Court File and Parties

COURT FILE NO.: 06-CV-35243 DATE: 2019/06/11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Zeljko Milicevic Plaintiff – and – Ottawa Police Service, Constable Christopher Fahey, Constable Steve Coulthart, Stephanie McConnell and Peter Schach Defendants

J.L. Lee Mullowney, for the Plaintiff Geoffrey Cantello, for the Defendants

HEARD: In Writing

Ruling on Motion

Introduction

[1] The plaintiff’s lawyer of record brings a motion for an order (a) declaring Zeljko Milicevic to be a “person under disability” within the meaning of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and (b) appointing the Public Guardian and Trustee (“PGT”) as the litigation guardian for Mr. Milicevic.

[2] The action arises from an incident that occurred on July 21, 2005. On that date, members of the Ottawa Police Service (the “OPS”) attended with Zeljko Milicevic to execute a Form 2 pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. The damages claimed include compensation for injuries and losses Mr. Milicevic alleges he suffered as a result of excessive force used by members of the OPS when the Form 2 was executed.

[3] This action was commenced in 2006. At that time, Mr. Milicevic was represented by counsel other than his current lawyer of record. In October 2010, Master MacLeod (as he then was) made an order removing Mr. Milicevic’s then lawyer of record.

[4] In February 2013, Mr. Milicevic delivered a notice of intention to act in person. Sometime thereafter, Mr. Milicevic retained his present lawyer of record.

The Motion

[5] The PGT was served with the motion record. In response, the PGT confirmed to plaintiff’s counsel that it is prepared, on two conditions, to accept an appointment as the litigation guardian for Mr. Milicevic. The first condition is that the court make the necessary finding that Mr. Milicevic is a “person under disability” within the meaning of the Rules. The second condition is that there is no one else suitable or able to act as litigation guardian.

[6] The two conditions identified immediately above are set out in a letter dated July 2017 from the PGT addressed to plaintiff’s counsel. A copy of the PGT’s letter was filed with the court for the original return date (July 2017). No one appeared on behalf of the PGT on the original return date.

[7] The defendants were served with the motion record. They do not oppose the relief sought. They did not deliver any materials in response to the motion and were not represented on the original return date.

[8] The relief requested was not granted on the original return date. There were deficiencies in the supporting evidence, including the following:

• First, the medical documents included in the original record are dated more than two years prior to the return date for the motion;
• Second, the medical documents were not prepared for the purpose of the motion. The documents relate, instead, to (a) a criminal proceeding in which Mr. Milicevic was ultimately found to be not criminally responsible, and (b) Mr. Milicevic’s claim for Ontario Disability Support Program (“ODSP”) benefits; and
• Third, the medical documents are attached as exhibits to an affidavit by a legal assistant in the office of plaintiff’s counsel (Mullowney’s Law, Professional Corp. and “MLPC”), and not to an affidavit sworn by the author of the documents.

[9] The motion was adjourned to permit plaintiff’s counsel to deliver additional evidence—specifically addressing the test and/or criteria for a finding that Mr. Milicevic is a person under disability who requires a litigation guardian.

[10] Plaintiff’s counsel was given the option of pursuing the motion in writing, once the additional evidence was secured. Plaintiff’s counsel chose to proceed in that manner.

[11] A supplementary record was filed in November 2018. The supplementary record includes a second affidavit from the same legal assistant at MLPC. A recent medical report (2018) is attached as an exhibit to that affidavit.

[12] There was some delay before the supplementary record could be considered. Plaintiff’s counsel did not arrange for the 2017 motion record to be retrieved from the court file and placed before the court, together with the supplementary motion record. The court file was no longer in Ottawa. It was, therefore, necessary for plaintiff’s counsel to request that the court file be retrieved from storage.

[13] When the court file was received from storage, it did not include the pleadings or the motion record originally filed. Plaintiff’s counsel provided the court with an additional copy of the 2017 motion record, and copies of the January 2010 fresh as amended statement of claim and April 2011 statement of defence.

The Pleadings

[14] Mr. Milicevic’s claims against the defendants are based on several causes of action. In summary, the claims relate to the manner in which the Form 2 is alleged to have been obtained and the manner in which it is alleged to have been executed. The defendants, Ms. McConnell and Mr. Schach are said to be husband and wife and, through marriage, related to Mr. Milicevic’s daughter. Mr. Milicevic alleges that Ms. McConnell and Mr. Schach influenced members of Mr. Milicevic’s family to obtain the Form 2.

[15] Mr. Milicevic is pursuing claims against the OPS and the two constables based (a) in false arrest, false imprisonment, assault, and battery, and (b) on alleged breaches of his rights pursuant to ss. 7 - 10 and 12 of the Canadian Charter of Rights and Freedoms. Against all of the defendants, Mr. Milicevic advances claims based in (a) malicious prosecution and misfeasance in public office, and (b) negligence and professional negligence.

[16] Mr. Milicevic alleges that as a result of the conduct of one or more of the defendants, his “life as he knew it was destroyed” on the day on which the Form 2 was executed (fresh as amended statement of claim, para. 13). Mr. Milicevic seeks damages with respect to the physical, psychological, and other harm he alleges that he suffered as a result of the defendants’ respective conduct. He also claims entitlement to damages pursuant to s. 24(1) of the Charter on the basis of the alleged Charter breaches.

[17] The statement of defence identifies that the “Ottawa Police Service” is not a public authority; the correct name for the institutional defendant is the “Ottawa Police Services Board”. The defendants deny the allegations made in the fresh as amended statement of claim. Ms. McConnell and Mr. Schach allege that they were entitled to assist Mr. Milicevic’s family members with respect to the Form 2. The OPS and the constables allege that the Form 2 was executed with legal authority and with the use of reasonable and appropriate force.

The Issues

[18] The issues to be determined are:

1. Does the evidence filed on the motion support a finding that Mr. Milicevic is a person under “disability”, within the meaning of r. 1.03 of the Rules and, therefore, requires a litigation guardian?
2. If the answer to Issue No. 1 is, “yes”, is the PGT appointed as the litigation guardian for Mr. Milicevic?

Evidence on the Motion

[19] The two affidavits filed in support of the motion are sworn by Tonya Bender, a legal assistant with MLPC.

a) May 2017 Bender Affidavit

[20] The exhibits attached to the first Bender affidavit include a copy of an email dated December 2016, from Mr. Milicevic to plaintiff’s counsel. In that email, Mr. Milicevic instructs his counsel to “proceed with the file as discussed, including the role of the Litigation Guardian”. Mr. Milicevic also confirms an earlier telephone conversation in which he stated that he is “amenable to taking additional assessment(s) should that be deemed necessary.” Two other exhibits are included as evidence of communication between Mr. Milicevic and his counsel with respect to the appointment of a litigation guardian.

▪ January 2014 Report of Psychiatrist, Dr. Dufour

[21] Also included as an exhibit to the first Bender affidavit is a 17-page report prepared by psychiatrist, Dr. Matthew Dufour. That report, dated January 2014, is addressed to “The Presiding Judge” of the Ontario Court of Justice.

[22] In November 2013, Mr. Milicevic was charged with three counts of harassment by threatening conduct to another person. In his January 2014 report, Dr. Dufour expresses the opinion that Mr. Milicevic “meets the threshold for an NCR [not criminally responsible] defence under Section 16(1) [of the Criminal Code]”. Dr. Dufour’s opinion is that Mr. Milicevic “was experiencing psychotic symptoms that rendered him incapable to recognize that his actions were wrong at the time of the alleged offences.”

[23] Dr. Dufour also reviews the circumstances leading to the criminal charges. It appears that in 2013, Mr. Milicevic was posting material on the Internet and sending emails that could be interpreted as threatening towards Ms. McConnell. The postings and emails were based on Mr. Milicevic’s belief that Ms. McConnell was involved in his family member(s) obtaining the Form 2.

[24] The 2014 report was prepared following what Dr. Dufour describes as a “full psychiatric assessment completed in the Forensic Program of the Royal Ottawa Mental Health Centre”. Dr. Dufour had available for review, amongst other documents, historical medical records from Mr. Milicevic’s family physician and psychiatrist.

[25] Dr. Dufour’s diagnosis of Mr. Milicevic’s condition was that Mr. Milicevic suffers from “delusional disorder, persecutory type, continuous”. Dr. Dufour describes Mr. Milicevic as suffering from paranoid delusions since at least 2005. The delusions include that police officers had threatened Mr. Milicevic and are responsible for injuries he suffered in 2005.

[26] Dr. Dufour highlights that as a result of the delusions, Mr. Milicevic’s life has been significantly impacted—including with respect to family and employment. For example, Mr. Milicevic has been divorced for a number of years and has not had contact with either of his adult children since 2005 and 2006.

[27] Dr. Dufour also makes reference to Mr. Milicevic expressing “bizarre ideas related to the Ottawa Police.” For example, Mr. Milicevic referred to being “raped … via hugs” by one police officer and to another officer, who came to Mr. Milicevic’s door, as the “mastermind” of the police conduct.

▪ July 2014 ODSP Form Completed by Dr. Dufour

[28] Also an exhibit to the first Bender affidavit is a form completed by Dr. Dufour, by hand, for the Ministry of Community and Social Services. The form is dated July 2014, and relates to Mr. Milicevic’s claim for benefits under the Ontario Disability Support Program.

[29] In the form, Dr. Dufour identifies that Mr. Milicevic:

a) was diagnosed with delusional disorder; b) is unable to work because of paranoid delusions that lead to conflict with his employer and co-workers; c) is unable to concentrate, and d) is unable to solve “complex problems”. Dr. Dufour reports that in terms of a prognosis, Mr. Milicevic’s condition is “continuous” and “likely to remain the same”.

[30] The form requires Dr. Dufour to consider 13 aspects of Mr. Milicevic’s daily function. In completing the form, Dr. Dufour describes Mr. Milicevic’s difficulties and the level of assistance Mr. Milicevic requires with respect to each function. Dr. Dufour describes Mr. Milicevic as experiencing “Class 2” (minimal) symptoms or signs with respect to each of the following functions:

• Bodily functions (eating, eliminating, sleeping);
• Emotion (affect, mood, anxiety and other emotions, associated psychological disturbances, and panic phobia);
• Impulse control (difficulty with behavioural control);
• Intellectual function (cognitive disturbance, planning, organizing, sequencing and abstracting difficulties);
• Judgment (difficulties anticipating the impact of one’s behaviour on self and others); and
• Motivation (depressive avolitional problems).

[31] Dr. Dufour describes Mr. Milicevic as experiencing “Class 3” (moderate) symptoms or signs with respect to the following functions:

• Lack of insight (grandiosity, excessively negative self-evaluation, and difficulty in understanding one’s own mental health problems); and
• Thinking (delusions, obsessions, flight of ideas, and blocking).

[32] There are no daily functions for which Dr. Dufour identifies Mr. Milicevic experiencing “Class 4” (severe) symptoms or signs.

[33] The form also requires Dr. Dufour to answer 24 questions about the impact of Mr. Milicevic’s impairment on his “ability to attend to [his] personal care, function in the community and function in a workplace.” Once again, Classes 1 to 4 are utilized. Dr. Dufour rates Mr. Milicevic at Class 1 (“Within normal limits … Does not prevent the performance of any activity”) for 21 of the 24 subjects addressed. Those subjects include, for example:

• Ability to comprehend and express or communicate orally;
• Exhibits normal limits of functioning with respect to intelligence;
• Is able to utilize commercial services (banks, hydro, phone company, etc.); and
• Financially responsible for his/her own affairs (e.g., applicant can function independently).

[34] Dr. Dufour reports that Mr. Milicevic exhibits either Class 2 or Class 3 limitations with respect to only three of the 24 questions. A Class 2 limitation is defined as mild or slight, and resulting in Mr. Milicevic taking a slightly longer time or requiring some accommodation to complete the task. A Class 3 limitation is defined as medium or moderate, and resulting in Mr. Milicevic taking considerably longer time or requiring accommodation to complete the task.

[35] The three limitations identified as either Class 2 or Class 3 are:

• Exhibits normal limits of functioning with respect to impulse control and behaviour (Class 3);
• Attention span is sustainable and appropriate to task (Class 2); and
• Can take medication(s) as directed and handle/store medication(s) safely (Class 3).

[36] A number of other documents included as exhibits to the Bender affidavits warrant discussion.

▪ Other Documents

[37] Another exhibit to the first Bender affidavit is a copy of a letter, dated December 2015, sent by the Ministry of Community and Social Services to Mr. Milicevic. The author of the letter informs Mr. Milicevic that he is found to be “a person with a disability as defined in the Ontario Disability Support Program Act, 1997.”

[38] There are no documents (reports or otherwise), attached as exhibits to the Bender affidavit, in which a qualified professional expresses an opinion as to whether Mr. Milicevic is a “person under disability” within the meaning of either the Rules or s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”). At para. 12 of the first Bender affidavit, however, Ms. Bender says:

Based on my review of the file, and in particular the psychiatric reports of Dr. Dufour, I do verily believe that the Plaintiff is incapable within the meaning of Section 6 of the Substitute Decisions Act in respect of these proceedings and is therefore a party under a “disability” pursuant to Rule 1.03(1) of the Rules of Civil Procedure.

[39] Ms. Bender does not identify that she possesses any expertise or qualifications that would entitle her, with leave of the court, to provide opinion evidence. The statement made by Ms. Bender in para. 12 of her affidavit is not admissible as opinion evidence. As lay evidence, I give it no weight whatsoever.

b) November 2018 Bender Affidavit

[40] Subsequent to the original return date for the motion, plaintiff’s counsel made efforts to retain a capacity assessor to conduct an assessment of Mr. Milicevic’s capacity to provide instructions to counsel in this matter. In her second affidavit, Ms. Bender outlines the efforts made by plaintiff’s counsel in that regard.

[41] Ms. Bender explains that nine capacity assessors in the Ottawa area were contacted. Each of them declined to conduct an assessment of Mr. Milicevic. No explanation is provided by Ms. Bender as to why any one or more of the nine assessors declined to carry out the assessment.

[42] Ms. Bender’s evidence is that, ultimately, Dr. Dufour was contacted because he had conducted the assessment of Mr. Milicevic with respect to the criminal proceeding. Ms. Bender’s evidence is that Dr. Dufour initially declined, because of workload, to become involved with respect to the issue of a litigation guardian.

[43] In June 2018, plaintiff’s counsel writes to Dr. Dufour and repeats the request for assistance. In his letter, plaintiff’s counsel says:

The Public Guardian and Trustee [is] poised to act as a substitute decision maker for Mr. Milicevic once the court orders same. The court has asked that we determine whether Mr. Milicevic has improved since your report. A simple letter is all that will be required. If Mr. Milicevic has not improved, the court is prepared to order that Mr. Milicevic be represented by a litigation guardian.

[44] The representations made by plaintiff’s counsel to Dr. Dufour are erroneous in a number of ways. First, the evidence required is more than a statement from Dr. Dufour as to whether or not Mr. Milicevic has improved since he was examined by Dr. Dufour for the purpose of the criminal proceeding. Second, it is clear from the court’s July 2017 endorsement in this matter that more than “a simple letter” from Dr. Dufour (or a capacity assessor) is required. Third, there is nothing in the July 2017 endorsement to suggest that if Mr. Milicevic has not improved, “the court is prepared” to appoint a litigation guardian for him.

[45] In response, Dr. Dufour writes to plaintiff’s counsel in June 2018 and says:

I am willing to re-evaluate Mr. Milicevic and provide your office with a letter describing his current mental state, comparing [sic] it to his mental state as per my last report. This will be the extent of my involvement, as I am unable to neither comment nor provide advice in terms of his financial capacity at this point.

Please advise the details of remuneration in regards to this assessment.

[46] Dr. Dufour ultimately sees Mr. Milicevic in August 2018, for an hour-long appointment. A copy of the two-page report prepared by Dr. Dufour following that appointment is attached as an exhibit to the second Bender affidavit. In his report, Dr. Dufour says:

When I saw [Mr. Milicevic a] few weeks ago, his mental state was comparable to his mental state when I last saw him in 2014. He remained fixated on the “15 years of torture” he endured from his family, the Ottawa Police Services and “the system”. He continued to endorse the same persecutory delusions that the police [are] following him with “physical surveillance”. He believed that the police has used his family to get to him after his son contacted him in the recent years. He was of the opinion that there is a “major conspiracy” against him. Mr. Milicevic continued to lack insight into his mental illness. He was not interested to take antipsychotic medications.

Mr. Milicevic’s physical state appeared to be stable …

I confirm that Mr. Milicevic continues to suffer from the same mental disorder, namely a delusional disorder, persecutory type, continuous. His mental state is the same as when I last saw him in 2014. He continues to experience the same persecutory delusions at the same intensity.

[47] In his report, Dr. Dufour addresses the matters he was asked by plaintiff’s counsel to address. Unfortunately, the matters he was asked to, and did, address are not the matters that the July 2017 endorsement directed be addressed.

[48] Does the evidence support a finding that Mr. Milicevic is a “person under disability”?

Issue No. 1 - Is Mr. Milicevic a person under disability who requires a litigation guardian?

a) Definition of Person Under Disability

[49] Subrule 1.03 defines “‘disability’, where used in respect of a person, [as meaning] … mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 [“SDA”] in respect of an issue in the proceeding, whether the person has a guardian or not”. Section 6 of the SDA defines a person as 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.”

[50] Section 45 of the SDA defines when a person is incapable of managing personal care. That definition is not relevant to the determination of this motion.

b) Persisting Deficiencies in the Evidence

[51] This action is now 13 years old. It appears that more than 2.5 years have passed since Mr. Milicevic first agreed to have a litigation guardian appointed for the purpose of advancing the action. It is unfortunate that the evidence before the court at this time does not specifically address the criteria the court is required to consider in determining whether Mr. Milicevic is a “person under disability” within the meaning of rr. 1.03 and 7.

[52] I disagree with the statement made by Ms. Bender in her second affidavit that, “We have made absolute best efforts to seek additional evidence addressing specifically the test for [a] finding of disability.” No explanation is offered as to why numerous capacity assessors declined to carry out a capacity assessment of Mr. Milicevic with respect to his ability to instruct counsel for the purpose of this litigation. As a result, it is not possible to determine the quality of the efforts made to comply with the July 2017 endorsement.

[53] In addition, the information conveyed by plaintiff’s counsel to Dr. Dufour in 2018 is both inaccurate and misleading. As a result, although Dr. Dufour prepared a report in accordance with the instructing letter, his report does not address the definition of a “person under disability”.

[54] There is also the matter of the manner in which the opinions expressed by Dr. Dufour are placed before the court—in the form of exhibits to affidavits sworn by someone other than Dr. Dufour. That matter is addressed in greater detail in both the next and the concluding section of this ruling.

c) Mr. Milicevic’s Mental Capacity

[55] The onus is on the party seeking a declaration that an individual is a person under disability to establish that the individual meets the relevant criteria (Bilek v. Constitution Insurance, [1990] O.J. No. 3117 (Dist. Ct.), at para. 2).

[56] At para. 21 of his decision in 626381 Ontario Ltd. v. Kagan, Shastri, Stinson J. concludes that (a) the language of s. 6 of the SDA is ‘imported’ into the definition of “disability” within the Rules, and (b) the definition of “disability” in r. 1.03(1)(b) “reflects the overall purpose of Rule 7 and [r.] 7.04(1)(b) in particular” (2013 ONSC 4114, 116 O.R. (3d) 202).

[57] The overall purpose of Rule 7 is protection for everyone involved in the proceeding: the party under disability, the opposing parties, and the court (Derek McKay and Gary D. Watson, Holmested and Watson: Ontario Civil Procedure, vol. 2 (Scarborough, Ont.: Carswell, 1984) (loose-leaf), at pp. 7-13, as quoted by Master Beaudoin (as he then was) in Cameron v. Louden (1998), 65 O.T.C. 161 (Gen. Div.)). The provision of this protection is significant. Also significant is the right of a litigant to have the final say in directing how his or her litigation is to be conducted or resolved. That right is not lightly taken away (Bilek at para. 2).

[58] For that right to be taken away, there must be cogent evidence that establishes that, “in respect of an issue in the proceeding, the party is unable to understand and appreciate relevant information or the reasonably foreseeable consequences of a decision, not simply that they fail to [do so]” (Kagan, Shastri at para. 24 relying on Backhouse J. in C. (C.) v. Children’s Aid Society of Toronto, [2007] O.J. No. 5613 (S.C.)).

[59] It is clear from Dr. Dufour’s 2014 and 2018 reports that he is of the opinion that Mr. Milicevic suffers from delusions (a) of a persecutory type that are continuous, and (b) stem in part from the execution in 2005 of the Form 2 and in part from Mr. Milicevic’s contact with members of the Ottawa Police Service in subsequent years. The opinions expressed by Dr. Dufour, if admissible as evidence, support a finding that the delusions from which Mr. Milicevic suffers are with “respect to an issue in the proceeding”.

[60] The significance of opinions of the kind expressed by Dr. Dufour is addressed by Jennings J. in Soriano v. Laberakis (2006), 80 O.R. (3d) 303 (S.C.). Mr. Laberakis shot and killed two people. He was found not criminally responsible with respect to the charges arising from the incident. A civil claim for damages was commenced against Mr. Laberakis. A lawyer retained by Mr. Laberakis’ family, but not on the record, brought a motion for an order appointing the PGT as the litigation guardian for Mr. Laberakis.

[61] In support of the motion, the lawyer filed an affidavit in which he expressed his opinion about Mr. Laberakis’ mental difficulties. The lawyer included as an exhibit to his affidavit, a letter from a psychiatrist in which the latter stated his opinion that Mr. Laberakis would require the appointment of a litigation guardian. In his affidavit, the lawyer said that he was unable to provide additional evidence because to do so would require that he breach solicitor-client privilege.

[62] The motion proceeded before a master and the relief requested was not granted. The master concluded that the evidence was not sufficient to support a finding that Mr. Laberakis was a person under disability. The decision of the master was appealed.

[63] On the appeal, a request was made for fresh evidence to be admitted. The fresh evidence consisted of two reports that the lawyer had in his possession at the time the motion was originally heard. The authors of the reports, both medical professionals, each expressed the opinion that “Mr. Laberakis suffered from a psychiatric condition that robbed him of the capacity to appreciate the nature and quality of his actions and/or knowledge of the moral or legal wrongfulness of them” (Soriano at para. 10).

[64] It appears that the two reports were dated approximately three years prior to the date on which Jennings J. rendered his decision. In 2003, Mr. Laberakis was found to be not criminally responsible. It was not until 2006 that Jennings J. heard the appeal from the master’s decision. Jennings J. allowed the reports to be admitted as fresh evidence on the appeal. At para. 18 of his decision, he concluded that “to ignore the reality revealed [by the two reports] would not serve the interests of justice.”

[65] Jennings J. highlighted that “because persons under disability are subject to the parens patriae jurisdiction of this Court, the Court should exercise its discretion in a manner that enhances the protection of such individuals” (at para. 15).

[66] It is not clear from the decision in Soriano how the two additional reports were before the court for the purpose of the appeal. It is unclear whether the reports were filed pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23, or were included as exhibits to an affidavit (and, if the latter, whether from each of the physicians or from someone other than the physicians).

[67] Subject to addressing how the reports of Dr. Dufour are before the court, Soriano provides a precedent for relying—for the purpose of a motion for the appointment of a litigation guardian—on a report addressing the defence of not criminally responsible with respect to historical criminal charges where the civil action arises from the same circumstances upon which the criminal charges were based.

[68] The opinions expressed by Dr. Dufour go a step farther than did the opinions expressed in Soriano: Dr. Dufour’s opinions have been updated. In deciding this motion, the court is not required to rely exclusively on documents that are now approximately five years old (i.e., the 2014 report and 2014 form prepared by Dr. Dufour).

[69] If the court is entitled to consider the opinions expressed by Dr. Dufour, the opinions support a finding that Mr. Milicevic is a “person under disability” within the meaning of the Rules and therefore a party who requires a litigation guardian.

d) Deficiencies in the Evidence

[70] The opinions expressed by Dr. Dufour are before the court in the form of substantive contents of exhibits to the two Bender affidavits. Is the court entitled to consider Dr. Dufour’s opinions as evidence on the motion?

[71] In Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340, Edwards J. was required to determine whether the plaintiff could, in support of a motion for an order requiring the defendant to make an advance payment, rely on the contents of the report of an occupational therapist (“the O.T.”). The O.T.’s report was attached as an exhibit to an affidavit sworn by a law clerk in the office of plaintiff’s counsel.

[72] Edwards J. concluded that the plaintiff was entitled to rely on the contents of the O.T.’s report:

• Had the defendant wished to test the opinions expressed by the O.T., the defendant could have moved for an order pursuant to r. 39.03 for the examination of the O.T. as a witness on a pending motion (at paras. 23-24); and
• Even where s. 52(2) of the Evidence Act and r. 53.03 are complied with, the party calling an expert to give evidence requires leave of the court for the expert to give opinion evidence (at paras. 25-26, citing Doran v. Melhado, 2015 ONSC 2845); and
• To disregard the opinion evidence, would constitute a failure to give effect to r. 1.04, which requires the Rules to be liberally construed to ensure the “just, most expeditious and least expensive determination of every civil proceeding on its merits” (at para. 31, citing Doran).

[73] I follow the approach of Edwards J. in Duggan. I find that it is open to the court to consider the opinions expressed by Dr. Dufour in the two reports and in the 2014 form.

[74] With respect to the application of r. 1.04 in the circumstances of this case, I note the following:

• Mr. Milicevic is amenable to having a litigation guardian appointed. The relief requested is not opposed by the person whose rights will be most significantly affected if the relief requested is granted;
• The PGT is prepared to act as litigation guardian (as long as certain conditions are met);
• The defendants were served with the motion record, did not file any responding materials, and did not appear on the return of the motion;
• The defendants did not pursue an order granting them leave, pursuant to r. 39.03, to examine Dr. Dufour; and
• There are no reports or other documents that contradict the opinions expressed by Dr. Dufour.

[75] It is clear from the 2014 and 2018 reports of Dr. Dufour that Mr. Milicevic is an individual who suffers from a mental incapacity that relates to an issue in the proceeding. The reports of Dr. Dufour are analogous to the two reports considered by Jennings J. on the appeal in Soriano. The reports of Dr. Dufour go one step further than did the reports in Soriano: Dr. Dufour updated his opinion as expressed four years earlier (whereas the authors of the two reports in Soriano did not do so).

[76] Neither r. 53.03 nor s. 52(2) of the Evidence Act are complied with in relation to the 2014 report, 2014 form, and 2018 report of Dr. Dufour. Again, following the reasoning of Edwards J., the lack of compliance in that regard does not preclude the court from considering the contents of the reports in these circumstances.

[77] In the 2014 form completed by Dr. Dufour for ODSP, he describes Mr. Milicevic as having a certain level of function with respect to a number of aspects of daily life. I am satisfied that, despite the level of function identified in that regard, the significant impact of the delusions on Mr. Milicevic’s incapacity “with respect to an issue in the proceeding” is not diminished.

[78] In any event, I find that, in the 2014 form, Dr. Dufour describes Mr. Milicevic as limited in function in certain spheres that are relevant to his ability to instruct counsel including with respect to this action. For example, Dr. Dufour identifies that Mr. Milicevic is unable to solve “complex problems”. In addition, he describes Mr. Milicevic as experiencing Class 3 (moderate) symptoms with respect to thinking (i.e., delusions, obsessions, flight of ideas and blocking).

[79] Again, following the reasoning of Jennings J., “to ignore the reality revealed by [Dr. Dufour’s reports and the form he prepared] would not serve the interests of justice” (Duggan at para. 18). Relying on the opinions expressed by Dr. Dufour, I find that (a) Mr. Milicevic is a person under disability within the meaning of the Rules, and (b) he requires a litigation guardian.

Issue No. 2 - Is the PGT appointed as the litigation guardian?

[80] With Mr. Milicevic found to be a “person under disability”, the first of the two conditions identified by the PGT is satisfied. Is the PGT’s second condition satisfied? Is there no one else suitable or able to act as litigation guardian?

[81] Based on the contents of Dr. Dufour’s reports, I find that Mr. Milicevic is estranged from his nuclear family (his ex-wife and two adult children). Dr. Dufour describes Mr. Milicevic as leading an isolated life, in large part because of his mental health issues. I accept Ms. Bender’s evidence, as set out in her first affidavit, that there is no one able and willing to fulfil the role of litigation guardian for Mr. Milicevic.

[82] The PGT’s second condition is met. The PGT is appointed as the litigation guardian for Mr. Milicevic.

Disposition

[83] For the reasons set out above:

1. THIS COURT DECLARES that Mr. Milicevic is a “person under disability” within the meaning of the Rules of Civil Procedure.
2. THIS COURT ORDERS that the Public Guardian and Trustee is appointed as the litigation guardian for Mr. Milicevic in this action.
3. THIS COURT ORDERS that the title of proceeding is amended and shall, in all documents served or delivered subsequent to the date of this order, describe the plaintiff as, “Zeljko Milicevic, by his litigation guardian the Public Guardian and Trustee”.

[84] Mr. Milicevic’s lawyer of record makes no request for costs of the motion. There shall be no costs on the motion. Paragraph 4 of the order made pursuant to this endorsement shall read:

4. THIS COURT ORDERS that there shall be no costs of the motion.

Evidence on Motions - Commentary

[85] I turn once again to the manner in which Dr. Dufour’s two reports and 2014 form were placed before the court. Plaintiff’s counsel did not address the deficiencies in the evidence in any way; in fact, the specific direction in the 2017 endorsement to address existing deficiencies was ignored. The deficiencies in the first Bender affidavit were repeated in the second Bender affidavit.

[86] It appears that Dr. Dufour was reluctant to become involved in the civil litigation. Once he agreed to become involved, his involvement was limited to a one-hour appointment with Mr. Milicevic and the preparation of a single-page report. While I do not go so far as to draw an inference, it appears that it may have been difficult to secure Dr. Dufour’s involvement in the preparation and delivery of an affidavit in his name.

[87] There is, however, no evidence before the court to suggest that Dr. Dufour was not prepared to swear an affidavit for the purpose of the motion. Had he done so, the two reports and the form could have been attached as exhibits to his affidavit. If properly referenced in the affidavit, the contents of the reports and form would have been admissible as evidence.

[88] An acknowledgement of expert’s duty form (Form 53) and a copy of Dr. Dufour’s curriculum vitae could also have been attached as exhibits to an affidavit in Dr. Dufour’s name. The inclusion of those documents in the record would have permitted the court to consider Dr. Dufour’s qualifications as an expert witness and his understanding of his obligations in that role.

[89] The decision to accept Dr. Dufour’s reports and form as evidence was not reached easily. As a result of research on the part of the court, the decisions in Soriano, Doran, and Duggan were identified. Plaintiff’s counsel did not draw those decisions to the court’s attention. As a result of reviewing those cases, I am comfortable with the decision to (a) accept Dr. Dufour’s reports and form, and (b) rely on those documents for the purpose of this motion.

[90] I am also mindful that this litigation has been ongoing for almost 13 years. The statement of claim was issued in July 2006. The possibility of a litigation guardian being appointed for Mr. Milicevic has existed since at least late 2016 (see para. 20, above). It is in the interests of all parties that this matter move forward expeditiously.

[91] This ruling should in no way be seen as condoning the presentation of expert opinion evidence in the manner in which it was presented on this motion. Plaintiff’s counsel in this matter is not alone in relying on this method of presentation. Many counsel take the same approach to the presentation of expert opinion evidence on motions or applications. In doing so, they fall far short of the requirements of the Rules and of the Evidence Act.

[92] Perhaps this ruling, in combination with others in which similar concerns are expressed, will contribute to the elimination of the practice of attempting to rely upon the substantive contents of documents attached as exhibits to an affidavit sworn by someone other than the author of the documents.

Madam Justice Sylvia Corthorn

Released: June 11, 2019

COURT FILE NO.: 06-CV-35243 DATE: 2019/06/11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: Zeljko Milicevic Plaintiff – and – Ottawa Police Service, Constable Christopher Fahey, Constable Steve Coulthart, Stephanie McConnell and Peter Schach Defendants

RULING ON MOTION

Madam Justice Sylvia Corthorn

Released: June 11, 2019