Duffy v. McDaniel, 2025 Onsc 2899 (“Duffy”),^[1] concerned a Motion to remove the Public Guardian and Trustee (“PGT”) as a party’s Litigation Guardian. Upon consideration of all the available evidence and a capacity assessment, the court dismissed the motion to remove the PGT.

Duffy highlights how the court will carefully consider and scrutinize capacity assessments, including how the assessment was conducted, the instructions provided to the assessor and ultimately the evidence considered and relief upon to form the opinions.

Facts

In February 2021, Stephen Duffy (“Stephen”) was struck by a car and suffered traumatic brain injuries. In April 2021, Stephen, as well as his daughter Adriana, commenced an Action against the drivers of the car. The PGT acted as litigation guardian for Stephen and Adriana.^[2]

In May 2022, Stephen underwent a capacity assessment conducted by Ms. Nicole Robert (“Ms. Robert”), a designated capacity assessor (the “2022 Assessment”). Ms. Robert concluded that Stephen was incapable of managing his property within the meaning of section 6 of the Substitute Decisions Act (“SDA”).^[3] Accordingly, the PGT also became his statutory guardian of property. This 2022 Assessment was conducted at the request of Stephen’s counsel.^[4]

In May 2023, a tentative settlement was reached in the Action which required court approval on Stephen and Adriana’s behalf in accordance with Rule 7 of the Rules of Civil Procedure (the “Rules”).^[5] In late 2023, Stephen brought a motion for the approval of a contingency fee retainer agreement, the settlement, the management of the net settlement funds for Stephen’s benefit and proposed solicitor-client accounts for Stephen and Adrianna.^[6]

In March 2024, the court approved the motion but required additional evidence to consider the proposed management of the net settlement funds for Stephen’s benefit and the fee portion of the proposed solicitor-client accounts. At this time Stephen expressed an interest in having his capacity to manage property re-assessed in order to have the PGT removed as his litigation guardian.^[7]

In October 2024, Ms. Robert once again assessed Stephen’s capacity (the “2024 Assessment”). Her conclusion was that Stephen was capable of managing his property within the meaning of the SDA.^[8]

Legal Issue

The primary legal issue in Duffy was whether Stephen was capable of continuing the legal action without a litigation guardian. To appoint or remove a litigation guardian requires the court to determine if the party is under disability. Under Ontario’s Rules, a ‘person under disability’ is defined in Rule 1.03 as either:

• A minor;
• Someone who is mentally incapable pursuant to section 6 or section 45 of the SDA;or
• An absentee pursuant to the Absentees Act.^[9]

Section 6 and section 45 of the SDA provide the statutory criteria for determining the capacity to manage one’s property and personal care, respectively. Section 6 of the SDA provides as follows:

Incapacity to manage property

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.^[10]

In Duffy, the court made a distinction between the evidence required on guardianship application and, in this case, the removal of a litigation guardian which requires that the court is “satisfied that the earlier disability has been remedied and that it is appropriate that the individual no longer be represented by a litigation guardian”.^[11]

Court Analysis of Capacity Assessment

Overall, the court was critical of the 2024 Assessment and the information available to Ms. Robert in forming her opinion as to Stephen’s capacity. In this regard, the court noted the following issues:

• No application of capacity criteria: the court found that Ms. Robert did not demonstrate an application of section 6 of the SDA and its applicability to the Action. Specifically, she did not assess whether Stephen was able to understand information relevant in making a decision, or if he was able to appreciate the reasonably foreseeable consequences of a decision regarding the issues in the Action. In other words, Ms. Robert did not address the meaning of ‘disability’ within the meaning of the Rules.
• Lack of Relevant Evidence: the court found the 2024 Assessment lacked grounding in the pertinent documents related to the Action, including reference to the various pleadings, the settlement agreement and proposed solicitor-client accounts. This absence of information meant Ms. Robert could not evaluate Stephen’s capacity to understand and appreciate the consequences of decisions related to the litigation.
• Unsupported Conclusions: The court found that several opinions expressed in the 2024 Assessment were unsupported. For example, Ms. Robert found Stephen displayed the ability to appraise the risk and potential outcome of a decision or lack thereof, without reference to any matters reviewed. Moreover, Stephen had no impairment in logic when making future plans despite no evidence of discussions concerning what those future plans were.

Concluding Comments

The court found that, on the balance of probabilities and following consideration of the available evidence, the burden of proof had not been met to conclude that Stephen was no longer a party under disability.^[12]

Duffy highlights that it is of utmost importance that a capacity assessor is provided with all the relevant information to a legal matter for them to make a fully informed decision. The lack of said information and the conclusions that flow will be criticized by the court.

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[1] Duffy v. McDaniel, 2025 ONSC 2899 (“Duffy”).

[2] Duffy at paras 5 – 7.

[3] Substitute Decisions Act, 1992 SO c 30 (”SDA”), section 6.

[4] Duffy at para 8.

[5] Rules of Civil Procedure, RRO 1990 Reg 194, Rule 7.

[6] Duffy at para 9-10.

[7] Duffy at para 11.

[8] Duffy at para 12.

[9] Absentees Act, RSO 1990 c. A.3.

[10] SDA, section 6.

[11] Duffy at para 4, citing 626381 Ontario Ltd. V. Kagan, Shastri, 2013 ONSC 4114.

[12] Duffy at para 16.