McKee v. Director of Motor Vehicle Claims Fund et al, 2025
On February 11, 2025, the Ontario Superior Court of Justice addressed the issue of a plaintiff’s mental capacity to initiate legal proceedings. The court dismissed the defendant’s motion to either stay the proceedings, appoint Public Guardian and Trustee (PGT) as Litigation Guardian, or require the Plaintiff to submit to a capacity assessment. The decision reaffirmed the presumption of capacity and emphasized the high threshold required to rebut this presumption.
Case Overview
The plaintiff, Mr. Gerald Heron McKee, was involved in a pedestrian-motor vehicle collision on September 30, 2020, in Pembroke, Ontario. The driver fled the scene, and the Director of the Motor Vehicle Accident Claims Fund (the Fund) assumed the defence. Mr. McKee, a retired radio broadcaster living independently, initiated legal action seeking compensation for his injuries. However, the defendant sought to halt the proceedings, arguing that at his examination for discovery, Mr. McKee demonstrated an inability to understand the nature of the lawsuit, the impact of his injuries or the consequences of decisions such as agreeing to a settlement.
Defendant’s Motion
The Fund filed a motion under Rules 7.01(1) and 15.02(4) of the Rules of Civil Procedure, seeking to stay the proceedings on the grounds that Mr. McKee was mentally incapable, as defined under Section 45 of the Substitute Decisions Act (SDA), and as a result lacked the capacity to commence the lawsuit. Alternatively, the Fund requested the appointment of the PGT as Mr. McKee’s litigation guardian or, further alternatively, an order for Mr. McKee to undergo a capacity assessment under Section 105 of the Courts of Justice Act.
Court’s Analysis
Justice Abrams emphasized the strong presumption of capacity enshrined in Section 2(1) of the SDA, which states that individuals are presumed capable of making decisions unless proven otherwise. The court highlighted that capacity is task-specific and must be assessed concerning the particular decision at hand—in this case, the capacity to instruct legal counsel.
The court considered affidavit evidence from Mr. McKee’s legal counsel, case manager and personal support worker, all of whom attested to his ability to understand the legal process and make other informed decisions. The Fund’s reliance on anecdotal observations from an articling student was deemed insufficient to rebut the presumption of capacity. Justice Abrams quoted Sylvester v. Britton, 2018 ONSC 6620 decision that emphasized that where a lawyer decides that their client has the requisite capacity to instruct them, courts should only intrude on that assessment with “great reluctance and where the evidence demonstrates a strong likelihood that counsel has strayed from his or her obligations to the client and to the court.” He also found that Mr. McKee’s responses, while occasionally unclear, were consistent with those of an average layperson “attempting to answer a lawyer’s questions with legal precision in a process that is both foreign and intimidating.”
Justice Abrams also reiterated that compelling a person to undergo a capacity assessment is a serious intrusion on personal autonomy and quoted with approval Abrams v. Abrams, 2008 CanLII 67844 (ONSC), where the court held that capacity assessments result in a substantial intervention into the privacy and security of the individual.
Justice Abrams concluded that the evidence did not demonstrate that Mr. McKee was incapable of commencing litigation or instructing counsel and that since the defence failed to rebut the presumption of capacity, no capacity assessment was warranted. Consequently, the motion to stay the proceedings was dismissed, and the court also declined to appoint a litigation guardian or order a capacity assessment.
Implications
This decision underscores the judiciary’s reluctance to interfere with an individual’s autonomy without compelling evidence. It reaffirms that the presumption of capacity is robust and that overcoming it requires substantial proof. For personal injury legal practitioners representing plaintiffs in Ontario, this case highlights that defending clients’ right to pursue justice extends beyond the compensation for their injuries – it also includes safeguarding their fundamental legal autonomy.