Court File and Parties

COURT FILE NO.: CV-17-00003047-00ES DATE: 20170406 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE GUARDIANSHIP OF RASHAM SINGH,

B E T W E E N:

RASHPAL SINGH Applicant

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RASHAM SINGH, RAVEENA SINGH and THE PUBLIC GUARDIAN AND TRUSTEE Respondents

AND IN THE MATTER OF THE APPOINTMENT OF A GUARDIAN FOR PERSONAL CARE AND PROPERTY FOR RASHAM SINGH AND THE SUBSTITUTE DECISIONS ACT, 1992

A N D B E T W E E N:

RAVEENA SINGH Applicant

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RASHAM SINGH, KULWANT KAUR SINGH, SUKWINDER SINGH, RASHPAL SINGH, BHUPINDER SINGH, RAVINDER KAUR GILL, JASBIR SANDHU, and THE PUBLIC GUARDIAN AND TRUSTEE Respondents

BEFORE: F.L. Myers J.

COUNSEL: P.A. Robson, counsel for Rashpal Singh A. Bloom and D. Crosby, counsel for Raveena Singh S. Jones, counsel for The Public Guardian and Trustee E. Baron, counsel for Dr. Hy Dwosh

HEARD: April 6, 2017

Endorsement (Oral)

[1] These are my reasons for decision in Rashpal Singh v. Rasham Singh, Raveena Singh, and the Public Guardian and Trustee, court file number 03-047/17. I reserve the right to make minor edits for grammar, diction, citations and the like.

[2] This matter is urgent and involves a life and death decision for a young man.

[3] It is important to note at the outset that part of the judge's role is distinguishing between a lawyer's conduct and the client's case. The court has expressed offence at the conduct of Mr. Robson in this proceeding. The affidavits he prepared were replete with inadmissible hearsay and double hearsay, scandalous, nasty allegations lacking evidentiary support or relevance. Mr. Robson submitted that he can rely on inadmissible evidence because the court can't, then, unhear it. That is not appropriate conduct for an officer of the court before this court or any court in Ontario. Mr. Robson's email to counsel opposite and to the court yesterday was utterly uncivil and an unhelpful rant which should not have been sent.

[4] But I say this to make clear to a courtroom full of litigants, that the court understands the importance of separating their case, their evidence, and their intentions from court's views of how the case has been put before the court by their lawyer. While Mr. Bloom would have me question the credibility of witnesses who made scurrilous allegations, when their counsel believes that is appropriate litigation evidence and does not refuse to adduce those allegations, I cannot not draw negative conclusions against the clients. The family should understand I accept fully their devout, complete, and overwhelming desire to protect their loved one's life. I accept the honesty of their pain and sadness at the horrible, unnecessary circumstance depriving Rasham's brain of life. It was so random and so unnecessary. What you are all enduring is a tragedy in any way anyone looks at it.

[5] I accept that Rasham Singh is incapable of attending to his personal care. All parties agree he is incapacitated.

[6] I have read the communication between Raveena Singh and her husband. The communications are loving. They do not seem to support an inference that their relationship is irretrievable over. On December 22, 2016, there was a nasty exchange between Raveena Singh and her sister-in-law Raveena Kaur Gill. Yet that was followed shortly after by ongoing loving contact between Raveena and Rasham. One angry exchange with one's in-laws does not establish the termination of a relationship.

[7] Although Rasham Singh was under criminal recognizance to stay away Raveena, since November 16, 2016, they spoke frequently, often several times a day. They texted frequently. They dealt with issues normally dealt with by a couple. They professed their ongoing love. They had intimate sexual relations. There were gifts exchanged. There were mundane details dealt with like tire changes. They did not separate their financial accounts. Raveena still did the banking. In other words, despite living in different homes, they remained close like a couple working on a husband's alcoholism. The communications do not resemble the communications between parties on the way to divorce court.

[8] I am asked to appoint each side as Rasham Singh's guardian of personal care. The family asks to be guardian so they can appoint other doctors and argue at the Consent and Capacity Board tomorrow that Dr. Dwosh's plan to remove Rasham Singh from life support is wrong. Mr. Robson was clear, he submitted twice in-chief and once again in reply, that the appointment was sought, at least in part, to give the family a tactical leg-up at the Board. By contrast Raveena Singh says that if she is appointed guardian there will be no need for the Board hearing at all. She will consent to Dr. Dwosh's plan and there will be no opportunity for the family to ask the Board to review it.

[9] The Supreme Court of Canada has been clear that in its view the Consent and Capacity Board is an expert body in whom the Legislature entrusted life and death decisions if a patient or substitute decision maker contests a doctor's plans. This is not an issue for the court. I have insufficient evidence to commence upon that kind of a decision. I have no independent expert evidence, at all, supporting or challenging Dr. Dwosh's opinions.

[10] The family advises that they have a doctor who will disagree with Dr. Dwosh. In that evidence they expose that their proposed expert is not independent. His view is already known before he has even seen the patient or examined the records. The matter is not one for the adversarial system of the court, in other words. The matter belongs at the Board.

[11] Why would Rasham Singh need a guardian for personal care? The family says they want to move him to a new hospital. Their evidence that the current facility has a bad reputation is without substance. It is the baldest allegation by witnesses with no basis to have a credible opinion on the subject.

[12] If the Consent and Capacity Board upholds Dr. Dwosh's plans there will be no moving Rasham Singh. In other words, a guardian is not yet needed.

[13] But if Raveena is appointed there will be no hearing at all. Ignoring the family's scandalous allegations, I still note the animus in some texts; the listing of Raveena of herself as separated on a website; the outstanding criminal charges brought by Raveena against her husband; and the alcoholism break in their cohabitation. These factors take the case out of the norm.

[14] I am also not convinced that it is in the best interest of Rasham Singh to have no hearing at the Consent and Capacity Board. I am not convinced that, in the unusual circumstances of this case, that recognizing the spouse as guardian of personal care is necessary because she can go before the Board and argue that she is the substitute decision maker and that the parties do not live separate and apart. I do not make any finding on the issue of whether the parties live separate or apart, although it is apparent that I have made findings of fact that may weigh on that issue that the Board and the parties may wish to take cognizance of.

[15] Subsection 55(2) of the Substitute Decisions Act, 1992, SO 1992, c 30 provides as follows:

Prohibition (2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

a) does not require the court to find the person to be incapable of personal care; and

(b) is less restrictive of the person's decision making rights than the appointment of a guardian.

[16] The subsection is mandatory, but also it is consistent with the best interest of Rasham Singh. The case law provides that the best interest of Mr. Singh has to be the dominant factor before me. The PGT submits that rejecting an appointment under subsection 55(2) is the appropriate outcome today. I agree.

[17] All of the issues between the parties can be dealt with by a substitute decision maker being appointed or recognized for Rasham Singh. There is simply no need to be restricting his personal care in respect of shelter, location, and any other number of issues that a guardian of personal care would be empowered to deal with. Appointing a guardian is not the least restrictive alternative. Allowing the Consent and Capacity Board to deal with the issue of substitute decision maker is less restrictive alternative. That decision is within the Board's core competencies and is a matter to which it is well-suited in procedure and expertise.

[18] Accordingly, the application and the cross application to appoint guardians for personal care are both dismissed.

[19] The guardian of property application and cross application are adjourned pending the outcome of the Form G hearing before the Consent and Capacity Board. The parties may attend a 9:30 scheduling appointment if they wish to reschedule a guardianship or property issue.

[20] I see no basis to keep the applications for guardian of personal care alive for a potential motion to stay the Board that may come later. That motion will be in the context of a judicial review or of an appeal which will be a whole different proceeding than this one.

Costs

THE COURT: Costs, Mr. Robson?

[Argument omitted]

THE COURT: Costs in Ontario are governed by s.131 of the Courts of Justice Act. The factors involved in assessing costs are set out in Rule 57.01 of the Rules of Civil Procedure. While there are several overriding factors, the normative approach in Ontario is that the successful party is generally entitled to his or her costs. The court will look at several other factors, including, in particular, the reasonableness of the costs from the view point of the party who is asked to pay them.

In this case, although there were cross-applications and neither succeeded, it seems clear to me that the application was principally one brought by the applicant to which the respondent responded as a knee jerk rather than as an intention to commence separate proceedings from the Consent and Capacity Board. I do not need to assess Mr. Robson's submission that his client's proceeding was brought in good faith in order to say they were wholly unsuccessful and suffered significant problems throughout – not the least of which was the lack of admissible evidence propounded.

I recognize that the matter was urgent and that there is always some extra cost in an urgent matter. In my view, it is fair and appropriate in this case that the respondent be entitled to her costs. The matter would not have been here and the parties would have been before the Consent and Capacity Board, and without proceedings, but for the applicants moving forward in the way that they did.

I have reviewed both parties' bills of costs. The bill of cost submitted by Mr. Robson is for significantly more than the bill of cost submitted by Mr. Bloom and thereby satisfies the proportionality requirement that Mr. Robson's clients ought reasonably to have expected to be paying costs at the levels claimed by Raveena Singh.

In my view, while there is a basis for claims of substantial indemnity costs in light of the unsuccessful, nasty, and unsubstantiated allegations, in the overall circumstances and, in light, in particular, of the significance of the issues to the parties, the terrible emotions at play (that can deprive even the most conservative and gentle of their best senses), it would be appropriate for costs to be payable on a partial indemnity basis only.

Accordingly, the applicant is liable to the respondent Raveena Singh for costs on a partial indemnity basis fixed at $16,708.26, including disbursements and taxes.

I realize I did not ask the PGT if it was seeking costs.

MS. JONES: It is seeking cost of $250.

THE COURT: From?

MS. JONES: From Mr. Robson's clients.

THE COURT: For requiring you to be here?

MS. JONES: No, not for requiring me to be here, but we are -- we are allowed under the statute to require $250 for reviewing any application for guardianship. That is our standard fee. Plus HST, I should add $32.50.

THE COURT: Mr. Robson?

MS. JONES: And I have not charged for today.

MR. ROBSON: So, that's in the draft judgment that we provided to the court.

THE COURT: The applicant will pay costs to the PGT of $250 plus HST on the statutory basis.

And that's a wrap. Good luck to everyone. I'm very, very sorry for all of this.

F.L. Myers J. Date: April 7, 2016