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 Company2012 ONCA 309, at para. 6Winter v. Sherman Estate2018 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. 17Klimek v. Klos[2013] O.J. No. 3740 (S.C.), at para. 25Hussaini v. Freedman2013 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. Costantino2016 ONSC 7279, at para. 58Huang, 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 Mart2014 ONSC 6974, at para. 72Kim v. The Manufacturers Life Insurance Company2014 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) 641Cooper v. Comer2017 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. 20Evans v. Evans2017 ONSC 4345, 96 R.F.L. (7th) 300, at paras. 51-53; and Kim v. The Manufacturers Life Insurance Company2014 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: you’re not a litigation guardian until you file an affidavit

The appointment of a litigation guardian will cause the limitation period to commence when the plaintiff is a minor or without capacity (see ss. 6, 7).  Does the limitation period commence when the litigation guardian holds herself out as a litigation guardian, or when the litigation guardian files the affidavit required by r. 7 of the Rules of Civil Procedure? The court in Siddiqui v. Saint Francis Xavier High School found it’s the latter:

[40]           In short, the courts have sought to protect the interest of minors and have found that it takes “clear and unequivocal” wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.

[42]           I conclude that the court in Socha recognized the term “litigation guardian” as a term of art when it identified the lack of any mechanism of self-appointment under the Act and then referred to the process for appointment of a litigation guardian under the Rules of Civil Procedure.

[48]           I agree with the Plaintiffs that the words of s. 6(b) of the Act must be given meaning otherwise the mere delivery of a notice letter would be sufficient.  The consequence of such a proposition would allow the running of a limitation period against a minor without affording them any measure of protection while their rights begin to fade away and would permit such a letter to be sent by anyone simply holding themselves out to be a litigation guardian.

[49]           I agree that that the determination of a minor’s rights should not turn on a question of the choice of words used in a letter. Such a proposition would not introduce certainty and would provide no protection to minors and persons under disability.

[50]           This conclusion is reinforced by the other provisions of the Act; namely ss. 9 and 14, where a prospective defendant can trigger the running of a limitation period. In those circumstances, a mere notice letter will not suffice. In short, those provisions demonstrate the balancing of rights that is required under the Act.

[51]           Section 9 (2) provides:

Appointment of litigation guardian on application or motion by potential defendant

(2) If the running of a limitation period in relation to a claim is postponed or suspended under section 6 or 7, a potential defendant may make an application or a motion to have a litigation guardian appointed for a potential plaintiff.

      Effect of appointment

(3) Subject to subsection (4), the appointment of a litigation guardian ends the postponement or suspension of the running of the limitation period if the following conditions are met:

  1.   The appointment is made by a judge on the application or motion of a potential defendant.
  1.   The judge is satisfied that the litigation guardian,
  1. has been served with the motion,
  2. has consented to the appointment in writing, or in person before the judge,

iii. in connection with the claim, knows of the matters referred to in clause 5 (1) (a),

  1. does not have an interest adverse to that of the potential plaintiff, and
  2. agrees to attend to the potential plaintiff’s interests diligently and to take all necessary steps for their protection, including the commencement of a claim if appropriate.


(4) The limitation period shall be deemed not to expire against the potential plaintiff until the later of,

(a)   the date that is six months after the potential defendant files, with proof of service on the litigation guardian,

  1.                                                                  a notice that complies with subsection (5), and
  1.                                                               a declaration that, on the filing date, the potential defendant is not aware of any proceeding by the litigation guardian against the potential defendant in respect of the claim; and

(b) the date on which the limitation period would otherwise expire after it resumes running under subsection (3).


(5) The notice,

(a) shall not be served before the first anniversary of the appointment;

(b) shall identify the potential plaintiff, the potential defendant and the claim; and

(c) shall indicate that the claim could be extinguished if a proceeding is not promptly commenced.  2002, c. 24, Sched. B, s. 9 (5).

[52]           Given all of the requirements of s. 9, it is clear that the few words found in s. 6(b) cannot be to be interpreted in such an informal manner as to negate the protections for minors available under law. Such an interpretation would be contrary to the scheme and purpose of the legislation. The balancing of rights is achieved through the provisions of s. 9 of the Act which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.