COURT FILE NO.: CV-13-492093

MOTION HEARD: 20161025

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GABRIELLA LENGYEL, Plaintiff

AND

TD HOME AND AUTO INSURANCE, Defendant

BEFORE: Master Lou Ann M. Pope

COUNSEL: Counsel of record for plaintiff: Eman Koshbin, Howie, Sacks & Henry LLP Fax: 416-361-0083

Gabriella Lengyel: personally

Counsel for defendant: Paul Sykes, Laxton Glass LLP Fax: 416-363-7112

Counsel for the Office of the Public Guardian and Trustee: Yeon-Toe D. Kim Fax: 416-314-2695

REASONS FOR ENDORSEMENT

[1] The plaintiff’s counsel of record brought this motion seeking a court-ordered capacity assessment of the plaintiff and an order appointing the Public Guardian and Trustee (“PGT”) to act as litigation guardian for the plaintiff pursuant to rule 7.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”).

[2] Plaintiff’s counsel served the defendant, the PGT, as well as the plaintiff personally with the motion record. The defendant supported the motion and filed responding material. The PGT took no position on the motion. The plaintiff opposed the motion but did not file responding material.

Background

[3] This action arises as a result of a motor vehicle accident that occurred on November 3, 2011 in which the plaintiff alleges to have sustained serious and permanent injuries. This action was commenced by notice of action on November 1, 2013 in which the plaintiff claims for payment of accident benefits arising out of the subject accident from the defendant, TD Home and Auto Insurance (“TD”), her accident benefits insurer. The plaintiff was self-represented when she commenced this action. TD filed its statement of defence on March 25, 2014 and denied that the plaintiff was entitled to any accident benefits.

[4] Following the statement of defence being filed, the plaintiff took no steps to advance this action. Although it is unclear from the evidence it appears that TD scheduled an examination for discovery of the plaintiff and served her with a notice of examination. It also appears that the plaintiff brought a motion to quash the notice of examination which was adjourned sine die.

[5] The plaintiff retained lawyer, James Howie, and the law firm of Howie, Sacks & Henry LLP to represent her in this action. On June 5, 2015, the firm filed a notice of change of lawyers. However, two weeks later on June 19, 2015, Mr. Howie terminated their retainer with the plaintiff. This retainer is the subject of a motion currently pending before this court brought by plaintiff’s counsel in which they seek to be removed as counsel of record for the plaintiff.

[6] In March 2016, this action was assigned to me to case manage under rule 77. At the request of defence counsel, a case conference was held on June 6, 2016. Notice of the case conference was provided by the court to counsel for both parties.

[7] It is the evidence of plaintiff’s counsel that they learned they were on record as counsel for the plaintiff when they received the notice of case conference. Further, their evidence is that Mr. Howie was unaware that a notice of change lawyers had been filed by his office; therefore, they did not bring a motion for an order to be removed as counsel of record for the plaintiff when they terminated the retainer in June 2015.

[8] Howie, Sacks & Henry brought a motion to be removed as counsel of record for the plaintiff which was returnable on June 9, 2016. This motion has been adjourned several times due to the plaintiff collapsing in the courtroom and taken by ambulance to the hospital. It was subsequently adjourned pending a determination being made regarding the plaintiff’s mental capacity.

[9] In addition, the case conference that was held on June 6, 2016 has been adjourned several times as a result of Howie, Sacks & Henry’s removal motion and subsequently due to the plaintiff’s requests for adjournments in which she cited her medical condition and on filing notes from her doctor.

[10] Lastly, Howie, Sacks & Henry brought this motion returnable on October 25, 2016. The plaintiff attended the hearing and advised the court that she did not receive the moving party’s motion material until the day before the motion and that she opposed the motion.

[11] After hearing submissions from the plaintiff, Mr. Koshbin on behalf of the law firm, counsel for the defendant and the PGT, I reserved my decision on whether to order a capacity assessment and appoint the PGT as litigation guardian for the plaintiff. I further ordered plaintiff’s counsel to serve the plaintiff with a Request for Appointment of Litigation Guardian, Form 7A, pursuant to rule 7.03(6) and file same with an affidavit of service, which has been completed. Further, at the plaintiff’s request, I granted her until November 10, 2016 to respond to the Request for Appointment of Litigation Guardian and to serve and file any medical evidence she wished to rely on in opposing this motion.

This Motion

[12] The evidence filed by Howie, Sacks & Henry on this motion includes several letters written by the plaintiff addressed to my attention wherein she attached letters from her family doctor, Dr. Waqar Nabi. Dr. Nabi’s letters contain short explanations of the plaintiff’s medical status to support his opinion that she is unfit to attend court. Plaintiff’s counsel also filed a neuropsychological assessment report of Dr. Irini Valentin dated April 14, 2016 and a psychological report of Dr. J. Pilowsky dated June 24, 2016.

[13] Mr. Kim advised the court that the PGT has not investigated the relief sought; however, he advised that he had spoken with the plaintiff recently and she advised him that she opposed this motion.

[14] Following the hearing on October 25, 2016, the plaintiff delivered numerous documents to the court including the following:

(a) On October 29, 2016, a letter addressed to me dated the same date, which was also addressed to Melissa Miller at Howie, Sacks & Henry and Paul Sykes, defence counsel. Attached were numerous documents including letters from Dr. Nabi, all of which had been filed by the plaintiff previously for the case conference and the motions. Also included were several medical reports, documents that relate to her retainer with Howie, Sacks & Henry, a copy of her complaint to the Law Society of Upper Canada regarding lawyer, Eman Khoshbin, as well as an article published by the Ontario Trial Lawyers Association entitled “Updated study shows Ontario auto insurance is “fundamentally broken.” In addition, she filed two letters signed by Dr. J. Pilowsky dated July 29, 2015 and July 14, 2016;

(b) On November 1, 2016, a letter addressed to the court dated the same date, with copies to Ms. Miller and Mr. Sykes, in which the plaintiff requested a hearing date to make submissions opposing the motion on the ground that she was served late with the motion material. She also states that she was unable to file responding material because Howie, Sacks & Henry remain on record as her counsel.

(c) On November 6, 2016, three different letters addressed to me dated the same date (the third letter sent by fax twice). One letter indicates that it was copied to Mr. Sykes and Ms. Miller, and the two other letters have no indication on them whether they were copied to Mr. Sykes and Ms. Miller. The first letter enclosed a report from Dr. O. Zamir of the University Health Network with a release date of October 21, 2016 and addressed to Dr. Nabi. The second letter contains copies of letters signed by Mr. Miller dated May 29, 2015 and Mr. Howie on June 19, 2015 and a letter from the Law Society of Upper Canada addressed to the plaintiff dated November 1, 2016. The third letter appears to contain information that has been cut and pasted into her letter regarding insurance abuse, page one only of the plaintiff’s complaint letter to The College of Physicians and Surgeons of Ontario dated January 30, 2016, one page only from Dr. Pilowsky’s letter dated July 14, 2016, short notes signed by Dr. Nabi dated November 25, 2015 and May 20, 2016 and page 3 only of a report by Dr. J. Peck, Staff Psychiatrist at Mount Sinai Hospital.

[15] I am inclined to grant the plaintiff’s request as set out in subparagraph (b) above for the following reasons.

[16] Firstly, Howie, Sacks & Henry did not follow the proper procedure for appointing a litigation guardian under Rule 7.03(6) by serving Form 7A prior to bringing this motion.

[17] Secondly, the plaintiff was taken by surprise when she received the motion material having not been served with Form 7A. The fact that Howie, Sacks & Henry served Form 7A and the motion in reverse order, in my view, has put the plaintiff in a disadvantageous position because had the plaintiff been served with Form 7A first, she would have had earlier notice that the law firm was seeking to have a litigation guardian appointed prior to the motion such that she would have had more time to decide how she would respond, whether that would have involved seeking legal advice or obtaining relevant documents. Fairness requires that the plaintiff be entitled to proper notice under the Rules and, in my view, she did not receive proper notice.

[18] Lastly, this motion seeks significant relief and if granted it will have significant effect on the plaintiff. This is all the more reason why fairness must prevail.

[19] Therefore, for the above reasons, the following orders are hereby made:

(a) the plaintiff shall be entitled to deliver responding material to this motion which shall be in the form of a responding party’s motion record in accordance with Rule 37.10(3). The plaintiff shall serve her material on all parties and the PGT according to the timelines under Rule 37. The plaintiff shall include in her material all relevant documents that she asks the court to consider in response to the motion to appoint a litigation guardian to act on her behalf. These documents may include the numerous documents the plaintiff sent to my attention in letters dated November 1, 2016 and three letters dated November 6, 2016;

(b) after being served with the plaintiff’s responding material, all opposing parties may deliver material in reply in accordance with the timelines under the Rules;

(c) this motion which was returnable on October 25, 2016 shall be adjourned to a date, to be scheduled by Mr. Koshbin, that is mutually agreeable with all counsel who appeared at this motion and the plaintiff, for one hour.

(original signed)______

Master Lou Ann M. Pope

Released: November 23, 2016