Court File and Parties
COURT FILE NO.: CV 23 00700949 DATE: 20240206
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
580 Christie Street Co-Ownership Inc, Plaintiff – and – Miha Halik, Defendant
COUNSEL: Jake Fine, for the Plaintiff In person, for the Defendant
HEARD: February 6, 2024
BEFORE: Papageorgiou J.
Endorsement
[1] The Applicant is a corporation which manages a residential building located at 580 Christie on behalf of a group of owners who each own a separate and undivided percentage interest as tenants in common in the Property (the “Corporation”).
[2] The Respondent is a self-represented litigant.
[3] There is a significant history which involves another Application as well as several motions brought by the Corporation, damage awards and costs orders made against the Respondent.
[4] The prior issues have related to the Respondent’s failure to allow the Corporation to fix a leak, conduct fire safety investigations, permit it to address infestation in the Respondent’s unit and his alleged hoarding.
[5] There have been approximately 13 attendances before various judges in respect of these issues.
[6] The Respondent currently owes over $85,000 in respect of damage awards and costs orders.
[7] The Corporation now seeks an Order permitting it to sell the Respondent’s Co-ownership interest and requiring him to vacate his unit.
[8] This Application was issued on June 12, 2023.
[9] It had been scheduled to proceed on an urgent basis at a Civil Practice Court hearing on July 4, 2023. It was originally returnable before me on July 26, 2023.
[10] I adjourned the initial hearing date because the Respondent advised that he had not attended Civil Practice Court when the Application was scheduled because he had trouble connecting via the zoom link. By the time he did, the hearing had been scheduled. He advised that he had not had sufficient time to prepare responding materials.
[11] I provided direction in my endorsement to accommodate the Respondent including permitting him to file responding affidavit material and provide oral evidence, if necessary.
[12] Thereafter the Respondent attended before me on August 11, 2023, and provided a letter from his physician Dr. Ju Eun Lee dated March 24, 2023, which states that he is currently a patient of physicians who practice in the Department of Geriatric Psychiatry. It indicated that he suffers from serious psychiatric conditions including adjustment disorder with mixed anxiety and depressed mood, and Generalized Anxiety Disorder, with panic attacks. He also has unspecified Trauma and stressor related symptoms. It further indicated that he struggles with the current court issue and has demonstrated inability to care for and advocate for himself as a result of the mental illness. This affects his ability to function, understand and appreciate various circumstances.
[13] In my August 11, 2023, I directed that a certified capacity assessor conduct an assessment to determine whether the Respondent is a party under a disability. In that endorsement I directed that the Respondent provide a copy of that endorsement to his physician and also directed that the Applicant forward a copy of that endorsement to the Public Guardian and Trustee.
[14] On September 8, 2023, the Public Guardian and Trustee wrote to me and advised that the Respondent had reached out to his physician who attempted to find an assessor. Unfortunately, his physician could not find one in part because the Respondent is unable to pay for an assessment. In the PGT’s letter she advised me that this is a hole in the legislation in that OHIP will not pay for assessments for the purposes of determining if a party is under disability pursuant to r. 7.
[15] The PGT provided a number of possible solutions.
[16] One of these included the Respondent providing a copy of his records for review, and this Court considering the issue based upon his presentation during the court proceedings together with his medical records. The difficulty with that approach was that while the Respondent had been in front of many judges, this Court had not had any significant dealings with him. Nevertheless, it was possible to review previous transcripts and consider the issue based upon this Court’s interactions with the Respondent.
[17] On September 22, 2023, I ordered that the Respondent attend on October 25, 2023. I ordered that Dr. Lee provide his records. In that endorsement I set out that as per the PGT’s suggestion, I would review the Respondent’s records and consider the issue based upon the test set out in the jurisprudence taking into account his medical records and my observations. The Respondent was agreeable to this approach.
[18] On October 25, 2023, the Respondent attended but his treating physician had not sent me his medical records and he did not bring them with him. Today, the Respondent advised that he asked her to provide them but that she had to communicate with the legal department at the hospital first. He advised me that his physician Dr. Lee had advised that upon receiving a request from this court, she would provide the necessary information as to the Respondent’s capacity.
[19] Thereafter, I wrote to Dr. Lee seeking such opinion by letter dated November 24, 2023.
[20] On January 9, 2024, Dr. Lee wrote advising that the Respondent had withdrawn his consent to provide a capacity assessment. I advised the parties that the fastest option in these circumstances would be for the Applicant to pay for the assessment and then seek the cost of this in this proceeding.
[21] Then, the Applicant expressed its view that the Respondent has a long history of delaying proceedings and offered to pay for the capacity assessment. I requested the Respondent’s position by January 22, 2024, failing which I would order that the Respondent attend an assessment, at the Applicant’s cost. I requested that the Applicant provide a draft order containing particulars for such assessment in terms of time and place.
[22] Thereafter, by email dated January 19, 2024, the Respondent wrote advising that: A) He had not withdrawn his consent to have Dr. Lee perform the capacity assessment, but that Dr. Lee would not perform one because the Respondent was her patient. Also, she is no longer his treating physician. Today, the Respondent again said that he had not withdrawn any consent; B) Dr. Lee was unsuccessful in finding a capacity assessor because none responded to her request that they contact the Respondent; C) He wished me to conduct the capacity assessment and would agree to the release of his records for that purpose. I note that the last time we tried this, no records were forthcoming.
[23] At this stage, it is uncertain what the reason is as to why Dr. Lee would not provide an assessment or her records. The information from Dr. Lee and from the Respondent conflicts. The Respondent insists that he did not withdraw his consent. He also attempted to subpoena her to attend today, and he does have the issued subpoena with him, but he could not find her to serve her as she has moved her office. (Dr. Lee’s letter to me did confirm that she no longer works in the department where the Respondent was receiving treatment.)
[24] I add that the Respondent now says he no longer has a treating physician.
[25] I then scheduled an urgent hearing to address these issues for February 6, 2024.
[26] The Applicant’s offer to pay for the assessment is more than reasonable and it is preferable that an independent assessor conduct this assessment, rather than this Court.
[27] As such, I am giving the Respondent one last chance to comply with an assessment by an independent assessor pursuant to the Order I am making today.
[28] Because the Respondent has concerns about the Applicant selecting and arranging the assessment, I am directing as follows: a) The Applicant and Respondent shall each provide me and each other with a list of 2 certified capacity assessors together with their resumes as well as any details about when the earliest time is that the assessor could conduct the assessment. These shall be sent to my assistant polly.diamante@ontario.ca by February 13, 2024, at 5:00 pm. b) The Respondent has asked me how he should communicate with the potential assessors. I suggest that he could simply telephone them or email and set out that he is a party to a proceeding and that there has been an order made that he attend for a capacity assessment to determine if he requires a litigation guardian in that litigation and not for the purpose of a general inquiry into whether he can manage his affairs. He should advise that he requires information as to the earliest date possible and how long it would likely take to obtain a report afterwards. c) If the parties have any objections to any of these assessors they shall provide me with their views, no longer than one page by February 15, 2024, at 5:00 pm. d) Thereafter, I shall pick one of the assessors and advise the parties who it is in advance of the case conference scheduled for February 21, 2024, below. e) The parties shall reattend before me on February 21 at 4:30 pm so that the Respondent can execute the consent necessary for the medical records release to the assessor and to address any additional issues that may arise. f) Prior to the case conference on February 21, 2024 the Applicant shall provide me and the Respondent with an Order in Word that sets out the fact that this assessment shall be taking place, the name of the assessor, the time of the assessment, the fact that the Respondent must execute a consent for the provision of medical records in the form which we downloaded today from Toronto General’s website as well as setting out an order from me that the Toronto General provide the medical records to the assessor as soon as possible. The Order shall also specify that the assessor shall send the report directly to this court and to the Respondent and that the parties shall cooperate to schedule the Assessment. g) The Respondent is retired and has advised that he should be able to attend any time scheduled for this assessment.
[29] The assessor shall also be provided with a copy of my endorsement of August 11, 2023, that sets out the details that the assessor requires together with this endorsement and the Order in respect of the assessment.
[30] If the Respondent fails to provide the consent regarding his records, and/or fails to attend at the appointed time and place, then I will consider simply proceeding with the Application on the basis that the Respondent’s conduct has been nothing more than a delay tactic.
[31] I wish to emphasize in response to the Respondent’s concern, that this assessment is only with respect to whether a litigation guardian should be appointed in this matter and will not affect his ability to manage his other affairs.
[32] I also wish to emphasize to the Respondent that the Applicant will not see any of his medical records which shall remain confidential.
[33] The Respondent shall also send a copy of this endorsement to the PGT.
Papageorgiou J. Released: February 6, 2024
Reasons for Judgment
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
580 Christie Street Co-Ownership Inc, Plaintiff – and – Miha Halik, Defendant
Papageorgiou J. Released: February 6, 2024