CITATION: Kim v. 260 Wellesley Residences Inc. 2014 ONSC 7058

DIVISIONAL COURT FILE NOs.: 561/14; 562/14; 563/14

DATE: 20141205

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KI HO KIM v. 260 WELLESLEY RESIDENCES INC. and others KI HO KIM v. CITY OF TORONTO and ESPLANDE 75 INC. KI HO KIM v. THE TORONTO POLICE SERVICES BOARD

BEFORE: NORDHEIMER J.

COUNSEL: K. Kim in person A. Cheung for the Public Guardian and Trustee T. Hughes for the respondents, 260 Wellesley Residences Inc. and others A. Jairam for the respondent, City of Toronto A. Paul for the respondent, Esplande 75 Inc. D. Gourlay for the respondent, The Toronto Police Services Board

HEARD at Toronto: December 5, 2014

ENDORSEMENT

[1] Mr. Kim brings motions in each of these proceedings seeking leave to appeal from the orders of Hainey J. dated July 8, 2014 in which he dismissed appeals from the orders of Master Graham dated November 4, 2013. At the conclusion of Mr. Kim’s submissions, I dismissed the motions with reasons to follow. I now provide those reasons.

[2] The Master had concluded that Mr. Kim was mentally incapable within the meaning of s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 such that it was necessary, under r. 7.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to appoint a litigation guardian for Mr. Kim with respect to each of these proceedings. Since Mr. Kim had not proposed anyone to be his litigation guardian, under r. 7.04(12)(b) it became necessary to appoint the Public Guardian and Trustee as litigation guardian.

[3] Mr. Kim seeks leave to appeal, under r. 62.02(4)(b), on the basis the there is good reason to doubt the correctness of the orders of Hainey J.

[4] Hainey J. gave considered reasons for dismissing Mr. Kim’s appeal from the orders of the Master. He reviewed the medical evidence that had been before the Master and the analysis that the Master had applied. I note, in that regard, that the only psychiatric evidence before the Master was that Mr. Kim was mentally incapable.

[5] Hainey J. also considered each of the arguments that Mr. Kim made in respect to the errors that Mr. Kim asserted the Master had made in reaching his decision. In particular, Hainey J. reviewed the issues that had been raised regarding the psychiatric evidence including certain issues regarding the psychiatrist himself.

[6] Hainey J. also addressed the Notice of Constitutional Question that Mr. Kim had delivered on the appeal, that had not been before the Master. He concluded that he should not determine the constitutional issue that Mr. Kim wished to raise because it had not been raised before the Master and the record was insufficient to allow the issue to be properly argued. However, and out of an abundance of caution, Hainey J. did briefly consider the constitutional issue and concluded that the contention, that the order appointing a litigation guardian violated Mr. Kim’s s. 7 rights under the Canadian Charter of Rights and Freedoms, would not succeed.

[7] I have no reason to doubt the correctness of the analysis and conclusions reached by Hainey J. Given the lack of any contradictory evidence, the decision of the Master regarding Mr. Kim’s mental state was virtually inevitable. In any event, Hainey J. considered all of the matters that he ought to have considered and he applied the proper test for an appeal from the order of a Master. His reasons do not disclose any error or other basis upon which I could question the result that he reached.

[8] Finally, as Hainey J. pointed out, if Mr. Kim has a problem with the Public Guardian and Trustee as his litigation guardian, he has the right to propose a different litigation guardian if he can find someone who is appropriate for that role and is willing to undertake it. Further, if the situation has or does change regarding Mr. Kim’s disability, he has the right to seek a change in that order if he can produce proper and cogent medical evidence to that effect.

[9] The motions are dismissed. Only the respondent, Esplande 75 Inc., sought costs on these motions. Costs normally follow the event and I see no principled reason to depart from that usual result. The costs of the motion are payable by Mr. Kim to Esplande 75 Inc. fixed in the amount of $1,500 inclusive of disbursements and HST. Those costs are not payable forthwith but, rather, are payable in any event of the cause as expressly requested by counsel.

NORDHEIMER J.

DATE: December 5, 2014