Executive Summary: Key Legal and Evidentiary Issues

• Lawfulness of M.S.’s admission to Evergreen House Long Term Care (EGH) turned on substitute consent under s. 22 of the Health Care (Consent) and Care Facility (Admission) Act (HCCCFAA), given by the Public Guardian and Trustee (PGT) after A.S. was found not to meet the requirements to act as temporary substitute decision maker (TSDM) for care facility admission.

• Evidence before the court showed that M.S. has Alzheimer’s dementia, has become lost and disoriented, has sustained injuries, and requires 24-hour supervision and care, leading the hospital care team to recommend long-term care placement to assure his safety and that his care needs could be adequately met.

• The petitioner’s habeas corpus claim, including reliance on s. 10 of the Charter and on authorities such as Mission Institution v. Khela and A.H. v. Fraser Health Authority, was dismissed because the judge found that M.S. was lawfully admitted to EGH under the HCCCFAA and that the statutory scheme, including substitute consent, applied rather than the circumstances in A.H.

• The court accepted the respondents’ evidence that A.S. had not reliably acted in M.S.’s best interests, was at times unresponsive to the care team, minimized safety concerns, and that there were incidents in which M.S. was at risk or harmed while living at home, supporting the decision to refer substitute consent to the PGT and to disqualify A.S. as TSDM for care facility admission.

• The judge found that the legislative provisions in the HCCCFAA and the Residential Care Regulation, including s. 50.1(2) regarding situations where an incapable person expresses a desire to leave a community care facility, had been followed in relation to M.S., and that there was no basis to find he was unlawfully detained at EGH.

• The court held that concerns about A.S. being disqualified as TSDM and about M.S.’s continued admission to EGH must be addressed through the review mechanism in s. 33.4 of the HCCCFAA, which permits the court to confirm, reverse, or vary a substitute decision maker’s consent, and on this basis the petition was dismissed with no specific monetary amount ordered.

Background and family context

M.S. is an 86-year-old man with a diagnosis of Alzheimer’s dementia who previously lived in a basement suite with his adult son, A.S., the petitioner. Before admission to Evergreen House Long Term Care Home (EGH), M.S. had a five-month stay at Lions Gate Hospital between June 27, 2024 and November 25, 2024, after which he was admitted into long-term care at EGH. Prior to that, he lived in a one-bedroom basement apartment with A.S., who had moved into M.S.’s apartment in approximately 2022 to help care for him. M.S. is divorced and has four adult children: a daughter, S., then living in Boston; a son, G., then living in Los Angeles; another son, D., who travels for work; and A.S., who had been the primary caregiver.

From March 24 to April 3, 2023, M.S. was admitted to Lions Gate Hospital after being found confused and collapsed in a library. During that admission, he was diagnosed with Alzheimer’s dementia. An occupational therapy assessment on April 3, 2023 recorded that he would have difficulty managing daily tasks, including hygiene, medications, and meals, without frequent cueing; that he was at risk of wandering; and that as of April 2023 he required support for all higher-level instrumental activities of daily living. Long-term care was recommended, and he was placed on an emergency waitlist. A bed became available at Creekstone Care Centre in October 2023.

At that time, the records showed disagreement among the children about placement at Creekstone. S. declined; A.S. agreed that facility placement was the best course of action; and G. signed the paperwork for placement. On November 2, 2023, A.S. took M.S. to tour Creekstone. M.S. did not like it and expressed that he did not want to live there. He was then assessed as capable of declining placement in long-term care, and he was taken off the emergency placement list. In December 2023, he took the wrong bus, became lost, and the police had to bring him home.

Deterioration, safety incidents and hospital admissions in 2024

In 2024, a series of incidents raised concerns about M.S.’s safety in A.S.’s care and led to renewed hospital admissions and involvement of adult protection services. On April 20, 2024, M.S. presented to Lions Gate Hospital after reporting a fall in his backyard, with bruising noted around his eye. He was still living with A.S., but A.S. had gone to Germany and had not arranged a safety plan for M.S. in his absence, even though he was acting as M.S.’s primary caregiver (assisting with medication, cooking, grocery shopping, and outings), supported by daily home supports from community home care. The decision by A.S. to travel without a safety plan left M.S. at risk of harm.

At this point, the VCH ReAct Adult Protection team received a report under s. 46(1) of the Adult Guardianship Act that M.S. was abused or neglected and unable to seek support and assistance due to his physical and cognitive limitations associated with Alzheimer’s dementia. Concerns were specifically raised about A.S.’s ability to care for M.S. safely and appropriately in the community.

During this admission, M.S. was found to have poor insight, was confused, and was “exit seeking.” The care team concluded that he required 24-hour supervision and care, based on nursing observations and assessments by occupational therapy, social work, and geriatric psychiatry. He was completely dependent on others for all instrumental activities of daily living and needed structure, set up, cueing, and prompting for activities of daily living.

Discharge planning from the May 2024 admission was described as complex. The care team had concerns about A.S. caring for M.S. in the community, but both A.S. and M.S. expressed a desire for M.S. to return home. To respect those wishes, a Support and Assistance Plan under Part 3 of the Adult Guardianship Act was implemented to facilitate M.S.’s safe return home with A.S. as primary caregiver. Under that plan, M.S. was to receive 24-hour care and supervision, and A.S. was told that M.S. could not be left alone at any time.

On June 27, 2024, M.S. was brought by ambulance to Lions Gate Hospital under s. 28 of the Mental Health Act after he had been walking around his neighbourhood with an axe and had apparently intended to harm A.S. following a verbal altercation. On arrival, M.S. reported that he had not eaten since the previous day and had not been bathed or attended to by A.S. in three to four days. He had a strong smell of urine. He reported that A.S. has an aggressive personality and can be malicious, that A.S. had lived with him for two years, that M.S. pays approximately $1500 per month in rent, and that A.S. does not pay anything.

The evening before, on June 26, 2024, M.S. had been visiting with S. She reported to Lions Gate Hospital staff that when she tried to return M.S. home, A.S. had locked him out of the house, and the police were called. Other incidents noted in the respondents’ evidence included M.S. being left alone and found by homecare staff wandering outside his home, having left a pot on the stove, and an occasion where he locked a homecare worker in the apartment during an altercation with A.S., requiring the community health case manager to persuade him to open the door.

In discussions with A.S., social workers learned that although he had agreed to the May 2024 Support and Assistance Plan, which clearly stipulated that M.S. required 24/7 care, A.S. felt this was “overkill.” When asked about reports of M.S. wandering, A.S. minimized the concern, saying they lived on a quiet, safe street with little traffic. Because the previous discharge home with the Support and Assistance Plan had failed, it became the health care team’s view during the June 27, 2024 admission that M.S. required placement in long-term care to assure his safety and that his care needs could be adequately met.

Involuntary detention and the Mental Health Review Board decision

Following the June 27, 2024 incident, M.S. was involuntarily detained under the Mental Health Act, and the Mental Health Review Board later upheld his detention. From June 27, 2024 until his transfer to EGH, M.S. was involuntarily detained at Lions Gate Hospital under s. 22 of the Mental Health Act. On October 16, 2024, the Mental Health Review Board held a hearing on A.S.’s application to decertify M.S. The Board found that M.S. met the criteria under the Act, including that he suffers from a disorder of the mind that requires treatment, that the disorder seriously impairs his ability, and that he requires treatment in or through a facility. The Board concluded that M.S.’s involuntary detention must be continued.

Identification and disqualification of a substitute decision maker for care facility admission

Under the HCCCFAA, M.S.’s admission to EGH required consent from a substitute decision maker because he was assessed as incapable of consenting to care facility admission. M.S. was assessed as incapable of consenting to admission to a care facility due to his cognitive limitations associated with Alzheimer’s dementia. In 2024, he had no Committee of Person and no Representation Agreement naming a substitute decision maker, personal guardian, or representative.

VCH social workers attempted to engage A.S. in discussions about long-term care placement throughout M.S.’s stay at Lions Gate Hospital. From July 9 to July 19, 2024, A.S. did not return calls from the physician or social worker regarding long-term care placement. He eventually consented on July 19, 2024, but then failed to provide the required documentation despite frequent follow-up and a deadline of August 14, 2024.

Given the difficulties communicating with A.S., concerns that he had not made decisions in M.S.’s best interests, and the history of conflict between the adult children, a referral was made to the PGT. The PGT consultant contacted G., who agreed with placement but did not want to be involved because of family dynamics. She had not heard back from D. or A.S. at that time. S. declined further conversation with the PGT and expressed concerns about A.S. as TSDM, denied that M.S. had dementia, and stated that she believed people in Canada wrongly placed elderly people in long-term care.

Ultimately, none of the three other adult children were available to act as TSDM, and A.S. was disqualified as an appropriate TSDM for care facility admission because he was found to be both unresponsive and unable to make decisions in M.S.’s best interests. On November 13, 2024, substitute consent for care facility admission was obtained from the PGT.

On November 14, 2024, VCH wrote to A.S. advising him that, due to various concerns including that he was not reliably acting in M.S.’s best interests, the care team had determined that he did not meet the criteria to act as TSDM for care facility admission, and the matter had been referred to the PGT under s. 22 of the HCCCFAA. Following this, after a lengthy stay in Lions Gate Hospital, M.S. was admitted to EGH on November 25, 2024.

The judge found that the evidence clearly established that, pursuant to s. 22 of the HCCCFAA, the PGT, acting as substitute decision maker, provided consent to M.S.’s admission to EGH and that M.S. was lawfully admitted to EGH.

Life at Evergreen House and contact with A.S.

After his admission to EGH, M.S. continued to have visitors and to go on outings, including extended stays with the petitioner. The evidence showed that after M.S.’s admission to EGH, he received visitors and went on outings from EGH, including with A.S. He went on outings or had extended stays with A.S. in May 2025, December 2025, and January 2026. On January 9, 2026, M.S. returned to EGH after an extended stay with A.S.

The respondents did not dispute that M.S. wears a device designed to locate him if he wanders, that he is not allowed to leave EGH without supervision, and that EGH has secured entrances and exits requiring keys or passcodes. The respondents submitted that M.S. is not restricted from having visitors or from going on outings, but that outings with A.S. are permitted when there is a care plan that will be followed. They expressed concern that A.S. had shown he would not abide by the care plan.

There was evidence that the care team had concerns about M.S. returning from outings with A.S. with injuries such as bruising. A.S., however, stated that he had always met M.S.’s care needs, giving as an example that he ordered more medication when he decided that M.S. would not return to EGH on January 1.

During the December 24, 2025 to January 9, 2026 stay with A.S., the respondents’ evidence recorded concerns about whether M.S.’s care needs were being met and whether A.S. could meet the criteria to act as TSDM. Among other things, A.S. did not bring M.S. to a scheduled appointment with his geriatrician, did not return him to EGH as scheduled on January 1, and declined daily telephone access for the care team to speak with M.S.

On January 9, 2026, VCH obtained an access order from the Provincial Court authorizing entry to the home where A.S. and M.S. were living. A.S. disagreed with this, and he and M.S. went to the West Vancouver Police Station for an interview instead. According to the respondents’ notes of that interview, M.S. was asked if he wanted to go back to EGH and said “yes.” The notes also recorded A.S. telling M.S., “no you don’t like that place … you are constantly asking to leave … you were depressed there … you don’t want to go back trust me.”

A.S. submitted that his recollection of the January 9, 2026 interview was very different and that M.S. was pressured and exhausted during the lengthy interview. However, the judge noted that nothing in A.S.’s evidence contradicted that on January 9, M.S. said he wanted to go back to EGH. Ultimately, M.S. returned to EGH on January 9, 2026.

An affidavit from T.M., a friend of both A.S. and M.S., described a visit to EGH on September 6, 2025 with A.S. T.M. stated that when he asked staff if M.S. could go outside for fresh air, staff replied that M.S. was not allowed outside. The respondents submitted that, despite their ongoing concerns about A.S.’s ability and willingness to meet M.S.’s care needs, the care team has allowed A.S. to take M.S. outside EGH when there is a care plan in place, but that they are concerned about A.S.’s compliance with that plan.

Issues before the court: habeas corpus, detention, and substitute decision making

The petition was framed as an application for habeas corpus, challenging M.S.’s continued presence at EGH as an unlawful detention and contesting decisions about substitute decision making. A.S., appearing in person, sought an order in the nature of habeas corpus requiring the respondents to produce the legal authority relied on to detain M.S., and, if no lawful authority existed, an order that M.S. be released from EGH and allowed to return home. He relied, among other things, on s. 10 of the Charter of Rights and Freedoms.

He expressed several concerns: that M.S. was being wrongfully detained at EGH; that EGH was not an appropriate facility to provide care; that he was not being recognized as M.S.’s substitute decision maker; and that his request that M.S. be discharged from EGH was being ignored. He stated that M.S. wished to live at home, that long-term care was inevitable but premature, and that M.S. could presently live at home with supports until another acceptable long-term care facility could be identified. He acknowledged that EGH does not offer private rooms and expressed a preference for a different long-term care home.

The parties referred to the law governing habeas corpus applications in Mission Institution v. Khela. The judge summarized Khela as holding that an applicant must establish a deprivation of liberty and then raise a legitimate ground on which to question its legality, at which point the burden shifts to the respondent to justify the deprivation. A.S. also referred to A.H. v. Fraser Health Authority, in which an adult had been involuntarily detained under the apparent authority of s. 59(2)(e) of the Adult Guardianship Act.

The respondents submitted that the HCCCFAA contains comprehensive provisions for admission to a care facility with consent from a substitute decision maker, and that s. 33.4(2) provides a means to obtain directions and orders from the court to confirm, reverse, or vary a substitute decision maker’s consent to admission. They argued that A.H. was distinguishable because it involved different statutory provisions (s. 59(2)(e) of the Adult Guardianship Act) and did not concern the HCCCFAA scheme used in M.S.’s case.

Requests to leave EGH and the statutory framework for review

The court considered how the HCCCFAA and the Residential Care Regulation address situations where an incapable resident expresses a desire to leave a care facility, and how these provisions were applied to M.S. The judge noted that consent by a TSDM under ss. 22 and 23 of the HCCCFAA is a one-time decision that does not require renewal except as required by the Residential Care Regulation (RCR), which applies to EGH through the Patients’ Bill of Rights Regulation (s. 50.1(1) RCR).

Section 50.1(2) RCR governs what happens when an incapable person expresses a desire to leave a community care facility. The evidence included notes by the social worker on the care team that, on November 5, 2025, she asked M.S. directly whether he wanted to leave EGH and that he said he wanted to go live with A.S. After that, the social worker consulted the care team about next steps, and they arranged a January 6, 2026 geriatrician assessment of M.S.

As noted earlier, A.S. did not return M.S. to EGH on January 1 and did not bring him to the January 6 geriatrician appointment. A.S. submitted that this assessment was pointless because no one expected M.S. to be found competent.

In the meantime, the social worker contacted the PGT about M.S.’s continued residence at EGH. On January 16, 2026, the PGT responded that, in its opinion, the criteria in s. 25 had not been satisfied because M.S. was not presently expressing a desire to leave and therefore the duty of a manager “to not prevent or obstruct this adult from leaving a care facility” was not a present concern. The PGT also noted that the November 5, 2025 expression had been initiated by the social worker, not by M.S. or a TSDM. The PGT further advised that its 2024 consent for admission remained valid and that the referral would be closed, but that a new referral could be made if M.S. expressed a renewed desire to leave the care home.

The judge accepted the respondents’ submission that they had complied with the legislative scheme in the HCCCFAA and the RCR regarding M.S.’s admission to, and a potential request to leave, EGH. The judge emphasized that A.S. had acknowledged being advised in the November 14, 2024 letter that he did not meet the requirements to serve as TSDM for care facility admission. Although A.S. argued that he continued to be TSDM despite this, the judge found that interpretation unsupported by the language of the relevant legislative provisions.

The judge also noted that this did not mean that A.S. or M.S. had no avenue to seek to reverse the care team’s view. Section 33.4 of the HCCCFAA, which allows M.S. or A.S. to seek a review, reversal, or variation of the decision regarding TSDM consent, remained available and provides a meaningful avenue for judicial oversight.

Court’s analysis of detention and application of habeas corpus principles

In assessing whether M.S. was unlawfully detained, the judge considered the statutory framework, the clinical and factual evidence, and the narrow role of habeas corpus. The respondents accepted that M.S. wears a locating device, is not allowed to leave EGH without supervision, and that entrances and exits are secured. The judge observed that M.S. is a vulnerable senior citizen with Alzheimer’s dementia and that the evidence showed he had sustained injuries, become lost and disoriented, and engaged in behaviour that led to police involvement while living at home with A.S.

The judge concluded that, even if the requirement that M.S. not leave EGH without supervision or a care plan amounts to a deprivation of liberty, A.S. had not established a legitimate ground on which to question the legality of that deprivation. The evidence showed that M.S. had been admitted to EGH lawfully under the HCCCFAA, with consent from the PGT acting as TSDM, and that the statutory processes for dealing with his expressed wishes to leave had been followed.

The judge accepted that A.S. was genuinely concerned about his father’s well-being but found that his submissions about arranging full-time home care were vague and unformed. The judge expressed particular concern about evidence of M.S.’s tendency to wander, to become lost and injured while living at home, and the potential for future harm. The judge agreed with the respondents that the question of A.S.’s disqualification as TSDM and his desire to change M.S.’s care arrangements were not properly determined by way of habeas corpus, but instead should be pursued through the mechanism provided in s. 33.4 of the HCCCFAA.

Ruling and overall outcome

Justice McDonald dismissed the petition, holding that M.S. was lawfully admitted and not unlawfully detained at EGH, and identifying the statutory route for any further challenge. The court found that M.S. had been lawfully admitted to EGH pursuant to s. 22 of the HCCCFAA based on consent provided by the PGT acting as substitute decision maker. The conditions at EGH, including the use of a locating device, secured exits, and the requirement for supervision or a care plan for outings, were not found to constitute unlawful detention in light of M.S.’s diagnosis of Alzheimer’s dementia, his history of injuries, wandering, disorientation, and concerning behaviour in the community.

The judge held that the legislative scheme in the HCCCFAA and the Residential Care Regulation, together with the possibility of recourse under s. 33.4 HCCCFAA to confirm, reverse, or vary a substitute decision maker’s consent, provided an appropriate and meaningful avenue for judicial oversight of decisions about M.S.’s admission and continued residence in long-term care. On that basis, the application for habeas corpus was dismissed. Evergreen House Long Term Care and Vancouver Coastal Health were the successful respondents. The judgment does not set out any specific monetary amount ordered in favour of any party.