COURT FILE NO.: CV-13-487955

DATE: 20140207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: York Condominium Corporation No. 301, Applicant

– AND –

Valerie Victoria James, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Jonathan Fine and Joy Mathews, for the Applicant

Y. Kim, for the Public Guardian and Trustee of Ontario

HEARD: February 7, 2014

ENDORSEMENT

[1] It is now 11:20 a.m. and the Respondent, Valerie Victoria James (“Ms. James”), has not appeared in court this morning. Counsel for the Applicant has filed a brief of affidavits of service indicating that it has gone to great lengths to notify Ms. James of these proceedings. Likewise, Stinson J. set out a roadmap for giving her Notice in his endorsement of January 29, 2014, which has been followed by counsel for the Applicant as well as by counsel for the Public Guardian and Trustee (“PGT”).

[2] The Applicant seeks a number of different forms of relief, but the first step that must be done is to determine whether Ms. James is under a disability within the meaning of Rule 7 of the Rules of Civil Procedure such that she requires the appointment of a litigation guardian.

[3] This matter was before me on October 21, 2013, at which time I ordered that Ms. James undergo a mental examination by a licensed physician or psychologist by no later than January 21, 2014. Ms. James appeared in person at that hearing and indicated that she intended to cooperate with that process. My order specifically stated that the purpose of the examination was to determine whether she is mentally incapable within the meaning of sections 6 or 45 of the Substitute Decisions Act, 1992.

[4] It does not appear that Ms. James has undergone the required assessment. Mr. Fine, for the Applicant, confirms that there is no evidence in the record to that effect. Indeed, Ms. James has not filed any materials to date, and I have the impression that she is not fully aware of the import of these legal proceedings or how to approach them.

[5] The affidavits filed in support of the Application narrate an ongoing pattern of erratic behaviour by Ms. James. Some of her conduct raises the concern that she is a health and safety risk to herself (such as sleeping in stairwells), and some of which presents a danger to the other residents of the condominium building (such as lighting a fire in her unit). Mr. Fine rightly points out that while Ms. James must be given due process and an appropriate opportunity to respond to the Application, the matter is of sufficient urgency that it should not be delayed any further than is necessary.

[6] Having already ordered that an assessment of Ms. James’ mental capacity be performed many months ago and having no sign that my order was obeyed, it seems futile to simply re-order that an assessment be done. Not only does the affidavit evidence strongly suggest that Ms. James may be suffering from mental health problems, but her non-attention to and non-compliance with the requirements of this case suggest that she is not able to deal with legal proceedings on her own.

[7] For her own sake, therefore, I have little choice but to appoint a litigation guardian in order to ensure that her rights are protected. While I do not have the usual medical evidence before me in the form of a report from a qualified medical practitioner, the very lack of such a report in the face of my previous order, together with Ms. James’ non-appearance today in the face of Stinson J.’s order, strongly suggest that Ms. James meets the test set out in Rule 7.04 (b) for appointment of the PGT as her litigation guardian.

[8] Mr. Kim, for the PGT, advises that his client takes no position on the Applicant’s motion to appoint it as litigation guardian. That said, there is no other person who has come forward to indicate that they are willing or able to act as Ms. James’ litigation guardian.

[9] As indicated, the PGT has already attempted to contact Ms. James in accordance with the order of Stinson J. and has had no success to date. That indicates to me that if the PGT is appointed it will need some time to contact Ms. James and ensure that she is adequately apprised of the proceedings and that the PGT can do its proper job of representing her interests. We have been advised by the motions office that the earliest possible date for a motion of two hours is April 14, 2014, which should give the PGT more than enough time to perform its necessary duties.

[10] Mr. Fine has indicated that his client has been somewhat frustrated by the slow pace of these proceedings. That is entirely understandable, particularly in view of the affidavit material indicating that the residents in the Applicant condominium building have been living with and enduring a very difficult situation. That said, it is in the Applicant’s interest as much as anyone’s to ensure that all of the procedural steps are properly followed and that the matter is dealt with in the way that the law requires. One would not want to skip any required step along the way only to later find that it had to be repeated.

[11] It is hereby declared that Ms. James is a party under disability within the meaning of Rules 7.04 and 1.03 and that no person is willing or able to act as litigation guardian for her.

[12] The PGT is hereby appointed litigation guardian for Ms. James, under Rule 7. The title of proceedings are accordingly amended to show the name of the Respondent as “Valerie Victoria James, by her litigation guardian, the Public Guardian and Trustee”.

[13] The PGT, or its agent or counsel, shall be entitled, upon request, to production and delivery of any and all information relating to Ms. James including, but not limited to, medical, psychiatric, financial, governmental and personal information from any person, firm, corporation institution or government authority, whether federal, provincial or municipal, to which Ms. James would be entitled.

[14] The Application is otherwise adjourned to April 14, 2014 for two hours. If the parties wish to obtain an earlier date, they may attend at motion scheduling court to speak to the matter. As indicated above, it is evident from the affidavits that have been filed that this case needs to be addressed on as expedited a basis as possible, with the understanding that the PGT does need some time to prepare itself for the hearing. I will leave it to counsel to jointly determine if an appearance at motion scheduling court is advisable.

[15] Costs of today are reserved to the judge hearing the Application.

Morgan J.

Date: February 7, 2014