Litigation Guardians Appointed For The Mentally Incapable

mentally incapableThe Ontario case of Richi v Kakaoutis  2011 Carswell 14616  is an example of what procedure was followed in Ontario when a litigant became mentally ill, requiring a litigation guardian to be appointed to represent his interests because he was incapable.

I suspect it would apply as good law in British Columbia.

The defendant had exhibited signs of paranoid during a trial in 2008 involving alleged negligence of another driver.

The public Guardian and Trustee for Ontario obtained an order declaring the plaintiff disabled and appointed itself to continue the court action on the plaintiff’s behalf.

The defendant sought to represent himself and other relatives in another court action relating to a real estate transaction.

The plaintiffs in the real estate action brought an application for an order declaring the defendant disabled and to appoint the Public Guardian and Trustee as litigation Guardians for all defendants, or for an order requiring the defendant to undergo medical testing.

The court ordered that the defendant attend a medical examination chosen by the court from a list of three, failing which the plaintiff could move to strike the statement of defence.

The defendants mental condition was very much in question, and the finding any prior decision was relevant and informative to the court on whether a mental assessment should be ordered.

The issue of the defendants mental state was raised by the adverse party in the litigation, and was relevant to the issue of whether the litigation Guardian should be appointed for all defendants.

The court found that there was good reason to believe there was substance to the alleged disability, including the admission by the defendant that he was subject to extreme mood swings.

The results of the mental assent examination were necessary to assist counsel and the court on the issue of whether a  litigation Guardian should be appointed for all defendants.

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