If concerns arise during court proceedings that one of the parties to the litigation lacks capacity to instruct counsel, the judge may take matters into their own hands and inquire into that party’s capacity, even if neither party has raised capacity as an issue. Justice Chown’s recent decision in Bajwa v. Singh, 2022 ONSC 2151 provides auseful demonstration of this power.
In this case, a 98 year-old plaintiff sued her daughter and son-in-law to recover payment of a loan. In response, the defendants claimed that the loan was in fact a gift. At trial, evidence was presented which raised concerns about the plaintiff’s capacity to instruct counsel. As a result, following the evidence phase of the trial, Justice Chown required further evidence regarding the plaintiff’s capacity to be presented and ordered another hearing at which the Public Guardian and Trustee was invited to give submissions on the appropriate next steps.
In a subsequent decision, reported at 2022 ONSC 3720, the court ordered the plaintiff to undergo a capacity assessment in order to determine whether she required a litigation guardian to proceed. Factors highlighted by the court for assessing capacity to instruct counsel included:
a. Her ability to understand and appreciate:
- i. the nature of the proceedings and the ultimate issue in the proceedings;
- ii. the financial risks and benefits of the lawsuit, including how either a positive or negative outcome for her will affect her financially;
- iii. the available options, including the option to proceed to judgment or to try to settle;
- iv. the position taken by her family members about the issues in this proceeding;
- v. the factors which may be motivating her family members; and
- vi. the social risks and benefits of this proceeding, including its impact on her relationships with her family members.
b. Her ability to assess the comparative risk of the available alternatives, and a reasonable range of possible outcomes, both positive and negative.
c. Her ability to make a reasoned choice regarding this proceeding, the rationality of her choice, and the stability of her choice.
Justice Chown ultimately found that the plaintiff lacked capacity to instruct counsel in light of the capacity assessment, and the lawsuit was also dismissed on its merits: see 2023 ONSC 4063.
While it is reassuring to know that the court has the power to inquire into a party’s capacity to instruct counsel, concerns about capacity may also be raised by the other parties to the litigation. To learn more, see our previous blog post, Challenging a Litigant’s Capacity.
Thank you for reading, and have a great day!