Neutral Citation: 2016 ONFSCDRS 325 FSCO A13-008299

BETWEEN:

R.L. Applicant

and

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Insurer

DECISION ON A PRELIMINARY ISSUE

Before: Anne Sone Heard: September 22, 2016, at the offices of the Financial Services Commission of Ontario in Toronto, Ontario.

Appearances: R.L. represented himself Meredith Harper for Royal & SunAlliance Insurance Company of Canada

Overview:

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 him a non-earner benefit and certain medical benefits. The parties were unable to resolve their disputes through mediation, and R.L. applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Preliminary Issue:

The preliminary issue is:

Does R.L. now have the mental capacity to proceed in the dispute resolution process pursuant to Rule 10.3(a) of the Dispute Resolution Practice Code?

Result:

R.L. now has the mental capacity to proceed in the dispute resolution process pursuant to Rule 10.3(a) of the Dispute Resolution Practice Code.

ANALYSIS:

Background:

On August 11, 2016, Galit Liffshiz, occupational therapist, submitted a Capacity Assessment Report regarding R.L. As a result, Royal sought clarification of whether R.L. now had the mental capacity to proceed in the dispute resolution process pursuant to Rule 10.3(a) of the Dispute Resolution Practice Code (Fourth Edition — Updated January 2014) (the “Code”).

Despite still being at the pre-hearing level, this case has a lengthy history.

Decision of Arbitrator Sapin:

Arbitrator Sapin sets out this history in a Decision on a Preliminary Issue² dated November 4, 2015. Due to concerns about R.L.’s mental health at that time, Royal had sought a determination by an arbitrator as to whether R.L. had the mental capacity to proceed in the dispute resolution process. Based on R.L.’s presentation at that preliminary issue hearing, his responses to her questions, and a review of extensive medical records in Royal’s brief, Arbitrator Sapin found that R.L. did not have the capacity to proceed in the dispute resolution process. Her decision was, in large part, based on R.L.’s lengthy history of mental illness and having retained and then fired at least nine legal representatives. At page 9 of her decision, she states that:

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.

Although represented at the capacity hearing on April 13, 2015, R.L. subsequently advised the Commission on September 29, 2015 that he intended to represent himself in the arbitration process.

As a result, Arbitrator Sapin required R.L. to advise her in writing within thirty (30) days of her decision, if there were 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 Substitute Decisions Act (SDA) for the appointment of a guardian over his property. She also stated that if she did not hear from R.L. in thirty (30) days, she would determine which steps should be taken to move this matter forward.

Selection and Recission of Porferio Garrido as Guardian of R.L.’s Property:

Further to Arbitrator Sapin’s Order, R.L. advised the Commission of the following, in a letter received December 3, 2015:

… I am now giving authorization to Porferio Garrido as my public guardian in regards of my property.

Arbitrator Sapin then followed the procedure set out in Rule 10.5 of the Code to determine if the party appointed to act on R.L.’s behalf was suitable. In a letter dated March 9, 2016, Arbitrator Sapin ordered Mr. Porferio Garrido to provide the Commission with a sworn affidavit setting out information she required to make this determination.³ She also stated the following:

If I do not receive Mr. Garrido’s sworn affidavit within 45 days, the arbitration hearing will be scheduled, the parties will be notified of same, and I will notify the Public Guardian and Trustee to request that appropriate steps be taken pursuant to the provisions of the Substitute Decisions Act, in accordance with Rule 10.6 of the Code.

On April 21, 2016, R.L. sent a letter to the Commission to inform the Arbitrator that he had changed his mind, and did not wish to use Porferio Garrido as guardian over his property.

Capacity Assessment Report completed by Galit Liffshiz, Occupational Therapist:

On August 11, 2016, Galit Liffshiz, occupational therapist, completed a Capacity Assessment Report regarding R.L. to determine whether R.L. required a statutory guardian for his property under subsection 16(1) of the SDA. Royal commissioned this report, which was conducted with R.L.’s consent. The reason provided for the request was “information suggesting inability to manage finances.”

The Capacity Assessment Report contains an extensive review of R.L.’s pre and post-accident physical and mental health history. It includes significant references to depression. On December 18, 2015, R.L. was assessed by Dr. Gandell (a specialist in geriatrics) based on a referral from Dr. Sheffield for “multiple medical problems and cognitive assessment query dementia.” Dr. Gandell concluded that “it is unlikely that he has a neurodegenerative process at this time. His mood, his social circumstances and medications are more likely [to] account for his cognitive test score… It appears that he is managing his monthly income independently. I do not think that he is delirious. His depression has been treated…”

Mr. Liffshiz conducted a telephone interview with Ms. Archana, a social worker form The Canadian Mental Health Association who is working with R.L. She advised that she has not been seeing evidence of poor judgment with regard to money management.

As a result of his own interview with R.L., Mr. Liffshiz opined as follows:

I concluded that R.L. has the ability to understand and appreciate the information needed to manage his affairs. He is aware of the basic facts pertaining to his finances. He is responsible for his bills and he is fully aware what happens if you do not pay the bill.

He is aware of his loans and owing. He is able to solve problems when he is unable to pay bills. He is aware of his income, his expenses, his bills and of consequences.

Requirements of Rule 10 of the Code:

Under Rule 10.3 of the Code where an adult party has not been declared mentally incapable under the provisions of the SDA, but exhibits signs of mental difficulty during the course of a proceeding, either party may request a hearing on a preliminary issue to determine whether the party has the mental capacity to proceed in the dispute resolution process.

The legal test for determining whether a person has the mental capacity to proceed in the dispute resolution process is essentially the same as the test set out in section 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 a lack of decision.”

Conclusion:

After meeting R.L., extensively reviewing his medical history and interviewing service providers, Mr. Liffshiz concluded that R.L. has the ability to understand and appreciate the information needed to manage his affairs.

In his Capacity Assessment Report, Mr. Liffshiz provided evidence from a geriatric physician and R.L.’s social worker that showed that R.L. was able to manage his property, specifically his finances. In addition, as a professional assessor and occupational therapist, I place significant weight upon Mr. Liffshiz’ uncontroverted expert opinion in this case.

During my interaction with R.L., I observed that he had the ability to understand and appreciate information that is relevant to making a decision regarding property. Specifically, he conveyed that he wishes to maximize the possible benefits he might receive from his claims with Royal. In addition, he responded within the specific time limit set out in Arbitrator Sapin’s Order regarding selecting a guardian over his property.

R.F.’s pattern of behaviour regarding the conduct of his case has been unorthodox, (including a significant amount of rambling correspondence); however, that is not the test. I find that he has the intellectual ability and skills to make choices regarding his property, and that he is not delusional. I appreciate the concerns Arbitrator Sapin raised in her decision. Certainly, most applicants at the Commission choose to be represented; however, R.L. has the right to choose if someone represents him or not. Based on my observations and the expert report of Mr. Liffshiz, I find that R.L. has the mental capacity to proceed in the dispute resolution process pursuant to Rule 10.3(a) of the Code.

November 30, 2016

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario