Our Work – Understanding Capacity in Litigation


As experienced personal injury litigators, our lawyers give back to the community through Pro Bono Ontario, providing legal services to Ontarians who are unable to afford representation, and may be vulnerable due to disability, language barriers or other social challenges.

Recently, on behalf of Pro Bono Ontario, our partner Jasmine Daya was asked to provide legal support to an unrepresented plaintiff in a complex, long-running action that included claims for injuries arising out of a motor vehicle accident. The judge responsible for managing the action was concerned about the plaintiff’s capacity to continue to represent herself, in light of the upcoming trial, and Jasmine was tasked with providing assistance.

Capacity and personal injury claims

If a person is not mentally capable of understanding and appreciating the proceedings in a court case, they are considered to be vulnerable. In these circumstances, a “litigation guardian” will be appointed to act on their behalf. Children and minors must also be represented by litigation guardians.

In some situations, where there is evidence that a party may not have the necessary capacity to continue with their claim, the court may order that a person undergo an assessment by an expert. If someone is found to lack capacity, they must have a litigation guardian appointed to continue with the action.

Incapacity can be the result of myriad factors, including illness, developmental or degenerative disability, or physical injury, and may be temporary or permanent. Assessing capacity is extremely serious, and courts do not lightly impose orders relating to incapacity. A judge will consider a person’s ability to understand choices and make decisions, as well as how well they appreciate the long-term consequences of those choices. They will also look at a person’s understanding of the legal claim, and its implications, as well as their familiarity with the law and court procedures.

In her capacity as Pro Bono Counsel, Jasmine attended with the plaintiff at several case management conferences as the claim approached trial, to provide legal support and help the plaintiff move forward with the proceedings. She was also instrumental in providing an opinion to the court with respect to the plaintiff’s understanding of the case and ongoing capacity to act.

Due to concerns about the plaintiff’s ongoing capacity, the judge ordered her to undergo an assessment with a social worker. Based on this report, as well as other medical and witness evidence and Jasmine’s input, the court ultimately determined that the plaintiff did not have sufficient capacity to represent herself at trial. The level of capacity and understanding required was very high, and in order to protect the interests of all parties, the plaintiff would need to be represented by a litigation guardian.

The decisions, with discussion of Jasmine’s assistance, can be found here and here.

Representation in complex personal injury claims

Jasmine Daya & Co. is one of Canada’s leading personal injury law firms, and regularly represent clients in complex personal injury matters.

We offer a Free Consultation for new clients, so you can get honest, straightforward advice about your legal options. Contact our office to make an appointment at 416-967-9100 or online.