Court File and Parties
Court File No.: 15-538376 Date: 2017-03-29 Superior Court of Justice - Ontario
Between: William MacLeod, Plaintiff And: Hanrahan Youth Services et al., Defendants
Before: F.L. Myers, J.
Counsel: William MacLeod, in person Yeoh-Tae Kim for the Public Guardian and Trustee
Read: March 28, 2017
Endorsement
[1] McEwen J. as delegate of the Regional Senior Justice appointed me as the case management judge in almost 20 proceedings commenced by Mr. MacLeod. In this proceeding, and one other, Mew J. appointed the PGT as litigation guardian for Mr. MacLeod.
[2] Last fall, the PGT arranged for Mr. MacLeod to undergo a capacity assessment under s. 16 of the Substitute Decisions Act, 1992, SO 1992, c 30. I am advised that a capacity assessor has examined Mr. MacLeod and issued a certificate of incapacity. As a result, under s. 16(5) of the statute, the PGT automatically became the statutory guardian of Mr. MacLeod's property including the causes of action advanced in all of his lawsuits.
[3] On March 17, 2017, Mr. MacLeod advised that he wished to have the PGT removed as his statutory guardian of property. Accordingly, the Court gave directions to Mr. MacLeod and counsel for the PGT for scheduling an application by Mr. MacLeod as follows:
Mr. MacLeod and Mr. Kim are to agree on a schedule under which:
Mr. MacLeod will issue and serve on the PGT a Notice of Application on the Estates List that sets out all relief that Mr. MacLeod claims together with all of the supporting affidavits setting out all of the evidence on which Mr. MacLeod intends to rely upon to establish his entitlement to the relief claimed in his Notice of Application;
If Mr. MacLeod cannot get witnesses to swear affidavits, he may wish to consider whether to examine any witness out of court at an examiner’s office (so as to create a transcript of the witness’s evidence for use at the hearing of the application) by serving a summons to witness under Rule 39.03 of the Rules of Civil Procedure;
Mr. Kim delivers any responding affidavits that the PGT will rely upon;
If they choose to do so, after they have delivered all of the affidavits that they intend to rely upon and conducted all examinations under summons that they intend to rely on, either side may cross-examine the other’s witnesses out of court to create transcripts of evidence for use at the hearing of the application; and
Both sides deliver proper legal argument (factums).
I will hear the application on the written evidence (affidavits and transcripts) and oral argument for up to 2 hours on a date that Mr. MacLeod and Mr. Kim agree upon that works with the Commercial List/Estates List Office. If any party wants a court order to resolve a problem that arises during the pre-hearing process, Mr. Kim and Mr. MacLeod should agree on a time to come into court to see me at a 9:30 appointment and I will resolve the issue summarily under Rule 50.13(6) of the Rules of Civil Procedure.
If Mr. MacLeod and Mr. Kim cannot agree on a schedule within 7 days of today, then Mr. MacLeod is to deliver his initial material under step #1 above first as soon as he is able to do so. Then step #3 is to occur within one month of the date that Mr. MacLeod serves Mr. Kim with his Notice of Applications together with all of his supporting affidavits. If either side wants to conduct any examinations out of court or cross-examinations out of court, they are to take place within one month of Mr. Kim’s material being serviced upon Mr. MacLeod. Neither side is required to examine any witnesses if they do not see any need to do so. The precise dates for all examinations are to be agreed upon in advance between Mr. MacLeod and Mr. Kim. The hearing can be scheduled no less than one week after the last examination or one week after Mr. Kim’s material is served if there are no out of oral examinations required by either side. Factums shall be served and filed with the court within the time set out in the Rules of Civil Procedure.
[4] No schedule has been agreed upon by Mr. MacLeod and Mr. Kim. Therefore, the default schedule set out in the last paragraph of the directions applies.
[5] Mr. MacLeod has advised my office this week that he has issued a Notice of Application. He has yet to deliver his own affidavit or any affidavit from a doctor or any other witness whose testimony Mr. MacLeod wishes to put before the Court. However, he advises that he has booked or is trying to book an urgent hearing of his application for this Thursday, March 30, 2017.
[6] In the directions set out above, the Court tried to spell out for Mr. MacLeod the procedural steps required before a hearing may be scheduled. The Court provided significant details in the directions to bring home to Mr. MacLeod the need for proper evidence and the availability of different processes by which he may be able to obtain the evidence that he likely requires. The PGT is entitled to receive or hear Mr. MacLeod's evidence, including any expert evidence on which Mr. MacLeod may rely. Then, the PGT is entitled to a brief period of time to respond with its own evidence. Examinations and cross-examinations may be required by either side or by both sides. Written legal argument is required to brief the Court.
[7] None of this has happened. Therefore, it is premature to consider scheduling a hearing as yet.
[8] Moreover, Mr. MacLeod has advised that he wishes to have a hearing held in French and English and he has purported to reserve his rights in that regard. It is not clear what he means by this and therefore, the language of the hearing must also be clarified prior to a hearing being scheduled. In the interim, Mr. MacLeod is entitled to deliver his evidence and other documents in French or English as he chooses.
[9] Therefore, the Court directs the Registrar and the Commercial List Co-Ordinator that no appointment or hearing is to be scheduled by Mr. MacLeod in this or any new Estates List application until the schedule set out above has been completed and the Court grants a hearing date at a Case Conference or 9:30 hearing scheduled before me. If time has already been scheduled by Mr. MacLeod for a 9:30 appointment or for a full hearing on March 30, 2017, that appointment is vacated.
[10] I am seized of Mr. MacLeod's application to try to remove the PGT as his statutory guardian of property. Unless or until the PGT is removed as Mr. MacLeod's statutory guardian of property, Mr. MacLeod lacks capacity to commence or continue any other civil litigation (whether on the Civil List, the Family List, or the Commercial List). With the sole exception of Mr. MacLeod's application to remove the PGT as his statutory guardian of property, only the PGT has authority to act in Mr. MacLeod's name or on his behalf in matters concerning any of his property.
[11] In the one application that Mr. MacLeod remains entitled to bring, like all litigants, Mr. MacLeod is required to provide fair notice to the opposing party and he must comply with the Court's directions and orders.
Release Date: March 29, 2017