How do courts deal with the sometimes mutually exclusive goals of protecting the vulnerable and safeguarding the integrity of the justice system for all participants? Our conversation starts with Rule 7.
The purpose of Rule 7 of the Rules of Civil Procedure,1 according to the Civil Rules Committee, is to safeguard and protect “……the interests of minors, mentally incapable adults, and absentees, alongside the integrity of the justice system for all participants, including the court and its resources.”2
The actual text of the rule reads “Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.”3
This raises a number of interesting questions. The subcommittee dealing with the Rules ties the definition of “a party under disability” to the “mentally incapable adult”. So what is the test for determining if a person requires a litigation guardian?
Rule 7.04(1) (b) uses the phrase, “…if the party 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 and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian”. In Constantino v. Costantino,4 Price J. explained:
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- The jurisprudence has identified the following factors that should be considered when applying the test for determining whether a party is under disability and requires a litigation guardian:
- A person’s ability to know or understand the minimum choices or decisions required and to make them;
- An appreciation of the consequences and effects of his or her choices or decisions;
- An appreciation of the nature of the proceedings;
- A person’s inability to choose and keep counsel;
- A person’s inability to represent him or herself;
- A person’s inability to distinguish between relevant and irrelevant issues; and,
- A person’s mistaken beliefs regarding the law or court procedures.
- Issues of mental capacity generally are to be decided on medical evidence. Courts have, in some circumstances, considered various types of evidence in determining whether a Litigation Guardian should be appointed:
- Medical or psychological evidence as to capacity;
- Evidence from persons who know the litigant well;
- The appearance and demeanour of the litigant;
- The testimony of the litigant; and,
- The opinion of the litigant’s own counsel.
- The jurisprudence has identified the following factors that should be considered when applying the test for determining whether a party is under disability and requires a litigation guardian:
With this background, let’s review what happened in Tipu v. Munchi et al.5 The plaintiff, Kunal Tipu (“Tipu”), sued his doctors for medical treatment received. The physicians brought a motion under Rule 7 seeking that Tipu be declared a person under disability and asked the court to appoint a litigation guardian on his behalf. The judge made a number of observations about Tipu’s capacity, including:
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- there could be substance to his claim that he lacked capacity;6
- a report from a capacity assessor, M. Ismail Shaikh…was of the opinion that Mr. Tipu was capable of retaining and instructing counsel;7
- another capacity assessor, Mohammed AlMudallal. Mr. AlMudallal was of the opinion that Mr. Tipu was capable of managing his property;8
- Yenssen concluded that there was insufficient evidence to displace the presumption of capacity in Mr. Tipu’s case;9
- Although he knows, or should know, that he has no evidence in support of his case, and although he has had legal assistance, of some nature from Mr. Lastman available to him for years, Mr. Tipu nonetheless appears to believe that if the court gives him “a trial”, it will somehow be a good thing for him. Mr. Tipu does not have a realistic sense of the value of his claim if it were to succeed. Although I stayed Mr. Tipu’s action when he first raised the issue of his incapacity, Tipu has since attempted to amend his statement of claim. One of these attempted amendments sought to increase the damages claimed to $400 million;10
- There is evidence that Mr. Tipu has difficulty differentiating between information that is relevant to his action and that which is irrelevant. He has also sent communications to the defendants’ counsel that suggest that he is having some difficulty processing the world around him. For example, Mr. Tipu has sent correspondence to the defendants’ counsel informing them that Loblaws is stealing from him, that a “device” was telling him to purchase Loblaws credit cards and that because of this device, he would be unable to represent himself in the action. Mr. Tipu told one of the defendants’ counsel in an email that one of the defendants had tried to turn him into a terrorist. Mr. Tipu also said he has a man-made foreign object inside of him as well as a monitoring device, which makes him do things he does not want to do. Further, Mr. Tipu informed defendants’ counsel his kidneys may have been taken outside of the hospital he was in.
In the context of the above findings and comments, the court determined that Mr. Tipu was a party under a disability and that the Public Guardian and Trustee should be appointed to act as his litigation guardian. The judge made this decision notwithstanding that Tipu apparently had the capacity to manage his property and instruct counsel.
Conclusion and takeaways:
As everyone with experience in estate litigation can attest, there are different levels of capacity depending on the task at hand.11 So for example, a person may be capable of managing their personal care and at the same time be incapable of making a testamentary document. A person may believe that Satan is a constant visitor and evil spirits are flying around in his room, but still be capable of making a will.12 To those practicing in this area of the law it comes as no surprise that a person may have the capacity to manage property or to hire a lawyer and still not possess the capacity to represent himself in litigation.
The other key takeaway from this case is that Rule 7 is not just about protecting the rights of the person under disability.13 It is also about protecting the integrity of the justice system for all participants. In this case the plaintiff was imagining all sorts of fantasies that fueled a lawsuit that had no chance of success. In the meantime the physicians in question were absorbed in a claim that had no merit, spent money on lawyers and faced the stress of a lawsuit. The court’s intervention and appointment of a litigation guardian therefore protected the integrity of the process.14
- R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE ↵
- See paragraph 2 b of the Court of Appeal Civil Rules Committee “About the Court” page of their website found at https://www.ontariocourts.ca/coa/about-the-court/civil-rules-committee/ ↵
- See Rule 7.05 which states, “Where a party is under disability, anything that a party in a proceeding is required or authorized to do may be done by the party’s litigation guardian.” A litigation guardian essentially steps into the shoes of the party under disability and makes the litigation decisions on their behalf. ↵
- 2016 CarswellOnt 18301, 2016 ONSC 7279, (2016) O.J. No. 5963, 273 A.C.W.S. (3d) 282. ↵
- 2024 CarswellOnt 14921, 2024 ONSC 5310 ↵
- See paragraph 8 of Tipu v. Munchi et al. ↵
- See paragraph 13 of Tipu v. Munchi et al. ↵
- See paragraph 15 of Tipu v. Munchi et al. ↵
- See paragraph 21 of Tipu v. Munchi et al. ↵
- See paragraphs 38-39 of Tipu v. Munchi et al. ↵
- See Penny v. Bolen, 2008 CanLII 48145 (ON.S.C.) at para. 19: “There are different tests for the capacity to make a Power of Attorney for personal care and for property. A person may be incapable of managing property but capable of making a Power of Attorney for Property. With respect to Powers of Attorney for Personal Care the capacity threshold is much lower than for Power of Attorney for Property which is lower than the capacity required to execute a will.” ↵
- See Banks v. Goodfellow (1870), All E.R. Rep. 47 (Q.B.) where this is exactly what transpired and the court still found that the testator had capacity. This test has been adopted by Canadian courts. See Popke v. Bolt (2005), ABQB 214 (Alta. Q.B.), and Larocque v. Landry (1922), 52 O.L.R. 479 (Ont. C.A.). I would also refer the reader to Justice Laskin’s summary of the elements of capacity in Schwartz v. Schwartz, (1970) 2 O.R. 61 (Ont. C.A.). The testator must be sufficiently clear in his understanding and memory, to know on his own and in a general way, (a) the nature and extent of his property, (b) the persons who are the natural objects of his bounty, and (c) the testamentary provisions he is making; And he must be capable of (d) appreciating these factors in relation to each other, and (e) forming an orderly desire as to the disposition of his property. For an interesting blog on the topic see Capacity in the Estate Context ↵
- We refer the reader to a blog written by our partner Brad Phillips titled, “Court Ordered Capacity Assessments”. In reviewing the Abrams case, Brad discusses the reluctance judges have in ordering parties to undergo a capacity assessment if they are resisting such an order. Courts balance a party’s fundamental right to dignity and privacy, as well as their legal rights, against the court’s duty to protect the vulnerable. ↵
- The Rules provide defendants with different options for dealing with plaintiffs who seem to be bringing cases without merit. For example, Rules 2.1 and 21 provide a basis to seek dismissal of claims that are frivolous, vexatious or an abuse of process. Rule 20 provides the party with the option to seek summary judgment. Rule 21 also provides parties with an avenue to seek a determination of an issue before trial. It would be interesting to ask the lawyers why on this case they did not bring a motion under Rule 21, Rule 20 or Rule 21. ↵