Court File and Parties

COURT FILE NO.: 05-CV-4143 CM DATE: 20131213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gerald Potvin, Julienne Potvin and David Potvin by his Litigation Guardian the Public Guardian and Trustee, Plaintiffs

AND:

Windsor Police Services Board, Defendant

BEFORE: Bondy J.

COUNSEL: David Potvin, acting in person Gerald Potvin, acting in person No one appearing for Julienne Potvin Charles W. Walters and Paula DeBoer, for the Public Guardian and Trustee No one appearing for the Defendant

HEARD: December 9, 2013

ENDORSEMENT (Amended)

(An amendment has been made to the Heard date. It originally read December 9, 2014. It has now been amended to December 9, 2013.)

A. INTRODUCTION

[1] This is a motion pursuant to rule 7.08 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 (“the Rules”) by the Public Guardian and Trustee (“PGT”) for approval of a settlement entered into on behalf of David Potvin (“Mr. Potvin”). The minutes of settlement propose resolution of any and all claims advanced by Mr. Potvin by way of dismissal of the action on a without cost basis.

[2] Mr. Potvin opposes the motion.

[3] To be clear, it is only the interests of Mr. Potvin and not those of the plaintiffs Gerald Potvin and Julienne Potvin which are the subject of this motion. According to counsel for the PGT, the claims of Gerald Potvin and Julienne Potvin have already been concluded.

B. PRELIMINARY RULINGS

[4] There were several preliminary rulings.

[5] First, at the request of the office of the PGT the style of cause was amended to read “Gerald Potvin, Julienne Potvin and David Potvin by his litigation guardian the Public Guardian and Trustee, Plaintiffs and Windsor Police Services Board, Defendants”.

[6] Second, an order was made on consent allowing Gerald Potvin to sit at counsel table in order to assist his son David Potvin in this motion. This is to avoid a conflict of interest with the PGT for the purposes of this motion. Rule 7.02(1) allows any person who is not under a disability to act as litigation guardian.

[7] Third, an order was made on consent of the PGT, David Potvin and Gerald Potvin appointing Gerald Potvin as David Potvin’s litigation guardian only for purposes of this motion. That is because of the perception on the part of the Potvins that the interests of the office of the PGT are not necessarily the same as those of David Potvin for purposes of this motion.

[8] Fourth, a request by David Potvin to compel the office of the PGT to retain and pay for a lawyer on behalf of David Potvin was denied. The office of the PGT concedes that the request was made. They however advised that such requests are never granted.

[9] I begin with the observation that the Charter does not in terms constitutionalize the right of an indigent person to be provided with funded counsel. While I am aware that where an individual’s right to a fair trial when life liberty or security of the person is at stake Charter principles require funded counsel to be provided to an accused person where that person wishes to be represented by a lawyer but cannot afford to pay for one (see: R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1). Here, Mr. Potvin’s liberty is not at stake.

[10] There are two components to the Potvins’ request. The first is that they are asking the PGT to choose a lawyer on their behalf for the purposes of this motion. The second is that they are asking the PGT to pay for that lawyer. Each poses a problem.

[11] As to the first, I can think of no way that the PGT could choose a lawyer to purportedly act against its own position without raising a reasonable apprehension of bias. It is a fundamental tenet of our legal system that a lawyer must be independent and consider no interests other than those of their client. The PGT cannot recommend or choose a lawyer to argue against its position without raising a reasonable apprehension of bias in their recommendation as it raises a conflict of interest. Legal advice should not come from a lawyer recommended by another person who is adverse in interest.

[12] As to the second, the position of the PGT position that they do not pay for a lawyer finds some support in s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. That section provides where the capacity of a person who does not have legal representation is in issue the court may direct the PGT to arrange for legal representation. That section however also provides that the person is themselves responsible for the legal fees in the event no certificate is issued under the Legal Aid Services Act, 1998, S.O. 1998 c. 26. While I am aware that the issue of Mr. Potvin’s capacity has already been decided in the context of this litigation I find the section instructive in understanding the position of the PGT.

[13] Further, the office of the PGT has already provided funding for two of their internal lawyers to review Mr. Potvin’s case, and also provided funding for an extensive opinion from an outside lawyer with expertise in matters such as that confronting Mr. Potvin. Those lawyers have concluded that Mr. Potvin is unlikely to be successful at trial. The resources of the office of the PGT are limited, and allocation of those scarce resources must be based on a cost/benefit analysis in the discretion of that office. I can see no reason on the facts of this case to interfere with that discretion.

[14] Finally, I was led to believe by Gerald Potvin that they had applied for legal aid but declined. Legal aid is the primary source of funding for indigent litigants. While I am aware that the legal aid fund is under great strain and accordingly not responsive to all the needs of all those who apply for funding, I did give some weight to that decision in reaching my conclusion.

[15] For all of these reasons Mr. Potvin’s request for legal counsel funded at the expense of the office of the PGT for purposes of this motion was declined.

[16] Fifth, at the conclusion of the other preliminary matters it became apparent Mr. Walters intended to argue the merits of the case on behalf of the office of the PGT based upon his own affidavit. I advised Mr. Walters of the impropriety of a lawyer appearing as both a witness and counsel in the same case. Mr. Walters agreed. As a result there was a brief adjournment to allow the office of the PGT to retain alternate counsel to argue the motion. Ms. Paula DeBoer was retained, and it was she who argued the motion.

C. BACKGROUND

[17] By way of background, Mr. Potvin was born with a number of mental and physical health issues.

[18] An action was commenced January 5, 2005, for injuries allegedly received by Mr. Potvin at the hands of the Windsor police on or about May, 2004. According to the police reports, the chain of events began when a police officer observed a car being driven by Mr. Potvin run three stop signs. The officers activated their lights, but the car being driven by Mr. Potvin did not stop until it turned into 1017 Ouellette Ave. where he was then living with his parents. The police maintain that when they requested identification, Mr. Potvin said, “fuck you” and ran toward the house. At that point one of the officers acknowledges having sprayed Mr. Potvin with pepper spray. Mr. Potvin went into the house and the officers followed with permission from its owner. According to the police, Mr. Potvin was arrested inside the house after a short duration of being combative. The police acknowledge “a small scrape on his forehead” but claimed not to know how it occurred. According to Mr. Potvin, he suffered a head laceration and trauma as a result of the police officers exercising excessive force while placing him under arrest.

[19] Mr. Potvin claims general damages of $275,000 and exemplary aggravated and/or punitive damages in the amount of $125,000. There were separate claims made by the other two plaintiffs Gerald Potvin and Julienne Potvin. The action was commenced on behalf of all three plaintiffs by Claudio Martini, a Barrister and Solicitor. Mr. Potvin filed the notice of intention to act in person in May of 2008, and accordingly was self-represented until October 29, 2012.

[20] On October 29, 2012, an order was made by Nolan J. finding that Mr. Potvin “is a person under disability within the meaning of Rule 7 of the Rules of Civil Procedure”. “Disability” in the context of that rule means mentally incapable of managing property and/or personal care within the meaning of s. 6 and/or s. 45 respectively of the Substitute Decisions Act 1992, SO 1992, c 30 (see: Rule 1.03).

[21] I would be remiss if I did not address the criticism of that order that is expressed in the letter of opinion of Mr. Spencer S. Nicholson proffered by the office of the PGT in support of this motion. In that letter of opinion, for reasons that are not quite clear (because there is no evidence it was within the scope of his retainer), Mr. Nicholson states he doubts that Dr. Berek’s report of June 30, 2006 would be sufficient make a finding of lack of capacity pursuant to s.6 and/or s.45 of the Substitute Decisions Act. To be clear this position was not adopted by the PGT.

[22] I find the scope of Mr. Nicholson’s observations overly narrow. The law is clear that capacity is not a static or all-encompassing concept. Capacity varies from time to time and from issue to issue (see: Banton v. Banton, 1998 14926 (ON SC), [1998] O.J. No. 3528, 164 D.L.R. (4th) 176, at para. 43 and Countess of Portsmouth v. Earl of Portsmouth (1828), 1 Hagg. Ecc. 355 (Ecc.), at pp. 362-3). Recognition of that reality was the underlying reason for the fundamental changes in mental health legislation which occurred in 1996. It seems to me that these changes were instituted with two objectives in mind. The first is to give everyone the greatest autonomy possible. The patriarchal notions of the past have been replaced with recognition that society has an obligation to encourage each individual to be all that they can be. The second objective of those laws is to recognize society’s obligation to protect its most vulnerable members when tasks are simply beyond their capacity. Nolan J. found this to be a case where it was necessary to engage the latter objective in order to protect Mr. Potvin from circumstances that were beyond his capability. That does not mean for example that she found Mr. Potvin is not capable of doing his own banking, or making purchases, or conducting many of the tasks which confront each of us in our daily lives. Rather, she found only that this particular task was beyond his capacity. Consistent with that conclusion the office of the PGT advised that they do not manage Mr. Potvin’s financial affairs. It follows that that office interpreted the legislation, and the order of Nolan J. in the same manner as do I. Their only involvement with Mr. Potvin is in their capacity as litigation guardian in the litigation which is the subject of this motion.

[23] I reiterate that Mr. Potvin had made a decision to conduct this litigation without the benefit of counsel. In that context, the issue confronting Nolan J. was whether or not Mr. Potvin was able to understand information relevant to the making of decisions regarding this litigation, and whether he is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Understanding the law as it applies to litigation is no small task. As an example, those trained in the law such as lawyers and judges often disagree with each other in that regard.

[24] The circumstances of this case overwhelmingly support the conclusion that the conduct of this litigation was beyond Mr. Potvin’s capacity. I offer the following examples in support of that conclusion.

[25] The report of Dr. Berek referred to by Mr. Nicholson concludes that Mr. Potvin has a full scale intelligence quotient of 68 which is at the 2nd percentile rank. He opines that Mr. Potvin is functioning “in the extremely low range of psychometric cognitive/intellectual functioning”. He goes on to conclude that Mr. Potvin is “developmentally challenged” and meets the DSM-IV diagnostic criteria for “mild mental retardation”.

[26] Mr. Potvin’s psychiatrist wrote a letter dated May 16, 2011, in support of a request for an adjournment. In that letter Dr. Boss advises that Mr. Potvin has an intellectual disability and has exceptional difficulty handling his emotions in the face of the stresses he faces as a result of the litigation. Dr. Boss concludes that Mr. Potvin has a resulting inability to act in his own best interests in the context of this litigation.

[27] Finally, both Gerald Potvin and David Potvin agreed today that David Potvin does not have the ability to continue this litigation without the benefit of a litigation guardian. In support of that position Gerald Potvin represented that there was a letter in the process of being typed by his son’s psychiatrist, Dr. Boss, confirming that conclusion and supporting the proposition that Gerald Potvin be appointed as litigation guardian for David Potvin. Although no evidence was presented supporting that communication, I have no reason to disbelieve Gerald Potvin. Further, having had the benefit of hearing Mr. Potvin in court today, I say with the greatest of respect that I am left with no doubt that he does not have the capacity to make the necessary decisions to conduct this litigation on his own behalf.

D. THE POSITIONS

1) The Position of the Public Guardian and Trustee

[28] An affidavit was filed by Charles W. Walters (“Mr. Walters”), who is counsel in and for the office of the PGT.

[29] Mr. Walters advises that the central allegation in Mr. Potvin’s claim is that he was struck in the head by the police and that the injury will cause him significant problems for the rest of his life. The position of the defence is that Mr. Potvin was not struck at all but even that if he was struck Mr. Potvin’s problems have nothing to do with the alleged injury.

[30] Mr. Walters’ affidavit conveys an exhaustive review of the documentary evidence and that he has communicated extensively with both counsel for the defendant, and Mr. Nicholson, who was retained by the office of the PGT to give an independent evaluation of the merits of Mr. Potvin’s case.

[31] A number of themes arise in Mr. Potvin’s affidavit and Mr. Nicholson’s opinion.

[32] The first is that although there is evidence Mr. Potvin sustained an injury to his head, there are issues as to both damages and liability regarding that injury. As to damages, a CT scan performed the day after Mr. Potvin received the injury revealed only a superficial scalp laceration. The results were otherwise normal. As to liability, there is no evidence other than Mr. Potvin’s assertion demonstrating that the injury to his head was caused by the police. There were no eyewitnesses, and the police deny that the alleged assault occurred.

[33] The second is the conclusion that Mr. Potvin would be a poor witness at trial and accordingly the chances of success would be remote. As an example, Mr. Potvin has in the past been inconsistent as to whether the alleged assault had occurred inside or outside his house. As another example, Mr. Nicholson concluded upon reading the transcript of Mr. Potvin’s discovery that he struggled as a witness, his answers were very tangential and often unresponsive to questions posed, and that he was “a terrible witness”. To be clear, Mr. Potvin was represented by counsel at the discoveries.

[34] Third, Mr. Nicholson advises that Mr. Potvin had very significant pre-existing problems prior to the alleged head injury. According to the report of Dr. Graham, Mr. Potvin has “developmental disabilities and possibly mental health issues”. Dr. Graham concludes that the mental health issues “are playing a huge role in his current presentation”. Mr. Nicholson concludes that it would be difficult for Mr. Potvin to demonstrate that his situation is different now than it was before the incident. As a result, damages in that regard are unlikely.

[35] Finally, Mr. Nicholson estimates general damages at a maximum range of $5,000-$20,000 and punitive, and aggravated or exemplary damages at a maximum range of $10,000-$25,000 in a best case scenario. I reiterate Mr. Nicholson concludes that Mr. Potvin would be a “terrible witness” and concludes that it is unlikely that there would be any damages award whatsoever unless the police are terrible witnesses. Accordingly Mr. Nicholson predicts that the most likely outcome for Mr. Potvin is costs awarded against him should the litigation continued.

2) The position put forth by Gerald Potvin on behalf of David Potvin

[36] Gerald Potvin made a number of arguments on behalf of Mr. Potvin. There were several overarching themes to those arguments. They are as follows:

1. Gerald Potvin initially argued that there had not been adequate communication between the office of the PGT and Mr. Potvin. In support of that proposition he produced Exhibit 1, which is a December 3, 2013 e-mail to Nicolas Hedley. He initially told me the e-mail had never been answered. Later in Gerald Potvin’s presentation he asserted that he was having difficulty getting Mr. Hedley’s e-mail address. I questioned him as to whether or not Mr. Potvin had received the December 3, 2013 e-mail. Gerald Potvin acknowledged that Mr. Hedley had not.

2. Gerald Potvin maintained that no one working at or with the office of the PGT had any intention of listening to his son David. He advised me that his son has “kept everything that was ever written”. As a result Mr. Potvin was in possession of “many many boxes of records” that he wanted to take to London for Mr. Walters to sort through, but that Mr. Walters had failed to communicate with his son in any meaningful way regarding those materials. Mr. Potvin however ultimately conceded at least one 45 minute telephone conversation wherein Mr. Walters had canvassed the evidence with Mr. Potvin.

3. Gerald Potvin argued that the failure of Mr. Walters to go through the various boxes of documents is a failure to accommodate his son David’s disability.

4. Gerald Potvin argued that approval of the minutes of settlement would breach Mr. Potvin’s Charter right to free speech which he would like to exercise through the trial process. He concludes that such a breach would “go against public decency”.

5. Gerald Potvin maintains that the opinion of Mr. Nicholson is being substituted for trial.

6. Gerald Potvin maintains that Mr. Nicholson’s letter of opinion amounts to a “character assassination”. In support of that position, he gave several examples of community service he had performed throughout the years, much of which was with his son’s help. Three prominent examples include the following: it was he who is responsible for obtaining settlement for the Dion quintuplets; it was he who is primarily responsible for saving the marathon event in the 1976 Olympics; Gord Harding, a reporter with the Windsor Star newspaper, had credited him with playing a central role in preserving Canada during the Québec referendum.

E. ANALYSIS

[37] I do not accept the argument put forth by the Potvin’s that this matter was not adequately investigated by the office of the PGT. There was at least one extended conversation in which the materials in the “many many boxes” in Mr. Potvin’s possession were discussed. The affidavit of Mr. Walters and the letter of opinion by Mr. Nicholson make it clear that significant effort was put into this matter on behalf of Mr. Potvin. With the greatest of respect to both Gerald Potvin and Mr. Potvin, I conclude that their perception is likely a result of their lack of understanding of the legal process rather than a failure on the part of Mr. Walters, Mr. Nicholson, or anyone else working for or on behalf of the office of the PGT to conduct themselves appropriately. Similarly, I do not find the failure of Mr. Walters to examine the “many many boxes” of materials as a failure to accommodate Mr. Potvin’s disability. Lawyers regularly avoid unnecessary expense by not making an extensive review of materials they deem irrelevant to the central issues in the case.

[38] I disagree with Gerald Potvin’s assertion that the decision not to go ahead with the trial is a breach of David Potvin’s right to free speech. There is a significant difference between free speech and a claim for damages. A lawsuit for damages is a legal proceeding governed by practices and rules that have been developed over time, which is quite different from an individual’s Charter right to express opinions without fear of retribution.

[39] Finally, I disagree with Gerald Potvin’s assertion that Mr. Nicholson’s letter of opinion amounts to either a “character assassination” or a “substitution for trial”. I have no reason to believe that the Potvin’s are not a fine family. The accomplishments delineated by Mr. Potvin are impressive. I have no reason to believe the letter of opinion delivered was in any way intended to minimize the integrity of the Potvin family, or their accomplishments.

[40] In understanding the language in the letter of opinion it is necessary to understand its purpose. That letter of opinion is designed to inform the office of the PGT as to the chances of success if the litigation is to continue. In doing so it is necessary to assess the likely performance of each of the witnesses at trial. Recall from above there is no one other than Mr. Potvin who claims to have witnessed the alleged events. A lawyer who fails to account for weaknesses in a client’s case fails that client in a monumental way. Where a case is unlikely to succeed it is prudent to withdraw from the litigation in order to avoid a potentially crushing costs order.

[41] In conclusion, while I appreciate that Mr. Nicholson’s comments may seem cruel to those unfamiliar with the legal system, they were no doubt intended to save Mr. Potvin from experiencing rigorous, and taxing cross-examination that would almost certainly bear no fruit and also likely exposure to significant costs.

[42] I would like to make it clear, that on the evidence before me I am unable to definitively reject Mr. Potvin’s claim that he sustained a head laceration and trauma as a result of the police officers exercising excessive force while placing him under arrest. It may have happened. Mr. Potvin may well be correct in his version of the events of that day.

[43] It is however important to understand that is not the standard that would confront Mr. Potvin at trial. The onus is on Mr. Potvin to demonstrate on a balance of probabilities that the events alleged occurred in the manner which he describes.

[44] It is also important to remember the position being put forth by the office of the PGT is being put forth on behalf of Mr. Potvin and not on behalf of the defendants. It is Mr. Potvin’s interests, and only Mr. Potvin’s interests that they are to consider in the exercise of their duty as his litigation guardians. By stepping into Mr. Potvin’s shoes as litigation guardian, I find that the PGT fulfilled their duty under R. 7.05(2). Mr. Potvin did not satisfy the court on this motion that the PGT did not satisfy this statutory requirement.

[45] For the reasons above I find that they have done so and I agree with the conclusion of the PGT that it is highly unlikely Mr. Potvin could prove his case beyond a balance of probabilities as is required of him. I find Mr. Walters’ conclusion as to the likelihood of success to be based upon sound principles. The most significant impediment confronting Mr. Potvin is the fact he will undoubtedly be a very poor witness, and there is no independent evidence to support his version of the facts. I find the most likely outcome of Mr. Potvin pursuing this claim would be an order for significant costs against him. Such an order would no doubt have a devastating impact on Mr. Potvin.

[46] Accordingly, I agree it would be imprudent for the office of the PGT to proceed with this matter on behalf of Mr. Potvin.

F. ORDER

[47] For all of the reasons above I approve the minutes of settlement entered into between the office of the PGT on behalf of the plaintiff David Potvin, and the defendant the Windsor Police Services Board.

[48] At the close of argument I asked each side to assume they had won the motion and inquired what, if any, costs they would be requesting in that event. Mr. Walters stated that they would not be seeking costs in the event the PGT was successful. As a result, there will be no order for costs.

Original signed “Justice Bondy”

Christopher M. Bondy

Justice

Date: December 13, 2013

Amended Date: January 7, 2014