Dale Melin at the present time. X.

Conclusion [ 113 ] Taking into consideration the relevant litigation history in this matter, the facts and law relevant to the issues of dismissal of Brad Melin as Attorney, director, officer and signing authority, the facts and law relevant to the issue of Dale Melin’s capacity, and my analysis set out above as to Dale Melin’s capacity to date, the termination of Brad Melin’s appointment as Attorney, Brad Melin’s oppressive actions, the appropriate remedy for oppression, and my conclusion on the issues of jurisdiction, authority and propriety of ordering a capacity assessment, I come to the following conclusions: 1.

Dale Melin had full mental capacity from February 13, 2018 to April 8, 2018 to execute a Power of Attorney, he suffered a loss of capacity between April 8, 2018 and early May 2018, and regained his capacity by early May 2018; 2. The February 2, 2018 Personal Directive and Enduring Power of Attorney are valid as at that date; 3. Effective April 12, 2018, Brad Melin and Teri Trueman were the lawful joint Attorneys on the February 2, 2018 Enduring Power of Attorney; 4.

The June 5, 2018 Immediate Power of Attorney is valid and effective as at that date; on that date the joint appointment of Brad Melin and Teri Trueman was terminated, and Teri Trueman and Stephanie Kleine became the joint Attorneys for Dale Melin; 5. Between April 12, 2018 and August 30, 2018, Brad Melin acted in ways which constituted oppression, unfairness and unfair disregard for Dale Melin’s interests; 6.

The remedy for that oppression, unfair prejudice and unfair disregard of the interests of Dale Melin by Brad Melin is the confirmation and reinstatement of the principle directions set out in the Orders of Nielsen J of August 28, 2018 and Kenny J of October 25, 2018 as set out in paragraph 108 above; 7. This Court does have authority and jurisdiction to issue a capacity assessment pursuant to s 9 of the Powers of Attorney Act , r 5.41 of the Alberta Rules of Court and this Court’s inherent jurisdiction and parens patriae jurisdiction; and 8.

Under the circumstances, this Court should not and does not exercise its jurisdiction to order a capacity assessment of Dale Melin at this time. [ 114 ] If the parties cannot agree upon costs of this application, they are at liberty to contact me within 30 days of the issuance of this decision to determine costs in this matter. Heard on the 27 th day of November, 2018. Dated at the City of Edmonton, Alberta this 21 st day of December, 2018. K.P. Feehan J.C.Q.B.A. Appearances: Sharon A. Roberts and Adam L. Ollenberger

Field Law for the Plaintiff (Applicant) Daniel C.P. Stachnik, Q.C. and Tari M. Hiebert Miller Thomson LLP for the Defendant (Cross-Applicant)