Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 115
FSCO A05-002245
BETWEEN:
SUNG-CHUL KIM
Applicant
and
AVIVA CANADA INC.
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
William J. Renahan
Heard:
May 24, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances:
Gloria Cheon for Mr. Kim
Catherine Zingg for Aviva Canada Inc.
Issues:
The Applicant, Sung-Chul Kim, was injured in a motor vehicle accident on February 17, 2003. He applied for and received statutory accident benefits from Aviva Canada Inc., payable under the Schedule.1 The parties are unable to resolve certain disputes concerning weekly benefits and medical and rehabilitation benefits through mediation, and Mr. Kim 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. Kim have the mental capacity to proceed in the dispute resolution process, and if not, should I appoint his wife, Mrs. Young Hee Kim, to act on Mr. Kim's behalf in the dispute resolution process.
Result:
- Mr. Kim does not have the mental capacity to proceed in the dispute resolution process, and I appoint Mrs. Young Hee Kim, to act on his behalf subject to the terms and conditions of the attached order.
EVIDENCE AND ANALYSIS:
The parties, through their counsel, submitted that Mr. Kim was involved in a relatively minor motor vehicle accident on February 17, 2003. Since then, he has experienced mental deterioration, which among other things, has required hospitalization. Both counsel think that an arbitrator should appoint someone to represent Mr. Kim so that the process can proceed.
Under section 10 of the Dispute Resolution Practice Code (4th Edition, updated - October 2003), an arbitrator can determine whether someone has the mental capacity to proceed in the dispute resolution process, and if not, appoint someone to act on the person's behalf.
I adopt the tests for mental capacity set out in the Substitute Decisions Act, R.S.O. 1992, S.O. c. 30.
Section 6 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.
Section 45 provides:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequence of a decision or lack of decision.
At the outset of the hearing of this preliminary issue I explained to Mr. Kim, through a Korean interpreter, that I had to decide whether he had the mental capacity to proceed in this proceeding, and if not, whether I should appoint his wife to represent his interests. I explained that as an example, if I appointed Mrs. Young Hee Kim to represent his interests, and the insurer made an offer to settle his claims, his wife, not him would decide whether to accept or reject the offer. I explained, that his wife would discuss the offer with him, but if I appointed her to represent him, she would make the decision, not him. Mr. Kim did not verbally respond. Throughout my explanation and the rest of the hearing Mr. Kim clutched his shoulders with his hands and bent forward. He did not speak.
Dr. Brian Hoffman assessed Mr. Kim. He filed a report and testified at the hearing. Dr. Hoffman is the chief of psychiatry at North York General Hospital. Among other things, he has written a book on the law of consent to treatment, done assessments under the Mental Health Act, R.S.O. 1990, c. M 7 to determine a person's capacity to manage financial matters. He was on the commission that advised the Ministry of Health in 1995 and 1996 on criteria under the Substitute Decisions Act 1992. He read Mr. Kim's medical brief and interviewed him for two hours through an interpreter. In general he found Mr. Kim agitated, uncooperative and unwilling or unable to answer most questions. He expressed the opinion that Mr. Kim was incapable of managing his property within the meaning of section 6 of the Substitute Decisions Act 1992 and incapable of personal care within the meaning of section 45. Among other things, he found that Mr. Kim's responses to the mini mental exam were grossly inadequate and lower than someone with moderately severe Alzheimer's disease. Mr. Kim could not repeat words or do simple arithmetic. He did not understand the role of a lawyer or the purpose of a hearing.
Dr. Hoffman said that he was not aware of any medications Mr. Kim was taking that would affect his mental capacity and that psychiatrists have recommended medication which Mr. Kim refuses to take.
Mrs. Young Hee Kim said that she was willing to act on her husband's behalf. She said that Mr. Kim does not talk much, does not want to go out and does not eat if she does not feed him. She said she makes all the decisions.
I accept Dr. Hoffman's opinion and I accept Mrs. Young Hee Kim's evidence. I find that Mr. Kim is incapable of managing property and incapable of personal care within the meaning of sections 6 and 45 of the Substitute Decisions Act, 1992, and I appoint Mrs. Young Hee Kim to represent his interests.
June 11, 2007
William J. Renahan
Arbitrator
Date
Financial Services Commission of Ontario
Commission des services financiers de l’Ontario
Neutral Citation: 2007 ONFSCDRS 115
FSCO A05-002245
BETWEEN:
SUNG-CHUL KIM
Applicant
and
AVIVA CANADA INC.
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, and on consent of the parties through their counsel, it is ordered that:
Mr. Kim does not have the mental capacity to proceed in the dispute resolution process within the meaning of section 10 of the Dispute Resolution Practice Code (4th Edition) as he is incapable of managing property and incapable of personal care within the meaning of sections 6 and 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.
I appoint Mrs. Young Hee Kim to act on Mr. Kim's behalf in the dispute resolution process and to receive and administer statutory accident benefits on behalf of Mr. Kim.
Mrs. Young Hee Kim will act on Mr. Kim's behalf for the duration of the arbitration proceedings, including any appeals, settlement negotiations and settlement approval proceedings, including those required under Rule 7.08 of the Rules of Civil Procedure.
Mrs. Young Hee Kim will be responsible for retaining and instructing counsel.
Mrs. Young Hee Kim will sign documents relating to the arbitration proceeding, including consent to medical assessments or appointments, consent to treatment forms, authorization and direction forms for the release of medical or other relevant records and any other documents relevant to the arbitration proceeding.
June 11, 2007
William J. Renahan
Arbitrator
Date