SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-11-4963-00
DATE: 2015 10 26
RE: Erol Ozdemir v. Economical Mutual Insurance Group
BEFORE: Lemon J.
COUNSEL:
Erol Ozdemir, In Person, for the Plaintiff
Tripta Sood, for the Defendant
HEARD: October 6, 2015
E N D O R S E M E N T
The Issue
[1] The defendant, Economical Mutual Insurance Company, seeks an order directing that Mr. Ozdemir attend for a capacity assessment. Pending the results of that assessment, it also seeks an order directing that income replacement benefits due to Mr. Ozdemir be paid into court.
Background
[2] Mr. Ozdemir was injured in a motor vehicle accident on November 24, 2009. His insurer, Economical, has been paying statutory income replacement benefits to him since the accident.
[3] On December 16, 2011, Mr. Ozdemir commenced proceedings against Economical for various other statutory accident benefits. Economical has defended the action and served a jury notice.
[4] On October 20, 2013, according to an Application for Determination of Catastrophic Impairment, a psychiatrist opined that Mr. Ozdemir suffered a catastrophic impairment as a result of the accident. This was described as an “impairment that, in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment, 4th edition 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.” Although the document as filed refers to an attached report, nothing was attached.
[5] Economical’s psychiatrist assessed Mr. Ozdemir in January of 2014 and expressed a variety of concerns about Mr. Ozdemir in his report. Those included failing to maintain basic hygiene, chronic depression, post-traumatic stress disorder, panic attacks and chronic pain.
[6] In May of 2014, Mr. Ozdemir’s treating psychiatrist diagnosed him with a treatment resistant major depressive disorder and post-traumatic stress disorder.
[7] In October of 2014, a further psychiatrist, retained by Mr. Ozdemir’s counsel, set out a number of concerns about Mr. Ozdemir. Those included panic attacks, not being able to focus, being unable to concentrate on television programs, poor memory and being anxious and irritable. His diagnosis was that Mr. Ozdemir had post-traumatic stress disorder, as well as a major depressive disorder (single episode) in partial remission.
[8] In April of 2015, Mr. Ozdemir’s occupational therapist wrote to Economical stating that “It is my opinion that there are concerns regarding the client’s capacity and a capacity assessment is warranted”.
[9] In May of 2015, Economical commenced making the income replacement cheques payable to Mr. Ozdemir’s counsel, in trust. Economical pressed Mr. Ozdemir’s counsel for an assessment because of concerns about Mr. Ozdemir’s competence.
[10] On August 18, 2015, Mr. Ozdemir’s counsel was removed as solicitor of record. Mr. Ozdemir delivered a Notice of Intention to act in person, dated August 23, 2015.
[11] As a result of their concerns about Mr. Ozdemir’s competence, Economical then ceased making payments to Mr. Ozdemir and sought this order.
[12] Mr. Ozdemir denies the need for such an assessment. He seeks payment of the funds directly to him.
Legal Authorities
[13] Pursuant to s. 105 of the Courts of Justice Act, the court may order a party to attend a capacity assessment under the Substitute Decisions Act. That order shall not be made, however, unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
[14] Pursuant to s. 2 of the Substitute Decisions Act, there is a presumption of capacity. In Flynn et al v. Flynn (December 18, 2007), unreported, 03-66/07 (Ont. S.C.), Pattillo J. reminded courts that “[a] capacity assessment is an intrusive and demeaning process”.
[15] In Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.), Strathy J. set out a list of factors to consider before making such an order. Besides the factors set out in the legislation, he added that he should consider and balance the following factors to determine whether, in all the circumstances, the public interest and the interests of the respondent require that an assessment take place and justify the intrusion into the respondent’s privacy:
(a) The nature and circumstances of the proceedings in which the issue is raised;
(b) The nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
(c) If there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
(d) 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;
(e) Whether the assessment will be necessary in order to decide the issue before the court;
(f) Whether any harm will be done if an assessment does not take place;
(g) Whether there is any urgency to the assessment; and
(h) The wishes of the person sought to be examined, taking into account his or her capacity.
Analysis
[16] There is no doubt that the reports filed in support of this motion show that Mr. Ozdemir is coping with physical injuries, chronic pain, and depression. It also shows that he is not taking appropriate care of his hygiene and maintaining his residence. I am sure that he is a challenge to his various caregivers. That will only be made more difficult as a result of not having counsel to assist him.
[17] On the other hand, the reports set out that he has been forthcoming and articulate in providing his history to the various assessors and caregivers. In the assessment dated October 31, 2014, it is reported that “it appears that Mr. Ozdemir suffers from mild to moderate distress marked by anxiety, depression and pain disorder”. Further, “He certainly will benefit from professional intervention to help him overcome the suggested distress, but he should have no difficulty in engaging in and performing the activities of his normal living, including those of housekeeping and home maintenance, and employment for which he has the necessary education, training or experience.” [Emphasis mine.]
[18] The report of the occupational therapist, dated November 7, 2014, sets out that Mr. Ozdemir sees his psychiatrist approximately once every three weeks but I have no report from that psychiatrist. There is only a standard form disability certificate dated May 2014. The assessment also referred to a variety of psychiatric reports but I have not been provided with them.
[19] Within five days of his lawyer being removed from the record, Mr. Ozdemir filed a Notice of Intention to Act in Person. It is an entirely appropriate and professional document. He is either capable of doing that himself or capable of obtaining advice in order to prepare one.
[20] His articulate handwritten response to the court was filed in a timely fashion. He astutely points out that Economical has accepted some of the occupational therapist’s recommendations but not others that are less beneficial to Economical. In court, Mr. Ozdemir made submissions in a succinct and straightforward fashion. He made it clear that while he did not wish to have an assessment, he would comply with an order of the court.
[21] There is no doubt from the pleadings that the allegation of Mr. Ozdemir’s competence is relevant but I am not persuaded on these materials that there is good reason to believe that there is substance to the allegation that he is incapable.
[22] I cannot tell where Mr. Ozdemir’s struggles with depression and chronic pain turn into capacity issues. The reports filed do not satisfy me that all of the necessary information has been provided. There is no evidence of any prejudice yet to Mr. Ozdemir, only Economical’s fears of difficulties for it. I am not told that there is any imminent settlement of this case; there appears to be no urgency to the proceeding so far - it was started in 2011. Mr. Ozdemir does not consent and appears to be aware of his circumstances.
Result
[23] Accordingly, the motion is dismissed. Economical shall forthwith pay to Mr. Ozdemir the outstanding income replacement benefits that it had been paying. Economical shall also continue to pay those benefits until further order of the court.
Costs
[24] If Mr. Ozdemir seeks costs, he shall provide his written submissions within the next 15 days. Economical shall respond within 15 days thereafter. Each submission shall be no more than three pages in length not including any offers to settle or bills of costs.
Lemon J.
DATE: October 26, 2015
COURT FILE NO.: CV-11-4963-00
DATE: 2015 10 26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ozdemir v. Economical Mutual Insurance Group
BEFORE: Lemon, J.
COUNSEL: Erol Ozdemir, in person for the Plaintiff
Tripta Sood, for the Defendant
ENDORSEMENT
Lemon J.
DATE: October 26, 2015