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

DATE: 20220621

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joginder Bajwa

Plaintiff

-and-

Raman Singh, Rajinder Singh and Kulminder Kahlon

Defendants

J.S. Mangat, for the plaintiff

J.S. Chahal, for the defendants

Heard: June 14, 2022 by video conference

Justice R. Chown

Endorsement

[1] Counsel agree that I have the authority to order a capacity assessment. Mr. Mangat argues that I should not do so as the evidence does not support the need for it. He further argues that if I do order a capacity assessment, I should permit further evidence in the trial.

[2] In my view the evidence does justify a capacity assessment. Two elements of the evidence support this conclusion. First, the frailties of the plaintiff’s evidence are such that it is appropriate to be concerned with her capacity to grasp, retain, and relate information. Among other things she misstated her age and the year her husband died, and she was unable, without prompting, to say why she was in court. She conflated the year her husband died with the year the payments in question were made to the defendants. The point is a significant one because she also gave evidence to the effect that the payments equate to her life savings at the time (although this evidence was not confirmed through documentation). The second element is Nimmi Khalan’s evidence, which suggests Mrs. Bajwa may have been unduly pressured to pursue this matter and lacks the capacity to resist this pressure.

[3] I am mindful that ordering a capacity assessment is an intrusion on the determination of Mr. Mangat that Mrs. Bajwa has the capacity to instruct him. However, the circumstances are such that both sides of this family may have their own incentives for not wanting to have Mrs. Bajwa’s capacity assessed. It is in my view necessary to order the capacity assessment in this case to protect the vulnerable party and the integrity of the court process.

[4] I therefore order that a capacity assessment of the plaintiff shall be conducted.

[5] The question of whether I permit further evidence would require a motion and no motion is before me.

[6] The parties have agreed that the assessor will be Ruby Shah and that the assessment will be funded by the defendants.

Records required for the assessment

[7] Mr. Chahal advised that Ms. Shah would like to have Mrs. Bajwa’s medical records including records from her primary care practitioner and the records from her hospitalization in 2016.

[8] Mr. Mangat took the position that obtaining records from 2016 was excessive. During the hearing with counsel, I expressed agreement that records going back to 2016 did seem excessive. On reflection, even the 2016 records may be relevant to the assessor.

[9] I therefore order that Mrs. Bajwa’s health records from her primary care provider(s) and her hospital records from the hospital she attended in 2016 shall be produced, as long as they can be obtained without delaying the next hearing date. Records covering from 2016 to date are to be obtained by Mr. Mangat, who shall forthwith provide copies to Mr. Chahal and to the assessor. This is subject to any other agreement the parties and health care records holders may reach. The disbursement for production of the records shall be funded by the defendants.

[10] It is important to expedite production of the medical records so that the capacity assessment can be completed without delay. If there is any delay in production of the records, counsel may write me, and I will arrange a hearing so that the records can be produced to the court by way of a summons.

Instructions to Assessor

[11] The terms of reference for the capacity assessment are as described below.

[12] First, I will explain what is not included in the terms of reference:

a. The ultimate issue in this proceeding is whether the three payments made by Mrs. Bajwa in 2016 were intended as gifts or as loans. It is not the assessor’s task to determine the ultimate issue.

b. The purpose of the assessment is not to assess whether a guardian for property is required.

[13] Rather, the goal is to receive an opinion from the assessor to assist me in determining whether a litigation guardian is required in this proceeding. Rule 7.01 of the Rules of Civil Procedure requires that, unless a court orders otherwise, a proceeding shall be commenced or continued on behalf of a party under disability by a litigation guardian. The term “disability” is defined under rule 1.02. For current purposes, it means “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding.” The specific issue is whether Mrs. Bajwa has the capacity to instruct counsel.

[14] There is no single definitive test to be applied in assessing whether a litigant has the capacity to instruct counsel. The question is case specific. Here, the most important factors to consider in assessing whether Mrs. Bajwa has the capacity to instruct counsel are the following:

a. Her ability to understand and appreciate:

i. the nature of the proceedings and the ultimate issue in the proceedings;

ii. the financial risks and benefits of the lawsuit, including how either a positive or negative outcome for her will affect her financially;

iii. the available options, including the option to proceed to judgment or to try to settle;

iv. the position taken by her family members about the issues in this proceeding;

v. the factors which may be motivating her family members;

vi. the social risks and benefits of this proceeding, including its impact on her relationships with her family members.

b. Her ability to assess the comparative risk of the available alternatives, and a reasonable range of possible outcomes, both positive and negative.

c. Her ability to make a reasoned choice regarding this proceeding, the rationality of her choice, and the stability of her choice.

[15] It has been held that, “In determining a litigant’s capacity to instruct counsel, the court is concerned with the person’s decision-making over the entire duration of the proceeding”: Costantino v Costantino, 2016 ONSC 7279, at para. 56. I agree with this holding but the focus here is somewhat different. In Costantino, the litigant was a diagnosed paranoid schizophrenic whose condition was dependent on consistent therapy, including medication. In this case, I am most concerned with Nimmi Khalon’s evidence to the effect that Mrs. Bajwa did not want to proceed with this case and the possibility that Mrs. Bajwa’s contrary evidence at trial was rote recitation influenced by others who did not testify. I wish to strongly emphasize that I raise this as a concern and not as a conclusion. I would benefit greatly from a deeper understanding of this possibility and my concern is to avoid any injustice that might result from it. The focus here is on Mrs. Bajwa’s current/recent capacity.

[16] The assessor’s approach should be informed by the Guidelines for Conducting Assessments of Capacity issued by the Capacity Assessment Office of the Ontario Ministry of the Attorney General, but no specific form for the assessor’s opinion is required. A letter or brief report will suffice if it outlines the assessor’s qualifications, the steps taken during the assessment, and her observations, findings, and opinion.

[17] The assessor should not intrude into areas that may be the subject of lawyer-client privilege. That is, she should not ask Mrs. Bajwa to disclose what she has communicated to Mr. Mangat and what he has communicated to her. To further protect lawyer-client privilege, I also direct that the assessor’s report shall initially be kept confidential. A copy shall be delivered to Mr. Mangat and a copy shall be delivered to me via email to my judicial assistant, in a password protected pdf, with the password to be provided in a separate email. Alternatively, the report may be delivered to me in a sealed envelope with a copy of this endorsement affixed to the outside of the envelope. I will assess whether or to what extent the report shall be redacted before disclosure to the defendants.

Next Steps

[18] This matter is adjourned to August 25, 2022 at 9:00 a.m. at which point it is hoped that the assessor’s report will be available for consideration.

[19] If there are any issues that arise over the capacity assessment, counsel may write me to arrange a hearing. Counsel may not, however, make argument in their correspondence to me unless I advise otherwise.

Chown J.

Released: 2022-Jun-21