“The court has the authority to order a capacity assessment under s. 79(1) of the SDA [Substitute Decisions Act] which provides:
If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.
In addition, the court has jurisdiction to require a party to undergo a mental examination under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.48. However, under s. 105(3) of the Courts of Justice Act, where the question of a party’s mental condition is first raised by another party, an order under s. 105 shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
Under r. 1.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a person is considered to be under a disability if they are mentally incapable within the meaning of ss. 6 or 45 of the SDA in respect of an issue in the proceeding. Under r. 7.01, a proceeding shall be commenced, continued or defended on behalf of a party under a disability by a litigation guardian.
In 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, Stinson J. commented on the difference between the definition of disability in the Rules and in the SDA, noting, at para. 19, that r. 7 is designed to protect the integrity of the court’s process, while the focus of the SDA is solely on the protection of the individual. Proceedings under the SDA are not private litigation in the traditional sense. “The interests that these proceedings seek to balance are not the interest of litigants, but the interests of the person alleged to be incapable as against the interest and the duty of the state to protect the vulnerable”: see also Abrams v. Abrams, 2008 CanLII 67884 (Ont. S.C.J.), at para. 48.
Justice Stinson held that, in a non-SDA proceeding governed by the Rules, the definition of “disability” in r. 1.03(1)(b) should be read along with s. 6 of the SDA to mean that someone will be considered a person under a disability if he or she is not able to understand information that is relevant to making a decision in the management of his or her property in respect of an issue in the proceeding, or if the person is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding: at para. 21.
A person who is 18 years of age or more is presumed to be capable: s. 2(1) SDA. Where capacity is in doubt or challenged, the moving party bears the onus of establishing that a party is a person under a disability: Kagan, Shastri at para. 23.
However, on either a motion to appoint or remove a litigation guardian, a mental examination is not the norm, and should not automatically be ordered under s. 105 of the Courts of Justice Act. As Stinson J. held in Kagan, Shastri at para. 40:
To the contrary: ordinarily the evidence on such a motion should be presented by way of affidavits from persons who already possess the relevant information, without need for a court-ordered mental examination. A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.
In Abrams, at para. 53, Strathy J., as he then was, considered whether to order a capacity assessment under s. 79 of the SDA, or alternatively, a mental examination under s. 105 of the Courts of Justice Act. He laid out a list of factors to consider and balance to determine whether, in all the circumstances, the public interests and the interests of the party in question require that an assessment take place and justify the intrusion into their privacy. These include:
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- The purpose of the SDA;
- The terms of s. 79, that (i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe that the person is incapable;
- The nature and circumstances of the proceedings in which the issue is raised;
- The nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
- If there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
- Whether there are flaws in the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
- Whether the assessment will be necessary in order to decide the issue before the court;
- Whether any harm will be done if an assessment does not take place;
- Whether there is any urgency to the assessment; and
- The wishes of the person sought to be examined, taking into account his or her capacity.”
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