Capacity to Litigate and Appointing a Litigation Representative in Alberta

One may suspect that capacity issues rarely arise outside of estate matters. This assumption, however, would be incorrect. Issues regarding capacity to instruct counsel can arise in any type of legal matter including family, personal injury, and beyond.

The Alberta Rules of Court (r.2.11) require that a litigation representative be appointed for an adult who lacks capacity as defined in the Adult Guardianship and Trustee Act. Capacity is defined within the Act as “the ability to understand information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of (i) a decision, and (ii) a failure to make a decision”.

The Law Society of Alberta Code of Conduct requires that lawyers satisfy themselves that their client has the “requisite mental ability to make legal decisions about his or her legal affairs and to give the lawyer instructions” (Ch 3.2-15, commentary [1]). Failure to meet this standard can result in disciplinary action against the lawyer.

How to Apply for a Litigation Representative

There are four options when applying for a litigation representative:

1. Rule 14 of the Alberta Rules of Court – Self Appointed Litigation Representatives

Someone wanting to be involved in the litigation as a litigation representative (i.e., a family member or friend) can apply to be a self-appointed litigation representative pursuant to rule 2.14 of the Alberta Rules of Court. This application requires evidence that the person wanting to litigate lacks capacity. Such evidence may include an affidavit from the lawyer or legal assistant involved in the matter or a doctor’s opinion letter.

2. Rule 15 of the Alberta Rules of Court – Court Appointment in Absence of Self Appointment

Alternatively, the individual lacking capacity, an interested person, or where there is no interested person, a party adverse in interest, can bring an application before the court for a litigation representative to be appointed pursuant to rule 2.15 of the Alberta Rules of Court.

3. Rule 16 of the Alberta Rules of Court – Court-Appointed Litigation Representatives in Limited Cases

Rule 2.16 only applies in narrow circumstances and permits the Court to appoint a litigation representative.

4. Rule 17 of the Alberta Rules of Court – Lawyer appointed as litigation representative

In rare instances, the Court may appoint a lawyer as a litigation  representative.

The case law has shed further light on these issues:

In Guardian Law Group v LS, 2021 ABQB 591, at para 57, Justice Jones outlined the three part test for determining if a client has capacity to retain a lawyer:

1. Did the client have capacity?

2. Were there sufficient indicia of incapacity known to the lawyer to establish a suspicion that the client lacked requisite capacity?

3. If yes, did the lawyer take sufficient steps to ascertain capacity so as to rebut a finding of actual or constructive knowledge of incapacity to contract?

Previously, in RMK v NK, 2020 ABQB 328, Justice Goss adopted the test for instructing counsel from Costantino v Costantino, 2016 ONSC 7279, at para 47:

To meet the test for capacity to instruct legal counsel, a person must:

1. Understand what they have asked the lawyer to do for them and why;
2. Be able to understand and process the information, advice, and options the lawyer presents; and
3. Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with.

…

Capacity to instruct counsel must be determined on an ongoing basis with respect to each decision.

Determining requisite capacity to instruct counsel, and the issues of when and how to apply for a litigation representative are complex legal matters best suited to the determination of a lawyer.