Court File and Parties
COURT FILE NO.: 182/17 DATE: 20170621 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Shu He Huang by her Litigation Guardian, the Public Guardian and Trustee, and Jie Wei Pan, Plaintiff/Moving Party AND: Ancieto M. Braga, Defendant/Respondent
BEFORE: A.D. Kurke, J.
COUNSEL: Shu He Huang, acting in person Alan L. Rachlin and Jeffrey A. Small, Counsel for the Defendant/Respondent
HEARD at Toronto: In writing
Endorsement
Introduction
[1] Shu He Huang (“the moving party”) seeks leave to appeal from the order of Justice Todd L. Archibald of the Superior Court of Justice (“the motions judge”), dated October 11, 2016. In that order, the motions judge appointed the Public Guardian and Trustee (the “PGT”) to act as litigation guardian for the plaintiff/moving party pursuant to Rule 7.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), after finding her to be a person under a disability pursuant to Rule 1.03(1) and s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c.30.
[2] The moving party commenced action January 15, 2002, claiming damages sustained by her as a pedestrian from a motor vehicle accident on January 24, 2000. Jie Wei Pan was the moving party’s mother, who passed away in 2011; her action has been discontinued.
[3] Over time, the moving party has been represented by five different counsel: Lawrence Fine, Gregory Chan, Sam Pitaro, Daniel Holland, and Darryl Singer. Since October 2015, when Mr. Singer was removed as her counsel, she was unrepresented, until the order of the motions judge put in place the PGT as litigation guardian.
[4] Evidence before the court charts significant mental health issues from 2004 onwards, including auditory hallucinations, paranoid thoughts, refusal of psychiatric medications, and memory problems and impairment of awareness. In an October 31, 2011 report of psychiatrist Dr. A. Azadian, the moving party was diagnosed with a major depressive disorder with psychotic features, as well as anxiety disorder and pain disorder.
[5] On February 9, 2015, after a prior abortive capacity assessment, Archibald J. ordered that the moving party undergo a capacity assessment with Dr. Eva Chow, a Cantonese speaking psychiatrist. She found the moving party capable of representing herself, but noted that although the moving party’s major depressive disorder had improved as of February 2015, “mental status can change rapidly”, as could the moving party’s mental capacity. There was the potential for the moving party’s capacity to represent herself to be compromised by the time of trial.
[6] Following that report, Archibald J. conducted seven trial management conferences regarding the moving party’s matter, between March and July 2015.
[7] McEwen J. conducted trial management conferences in October and November 2015 before vacating the November 16, 2015 trial date, as he had significant concerns about the moving party’s ability to represent herself given the complexities of the trial, other issues, and her seeming lack of appreciation of the potential consequences of her decision to act in person, “notwithstanding the fact that she passed a capacity assessment”. The moving party refused to accept the assistance of amicus curiae, when it was offered by the court. A new trial date was set for October 3, 2016.
[8] Archibald J. held two further trial management conferences in September 2016. Jasmine Daya, who was to have been amicus, attended those conferences at Justice Archibald’s request, and prepared written submissions expressing her own concerns about the moving party’s capacity to represent herself at trial, based on observations from her time with the moving party.
[9] The respondent brought a motion returnable September 20, 2016 for an order that the moving party undergo a further capacity assessment, an order declaring the moving party a person under disability, and an order appointing the PGT as litigation guardian for her.
[10] In his September 20, 2016 endorsement, Archibald J. requested that the moving party attend a capacity assessment with Louise Silverston, a social worker and designated capacity assessor under the SDA. The moving party attended that assessment on September 22, 2016, and was told that she could refuse the assessment and stop it at any time. Ms. Silverston refused to allow the assessment to be audiotaped, although Dr. Chow had permitted her own assessment to be taped by the moving party. The moving party nevertheless agreed to engage in the assessment with Ms. Silverston.
[11] In the signed copy of her report that was submitted to Archibald J., Ms. Silverston found that the moving party did not have the mental ability to appreciate the reasonably foreseeable consequences of representing herself at trial, “secondary to her mental status conditions”, and “secondary to cognitive impairments”. She was a “vulnerable person” who was unable to represent herself in legal matters, but was otherwise capable of managing her property.
[12] The disability motion continued on October 5, 2016. The moving party opposed the motion, and provided written submissions. In his Reasons for Judgment of October 11, 2016, Archibald J. found the moving party mentally incapable with respect to her ability to represent herself in the legal proceedings. He found her to be a person under a disability because she could not appreciate the reasonably foreseeable consequences of her actions. He found that her incapacity stemmed from a source of mental illness, being her major depressive disorder, as detailed in the reports of Dr. Chow and Ms. Silverston. As no other options presented themselves, Archibald J. appointed the PGT as the moving party’s litigation guardian.
Tests for leave to appeal
[13] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.
The first test
[14] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).
[15] I have been directed to no conflicting decisions by the moving party on the issues involved in this case. Accordingly, in my view, the prerequisites of this test have not been satisfied.
The alternative test
[16] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted.
[17] It is not necessary that a judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.).
[18] In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).
[19] In the circumstances of this case, I see no matters of importance that go beyond the interests of the immediate parties, or that involve questions of general or public importance relevant to the development of the law and administration of justice. Accordingly, the moving party has not satisfied me on this test either.
[20] In such circumstances, leave to appeal will not be granted, as the moving party has not satisfied me about either of the two tests for leave.
[21] That said, it is appropriate to consider briefly the merits of the proposed appeal, and to assess whether there is any reason to doubt the correctness of the decision of the motions judge.
Analysis of the correctness of the motions judge’s order
[22] The moving party’s Amended Notice of Motion for Leave to Appeal particularizes six grounds of appeal that she would pursue if leave were granted.
Ground 1: The judge erred in finding Ms. Huang as a person under disability without medical proof by a licensed medical practitioner
[23] Dr. Chow was a licensed medical practitioner who found the moving party to have a persistent depressive disorder, with intermittent depressive episodes. Dr. Chow’s 2015 opinion adverted to the potential for the moving party’s mental capacity to fluctuate and decline. There was no need for a further psychiatric assessment in such circumstances, and a valid update opinion was offered by Louise Silverston, a designated capacity assessor under the SDA. Such qualification satisfies s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 for the purposes of Rule 7, for the appointment of a litigation guardian: Ziebenhaus (Litigation guardian of) v. Bahlieda, 2014 ONSC 138, [2014] O.J. No. 1583 (Div. Ct.), at paras. 69-73.
[24] The motions judge was well aware that the cause of incapacity under Rule 7 must stem from mental illness, dementia, developmental delay or physical injury and not simply from lack of sophistication, education, or cultural difference, and that recent medical or psychological evidence in this regard was pertinent (Reasons for Judgment, at paras. 18, 20, 25). He relied on medical evidence from Dr. Chow, among many other sources of evidence.
Ground 2: The judge erred in ordering Ms. Huang for capacity assessment without medical proof of capacity deterioration
[25] In his endorsement of September 20, 2016, the motions judge expressed his own concern that Dr. Chow’s view that the moving party’s mental state could decline had “come to fruition”. The motions judge set out many sources of information and evidence, as well as his own “personal observations”, justifying a further assessment. In the end result, the motions judge wanted additional information.
[26] However, the moving party was not ordered to attend the assessment with Ms. Silverton. Rather, it was clearly framed as a request by the motions judge that she attend. In para. 31 of his September 20, 2016 endorsement, the motions judge “request[ed] Ms. Huang to consent to a capacity assessment”, based on his concerns about her ability to understand the relevancy of information relating to the litigation, and grave concerns about her ability to appreciate the reasonably foreseeable consequences of her decisions relating to the litigation.
[27] The moving party’s claim that she was unaware that she could refuse to follow the request of Archibald J. to attend the assessment with Ms. Silverston, and felt that it was an order, is not credible. Before commencing the assessment, Ms. Silverston herself advised the moving party that she could refuse the assessment, stop it, or ask Ms. Silverston to leave her home, where the assessment was being conducted. Nevertheless, the moving party permitted Ms. Silverston to proceed.
Ground 3: The judge erred in ordering the capacity assessment cost to be paid by the plaintiff, although the motion for capacity assessment was brought by the defendant
[28] At para. 33 of the endorsement of September 20, 2016, the motions judge explained that prior assessments of the moving party had been paid for by the defendant, and that one of those assessments had not been completed. The motions judge explained that it would not be appropriate for the defendant to have to pay for a third assessment.
[29] The matter of the costs of the assessment was in the discretion of the motions judge; his exercise of discretion in that regard is not unique, and is owed deference: see, e.g., Sennek v. Carleton Condominium Corp. No. 116, 2016 ONSC 4818, [2016] O.J. No. 4202 (Sup. Ct.), at paras. 3, 30; Yakabuski v. Yakabuski Estate, [1988] O.J. No. 2870 (Div. Ct.), at para. 8.
[30] Again, the costs order was in the power of the moving party to avoid, by refusing to take part in the assessment, which was within her control.
Ground 4: The judge erred in admitting the electronic word document copy of the capacity assessment report without the assessor’s signature and assessor’s acknowledgement of expert duty: Rule 53.03(2.1)
[31] The Responding Record in this motion for leave contains a signed report from Ms. Silverston. While the moving party’s copy may not have been signed, it appears that the court’s copy had a signature.
[32] As to the “expert” acknowledgement of her duty (Form 53), in accordance with Rule 53.03(2.1)7, Ms. Silverton’s report contained within it no such acknowledgement. However, in its wording, Rule 53.03 speaks of the Form 53 as a document for trial, not on a motion; Rule 53 relates to “Evidence at Trial”. No Form 53 was required on this motion.
Ground 5: The judge erred in not ensuring that the capacity assessment was performed under fair and unbiased conditions
[33] This ground includes the moving party’s complaint that she was not permitted to record the assessment with Ms. Silverston. The moving party was explained her option not to participate in the assessment by Ms. Silverston, but did so anyway, even when she was told that she could not record it.
[34] The moving party obviously was not content with Ms. Silverton’s conclusions, and offered submissions that sought to cast doubt on the bona fides of Ms. Silverton’s report, and suggested that she was possibly part of a conspiracy. The motions judge was aware of Ms. Huang’s concerns, and considered them (Reasons for Judgment of October 11, 2016, para. 22).
[35] I see no reason to accept the moving party’s assertion that the assessor was biased in her outlook, and attempting to assist the defendant. I see no reason to doubt the correctness of the motions judge’s reliance on the report of a designated capacity assessor.
Ground 6: The judge erred in ordering the Public Guardian and Trustee to act as litigation guardian without medical proof that Ms. Huang’s incapacity stems from a major source of mental illness
[36] The motions judge relied on the finding of the source of mental illness (major depressive disorder) in the report of Dr. Chow, and referenced in the update by Ms. Silverston. Dr. Chow’s report contained fairly recent medical proof of a major source of mental illness in the moving party, that was itself consistent with an earlier diagnosis.
[37] The moving party clings to the opinion of capacity offered by Dr. Chow, without recognizing that that opinion also offers the justification for the appointment of a litigation guardian, as it prognosticates the variability and decline of the moving party’s capacity. The report of Ms. Silverston simply provided an update to Dr. Chow’s medical diagnosis that showed that Dr. Chow’s concerns had indeed come to pass.
Conclusion on the correctness of the motions judge’s order
[38] Even had the moving party been able to satisfy the other necessary component of the alternative test for leave to appeal to Divisional Court under Rule 62.02(4)(b), she has failed to satisfy me that there is reason to doubt the correctness of the decision of the motions judge.
Conclusion on the leave application
[39] For the above reasons, leave to appeal is denied.
Costs
[40] I have been provided with the respondent’s Costs Outline, in which he seeks $14,688.85 and $9,586.90 for substantial or partial indemnity costs, respectively. I have considered the factors set out in Rule 57.01, and note in particular the following: that this leave application was a paper proceeding; that the moving party’s motion, though having little chance of success, is completely understandable in the context of her views about this case, and her refusal to accept her legal incapacity; and that the amount claimed, even on a partial indemnity basis, is out of all proportion to the nature of this type of motion.
[41] In my respectful view, a fair and reasonable costs award to the respondent in all the circumstances of this case is $2,500, all inclusive.
A.D. Kurke, J. Date: June 21, 2017