Duhaime's Law Dictionary

Capacity Definition:

The power to acquire and assert legal rights.

Related Terms: Standing, Competency, Adult Guardianship, Testamentary Capacity

In Kendall v Kendall, a family law case, Justice Boland of the Ontario High Court of Justice, adopted these words at 6:

"I stress the word capacity and distinguish it from legal right because these two words describe different legal concepts.

"The Shorter Oxford Dictionary defines capacity as meaning, the power, ability, or faculty for anything in particular ... capability, possibility ....position, condition, character, relation ... qualification. All these words allude to some characteristic internal to a thing or person, something inherent."

In Mortgentaler, at ¶43, Justice Drapeau wrote:

"Legal capacity to commence or continue an action refers to the plaintiff's status as a legal person. As the authors of Canadian Civil Procedure point out in their discussion regarding the unborn's capacity to sue, 'a civil proceeding may be instituted only by a being or entity that enjoys the status of a legal person.'"

capacity chartIn Locus Standi – A Commentary on the Law of Standing in Canada, then-professor Thomas Cromwell (later, justice of Canada's Supreme Court) wrote:

"[C]apacity to sue may be distinguished from standing.

"Capacity has been defined as the power to acquire and exercise legal rights. In the context of the capacity of parties to sue and be sued, to say that a party lacks such capacity is to acknowledge the existence of some procedural bar to that party's participation in the proceedings – one that is personal to a party ... and imposed by law for one or more of various reasons of policy usually quite divorced from the substantive merits….

"Problems of capacity to sue typically involve questions about whether the party is a legal person, that is, one having the general right to commence or defend judicial proceedings. The rules relating to whether infants, mental incompetents and unincorporated associations may sue all relate to the question of capacity, that is whether these entities have the power "to exercise legal rights...."

"The distinction between capacity and standing is that capacity generally depends on the personal characteristics of the party divorced from the merits of the proceeding or the nature of the question in issue in it. It concerns the right to initiate or defend legal proceedings generally. Standing is concerned with the appropriateness of the court's dealing with the particular issue presented at the instance of the particular plaintiff. It is more concerned with the nature of the issue and the context in which it is raised than with the personal characteristics such as age, mental capacity, etc., of the plaintiff. A party may have capacity to sue but lack standing."1

In Dallas Fort Worth, Justice Richter reiterated the oft-quoted distinction between capacity and standing, in the context of litigation:

"A plaintiff has standing when he is personally aggrieved, regardless of whether he acts with legal authority; a party has capacity when it has legal authority to act, regardless of whether it has a justiciable interest in the controversy."


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