Court File and Parties

CITATION: Ying (Cindy) Zheng v. Long Zheng, 2012 ONSC 3045

DIVISIONAL COURT FILE NO.: 60/12

DATE: 2012-06-28

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ying (Cindy) Zheng, Moving Party

- v. -

Long Zheng, Responding Party

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Edgar-André Montigny and Karen R. Spector, for the Moving Party

William E. C. Parker, for the Responding Party

HEARD: April 12, 2012

ENDORSEMENT

[1] The applicant, Ying Zheng (the "applicant"), seeks leave to appeal an order dated January 30, 2012 of B. O'Marra J. (the "Order") granting the respondent's application under section 79(1) of the Substitute Decisions Act, 1992, S.O. 1992, c.30 (the "Act") to compel the applicant to undergo a further psychiatric assessment.

Background

[2] The applicant commenced an application seeking relief under sub-sections 28(1), 63(1) and 42(1) of the Act, among other provisions, declaring her capable of personal care and of managing her property and an order terminating the guardianship of her person and her property ordered by this court on June 12, 2007 in favour of her brother, Long Zheng (the "respondent").

[3] In support of the termination of the guardianship of her person, the applicant provided an assessment report of a qualified assessor under the Act and a report of a staff psychiatrist at CAMH. In support of the termination of the guardianship of her property, the applicant provided an assessment report by the same assessor. She also provided an in-home occupational therapy functional assessment of an occupational therapist, upon which she relies for the termination of both guardianships.

[4] The opinion of the personal care assessor was that the applicant was capable of making all personal care decisions in accordance with the criteria under the Act at this time. The psychiatrist was of the opinion that the applicant was currently capable with respect to treatment of her psychiatric condition, which has been diagnosed as a psychotic disorder due to a closed head injury suffered in late 2004. The property assessor was of the opinion that the applicant was completely able to make, and legally capable of making, financial decisions in the management of all property matters at this time in accordance with the criteria of the Act. The occupational therapist assessed the applicant as appearing to be quite capable of independent performance of her activities of daily living and her instrumental activities of daily living.

[5] At the respondent's request, the application was adjourned to permit these assessments to be reviewed by a qualified neuro-psychologist. The respondent had these assessments reviewed by the neuro-psychologist who had provided the personal care and property assessments in January 2007, on the basis of which the original guardianship orders were granted. This neuro-psychologist raised concerns with respect to the existing assessments which are discussed below. The applicant had these assessments reviewed by another neuro-psychologist. He concluded that the assessments performed were thorough, valid and reliable and that the applicant was capable of both personal care and property management.

[6] On the return of the application on January 30, 2012, the respondent brought a motion pursuant to section 79(1) of the Act compelling the applicant to undergo a further assessment by an assessor selected by the respondent.

[7] The motion judge granted the Order requiring such assessment, without providing reasons for his decision. The Order has subsequently been stayed pending the outcome of this motion for leave to appeal.

Standard on a Motion for Leave to Appeal

[8] The Order is interlocutory in nature. Therefore, rule 62.02(4) of the Rules of Civil Procedure governs the grounds on which leave may be granted:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

In this case, the applicant submits that the requirements of each of rules 62.02(4)(a) and (b) are satisfied.

Test for Granting an Assessment

[9] The test for ordering an assessment under the Act is set out in section 79(1):

If a person's capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person's capacity.

[10] In an application for an assessment, the applicant bears the onus of establishing the requirements for an assessment: see Abrams v. Abrams, 2009 12798 (ON SCDC), [2009] O.J. No. 1223 (Div. Ct.) per Low J. at para. 45. Accordingly, on the motion for a further assessment under section 79(1) of the Act, the respondent bears the onus of satisfying the requirements of that provision even though the applicant will bear the onus of proof when her application to terminate the guardianship orders is heard. Significantly, the relief is discretionary, and accordingly the court need not order a further assessment even if the conditions set out in section 79(1) are demonstrated.

Is there Good Reason to Doubt the Correctness of the Order?

[11] The principles to be applied by a motion judge in consideration of a motion under subsection 79(1) have been set out by Strathy J. in Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.), at para. 53:

(a) the purpose of the SDA, as discussed above;

(b) the terms of section 79, namely:

(i) the person's capacity must be in issue; and

(ii) there are reasonable grounds to believe that the person is incapable;

(c) the nature and circumstances of the proceedings in which the issue is raised;

(d) the nature and quality of the evidence before the court as to the person's capacity and vulnerability to exploitation;

(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

(f) whether there are flaws in the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;

(g) whether the assessment will be necessary in order to decide the issue before the court;

(h) whether any harm will be done if an assessment does not take place;

(i) whether there is any urgency to the assessment; and

(j) the wishes of the person sought to be examined, taking into account his or her capacity.

[12] In the present case, the motion judge ordered the further assessment without issuing reasons. In my opinion, there is a good arguable case to the effect that these considerations militate in favour of denying the respondent's request for a further assessment. I will deal first with my assessment of the factors set out above and then with certain other grounds that might have been considered in support of the Order.

The Purpose of the Act

[13] In a proceeding of this nature, the court seeks to balance the interests of the person alleged to be incapable against the interest and duty of the state to protect the vulnerable, not the interests of the litigants including a party seeking an assessment: see Abrams v. Abrams (S.C.) at para. 48 and at para. 59. In that decision, Strathy J. describes the issue for the court as striking the appropriate balance between the autonomy of the individual and the duty of the state to protect the vulnerable. The issue remains the same in the present circumstances. In particular, the fact that the applicant has previously been found to be incapable does not lessen the concern for the autonomy of the individual in addressing the motion.

The Terms of Section 79

[14] The applicant's application squarely puts her capacity in issue.

[15] The other factor to be addressed is whether there are reasonable grounds to believe that the applicant is incapable. This raises a novel legal issue. Section 79(1) requires that, to succeed on his motion, the respondent must establish reasonable grounds to believe that the applicant is incapable. However, the respondent's motion cannot serve as a substitute for the applicant's motion to terminate the guardianship in which, effectively, the applicant's capacity will be determined.

[16] When the issue is whether a further assessment should be ordered in respect of a person who is currently subject to guardianship orders and who has provided current assessments, this requirement must be addressed carefully. On the one hand, I think the threshold may be low in these circumstances given the current orders. On the other hand, there can be no presumption of incapacity. Nor can the court approach the issue on a basis that effectively reverses the onus in respect of the plaintiff. In view of the conclusions reached below, I think it is unnecessary to determine whether this condition has been satisfied and I therefore decline to do so.

Nature and Circumstances of the Proceedings

[17] The nature and circumstances of the present proceeding are novel. The motion is brought within an application brought by the applicant to terminate the guardianship orders in respect of her person and her property. In the hearing of that application, the applicant will have the onus of satisfying the requirements for terminating such orders. This suggests several considerations not typically present in a motion for an assessment under section 79(1) of the Act.

[18] First, a further assessment might assist the applicant in her application notwithstanding the respondent's apparent expectation that it would do otherwise. However, the applicant is prepared to proceed with her application on the basis of the assessments she has provided to date, notwithstanding the matters raised by the Dr. Kaminska in her paper review. The court should have regard to this decision as an incident of respect for the autonomy of the individual.

[19] Second, as a related matter, the respondent is able to raise all of the concerns raised on this motion at the hearing of the applicant's application. In this respect, the interest of the state in protecting vulnerable persons is not adversely affected by this decision. At that hearing, the court can also address whether the issues flagged by Dr. Kaminska require a continuation of the guardianship orders.

[20] These considerations weigh in favour of denying the further assessment.

The Medical Evidence

[21] As mentioned, in support of her application, the applicant has provided the four assessments described above, which found the applicant capable of caring for her person and property. In response to the respondent's motion, the applicant further provided a paper review by a neuro-psychologist. The medical evidence before the court in support of the respondent's motion consists of a paper review of the four assessments by another neuro-psychologist.

[22] There are, however, several difficulties to be considered in respect of this last report. As mentioned, Dr. Alina Kaminska, the neuro-psychologist who conducted this review, provided the personal care and property assessments in 2007, on the basis of which the existing guardianship orders were granted. Further, she did not interview the applicant to compare her current state with any recollection of her previous state. For these reasons, and perhaps others, there is, therefore, a significant possibility of inadvertent bias in her report by virtue of her prior involvement with the applicant. More substantively, while Dr. Kaminska highlights a number of ways in which the assessments could be more complete, she does not suggest that any of the assessments were invalid.

[23] Dr. Kaminska stated that, in her opinion, there was "insufficient examination" of complex financial decision-making as related to the applicant's assets and potential liabilities and of her approach to management of her psychotic disorder while anticipating a change in her support system. I think it is acknowledged, however, that these matters were addressed in the assessments and that the assessors take issue with the conclusions reached by Dr. Kaminska on these matters. More generally, it is at least arguable that all of the issues raised by Dr. Kaminska have been addressed directly or indirectly in the four assessments provided by the applicant.

[24] The case law suggests that further assessments are not generally ordered when positive assessments of capacity exist. This reflects a concern for the autonomy of the individual and recognition of the intrusive and demeaning nature of an assessment under section 79(1). Further assessments are ordered in such circumstances only when there are significant defects in the assessments, serious questions about the individual's capacity, or questionable behaviour after the date of the assessments. Dr. Kaminska's paper review does not raise any of these issues.

Non-Medical Evidence

[25] The respondent does not accept the assessor's conclusion that the applicant's "altered thinking with a history of psychosis" is now resolved without a review of her medical records, including an evaluation of the status of her brain injury, or independent evidence to support this conclusion. His affidavit principally sets out a number of circumstances that the respondent suggests demonstrates that there is reason to doubt that the applicant's mental state has resolved sufficiently to terminate the guardianship orders. The affidavit also sets out certain more specific medical concerns. The non-medical circumstances are largely addressed in Dr. Kaminska's report. It is at least arguable that the principal non-medical issues raised by the respondent have been addressed directly or indirectly in the assessments provided by the applicant.

[26] The respondent met with Dr. Kaminska shortly before executing his affidavit. I have proceeded on the basis that he provided Dr. Kaminska with the information in his affidavit. It is therefore significant that, while Dr. Kaminska refers to a number of matters in the respondent's affidavit, she does not confirm the respondent's position that there is good reason to doubt that the applicant's previous mental condition has resolved. Dr. Kaminska says only that she considers that the property assessor's testing was insufficient to constitute an updated comprehensive assessment of her neuro-cognitive functioning and therefore "one may not assume that her serious conditions are in remission and her prognosis is reversed".

[27] These considerations weigh against an order for a further assessment.

Wishes of the Applicant

[28] As mentioned, the applicant strongly opposes the respondent's motion. She is also prepared to have her application heard despite the issues raised by the respondent and Dr. Kaminska. These considerations weigh in favour of denying the requested relief.

Whether Any Harm Will Result if the Further Assessment is Denied

[29] The respondent argues that harm will arise at the hearing of the applicant's application. This raises two considerations. Clearly, because the applicant is already subject to guardianship orders, the usual concern for possible harm to the applicant does not arise.

[30] The respondent argues that the application judge will not have full information when that matter is heard. This may be a legitimate concern in some circumstances. However, I do not think it is determinative in the present circumstances because Dr. Kaminska's report does not suggest that the assessments provided by the applicant are invalid, flawed or incomplete in a fundamental way. The report of Dr. Kaminska does not go beyond indicating areas in which she believes further information would be desirable. If this is an incorrect reading of Dr. Kaminska's report, I expect it will be supplemented for the hearing of the application. I am therefore not persuaded that the absence of a further assessment in these circumstances will result in harm to the applicant in the form of an uninformed decision by the application judge, particularly as the application judge will be able to assess the potential for harm based on the absence of a further assessment at the time of hearing the application.

[31] The respondent also argues that a further assessment will enable the application judge to have an objective and independent expert assessment of the applicant's capacity. However, there is no evidence before the court that casts doubt on the objectivity and independence of the assessors whose reports have already been provided by the applicant.

[32] These considerations also weigh against an order for a further assessment.

Possible Grounds of the Order

[33] I turn, then, to possible grounds upon which an order for a further assessment might be supported. Several possibilities present themselves.

[34] The first ground is that the applicant failed to satisfy an onus placed on her to demonstrate capacity. This would involve a reverse onus which is excluded by the language of section 79(1).

[35] A second ground is the existence of the current guardianship orders. As mentioned above, this would also effectively reverse the onus on the motion or effectively impose a higher threshold than a reasonableness standard. Such an approach disregards the autonomy of the individual.

[36] A third ground is that further information is simply better information and cannot hurt. This was specifically addressed in Urbisci v. Urbisci, 2010 ONSC 6130, at para. 27:

In his decision in Abrams v. Abrams (S.C.), Strathy J. identified the key interests at stake on an application under section 79(1) of the SDA:

… The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual. As Mr. Justice Pattillo said in Flynn v. Flynn (December 18, 2007), Doc. 03-66/07 (Ont. S.C.J.): "[a] capacity assessment is an intrusive and demeaning process."

As Strathy J. noted elsewhere, although the utility of a capacity assessment cannot be understated, "it is important to resist the temptation to order an assessment based on the argument 'it can't hurt.' It can hurt."

[37] In summary, an assessment is not available if the purpose is to provide certainty to the court, to ease the concerns of guardians or relatives, or to respond to allegations of incapacity.

Conclusion on the Correctness of the Order

[38] Balancing the foregoing considerations, in my opinion, there is a good arguable case that the respondent has failed to demonstrate factors directed toward furthering the state interest in protecting the vulnerable that outweigh the factors that recognize the dignity and autonomy of the applicant. In these circumstances, I conclude that the applicant has demonstrated that there is good reason to doubt the correctness of the motion judge's decision.

Does this Appeal Satisfy the Test of Importance?

[39] I also conclude that this appeal satisfies the requirement that it invoke a matter of such importance that leave to appeal should be granted.

[40] The appeal engages the constitutionally protected dignity of the individual – in this case, of a person without capacity seeking to terminate guardianship orders. There are no other reported decisions dealing with an assessment under section 79(1) in this context.

[41] Without reasons for the Order but in the face of the extensive evidence as to the applicant's capacity, I think there is a good arguable case that the Order does not appropriately balance the autonomy of the individual and the duty of the state to protect the vulnerable in the particular circumstances of this case. The effect of the Order is potentially to discriminate against a person under a disability, relative to a person not under a disability, for the purposes of a proceeding under section 79(1) of the Act. It is important that the principle of the court's role in the present circumstances be addressed.

Is There a Conflicting Decision?

[42] The applicant also argues that she has satisfied the requirements of rule 62.02(4)(a) in respect of her appeal.

[43] Given the conclusion reached above, it is unnecessary to address this issue and I decline to do so.

Conclusion

[44] Based on the foregoing, leave to appeal the Order is granted. Costs of this motion are reserved for the court hearing the appeal of the Order.

Wilton-Siegel J.

Date: June 28, 2012