Ontario Act s. 7(1)(a)

Ontario: s. 7 capacity analyses

The Superior Court decision in Wood v. David Mitchell et al. makes two points relevant to s. 7 analyses.

First, a lawyer’s observations and views about a person’s capacity can be factors in a s. 7 analysis:

[23]            Several months after the Master wrote her endorsement, the Court of Appeal released its decision in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447 (CanLII). In that case, Jamal JA dealt comprehensively with the issue of proof of incapacity under s. 7 of the Limitations Act, 2002. At para. 105, he wrote:

(vii)      Evidence

[104]   A potential litigant will usually require persuasive medical or psychological evidence to prove that they lacked the capacity to commence the proceeding in respect of the claim: see e.g., Deck International Inc. v. The Manufacturers Life Assurance Company, 2012 ONCA 309, at para. 6; Winter v. Sherman Estate, 2018 ONCA 379, at para. 14, leave to appeal refused, [2019] S.C.C.A. No. 438; Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264, at para. 17; Klimek v. Klos, [2013] O.J. No. 3740 (S.C.), at para. 25; Hussaini v. Freedman, 2013 ONSC 779, at para. 51; and Landrie, at para. 35.

[105]   Other evidence may also be relevant, such as:

  •      Evidence from persons who know the plaintiff well, the appearance and demeanour of the plaintiff, testimony of the plaintiff,or the opinion of the plaintiff’s own counsel: see e.g., Costantino v. Costantino, 2016 ONSC 7279, at para. 58; Huang, at para. 20; and Children’s Aid Society of Toronto, at para. 34;
  •      The plaintiff’s ability to commence other civil proceedings (see e.g., Asagwara v. Money Mart, 2014 ONSC 6974, at para. 72; Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, at para. 55) or to defend criminal proceedings (see e.g., Winmill v. Woodstock Police Services Board et al., 2017 ONSC 2528, at para. 32, rev’d on other grounds, 2017 ONCA 962, 138 O.R. (3d) 641; Cooper v. Comer, 2017 ONSC 4142, at para. 57); and
  •      Other indicators of capacity, such as the potential litigant’s ability to travel, instruct counsel, swear affidavits, and make decisions affecting legal rights, if they bear on the capacity to commence a proceeding in respect of the claim: see e.g., Reid, at para. 17; Klimek, at paras. 24-25.

[106]   Finally, just because a person can function on a day-to-day basis and make the decisions required in daily life does not necessarily mean they have the capacity to start an action in respect of a claim: see Bisoukis, at para. 48. On the other hand, just because a person has a mental illness does not necessarily mean that they are incapable of instructing a lawyer or commencing a proceeding: see Mew, at p. 205, at §6.17, citing Panciera v. Rokotetsky et al., 2009 MBQB 129, 252 Man.R. (2d) 115, at para. 20; Evans v. Evans, 2017 ONSC 4345, 96 R.F.L. (7th) 300, at paras. 51-53; and Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, 31 C.C.L.I. (5th) 252, at paras. 54-60, aff’d 2014 ONCA 658, 40 C.C.L.I. (5th) 12.
[Bolded emphasis added.]

[24]            Jamal JA expressly held that counsel’s opinion of a client’s capacity is evidence bearing on the issue of capacity for the purposes of s. 7 (1)(a) of the statute. He also held that evidence of the client’s ability to instruct counsel and make decisions affecting his rights will be relevant if they bear on (or are probative of) his capacity to commence a claim. To be sure, contemporaneous medical evidence is the principal means of proof of capacity or incapacity. But, as Jamal JA notes in para. 106, proof of mental illness alone is not necessarily sufficient to prove incapacity.

[25]            The Master recognized that Mr. Wood’s lawyers’ observations and views about Mr. Wood’s capacity were properly factors in the calculus. She rightly notes that this would not make the lawyers’ entire file producible per se. But, rather than delimiting the relevant portions of the file, she went straight to privilege and then held that the only producible document in the lawyers’ file would be medical evidence in the form of a formal capacity assessment, if any.

[26]            In my respectful view, the Master erred by failing to continue her analysis of relevancy. She found that the lawyers’ view was a relevant factor and then simply dismissed the request for the entire file. Mr. Veel argues that there may be many things in the file that might be relevant and not privileged. For example, if the lawyer wrote to third parties and discussed Mr. Wood’s capacity, the letter would be relevant and could not be privileged. Moreover, if the lawyer took a note of his observations of Mr. Wood’s physical, cognitive, or emotional state those could be facts relevant to capacity without being privileged communications.

Second, when assessing whether a plaintiff is represented by a litigation guardian, the question is not merely whether the plaintiff’s litigation guardian has announced him or herself to the defendants:

[44]            The discussion of “holding out” in Azzeh related to the reasons why the irregularity in the manner of appointment of the litigation guardian was nevertheless sufficient under s. 7 (1)(b). But did the Court of Appeal mean to say that holding out is always necessary to satisfy s. 7 (1)(b)? Maybe. Or perhaps there may be other factors at play in a case where litigation is actually commenced with no litigation guardian by a plaintiff who later claims he was incapacitated at the time. That is a different question and a difficult one at that.

[45]            Ms. McFarlane argues that under s. 9 of the Limitations Act, 2002, defendants have the opportunity to move to appoint a litigation guardian for a reluctant plaintiff so there is no risk of an unlimited extension of the limitation period. That may be correct. But it appears to also have been the case in Azzeh had it been argued. That may be one of many open questions to be resolved.

[46]            In my respectful view, the Master erred in law in finding that all that is relevant to the question of whether a plaintiff “is … represented by a litigation guardian in relation to the claim” under s. 7 (1)(b) of the Limitations Act, 2002, is whether…“Mr. McQueen represented himself to the any of the defendants as Mr. Wood’s litigation guardian.” That is one factor that made an imperfect commencement of a claim sufficient in Azzeh. But no case has decided that it is the only relevant factor or a necessary factor in every case. If it is, it may provide a significant loophole to de facto litigation guardians who keep quiet. In my view, it is an open question. The relevant question of law is in issue in a bona fide and not frivolous way. Such questions are for the trial judge on a full evidentiary record. They are not for resolution on a production motion. See: Jodi L. Feldman Professional Corporation v. Foulidis, 2018 CanLII 121633 (ON SC), at para. 21.

Ontario: the principles of s. 7 capacity

The Superior Court decision in Enns v. Goertzen provides a detailed consideration of the Limitation Act’s s. 7 capacity provisions.  Two points are particularly noteworthy:

  1. It summarises the authorities for the principle that s. 7 capacity is distinct from legal capacity.
  2. Although it acknowledges that the Limitations Act does not define “incapable of commencing a proceeding”, instead of considering what this means the court takes the now standard approach of applying the factors developed for determining whether a party is under disability and requires a litigation guardian.  Section 7 incapacity encompasses parties under disability, but is much broader.  For example, s. 7 arguably encompasses a circumstance where a person is physically unable to commence a proceeding, perhaps because of some incapacitating injury, but has no mental impairment.  This the analysis:

[273]      In evaluating whether evidence of the nature described above is available on this motion, it is helpful to first consider the scope of the subject matter of s. 7(1) of the Act, which focuses on an individual’s lack of capability to commence a proceeding in respect of a claim.  The phrase “incapable of commencing a proceeding” is not defined in the Act (nor is the word “incapable”).  Further, the Act does not prescribe enumerated criteria that either must or may be considered by a court in determining whether a claimant has rebutted the presumption prescribed by s. 7(2) of the Act, other than its general reference to an individual’s physical, mental or psychological condition in s. 7(1) of the Act. As I will address below, the decided cases offer some additional guidance in that regard.

[274]      First, the issue of an individual’s capability to commence a legal proceeding must not be confused with other forms of legal capacity. For example, in this instance, each of the parties has adduced evidence that they say either demonstrates that after her stroke, Ms. Enns possessed legal capacity to engage in certain activities, other than commencing a proceeding or that she did not possess legal capacity to engage in certain activities, other than commencing a proceeding, respectively.

[276]      Yet, s. 7 of the Act is exclusively focused on an individual’s capability to commence a proceeding in respect of a claim, which is distinct from an individual’s capacity, to: consent to medical treatment; manage financial affairs; or even to “discover” a claim. Indeed, in Cook v. Joyce, 2016 ONSC 2164, 130 O.R. (3d) 114, rev’d on other grounds 2017 ONCA 49, at para. 138, Perell J. articulates the clear distinction between the mental state that is required to subjectively and objectively discover that one has a claim (discoverability) and the capacity to sue.  He also distinguishes the capacity to commence an action from other legally recognized forms of capacity, at para. 178, as follows:

This type of legal phenomenon of different mental states coexisting is not unknown to the law.  The mental capacity to sue is not the same as the mental capacity to contract, or to marry, or to execute a will, or to consent to medical treatment.  To take a simple example, a teenager involved in a car accident might have discovered her claim without a litigation guardian having been appointed, the limitation period for that discovered claim would be suspended because the teenager would be a minor without the legal capacity to sue. [Emphasis added.]

Finally, he cautions that the issues of “discoverability and legal capacity to sue should not be conflated” (see: para. 180).

[277]      To that, I would add that an individual’s legal capability (or incapability) to commence a proceeding ought not to be conflated with the individual’s capacity to:  consent to medical treatment; consent to the disclosure of health related or other personal information; or to manage their own financial affairs. A conclusory finding that an individual was, for example, capable of consenting to medical treatment at a certain point in time, is not synonymous with a finding that an individual was, at that point in time, capable of commencing a proceeding in respect of a claim.  Similarly, a finding that an individual was or is incapable of managing his or her own financial affairs or property does not unequivocally prove that the person was or is incapable of commencing a proceeding.

[278]      Second, in order to negative the presumption prescribed by s. 7(2) of the Act (and stop the running of the limitation period) a claimant is not required to prove that he or she is a mental defective, a mental incompetent, or of unsound mind.  Instead, the issue remains whether a person’s physical, mental or psychological condition renders that person incapable of commencing a proceeding in respect of a claim, at any time before the appointment of a litigation guardian. If so, the accrual of the limitation period is suspended during the period of incapacity.  That standard recognizes that it is unfair to run a limitation period against a plaintiff who is incapable of commencing an action: see Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, at paras. 29-32.
[279]      Third, the decided cases assist in identifying relevant factors for consideration when determining whether a person is incapable of commencing a proceeding in respect of a claim.  For example, in Huang v. Braga, 2016 ONSC 6306, at para. 19, leave to appeal to Divisional Court refused, 2017 ONSC 3826, Archibald J. curates from the jurisprudence, several factors that merit consideration when determining whether a party is under a disability and requires a litigation guardian specifically:
(a)        A person’s ability to know or understand the minimum choices or decisions required and to make them;

(b)        An appreciation of the consequences and effects of his or her choices or decisions;

(c)        An appreciation of the nature of the proceedings;

(d)      A person’s inability to choose and keep counsel;

(e)        A person’s inability to represent him or herself;

(f)        A person’s inability to distinguish between relevant and irrelevant issues; and,

(g)        A person’s mistaken beliefs regarding the law or court procedures.

[280]      In Hengeveld v. Ontario (Transportation), 2017 ONSC 6300, at para. 21, Hebner J. considered the foregoing factors when determining whether a party was “incapable”.  Subsequently, in Carmichael v. Glaxosmithkline Inc., 2019 ONSC 2037, at para. 40, Lederer J. similarly found that the foregoing factors merit consideration when determining if a party is incapable of commencing an action in accordance with s. 7 of the Act. Indeed, I have considered the foregoing factors, in the context of the available evidence, when determining whether the evidence discloses a genuine issue with respect to Ms. Enns’ historical capacity to commence a proceeding.

The decision also holds that there is no general rule requiring medical evidence to establish historical capacity:

[281]      In Carmichael, the court was assisted by expert opinion evidence concerning the plaintiff’s ability (or lack thereof) to commence a proceeding in respect of a claim during a specified time period that occurred before the proceeding was commenced.  Expert evidence directly addressing that issue has not been adduced by any party in the context of this motion.

[282]      The defendants seize on the absence of evidence from a qualified expert, expressly opining that Ms. Enns was incapable of commencing a proceeding in respect of her claim against them any earlier than she did, as a basis to conclude that there is no genuine issue that requires a trial to determine whether she has proved facts contrary to the presumption prescribed by s. 7(2) of the Act. They posit that a plaintiff relying on an alleged historical “incapacity to sue” as a means to extend the running of a limitation period must adduce specific medical evidence that he or she lacked capacity to bring a claim within the two year limitation period.
[283]      Yet, the provisions of the Act do not mandate that evidence of that nature be adduced. I am not persuaded that such evidence must necessarily and unequivocally be lead, in every case, on behalf of a person with a claim, who seeks to prove facts contrary to the presumption prescribed by s. 7(2) of the Act. I will explain.
[284]      The jurisprudence generally lends support to the proposition that a party seeking to prove facts contrary to the presumption set out in s. 7(2) of the Act is well served by adducing medical evidence on the issue.  For example, in Cook v. Joyce, Perell J. states at para. 152:
It should not escape notice that but for the presumption of incapacity available to victims of sexual assault, a plaintiff relying on incapacity to sue as a means to extend the running of a limitation period would likely have to provide medical evidence indicating that he or she lacked the capacity to bring a claim within the two year limitation period (see: Deck International Inc. v. Manufacturers Life Insurance, 2012 ONCA 309 (Ont. C.A.), at paras. 4 and 6; Klimec v. Klos, [2013] O.J. No. 3740 (Ont. S.C.J.), at para. 25; Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264 (Ont. S.C.J.), at paras. 13-17). [Emphasis added.]

[285]      Similarly, in Deck International Inc. v. Manufacturers Life Insurance, 2012 ONCA 309, the plaintiffs appealed an order of summary judgment dismissing their action for long term disability benefits.  After recounting: the motion judge’s finding that there was insufficient evidence to support a finding of incapacity, such that s. 7 of the Act would apply; and the appellants’ submission that the motion judge failed to consider all the evidence before the court, the Court of Appeal concluded, at para 6:

We do not accept this submission.  There was no medical evidence to the effect that Mr. Donaldson lacked the capacity to commence the action within the meaning of s. 7.  There was evidence from family members as to his disability, but that is not the same thing as medical evidence going to the issue of capacity to commence an action. [Emphasis added.]

[286]      Similar sentiments were expressed in Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264, at para. 17, and Aletkina v. Hospital for Sick Children, 2014 ONSC 6263 (Div. Ct.), at paras. 11-14.

[287]      In my view, the foregoing authorities do not establish a general legal principle that: a party that seeks to prove facts contrary to the presumption prescribed by s. 7(2) of the Act is, by necessity, required to adduce an expert medical opinion that the plaintiff lacked capacity to commence a proceeding in respect of a claim prior to the expiration of the limitation period; or that a plaintiff is always required to lead expert medical evidence that he or she is under a “legal disability”.  Although such evidence has the potential to be of great benefit in proving facts contrary to the presumption prescribed by s. 7(2) of the Act, there may be situations where evidence of the narrative circumstances alone is sufficient to negative that presumption, without the need for specified expert evidence on the point.  For example, where the evidence reveals that a “person with a claim” was unconscious while in a coma for a prolonged period of time.  In that circumstance, the type of expert medical evidence that the defendants assert must always be adduced on behalf of a person with a claim, would not be necessary in order to establish that the person was incapable of commencing a proceeding, while unconscious.
[288]      Even in the absence of a specific expert opinion of the type described by the defendants, medical evidence will often be the most compelling and expedient manner through which a party may prove the contrary to the presumption prescribed by s. 7(2) of the Act. In the absence of such evidence, a party may very well fall short of meeting its onus in that regard. Nonetheless, there have been instances where courts have concluded that a party has successfully rebutted the presumption prescribed by s. 7(2) of the Act, even in the absence of confirmatory medical opinion evidence on the issue:  for example, see Landrie, at paras. 35 and 53-56.