ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-CV-53189
DATE: 2012/05/25

BETWEEN:

THE PUBLIC GUARDIAN AND TRUSTEE
Applicant

– and –

MARTIN SOMBERG
Respondent

Elaine F. Rufiange, for the Applicant
Neither present nor represented

HEARD: May 22, 2012

REASONS FOR DECISION

ANNIS J.

[ 1 ] This is the second step of an application by the Public Guardian and Trustee (“PGT”) requesting that it be appointed Guardian of the property of the respondent and that he submit to an examination for the purpose of completing an Occupational Health Assessment Report, along with related enforcement orders to ensure compliance.

[ 2 ] Mr. Somberg is presently an employee of the Office of the Inspector General, Canadian Security Intelligence Service within the Department of Public Safety Canada. He apparently became ill in 2006 [much of the evidence that the court relies on is hearsay] and has been on continuous leave from work since that time. In 2009, Mr. Somberg completed a fitness for work assessment performed through Health Canada. It confirmed that he was unfit for work for the foreseeable future.

[ 3 ] In May 2011, the PGT received information from Mr. Somberg’s employer that the respondent appeared to be incompetent with respect to his finances and was further at risk of incurring serious financial losses by not completing the necessary documentation to qualify for employment related disability benefits. He is presently financially destitute and homeless, living at The Ottawa Mission, a shelter for homeless people.

[ 4 ] Mr. Somberg’s employer wishes to help him qualify for a disability pension and disability insurance benefits. However, Mr. Somberg has not responded to their correspondence.

[ 5 ] While the employer has sufficient cause to terminate Mr. Somberg’s employment on the basis of his incapacity, it has not gone forward in the hope that the PGT could assist Mr. Somberg in accessing his employment disability benefits. These are being denied because he has failed to participate in an Occupational Health Assessment.

[ 6 ] Employees at The Ottawa Mission have indicated that Mr. Somberg was unwilling to agree to a capacity assessment pursuant to s. 79 of the Substitute Decisions Act , 1992 (“the Act ”) despite being aware of the purpose for which it was being requested. I conclude that he would similarly be unwilling to agree to an Occupational Health Assessment.

[ 7 ] As a result of the foregoing situation the PGT quite appropriately brought this application.

[ 8 ] The matter first came before McLean J. on February 2, 2012. Mr. Somberg appeared on the return of the application. He also filed a handwritten responding notice of motion and supporting affidavit seeking to dismiss the application. I do not find his materials to be helpful in addressing the issues before the court.

[ 9 ] McLean J. was not in a position to respond to most of the application without a capacity assessment. He therefore limited his order to the requirement that Mr. Somberg undergo an assessment of his capacity to manage property pursuant to s. 79 of the Act . I note that he ordered this assessment to take place at The Ottawa Mission where Mr. Somberg resides.

[ 10 ] Dr. Barbara Collins conducted an examination of Mr. Somberg on April 1, 2012. She concluded that Mr. Somberg is incapable of managing property. Specifically, she opined that his failure to apply for disability benefits is due to his lack of insight into his mental illness and his delusional beliefs that he is being falsely diagnosed as part of a conspiracy against him.

[ 11 ] She adds that his mental illness has resulted in him being homeless and financially destitute, noting that both he and his son are now at risk of losing valuable health benefits.

[ 12 ] The PGT filed Dr. Collins’ supplementary report and now seeks to complete its application. This includes an order pursuant to s. 22 of the Act appointing it Guardian of the property for the respondent.

[ 13 ] The PGT also seeks an order requiring the respondent to submit to an examination for the purpose of completing an Occupational Health Assessment Report. It relies upon s. 105 of the Courts of Justice Act , R.S.O. 1990, c. C.43 (mental health examination/assessment) for that purpose.

[ 14 ] To ensure compliance with the order to complete an Occupational Health Assessment Report, the PGT seeks an ancillary order that, upon request, the police be directed to assist the applicant and physicians involved in the assessment, including if necessary, to apprehend Mr. Somberg, for assessment, treatment and placement at the Ottawa Hospital or other hospital as directed by the PGT.

[ 15 ] On the basis of Dr. Collins’ capacity assessment and the other material filed, I am prepared to grant an order appointing the applicant as Guardian of property for Mr. Somberg.

[ 16 ] In addition, I am in agreement that an order should issue requiring Mr. Somberg to submit to an examination for the purpose of completing an Occupational Health Assessment Report and related documentation.

[ 17 ] I also order that the PGT be provided with all health and financial records as more particularly described in the draft order submitted to the court at the hearing so as to permit the PGT to fulfill its mandate as Guardian of the property of the respondent.

[ 18 ] I am not however prepared at this time to direct that the examination take place at a hospital. In my view it should be held at The Ottawa Mission where Mr. Somberg resides. I am also not prepared to order the intervention of the police or other enforcement stipulations at this time should Mr. Somberg not comply with my order.

[ 19 ] I see no reason to change the site of the examination from where Mr. Somberg resides or to make provisions for the involvement of the police and Mr. Somberg’s possible apprehension. The respondent complied with the order of McLean J. requiring the capacity assessment to take place where Mr. Somberg resides and the order did not contain enforcement provisions.

[ 20 ] I also note that pursuant to s. 79(4) of the Act , examinations for the purpose of determining a person’s capacity should be performed, if possible, in the person’s home. It seems to me that a similar approach should apply to an Occupational Health Assessment to accommodate the respondent’s condition, particularly as it worked well for the first examination.

[ 21 ] If Mr. Somberg refuses to comply with the order to complete an Occupational Health Assessment examination, the PGT may return before the court to seek a supplementary order intended to complete the Occupational Health Assessment examination.

[ 22 ] In my view such an order should be brought pursuant to s. 39 of the Act which permits the court to give directions on any question arising in connection with the guardianship as the court considers to be for the benefit of the person and his or her dependants and consistent with the Act . This direction could include an order pursuant to s. 105 of the Courts of Justice Act requiring an order for an Occupational Health Assessment examination.

[ 23 ] I have also given consideration to the requirement both in this hearing, and if future procedures are required, that the PGT arrange for legal representation to be provided to Mr. Somberg pursuant to s. 3 of the Act where issues of his capacity arise. I note that Mr. Somberg apparently has legal training, although the medical evidence would tend to suggest that it would not serve him where he suffers mental illness incapacities which perhaps is reflected in the materials he filed with the court.

[ 24 ] In any event, given that Mr. Somberg is destitute, I do not think that legal representation to represent his interests would serve much purpose where the primary objective of the order sought would be to have him complete an Occupational Health Assessment for his financial benefit and that of family members.

[ 25 ] If it becomes necessary to return before the court, Mr. Somberg should be served personally with the PGT’s materials to ensure that he has notice of any future proceedings seeking to enforce my order. This would enable him to speak to the matter and might additionally facilitate his participation in the occupational health assessment.

[ 26 ] The PGT may provide the court with a further draft order for my signature incorporating the following paragraphs from its draft order submitted at the hearing: Paragraphs 1, 2, 3 (providing however that examination shall take place at The Ottawa Mission or any other shelter where the respondent resides and authorizing the physician conducting the examination to enter the respondent’s residence for that purpose) 6 and 7(incorrectly numbered 4).

[ 27 ] I make no order as to costs.

Mr. Justice Peter Annis

Released: May 25, 2012

COURT FILE NO.: 11-CV-53189

DATE: 2012/05/25

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: THE PUBLIC GUARDIAN AND TRUSTEE Applicant – and – MARTIN SOMBERG Respondent REASONS FOR DECISION Annis J.

Released: May 25, 2012