Financial Services Commission of Ontario
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 232
FSCO A13-008299
BETWEEN:
R.L.
Applicant
and
ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA
Insurer
DECISION ON A PRELIMINARY ISSUE
Before: Susan Sapin
Heard: April 13, 2015, at the offices of the Financial Services Commission of Ontario in Toronto.
Appearances: Mr. Alexander Voudouris for R.L.
Meredith Harper for Royal & SunAlliance Insurance Company of Canada
Issues:
The Applicant, R.L., was injured in a motor vehicle accident on March 2, 2012. He applied for statutory accident benefits from Royal & SunAlliance Insurance Company of Canada (“Royal”), payable under the Schedule.1 Royal refused to pay certain benefits. The parties were unable to resolve their disputes through mediation, and R.L. applied for arbitration at the Financial Services Commission of Ontario (the "Commission") under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The pre-hearing letter of December 2, 2103 identifies R.L.’s disputed claims as:
- A weekly non-earner benefit of $185;
- $2,838.28 for chiropractic services and massage as proposed in a Treatment Plan dated June 9, 2012;
- $3,057.12 for active therapy per a Treatment Plan dated August 16, 2012;
- $5,123.23 for an orthopaedic bed per a Treatment Plan dated October 26, 2012.
Several pre-hearings were held by the Commission, by several arbitrators, some in person, and some via teleconference. R.L. was either represented by counsel or represented himself. Commission records indicate Mr. Voudouris is the fourth lawyer R.L. has retained to represent him before the Commission. Because of these factors, R.L.’s case has not moved forward in an expeditious manner. Understandably, there has been frustration on both sides due to delay in these proceedings. Commission records indicate that since this preliminary issue was heard, R.L. has advised the Commission that he intends to represent himself.
Ms. Harper, counsel for Royal, has had carriage of the file for Royal from the beginning. As a result of Royal’s experience to date on this matter and medical information about R.L.’s mental health, Royal has brought this preliminary motion under Rule 10 of the Dispute Resolution Practice Code (the "DRPC") for a determination by an arbitrator as to whether R.L. has the mental capacity to proceed in the dispute resolution process.
The preliminary issue therefore is:
- Does R.L. have the mental capacity to proceed in the dispute resolution process?
Result:
R.L. does not have the mental capacity to proceed in the dispute resolution process.
R.L., or someone acting on his behalf, must advise the Commission in writing within thirty (30) days of this decision whether there is a person such as a spouse, near relative, close friend or a professional such as a doctor, lawyer, or business entity, such as a trust company who:
a. is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on R.L.’s behalf; or,
b. has made or intends to make arrangements for the appointment of a guardian over R.L.’s property under the provisions of the Substitute Decisions Act (the "SDA").2
If, after thirty (30) days, R.L. has not identified a person as described in 2(a) or (b), above, I will request the Public Guardian and Trustee to conduct an assessment of R.L.’s mental capacity to manage his property under ss. 16(1) of the SDA.
Royal & SunAlliance Insurance Company of Canada has agreed to pay for an assessment of R.L.’s mental capacity under the SDA.
Reasons:
The SDA provides legal protection for minors and persons who do not have the mental capacity to make decisions about their property or their own personal care. Under the SDA, persons aged eighteen years and over are presumed to have mental capacity. The presumption has been upheld by the courts and the jurisprudence is well-established that compelling evidence is required to override it.3
Rule 10 of the DRPC requires that a person who has been declared mentally incapable under the provisions of the SDA must commence mediation or arbitration before this Commission through the Public Guardian and Trustee, a Court appointed guardian under the SDA, or a person who has obtained a valid continuing power of attorney that gives him or her authority over all the property of the mentally incapable person.
Where a person has not been declared mentally incapable under the SDA, as is the case with
R.L., Rule 10 sets out the procedure to be followed by an adjudicator at the Commission when it appears that a party involved in the dispute resolution process may be under a disability, i.e. where the person exhibits signs of mental difficulty:
10.3 Where an adult party has not been declared mentally incapable under the provisions of the SDA [Substitute Decisions Act, 1992], 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 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 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.4
Ms. Harper stated that Royal’s position is that it is neither making submissions nor arguing that R.L. lacks capacity to proceed in the arbitration, but that the issue should be investigated because R.L.’s previous counsel and previous arbitrators expressed concern to her about R.L.’s mental capacity, and she herself has received letters from R.L. that she characterized as “confused.” Ms. Harper submitted a Preliminary Issues Brief, six volumes containing well over 2500 pages, and requested that I review it in order to have as complete a picture as possible of R.L.’s mental status before deciding whether he had the mental capacity to proceed in the dispute resolution process.5 Ms. Harper stated that the possibility of a capacity assessment by a designated evaluator under the SDA had been discussed, and that although Royal could not compel an unrepresented party to undergo such an assessment, it would be prepared to pay for one.
The legal test for determining whether a person has the mental capacity to proceed in the dispute resolution processes is essentially the same as the test set out in s.6 of the SDA, which states that “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.”
Mr. Voudouris, counsel for R.L., submitted that although he was only very recently retained by R.L., he did not have any concerns about R.L.’s mental capacity and felt comfortable taking instructions from him.
A number of questions were put to R.L. at the preliminary issue hearing by both Mr. Voudouris and myself about how R.L. manages his finances, his living circumstances and his understanding of his claims against Royal and of this arbitration proceeding. R.L. explained that:
- he has received benefits from the Ontario Disability Support Programme (ODSP) since 2010;
- monthly cheques are deposited in his bank account;
- he manages his own banking;
- he owns and pays for a cell phone;
- he purchased and paid for his own wheelchair; and
- he pays a woman who assists him with his activities of daily living “out of his own pocket,” but does not have the money to pay her at this time.
R.L. stated he was unaware of any steps being taken by anyone else to assume legal responsibility for managing his disability benefits, his living situation, his personal care, or his banking.
With regard to his living arrangements, R.L. offered that he has lived in a nursing home in the past, but claimed he could not stay there because a personal support worker was “unprofessional” and he became “upset” and so left the nursing home because he “did not want to intimidate them.” He was living with a friend but was not allowed to stay any longer and now lives in a hotel because “CCAC”6 could not find him an available room. A review of the brief submitted by Royal indicates R.L. has been homeless in the past.
R.L. explained that he was exhausted, in pain and frustrated, and the most important thing to him was to obtain physiotherapy. He acknowledged that he has anger management issues and suffers from longstanding depression.
With respect to the upcoming arbitration hearing, R.L. explained his claims were for therapy, an orthopaedic bed and his wheelchair, the latter of which he purchased himself. He explained he would not be able to obtain physiotherapy unless the insurer paid for it.
I addressed with R.L. the fact that he had been represented by several lawyers to date in this arbitration proceeding, that he had at times represented himself, and explained to him that I felt he would have difficulty presenting his case without legal representation. R.L. agreed he could not represent himself because of his pain, exhaustion and frustration, and that he would need a lawyer to proceed, which is why he retained Mr. Voudouris.
Based on R.L.’s presentation at this preliminary issue hearing and his responses to my questions, I advised the parties that I felt, prima facie, that R.L. appeared to understand the importance of retaining legal representation, and appeared to be able to appreciate the reasonably foreseeable consequences should he decide to forego legal representation and attempt to represent himself – that he would not in fact be able to do so. I based that tentative finding on the following:
- Mr. Voudouris’ assertion that he felt comfortable taking instructions from R.L.;
- R.L.’s understanding of his claims and their importance to him;
- his acknowledgement that it would be difficult, if not impossible for him to represent himself at an arbitration hearing;
- his confidence in his counsel; and
- his insight into his mental health issues.
However, I agreed with Ms. Harper’s request to reserve my final decision about R.L.’s mental capacity until after I had reviewed Royal’s brief, with the consent of Mr. Voudouris.
Having reviewed the extensive medical records in Royal’s brief, in particular the portions suggested by Ms. Harper, as well as the Commission’s record of the dispute resolution proceedings in this matter, and R.L.’s subsequent actions since the preliminary issue hearing, I must conclude that R.L. does not in fact have the mental capacity to proceed unrepresented in the dispute resolution process, for the reasons that follow.
The first reason is that the medical records dealing with R.L.’s mental health issues indicate a lengthy history of hospital visits due to mental health issues in addition to his complaints of chronic, severe, and disabling low back, neck, knee and shoulder pain, which he attributes to a number of accidents involving motor vehicles, public transit and slip-and-fall incidents, between 2005 and 2012.
Humber River Regional Hospital records indicate R.L. attended the emergency department there on December 14, 2005 complaining of depression and panic attacks and was discharged home with crisis numbers and a recommendation for counselling. He returned in 2008 requesting a crisis assessment for depression and “multiple problems.”
In December 2009, R.L.’s family doctor, Dr. Kwasnicka, referred R.L. to the Centre for Addiction and Mental Health (CAMH) for treatment of his severely depressed mood, on the basis that R.L. was suffering cognitive impairments. It was not clear whether these were the results of repeated head injuries, the severe depression, or a personality disorder.7
In February 2010, Dr. Kwasnicka completed a Form 1 Application by Physician for a Psychiatric Assessment under the Mental Health Act, after R.L. screamed profanities at her, banged his head on the wall, lunged towards her and yelled for people to shoot him, to kill him, and that he wanted to die. According to the information Dr. Kwasnicka put on the Form 1, R.L.’s records showed a history of suicidal behaviour. In her opinion, he had become progressively more confused with no organic cause. He noted he had threatened to kill a lawyer, but the only previous mental health diagnosis had been of depression and personality disorder.8
Various notations in the St. Michael’s Hospital file indicate R.L. suffers cognitive, memory and concentration issues, is “quite disoriented as to life plan,” has no clear goals or wildly unrealistic ones, and “seems quite disoriented and compromised re plan making.” He may have suffered “several” closed head injuries.9 One note indicates R.L. reported being sent to jail for two days because he made death threats against an insurance provider.10
Other medical professionals describe R.L. as suffering from long-standing depression and paranoia, as pre-occupied with his injuries which he believes are the fault of others, and as being litigious and manipulative.11
Records of the Rouge Valley Health System12 indicate R.L. presented at Emergency in March 2010 because he was feeling depressed since a motor vehicle accident in 2005 and was having trouble moving and taking care of himself. St. Michael’s Hospital records for the same period indicate R.L. made “multiple visits to many different ERs” (hospital emergency rooms) for his injuries and noted chronic memory impairment.
Clinical notes prepared by health care providers at Sunnybrook Hospital in 201013 describe a number of “challenges” in attempting to diagnose and treat R.L., including:
- his lack of understanding of the role of different specialists and what they could offer for treatment “despite repeated explanation;”
- his repeated non-compliance with tools put in place to overcome his memory problems;
- his refusal to accept referrals to specialists; and
- his apparent inability to control his anger and frustration, leading treatment providers to fear of violence when confronting him with his role in contributing to treatment difficulties.
All of the records provided indicate that R.L. is a poor, and even evasive, historian. He is either unable or unwilling to provide accurate or complete information to the many health care providers he consults and either does not or cannot follow through with recommendations and interventions made on his behalf.
Ms. Harper submitted that R.L. has hired and fired at least nine legal representatives regarding his claims against Royal for the March 2, 2012 accident. Regarding specific interactions with the Commission, the Commission’s records appear to indicate R.L. has engaged a legal representative at the last minute just before a pre-hearing or pre-hearing resumption, and then fired that representative shortly afterward, on four occasions.
Finally, on September 29, 2015, R.L. advised the Commission that he intends to represent himself in the arbitration hearing.
I find this recurring pattern to be irrational and to indicate that R.L. is not able to think sensibly about his case, to understand the necessary steps that must be taken to advance his claims, or to appreciate the consequences of his behaviour. He sends correspondence to the Commission claiming he wants “priority” for his hearing, then requests adjournments or takes actions that delay the very thing he seeks. He appears to be unable to make rational decisions and follow through on them. His case is complex medically and legally, and he is clearly incapable of presenting it before an arbitrator himself. Of course, it is not a requirement that a person have legal representation to proceed in the dispute resolution before this tribunal. However, the principles of natural justice mandate that a person has the right to be heard in a proceeding that is both fair and expeditious, and that measures are taken to protect vulnerable persons in the process. I find R.L.’s lengthy and documented history of mental difficulties and his erratic behaviour in respect of advancing his claims in these proceedings makes it impossible to conduct a fair arbitration hearing under these circumstances.
I note that since the preliminary issue hearing took place, R.L. has sent numerous hand-written letters to the Commission. These letters appear to indicate considerable mental confusion. He has telephoned to advise that he is, once again, facing eviction and homelessness, that he has changed cell phone numbers, and that his new cell number will soon no longer be valid.
I find R.L. does not have the mental capacity to proceed in the dispute resolution process. As he has advised that there is at present no other person with a valid continuing power of attorney over his property, I am required, under Rule 10, to take the following steps:
- Determine whether there is a person such as a spouse, near relative, close friend or a professional such as a doctor, lawyer, or business entity, such as a trust company who is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on R.L.’s behalf; and
- If there is no such person, determine whether there is a person who has made or intends to make arrangements for the appointment of a guardian over R.L.’s property under the provisions of the SDA who could then act on R.L.’s behalf in this arbitration proceeding.
If the answer to those questions is that there is no suitable person available to help him with the dispute resolution process here at the Commission, or no person who will arrange for the appointment of a guardian of property under the SDA, then Rule 10 permits me to ask the Public Guardian and Trustee to take appropriate steps under the provisions of the SDA. That is the extent of my jurisdiction. The taking of any steps by the Public Guardian and Trustee is entirely at its own discretion.
It is my understanding that there is no currently no application regarding R.L. before the Superior Court of Justice under the SDA.
I require R.L. to advise me in writing within thirty (30) days of this decision, if there is a person willing to act on his behalf in the dispute resolution proceeding, and/or if anyone has made or intends to make arrangements under the SDA for the appointment of a guardian over his property. If I do not hear from R.L. in writing within thirty (30) days, I will determine which steps should be taken to move this matter forward.
Under section 50.2 of the DRPC, either party may appeal this preliminary issue decision on a question of law to the Director of Arbitrations, within 30 days of the date of this decision and my order.
November 4, 2015
Susan Sapin
Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 232
FSCO A13-008299
BETWEEN:
R.L.
Applicant
and
ROYAL & SUNALLIANCE 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:
R.L. shall, within 30 days, advise whether there there is a person such as a spouse, near relative, close friend or a professional such as a doctor, lawyer, or business entity, such as a trust company who is suitable, willing and able to proceed in the dispute resolution process and to receive and administer statutory accident benefits on R.L.’s behalf; and
R.L. shall, within 30 days, advise if there is a person such as a spouse, 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 Susbstitue Decision Act.
November 4, 2015
Susan Sapin
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- The Substitute Decisions Act, SO 1992, c 30
- Re Koch, 1997 CanLII 12138 (ON SC), 33 O. R. (3rd) 485
- The SDA provides legal protection for minors and persons who do not have the mental capacity to make decisions about their property or their own personal care.
- Ms. Harper directed me in particular to: the clinical notes of Dr. Brian Sheffield, a general practitioner, from August 2012 – 2014 (Tab J); the clinical notes and records of Humber River Hospital regarding visits in 2005 and 2006 (Tab K); the CAMH file re: visits (Tab L); the St. Michael’s Hospital file (Tab M); and the Rouge Valley Hospital file (Tab N).
- Community Care Access Centre, a provincially funded organization that provides health care support in the home and in the community.
- CAMH records, Tab L.
- Form 1 under the Mental Health Act completed by Dr. Kwasnicka February 3, 2010, at Tab K, St. Michael’s Hospital Records.
- Report of Dr. D. J. Campbell, September 13, 2011, Tab M.
- Psychiatric Emergency Service Interdisciplinary Record dated February , 2010, Preliminary Issues Brief, Tab M. Apparently R.L. was at one time charged with making death threats in early 2006, but it is not clear what the outcome was. A psychiatric report by a Dr. I. Swayze in the CAMH file dated February 2, 2006 found a probable history of a major depressive disorder but that R.L. was not delusional, and recommended the court consider mental health diversion rather than criminal justice sanctions. Dr. Swayze indicated few medical records were available to him.
- Consultation note of Dr. S. Sokolow, psychiatrist, December 21, 2009.
- Preliminary Issues Brief, Tab N.
- Tab I, p. 98 of 512.