She He Huang and Jie Wei Pan v. Anciento M. Braga et al.

COURT FILE NO.: 02-CV-223298CM3 COURT FILE NO.: 06-CV-316408PD1 COURT FILE NO.: 13-CV-483972 DATE: 20160920

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHE HE HUANG and JIE WEI PAN v. ANCIETO M. BRAGA

BEFORE: Archibald J.

COUNSEL for the Motion: Alan L. Rachlin and Jeffery A. Small, for the Applicant (Anciento M. Braga) Respondent (She He Huang), Self-represented

AND RE: SHE HE HUANG and JIE WEI PAN v. AVIVA INSURANCE COMPANY OF CANADA, LAWRENCE HARVEY FINE, JEWELL LAW, formerly named JEWELL, MICHAEL & OBRADOVICH and GREGORY CHANG

COUNSEL for Other Parties: Alan L. Rachlin, appearing as agent for Robert Rogers, counsel for the defendant Aviva Insurance Company of Canada Tony Antoniou, for the defendant Lawrence Harvey Fine and Jewell Law, formerly named Jewell Michael & Obradovich in action 06-CV-316408 PD1 Respondent (Jie Wei Pan), Self-represented

HEARD: September 13, 15, and 20, 2016

ENDORSEMENT Pertaining to s. 16(1) of the Substitute Decisions Act, 1992

Background

[1] This is a motion by the defendant, Mr. Braga, for a capacity assessment of Ms. Huang arising from a case management conference in advance of a peremptory trial date scheduled for October 3, 2016. The trial is set for four weeks and is a jury trial. It is peremptory against Ms. Huang. This is the third trial date.

[2] The original cause of action was commenced in 2002; it arose out of a 2000 personal injury accident. The second cause of action is for accident benefits. It was commenced in 2006. There is a third cause of action for further accident benefits issued in 2013. All three of those actions are to be tried together. The fourth cause of action against Ms. Huang’s first set of counsel was stayed by me in 2015, pending the outcome of the three actions pertaining to the 2000 accident.

[3] Greater detail concerning the specific milestones of this case from 2000 to present may be found in the endorsement of McEwen J. dated February 11, 2016 and the affidavit of Mr. J. Small dated January 12, 2016. Although Ms. Huang contests some of the details in Mr. Small’s affidavit, the major events which he sets out are not in dispute.

[4] In 13 years, Ms. Huang has retained at least five counsel. Two of those lawyers, being specifically Mr. Holland and Mr. Singer, have appeared before me. Mr Holland acted as Ms. Huang’s lawyer of record for several years before removing himself in January of 2014.

[5] During Mr. Singer’s tenure on this file, I conducted at least four pre-trial conferences in an effort to streamline the trial and to settle the case. At one point in 2015, this case tentatively settled for a large amount of money. Ms. Huang, however, did not ultimately accept the settlement and claimed the amounts were not sufficient to satisfy her needs for the rest of her life. As a consequence, her relationship with Mr. Singer broke down and Mr. Singer was let off the record. I do say in passing that Mr. Singer worked tirelessly throughout the time he acted for her.

[6] On another occasion, I asked Mr. A. Kwinter, senior personal injury counsel, to speak to her about the contours of the settlement as a friend of the Court. He, too, could not persuade her to settle this case.

[7] Counsel from Pro Bono Ontario then became involved in assisting Ms. Huang with trial preparation. Ms. J. Daya spoke with Ms. Huang about the significant settlement offer, but was also unable to dissuade her from proceeding to trial. Notwithstanding Ms. Daya’s excellent assistance, Ms. Huang indicated that she would prefer to act for herself.

[8] Eighteen months ago, with her consent, I ordered a capacity assessment of Ms. Huang. Dr. Eva Chow, a psychiatrist, conducted that assessment. She concluded that Ms. Huang had sufficient cognitive capacity to act for herself in this proceeding; however, she cautioned that Ms. Huang’s cognitive abilities were in constant flux and that a ruling on her capacity in March of 2015 would not necessarily guarantee that she would be mentally capable of prosecuting her case going forward.

[9] On Tuesday September 13, 2016 and Thursday September 15, 2016, I case managed this matter. It became clear to me that Ms. Huang has only a very rudimentary understanding of trial proceedings. She did not understand that she could testify before the court, nor did she understand that she could subpoena her accountant. Notwithstanding her limited understanding, she insists upon going to trial on October 3, 2016. She asserts that justice will not be served if she is not allowed to go to trial on October 3, 2016 and if she is not allowed to act for herself.

[10] Ms. Huang is seeking $4,000,000 from the jury. During those two days of case management, I was successful in cobbling together a very significant settlement offer from the defendants at this trial management conference. It exceeds the amount tendered at the 2015 settlement conference. I have explained to her that, in my view, the settlement amount is far in excess of what a jury might award her at the end of this case. This is especially true if she is acting for herself, given her very limited understanding of trial procedure, trial evidence and trial advocacy.

[11] I have asked Ms. Huang more than 10 times over the last three years why she insists on going to trial. She has never adequately answered that question, other than that the amount of money is not sufficient to compensate her for her old age. Even today, in her submissions, she is steadfast in her conviction that she is the best person to act for herself to obtain the appropriate compensation from the jury.

[12] Over the last 16 years, she has been unable to maintain a positive relationship with any of her five counsel. She has been unhappy with all five of her counsel. She has fired all five of her counsel. I am concerned with her ability to act for herself in these circumstances.

The Law

[13] The defendant, Mr. Braga, bring a motion under Section 16(1) of the Substitute Decisions Act, 1992, SO 1992, c 30 [SDA], which reads as follows:

Assessment of capacity for statutory guardianship

16. (1) A person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section.

[14] The motion is made on the basis that the plaintiff, Ms. Huang, lacks the necessary capacity to manage property, as it is defined in s. 6 of the SDA:

Incapacity to manage property

6. 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.

[15] Mr. Braga’s Notice of Motion contains the necessary assurances outlined in s. 16(2) of the SDA.

[16] Mr. Rachlin, counsel for Mr. Braga, is asking for Ms. Huang to undergo a further psychiatric assessment to determine if Ms. Huang is mentally competent to act for herself at trial in light of her present mental state.

The Evidence

[17] The evidence before me on this matter includes comments from Dr. Eva Chow’s psychiatric assessment of Ms. Huang on February 17, 2015; oral submissions from opposing counsel given during the case management conferences of September 15 and 17, 2016; Ms. Daya’s written submissions relating to conversations she has had with Ms. Huang; Ms. Huang’s answers to a number of questions posed to her by opposing counsel during case management; and my own observations of Ms. Huang during the period I have case managed this action.

Dr. Chow’s assessment

[18] Dr. Eva Chow assessed Ms. Huang on February 17, 2015. In her report dated March 29, 2015, Dr. Chow concluded that Ms. Huang was capable of representing herself; however, her endorsement was subject to a number of important qualifications. The report cautions that,

[B]ecause I found that Ms. Huang’s Major Depressive Disorder has improved as of February 17, 2015, I do not believe that it affected her capacity at that point. However, mental status can change rapidly and so could her mental capacity. If Ms. Huang’s mood disorder takes a turn for the worse between now and the time of her trial, her capacity to present herself or to instruct counsel could be compromised…there is a real possibility of her presenting once again differently at the time of the trial and it would be helpful to understand more about why her presentations and subjective symptoms and objective signs could be so variable…

[19] Despite Dr. Chow’s opinion that Ms. Huang is competent to represent herself, she expressed concerns that Ms. Huang’s mental state is variable and could decline to a point where she would be unable to act on her own behalf. Dr. Chow opined that this deterioration could happen within a month. At this point, it has been over a year and a half since Dr. Chow assessed Ms. Huang and I am extremely worried that Dr. Chow’s concerns have come to fruition.

Ms. Daya’s written submissions

[20] At my request, Ms. Daya has appeared several times on the trial management conferences to help explain things to Ms. Huang. She has prepared a written submission dated September 16, 2016. In her submission, she sets out her involvement with this matter and her experience dealing with Ms. Huang from January 2016 to present. During her meetings with Ms. Huang, she spoke with her through an interpreter. She advised Ms. Huang on the consequences of accepting or declining the recent, substantial settlement offer. Despite these interactions, Ms. Daya has never acted as counsel for Ms. Huang, given that Ms. Huang was not prepared to accept any guidance from her.

[21] Ms. Daya’s concern for Ms. Huang’s mental health was present from their very first meeting together on January 26, 2016. Upon reflecting on that meeting, Ms. Daya expressed surprise that a psychiatric assessment had found Ms. Huang capable of representing herself.

[22] It is Ms. Daya’s opinion that Ms. Huang does not comprehend the reasonably foreseeable consequences of proceeding to trial. Further, it is apparent to her that Ms. Huang does not appreciate that the trial will be starkly different than how Ms. Huang envisions it in her mind. She refuses to accept any legal opinions or guidance. She only politely listens to advice in order to dismiss it and to then illogically assert that her evidence will be accepted by the jury without question.

[23] Further, Ms. Daya is of the view that Ms. Huang does not comprehend the legal issues, the evidence necessary to make her case, or how she will present that evidence at trial. Her inability to differentiate between relevant and irrelevant considerations will present a substantial impediment at trial.

[24] In short, Ms. Daya has genuine concerns about Ms. Huang’s capacity arising from multiple discussions concerning the various claims in this action.

Evidence from opposing counsel

[25] Mr. Rachlin has raised concerns that Ms. Huang’s mental state is such that she will be unable to represent herself at trial. Mr. Rachlin is a senior defense counsel who has dealt with Ms. Huang for almost eight years. While Mr. Rachlin’s client is adverse in interest to Ms. Huang, I believe he is properly serving his function as an officer of the court in bringing this motion. He has informed me that Ms. Huang has consistently appeared to not appreciate the foreseeable consequences of decisions that she is making in this litigation.

[26] Mr. Rogers, senior counsel for Aviva Insurance Company of Canada, became involved with the file later than Mr. Rachlin, but has observed Ms. Huang in a number of case conferences. He shares Mr. Rachlin’s views and believes that Ms. Huang does not exhibit insight into the foreseeable consequences of some of the decisions she has made to date, specifically in relation to representing herself and in relation to the issues that have arisen in trial preparation.

[27] Mr. Antoniou, counsel for Fine and Jewell LLP, has also observed Ms. Huang during the relevant time period. As with Mr. Rogers, Mr. Antoniou adopts Mr. Rachlin’s comments concerning Ms. Huang’s capacity.

Questions directed to Ms. Huang

[28] At the trial management conference on September 15, 2016, Mr. Rachlin attempted to gain an understanding of Ms. Huang’s capacity by asking her about the consequences of representing herself at trial. Specifically, he asked what would happen if the jury did not accept her position. Mr. Rachlin asked this question four times before Ms. Huang could articulate a relevant response. She eventually indicated that she may lose her case, but then made a vague reference to the money that the insurance company would still owe her that would be paid to cover her losses. I find her tangential attempts at answering this line of questioning extremely troubling.

Personal observations

[29] I have had the opportunity to observe Ms. Huang over three years of trial management. Her obstinacy is obsessive. I have questioned her several times about her reasons for refusing to settle. Each time, she indicated that the offers have been insufficient to meet her needs in her old age. This response completely ignores the likely scenario, which many different counsel have attempted to convey to her, that any award she receives at trial will be far less than the proposed settlement amounts. Her flawed reasoning illustrates her fundamental inability to appreciate the draconian cost consequences of refusing the large settlement offers and underlines her myopic obstinacy in the face of stark reality.

[30] Ms. Huang is an extremely intelligent woman and often parrots language lawyers have been using in order to demonstrate a superficial understanding of her case. When pressed on these issues, it is clear that this understanding is merely meretricious. Ms. Huang has no idea how to effectively prosecute her claim because she cannot appreciate the types of evidence needed to prove her claim or the appropriate procedures for adducing that evidence. Given her limited understanding of the court process, she has little hope of successfully prosecuting this case.

Order

[31] Pursuant to my authority under s. 16(1) of the SDA and based on the evidence outlined above, I am requesting Ms. Huang to consent to a capacity assessment. I am extremely concerned with Ms. Huang’s ability to understand the relevancy of information relating to this litigation. I am gravely concerned that she is not able to appreciate the reasonably foreseeable consequences of her decisions relating to this litigation.

[32] I am requesting the plaintiff, Ms. Huang, attend a capacity assessment at 1:00 p.m. on Thursday September 22, 2016. The assessment is to be performed by Louise Silverstone at Ms. Huang’s home, 124 St. Clarens Avenue, Toronto, Ontario. I understand Louise Silverstone is a social worker and a certified capacity assessor under the SDA.

[33] The cost of this assessment is to be borne by Ms. Huang and paid for out of the income replacement benefits monies, which have been paid to Ms. Huang by Aviva Insurance Company of Canada, but held in trust for her by Mr. Rogers since Ms. Huang disputes the amounts. This includes the cost of providing Ms. Huang with an interpreter for the capacity assessment. The defense paid for the prior two assessments, one of which was conducted by Dr. Chow. The first assessment was not completed. It is not appropriate that the defendants should bear the costs of a third assessment.

[34] Ms. Daya generously footed the bill for interpreter services on September 15, 16, and 20, 2016, to ensure Ms. Huang could participate in a meaningful way. This goes above and beyond her commitment to the Court as Pro Bono counsel. As such, it is ordered that Ms. Huang reimburse Ms. Daya for the costs of these services, which may be paid for out of Ms. Huang’s income replacement benefits money that is currently being held in trust by Mr. Rogers.

[35] Finally, under Rule 3.02(1) of the Ontario, Rules of Civil Procedure, RRO 1990, Reg 194 and s. 69(2) of the SDA, I include an order abridging the time for service. Ms. Huang was present when this motion was discussed at trial management on Friday September 16, 2016. Further, the trial date is a mere two weeks away and it is fair and just that this assessment be completed as quickly as possible so the trial date will not be disturbed.

Archibald J. Date: September 20, 2016