Court File and Parties

COURT FILE NO.: 2304/15 DATE: 2017/04/21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sara Reddecopp, Heinrich Reddecopp, Benjamin Reddecopp, Elisabeth Reddecopp, Isaac Reddecopp, Heinrich Klassen Reddecopp, Anna Wiebe, Abigail Marie Wiebe, a minor by her litigation guardian, Anna Wiebe, Rachel Anna Wiebe, a minor by her litigation guardian, Anna Wiebe, Leah Elizabeth Wiebe, a minor by her litigation guardian, Anna Wiebe and The Estate of Maria Friessen Reddecopp, Plaintiffs

AND:

Ryan Cole Daniels and George A. Demeyere Tobacco Farms Limited, Defendants

BEFORE: Madam Justice H. A. Rady

COUNSEL: Rasha El-Tawil, for the Plaintiffs Anne Davenport, for the Defendants

HEARD: March 13, 2017

Endorsement

Introduction

[1] This is a personal injury action arising from a motor vehicle accident. The plaintiff Elisabeth and her sister Sara were injured. Their mother Maria was killed. A claim was issued seeking very substantial damages both for the sisters’ personal injuries and for Family Law Act damages arising from Maria’s death.

[2] Elisabeth was born with spina bifida and is paraplegic. She uses a wheelchair as a result of her paraplegia. She also has an Arnold-Chiari malformation, which led to hydrocephalus and the placement of a shunt that must be monitored and flushed as necessary. Elisabeth’s mother was her primary caregiver prior to her death. As I understand it, the allegation is that Elisabeth’s father has a significant Family Law Act claim for economic loss arising from his wife’s death. He alleges that he has been obliged to limit his employment opportunities because he has assumed responsibility for Elisabeth’s care. The claim as pleaded seeks relief in excess of policy limits.

[3] After her retainer and after the statement of claim was issued, Ms. El-Tawil began to have concerns about Elisabeth’s ability to instruct counsel. She arranged for a capacity assessment by Dr. Paul Ferner, who has been doing capacity assessments since 1997. He is a medical doctor. After meeting with Elisabeth, her father and Ms. El-Tawil and then with Elisabeth alone, Dr. Ferner concluded that she was not competent to instruct counsel. He also considered that she would not be able to meaningfully participate in an examination for discovery.

[4] Accordingly, Elisabeth’s counsel brought a motion to have Elisabeth’s father, Heinrich, appointed as litigation guardian. As is routine in London, the motion was to be reviewed by a judge as a “basket motion” rather than in open court with counsel present.

[5] For reasons that I need not recount, the motion was rescheduled for motions court for argument. Defence counsel objects to Heinrich being appointed because he has a potentially significant Family Law Act claim and therefore, is a competitor with his daughter for available insurance proceeds. They also question the validity of Dr. Ferner’s conclusions.

[6] The defence brought a cross motion for the following relief:

• an order compelling Dr. Ferner to provide a sworn affidavit in support of the plaintiff’s motion for the appointment of a litigation guardian;
• an order compelling Dr. Ferner to attend for a cross-examination;
• an order compelling Elisabeth to attend a capacity assessment, pursuant to s. 105 of the Courts of Justice Act;
• further, or in the alternative, an order compelling Elisabeth to attend an examination for discovery; and
• an order staying the action pending the outcome of a further capacity assessment.

[7] A few preliminary remarks are in order. First, given Dr. Ferner’s conclusions, unchallenged as of now, it seems to me the action cannot move forward. It is effectively stalled because Ms. El-Tawil cannot take any steps to advance Elisabeth’s claim. That is the effect of r. 7.01(1) of the Rules of Civil Procedure, which provides:

Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. [Emphasis added.]

[8] This in turn affects the progress of the balance of the claims. Practically speaking, they cannot be prosecuted until this issue is sorted out.

[9] Heinrich is presumptively the appropriate litigation guardian by virtue of r. 7.02(1.1)(b) of the Rules of Civil Procedure because he is Elisabeth’s power of attorney.

[10] The defence suggests that Heinrich should not be appointed because he is adverse in interest to Elisabeth, contrary to r. 7.03(10)(i)(iii) of the Rules of Civil Procedure.

[11] They wish to challenge Dr. Ferner’s conclusions on the basis that none of Elisabeth’s treatment providers have diagnosed her with cognitive issues and because he did not have a complete copy of her medical records. They submit that if he had reviewed her records in their entirety, his conclusions may be different. The material filed, however, discloses that other records were sent to Dr. Ferner in response to defence concerns. He reviewed them and advised that his opinion was unchanged.

[12] This is an unusual and difficult situation. I am not aware of any cases in which the defence challenges the necessity of appointing a litigation guardian for a plaintiff. There are cases in which one of the parties seeks the appointment of a litigation guardian for a party opposite – for example, when the defence has concern the plaintiff lacks capacity. However, here the defence seems to be suspicious that Elisabeth may well have capacity. It says that it will be “prejudiced” if it cannot challenge Dr. Ferner’s conclusions.

[13] The defence seeks to cross examine Dr. Ferner. Based on what I heard in oral submissions, it is possible that the defence’s real concern may be Dr. Ferner’s conclusions about Elisabeth’s brain injury (which predates the accident) and her inability to participate in an examination for discovery.

[14] Dr. Ferner did not swear an affidavit appending his report in support of the motion. It was attached to Heinrich’s affidavit as Exhibit C. Because of the usually routine and non-adversarial nature of these motions, this is not surprising. It does not raise the usual concern that the proper deponent is being shielded from cross examination, for example, where a law clerk swears an affidavit based on information and belief when the individual with first-hand knowledge could do so. The court has expressed its disapproval of such a practice in the past.

[15] In my view, if the defence wished to cross examine, they had a mechanism to do so under r. 39.03(1) of the Rules of Civil Procedure. They did not avail themselves of that avenue and I am not inclined to order a cross examination now.

[16] Turning then to whether a further assessment should be ordered, s. 105 of the Courts of Justice Act provides one of the mechanisms by which the court can order a medical assessment. This provision is intended to ensure trial fairness. It provides in part:

105(1) “Health practitioner” defined – In this section, “health practitioner” means a person licensed to practice 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) Order for physical or mental examination – 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…

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

[17] The Substitute Decisions Act, 1992 S.O. 1992 c. 30, is the second. This legislation is designed to protect the vulnerable. It provides as follows:

79. (1) If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, 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 purpose of giving an opinion as to the person’s capacity.

(2) The order may require the person, (a) to submit to the assessment; (b) to permit entry to his or her home for the purpose of the assessment; (c) to attend at such other places and at such times as are specified in the order.

(3) The order shall specify the place or places where the assessment is to be performed.

(4) If possible, the assessment shall be performed in the person’s home.

(5) An order that specifies a health facility as the place where the assessment is to be performed authorizes the person’s admission to the facility for the purpose of the assessment.

[18] In my view, I do not have jurisdiction to order the assessment requested either under the SDA (on which the defence does not rely) or the CJA.

[19] In Neill v. Pellolio, [2001] O.J. No. 4639 (C.A.) the court considered an appeal from a decision refusing to order a capacity assessment under the SDA. It agreed with the motions judge that there is “no ‘stand alone’ relief available to the applicant for a capacity assessment to be granted in the absence of an application under the SDA.”

[20] The court noted:

Thus, for an assessment order to be made under s. 79(1), two conditions must first be satisfied: (a) a proceeding under the SDA must be pending in which a person’s capacity is in issue; and (b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.

[21] In this case, no proceedings under the SDA are pending. Accordingly, the court has no jurisdiction to make the order sought under this Act.

[22] Is there jurisdiction under the CJA? The 2009 decision in Ranieri Estate, Re, 2009 ONSC 100, 182 A.C.W.S. (3d) 240 holds that there is not.

[23] In that case, the respondent sought an order for an assessment of his brother, John Ranieri, pursuant to s. 105 of the CJA. John’s nieces, his attorneys for health care pursuant to the SDA, opposed the motion. John had also been previously subjected to an assessment of capacity (presumably for the application under the SDA).

[24] John’s nieces submitted that the court did not have the jurisdiction to make an order for assessment under s. 105 of the CJA. They had been appointed as John’s attorneys for health care pursuant to the SDA and therefore, any orders concerning John’s capacity could only be made under the Act. As noted above, pursuant to s. 79 of SDA, an order for assessment could only be made if there was a current proceeding under the SDA, which there was not in this case.

[25] The respondent submitted that the admissibility of evidence was dependent on a determination that John was incapable of giving evidence himself. Accordingly, he argued that an order under s. 105 of the CJA could be made in the interest of trial fairness and was distinct from the issue of a person’s capacity to make decisions regarding his own health care.

[26] The court disagreed with the respondent’s attempt to broadly frame the issue as one of giving evidence generally. Instead, it found that a further assessment of John would revolve solely around John’s capacity to make decisions regarding his personal health care. The court ruled that any issue related to John’s capacity would fall under s. 79 of the SDA, and therefore, the court did not have jurisdiction to grant an order under s. 105 of the CJA.

[27] Justice Price reasoned as follows:

It is my view that the issue in relation to which Tony seeks a further mental assessment of John is essentially one involving John’s capacity to make decisions regarding his health care, even though Tony frames it more broadly as relating to John’s capacity to give evidence generally on all issues in the litigation and, in particular, as to what his wishes are.

Since the issue, being fundamentally one as to John’s capacity, falls under s. 79 of The Substitute Decisions Act, it is my opinion that I do not have jurisdiction to grant an order for the assessment under s. 105 of the Courts of Justice Act.

If I did have jurisdiction under s. 105, I would not be prepared to find, as the section requires, that there is substance to Tony’s allegation that John is incapable of expressing his wishes. Tony’s mere assertion in paragraph 11 of his Affidavit “that it is highly unlikely based on my own decades-long history of involvement with my brother that he would hold the views regarding me that he allegedly expressed to Dr. Shulman without such opinions being planted in his mind” is insufficient, in my opinion, to substantiate his allegation.

Apart from John’s capacity to make decisions regarding his own care, dealt with in the SDA, the issue involves what John wants. Tony’s allegation that John is incapable of expressing himself in that regard simply amounts to an assertion that what John wants is influenced by those around him. Tony’s position that John is incapable of expressing his wishes is unsubstantiated. It is also contrary to all of the Applicant’s evidence, from John’s family doctor (Dr. A. Friesner), from John’s family (Julia Ranieri), and from John’s friend (Carol Dall’Ava), as well as from Dr. Shulman’s report itself.

[28] The parallel to this case is obvious. The issue – namely Elisabeth’s capacity or lack thereof – falls squarely under the SDA. That being so, the court lacks jurisdiction to make an order under the CJA.

[29] In the event that I am mistaken and I have jurisdiction to order what would amount to a second assessment, I would not be prepared to do so.

[30] A very useful discussion of the policy underlying capacity assessments under the SDA and when the court’s intervention is necessary or justified is found in Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.J.). The case involved a struggle between siblings respecting control of their elderly parents’ finances. At issue was whether a further assessment should be ordered under the SDA. The case is therefore not determinative of the issue before me, namely whether trial fairness would require an order to be made under s. 105 of the CJA. Nevertheless, Justice Strathy’s discussion of assessments generally is helpful here and in particular the factors to be considered in ordering a second assessment. He wrote:

[50] … The appointment of an assessor to conduct what is essentially a psychiatric examination is a substantial intervention into the privacy and security of the individual. As Mr. Justice Pattillo said in Flynn v. Flynn (December 18, 2007, unreported, Ont. S.C.J., Court file no. 03-66/07): “[a] capacity assessment is an intrusive and demeaning process.”

[51] There is little authority to guide me on the circumstances in which the court should order a further assessment where, as here, the individuals have voluntarily submitted to assessments by a qualified assessor. In Forgione v. Forgione, [2007] O.J. No. 2006 (S.C.J.), a second assessment was ordered where the first assessment had not been carried out by a qualified capacity assessor and the report that had been prepared was not in accordance with the Guidelines for Conducting Assessments of Capacity. There were, as well, serious questions about the capacity and vulnerability of the person to be assessed, none of which had been mentioned in the earlier report.

[52] In Mesesnel (Attorney of) v. Kumer, [2000] O.J. No. 1897 (S.C.J.), Justice Greer ordered a second assessment. In that case, submissions were made by counsel on behalf of the affected individual, that he did not want to endure another assessment. It was argued that the person’s autonomy should be respected, given his advanced age of 81 years. Justice Greer ordered the additional assessment on a number of grounds, including the failure of the first physician to do what he had been asked to do; personal criticisms of the attorney which raised suspicions of bias which tainted the doctor’s reports; and failure to follow standard tests and procedures in the report. It is noteworthy that in that case the applicant had filed a letter from another physician, who was familiar with the person’s health and mental status, setting out issues that were not properly explored in the first report.

[53] In my view, in deciding whether to order an assessment in this case, particularly as there are existing assessments of Philip and Ida, I should consider and balance the following factors to determine whether, in all the circumstances, the public interest and the interests of Philip and Ida, require that an assessment take place and justify the intrusion into their privacy: (a) the purpose of the SDA, as discussed above; (b) the terms of section 79, namely: (i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe that the person is incapable; (c) the nature and circumstances of the proceedings in which the issue is raised; (d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation; (e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached; (f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria; (g) whether the assessment will be necessary in order to decide the issue before the court; (h) whether any harm will be done if an assessment does not take place; (i) whether there is any urgency to the assessment; and (j) the wishes of the person sought to be examined, taking into account his or her capacity.

[31] It seems to me that these factors assist in guiding the court’s exercise of discretion to the extent relief might be available under s. 105 of the CJA. I would add trial fairness considerations to the list. The issue, therefore, is whether any of these factors are present here and if so, how to balance them.

[32] Is an assessment necessary justifying the intrusion into Elisabeth’s privacy?

[33] There has been a previous assessment. Dr. Ferner is well qualified to perform them (and the defence does not suggest otherwise). The report is comprehensive. There is no suggestion of bias or a lack of objectivity.

[34] The assessment is not necessary to decide an issue in the lawsuit, which is the liability and damages arising from a car accident. I am not persuaded that any harm will be done if an assessment is not ordered. In fact, I would be concerned if Elisabeth were not to have a litigation guardian given my understanding of her medical needs and issues. If she lacks capacity as Dr. Ferner has concluded and if her claim is successful, she could potentially have access to a significant sum of money, which might make her vulnerable to exploitation unless she has the safeguards provided through r. 7.

[35] There is no evidence of prejudice to the defence or any issue of trial fairness. The capacity issue is unrelated to the accident itself. I see no urgency from the defence perspective. Any urgency arises from the fact that the lawsuit cannot proceed. This is detrimental to the plaintiffs. A further assessment would prolong the delay.

[36] The overriding issue is whether Dr. Ferner failed to consider relevant evidence, and if so, would that evidence have altered his view.

[37] Dr. Ferner had a copy of the index of Elisabeth’s medical brief. He requested certain material, which was provided. He said he did not require the entire record. After the defence raised its concern, Dr. Ferner was given Elisabeth’s entire medical file for review. As already noted, his conclusions were unchanged.

[38] The defence submits that Elisabeth’s health care providers have not expressed any concern and points to evidence that Elisabeth may have loaned money to her sister. It says that this is suggestive that she must have capacity or calls into question Dr. Ferner’s conclusions. I disagree. There are references in some of the medical records to observations made by health care providers that do indeed reflect concerns about capacity, most recently in a 2016 Occupational Therapy Assessment Report. Furthermore, Ms. El-Tawil, an experienced personal injury litigator, arranged the assessment because of her concerns about Elisabeth’s ability to instruct her. Dr. Ferner, a physician experienced in conducting assessments concluded that Elisabeth did not have capacity. In all of the circumstances, I am not persuaded that a second assessment should be ordered.

[39] On the issue of conflict between Heinrich and Elisabeth, I would have thought that is not a matter in which the defence can or should be permitted to intervene. The issue of his suitability is for the court to determine. As already noted, Henrich is presumptively the appropriate guardian under the Rules. The two certainly have no conflict on the issue of liability. If there is a conflict on the issue of damages, it is a matter between their counsel and them and does not make them adverse in interest. They are simply competitors for the same funds, which is almost invariably the case for a plaintiff and derivative Family Law Act claimants. There are mechanisms to deal with any such conflict if it should arise. Moreover, any resolution with respect to Elisabeth’s claim requires court approval, which should obviate the expressed concern.

[40] The motion is granted. The cross motion is dismissed. If the parties cannot agree on costs, I will receive brief written submissions by May 22, 2017. I will leave it to counsel to arrange a suitable timetable for their delivery.

“Justice H.A. Rady” Justice H. A. Rady Date: April 21, 2017