Ontario Court Upholds PGT as Litigation Guardian in Duffy v. McDaniel, Reinforcing Strict Evidentiary Standards for Capacity

In *Duffy v. McDaniel, 2025 ONSC 2899 (CanLII)*, the Ontario Superior Court of Justice addressed a motion to remove the Public Guardian and Trustee (PGT) as the litigation guardian for Stephen Duffy, a plaintiff who suffered a traumatic brain injury in a 2021 motor vehicle accident. The court, presided over by Justice Corthorn, dismissed the motion, finding insufficient evidence to establish that Stephen was no longer under a “disability” as defined by the *Rules of Civil Procedure*. This case underscores the distinct evidentiary requirements for removing a litigation guardian under the Rules compared to assessing capacity to manage property under the *Substitute Decisions Act, 1992*. Below, we explore the facts, the applicable law, the court’s analysis, and key lessons learned from this ruling.
The Facts
On February 1, 2021, Stephen Duffy was struck by a car driven by one of the defendants, Nicolette McDaniel, and owned by the other, David McDaniel, while crossing Hazeldean Road in Ottawa. Stephen sustained severe injuries, including a traumatic brain injury, multiple fractures, and organ lacerations. The plaintiffs in the action included Stephen, his daughter Adriana (both represented by the PGT as litigation guardian), and his mother, father, and sister. The action, commenced in July 2021, alleged damages arising from the collision.
In May 2022, capacity assessor Nicole Robert determined that Stephen lacked the capacity to manage property under s. 6 of the *SDA*, leading to the PGT’s appointment as his statutory guardian of property. In May 2023, the parties reached a tentative settlement, with Stephen and Adriana set to receive funds, subject to court approval due to their status as parties under disability.
In October 2024, Ms. Robert reassessed Stephen and concluded he was capable of managing his property, prompting the PGT to close its guardianship file. The plaintiffs then moved to remove the PGT as Stephen’s litigation guardian, allowing him to continue the action independently. The motion relied on Stephen’s affidavit and Ms. Robert’s 2022 and 2024 capacity assessment reports. The defendants did not respond to the motion.
The Law
The court’s decision hinged on the interplay between *Rule 7* of the *Rules of Civil Procedure* (R.R.O. 1990, Reg. 194) and the *Substitute Decisions Act, 1992* (S.O. 1992, c. 30). Key legal principles include:
  • Rule 7.01(1): A proceeding involving a party under disability must be conducted by a litigation guardian unless the court or a statute provides otherwise.
  • Rule 1.03(1): Defines “disability” as including mental incapacity under s. 6 or s. 45 of the SDA with respect to an issue in the proceeding. Section 6 deems a person incapable of managing property if they cannot understand relevant information or appreciate the reasonably foreseeable consequences of decisions.
  • Substitute Decisions Act, s. 6: Focuses on capacity to manage property, distinct from the broader litigation context under the Rules.
  • Case Law: The court relied on precedents such as *626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114*, which requires evidence that a prior disability has been remedied, considering the interests of the individual, other parties, and the court process. *Cameron v. Louden, 1998 CanLII 14683 (ON SC)* and *Huang v. Braga, 2016 ONSC 6306* clarify that capacity under the SDA does not necessarily equate to capacity to conduct litigation under the Rules. Additionally, *Sanzone v. Schecter, 2016 ONCA 566* governs the admissibility of expert evidence, requiring an affidavit from the expert to present their opinions.
Analysis
Justice Corthorn’s analysis focused on whether Stephen was no longer under a “disability” within the meaning of *Rule 1.03(1)*. The court found the plaintiffs’ evidence insufficient for several reasons:
  1. Evidentiary Shortcomings of Stephen’s Affidavit:
    • Stephen’s affidavit contained conclusory statements (e.g., “I can make my own decisions”) without substantive evidence of his ability to understand or appreciate the consequences of decisions in the litigation, such as the settlement terms or solicitor-client accounts.
    • His affidavit referenced meeting a lawyer for independent legal advice but lacked details about his understanding of the settlement’s financial components or its implications.
  2. Inadequacy of the 2024 Capacity Assessment:
    • Ms. Robert’s 2024 assessment focused on Stephen’s capacity to manage property under s. 6 of the *SDA*, not his capacity to conduct litigation under *Rule 1.03(1)*. The assessment did not address the tort action, settlement structure, or solicitor-client accounts.
    • Unlike the detailed 2022 assessment, which included extensive medical records, the 2024 assessment relied on limited information from the PGT, lacking objective evidence relevant to the litigation context.
    • The court noted that the assessor was not provided with documents related to the tort action, undermining the assessment’s relevance to the motion.
  3. Admissibility of the Capacity Assessments:
    • The 2022 and 2024 assessment reports were attached as exhibits to Stephen’s affidavit but were not supported by an affidavit from Ms. Robert, rendering their substantive content inadmissible under *Rule 39.01(4)* and *Sanzone v. Schecter*. The court treated the reports as evidence only of their existence, not their conclusions.
    • Without Ms. Robert’s affidavit, the defendants (had they responded) could not cross-examine her, and the court could not probe her findings, highlighting procedural deficiencies.
  4. Distinction Between SDA and Rules:
    • The court emphasized that capacity to manage property *SDA, s. 6* differs from capacity to conduct litigation *Rule 1.03(1)*. Citing *Huang v. Braga*, the court noted that a person may be capable of managing property but still under a disability for litigation purposes.
    • The PGT’s decision to terminate its guardianship role was irrelevant to the litigation guardian issue, as it addressed a different legal standard.
The court dismissed the motion without prejudice, allowing the plaintiffs to bring a future motion with better evidence. The PGT was ordered to continue as Stephen’s litigation guardian, and the plaintiffs were directed to serve the PGT with the motion record and ruling.
Lessons Learned
  1. Evidentiary Rigor for Litigation Guardian Motions:
    • Motions to remove a litigation guardian require robust evidence demonstrating that the individual is no longer under a disability per *Rule 1.03(1)*. Subjective assertions of capacity are insufficient; objective evidence, such as detailed capacity assessments addressing litigation-specific issues, is critical.
  2. Distinction Between SDA and Rules:
    • Capacity assessments under the *SDA* are not automatically applicable to litigation capacity under the *Rules*. Parties must ensure that capacity assessors are instructed to evaluate the specific criteria in *Rule 1.03(1)*, including understanding and appreciating decisions related to the proceeding.
  3. Proper Admission of Expert Evidence:
    • Expert opinions, such as capacity assessments, must be presented through an affidavit from the expert to be admissible, per *Sanzone v. Schecter*. Attaching reports as exhibits to a lay affidavit does not suffice, as it shields the expert from cross-examination and limits the court’s ability to assess the evidence.
  4. Service on Litigation Guardians:
    • The existing litigation guardian must be served with motion materials, as they are affected by the outcome *Kagan, Shastri*. Failure to do so, as occurred here, requires correction to ensure procedural fairness.
  5. Court’s Protective Role:
    • *Rule 7* safeguards parties under disability, opposing parties, and the court process. Courts will err on the side of caution, maintaining a litigation guardian unless clear evidence demonstrates the individual’s capacity to conduct the litigation independently.
Conclusion
*Duffy v. McDaniel* highlights the stringent evidentiary and procedural requirements for removing a litigation guardian. The court’s dismissal of the motion reflects the importance of aligning capacity assessments with the specific legal test under the *Rules of Civil Procedure* and ensuring proper admission of expert evidence. For practitioners, this case serves as a reminder to provide comprehensive, litigation-focused evidence and to adhere to procedural rules when seeking to alter a party’s status in litigation. The ruling leaves open the possibility for a future motion with stronger evidence, balancing Stephen’s pursuit of independence with the court’s duty to protect vulnerable litigants.
Call Bobila Walker Law at 416-847-1859 to schedule your consultation on any litigation guardian or capacity matter.