Court File and Parties

OSHAWA COURT FILE NO.: CV-20-1885

DATE: 20210322

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jenny Tran, Plaintiff

AND:

Durham Condominium Corporation, Defendant

BEFORE: The Honourable Madam Justice J. Speyer

COUNSEL: Unrepresented, for the Plaintiff frcall89@gmail.com

Emily A. Schatzker and Kary-Anne Layng, for the Defendant eschatzker@laxtonglass.com; klayng@laxtonglass.com

HEARD: In writing

ENDORSEMENT

[1] Ms. Tran has moved for an order appointing amicus to assist her to litigate this matter.

[2] Counsel for the respondent takes no position in relation to Ms. Tran’s request that the court appoint an amicus.

[3] It is Ms. Tran’s position that she is mentally incapable to represent herself on the motion but is capable to instruct counsel. She relies, in support of her motion, on her psychiatrist’s opinion that she should not self-represent and that she should ask the court to appoint an amicus to assist her. Ms. Tran appended the letter she received from Dr. Samuel Law, her treating and consulting psychiatrist, as an exhibit to her affidavit.

[4] Dr. Law’s letter is dated March 1, 2021. He begins his letter by noting that it is written with Ms. Tran’s consent. He states that Ms. Tran has an “active mental illness of schizophrenia (mild, mainly thought disorganization), major depression, and generalized anxiety disorder”. He notes that her legal issues are causing her undue stress and exacerbation of her mental illness.

[5] Dr. Law is a staff psychiatrist at St. Michael’s Hospital in Toronto and an associate professor in the Department of Psychiatry at the University of Toronto. Dr. Law concludes:

In my medical opinion, she should be fully protected by the rights accorded to those who are disabled, and given the utmost consideration and support. I find her capable of making decisions for herself on these matters and capable of giving legal instructions to her lawyer or amicus. Given that Ms. Tran can be quite disorganized and often ineffective in her communication in legal settings, I strongly suggest the Court to appoint a lawyer, or preferably an amicus, so she can instruct them to assist in her case so the matter can go more smoothly given her mental health condition. She is NOT incapable of making decisions or instruct counsel so a PGT is not needed in her case.” [Emphasis in original.]

[6] Although Ms. Tran does not seek the appointment of a litigation guardian, out of an abundance of caution, given her self-description at times as “incapable”, I have considered whether Rules 7 and 15 of the Rules of Civil Procedure, which deal with litigation by parties who are under a disability, have any application to this case. I have concluded that they do not. There is no reason in this case to appoint a litigation guardian for Ms. Tran.

[7] It is plain that Ms. Tran is not a party under a disability as that term is defined in s. 1.03(1) of the Rules of Civil Procedure, in that she is not incapable within the meaning of sections 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding. I reach this conclusion for two reasons. First, I accept Dr. Law’s opinion that Ms. Tran is not incapable of making decisions or instructing counsel. Second, my observations of Ms. Tran, including my verbal exchanges with her and my review of the written materials she has submitted on this motion, the motion within which it arises, and her statement of claim cause me to conclude that she in not incapable within the meaning of sections 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in this proceeding. To the contrary, she is quite capable of asserting her position and the reasons for it.

[8] Ms. Tran has demonstrated, both in relation to this motion, and the action in which it arises, substantial familiarity with the Rules of Civil Procedure. She has filed motion records and facta that address the issues raised by her in the litigation. She has filed books of authorities that are, for the most part, relevant to the issues to be determined.

[9] Ms. Tran has provided an affidavit in support of her motion for an order appointing amicus. She swears that she is capable to instruct counsel. She swears that she cannot afford to retain counsel as she is supported by the Ontario Disability Support Program. She attributes her inability to operate her business on the actions of the defendants that she says have compromised her mental health. She says that this case is complex.

[10] This case is not complex. Ms. Tran is the owner of commercial condominium. She has sued the condominium corporation, the property managers past and present, and a member of the board of directors, alleging that they have failed to comply with their obligations to maintain the property. The genesis of her concern is their alleged failure to repair the roof, which leaked. The dispute between the parties as it relates to the roof is whether the condominium corporation or Ms. Tran is responsible to pay for the needed repairs. Ms. Tran’s allegations of non-maintenance have expanded since the litigation began to include complaints about the allocation of parking spaces, removal of garbage, and maintenance of a small garden bed.

[11] The core purpose of the appointment sought by Ms. Tran is to assist her to present her case as counsel would do. She is seeking state-funded legal counsel to advance her interests. She does not seek the appointment of amicus to assist the court by providing a perspective that she is incapable of providing herself.

[12] An amicus cannot do what Ms. Trans wants. An amicus does not act as a lawyer for a party. An amicus does not take instructions from a party to the proceedings. Rather, the role of amicus is to provide the court with a perspective that the court feels is lacking. An amicus acts in the public interest for the benefit of the court in the correct disposal of a case. An amicus is bound by a duty of loyalty and integrity to the court and not to any of the parties to the proceedings. See: R. v. Imona-Russell, 2013 SCC 43, at para. 118, per Fish J. in dissent, though not on this issue.

[13] Dr. Law correctly notes that Ms. Tran should be fully protected by the rights accorded to those who are disabled and given the utmost consideration and support. Ms. Tran will be afforded a fair hearing with sufficient opportunity and time to present her evidence and make submissions. I appreciate that, because of her disability, she may need more time to state her position than would otherwise be the case. She will be afforded that time. To be clear, that does not mean that she will have unlimited time or that she will not be re-directed if her submissions become repetitive. But her disability will be accommodated.

[14] The application by Ms. Tran for the appointment of amicus is dismissed.

Justice J. Speyer

Date: March 22, 2021