ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-376420
DATE: 20150925

BETWEEN:

Dinesh Chellaiah, by his Litigation Guardian, The Public Guardian and Trustee

Plaintiff

– and –

Richard Mackinnon, Badge #90014, Santi Banyaem, Badge #90190 and Toronto Police Services Board

Defendants

Dinesh Chellaiah

Emily Griffith, for the Office of the Public Guardian and Trustee

HEARD: May 5, July 16, July 21, and September 17, 2015

Archibald J.

I. Overview

1The Public Guardian and Trustee (the “PGT”), the litigation guardian for the Plaintiff Dinesh Chellaiah (the “Plaintiff”), brought a motion under Rule 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for court approval of the settlement made between the PGT, on behalf of the Plaintiff, and the Defendants, Toronto Police Officers Richard MacKinnon and Santi Banyaem and the Toronto Police Services Board (the “Defendants”). Pursuant to the Minutes of Settlement, the PGT and the Defendants agreed to settle all of the outstanding issues between the Plaintiff and the Defendants. The parties have agreed to a dismissal of the action on a without costs basis.

2The Plaintiff opposed the terms of the settlement and moved for the removal of the PGT as his litigation guardian. He maintained that he is no longer a person under disability and that he is able to make decisions with respect to the issues in litigation.

3For the reasons set out below, I grant the PGT’s motion and approve the settlement between the parties. First, the Plaintiff has failed to satisfy the court that he is no longer a person under disability. Second, I am not satisfied that the Plaintiff is capable of understanding the reasonably foreseeable consequences of his decisions in this litigation. Finally, the terms of the settlement are just, fair, and benefit the Plaintiff.

II. Factual Background

The October 15, 2006 Incident at 8 Mondeo Drive, Toronto

4On April 14, 2009, the Plaintiff initiated a claim against the Defendants, while seeking $100,000 in general damages. The Plaintiff also sought $500,000 in punitive damages as well as special damages for expenses incurred in defending himself against criminal charges and the loss of his possessions.

5The affidavit of Mr. Yeon-Tae Kim, counsel at the PGT, dated March 12, 2015, sets out the factual context. The claims arose out of an incident involving the Plaintiff and the Defendant police officers on October 15, 2006. The parties’ accounts of those events vary. The officers stated that they received a radio call by the complainant landlady to respond to a landlord and tenant dispute at 8 Mondeo Drive in Toronto. While they were speaking to the complainant in the hallway of the apartment, the Plaintiff approached them. According to the police, the Plaintiff began to yell and scream and moved into a combat stance with keys in his hand. It appeared to the officers that the Plaintiff might attack them. As a result, they subdued and arrested him.

6The Plaintiff stated that he was heading down to the ground floor of the apartment building to dispose of some garbage when he saw two police officers speaking to his landlady in the hallway. One of the officers yelled, “hey,” and approached him. According to the Plaintiff, the officers arrested him without reason or provocation, pushed him up against the wall, put his arms behind his back, and handcuffed him. The officers then took away his apartment keys and led him outside to their car.

Detention and Eviction of the Plaintiff

7Following the October 15, 2006 incident, the Plaintiff was charged with two counts of assaulting a police officer and one count of weapons dangerous, contrary to ss. 270(1) and 88(1) of the Criminal Code. He was detained in custody for three days pending his bail hearing, which took place on October 18, 2006. That same day, the Plaintiff was released on his own recognizance.

8As a condition of his release, the Plaintiff was prevented from returning to the apartment complex at 8 Mondeo Drive or communicating with his landlady. Accommodations were arranged for him at the Salvation Army Shelter on Queen Street. The Plaintiff made arrangements to stay elsewhere, however, as he was uncomfortable with the shelter accommodation. About a week after his initial release, the Plaintiff was arrested for failure to comply with his recognizance and was detained for one week. The Crown withdrew the charges against the Plaintiff six months later upon his consent to participate in mental health diversion.

9While the Plaintiff was detained on bail, his landlady served him with a notice of termination of lease. She then obtained an order terminating the Plaintiff’s tenancy and enforced it by having a sheriff remove his possessions from his apartment and by changing the lock on the unit.

10In his claim against the Defendants, the Plaintiff alleged false arrest and imprisonment, malicious prosecution, negligence, and negligent investigation. He further alleged breaches of his Charter rights as a result of the officers’ conduct. Moreover, he alleged that his arrest and detention caused his unlawful eviction from his apartment as well as the unlawful disposition of his belongings.

III. Procedural History

Landlord and Tenant Board Proceeding

11On June 28, 2007, the Plaintiff brought an application to the Landlord and Tenant Board (“LTB”). He alleged that his landlady made a false complaint about him to the police, entered his apartment illegally, interfered with his reasonable enjoyment of the premises, harassed and obstructed him, and failed to give him 72 hours to retrieve his property following his eviction.

12The application was heard on July 12, 2007. On July 16, 2007, the LTB found in favour of the Plaintiff. The LTB concluded that the landlady had “bullied” the Plaintiff out of the building with the intervention of the police on October 15, 2006. It also concluded that the police presence at the premises was a result of a false complaint made by the landlady about the involvement of the Plaintiff in illegal activities.

13The LTB determined that the landlady had seriously interfered with the Plaintiff’s reasonable enjoyment of the rental unit and had harassed and obstructed him. The LTB further found that the Plaintiff’s property was removed and disposed of as a direct result of the landlady’s actions. It ordered the landlady to return to the Plaintiff any of his personal property that remained in her possession or control and to pay him replacement costs in the amount of $2,500.

14The Plaintiff has not sought to enforce the LTB’s judgment. He believes that $2,500 is a gross underestimation of the value of his lost possessions. He further believes that the enforcement of the LTB’s order will compromise his case in the Superior Court of Justice.

The Plaintiff’s Claim in the Superior Court of Justice

15The Plaintiff commenced his action against the Defendants on April 14, 2009. At the time of his discovery on July 21, 2011, the Plaintiff was represented by counsel. However, on January 31, 2012, the Plaintiff’s counsel removed himself as solicitor of record.

16An unsuccessful mediation took placed in September 2012. The Plaintiff was unrepresented at the time of the mediation.

17In the course of discovery, the Defendants obtained the Plaintiff’s medical records and requested that he attend an assessment with a psychiatrist. Following receipt of the assessment report, the Defendants moved for a court order declaring the Plaintiff to be a party under disability and appointing the PGT as his litigation guardian.

Original Finding of Disability and Appointment of the PGT as Litigation Guardian

18On October 2, 2013, I found the Plaintiff to be a party under disability within the meaning of Rules 1.03 and 7.03 of the Ontario Rules of Civil Procedure. Having determined that no other person was willing or able to act as litigation guardian for the Plaintiff, I appointed the PGT as his litigation guardian under Rule 7.

19By way of summary, I will provide a brief overview of the Plaintiff’s psychiatric history from 2006 to 2013, evidenced by various psychiatric reports filed by the PGT. I relied upon these reports in making my October 2013 disability finding.

20The Plaintiff was admitted to hospital on three occasions between November 18, 2006 and January 7, 2009. From November 18 to 30, 2006, the Plaintiff was admitted to the inpatient unit of a hospital in Niagara Falls. The hospital records indicate that he was unable to provide a coherent account of himself. They also confirm that he suffered from delusions and grandiose thinking. Dr. Syed A. Ahmed described his speech as “circumstantial and over inclusive.” Dr. Ahmed stated that the Plaintiff’s judgment and insight were “questionable.”

21In his January 2, 2007 psychiatric report, Dr. Thuraisamy Sooriabalan described the Plaintiff as a “very poor historian” who “lack[ed] insight about his health and financial situation” and “seem[ed] to be grandiose in his thoughts.” Dr. Sooriablan diagnosed the Plaintiff with bipolar affective disorder of more than one-year duration and recommended him for mental health diversion on the basis that his arrest resulted from behaviour caused by psychiatric illness. In his report, Dr. Sooriabalan noted that the Plaintiff’s mental health appeared to have improved after taking medications, but it was possible that his irritability, argumentative tendency, and lack of insight were caused by the manic phase of his bipolar affective disorder.

22From July 17 to 23, 2007, the Plaintiff was admitted to the Centre for Addiction and Mental Health (“CAMH”) after being allegedly assaulted by a neighbour in his Toronto Community Housing Corporation house. According to Dr. Andrew Lustig’s report, the Plaintiff was “quite preoccupied with his persecutory delusional system.” He further declined to take medications because of his lack of insight into his delusional state.

23The Plaintiff presented again to CAMH while in the custody of police on January 3, 2009 after yelling and threatening the security at his building. In his report, Dr. Colin MacPherson described the Plaintiff as calm and cooperative, but explained that the Plaintiff had delusional beliefs. Specifically, Dr. MacPherson noted that the Plaintiff believed that he was falsely arrested in 2006 and that the police had withheld his various possessions, which he stated were worth millions of dollars.

24Dr. Turner of St. Joseph’s Health Centre examined the Plaintiff on August 29, 2013 to determine his mental capacity with regard to the claims against the Defendants. In his report, Dr. Turner explained that the Plaintiff was able to understand the information relevant to making a decision with respect to the issues in litigation. Nevertheless, Dr. Turner observed that he was “unable to appreciate the reasonable foreseeable consequences of relevant decisions,” which is one of the main components of the capacity assessment.¹ Dr. Turner indicated that the Plaintiff’s judgment was “coloured by an overall grandiosity, entitlement and inappropriate optimism.” His explanations were “odd and illogical” and he was unable to foresee the potential for disappointment. Almost seven years after the October 15, 2006 incident, Dr. Turner noted that the Plaintiff still believed that he had the right to enter the apartment that he had occupied at the time. Furthermore, he had difficulty appreciating the potential consequences of not retrieving his possessions. Dr. Turner noted that the Plaintiff refused to collect his belongings while on bail and maintained that he would not do so until his claim against the Defendants was adjudicated.

25In light of the content of the various psychiatric reports between 2006 and 2013, I found the Plaintiff to be a party under disability and appointed the PGT as litigation guardian to represent the Plaintiff for the remainder of the proceedings.

IV. The Settlement

26Mr. Kim, counsel with the PGT, met with the Plaintiff and extensively reviewed the relevant law, the evidence, and the applicable limitation periods. After concluding that the Plaintiff’s claim was “very unlikely to succeed,” Mr. Kim obtained instructions from the PGT to settle the Plaintiff’s claims against the Defendants on the basis of a without cost dismissal.

27The Minutes of Settlement were executed on November 30, 2014. Pursuant to the Minutes, the PGT agreed to bring the present motion for court approval of the settlement pursuant to Rule 7.08.

V. Motion for Settlement Approval Order – May 5, 2015

28On May 5, 2015, Emily Griffith, on behalf of the PGT, and the Plaintiff appeared before me for the determination of their respective motions.

A. Submissions of the Public Guardian and Trustee

29In her motion seeking approval of the settlement between the parties, Ms. Griffith explained the PGT’s views on the merits of the Plaintiff’s claims and the likelihood of his success.

(i) Limitation Periods

30The PGT maintained that save for the tort of malicious prosecution, all actions against the Defendants are barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The incident which gave rise to the Plaintiff’s claims took place on October 15, 2006; however, the Plaintiff did not initiate these proceedings until April 14, 2009.

31The PGT acknowledged that an argument could be made that the limitation period did not begin to run until a litigation guardian was appointed for the Plaintiff. The PGT submitted, however, that the Plaintiff was represented by counsel from the issuance of the statement of claim through to the discovery. The Plaintiff’s former counsel never raised the issue of the Plaintiff’s capacity. The Plaintiff was not found to be incapable until my ruling in October 2013.

(ii) Absence of Independent Evidence

32Central to the Plaintiff’s claims is whether the police had reasonable and probable grounds to arrest, detain, and charge him. The PGT maintained that this case would turn on the credibility of the witnesses and that, in the absence of independent corroborative evidence, the Plaintiff’s testimony would likely be insufficient to prove his claims. The only non-party to the events, the landlady, refused to cooperate with the PGT. In any event, she would be unlikely to provide helpful evidence to the Plaintiff since she initially involved the police. Ms. Griffith further submitted that the police in the totality of the circumstances had reasonable grounds to arrest and detain the Plaintiff.

(iii) Damages

33The PGT submitted that even if the Plaintiff were able to establish liability on the part of the Defendants, he would be unable to establish any significant damages in connection with his arrest, prosecution, and detention. Furthermore, the Plaintiff’s other main claim with respect to the loss of his personal belongings had already been adjudicated by the LTB. It is unlikely that the Plaintiff could claim any further damages against the Defendants given their lack of involvement in the disposition of the Plaintiff’s property following his eviction.

34With regard to the Plaintiff’s claim for false imprisonment, the PGT stated that the range of damages for this tort in this case is low since the Plaintiff was unemployed at the time of his arrest and detention. The PGT acknowledged, however, that any amount of time in custody is always a serious matter regardless of its duration; however, the Plaintiff would be entitled to a relatively small amount of compensation if he were to succeed at trial given that he spent three days in jail before his release. Given the Defendants’ clear intention to vigorously defend this case, the small amount of compensation that the Plaintiff could receive in the unlikely event that he succeeded would not justify the costs that would likely be awarded against him if he were to lose.

35Ms. Griffith expressed the concern that costs may be awarded against the PGT in the likely event that the Plaintiff would lose at trial. As the Plaintiff’s fiduciary, the PGT is required to act diligently and reasonably. Both the PGT and the Plaintiff could face costs if the court determines that the PGT should not have pursued the claim against the Defendants. The PGT submitted that it would not be acting diligently or reasonably as the Plaintiff’s litigation guardian if it carried on with the prosecution of this matter.

B. The Plaintiff’s Opposition to the terms of the Settlement

36On June 5, 2014, the Plaintiff was advised of the PGT’s intention to settle his claims on a dismissal without costs basis. He disagreed. He indicated that he intended to bring a motion to remove the PGT as his litigation guardian. He was advised that the PGT would take no action on the file for three months to permit him to take this step. Having not heard from the Plaintiff, in October 2014, the PGT negotiated a settlement with the Defendants. They advised the Plaintiff of the result, and of his right to bring a motion to have the PGT removed as his litigation guardian.

VI. The Plaintiff’s Motion for the Removal of the PGT as his Litigation Guardian

37A person under a disability who is opposed to a proposed settlement reached on his behalf by the PGT may seek to replace the PGT as his litigation guardian or to have the determination that he suffers from a disability rescinded: Kavuru (Litigation guardian of) v. Heselden, 2014 ONSC 6718, 247 A.C.W.S. (3d) 72 (Div. Ct.), at para. 13. In this case, the Plaintiff brought a motion to overturn the finding of incapacity or, in the alternative, sought a ruling that he is no longer a person under disability. He further sought an order to remove the PGT as his litigation guardian. He insisted that he is no longer a person under disability, and that he is capable of making decisions in this litigation with the assistance of pro bono legal counsel.

38It is noteworthy that the Plaintiff filed a blank affidavit in support of his motion for the removal of the PGT as his litigation guardian. In his oral submissions, the Plaintiff maintained that his condition had improved since the appointment of the PGT. He stated that he regularly spoke to a social worker and had done so for over six weeks. He attends church and speaks with his pastor. He indicated to me that he is currently unemployed. When he is not preoccupied with this litigation, he stays at home and sleeps. He stated that he wishes to avoid trouble, is worried about his safety, and is afraid of the police. He underlined that the police have questioned him about his decision to file a complaint with the LTB. He further maintained that the police have retained some of his belongings.

39At the hearing, the Plaintiff took issue with some of the inaccuracies contained in the medical reports filed on the PGT’s motion, particularly, the details surrounding his education and his immigration to Canada. The Plaintiff displayed tangential thinking. He appeared to be fixated on facts that are irrelevant to the resolution of his claims against the Defendants, such as some inaccurate information recorded by the physicians and the police about his education and his marital status at the time of his immigration to Canada from Sri Lanka.

40The Plaintiff maintained that having the PGT as his litigation guardian was preventing him from obtaining pro bono legal advice. He insisted that he has come too far in this action to accept a settlement on the terms agreed upon by the PGT.

VII. Adjournment

41During the May 5 hearing, I thought that a brief adjournment was appropriate to allow the Plaintiff to present evidence of his present mental and psychiatric condition. During this appearance, he appeared to be somewhat more articulate and he demonstrated an improved but limited understanding of the proceedings. Based on my observations and discussions with him, however, I remained quite concerned about his understanding of these proceedings and the consequences of his decisions in this litigation. I wanted to give the Plaintiff an opportunity to acquire a medical opinion concerning his capacity and the potential removal of the PGT as his litigation guardian. In explaining the purpose of this adjournment to the Plaintiff, I emphasized that the opinion of a social worker or a family doctor regarding his capacity would not provide me with the best possible evidence. The Plaintiff understood that such an assessment would preferably require the opinion of a psychologist or psychiatrist.

VIII. The Plaintiff’s Motion for Removal of the PGT – July 16, 21, & September 17, 2015

42The parties subsequently appeared before me on July 16, 2015. At the outset, Ms. Griffith, on behalf of the PGT, provided me with a hand-written note by Dr. Kakar, a consulting psychiatrist, which stated that the Plaintiff is not fit to represent himself in court. The note had been provided to Ms. Griffith by the Plaintiff’s social worker, who had attended the psychiatric appointment with him.

43The Plaintiff expressed concerns about the appointment and Dr. Kakar’s assessment. The Plaintiff stated that he was at Dr. Kakar’s office for only about one hour, during which time the psychiatrist spoke on the phone about a real estate deal for his son. The Plaintiff appeared fixated on what he described as a “garbage dump” on Dr. Kakar’s office table and the absence of any cups beside the water cooler in the clinic. The Plaintiff also appeared upset by Dr. Kakar’s “forceful” suggestion that he should take medication. He insisted that he was in perfect health and that his only problem was his inability to obtain pro bono legal assistance due to the court finding that he is a party under disability.

44I acknowledged that Dr. Kakar’s opinion about the Plaintiff’s capacity was merely one sentence in length, was totally conclusory in nature, and was written on a prescription pad page. As such, I requested that the Plaintiff and Ms. Griffith return before me on July 21, 2015 in order to determine the next step in this proceeding. On that date, both parties agreed that Ms. Griffith would contact Dr. Kakar and attempt to acquire a report of his assessment of, and his conclusion about, the Plaintiff’s capacity.

45On September 17, 2015, Ms. Griffith filed the doctor’s report. During submissions, Ms. Griffith informed me that in light of the Plaintiff’s circumstances, the PGT took the unusual and generous step of paying for the doctor’s report and the assessment even though the burden of proof on this issue rested with the Plaintiff. Due to the already considerable expense incurred by the PGT, it would be inappropriate for me to order Dr. Kakar to attend court at the further expense to the public purse. I also point out that the Plaintiff did not seek Dr. Kakar’s attendance. That said, as Dr. Kakar was not called as a witness, I do not place weight on the report other than to point out that the content of the report does not in any way assist the Plaintiff on his motion. The report also affirms my own observations of the Plaintiff throughout the proceedings.

46My observations and discussions with the Plaintiff during the four hearing dates confirmed that despite being an intelligent and articulate person, he continues to exhibit thought disorder and differential thinking. On both occasions in July, he appeared distressed about his unpleasant experience at Dr. Kakar’s office, and particularly, the psychiatrist’s suggestion that the Plaintiff could benefit from taking medication. It was also clear to me that the Plaintiff is obsessed in his preoccupation with the factual errors in the police notes and the LTB decision. On September 17, when I asked the Plaintiff if he wished to respond to Dr. Kakar’s report, he remained focused on unrelated and oftentimes incoherent matters, such as his ongoing concern that the police were in possession of his laptop and an interaction he had with a TTC employee who, the Plaintiff claimed, knew of his story and his identity. Throughout the Plaintiff’s submissions, he rambled and continuously demonstrated tangential thinking. These observations are consistent with Dr. Kakar’s own findings.

47After assessing all of the evidence on this motion, I conclude that the Plaintiff has not discharged his burden of proof. The Plaintiff has not provided the court with any new evidence to show that his mental and psychiatric state has improved to the point that he is no longer under disability and is capable of making decisions in this litigation. The 2006 to 2013 psychiatric reports of various professionals, coupled with the July 28, 2015 report of Dr. Kakar, present an image of the Plaintiff as an individual who suffers from thought disorder and differential thinking, who is deeply preoccupied with irrelevant inaccuracies in his personal and professional life, and who is obsessed with this litigation. Those psychiatric perspectives are consistent with the Plaintiff’s presentation before me throughout the course of this hearing. He is clearly unable to appreciate the reasonably foreseeable consequences of his decisions in this litigation. I have therefore concluded that I must refuse his motion for the removal of the PGT as his litigation guardian.

IX. The PGT’s Motion for Approval of the Settlement

Applicable Legal Rule

48Rule 7.08 of the Rules of Civil Procedure requires that a settlement in favour or against a party under disability be approved by a judge:

APPROVAL OF SETTLEMENT

Settlement Requires Judge’s Approval

7.08 (1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.

(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.

49Subrule 7.08 (4) enumerates the materials that must be served and filed on a motion for the approval of a settlement. It states:

Material Required for Approval

(4) On a motion or application for the approval of a judge under this rule, there

shall be served and filed with the notice of motion or notice of application,

(a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;

(b) an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;

(c) where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and

(d) a copy of the proposed minutes of settlement.

50In this case, the procedural requirements have been met and the requisite materials have been filed. The sole issue is whether all aspects of the settlement are in the Plaintiff’s benefit: Franklin (Litigation Guardian of) v. Neinstein & Associates, [2000] O.J. No. 4192 (Ont. C.A.). The PGT has full authority to settle the claims on behalf of the Plaintiff and to seek the court’s approval of the terms of that settlement. That authority derives from the rationale that underlies both the appointment of a litigation guardian and the requirement for court approval of a settlement under rule 7.08. In Wu Estate v. Zurich Insurance Co., 2006 ONCA 16344, [2006] O.J. No. 1939 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 289, the Court of Appeal for Ontario explained that rationale as follows at para. 10:

The requirement for court approval of settlements made on behalf of parties under disability is derived from the court’s parens patriae jurisdiction. The parens patriae jurisdiction is of ancient origin and is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves ... to be exercised in the ‘best interest’ of the protected person ... for his or her ‘benefit’ or ‘welfare’”: Re Eve, [1986] 2 S.C.R. 388 at para. 73.

51I agree with the PGT that the proposed settlement is in the best interests of the Plaintiff. There is no question that the Plaintiff has suffered real hardship as a result of his three-day detention, his eviction by his landlady, and the removal of his possessions from the apartment unit in which he resided. However, I share the PGT’s view of the merits of the Plaintiff’s claims. I point out that there is no evidence linking the loss of his possessions to the Defendants’ conduct. Despite his optimism and his confidence in the justice system, the Plaintiff faces significant challenges in proving his claims against the Defendants, particularly in the absence of any independent evidence supporting his account of the October 15, 2006 events. I also share the PGT’s concerns regarding his credibility as a witness, which are supported by the psychiatric reports of various mental health professionals.

52I conclude that a dismissal of the claims on a no costs basis is in the best interest of the Plaintiff, especially given the overall risks to him in this litigation. In making this finding, I appreciate the personal importance of this case to the Plaintiff. Nonetheless, any small amount of damages to which the Plaintiff may be entitled are far outweighed by the significant costs that he and/or the PGT may be required to bear in the likely event that he loses.

X. Disposition

53I have denied the Plaintiff’s motion for a finding that he is no longer a person under disability, as well as his motion for the removal of the PGT as his litigation guardian. I further find that the settlement reached by the PGT and the Defendants is in the Plaintiff’s benefit and provides a just resolution of the issues. I therefore approve the Minutes of Settlement entered into between the PGT, on behalf of the Plaintiff, and the defendants.

Archibald J.

Released: September 25, 2015

Footnotes

1. 1626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114, [2013] O.J. No. 2753, at para. 21.