2025 ONSC 2197

COURT FILE NO.: CV-22-00000028-0000
DATE: February 11, 2025
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
Gerald Heron McKee
Plaintiff
– and –
Director of the Motor Vehicle Accident Claims Fund, John Doe, Jane Doe
Defendants

Appearances:
Miryam Gorelashvili, for the Plaintiff
Lucas Ostrowski, for the Defendant, Director of the Motor Vehicle Accident Claims Fund

AMENDED Ruling on motion
Abrams, J

Introduction

[1] The defendant, the Director of the Motor Vehicle Accident Claims Fund (“the defendant” or “the fund”), seeks an order pursuant to r. 7.01(1) and 15.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), staying the proceeding on the basis that the plaintiff, Gerald Heron McKee (“the plaintiff”), is mentally incapable as defined under s. 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) and thus lacked capacity to commence this proceeding.

[2] In the alternative, the defendant seeks an order pursuant to r. 7.04(1) of the Rules, appointing the Public Guardian and Trustee (“PGT”) as Litigation Guardian.

[3] In the further alternative, the defendant seeks an order pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), requiring the plaintiff to submit to a capacity assessment for the purpose of determining whether he is a person under disability as defined under s. 45 of the SDA.

[4] The plaintiff opposes the motion on the grounds that he possesses the requisite mental capacity to instruct counsel and to pursue his claim. He contends that his position is substantiated by consistent and credible evidence provided by his legal counsel, case manager, and personal support worker, all of whom have affirmed his understanding of the legal process and his ability to make informed decisions.

Brief Background

[5] This litigation relates to a pedestrian-motor vehicle collision in which the plaintiff was struck by an unidentified car in Pembroke on September 30, 2020.

[6] The police were unable to identify the driver of the hit-and-run vehicle. As a result, the action is being defended by the fund.

[7] The plaintiff lived independently in Pembroke at the time of the collision as he does today. He has never married, has no children, and is self-sufficient in his daily activities.

[8] The plaintiff is a high school graduate and former radio broadcaster. He receives benefits from Canada Pension Plan Retirement, Old Age Security, and Ontario Drug Benefit.

[9] The plaintiff has no immediate family or close friends who would be able to act as his litigation guardian.

[10] The plaintiff identifies as a “private,” “rebel,” “contrarian,” and “non-conformist,” traits that inform his interactions and personal choices.

[11] The plaintiff is described as someone who always pays rent a month in advance, has no banking issues, is social/chatty, and is known to be a “repeater” when he talks.

[12] The plaintiff is also described as a determined individual, with a high pain tolerance, who seeks or needs control over his living situation, and is sometimes resistant or suspicious of service providers.

Injuries – Post Collision Care

[13] The plaintiff was struck by a vehicle traveling between 40-60 km/h. The impact propelled him over the vehicle.

[14] As a result of the collision, the plaintiff sustained blunt trauma, including a head injury, facial lacerations, a right elbow injury, and a metatarsal fracture in his left foot.

[15] Following the collision, the plaintiff was admitted to Pembroke Regional Hospital before being referred to ABI rehabilitation at The Ottawa Hospital.

[16] Following his course of treatment at the ABI Rehabilitation Clinic, the plaintiff was discharged to his apartment with support from his community treatment team.

[17] Since his discharge, the plaintiff has maintained his independence, managing his own finances and daily needs without external assistance.

[18] The plaintiff continues to engage at a slow and steady pace in his banking, cooking, shopping, and daily walks, maintaining the simple and predictable routine that he held prior to the accident.

Issues

[19] The issues for the court to determine on this motion are as follows:

a. Should the court stay the proceedings on the basis that the plaintiff is mentally incapable of making decisions in relation to his personal care as defined under s. 45 of the SDA, and thus lacked capacity to commence this proceeding.

b. In the alternative, should the court appoint the PGT as Litigation Guardian of the plaintiff pursuant to r. 7.04(1) of the Rules.

c. Further in the alternative, should the court order the plaintiff to undergo a capacity assessment pursuant to s. 105 of the CJA, to determine if he is a person under disability as defined under s. 45 of the SDA.

Parties' Positions

[20] The defendant contends that the plaintiff meets the definition of a person with a disability. Simply put, he lacks the ability to understand facts that are pertinent to issues in the litigation and to appreciate the risks and consequences of his decisions because of his impaired executive function, communication, and memory. In particular, the defendant asserts that the plaintiff’s evidence at his examination for discovery indicates that he does not understand the impact of the injuries and impairments that he is alleged to suffer in his statement of claim, does not understand the purpose of the litigation, and he does not appreciate the consequences of decisions such as agreeing to a settlement out of court. In the circumstances, the defendant argues that the plaintiff lacked the capacity to commence this litigation or to instruct counsel without the appointment of a litigation guardian.

[21] The plaintiff asserts he has demonstrated his capacity to instruct counsel, manage his personal affairs, and engage meaningfully in this legal proceeding. The affidavits from his legal counsel, case manager, and personal support worker provide consistent and credible evidence of his competence. To that end, the presumption of capacity under the SDA has not been rebutted by compelling evidence. Moreover, subjecting him to an intrusive and unnecessary capacity assessment would infringe upon his privacy, autonomy, and well-being.

Legal Framework and Analysis

Capacity to Instruct Counsel

[22] A party under disability, as defined by r. 1.03(1) of the Rules, includes an individual deemed mentally incapable according to ss. 6 (Incapacity to manage property) or 45 (Incapacity for personal care) of the SDA.

[23] Section 45 of the SDA pertains to a person’s capacity for personal care, defining incapacity in terms of understanding information relevant to decisions concerning health care, nutrition, shelter, clothing, hygiene, or safety. Notably, this section does not address the capacity to instruct counsel for the purpose of initiating or conducting legal proceedings.

[24] By analogy to the SDA, the test for litigation incapacity involves an individual's inability to understand relevant information or to appreciate the foreseeable consequences of decisions or lack thereof. Capacity is assessed based on the specific task or activity in question, acknowledging that a person might be capable of one task but not another.

[25] In determining mental incapacity, courts prioritize direct and relevant evidence to assess an individual's ability to make decisions regarding litigation. The courts consider the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian:

a. Medical or psychological evidence as to capacity;
b. Evidence from persons who know the litigant well;
c. Appearance and demeanour of the litigant;
d. Testimony of the litigant; and
e. Opinion of the litigant's own counsel.

[26] The evidence must show a potential source of mental incapacity and prove that the person cannot understand or appreciate the consequences of their decisions.

[27] In Sylvester v. Britton, 2018 ONSC 6620, paras. 74-75, this court emphasized the importance of distinguishing between clients who cannot provide any instructions, such as those who are in a coma or who cannot articulate their desires in any understandable form, and those who, despite perhaps not fully appreciating every aspect of the legal process, can communicate their wishes and instructions. The court concluded that where a lawyer decides that their client has the requisite capacity to instruct them, courts generally should only intrude on that assessment with "great reluctance and where the evidence demonstrates a strong likelihood that counsel has strayed from his or her obligations to the client and to the court.”

[28] Lawyers are bound by ethical obligations, under the Law Society of Ontario’s Rules of Professional Conduct, to maintain a normal client relationship and to presume their client's capacity to make decisions about legal affairs until there is reason to believe otherwise. This presumption aligns with the fundamental principle of client autonomy.

[29] Section 2(1) of the SDA presumes that individuals who are 18 years of age or older are capable of entering into contracts, including retaining counsel and instructing them on legal matters.

[30] The professional judgment of a lawyer, based on interactions with the client, plays a critical role in determining capacity. Since assuming representation of the plaintiff in January 2023, Mr. Evsikov has engaged in numerous discussions with him. Throughout these interactions, Mr. Evsikov has formed the view that the plaintiff has consistently expressed his objectives and expectations from this legal process clearly and decisively. Based on his interactions to date, it is Mr. Evsikov’s professional judgment that the plaintiff understands the legal discussions and is capable of making informed decisions about his case.

[31] Further, the affidavits provided by the plaintiff’s case manager, Mr. Chris Fitzgerald (“Mr. Fitzgerald”), and personal support worker, Ms. Lisa Stitt (“Ms. Stitt”), offer consistent and credible evidence of his capacity. Notably, these affidavits are from professionals with substantial experience and direct knowledge of the plaintiff’s condition and capabilities. Their affidavits offer detailed observations of the plaintiff’s functional capacity in his everyday life. Notably, they identified no concerns regarding his capacity to consent to treatment, manage his affairs, and handle his personal life.

[32] To recall, the defendant argues that the plaintiff’s evidence at his examination for discovery indicates that he does not understand the impact of the injuries and impairments that he is alleged to suffer in his statement of claim, does not understand the purpose of the litigation, and he does not appreciate the consequences of decisions such as agreeing to a settlement out of court. I do not see it that way.

[33] First, the defendant relies in part on the anecdotal evidence of Ms. Sarah Barnett (“Ms. Barnett”), an articling student, who attended the plaintiff’s examination for discovery and opined on his comprehension of certain questions put to him. In my view, Ms. Barnett’s observations should be afforded limited weight in determining the plaintiff’s capacity. Ms. Barnett does not possess the professional qualifications or experience required to make a reliable assessment of mental capacity. Rather, her observations are inherently anecdotal and lack the clinical or legal expertise necessary to substantiate claims of incapacity.

[34] Second, the defendant is critical of certain answers given by the plaintiff at his examination for discovery. For example, when asked about his understanding of the purpose and intent of commencing the action, he responded that he was seeking “restitution towards the accident”, which he explained to mean “pertaining to the concerns of the accident and nature.” Further, when asked about what would happen at the end of the proceeding, he testified that it was “[t]o enjoy the ability of life to the fullest consent or whatever.” In my view, the defendant’s criticism is unmerited. While meaning no disrespect to the plaintiff, I find his responses to be equally consistent with the average lay person attempting to answer a lawyer’s questions with legal precision in a process that is both foreign and intimidating.

[35] Third, in contrast, I find that the evidence marshalled by the plaintiff, through the affidavits of Mr. Evsikov, Mr. Fitzgerald, and Ms. Stitt, offers consistent and credible evidence of his capacity. The totality of their evidence, based on substantial experience and direct knowledge of the plaintiff’s condition and capabilities, is persuasive.

[36] For all these reasons, I find that the presumption of capacity has not been rebutted by compelling evidence. In the result, I am not inclined to stay the proceedings as requested, nor am I prepared to appoint the PGT as Litigation Guardian.

Capacity Assessments

[37] Having found that the presumption of capacity has not been rebutted, I find it unnecessary to answer the third issue in detail, other than to say that ordering a capacity assessment under s. 105 of the CJA should be a rare exception and not the rule.

[38] Strathy J. (as he then was) writing for this court in Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.), aff’d, [2009] O.J. No. 1223 (Div. Ct.), dismissed a motion for capacity assessments. In doing so, Strathy J. emphasized the importance of protecting an individual's privacy and autonomy, ruling against capacity assessments that intrude unnecessarily into personal life. Further, Strathy J. held that the appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual.

Conclusion

[39] In the result, the defendant’s motion is dismissed.

[40] If the parties are unable to agree on the matter of costs, written submissions limited to five pages, double spaced, 12-point font or larger, written on one side of the page, shall be filed within 30 days, together with a Bill of Costs, and any Offers to Settle.

B. W. Abrams

Released: February 11, 2025