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. McQueen et al. v. Mitchell et al.

In McQueen et al. v. Mitchell et al. (Div Ct, 2022) the Divisional Court considered the issue of the use of a lawyer's evidence as to whether his client was incapacitated:
[61] The Ontario Court of Appeal in Carmichael held that the opinion of a party’s counsel may be a relevant factor in determining capacity, as can the party’s ability to instruct counsel “if it bears on the capacity to commence a claim.” Carmichael was a summary judgment motion where there was some evidence adduced about the plaintiff’s ability to instruct counsel in other actions. The appeal judge found “that it was significant that the Master did not have the benefit of the Carmichael decision in which the Court of Appeal makes clear the relevancy of counsel’s opinion and reiterates that medical evidence is not necessarily enough.”

[62] Carmichael did not create new law. The focal issue considered by the court in Carmichael was not what the lawyer thought about capacity. The court was persuaded by the fact that the plaintiff had, inter alia, demonstratively retained and instructed lawyers for multiple pieces of litigation. Jamal J.A. concluded that what a lawyer thinks about a client’s capacity – the lawyer’s opinion – may be relevant. However, this statement was made when discussing cases where the opinion evidence was available to the court. Notably, Jamal J.A. did not require production of the lawyer’s file underlying the lawyer’s opinion nor was this done in any of the cases discussed in Carmichael. Carmichael was not a case about production of or waiver over solicitor-client privilege. The appeal judge erred by interpreting Carmichael as support in this case for finding that the Appellants waived solicitor-client privilege over opinion evidence in the lawyers’ file.
. B.L. v. Pytyck

In B.L. v. Pytyck (Ont CA, 2021) the Court of Appeal considered legal mental capacity in the context of deciding whether a party could consent or refuse to consent to treatment:
[25] I see no such error by the Board. With respect, B.L.’s submissions overlook an important element of the legal test as articulated by the Supreme Court in Starson. As the Board pointed out in its reasons, at p. 13, in Starson the Supreme Court stated, at para. 79:
While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows…:
Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.
As a result, a patient is not required to describe his mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision. [Emphasis added.]
[26] Accordingly, the Starson test for capacity in respect of the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision includes a requirement to consider whether a person’s condition results in an inability to recognize that he or she is affected by its manifestations, thereby rendering the person unable to apply the relevant information and appreciate the consequences of his or her decision. This aspect of the legal test has been repeated and applied by this court in several cases: Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587, at paras. 18-21, leave to appeal refused, [2008] S.C.C.A. No. 97; D’Almeida v. Barron, 2010 ONCA 564, 103 O.R. (3d) 250, at paras. 24-26, leave to appeal to S.C.C. refused, (2011) 284 O.A.C. 400; Gajewski, at paras. 47-53; and Murray v. Alatishe, 2019 ONCA 596, at para. 20.


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