October 17, 2013

In what circumstances will a court order a plaintiff to undergo a mental examination to determine whether she is a party under a legal disability who has to be represented by a litigation guardian? This was one of the issues for the court to determine in the recent Ontario case of 626381 Ontario Limited et al. v. Kagan, Shastri Barristers & Solicitors et al. 2013 ONSC 4114. In this case, the plaintiff, N.A., and/or numbered companies of which she was also the sole officer/director/shareholder, were parties to approximately 20 actions.  In the majority of these actions, N.A. was the plaintiff, and in most of the actions, she was self-represented. However, in some of the actions, as she had taken the position that she was incapable of representing herself, she was represented by the Public Guardian and Trustee (“PGT”) as her litigation guardian.

N.A. sought to have the PGT removed as her litigation guardian after the PGT had settled (save for court approval) two of the actions against N.A.’s former solicitors. The defendants in the various actions, concerned that N.A. would seek to resile from certain completed steps in the litigation, sought direction from the court with respect to the mental examination of N.A. pursuant to section 105 of the Courts of Justice Act (“CJA”). (It is important to note that questions about the plaintiff’s capacity with respect to property management or personal care was not engaged in these proceedings; therefore the framework for capacity assessments and the principles used to determine whether a capacity assessment should be ordered pursuant to section 79 of the Substitute Decisions Act was not applicable.)

Justice Stinson first discussed the purpose of the procedural rules and safeguards under Rule 7 of the Rules of Civil Procedure (“Rules”). He held that in non-SDA proceedings, the rules and safeguards were in place to protect not only the person under a disability (as is the case in SDA proceedings) but also the integrity of the judicial process. A person will be considered to be under a disability if he or she is not able to understand information that is relevant to making a decision in the management of his or her property in respect of an issue in the proceeding, or if the person is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision in respect of an issue in the proceeding.

Justice Stinson held that the decision to appoint a litigation guardian is a question to be decided largely on recent medical evidence. Usually, such evidence should be presented by way of affidavits from people who already have the relevant information; thus the need for a court-ordered examination will in most cases be avoided. Indeed, Justice Stinson held that an order under s. 105 of the CJA “should be the rare exception and not the rule” and that “such an order is discretionary and should not be granted lightly or without good reason.”

In the rare circumstances where adequate evidence is not available, it may be necessary to to require a party to undergo a mental examination under s. 105 of the CJA.  Even so, there are safeguards in place which prevent this power from being abused. In particular, Justice Stinson observed that when questions about a party’s mental condition are raised by another party, an order under s. 105 of the CJA shall not be made unless the requirements of section 105(1)(3) are met  (namely, the allegation must be relevant to a material issue in the proceeding and there must be good reason to believe that there is substance to the allegation).

In the present case, N.A. had made submissions that she was “more than happy to get an assessment for the court” but that she did not want a court-ordered assessment.  Justice Stinson took that statement as an acknowledgment that she was willing to undergo a mental examination and to provide the report based on that examination as evidence on her motion to continue the legal proceeding without a litigation guardian. As such, Justice Stinson found that there was no need for him to make an order pursuant to section 105 of the CJA. That said, he set out particular guidelines that he suggested the report should contain, and adjourned the defendants’ motion to allow N.A. to voluntarily submit to the examination and submit the report to the court.

Thanks for reading.