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Court may compel mental exam to determine litigation capacity under Courts of Justice Act.
The defendants brought a motion for directions seeking an order requiring the plaintiff to undergo a mental examination to determine whether she was a person under a legal disability requiring representation by a litigation guardian.
The court considered whether it had jurisdiction under s. 105 of the Courts of Justice Act to compel a mental examination in the context of Rule 7 proceedings.
The court held that it does have jurisdiction to order such an examination and that doing so would not violate s. 7 of the Canadian Charter of Rights and Freedoms, given the procedural safeguards governing such orders.
However, because the plaintiff expressed willingness to undergo a voluntary assessment and provide an updated report addressing her litigation capacity, the court declined to order a compulsory examination at that stage.
The defendants’ motion was adjourned pending the plaintiff’s completion of the voluntary assessment and anticipated motion to continue the proceeding without a litigation guardian.
Costs of successful appeal ordered payable forthwith to assist impecunious plaintiff and pro bono counsel.
Following a successful appeal that allowed the plaintiff's claim to proceed to trial, the parties agreed on costs of $44,000 but disputed the timing of payment.
The plaintiff, an impecunious litigant represented on a pro bono basis, sought costs payable forthwith.
The defendant argued costs should be in the cause or paid into court as security.
The Court of Appeal ordered the costs to be paid forthwith, noting that the appeal costs were stand-alone and that ordering costs payable forthwith assists impecunious litigants and encourages lawyers to accept pro bono retainers.
Claims against pathologist for negligent investigation and misfeasance survive motion to strike despite witness immunity defence.
The appellant was wrongfully charged with second-degree murder based on an autopsy performed by the respondent pathologist.
After the charges were withdrawn, the appellant sued the respondent for negligent investigation and misfeasance in public office.
The respondent successfully moved at the Divisional Court to strike the claims based on absolute witness immunity.
The Court of Appeal allowed the appeal, holding that the claims related to the respondent's role as a public official investigating a suspicious death under the Coroners Act, not merely his testimony.
The Court found that the scope of witness immunity in this context is unsettled law and must be determined at trial on a full factual record.
