Neutral Citation: 1999 ONFSCDRS 78
FSCO A98-001325
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NOREEN HAYDEN
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
John Wilson
Heard:
April 30, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Mrs. Noreen Hayden
Fiona E. S. Porter for Guarantee Company of North America
Issues:
The Applicant, Noreen Hayden, was injured in a motor vehicle accident on November 9, 1997. She applied for statutory accident benefits from Guarantee Company of North America ("Guarantee"). The parties were unable to resolve their disputes through mediation, and Mrs. Hayden applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The preliminary issue is:
- Is Mrs. Hayden mentally incapable, within the terms of section 10.1 of the Dispute Resolution Practice Code (the "Code"), and sections 6 and 45 of the Substitute Decisions Act, S.O. 1992, c. 30, and so precluded from proceeding with her arbitration, without the intervention of a litigation guardian, or other guardian, as provided for in section 10.1 of the Code?
Result:
- Mrs. Hayden is mentally capable, within the terms of section 10.1 of the Code and sections 6 and 45 of the Substitute Decisions Act, and does not require a litigation guardian to proceed with her arbitration.
EVIDENCE AND ANALYSIS:
A pre-hearing in Mrs. Hayden's arbitration with the Guarantee Insurance Company of North America was scheduled on March 18, 1999, by teleconference.
About one week prior to the scheduled pre-hearing, Dr. Wade Sahheed, the family doctor of Mrs. Hayden, sent a letter by fax to the Commission, concerning Mrs. Hayden's mental status. His letter stated:
This is to inform you that Mrs Hayden suffers from paranoid schizophrenia. She is not mentally competent to make any sort of decision regarding her file No.100, 193-0.
Mrs. Hayden did not make herself available for the pre-hearing on March 18, 1999, nor did she respond to several telephone calls at the number given for her.
Section 10 of the Code provides that:
A minor, or a person who is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c.30, must be represented by one of the following:
a) a litigation guardian;
b) parent or legal guardian of the person's property, as the case may be; or
c) a court-appointed guardian.
Section 2 of the Substitute Decisions Act sets out a general presumption of capacity, which may be relied upon by a third party "...unless he or she has reasonable grounds to believe that the other person is incapable."
The letter from Dr. Sahheed stating that "she is not mentally competent to make any sort of decision regarding her file" constituted reasonable grounds to believe that Mrs. Hayden might be incapable for the purposes of section 10 of the Code.
Section 5.3 (3) of the Statutory Powers and Proceedings Act, R.S.O., 1990 c. section 22, provides :
A member who presides at a pre-hearing may make such orders as he or she considers necessary or advisable with respect to the conduct of the proceeding, including adding parties.
As a result of the doctor's letter, and Mrs. Hayden's non-participation in the pre-hearing, it was apparent that a determination of her capacity in the context of section 10 of the Code would have to be made. I ordered a preliminary issue hearing on the issue of her competence to proceed in this matter, without the appointment of a litigation guardian.
The definition of competency referred to in the Code is contained in section 6 of the Substitute Decisions Act which provides:
A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Following the pre-hearing, I sent a letter to Dr. Sahheed, requesting amplification of his comments in his letter to the Commission. More specifically, I asked for clarification of his expertise in capacity assessment, his familiarity with Mrs. Hayden, and his understanding of Mrs. Hayden's ability to appreciate the reasonably foreseeable consequences of any decisions she made concerning the arbitration.
Dr. Sahheed replied on April 26, 1999 with a letter stating that he had done no testing to evaluate Mrs. Hayden's mental capacity, and suggested that her capacity should be evaluated. In a voicemail message left later in the same week, Dr. Sahheed responded to the questions contained in my letter of March 22, 1999. To the questions concerning Mrs. Hayden's ability to understand the arbitration claim and process, he replied that he was "unsure."
Mr. Justice Quinn of the Ontario Court (General Division) in Re Koch (1997 CanLII 12138 (ON CTGD), 33 O.R. (3d) 485) stated:
Compelling evidence is required to override the presumption of capacity found in s. 2(2) of the SDA (Substitute Decisions Act) and s. 4(1) of the HCCA (Health Care Consent Act). The nature and degree of the alleged capacity must be demonstrated to be sufficient to warrant depriving the appellant of her right to live as she chooses. Notwithstanding the presence of some degree of impairment, the question to be asked is whether the appellant has retained sufficient capacity to satisfy the statutes.
Dr. Sahheed admitted in his letter of April 26 that he did not evaluate Mrs. Hayden. He was "unsure" of Mrs. Hayden's ability to understand the proceedings. He did not address at all the question of whether she was able to understand information relevant to making a decision or able to appreciate the reasonably foreseeable consequences of a decision or a lack of decision.
I find that the letter from Dr. Sahheed, dated March 11, 1999, his subsequent letter dated April 26, and his voicemail message responding to the arbitrator's questions were sufficient to raise the question of Mrs. Hayden's competence to proceed in her arbitration, but do not constitute the "compelling evidence" required to overturn the presumption of capacity.
At the preliminary issue hearing on April 30, 1999, Mrs. Hayden appeared without representation. She was pleasant in appearance, and willingly answered questions concerning her daily functioning, and her ability to evaluate and make decisions.
She stated that she lived alone in her own apartment, paid her own rent and managed her own affairs. She said that she ate out a lot to avoid being alone, but otherwise did all her own shopping. She spoke of an involvement with doctors and psychiatrists, but maintained that she had never been an inpatient in a psychiatric facility.
Although she was clearly saddened by disappointments in life, and claimed to be depressed, she presented an image of a person who functioned carefully, but effectively, within strict financial limitations.
When asked about personal transportation, she stated that she walked or took buses or taxis. When she had important appointments she preferred to take taxis over buses, because a potential consequence of travel by bus was lateness for appointments. She felt that it was worth the extra cost to be on time. Her comments revealed that she addressed foreseeable consequences of her decisions, even in her choice of transportation.
When asked about the original letter from Dr. Sahheed, Mrs. Hayden stated that she entirely agreed with the judgment of incapacity. Upon further questioning, she elaborated that her incapacity was in the context of dealing with the complexities of the legal system and the arbitration process. She stated in her words: "I don't know the rules."
As Mr. Justice Quinn stated in Re Koch (supra):
There is a distinction to be drawn between the appellant failing to understand the risks and consequences and being unable to understand the risks and consequences.
From Mrs. Hayden's testimony at the hearing, and the comments of her physician, it appears that she may not always fully understand her dealings with the arbitration process, and may have anticipated some difficulty representing herself at an arbitration. In this she is not alone. As well, the extra stress of her involvement in the arbitration process may not be good for her long-term health. However, I find, on the basis of her testimony, her demeanour, and her proven ability to manage her finances and to fend for herself in her daily life, that she has demonstrated a capacity to appreciate the reasonably foreseeable consequences of a decision or lack of decision, and that she is able to understand information relevant to her decision-making process.
I find that Mrs. Hayden is able to proceed with her arbitration, or to request the withdrawal of her application for arbitration, should she feel so inclined.
EXPENSES:
I exercise my discretion to award Mrs. Hayden her expenses incurred in this preliminary issue hearing.
May 4, 1999
John Wilson
Arbitrator
Date
Neutral Citation: 1999 ONFSCDRS 78
FSCO A98-001325
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NOREEN HAYDEN
Applicant
and
GUARANTEE COMPANY OF NORTH AMERICA
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
- Mrs. Hayden is mentally capable within the terms of the Dispute Resolution Practice Code and may proceed in her arbitration without the benefit of a litigation guardian.
May 4, 1999
John Wilson
Arbitrator
Date