Radzevicius v. Workplace Safety and Insurance Appeals Tribunal
CITATION: Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 DIVISIONAL COURT FILE NO.: DC-18-354-JR DATE: 20190227
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MULLINS, MYERS, and FAVREAU JJ.
BETWEEN:
LEON RADZEVICIUS in his capacity as ESTATE TRUSTEE OF THE ESTATE OF ANDREW RADZEVICIUS (DECEASED) Applicant
-and-
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and TORONTO FIRE SERVICES - CITY OF TORONTO Respondents
Leon Radzevicius, Estate Trustee, in person Justin Basinger and Swarna Perinparajah, lawyers for the City of Toronto Chris G. Paliare and Lauren Pearce, Lawyers for Workplace Safety and Insurance Appeals Tribunal
HEARD at Toronto: February 26, 2019
The Court:
ENDORSEMENT
[1] At the beginning of the hearing scheduled for today, the panel considered submissions on whether the applicant can proceed in this matter without a lawyer, after which we adjourned the matter sine die. These are the reasons for the adjournment.
[2] Leon Radzevicius has been appointed estate trustee without a will of the estate of his late son Andrew L. Radzevicius. Leon Radzevicius commenced this application for judicial review purportedly in the name of the estate and without a lawyer.
[3] Under Rule 9.01 of the Rules of Civil Procedure, RRO 1990, Reg. 194, litigation by an estate is to be brought in the name of the estate trustee as representing both the estate and the beneficiaries. Under Rule 9.03(2) when a proceeding is mistakenly brought in the name of an estate, the court can amend the title of the proceeding to add the estate trustee and delete the estate. The court therefore orders that the title of proceedings be amended so that the applicant is now “LEON RADZEVICIUS in his capacity as ESTATE TRUSTEE OF THE ESTATE OF ANDREW RADZEVICIUS (DECEASED).”
[4] Rule 15.01(1) of the Rules of Civil Procedure provides that;
A party to a proceeding who… acts in a representative capacity shall be represented by a lawyer.
[5] As estate trustee, Leon Radzevicius acts in a representative capacity for the estate and the beneficiaries as is made clear by Rule 9.01. Therefore, he is not authorized to appear on behalf of the estate in this court without a lawyer. The Rules do not provide the court with the ability to grant leave to a non-lawyer to act as they do, for example, under Rule 15.01(2) when a corporation is involved.
[6] In Herberman Estate (Re), 2003 10801, at para. 5, the Court of Appeal held:
Rule 15.01(1) requires that the estate be represented by a solicitor. In the circumstances, we order that if a solicitor is not retained by March 15, 2003 to represent the estate of Gerald Streisfield in its appeal, a motion may be made to this court to dismiss that appeal.
[7] Moreover, the Superior Court of Justice has no discretion to permit a non-lawyer to represent another individual in proceedings before it: Direk v. Ontario (Attorney General), 2010 ONSC 3428, at para. 6. Any inherent jurisdiction to control the court’s processes is ousted by the prohibitions against non-lawyers providing legal services under the Law Society Act, RSO 1990, c L.8. This is not a case of a self-represented litigant appearing in court as of right and then, with leave of the court, being aided by a relative or friend. The estate trustee is not a self-represented litigant with a right to appear before the court on his own behalf. Rather, his status as a litigant is as a representative for the estate and its beneficiaries. Only a lawyer may appear in this court representing others.
[8] The registrar of the court advised the parties on the day before the hearing that the panel had a concern about this issue. Having heard the parties, the court adjourned the application without a fixed return date to give the appellant time to try to find a lawyer. Mr. Paliare undertook to provide Mr. Radzevicius with the contact details of Pro Bono Ontario to seek assistance under its Duty Counsel programme. The court expresses its appreciation to Mr. Paliare for acting in the best traditions of the bar to assist Mr. Radzevicius through this minefield of procedure.
[9] The parties are to contact the registrar to schedule a new date for the hearing once Mr. Radzevicius has retained a lawyer to represent the estate. This matter has a lengthy history. To ensure that it continues efficiently toward a final resolution, it is a condition of this adjournment that the applicant shall serve and file a notice of appointment of lawyer by April 1, 2019, failing which the registrar is directed to dismiss the application with costs to the City of Toronto after assessment if demanded. This time limit may be extended without an order on filing with the registrar the written consent of Mr. Radzevicius and the City of Toronto or by an order of a single judge obtained on motion on notice to all parties.
[10] The court also raised with the WSIAT a concern with respect to its role in this proceeding and whether it ought to be adopting an adversarial approach in its factum arguing about the merits of its own decision. Mr. Paliare acknowledged the panel’s concerns and advised that while he is prepared to argue the issue, he will also ensure that the approach taken pays due heed to the tribunal’s impartiality. Accordingly, we leave any further consideration of this question to the panel that may ultimately hear the matter.
[11] Any requirement for Mr. Radzevicius to approve the form and content of the formal order implementing this endorsement is waived.
___________________________ Mullins J.
Myers J.
Favreau J.
Date of Reasons for Judgment: February 27, 2019
Date of Release: February 27, 2019
CITATION: Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 DIVISIONAL COURT FILE NO.: DC-18-354-JR DATE: 20190227
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MULLINS, MYERS, and FAVREAU JJ.
BETWEEN:
LEON RADZEVICIUS in his capacity as ESTATE TRUSTEE OF THE ESTATE OF ANDREW RADZEVICIUS (DECEASED) Applicant
-and-
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and TORONTO FIRE SERVICES - CITY OF TORONTO Respondents
ENDORSEMENT
Date of Reasons for Judgment: February 27, 2019
Date of Release: February 27, 2019