Court File and Parties
COURT FILE NO.: 56232/15 DATE: 20191025 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HASIT KHAGRAM, BY HIS LITIGATION GUARDIAN SUNITI HANSA SHAH, SUNITI HANSA SHAH, DR. VINOD HEMRAJ SHAH and SURESHSCHANDRA D. KHAGRAM, Plaintiffs AND: THE ONTARIO CONFERENCE OF MENNONITE BRETHREN CHURCHES, BETHESDA HOME FOUNDATION INC., and BETHESDA HOME FOR THE MENTALLY HANDICAPPED INC., Defendants
BEFORE: R.B. Reid, J.
COUNSEL: Plaintiffs self-represented C. Kirk Boggs, Counsel, for the Defendants D. Dauphney, Counsel for the Public Guardian and Trustee
HEARD: October 2, 2019
REASONS FOR DECISION
Introduction:
[1] The plaintiff, Hasit Khagram ("Hasit"), is a severely disabled 49-year-old man. Suniti Hansa Shah ("Ms. Shah") is his mother and his legal guardian. She has purported to act as his litigation guardian in this action. She and her husband, Dr. Vinod Hemraj Shah ("Dr. Shah"), are also parties in their personal capacities, claiming under the Family Law Act. Initially, Sureshschandra D. Khagram was also a plaintiff but that claim was discontinued on consent following his death in July 2014.
[2] The defendant, Bethesda Home for the Mentally Handicapped Inc. ("Bethesda"), operates a residential home for individuals with disabilities. The plaintiffs state that the defendants, Bethesda Home Foundation Inc. and the Ontario Conference of Mennonite Brethren Churches, are vicariously liable for the actions and/or omissions of Bethesda.
[3] The claim alleges that Hasit was mistreated while in residence at Bethesda between December 2000 and August 2010. As a result, he is said to have suffered damages at the time and, consequentially, for which Bethesda should be responsible.
[4] The claim has been outstanding for about 10 ½ years as is disclosed by the following brief history.
[5] The litigation was started by Notice of Action dated May 21, 2009. A Statement of Defence was filed on December 18, 2009. Affidavits of Documents were exchanged in August 2012. A mediation occurred on November 26, 2014 but the issues remained unresolved. The examination for discovery of Ms. Shah took place over several days in the summer of 2016 and was concluded in March 2017. A representative of Bethesda was examined for discovery on March 30 and 31, 2017. A judicial pretrial occurred on July 31 and November 20, 2018. Although the matter had been listed for trial, it was removed from the trial list at that time because it was not trial ready.
[6] Part of the endorsement made at the November 20, 2018 pretrial was that: "Within 90 days, the plaintiff is to advise (by Notice of Change of Representation) of the identity of counsel, or alternatively to bring a motion to attempt to secure court permission for the matter to proceed without counsel for the disabled plaintiff." The endorsement also required that: "Within the same 90 days, the plaintiff, Ms. Shah is to file the affidavit required by rule 7.03(2) to formalize her appointment as litigation guardian of the plaintiff Hasit Khagram" and further that "If the defendants wish to challenge the formalized appointment of a litigation guardian, they can do so by motion."
The Motions:
[7] In the motion of Ms. Shah, originally returnable March 28, 2019, she seeks an order permitting the matter to proceed without counsel for Hasit and confirming her appointment as his litigation guardian and as representative of Dr. Shah. The order also requests a mediation and settlement conference and an order appointing counsel for Hasit.
[8] The cross-motion of the defendants seeks an order dismissing the claim or, in the alternative, appointing the Public Guardian and Trustee (the "PGT") as litigation guardian for Hasit.
[9] Counsel for the Public Guardian and Trustee attended to respond to the alternative claim in the defendant's motion.
Issues for Decision:
[10] The issues raised in the motion of Ms. Shah and the cross-motion of the defendants are:
a. Should the action by Hasit Khagram be dismissed?
b. Should the action by Dr. Vinod Hemraj Shah be dismissed?
If the action by Hasit Khagram is to continue,
c. Can Ms. Shah act as litigation guardian for Hasit Khagram?
d. Should the Public Guardian and Trustee be appointed as litigation guardian?
e. Should the Brian Davies discovery transcript be excluded from evidence in the action?
f. Should there be an order for further judicial dispute resolution procedures?
[11] Since the order dismissing the action by Hasit, if granted, would make much of the other relief moot, I will deal with that issue first.
Should the action by Hasit Khagram be dismissed?
[12] The defendants submit that the action by Hasit must be dismissed because it was commenced without legal counsel. They assert, however, that since the rights of a person under disability are not subject to a limitation period, it would be possible for a fresh action to be commenced with proper legal representation and a properly appointed litigation guardian for Hasit. Ms. Shah's derivative claim is not affected since she is entitled to sue in her own name.
[13] In mandatory language, rule 15.01(1) states that: "a party to a proceeding who is under a disability or acts in a representative capacity shall be represented by a lawyer."
[14] It is clear that the action was commenced by Ms. Shah and not by a lawyer.
[15] From April 26, 2013 to January 10, 2014, the plaintiffs were represented on the record by counsel. Another lawyer was involved briefly. On many occasions since then, at various stages of the proceedings, Ms. Shah indicated that she intended to retain counsel or was in the process of doing so. She advised that she has made inquiries of numerous lawyers who for various reasons were not able to take her case, and that the time available to her to search for a lawyer has been limited by the need to provide round-the-clock care for Hasit. She stated in submissions that her financial ability to retain a lawyer was not a determining factor, although the ability to afford a retainer was raised in her Notice of Motion as one reason why counsel has not yet been hired.
[16] Ms. Shah states that she has a vast knowledge of the file and is intimately acquainted with Hasit and his wishes. She has followed the Rules of Civil Procedure, for example, preparing and filing her affidavit of documents, and conducting the examination for discovery of Bethesda.
[17] Rule 7.05(3) requires that a litigation guardian other than the Children's Lawyer or the Public Guardian and Trustee shall be represented by a lawyer and shall instruct the lawyer in the conduct of the proceeding.
[18] Defence counsel submits that the language of rule 15.01 and of rule 7.05(3) is mandatory and that there is no legal basis to allow for the representation of a disabled person by someone who is not a lawyer. Counsel submits that the action is a nullity and an abuse of process, except as it relates to the claim made by Ms. Shah on her own behalf. In performing the duties of a lawyer, which she admits doing, Ms. Shah was in breach of the terms of the Law Society Act which, in section 26.1, prevents any person other than a licensee from practicing law or providing legal services in Ontario.
[19] Defendants' counsel relies on the decision of this court in Gagnon v. Pritchard, 2002 CanLII 49419 (ON SC), [2002] O.J. No. 928. In that case, a medical malpractice action had been started by legal counsel. The lawyer's retainer was terminated about a year later and the daughter of the injured plaintiff, acting under a power of attorney, purported to continue the litigation representing her mother. The court noted that the provisions of the Law Society Act prohibited non-licensees from practicing law. Justice Stinson at paragraph 44 observed: "It would be both wrong and risky to interpret the court's inherent jurisdiction so as to, in effect, permit the court to issue licenses to practice law in its discretion."
[20] Defendant's counsel also referred to the decision of this court in Tunney v. 51 Division Toronto Police, 2015 ONSC 6761. In that case, the plaintiff, a non-lawyer, had commenced the action on behalf of himself and Anne Langstroth. Ms. Langstroth had not authorized a claim be started in her name. At paragraph 14, Justice Firestone referred to both the provisions of the Law Society Act and to rule 15.01(3) to the effect that only a licensee of the Law Society is entitled to practice law in Ontario and that while a self-represented litigant may act on their own behalf, he or she cannot act for another person. He concluded at paragraph 16 that because Mr. Tunney had no standing or authority to issue and proceed with the claim on behalf of Ms. Langstroth, to allow the claim to continue would be an abuse of the court's process and he dismissed the claim made in her name on that basis.
[21] In the case of Swan v. The Toronto District School Board, 2017 ONSC 5212, the Divisional Court considered an application for judicial review by the litigation guardian of a child. The court in that case found that there is no exception in the Rules that would permit the court to relieve the requirement that a litigation guardian must be represented by a lawyer. There, although the litigation guardian was actually a lawyer,[^1] the court held that it was not possible for an individual to be both litigation guardian and lawyer for the litigation guardian simultaneously.
[22] The court in Swan noted the policy reason for ensuring that a person under disability is represented by a litigation guardian and that the litigation guardian, in turn, must be represented by a lawyer, namely that the person must be protected from unscrupulous representatives as well as from friends and family members who may mistakenly believe they are acting in the person's best interest.
[23] I agree with the proposition that a person under disability, represented by a properly constituted litigation guardian, must be represented by legal counsel. Thus, it is not permissible under the Rules to allow a non-lawyer to act on behalf of a litigation guardian. I also agree with the policy reasons to which I have referred which underlie that requirement. It is not necessary in this case to determine whether Ms. Shah is mistaken in her assessment of Hasit's best interests. The prohibition is applicable generally and not on a case-by-case basis.
[24] Ms. Shah's submission, to which I have referred, that she is knowledgeable about the file and the Rules is not persuasive. In effect, she is asking to be permitted by the court to take on the role of a lawyer for Hasit which would otherwise be prohibited by the Law Society Act. That would be an inappropriate use of the court's discretion even assuming that discretion exists. A litigant cannot be permitted to ignore the prohibition of non-licensees from practicing law before the courts.
[25] As to the defendant's submission that the action is a nullity because it was commenced and continued without legal representation, I disagree.
[26] Rule 2.01(1) provides as follows:
A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,
(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or
(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.
[27] This claim has been outstanding for 10 years. Numerous steps have been taken up to the point where it was listed for trial. It would be an unfortunate waste of resources to have the action dismissed only to have it recommenced with proper representation for Hasit.
[28] Unlike the situation in Tunney, there is no suggestion that the action proceeded without Hasit's knowledge. However, as in Gagnon, Ms. Shah has no authority to represent Hasit in place of legal counsel.
[29] The defendant's motion that the claim be dismissed is denied. I find that the commencement of the action without the involvement of a lawyer is an irregularity and, subject to the further terms of this decision set out below, it may continue.
Should the action of Dr. Shah be dismissed?
[30] I need not review my comments concerning the prohibition of non-licensees practicing law found in the Law Society Act.
[31] The defendant submits that the action of Dr. Shah should be dismissed.
[32] Consistent with my conclusion that the legal claim by Hasit is not a nullity, I confirm that while Ms. Shah has no status to act on behalf of her husband, the commencement of the claim in his name without a lawyer is an irregularity.
[33] Therefore, the motion by the defendants for dismissal of the claim of Dr. Shah is dismissed. He may either represent himself as the claim proceeds or retain counsel to do so. He may not be represented by Ms. Shah except to the extent endorsed by the court in Gagnon at paragraph 44 in "the narrow circumstance where an individual who is self-represented requires assistance in expression in limited appearances before the court, and no further."
Can Ms. Shah act as Litigation Guardian for Hasit?
[34] Rule 7.01 of the Rules of Civil Procedure provides that, "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".
[35] Rule 7.02(2) provides that no person except the Children's Lawyer or the Public Guardian and Trustee shall act as litigation guardian for a plaintiff or applicant who is under disability until the person has filed an affidavit, the required contents of which are set out in the subparagraphs of that rule.
[36] Rule 7.06(2) states that: "Where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children's Lawyer, the Public Guardian and Trustee or any other person as litigation guardian."
[37] Prior to the motions before the court, Ms. Shah has filed no affidavit in compliance with the rules.
[38] In general, the requirements for filing an affidavit are designed to ensure that only appropriate individuals occupy the role of litigation guardian.
[39] Regardless of the absence of a formal affidavit, it is obvious that Ms. Shah has consented to occupy that role. Likewise, the nature and extent of Hasit's disability, Ms. Shah's relationship to him, and their mutual residence in Ontario is clear[^2].
[40] The key missing requirements from the affidavit required by rule 7.02(2) are the confirmation by Ms. Shah that she has given written authority to a named lawyer to act in the proceedings, that she has no interest in the proceeding adverse to that of Hasit, and her acknowledgment that she has been informed of her liability to pay personally any costs awarded against her or against Hasit.[^3]
[41] Throughout most of the litigation, there has been no legal counsel on the record. Ms. Shah has provided her explanations for the absence of legal counsel as referred to above.
[42] Ms. Shah has been afforded many opportunities to retain legal counsel on behalf of Hasit, most recently in my endorsement of November 20, 2018.
[43] The provisions of rule 17.05(3), which I have quoted above, provide that the representation of a litigation guardian by a lawyer is mandatory.
[44] Based on past history and on submissions made in these motions before me, there is no reason to expect that legal counsel will be retained by Ms. Shah. On that basis alone, it is not appropriate for her to be accepted as litigation guardian for Hasit.
[45] Ms. Shah submits that she should be appointed as litigation guardian because she is familiar with the duties involved, she knows Hasit and his needs better than anyone, and has been a strong advocate for him. Hasit trusts and relies on her for advice. She is his legal guardian.
[46] Dr. Shah and a family friend, Michael Gowan, swore affidavits supporting Ms. Shah's appointment for the same reasons.
[47] Ms. Shah appears to conflate the requirements of a legal guardian with those of a litigation guardian. Her failure to depose in an affidavit that she has no interest adverse to that of Hasit and her failure to acknowledge potential responsibility for costs are significant, because they are both fundamental requirements to an appointment.
[48] In Gronnerud v. Gronnerud Estate, 2002 SCC 38, [2002] 2 S.C.R. 417, the Supreme Court of Canada considered the criteria for removal of a litigation guardian. The Saskatchewan Queen's Bench rules are similar to rule 7.06(2) in Ontario which allow the court to substitute the Children's Lawyer, the Public Guardian and Trustee or any other person as litigation guardian if the litigation guardian is not acting in the best interests of the party under disability. The court confirmed at paragraph 20 that, in part, a litigation guardian acting in the best interests of the disabled person must be indifferent to the result of the proceedings. The concept of "indifference" was defined as follows:
Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of the litigation guardian is a prerequisite for ensuring the protection of the interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and center, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of the litigation guardian.
[49] Ms. Shah is very much invested in ensuring that the litigation proceeds to a successful financial conclusion including significant reimbursement to herself and Dr. Shah for costs incurred for Hasit's care. That claim may place her in a conflict of interest as regards to the proper resolution of the claim in Hasit's interests.
[50] Ms. Shah has been a strong advocate for Hasit's interests. She has threatened to contact the media if the defendants fail to propose a reasonable settlement. During the course of Hasit's residence at Bethesda, Ms. Shah made reports to the media alleging inadequate care for Hasit, called the police, and is alleged to have been abusive to Bethesda staff members.
[51] In her role as mother and guardian of Hasit, there is nothing wrong with strong advocacy for his interests as she sees them. However, she is not indifferent as to the result of the proceeding as is required of a litigation guardian. She is not capable of an unbiased assessment of the merits of the claim.
[52] I accept that there may be no one who understands Hasit's physical and emotional needs better than Ms. Shah. There can be no doubt that she is a tireless advocate for Hasit. Nor can there be a doubt that Ms. Shah wants the best outcome for Hasit, not just in the litigation but in his life. Those qualities are admirable. However, they are not synonymous with the obligations imposed by the law on a litigation guardian.
[53] Based on the failure on the part of Ms. Shah to comply with the requirements of rule 7.02(2) as to the affidavit in support of her request to act as litigation guardian, including the failure to secure legal counsel to represent her as litigation guardian, and in view of her demonstrated lack of indifference to the result of the proceeding, Ms. Shah's motion to be appointed is dismissed. Since she has never filed the affidavit required, she cannot be said to have been acting as litigation guardian and therefore it is unnecessary to make an order that she be removed from that position.
Should the Public Guardian and Trustee be appointed as Litigation Guardian?
[54] The alternative request by the defendants is for the appointment of the PGT as litigation guardian of Hasit in this lawsuit.
[55] In her response, Ms. Shah opposed the appointment of the PGT based on the pre-litigation history. The PGT was the guardian of Hasit during the period that he was in residence at Bethesda and it consented to his placement there and to the subsequent course of treatment. There would be a conflict of interest.
[56] Through its counsel, the PGT agreed that it would not be appropriate for it to be appointed as litigation guardian based on the conflict of interest.
[57] In her oral submissions, Ms. Shah appeared to change her position, agreeing to the appointment of the PGT despite its objections.
[58] Counsel for the PGT advised that, while its mandate is to become involved with individuals under a disability who are not minors, there is an arrangement with the Office of the Children's Lawyer (the "OCL") that in the event of a conflict which would prevent the appointment of the PGT, the OCL would consent to be involved. That consent is in place in this case.
[59] Counsel for the defendants agreed that the OCL be appointed, assuming the court did not see fit to dismiss the claim.
[60] Rule 7.04 provides that unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint either the OCL or the PGT.
[61] The application of rule 17.05(3) means that, if one of those agencies is appointed as litigation guardian, there is no additional requirement for representation by legal counsel.
[62] Since I have concluded that Ms. Shah cannot assume the role of litigation guardian for Hasit, and since there is no other person proposed, it is appropriate that the OCL be appointed as litigation guardian. There will be an order accordingly.
[63] As a result of this order, the request by Ms. Shah for appointment of a lawyer on behalf of Hasit is dismissed since it is unnecessary.
[64] There will be an order that the title of proceedings shall be amended to read, as to the plaintiff Hasit: "Hasit Khagram, by his litigation guardian Suniti Hansa Shah The Children's Lawyer."
[65] Counsel for the defendants and the PGT submitted that if I make the order appointing the OCL as litigation guardian, there may well be additional terms required. For example, the OCL will need copies of pleadings and other file documents from the defendants as well as information including health and other records relating to Hasit from third parties. I leave it to counsel for the OCL and the defendants to clarify what is required and, if necessary, to bring the appropriate motion.
Should the Brian Davies transcript be excluded from evidence?
[66] During the course of these proceedings, Brian Davies, the CEO of Bethesda was examined for discovery by Ms. Shah on March 30 and 31, 2017.
[67] The defendants sought an order excluding that transcript from the evidence in these proceedings based on Ms. Shah's status as a non-lawyer.
[68] The defendants submitted that the transcript admissibility issue should be deferred in the event the OCL is appointed as litigation guardian.
[69] I agree with the submission of the defendants and the motion is adjourned without a date as to the transcript issue.
Should there be an order for further judicial dispute resolution procedures?
[70] Ms. Shah requested an order directing that further formal resolution proceedings be undertaken, including mediation and settlement conferences. The motion is adjourned without a date as to that matter pending the involvement of the OCL and any position it may take on the subject.
Costs:
[71] The defendants submitted that, assuming the action is permitted to continue and the OCL appointed as litigation guardian, costs of the motions should be payable by Ms. Shah and Dr. Shah to the defendants on a partial indemnity basis fixed in the amount of $25,000.
[72] Ms. Shah submitted that no costs should be payable since, in effect, an adverse costs order would indirectly affect Hasit's ability to proceed to claim the compensation to which she believes he is entitled.
[73] In exercising my discretion as to costs which is found in section 131 of the Courts of Justice Act, I have had regard to the factors set out in rule 57.01.
[74] Success is a presumptive factor. Ms. Shah's motion was dismissed except for the minor issue of further settlement procedures which was deferred. The defendants were partially successful in their cross-motion: the claim was not dismissed but the OCL was appointed as litigation guardian. The availability of the discovery transcript of Mr. Davies for use in the proceedings was deferred.
[75] At their core, these motions were a contest between Ms. Shah's contention that she should be able to litigate Hasit's claim by herself, as litigation guardian, without a lawyer, as opposed to the position of Bethesda that she should be prohibited from acting as a lawyer, that she is not an appropriate litigation guardian, and that as a result, Hasit's claim cannot proceed.
[76] I acknowledge that the matters to be litigated in the two motions were of significance to both parties. The amounts claimed by the defendants for preparation of their motion and by way of response to Ms. Shah's motion were not unreasonable. The lengthy history of the matter required a significant amount of time for review and preparation. If Ms. Shah did not anticipate costs in that order of magnitude, that could be attributed to her lack of legal advice for which the defendants should not be responsible.
[77] Implicit in the submissions by Ms. Shah is that an adverse costs order would be an impediment to her and her husband proceeding with their claim against the defendants which they view as significant in both monetary and non-monetary terms.
[78] Ms. Shah should not be insulated from cost consequences arising from her failure to follow the Rules and from the motions that were required accordingly. Put bluntly, the motions would have been unnecessary had Ms. Shah complied with the Rules. There should have been a proper affidavit filed supporting the appointment of a litigation guardian, either Ms. Shah or someone else, and a lawyer retained to act for that person.
[79] As a matter of fairness to both sides, I consider that the defendants should have an order as to costs but that payment be deferred to the conclusion of the action.
[80] Therefore, there will be an order for costs of the motions payable by Ms. Shah and Dr. Shah fixed in the all-inclusive amount of $25,000, payable in any event of the cause.
Conclusion:
[81] Based on the foregoing, there will be in order as follows:
a. The motion by the defendants, Bethesda Home for the Mentally Handicapped Inc. and Bethesda Home Foundation Inc., for an order dismissing the action by Hasit Khagram and Dr. Vinod Hemraj Shah is dismissed;
b. The motion by the plaintiffs for an order that Suniti Hansa Shah be permitted to proceed without legal counsel, as litigation guardian of Hasit Khagram is dismissed;
c. The motion by the defendants, Bethesda Home for the Mentally Handicapped Inc. and Bethesda Home Foundation Inc., for an order appointing the Public Guardian and Trustee as litigation guardian of Hasit Khagram is granted except that instead of the Public Guardian and Trustee, the Office of the Children's Lawyer is appointed;
d. The title of proceedings as to the plaintiff Hasit will be amended to read: "Hasit Khagram, by his litigation guardian Suniti Hansa Shah The Children's Lawyer";
e. The motion by the plaintiffs for an order for mediation and settlement conferences is adjourned without a date;
f. The motion by the plaintiffs for an order that the court appoint counsel for Hasit Khagram or appoint amicus curiae is dismissed;
g. The motion by the defendants Bethesda Home for the Mentally Handicapped Inc. and Bethesda Home Foundation Inc. that the discovery transcripts of Brian Davies not be entered into evidence is adjourned without a date; and
h. Costs of the motions are payable by Suniti Hansa Shah and Dr. Vinod Hemraj Shah to the defendants Bethesda Home for the Mentally Handicapped Inc. and Bethesda Home Foundation Inc. fixed in the all-inclusive amount of $25,000, payable in any event of the cause.
Reid J.
Date: October 25, 2019
[^1]: under suspension by the Law Society at the time [^2]: Rule 7.02(2)(a)(c)(e) and (f) [^3]: Rule 7.02(2)(b), (g) and (h).