COURT FILE NO.: CV-22-90209 DATE: June 3, 2024

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adam Montgomery Blair, Applicant AND: Peter Douglas Blair, Respondent

BEFORE: Rees J.

COUNSEL: Mr. J.L. Lee Mullowney for the Applicant Mr. Matthew Ng for the Public Guardian and Trustee

HEARD: May 21, 2024

AMENDED ENDORSEMENT

[1] This is a motion under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for the appointment of a litigation guardian for Adam Montgomery Blair. (I will refer to the applicant by his firm name to distinguish him from the respondent, Peter Douglas Blair.)

The Parties’ Positions

[2] Counsel for Adam submits that Adam is a person under disability within the meaning of r. 7 and that the court ought to appoint a litigation guardian for him. Further, he asks that the Public Guardian and Trustee (PGT) ought to be appointed as his litigation guardian because there is no other proper person who can act as Adam’s litigation guardian.

[3] Adam was served with a Request for Appointment of Litigation Guardian. He has not responded, nor has he identified a litigation guardian. He did not attend the hearing of the motion.

[4] The respondent takes no position on the motion.

[5] The PGT takes no position on the r. 7 motion but is not opposed to being appointed as litigation guardian if I were to conclude that Adam is a party under disability and that there is no other proper person who is willing and able to act as litigation guardian.

Analysis

The Law

[6] Rule 7.01(1) requires that, “[u]nless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.” Further, r. 1.03(1) defines “disability” as “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not.”

[7] Section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, provides:

Incapacity to manage property

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[8] Litigation guardians protect parties under disability, opposing parties, and court procedures: Cameron v. Louden (1998), 24 C.P.C. (4th) 50 (Ont. Gen. Div.), at para. 4; see also Huang v. Braga, 2016 ONSC 6306, 100 C.P.C. (7th) 183, at para. 17.

[9] To appoint a litigation guardian under r. 7, the court must be satisfied of two things:

a. The person must appear to be mentally incapable with respect to an issue in the case; and, b. As a result of being mentally incapable, the person requires legal representation to be appointed by the court.

[10] The cause of the incapacity must arise from mental illness, dementia, developmental delay or physical injury and not from some other (non-legal capacity related) reason such as a lack of sophistication, education or cultural differences: C.C. v. Children’s Aids society of Toronto, [2007] O.J. No. 5613 (S.C.), at para. 25; Huang, at para. 18.

[11] The following factors should be considered:

a. A person’s ability to know or understand the minimum choices or decisions required and to make them; b. An appreciation of the consequences and effects of his or her choices or decisions; c. An appreciation of the nature of the proceedings; d. A person’s inability to choose and keep counsel; e. A person’s inability to represent him or herself; f. A person’s inability to distinguish between relevant and irrelevant issues; and, g. A person’s mistaken beliefs regarding the law or court procedures.

See Huang, at para. 19.

[12] The court may rely on various types of evidence in evaluating the appropriateness of appointing a litigation guardian, including:

a. Medical or psychological evidence as to capacity; b. Evidence from persons who know the litigant well; c. The appearance and demeanour of the litigant; d. The testimony of the litigant; and, e. The opinion of the litigant’s own counsel.

See Huang, at para. 20.

Issue 1: Is Adam a party under disability?

[13] Adam is a 37-year-old man. He is diagnosed with a frontal lobe brain injury, seizures, schizophrenia, and memory deficit. Adam is currently unemployed and receives financial support by way of a trust managed by a financial institution using funds Adam received because of a brain injury. He lives with his mother.

[14] Adam’s lawyer is unable to receive instructions from Adam due to the latter’s mental health issues. Adam vacillates regularly between pursuing his claim against the respondent, his father, and abandoning it, usually because of religious visions Adam experiences, and interactions Adam has with his father.

[15] Adam participated in capacity assessments to instruct counsel and to litigate. The capacity assessor concluded that Adam lacks the capacity to instruct counsel and to litigate. The capacity assessor formed the following opinion, which I accept:

a. Adam’s longstanding psychiatric illness and subsequent cognitive deficits have resulted in a significant decline in his cognitive and executive functioning. b. The symptoms of his illness, including indecisiveness, cognitive distortions, and delusions, plus the side effects of his medications, leave him excessively drowsy, inconsistently motivated, unable to think clearly, reason or problem solve. His symptoms interfere with his ability to reasonably weigh his options, make decisions, and instruct counsel. c. Due to his illness, Adam has been unable to seek and obtain information or facts around his properties and the evidence to support his claim that would inform his decision making. d. Adam assumes the worst and dwells on these negative outcomes and has been unable to act to clarify and obtain accurate information to support his decisions around his litigation resulting in him vacillating between proceeding with the litigation and abandoning it. e. Adam is easily influenced and swayed by any threat due to his vulnerability, which causes Adam to question his decision to proceed with his case against his father. f. Adam is unable to make the sort of decisions that arise in litigation and is unable to arrive at reasonable decisions, partially attributable to delusions. g. During the assessment, Adam was unable to communicate his choices, decisions, and reasoning fluently, coherently, consistently and in a reasonable time. He often was confused about details and reported that his memory is unreliable. He had observable difficulty articulating his reasoning consistently. h. Thus, Adam would be unable to communicate his answers consistently and with clarity, as is required in the litigation process. i. Adam has a measure of self-awareness about the impact of his schizophrenia and his traumatic brain injury. He understands he is unable to instruct counsel or participate in litigation. Adam expressed to the capacity assessor that he is willing to accept a representative to be his litigation guardian.

[16] Having considered the record, I conclude that Adam is mentally incapable in relation to his capacity to litigate and that this mental incapacity arises from a mental illness and physical injury. Further, I conclude that because he is mentally incapable, Adam requires legal representation to be appointed by the court.

Issue 2: Should the PGT be appointed as Adam’s litigation guardian?

[17] Rule 7.04 provides:

Representation of Persons under Disability

Litigation guardian for party

7.04 (1) Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint,

(a) the Children’s Lawyer, if the party is a minor; (b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian; (c) either of them, if clauses (a) and (b) both apply to the party.

[18] Counsel for Adam had discussions with him about who Adam may wish to have act as his litigation guardian. Counsel canvassed Adam’s former intimate partner, Adam’s mother, and a friend of the family. Ultimately, all three have declined and no other suitable person has been identified. Adam advised his counsel that he knows of no one else who would be willing to act as a litigation guardian for him.

[19] I am satisfied that there are no other proper persons who are willing and able to act as Adam’s litigation guardian. Therefore, I conclude that it is appropriate to appoint the PGT to do so.

Disposition

[20] The court declares that Adam is a person under disability in this proceeding and, as a result, it is necessary for decisions to be made on his behalf by a person who is designated to do so.

[21] The PGT is appointed and shall act in the capacity of litigation guardian for Adam in these proceedings.

[22] The PGT shall not be personally liable for the costs of any party to the proceeding.

[23] The PGT shall be entitled, upon request, to production and delivery from anyone of all information relating to Adam to which he would be entitled without requiring his consent.

[24] Any counsel formerly retained by Adam shall cooperate with the PGT and shall deliver to the PGT all documentation and information requested by the PGT in respect of Adam and these proceedings.

[25] The titles of proceedings in all documents served or delivered in this proceeding after the date of this endorsement shall identify Adam as follows:

Adam Montgomery Blair, by his litigation guardian, the Public Guardian and Trustee

[26] Mr. Mullowney shall serve a copy of this endorsement on Adam.

[27] As agreed by the parties, costs of this motion shall be in the cause.

Justice Owen Rees Date: June 3, 2024