Strathy J. in Kischer^42 , it is important to resist the temptation to order an
assessment based on the argument that it can’t hurt. It can hurt.^43
If a s. 79(1) assessment is ordered despite the existence of positive capacity
assessments, lawyers face the hard choice of pursuing the rather long two step
process of challenging the order or allowing the compelled assessment to
proceed.
e. Challenging s. 79(1) OrderSince s. 79(1) orders are generally interlocutory orders granted by a motions
judge, it is necessary to turn to the Divisional Court to seek leave to appeal the
motion before being able to proceed to appeal the order. This two step process
takes time and can involve considerable expense.^44
In some cases it may be easier to allow the assessment to proceed, assuming
that if the other assessments found the person capable there is no reason to
assume a further assessment would come to a different conclusion. Even if the
compelled assessment is negative, it would still have to be placed into the pool of
evidence of capacity before the court. The court cannot ignore the positive
assessments and rely only on the new compelled assessment when the final
decision about capacity is made.
Nevertheless, there are still many reasons to challenge a s. 79(1) assessment. A
compelled assessment “is an intrusive and demeaning process” that involves a
“substantial intervention into the privacy and security of the individual,”^45 This
(^42) Kischer v Kischer [2009] OJ No 96 (SCJ) at para 10.
(^43) Also see Zheng v. Zheng [2012] OJ No 2957 (Div Ct); also see D’Arcy Hiltz and Anita Szigeti, A
Guide to Consent and Capacity Law in Ontario 44 , (Lexis Nexis 2012) at 49.
45 See Ontario, Rules of Civil Procedure, r 62.02.^
See Abrams v. Abrams, [2008] OJ No 5207 (SCJ) at para 50.