Court File and Parties

Citation: Aletkina v. The Hospital For Sick Children, 2014 ONSC 716 Divisional Court File No.: 402/13 Date: 2014-02-04 Superior Court of Justice – Ontario Divisional Court

Re: Nadejda Aletkina, Appellant And: The Hospital For Sick Children, Respondent

Before: Harvison Young J.

Counsel: Nadejda Aletkina, appearing in person, Appellant/Moving Party Kate Dearden, for the Respondent

Heard: January 29, 2014

Endorsement

HARVISON YOUNG J.

[1] The appellant\moving party, Nadejda Aletkina, who is self-represented, brings a motion to adduce fresh evidence at the appeal of an order made by Master McAfee.

Background

[2] The appellant is a plaintiff in a wrongful dismissal action against the respondent Hospital for Sick Children where she was employed between 2002-2003 for approximately one year and received a one month severance package. She was a Research Technologist earning $35,000 while employed by the respondent. Her statement of claim seeks general, special, punitive and exemplary damages in the amount of $750,000.

[3] The appellant brought a motion to answer undertakings and leave to amend her pleadings. Following a number of delays, the motion was finally heard. The Master dismissed the motion pursuant to reasons dated November 14, 2013. One of the issues before the Master related to the expiry of certain limitation periods in relation to causes of action she wanted to add. The “fresh evidence” which she now seeks to adduce relates to her argument, which she made before the Master, that due to her incapacity, the applicable limitation periods did not begin to run until November 15, 2011 and had thus not expired. The Master specifically considered, and rejected, the appellant’s argument that the limitation periods had not expired due to the appellant’s alleged incapacity, stating as follows:

The applicable limitation period with respect to these claims expired at the very latest on February 18, 2012, two years after Ms. Aletkina received the affidavit of documents of HSC. Ms. Aletkina did not advise of her intention to amend the statement of claim until April 14, 2012.

Ms. Aletkina argues that due to her incapacity, the applicable limitation period did not begin to run until November 15, 2011. The medical and other evidence before me does not satisfy me that Ms. Aletkina’s medical condition would have prevented her from appreciating that she had an alleged cause of action. I am not satisfied that Ms. Aletkina was incapable such that the limitation period did not run. Ms. Aletkina has not met the burden of establishing incapacity (see Hussaini v. Freedman, 2013 ONSC 779, [2013] O.J. No.912 (S.C.J.) at paras 49 and 51 and see Deck International Inc. v. Manufacturers Life Insurance Co., 2012 ONCA 309, [2012] O.J. No. 2155 (C.A.) at para 6).(Master’s Reasons, paras. 15 and 16).

[4] The evidence which the appellant seeks to adduce is contained in a large volume of bound documents with some 41 tabs.

[5] Having heard full submissions from both parties, and reviewed the extensive materials filed, I conclude that the appellant has not met the Palmer test because in my view, none of it could be expected to have affected the result of the motion. In addition, much of it, in any event, is irrelevant and/or could have been adduced at first instance.

The Legal Test to be Applied

[6] There is no dispute as to the applicable law. Both the appellant and the respondent rely on the “Palmer” test as set out by the Supreme Court in R. v. Palmer, [1980] 1 S.C.R. 759 at p. 775:

Palmer, the party seeking to adduce fresh evidence must show that:

(a) the evidence could not through due diligence have been adduced at trial;

(b) the evidence is relevant in that it bears on a decisive or potentially decisive issue;

(c) the evidence is credible; and

(d) the evidence, if believed and taken with the other evidence, could be expected to affect the result.

1. Could the evidence, through due diligence, have been adduced at trial?

[7] I do not accept the appellant’s submission that the evidence could not have been adduced “through due diligence” at first instance.

[8] The appellant argues that the proposed evidence could not have been met through due diligence at the motion because she was so incapacitated due to mental illness at the time that she was unable to adduce it at that time. She admits, however, that all fresh evidence relating to her incapacity in 2010-2011 existed and or was obtainable before the motion (with one exception which will be referred to below). She states that at the time, and while she was preparing for the hearing, she was suffering so significantly from depression and pain, and was unrepresented, such that she was in fact incapacitated and so, in fact, the evidence could not have been adduced.

[9] This argument cannot succeed. All the fresh evidence which is even arguably relevant related to her capacity in 2010 – 2011 existed and/or was obtainable before the motion.

[10] The evidence, to the extent that it, could possibly have been relevant was readily available by the appellant at the motion. The appellant had been seeing the various doctors who provided notes after the hearing of the motion, and there is no reason why the appellant could not have provided such notes, particularly those notes that already existed. In fact, the appellant did provide a selection of notes from these doctors at the hearing of the motion. Given the amount of effort that she clearly actually put into the motion, her argument that she could not have adduced this evidence at that time, is not acceptable. While the due diligence requirement is to be applied contextually, a self- represented party is expected to be cognizant of the procedure and rules that apply equally to all parties: R. v. 1275729 Ontario Inc. at para. 29; Kainz v. Potter.

[11] The appellant submits that all of the proposed evidence, taken together, paints a picture of someone who was incapacitated. I disagree. The evidence does not have that effect, because much of it, while it does show that she was unwell in various ways at times, falls far short of establishing incapacity in a manner that would make it relevant. That was the conclusion reached by the Master, and none of the proposed evidence, on its own or cumulatively would change that conclusion.

[12] The above submissions address most of the issues raised by the appellant and I need not address them further. I will make a couple of additional points. The appellant submits that the proposed evidence is credible. I need make no determination on this point because of the appellant’s failure to satisfy the other elements of the Palmer test.

2. Is the proposed evidence relevant in that it bears on a decisive issue?

[13] Much of the material is irrelevant or inadmissible as evidence regarding the issue in this appeal. This overlaps with the first question just addressed. The onus is on the moving party to establish the proposed evidence’s relevance to a decisive or potentially decisive issue.

[14] Tab 3 is a note dated September 19, 2013 from Dr. Ruzica Jokic (a psychiatrist). This note addresses the appellant’s ability to pursue her education and whether chronic pain is linked to the psychiatric symptoms. Neither subject bears on the issue of the appellant’s legal capacity or limitation periods.

[15] Tab 9 is a note from Dr. Roumen Milev (a psychiatrist) and Anne Shea, a registered nurse. This note relates to the appellant’s decision not to participate in a research study about depression. This note does not address capacity, and is irrelevant.

[16] Tab 10 is a note from Dr. Allison Spiller dated April 19, 2010. The note concerns a neurology assessment. Dr. Spiller specifically says she advised the appellant to follow up with her psychiatrist. This note does not address capacity, and is irrelevant.

[17] Tab 11 is a note from Dr. John Carlile (a sleep disorder physician) dated June 1, 2010. This note addresses whether the appellant has sleep apnea. This note does not address capacity, and is irrelevant.

[18] Tab 12 purports to be a letter from the appellant to Dr. Russell (then Daneshmend) dated June 9, 2010. The note is not relevant because it was created by the appellant in an effort to extend deadlines in the litigation and avoid dismissal of the action. Further, the note is not credible because it the appellant’s self-assessment.

[19] Tab 13 is a note from Dr. Prost (psychiatrist) dated July 19, 2010. This note states that the appellant had thoughts about shooting people at the respondent’s facility, but that she denied she would do this and had no plans. This note does not address capacity, and is irrelevant to this appeal.

[20] Tabs 14 and 15 contain the respondent’s offer to settle. Neither document is evidence or admissible in this appeal.

[21] Tab 16 is a portion of the transcript of the examination for discovery of the appellant. This is irrelevant.

[22] Tab 17 is a record from the University Health Network describing a visit by the appellant to an emergency department on April 26, 2013. It does not address capacity of the appellant during the period when the limitation period expired, or any issue that is relevant to this appeal.

[23] Tabs 18 – 21 are documents that relate to the appellant’s interactions with Pro Bono Law Ontario. These are not relevant to any issue on the appeal. If anything, they demonstrate that the appellant has had extensive opportunities to consult with lawyers about this action.

[24] Tab 25 is an ODSP Dental Identification Card referring to a payment made to the appellant on December 20, 2013. Tabs 26, 27 and 28 appear to be brochures about prescription medication Cymbalta, Abilify and Trazodone. Tab 29 appears to be a printout of medications from Shoppers Drug Mart. Tab 30 appears to be a printout from the appellant’s family doctor. None of these documents are relevant to the issues in this appeal.

[25] Tab 31 is the front page of the respondent’s factum from the motion. This is not evidence that could bear on a decisive issue in this appeal.

[26] Tab 32 is correspondence between the respondent’s counsel and the appellant about the appellant’s excessively lengthy factum from the motion. This is irrelevant to the issues in this appeal.

[27] Tab 33 is the Affidavit of Documents, Volume 4, sworn by the appellant on April 2, 2012, and page 4 from an exhibit list prepared by the appellant. Neither is relevant to the issues in this appeal.

[28] Tabs 35-40 are e-mails that relate to the appellant’s efforts to obtain a copy of the discovery transcript at a reduced cost. None of the e-mails is relevant to the issues in this appeal.

3. Could the evidence, if believed and taken with the other evidence, be expected to affect the result?

[29] A great deal of the evidence purports to establish that the appellant did not have capacity between May 2009 and November 2011. She submitted a number of medical notes which she asserts establishes such incapacity:

[30] Tab 4[^1] is a note dated October 17, 2013 from Dr. Deanna Russell (formerly Daneshmend). This letter was prepared some two years after the initial diagnosis, and was clearly made upon request by the appellant in an effort to change the outcome of the motion. Dr. Russell is a family doctor, and not a mental health specialist. The Master’s Decision would not have been altered had this note been provided at the motion given the significant number of contradictory notes from specialists reviewed by the Master.

[31] Tab 5 is a note from Dr. Jokic (a psychiatrist) dated November 28, 2013. The appellant clearly asked Dr. Jokic to conclude, from a legal perspective, that she was incapable during the period from November 2010 to November 2011. However, the note does not contain such a conclusion. Dr. Jokic specifically states:

I cannot comment on whether you were incapacitated to manage property and/or personal care at any point in time. I have never formally assessed your capacity to manage property and/or personal care.

[32] Dr. Jokic makes similar comments a number of times in this note. Dr. Jokic’s assessment therefore does not state that the appellant lacked capacity from a legal perspective.

[33] Tab 6 is a note from Katherine Waller (a psychologist) dated January 14, 2014. She states she treated the appellant between January and December of 2011. This does not cover the alleged period of incapacity, mainly from May 2009 to November 2011. In any event, Dr. Waller states:

The observations contained in this letter are a summary of my progress notes, which have previously been released to Ms. Aletkina. At no point in time did I perform a formal diagnostic, cognitive, or capacity assessment with Ms. Aletkina.

[34] Dr. Waller’s note therefore does not address the appellant’s legal capacity.

[35] Tab 7 appears to be an outpatient progress note of Dr. Waller printed on February 28, 2012 relating to an appointment with the appellant on October 18, 2011. The appellant has underlined the phrase “[I]nsight was partial”, which does not indicate incapacity from a legal perspective.

[36] Tab 8 appears to be a printout of notes from Dr. David Murray (Resident) and Dr. Jokic (psychiatrist) on various dates. The printout contains information about the appellant’s medical treatment and personal life. The appellant has underlined sections of the printout which refer to illness, none of which indicate incapacity. The printout is also similar to the medical notes provided by the appellant at the motion, and are unlikely to affect the result in this appeal.

[37] In sum, none of these notes could therefore have made any difference to the Master’s decision as they could not establish incapacity.

[38] Similarly, the appellant seeks to adduce two affidavits sworn by her sons.

[39] Tabs 1 and 2 are affidavits from the appellant’s sons. Neither affiant is qualified to provide assessments of the appellant’s medical condition or capacity. Furthermore, the evidence lacks credibility because the affiants are relatives of the appellant. The appellant relies on the Ontario Court of Appeal’s decision in Toronto-Dominion Bank v. Hylton regarding the relevance of a family member’s affidavit. However, in Hylton, the affidavit of Mr. Hylton’s mother spoke only to the serious personal circumstances that had arisen at the time of Mr. Hylton’s hearing. Those serious personal circumstances were not in dispute. In the present appeal, the affidavits are relied upon as medical and legal assessments of the Appellant’s capacity, and the affiants are biased and unqualified: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, at para. 27.

[40] The appellant emphasized that her sons who prepared two of the affidavits are well educated and well qualified and thus should be “accepted”. With respect, that is not the point. The evidence of a lay person does not establish mental incapacity in a legal sense. A proper legal opinion is required for that purpose.

[41] Accordingly, I conclude that none of this proposed evidence could affect the result. While it adds a great deal in volume, it does not change the substance of what was before the Master in any qualitative sense. In other words, this evidence, if believed and taken with other evidence, does not add anything to the original arguments surrounding the appellant’s capacity during the litigation process. The appellant’s mental state at the time of the motion was a very live issue and she made very full arguments then.

Conclusion

[42] In my view, admitting this evidence would fly in the face of the policy which underlies the Palmer rule in that it would, in the effect, permit the appellant to reargue the motion that was before the Master.

[43] For these reasons, the motion is dismissed. Costs are reserved to the hearing of the main motion.

Harvison Young J.

Date: February 4, 2014

[^1]: All the references to tabs are to the proposed evidence filed by the appellant in her Motion Record.