Designating a Person as a Party Under Disability in Ontario

An interesting illustration of the type of process that is to be undertaking in order to have a party litigant, in a civil litigation lawsuit, designated as a ‘party under disability’ against their will: York Condominium Corporation No. 301 v. James, 2014 ONSC 908.

This case involves a condominium corporation seeking certain relief against the defendant, who occupies a unit in the condo. Allegations include that the defendant is unfit to care for herself (i.e. sleeping in stairwell) and may be a danger to herself and others (i.e. lighting a fire in her unit).

Previous motion attendances in this lawsuit included the condo seeking and obtaining an Order requiring the defendant to undergo a mental examination by a physician or psychologist, against her will. The defendant did not comply with that Order and did not show up at this subject motion, leaving the Court no choice but to designate her as a party underdisability and to appoint the Public Guardian and Trustee as her litigation guardian in this lawsuit.

As Judge Morgan states in this Endorsement:

[3] This matter was before me on October 21, 2013, at which time I ordered that Ms. James undergo a mental examination by a licensed physician or psychologist by no later than January 21, 2014. Ms. James appeared in person at that hearing and indicated that she intended to cooperate with that process. My order specifically stated that the purpose of the examination was to determine whether she is mentally incapable within the meaning of sections 6 or 45 of the Substitute Decisions Act, 1992.

[4] It does not appear that Ms. James has undergone the required assessment. Mr. Fine, for the Applicant, confirms that there is no evidence in the record to that effect. Indeed, Ms. James has not filed any materials to date, and I have the impression that she is not fully aware of the import of these legal proceedings or how to approach them.

[5] The affidavits filed in support of the Application narrate an ongoing pattern of erratic behaviour by Ms. James. Some of her conduct raises the concern that she is a health and safety risk to herself (such as sleeping in stairwells), and some of which presents a danger to the other residents of the condominium building (such as lighting a fire in her unit). Mr. Fine rightly points out that while Ms. James must be given due process and an appropriate opportunity to respond to the Application, the matter is of sufficient urgency that it should not be delayed any further than is necessary.

[6] Having already ordered that an assessment of Ms. James’ mental capacity be performed many months ago and having no sign that my order was obeyed, it seems futile to simply re-order that an assessment be done. Not only does the affidavit evidence strongly suggest that Ms. James may be suffering from mental health problems, but her non-attention to and non-compliance with the requirements of this case suggest that she is not able to deal with legal proceedings on her own.

[7] For her own sake, therefore, I have little choice but to appoint a litigation guardian in order to ensure that her rights are protected. While I do not have the usual medical evidence before me in the form of a report from a qualified medical practitioner, the very lack of such a report in the face of my previous order, together with Ms. James’ non-appearance today in the face of Stinson J.’s order, strongly suggest that Ms. James meets the test set out in Rule 7.04 (b) for appointment of the PGT as her litigation guardian.

….

[11] It is hereby declared that Ms. James is a party under disability within the meaning of Rules 7.04 and 1.03 and that no person is willing or able to act as litigation guardian for her.

[12] The PGT is hereby appointed litigation guardian for Ms. James, under Rule 7. The title of proceedings are accordingly amended to show the name of the Respondent as “Valerie Victoria James, by her litigation guardian, the Public Guardian and Trustee”.

Gregory Chang

Toronto Insurance and Personal Injury Lawyer

Source: Ontario Superior Court, York Condominium Corporation No. 301 v. James, 2014 ONSC 908 (CanLII), dated February 7, 2014.