SUPERIOR COURT OF JUSTICE – ONTARIO
RE: WILLIAM DALE MACLEOD Applicant
AND:
TORONTO CATHOLIC DISTRICT SCHOOL BOARD, HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD, TORONTO DISTRICT SCHOOL BOARD, RYERSON UNIVERSITY, YORK UNIVERSITY and NATIVE CHILD AND FAMILY SERVICES OF TORONTO Respondents
AND:
MacLeod v. Native Child and Family Services of Toronto et al., 2021 ONSC 5672
RE: TAMMY MACLEOD (nee LARONDE) by her Litigation Guardian, WILLIAM DALE MACLEOD and WILLIAM DALE MACLEOD Plaintiffs
AND:
NATIVE CHILD AND FAMILY SERVICES OF TORONTO and MCMASTER UNIVERSITY MEDICAL CENTRE (MCMASTER CHILDREN’S HOSPITAL) Defendants
BEFORE: Mr. Justice Chalmers
COUNSEL: W. MacLeod, Applicant and Plaintiff on his own behalf
S. Murtha, counsel for the Respondent, York University
S. Metzler, counsel for the Respondent, Toronto Catholic District School Board
N. Fitz and S. Vavougios, counsel for the Respondent, Ryerson University
B. Clarke, counsel for the Respondent, Toronto District School Board
L. Mapplebeck, for the Hamilton Wentworth District School Board
N. Hassan and E. Sanderson, for the Defendant, McMaster University Medical Centre
A. Harper, for the Office of the Public Guardian and Trustee
HEARD: June 25, 2021 By Videoconference
AMENDED ENDORSEMENT
Overview
1By order of Justice Myers dated December 21, 2020, I was appointed the case management judge in the action brought by William MacLeod against McMaster University Medical Centre (“McMaster”) and Native Child and Family Services of Toronto (“NCFS”); Court File No.: CV-19-00629625 (the “Action”). In his endorsement, Myers, J. stated that the Action requires a case management judge who can oversee the management of any capacity issues. Justice Myers stayed the Action until further order of the Court.
2Mr. MacLeod brought a separate Application against the Toronto Catholic District School Board, the Hamilton-Wentworth District School Board, Toronto District School Board, Ryerson University, York University and NCFS; Court File No.: CV-18-00601954 (the “Application”).
3The Respondents to the Application and the Defendants in the Action seek an order declaring that Mr. MacLeod is a party under disability pursuant to R. 7.01 of the Rules of Civil Procedure and to appoint the Public Guardian and Trustee (PGT) to act as Mr. MacLeod’s Litigation Guardian in the proceedings. In the alternative, the moving parties seek an order compelling Mr. MacLeod to undergo an assessment under section 105 (2) of the Courts of Justice Act, R.S.O. 1990, c.C.43. Mr. MacLeod objects to the appointment of the PGT to act as his Litigation Guardian. He argues that although he may have had capacity issues in the past, he is now capable of representing himself in these proceedings.
4For the reasons set out below, I find that Mr. MacLeod is mentally incapable of representing himself with respect to these proceedings. I appoint the PGT to act as Litigation Guardian for Mr. MacLeod in the Action and Application.
Background Facts
5Mr. MacLeod was born November 4, 1997. He has a history of mental health issues. Mr. MacLeod, in his submissions, states that he has been diagnosed with Autism Spectrum Disorder or Attention Deficit Hyperactivity Disorder (“ADHD”). In addition to the longstanding history of mental health issues, Mr. MacLeod suffered a traumatic brain injury as a result of a motor vehicle accident that occurred on June 17, 2010. Mr. MacLeod denies that his mental health issues affect his cognitive processes.
6Two personal injury actions were commenced when Mr. MacLeod was a minor. After he reached the age of majority, he dismissed his lawyer and commenced 25 additional lawsuits with respect to the mistreatment he alleges to have suffered from various institutions.
7Mew, J. was appointed to manage Mr. MacLeod’s legal proceedings. He ordered a capacity assessment. Pursuant to the assessment, Mew. J. declared Mr. MacLeod a party under disability under R. 7.04 and appointed the PGT as the Litigation Guardian for the two personal injury actions. Myers, J. replaced Mew, J. as the case management judge. Myers, J. stayed all the actions other than the two in which the PGT was involved, as he considered many of the other actions to be frivolous proceedings.
8In the fall of 2016, the PGT arranged a capacity evaluation of Mr. MacLeod. The evaluation was carried out by Dr. Kaminska, pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30. In her report dated February 14, 2017, she confirmed her 2013 diagnosis of Cognitive Disorder, Learning Disorder, Attention Deficit Hyperactivity Disorder, Tourette’s, OCD, Intermittent Explosive Disorder, Receptive/Expressive Language Disorder, Articulation Disorder, as well as educational, occupational, family and psychological problems. She confirmed that Mr. MacLeod sustained a traumatic brain injury as a result of the motor vehicle accident. She stated that these impairments were deemed permanent.
9Dr. Kaminska stated that Mr. MacLeod’s “educational background and self-study may be providing a false sense of competency that, in combination with compromised, often idiosyncratic and unrealistic thinking, contributes to his problems with reasoned and deliberate thinking, this being the case despite lack of evidence of delusional disorder.” On February 16, 2017, Dr. Kaminska completed Form “A” and Form “C” Assessment Reports under the Substitute Decision Act, 1992. She determined that Mr. MacLeod was a person under disability and was incapable of managing his own property.
10Following the capacity evaluation, the PGT became the statutory guardian for property for Mr. MacLeod and became the Litigation Guardian for all the cases. With the input from the PGT and Mr. MacLeod many of the cases were dismissed on consent.
11On June 1, 2017, the Consent and Capacity Board overruled the capacity assessor and found that Mr. MacLeod was capable of managing his property. After the Board released its decision, Mr. MacLeod brought a motion before Myers, J. for an order to remove the PGT as his Litigation Guardian. By endorsement dated October 6, 2017, Myers, J. held that the PGT should remain Litigation Guardian. He stated that although the Board concluded that Mr. MacLeod could manage property, he found that Mr. MacLeod did not appreciate the purposes or complexities of the civil litigation process and could not instruct counsel.
12On August 20, 2018, Mr. MacLeod commenced the Application, in which he sought revisions to his grades and course credits. He also sought the dismissal of his student loan debt. On March 15, 2020, Mr. MacLeod served the Application Record and Book of Authorities. The document consists of 3,797 pages. The Application Record includes the medical documentation that indicates Mr. MacLeod has a number of mental disorders and health issues which affect his capacity to process and appreciate information.
13Mr. MacLeod underwent a psycho-vocational assessment with Metrics Vocational, the purpose of which was to identify appropriate occupations for him. The report dated September 25, 2019, provides that the test results for cognitive functioning and learning ability were higher than expected. The report concludes that Mr. MacLeod is not experiencing any significant learning challenges.
14On October 22, 2019, Mr. MacLeod commenced a separate proceeding against NCFS, and others; Court File No.: CV-19-00629623 (the “NCFS Action”). One of the Defendants, the Toronto Police Services Board requested that the Court consider whether the proceeding ought to be stayed or dismissed pursuant to R. 2.1.01. On May 20, 2020, Sossin, J. stayed the NFCS Action on the basis that it was frivolous, vexatious or an abuse of process. Justice Sossin further determined that Mr. MacLeod lacked capacity to commence or continue any other civil litigation until such time as the order of Myers, J. dated October 6, 2017 was overturned: W.D.M. v. Native Child and Family Services of Toronto, et al. 2020 ONSC 3112, at para. 34.
15On July 6, 2020, following a case conference, Glustein, J. stayed the Application on the basis of the previous decision of Sossin, J. in the NCFS Action, which determined that the Applicant lacked capacity to commence or continue litigation proceedings. Glustein, J. stated that the Application was stayed pending Mr. MacLeod’s compliance with the decision of Sossin, J. or until Mr. MacLeod successfully appeals the decision.
16Mr. MacLeod appealed the order of Sossin, J. The Court of Appeal dismissed the appeal pursuant to R. 2.1.01. In its decision released October 14, 2020, the court stated as follows:
The Notice of Appeal, for the most part, is not intelligible and seems to claim relief that this court cannot grant. While it states the appeal is from the May 20, 2020 decision of Sossin, J., it seeks relief in the appellant’s previously stayed and dismissed action. The one discernible matter is that the appellant does not want the Public Guardian and Trustee to be his litigation guardian and he wants his previously dismissed actions reinstated so that he can represent himself in them.
Leaving aside all of the technical deficiencies in the Notice of Appeal there is no prospect whatsoever that the appellant could succeed in having any of the Superior Court of Justice’s decisions appointing or maintaining the Public Guardian and Trustee as his litigation guardian set aside in this appeal. This is readily apparent on the face of the Notice of Appeal itself. The appellant’s drafting of the Notice of Appeal demonstrates that he is incapable of representing himself. The appeal proceeding initiated by the Notice of Appeal cannot possibly succeed or even place a justiciable appeal before the court. An appeal that cannot succeed is frivolous: WDM v. Native Child and Family Services of Toronto, 2020 ONCA 641, at para. 13.
17Mr. MacLeod commenced the Action in 2019. NCFS and McMaster each requested that the court review the Action pursuant to R. 2.1.01, to determine whether the Action is frivolous, vexatious or otherwise an abuse of process. The motion brought by McMaster came before Leiper, J. By endorsement dated November 9, 2020, she found there was a cause of action pleaded against McMaster and did not dismiss the action. The request by NCFS came before me. By endorsement dated March 26, 2021, I found that the pleading, on its face, was not frivolous or vexatious. I did not dismiss the Action as against NFCS.
18On November 27, 2020, Mr. MacLeod delivered a Notice of Motion to revive the Application, which was stayed by Glustein, J. It was Mr. MacLeod’s position that he no longer requires a Litigation Guardian. He also sought to amend the Application to remove the NCFS as a Respondent. The Respondents took the position that Mr. MacLeod is barred from commencing or continuing litigation in accordance with the decisions of Myers, J. and Sossin, J. The motion came before me in Short Motion Triage. I convened a case conference for March 10, 2021.
19I also convened a case conference in the Action in my capacity as case management judge. The case conference in the Action took place on January 29, 2021. Counsel for McMaster University argued that the claim as currently constituted cannot continue because the Court of Appeal found that Mr. MacLeod continues to be under a disability and requires a Litigation Guardian. I scheduled the next case conference for March 8, 2021. Mr. MacLeod failed to attend on March 8, 2021. I adjourned the case conference to March 10, 2021, to take place at the same time as the case conference in the Application.
20On March 9, 2021, Mr. MacLeod wrote to the parties and stated that that intends to withdraw both the Action and the Application. He did not attend the case conference on March 10, 2021. Later, on March 10, 2021, Mr. MacLeod delivered a letter in which he revoked his earlier statement that he intends to withdraw the Action and Application.
21I convened a further case conference in the Action and Application, which took place on April 7, 2021. I directed the Defendants in the Action and the Respondents in the Application to bring a motion, on notice to the PGT, to determine Mr. MacLeod’s litigation capacity.
The Issues
22There are two issues to be determined on this motion:
(1) whether Mr. MacLeod is a party under disability requiring a Litigation Guardian, and
(2) in the alternative, whether the Court should order a mental assessment to assist in determining whether the Applicant is a person under disability requiring a Litigation Guardian.
Analysis
Is Mr. MacLeod a party under disability requiring a Litigation Guardian?
23A party is considered under a disability for the purposes of R. 7.01 where they are a minor, an absentee or satisfy the definition of “mentally incapable” under section 6 and 45 of the Substitute Decisions Act with respect to an issue in the proceeding: R. 1.03. Under the Substitute Decisions Act, a party is considered mentally incapable when they are not able to understand information that is relevant to making a decision or are not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: Substitute Decisions Act, 1992 S.O. 1992, c. 30, ss 6,45.
24The test for determining whether a litigation guardian is required is set out in Huang v. Braga, 2016 ONSC 6306:
The test for whether a litigation guardian is required under Rule 7 is that:
(i) The person must appear to be mentally incapable with respect to an issue in the case and,
(ii) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.
In addition, 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 (C.A.S. Toronto).
The jurisprudence has established the following additional factors should be considered when determining whether a party is under disability and requires a litigation guardian:
(a) A person’s ability to know or understand the minimum choices or decisions required and to make them;
(b) An appreciation of the consequences and effects of his or her choices or decisions;
(c) An appreciation of the nature of the proceedings;
(d) A person’s inability to choose and keep counsel;
(e) A person’s inability to represent him or herself;
(f) A person’s inability to distinguish between relevant and irrelevant issues; and,
(g) A person’s mistaken beliefs regarding the law or court procedures.
See C.A.S. Toronto at para 29-32; Calvert (Litigation Guardian of) v. Calvert, (1997) 1997 12096 (ON SC), 32 OR (3d) 281 at p 298; Kirby v. Leather, [1965] 2 All ER (CA) 441 at p 444; Bilek v. Constitution Insurance, 49 CPC (2d) 304.
Courts have considered various types of evidence in evaluating the appropriateness of appointing a representative or litigation guardian:
(i) Medical or psychological evidence as to capacity;
(ii) Evidence from persons who know the litigant well;
(iii) The appearance and demeanour of the litigant;
(iv) The testimony of the litigant; and,
(v) The opinion of the litigant’s own counsel. Huang v Braga, 2016 ONSC 6306, paras 18-20.
25The moving parties argue that Mr. MacLeod has been deemed incapable in previous proceedings by Mew, J., Myers, J., Sossin, J., Glustein, J., and the Court of Appeal. Myers, J., in his endorsement dated October 6, 2017, conducted an analysis of the Huang v Braga factors and concluded that Mr. MacLeod required a Litigation Guardian. Myers, J. relied on the report of Dr. Kaminska and found that Mr. MacLeod’s incapacity arose out of a mental illness. The moving parties submit that there is no new evidence before the court that there has been a change in Mr. MacLeod’s capacity.
26Mr. MacLeod relies on the psycho-vocational assessment dated September 25, 2019. He argues that the assessment found he has good cognitive functioning and learning ability. Mr. MacLeod concedes that he may have lacked capacity before he reached the age of majority but that should have no bearing on his current status.
27I am of the view that the psycho-vocational assessment is of limited assistance in determining whether Mr. MacLeod requires a Litigation Guardian. The assessment is not a capacity evaluation pursuant to Substitute Decisions Act, 1992. The assessment is for the limited purpose of identifying possible occupations for Mr. MacLeod. Although the report states that Mr. MacLeod reported a history of ADHD and Asperger’s syndrome, the diagnosis of mental illness is outside the scope of the assessment.
28In determining whether Mr. MacLeod requires a Litigation Guardian, I considered the factors set out in Huang v. Braga.
29Mr. MacLeod has not demonstrated an understanding of the minimum choices or decisions required and to make them. He has failed to pursue a consistent and focused approach to the litigation. He continues to raise new issues and forward voluminous materials which are largely irrelevant. Mr. MacLeod’s approach creates confusion as to the issues in dispute and how the issues are to be resolved.
30Mr. MacLeod does not have an appreciation of the consequences of his choices or decisions in the litigation. He brought multiple legal proceeding involving similar parties and issues. Many of the proceedings were found to be frivolous and were ultimately dismissed on a without costs basis. If the Defendants had insisted on costs, the consequences to Mr MacLeod would have been significant. Mr. MacLeod also did not seem to appreciate the consequences of his agreement to dismiss Action and Application on March 9, 2021, only to rescind his agreement the next day.
31The materials filed by Mr. MacLeod on this motion demonstrate that he is not capable of representing himself. He filed voluminous material, much of which has no application to the motion. His factum sets out facts which are largely irrelevant. He misstates the test for whether a Litigation Guardian is required. He refers to the “capacity to instruct” counsel for the purposes of making a will and does not refer to the test set out in Huang v. Braga. Mr. MacLeod states that Justices Mew, Myers, and Sossin along with the Court of Appeal applied the incorrect “capacity to sue” test. He also raises issues that are not relevant to the motion. For example, he states that he has been negatively affected by the R. 2.1.01 requests which has caused mental anguish and resulted in him contemplating suicide and self-harm.
32I am satisfied, on the record before me, that Mr. MacLeod is mentally incapable with respect to an issue in the proceeding. Although he was courteous and attentive when he appeared before me, he was unable to maintain a consistent and coherent argument. In his written and oral submissions, Mr. MacLeod demonstrated an inability to focus on the matters in issue and was unable to distinguish between the relevant and irrelevant. Mr. MacLeod was able to refer to various Rules and legal principles, but the statements were, in some cases mistaken or not applicable.
33I reach the same conclusion with respect to Mr. MacLeod’s capacity as Myers, J. in W.M. v. Office of the Public Guardian and Trustee:
Although WM is able to engage in discussion and respond to issues, it does not take long for him to descend into lengthy soliloquys that lose the focus of the discussion. He is not able to maintain a train of thought concerning issues of relevancy in the litigation. He is cooperative and tries to respond to questions in court. But it is difficult for him to contribute with any depth or complexity. He does not display the ability to understand the issues, to articulate the facts relevant to specific issues, or the potential risks and benefits of available decisions on the issues: W. M. v Office of the Public Guardian and Trustee, 2017 ONSC 5887, para 14.
34I am also satisfied that the cause of Mr. MacLeod’s incapacity stems from mental illness or injury. Dr. Kaminska provided the opinion that Mr. MacLeod has longstanding mental health issues, including Cognitive Disorder, Tourette’s Syndrome, OCD and Receptive/Expressive Language Disorder. She states that in addition to the mental health issues, Mr. MacLeod sustained a traumatic brain injury as a result of the motor vehicle accident.
35I conclude that as a result of Mr. MacLeod’s capacity issues, it is necessary to appoint a Litigation Guardian to represent him in these proceedings.
36By letter dated June 16, 2021, counsel for the PGT states that should the Court find that the Mr. MacLeod is a party under disability and no other proper person is willing and able to act as his Litigation Guardian, the PGT does not oppose its appointment.
Should the Court order a capacity assessment?
37I was able to determine on the material before me that Mr. MacLeod is mentally incapable and requires a Litigation Guardian. I do not require a further capacity assessment.
Disposition
38I make the following order:
(i) I declare that Mr. MacLeod is a party under disability within the meaning of Rules 7.04 and 1.03 of the Rules of Civil Procedure; and there is no other person willing or able to act as Litigation Guardian for Mr. MacLeod;
(ii) I order that the PGT is appointed as the Litigation Guardian for Mr. MacLeod under Rule 7 of the Rules of Civil Procedure, in both the Action and the Application.
39The moving parties did not seek costs of the motion and I make no order as to costs.
40The Order shall go in accordance with the draft orders filed and signed by me.
41I remain seized of all procedural matters in both the Action and the Application in my capacity as case management judge.
DATE: AUGUST 20, 2021