Da Won (Diana) Woo (Minor) v. Personal Insurance Company of Canada, 2004 ONFSCDRS 8

Financial Services Commission of Ontario

Neutral Citation: 2004 ONFSCDRS 8

FSCO A01-000160

BETWEEN:

DA WON (DIANA) WOO (MINOR)

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

INTERIM DECISION ON PROCEDURAL ISSUES

Before: Susan Sapin

Heard: January 12, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Ms. Woo, the Applicant

Mr. Woo, her father

Linda Wolanski, counsel retained by Mr. Woo on Ms. Woo's behalf

Deborah G. Neilson, counsel for Personal Insurance Company of Canada

Mark Sones and Anup Kaushal, representatives of Personal

Dermot Moore, Team Leader/Client Counsel, Public Guardian and Trustee

Thomas A. Sandford, Verbatim Reporter retained by Personal

Jenie Oh, Korean interpreter provided by the Financial Services Commission of Ontario.

Issue:

What is the status of this arbitration proceeding as a result of the fact that Ms. Woo has been declared mentally incapable of managing property under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, (SDA)?

Result:

The arbitration is stayed until a guardian of property is appointed under the SDA.

Mr. Woo shall advise the Commission, the Public Guardian and Trustee and Personal Insurance Company of Canada of the person he chooses to be as his legal representative by January 23, 2004, and whether he intends to apply for the appointment of a guardian of property for his daughter under the Substitute Decisions Act, 1992, by February 13, 2004.

The Facts:

The Applicant, Da Won (Diana) Woo, was injured when she was struck by a motor vehicle on February 22, 1999. The accident occurred while Ms. Woo was on a temporary visit to Canada from Korea. She was a minor at the time. Ms. Woo maintains that she suffered head injuries in the accident that render her catastrophically impaired. She claims statutory non-earner weekly benefits, attendant care benefits of $5,084 per month, the services of a case manager, and enhanced medical and rehabilitation benefits, payable under the Schedule,¹ from Personal Insurance Company of Canada ("Personal"). Personal disputes Ms. Woo's claims. The parties were unable to resolve their disputes through mediation, and Mr. Woo applied for arbitration on his daughter's behalf at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The arbitration hearing commenced on May 5, 2003. On May 27, 2003, Ms. Woo's mental capacity as an adult was assessed under section 72 of the SDA by Cynthia Turner, a designated capacity assessor, within the meaning of subsection 1(1) of the SDA. Ms. Turner determined that Ms. Woo was mentally incapable of managing property under the SDA. Ms. Turner further determined that Ms. Woo was incapable of making financial decisions, incapable of comprehending the arbitration process, incapable of giving directions to her lawyer, and incapable of giving powers of attorney for property and personal care.

Pursuant to Rule 10.2(a) and (b) of the Dispute Resolution Practice Code (Fourth Edition, Updated - October 2003), an adult who has been declared mentally incapable may not commence a mediation or arbitration proceeding other than through the Public Guardian and Trustee (PGT), a court appointed guardian of property under the provisions of the SDA, or an attorney under a valid continuing power of attorney that gives the attorney authority over all the property of the party. To date, no one has been appointed as a litigation guardian for Ms. Woo under any of these procedures.

Accordingly, by letter dated October 8, 2003, I ruled that I had no jurisdiction to proceed with the matter unless there was a properly appointed legal guardian of property for Ms. Woo. I ordered the arbitration hearing stayed until either the court appointed a litigation guardian or the Public Guardian and Trustee assumed that role. On October 16, 2003, Ms. Wolanski wrote to the Commission advising that, pursuant to ongoing communication with the Public Guardian and Trustee, it was expected that a suitable guardian of property would be found. Ms. Wolanski requested that the arbitration resumption date of January 12, 2004 not be cancelled.

On January 12, 2004, the hearing was resumed to determine whether the assumption that the Public Guardian and Trustee would become Ms. Woo's guardian of property was in fact correct.

Mr. Dermot Moore, the PGT's Team Leader and Client Counsel responsible for Ms. Woo's file, participated in the resumption of the hearing on January 12, 2004 by telephone conference. Mr. Moore explained the role of the PGT, pointing out that it considers itself the legal guardian of last resort. He advised that there were three ways that Mr. Woo could apply to have a guardian appointed for his daughter under the SDA.

The first method is to request an assessment of capacity for statutory guardianship under section 16 of the SDA. Under subsection 16(5), the PGT becomes the person's (Ms. Woo in this case) statutory guardian of property as soon as it receives the certificate of incapacity. Mr. Moore explained that under section 17 of the SDA, a relative of the incapable person may then apply to replace the PGT as the incapable person's guardian of property. The PGT may require the relative to provide security. Mr. Moore advised that the PGT would not appoint Mr. Woo as his daughter's guardian of property without a security, because he is not a resident of Ontario and the PGT is required to assure itself that any monies accruing to Ms. Woo will be properly spent, which it could not do if there was a chance the monies might leave the country. Mr. Moore advised that, because Mr. Woo does not have assets in Canada, he would be unlikely to qualify for a security.

The second way to obtain a guardian of property for Ms. Woo is to apply for a "summary disposition" of the issue under section 72 of the SDA. This is a "paper application" to the court for the appointment of a statutory guardian; no one need appear before the court and the court is not required to hold a hearing before making its decision. Section 72 describes the types of documents that must be put before the court for an application under that section. The proposed guardian need not be a relative, but, again, there is the question of providing security.

The third method is to apply to the court under section 22 of the SDA and ask the court to appoint a guardian. This requires the party applying to appear before a judge. The documents required are set out in section 70 of the SDA. They include the consent of the proposed guardian. Subsection 22(2.1) specifically provides that the court shall not appoint the PGT as guardian under this section unless there is no other suitable person who is available and willing to be appointed.

Mr. Moore explained that if the proposed guardian is a resident of Ontario and is acceptable to the court, a judge may waive the requirement to provide security. He further explained that a judge could consider the June 2003 capacity assessment, and that a judge had the authority to waive the SDA requirement that only capacity assessments made within six months of an application for guardianship be considered.

Mr. Woo advised that he has yet to decide which method he wishes to follow to obtain a guardian of property for his daughter, or to instruct counsel in that regard. Until he does so, he cannot continue to pursue this arbitration on his daughter's behalf. I note that, in the event Mr. Woo takes no further steps to appoint a guardian of property, the PGT may yet turn out to be the only available, suitable guardian of property for Ms. Woo. Mr. Woo further advised that he has not yet made up his mind whether he wishes to continue with his present counsel, or choose another.

Accordingly, to prevent unnecessary further delay, I order Mr. Woo to:

1. Advise the Commission, the Public Guardian and Trustee and Personal Insurance Company of Canada of the person he chooses as his legal representative no later than January 23, 2004; and,

2. Advise the Commission, the Public Guardian and Trustee and Personal Insurance Company of Canada of whether he intends to apply for the appointment of a guardian of property for his daughter under the Substitute Decisions Act, 1992, no later than February 13, 2004 and, if so, the name of the proposed guardian.

The arbitration is stayed until a guardian of property is appointed for Ms. Woo under the Substitute Decisions Act, 1992.

The issue of interest and expenses is deferred until the issues in dispute in this arbitration have been finally determined.

January 14, 2004

Susan Sapin Arbitrator

Date

Neutral Citation: 2004 ONFSCDRS 8

FSCO A01-000160

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

DA WON (DIANA) WOO (MINOR)

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

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

1. Mr. Hijung Woo, father of Da Won Woo, a mentally incapable adult under the Substitute Decisions Act, 1992, shall advise the Financial Services Commission of Ontario, the Public Guardian and Trustee and the Personal Insurance Company of Canada:

a) of the name of his legal representative for the purpose of this arbitration proceeding, no later than January 23, 2004; and,

b) whether he intends to apply for the appointment of a guardian of property on behalf of Da Won Woo under the Substitute Decisions Act, 1992, no later than February 13, 2004; and, if so, the name of the proposed guardian.

2. This arbitration proceeding is stayed until a guardian of property has been appointed for Da Won Woo pursuant to the Substitute Decisions Act, 1992.

3. The issue of interest and expenses is deferred until the issues in dispute in this arbitration have been finally determined.

January 14, 2004

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.```