CITATION: Huang v. Braga, 2016 ONSC 1032

COURT FILE NOS.: 02-CV-223298 CM3

06-CV-316408 PD1

DATE: 20160211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHU HE HUANG and JIE WEI PAN, Plaintiffs

AND:

ANCIETO M. BRAGA, Defendant

AND:

SHU HE HUANG, Plaintiff

AND:

AVIVA INSURANCE COMPANY OF CANADA, LAWRENCE HARVEY FINE, JEWELL LAW, formerly named JEWELL MICHAEL & OBRADOVICH and GREGORY CHANG, Defendants

BEFORE: Mr. Justice T. McEwen

COUNSEL: Shu He Huang, in person

Alan L. Rachlin, for the Defendants Ancieto M. Braga and Aviva Insurance Company of Canada

Antonios T. Antoniou, for the Defendants Lawrence Harvey Fine and Jewell Law

Evan Kopiak, Student at Law, agent for Daniel J. Holland, for the former Plaintiff’s solicitor

Jasmine Daya

HEARD: February 2, 2016

ENDORSEMENT

[1] These actions have a long history and arise from a motor vehicle accident that occurred on January 24, 2000.

[2] As a result of that motor vehicle accident the plaintiff Shu He Huang (“Huang”) commenced a tort action against defendant Ancieto Braga (“Braga”) and a statutory accident benefits action against the Aviva Insurance Company of Canada (“Aviva”). Actions were also commenced against her previous counsel, although for the purposes of this endorsement I will only refer to the actions commenced against Braga and Aviva as these are the outstanding actions of consequence with respect to the issues that were before me. Counsel for the defendant lawyers did not make submissions.

[3] Over the years Huang has been represented by a number of counsel and the actions have been subject to a number of motions, including motions for delay, as well as pre-trial conferences and trial management.

[4] Given concerns about Huang’s capacity, Braga brought a motion to appoint the Public Guardian and Trustee as Litigation Guardian for Huang. Ultimately, in January, 2015, Justice Archibald ordered that a capacity assessment of Huang be performed and adjourned the matter at that time.

[5] A capacity assessment was conducted by Dr. Eva Chow, a Cantonese-speaking psychiatrist. Dr. Chow, in her March 29, 2015 report, concluded that Huang was capable, although she identified psychiatric disorders.

[6] In April of 2015 Huang was represented by counsel and a trial date of June 1, 2015 was set. In May 2015 there was a tentative settlement of both the tort and accident benefits claims which Huang ultimately refused to complete.

[7] The matter came before me on October 16, 2015 in my capacity as Civil Team Leader when Huang’s counsel sought to remove himself as solicitor of record. I granted the order given the breakdown in the relationship between counsel and Huang. At that time there was a trial date set for November 16, 2015.

[8] I thereafter began case management of the file. I had significant concerns as to Huang’s ability to proceed to trial on a self-represented basis given the complexities of a jury trial involving tort and accident benefit issues; the fact that Huang requires an interpreter for trial which adds logistical problems; the nature of the defendants’ offers that have been rejected; and, notwithstanding the fact that she passed a capacity assessment, her seeming lack of appreciation of the consequences of her decision to act in person.

[9] Over the objections of defence counsel, and with the agreement of Huang, I vacated the November 16, 2015 trial date and advised the parties that I was going to attempt to appoint Amicus Curiae counsel for Huang. I continued to case manage the matter through to the end of 2015. During this time I engaged the assistance of Pro Bono Law Ontario to try to locate counsel who would agree to prepare the case for trial, and attend at trial, on behalf of Huang as Amicus Curiae. This posed a number of significant challenges since counsel would have to be prepared to take certain financial risks with respect to fees and disbursements. In November, at the request of Braga’s counsel, I also scheduled a motion to dismiss the tort claim for delay returnable February 8, 2016.

[10] With the assistance of Pro Bono Law Ontario, in January 2016, counsel was located who was willing to act as Amicus Curiae. These matters returned before me on February 2, 2016 to, amongst other things, finalize the order with respect to the appointment of Amicus Curiae. Unfortunately, at that time the proposed counsel advised me that, notwithstanding her earlier discussions with Huang and the belief that she could act as Amicus Curiae, she had experienced a complete breakdown in the relationship with Huang and could not act as Amicus Curiae. At the recommendation of defence counsel I had a private conversation with Huang and proposed counsel. The conversation confirmed that this was the case.

[11] I was also advised by Huang that she wished to carry on and represent herself at trial and was no longer interested in the assistance of Amicus Curiae. Huang also turned down my offers to assist the parties in an effort to resolve the outstanding actions. Huang was firm in her resolve that she wished the matter to proceed to trial.

[12] In these circumstances, although I continue to have significant concerns as to Huang’s ability to meaningfully represent herself at trial, I have come to the reluctant conclusion that there is nothing further I can do to assist her. To do so would be unfair to the defendants.

[13] Accordingly, I am discontinuing my efforts to appoint Amicus Curiae and will now proceed to schedule the trial. At the same time I will schedule Braga’s motion to dismiss for delay, and the plaintiff’s former lawyers’ motion for a charging order, which were adjourned by me as a result of the recent events above. I have urged Huang to approach Pro Bono Law Ontario to try to arrange for some form of assistance or retain counsel. This, of course, is her decision to make.

[14] My assistant will soon be in touch with the parties to arrange for a brief court attendance to schedule the outstanding matters.

Mr. Justice T. McEwen

Date: February 11, 2016