Earl Moore v. CAA Insurance Company (Ontario), 2009 ONFSCDRS 92

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2009 ONFSCDRS 92

FSCO A05-002167

BETWEEN:

EARL MOORE

Applicant

and

CAA INSURANCE COMPANY (ONTARIO)

Insurer

REASONS FOR DECISION ON A PRELIMINARY ISSUE

Before: Richard Feldman

Heard: May 14, 2009 in Toronto, Ontario.

Appearances: Earl Moore Janice Grevler, counsel for Mr. Moore Natasha Dunn Lisa Armstrong, counsel for CAA Insurance Company (Ontario)

Background

The Applicant, Earl Moore, claims that he was injured in a motor vehicle accident on April 9, 2001. Disputes arose between Mr. Moore and CAA Insurance Company (Ontario) (hereinafter referred to as “CAA”) concerning the Applicant’s entitlement to certain accident benefits under the Schedule.¹ The parties were unable to resolve their disputes through mediation and Mr. Moore applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The Application for Arbitration was filed on behalf of the Applicant in September 2005 by his lawyers, David Share Associates. CAA’s Response was filed about a month later. The initial pre-hearing conference was scheduled to take place on April 25, 2006. On March 14, 2006, Leanne Goldstein of David Share Associates requested that the pre-hearing conference be adjourned as it was not clear to the Applicant’s counsel whether the Applicant “continues to retain the capacity to provide instructions” and “the issue of a substitute decision maker is being considered.” Based upon this request and with the consent of CAA, the pre-hearing conference was adjourned. The file sat dormant until August 22, 2007, at which time counsel for the Applicant wrote to the Commission and advised that all parties were ready to proceed with the pre-hearing conference on February 4, 2008.

Presumably, David Share Associates was able to satisfy itself that Mr. Moore had sufficient capacity to instruct them as they appeared at the pre-hearing conference on February 4, 2008, together with Mr. Moore, identified the issues in dispute, named the witnesses to be called on behalf of Mr. Moore and set the hearing down for October 20, 21 and 22, 2008 (see pre-hearing letter of Arbitrator Muir dated February 4, 2008).

On July 8, 2008, David Share Associates wrote to the Commission to indicate that “[o]ur office is no longer proceeding with representation of Mr. Earl Moore” because “[t]here has been a breakdown in the lawyer-client relationship.” According to the records before me, this “breakdown in the lawyer-client relationship” represents Mr. Moore’s failure to provide instructions to his counsel. According to Mr. Moore, the real basis for this motion was his refusal to accept his counsel’s advice. Lack of capacity to give instructions was not relied upon by David Share Associates as a ground for their motion.

Arbitrator Muir then wrote to David Share Associates to advise them of the correct procedures if they wished to be removed from the record. On July 18, 2008, David Share Associates filed another written request to be removed from the record. On July 31, 2008, Arbitrator Muir advised Mr. Share that he ought to bring a formal motion, which David Share Associates purported to do by way of a letter dated September 3, 2008, enclosing some supporting materials (showing that David Share Associates had been removed from the record in a related tort proceeding).

With the hearing pending in October 2008 and the issue of Mr. Moore’s representation here at the Commission still up in the air, the hearing was adjourned (to a date to be set) and a resumption of the pre-hearing discussion was arranged. Since Arbitrator Muir was not available, the resumption of the pre-hearing was scheduled to be conducted by Arbitrator Alves on October 23, 2008. The letter of Arbitrator Alves dated October 23, 2008 states that the pre-hearing conference was resumed on that date before her, that Mr. Moore participated and that he was in the process of trying to find new legal representation. The pre-hearing was adjourned. When Arbitrator Alves learned that the Public Guardian and Trustee had once been involved in managing the affairs of Mr. Moore, she indicated in the October 23, 2008 letter to the parties that she was not prepared to “remove Mr. Share’s office as Mr. Moore’s legal representative in the absence of new counsel of Mr. Moore’s choice and failing that, a referral to the Office of the Public Guardian and Trustee.” To the present date, this firm continues to seek to be removed from the record but it has not yet obtained an order permitting this.²

The pre-hearing was resumed by Arbitrator Alves by teleconference on January 30, 2009. Mr. Moore participated. He indicated that he was still looking for a lawyer to represent him. The pre-hearing conference was adjourned to March 10, 2009. This date was then changed, on consent, to March 11, 2009. According to the letter of Arbitrator Alves dated April 17, 2009, she was unaware of the change in dates and so she contacted Mr. Moore by telephone on March 10, 2009 and became privy to information that was relevant to the issue of Mr. Moore’s capacity to proceed with the arbitration. Mr. Moore requested that Arbitrator Alves not disclose this information to CAA. In her letter of March 11, 2009, Arbitrator Alves identifies the following facts that gave her concern as to Mr. Moore’s capacity:

Mr. Moore has mentioned cognitive complaints and his difficulty organizing material, reducing his thoughts to writing during the resumptions of pre-hearing. The Public Guardian and Trustee has had some prior involvement in representing Mr. Moore in this matter. However, their file was closed for reasons which are unclear to me. Mr. Moore wishes representation; however, he does not agree that the Public Guardian and Trustee should be his representative based on an earlier experience.

As a result of Arbitrator Alves’ concern over Mr. Moore’s capacity to proceed with this arbitration, she directed a hearing on a preliminary issue to determine whether Mr. Moore possesses the mental capacity to proceed in the dispute resolution process but (based upon her conversation with Mr. Moore on March 10, 2009) she recused herself from presiding over that hearing. Mr. Moore requested that this hearing be conducted in Toronto and that his family physician, Dr. Crispin, be permitted to participate by telephone. The hearing was set for May 14, 2009. Thus, on May 14, 2009, the parties came before me for a determination of the preliminary issues described below.

Issues

Does Mr. Moore have the mental capacity to proceed in the dispute resolution process?
If not, is there:

a. An attorney with a valid continuing power of attorney over Mr. Moore’s property? or

b. A suitable person who has made or intends to make arrangements for the appointment of a guardian over Mr. Moore’s property under the provisions of the Substitute Decisions Act?³

c. A relative, friend or other suitable person who is willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on behalf of Mr. Moore, subject to any reasonable and necessary conditions or restrictions to protect Mr. Moore’s interests?

If Mr. Moore does not have the mental capacity to proceed in the dispute resolution process and none of the persons listed in paragraph 2 above is available and willing to act, should I notify the Public Guardian and Trustee to request that appropriate steps be taken pursuant to the provisions of the Substitute Decisions Act?

Result

Mr. Moore is presumed to have the mental capacity to proceed in the dispute resolution process and there is insufficient evidence to rebut this presumption.

THE LAW

An adult person is presumed to have the mental capacity to manage his property, enter into contracts, appoint and instruct a representative and conduct his own case.⁴ There must be compelling evidence to rebut this presumption.⁵

Capacity is not necessarily constant and is both time- and context-sensitive.

Capacity for the purposes of an arbitration before the Financial Services Commission means the ability to understand the general nature of the process and the nature of the relief being sought, the ability to make decisions and to appreciate the possible consequences of those decisions. An applicant has the right to decision-making autonomy, absent convincing evidence justifying interference.

Where an adult party has not been declared mentally incapable under the provisions of the Substitute Decisions Act, but exhibits signs of mental difficulty during the course of a proceeding, the Dispute Resolution Group 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 … who has made or intends to make arrangements for the appointment of a guardian over the party’s property under the provisions of the Substitute Decisions Act.⁶

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. 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.⁷ Where there is no person such as described in Rules 10.2, 10.3 or 10.5 available to act, the adjudicator may notify the Public Guardian and Trustee to request that appropriate steps be taken pursuant to the provisions of the Substitute Decisions Act.⁸

EVIDENCE AND ANALYSIS

Although Mr. Moore did not show up for the hearing on time, once he did attend, he was focused, courteous and forthcoming with relevant information. He seemed oriented as to time and place. He stated that he suffered an acquired brain injury as a result of an earlier accident but that the accident in April 2001 made the situation worse. He acknowledges that CAA has paid for some treatment and assistive devices but contends that CAA has generally resisted his claims. Mr. Moore understands that, through this arbitration, he is seeking an order that CAA pay for additional medical and rehabilitation benefits. He was not entirely certain of the exact benefits in dispute and he seemed unclear as to the distinction between the types of claims that could be advanced in this proceeding as opposed to the claims that could be advanced in the tort action. He stated that he also intends, if possible, to amend his application to include a claim for income replacement benefits. He indicated that his preference is to obtain legal representation and he has been trying to find a new lawyer for about ten months, without success. He understands that, at the end of the process, he may get some, none or all of the benefits he is claiming. He understands that, if he loses, he may have to pay some of CAA’s legal expenses but that if he wins, they may have to pay some of his legal expenses.

He states that he has no continuing power of attorney and that currently there is no court order or other legal document that allows others to make decisions on his behalf. There is no person, either a relative, close friend or professional, who has made or intends to make arrangements for the appointment of a guardian over his property.

Mr. Moore acknowledges that his brain injury makes it more difficult to organize his thoughts and, especially, to reduce things to writing. Nevertheless, he would rather do his best and take his chances at a hearing than have someone else make decisions for him. According to Mr. Moore, no one knows this case better than he does and, although he would like legal assistance if he can find it, he would object to anyone else making decisions for him.

According to Mr. Moore, in or about 2006, the Public Guardian and Trustee took control of his property. Mr. Moore feels that the Public Guardian and Trustee is at least partially responsible for the loss of his home. Mr. Moore retained counsel to challenge the appointment of the Public Guardian and Trustee. Mr. Moore applied to the Consent and Capacity Board for a determination of whether he was capable of managing his property. Mr. Moore was successful in his challenge and, in June 2006, he wrestled control of his property back from the Public Guardian and Trustee. As a result of this experience, Mr. Moore is extremely mistrustful of the Public Guardian and Trustee and he strongly opposes their involvement in this case in any way. While Mr. Moore’s wishes in this regard are not determinative of the issue before me, knowing his feelings on this point, I would be loathe to seek to involve the Public Guardian and Trustee without compelling evidence that Mr. Moore lacked sufficient capacity to proceed with his application.

When I asked Mr. Moore if he had any documentary evidence to substantiate that he obtained an order from the Consent and Capacity Board determining that he was capable of managing his property, he indicated that, if we recessed for lunch, he would put some more money in the parking meter and obtain the documents he needed as they were in the vehicle, organized by subject and date. When we returned from the lunch break, Mr. Moore produced a copy of a decision from the Consent and Capacity Board dated June 23, 2006 (determining that Mr. Moore was capable to manage his property) as well as copies of related correspondence.⁹

Mr. Moore advised me that his family physician, Dr. Crispin, was of the opinion that Mr. Moore did not have the capacity to proceed with this arbitration. Nevertheless, Mr. Moore invited me to speak with Dr. Crispin if I wished. I contacted Dr. Crispin by telephone, on speakerphone, in the presence of all parties and their representatives. In the opinion of Dr. Crispin, Mr. Moore does not understand what is going on and lacks the capacity to instruct counsel. When asked how he came to this conclusion, Dr. Crispin said that Mr. Moore is disorganized, does not always accept what others tell him, is argumentative and does not always listen properly. Dr. Crispin conceded that he is not qualified to assess capacity under the Substitute Decisions Act. Dr. Crispin admitted that he has taken no steps to have a substitute decision-maker appointed or to have Mr. Moore’s capacity assessed.

It was clear to me that Dr. Crispin did not really understand the test for capacity in the context of an arbitration proceeding. It appeared to me that Dr. Crispin was really focusing on whether, in his opinion, Mr. Moore was likely to do an effective job of presenting his own case. Based upon the written and oral submissions made on behalf of CAA, it appears that this concern is shared by the Insurer. Frankly, I also share this concern. An unrepresented person who lacks legal training and experience in this field is likely to be at a disadvantage. An unrepresented person who suffers from an acquired brain injury is likely to face an even greater challenge.

That, however, is not the issue. The issue is Mr. Moore’s capacity. Notwithstanding the concerns of Dr. Crispin and the fact that there is documentation¹⁰ to suggest that the Applicant may suffer from some cognitive and psychological impairments, I am not satisfied that there is any compelling evidence to rebut the presumption that Mr. Moore currently is competent to proceed with this arbitration. His conduct before me was exemplary. He was able to answer questions directly and accurately. He remained focused and demonstrated that he understood the general nature of the process, the nature of the relief being sought and the possible outcomes of this proceeding.

I have some reservations about the expertise of arbitrators to assess the capacity of a party (in the absence of one or more opinions from qualified experts) and about the authority of arbitrators to grant some of the remedies listed in Rule 10. It is unnecessary for me to discuss these concerns further, however, since there is insufficient evidence in this case to rebut the presumption that Mr. Moore possesses sufficient capacity to proceed with this arbitration or to trigger any of the remedial provisions set out in Rule 10.

An order shall be issued in accordance with the foregoing.

July 3, 2009

Richard Feldman Arbitrator

Date