CITATION: Hipkiss v. Patel, 2026 ONSC 254

COURT FILE NO.: CV-22-89308

DATE: 2026/01/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Paul-Robert Hipkiss

Plaintiff

– and –

Dr. Sujay Vinod Patel

Defendant

Self-Represented

Matthew Ng, Litigation Guardian for Mr. Hipkiss, Public Guardian and Trustee

Isabelle Corbeil and Stephanie Pearce, for the Defendant

HEARD: December 11, 2025

Reasons for Decision on appointment of litigation guardian

Judge Somji

Overview

1The defendant and moving party, Dr. Patel, brings a motion under Rule 7 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (“the Rules”) for an Order declaring Mr. Hipkiss a party under a disability and for the appointment of Office of the Public Guardian and Trustee (“PGT”) as litigation guardian for Mr. Hipkiss.

2Mr. Hipkiss was catastrophically injured and sustained a traumatic brain injury in a motor vehicle accident on October 29, 2014. Litigation relating to the motor vehicle accident commenced in 2016 (Hipkiss v. Comeau, Court File No. CV-16-69137, hereinafter the “MVA litigation”).

3On March 29, 2021, Williams J. signed an Order approving a settlement of the MVA litigation for $2 million, with $10,000 to be provided to each Mr. Hipkiss’ three children as part of the Family Law Act claims. In that same Order, Her Honour, pursuant to a capacity assessment of Dr. Francine Sarazin dated April 20, 2019, removed Mr. Hipkiss’ stepmother as litigation guardian and granted leave to allow Mr. Hipkiss to continue the proceeding on his own. At the time of the assessment, Dr. Sarazin found that Mr. Hipkiss had capacity to provide instructions to counsel and manage property, and she did not foresee any concerns regarding his capacity to manage disbursement of any future settlement.

4However, Mr. Hipkiss subsequently refused to sign the necessary releases to finalize the $2 million settlement. He explained to Williams J. that to do so would violate his constitutional rights. Concerned about Mr. Hipkiss’ ongoing mental health, his ability to make decisions in respect of the merits of the settlements, including management of fair and reasonable fees with his lawyers, that Mr. Hipkiss had not been able to access accident benefits or treatments, and that Mr. Hipkiss continued to live off a disability pension, Williams J ordered Mr. Hipkiss to undergo another capacity assessment: Hipkiss v Comeau, 2023 ONSC 4023 at paras 25-28; 41-42; 48.

5On September 17, 2024, Williams J. accepted the opinion of the capacity assessor Dr. Reagan Gale and found that Mr. Hipkiss required a litigation guardian. On October 18, 2024, Williams J. issued an Order that Mr. Hipkiss is a party under a disability and confirmed the appointment of PGT as litigation guardian. Mr. Hipkiss appealed the decision, but the filing of his appeal materials to the Ontario Court of Appeal was not accepted.

6Matthew Ing, counsel for PGT, is appointed as litigation guardian for Mr. Hipkiss on the MVA litigation. It has now been over eleven years since the accident and over nine years since the MVA litigation commenced. Mr. Ing reports that the settlement issues on the MVA litigation continues but is nearing its final stages.

7Mr. Hipkiss commenced this action on May 24, 2022, against the defendant Dr. Sujay Vinod Patel, a psychiatrist practicing in western Ontario. Mr. Hipkiss alleges that Dr. Patel was negligent when they briefly met on January 28, 2021, at which time Dr. Patel was asked to conduct an Independent Medical Examination (IME) of Mr. Hipkiss for the MVA litigation. Dr. Patel terminated their appointment after five minutes because Mr. Hipkiss was non-compliant and hostile towards him and would not response to his attempts to commence the interview. Eighteen months after the encounter, Mr. Hipkiss filed a lawsuit against Dr. Patel seeking $900,000 in damages. For ease of reference, I will refer to this action as the “IME litigation.”

8The MVA litigation and this action are related in that both matters require Mr. Hipkiss to assess the risks, benefits, and costs consequences of pursuing litigation. The defendant argues that in addition to Dr. Gale’s report, there is sufficient evidence to demonstrate that Mr. Hipkiss is unable to understand the nature of the legal issues in the IME litigation and would be unable to appreciate the consequences of his legal decisions. Furthermore, Mr. Hipkiss has done nothing to advance this matter since July 2022, and Mr. Hipkiss’ limited correspondence to counsel contains largely incoherent and irrelevant responses making it challenging for counsel to meaningfully engage with him for the purpose of advancing this matter. In these circumstances, defendant’s counsel seeks that Mr. Hipkiss be found a party under a disability and that PGT be appointed his litigation guardian for the IME litigation.

9Mr. Hipkiss did not file any materials in response to the motion. He attended the motion in person and provided oral submissions addressed below. Mr. Hipkiss asserted he has capacity, but other than this assertion, he provided no meaningful submission or evidence to support his claim.

10The issue to be decided is whether Mr. Hipkiss can represent himself in these proceedings or if he is a party under disability requiring the appointment of a litigation guardian for the IME litigation?

Analysis

11At the outset of litigation, an individual is presumed to have capacity. There is no specific framework under r. 7 for a motion to appoint a litigation guardian where a party’s incapacity arises during the course of the litigation. The onus of establishing incapacity of a self-represented litigant rests with the party raising the concern. The determination of whether a person has capacity to represent themselves or is a person requiring a litigation guardian is ultimately a legal one: Safee-Basir v. Wernham 2022 ONSC 6792 at para 5.

12Rule 7.01(1) allows the court to appoint a litigation guardian to represent a party that is under “disability.” Rule 1.03 defines a person under a disability as a person who is mentally incapable within the meaning of sections 6 and 45 of the Substitute Decisions Act, S.O. 1992, c.30 (“SDA”) in respect of an issue in a legal proceeding whether the person has a guardian or not.

13More specifically, under the SDA, a mentally incapable person includes one who is not able to understand information that is relevant in making a decision in the management of his or her own property, or a person unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision: ss. 6 and 45 SDA; see Chung v. Dale, 2018 ONSC 1820 at para 12.

14There is nothing such as global incapacity. An individual may lack capacity in one area but not another. Additionally, there are different tiers for different decisions or classes of decisions. There are distinctions between one’s capacity to make personal care decisions, to manage property, to represent oneself in court, or to instruct counsel. With respect to capacity in the context of litigation, the relevant question is whether a person is able to understand the information that is relevant to making a decision in respect of an issue in a legal proceeding or able to appreciate the reasonably foreseeable consequences of that decision: Susan Eng v. Elizabeth Eng, 2021 ONSC 464 at paras 15 to 21; Lummack v Campbell et. al., 2016 ONSC 3294 at para. 35

15The test for determining whether a litigation guardian is required under r.7 was set out in Huang v Braga, 2016 ONSC 6306 at para 18 as follows:

[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.

In addition, the cause of incapacity must stem from a source of mental incapacity such as 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] OJ No. 5613 (SCJ) at para. 25 (C.A.S. Toronto).

16In assessing whether a person is under a disability and requires a litigation guardian, the court may consider the following factors:

i. A person's ability to know or understand the minimum choices or decisions required and to make them;

ii. An appreciation of the consequences and effects of his or her choices or decisions;

iii. An appreciation of the nature of the proceedings;

iv. A person's inability to choose and keep counsel;

v. A person's inability to represent him or herself;

vi. A person's inability to distinguish between relevant and irrelevant issues; and;

vii. A person's mistaken beliefs regarding the law or court procedures: Costantino v Costantino, 2016 ONSC 7279 at para 57; MacLeod v Toronto Catholic District School Board et al, 2021 ONSC 5672 at para 24 (leave to appeal refused).

17Medical evidence is not a prerequisite to a finding that a person is a party under disability. A party may, by their own behaviour, put their mental capacity in issue: Auriemma et al. v. Cristoveanu, 2023 ONSC 5072 at paras 37–38. The court can also consider the behaviour, appearance, demeanor, and testimony of a party within court: Chung at para 29; Willmot v. Benton, 2010 ONSC 5610 (leave to appeal refused) at paras 24 to 26, 30; Costantino, para 58.

18Once a party is determined to be under a disability, the proceeding shall be continued by a litigation guardian on behalf of the party under a disability. Unless there is some other proper person willing and able to act as a litigation guardian for a party under a disability, the court shall appoint the PGT: rr. 7.01(1) and 7.04(1)(b).

19Finally, courts should not interfere lightly in a person’s choice to represent themselves. At the same time, it must be remembered that the purpose of appointing a litigation guardian is to protect the party, the other parties, and the court itself. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its orders will be obeyed: Auriemma et al. v Cristoveanu, 2023 ONSC 5072 at para 34; see also Huang at paras 16 and 17.

20Upon review of the materials filed and submissions of counsel and upon consideration of the medical opinion of Dr. Gale, the decisions of Williams J. finding Mr. Hipkiss a party under disability, and Mr. Hipkiss’ own conduct in these proceedings, I find that Mr. Hipkiss is a party under a disability and requires the appointment of a litigation guardian for the IME litigation.

21First, Dr. Gale conducted a thorough capacity assessment of Mr. Hipkiss in 2024. Mr. Hipkiss was 60 years of age. After a review of his medical and legal records, discussions with Mr. Hipkiss’ former counsel, and several interviews of Mr. Hipkiss, she concluded that Mr. Hipkiss is able to partially understand the nature and context of the MVA litigation but is unable to appreciate the consequences and effects of all his choices or decisions. Consequently, upon consideration of the Constantino factors, Dr. Gale found that, on a balance of probabilities, Mr. Hipkiss is a person under a disability and requires a litigation guardian. Dr. Gale also recommended that Mr. Hipkiss undergo a capacity assessment to manage property at the time of disbursement of settlement funds which she had not been tasked to do.

22More specifically,, Dr. Gale found in her report dated January 5, 2024, that:

i. Mr. Hipkiss sustained a catastrophic brain injury and has been diagnosed with major neurocognitive disorder (dementia) due to traumatic brain injury with behaviour disturbance. Mr. Hipkiss’ pre-MVC mental health history is complex and includes maladaptive personality features/disorder, PTSD, and substance misuse.

ii. Mr. Hipkiss has pressured, tangential and circumlocutory speech, and that Mr. Hipkiss returns regularly to several topics, including “misandry” and a self-described “schism” between “Paul-Robert” and “Hipkiss” being difficult to redirect. He consistently repeated that “Paul-Robert” is gone.

iii. Mr. Hipkiss provided inconsistent answers between the two interviews when asked to describe the choices or decisions available to him. He exhibited mistaken beliefs, notably that incarceration caused him to “lose” his human rights and that the settlements and releases are “unconstitutional” which demonstrates his fundamental misunderstanding of standard civil settlements and releases.

iv. Mr. Hipkiss exhibited some criteria that define capable decision making, but he also described beliefs that were both fixed and false that directly affected his decisions and reasons for making them. His choices were predicated on false premises: that he lost his human rights and that the person named in the settlement (Paul-Robert) no longer existed.

v. Mr. Hipkiss provided contrary answers. He stated he signed releases on December 4, 2023, in significant part because he had already lost his “rights” being incarcerated, and as a result he was willing to sign the release. He also indicated that he signed the release as he perceived his lawyer felt guilty about not having arranged for him to be represented on an unrelated family law matter, which is an ill-conceived notion.

vi. When asked about his decisions to release the settlement funds to his mother, he stated that his mother will be “temporarily in charge of the money.” However, later, he reported that he was prohibited from speaking with his mother “because of on-going proceedings.” He could not fully appreciate the risks and consequences of providing funds to a person who has no formalized obligation to manage his property or with whom there was a no-contact order.

vii. When faced with a series of true/false questions, Mr. Hipkiss’ responses were accurate, but outside these binary options, his remarks suggested certain fixed, false, and inaccurate beliefs that formed the rationale of the decisions he has made.

23As Dr. Gale points out, even if Mr. Hipkiss is able to partially understand the issues and context of the MVA litigation, he is unable to understand all the risks and consequences of his legal choices. While I appreciate that some of the legal issues in this case (medical malpractice lawsuit) may be distinct from those within the MVA litigation (personal injury lawsuit), both cases require Mr. Hipkiss to fully appreciate the nature and consequences of his legal choices and decisions. Those choices include, for example, assessing the risks, benefits, and costs consequences of proceeding with legal steps that may adversely affect Mr. Hipkiss’ own personal and financial interests. I find that while Dr. Gale’s assessment addressed the issues of the MVA litigation, her findings are equally applicable to the concerns raised in this litigation.

24Furthermore, there has been no medical evidence filed to suggest that Mr. Hipkiss’ medical condition has changed since the time of assessment. On the contrary, as discussed below, Mr. Hipkiss’ conduct in these legal proceedings is consistent with the observations made of his conduct in the MVA litigation which Dr. Gale describes in her report and Williams J. describes in her ruling finding Mr. Hipkiss a person under disability in the MVA litigation. Consequently, I find there would be little merit in obtaining a further capacity assessment specific to the IME litigation.

25Second, while Mr. Hipkiss appeared to understand the context of the MVA litigation in his interview with Dr. Gale, a review of the Statement of Claim and Statement of Defence suggests that Mr. Hipkiss may not understand the nature and context of this medical malpractice claim or that he may be operating under a fictional premise as to the purpose of the IME. According to the Statement of Claim, Mr. Hipkiss alleges that Dr. Patel was negligent because he failed to provide transportation for Mr. Hipkiss to attend the appointment and to adjust Mr. Hipkiss’ spine after Mr. Hipkiss’ long walk to the clinic which resulted in pain and suffering. As already noted, Dr. Patel is a psychiatrist. As per the Statement of Defence, it was not Dr. Patel’s responsibility to arrange transportation to the clinic assess or to treat Mr. Hipkiss’ spine.

26Third, there is evidence from Mr. Hipkiss’ visit with Dr. Patel on January 28, 2021, that Mr. Hipkiss is unable to follow instructions. The events of the IME as described by Dr. Patel indicate that Mr. Hipkiss engaged in non-compliant and hostile behaviour that prevented the completion of the assessment, including refusing clinic screening (i.e. temperature check necessary at time of COVID), throwing the assessor’s coat from the examination table, making groaning and grunting noises, refusing to answer basic identification questions or commence the interview, and answering Dr. Patel’s questions with an insult.

27Fourth, Mr. Hipkiss admits he has cognitive challenges following the 2014 accident. In his self-authored book entitled “Welcome to Canada: a perfect crime” Mr. Hipkiss admits he sustained a brain injury on October 29, 2014, as a pedestrian struck in a school-zone crosswalk. He repeatedly attributes his physical, cognitive, and psychological conditions to this crash and describes immediate and subsequent findings consistent with traumatic brain injury and multisystem trauma. Throughout the document he describes challenges with processing and memory, language and communication, executive functioning and attention, PTSD, as well as seizures and myoclonus.

28Fifth, in the limited correspondence from Mr. Hipkiss to Dr. Patel’s counsel, Mr. Hipkiss demonstrates continued mistaken beliefs and an inability to engage with relevant litigation issues. This is evidenced by the multi-recipient emails to police and third parties, links to personal websites, and the transmission of his self-authored book, all of which is irrelevant to the pleaded IME negligence claim. I understand he engaged in similar behaviour in the MVA litigation.

29Sixth, Ms. Hipkiss has taken no meaningful procedural steps since the close of pleadings to advance this litigation. He has corresponded with counsel only five times, his responses have contained largely irrelevant content, and in one instance he threatened to have counsel disbarred if they did not comply with his request for a hearing in person.

30Finally, Mr. Hipkiss’ courtroom behaviour demonstrates a limited ability to focus and understand the legal proceedings. During the motion hearing, I asked Mr. Hipkiss about his position on this motion. Some of the statements he made in his response to me were as follows:

• The MVA settlement was unconstitutional.

• During Operation New Dawn he taught people in Iraq.

• We are all muzzling his right to free speech.

• That he cannot have a stove because he has too many fires.

• Mr. Ing is guilty of negligence since March 2021.

• He saw Dr. Gale under duress.

• If it were not for Dr. Patel, he would have learned about his scoliosis earlier.

• Dr. Patel was negligent and should have helped him understand his plight with his back.

• There were hospitals in Cannes, Korea, and Saudia Arabia where doctors could help him.

• He asked judges to send him to Carleton University, but they did not want to rehabilitate him with course and education. Judges are part of the problem and this is a different form of negligence.

31When asked again what his position was on the appointment of a litigation guardian, Mr. Hipkiss stated that he had capacity and this was supported by the fact that he was capable of writing a book and “what man says no to millions of dollars.”

32The IME litigation will require consideration and assessment of the nature of Dr. Patel’s duty of care to the patient and whether he breached that duty. It may require expert evidence.

33It is apparent from the motion that Mr. Hipkiss is unable to make a coherent or relevant submission and to adequately respond to questions relevant to the litigation issue before him. Similarly, counsel submits that Mr. Hipkiss was unable to coherently respond to counsel’s basic request for case management, which would predictably reduce delay and costs for Mr. Hipkiss. I find that Mr. Hipkiss has not demonstrated an ability to understand and/or take minimal decisions related to these legal proceedings. Consequently, I find it is highly unlikely that he will be able to coherently address the relevant legal issues or if he does take decisions, that he will be able to meaningfully appreciate the nature and consequences of these decision in the IME litigation. For all of these reasons, I find Mr. Hipkiss is a party under disability within the meaning of the SDA and a litigation guardian should be appointed for him in the IME litigation.

34PGT remains litigation guardian for the MVA litigation which has some relation to this matter. PGT has confirmed they are prepared to act as litigation guardian if Mr. Hipkiss is found to be a party under disability for the IME litigation. Alternatives guardians were previously considered in the MVA litigation, and one was removed. Defendant’s counsel has not been able to identify any alternative person to act litigation guardian for the IME litigation. In these circumstances, I find that PGT should act as litigation guardian pursuant to r. 7.04(1)(b).

35There will be an Order that:

[a] Paul-Robert Hipkiss is a party under disability in the IME litigation, case file CV-22-00089308.

[b] The PGT is appointed litigation guardian for Mr. Hipkiss for the IME litigation, and the title of the proceedings in Court File No CV-22-00089308 is to be amended accordingly.

[c] The PGT is entitled upon request for the production and delivery of all information relating to Paul-Robert Hipkiss, including but not limited to medical, psychiatric, financial, governmental and personal information, documents, records, correspondence, clinical notes, reports, charts, assessments, or tests from any person, firm, corporation, institution, organization, medical facility, psychiatric facility, service provider or governmental authority, whether federal, provincial or municipal, to which Paul-Robert Hipkiss would be entitled were he capable of making the request, without requiring the consent of Paul-Robert Hipkiss.

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

36Counsel for the defendants upon consultation with PGT will submit a draft Order consistent with this decision and will including any additional terms necessary for PGT to be able to effectively act as litigation guardian.