COURT FILE NO.: CV-13-1084-00
DATE: 2020 09 02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ahmed Elbasiouni
AND:
The Chief Building Official (CBO) and The Corporation of the City of Brampton
BEFORE: Ricchetti, RSJ
HEARD: August 27, 2020
COUNSEL: M. Elbassiouni for the Applicant Essam Elbassiouni
C. Painter for the Respondents
HEARD: by videoconference on July 27, 2020
Contents
THE BACKGROUND.. 2
THE MOTION.. 6
THE PRELIMINARY MATTERS. 7
a) Form 53. 7
b) Late Filing of Factum.. 8
c) Affidavit of Jordan Cutler 8
d) Standing. 9
ANALYSIS. 9
The Applicable Legal Provisions. 9
The Issues to be decided. 12
(a) Should this motion be dismissed because this proceeding is finally disposed of?. 12
(b) Is Ahmed Elbasiouni a person with a disability?. 13
i. Essam Elbassiouni's evidence: 13
ii. The Capacity Report 15
iii. Other Indicia relied on by the Applicant 18
iv. Is the Motion for the Purpose to Delay?. 19
Conclusion on Lack of Capacity. 22
(c) Is Essam Elbassiouni the appropriate person to appoint as a Litigation Guardian?. 22
CONCLUSION.. 23
COSTS. 24
ENDORSEMENT
THE BACKGROUND
[1] There is a long and complex history of this proceeding, and numerous related proceedings, over the past seven years. All these proceedings involve Ahmed Elbasiouni and the City of Brampton (“City”) relating to an intended construction of a home.
[2] The history and status of the proceedings, to 2018, is set out in The Corporation of the City of Brampton and Elbasiouni, 2018 ONSC 74 (“Vexatious Litigant Proceeding or Order”).
[3] Subsequent to the Vexatious Litigant Order, there continued three proceedings:
a) A tort claim by Ahmed Elbasiouni against the City, which was exempted from the Vexatious Litigant Order (the “Tort Claim”). Despite the fact the Tort Claim was commenced almost five years ago, it has not gone beyond the pleadings stage. Solicitor of Record for Ahmed Elbasiouni in the Tort Claim is and has been Goodman Elbassiouni LLP where Mohamed Elbassiouni is a partner at the law firm and the brother of Ahmed Elbasiouni and the proposed Litigation Guardian, Essam Elbassiouni, is a paralegal at Goodman Elbassiouni LLP and the brother of Ahmed Elbasiouni;
b) Appeals by Ahmed Elbasiouni to the Divisional Court with respect to several decisions of this court (including this proceeding) under the Building Code Act (the Divisional Court Appeals). Ahmed Elbasiouni's appeals to the Divisional Court were dismissed on June 6, 2019. See Elbasiouni v. Brampton (City), 2019 ONSC 3524. Ahmed Elbasiouni sought leave to appeal to the Court of Appeal. This motion for leave was dismissed by the Court of Appeal on January 24, 2020. See Elbasiouni v. Brampton (City), 2020 ONCA 43. This finally disposed of the proceeding in which this motion is brought; and
c) An appeal to the Court of Appeal by Ahmed Elbasiouni of the Vexatious Litigant Order.
[4] Let me review the appeal of the Vexatious Litigant Order since, it appears, to be genesis of this motion despite the fact the Vexatious Litigant Order was made in an entirely different proceeding:
a) Ahmed Elbasiouni appealed the Vexatious Litigation Order in February 2018;
b) As a result of Ahmed Elbasiouni failing to perfect the appeal, on March 27, 2018, the Registrar for the Court of Appeal for Ontario gave notice of impending dismissal;
c) The administrative dismissal was averted when Ahmed Elbasiouni filed a Certificate Respecting Evidence of the transcripts of the “oral evidence and arguments” before this court. However, there was no oral evidence before this court on the vexatious litigant motion;
d) On August 28, 2018, Mr. Elbasiouni filed his Certificate of Perfection and an Amended Notice of Appeal;
e) The Appeal was scheduled for January 17, 2019;
f) Ahmed Elbasiouni decided to travel out of the country in December 2018, not returning until after the scheduled appeal date. He sought and obtained an adjournment. The appeal was rescheduled to be heard on April 6, 2020;
g) Because of COVID-19, a telephone conference took place on April 6, 2020 before Justice Paciocco. Ahmed Elbasiouni’s position was that the appeal be heard in person; he wished to subpoena witnesses before the Court of Appeal, he wished to file new “expert” reports to the Court of Appeal and he needed further time to file/serve an amended factum. Ahmed Elbasiouni requested an adjournment to September or October. Paciocco J.A. made an order which included:
• Ahmed Elbasiouni was given to July 2, 2020 to file written submissions regarding his r. 2.1 motion; and
• Ahmed Elbasiouni was to file his amended factum by July 2, 2020.
h) The Appeal was scheduled for September 25, 2020;
i) Shortly after the Paciocco J.A.'s endorsement, Ahmed Elbasiouni’s prior counsel, Mr. Banerjee of Goodman Elbassiouni LLP, advised the City’s counsel that he had left the law firm. Shortly thereafter, Mohamed Elbassiouni, also with Goodman Elbassiouni LLP, replaced Mr. Banerjee as Ahmed Elbasiouni’s counsel in the appeal;
j) On July 1, 2020 Mohamed Elbassiouni advised the City’s counsel he sought the appointment of a Litigation Guardian for Ahmed Elbasiouni and requested the City to agree to adjourn the appeal. The City did not consent;
k) Mohamed Elbassiouni attended at the Court of Appeal on July 23, 2020 to seek a temporary stay of the Appeal. The matter was heard by Thorburn J.A. All the court had at that hearing was a capacity assessor’s report. Thorburn J.A. directed Mr. Elbassiouni to obtain a date before the case management judge for a motion to appoint a Litigation Guardian for Ahmed Elbasiouni; and
l) Upon receipt of the Court of Appeal's endorsement, this court scheduled this motion to be heard on August 27, 2020.
[5] Subsequent to setting this hearing date, after cross-examination and approximately a week before the hearing, the applicant sought to file and have heard on the same day a motion under the Substitute Decisions Act, to appoint Essam Elbassiouni over Ahmed Elbasiouni's property and person. The City objected to the Substitute Decision Act motion proceeding on the same day. This court agreed to hear submissions on August 27, 2020 as to whether the Substitute Decision Act motion should be heard that day. Unfortunately, the Public Guardian and Trustee ("PGT") had not been served because Mohamed Elbassiouni objected to serving them and at one point told the City's counsel that providing a copy to the PGT would be a breach of the deemed undertaking rule. The PGT requested this court to adjourn the Substitute Decision Act motion until it could evaluate the motion and take a considered opinion. The Substitute Decision Act motion was adjourned.
[6] There is one other court proceeding which bears mentioning. Ahmed Elbasiouni is subject to a number of unpaid cost orders. On February 25, 2020, the City served Ahmed Elbasiouni with a Notice of Examination in Aid of Execution. Mr. Elbasiouni attended at the examination but refused to answer questions about his income, assets, debts and so forth. The City brought this matter before this court on March 13, 2020 to deal with the Mr. Elbasiouni’s refusals. The motion referenced this proceeding as one of the outstanding cost orders was made in this proceeding. This court ordered Mr. Elbasiouni to attend in person at the court on April 9, 2020 so that the examination could be conducted viva voce in the courtroom. Unfortunately, because of COVID-19, the matter did not proceed on April 9, 2020.
THE MOTION
[7] The applicant is Essam Elbassiouni, Ahmed Elbasiouni’s brother, who seeks to be appointed as Ahmed Elbasiouni’s litigation guardian in this proceeding and other proceedings. Essam Elbassiouni is a paralegal at Goodman Elbassiouni LLP.
[8] Counsel on this motion, Mohamed Elbassiouni is also the brother of Ahmed Elbasiouni. Mohamed Elbassiouni is a partner at Goodman Elbassiouni LLP and Essam Elbassiouni's counsel on this motion.
[9] The relief sought on this motion is:
a) The appointment of Essam Elbassiouni as Litigation Guardian in the Court of Appeal matter (an appeal in CV-17-1733); an entirely different proceeding than the proceeding before this court;
b) The appointment of Essam Elbassiouni as Litigation Guardian in CV-13-1084, CV-15-0264, CV-17-1733, CV-15-0264 and CV-17-1733. I repeat that CV-15-0867 is the Tort Claim in which Goodman Elbassiouni LLP are solicitors of record, and Mohamed Elbassiouni, is counsel for Ahmed Elbasiouni; and
c) The appointment of Essam Elbassiouni as Litigation Guardian in “any and all future proceedings before the Superior Court of Justice.”
THE PRELIMINARY MATTERS
[10] Several preliminary matters were raised at the commencement of the hearing.
a) Form 53
[11] The applicant attached, as an exhibit, the “Letter of Opinion” dated June 19, 2020 from Rena Postoff, a social worker ("the Capacity Report").
[12] No Form 53 was attached to the Capacity Report. Requests were made by the City’s counsel for a Form 53. A Form 53 was eventually produced to the City and filed with this Court.
[13] The City objects to the late filing of the Form 53 and thereby seeks to exclude the Capacity Report as failing to comply with Rule 53.
[14] In my view, there was no prejudice to the City in the late filing of the Form 53. As a result, I ruled that the Form 53 would form part of the evidence on this motion.
b) Late Filing of Factum
[15] The City filed its factum after the deadline set by this court. The applicant objected to the filing of the City's factum.
[16] Again, the factum was served well enough in advance of the hearing so that no prejudice arose to the application. As a result, I ruled that the City’s factum would be received by this court.
c) Affidavit of Jordan Cutler
[17] The City filed the affidavit of Jordan Cutler. Mr. Cutler is a lawyer at the City’s counsel’s firm.
[18] The applicant initially sought to strike Mr. Cutler’s affidavit on several grounds such as conflict of interest. The difficulty with this position is that the applicant cross-examined Mr. Cutler on the affidavit, after receipt of the affidavit and before taking the position that Mr. Cutler's affidavit should be struck. A copy of the transcript of the cross-examination of Mr. Cutler was filed on this motion. As a result of the applicant having taken these steps, this court was NOT prepared to strike Mr. Cutler’s affidavit in its entirety.
[19] It appeared that the primary objection of the applicant was that, intermixed with the non-contentious factual background to this case, Mr. Cutler expressed certain opinions, such as the motivation for certain steps taken or failed to be taken by Ahmed Elbasiouni in the various proceedings. It should be noted that the applicant’s cross-examination expressly included cross-examination of Mr. Cutler on the “speculations and assumptions” made by Mr. Cutler in his affidavit.
[20] The City’s counsel conceded that any such opinions expressed by Mr. Cutler be excised.
[21] As a result, this court determined that Mr. Cutler’s affidavit regarding factual matters ONLY was admissible and evidence in this motion. Any opinions expressed by Mr. Cutler including what may have motivated Ahmed Elbasiouni to take or fail to take certain steps was NOT admissible and would NOT be considered by this court.
d) Standing
[22] The applicant’s counsel, at the outset of his submissions, stated that he challenged the standing of the City on this motion. Counsel advised he would deal with this issue later in his submissions. The applicant’s counsel did NOT return to deal with this issue.
[23] This issue is not dealt with in the applicant’s factum.
[24] I am satisfied that a party to the proceeding in which as Rule 7 order is sought, has standing on a motion to declare that the plaintiff be represented by a Litigation Guardian.
ANALYSIS
The Applicable Legal Provisions
[25] The Rules of Civil Procedure provide:
Rule 7.01 (1) 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.
Rule 7.03(4) A person who seeks to be the litigation guardian of a defendant or respondent under disability shall move to be appointed by the court before acting as litigation guardian.
Rule 1.03(1)
“disability”, where used in respect of a person, means that the person is,
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or
(c) an absentee within the meaning of the Absentees Act; (“incapable”, “incapacité”)
Rule 7.2(2) 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 in which the person,
(a) consents to act as litigation guardian in the proceeding;
(b) confirms that he or she has given written authority to a named lawyer to act in the proceeding;
(c) provides evidence concerning the nature and extent of the disability;
(d) in the case of a minor, states the minor’s birth date;
(e) states whether he or she and the person under disability are ordinarily resident in Ontario;
(f) sets out his or her relationship, if any, to the person under disability;
(g) states that he or she has no interest in the proceeding adverse to that of the person under disability; and
(h) acknowledges that he or she has been informed of his or her liability to pay personally any costs awarded against him or her or against the person under disability.
[26] Sections 6 and 45 of the Substitute Decisions Act, 1992 provide:
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.
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[27] In Huang v. Braga, 2016 ONSC 6306, the Court concluded that the test for the appointment of a litigation guardian under Rule 7 is that:
(i) The person must appear to be mentally incapable with respect to an issue in the case;
(ii) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court;
(iii) the cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from some other (non-legal capacity related) reason such as a lack of sophistication, education or cultural differences: C.C. v. Children’s Aids Society of Toronto, [2007] OJ No 5613 (SCJ) at para 25.
[28] In Lengyel v. TD Home and Auto Insurance, 2017 ONSC 2512, the Court stated at para 16:
“Therefore, in reading Rule 1.03 together with sections 6 and 45 of the SDA, a party to litigation is “under disability” where they are unable to understand information that is relevant to making decisions concerning issues in the proceeding or are unable to appreciate the reasonably foreseeable consequences of making or not making decisions in the proceeding. Simply put, in order to have capacity for the purposes of litigation a person must meet both the “understand” and “appreciate” components of the test”.
[29] The evidence must establish 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 – a fine distinction explained by Backhouse J. at para. 39 of C.C.: “There is a distinction to be drawn between failing to understand and appreciate risks and consequences and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity.”
[30] Given the potential gravity of the consequences of appointing someone as a litigation guardian, cogent and proper evidence is required to support such a finding. See 626381 at para 22.
The Issues to be decided
[31] There are several issues to be decided:
a) Should this motion be dismissed because this proceeding is finally disposed of?
b) Is Ahmed Elbasiouni a person with a disability?
c) Is Essam Elbassiouni the appropriate person to appoint as a Litigation Guardian?
(a) Should this motion be dismissed because this proceeding is finally disposed of?
[32] The City submits this motion be dismissed because it has been brought in a proceeding which has been finally disposed of by the Court of Appeal.
[33] The applicant submits that this proceeding is still ongoing because the City brought a motion to compel Ahmed Elbasiouni to answer refusals in the Examination in Aid of Execution in this proceeding.
[34] I am not persuaded that a motion to appoint a Litigation Guardian is a necessary step in this proceeding as it has been finally disposed of except for the enforcement of cost orders. However, arguably a Litigation Guardian might assist in dealing with the motion to compel answers to the refusal. I do not have to decide this issue. Regardless of whether the City's position has merit, I am not persuaded that this motion should be dismissed on this basis. The difficulty with dismissing the motion on this basis would simply mean that the motion would return before this court in the Vexatious Litigant Proceeding which is not yet been “finally” disposed of due to the outstanding appeal. The result would be the delay of the Court of Appeal hearing.
[35] In my view, it is best to deal with this motion on the merits and, if an order appointing a Litigation Guardian is appropriate, consider in which of the proceedings such an order should be made.
(b) Is Ahmed Elbasiouni a person with a disability?
[36] A person is presumed "competent" or "capable" to do the activity or make the decision in question. Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (Ont. Gen. Div.).
[37] The Courts must be very cautious in coming to a conclusion which would bar a party from having the final say in how their litigation is to be conducted or resolved. Bilek v. Constitution Insurance, 49 CPC (2d) 304, [1990] O.J. No 3117, at para.2, per Coo, J. as cited in 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, per Stinson, J. at para.22.
[38] The motion record only contains the affidavit of Essam Elbassiouni, which in turn appends the Capacity Report.
i. Essam Elbassiouni's evidence:
[39] The evidence of Essam Elbassiouni does not assist on the issue whether Ahmed Elbasiouni requires a litigation guardian.
[40] Essam Elbassiouni simply cites what Ms. Postoff states in the Capacity Report. In his affidavit, Essam Elbassiouni adds nothing further as to why he believes Ahmed is a person with a disability or requires a litigation guardian.
[41] During cross-examination, Essam Elbassiouni testified he was not involved in the decision to seek a capacity assessment and he did not know why a capacity assessment had been requested for Ahmed Elbasiouni.
[42] In response to when, prior to June 19th, 2020, he had seen or spoken to Ahmed, and if or when he himself may have first noticed any issues of concern with his brother Ahmed, Essam Elbassiouni was extremely vague, stating “I don't know. Like, I can't tell you beginning of last year or the beginning -- the end of this month. I can't put an actual planned date on it but, you know, it's -- it's felt that it has been a while and a long one…”.
[43] Essam Elbassiouni testified that Ahmed Elbasiouni had acted "weird sometimes". When asked to describe what constituted "weird", Essam Elbassiouni said that Ahmed's thought process didn't make "sense to me" which "pretty much sums it up". When further pressed for examples of acting weird, Essam Elbassiouni pointed to Ahmed's "speeding" while driving a car.
[44] From a review of Essam Elbassiouni's examination, he appeared to have little information regarding Ahmed Elbasiouni's life including not knowing his address, the name of his former wife and so on.
[45] To sum up, there appeared to be little that Ahmed Elbasiouni’s own brother could point to support a basis for seeking a capacity assessment or that Ahmed Elbasiouni lacked capacity requiring a Litigation Guardian.
ii. The Capacity Report
[46] The City submits that the Capacity Report should be excluded because it is not submitted through an affidavit. The Capacity Report is simply appended to Essam Elbassiouni’s affidavit as an exhibit.
[47] I reject this submission.
[48] Rejecting the Capacity Report on this basis would simply result in an adjournment to permit the Capacity Report to be appended to an affidavit of Ms. Postoff. The City could have examined Ms. Postoff as a witness on a pending motion but chose not to. If having an affidavit of Ms. Postoff was truly important to the City, the City could have sought leave to cross-examine Ms. Postoff either prior to the hearing or requested that Ms. Postoff be present at the hearing to be cross-examined. The City did nothing until the hearing.
[49] I am satisfied that the Capacity Report should be considered on this motion.
[50] I am very troubled by reliability of the Capacity Report which includes the following concerns:
a) There is little information about Ms. Postoff’s experience and expertise in capacity assessments aside from currently being qualified to do capacity assessments. There is no CV. There is no information as to how many capacity assessments she had previously completed. How many have gone to court? How many, if any, were rejected;
b) The circumstances surrounding retaining Ms. Postoff are completely unknown. The Attorney General’s 2005 Guidelines for conducting capacity assessments (“Guidelines”) state: “..there should be reasonable grounds that prompt the request for a formal capacity”. Yet no reasonable grounds are evident in the Capacity Report or elsewhere in the Motion Record. The only information given to Ms. Postoff was that Ahmed Elbasiouni was “stressed by the legal events that have ensued and has reportedly not been coping well”;
c) The Guidelines also provide:
It is the job of the assessor to record, verify, organize and summarize the relevant information gathered from the person being assessed, as well as from family, professional care-givers or multi-disciplinary consultants and review of objective records. The assessor then evaluates this wealth of multidimensional information within the appropriate legal framework to arrive at an opinion about mental capacity.
It must be stressed that comprehensive and valid capacity assessments require more than a face-to face dialogue. It is imperative that the person's own perceptions of her or his own abilities and limitations be cross-referenced and verified with more objective information.”
(emphasis added)
Ms. Postoff does not refer to other investigations, collection of facts or background information on Ahmed Elbasiouni. The City attempted to obtain this information through the cross-examination but Essam Elbassiouni stated he had no knowledge of why the capacity assessment was requested and Mohamed Elbassiouni took the position that his discussions with Ms. Postoff were privileged;
d) The evidence is that Ms. Postoff only had one interview with Ahmed Elbasiouni of an indeterminate length. Ahmed Elbasiouni admitted he is dependent on cannabis. Was there any indication or questions as to whether he had used cannabis that day or was otherwise under the influence of cannabis? If so, what effect did it have on Ahmed Elbasiouni that day? This raises serious questions whether any possible shortcomings in his appreciation of the questions and decision making, described to Ms. Postoff, arose from a mental illness or drug use;
e) Ms. Postoff's analysis on whether Ahmed Elbasiouni could instruct counsel starts at the bottom of page 7. Ms. Postoff goes on for a page reciting what Ahmed Elbasiouni told her. Yes, Ahmed Elbasiouni is upset with the City, lawyers, judges, and even the country. But how does this translate to an inability to understand the process or appreciate the consequences? The Guidelines require:
Thus, the “appreciate” standard focuses on the reasoning process behind the individual's decisions, and in addition, explores the particular personal weights that the person attaches to one outcome or another. However, choice also reflects value considerations, therefore assessors must broaden their inquiry to include them. Foolishness, riskiness or social deviance may be grounds to examine “appreciation” more closely, but do not substitute for incapacity. The assessor is not judging whether or not the person’s decisions or actions appear reasonable, but whether they are reasoned.
The assessor can review both verbal and behavioural evidence of reasoned decision-making choice. When the assessor encounters idiosyncratic or seemingly irrational choices, the test is whether the person can show that he or she thought through the issues and related this information to a personal belief system.
(emphasis added)
In my view, Ms. Postoff appears to rely on anger, futility and frustration exhibited by Ahmed Elbasiouni rather than explore Ahmed Elbasiouni's thought process and reasoning for his decisions and whether he recognized the consequences.
f) The conclusion in the Capacity Report also raises questions as to whether Ahmed Elbasiouni has an incapacity with respect to an issue in the appeal. Ms. Postoff states that Ahmed Elbasiouni has difficulty focusing on SOME questions and has SOME issues with judgment.
Throughout the assessment, Mr. Elbasiouni demonstrated impaired thought process and content. Many of his response when talking about his legal matter, were tangential (moving from thought to thought that related in some way but never got to the point), and disorganized. His affect was dysphoric (depressed/irritable/angry). He was preoccupied with the details of his experience with the court, the city, his lawyers, etc. He presented with delusional and persecutory ideation. He was preoccupied with suicidal ideation. He had difficulty focusing on some of the questions asked. He demonstrated some issues with his judgment. He was labile many times during the assessment. Given the above presentation, it is my opinion that Ahmed Elbasiouni lacked the capacity to appreciate the consequences of his decisions and is, therefore, incapable of instructing counsel. He is in need of a litigation guardian.
(emphasis added)
This conclusion is very vague;
g) There is no evidence from Ahmed Elbasiouni's family physician; and
h) There is no evidence from Ahmed Elbasiouni's caregiver.
iii. Other Indicia relied on by the Applicant
Findings in the Vexatious Litigant Judgment
[51] "[T] the Applicant relies on his honor Justice Ricchetti’s Judgment on Vexatious Litigant Application dated January 15, 2018 as strong evidence of Mr. Elbasiouni’s inability to understand the minimum choices or decisions required and to make them, to appreciate the consequences and effects of his choices and the nature of the proceedings."
[52] This submission is misguided. There are many parties before the courts which bring multiple proceedings or who are vexatious litigants. However, such conduct is NOT evidence that these parties lack capacity to make such decisions or take legal steps. Taking ill-advised steps or bringing proceedings, even multiple times, is not by itself evidence of a lack of capacity.
[53] In addition, the applicant points to the references in the Judgment in the Vexatious Litigant Application where Ahmed Elbasiouni made insults, threats and used abusive language as evidence he is unable to represent himself. I see no correlation between such conduct and whether a person has the capacity to represent himself.
Failure to choose and keep counsel
[54] " The Applicant submits that over six years, Mr. Elbasiouni has been unable to maintain a positive relationship with any of his two counsels" is evidence of Ahmed Elbasiouni's lack of capacity.
[55] Again, many parties retain multiple counsel during the course of a proceeding. This is not an indication of a lack of capacity. Besides, two counsel in multiple proceedings over the seven years hardly appears to be excessive.
Inability to recognize relevant issues and failure to recognize the law/procedure
[56] This is a conclusory statement. This is particularly difficult to accept since Essam Elbassiouni, the only affiant for the applicant admitted he had little or no knowledge of the proceedings. In many ways, this submission almost concedes the vexatious nature of Ahmed Elbasiouni's actions throughout.
iv. Is the Motion for the Purpose to Delay?
[57] The City's position is that this motion is a clear attempt to delay the Court of Appeal proceeding. The evidence strongly supports this position:
a) At one point during submissions, Mohamed Elbassiouni stated that granting this motion would NOT delay the Court of Appeal proceeding. However, when the Court sought to clarify and confirm that no adjournment would be sought of the upcoming Court of Appeal hearing, Mohamed Elbassiouni quickly retracted the statement submitting it wasn't clear whether the litigation guardian would want him to proceed with the appeal or whether the litigation guardian would retain other counsel to argue the appeal. Given that counsel is Ahmed Elbasiouni’s brother, the proposed guardian is Ahmed Elbasiouni’s brother, and Mohamed Elbassiouni's firm has been involved in the various proceedings, this alleged uncertainty was simply not believable. Essam Elbassiouni stated he knew very little about the court proceedings. He has never looked at the file. There is no doubt in my mind that, in a complex matter such as this, any litigation guardian would have to thoroughly review the various court proceedings which would inevitably leading to an adjournment of the Court of Appeal hearing;
b) The City questioned why a capacity assessment requested for Ahmed Elbasiouni in June 2020. Essam Elbassiouni had no idea why such a report was requested. Mohamed Elbassiouni took the position that such information was privileged when asked about the conversation between Essam Elbassiouni and Ahmed Elbasiouni regarding the appointment The retainer or other communications between Mohamed Elbassiouni and Ms. Postoff are unknown because of a claim such documents are privileged. This evidentiary void adds support to the City's position that the motion was intended as a delay tactic;
c) Essam and Mohamed Elbassiouni had an interest in the very subject property of these proceeding until at least 2016 (three years into the litigation over this property). Neither raised any issue regarding the capacity of Ahmed Elbasiouni to deal with the subject property while they had an interest in the property;
d) Essam and Mohamed Elbassiouni are brothers of Ahmed Elbasiouni. Yet, neither point to any specific basis for believing or suspecting Ahmed Elbasiouni lacked capacity to deal with the many proceedings, hearing and appeals before tribunals, appellate tribunals, the courts, appellate courts until just before the Court of Appeals deadline for filing;
e) Essam and Mohamed Elbassiouni are both at the law firm Ahmed Elbasiouni has used in various proceedings, including the Tort Claim from its inception (nearly 5 years ago). Yet, neither raised any issue regarding the capacity of Ahmed Elbasiouni until just before the Court of Appeals deadline for filing; and
f) It has been over two months since Ms. Postoff stated that Ahmed Elbasiouni lacked capacity for personal care, property and had suicidal tendencies. Yet, neither Essam or Mohamed Elbassiouni have taken any steps to protect Ahmed Elbasiouni by way of a Power of Attorney or orders under the Substitute Decisions Act or any other step. This is particularly significant if Ahmed Elbasiouni is suicidal as Ms. Postoff states. The motion under the Substitute Decisions Act was brought on August 18, 2020, the day after the cross examination of Essam Elbassiouni took place, where questions by the City’s counsel on this shortcoming over the lack of such an application or obtaining Powers of Attorney from Ahmed Elbasiouni directly, were asked.
[58] There is a very credible basis to conclude that this motion was brought for the primary purpose of delaying the upcoming Court of Appeal hearing.
Conclusion on Lack of Capacity
[59] In summary, the applicant has not provided clear and cogent evidence that Ahmed Elbasiouni needs a Litigation Guardian, in the appeal or any other proceeding. The applicant has not discharged the onus on this motion. The motivation for the motion appears to be another attempt to delay the Court of Appeal proceeding.
(c) Is Essam Elbassiouni the appropriate person to appoint as a Litigation Guardian?
[60] Even if I had not concluded that the applicant failed to establish that Ahmed Elbasiouni lacked capacity to deal with the Court of Appeal hearing, I would have dismissed the motion in any event as Essam Elbassiouni is not an appropriate Litigation Guardian.
[61] The jurisprudence requires the proposed litigation guardian to be indifferent. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the person and offering an unclouded opinion as to the appropriate course of action.
[62] 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 centre, while making decisions on his or her behalf. Conversely, where a litigation guardian has a personal interest in the outcome of the litigation, they may not be able to do so. See Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SC 38 at para 19.
[63] I have serious concerns on the appropriateness of Mohamed Elbassiouni acting as counsel on this matter given his familial relationship, historical (and possible current) interest in the subject matter and ongoing legal involvement in Ahmed Elbasiouni's legal matters. However, I will only deal with whether Essam Elbassiouni is appropriate as the proposed Litigation Guardian.
[64] I am not satisfied it would be appropriate to appoint Essam Elbassiouni as the Litigation Guardian because:
a) Essam Elbassiouni had an interest (mortgage) in the underlying subject property at the heart of all these proceedings. When asked who paid Essam Elbassiouni "out" on the mortgage, there was a refusal to answer. As a result, all that is known is that another company took an assignment of the mortgage. When asked if Mohamed Elbassiouni continued to have an interest in the subject property, the question was refused but eventually Essam Elbassiouni stated he didn't know;
b) Essam is a paralegal and partner respectively in Goodman Elbassiouni LLP, counsel for Ahmed Elbasiouni in the Tort Claim, in this proceeding and appeared in the Court of Appeal matter; and
c) Essam Elbassiouni financially supports Ahmed Elbasiouni.
[65] In my view there is a clear conflict of interest between Essam Elbassiouni, as a financial supporter, paralegal at Ahmed Elbasiouni’s counsel, and serious questions whether there are other conflicts of interest between Essam Elbassiouni and Ahmed Elbasiouni. I would reject Essam Elbassiouni as a Litigation Guardian for Ahmed Elbasiouni.
CONCLUSION
[66] The motion is dismissed.
COSTS
[67] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.
[68] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.
[69] There shall be no reply submissions without leave.
Ricchetti, RSJ
Date: September 2, 2020