Self-represented plaintiff’s accommodation request dismissed as premature and causing undue hardship
The Ontario Superior Court of Justice ordered a self-represented plaintiff to undergo a capacity assessment in a medical negligence action after finding that the evidence raised sufficient concern about his ability to manage the litigation.
The action arose from allegations of negligence relating to medical care and treatment provided by a dermatologist between September 2022 and September 2023. The plaintiff and his parents sought various forms of damages, including general, special, aggravated, and punitive damages, as well as damages under the Family Law Act.
The plaintiff alleged that he went from being “a highly functional young adult who hiked the Alps alone for weeks and defended a complex master’s thesis in Botany in 2021, to living with a severe disability for more than four and a half years of documented illness.” He also claimed that he is experiencing “profound physical and emotional pain, suffering, and distress” allegedly due to the dermatologist’s misdiagnosis and mistreatment. The plaintiff’s parents are co-plaintiffs and have acted as caregivers.
The dermatologist brought a motion under Section 105 of the Courts of Justice Act seeking an order compelling the plaintiff to undergo a capacity assessment to determine if the plaintiff has the capacity to self-represent in the action. The plaintiff and his parents opposed the motion and instead sought accommodations that would allow the plaintiff to participate in the litigation entirely through written and asynchronous means.
Capacity assessment
The Ontario Superior Court of Justice stated that where a party first raises concerns about another party’s physical or mental condition, the court may only order a mental examination if a two-part test is met: the allegation must be relevant to a material issue in the proceeding, and there must be good reason to believe that there is substance to the allegation.
The court ultimately found that the issue of the plaintiff’s physical and mental capacity was relevant to a material issue in the proceeding. The pleadings and submissions repeatedly raised concerns about the plaintiff’s ability to manage the litigation and participate in procedural steps.
The court also concluded there was good reason to believe the plaintiff may be unable to manage the lawsuit on his own. Evidence included statements by the plaintiff and his parents regarding incapacity, the plaintiff’s absence from case conferences, and the involvement of a non-lawyer parent in advancing the litigation.
“A self-represented litigant must be able not only to understand information and make decisions, but also to participate meaningfully in the procedural steps required to advance an action,” the Superior Court wrote in its 18-page decision. The court further said that if the plaintiff cannot attend case conferences, motions, and other proceedings, whether in person or remotely, he cannot, on his own, meaningfully participate in the litigation.
Applying the statutory framework, the court determined that an independent assessment was necessary to obtain reliable evidence about the plaintiff’s litigation capacity. The court held that the proceeding could not move forward until the capacity issue was resolved.
The court ordered that the plaintiff attend a virtual assessment with a designated assessor, directing that the plaintiff’s accommodation requests be considered, where possible, in conducting the assessment.
Accommodation request
The plaintiffs sought an order permitting the plaintiff to participate exclusively through written and asynchronous communication, including for discovery and court attendances.
The court dismissed this request, finding that it would result in undue hardship. It concluded that a fully written and asynchronous process would undermine procedural fairness and compromise the integrity of the proceedings.
The court also found that such an approach would prejudice the dermatologist’s ability to test evidence, including through cross-examination, and would disrupt the administration of the litigation.
In addition, the court held that the plaintiff’s accommodation request was premature, as the litigation is now essentially on hold until the capacity assessment is complete.
Ultimately, the court granted the dermatologist’s motion and ordered the plaintiff to undergo a capacity assessment. The plaintiffs’ accommodation request was dismissed without prejudice to return an appropriate accommodation request after the completion of the capacity assessment.
A further case conference will be scheduled following the assessment to determine the next steps in the proceedings.
