The administration of justice has a responsibility to protect persons under a legal disability. Such a responsibility serves a dual purpose; to protect that specific individual, and to protect the integrity of the judicial process for all participants in the litigation, including the Court. To achieve the latter purpose the Court has authority to order a party to undergo a medical examination to determine if they are under a legal disability. This process can be used to protect the rights of the parties, efficiency of litigation, and counsel.
In 626381 Ontario Limited et al. v Kagan, Shastri, Barristers & Solicitors et al. the defendants sought direction, asking the case management judge to determine whether the Court could and should order that the plaintiff undergo a mental examination to determine if she was a party under a legal disability, requiring representation by a litigation guardian. The plaintiff expressed concern that the relief sought raised a potential breach of her rights guaranteed by the Canadian Charter of Rights and Freedoms.
Section 105 of the Courts of Justice Act grants the Court jurisdiction to order that a party undergo a mental examination to determine whether that party is under a legal disability. After dispensing with the issue of jurisdiction, the Court focused on the other central issue of general application addressed in this case: whether a court order compelling a litigant to undergo a mental examination would violate the Charter. The Court recognized the unresolved nature of the applicability of the Charter to court orders, but proceeded under the assumption that the Charter does apply to such orders. The Court found that such a court order may engage section 7 of the Charter, but would only be made in accordance with the principles of fundamental justice, and therefore does not violate the Charter.
In reaching its decision, the Court focussed on the safeguards that prevent an order made pursuant to section 105 from being obtained for tactical purposes. First, such an order may only be obtained by way of motion to the Court. This entitles the party affected to notice, the opportunity to be heard, and to respond. Second, an independent third party will make the decision, and relief will only be granted where the Court is satisfied that the mental condition of the party is in question, and that the order is necessary to provide evidence relevant to that issue. Finally, when the party's mental condition is first raised by another party, an order shall not be made unless the allegation is relevant to a material issue and there is good reason to believe that there is substance to the allegation. This protects the individual against unnecessary and improperly motivated requests for such an examination. The ordinary recourse to avenues of appeal remains available, and the information or report that is produced by means of the examination is automatically subject to the deemed undertaking rule, further protecting the party's section 7 rights.
Ultimately, the Court found that a formal order was unnecessary because the plaintiff was willing to undergo the examination.