Court File and Parties

COURT FILE NO.: 15-66501 DATE: 20160802 SUPERIOR COURT OF JUSTICE – ONTARIO (note: on a leave motion to appeal the interlocutory order of a Superior Court Judge you are sitting as a judge of the Superior Court, not as a judge of the Divisional Court)

RE: Manorama Sennek, Applicant/Appellant AND Carleton Condominium Corporation No. 116, Respondent

BEFORE: Justice Robert N. Beaudoin

COUNSEL: Applicant/Appellant, self-represented Antoni Casalinuovo, for the Respondent

HEARD: In writing

Endorsement

[1] This is a motion for leave to appeal to the Divisional Court from the order of Justice Kershman, dated March 15, 2016, brought pursuant to Rule 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Procedural History and Background

[2] Following an oral motion brought by the Respondent, Carleton Condominium Corporation No. 116 (CCC No 116), Justice Kershman found that there were grave concerns with respect to the Applicant, Manorama Sennek’s ability to conduct the matter before him as well as a related Small Claims Court action. He accordingly ordered an assessment in accordance with s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). That assessment was to be conducted by an assessor as defined by subsection 1(1) of the Substitute Decisions Act, 1992, S.O. 1992, c.30, (“SDA”) and as chosen by Ms. Sennek from the roster of capacity assessors maintained by the Office of the Public Guardian and Trustee, such assessor to assess Ms. Sennek’s mental condition and advise the court with respect Ms. Sennek’s ability to understand information relevant to making decisions in the within litigation and in a related Small Claims Court action; and Ms. Sennek’s ability to appreciate the reasonably foreseeable consequences of a decision or lack thereof in the within litigation and in the Small Claims Court action.

[3] The order went on to allow CCC No. 116 to name the capacity assessor in the event that Ms. Sennek failed to do so within the time period provided. The motions judge also ordered the cost of the assessment to be borne by Ms. Sennek. In the event that the CCC No. 116 was required to proceed to make the necessary arrangements, CCC No. 116 was to pay the costs and costs would be added to the common expenses for Ms. Sennek’s unit. Justice Kershman directed that a copy of his endorsement be provided to the Office of the Public Guardian and Trustee. He remained seized of the matter until the assessment issue was resolved. He ordered no costs on the motion.

[4] The dispute between Ms. Sennek and CCC No. 116 arose out of a lien that CCC No.116 had registered against Ms. Sennek’s property. The Respondent was seeking to recover the costs of removing a frame around Ms. Sennek’s raised garden bed from her front yard to her backyard. An earlier Small Claims Court proceeding that advanced several tort claims against a number of defendants disputed the Respondent’s entitlement to remove her garden frame and to collect the costs of same.

[5] Ms. Sennek brought this application seeking to discharge the lien. The parties initially appeared before me and the Respondent obtained an adjournment to file responding material on its undertaking not to take any further enforcement proceedings until the Applicant’s application could be heard on its merits. The parties appeared before Justice Kershman on February 19, 2016. At that time, it appears that the Applicant sought a further adjournment and Justice Kershman proceeded to hear the oral motion presented by the Respondent seeking an assessment of the Applicant’s capacity.

[6] In deciding the issue, the motions judge reviewed the provisions of s. 105 of the CJA and the provisions of Rule 7 and of the SDA. In coming to his decision, the motions judge considered the material before him and the concerns raised by the Respondent about Ms. Sennek’s behaviours. When looked at separately, he concluded that each of these behaviours might not be considered odd, but when looked at in totality, he found that Ms. Sennek’s behaviours appeared to be bizarre. He specifically cited her behaviour with respect to her identity and that this was an issue in the Small Claims Court action. He noted her complaints made to the Privacy Commission and to the Law Society of Upper Canada (LSUC) against the Respondent’s counsel and the derogatory terms that she used in reference to others in her pleadings. He noted that the Respondent had already incurred legal fees of over $18,000 because of an original lien claim in the amount of $763.14.

[7] Ms. Sennek now seeks to appeal that motions judge’s decision to order the assessment although the basis for that appeal it is not clear from the material that she has filed. She claims that Justice Kershman erred in arriving at his decision to order the assessment. Since she also cites the decision of Justice Stinson in 626381 Ontario Ltd. v. Kagan, 2013 ONSC 4114, 116 O.R. (3d) 202, I will consider both branches of the test.

[8] In support of her motion for leave to appeal, the Applicant has filed a Factum, an Amended Factum and a Supplemental Reply Factum. She has also filed an affidavit to which she attaches the voluminous materials that were filed in the Small Claims Court action. Most of her material focuses on her concerns over the disclosure of her identity. The name that she uses in this proceeding and in the Small Claims Court action does not correspond with the name of the registered owner (M.S.) of the condominium unit in issue. The Applicant maintains that she has changed her name due to safety concerns which were not disclosed to the Court. Those safety concerns are repeated in her leave to appeal materials and remain undisclosed.

[9] Her notice of motion for leave to appeal is actually signed by Andre Bluteau, a lawyer here in the city of Ottawa although all of the material appears to have been prepared by the Applicant herself. In her factum, the Applicant sets out that she practiced law in British Columbia between 1996 and 2010. She then relocated to Ottawa and she is pursuing graduate studies now at Carleton University where she claims she is conducting a comparative media analysis of English-language media reports by country to ascertain the socioeconomic factors of honour crime. She appears to have discontinued LLM research at the University of Ottawa where her research was entitled “Public-sector Disclosure of the Personally Identifiable Information of Vulnerable Individuals.” According to her factum, the Applicant discovered that the “risks targets of honour crime cannot be understood while honour crime is conflated with domestic violence.”

Test for Leave to Appeal

[10] Rule 62.02(4) of the Rules of Civil Procedure provides that leave to appeal an interlocutory order shall not be granted unless:

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

b) there appears to the judge hearing the motion good reason to doubt the correctness of the Order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

This creates two alternative bases on which leave may be granted, each one containing two conjunctive elements.

[11] For the reasons set out below, the motion for leave to appeal is dismissed.

Discussion

Conflicting Decision

[12] The test under rule 62.02(4)(a) has two branches. First, the Applicant must show that there is a conflicting decision by another judge in Ontario or elsewhere on the matter involved in the proposed appeal. Second, the Applicant must satisfy the Court that it is desirable that leave to appeal be granted.

[13] To succeed in a motion for leave to appeal pursuant to rule 62.02(4)(a), it is essential that the Applicant satisfy the Court that there is a conflicting decision where there is a difference in the principle chosen as a guide to the exercise of a Judge’s discretion (Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 at para. 7 (Div. Ct.)).

[14] A judge who exercises his or her discretion when the circumstances of the case are different than in other jurisprudence is not necessarily making a “conflicting decision.” A motion judge’s decision is entitled to deference. Therefore, in order to be successful on a motion for leave to appeal, it is necessary for the applicant to demonstrate that there is a difference in the principles chosen by the motions judge as a guide to the exercise of discretion, and not simply a different set of facts leading to a different conclusion (Nikore v. Proper, 2010 ONSC 2307 at para. 33, 101 O.R. (3d) 469 (Div. Ct.)).

[15] In the 626381 Ontario Ltd. decision cited by the Applicant, Justice Stinson concluded that the Court have jurisdiction pursuant to s. 105 of the CJA to compel a party to undergo a mental examination to determine if a party is under a disability. He held at paras. 58, 59 and 60 of the decision;

[58] The foregoing review establishes that a contextual analysis must be employed in order to determine whether an order under s. 105 of the CJA directing a party to a civil proceeding to undergo a mental examination in connection with the appointment of a litigation guardian adheres to the principles of fundamental justice. The Court must balance the affected party’s fundamental rights against the Court’s duty to protect the vulnerable, the interests of the other parties and the Court, as well as the societal interest of a fair, efficient and effective dispute resolution process.

[59] The appointment of a litigation guardian is an important procedure designed, in part, to protect the rights of vulnerable persons who find themselves engaged in litigation. As previously noted, courts are cautious in appointing a litigation guardian because it is a serious intrusion on an individual’s autonomy and privacy as well as the individual's right to manage his or her own legal proceeding. That said, there are other interests that come into play, as well. The Court cannot make a determination whether a party requires the assistance and protection of a litigation guardian, however, without adequate evidence. In circumstances where such evidence is not available, it may be necessary to resort to the power to require a party to undergo a mental examination under s. 105 of the CJA to ensure that the Court is able to fulfill the objectives of Rule 7.

[60] Where an order is sought under s. 105, the rights of the individual are guarded by several procedural protections. Firstly, a s. 105 order may only be obtained by way of a motion to the Court. This means that the party affected is entitled to notice and an opportunity to be heard and to respond and oppose the request. The decision will be made by an independent third party, based upon judicial principles, and the relief will be granted only where the Court is satisfied that the mental condition of the party is in question and that the s. 105 examination is necessary to provide evidence germane to that issue. Recourse may be had to avenues of appeal. In addition, s. 105(3) further protects the individual against unnecessary and improperly motivated requests for such an examination by requiring that, when the issue is raised by another party, there must be good reason to believe there is substance to the allegation of legal disability. This means that recourse to this provision cannot be had for capricious or inappropriate reasons. The information or report that is produced by means of the examination is automatically subject to the deemed undertaking rule (see rule 33.1.01(1)(a)(iv)) and can be (and routinely is) subject to a sealing order, so that the information remains private and may only be used for the purposes of the proceeding.

[16] In this case, the motions judge allowed the motion to be presented without prior notice since this is permitted by the Rules of Civil Procedure “where the nature of the motion or the circumstances render service of notice of motion practicable or unnecessary” [1]. The motions judge did not adopt the procedure recommended by Justice Stinson, but he had the discretion to do so. The Applicant was present during the motion and according to the Respondent, she raised no objection that the motion was improper and both parties were provided with a recess to consult relevant authorities regarding the motion. According to the Respondent, the Applicant voluntarily provided evidence and made submissions on the issue.

[17] It is apparent that the motions judge conducted a contextual analysis in order to determine whether the order should be made and attempted to balance the affected party’s fundamental rights against the court’s duty to protect the interests of the other parties and the Court, as well as the societal interest of a fair, efficient and effective dispute resolution process. It is my view that the decision referenced by the Applicant does not demonstrate a difference in principles chosen to guide discretion. As such, they are no conflicting decisions for the purpose of rule 62.02(4)(a) and the first branch of the test is not made out.

[18] I find that the first branch of the test under rule 62.02(4)(a) has not been met; therefore, it is not desirable that leave be granted on the basis that there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal.

Good Reason to Doubt Correctness of the Decision

[19] The test under rule 62.02(4)(b) contains two branches. To succeed in a motion for leave to appeal pursuant to rule 62.02(4)(b), the applicant must satisfy the Court that (1) there is good reason to doubt the correctness of the motion judge’s decision and (2) that the appeal raises matters of general importance (Bell ExpressVu Limited Partnership v. Morgan at paras. 1-3 (Ont. Div. Ct.)).

[20] The phrase “good reason to doubt the correctness of a decision” does not require a conclusion that the decision in question was wrong or even probably wrong. Nor does it require that the judge hearing the leave motion would have decided it differently had he or she been presiding as the motions judge. The test is whether the decision is open to serious debate (Judson v. Mitchele, 2011 ONSC 6004 at para. 15, 108 O.R. (3d) 129. See also Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.)).

[21] The motions judge found that the most bizarre aspect of Ms. Senneks’ behaviour related to her identity. When she purchased the condominium unit it was first registered in the name of M.S.. Although the Applicant now identifies herself as Manoram Sennek, no documents have been registered on title to confirm this new identity. The Applicant maintained that she changed her name due to safety concerns for herself and her child, but she did not provide the evidence of the safety concerns to the Court. She refused to provide the Respondent with copies of documents to show that she is one in the same person as M.S.. She only shows the original documents to people that she feels are authorized to see them and refuses to provide copies of the documents.

[22] The motions judge found that the Applicant had used five different names and had three different email addresses. He confirmed that the Applicant had used those identities in several of the exhibits filed on the application.

[23] The motions judge noted that the Applicant had filed a complaint with the Privacy Commission concerning the Respondent’s efforts to ascertain her identity and that the Privacy Commission had declined to pursue the complaint and closed its file. He also noted that the LSUC had received five complaints from the Applicant concerning four lawyers and one paralegal. The LSUC had dismissed four of the complaints and the Court was not aware of the status of the fifth.

[24] The Court noted the derogatory references made to a number of different individuals including opposing counsel and concluded that the legal fees incurred by the Respondent or greatly in excess of the original lien claim.

[25] The Applicant argues that the motions judge erred:

• in proceeding with the motion without prior notice and without giving her an opportunity to consult counsel and file responding materials and for not complying not complying with the procedural requirements of the SDA;
• by failing to consider a reasonable expectation of privacy in the non-proliferation of her identity documents;
• in holding her responsible for the increased costs of the litigation;
• in failing to consider the policy reasons that British Columbia does not allow third parties to access separation agreements without a court order;
• in failing to consider the doctrine of res judicata in expecting disclosure of the facts leading up to the application of her sealed and confidential separation agreement;
• in failing to consider her reasonable expectation of privacy and the confidentiality of sealed court documents;
• in accepting the decision of the LSUC not to investigate complaints by the applicant while the litigation is ongoing; and
• in interpreting her use of satirical rhetoric to ridicule counsel for the respondent.

[26] I have already noted that the motions judge had the discretion to proceed with the motion without written notice and that he gave the Applicant an opportunity to respond. Although the Applicant cites provisions of the SDA in her materials, 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), 151 O.A.C. 343.

[27] The other errors cited by the Applicant do not appear anywhere in the motions judge’s decision. The Respondent submits that there was credible affidavit evidence before the motions judge and that moreover, the Applicant herself orally admitted to undertaking the actions which form the basis for the motions judge’s decision. The Respondent maintains that the decision contains no error in principle which would favour of the Applicant.

[28] I find that the first branch of the test under rule 62.02(4)(b) has not been met. The decision of the motions judge was a matter wholly within his discretion and the standard for intervention in a discretionary decision is very high. (Towers Ltd. v. Quinton’s Cleaners Ltd., 2009 MBCA 81, 245 Man. R. (2d) 70). An appellate court may set aside a discretionary decision if the judge below made a palpable and overriding error in principle or if the decision itself is clearly wrong. I conclude that there was credible evidence before the motions judge upon which he could reasonably base his conclusion.

[29] I find that the first branch of the test under rule 62.02(4)(b) has not been met. For this reason, I find that the proposed appeal involves no matter of such general importance that leave to appeal should be granted.

[30] The motion to grant leave to appeal is therefore dismissed.

Costs

[31] The parties may make brief written submissions as to the cost of this motion for leave to appeal within 20 days the release of this decision. These costs submissions are not to exceed five pages in length.

Mr. Justice Robert N. Beaudoin Date: August 2, 2016

[1] Rule 37.07(2)