“A person is under “disability” under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, if he or she 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…” [Emphasis added.]
The case law is clear that in assessing disability for litigation purposes the issues are somewhat wider than the considerations before the Consent and Capacity Board under the Substitute Decisions Act, 1992. Capacity “in respect of an issue in the proceeding” involves an assessment of capacity addressed in the context of the administration of justice. In Huang v Braga, 2016 ONSC 6306 (CanLII) Archibald J. summarized the state of the case law and held:
[19] The jurisprudence has established the following additional factors should be considered when determining whether a party is under disability and requires a litigation guardian:
(a) The 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.
W. M. v Office of the Public Guardian and Trustee, 2017 ONSC 5887 (CanLII) at 9-10