Judge finds litigant conduct, not disability itself, triggered need for independent assessment
In a decision that offers guidance for personal injury practitioners navigating litigation involving disabled clients, the Ontario Superior Court of Justice has held that a party’s capacity to instruct counsel and conduct litigation must be resolved before a court will consider tailored accommodations for a disability.
In Beaulnes et. al. v. Pratt, 2026 ONSC 1722, Associate Justice Kamal was asked to decide between two competing motions: the defendant’s request for an independent capacity assessment under s. 105 of the Courts of Justice Act, and the plaintiffs’ cross-motion asking that all litigation steps proceed in writing and asynchronously to accommodate the plaintiffs’ disabilities. The court granted the assessment and dismissed the accommodation request without prejudice.
The underlying action is a medical malpractice claim alleging misdiagnosis by a dermatologist. The plaintiff, Jean-François Beaulnes, was described as a previously high-functioning graduate student who now lives with severe chronic pain and psychological conditions that make oral communication physically painfully. He did not appear on the motion. Instead, his father, Pierre Beaulnes, who had been conducting the litigation on his son’s behalf, made the submissions.
That arrangement proved significant. Ontario’s rules do not permit a non-lawyer to represent another party in court, and a party under disability must instead be represented by a litigation guardian. The court treated Pierre’s role, combined with pleadings describing him as his son’s “representative and caregiver” and correspondence suggesting Jean-François could not manage the proceeding, as part of the evidentiary picture supporting an assessment.
Section 105(3) sets a two-part test where capacity is raised by an opposing party: the allegation must be relevant to a material issue in the proceeding, and there must be good reason to believe the allegation has substance. The court also applied the non-exhaustive factors from Abrams v. Abrams, 173 ACWS (3d) 410, [2008] CarswellOnt 7788, weighing the litigant’s privacy and autonomy interests against the court’s protective role, and considering the quality of the evidence, whether an assessment is necessary to decide the issue, potential harm from proceeding without one, urgency, and the individual’s own wishes.
The court was careful to note where the burden lies: capacity is presumed at the outset, and it falls to the party seeking the assessment to displace that presumption. Here, the plaintiffs’ own record — missed case conferences, a stalled proceeding, and an inconsistent position on whether an assessment should occur at all — was enough to meet the threshold.
The decision’s central message for personal injury lawyers is a careful one: living with a disability, even a serious and disabling one, does not by itself mean a person lacks the capacity to instruct counsel or make decisions about their case. Capacity turns on whether a person can understand information relevant to the proceeding and appreciate the foreseeable consequences of their decisions — a test that is issue-specific and can fluctuate over time.
Conflating disability with incapacity risks stripping capable clients of their autonomy; but where a party’s own conduct and evidence genuinely put that capacity in doubt, the court found it could not simply defer to an accommodation request as a substitute for resolving the question properly.
The court accepted that the plaintiffs’ proposed accommodation engaged genuine disability rights under s. 15 of the Charter and the Human Rights Code, which guarantee accommodation up to the point of undue hardship. However, it found the specific accommodation sought — a fully written, asynchronous process — went too far, since it would have effectively eliminated oral discovery and cross-examination, undermined the defendant’s ability to test credibility and narrow the issues, and raised unresolved concerns about reliance on AI tools in preparing written responses.
More fundamentally, the court held that an accommodation request premised on the litigant’s disability cannot be meaningfully assessed while it remains unclear whether that litigant has the capacity to make decisions about the litigation in the first place. Once the capacity assessment is complete, the court left the door open for the accommodation request to be renewed with the benefit of that evidence.
For lawyers acting on files involving catastrophic or chronically injured clients, Beaulnes is a useful reminder that disability and incapacity call for separate inquiries, and that a broad accommodation request isn’t a shortcut around an unresolved capacity question.
Where a client’s ability to instruct is genuinely uncertain, whether because a family member has stepped into a representative role, communication with counsel has broken down, or the litigation has stalled, an early, well-supported motion for a capacity assessment may be the more appropriate route. It protects the litigant as much as it protects the integrity of the proceeding.
This article was provided by Harrison Pensa LLP
