Ontario Superior Court dismisses slip and fall case involving mental capacity concerns

Plaintiff said her health issues did not arise from her slip and fall

Ontario Superior Court dismisses slip and fall case involving mental capacity concerns

The Ontario Superior Court of Justice has dismissed a slip and fall accident involving an elderly with mental capacity issues.

In Weigen v. Murjay Construction Ltd., 2023 ONSC 4104, Joanne Weigen commenced a lawsuit against Murjay Construction and Oxford Properties Group, operators of the premises where she slipped and fell. Weigen is 86 years old.

Weigen’s daughter, Maureen Weigen-Liebovitz, advised the defendants that her mother wished to have the action dismissed. She also advised them that her mother has a long history of bipolar disorder. Maureen had moved her mother to a retirement home because she could no longer mentally or physically live on her own.

Maureen did not even know that her mother had commenced any proceedings against the defendants. She only discovered the litigation when she saw a letter from the defendants’ counsel to her mother. As the litigation began, concerns about Weigen’s age and whether she may be a party under a disability were raised.

The matter was brought before Ontario Superior Court’s Justice Papageorgiou, who spoke with Weigen about the accident and found that she appeared to understand the questions asked. Weigen advised the court that she would like to drop the lawsuit. The judge informed her that if the court dismissed the action, Weigen could not revive it. Weigen and Maureen confirmed their understanding of this.

Weigen further confirmed that she has some physical and mental health issues but asserted that these do not arise from her slip and fall. The court considered the issues about Weigen’s mental capacity and concluded that it is necessary to appoint a litigation guardian. Although there was no affidavit evidence filed for either the appointment of the litigation guardian or the approval of the settlement, to avoid the necessity of the parties having to spend resources to prepare materials and in the interests of access to justice, the court had Weigen’s daughter sworn.

The court was satisfied that the requirements of Rule 7 both as to the appointment of the litigation guardian and the approval of the settlement were met. Accordingly, the court ruled to dismiss the action.

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