Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 17

FSCO A07-000210

BETWEEN:

DOODNAUTH JAGDHARRY

Applicant

and

KINGSWAY GENERAL INSURANCE COMPANY

Insurer

Before: David Muir

Heard: January 24, 2007, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: P. Michael Rotondo for Mr. Jagdharry

Kerri Knudson for Kingsway General Insurance Company

Issues:

The Applicant, Doodnauth Jagdharry, was injured in a motor vehicle accident on February 2, 2005. He applied for and received statutory accident benefits from Kingsway General Insurance Company (“Kingsway”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Jagdharry 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. Jagdharry have the mental capacity to proceed in the dispute resolution process?
If the answer in issue 1 above is no, should Ms Diane Jagdharry, the Applicant’s daughter, be appointed to act on his father’s behalf pursuant to Rule 10.5 of the Dispute Resolution Practice Code?

Result:

Mr. Jagdharry is a person who does not possess the mental capacity to proceed in the dispute resolution process.
Ms Dianne Jagdharry is appointed to act on her father’s behalf pursuant to Rule 10.5 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

During the pre-hearing in this matter the pre-hearing arbitrator directed, pursuant to Rule 10.3 of the Dispute Resolution Practice Code (the “Code”) that a preliminary issue hearing be held to determine whether or not Mr. Jagdharry lacked the mental capacity to proceed with the arbitration process, there having been no declaration under the Substitute Decisions Act, 1992, S.O. 1992. c.30 (SDA). The procedure for dealing with these issues has been canvassed on many occasions and will not be repeated in detail here.²

I am satisfied that Mr. Jagdharry has received proper and timely Notice of this preliminary issue hearing as required by Rule 10.4 of the Code. I am advised by the parties that there has been no declaration that Mr. Jagdharry is mentally incapable within the meaning of sections 6 or 45 of the SDA.³ I also find based on the advice of the parties that there is no attorney with a continuing power of attorney over Mr. Jagdharry’s property and no person who has made or intends to make arrangements for the appointment of a guardian over Mr. Jaghdarry’s property under the provisions of the SDA.⁴

It remains to determine as required by Rule 10.3(a) whether Mr. Jagdharry has the mental capacity to proceed in the dispute resolution process, and if he does not, is there a person as described in Rule 10.5, such as a near relative who in my opinion is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of Mr. Jaghdarry.

After hearing brief submissions from counsel for Mr. Jagdharry, Kingsway taking no position on the issue, I asked Mr. Jagdharry a number of questions on various matters related to his life as well as his understanding of these proceedings. After inviting comment from counsel for both parties and receiving none, I ruled orally Mr. Jagdharry was not mentally capable of proceeding with the arbitration within meaning of Rule 10 of the Code. My reasons for that conclusion follow.

As I pointed out to the parties at the hearing I appreciate that there is considerable overlap between the considerations at play in this preliminary issue hearing and the substantive issues in dispute. The comments made here are not determinative of those substantive issues in any measure as I understand that there remain other issues that need to be resolved including the genesis of Mr. Jagdharry’s evident difficulties.

Mr. Jagdharry was a pedestrian on February 2, 2005 when he was apparently struck by a school bus and suffered injuries to his head, neck and ribs. Although this may be controversial there are reports of a loss of consciousness for a substantial period of time. A PET scan conducted in December 2005 has been interpreted by some as indicating some potentially significant level of trauma to the brain.

Several medical reports were tendered by Mr. Jagdharry. Dr. Rashid, a psychologist retained for a medico-legal opinion reports that Mr. Jagdharry:

“is currently functioning within the deficient range of cerebral functioning. He appears to be primarily impaired to perform in various neurocogntive domains as a result of impaired general functional ability (generalized brain dysfunction), which appears to affect specific neurocognitive domains, including intellectual and cognitive capacity, executive function, attention/concentration, short term memory, long term memory, visuospatial function, language function (naming, reading, comprehension, descriptive discourse, writing and mathematical computation) and awareness of events and objects around him, although it is unlikely he suffers from impairment with respect to body image.

Dr. G. Vanderlinden, a neurosurgeon, has also seen Mr. Jagdharry at the request of his representatives in April 2007. In Dr. Vanderlinden’s view, Mr. Jagdharry demonstrated the signs and symptoms of post-concussive symptoms:

He was able to provide me with a clear history of vertigo that is produced by trauma to the vestibular portion of the inner ear and vestibular nerve connections within the brain stem. Again, the mild cerebellar hypometabolism seen on the PET scan would be consistent with lesions that might produce vertigo…

The other symptoms of post-concussive syndrome are that of decreased memory, impaired cognition and alterations of emotion and behaviour such as increased irritability. Mr. Jagdharry has exhibited impaired memory and early dementia to Dr. J. Lessard who was of the opinion that he was suffering from mild to moderate dementia of Alzheimer’s type. I doubt that he does have Alzheimer’s disease since there is the evidence as described above for traumatic brain injury and for small vessel cerebral disease.

Dr. Lessard, a specialist in internal and geriatric medicine has seen Mr. Jagdharry on referral from his family physician. In a report dated April 18, 2006 Dr. Lessard offered the following:

In my opinion this that (sic) man has without a doubt suffered brain damage as a result of the motor vehicle accident. This has left him with frontal lobe syndrome which includes emotional liability, including rage, difficulties with executive functioning, including planning, organizing, thinking abstractly, sequencing, and multi-tasking. Underlying cerebral microvascular disease may be present and may be exacerbating the frontal lobe syndrome, but because there is very little of it he would have no frontal lobe symptoms in the absence of damage to the frontal temporal cortex.

In a note dated April 12, 2007, Dr. Lessard records a diagnosis of frontal lobe dementia of moderate severity, with a prognosis of slow deterioration to a state of full dependency.

As can be seen none of these practitioners were asked to opine specifically on Mr. Jagdharry’s ability to meaningfully participate in these proceedings. In that regard Dr. James Long, a psychologist, was asked to offer an assessment⁵ on Mr. Jagdharry’s ability to understand an offer to settle and provide instructions to counsel respecting same. Dr. Long reviewed some of the medical brief and after examining Mr. Jaghdarry supported the findings of Dr. Rashid, above.

Dr. Long observed while counsel explained offers to settle both his accident benefits and corresponding tort claims. In Dr. Long’s view, while the process was labourious, Mr. Jagdharry was able to instruct counsel and did so “of his own free will and with sufficient understanding of the risks involved in doing so”.

With this background in mind I asked a number of questions of Mr. Jagdharry. He appeared oriented as to time and place. He did know how old he was and after considerable hesitation was able to tell me in what year he was born. When I asked him where he lived, he responded “Canada”. When I asked him where in Canada he responded after a short pause, “Scarborough”. I inquired further of his street address and eventually he was able to tell me that he lived at 38 Sheppard Avenue. I note that his address on file with the Commission is not 38 Sheppard Avenue but another address entirely. He was able to tell me that he lived with his wife and two of his daughters. He gave names for the daughters who live with him. He also told me that he had nine children.

I asked him if he understood why he was attending at the Commission. He responded that he did not. I asked him if he understood that he had made a claim for accident benefits. He said he did not know that. I asked him how he had got to the hearing and he told me that his lawyer had brought him. I asked him if he had been to the FSCO offices on a prior occasion, he said that he could not remember.

Although I had introduced myself by name and identified my role in the proceeding, at the outset of the hearing just minutes earlier, Mr. Jagdarrah was not able to tell me who I was or what role I played in the events that afternoon. I enquired again about his claim for accident benefits. He denied making a claim for such benefits. He did recognise the name Kingsway General Insurance Company. I asked again if he had made a claim for the payment of statutory accident benefits from Kingsway or anyone else after the accident. He said he had not.

I asked him if he had received any treatment after the accident. After I explained further that this would include massage, physiotherapy etc. he agreed that he had received such treatment. I asked him who had paid for this treatment. He did not know. I asked him if he had, he said he did not know.

Counsel for Kingsway sought leave to ask a couple of questions surrounding Mr. Jagdharry’s claim for benefits.⁶ Mr. Jagdharry recalled working prior to the accident and knew that he stopped working after the accident. He could not remember what his wages were. He did acknowledge receiving some money from somewhere for “not working” after the accident. But when asked if he wanted Kingsway to continue to pay that money for “not working” he said that he did not.

I asked Mr. Jagdharry again whether he understood why he was at the Commission. He again said that he did not. I then told him that the purpose of the preliminary hearing was to determine whether he was mentally capable of proceeding with the arbitration. I asked him if he understood what that meant. He said that he did. I then asked him to tell me what he understood that to mean. He then said he did not know.

Despite Dr. Long’s opinion as set out above, I was satisfied that Mr. Jagdharry was not mentally capable of proceeding with the arbitration. In general terms, while responsive to questions it was apparent that it required considerable effort to respond to straightforward questions about his life. Beyond identifying accurately that he lived with his wife and two of daughters he had a hard time. For example I had to ask a series of questions before he was able to tell me his complete street address, which in the end, was inaccurate.

More than the documented general intellectual impairment that Mr. Jagdharry suffers, he clearly did not appreciate the nature of the process in which he was involved. He did not know why we he was present in the hearing that day other than that he was brought by his lawyer. He did not understand that he had sought benefits from Kingsway, that those benefits had been terminated and that he was now involved in a process to vindicate those claims. In short, much less than being unable to participate in the dispute resolution process, I find that Mr. Jagdharry did not seem to be aware that he was involved in the process.

Once I was satisfied that Mr. Jagdharry lacked the mental capacity to proceed in the arbitration Ms Diane Jagdharry, Mr. Jagdharry’s daughter identified herself as a person who was suitable, willing and able to act on behalf of her father in accordance with Rule 10.5 of the Code.

After questioning Ms Jagdharry about her suitability and willingness to take on the responsibilities required by a Rule 10.5 Order I determined that she was a person who is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on her father’s behalf as contemplated by the Rule. I made this determination for the following reasons:

Ms Jagdharry is a daughter of Mr. Jagdharry. She is a mature adult with one child and another on the way. She is employed as a chemist with what I was advised was a leading cosmetics firm in Toronto. She impressed me as an intelligent person with her father’s best interests in mind. To my mind, Ms Jagdharry was obviously suitable and able.

An issue did arise with respect to her soon to end pregnancy and what effect that might have on her ability to participate in the process. Kingsway, properly, had no concerns. I indicated that life events such as new babies happen and the parties and the dispute resolution process have little difficulty accommodating them.

I did press Ms Jagdharry about her willingness to take on the role required of her under Rule 10.5. Ms Jagdharry initially understood her role as being of assistance to her father in his decision-making. I pointed out to her that this was an incorrect characterization of the appointment under the Rule. I impressed upon her that she was in effect standing in the shoes of her father in this process and that she had all of the rights and obligations as if she were the applicant for benefits and not her father. I advised her for example that in the event that benefits were owing to Mr. Jagdharry, these would be delivered to her and she would be responsible for their administration on his behalf.

I asked her if she understood the full extent of the responsibilities and if she remained willing to take on the responsibility. She acknowledged that she understood the role and that she remained willing to take it on. I asked her if she had any questions or concerns. Ms Jagdharry commented that she would still want to keep her father involved in the discussions and decisions. I advised her that this was between her and her father but that at the end of the day the decisions were hers alone to make and that she would have to be able to make them when called upon to do so. She acknowledged that she understood her responsibilities and remained willing and able to undertake them.

In consideration of Ms Jagdharry’s evident competence, her evident concern for her father’s best interest and her willingness, being apprised fully of the nature of her responsibilities to take them on, I made the appointment pursuant to Rule 10.5 of the Code.

February 6, 2008

David Muir Arbitrator

Date