Our current statistics on demographics confirm that our population is rapidly aging.[1] We also know that with age and longevity can come an increase in the occurrence of medical issues affecting executive functioning in the brain. Among these issues are certain diseases and disorders, such as dementia in varying types and degrees, delirium, delusional disorders and other conditions that involve reduced functioning and capability.[2]

Lawyers have a duty to satisfy themselves of their client’s capacity, vulnerability, and susceptibility to undue influence. As part of this duty, lawyers are obligated to ensure in any retainer that their clients have the requisite decisional capacity to retain counsel and give instructions to counsel.

Where concerns regarding the capacity of a party to litigation present themselves during the course of a proceeding, the court may take the initiative to probe that party’s capacity. As there are no statutory guidelines to assist a trier of fact in this determination, courts look to common law decisions.[3]

Recently, Justice Chown of the Ontario Superior Court provided an in-depth analysis of the capacity to instruct counsel which can be particularly useful for practitioners and decision-makers.

In Bajwa v. Singh,[4] the 98-year-old plaintiff commenced a claim to recover money that was alleged to have been loaned to the defendants. While neither party raised the issue of capacity, during the testimony of the plaintiff, Justice Chown grew concerned when the plaintiff was unable to recite her age, could not state why she was at trial, or state the correct year of her late husband’s death.[5] Justice Chown then made an interim order for additional evidence concerning the plaintiff’s capacity and ordered another hearing which invited the Public Guardian and Trustee to provide submissions on the appropriate next steps.

In a subsequent decision,[6] Justice Chown ordered the plaintiff to undergo a capacity assessment for the purpose of determining whether she required a litigation guardian to continue in the proceeding.

In the decision, Justice Chown highlighted that there is “no single definitive test to be applied in assessing whether a litigant has the capacity to instruct counsel,” and proceeded to highlight some of the most important factors in assessing the requisite decisional capacity to instruct counsel. Justice Chown provided that these factors include:

1. Her ability to understand and appreciate:
   1. the nature of the proceedings and the ultimate issue in the proceedings;
   2. the financial risks and benefits of the lawsuit, including how either a positive or negative outcome for her will affect her financially;

• the available options, including the option to proceed to judgment or to try to settle;

1. the position taken by her family members about the issues in this proceeding;
2. the factors which may be motivating her family members;
3. the social risks and benefits of this proceeding, including its impact on her relationships with her family members.

1. Her ability to assess the comparative risk of the available alternatives, and a reasonable range of possible outcomes, both positive and negative.
2. Her ability to make a reasoned choice regarding this proceeding, the rationality of her choice, and the stability of her choice.

In the end, Justice Chown determined the plaintiff lacked capacity to instruct counsel, but dismissed the lawsuit after finding the defendants credibly established that the payments in question were gifts.[7]

The criteria of important factors in assessing the requisite decisional capacity to instruct counsel outlined in Bajwa, should be noted for its contribution to understanding and determining capacity in this important area. For an in-depth look at the requisite decisional capacity in this and other areas, WEL Partners has assembled a helpful summary found here and a capacity checklist found here.

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Thank you for reading.

[1] As of July 1, 2022, Statistics Canada reported that the number of persons aged 65 years was 7,330,605, representing 18.8 per cent of Canada’s population.

[2] See Kimberly A. Whaley et al., Capacity to Marry and the Estate Plan (Aurora: Canada Law Book, 2010) at 70; See also Alzheimer’s Society of Canada, “Navigating the Path Forward for Dementia in Canada” (2022), accessed online: https://alzheimer.ca/sites/default/files/documents/Landmark-Study-1-Path-Forward-Alzheimer-Society-of-Canada-2022-wb.pdf where it was reported in 2020, that an estimated 597,300 Canadians were living with general cognitive impairment, including dementia.

[3] See Kimberly A. Whaley, “Capacity to Instruct Counsel” (2020) 50:4 Advocates’ Q 388, available online: https://welpartners.com/resources/WEL-Capacity-to-Instruct-Counsel-Adv-Quarterly-V50-P4.pdf

[4] 2022 ONSC 2151.

[5] Ibid., at paras. 19-22.

[6] See Bajwa v. Singh, 2022 ONSC 3720.

[7] Bajwa v. Singh, 2023 ONSC 4063 at para. 50.