SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-15-975-ES
DATE: 2015 07 17
RE: PAULA RASHPAL JHAUJ – and – PAVITAR KOONER, GURDEV KAUR KOONER and THE PUBLIC GUARDIAN AND TRUSTEE
BEFORE: André J.
COUNSEL: Rob Levesque, for the Applicant
J. Sweatman, for the Respondent, Pavita Kooner
R. Sharda, for the Respondent, Gurdev Kaur Kooner
HEARD: July 8, 2015
E N D O R S E M E N T
[1] The plaintiff, Paula Rashpal Jhauj, (“Ms. Jhauj”) brings an application for an order for an assessment of the capacity of the defendant, Gurdev Kaur Kooner (“Mrs. Kooner”) and alternatively, an order that Mrs. Kooner’s medical history and the file of her attorney who drafted a power of attorney in 2014 be produced. Mrs. Kooner, whose position is supported by her son, defendant Pavitar Kooner (“Mr. Kooner”), maintains that she is capable and does not wish either of her children to manage her property.
BACKGROUND FACTS
[2] Mrs. Gurdev Kaur Kooner is 76 years old. She came to Canada in 1975 and lived in British Columbia until 2012.
[3] Mrs. Kooner has six children, all of whom, with the exception of Mr. Kooner, live in British Columbia.
[4] Mrs. Kooner’s husband died on July 12, 2012. Mrs. Kooner’s children in British Columbia did her banking after her husband’s death. Since then there have been a number of unexplained withdrawals of significant sums of money from Mrs. Kooner’s bank account. On May 12, 2013, Mrs. Kooner suffered a stroke and was hospitalized for two weeks. Her speech and mental faculties were impaired as a result. Her rehabilitation involved simple tasks such as printing numbers and her signature and doing pre-school puzzles.
[5] Neurologist, Dr. Brian Thiessen, examined Mrs. Kooner in the summer of 2013. In a letter dated August 29, 2013, addressed to Dr. Sharon K. Dodd, Dr. Thiessen noted of Mrs. Kooner that:
She had a history of Parkinson’s disease diagnosed 4 – 5 years ago on the basis of a worsening tremor and mobility. On top of this, she had also been forgetful for at least six years and had been needing assistance with activities of daily living for at least that long as well.
[6] Dr. Thiessen opined that “Ms. Kooner certainly has Parkinson’s disease, as well as what looks like underlying dementia. This may be Lewy body disease or concurrent Alzheimer’s disease.”
[7] Mrs. Kooner executed a will in 2000. Certain members of her family disapproved of the contents of the will including Mr. Kooner.
[8] In December 2013, Mr. Kooner visited British Columbia and with the consent of his siblings took Mrs. Kooner with him to Toronto ostensibly for a short visit.
[9] Within two weeks of her arrival in Toronto, Mrs. Kooner executes a new will and a power of attorney.
[10] Efforts by Mrs. Kooner’s children in British Columbia, to see their mother have allegedly been rebuffed. Mrs. Kooner continues to reside in Brampton.
LEGAL PRINCIPLES
[11] Section 79 of the Substitute Decisions Act, S.O. 1992, c. 30 (“SDA”) authorizes the court to order that a person be assessed for the purpose of obtaining an opinion about the person’s capacity.
[12] Section 79(1) of the SDA provides that the court should exercise this power:
If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied.
[13] For an assessment to be made under s. 79(1) of the SDA, two conditions must first be satisfied:
a) a proceeding under the SDA must be pending in which a person’s capacity is in issue; and
b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.
Neill v. Pellolio, 2001 6452 (ON CA), [2001] O.J. No. 4639, 151 O.A.C. 343 (C.A.), at para. 14.
[14] The word “incapable” under s. 1(1) of the SDA means “mentally incapable”. It is a basic principle of the SDA that, absent reasonable grounds to believe the contrary, persons are presumed to be capable of giving or refusing consent in connection with their personal care (see s. 2(2) of the SDA): Neill v. Pellolio, at para. 16.
[15] Compelling evidence is required to override the presumption of capacity in s. 2(2) of the SDA. The nature and degree of the alleged incapacity must be demonstrated to be sufficient to warrant depriving Mrs. Kooner of the ability to live as she chooses. Notwithstanding the presence of some degree of impairment, the question to be asked is whether Mrs. Kooner has retained sufficient capacity to satisfy the statutes: Koch (Re), 1997 12138 (ON SC), 33 O.R. (3d) 485, [1997] O.J. No. 1487 (Gen. Div.).
[16] The principles to be applied by a motion judge in consideration of a motion under subsection 79(1) have been set out by Strathy J. in Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.J.), at para. 53:
(a) the purpose of the SDA, as discussed above;
(b) the terms of section 79, namely:
(i) the person’s capacity must be in issue; and
(ii) there are reasonable grounds to believe that the person is incapable;
(c) the nature and circumstances of the proceedings in which the issue is raised;
(d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
(f) whether there are flaws in the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
(g) whether the assessment will be necessary in order to decide the issue before the court;
(h) whether any harm will be done if an assessment does not take place;
(i) whether there is any urgency to the assessment; and
(j) the wishes of the person sought to be examined, taking into account his or her capacity.
ANALYSIS
[17] Section 79(1) of the SDA mandates that the court seeks answers to two questions before deciding whether a capacity assessment is warranted:
Is there a pending proceeding under the SDA in which Mrs. Kooner’s capacity is in issue?
Is the court satisfied that there are reasonable grounds to believe that Mrs. Kooner is incapable?
ISSUE NO. ONE – Is there a pending proceeding under the SDA in which Mrs. Kooner’s capacity is in issue?
[18] In my view, this precondition is satisfied in this case. The applicant, Ms. Jhauj, commenced proceedings to appoint a guardian of property pursuant to s. 22 of the SDA and the appointment of a guardian for personal care pursuant to s. 55 of the SDA.
ISSUE NO. TWO – Is the court satisfied that there are reasonable grounds to believe that Mrs. Kooner is incapable?
[19] Section 79(1) of the SDA stipulates that prior to making an order for a capacity assessment, the court must determine whether reasonable grounds exist to confirm that a person is capable. The applicant relies on the letter of Dr. Brian Thiessen, for its contention that there are reasonable grounds to believe that Mrs. Kooner is incapable.
[20] Significantly however, Dr. Thiessen did not conduct a general assessment of Mrs. Kooner’s capacity. He confirmed that she has Parkinson’s disease in addition to what appeared to be underlying dementia. He expressed no opinion as to the severity of the symptoms of the disease and the extent to which they incapacitated her. While the court can take judicial notice of the fact that persons stricken with these diseases become progressively worse over a period of time, there is no evidence to suggest that they have rendered Mrs. Kooner incapable.
[21] Furthermore, there is no indication that any harm will be done if the assessment does not take place. There is a court order dated May 14, 2015, which restrains the parties from transferring, encumbering or in any way disposing of any of the assets of Mrs. Kooner. Second, the Office of the Public Guardian and Trustee has appointed counsel to protect Mrs. Kooner’s interests.
[22] Additionally, Mrs. Kooner’s counsel has indicated that his client is opposed to the order being sought by Ms. Jhauj. His legal assistant, Shrena Malani Singh, has deposed that Mrs. Kooner has advised Mr. Sharda that she is capable of managing her affairs.
[23] As noted by the Court of Appeal in Abrams v. Abrams, at para. 48, in a proceeding involving the request for a capacity assessment, the court must seek to balance the interests of the person alleged to be incapable against the interest and duty of the state to protect the vulnerable, not the interests of the litigants including a party seeking an assessment.
[24] In my view, there is insufficient evidence before me which supports a finding that a capacity assessment is warranted in this matter.
ORDERS
Ms. Jhauj’s application is dismissed.
There shall be no order requiring the respondents to produce the medical records of Mrs. Gurdev Kaur Kooner or of the file of her attorney who drafted a power of attorney in 2014.
Costs of this motion are reserved to the judge hearing the application for guardianship and other relief.
André J.
DATE: July 17, 2015
COURT FILE NO.: CV-15-975-ES
DATE: 2015 07 17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PAULA RASHPAL JHAUJ – and – PAVITAR KOONER, GURDEV KAUR KOONER and THE PUBLIC GUARDIAN AND TRUSTEE
BEFORE: André J.
COUNSEL: Rob Levesque, for the Applicant
J. Sweatman, for the Respondent, Pavita Kooner
R. Sharda, for the Respondent, Gurdev Kaur Kooner
ENDORSEMENT
André J.
DATE: July 17, 2015