The Applicants applied for advice and direction from the Court with respect to the appointment of a Litigation Representative to represent the Respondent. The Respondent had commenced the Action as Executor and Trustee of his uncle’s Estate. During enforcement proceedings, an Application was brought to hold the Respondent in contempt, but during the course of the Application, the Court received advice that the Respondent was hospitalized for a psychiatric condition. The Contempt Application was adjourned sine die, requiring the Applicant to give 30 days’ notice to continue the Application so the Respondent could file an Affidavit detailing his psychiatric condition. The evidence regarding capacity was admitted with the consent of the Parties. It was in the form of unsworn physician letters and reports and a physician’s Affidavit which indicated that the Respondent suffered from several serious psychiatric conditions. Justice Ross first noted that the definition of capacity under the Adult Guardianship and Trusteeship Act was incorporated in Rule 2.11(c), which provided that “an adult is presumed to have the capacity to make decisions until the contrary is determined”. The admitted fact that the Respondent suffered from a psychiatric condition did not mean that he lacked capacity as defined in Rule 2.11(c). Lack of capacity in the defined sense must be proved on a balance of probabilities.

None of the letters or reports directly addressed the Respondent’s capacity to understand relevant information or to appreciate the consequences of decisions relating to the Action. The evidence suggested that the Respondent’s condition might affect his ability to control his actions and, if this was the case, the Respondent might require strict Case Management to enforce timelines and to deal with repeated Applications. The Court held that there was no basis, on the evidence before the Court, to conclude that the Respondent lacked capacity as defined in Rule 2.11(c) and did not direct the appointment of a Litigation Representative under Rule 2.15.

Justice Ross noted that Rule 2.15 put adverse Parties in a difficult position by imposing an obligation on them to seek Court appointment of a Litigation Representative when an opposite Party lacks capacity to make decisions about a claim in an Action. The determination of a Party’s capacity must be based on proper evidence, and the adverse Party might not have the ability to provide that evidence. In this case, the Applicants asked the Respondent to obtain an up-to-date letter from his doctor, but the Respondent did not do so. Based on this, the Court held that the Applicants fulfilled the obligation imposed by Rule 2.15 and were free to pursue their intention to bring a Summary Dismissal Application.