Court File and Parties

COURT FILE NO.: 15-53371 DATE: 2016-June 2

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

VALERIE LUMMACK Jon Giacomelli and Ruzbeh Hosseini, Counsel for the Plaintiff Plaintiff

• and -

JAMES DANIEL CAMPBELL, DAY & CAMPBELL LIMITED and METRO MASONRY (HAMILTON) LTD. Rocco DiPucchio and Andrew Winton, for the Defendants Defendants

HEARD: May 18, 2016 in Hamilton

Endorsement

The Honourable Mr. R.J. Harper

Issues:

[1] This is a motion to correct the name of the Plaintiff from “Valerie Lummack” to “Valerie Lummack by her litigation guardian Keith Lummack”.

[2] Keith Lummack (Keith), Valerie Lummack’s (Valerie) husband, has brought a motion to be appointed as Valerie’s Litigation Guardian in an action in the Superior Court of Justice as action No. 15/53371. The Style of Cause in this proceeding shows Valerie Lummack as Plaintiff and James Daniel Campbell and Metro Masonry (Hamilton) Ltd and Day & Campbell Limited as Defendants. This motion is brought pursuant to the Rules of Civil Procedure r. 7.01.

Background:

[3] Keith is a medical doctor and is the husband of Valerie. They have been married for 46 years. James Daniel Campbell (James) is the brother of Valerie. The above action was commenced on June 16, 2015. It is represented that the action was commenced in the wrong name for the Plaintiff through the inadvertence of the Plaintiff’s counsel, Cambridge LLP. The counsel of record is shown as Jon Giacomelli and Ruzbeh Hosseini.

[4] The Statement of Claim in this action, among other things seeks $3,000,000.00 in damages against James for breach of fiduciary obligations and a declaration that James has acted in bad faith. The claim amounts to serious allegations of wrongdoing on the part of James in the manner in which he has managed the family business that is co-owned by Valerie and James.

[5] According to the testimony of Ruzbeh Hosseini, one of the counsel for the moving party Keith, in his examinations dated January 20, 2016, the action was authorized not by Valerie Lummack but by her husband Keith Lummack in his capacity as Power of Attorney for property for his wife Valerie. The Power of Attorney was signed by Valerie on October 18, 2010. There is no dispute as to the validity of this Power of Attorney. The Continuing Power of Attorney reads in part:

“I appoint my spouse, Dr Keith Lummack, of the City of Hamilton in the Province of Ontario, to be my Attorney for Property and I authorize my Attorney to do, on my behalf, any and all acts which I could do if capable , except make a will, subject to any conditions and restrictions contained herein.

My Attorney shall have the authority to act as my Litigation Guardian if one is required to commence, continue, defend or represent me in any proceeding.” (italics are mine)

[6] The Defendant, James, takes the position that the neither Keith nor his solicitors took any steps to determine if Valerie “required a Litigation Guardian”. During the course of this motion to change the style of cause, the moving party obtained an expert report of a Dr. Turrall, a Psychologist and Capacity Assessor. He also provided a brief report and some notes of Dr Picard, who has been the treating Neurologist of Valerie for the last five years. James takes the position that neither the reports of Dr. Turrall nor the report and notes of Dr Picard establish on the balance of probabilities that Valerie is not capable and that a Litigation Guardian should not be appointed.

[7] In support of his position, James filed an expert critique report of a Dr. Shulman dated December 9, 2015. Dr. Shulman is a Psychiatrist. He makes it clear, in the above report, that: “You have emphasized that you are not seeking my opinion on the ultimate question of Valerie’s capacity to instruct counsel. Rather, you are asking me to confine my opinion to a review and comment on Dr. Picard’s letter of Oct. 27, 2015 as well as paragraph 3 of Keith Lummack’s affidavit.” Dr. Shulman then goes on, in this report to “Comment on general principles related to the assessment of mental capacity”.

[8] Dr. Shulman submitted a “supplementary expert professional opinion regarding a recent capacity assessment conducted with Valerie. The report stated:

You are asking my clinical opinion on ‘whether the capacity assessment is probative on the issue of whether Mrs. Lummack is incapable of instructing a lawyer, having regard to the established legal test…”:

a. She is unable to understand information relevant to making a decision in respect to an issue in the litigation; or

b. She is unable to appreciate the reasonably foreseeable consequences of the decision or lack of the decision and the standards for testing capacity.

The Evidence of Capacity of Valerie:

[9] Valerie has significant medical issues. She was diagnosed with a form of brain cancer (astrocytoma) in 2007. According to the report of Dr. Graham Turrall, Valerie “has experienced a very traumatic, primary brain malignancy, and continues to suffer from the sequalae of this injury.” The limitations of Valerie’s daily functioning were increased due to the massive amounts of radiation that were needed to treat her cancer after surgery.

[10] Dr. Picard, in his letter of October 27, 2015 stated:

The astrocytoma grade III was surgically removed in 2007. She has received maximum radiation therapy. The combination of radiation therapy, surgical resection and tumor infiltration itself has adversely affected the brain in a general way which has certainly affected (amongst other areas), the motor cortex and the executive decision making cortex making it very difficult for Valerie to perform any ADL (Activities of Daily Living). Unfortunately, Valerie has become “incompetent” from a decision making perspective and will need to have a substitute decision maker for all of her important decision from now on. I strongly support the activation of her power of attorney and appointment of her next of kin (her husband) as litigation guardian for her legal, financial, medical and other important personal affairs”.

[11] Dr. Shulman’s report dated December 9, 2015 was merely a critique of the letter of Dr. Picard dated October 27, 2015. Dr. Shulman is a Professor and Lewar Chair of Geriatric Psychiatry in the Department of Psychiatry at the University of Toronto, Faculty of Medicine based at Sunnybrook Health Sciences Centre. He did not see Valerie nor did he interview any other collaterals. He was only offering an opinion relative to his review of Dr. Picard’s letter of October 27, 2015. Dr. Shulman also commented on certain statements made by Keith Lummack in an affidavit sworn by him on January 15, 2016.

[12] In summary, it was Dr. Shulman’s opinion that neither the statements of Keith Lummack about his observations of Valerie and the opinion of Dr. Picard deal with what Dr Shulman feels is necessary. Dr. Shulman expressed his opinion that a “specific examination and probing of the capacity of Valerie to determine if she has the ability to understand all of the issues relative to this specific litigation and the ability to instruct counsel and appreciate the consequences of making or not making a decision.”

[13] Subsequent to Dr. Shulman’s letter of December 9, 2015, Dr. Graham Turrall conducted a capacity assessment of Valerie. His assessment consisted of having 2 meetings with both Valerie and her husband Keith. In addition, he reviewed certain documents such as the Statement of Claim, in this action, and the report of Dr. Picard dated October 27, 2015. His also conducted a Mini Mental Status Examination (MMSE) of Valerie. Dr. Turrall had the opportunity to clinically observe Valerie for a period of approximately 2 hours.

[14] In Dr. Turrall’s opinion, Valerie is not capable of understanding all of the relevant issues, nor could she instruct counsel nor appreciate the consequences of making or not making decisions.

[15] Subsequent to the issuance of the report of Dr. Turrall, Dr. Shulman provided a supplemental report commenting and critiquing the report of Dr. Turrall. Dr. Shulman stated that Dr. Turrall’s assessment was lacking. He stated in the last paragraph of his letter of January 13, 2016:

For these reasons, I do not consider the capacity assessment of December 17, 2015 as described by Dr. Turrall to be sufficient to determine that Valerie is not able to understand the relevant facts and appreciate the consequences of this particular litigation. In my clinical opinion, an assessment that accommodates for a potential communication deficit is necessary to determine whether Valerie can instruct counsel. (my emphasis).

[16] Despite the opinion of Dr. Shulman that Dr. Turrall’s assessment was lacking and his opinion should not be accepted as it was incomplete, the Defendant did not seek to have an independent medical examination. The position of the Defendant was that it was the Plaintiff who had the onus of proof and they did not meet the onus.

[17] The Plaintiff takes the position that they did meet the onus and that Dr. Turrall’s opinion, that is supported by the treating neurologist, Dr. Picard, and the input from Valerie’s husband, is sufficient evidence. The Plaintiff urges me to draw an adverse inference against the Defendant. The Plaintiff argued that the Defendants’ expert stated that “an assessment that accommodates a potential communication deficit is necessary to determine whether Valerie can instruct counsel.” That should have caused the Defendant to seek an independent medical examination. As a result of the Defendant not doing that, I should draw the inference that any independent medical examination would have gone against the Defendant.

[18] The Defendant spent a significant time arguing that Valerie is under a physical disability that impedes her ability to communicate and as a result any assessment must accommodate for such a disability. The Assessment that was offered by the Plaintiff’s expert did not accommodate the communication deficits. When the critique report of Dr. Shulman was received by the moving party, he did not attempt to adjust his experts review in order to accommodate the communication deficits. Since the onus is on him to prove his case on the balance of probabilities, the moving party is the one who should have sought an assessment that cleared the issue of communication deficits of Valerie. Instead, Dr. Turrall submitted a critique of Dr. Shulman’s critique. The second letter of Dr. Turrall is dated February 17, 2016. It has the caption: “Expedited response to the opinion of Dr. K Shulman dated January 13, 2016.”

[19] Dr. Turrall stated that he disagreed that his assessment and the assessment of Dr. P. Picard were not reliable or valid estimates of Valerie’s mental capacity to instruct counsel. Dr. Turrall points out that his assessment is a “Letter of Opinion and not a Capacity Assessment.” He goes on to state that while they are similar the “Letter of Opinion does not require the Capacity Assessor to follow the guidelines outlined by the Ontario Government in the Substitute Decisions Act. Dr. Turrall states that Dr. Shullman is “incorrect in his report that my assessment constitutes a Capacity Assessment”.

[20] Dr. Turrall goes on to state:

Most people can make relatively simple decisions about what to eat, when to eat, etc. without assistance. With respect to Ms. Lummack, her decision-making abilities particularly her ability to instruct counsel and communicate with counsel was cumulatively assessed by: two (2) clinical interviews, a mental status examination; results of a screening instrument (MMSE) and an interview with her primary care-giver, Dr. K. Lummack her husband. This information provides sufficient data to make an opinion on Ms. Lummack’s mental Capacity.

[21] Dr. Turrall also provided a very terse rebuke of Dr. Shulman. He stated in this latest report:

With respect to Dr. Shulman, he fails to understand the degree to which forensic psychology skills will necessarily address an evaluation of any client to communicate. The appreciation of the limited cognitive capacity test, as developed under the common law, and now enshrined in the Criminal Code, is always, in part, premised on the capacity of the individual to communicate. They need not have high level abstract reasoning facilities, but at a minimum must be able to communicate with their counsel.

[22] It is remarkable that both Dr. Shulman and Dr. Turrall both signed the “Acknowledgement of Experts Duty”. That duty includes:

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within my area of expertise; and

(c) to provide such additional assistance as the court may reasonably require, to determine a matter in issue;

[23] The above duty prevails over any obligation which the expert may owe to the party by whom or on whose behalf the expert was engaged.

[24] I find that both Dr. Turrall and Dr. Shulman stretched the boundaries of fairness, objectivity and non-partisanship in the expressions of their opinions and critiques of each other.

Analysis

[25] I find that, as a result of a malignant tumor, its resection and subsequent radiation, Valerie has serious and ongoing sequela that is increasing in their severity. They have been described by her husband Keith, who is a medical doctor to include:

Grand Mal Seizures;

Aphasia (can’t communicate properly);

Some Memory Deficits;

Some Cognitive impairment.

[26] One of her lawyers, Mr. Hosseini, stated in his examination that Valerie did not recognize him within a week or two of her being previously in his office. Keith Lummack testified that his wife cannot even make decisions on simple matters of daily functioning such as what and when to eat, let alone making decisions relative to a complicated law suit.

[27] Part of the problem that is emphasized by Dr. Shulman is that the observed memory issues may be connected to her deficits in her ability to communicate. Her inability answer questions posed to her by Dr. Turrall may also be connected to her inability to communicate. Dr. Turrall took exception to Dr. Shullman’s ability to observe and assess an individual’s ability to communicate during the process of doing a capacity assessment. He points out that he has done many such assessments and is quite able to assess a person’s ability to communicate.

[28] Dr. Turrall points out that Valerie scored extraordinarily low on the MMSE. She scored only 2 relative to a norm of 30. He concedes that the MMSE is only one measure and maker to be considered within an assessment of capacity. Although Dr. Shulman did not conduct any clinical interviews of Valerie he pointed out that some of the observations of Dr. Turrall are inconsistent with such a low score on the MMSE. Some of the inconsistencies that are set out in Dr. Turrall’s Supplemental Report were detailed by Dr. Shullman as follows:

“Mrs. Lummack was observed to be attentive, alert, perceptive, with a keen sense of humor”

“She is observed to be motivated to participate in interviews and understood, to some degree, the purpose ad potential consequences of this assessment”

[29] Dr. Shulman pointed out that a sense of humour and being perceptive and attentive are not what one would expect from someone who scored so low on the MMSE. Dr. Shulman also stated that from Valerie’s noted sadness and depression, she is no longer the person that she used to be, is also inconsistent with the MMSE’s severely low score because it shows she is insightful.

Dr. Picard:

[30] I find that Dr. Picard, as her treating neurologist for 5 years would have had the opportunity to provide this court with valuable insights into the capacity of Valerie. However, neither his report nor his clinical notes are helpful. The report is more conclusions rather than views that are evidentiary based. His observations relate more to the issue of inability to communicate rather than relating to her mental capacity. He simply does not draw the nexus needed to the issue of capacity to understand versus the capacity to communicate.

Doctor Turrall:

[31] Dr. Turrall did a capacity assessment that I find to be thorough, except for providing any accommodations that may be needed to deal with Valerie’s Aphasia and resulting communication deficits. I am concerned about the discrepancies relative to the severely low MMSE findings of cognitive deficits and other observations that might indicate that the MMSE findings are inconsistent with observed cognitive functioning.

[32] I am also concerned that Dr. Turrall did not specifically provide for accommodations relative to the communication deficits.

Doctor Shulman:

[33] Dr. Shulman’s involvement is very restricted. He provided critique that places red flags in the courts ability to sufficiently rely on the assessment of Dr. Turrall. The most significant red flag is the communication deficits not being accommodated for in any assessment in order to separate that issue from the issue of capacity. He did provide an opinion on what is needed in order to overcome the red flags. However, neither he nor Dr. Turrall addressed this.

[34] I find that, as with many critique opinions, they tell the court more what not to do rather than what to do.

The Law and Analysis:

[35] In the case of Calvert v. Calvert, at paras. 54-59 where Benetto J. wrote as follows:

It has long been recognized that there are varying degrees of capacity:

A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and Associate Professor of Geriatrics at McMaster University, said:

Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments.

The courts have recognized these varying levels of capacity. Birkert L.J. said there “can be no doubt there are degrees of capacity”: Park v. Park, [1953] 2 All E.R. 1411 at p. 1434, [1954] P. 112 (CA).

There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy...

[50] In 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, Justice Stinson reviewed the purpose of rules 1 and 7 of the rules of Civil Procedure and in order to determine when a party is under a disability requiring an appointment of a litigation guardian. Commencing at para 15 he stated:

Does this court have jurisdiction to order a party to attend a mental examination to determine whether he or she is a party under a legal disability?

[15] Before addressing whether the court has jurisdiction, it is instructive to examine the purposes of Rule 7 of the Rules, as well as the definition of disability and the nature of the evidence required for a court to determine whether a party is a party under a disability.

(a) The purpose of Rule 7

[16] When the court is dealing with a person under a disability, a number of unique procedural rules and safeguards found in Rule 7 apply, including, for example, the rule that no settlement by or against a party with a disability is binding without the approval of a judge: rule 7.08. Of particular relevance to this case, Rule 7 also mandates that a person under a disability must be represented by a litigation guardian (rule 7.01(1)), and the court must appoint the PGT or the Children’s Lawyer to act as the litigation guardian for the person under a disability if no other proper person is willing and able to do so (rule 7.04(1)).

[17] These procedural safeguards set out in Rule 7 are designed to protect not only the person under a disability, but also "to protect the integrity of the judicial process for all participants in the litigation, including the Court." (Murphy v. Carmelite Order of Nuns). As noted by Lofchik J. in Lico v. Griffiths, at para. 24, because the rules protect the person under a disability, they consequently protect the entire court procedure. In that case, Lofchik J. cited with approval the following passage from Holmested and Watson: Ontario Civil Procedure, Vol. 2, p. 7-13, as quoted in Cameron v. Louden, [1998] O.J. No. 2791, by Master Beaudoin, in which the authors explain how the procedural requirement of appointing a litigation guardian, when a person is under a disability, offers protection to all involved in the proceeding:

The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party by ensuring that a competent person with a duty to act for the party’s benefit is there to instruct counsel and take steps in the litigation on the party’s behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs and is responsible for seeing that the court’s eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.

(b) The definition of legal disability

[18] Rule 1.03(1) states that “disability”, when referring to a person, means that a person is a minor, an absentee, or is “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not” [emphasis added]. Section 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, ("SDA"), defines incapacity to manage property in the following manner:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[19] It is important to highlight that, while the definition of disability in the Rules borrows from the SDA, the latter is a different legislative regime with a different purpose than Rule 7. Unlike Rule 7, which is designed to protect the integrity of the court process, the focus of the SDA is solely on the protection of the individual, and rightly so. There is much more at stake, in regards to an individual’s dignity, privacy, and legal rights, when, following a court-ordered capacity assessment under s. 79 of the SDA, he or she is deemed incapable of managing his or her personal care or property. As Strathy J. stated in Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.), at para. 48, SDA proceedings “are not a lis or private litigation in the traditional sense. The interests that these proceedings seek to balance are not the interest of litigants, but the interests of the person alleged to be incapable as against the interest and the duty of the state to protect the vulnerable.”

[20] In non-SDA matters, however, when the nature of the proceedings before the court has nothing to do with the type of substitute decision making governed by the SDA, different considerations apply. Indeed, when a matter simply involves a litigant who is a person under a disability, the procedures outlined in Rule 7, including the mandatory appointment of a litigation guardian (rule 7.01(1) and the mandatory court approval of any settlement (rule 7.08(1)), are designed and intended to provide adequate safeguards not just for the litigant under a disability, but also the other litigants, and the entire court process.

[21] Taken together, then, in a non-SDA proceeding governed by the Rules, in my opinion, the definition of “disability” in rule 1.03(1)(b) should be read along with s. 6 of the SDA to mean that someone will be considered a person under a disability if he or she is not able to understand information that is relevant to making a decision in the management of his or her property in respect of an issue in the proceeding, or if the person is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding. This definition imports the language of s. 6 of the SDA within the confines of rule 1.03(1)(b) and reflects the overall purpose of Rule 7 and rule 7.04(1)(b) in particular.

[36] I agree with the above comments of Justice Stinson. My determination must be whether the Plaintiff understands all of the relevant issues within these proceedings as it relates to her property and that she has the ability to appreciate the nature and consequences of making decisions with respect to her property within the context of this litigation. Justice Stinson goes in the above case commencing at Para. 22:

(c) The evidentiary basis for determining whether a party is under a disability

[22] While the appointment of a litigation guardian under the Rules is much less intrusive than the appointment of a guardian of property under the SDA, that does not mean that it is an insignificant event for the court to appoint someone to manage someone else’s lawsuit. In Bilek v. Constitution Insurance, [1990] O.J. No. 3117 (Dist. Ct.), at para. 2 Coo J. noted, “One must be very cautious in coming to a conclusion which would bar the plaintiff from having the final say in how his litigation is to be conducted or resolved.” Indeed, as stated in Direk v. Ontario (Attorney General), [2010] ONSC 3428, at para. 17, “Given the potential gravity of the consequences of appointing someone as a litigation guardian, cogent and proper evidence is required to support such a finding.”

[23] A person who is 18 years of age or more is presumed to be capable: SDA, s. 2(1). Where capacity is in doubt or challenged, the moving party bears the onus of establishing that a party is a person under a disability and must provide evidence regarding the “nature and extent” of that disability: rule 7.03(10)(d). See also the cases collected at Torok v. Toronto Transit Commission, [2007] O.J. No. 1773 (S.C.), at para. 24.

[24] Where the appointment of a litigation guardian is sought, it is not enough to establish that the individual's words, deeds, or choices seem unreasonable to others: C.C. v. Children’s Aid Society of Toronto, [2007] O.J. No. 5613 (S.C.), at para. 39. Rather, the evidence must establish that, in respect of an issue in the proceeding, the party is unable to understand and appreciate relevant information or the reasonably foreseeable consequences of a decision, not simply that they fail to – a fine distinction explained by Backhouse J. at para. 39 of C.C.: “There is a distinction to be drawn between failing to understand and appreciate risks and consequences and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity.” [Emphasis added.] Only the latter finding can lead to a determination that a party is under a disability.

[25] Put another way, the question is whether the person is able to understand information that is relevant to making a decision in respect of an issue in the proceeding or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding. As stated in Torok v. Toronto Transit Commission, at para. 40:

The ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the litigation includes the ability to consider a reasonable range of possible outcomes, including those that are unfavourable. This ability is essentially the capacity to assess risk, which requires consideration of a variety of results, both positive and negative.

[26] While the decision to appoint a litigation guardian ultimately rests with the court, it is a question to be decided largely on recent medical evidence: see Lico v. Griffiths, at para. 30. While the court will certainly consider other evidence, such as evidence from those who know the party well, and also the court’s impression of the party from his or her demeanour and testimony in court (see C.C., at para. 34), recent medical evidence as to the party’s ability to understand and appreciate the impact and consequences of litigation decisions is of great importance. In Lico v. Griffiths, for example, Lofchik J. decided to appoint the PGT as litigation guardian because the medical and other evidence indicated that Mr. Lico was unable to understand that a resolution without trial was a “once and for all thing”, and he failed to understand that his claim would likely be dismissed if he dismissed counsel.

[27] If the court does not have a proper evidentiary foundation upon which to make this determination, can the necessary evidence be procured by compelling the party to undergo a mental examination? While on a motion to appoint a litigation guardian rule 7.03(10)(d) requires evidence to be provided regarding the nature and extent of the disability, Rule 7 itself does not include any mechanism by which a party or the court can obtain or compel the production of such evidence where the evidence is otherwise lacking or unavailable.

[28] This situation may be contrasted with SDA proceedings regarding a party’s capacity to manage his or her personal care or property. There, s. 79 of the SDA expressly provides that the “court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purposes of giving an opinion as to the person’s capacity.” As noted above, the proceedings under the SDA are significantly different in focus and procedural protection than the appointment of a litigation guardian under Rule 7. The Court of Appeal has confirmed that the court may only have recourse to s. 79 of the SDA in the context of an SDA proceeding: Neil v. Pellolio, [2001] O.J. No. 4639 (C.A.).

[29] In the present case, the evidence concerning whether N.A. is a party under a disability consists of the Milojevic Report dated July 12, 2010, the Long Report, dated April 11, 2011, as well as N.A.’s litigation history and my personal observations. If I find that this is an insufficient evidentiary basis on which to make the important decision about whether to remove or appoint a litigation guardian for N.A., does the court have jurisdiction to compel her to undergo a mental examination?

(d) Does the court have jurisdiction to compel a party to undergo a mental examination for purposes of a Rule 7 motion?

[30] The PGT, amicus, and the defendants answer this question in the affirmative, albeit for different reasons. N.A. points to the lack of an express mechanism in the Rules as a deliberate omission and argues that this court does not have jurisdiction to compel her or any other party to undergo a mental examination for Rule 7 purposes.

[31] The PGT and amicus argue that the jurisdiction of this court to compel N.A. to attend a mental examination can be found in s. 105(2) of the CJA. Section 105, entitled “Physical or mental examination”, provides in full as follows:

105. (1) In this section,

"health practitioner" means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.

(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

(3) Where the question of a party's physical or mental condition is first raised by another party, an order under this section shall not be made 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.

(4) The court may, on motion, order further physical or mental examinations.

(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.

[32] In two recent cases, the courts have relied on its powers under s. 105 to order a party to attend a mental examination in order to provide evidence to the court whether the party was a person under a disability, and thus the appointment of the PGT was necessary. In Rishi v. Kakoutis, 2011 ONSC 7184, the plaintiffs claimed that the defendant was a party under a disability and sought the appointment of the PGT. Justice B.P. O’Marra stated that there was no medical evidence on the application on which to base a finding of disability, and so he relied on s. 105 to order the party to undergo a mental assessment and prescribed the conditions of that assessment. In reaching this conclusion, Justice O’Marra stated, at para. 5, that there was good reason to believe there was substance to the alleged disability, noting his observations of the defendant’s submissions in court, and stated that the results of mental examination were necessary and would assist “both parties and the court on the issue of whether a litigation guardian should be appointed”.

[33] In Twain v. North Bay (City), [2009] O.J. No. 1274 (S.C.), the defendant brought a motion to appoint the PGT for the plaintiff. In that case, Justice Kane had before him copies of correspondence, as well as his own observations of the party, but he did not have any medical evidence. In order to determine whether the plaintiff had a mental limitation or was merely “eccentric or fiercely stubborn”, Justice Kane ordered the plaintiff to undergo a mental examination pursuant to s. 105. As he stated at para. 9:

What the evidence demonstrates, including my exchanges with Mr. Twain during these motions, is the need for a medical opinion in order to clarify the issue of mental capacity. The appointment requested is a dramatic intervention in the rights of a party to an action, especially given the plaintiff’s clear opposition thereto. If Mr. Twain is not mentally incapable to understand the issues in the action based on the interpretation and advice of counsel in a manner which allows him to protect and pursue his legal interest, an appointment should not be made.

[34] Neither of these recent cases, however, referred to Handfield v. Lacroix, [1988] O.J. No. 2795 (H.C.J.), in which Smith J. held that s. 118 of the Courts of Justice Act, S.O. 1984, c. 11 (the predecessor to what is now s. 105), could not be relied on to compel a party to attend a mental examination where a plaintiff's capacity to litigate was raised by way of defence to the claim. In a short oral judgment, Smith J. held, at para. 6:

I am satisfied that the section was not designed for the purpose of addressing the sometimes thorny issue of the competency of the parties at the time the litigation is commenced or remains in progress once started. There are other procedural means available to deal with a piece of litigation when a party is or is thought to be incompetent.

[35] In that case, Smith J. expressed concern, at para. 8, that a party could simply defend an action by stating “I deny your claim because you are insane” (as the defendant, in effect, had done in that case) and then seek to force the plaintiff to undergo a mental examination. I share Smith J.’s concern that a party should not be allowed to raise the other party’s mental capacity for tactical reasons. In my respectful view, however, this concern is precisely why s. 105(3) contains added safeguards that prevent a court from ordering a party to undergo a mental examination merely because the other party has raised it as an issue. Where the question is first raised by another party, an order cannot be made unless the allegation is relevant to a material issue and there is evidence to support it.

[36] In Handfield, the plaintiff and the defendant were close friends who had lived together for over 30 years. They had a falling out and the plaintiff’s lawyer wrote to the defendant requesting return of all of the plaintiff’s personal effects. The defendant declined on the ground that the plaintiff was mentally incompetent and was acting by reason of undue influence. The lawyer then commenced an action, in response to which the defendant again raised the issue of the plaintiff's competency. The defendant then sought and obtained an interlocutory order for a mental examination pursuant to what is now s. 105. The plaintiff appealed and the order was set aside by Smith J.

[37] As I read the facts in Handfield, without satisfying the requirements of s. 105(3), the defendant sought to engage the discovery mechanism provided by s. 105 and rule 33.02 in order to establish a substantive defence to the plaintiff's claim. On the record there, the appeal court refused to permit the defendant to do so, and set aside the order below. Significantly, there was no discussion regarding the potential need or mechanism for appointing a litigation guardian for the plaintiff, which is the issue addressed in Rishi and Twain, and raised before me on this motion.

[38] To the extent Handfield may be read as prohibiting resort to s. 105 in proper circumstances in connection with securing evidence to determine whether a party needs to be represented by a litigation guardian, I respectfully disagree with that interpretation. The CJA and the Rules are expressly designed and tailored to address the issues and concerns that arise in connection with the litigation and resolution of civil disputes, including due representation of parties, and in particular parties under a disability. They contain appropriate procedures, checks and balances to ensure that all parties' rights are fairly protected and determined and the integrity of the court's processes are preserved. One such feature is the requirement, in appropriate circumstances, of a litigation guardian to represent a party's interests. Absent an express direction to do so under the statute or the Rules, I see no need to invoke mechanisms or processes outside those provisions in order to determine if a litigation guardian is required (or should be removed). Rather, the procedures provided under the CJA and the Rules should be relied upon.

[39] I further note that Handfield was decided 25 years ago, and some 13 years prior to the decision the Court of Appeal in Neil v. Pellolio. As I have mentioned previously, the court in Neil confirmed that recourse to the SDA assessment procedure may only be had in the context of an SDA proceeding. That process, therefore, is both unsuited and unavailable to help determine the potential need for a litigation guardian.

[40] That is not to say that on either a motion to appoint or remove a litigation guardian, a mental examination should be the norm, and if not forthcoming should automatically be ordered under s. 105 of the CJA. To the contrary: ordinarily the evidence on such a motion should be presented by way of affidavits from persons who already possess the relevant information, without need for a court-ordered mental examination. A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination. See the comments of Wilton-Siegal J. in Zheng v. Zheng, 2013 ONSC 4217, [2013] O.J. No. 2957 (S.C.) at para. 24. Where the issue of the need for a litigation guardian is raised by the adverse party and a s. 105 examination is sought, the particular requirements of s. 105(3) will need to be satisfied.

[41] For these reasons, I hold that this court has jurisdiction under s. 105 of the CJA to compel a party to undergo a mental examination for the purposes of providing evidence to decide whether the party is a person under a disability for whom a litigation guardian is required pursuant to rule 7.01(1).

[37] In the case before me the issue of capacity has now been raised by the person seeking the appointment as litigation guardian. The law suit was started in error. However, in my difficult task of attempting to protect Valerie given her many health challenges and allowing her the autonomy to make her own decisions, I am faced with evidence that strongly suggests that she is not capable of understanding of the relevant issues nor is she capable of appreciating the consequences of any decision. However, my ability to make a finding is clouded by the lack of evidence as to the degree to which her inability to communicate reflects upon her capacity to understand and appreciate.

[38] Although I agree with Justice Stinson that I do have the jurisdiction pursuant to the Courts of Justice Act s. 105 and appoint a person to conduct a mental capacity assessment that accommodates for Valerie’s deficits in communicating, I am also of the view that I do not need to go that far at this stage. I want to emphasise the “Acknowledgement of Experts Duty signed by both Dr. Shulman and Dr. Turrall. Both agreed that they have a prevailing duty to the court to:

3 (c) Provide such additional assistance as the court may reasonably require, to determine a matter in issue. I will hold them to that duty.

[39] I direct that Dr. Turrall either conducts a further clinical interview with Valerie that specifically utilizes accommodations for her communication deficits and report back to this court within 30 days or provide the court with evidence as to why such accommodations are not necessary and report back to this court within 30 days.

[40] The Defendants may serve and file a responding report within 10 days from receipt of the report of Dr. Turrall.

Harper J. Released: June 2, 2016