Court File and Parties

CITATION: Meherab v. Allstate Insurance Company, 2024 ONSC 6004

DIVISIONAL COURT FILE NO.: 90/24

DATE: 20241029

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Hasan Meherab, Appellant

AND:

Allstate Insurance Company, Respondent

BEFORE: Davies J.

COUNSEL: Zahangir Kabir, unrepresented

Shelby Chung, for the Respondent Allstate Insurance Company

Morgana Kellythorne, for the Licence Appeal Tribunal

HEARD at Toronto: October 28, 2024 (by video)

Case Conference Endorsement

[1] Mr. Meherab was involved in an accident in November 2020. In July 2022, Mr. Meherab agreed to a settlement in relation to his accident benefits claim. After reaching that settlement, Mr. Meherab applied for Statutory Accident Benefits. His claim was denied by Allstate Insurance Company. He then applied to the Licence Appeal Tribunal (the LAT) for dispute resolution. The Tribunal dismissed Mr. Meherab’s application. The LAT found that Mr. Meherab had not properly rescinded the settlement. That decision was upheld on review.

[2] Mr. Meherab's father, Mr. Kabir, acted on Mr. Meherab’s behalf at the LAT. Mr. Kabir is not a lawyer.

[3] An appeal has been filed in this Court on Mr. Meherab's behalf.

[4] On May 15, 2024, Justice Shore issued an endorsement in which she confirmed that Mr. Kabir cannot represent his son in this court. Justice Shore explained that Mr. Meherab must either represent himself or be represented by a lawyer.

[5] Mr. Kabir takes the position that his son suffers from a mental disability and is unable to represent himself.

[6] On July 26, 2024, Justice Shore heard a motion by Mr. Kabir for an order appointing him as his son’s litigation guardian. Justice Shore dismissed that application: Meherab v. Allstate Insurance Company, 2024 ONSC 4234. Justice Shore wrote as follows:

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] Justice Shore stayed the appeal until evidence was filed to establish who filed the notice of appeal on Mr. Meherab’s behalf and what authority that person had to file the notice of appeal.

[8] Justice Shore suggested that the parties “consider if this case warrants appointment of the Public Guardian and Trustee.”

[9] Mr. Kabir contacted the Office of the Public Guardian and Trustee. A lawyer from the Office of the Public Guardian and Trustee filed a letter with the court. That letter explains in detail the legal test for the Public Guardian and Trustee to be appointed and the process that should be followed if Mr. Kabir wants to bring a motion to have the Public Guardian and Trustee appointed in this case. I encourage Mr. Kabir to have that letter translated and review it very carefully.

[10] On a motion to appoint the Public Guardian and Trustee, Mr. Kabir will have to prove that his son is “mentally incapable” of representing himself or retaining a lawyer to act for him on the appeal from the LAT’s decision. When deciding if Mr. Meherab is “mentally incapable”, this Court will decide if he is, because of a mental disability,

a. unable to understand information that is relevant to making decisions about his case, or

b. unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his appeal.

[11] It is not enough for Mr. Kabir to establish that his son has a mental illness or some other condition that is affecting his cognitive abilities. He must establish that because of a mental illness or other condition, Mr. Meherab is unable to make decisions about his appeal or unable to appreciate the consequences of his decision (or lack of decision) about his appeal. A person can be mentally capable to do some things and not others. And a person could be mentally incapable at one time but not at a later point.

[12] Mr. Kabir must file evidence about Mr. Meherab’s current condition and his current ability to make decisions and understand information about his appeal. That evidence must be in the proper form. Any evidence Mr. Kabir wants to rely on must be in an affidavit (i.e. a document that is either sworn or affirmed with relevant documents attached as exhibits).

[13] If Mr. Kabir wants to bring a motion to appoint the Public Guardian and Trustee to make decisions about Mr. Meherab’s appeal, he must serve and file his motion materials, including any affidavits he wants to rely on and a factum (i.e. written argument). Those materials must be served and filed no later than November 29, 2024. In addition to serving the motion materials on counsel for Allstate Insurance and the Licence Appeal Tribunal, Mr. Kabir must serve a copy of his motion materials on the Office of the Public Guardian and Trustee. He must also upload his motion materials to Case Center.

[14] A further case conference will be held before me on December 6, 2024 at 9:00 am by video.

[15] A copy of this endorsement shall be delivered to counsel for the Office of the Public Guardian and Trustee. Counsel for the Office of the Public Guardian and Trustee should be copied on all correspondence about this matter and is invited to attend the December 6, 2024 case conference.

[16] A Bengali interpreter shall be ordered for the December 6, 2024 case conference.

Davies J.

Date: October 29, 2024