Huang v. Braga, 2016 ONSC 6306

Court File and Parties

Court File No.: 02-CV-223298CM3 Court File No.: 06-CV-316408PD1 Court File No.: 13-CV-483972 Date: 2016-10-11 Ontario Superior Court of Justice

Between: SHE HE HUANG, Applicant – and – JIE WIE PAN, Respondent – and – ANCIETO M. BRAGA

And Between: SHE HE HUANG and JIE WEI PAN, Applicants – and – AVIVA INSURANCE COMPANY OF CANADA, LAWRENCE HARVEY FINE, JEWELL LAW, formerly named JEWELL, MICHAEL & OBRADOVICH and GREGORY CHANG, Defendants

Counsel: Alan L. Rachlin and Jeffery A. Small, for Anciento M. Braga (moving party for the motion) Jie Wie Pan, Respondent, Self-Represented Robert Rogers, counsel for the defendant Aviva Insurance Company of Canada (supporting the motion) Walter Kim, Office of the Public Guardian and Trustee She He Huang, Self-represented (opposing the motion)

Heard: October 5, 2016

Before: Archibald J.

Judgment

1This is a judgment appointing the Public Guardian and Trustee to act as litigation guardian for the plaintiff, Ms. Huang.

Background

2The original cause of action was commenced in 2002; it arose out of a 2000 personal injury accident. The second cause of action for accident benefits was commenced in 2006. The third cause of action for further accident benefits was issued in 2013. All three actions are ordered to be tried together. The fourth cause of action against Ms. Huang’s first set of counsel was stayed by me in 2015, pending the outcome of the three actions pertaining to the 2000 accident.

3Greater detail concerning the specific milestones of this case from 2000 to present may be found in the endorsement of McEwen J. dated February 11, 2016 and the affidavit of Mr. J. Small dated January 12, 2016. Although Ms. Huang contests some of the details in Mr. Small’s affidavit, the major events that he sets out are undisputed.

4Ms. Huang retained five different counsel over the last 13 years. Two of those lawyers, Mr. Holland and Mr. Singer, appeared before me. Mr. Holland acted as Ms. Huang’s lawyer of record for several years before removing himself in January 2014.

5During Mr. Singer’s tenure on this file, I conducted at least four pre-trial conferences in an effort to streamline the trial and settle the case. At one point in 2015, this case tentatively settled for a large amount of money. Ms. Huang, however, ultimately rejected the settlement, claiming the amounts were insufficient to satisfy her needs for the rest of her life. As a consequence, her relationship with Mr. Singer broke down and Mr. Singer was let off the record, despite working tirelessly for Ms. Huang.

6Following Mr. Singer’s departure, I asked Mr. A. Kwinter, senior personal injury counsel, to speak to Ms. Huang about the contours of the settlement as a friend of the Court. He, too, could not persuade her to settle this case.

7Counsel from Pro Bono Ontario then became involved in assisting Ms. Huang with trial preparation. Ms. J. Daya spoke with Ms. Huang about the significant settlement offer, but was also unable to dissuade her from proceeding to trial. Notwithstanding Ms. Daya’s excellent assistance, Ms. Huang prefers to act for herself.

8Eighteen months ago, with her consent, I ordered a capacity assessment of Ms. Huang. Dr. Eva Chow, a psychiatrist, conducted the assessment. She concluded that Ms. Huang had sufficient cognitive capacity to act for herself in this proceeding; however, she cautioned that Ms. Huang’s cognitive abilities were in constant flux. The determination of her capacity in March of 2015 would not necessarily guarantee that she would be mentally capable of prosecuting her case going forward. At that time, the trial was scheduled for April 13, 2015. It has been a year and a half since that assessment.

9On Tuesday September 13, 2016 and Thursday September 15, 2016, I case managed this matter. During the conferences, it became clear to me that Ms. Huang only has a rudimentary understanding of trial proceedings. She did not understand that she could testify before the court, nor did she understand that she could subpoena her accountant. Notwithstanding her limited understanding, she insisted upon going to trial on October 3, 2016.

10Following the series of case management conferences in September 2016, I granted a motion to have a capacity assessor, designated under the Substitute Decisions Act, 1992, SO 1992, c 30 [SDA] perform an assessment of Ms. Huang. Ms. Huang complied with my request that she should cooperate with the assessor.

11Accordingly, on September 22, 2016, Ms. Louise Silverston conducted the assessment at Ms. Huang’s home. Ms. Silverston released her report dated September 30, 2016. She concluded that Ms. Huang did not have the necessary capacity to act for herself in this action, but was capable of managing her property.

12After receiving this report, I am now tasked with deciding whether Ms. Huang is a party under disability requiring a litigation guardian to continue her action.

Law

13Rule 7.01(1) of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194 [Rules] requires that,

7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.

14Disability is defined as “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not:” Rules, r 1.03(1).

15Section 6 of the SDA reads:

Incapacity to manage property 6. 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.

16The purpose of requiring a litigation guardian has been eloquently set out by Master Robert Beaudoin (as he then was) at paragraph 4 of Cameron v. Louden, 81 ACWS (3d) 32, [1998] OJ No 2791 (Gen Div):

The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party ensuring that a competent person with a duty to act for the party’s benefit is there to instruct counsel and take steps in the litigation on the party’s behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs and is responsible for seeing that the court’s eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.

17Litigation guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.

18The test for whether a litigation guardian is required under Rule 7 is that:

(i) The person must appear to be mentally incapable with respect to an issue in the case and, (ii) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court. In addition, the cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from some other (non-legal capacity related) reason such as a lack of sophistication, education or cultural differences: C.C. v. Children’s Aids society of Toronto, [2007] OJ No 5613 (SCJ) at para 25 [C.A.S. Toronto].

19The jurisprudence has established the following additional factors should be considered when determining whether a party is under disability and requires a litigation guardian:

(a) A person’s ability to know or understand the minimum choices or decisions required and to make them; (b) An appreciation of the consequences and effects of his or her choices or decisions; (c) An appreciation of the nature of the proceedings; (d) A person’s inability to choose and keep counsel; (e) A person’s inability to represent him or herself; (f) A person’s inability to distinguish between relevant and irrelevant issues; and, (g) A person’s mistaken beliefs regarding the law or court procedures. See C.A.S. Toronto at para 29-32; Calvert (Litigation Guardian of) v. Calvert, (1997), 32 OR (3d) 281 at p 298; Kirby v. Leather, [1965] 2 All ER (CA) 441 at p 444; Bilek v. Constitution Insurance, 49 CPC (2d) 304.

20Courts have considered various types of evidence in evaluating the appropriateness of appointing a representative or litigation guardian:

i. Medical or psychological evidence as to capacity; ii. Evidence from persons who know the litigant well; iii. The appearance and demeanour of the litigant; iv. The testimony of the litigant; and, v. The opinion of the litigant’s own counsel. See, for example, C.A.S. Toronto at para 34 on this point.

21At the third paragraph of the Motion Record, Mr. Braga’s counsel asks for an order appointing the Public Guardian and Trustee to act as litigation guardian for the plaintiff, Ms. Huang. Robert Rogers, counsel for the defendant Aviva Insurance Company of Canada, supports the motion.

22Ms. Huang opposes the motion. She has provided me with written submissions dated September 30, 2016, totalling five pages in length. In her submissions, Ms. Huang indicates that she wishes to represent herself at trial; that Ms. Silverston’s capacity report is suspicious and possibly part of some kind of conspiracy; and that she should succeed in her claim before the jury because of the nature of the injuries she sustained from the motor vehicle accident. I have considered her written submissions in arriving at my reasons for judgment.

Analysis

23In deciding this issue, I have considered the particular evidence before me:

1. The medical report of Dr. Eva Chow, dated March 29, 2015;
2. The capacity assessment of Louise Silverston, dated September 30, 2016;
3. The written submissions of Ms. J. Daya detailing her interactions with Ms. Huang, dated September 16, 2016. While Ms. Daya has never been retained by Ms. Huang, she has assisted this Court in her role as Pro Bono counsel by explaining matters to Ms. Huang and advising her during case management conferences;
4. The oral submissions of counsel representing the defendants in this action;
5. The five page written submissions of Ms. Huang, dated September 30, 2016;
6. The oral submissions of Ms. Huang on Sept13, Sept15, and Oct 5, 2016; and,
7. My own personal observations of Ms. Huang while case managing this matter over the last two years.

24I agree with Coo, D.C.J. that the Court “must be very cautious in coming to a conclusion which would bar the plaintiff from having the final say in how [their] litigation is to be conducted or resolved:” Bilek v. Constitution Insurance, 49 CPC (2d) 304, [1990] OJ No 3117 (DC). Ms. Huang should not be lightly denied her right to act for herself in the upcoming jury trial. For this reason, I recently granted the motion for a further, updated capacity assessment of Ms. Huang by Ms. Silverston.

25The decision to declare someone mentally incapable ultimately rests with the Court and generally it is a question to be decided largely on recent medical evidence: 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114 at para 24, 116 OR (3d) 202.

Report from Ms. Louise Silverston

26Ms. Silverston’s capacity assessment of Ms. Huang was conducted on September 22, 2016. At page 8 of her report dated September 30, 2016, she finds that Ms. Huang is incapable of representing herself in this litigation:

[I]t was very clear that she had no ability…to either understand the information necessary to make her legal decisions, nor appreciate the reasonably foreseeable consequences of making her decision to represent herself.

27A few of Ms. Silverston’s specific findings are instructive with respect to the extent of Ms. Huang’s incapacity and its consequences for her appreciation of the issues in this litigation. At page 9, she states that Ms. Huang “is not able to appreciate her decisions following years of repeated tireless education, legal advice and caution, as well as well documented mental status impairments.” She goes on to explain that Ms. Huang’s “…mental ability to represent herself in her legal matters is impacted by her inability to appreciate the consequences and risks of her decision.”

Report from Dr. Eva Chow

28Ms. Silverston’s assessment confirms the concerns raised about Ms. Huang’s capacity from Dr. Chow’s earlier assessment dated March 29, 2015. Although Dr. Chow found Ms. Huang had capacity at the time the assessment was conducted, she cautioned that her capacity could change at page 21:

[B]ecause I found that Ms. Huang’s Major Depressive Disorder has improved as of February 17, 2015, I do not believe that it affected her capacity at that point. However, mental status can change rapidly and so could her mental capacity. If Ms. Huang’s mood disorder takes a turn for the worse between now and the time of her trial, her capacity to present herself or to instruct counsel could be compromised…there is a real possibility of her presenting once again differently at the time of the trial and it would be helpful to understand more about why her presentations and subjective symptoms and objective signs could be so variable…

29Dr. Chow’s report describes Ms. Huang as a person with “Persistent Depressive Disorder, with intermittent major depressive episodes.” She also noted that Ms. Huang’s self-reported “psychotic” symptoms appeared to be in remission at the time of Dr. Chow’s February 17, 2015 assessment.

Additional Factors

30I now deal with the additional factors to be considered when deciding whether to appoint a litigation guardian.

(a) Inability to know or understand the minimum choices or decisions required and to make them

31I have personally witnessed Ms. Huang fail to grasp the implications of settlement offers several times. Her inability to fathom - on any real level - that the settlement offers to date present a legitimate alternative to losing her trial demonstrate that Ms. Huang cannot understand or act on the minimum choices available to her. Any understanding Ms. Huang evinced with respect to the settlement proposals was merely superficial at best. She had no appreciation of the impact the settlements would have on funding her future care or determining the cost awards at trial.

32Ms. Daya expressed similar concerns in her written submissions, while noting that Ms. Huang’s obsession with going to trial appeared to stem from an inability to realize that other options were open to her.

(b) Appreciating the consequences and effects of her choices or decisions

33Ms. Huang does not appreciate the consequences of her decisions in this litigation. She is unable to understand that any failure to properly introduce evidence at trial will preclude the jury from considering it. She does not appreciate that proceeding to trial in the face of a large settlement offer could lead to her owing substantial amounts of money once costs are determined.

34At the case management conference on September 15, 2016, Mr. Rachlin attempted to gain an understanding of Ms. Huang’s capacity by asking her about the consequences of representing herself at trial. Specifically, he asked what would happen if the jury did not accept her position. Mr. Rachlin asked this question four times before Ms. Huang could articulate a relevant response. She eventually indicated that she may lose her case, but then made a vague reference to money she believed the insurance company would still owe her, which she thought would nonetheless be paid to cover her losses. Her tangential attempts at answering this line of questioning, and her allusion to money that would still be owed to her in the event she lost at trial, clearly suggests to me that she does not appreciate the consequences and effects of her choices relating to this litigation.

35Further, it is Ms. Daya’s opinion that Ms. Huang does not comprehend the reasonably foreseeable consequences of proceeding to trial. It is apparent to her that Ms. Huang does not appreciate that the trial will be starkly different than how Ms. Huang envisions it in her mind. She refuses to accept any legal opinions or guidance. She only politely listens to advice in order to dismiss it and then illogically assert that her evidence will be accepted by the jury without question.

(c) Nature of the Proceedings

36These proceedings relate to issues of liability in a personal injury action arising out of a motor vehicle accident. Accident benefits can be exceedingly complex to prove at trial. I have no confidence in Ms. Huang’s capacity to understand this difficult area of law. In trial management discussions, Ms. Huang did not comprehend that she needed to call her accountant to assist her in quantifying the extent of her losses in front of the jury. Moreover, she did not even know she could testify. I point these matters out to underline that she was nonetheless steadfast in her desire to proceed to trial, but was totally unprepared to present any kind of case to the jury. My opinion concerning her lack of capacity is bolstered by Ms. Silverston’s conclusion at page 8 of her report:

[Ms. Huang] was not able to understand my continued, repeated education in regard to how the insurance company would calculate [accident benefits] or how her settlement amount would be determined, nor the inherent risks of attending court to represent herself because of this, and the myriad of legal complications over a 16 year period.

(d) Inability to retain and instruct counsel

37Over the last 16 years, Ms. Huang has been unable to maintain a positive relationship with any of her five counsel. She has been unhappy with all five of her counsel. She has fired all five of her counsel. Ms. Daya’s written submissions emphasize Ms. Huang’s obdurate refusal to accept any guidance. According to Ms. Daya, Ms. Huang only listens to advice in order to dismiss it and to concomitantly insist on the correctness of her mistaken notions about trial procedures and outcomes.

38Ms. Huang’s inability to retain and instruct counsel illustrates the necessity of appointing a litigation guardian to continue the prosecution of these matters.

(e) Ms. Huang’s ability to represent herself

39The primary purpose of appointing a litigation guardian is to protect the party under disability, but a litigation guardian may also protect the court’s procedures and opposing parties. In light of these purposes, Ms. Huang’s inability to represent herself weighs in favour of appointing a litigation guardian. As mentioned above, Ms. Huang does not have a grasp on how to authenticate her evidence, how to elicit testimony from her witnesses, or how to cross-examine opposing witnesses. A litigation guardian will provide her with more capable representation and conduct the litigation in accordance with the Rules.

(f) Ability to determine relevancy

40I am satisfied that Ms. Huang cannot adequately determine what information or documents are relevant at any given time. During the case management conferences in September 2016, she continually brought up irrelevant disputes which she had with her previous legal representatives. Her persistent confusion demonstrates that she lacks the ability to understand what information is relevant and should be marshalled and put before the jury to prove her case.

41Also, when Ms. Silverston attempted to discuss settlement offers with her, Ms. Huang could not understand how it was relevant given her perception of the facts and her truth. This is a complex personal injury trial that has been ongoing for more than 16 years. Ms. Huang’s inability to fathom the role which settlement offers play in determining costs and, therefore, the full quantum of any award, shows that she is unable to know that her decisions prior to trial will impact how the case is resolved.

42At the motion hearing, Ms. Huang sought to argue the merits of her case and to quantify the damages she has suffered. Ms. Huang attempted to engage Mr. Rogers, counsel for the defendant Aviva Insurance Company of Canada, in a discussion concerning the nature and cost of treatment she is receiving. These issues are not squarely relevant to whether a litigation guardian should be appointed. It troubles me that these kind of concerns always prevail over discussions of Ms. Huang’s capacity, any trial preparation she has engaged in, and her general ability to understand the reasonably foreseeable consequences of her decision to go to trial.

(g) Mistaken beliefs regarding the law or court procedures.

43Ms. Huang’s mistaken beliefs regarding the law and court procedures are intimately tied to her inability to represent herself and her inability to navigate the complex area of accident insurance law. The exchange between Ms. Silverston and Ms. Huang detailed at page 6 of Ms. Silverston’s report explicitly identifies a few of Ms. Huang’s mistaken beliefs:

I explained to her repeatedly, how the accident insurance regulations are legislated and managed and that this is a system with rules that must be abided by for any expenses or treatment. Ms. Huang replied each time that this is not true and that she is right and that she will with certainty receive her four million dollars because she is correct and deserving.

Applying the Rule 7 test

44In light of the above considerations, I find that Ms. Huang is a person under disability because she is unable to appreciate the reasonably foreseeable consequences of her actions: Rules, r 1.03(1); SDA, s 6. She is mentally incapable of representing herself in this case and requires legal representation appointed by the Court. Her incapacity stems from a source of mental illness (Major Depressive Disorder) as outlined in the reports of Ms. Silverston and Dr. Chow. In this judgment, I have also considered and outlined the additional factors established by the case law.

45Ms. Huang is mentally incapable with respect to her ability to represent herself in this litigation. As a result of being mentally incapable, she requires legal representation to be appointed by the Court.

Order

46Ms. Huang is a person under disability as defined in Rule 1.03(1) and, therefore, requires a litigation guardian in order for her action to continue: Rules, r 7.01(1).

47Mr. Kim, representing the office of the Public Guardian and Trustee, advises me that there is a hierarchy for appointing a litigation guardian. The priority is as follows:

(1) A person already appointed as guardian of property; (2) A person holding a valid power of attorney; (3) A family member or friend who is willing and able to act as litigation guardian and provide the necessary indemnification for costs; (4) The Public Guardian and Trustee.

48There is no evidence before me that Ms. Huang has a guardian of property. Further, I understand from Ms. Silverston’s report that she does not require one.

49There is no evidence before me that anyone holds a valid power of attorney with respect to Ms. Huang.

50I understand Ms. Huang has at least two siblings: a brother who has accompanied her to several case management conferences and a sister with whom she lives. The evidence before me is that neither of Ms. Huang’s siblings is willing and able to act as litigation guardian. I am informed by Ms. Huang that this is the case. Further, I have an email from Mr. Singer, Ms. Huang’s former solicitor, dated September 29, 2016, attesting to the brother’s unwillingness to act as litigation guardian. I am also informed by Mr. Rachlin, counsel for Mr. Braga, that Ms. Huang’s brother is unwilling to act as litigation guardian because he refuses to bear the financial burden. Therefore, I am satisfied that there are no family members willing to act as litigation guardian for Ms. Huang.

51Accordingly, I am appointing the office of the Public Guardian and Trustee to act as litigation guardian for Ms. Huang pursuant to Rule 7.04(1)(b). These cases are adjourned pending the office of the Public Guardian and Trustee having a full and complete opportunity to educate itself concerning these matters.

Archibald J.