COURT FILE NO.: CV-13-492093
CV-16-553394
DATE: 20191120
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gabriella Lengyel, Plaintiff
AND:
TD Home and Auto Insurance, Defendant
BEFORE: Darla A. Wilson J.
COUNSEL: Ian Furlong, Counsel for the Public Guardian & Trustee
Paul Sykes, Counsel for the Defendant TD Home and Auto Insurance
Gabriella Lengyel in person
HEARD: November 14, 2019
ENDORSEMENT
[1] In my capacity as lead judge for Rule 7 motions in Toronto, I received the motion record in this matter. Ms. Lengyel is represented by the Public Guardian and Trustee (“PGT”) and counsel for the PGT, Mr. Furlong, seeks approval of proposed settlements. He requested that the motion be in open court and on notice to Ms. Lengyel. Although Rule 7 motions are done in writing without an appearance in the vast majority of cases, I agreed to hear submissions in open court and Ms. Lengyel provided lengthy written submissions comprising several volumes of material. She attended court and I heard her submissions, following which I reserved my decision.
Background
[2] Ms. Lengyel was born in 1978 and resides alone in Toronto. She has no family in the country and no children. She was involved in two motor vehicle accidents: November 3, 2011; and June 4, 2014. As a result of these accidents, Ms. Lengyel sustained injuries and has not worked since 2011. She has been diagnosed with complex post traumatic stress disorder, severe depression, and somatic symptom disorder with predominant pain. She suffers panic attacks and has taken extensive psychological and psychiatric treatment. TD Home and Auto Insurance (“TD”) is Ms. Lengyel’s own insurer and responsible for payment of statutory accident benefits as a result of the motor vehicle accidents. Two court actions have been commenced against TD for statutory accident benefits: CV 13 492093; and CV 16 553394.
[3] In 2016, Ms. Lengyel’s previous counsel brought a motion to be removed as counsel of record and for a capacity assessment. The Plaintiff opposed the relief and following several adjournments, the motion was heard.
[4] In written reasons released April 24, 2017, (Lengyel v. TD Home and Auto Insurance, 2017 ONSC 2512) Master Pope removed counsel from the record and appointed the PGT to act as litigation guardian for the Plaintiff, who was found to be a party under a disability. In her written endorsement, Master Pope reviewed the medical documentation and concluded that the Plaintiff was unable to understand information relevant to making decisions on her claims and she was unable to appreciate the reasonably foreseeable consequences of making decisions. No appeal was taken from that order.
[5] While Ms. Lengyel has been assessed and treated by numerous doctors, she has failed to complete examinations due to pain complaints and she has failed to co-operate with assessors in order to enable them to complete their assessments. The psychologist Dr Pilowsky has been treating the Plaintiff since 2002; but Ms. Lengyel ceased attending for treatment.
The Proposed Settlement
[6] There was a settlement meeting on April 3, 2019 with all counsel and Mr. Furlong recommended settlement of the accident benefit claims for the sum of $1,180,000 all inclusive. He subsequently received instructions from the PGT to bring a motion for court approval.
[7] From this amount, if the settlement is approved, the Plaintiff will net $1,037,709.87 of which it is proposed $1,000,000 be placed in a structured annuity. This would pay Ms. Lengyel the sum of $3,095.73 per month for life. It is proposed that $37,709.87 not be structured and used to pay unpaid common expenses related to her condominium and overdue property taxes.
Positions of the Parties
[8] Mr. Furlong recommends the proposed settlement. In the motion materials, there is reference to his view that the proposed settlement reflects a premium because the Defendant wishes to close its files. Concern is noted about the failure of Ms. Lengyel to attend treatment, which is a breach of the requirements under the SABS.
[9] Ms. Lengyel objects to the proposed settlement and in her affidavit sworn October 31, 2019, she asserts that the PGT should not be her litigation guardian. Her affidavit is rambling, disjointed, difficult to follow and is rife with assertions that many improprieties have occurred. While portions of her affidavit are incomprehensible, it is clear that she objects to the PGT acting on her behalf, she objects to the contents of the affidavit of solicitor Ben filed in support of this motion, and she opposes approval of the settlement.
[10] Ms. Lengyel advised me that she believes she is capable of managing her affairs and instructing counsel and making decisions on her lawsuits. She stated that she has been “violated” by the PGT.
Analysis
[11] Ms. Lengyel is a party under a disability and therefore represented by a Litigation Guardian, the PGT, as a result of the order of Master Pope of April 2017. No appeal was taken from the order, thus Ms. Lengyel remains a party under a disability and Rule 7 is applicable. Under the provisions of the Rules, this motion did not require service on Ms. Lengyel. The PGT instructed its counsel to have the motion served on the Plaintiff and dealt with in open court.
[12] Her treating psychologist, Dr. Pilowsky, in the June 24, 2016 report, states her opinion that it is in the Plaintiff’s best interests to resolve the accident benefits claims as soon as possible in order to avoid further decline emotionally.
[13] Ms. Lengyel has been non-compliant with assessments, testing, producing medical records and with requests from her litigation guardian. Under the Statutory Accident Benefits Schedule, the claimant is required to obtain treatment and participate in rehabilitation and if not, the insurer is entitled to stop payment of benefits.
[14] I have read all of the materials filed on this motion, including those from Ms. Lengyel. In the most recent report from Dr. Pilowsky, her treating psychologist, dated June 24, 2016, the Plaintiff was noted to have “significant psychotic symptomatology in the form of delusions and paranoia. ..” Dr. Pilowsky was unable to conduct testing because of “Ms. Lengyel’s significantly compromised state, including paranoia, delusions, and the inability to offer a coherent account.” Dr. Pilowsky concluded by noting, “It is very clear that Ms. Lengyel has collapsed psychologically, and her overall functionality has declined further form her already very poor state in prior assessment ta my office. It is my professional opinion that her condition is catastrophic in nature, and that psychotherapeutic treatment will not be assistive….”
[15] Ms. Lengyel has stopped treatment with Dr. Pilowsky and is not cooperating with further treatment. Her mental status has not improved. Although her treating psychologist recommended more than 3 years ago that these actions ought to be resolved as they were having a negative impact on the Plaintiff’s mental condition, Ms. Lengyel does not wish to settle these matters. In fact, she has recently issued a new statement of claim against the PGT.
[16] It is clear to me that counsel for the PGT, Mr. Furlong, has gone to extraordinary lengths to assist Ms. Lengyel in these claims.
[17] I am of the opinion that the proposed settlement of the SABS claims of Ms. Lengyel is eminently reasonable and is in her best interests. I agree that the proposed structure will provide for her needs on a monthly basis and ensure that her housing and other needs are taken care of. Approval of the settlement pursuant to Rule 7, including the fees of Thomson Rogers, is hereby granted.
[18] I make the following orders:
(1) The PGT is appointed as Litigation Guardian of the Plaintiff in action CV-16-553394 nunc pro tunc and the title of all proceedings shall be accordingly amended.
(2) The proposed distribution of funds to pay the unpaid common expenses of the Plaintiff’s condominium and the unpaid property taxes is hereby approved.
(3) Judgment to issue with the structure.
(4) The action and action CV-16-553394 are otherwise dismissed without costs.
D. A. Wilson J.
Date: November 20, 2019