Court finds medical affidavits meet statutory threshold but leave questions about their reliability
The Supreme Court of British Columbia has ordered a hybrid hearing to determine whether a man who sustained a traumatic brain injury in a motor vehicle accident is incapable of managing himself or his affairs, after finding that two medical opinions left significant questions unanswered.
In Stenner (Re), 2026 BCSC 1978, the court found that medical affidavits supporting a declaration of incapacity for Justyn Stenner satisfied the threshold requirements under the Patients Property Act. However, the court was not satisfied that the evidence established his incapacity.
The proceeding arose from a petition filed by Stenner's brother-in-law, who sought a declaration of incapacity and appointment as committee of his person and estate. The petition attributed Stenner's alleged incapacity to injuries sustained in a September 2017 motor vehicle accident.
Stenner's estranged spouse opposed the petition, questioning the reliability of the medical assessments. She argued that his self-representation in family litigation, post-accident employment and ability to drive demonstrated his capacity to manage his affairs.
Stenner took no position on the requested orders. The Public Guardian and Trustee ultimately did not oppose the petition, subject to certain security terms.
Two physicians assessed Stenner in 2025 and again in 2026. Both attributed his cognitive impairments to a traumatic brain injury and concluded that deficits affecting memory, attention and executive functioning prevented him from managing his legal, financial and complex personal care decisions.
Under s. 3(1) of the Patients Property Act, the court must declare incapacity if, after hearing the application and reviewing affidavits from two medical practitioners expressing opinions of incapacity due to mental infirmity or a qualifying disorder or disability of mind, it is satisfied that the person is incapable of managing themselves, their affairs or both.
The court accepted that the affidavits met the statutory threshold. However, it found that the petitioner had not established Stenner's incapacity because significant questions remained about the reliability of the medical opinions.
Neither physician adequately addressed earlier cognitive assessments prepared in connection with Stenner's accident claims. The court also noted that neither clearly identified the documents reviewed when preparing their opinions.
The court further questioned whether Stenner's conduct was consistent with the physicians' conclusions. Although one physician addressed aspects of his litigation activities, the court found it unclear whether the physicians had adequately considered the extent of his self-representation, his post-accident employment and evidence concerning his driving.
The BC Supreme Court declined to dismiss the petition, noting that both physicians maintained their opinions of incapacity. It also declined to order another medical assessment, finding that further testing might leave the same questions unanswered because the concerns involved potential gaps in the existing opinions rather than the physicians' qualifications.
The court concluded that a hybrid procedure would allow cross-examination to assess the reliability of the physicians' opinions without the unnecessary delay and expense of a full trial.
The court ordered both physicians to identify the documents they reviewed and relied upon in preparing their opinions and attend cross-examinations on their affidavits and reports. The court also directed the parties to exchange notices to admit concerning Stenner's conduct and prepare a proposed agreed statement of facts based on the resulting admissions.
