BCSC Stenner Re: Court Questions Medical Affidavits in Incapacity Hearing

• The British Columbia Supreme Court ordered a hybrid hearing in Stenner (Re), 2026 BCSC 1978, to assess an incapacity petition.
• While medical affidavits met the Patients Property Act's statutory threshold, the court questioned their reliability due to unanswered questions.
• Concerns included physicians' failure to address prior cognitive assessments, unclear documentation of reviewed materials, and contradictory evidence of the individual's self-representation, employment, and driving.
• The court declined to dismiss the petition or order new assessments, opting for cross-examination of the physicians to resolve reliability issues.
• Physicians were ordered to identify reviewed documents and undergo cross-examination, while parties must exchange notices to admit facts about the individual's conduct.

The court's willingness to order a hybrid incapacity hearing with cross-examination of experts, rather than accepting affidavits at face value, signals a demand for meticulous preparation and comprehensive documentation in capacity assessments.

The Supreme Court of British Columbia recently addressed a petition seeking a declaration of incapacity for an individual, Justyn Stenner, who sustained a traumatic brain injury in a September 2017 motor vehicle accident. The case, Stenner (Re), 2026 BCSC 1978, involved a request from Stenner's brother-in-law to have him declared incapable of managing his personal affairs and estate, and to be appointed as his committee. This petition was met with opposition from Stenner's estranged spouse, who challenged the credibility of the medical assessments presented to the court.

Despite two medical affidavits supporting the declaration of incapacity, the court found itself with significant unanswered questions regarding the reliability of these expert opinions. While acknowledging that the affidavits met the initial statutory requirements under the Patients Property Act, the court ultimately determined that the evidence presented did not sufficiently establish Stenner's incapacity. Stenner himself remained neutral on the orders sought, while the Public Guardian and Trustee eventually did not oppose the petition, subject to specific security conditions.

Under British Columbia's Patients Property Act, specifically Section 3(1), a court is empowered to declare an individual incapable if, after reviewing an application and affidavits from two medical practitioners, it is satisfied that the person cannot manage themselves, their affairs, or both. These medical opinions must attribute the incapacity to a mental infirmity, a qualifying disorder, or a disability of mind. In Stenner (Re), the two physicians who assessed Mr. Stenner in 2025 and again in 2026 provided opinions consistent with these requirements.

Both medical experts concluded that Mr. Stenner's cognitive impairments, stemming from his traumatic brain injury, manifested as deficits in memory, attention, and executive functioning. These deficits, in their professional judgment, rendered him unable to manage his legal, financial, and complex personal care decisions. The court accepted that these medical affidavits, on their face, fulfilled the statutory threshold for considering an incapacity declaration, setting the stage for a deeper examination of their evidentiary weight.

Despite the medical affidavits meeting the statutory threshold, the British Columbia Supreme Court harbored substantial doubts about the overall reliability of the opinions presented. A key concern was the physicians' failure to adequately address earlier cognitive assessments that had been prepared in connection with Mr. Stenner's motor vehicle accident claims. Furthermore, neither physician clearly documented the specific materials they had reviewed when formulating their professional opinions, which raised questions about the comprehensiveness of their evaluations.

The court also critically examined whether Mr. Stenner's documented conduct aligned with the physicians' conclusions of incapacity. His estranged spouse had highlighted several facts, including his self-representation in family litigation, his post-accident employment, and his continued ability to drive, as indicators of his capacity to manage his affairs. While one physician did touch upon aspects of his litigation activities, the court found it unclear whether the full extent of his self-representation, his employment history, and the evidence regarding his driving abilities had been adequately considered or reconciled within their assessments. These discrepancies underscored the court's hesitation to grant an immediate declaration of incapacity.

Faced with these significant questions regarding the reliability of the medical opinions, the British Columbia Supreme Court opted for a hybrid hearing rather than dismissing the petition outright or ordering entirely new medical assessments. The court noted that the physicians continued to maintain their opinions of incapacity, which justified not dismissing the case. Conversely, ordering further testing was deemed unlikely to resolve the existing concerns, as the issues lay in potential gaps within the current opinions rather than the qualifications of the medical practitioners themselves.

The court determined that a hybrid procedure, incorporating cross-examination, would be the most effective and efficient method to thoroughly assess the reliability of the physicians' opinions without incurring the unnecessary delay and expense associated with a full trial. Consequently, the court issued specific directives: both physicians were ordered to explicitly identify all documents they reviewed and relied upon in forming their opinions, and they were mandated to attend cross-examinations on their affidavits and reports. Additionally, the parties were instructed to exchange notices to admit facts pertaining to Mr. Stenner's conduct and to subsequently prepare a proposed agreed statement of facts based on these admissions.

The decision in Stenner (Re) carries significant implications for legal practitioners involved in incapacity petitions within British Columbia. It underscores a heightened judicial scrutiny of medical evidence, even when such evidence formally satisfies statutory requirements under the Patients Property Act. The court's willingness to order a hybrid incapacity hearing with cross-examination of experts, rather than accepting affidavits at face value, signals a demand for meticulous preparation and comprehensive documentation in capacity assessments.

Lawyers preparing or challenging a British Columbia declaration of incapacity must ensure that medical affidavits are not only technically compliant but also explicitly address all relevant and potentially contradictory evidence, such as an individual's self-representation or employment history. Furthermore, the clear identification of all materials reviewed by medical experts is now demonstrably crucial for establishing the reliability of their opinions. This ruling reinforces that the court will delve beyond the surface of expert reports to ensure that a declaration of incapacity is based on robust and thoroughly vetted evidence, especially in cases involving traumatic brain injury capacity assessment.

Lawyers preparing or challenging incapacity petitions in British Columbia must ensure medical affidavits are meticulously prepared, explicitly addressing all relevant evidence (including potentially contradictory facts like self-representation or employment) and clearly documenting materials reviewed. The court's decision to order a hybrid hearing with cross-examination of experts, even when statutory thresholds are met, signals a heightened scrutiny of medical evidence reliability in such cases.

Source: Original reporting via Canadian Legal Newswire