reasons, it may be necessary in some cases to evaluate a client’s capacity
on an on-going basis especially if any change in their ability to absorb or
process information is detected.
It is not essential that a client understand all the details necessary to
pursue their case. Just as any person can hire an expert to handle
complex affairs that are beyond their personal expertise, a client can rely
on their lawyer or representative to understand the specific details and
processes involved in their case.^4 A client need only:
a) understand what they have asked the lawyer to do for them and why,
b) be able to understand and process the information, advice and
options the lawyer presents to them, and
c) appreciate the pros, cons and potential consequences of the various
options.Capacity is task specific. The test must be applied to the specific issue at
hand. For instance, a person may be incapable to manage finances, due
to an inability to process numerical information. This does not mean that
they are also incapable of instructing counsel. It is necessary in every
case to examine the precise conduct in question, to determine the
essential elements of that conduct, and to inquire as to the client’s ability
to understand the nature and quality of those elements so that an
informed decision can be made. As long as that understanding is present,
then any other form of mental health issue, however great, is irrelevant. It
follows, therefore, that the criteria to determine whether a mental health
issue is relevant are not universal. Rather they will vary from case to case
simply because the essential elements of conduct inevitably vary from
case to case.^5
(^4) For a discussion of a related issue see Kacan v. Ontario Public Service Employees Union, 2010
HRTO 795. 5
Godelie v. Pauli, [1990] O.J. No. 1207 (Dist.Ct.), Misener, D.C.J.; see M.K. v. Nova Scotia (Minister
of Community Services), [1996] N.S.J. No. 275 at para 66.