Sukree Jagdeo v. Royal & SunAlliance Insurance Company of Canada, 2002 ONFSCDRS 133

Neutral Citation: 2002 ONFSCDRS 133

FSCO A01-001182

BETWEEN:

SUKREE JAGDEO

Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Joyce Miller

Heard: August 13, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Barry A. Edson for Mr. Jagdeo Stanley C. Tessis for Royal & SunAlliance Insurance Company of Canada

Issues:

The Applicant, Sukree Jagdeo, was injured in a motor vehicle accident on September 15, 1998. He applied for and received statutory accident benefits from Royal & SunAlliance Insurance Company of Canada ("Royal"), payable under the Schedule.¹ Mr. Jagdeo disputed the amount of the attendant care that he was receiving. The parties were unable to resolve their dispute through mediation, and Mr. Jagdeo 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:

Does Mr. Jagdeo have the mental capacity to proceed in the dispute resolution process? And if not,
Should Mr. Gendaram Jagdeo, the Applicant's son, be appointed to act on his father's behalf pursuant to Rule 10.5 of the Dispute Resolution Practice Code (Fourth Edition, May 31, 2001) ("the Code")?

Result:

Mr. Jagdeo does not have the mental capacity to proceed in the dispute resolution process.
Pursuant to Rule 10.5 of the Dispute Resolution Practice Code, Mr. Gendaram Jagdeo is appointed to act on the Applicant's behalf in the dispute resolution process.

EVIDENCE AND ANALYSIS:

Background

Mr. Sukree Jagdeo is 67 years old. Prior to the accident he was living independently in a senior's residence. On September 15, 1998 he was struck by a car while crossing Jane Street in Toronto. He sustained a closed head injury. His reading on the Glasgow Coma Scale was 13 out of 15 at the time of the accident. A CAT scan of his brain revealed that he had incurred a subarachnoid hemorrhage. As well, Mr. Jagdeo sustained a fracture of his right upper tibia and fibula.

After Mr. Jagdeo was discharged from the hospital on October 22, 1998, he was not capable of living on his own and went to live with his son, Gendaram Jagdeo (also known as "Ray" Jagdeo). He has continued to live with his son since the accident. Mr. Jagdeo's son, daughter-in-law and his former wife have been providing day and night care for him since he left the hospital.

On February 23, 2001, Mr. Jagdeo underwent a Catastrophic Impairment Determination.² Mr. Jagdeo was examined by a neurosurgeon, a psychiatrist, an orthopaedic surgeon, a physiatrist, a psychologist, a physiotherapist and an occupational therapist. The report of the assessors dated April 30, 2001 concluded, "The neuro-cognitive impairments meet the threshold requirements of the Definition for Catastrophic Impairment. Mr. Jagdeo is catastrophically impaired as a consequence of the September 15, 1998 MVA." [emphasis in the original]

On February 13, 2002 Mr. Jagdeo underwent an Attendant Care DAC Assessment.³ The report of the DAC dated March 11, 2002 concluded that "Due to physical and cognitive limitations, Mr. Jagdeo requires attendant care at all times during the day and night to complete tasks and to ensure safety. Based upon his performance during the assessment, in the opinion of these assessors, Mr. Jagdeo demonstrated the need for attendant care 24 hours per day."

On February 27, 2002, Mr. Jagdeo underwent a capacity assessment pursuant to subsection 1(1) of the Substitute Decisions Act, 1992, S.O. 1992, c.30 ("SDA") conducted by Ms. Susan Winton, a social worker. Ms. Winton was chosen to do the assessment from a list of Capacity Assessors compiled by the Public Trustee.

In Form A, "Statement of Assessor," Ms. Winton stated that she "performed the assessment in accordance with the procedure for assessing capacity for managing property established by the Attorney General. In Form A, Ms. Winton concluded, "I am of the opinion that Sukree Jagdeo is incapable of managing property based on the facts set out in the Assessment Form." [emphasis in the original]

In Form C, "Assessment Form," after recording her observations of her meeting with Mr. Jagdeo, Ms. Winton concluded:

The fact that Sukree Jagdeo does not identify problems with his situation except those related to his leg wound, appears to be a usual response in individuals with frontal brain injury. He seems to lack the insight and judgment skills to identify difficulties. It seems that the aforementioned medical information and the face to face interview indicate that due to the neurocognitive deficits incurred in the accident of 15.09.98 Sukree Jagdeo is not capable of managing his finances. He does not possess the knowledge base to make competent financial decisions and he is not capable of learning to acquire this knowledge.

In addition, Ms. Winton stated that "Sukree Jagdeo seems to be aware that his son Ray Jagdeo has been looking after his needs and he appears comfortable with this arrangement."

Ms. Winton concluded Form C with the "DECLARATION BY ASSESSOR" that she was of the opinion that Mr. Jagdeo is incapable of managing property.

On March 2, 2002, Mr. Jagdeo was assessed, pursuant to subsection 1(1) of the SDA, by Dr. Emöke Jozsvai, a psychologist. The purpose of the assessment was to decide whether or not Mr. Jagdeo was capable "of managing property." Like Ms. Winton, Dr. Jozsvai was chosen to do the assessment from a list of Capacity Assessors compiled by the Public Trustee.

Dr. Jozsvai filed both a Form A and Form C.

In Form A, Dr. Jozsvai stated that he was of "...the opinion that it is necessary for decisions to be made on behalf of Sukree Jagdeo by a person who is authorized to do so," and that he based this opinion on the facts set out in Form C, the Assessment Form. In the Assessment Form, Dr. Jozsvai recorded his observations of Mr. Jagdeo. Part of these observations are as follows:

Mr. Jagdeo's attention concentration fluctuated and several times he lost the train of his thoughts in a middle of the sentence. He had comprehension difficulty and questions had to be repeated. Although I informed him about the purpose of my visit prior to and several times during the assessment, Mr. Jagdeo was unable to retain the information. When queried about the purpose of my visit he replied that he forgot.

I asked Mr. Jagdeo whether or not he has an income and a bank account. He correctly stated that he received approximately $50 Canada pension a month. He had no knowledge about the joint bank account he has with his son and that he receives approximately $5000 insurance benefits every month. Although this information was repeated twice in the course of the interview Mr. Jagdeo was unable to retain it. I asked Mr. Jagdeo to calculate how much change would he get back if he buys a loaf of bread for $2 and pays for it with a $5 bill. He was unable to make the calculations. Mr. Jagdeo stated that he wants his son to take care of his finances, to "look after everything". "I trust him to do everything ...Ray is looking after everything .. I can do it myself but he (Ray) is dedicated."

Dr. Jozsvai concluded Form C stating that it was his opinion that "...IT IS NECESSARY FOR DECISIONS TO BE MADE ON BEHALF OF Sukree Jagdeo BY A PERSON WHO IS AUTHORIZED TO DO SO." Dr. Jozsvai stated that his opinion was based on the following facts: "Sukree Jagdeo is suffering from memory impairment, comprehension and attention deficits. He is unable to retain information necessary to make financial decisions."

In June 2002, an application to the Ontario Superior Court of Justice was made by Gendaram Jagdeo to have Mr. Jagdeo declared mentally incapable under the provisions of the SDA and to appoint Gendaram Jagdeo as Guardian of Property for Sukree Jagdeo. This application, heard by Mr. Justice Meehan on June 21, 2002, was refused.

Gendaram Jagdeo testified that the application was refused because Mr. Justice Meehan was not satisfied with the opinions of a social worker and a psychologist, despite the fact that they were chosen from a list of Capacity Assessors compiled by the Public Trustee. Mr. Justice Meehan ruled that he required an additional assessment by a psychiatrist.

Gendaram Jagdeo testified that he did not want to go back to court unless he had to. He stated that the cost of a psychiatric assessment would be expensive and it would be just a waste of money. Gendaram Jagdeo testified that it was his opinion that his father does not understand the arbitration process. He stated that his father is very forgetful and that he needs constant supervision.

Gendaram Jagdeo testified that he was prepared to act for his father in the arbitration proceeding and that he was prepared to pay any costs if costs were awarded against his father.

Submissions:

Submissions on behalf of Mr. Jagdeo

Mr. Jagdeo's counsel submits that although Gendaram Jagdeo's application to the Ontario Superior Court of Justice to appoint himself a guardian over his father's property under the provisions of the SDA was rejected because the Judge wanted him to file additional materials, Gendaram Jagdeo has chosen not to file new materials or renew the application. Mr. Jagdeo's counsel submits that since no application date is pending, Rule 10.5 of the Code must be considered.

Mr. Jagdeo's counsel submits that the test of mental capacity required to proceed in the dispute resolution process under the Code is different and less stringent than the test of mental capacity to manage property under the SDA. It is submitted that the different test enables the Financial Services Commission of Ontario to make decisions to govern its own process without being fettered by the decision of the Ontario Superior Court of Justice.

Mr. Jagdeo's counsel submits that, pursuant to Rule 10.5 of the Code, Gendaram Jagdeo is a "near relative" to Mr. Jagdeo. He is his son. He has been caring for his father in his home and providing for all of his needs since the motor vehicle accident. He is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of Mr. Jagdeo.

Mr. Jagdeo's counsel submits that the two DAC reports, the reports of the Capacity Assessors, the testimony of Gendaram Jagdeo, as well as Mr. Jagdeo's demeanor at the preliminary issue hearing, are sufficient for me to make the following two orders: One, pursuant to Rule 10.3(c) of the Code, Mr. Jagdeo does not have the mental capacity to proceed in the dispute resolution process. And two, pursuant to Rule 10.5 of the Code, to appoint Mr. Jagdeo's son, Gendaram Jagdeo, to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of his father.

Submissions by Royal

Royal submits that it is not contesting the orders requested on behalf of Mr. Jagdeo. Royal submits that it is important that someone be appointed to receive any statutory accident benefits owing to Mr. Jagdeo and to proceed on behalf of Mr. Jagdeo in the dispute resolution process. Royal submits that it is in agreement that Gendaram Jagdeo is the proper person to be appointed to act on behalf of his father.

The Law:

Pursuant to Rule 10.1 of the Code and subject to Rule 10.2, a party to a mediation, settlement discussion, neutral evaluation or proceeding is presumed to have the mental capacity to manage his or her property, appoint and instruct a representative, and conduct his or her own case.

Rule 10.2 of the Code provides that a person who has been declared mentally incapable, must commence a mediation or other proceeding through: (a) the Public Guardian and Trustee or a Court appointed guardian of property under the provisions of the SDA; or (b) an attorney under a valid continuing power of attorney that gives the attorney authority over all the property of the party.

Rule 10.3 of the Code provides that: Where an adult party has not been declared mentally incapable within the meaning of Sections 6 or 45 of the Substitute Decisions Act, 1992, (SDA), 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;

(b) there is an attorney with a valid continuing power of attorney over the party's property; or

(c) there is a person such as a spouse, same sex partner, near relative, close friend or a professional such as a doctor, lawyer or business entity, such as a trust company, who has made or intends to make arrangements for the appointment of a guardian over the party's property under the provisions of the SDA.

Rule 10.5 of the Code provides that: where an adjudicator is not satisfied that a party has the mental capacity to proceed in the dispute resolution process, and there is no attorney or person such as described in Rule 10.3(b) and (c), the adjudicator may appoint a spouse, same sex partner or near relative of the party to act on the party's behalf if that person, in the adjudicator's opinion, is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of the party who has exhibited signs of mental difficulty.

In addition, Rule 10.5 of the Code provides that: the adjudicator may place such conditions or restrictions upon appointments pursuant to this section, as the adjudicator considers reasonable and necessary to protect the interests of the person exhibiting mental difficulty, the other parties to the proceeding and the dispute resolution process.

Findings:

1. Jurisdiction

Although Gendaram Jagdeo's application to the Ontario Superior Court of Justice to declare that his father was mentally incapable of managing his property and to appoint Gendaram Jagdeo as guardian over his father's property was rejected, I find, for the following reasons, I have jurisdiction to deal with the issues of whether Mr. Jagdeo has the mental capacity to proceed in the dispute resolution process, and if he does not, whether his son should be appointed to act on his behalf.

The application by Gendaram Jagdeo to the Ontario Superior Court of Justice pursuant to the SDA is significantly different than the application pursuant to Rule 10 of the Code.

First, the finding of mental capacity pursuant to Rule 10.3 (a) of the Code relates to the narrow issue of whether or not a party has the mental capacity to proceed in the dispute resolution process. An application pursuant to the SDA relates to the broader issue of declaring that a person lacks the mental capacity to manage his or her property and to appoint a guardian to manage the person's property.⁴

Second, the process and scope of power of a person appointed pursuant to the Code is different than that of a person appointed pursuant to the SDA to act for a party under a mental disability. Pursuant to Rule 10.3 of the Code, a preliminary issue hearing must be held to determine a party's mental capacity to proceed in the dispute resolution process. Pursuant to section 77 of the SDA, an application to the court to determine a person's mental capacity and to appoint someone to manage that person's property does not require a hearing. It only requires the filing of the application with supporting affidavits.

Pursuant to Rule 10.5, the appointment of a person to act on behalf of a party is narrow in scope in that it only allows the person appointed to receive and administer statutory accident benefits and to proceed in the dispute resolution process. Rule 10.7 of the Code also requires any settlement made by the representative of a party who has been found to lack the mental capacity to proceed in the dispute resolution process to be approved by the court in accordance with Rule 7.08 of the Rules of Civil Procedure. A person appointed pursuant to the SDA can be given complete control over all of the disabled person's property.

In this case, there is no evidence that Mr. Jagdeo's son, Gendaram Jagdeo, intends to provide the additional medical report requested by Mr. Justice Meehan nor does he intend to pursue his application in the Ontario Superior Court of Justice to have himself appointed the guardian over his father's property.

Accordingly, for these reasons I find I have the jurisdiction to deal with the issue of whether Mr. Jagdeo has the mental capacity to proceed in the dispute resolution process and whether his son should be appointed to act on his behalf.

2. Mental Capacity

For the following reasons, I find that Mr. Jagdeo does not have the mental capacity to proceed in the dispute resolution process.

At the hearing, Mr. Jagdeo appeared to be a gentle and quiet man who understood and spoke English. He also appeared to have a sincere and affectionate bond with his son.

I introduced myself to Mr. Jagdeo. I told him my name and my role at the hearing. A few minutes later when his counsel asked him what my name was and what my job was, he responded that he did not know. When asked what the role of a judge was, he replied a judge decides what you get for your foot. When asked what his counsel's name was, he did not know. When asked what a disagreement was, he did not know. Nor was he able to discern the role of Royal's counsel or that the counsel represented an insurance company.

Mr. Jagdeo could not recall when he had the car accident. When asked what injuries he had incurred in the accident, he responded that he hurt his knee.

Although Mr. Jagdeo was found to be catastrophically impaired and in need of 24 hours a day attendant care, when his counsel asked if he had any health problems, he responded, "No, Sir."

In my view, Mr. Jagdeo's demeanor at the preliminary issue hearing is consistent with the conclusions of the Catastrophic Impairment Determination report of April 30, 2001 and the Attendant Care DAC report of March 11, 2002 that he was suffering from a neuro-cognitive impairment. As well, the impression I had of Mr. Jagdeo's testimony and demeanor at the hearing is consistent with the opinion of the two Capacity Assessors, Ms. Winton and Dr. Jozsvai, that he is incapable of managing his property. More specifically, I am in agreement with Dr. Jozsvai's opinion in his Form C report wherein he states that Mr. Jagdeo "is suffering from memory impairment, comprehension and attention deficits. He is unable to retain information necessary to make financial decisions."

Mr. Jagdeo's testimony left me with the clear impression that he does not properly understand the nature and effect of the arbitration process. I find that he does not appreciate the elements of his potential claim. As well, I find that he does not understand the reasonable consequences of pursuing settling or otherwise dealing with his potential claim. Accordingly, I find that, pursuant to Rule 10.3 (a), Mr. Jagdeo lacks the mental capacity to proceed in the dispute resolution process.

3. Appointment pursuant to Rule 10.5 of the Code

I have received no evidence that there is an attorney or person such as described in Rule 10.3 (b) and (c) to act on behalf of Mr. Jagdeo. Accordingly, pursuant to Rule 10.5 of the Code, I find it appropriate to appoint Gendaram Jagdeo to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of his father, Sukree Jagdeo.

In my opinion, Gendaram Jagdeo is the best person to represent his father. Gendaram Jagdeo has been looking after his father in his home and providing for all of his needs since Sukree Jagdeo was discharged from the hospital. Gendaram Jagdeo is willing to assume the responsibility of acting on behalf of his father in his arbitration and has testified that he is prepared to pay any costs if costs were awarded against his father.

Accordingly, I find that Gendaram Jagdeo is both willing and able to proceed in the dispute resolution process on behalf of his father. Accordingly, pursuant to Rule 10.5, I appoint Gendaram Jagdeo to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of his father, Sukree Jagdeo.

EXPENSES:

The issue of expenses is left to the discretion of the hearing arbitrator.

August 26, 2002

Joyce Miller Arbitrator

Date