Written on February 6, 2013 – 8:58 am | by Angela Casey
One of my favourite litigation stories (although it may have been exaggerated in the re-telling, so I make no representations as to its accuracy), came from a senior member of the bar. A plaintiff had sued a number of defendants, including at least one bank, a police force, and a hospital, along with a number of others. The plaintiff alleged that the defendants had conspired to have him kidnapped, and taken to Mars, where a microchip was implanted in his head. The judge dismissed the action on jurisdictional grounds. An Ontario Superior Court judge, held the court, has no jurisdiction over torts which took place on the planet of Mars.
Assuming the outer-space-want-of-jurisdiction argument is not available in the circumstances, what can a defendant do when faced with a claim by a person who appears to be mentally incapable?
A party who is incapable is required by Rule 7 of the Rules of Civil Procedure to be represented by a litigation guardian. There is a little known prescribed form under the Rules called a Request for Appointment of Litigation Guardian. The form notifies the party that you believe him to be a party under disability, and that you require him to have some proper person be appointed as litigation guardian. It provides the alleged incapable party with 10 days to respond.
If the person does not proceed to appoint a litigation guardian within the 10 days, you can bring a motion under Rule 7 to require him to do so. If there is insufficient evidence that the party meets the definition of ‘disability’ in Rule 1.03, you can also move to have the person’s mental capacity assessed pursuant to section 105 of the Courts of Justice Act. To meet the test under section 105, however, you will have to show that there is good reason to believe that there is substance to the allegation that the person is incapable.
Thanks for reading,