The endorsement by Justice Archibald in Huang v Braga shows just how far the courts can go to protect the interests of a party when there are concerns related to capacity. The defendant brought a motion requesting an assessment to determine the plaintiff’s capacity to manage property. Justice Archibald ordered that the self-represented plaintiff in this case, consent to a capacity assessment scheduled less than two weeks before trial. 

The action arose out of an accident that occurred in 2000. Since that time self-represented plaintiff retained five different counsel. Ultimately, they decided to act for themself. The matter tentatively settled in 2015 for what Justice Archibald described as a “large amount of money”, but the plaintiff ultimately did not accept the settlement. 

Eighteen months prior to the motion, Justice Archibald ordered that the plaintiff attend a capacity assessment with a psychiatrist. The assessor concluded that their Major Depressive Disorder had improved and they had sufficient cognitive capacity to act for themself. However, the assessor cautioned that the plaintiff’s cognitive abilities were in constant flux and that a ruling on their capacity in March 2015 would not necessarily mean that they would be capable of prosecuting their own case. 

The evidence at the motion included the psychiatric assessment, oral submissions from opposing counsel given during the case management conferences held on September 15 and 17, 2016, previous counsel’s written submissions, the plaintiff’s answers to questions posed to them by opposing counsel during the case management,  and the judge’s own observations.

At the trial management conference on September 15, 2016, counsel for the defendant asked the plaintiff what would happen if the jury did not accept their position. They indicated that they may lose her case, but also referred to the money that the insurance company would still owe them that would be paid to cover their losses. 

Justice Archibald had been involved in the trial management of the action for the past three years and had the opportunity to observe the plaintiff and stated [28]: 

I have questioned [the plaintiff] several times about [their] reasons for refusing to settle. Each time, [they] indicated that the offers have been insufficient to meet [their] needs in [their] old age. This response completely ignores the likely scenario, which many different counsel have attempted to convey to [them] that any award [they] receive at trial will be far less than the proposed settlement amounts.  [Their] flawed reasoning illustrates [their] fundamental inability to appreciate the draconian cost consequences of refusing the large settlement offers. 

Pursuant to section 16(1) of the Substitute Decisions Act (SDA), Justice Archibald ordered that the plaintiff consent to attend capacity assessment on September 22, 2016. The cost of the assessment and an interpreter were to be borne by the plaintiff out of the income replacement benefit monies. The defense had already paid for two prior assessments. 

Important points to take away: 

  • A party’s capacity can change throughout the litigation process. It is important to ensure that an assessment continues to be relevant and accurate. More than one assessment may be necessary. 
  • The assessment of capacity is only one piece of evidence on a motion pursuant to s. 16 of the SDA. The evidence can also include the observations of counsel and the trier of fact.
  • The costs of the capacity assessment are not necessarily borne by the party requesting the assessment.
  • An assessment of incapacity will have far-reaching consequences on a person’s life that go well beyond the litigation.

If you have any questions about this blog or a similar file please contact Jennifer Griffiths