Limitations Act - Incapable Persons [s.7]. McQueen et al. v. Mitchell et al.
In McQueen et al. v. Mitchell et al. (Div Ct, 2022) the Divisional Court considered the extension on a limitation period where the plaintiff is incapacitated and a litigation guardian is involved:
 Mr. McQueen did not hold himself out as litigation guardian in the Original Claim. The caselaw has established that instructing counsel is insufficient to establish the existence of a de facto litigation guardian and that s. 7(1) of the Limitations Act, 2002 and Rule 7.02(2) of the Rules of Civil Procedure require a representation to the public. The mere potential that relevance may be found if there are other factors not articulated by the court in Azzeh that would lead to the creation of a de facto litigation guardian does not meet the test of relevance necessary to order disclosure of solicitor-client privileged documents. In my view, it was an extricable error of law for the appeal judge to base his decision that solicitor-client privilege had been waived, in part, on his conclusion that the former lawyers’ file was relevant to the litigation guardian issue.. Carmichael v. GlaxoSmithKline Inc.
In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal consider s.7(1)(a) of the Limitations Act which addresses the non-running of a limitation where the plaintiff "is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition":
 Section 7(1)(a) of the Act prevents the basic limitation period in s. 4 from running during any time in which the person with the claim is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental, or psychological condition. This provision requires proof of two elements: (i) the person with the claim is “incapable of commencing a proceeding in respect of the claim”; and (ii) the reason that the person is incapable is “because of his or her physical, mental or psychological condition”.. Lee v Ponte
 Section 7(2) states that a person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved. This provision establishes a presumption of the person’s capacity to commence a proceeding in respect of a claim and places the onus on the person claiming incapacity to prove the contrary. The burden of proof to rebut this presumption of capacity is on the civil standard of the balance of probabilities.
 Although s. 7(1)(a) does not define “incapable”, a person is generally said to be “incapable” if they lack physical or mental capabilities: Black’s Law Dictionary, Bryan A. Garner, ed., 10th ed. (St. Paul, Minn.: Thomson Reuters, 2014) (“incapacity”). As noted by Tulloch J.A. for a five-judge panel of this court in Ohenhen (Re), 2018 ONCA 65, at para. 81:
Generally, Ontario law provides that a person has the capacity to make a decision if they are able to understand the information that is relevant to making that decision and able to appreciate the reasonably foreseeable consequences of that decision or lack of decision: see e.g. Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6 (property decisions) and 45 (personal care decisions); Health Care Consent Act, [1996, S.O. 1996, c. 2, Sched. A] s. 4(1) (medical treatment); [R. v. Conception, 2014 SCC 60,  3 S.C.R. 82], at para. 22 (medical treatment). Capacity is linked to personal autonomy and a person’s self-determination and ability to make important life choices. Because of the importance of these values, courts generally set a low threshold for determining capacity: Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (Gen. Div.), at p. 294, per Benotto J. (as she then was), aff’d 1998 CanLII 3001 (ON CA), 37 O.R. (3d) 221 (C.A.), leave to appeal refused,  S.C.C.A. 61; Ohenhen (Re), at para. 83.
 But the law also recognizes that a person’s capacity can vary with the decision at issue. Thus, “[a] person can be capable of making a basic decision and not capable of making a complex decision”: Calvert, at p. 293. As Tulloch J.A. stated in Ohenhen (Re), at para. 80: “a person may be capable of managing personal care, but not his or her finances. Or, a person may have the capacity to make a will for a simple estate, but not for a more complicated one.”
 In this regard, I agree with the observation of Benotto J. (as she then was) in Calvert, that the capacity to instruct counsel is at the higher end of the competency hierarchy, at p. 294:
There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will[.] [Emphasis added.](iv) … “of commencing a proceeding in respect of the claim”
 Because s. 7(1)(a) asks only about the person’s capacity to commence a proceeding in respect of the claim at issue, the provision implicitly recognizes that capacity can vary for different decisions. This contrasts with s. 47 of the former Limitations Act, R.S.O. 1990, c. L.15 (as it appeared on December 31, 2003), which required the person to prove a state of general incapacity, by showing that they were “a minor, mental defective, mental incompetent or of unsound mind”. Section s. 7(1)(a) of the current Act is therefore more liberal and generous than s. 47 of the former Limitations Act on the nature and scope of the incapacity that will stop the running of a limitation period: see Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, 120 O.R. (3d) 768, at para. 29; Graeme Mew, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at p. 206, at §6.19.
 By focussing only on the person’s incapacity to pursue the particular claim at issue, s. 7(1)(a) seeks to promote fairness by reflecting a concern for the plaintiff’s own circumstances, thereby respecting individual differences and providing individual justice: see Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: Ministry of the Attorney General, March 1991), at p. 29.
 What, then, must a person show to prove that they were incapable of commencing a proceeding in respect of the claim?
 It is useful to begin by considering some of the decisions a potential litigant must make before commencing a lawsuit. Often, they must obtain professional advice about whether they have a claim, the costs of proceeding, the potential for recovery, and the potential exposure for costs if they lose. They must then make an informed judgment about whether the costs of proceeding, both personal and monetary, outweigh the benefits. These are complex decisions: see e.g., Bisoukis v. Brampton (City) (1999), 1999 CanLII 3825 (ON CA), 46 O.R. (3d) 417 (C.A.), at para. 49, per Borins J.A., leave to appeal refused,  S.C.C.A. No. 52 (discussing the test for capacity under s. 47 of the former Limitations Act).
 As a result, capacity must be assessed by considering the complex decisions involved in commencing a lawsuit. The court must ask whether a plaintiff had the capacity to make those decisions.
 This court listed some of the indicators for such capacity in Bannon v. Thunder Bay (City) (2000), 2000 CanLII 5708 (ON CA), 48 O.R. (3d) 1 (C.A.), at paras. 35-36, rev’d on other grounds 2002 SCC 20,  1 S.C.R. 716, in the context of s. 47 of the former Limitations Act. There, Doherty J.A. included factors such as whether the person was capable of: (i) considering what steps should be taken to protect any claim they might have; (ii) making, or directing others to make, the appropriate inquiries to determine what steps, if any, to protect those interests; (iii) understanding any advice that might be received as a result of those inquiries; and (iv) effectively directing that procedural steps be taken following receipt of that advice. Doherty J.A. stated that a person would need to show they lacked one or more of these capacities to establish that they were of “unsound mind” under s. 47: at paras. 35-36. The Supreme Court allowed the appeal in Bannon because it concluded that this court was wrong to reverse the trial judge’s factual findings, but did not address these indicators of capacity: 2002 SCC 20,  1 S.C.R. 716. In brief reasons, Iacobucci J. noted that “‘unsound mind’ as provided for in s. 47 means in context lack of mental capacity from whatever source to perform the requisite steps” required by statute: at para. 1. He also observed that “the act of writing a letter may by itself be a simple one, but in this context it requires a consideration of many factors and a mental capacity to address and assess those”: at para. 3.
 More recently, in Hengeveld, at para. 21, Hebner J. drew on Huang and other caselaw addressing when a person is under disability and requires a litigation guardian, and listed the following potential indicators of the capacity to commence a proceeding under s. 7(1)(a) of the Act:
a) a person’s ability to know or understand the minimum choices or decisions required to make them;See Huang, at para. 19, citing C.C. v. Children’s Aid Society of Toronto,  O.J. No. 5613 (S.C.), at paras. 29-32; Calvert (Gen. Div.), at p. 298; Kirby v. Leather,  2 All E.R. 441 (C.A.), at p. 444; and Bilek v. Constitution Insurance (1990), 49 C.P.C. (2d) 304 (Ont. Dis. Ct.).
b) an appreciation of the consequences and effects of his or her choices or decisions;
c) an appreciation of the nature of the proceedings;
d) a person’s ability to choose and keep counsel;
e) a person’s ability to represent him or herself;
f) a person’s ability to distinguish between the relevant and irrelevant issues; and,
g) a person’s mistaken beliefs regarding the law or court procedures.
 Before this court, GSK submitted that the Huang/Hengeveld indicators are appropriate indicia of capacity under s. 7(1)(a). Mr. Carmichael does not contest this, as long as the indicators are applied in a way that distinguishes between the capacity to perform routine cognitive tasks and the capacity to commence a legal proceeding concerning a psychologically traumatizing incident. Mr. Carmichael says that the motion judge did so.
 I agree that the factors listed in Huang/Hengeveld, while not exhaustive, provide helpful indicators of capacity under s. 7(1)(a). They provide concrete and objectively verifiable indicators of a potential litigant’s capacity to commence an action: if absent, this tends to support a finding that the person was incapable of commencing a proceeding in respect of the claim; if present, this tends to weigh against a finding that the person was incapable of commencing a proceeding in respect of the claim. These factors are neither necessary nor sufficient in themselves to establish incapacity; they are indicia that guide a holistic weighing of all the evidence on capacity in the context of the case. Depending on the circumstances, it may also be relevant for a court to consider other factors.
(v) … “because of his or her physical, mental or psychological condition”
 Lastly, the person’s incapacity must be “because of his or her physical, mental or psychological condition”. None of these terms is defined in the Act.
 A “physical condition” is a condition arising in or relating to a person’s body. A “mental condition” is a condition affecting or arising in a person’s mind, and includes mental disability, mental incompetency, or mental illness. And a “psychological condition” is a condition relating to the mental or emotional state of a person. See The Oxford English Dictionary Online (“physical”, “mental”, “psychological”).
 As is evident from these definitions, in many cases there may be no clear demarcation between a psychological condition and a mental condition. Indeed, it could be said that a psychological condition is a particular type of mental condition, in that both conditions affect or arise in a person’s mind. It would appear that the reason for listing the three separate conditions in s. 7(1)(a) was to allow for a liberal and generous interpretation of the types of conditions that would satisfy the plaintiff’s burden to prove incapacity and stop the running of the limitation period, in order to treat the plaintiff fairly and account for their interests.
 It is also evident that a person could have incapacitating physical, mental, and psychological conditions simultaneously. For example, a person could be incapacitated by physical and mental conditions, such as bodily paralysis coupled with a traumatic brain injury; or by mental and psychological conditions, such as schizophrenia coupled with severe depression; or all three conditions could operate together.
 The physical, mental, or psychological condition must be the cause for the incapacity relied on under s. 7(1)(a). The incapacity cannot arise from other sources, such as lack of sophistication, education, or cultural differences: see Huang, at para. 18; Costantino v. Costantino, 2016 ONSC 7279, at para. 41; and Children’s Aid Society of Toronto, at para. 25.
 Lastly, I agree with the submission in Mr. Carmichael’s factum, that a plaintiff may be incapable because of a psychological condition where the evidence “is clear that initiating the lawsuit would pose an unacceptable risk to the plaintiff’s psychological integrity.
(vi) “…during any time…”
 Section 7(1) suspends the running of the limitation period in s. 4 only “during any time” in which the person is incapable, and thus begins to run again once the incapacity ceases: see e.g., Mongeon v. Sammon, 2012 ONSC 409, 108 O.R. (3d) 789, at para. 31.
 A potential litigant will usually require persuasive medical or psychological evidence to prove that they lacked the capacity to commence the proceeding in respect of the claim: see e.g., Deck International Inc. v. The Manufacturers Life Assurance Company, 2012 ONCA 309, at para. 6; Winter v. Sherman Estate, 2018 ONCA 379, at para. 14, leave to appeal refused,  S.C.C.A. No. 438; Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264, at para. 17; Klimek v. Klos,  O.J. No. 3740 (S.C.), at para. 25; Hussaini v. Freedman, 2013 ONSC 779, at para. 51; and Landrie, at para. 35.
 Other evidence may also be relevant, such as:
• Evidence from persons who know the plaintiff well, the appearance and demeanour of the plaintiff, testimony of the plaintiff, or the opinion of the plaintiff’s own counsel: see e.g., Costantino v. Costantino, 2016 ONSC 7279, at para. 58; Huang, at para. 20; and Children’s Aid Society of Toronto, at para. 34; Finally, just because a person can function on a day-to-day basis and make the decisions required in daily life does not necessarily mean they have the capacity to start an action in respect of a claim: see Bisoukis, at para. 48. On the other hand, just because a person has a mental illness does not necessarily mean that they are incapable of instructing a lawyer or commencing a proceeding: see Mew, at p. 205, at §6.17, citing Panciera v. Rokotetsky et al., 2009 MBQB 129, 252 Man.R. (2d) 115, at para. 20; Evans v. Evans, 2017 ONSC 4345, 96 R.F.L. (7th) 300, at paras. 51-53; and Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, 31 C.C.L.I. (5th) 252, at paras. 54-60, aff’d 2014 ONCA 658, 40 C.C.L.I. (5th) 12.
• The plaintiff’s ability to commence other civil proceedings (see e.g., Asagwara v. Money Mart, 2014 ONSC 6974, at para. 72; Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, at para. 55) or to defend criminal proceedings (see e.g., Winmill v. Woodstock Police Services Board et al., 2017 ONSC 2528, at para. 32, rev’d on other grounds, 2017 ONCA 962, 138 O.R. (3d) 641; Cooper v. Comer, 2017 ONSC 4142, at para. 57); and
• Other indicators of capacity, such as the potential litigant’s ability to travel, instruct counsel, swear affidavits, and make decisions affecting legal rights, if they bear on the capacity to commence a proceeding in respect of the claim: see e.g., Reid, at para. 17; Klimek, at paras. 24-25.
In Lee v Ponte (Ont CA, 2018) the court here considered whether time runs against a dead person, it does:
 On appeal, the appellant submits that s. 7 of the Limitations Act applies to extend the limitation period by six months for the estate trustee’s action. Section 7(1) of the Limitations Act provides:
7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,....
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim.
 We are not persuaded the motion judge erred by dismissing the claim as statute barred. The grammatical and ordinary sense of the words of s. 7 are simply not elastic enough to apply to a deceased person and to construe an estate trustee to be a litigation guardian.