Court File and Parties

CITATION: Must v. Shkuryna, 2019 ONSC 6445

COURT FILE NO.: DC-653/17

DATE: 2019-11-08

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, Sweeny and Favreau JJ.

B E T W E E N :

ROBERT MUST Appellant

– and –

YANA SHKURYNA Respondent

Counsel: Robert Must, representing himself A. Kenet, for the Respondent L. Burke, Amicus Curiae H. Hogan, Office of the Public Guardian and Trustee

HEARD: October 31, 2019

Reasons for Decision

HEENEY J.:

[1] This is an appeal of the order of Shaw J. of the Superior Court of Justice dated October 27, 2017, appointing the Public Guardian and Trustee (“PGT”) to represent the Appellant on the basis of her finding that he was a “special party” under Rule 2(1) of the Family Law Rules.

[2] At the time of the order, a special party was defined in Rule 2(1) as follows:

“special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case;

[3] The order was made in relation to an appeal brought by the Appellant in the Superior Court of Justice of a final order of Clay J. of the Ontario Court of Justice, dated March 17, 2017. That proceeding related to a claim by the Appellant for custody of, or access to, his son. On September 5, 2014, not long after the proceedings began, Clay J. found the Appellant to be a special party, and appointed the PGT to represent him. There were a number of subsequent endorsements from Clay J. confirming that his finding of incapacity continued, made on September 22, 2015, December 11, 2015, January 5, 2016, November 28, 2016 and January 26, 2017. Justice Clay also reaffirmed his finding in his final decision of March 17, 2017.

[4] The Appellant appealed the order of Clay J. of September 5, 2014 (which found him to be a special party) to the Superior Court of Justice. That appeal was dismissed by Donohue J. on February 9, 2015. An appeal of the decision of Donohue J. to the Court of Appeal was dismissed on September 28, 2015 for lack of jurisdiction. It is, therefore, res judicata that the Appellant met the definition of a special party under Rule 2(1) as of September 5, 2014.

[5] When the Appellant appealed the final order of Clay J. dated March 17, 2017, the Respondent brought another motion to appoint the PGT to represent the Appellant. That motion was granted by Shaw J. Leave to appeal that order was granted, which brings the matter before this court.

[6] Both the PGT and the Respondent appeared on the appeal, but neither took a position on the result. Ms. Burke, as amicus, provided the court with very helpful submissions. The Appellant provided submissions on his own behalf which we have also considered.

[7] For the reasons that follow, we agree that the appeal must be dismissed.

[8] The first issue to be determined is the standard of review.

[9] In Starson v. Swayze, 2003 SCC 32 at para. 84, the court found that the determination of capacity is a question of mixed fact and law:

The question under review is the Board's determination of capacity. This is a question of mixed fact and law: the Board must apply the evidence before it to the statutory test for capacity. In the absence of any error in law, this question is relatively fact-intensive: see Southam, supra, at paras. 35-37. Applying the pragmatic and functional approach to this question, it is clear that reasonableness is the appropriate standard of review.

[10] The Ontario Court of Appeal confirmed that the determination of capacity is a question of mixed fact and law in Gajewski v. Wilkie, 2014 ONCA 897 at para. 33:

Determining whether the appellant was capable of making his own decision regarding treatment with antipsychotic medication required the board to apply, and the appeal judge to review, the evidence before it to the statutory test for capacity set out in s. 4(1) of the Act. In Starson, at paras. 23 and 84, the Supreme Court was unanimous that this is a question of mixed fact and law that is reviewable on a standard of reasonableness. But, a reviewing court should not defer to the board's findings if the board has misunderstood the statutory test.

[11] These decisions relate to the standard of review applicable to a decision of an administrative tribunal regarding capacity. We have not been provided with any authority as to the standard of review applicable to a decision of a court on the same issue, nor have we been able to find any on our own. However, given that it is a “fact-intensive question”, we conclude that the “palpable and overriding error” standard elucidated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 applies. In that case, the Supreme Court of Canada said the following, at para. 36:

To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

[12] Rule 2(1) incorporates, by reference, s. 6 of the Substitute Decisions Act, 1992 (“the SDA”), which defines incapacity in the following terms:

A person is incapable of managing property if the person is not able to understand the information that is relevant to making a decision in the management of his or her property, or is not able to appreciate reasonably foreseeable consequences of a decision or lack of decision.

[13] After having set out the relevant legal authorities, the motion judge set out the appropriate legal considerations from The Childrens Aid Society of the Niagara Region v. WD, [2003] O.J. No. 3244 (S.C.J.) at para. 11:

From what I am able to determine, one is mentally incapable in respect of an issue in a case where one is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the issue.

[14] The motion judge then set out the factors traditionally considered in determining capacity:

a. medical or psychological evidence as to capacity;

b. evidence from persons who knew the litigant well;

c. the appearance and demeanour of the litigant;

d. the testimony of the litigant; and

e. the opinion of the litigant’s own counsel.

[15] She was, however, hampered in her ability to consider all of these factors, since there was no medical or psychological evidence as to capacity, no evidence from persons who knew the litigant well and, as the Appellant was self-represented, there was no opinion from his counsel. There was, however, extensive information relevant to the Appellant’s capacity from Justice Clay, who observed the Appellant over the course of three years as case management judge while the case proceeded in the Ontario Court of Justice.

[16] The motion judge’s observations regarding the Appellant’s behaviour included the following:

• the Appellant appeared at the Brampton courthouse wearing a t-shirt bearing the names of Justice Clay and Justice Donohue to protest their decisions;

• the Appellant wore his t-shirt with the justices’ names to the Respondent’s counsel’s office when serving his materials and photographed counsel’s office;

• the Appellant presented Justice Clay with a “Kangaroo Award”;

• the Appellant created a website about the Respondent’s new husband;

• the Appellant filed a Notice of Action seeking “very strange” relief against various persons;

• Justice Clay had found the Appellant’s materials to be “bizarre” and suggestive of a mental disorder on their face;

• The Appellant related his experience to those of Viola Desmond, Joseph Groia, Black Lives Matter, indigenous persons sent to residential schools, and an individual who was removed from a United Airlines plane.

[17] The motion judge found that the appellant made claims consistent with “obsessive or delusional thinking”.

[18] The motion judge was also aware that, only six months earlier, Justice Clay had found the appellant incapable. While a determination of incapacity is to be made at a specific point in time, amicus submitted, and we agree, that Justice Clay’s prior findings of incapacity were a relevant consideration.

[19] As noted, there was no medical, psychiatric or psychological evidence filed on the motion, nor had any been filed by the Appellant during the proceedings in the Ontario Court of Justice despite having consented, on February 13, 2014, to an order that required him to do so. However, during the course of argument on this appeal, the Appellant filed, on consent, a report dated September 17, 2019 from Dr. Andrew Olagunju, Forensic Psychiatry Fellow at McMaster University, and Dr. Gary Chaimowitz, Head of forensic Psychiatry at St. Joseph’s Healthcare, Hamilton. That report was ordered by Justice Brown pursuant to s. 672.13 of the Criminal Code to determine whether the Appellant was fit to stand trial for various criminal charges. The authors of the report determined that the Appellant was fit to stand trial. The criteria for fitness to stand trial are different than those relating to incapacity, so the report does not address the issues before this court. Nevertheless, it is noteworthy that the report concluded that the Appellant appears to be acting under the influence of persecutory delusions. While there is treatment in the form of medications for these symptoms, it does not appear that the Appellant is taking these medications.

[20] These conclusions are interesting, but are of limited relevance since they speak to the Appellant’s mental state when he was examined in August of 2019. The question before this court is whether the motion judge made a palpable and overriding error in concluding that the Appellant was mentally incapable in October, 2017.

[21] We are satisfied that she did not. There was sufficient information before her to arrive at the conclusion that the Appellant met the definition of a “special person” in Rule 2(1). In that regard, we note that the rule does not require a positive finding of incapacity as defined by the SDA. Instead, it will suffice if the litigant “appears to be” mentally incapable.

[22] Since the motion judge correctly instructed herself on the law, and applied the applicable test for incapacity, she made no error of law either. It follows that the appeal must be dismissed.

[23] We cannot conclude these reasons without addressing an issue raised by amicus curiae. At para. 28 of the motion judge’s reasons, she noted that Justice Clay had invited the Appellant to file medical material with the court regarding his capacity, and he failed to do so. Amicus curiae questioned whether this suggested that the motion judge had reversed the onus and thereby required the Appellant to prove that he was capable.

[24] We reject this submission. The motion judge correctly noted, at para. 14 of her reasons, that there is a presumption that a person has capacity. The passage at para. 28 of her reasons was, in our view, simply context for the observation that followed, which was that no new evidence had been submitted to the court regarding any change in the Appellant’s capacity since Justice Clay’s ruling on September 5, 2014.

[25] Amicus also queried whether the motion judge should have ordered that the Appellant submit to a capacity assessment under s. 105 of the Courts of Justice Act, since there was no medical, psychiatric or psychological evidence before the court. It is unclear whether s. 105 gives a judge authority to order an assessment in the absence of a motion: see 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114 at para. 60. In any event, as reviewed above, in the circumstances of this case, we do not find that the motion judge made an error in finding the Appellant incapable without the benefit of medical evidence.

[26] The Appellant, from his comments to the court, appeared to be motivated to pursue this appeal because he was concerned that this issue of incapacity will continue to haunt him every time he appears in court in the future. For whatever comfort it may give him, we note that the question of incapacity must be determined as a fresh issue in any future proceedings, and that the presumption of capacity will apply as a starting point in the consideration of the issue.

[27] As agreed by all parties, there will be no order as to costs.

HEENEY J.

I agree SWEENY J.

I agree FAVREAU J.

RELEASED: November 8, 2019

CITATION: Must v. Shkuryna 2019 ONSC 6445

COURT FILE NO.: DC-653/17

DATE: 2019-11-09

ONTARIO

SUPERIOR COURT OF JUSTICE

Heeney, Sweeny and Favreau JJ.

B E T W E E N :

ROBERT MUST Applicant

– and –

YANA SHKURYNA Respondent

REASONS FOR JUDGMENT

HEENEY J.

RELEASED: November 8, 2019