Court File and Parties

COURT FILE NO.: CV-19-3851 (Brampton)

DATE: 20220421

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joginder Bajwa

Plaintiff

-and-

Raman Singh, Rajinder Singh and Kulminder Kahlon

Defendants

Counsel:

J.S. Mangat, for the plaintiff

J.S. Chahal, for the defendants

L. Filgiano, for the Public Guardian and Trustee (“PGT”)

Heard: April 20, 2022 by video conference

Before: Justice R. Chown

Endorsement

[1] At my request, counsel for the PGT and counsel for the parties appeared for a video conference yesterday in connection with my endorsement of April 6, 2022.

[2] The PGT takes the position that it does not have authority to investigate whether Mrs. Bajwa is a party under disability with respect to this proceeding. The PGT takes no position on whether Mrs. Bajwa requires a litigation guardian. Counsel for the PGT submitted:

a. The role of a litigation guardian at this point, now that the trial is completed but for the decision, would be limited to scrutinizing what has occurred to date and assessing whether the plaintiff's position should be revised, including possibly seeking a new trial.

b. The risk of proceeding on the assumption that Mrs. Bajwa has capacity include the possibility that this proceeding or the trial decision would be a nullity.

c. The issue in this case is governed by rule 7.01, which requires reference to the definition of disability under rule 1.03. This in turn requires reference to the tests for incapacity in sections 6 and 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

d. The court has the power to order a capacity assessment under s. 105 of the Courts of Justice Act. However, Ms. Filgiano offered no submissions on how the capacity assessment should or would be funded.

[3] After considering my endorsement, the defendants want the plaintiff to undergo a capacity assessment. Mr. Chahal advised that, if permitted, his clients would instruct him to bring a motion for a capacity assessment. He suggested that the cost of a capacity assessment should be divided equally between the plaintiff and the defendants.

[4] Mr. Mangat's position has not changed. In his view, Mrs. Bajwa is capable and he is able to take instructions from her. If there is a motion for a capacity assessment, he anticipates bringing a motion to permit further witnesses to testify. He says his client has no money to fund or partially fund a capacity assessment.

[5] I would benefit from a report prepared by a capacity assessor. However, as was discussed at the hearing today, there are significant practical problems.

[6] My order is as follows:

a. I will hold a hearing on May 11, 2022 at 9:00 a.m. by videoconference to address the issue of whether or not I have jurisdiction to order a capacity assessment, whether I should order a capacity assessment and, if so, what the arrangements for the capacity assessment should be, including how it should be funded.

b. No formal motion record is required for the hearing.

c. Counsel are to confer and see if they can reach an agreement on the particulars of a capacity assessment, if I proceed to order it. These particulars would include who the assessor would be, when it would occur, what it would cost, and how it would be funded. Of necessity, counsel or the parties will have to make inquiries of one or more potential assessors regarding the assessor’s availability and fees. Any agreement on these particulars would be without prejudice to the plaintiff opposing the order for a capacity assessment and making full argument on whether it should be ordered. If counsel are not able to reach an agreement, Mr. Chahal shall provide the particulars of his proposal for a capacity assessment to Mr. Mangat in advance of the hearing.

d. The parties may but are not required to file materials for the May 11, 2022 hearing, including but not limited to:

i. affidavit materials to supplement the evidence I heard at trial on whether or not the plaintiff has capacity; and

ii. statements of law or books of authorities.

For clarity, I consider the hearing to be a voir dire. Evidence filed by way of affidavit for this hearing will not necessarily be admitted as part of the evidentiary record in the trial itself.

e. If either party intends to file materials, the materials are to be served and filed by May 6, 2022. Reply materials may be filed by May 10, 2022 at 2:00 p.m. Given this timeline, materials filed with the court in Brampton are not likely to come to my attention before the hearing. As such, in addition to filing materials through BramptonSCJcourt@ontario.ca, counsel are to send a copy by email to my judicial assistant by May 10, 2022 at 2:00 p.m. In addition, counsel should upload the materials to the appropriate bundle in CaseLines.

f. The parties may but are not required to attend the hearing.

g. I would welcome it if counsel for the PGT can attend the hearing, but I am not making an order that this is required.

Chown J.

Released: 2022-Apr-21