Court File and Parties

CITATION: Meherab v. Allstate Insurance Company, 2024 ONSC 4234

DIVISIONAL COURT FILE NO.: 090/24

DATE: 2024-07-26

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE:

HASAN MEHERAB

Appellant

AND:

ALLSTATE INSURANCE COMPANY

Respondent

COUNSEL: Kabir, moving party on motion Shelby Chung, for the Respondent

BEFORE: Shore J.

HEARD: July 26, 2024

Endorsement

[1] In accordance with my direction, dated May 17, 2024, Mr. Kabir brought a motion under r. 7.01 to act as a litigation guardian for the appellant, Mr. Meherab, on his appeal of the decision of the Licence Appeal Tribunal (LAT), dated November 6, 2023, and the review decision, dated January 8, 2024. For the reasons set out below, the motion is dismissed.

[2] Mr. Meherab was involved in a motor vehicle accident. In July 2022, he entered into an agreement with his insurer, Allstate (the respondent to this appeal). The appeal relates to whether certain benefits are covered by the settlement reached between the parties, which settlement includes a full and final release, or whether Mr. Meherab can seek additional benefits from the insurance company, which benefits he alleges were not included in or subject to the agreement.

[3] Mr. Meherab is currently residing in Bangladesh. Mr. Kabir represented Mr. Meherab during the LAT proceedings. Mr. Kabir wants to represent Mr. Meherab in the appeal. Mr. Kabir is not a lawyer.

[4] In past attendances before this court, it was explained to Mr. Kabir that under r. 15.01 of the Rules of Civil Procedure, parties can act in person or can be represented by a lawyer. Mr. Kabir cannot represent the appellant, as he is neither a lawyer nor a party to these proceedings.

[5] Mr. Kabir advised the court that Mr. Meherab suffers from a mental disability and is unable to represent himself. The court suggested that Mr. Kabir review the requirements under r. 7.02, as to who can act as a litigation guardian and under what circumstances.

[6] Mr. Kabir brought this motion under r. 7.02, to be appointed as a litigation guardian for Mr. Meherab in the appeal. Mr. Kabir’s motion to act as litigation guardian must fail for the following reasons:

(a) He failed to file an affidavit in support of his motion, as required under r. 7.02(2).

(b) He failed to confirm that he has given written authority to a named lawyer to act in the proceedings.

(c) He failed to file an affidavit with evidence concerning the nature and extent of the disability.

(d) He failed to set out his relationship, if any, to Mr. Meherab.

(e) He failed to advise whether he has an interest in the proceeding adverse to that of Mr. Meherab.

(f) He failed to acknowledge that he has been informed of his liability to pay personally any costs awarded against him or against the person under disability.

[7] In other words, Mr. Kabir failed to meet most, if not all of the requirements under r. 7.02(2). In addition, as set out in r. 7.05(3), even if Mr. Kabir is appointed as a litigation guardian, he must still retain a lawyer to represent Mr. Meherab, and it is only then that Mr. Kabir can provide instructions to the lawyer as a litigation guardian.

[8] Finally, if Mr. Meherab is disabled because of the accident and therefore unable to provide instructions to counsel, I question how the notice of appeal was served and filed without a litigation guardian being appointed by the Court. I have addressed this issue below.

A notice of appeal of the decision of the Licence Appeal Tribunal (LAT), dated November 6, 2023, and the review decision, dated January 8, 2024, was filed on Mr. Meherab’s behalf. Given the information set out below, the appeal was likely filed without proper instructions or authority.

[9] Order to go as follows:

(a) The motion by Mr. Kabir to act as litigation guardian for Mr. Meherab is dismissed.

(b) The appeal is stayed until evidence has been filed with the court as who filed the notice of appeal (if it was not done by Mr. Meherab or his lawyer) and the authority under which they acted for Mr. Meherab.

(c) The parties shall attend a further case management conference by which time the abovementioned evidence shall be filed with the Court. If the appeal was commenced without proper authority, the appeal may be struck by the conference judge.

(d) The Court Registrar shall provide the parties with a date for the case management conference. The parties should consider if this case warrants appointment of the Public Guardian and Trustee.

Shore J.

Date: July 26, 2024