Court File and Parties

Court File No.: CV-19-00628725-0000 Date: 2024-07-29 Superior Court of Justice - Ontario

Re: Catherine Cormier and Carol Weir, Plaintiffs And: Jordan Othen, Defendant

Before: Akazaki J.

Counsel: Pryea Chowbay, for the Plaintiffs Anthea Chan, for the Defendant

Heard: July 26, 2024

Reasons for Decision

[1] The plaintiffs, having suffered injuries in a 2017 car crash, brought this civil suit in 2019. Since 2021, it stalled with no progress for three years because of a concern that Ms. Weir, 85 years old with dementia, required a litigation guardian. The plaintiffs brought an unopposed motion to appoint such a guardian. Whether or not she needed a guardian, this unnecessary motion created the bottleneck.

[2] The caption to the procedure for appointment of a litigation guardian for a plaintiff in subrule 7.02(1) of the Rules of Civil Procedure states: “Court Appointment Unnecessary.” The lawyers were unsure why they then pursued a court order, except that “This is how we were told to do it.” Then the associate judge hearing the motion questioned the need for a guardian at all. Associate Justice La Horey twice adjourned the motion, because the evidence fell short of justifying the appointment. Instead of taking her hint and proceeding without a guardian, the plaintiffs’ lawyers pursued the family doctor for better evidence of her mental incapacity. The doctor proved unresponsive.

[3] Anxious that the case was going nowhere, the plaintiffs instructed their lawyer to ask the court to allow them to settle the claim without a litigation guardian for Ms. Weir. They negotiated a settlement for court approval totalling $98,500, $59,100 of which is allocated to Catherine Cormier and $39,400 to Carol Weir.

[4] The parties’ lawyers convened a case conference for an order confirming the settlement and dispensing with appointment of a litigation guardian for Ms. Weir, citing the client’s age and the arrested process before the associate judge. For the reasons below, I will sign the order. I will do so, not because of the exigencies of paying an elderly person her compensation, but rather because no litigation guardian and no motion was ever required. The path to this conclusion may appear obvious by reading the governing rules, but it has flummoxed enough lawyers over the years that this case conference has presented a moment to review the procedure.

Additional Background and Issues

[5] The issue of Ms. Weir’s capacity arose at her examination for discovery, after it had to be halted because she could not remember what happened in the accident. Counsel for the plaintiff obtained a letter from Ms. Weir’s family doctor, Dr. Vance Tran, stating that the patient suffered cognitive impairment as recorded in a Montreal Cognitive Assessment. Since 2018, she has lacked the ability to perform safely the activities of daily living, such as financial management, transportation, housekeeping, and food preparation. She required caregiver assistance and had no recollection of the events related to the accident. He therefore concluded she was unfit to participate in examination for discovery.

[6] Based on this letter, the plaintiffs brought the motion before the associate judge for appointment of a litigation guardian. She determined Dr. Tan’s opinion fell short of meeting the test for mental incapacity in the Substitute Decisions Act, 1992, required for a finding of disability under rule 7, and adjourned the motion.

[7] The plaintiff then submitted the records of the Gain Geriatric Clinic in Scarborough. Those records contained assessments by a geriatric nurse confirming mild but progressive dementia. The associate judge waded through the records in search of grounds for the appointment. She had trouble finding the evidence. Indeed, in her March 1, 2023, endorsement, she identified 2022 case notes that “The patient has full capacity” and describing her condition as having “gradual onset.” Giving counsel the benefit of the doubt, the associate judge again adjourned the motion instead of dismissing it.

[8] The same note flagged by the associate judge about Ms. Weir’s “full capacity” stated that she had no substitute decision maker. A fair survey of the records would reveal the nurses’ clinical evaluation, as well as the concerns of her daughter Cathy Cormier, that they were looking for strategies to slow Ms. Weir’s progressive mental and physical decline. The nursing notes contained referrals to the Alzheimer’s Society which Ms. Weir and Ms. Cormier did not yet want to pursue.

[9] During the ensuing two years, Dr. Tran apparently neglected or refused to answer the lawyers’ requests for a medical report addressing the issue raised by the associate judge. The lawyers then considered the cost of obtaining a private mental capacity assessment to satisfy the court’s queries. Paralysed by Dr. Tran’s inaction and the impracticality of an assessment, the parties settled the suit and instructed their lawyers to request this case conference to carry the ball over the line.

[10] Pursuant to subrule 50.13(6), a case conference judge has the authority to make a procedural order such as a consent order settling an action and an order under subrule 7.01(1) dispensing with the need for a litigation guardian. The combined procedure required me to consider the following points:

1. Necessity of a Court Order

[11] The case conference took on the flavor of a litigation guardian’s motion to approve a settlement under rule 7.08, except there was no guardian to bring it. However, a rule 7.08 motion cannot be brought without a litigation guardian, because the guardian’s affidavit is a requirement under subrule 7.08(4)(a). An order dispensing with the appointment of a guardian for Ms. Weir presupposes the need for one. The further logical priority to that issue is need for an order appointing the litigation guardian for Ms. Weir, since her lawyers thought she needed one.

[12] Had Ms. Weir’s condition warranted appointment of a litigation guardian to instruct counsel on her behalf, her counsel could have appointed one without a court order. Rule 7.02 states that court appointment of a litigation guardian for a plaintiff is unnecessary. In the ordinary course, counsel for the plaintiff seeking to proceed with a litigation guardian files an affidavit over the counter under subrule 7.02(2). Clause 7.02(2)(c) requires the affidavit of the proposed litigation guardian to provide the evidence of the nature and extent of the disability. However, the sufficiency of the evidence is rarely questioned and only when someone opposes the appointment. The appointment of a litigation guardian for a person like Ms. Weir is usually a comfort blanket for litigation lawyers, and the proportion of adult plaintiffs with litigation guardians who qualify as parties under disability is an open question.

[13] After the filing of the affidavit, the next step would have been to amend the title of proceedings under clause 26.02(b) with the consent of the defendant and the litigation guardian.

[14] The plaintiffs’ lawyers could have carried out these two steps over the counter back in 2021. Counsel for the plaintiff confirmed her office brought the motion to appoint without first proceeding under rule 7.02. That was ultimately the source of the unnecessary bottleneck, because the associate judge questioned why the appointment was necessary. She correctly interpreted the evidence as falling short of a determination of mental incapacity. Since the motion has never been determined, the procedural status of the action is that Ms. Weir litigates right now without a litigation guardian. There is nothing intrinsically irregular about that. The associate judge’s reasoning only confirmed that the parties could have carried on and settled the claim without a litigation guardian for Ms. Weir.

[15] However, because the parties brought the case conference for an order to dispense with a litigation guardian for Ms. Weir, I am obliged to address the medical evidence giving rise to the motion and cannot simply sidestep the issue. In the next section, I explain why Ms. Weir is not under disability and should not be deprived of the autonomy to instruct counsel and obtain her money without going through a surrogate. Because she is not a party under disability, I can grant the consent order requested by the parties without any need to approve the settlement.

2. Disability under the Rules of Civil Procedure

[16] Although the court has heard disputes over the appointment of litigation guardians, the primary responsibility to consider the requirement for a litigation guardian in subrule 7.01(1) lies with plaintiff’s lawyers. The mandatory language sometimes causes confusion among lawyers, left wondering how the rules expect them to assess the mental capacity of their clients. Disagreements are rare. The law reports contain few disputes over the sufficiency of the evidence of disability in the guardian’s affidavit under clause 7.02(2)(c). Neither defendants nor the courts regularly question plaintiff’s counsel. The courts count on counsel’s professional judgment in matters of the client’s ability to instruct counsel, especially in borderline cases: Banton v. Banton, at para. 121.

[17] Section 3.2-9 of the Law Society of Ontario’s Rules of Professional Conduct require lawyers to “maintain a normal lawyer and client relationship” with a client whose mental disability impairs decision-making ability. Commentary 3 under this rule states that the need to appoint of a litigation guardian only arises if the client’s mental disability “is such that the client no longer has the legal capacity to manage their legal affairs.” The inability to manage legal affairs is different from other cognitive functions, such as operating a hot stove or a car. Because legal autonomy relates to basic human rights, the ethical response to the discovery of a client’s cognitive impairment is to consider whether that human right should be taken away.

[18] The court relies on lawyers as officers of the court to follow their ethical obligations. Thus, under rule 7.02, the extent of a plaintiff’s mental incapacity rarely comes into question. When it does, the starting point is the definition of “disability” in subrule 1.03(1). In addition to minors and absentees, disability arises from mental incapacity “within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, in respect of an issue in the proceeding.” Those provisions in the SDA deal with decision-making over property and personal care. The common features of both sections are the person’s ability (1) to understand information relevant to deciding or (2) to appreciate the reasonably foreseeable consequences of a decision or lack of decision. These two ideas are the axes of the law of legal capacity in Ontario.

[19] Has Ms. Weir lost her ability to understand the settlement of her personal injury claim and the consequence of releasing the defendants from it? There is no evidence that she has. Lack of memory about the accident, the impairment of her ability to manage finances or household duties, and similar findings of the clinicians, do not deprive a litigant of her autonomy to take advice from her lawyer and execute a settlement. Her dementia might mean she will forget the advice the next day. The lawyers can address this problem by memorializing instructions in writing. It is possible her condition might progress to the point that she cannot follow a conversation with her lawyers about the settlement of her accident claim. At that point, and only then, do subrule 7.01(1) of the court’s Rules and s. 3.2-9 of the LSO Rules combine to require appointment of a litigation guardian.

[20] Until such a time, Ms. Weir’s right to pursue or settle her lawsuit should not be transferred to a litigation guardian. Indeed, the point of obtaining a doctor’s advice at the early onset of dementia is to permit an elderly person to organize her affairs while she remains legally capable. Until Ms. Weir can no longer take advice and instruct counsel, removing her legal autonomy to settle the lawsuit based on early symptoms of dementia would amount to a serious injustice.

[21] This court need not consider whether Ms. Weir still possesses these abilities. The onus of establishing a party’s disability rests with the person making the allegation: Sosnowski v. Johnson, at para. 2. A further subtle but important difference between the ability to engage in these mental processes and the actual processing is that the law cannot remove the person’s autonomy to make a wrong decision or to refuse to make a right one: Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, at paras. 79-81. The capacity to decide is not connected to the quality of the decision itself. One ought not confuse competence under the SDA with the wisdom of decisions, even if others might find them unusual or eccentric: T (Re) and Hiltz and Szigeti, A Guide to Consent and Capacity Law in Ontario (Toronto: LexisNexis, 2005), at p. 25.

[22] Thus, until someone comes forward and demonstrates otherwise, Ms. Weir can enter a settlement and instruct her counsel to do so. That must be the basis of concluding the settlement as proposed, not a speculative belief that an inability to remember details of a car accident could be symptomatic of a mental condition depriving her of personal legal autonomy. I will formalize the plaintiffs’ settlement on the basis that they have both instructed their lawyers to consent to the order, as filed.

Conclusion

[23] I will therefore give effect to the consent executed by counsel on behalf of the parties, and sign the order as presented at the case conference.

Akazaki J. Date: July 29, 2024