Court File and Parties

COURT FILE NO.: 16-70095 DATE: 20190621 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RAMA HASHEMI by his Litigation Guardian NIKA SHINA HASHEMI, NIKA SHINA HASHEMI and VIOLET HASHEMI Plaintiffs

AND

BARAMEEAH SOREEFAN, VAFA HASHEMI, ABBAS HASHEMI and RBC GENERAL INSURANCE COMPANY Defendants

BEFORE: Justice Heather J. Williams

COUNSEL: Derek Nicholson, counsel for the plaintiffs No one appearing for the defendants

HEARD: June 3, 2019

Endorsement

[1] The plaintiff Rama Hashemi, who is represented by a litigation guardian, is seeking an order that he is capable of managing his own financial affairs.

[2] The plaintiffs’ action has been settled but it has not been approved under Rule 7.08(1) of the Rules of Civil Procedure. The draft order the plaintiffs filed for my consideration includes both a declaration that Mr. Hashemi has capacity to manage his financial affairs and an order approving the settlement.

[3] I have reviewed the material filed before and after the plaintiffs’ appearance in court on June 3, 2019.

[4] The Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 6 says that 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.

[5] There was ample reason to believe that, following the September 2014 car accident in which Mr. Hashemi was injured, Mr. Hashemi lacked capacity to manage property. (See, for example, the June 5, 2016 affidavit of the litigation guardian and its exhibit, the May 11, 2018 report of Gabrielle Papineau and Dr. Deanna Quon and the July 9, 2018 future care costs report of Carol Bierbrier & Associates.)

[6] I have reviewed the capacity assessments filed by three different assessors designated under the Substitute Decisions Act, 1992.

[7] On October 30, 2018, Nicole Robert, RN, concluded that Mr. Hashemi was capable of making decisions related to property.

[8] On April 26, 2019, Dr. Francine Sarazin, C.Psych, concluded that Mr. Hashemi has capacity to manage financial matters, current and future, including large lump sum settlements.

[9] I was concerned that Leonard Burnstein, M.S.W., R.S.W., having stated in his assessment of January 28, 2019 that Mr. Hashemi “does not meet the minimum standards for capacity to independently manage a large insurance settlement” did not explicitly change that opinion in his addendum of May 22, 2019. However, in his May 22, 2019 addendum, Mr. Burnstein wrote that Mr. Hashemi’s ability to understand and manage his pending settlement had improved considerably since January and that Mr. Hashemi’s decisions about the settlement were well thought out and reasonable. My concerns about what I interpret to be Mr. Burnstein’s residual doubts about Mr. Hashemi’s capacity to manage independently a large settlement are dispelled by the last line of Mr. Burnstein’s addendum, where he wrote that Mr. Hashemi understands and appreciates his risk potential and also how he must rely on financial professionals for advice.

[10] In conclusion, I find, based on the opinions of the three assessors, that Mr. Hashemi has capacity to manage property or, to use the words of s. 6 of the Substitute Decisions Act, 1992, that Mr. Hashemi is not incapable of managing property.

[11] I turn now to the plaintiffs’ request for approval of the settlement of Mr. Hashemi’s action.

[12] I have already noted that there was ample reason to conclude that, following his accident, Mr. Hashemi was not capable of managing his own financial affairs. Mr. Hashemi’s sister agreed to act as his litigation guardian. Mr. Hashemi was represented by a litigation guardian when his action was settled. A capacity assessor was first consulted after the action was settled. (See affidavit of Derek Nicholson, para. 6.)

[13] Rule 7.08(1) provides that no settlement of a claim made by or against a person under disability is binding on the person without the approval of a judge.

[14] In Rule 1.03(1), “disability”, as it relates to incapacity, refers to a person who is mentally incapable within the meaning of s. 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding. (Section 45 of the Substitute Decisions Act, 1992, which deals with personal care, is not at issue in this case).

[15] As I have now found that Mr. Hashemi is not mentally incapable within the meaning of s. 6 of the Substitute Decisions Act, 1992, Mr. Hashemi does not meet the definition of a party under disability under the Rules of Civil Procedure.

[16] Although it appears that Mr. Hashemi’s settlement was, to quote from Rule 7.08(1), “made by…a person under disability”, as I have found that he is not now a person under disability, he does not require the protection court approval of a settlement is meant to offer. In the circumstances, it would be inappropriate for me to decide whether a settlement should be binding on Mr. Hashemi when I have just found that he is capable of making a decision such as this himself.

[17] I declare that Mr. Hashemi is now capable of managing his own financial affairs but make no other orders, other than that there shall be no costs of this motion.

JUSTICE HEATHER J. WILLIAMS Date: June 21, 2019