Court of Appeal for Ontario
Before: Hoy A.C.J.O., MacFarland and Lauwers JJ.A.
Between
Nadejda Aletkina
Moving Party/Appellant/Plaintiff
and
The Hospital for Sick Children
Responding Party/Respondent/Defendant
Counsel:
Nadejda Aletkina, acting in person
Stephanie Young, for the respondent
Heard and released orally: November 3, 2015
Motion to set aside the order of Justice Lois B. Roberts dated July 31, 2015.
ENDORSEMENT
1The moving party seeks a review of the order of Roberts J.A. made July 31, 2015, dismissing her motion for a stay and an order for a capacity assessment.
2The motion before Roberts J.A. arose as a result of a decision of this court dated June 24, 2015, which dismissed her motion to review the order of Huscroft J.A. dated March 6, 2015. This matter has a protracted history.
3In her action against the hospital for Sick Children, the moving party seeks damages for wrongful dismissal. She was employed at the Hospital for Sick Children for about 11 months from May 2002 to April of 2003 as a lab technician earning about $35,000 per annum. She commenced her action in April 2009 and it has yet to be tried.
4The issue that brings the matter to this court today has its genesis in an order made by Master McAfee in August of 2013. At that time, the Master dismissed a motion brought by the moving party:
(1) to compel answers to questions refused and/or not answered on discovery;
(2) to add a number of parties as defendants; and
(3) to amend your statement of claim to add new causes of action.
5The motion was dismissed in reasons delivered August 12, 2013. The moving party next appealed the order of the Master and brought two motions as part of that appeal to adduce fresh evidence. Her appeal and the motions to adduce fresh evidence were dismissed by order of Corbett J. dated October 27, 2014.
6In his reasons, at para. 12 the appeal judge noted:
The Master took a good, hard look at Ms Aletkina’s claim that she was under a legal disability that suspended the running of the limitations period. The voluminous materials filed on the motion established clearly that Ms Aletkina does suffer from a mental illness and one that has been described as “severe” by her treating psychiatrist. Nowhere in the volumes of the material is there an opinion that this mental illness renders her under a legal disability. And while it may be true that Ms Aletkina was slow taking steps related to this litigation, because of her mental health issues, receiving accommodation for health reasons is not the same thing as being unable to appreciate that she had claims that she now wishes to assert.
7Further, at para. 14 the appeal judge quotes from the responding party’s factum:
... [Ms Aletkina] was regularly pursuing doctor’s notes to further prolong and delay this litigation. It is significant that [Ms Aletkina] specifically requested a letter indicating that she lacked capacity and in July 2012 a physician specifically refused to provide such an opinion.
8Justice Corbett set the new date by which the moving party was to set her action down for trial to November 30, 2014. The moving party then sought leave to appeal a decision of Corbett J. to this court.
9She was granted an extension of time to perfect her leave application to this court on two separate occasions and did not meet the deadline set in either order before she appeared before Justice Huscroft on March 5, 2015, again seeking yet a further extension of time to perfect her appeal and directions from the court on the form and content of her materials.
10After dismissing her motion that he recuse himself from hearing her motion on grounds that were utterly unsubstantiated, the motion judge reviewed the history of the matter and the numerous requests made by the moving party for “directions”. Her motion was dismissed.
11Ms. Aletkina then moved to review the order of Huscroft J.A. before a panel of this court on June 24, 2015, and again brought a motion to introduce fresh evidence. Both her motion and appeal were dismissed in a brief endorsement issued by the court. As part of its endorsement, this court required that the moving party set her action down for trial no later than July 30 failing that her action be dismissed.
12On July 29, 2015, she moved before Roberts J.A. for a stay of this court’s order of June 24, 2015, pending determination of her application for leave to appeal that decision to the Supreme Court of Canada and for an order that she undergo capacity assessment. Her motion was dismissed.
13Roberts J.A. concluded that Ms. Aletkina failed to meet the test for a stay and that there was “insufficient evidence to rebut the presumption of capacity set out in s. 2 of the Substitute Decisions Act” and further “despite the voluminous materials filed, her submission that she lacks legal capacity to conduct these proceedings is not demonstrated by the evidence.” The deadline to set her action down for trial was extended by Roberts J.A. to August 31, 2015 and we are advised that that has been done.
14Ms. Aletkina moves before this court to review the order of Roberts J.A. Before the hearing was about to start at the return of this motion on November 2, Ms. Aletkina sought to file an extensive volume of further fresh evidence in addition to the volume of fresh evidence already filed which numbered some 579 pages and she sought an adjournment of the proceedings and at her request, we adjourned the matter to November 3 as she requested. The voluminous record contains much material that has been previously filed including many detailed memoranda and letters authored by the moving party. Ms. Aletkina has a history, demonstrated in these materials, of attempting to have her treating physicians offer an opinion that she is without legal capacity to conduct legal proceedings and to date none have offered any such opinion despite the persistent efforts of Ms. Aletkina.
15Following her appearance before Roberts J.A. on July 29, the moving party presented in the Emergency Department of the Kingston General Hospital where she “requested a capacity assessment by psychiatry. She was told she needs a capacity assessment done in order to represent herself in an upcoming court hearing” as recorded in the visit summary of the hospital dated September 25, 2015. It was suggested that she follow up with her general practitioner.
16In her general practitioner’s notes for an October 2015 appointment it is recorded that the moving party talked at length “about her quandary of having a capacity assessment” and noted the doctor’s offer to refer her to psychiatry. There follows Dr. Russell’s referral note to Dr. Fahy noting that Ms. Aletkina “has been asking for a capacity assessment” and that she is “also looking for a retrospective capacity assessment despite me informing her that this is very difficult for a new psychiatrist to ascertain”.
17Next is a note dated October 30, 2015 from the Addiction and Mental Health Services Supervisor reporting on a visit to that clinic by the moving party on October 28, seeking an assessment for use in her court proceedings. This supervisor reported that the physician Dr. Naeem told the moving party that to do an assessment for court purposes he would have to be requested to do so by the courts. Ms. Aletkina seeks such an order.
18Both Master McAfee and Justice Corbett dealt with the request for a capacity assessment in their reasons for decision. The result of this court’s decision in June 24 is that her application for leave to appeal the order of Corbett J. is finally dismissed. In these circumstances, this court has limited jurisdiction. It can order a stay pending an application for leave to appeal to the Supreme Court of Canada, however, any request for further relief should be made either to the Supreme Court of Canada or to the Superior Court of Justice in relation to any aspect of the trial. The rules provide that a person under a disability which includes a person who is incapable within the meaning of s. 6 or s. 45 of the Substitute Decisions Act, is to be represented by a litigation guardian who may in appropriate circumstances be the Public Guardian and Trustee. The Substitute Decisions Act requires determination of legal capacity to be made by “assessors” as defined in the regulations to that Act. It is open to Ms. Aletkina to request an assessment of her own capacity under s. 16 of the Act by following the procedures that are laid out in that Act.
19Accordingly, the motion to admit fresh evidence is dismissed, except for the three documents in records that we have referenced in these reasons. In the result, we see no error in the decision of Roberts J.A. and the motion to review is dismissed.
20Costs to the respondent fixed in the sum of $1,500 inclusive of disbursements and HST.
“Alexandra Hoy A.C.J.O.”
“J. MacFarland J.A.”
“P. Lauwers J.A.”