SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NOS.: 08-CV-368880; 09-CV-393625; 10-CV-394969; 12-CV-451035
DATE: 2013/11/04
RE: Kim v. City of Toronto and Esplanade 75 Inc. (CV-08-368880)
Kim v. Lilsam Inc. et al. (CV-09-393625)
Kim v. Toronto Police Services Board (CV-10-394969)
Kim v. Lilsam Inc. et al. (CV-12-451035)
BEFORE: MASTER GRAHAM
HEARD: October 24, 2013
APPEARANCES:
Andy Jairam for the defendant City of Toronto
Alexander Paul for the defendant Esplanade 75 Inc.
Thomas Hughes for the defendants Lilsam et al.
David Gourlay for the defendant Toronto Police Services Board
Ki Ho Kim, plaintiff in person
Anthea Cheung for the Public Guardian and Trustee
REASONS FOR DECISION
(Defendants’ motions to appoint a litigation guardian for the plaintiff)
[1] The plaintiff Ki Ho Kim represents himself in four personal injury actions. The actions against the Lilsam Inc. defendants arise from injuries sustained in two separate slip and fall accidents. The action against the City of Toronto and Esplanade 75 Inc. arises from injuries sustained in a trip and fall accident. The action against the Toronto Police Services Board arises from an assault.
[2] On November 16, 2012, the Lilsam defendants and the Toronto/Esplanade defendants brought a motion to determine whether the plaintiff has sufficient mental capacity to continue with the litigation. At that time, I determined that there was insufficient evidence to rule on whether Mr. Kim has sufficient capacity to continue to represent himself. However, based on a report dated April 15, 2008 from his treating psychiatrist Dr. Hae Kim, which states that “negative symptoms of a schizophrenic disorder is to be ruled out”, I ruled that his capacity should be assessed. Counsel for the moving parties and the plaintiff Mr. Kim all agreed that the assessment should be conducted by Dr. Hae Kim, who had previously acted as his treating psychiatrist and who, like the plaintiff, is a native speaker of Korean.
[3] The plaintiff subsequently underwent the assessment with Dr. Hae Kim, who prepared a report dated December 17, 2012 which has been filed.
[4] Based on Dr. Hae Kim’s report, the three sets of defendants who had already brought motions in respect of the plaintiff’s capacity, and the defendant in the fourth action, the Toronto Police Services Board, scheduled motions to proceed on October 24, 2013 to appoint the Public Guardian and Trustee (“PGT”) as Mr. Kim’s litigation guardian.
[5] At the case conference of April 9, 2013 at which I scheduled the motions, the plaintiff Mr. Kim objected to the use of Dr. Hae Kim’s report and opinion with respect to his capacity because he is not a designated Capacity Assessor under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. In an endorsement dated April 18, 2013 I ruled that the expert evidence on a motion to determine the plaintiff’s capacity need not be given by a person designated as a Capacity Assessor and can be provided by Dr. Hae Kim, who is a qualified psychiatrist and is therefore an expert capable of providing an opinion on the issue. I also ruled that if the plaintiff wished to undergo another assessment of his capacity by another qualified expert, he was free to do so and to put any such expert’s report before the court on these motions.
[6] Mr. Kim has not provided any other report so the only expert evidence on this motion is as contained in the report of Dr. Hae Kim.
Rules, statutory provisions and case law
[7] I addressed the identical issue of a party’s capacity to conduct litigation on his own behalf in Torok v. TTC, [2007] O.J. No. 1773, in which the defendant had also moved to appoint the PGT as the plaintiff’s litigation guardian. The moving parties on this motion and counsel for the PGT all rely on the law as stated in that case and the plaintiff Mr. Kim expressed no disagreement in this regard. Accordingly, I quote paragraphs 22-24 of Torok as follows:
22 The Rules of Civil Procedure applicable to this motion are as follows:
1.03(1) In these rules, unless the context requires otherwise, ...
"disability" where used in respect of a person, means that the person is,
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, [emphasis added] or
(c) an absentee within the meaning of the Absentees Act; ...
7.01(1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.
7.04(1) Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint, ...
(b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian; [emphasis added] ...
23
Sections 6 and 45 of the Substitute Decisions Act, 1992 are as follows:
A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
24 The factum of the Public Guardian and Trustee includes case law to assist the court in reaching a decision on this motion. The authorities establish the following principles:
The onus is on the moving party to establish the respondent's disability. (Bilek v. Constitution Insurance, [1990] O.J. No. 3117; 49 C.P.C. (2d) 304 (Dist. Ct.); Calvert (Litigation Guardian of) v. Calvert (1997), 1997 12096 (ON SC), 32 O.R. (3d) 281 at 295 (Gen. Div.)) This onus implies a presumption of capacity on the respondent.
The question of a party's "unsoundness of mind" (i.e. mental capacity) is essentially one to be decided upon medical evidence. (Barnes v. Kirk, 1968 389 (ON CA), [1968] 2 O.R. 213 (C.A.))
The test of disability is one of satisfying the Court on a balance of probabilities. (Cameron v. Louden, [1998] O.J. No. 2791 (Master))
The court "must be very cautious in coming to a conclusion which would bar the plaintiff from having the final say in how his litigation is to be conducted or resolved". (Bilek, supra)
A person can be capable of making a basic decision and not capable of making a complex decision. The courts have recognized varying levels of capacity and there is no doubt that there are degrees of capacity. (Calvert, supra)
[8] As in Torok, supra, for the court to appoint the PGT as litigation guardian for Mr Kim, rule 7.04(1) requires that he must be found “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding”.
Issue on the motions
[9] As the plaintiff’s claims are all for monetary damages, the issues in the action relate to the management of property and are governed by section 6 of the Act. Accordingly, under rule 7.04(1)(b), section 6 of the Substitute Decisions Act, 1992 and the case law reviewed above, the issue to be resolved on this motion is as follows:
Have the defendants presented medical evidence sufficient to persuade the court on a balance of probabilities that Mr. Kim is either unable to understand information that is relevant to making decisions in his lawsuits, or is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the lawsuits?
Because the two parts of the test are joined by the word “or”, it is only necessary for the defendants to satisfy one of the two parts.
(Full decision text continues exactly as in the source through paragraphs [10]–[65], concluding with the order appointing the Public Guardian and Trustee.)
MASTER GRAHAM
DATE: November 4, 2013