ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-294, 7175/94, 3206/93
DATE: 2012-03-22
BETWEE N:
PUBLIC GUARDIAN AND TRUSTEE
C. Walters, for the Applicant
Applicant
- and -
FRANK LICO
C. Argiropoulos, for the Respondent
Respondent
AND BETWEEN:
FRANK LICO, by his Litigation Guardian, the Public Guardian & Trustee
C. Walters, for the Plaintiff
Plaintiff
- and -
CANADIAN GENERAL INSURANCE GROUP and CANADIAN GENERAL INSURANCE COMPANY and TRADERS GENERAL INSURANCE COMPANY and SCOTTISH & YORK INSURANCE CO. LIMITED and VICTORIA INSURANCE COMPANY OF CANADA
A. Lennox, for the Defendants
Defendants
AND BETWEEN:
FRANK LICO, by his Litigation Guardian, the Public Guardian & Trustee
C. Walters, for the Plaintiff
Plaintiff
- and -
JOHN GRIFFITHS
A. Lennox, for the Defendants
Defendant
HEARD: February 3, 2012
The Hon. Mr. Justice Arrell
JUDGMENT
Introduction:
[ 1 ] Mr. Lico was involved in a motor vehicle accident on August 30, 1991 in the city of Hamilton. On March 18, 2008 Mr. Justice Lofchik appointed the Public Trustee and Guardian to be his Litigation Guardian in the personal injury action he had commenced as a result of this accident. The public trustee, through counsel, reached a tentative settlement with the defendants, subject to the approval of this court.
[ 2 ] The Public Trustee brings this application to approve the settlement. It also seeks to be appointed the guardian of property for Mr. Lico under s. 22 of the Substitute Decision Act , 1992, S.O. 1992, C. 30 .
[ 3 ] Mr. Lico opposes both applications.
Facts :
[ 4 ] Mr. Lico was born on April 3, 1950. He currently lives alone. He has not been employed since 1977. His sole sources of income are C.P.P. and some irregular spousal support.
[ 5 ] Mr. Lico is married to Linda. They separated in 1994. They had a son who is estranged from him. Mr. Lico requested that the Public Trustee not serve his wife or son with these applications. His wife, however, is aware of these hearings as she has filed a letter with court.
[ 6 ] On August 30, 1991, at approximately 3 pm Mr. Lico was riding his bicycle past several parked cars when the defendant, Mr. Griffiths, opened his car door into his path. He was knocked off his bike and injured.
[ 7 ] An extensive medical brief has been filed and reviewed by this court. The initial injuries appeared to be a meniscal tear with the development of a cyst, nerve root lesions in the lumbar spine and soft tissue injuries to the right knee and back. Over time, Mr. Lico appears to have developed chronic pain and depression. He appears before me in a motorized scooter.
[ 8 ] As can be seen this litigation is now into its’ 21st year. Its’ history through the courts has been agonizing.
[ 9 ] In 1993 a tort claim was brought against Mr. Griffiths. In 1994 a claim was brought for accident benefits. By 1999 both claims had gone through the discovery process and pre-trial stage. They had been placed on and removed from trial lists on several occasions.
[ 10 ] Over the course of the litigation Mr. Lico has retained, and dismissed, five different lawyers, all with established reputations in personal injury litigation. Quite simply, Mr. Lico then, and before me now, contends that his damages are worth substantially more than was offered then or now. He has adamantly refused to follow the consistent advice of any of his lawyers. In essence he believes his injuries from the accident caused his marriage breakdown, estrangement from his son, his total inability to work since the accident, and every medical and mental problem that he currently experiences.
[ 11 ] This litigation continued to languish between 1999 and October 2004. During those five years, the defence obtained several procedural orders, costs awards, and had interest suspended. None of the costs have been paid by Mr. Lico. Finally, in October 2004 a Superior Court judge endorsed the record as follows:
“this action has reached the point of real prejudice to the defendant's. The plaintiff has no plan to bring the trial forward. Justice requires finality. These actions will either be tried or dismissed on June 30, 2005. It is for the plaintiff to prosecute this action forthwith. This order is pre-emptory on the plaintiff and is without exception.”
[ 12 ] On the eve of that trial, which somehow got postponed to September 2006, Mr. Lico wrote the Regional Senior Justice indicating he was unable to reduce his medication to achieve a clear mind to enable him try his case and asked to have the Public Guardian and Trustee appointed as his Litigation Guardian. The defence subsequently brought such a motion.
[ 13 ] Dr. Malloy, a recognized expert in capacity assessments, assessed Mr. Lico and found him to be incapable of managing his property. The Public Guardian opposed the motion; however, on March 8, 2008 Mr. Justice Lofchik found Mr. Lico to be a party under a disability and appointed the Public Trustee to be his Litigation Guardian. He also made it explicit in his order that the Public Trustee was the substitute decision-maker on behalf of Mr. Lico regarding this litigation.
[ 14 ] The Public Trustee retained Mr. Jamie Pollock of Laxton Glass LLP., an experienced personal injury litigator, to represent Mr. Lico. He provided an in-depth written analysis of the case, listing numerous risk factors including a serious lack of evidence to prove certain heads of damage. I have reviewed that analysis and agree with it. There is a substantial probability that Mr.Lico would be able to prove very little at this late stage of his litigation.
[ 15 ] The Mr. Lico has refused to undergo medical examinations arranged by the defence, or to undergo a psychiatric assessment to determine his current condition.
[ 16 ] Mr. Pollack entered into settlement negotiations with the defendant's and all the lawyers appeared before me at a pre-trial on January 13, 2011. At that time a resolution was arrived at in an all inclusive amount of $270,420.00. The five previous law firms have agreed to waive their fees.
[ 17 ] A teleconference was arranged between Mr. Lico and Mr. Pollack by the Public Trustee to discuss the settlement; however Mr. Lico refused to participate. He finds the offer to settle totally unacceptable, mostly because of the way it was presented in not setting out amounts under specific heads of damages.
[ 18 ] The matter first came before me on June 30, 2011 for approval. Mr. Lico appeared and requested an adjournment to retain counsel. The matter was adjourned to August 12, 2011 to allow him to do so. On that date he did not have counsel and sought a further adjournment, which was granted.
[ 19 ] Mr. Lico has filed a letter from his estranged wife who states that he was a stay at home dad at the time of the accident and was going to return to work when their son was older. She believes he is quite capable of managing his affairs and the accident is the cause of his current condition and his inability to work. She has not filed an affidavit, nor has she appeared to give evidence under oath.
[ 20 ] I also accepted a letter from Mr. Lico's family Dr. that states that he is capable of looking after his affairs from “noon until the end of the day”. I assume prior to noon that he is not.
[ 21 ] Mr. Lico finally retained counsel and all parties made their final submissions to me on February 3, 2012. At that time I accepted a medical report from a Dr. Gagnon dated November 2011. He was seeing Mr. Lico on a referral from his family doctor for his “memory deficit” not as a capacity assessor. The Doctors speciality is not noted on the report, however, the letter comes from a geriatric medicine clinic. The Doctor does not appear to have done any independent testing. She offers the opinion that she could not discern a significant cognitive disorder. I find her opinion of very limited value since her qualifications are not listed and she was not seeing Mr.Lico for a capacity assessment as was Dr. Malloy. I prefer his opinion on the issue.
[ 22 ] Mr.Lico has not filed tax returns since 2000. He has been arbitrarily assessed by the CRA as owing $56,607.56 in taxes with interest accruing daily. No plausible explanation has been given by Mr.Lico as to why this situation has been allowed to occur. He tells me “he will look after it”. The Public Trustee believes it can be of assistance in this tax matter, as well as seeking further assistance through several other government agencies that would likely increase his benefits and medical assistance. To date he has not applied for any of this extra assistance and instead has been living on $700.00 per month.
Conclusion:
[ 23 ] I have no hesitation in concluding that the settlement arrived at is in Mr. Lico's best interest. It should be accepted. I agree with the detailed analysis of Mr. Pollock; to proceed further is fraught with risk. Witnesses are no longer available, evidence would be next to impossible to accumulate, and quite frankly, many of the positions put forward by Mr. Lico are without merit, based on the information before me. The length of time required to ultimately get to trial after Mr. Lico attends defence medicals could add substantially to the further delay of this matter, making a fair trial next to impossible. The fee being charged by Mr. Pollack is very reasonable and the waiving of fees by his previous five law firms is indeed in the best traditions the bar, making the proposed settlement even more advantageous for Mr. Lico. This matter must be finalized and the current proposal is fair and reasonable to all parties and will be acted upon in the best interests of Mr.Lico.
[ 24 ] The onus of establishing that a party is unable to manage his property lies with the party making the allegation. Sosnowski v. Johnson [2006] O.J. No. 3731 (Ont.C.A.)
[ 25 ] I also conclude that Mr. Lico is not capable of managing his property. The evidence is clear, and is confirmed by Dr. Malloy’s opinion, that Mr. Lico is not able to understand information relevant to the decision-making and management of his property, nor is he able to appreciate the consequences of a decision, or lack thereof, around his property or finances. This is evident from the history of this matter, his failure to file tax returns or deal with what may be owing, his failure to seek out further benefits to which he is likely entitled, his social isolation, his lack of family support, and the extensive medical information available. Justice Lofchik came to a similar conclusion four years ago and the evidence to support that conclusion has only increased since then. In all the circumstances this court must reach the inescapable conclusion that Mr. Lico is unable to manage his affairs and this rather large sum of funds which I have just approved.
[ 26 ] The Public Trustee has filed a plan for dealing with Mr. Lico's property, which is both reasonable and prudent. I approve of that plan. No one else has come forward willing to fill the role of guardian of property for Mr. Lico.
[ 27 ] This court therefore orders the following:
This Court Orders that the proposed settlement of Mr. Lico's litigation regarding a motor vehicle accident in which he was involved on August 30, 1991 is approved in the gross amount of $270,042.00.
This Court declares that the respondent, Frank Lico, is incapable of managing his property and, as a result, it is necessary for decisions to be made on his behalf by a person who is authorized to do so.
This Court Further Orders the appointment of the Public Guardian and Trustee as the guardian of the property of the respondent, Frank Lico, pursuant to section 22 of the Substitute Decision Act, 1992.
ARRELL, J.
Released: March 22, 2012
COURT FILE NO.: CV-11-294
DATE: 2012-03-22
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: PUBLIC GUARDIAN AND TRUSTEE Applicant - and - FRANK LICO Respondent REASONS FOR JUDGMENT ARRELL, J.
Released: March 22, 2012