Samuel Earl Abbott

A motion was brought under s. 105(2) of the Courts of Justice Act for an order requiring an elderly party, aged 92, residing in a secure memory care facility, to undergo a cognitive capacity assessment.

The subject had been diagnosed with moderate stage dementia and had a documented history of confusion, memory deficits, and failed capacity screening.

He opposed the motion by affidavit, asserting his capacity.

The court applied the two-part threshold under s. 105(3) and the factors from Abrams v. Abrams, finding ample evidence of significant cognitive deficits and that capacity was a material issue in both the action and a related application.

The motion was granted, and a concurrent stay of a related motion to remove the moving party as litigation guardian was ordered pending the outcome of the assessment.

The applicant, Nicholas Rizkallah, sought various capacity assessments of the respondent, Michel George Rizkallah, including an interRAI Home Care assessment and assessments regarding Michel’s ability to grant/revoke a power of attorney, make a will, and instruct counsel.

The court declined to order the requested assessments, finding that the evidence did not justify further intrusion, that Michel’s wishes and preferences were sufficiently before the court, and that the assessments were not necessary to decide the issues on the application.

The court emphasized the role of s. 3 counsel under the Substitute Decisions Act, 1992, and the importance of respecting the dignity and legal rights of vulnerable persons.