Today, we complete our series of blogs focused on the recent Re Sandhu, 2022 BCSC 2027, decision dealing with assessments of mental capacity.

As reviewed in Monday’s blog entry, an application had been made for an order requiring the respondent father to submit for a further capacity assessment and other relief.  With the presumption that an individual is capable of managing their own property, there is no automatic right to have an individual submit for a capacity assessment and it can be very difficult to obtain a court order compelling them to do so. 

As reviewed in Re Sandhu, when considering applications under the Patients Property Act, RSBC 1996, c 349, in which declarations of incapacity may be sought, courts in British Columbia may order a medical examination using its inherent jurisdiction, albeit only in exceptional circumstances.  Generally, the evidence must establish: (1) that there are serious questions to be tried as to the person’s capacity, and (2) that there are serious questions to be tried as to the person’s need for protection.     

In Ontario, Section 79 of our Substitute Decisions Act, 1992, SO 1992, c 30, addresses the ability of the court to order that a person submit for a capacity assessment “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 related case law makes clear that the existence of both of these conditions does not necessarily mean that a capacity assessment will be ordered, with courts reviewing matters on a case-by-case basis and considering their actual merits.  Given the intrusive nature of a capacity assessment, courts tend to exercise their discretion to order that a person submit for an assessment of their capacity with caution.

As we saw in Re Sandhu, even where there is evidence suggestive of at least some degree of capacity issues, a court may not be satisfied that what the judge referred to as “the extraordinarily intrusive remedy” of a capacity assessment is warranted absent clear and compelling grounds to believe that the person is incapable.  When assisting clients with matters where orders compelling capacity assessments are being requested, it would be prudent to consider Justice Shergill’s words in Re Sandhu: “…it is imperative that the court take care to exercise its power of inherent jurisdiction under proper circumstances, as compelling a person to submit to a medical examination intrudes on their personal autonomy, and implicates several Charter values”.

Thank you for reading,

Nick Esterbauer