Mental Capacity (LTB)
- 1 Substitute Decisions Act, 1992, S.O
- 2 TNL-60138-14-RV (Re), 2014 CanLII 65154 (ON LTB)
- 3 EAL-73899-18-SA-RV (Re), 2018 CanLII 88414 (ON LTB)
- 4 TSL-74992-16 (Re), 2017 CanLII 9476 (ON LTB)
- 5 CET-01027-09 (Re), 2009 CanLII 84375 (ON LTB)
- 6 TET-88074-18 (Re), 2018 CanLII 113147 (ON LTB)
- 7 SOL-73238-16-SA (Re), 2016 CanLII 88182 (ON LTB)
- 8 Datta v. Eze, 2020 ONSC 1240 (CanLII)
- 9 SOT-58217-15-RV (Re), 2015 CanLII 111072 (ON LTB)
2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.
- (3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be
6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 6.
1. At the start of the hearing, P.A. made a motion to be appointed as the Tenant’s Litigation Guardian. P.A. had completed the Social Justice Tribunals Ontario’s application form prior to the hearing.
2. The Social Justice Tribunals Ontario’s Common Rule A10 establishes the procedure a person must follow to request to be a Litigation Guardian because a party lacks mental capacity.
3. At the hearing, I determined that no conflict of interest exists to bar P.A. from acting as the Tenant’s Litigation Guardian, and no person other than P.A. has sufficient knowledge of the tenancy to act on the Tenant’s behalf. It was also apparent, based on answers I elicited from the Tenant, that the Tenant did not comprehend the nature of the review hearing, or of the Landlord’s application to terminate his tenancy and evict him for non-payment of rent. I therefore granted P.A.’s request to be the Tenant’s Litigation Guardian
2. In the request to review, the Tenant’s Legal Representative alleges that the Tenant is lacking the capacity to have understood the meaning of signing an N11 form agreeing to leave the rental unit on or before July 31, 2018.
4. While there is no dispute that the Tenant suffers from serious mental health issues, I do not find that lack of capacity to decide whether or not to leave the rental unit follows. The Tenant has the Office of the Public Guardian and Trustee as guardian for property and legal affairs. Had the Tenant required help to deal with the matter at hand, that office should have been joined in the proceeding. As well, should the Tenant truly lack capacity, I have to question then how he could have instructed counsel to pursue the matter before me. I therefore find that the Member who issued the original order properly canvassed the issue of capacity and decided reasonably, on a balance of probabilities, that the Tenant had the mental capacity to decide as he did to sign the N11.
5. I also note that the Tenant has many support persons to help him deal with life issues and to help with relocation. Some of these support persons were present when the Tenant was asked to sign, and subsequently did sign, the N11 form.
6. Absent a serious error of law or procedure, the request to review must be denied. I find that there is no such error in the original order; the Member made reasonable determinations on the basis of the evidence before her. There is no reason to disturb her reasonable findings.
7. The request to review is denied in accordance with Rule 29.11 (c) of the Board’s Rules of Practice because the grounds for considering a review are not satisfied.
14. NH is a mental health worker who provides support services to the Tenant. NH testified that he has been working with the Tenant for three years. NH testified that as a result of FASD, the Tenant has a much younger mental capacity than his physical age. NH testified that the Tenant co-operates with professionals and is willing to work on his behaviour but does not have an easy relationship with the professionals who provide services to him. NH testified that he is working with the Tenant on anger management in particular. NH testified that if the Tenant is evicted, the Tenant will live in a shelter for an unknown amount of time. NH testified that he would assist the Tenant to find new housing but that it would not be easy to find a new home for the Tenant. NH testified that he sees the Tenant once a week but he could increase the frequency of their meetings if the Tenant was homeless.
20. It is uncontested that the Tenant lives with a number of serious disabilities, and that these disabilities make it challenging for him to behave within the limits of social norms expected of a man his age. The Tenant receives weekly support from a mental health worker and also has other supports in the community to assist him in addressing his behavioural challenges (a psychiatrist, for example).
21. The assault in the elevator is an isolated incident. The Tenant has demonstrated, since then, that he can continue to live in the residential complex without further similar incidents. I have considered the second elevator incident. However, while the Tenant’s behaviour in this incident was unusual and disturbing, there was no evidence at the hearing that he was under any court order to avoid HT at the time, and also the Tenant’s behaviour was not overtly threatening.
At the hearing the Landlord raised a preliminary issue regarding whether the Tenant has the ability to bring an application against the Landlord, to give instructions to counsel, and to provide evidence in support of the application, when the Public Guardian and Trustee has been entrusted to manage his property, including issues surrounding his tenancy, because the Tenant is incapable of managing his own affairs.
The Public Guardian and Trustee is the Tenant’s statutory guardian of property and is the only person authorized by law to deal with the Tenant’s property, including related legal affairs, pursuant to the Substitute Decisions Act 1992.
35. The doctrine of undue influence leads to rescission of contracts where:
- … one party is deemed not to have exercised its free and independent judgment in entering into the contract because another party exercised improper influence on him…
- Cases of undue influence are divided into two broad categories. Presumed undue influence covers cases where the transaction at issue occurred between parties involved in specific relationships. Transactions occurring outside the bounds of these relationships fall into the category of undue influence.
- … in cases of presumed undue influence, the presumption requires that the transaction is one that calls for an explanation in the sense that it is a transaction that lies beyond transaction ordinarily encountered in such relationships.
- A. S. and J. A. (Contributors), Halsbury’s Laws of Canada – Contracts (2013 Reissue) at HCO-145.
[Emphasis in original.]
17. Even if I were to take the Tenant’s testimony at face value, the stress that he felt in the face of SRH’s communications does not constitute duress. There were no threats and, as the Court of Appeal for Ontario recognized in Dos Santos v. Waite, 1996 CarswellOnt 3554 (C.A.), (affirming 1995 CarswellOnt 3384 (Gen. Div.)), there is a difference between stress and duress, and stress is not enough to void an agreement.
19. At paragraph 21 of Williams v. Condon, 2007 CanLII 14925 (ON SC), van Rensburg J. (as she then was) of the Superior Court of Justice stated the following:
- “The authorities are clear that the contract of an intoxicated person may be set aside for lack of consent if the person was so intoxicated that he or she was incapable of understanding what he or she was doing, and if the other contracting party was aware of the intoxication (Bawlf Grain Co. v. Ross (1917), 1917 CanLII 51 (SCC), 55 S.C.R. 232; Murray v. Smith (1980), 32 Nfld. & P.E.I.R. 191; affd. 35 Nfld. & P.E.I.R. 382). The contract must be rescinded promptly upon the person becoming aware of the circumstances entitling him or her to disavow the contract.”
 The Substitute Decisions Act, provides as follows:
- 2(1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.
- (3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be.
 As a result, there is a presumption of capacity by Fabian to execute the APS.
31. The position put forward on the Tenant’s behalf was that she lacked capacity to consent to the order under review because of her medical conditions, and that she is a vulnerable person in need of protection.
32. I have no doubt that the Tenant has mental health issues. However, it is not enough to suggest that a person with the Tenant’s medical conditions lacks capacity, or cannot fend for herself. Lack of capacity must be demonstrated. To suggest lack of capacity can be inferred from the mere existence of her medical conditions overgeneralizes the situation and potentially reinforces harmful stereotypes about persons with mental health issues.
33. There was no evidence to suggest that the tenant is incapable of conducting her own affairs. There was no evidence to confirm her bald assertion that she was incapable on the day of the hearing. The documentation provided by the Tenant shows that she faces challenges, but it does not show that she is incapable.