Court File and Parties
Motion heard: April 19, 2017
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: Melissa Miller, 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
1This motion was adjourned from October 25, 2016 to permit the plaintiff to deliver responding material pursuant to My Reasons For Endorsement dated November 23, 2016. This is a motion brought by plaintiff’s counsel of record, Howie, Sacks & Henry LLP (“HSH”), seeking directions for a 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 (“Rules”).
2From a procedural standpoint, the plaintiff filed voluminous responding material, none of which meets the requirements of rule 37.10(3). Paragraph 19(a) of my Reasons For Endorsement dated November 23, 2016 clearly sets out that the responding material shall comply with rule 37.10(3) which sets out the proper form for a responding motion record. Further, none of the plaintiff’s material is properly before the court as it is not contained in an affidavit as required by subrules 39.01(1) and (4). I will deal with this issue in more detail later in these reasons.
3HSH’s material contains various letters from the plaintiff and two reports from psychologists; namely, Dr. Irina Valentin and Dr. J. Pilowsky. The defendant filed responding material and supports the relief sought in this motion. The PGT took no position on the motion.
4No factums or briefs of authorities were filed. HSH filed two cases which I will address later in these reasons.
Background
5This action was commenced on November 18, 2013. The plaintiff was self-represented when she commenced the action. The action was brought under the simplified rules seeking, among other relief, a declaration of entitlement to accident benefits and income replacement benefits arising from a motor vehicle accident that occurred on November 3, 2011 in which the plaintiff alleges to have been injured.
6The defendant delivered a statement of defence on or about March 20, 2014. The defendant denies that the subject accident caused the plaintiff’s alleged injuries and pleads that her injuries, if any, were caused by a pre-existing condition.
7In June 2015, the plaintiff retained HSH and a Notice of Change of Lawyer was filed on June 4, 2015. Some two weeks later HSH terminated the retainer by letter to the plaintiff dated June 19, 2015. However, HSH’s motion to be removed as counsel of record for the plaintiff was not brought until May 16, 2016 due to an oversight on the part of HSH. That motion has been adjourned pending a determination of this motion.
8The following is a summary of the law regarding the appointment of the PGT as litigation guardian.
Law – Appointment of PGT as Litigation Guardian1
9The legal principle regarding capacity is that a person over the age of 18 is presumed capable. This presumption is rebuttable on a balance of probabilities.
10The Rules of Civil Procedure deal with substitute decision making for incapable adults who are parties to litigation under rule 7. By contrast, the Substitute Decisions Act, 1992, S.O. 1990, c. 30 (“SDA”), governs substitute decision making for mentally incapable adults in the areas of decision making with respect to property and personal care.
11In both cases, the concept of a “guardian” is used, being a fiduciary who stands in the shoes of the incapable person and makes decisions on their behalf, in their best interests.
12Rule 7.01(1) states:
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.
13Incapacity is defined under the Rules by use of the term “party under disability” which describes a person involved in litigation who is lacking in mental capacity. This term is defined in rule 1.03 with reference to sections 6 and 45 of the SDA. Rule 1.03(1) defines “person” to include a party to a proceeding. “Disability” is defined as follows:
1.03(1) “disability”, where used in respect of a person, means that the person is,
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or
(c) an absentee within the meaning of the Absentees Act.
14Section 6 of the SDA states:
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.
15Similarly, section 45 of the SDA states:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
16Therefore, in reading Rule 1.03 together with sections 6 and 45 of the SDA, a party to litigation is “under disability” where they are unable to understand information that is relevant to making decisions concerning issues in the proceeding or are unable to appreciate the reasonably foreseeable consequences of making or not making decisions in the proceeding. Simply put, in order to have capacity for the purposes of litigation a person must meet both the “understand” and “appreciate” components of the test.
17In attempting to ascertain whether a litigant may be incapable, Justice Quinn in Koch (Re), 1997 12138 (ON SC), [1997] O.J. No. 1487, considered the following:
(a) There is a distinction to be drawn between failing to understand and appreciate risks and consequences and being unable to understand and appreciate risks and consequences.
(b) It is immaterial whether one’s words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test.
(c) What is in one’s best interests must not be confused with one’s cognitive capacity. The former is not relevant to a determination of capacity.
(d) It is mental capacity and not wisdom that is at issue.
(e) The test for incapacity is an objective one.
(f) Compelling evidence is required to override the presumption of capacity.
18Our courts have also found that the inability to understand or appreciate must stem from an illness or disability, such as brain injury, age-related dementia, mental illness or developmental delay, and may not be the result of a language barrier, cultural differences, or lack of education/sophistication.
19It has also been noted that a finding made by the court that a party is under disability is a serious matter because it means that the power to make decisions regarding the case will be taken away from the party and given to a litigation guardian. Therefore, the court must be cautious in reaching a conclusion which deprives a party from having the final say in how their litigation is conducted and resolved. (Bilek v. Constitution Insurance, [1990] O.J. No. 3117)
20Rule 7.03(1) sets out the evidence required by a moving party on a motion to have a litigation guardian appointed. Subrule (d) requires evidence concerning the nature and extent of the disability. Courts have held that medical evidence should be produced wherever possible. The following types of evidence have been considered by the court:
(a) evidence from persons who know the litigant well;
(b) the appearance and demeanor of the litigant in the courtroom;
(c) evidence of the litigant’s own counsel;
(d) evidence from discoveries.
21Rules 7.03(6) through (10), govern the role of the litigation guardian including the process for appointment and removal. The first step requires the moving party to serve a Form 7A, Request for Appointment of Litigation Guardian, on the alleged incapable party at least 10 days before any motion for the appointment of a litigation guardian. In the case herein, HSH failed to serve Form 7A; therefore, although the plaintiff attended at the hearing of the motion and advised the court that she opposed the motion, at the conclusion of the hearing HSH was ordered to serve the plaintiff with Form 7A and the plaintiff was provided with sufficient time to respond to this motion.
22There is a statutory order of priority as to who should act as litigation guardian. Pursuant to rule 7.02(1.1), guardians of property and attorneys appointed under power of attorney shall act as litigation guardian. Family members or persons who know the litigant well will generally be in the best position to act as litigation guardian.
23Where there is no person willing and without a conflict to act as litigation guardian, the PGT is the litigation guardian of last resort, other than for minors.
24HSH referred me to Twain v. North Bay (City), 2009 CarswellOnt 1652, [2009] O.J. No. 1274 where the court ordered the plaintiff to attend a mental examination pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The law outlined in that decision essentially reiterates the law set out above.
25In addition, HSH referred me to Master H. M. Kelly’s decision in Murphy v. Carmelite Order of Nuns, 2004 CarswellOnt 9965. In that action, Master Kelly granted the appointment of the PGT noting that the plaintiff had expressed confidence in the assistance of the PGT. That is not the case herein as the plaintiff is opposed to the PGT making decisions on her behalf in this action. Some of Master Kelly’s comments are noteworthy. He stated at paragraph 9 that while he was not concerned that Ms. Poirier had expressed the desire to not settle and to proceed to trial, he was more concerned about her inability to understand and instruct counsel with respect to the procedural and investigative imperatives that must be undertaken to ensure the effective presentation of her claim. Thus he found that Ms. Poirier did not fall within section 45 of the SDA, but she fell within the meaning of section 6.
Law – Capacity Assessment
26The grounds set out in the notice of motion for an order for directions for a capacity assessment are the provisions of the SDA generally and various rules of civil procedure. HSH provided no specific statutory authority for this court to order a capacity assessment of the plaintiff. There is no provision in the SDA that authorizes this court to direct a capacity assessment of the plaintiff for the purpose of this litigation. The authority to order a capacity assessment under the SDA relates to proceedings brought pursuant to that Act.
27However, it has been held that the court has discretion to order an examination of a party using section 105 of the Courts of Justice Act. That section states that the court has discretion to order a party to undergo a physical or mental examination by one or more health practitioners where the physical or mental condition of a party to a proceeding is in question.
28The term “capacity assessment” is used generally in referring to Ministry-trained designated capacity assessors to perform assessments under the SDA; that is, to give opinions about whether the person has capacity to manage property and capacity to make personal care decisions. However, these assessors are not trained to perform assessments of a party’s capacity to litigate. This falls outside the authority under the SDA. In respect of decision making for litigation, it is the court that must make a determination based on all the available evidence as to a party’s capacity.
29Simply put, a capacity assessment, medical report, doctor’s note, or any other professional opinion or medical documentation is merely evidence upon which the court can rely in coming to its own conclusion.
Medical Evidence Filed2
30The following is a summary of the medical evidence filed on this motion.
Dr. Waqar Nabi, Family Physician
31Dr. Waqar Nabi has been the plaintiff’s family physician for some four years. The plaintiff filed numerous short notes and letters signed by Dr. Nabi. It is difficult to determine whether Dr. Nabi has provided a diagnosis of the plaintiff’s condition as many of his short letters are followed by a lengthy list of medical conditions which appears to have been cut and pasted below his signature. However, it is noted that within the list of medical conditions, it refers to a neurological assessment report dated April 14, 2015. I will presume that reference is to Dr. Valentin’s neuropsychological assessment report dated April 14, 2016, which is addressed below.
32Included in the plaintiff’s material that she filed following the hearing of the motion on October 25, 2016 is a letter addressed to “To whom it may concern” dated October 29, 2016 which appears to have been authored by Dr. Nabi. To be frank, I am suspect of its authenticity and question whether this letter was prepared by the plaintiff for the following reasons. Firstly, portions of the letter appear to be cut and pasted together as it contains different sizes of print fonts. This is similar to other documents filed by the plaintiff where she cut and pasted her submissions after the heading on my Reasons For Endorsement. Secondly, the letter does not conclude with the standard closing used by Dr. Nabi in his other letters and notes which all conclude with “Sincerely” followed by his signature and his typed name. The letter of October 29^th^ concludes with a date stamp of “Oct 29 2016”, followed by a stamp that states “Dr. W. Nabi,” followed by another stamp that states “Billing No. ,” and finally followed by what appears to be Dr. Nabi’s signature. Thirdly, he used the word “join” in error instead of “during.” This same usage of the word “join” for “during” is found in the plaintiff’s letter dated October 29, 2016 addressed to James Howie, which was included in the material filed by the plaintiff following the motion on October 25, 2016. I find this misuse of the word “join” for “during” in both Dr. Nabi’s letter and the plaintiff’s letter to be extremely suspect.
33Despite my above-noted suspicions regarding this letter, the letter goes on to state that the plaintiff is not fit to attend court due to her “severe psychological and physical health impairment.” The letter states further that the plaintiff is able to make medical and personal care decisions. Further, it states that due to her trauma she cannot be rushed to make any kind of decision and that she needs excessive time to make decisions according to her health impairment. Lastly, it states that her medical condition is ongoing and deteriorating.
34In addition, the plaintiff recently filed with her responding material (which I previously held was not properly before this court) seven letters signed by Dr. Nabi. Three of the letters are dated the same date of February 15, 2017 and three letters are dated the same date of February 18, 2017. Notably, none of Dr. Nabi’s letters contain the name of an addressee.
35In particular, the letters dated February 15, 2017 state that the court should consider the plaintiff’s medical condition, her “reocuring panic attacks” and Dr. Pilowsky and “Dr. amins” recommendations before the court considers any decision to “protect ant further deterioration in patients condition.” (The spelling and grammatical errors are as found in Dr. Nabi’s letter.) Another letter from Dr. Nabi contains a long list of what the plaintiff has the ability to know, understand and appreciate. He fails to state the basis for these statements. One of Dr. Nabi’s letters dated February 18, 2017 states that the plaintiff “is able to understand and process information and able to understand my advise and options.” (Again, the spelling error is that of Dr. Nabi’s.)
36In addition, the plaintiff filed what appears to be a portion of a letter from Dr. Nabi dated October 29, 2016 and three letters from Dr. Nabi dated October 31, 2016. All of the letters have date stamps on them of February 18, 2017 including the handwritten words “Ongoing Valid” written beside the date stamp. The October 29, 2016 letter explains why the plaintiff was unable to attend court on November 10, 2016 due to severe psychological and physical health impairment. One of the October 31, 2016 letters states that the plaintiff is able to instruct a legal representative “at this point.” Another letter states that the plaintiff does not consent to the PGT “at this point.”
Dr. Irina Valentin, Neoropsychologist
37Dr. Valentin states in her report of April 14, 2016 that the plaintiff contacted her clinic to request a neuropsychological assessment. Dr. Valentin is registered with the College of Psychologists of Ontario in the areas of clinical neuropsychology, clinical psychology and school psychology. She is also a designated capacity assessor.
38The plaintiff told Dr. Valentin that she was born in Hungary and she does not have anyone in Canada. The report sets out a great deal of information given to Dr. Valentin by the plaintiff regarding her current mental status. I do not intend to list everything the plaintiff told Dr. Valentin in consideration of the plaintiff’s privacy and the fact that this report contains very private and personal information. However, notably, Dr. Valentin concluded that she was unable to complete the test of memory as the plaintiff appeared to have difficulty with concentration and memory, her thought process was scattered and she presented with delusional ideas. Dr. Valentin advised the plaintiff to return to Dr. Pilowsky for psychological treatment. Lastly, Dr. Valentin stated that the plaintiff’s psychiatric issues were obstacles for the neuropsychological assessment. She concluded her report by stating that she had concerns whether the plaintiff had capacity to instruct her legal counsel or make decisions related to her claim.
Dr. J. Pilowsky, Psychologist
39Dr. Pilowsky has been a licensed clinical and rehabilitation psychologist since 1994. The emphasis in his practice is in the assessment and treatment of the sequelae of psychological trauma.
40It is evident from the two letters signed by Dr. Pilowsky dated July 29, 2015 and July 14, 2016 and his psychological report dated June 24, 2016, that the plaintiff had been seen by Dr. Pilowsky several times. In his July 29, 2015 letter addressed to “To whom it may concern,” Dr. Pilowksy stated that the plaintiff had “broken down emotionally” and “cried uncontrollably for periods of time.” In that letter, Dr. Pilowsky recommended that the plaintiff be assessed by a female psychologist.
41Dr. Pilowsky conducted a psychological assessment of the plaintiff pursuant to an OCF-18 approved by TD on May 24, 2016. In his report dated June 24, 2016 Dr. Pilowsky stated that the purpose of the assessment was to determine the nature of and extent to which the plaintiff suffered from psychological difficulties as a direct consequence of her motor vehicle accident which occurred on June 3, 2014. Dr. Pilowsky noted that he had assessed the plaintiff in the past regarding her prior accident of November 3, 2011, which is the accident that gave rise to this lawsuit.
42In terms of the plaintiff’s presentation on May 24, 2016, Dr. Pilowsky stated the following:
I would like to stress that this woman presented in a very disjointed, agitated, and convoluted manner at my office, with significant psychotic symptomatology in the form of delusions and paranoia. As such, the contents of this report, and the formulation of my opinion, must be considered with the understanding that psychiatric and neuropsychological assessments are required for this woman on an immediate basis, and will provide a more comprehensive understanding of her current status and functioning.
43Page 3 of the report contains useful information regarding the plaintiff’s background and the ability of another person to act as her litigation guardian. Essentially, the plaintiff was born in Hungary and she was 38 years of age at the time. She has family in Hungary and Belgium; however, she no longer speaks to any of her family. The plaintiff sought refuge in Canada in 1997 and she is now a Canadian citizen. She was not married at the date of the assessment and she has no children.
44Again, without detailing specific reporting by the plaintiff to Dr. Pilowsky, the following is a summary of the relevant portions of his report:
(a) The plaintiff’s psychological functioning prior to the assessment was very poor and it had become “virtually catastrophic” since her 2014 accident.
(b) He referred to the plaintiff as a “very fragile and vulnerable woman with a long-standing and significant history of interpersonal trauma seemingly fractured defenses and sense of identity, and is reportedly contending with these grave symptoms without adequate support.”
(c) The plaintiff “appears to struggle with rationalization, judgment, and the ability to decipher between real and imagined threats.” Dr. Pilowsky pointed to inconsistencies in the plaintiff’s reporting regarding her feeling that she was being targeted and punished by essentially all people she encountered.
(d) The plaintiff also told Dr. Pilowsky that she had been diagnosed with terminal rectal and thyroid cancer yet she was unable or unwilling to provide further details and she could not elaborate upon treatment with respect to her apparent cancer diagnosis.
(e) The plaintiff offered “a great deal of disjointed information with respect to her pervasive sense of persecution,” having stated repeatedly that she had been “abused” by her insurance and health professionals and “threatened” by her insurance company.
(f) The plaintiff continues to suffer from frequent panic attacks, pervasively low mood, along with periods of despondency. Her depressive mood can manifest in verbal aggression, anger and a lack of patience.
(g) The plaintiff’s sense of guilt and shame is now severe and contributes to her strong passive suicidal ideation.
45Dr. Pilowsky stated that the plaintiff’s cognitive abilities are very poor, including memory, concentration, focus, organization, multi-tasking, and decision-making, as well as her thoughts being disorganized and often struggles with word finding.
46Dr. Pilowsky was unable to administer testing of the plaintiff given her “significantly compromised state, including paranoia, delusions and the inability to offer a coherent account.”
47He diagnosed the plaintiff as having “collapsed psychologically, and her overall functionality has declined further form [sic] her already very poor state in prior assessment at my office.” His opinion was that the plaintiff’s condition was catastrophic in nature. He stated that the plaintiff required psychiatric and neuropsychological referrals along with continued, long-term treatment. Further, he felt that the plaintiff was in a volatile emotional state and it was in her best interest to resolve the litigation relating to her accident as soon as possible to prevent further decline. It was his opinion that the plaintiff’s psychological symptoms and impairments are severe and most likely permanent. Lastly, he agreed with Dr. Valentin’s concerns that the plaintiff requires assistance in making decisions that pertain to her lawsuit and in advising her legal counsel.
48Following Dr. Pilowsky’s report, he wrote to TD on July 14, 2016 with the stated intention to clarify the contents of a telephone conversation he had with Ms. Kim Donna of TD. Of particular note in the letter, Dr. Pilowsky stated that the plaintiff’s “psychotic symptomatology, including delusions and paranoia are very severe at this juncture . . . .” Further, he referred to the plaintiff’s “level of mistrust and delusional thought processes” that could circumvent another attempt at a neuropsychological assessment and testing.
49The plaintiff filed a further report of Dr. Pilowsky dated February 1, 2017 addressed to TD General Insurance Company requesting that psychotherapy sessions be approved for the plaintiff. He states that the plaintiff “continues to present in a state of psychological crisis." The balance of the report outlines the grounds for psychotherapy sessions; namely, that there are psychiatric concerns that further complicate his diagnosis as the plaintiff presents with psychotic symptomatology in the form of delusions and paranoia. He concludes that, provisionally, and subject to a formal prognosis of a psychiatrist, the plaintiff’s prognosis is poor and that even with appropriate supports, her overall condition will further decline over time.
Dr. Amin Muhammad – Psychiatrist
50The plaintiff filed a report of Dr. Muhammad dated October 27, 2016 addressed to Dr. Nabi with respect to her assessment the same day. The plaintiff also saw Dr. Muhammad on June 27, 2016. He noted her diagnosis as major depressive disorder. He noted further that the plaintiff was preoccupied with worrying themes, that she had passive suicidal ideations with no plans, she had no hallucinations and delusions, and that testing for cognitive functions remained inconclusive. Dr. Muhammad referred the plaintiff for ongoing psychotherapy.
51The plaintiff filed a follow-up report of Dr. Muhammad dated January 23, 2017. His diagnosis of the plaintiff was unchanged from his earlier report. Notably he states that the plaintiff requested that he provide a statement to the effect that she can “instruct a lawyer in the court of law.” He recommended that the plaintiff speak to Dr. Nabi regarding her ability to instruct her lawyer. Shortly thereafter in mid-February, it is obvious that the plaintiff spoke with Dr. Nabi about obtaining a statement regarding her ability to instruct a lawyer as is seen from Dr. Nabi’s letters dated February 15 and 18, 2017.
Dr. P. Jeffrey Lewis
52The plaintiff filed a letter signed by Dr. Lewis of the Buffalo Neurosurgery Group dated October 20, 2016. In his letter, Dr. Lewis advised the plaintiff that he was unable to provide her with medical care due to a “break in the patient/physician relationship.” He recommended that she find another neurosurgeon without delay as her condition requires continued medical attention.
CAMH - Centre for Addiction and Mental Health
53The plaintiff filed an emergency department discharge/transfer summary from CAMH dated October 30, 2016 which sets out that she was admitted and discharged on that date. This record does not state the reason for the plaintiff’s admission.
Consent/Authorization Form
54The plaintiff also filed what appears to be a consent and authorization form signed by her on October 11, 2016 which authorizes Dr. John Tsihlias to perform a “flexible cystoscopy and right retrograde pyelogram.” The stated diagnosis is “hematuria and rule out ston/” (presumably this refers to kidney stone).
Other Medical Records
55The plaintiff filed several medical records that appear to be results of medical tests, including blood tests and an ultrasound of her pelvis.
Other Material
56The plaintiff filed numerous documents that, in my view, are not relevant to the issues on this motion. They include a lengthy information sheet regarding symptoms of concussions, a letter from the Law Society of Upper Canada dated February 3, 2017, letters from TD Insurance regarding requests for medical assessments and various letters that date back to 2014.
Analysis
Capacity Assessment
57It is a requirement under section 105 of the Courts of Justice Act that in using its discretion to order a party to undergo a physical or mental examination, the court must be satisfied that the party’s physical or mental condition is in question.
58It is clear that not only has HSH placed the plaintiff’s mental condition in question, but the plaintiff has put her mental or psychological condition in issue in her statement of claim. In paragraphs 3, 5 and 6 of her statement of claim, the plaintiff pled that she suffered from dizziness, headaches, difficulty concentrating, great pain and suffering, profound emotional shock, permanent impairment of an important mental or psychological function, and catastrophic impairment as a result of the subject accident.
59The plaintiff filed a great deal of medical evidence on this motion. This is not a situation where the medical evidence relates to an extraneous issue. The medical evidence filed includes relevant and recent reports from a psychologist, neuropsychologist and a psychiatrist who all address directly the plaintiff’s psychological condition.
60It is my view that there is sufficient and relevant medical evidence filed in order for this court to determine the issue of capacity; therefore, the moving party’s motion for directions for a capacity assessment is dismissed.
Capacity and Appointment of PGT
61As stated above, the plaintiff was assessed by two psychologists in April 2016 and May 2016 and again on February 1, 2017.
62Dr. Valentin was unable to complete a test of memory because the plaintiff had difficulty with concentration and memory, her thought process was scattered and she presented with delusional ideas. Further, Dr. Valentin recommended the plaintiff for further psychological treatment and referred to the plaintiff as having psychiatric issues that were obstacles for a neuropsychological assessment. Of particular importance is Dr. Valentin’s stated concerns whether the plaintiff had capacity to instruct her legal counsel or make decisions related to her claims in this action.
63Notably, Dr. Pilowsky had the same concerns as Dr. Valentin stating that the plaintiff requires assistance in making decision that pertain to her lawsuit and in advising her counsel.
64Dr. Pilowsky’s opinion is that the plaintiff’s cognitive abilities are very poor, including her memory, concentration, focus, and organization and decision-making. In my view these competencies and skills are requirements of any litigant in order to be able to understand the issues in the proceeding, to be able to make appropriate decisions and further to appreciate the consequences of a decision or lack thereof.
65It was also Dr. Pilowsky’s opinion that the plaintiff was in a significantly compromised state psychologically including paranoia, delusions and the inability to offer a coherent account. He described the plaintiff’s condition as having “collapsed psychologically,” with her overall functioning having declined further from her previously very poor state. It was also his opinion that it was in the plaintiff’s best interest to resolve the litigation relating to her accident as soon as possible to prevent further decline. He also described the plaintiff as having a level of mistrust and delusional thought process.
66Dr. Pilowsky’s opinions are extremely convincing considering that he has seen the plaintiff on numerous occasions and performed what appears to be a recent thorough assessment of her psychological condition. He has plainly stated that the plaintiff’s cognitive capacity is very poor. In his more recent report of February 1, 2017, Dr. Pilowsky affirms that the plaintiff’s prognosis is very poor and it was his opinion that her overall condition will further decline over time even with appropriate supports.
67For the reasons set out above, I find that the authenticity of Dr. Nabi’s numerous letters to be extremely suspect. These are the letters that contain a long list of unsupported statements to the effect that, for example, the plaintiff has the ability to understand and appreciate the nature of this proceeding, and to understand and distinguish between relevant and irrelevant issues. Furthermore, none of Dr. Nabi’s letters are properly before this court as evidence. Therefore, I have given them little weight in determining this motion.
68It is open to the court to consider evidence regarding the appearance and demeanor of the litigant in the courtroom. Dr. Valentin noted in his report that during the assessment the plaintiff held a teddy bear with wings for comfort and it appeared that the plaintiff was still in grief for her dog that had died.
69I have had the opportunity on numerous occasions to observe the plaintiff, both in a formal court setting and at an informal case conference. On several occasions, hearings had to be adjourned because the plaintiff collapsed in the courtroom and had to be taken by ambulance to the hospital. At a case conference, she was reluctant to enter the conference room and stood at the doorway and refused to speak. It is difficult to understand her submissions to the court as they are unorganized, disjointed, rambling and most times irrelevant to the issue on the motion. She brought to court a stuffed animal which appears to be a dog with wings that she clings tightly to her chest. When in the courtroom, she will either stand up or sit with her feet up on the seat beside her with a ball behind her neck.
70In my view, given the medical evidence, the non-compliant state of the plaintiff’s responding motion material despite my order that specifically required compliance, and the plaintiff’s behaviour and demeanour, I find it is inconceivable that the plaintiff is capable of understanding the litigation procedure, the legal issues in this action and that she would be capable of, for example, having discussions with defence counsel, producing a properly completed and executed affidavit of documents, giving coherent evidence at an examination for discovery, and participating in mediation with the very poor cognitive abilities as described by Dr. Pilowsky. Without a litigation guardian, in my view, this action will continue to be delayed and will not advance to the next stage of examinations for discovery. At some point, the plaintiff will be faced with a motion to dismiss the action for delay which would not be in her best interest. According to Dr. Pilowsky, further delay in this action would not be in the plaintiff’s best interest.
71I am satisfied on the evidence that the plaintiff’s psychological condition stems from a mental illness and not the result of a language barrier, cultural differences or lack of education or sophistication. The medical reports refer to possible reasons for her current psychological condition.
72I find that the evidence filed on this motion is compelling which has led me to the conclusion that the plaintiff is a party under disability within the meaning of rule 1.03(1)(b) in respect of this action. In my view she meets the requirements under both sections 6 and 45 of the SDA; namely, she is unable to understand information that is relevant to making decisions concerning the issues in this action and she is unable to appreciate the reasonably foreseeable consequences of making or not making decisions in this action.
73For the above reasons, it is my view that the plaintiff requires a litigation guardian for the purpose of this action. The plaintiff has not provided the name of any person who is willing to act as her litigation guardian. Nor is there any evidence of the plaintiff having named an attorney under a power of attorney with authority to act as a litigation guardian. Additionally, the reports of Drs. Valentin and Pilowsky state that the plaintiff has no family in Canada. Therefore, I am satisfied that there is no other person who is willing or able to act as litigation guardian for the plaintiff.
74In conclusion, the relief sought for the appointment of the Office of the PGT to act as litigation guardian for the plaintiff in respect of this action pursuant to rule 7.04(1)(b) and for the title of proceedings to be amended to reflect the appointment are hereby granted.
75With respect to HSH’s motion to be removed as plaintiff’s counsel of record, although this motion was not before me at this hearing, for expediency purposes, I am granting the order. The plaintiff advised the court at the hearing of this motion that she did not wish HSH to continue to represent her in this action. Although I have found that the plaintiff is a party under disability under the Rules, based on all the evidence, it is my view that HSH should not continue to represent the plaintiff in this action.
76The following orders shall be issued:
(a) HSH’s motion for directions for a capacity assessment of the plaintiff is dismissed;
(b) the PGT shall be appointed to act as litigation guardian for the plaintiff who is a party under disability;
(c) HSH shall be removed as counsel of record for the plaintiff effective immediately.
77With respect to the appointment of the PGT, I would ask that counsel provide me with a draft order for my signature by delivering it to my assistant trial coordinator, Ms. Christine Meditskos, 393 University Avenue, Toronto, 6^th^ Floor. HSH may also file with my ATC draft orders for its motion to be removed as counsel of record for the plaintiff for my signature.
(Original signed)
April 24, 2017 Master Lou Ann M. Pope
Footnotes
- The primary sources of law cited herein are the applicable provisions of the Substitute Decisions Act, 1991, S.O. 1990, c. C. 30, and the decision in Koch (Re), 1997 12138 (ON SC), 33 O.R. (3d) 485, [1997] O.J. No. 1487 (Ont. Ct. (Gen. Div.))
- The only medical evidence properly filed and before this court are the reports of Dr. Valentin dated April 14, 2016 and Dr. Pilowsky dated June 24, 2016 filed by HSH. For reasons stated in paragraph 2 above, none of the material filed by the plaintiff is properly before this court as evidence; however, it is included in the following summary of medical evidence. I will deal with the weight to be given to the plaintiff’s material later in these reasons.