Neutral Citation: 2001 ONFSCDRS 194 FSCO A00-000374

Between: Michel Veilleux, Applicant and Halifax Insurance Company-ING, Insurer

Decision on a Preliminary Issue

Before: Susan Sapin Heard: November 21, 2001, in Ottawa, Ontario.

Appearances: Mr. Veilleux represented himself. Julie Parent for Halifax Insurance Company-ING

Issues:

The Applicant, Michel Veilleux, was injured in a motor vehicle accident on July 16, 1996. Mr. Veilleux did not report the accident to Halifax until March 10, 1999, and only completed an Application for Accident Benefits, payable under the Schedule¹ on May 17, 1999. Halifax refused Mr. Veilleux' claim on November 5, 1999.² The parties were unable to resolve their disputes through mediation, and Mr. Veilleux applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended, (the "Act.")

At the first pre-hearing of this matter on August 23, 2000, Halifax raised the following preliminary issues:

Does paragraph 71.1 (a) of the Schedule preclude Mr. Veilleux from proceeding to arbitration because he failed to notify the Insurer within 30 days after the circumstances arose that gave rise to the entitlement to benefits, as required by subsection 59(1) of the Schedule?³
a) Does section 72(1) of the Schedule preclude Mr. Veilleux from proceeding to arbitration because he failed to commence a mediation or arbitration proceeding under sections 280 or 281 of the Insurance Act, respectively, within two years of the Insurer's refusal to pay the benefits claimed?

(b) Does subsection 72(2) preclude Mr. Veilleux from proceeding to arbitration because he failed to commence an arbitration proceeding under section 281 of the Act within 90 days after the mediator reported to the parties?

At a second pre-hearing held on October 19, 2001, Halifax raised the issue of Mr. Veilleux' mental competence. At the start of this hearing, Halifax requested an adjournment of the first two preliminary issues pending my determination of Mr. Veilleux' competence. As Mr. Veilleux is representing himself, it would be clearly unreasonable, and unfair to either party, to proceed with the arbitration until the challenge to Mr.Veilleux' capacity is resolved. I therefore granted the adjournment.

The issue in dispute before me today therefore is:

Is Mr. Veilleux mentally incapable, within the terms of the Dispute Resolution Practice Code - Fourth Edition (the "Code") and sections 6 and 45 of the Substitute Decisions Act, S.O. 1992, c. 30, ("SDA") and so precluded from proceeding with his arbitration, without the intervention of a litigation guardian, or other guardian, as provided for in section 10.1 of the Code?

Result:

Mr. Veilleux is mentally capable, within the terms of section 10.1 of the Code and sections 6 and 45 of the SDA, and does not require a litigation guardian to proceed with his arbitration.

EVIDENCE AND ANALYSIS:

The authority of an arbitrator to determine competency arises from section 5.3 (3) of the Statutory Powers and Proceedings Act, R.S.O., 1990 c. section 22 and Section 10.3 of the Code, which provide as follows :

5.3.(3) 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.

10.3 Where an adult party has not been declared mentally incapable under the provisions of the SDA (Substitute Decisions Act), but exhibits signs of mental difficulty during the course of a mediation, settlement discussion, neutral evaluation or proceeding, either party may request a hearing on a preliminary issue, or the adjudicator or the Registrar may direct a hearing on a preliminary issue to determine whether

(a) the party has the mental capacity to proceed in the dispute resolution process.

The definition of mental competency referred to by the Code is that contained in section 6 of the SDA:

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 forseeable consequences of a decision or lack of decision.

There was no evidence before me of any finding that Mr. Veilleux is incapable of managing property.

In Hayden and Guarantee Insurance Company (FSCO A98-001325, May 4, 1999) Arbitrator Wilson pointed out that section 2 of the SDA 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." He reiterated the principle upheld by the courts that the presumption of mental competence should only be overturned by compelling evidence to the contrary, quoting Mr. Justice Quinn of the Ontario Court (General Division) in Re Koch [1997 CanLII 12138 (ON CTGD), 33 OR (3d) 485]:

Compelling evidence is required to override the presumption of capacity found in s.2(2) of the SDA and s.4(1) of the HCCA (Health Care Consent Act). The nature and degree of the alleged incapacity 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.

Halifax does not take the position that Mr. Veilleux is mentally incapable of representing himself in these proceedings, but argues that medical information filed, on its face, suggests there are reasonable grounds to require that a determination of capacity be made.

Having reviewed the medical evidence filed, including the updated medical records of the Montfort Hospital faxed to me on December 19, 2001,⁴ and having heard the testimony of Mr. Veilleux and the submissions of both parties, I am not persuaded that the evidence presented is sufficiently compelling to overturn the presumption that Mr. Veilleux is mentally capable of representing himself in these proceedings, for the reasons that follow.

The Insurer's Evidence:

The Insurer relied on the records of the Montfort Hospital in Ottawa, where Mr. Veilleux was admitted for psychiatric illness on three occasions between 1999 and 2001, and the reports of Dr. René Ducharme, Mr. Veilleux' treating psychiatrist, and Dr. Jack Klein, a psychiatrist who examined Mr. Veilleux at the Insurer's request in September 2001, about two months ago.

Mr. Veilleux was first admitted to the Montfort Hospital on June 16, 1999, after being brought to the emergency department by his brother. Dr. Ducharme's assessment and discharge reports dated June 18 and July 22, 1999,⁵ indicate that Mr. Veilleux had suffered paranoid and "somatic" delusions for a year previously, consulting several doctors to determine if he was being poisoned, and checking electrical wiring to see if listening devices had been placed in his home.

Dr. Ducharme diagnosed paranoid schizophrenia and treated Mr. Veilleux with intramuscular injections of drugs, eventually settling on a long-acting form of Clopixol, (Haldol, a neuroleptic), and oral Kemadrin. Dr. Ducharme noted that Mr. Veilleux responded well to the treatment, although he suffered from side-effects such as involuntary tremors, and the drugs caused him to sleep a good deal. Dr. Ducharme reported that Mr. Veilleux had developed good insight into his psychotic symptoms. He was discharged, to be followed on an outpatient basis, and Dr. Ducharme completed an application for long-term disability benefits.⁶

In an October 14, 1999 report to a lawyer then acting for Mr. Veilleux, Dr. Ducharme outlined the "negative symptoms" characteristic of the illness that persisted despite the fact that Mr. Veilleux was receiving appropriate treatment. These were difficulty in maintaining motivation, a restrained emotional register, difficulty concentrating and with abstract thought, and susceptibility to erroneous interpretations in his interactions with others. He described Mr. Veilleux as very vulnerable to stress, and to relapses brought about by stress in interacting with others, and recommended that he not return to work or resume family responsibilities. He advised that the earliest possible resolution of Mr. Veilleux' legal difficulties would certainly alleviate some of his stress.

Mr. Veilleux stopped taking his antipsychotic medication in October 1999 and, as a result, was admitted to hospital on February 2, 2000 in a state of acute paranoid psychosis. He responded rapidly to treatment and was discharged two weeks later to the outpatient clinic.

Unfortunately, Mr. Veilleux did not return to the clinic, and was again admitted to hospital on October 26, 2000. He refused treatment, was declared incapable to consent to treatment, and was treated with the consent of the Public Guardian and Trustee. He was discharged to a community residence of his choice on March 1, 2001 under a community treatment order.

Dr. Jack Klein examined Mr. Veilleux on September 21, 2001.⁷ He recorded Mr. Veilleux' medication as bi-weekly injections of flupenthixol decanoate, and Cogentin to counteract the neuromuscular side-effects of the former. With respect to Mr. Veilleux' mental status and function, Dr. Klein noted that Mr. Veilleux was oriented as to time, place and person, and cognitive functions such as attention, concentration, short-term memory and social judgment were grossly intact for the purpose of the examination. Mr. Veilleux was not psychotic. Dr. Klein reported that Mr. Veilleux' concentration and memory were adequate to take an electronics course at Algonquin College, although he experienced day-to-day forgetfulness as an adverse effect of his neuroleptic injections. He noted that although Mr. Veilleux admitted that he was "pretty sick" during the periods he was hospitalized or not on medication, he did not accept the diagnosis of schizophrenia, and attributed his episodes of mental illness to financial stress due to unemployment and a difficult divorce.

Dr. Klein found that inconsistencies between Mr. Veilleux' account and information contained in the documentation he reviewed could not be adequately accounted for by the passage of time, the number of physicians seen by Mr. Veilleux, or any possible cognitive effects of his schizophrenia or his psychotropic medication. He concluded instead that Mr. Veilleux had reconstructed events in such a way to attribute his low level of functioning over the past several years to the 1996 motor vehicle accident, and that his tendency to blame external causes demonstrated that he lacked insight into himself and his mental illness.

I find nothing in the foregoing evidence provided by the Insurer to suggest that Mr. Veilleux does not meet the test of mental competency set out above, that is, that he is incapable of understanding information that is relevant to making a decision in the management of his property, or that he is not able to appreciate the reasonably forseeable consequences of a decision or lack of decision. A lack of insight into his medical condition and a tendency to focus on the motor vehicle accident as the cause of physical impairments are characteristics Mr. Veilleux shares with many applicants who appear before the Commission, many of whom do not suffer mental illness. An unwillingness to agree with a particular diagnosis does not necessarily equate to mental incapacity.⁸ These characteristics do not translate into an inability to understand information relevant to the case, the issues in dispute, or the consequences of decisions Mr. Veilleux may have to make in the course of representing himself in these proceedings.

Although it is evident from the evidence presented that when Mr. Veilleux is in the acute or active phase of illness, he suffers from delusions and his thought processes are not rational, this is clearly not so when he is taking medication. A recurrence, failure to comply with treatment, or other circumstance may in future affect Mr. Veilleux' competency to represent himself in this arbitration, but I find there is nothing at present to prevent his doing so.

Mr. Veilleux' Evidence:

I did not find Mr. Veilleux to exhibit signs of mental difficulty at the hearing. In fact, I found that Mr. Veilleux demonstrated a realistic appreciation of his situation at the hearing, and that he was engaged in the proceedings. He agreed that he had been very ill for a time but that he feels better now that he is on medication. He is under the care of Dr. Ducharme as an outpatient, and attends regularly for injections, which he finds painful. He described Dr. Ducharme as very strict, and related that Dr. Ducharme told him that if he stopped his medication he would call the police. He clearly respects Dr. Ducharme, and stated that he actually was starting to like him. I find that Mr. Veilleux has a keen appreciation of the consequences of a decision to stop his treatment, and an understanding of the benefits of continuing with it. He pointed out that he is consulted with respect to treatment, and that in fact the dosage has been reduced from 10%, to 2% two weeks ago, and then to 1% just prior to the hearing.

Mr. Veilleux testified that although he still sleeps a lot during the day, he does not experience the medication side-effects of difficulty with concentration and motivation that he did previously. He testified that he has successfully completed three evening courses in electronics at Algonquin College, passing with 85%, and that he is currently enrolled in a fourth. He would like to take all 12 courses in the program, but they are expensive and he does not know if he would be able to afford them on his limited income. He manages his own finances but does not have a bank account, because, as he pointed out, there really isn't enough money for one. He likes the residence where he lives, and his fellow residents, of whom he is the youngest, referring to it as a "neat little place," although he would prefer to have his own apartment if he could afford it. He visits his mother and brothers weekly, travels by bus and taxi, or gets rides from friends or family, and plays pool with friends. He appears to retain a sense of humour about his life, a clear indicator of a certain degree of insight and acceptance.

Mr. Veilleux testified that he would prefer to have someone represent him in these proceedings, but that he has been unable to find a lawyer willing to take his case under the Ontario Legal Aid Plan. A native of Longlac, a small community north of Thunder Bay, Mr. Veilleux is obviously a very intelligent man, having worked as a heavy equipment operator and, later as an owner of his own company which installed assistive devices such as elevators and wheelchairs and provided oxygen therapy. He would like to return to the work force at some point, perhaps as an electronics technician once he has completed the full college course of study. Mr. Veilleux appeared to understand the issues in dispute in this arbitration as outlined in the pre-hearing letters when I reviewed them with him, particularly the issue of causation, and was aware of what he needed to prove, all the while acknowledging that the task might be difficult.

Although Mr. Veilleux' testimony may reflect hopes that may be difficult to realize, I have no reason to disbelieve it or to conclude from any evidence presented at this hearing, that he is unable to understand information relevant to making decisions about his life in general or his case against the Insurer in particular, or that he is unable to appreciate the consequences of a decision or lack of decision.

At present, Mr. Veilleux is under no more disadvantage in representing himself than any of the many applicants who find themselves before the Commission without the benefit of a legally-trained representative, and I find he is competent to proceed with the arbitration.

Bilingual proceedings:

Mr. Veilleux speaks French. Advised of his right to a hearing in French, he replied that he was equally comfortable in both French and English, and chose to proceed with the hearing in English. Some medical reports and other documents entered into evidence are in French. However, as Ms. Parent, Ms. Bergeron and I are all bilingual, I find there is no need to have this documentation translated into English for the purposes of this arbitration proceeding. The hearing proceeded, therefore, in a bilingual manner.

EXPENSES:

I exercise my discretion to award Mr. Veilleux his expenses of this preliminary issue hearing.

December 20, 2001

Susan Sapin Arbitrator

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Mr. Veilleux is mentally capable within the terms of the Dispute Resolution Practice Code- Fourth Edition and may proceed in his arbitration without the benefit of a litigation guardian.