When suing for damages as a result of personal injuries the BC Supreme Court Rules generally permit Defendants to compel Plaintiffs to participate in pre-trial examinations for discovery. There are a few exceptions to this and one of these relates to mentally incompetent Plaintiffs. If a Plaintiff is mentally incompetent they can only be examined with permission from the Court. Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In this week’s case (DeMerchant v. Chow) the Plaintiff sustained a serious brain injury during a fall from a ladder in 2007. The Plaintiff started a lawsuit in the BC Supreme Court through a litigation guardian. During the course of the lawsuit the Plaintiff refused to participate in a discovery. The Defendant brought a motion seeking an order that he be forced to participate. The Plaintiff opposed this and relied on medical evidence which opined that the Plaintiff “could not reliably answer questions put to him” and that he “does not have the capacity to give testimony in court“.
Ultimately Master Taylor dismissed the motion and refused to grant the defendant permission to examine the Plaintiff. This is the first case I’m aware of applying the new BC Supreme Court Rule 7-2(9) which deals with discovery of mentally incompetent parties. Master Taylor provided the following reasons in dismissing the application:
 The application is made pursuant to Rule 7-2(9) of the new Rules which was formerly Rule 27(11) of the old Rules. The wording of both rules is similar, but the new Rule has changed the wording somewhat. The new Rule provides:
7-2(9) If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.
 The question to be determined, therefore, is whether the evidence before me is sufficient to find that court approval should be granted to allow the plaintiff to be examined for discovery.
 In Penn v. Secord (1979), 16 B.C.L.R. 48,  1 W.W.R. 464, 106 D.L.R.(3d) 9 Ruttan, J. said the onus for showing that a party is competent to be examined rests on the party seeking his examination. In the case at bar, the onus rests on the defendants.
 The Rule in question uses the term, “a mentally incompetent person”.
 It has been assumed up to now that Mr. DeMerchant is a mentally incompetent person because he has a trustee and a litigation guardian. As well, the very nature of the application assumes the plaintiff is a mentally incompetent person since the application seeks leave of the court to examine him.
 According to section 29 of the Interpretation Act, a “mentally incompetent person” is a “person with a mental disorder as defined in section 1 of the Mental Health Act”.
 Reference to the Mental Health Act reveals the definition of a “person with a mental disorder” as “a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to associate with others”…
 In the case at bar, there is medical evidence which conflicts, however I am satisfied that Drs. Bogod and Lu have provided sufficient medical evidence to suggest that the plaintiff does confabulate and would be unreliable as a witness.
 I am also satisfied that the evidence of Drs. Bogod and Lu establish that the plaintiff meets both tests set out in the definition of a person with a mental disorder.
 Accordingly, I determine that the applicants have not met the onus imposed upon them in seeking an order that the defendants be granted leave to examine the plaintiff at discovery. It should also go without saying that I do not find the plaintiff to be competent to give evidence on his own behalf in these proceedings.
 Consequently, I dismiss the defendants’ applications with costs to the plaintiff in any event of the cause.