Soriano et al. v. Laberakis [Indexed as: Soriano v. Laberakis]

80 O.R. (3d) 303

Ontario Superior Court of Justice, Divisional Court,

Jennings J.

February 9, 2006

Civil procedure -- Appeal -- Fresh evidence -- Defendant's lawyer bringing motion to have Public Guardian and Trustee appointed as litigation guardian for mentally ill defendant -- Lawyer feeling constrained by solicitor-client privilege from advising Master of contents of medical reports relating to defendant's disability -- Master finding that there was insufficient evidence that defendant was person under disability -- Medical reports admitted as fresh evidence on appeal despite failure to meet due diligence criterion -- Criteria for admissibility of fresh evidence on appeal only applying to situation where issue between parties was resolved -- Refusing to admit fresh evidence would not serve interests of justice.

Civil procedure -- Parties -- Persons under disability -- Defendant's lawyer bringing motion to have Public Guardian and Trustee appointed as litigation guardian for mentally ill defendant -- Lawyer feeling constrained by solicitor-client privilege from advising Master of contents of medical reports relating to defendant's disability -- Master finding that there was insufficient evidence that defendant was person under disability -- Medical reports admitted as fresh evidence on appeal despite failure to meet due diligence criterion -- Criteria for admissibility of fresh evidence on appeal only applying to situation where issue between parties was resolved -- Refusing to admit fresh evidence would not serve interests of justice -- Fresh evidence establishing that defendant was person under disability.

The defendant shot and killed two people. A civil claim for damages was brought against him. A lawyer retained by the defendant's family brought a motion to have the Public Guardian and Trustee appointed as litigation guardian for the defendant. The lawyer felt constrained by solicitor and client privilege from advising the Master of all of the information that he had in his file, including medical reports, touching upon the defendant's disability. The Master found that there was insufficient evidence to conclude that the defendant was a person under a disability. That decision was appealed. The defendant was subsequently found not criminally responsible on account of mental disorder at his murder trial.

Held, the appeal should be allowed.

Fresh evidence, including the medical reports which were not before the Master, was admitted on appeal. The criteria for the admission of fresh evidence on appeal [page304] pertain to a situation where there has been a decision which resolves an issue between the parties. The determination that a party is not a person under a disability does not resolve any outstanding issues in the action. Further, because persons under disability are subject to the parens patriae jurisdiction of the court, the court should exercise its discretion in a manner that enhances the protection of such individuals. The evidence in question (apart from the endorsement of the trial judge in the criminal case) could have been discovered by an exercise of due diligence, and in fact its existence was known. However, where fresh psychiatric evidence is compelling and the interests of justice require that it be admitted, the failure to meet the due diligence criterion should not bar its admission. The fresh evidence clearly established that the defendant suffered from a mental illness within the meaning of rule 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

APPEAL from the decision of Master Abrams, dated February 3, 2003, that the defendant was not a person under a disability.

Cases referred to R. v. M. (I.E.), 2003 57382 (ON CA), [2003] O.J. No. 953, 173 C.C.C. (3d) 515 (C.A.), apld Other cases referred to Poirier v. Carmelite Order of Nuns, unreported, May 18, 2004, Doc. 94-CQ-055262 CM Statutes referred to Courts of Justice, R.S.O. 1990, c. C.43, s. 134(4) Rules and regulations referred to Law Society of Upper Canada, Rules of Professional Conduct, rule 2.02(6) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 1.03 [as am.]

Charles Wagman, for plaintiffs/respondents. Donald F. Bur, for Public Guardian and Trustee.

[1] JENNINGS J. (orally): -- This is an appeal from a decision of Master Abrams, given February 3, 2003, in which she held that Gregory Laberakis was not a person under a disability.

[2] The appeal was originally brought by the firm of solicitors then acting for Mr. Laberakis. It came on for hearing before me on December 11, 2003 and at the request of counsel, and in the presence of counsel on behalf of the Public Guardian and Trustee, I determined that on fresh evidence that I admitted that for the purposes of the appeal, the Public Guardian and Trustee could act as litigation guardian for Mr. Laberakis.

[3] The background of the matter, stated briefly, is as follows: on October 9, 2001, Mr. Laberakis shot and killed two people. Because of that, a civil claim for damages was brought and that claim was defended. A lawyer retained by the family of Mr. Laberakis, but not on the record, brought a motion to have the Public Guardian and Trustee appointed as litigation guardian for [page305] Mr. Laberakis. In support of the application, the lawyer filed an affidavit which deposed in part:

In my opinion, Mr. Laberakis suffers from a psychological or mental difficulty that affects his ability to appreciate the reasonable effect of important and indeed basic decisions in this litigation. I cannot give specific examples as to his mental difficulties without breaching privilege, but repeat that he does not appreciate the consequences of the reasonable effect of important and indeed basic decisions in this litigation.

(Emphasis added)

[4] Attached to the affidavit of the solicitor was a letter dated December 12, 2002, from Dr. Klassen, a well known psychiatrist, giving a diagnosis of Mr. Laberakis's mental illness and the opinion that Mr. Laberakis will need the appointment of the Public Guardian and Trustee to act on his behalf.

[5] On the material before her, the Master found that there was not sufficient evidence to conclude that Mr. Laberakis was a person under a disability.

[6] As a consequence of the activities which I have described, Mr. Laberakis was charged with murder. On July 3, 2003, Mr. Justice Watt recorded in an endorsement on the indictment that Mr. Laberakis was found not criminally responsible by mental disorder on the counts that were brought against him. Mr. Laberakis was ordered to be detained in Oak Ridge, a division of the Mental Health Centre in Penetanguishene and I am advised he continues to be so confined.

[7] The difficulty sought to be addressed on this motion arises because Mr. Laberakis's solicitor felt constrained by solicitor and client privilege from advising the Master of all the information that he had in his file, including medical reports not revealed, touching upon the disability under which his client laboured. He was required by the Law Society's Rules of Professional Conduct, rule 2.02(6) to continue as far as reasonably possible to maintain a normal lawyer and client relationship with Mr. Laberakis, notwithstanding his impairment because of mental disability. A client so disabled cannot properly instruct his counsel and his counsel accordingly had no proper authority to release information protected by a solicitor and client privilege.

[8] Sadly, in my opinion, Mr. Laberakis's solicitor was apparently not aware of the procedure approved of by Master Kelly in the case of Poirier v. Carmelite Order of Nuns, in unreported, May 18, 2004, Doc. 94-CQ-055262 CM. Before Master Kelly was an application to appoint the Public Guardian and Trustee as litigation guardian for Ms. Poirier. [page306]

[9] At para. 6 of his decision, Master Kelly said:

The purpose of the motion is to protect the interest of the client. That is also one purpose of Rule 7.01. Rule 7.01 seeks to protect the integrity of the judicial process for all participants in the litigation, including the Court. In implementing Rule 7.01, the Court is invariably required to examine evidence that would otherwise be privileged. Capacity of a party is fundamental to civil justice. If during the conduct of litigation communications between solicitor and client impact the issue of the client's capacity . . . counsel is duty-bound to seek appointment of a litigation guardian. On a motion for that relief, one can expect that the requisite disclosure to the Court could involve privileged information. The client's confidentiality can be preserved by the sealing process.

(Emphasis added)

[10] At the time of the hearing before the Master, Mr. Laberakis's solicitor had in his possession two further reports of Dr. Klassen and a report of Dr. Wood Hill, all of which were produced on the solicitor's subsequent cross-examination. The opinion evidence of the doctors was that Mr. Laberakis suffered from a psychiatric condition that robbed him of the capacity to appreciate the nature and quality of his actions and/or knowledge of the moral or legal wrongfulness of them.

[11] Without analyzing the reports in detail, it is clear that had they been before the learned Master, there was ample evidence upon which she could and should have found that disability had been established.

[12] On the hearing of this appeal, counsel for the applicant urges that this evidence, which is apart from the endorsement of Watt J., fresh only in the sense that it was not put before the learned Master, be considered by me.

[13] The jurisdiction to receive fresh evidence is found in s. 134(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Decisions of the courts of this province have interpreted the jurisdiction given in s. 134(4) to be exercisable only if:

(i) the tendered evidence is credible;

(ii) if admitted it would likely be conclusive of an issue in the appeal; and

(iii) it could not have been obtained by reasonable diligence prior to trial.

[14] In my opinion, those conditions, which are of course widely accepted, pertain to a situation where there has been a decision made with respect to the rights of parties to the litigation inter parties. An issue between the parties has been resolved. This is not the situation that confronts me. The determination that [page307] someone is or is not a person under disability does not resolve any outstanding issues in the action.

[15] Further, because persons under disability are subject to the parens patriae jurisdiction of this court, the court should exercise its discretion in a manner that enhances the protection of such individuals.

[16] It is conceded that the evidence to which I have referred (apart from the endorsement of Watt J.) could have been discovered by an exercise of due diligence. Indeed its existence was known but as I have said, was thought by counsel to be subject to solicitor and client privilege.

[17] The other conditions of admissibility are clearly met. In the decision of R. v. M. (I.E.), 2003 57382 (ON CA), [2003] O.J. No. 953, 173 C.C.C. (3d) 515 (C.A.), the Court of Appeal of this province said with respect to the admissibility of fresh evidence at paras. 35 and 36:

Turning first to the due diligence criterion, there is no doubt that at the time of trial Dr. Ben-Aron had formed the opinion that the appellant's mental disorder made her incapable of appreciating the nature and quality of her acts or of knowing that they were wrong. However, the appellant has explained that she firmly instructed that this evidence not be led because she was then suffering from a major but untreated mental illness. Dr. Ben-Aron confirms this. In my view, it is clear that given the appellant's medical condition at the time, the psychiatric evidence could not have been adduced at trial by due diligence.

Even if this were not so, I would not find a failure to satisfy this criterion to be a bar to admitting the fresh evidence in this case. It is clear that where the fresh psychiatric evidence is compelling and the interests of justice require that it be admitted, the failure to meet the due diligence criterion should yield to permit its admission.

(Emphasis added)

[18] That decision is authority for the admission of the evidence to which I have referred even though the bulk of it was available at the time of the decision before the Master. In my opinion, to ignore the reality revealed by that evidence would not serve the interests of justice.

[19] Accordingly, I admit the evidence on this appeal. It clearly establishes that Mr. Laberakis suffered and continues to suffer from a mental illness, within the meaning of rule 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[20] On the basis of that evidence not before the Master, the appeal is allowed. The Order of Master Abrams of February 3, 2003, i[s] set aside and I find Gregory Laberakis to be a person under a disability. The Public Guardian and Trustee is appointed as a litigation guardian for Gregory Laberakis and the title of this proceeding should be amended accordingly. [page308]

[21] The Public Guardian and Trustee not seeking costs, I make no order as to costs.

Appeal allowed.