CITATION: Bajwa v. Singh, 2022 ONSC 6093

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

DATE: 20221026

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

Heard: October 21, 2022 by video conference

BEFORE: Justice R. Chown

Endorsement

[1] Mr. Mangat was 20 minutes late today.

[2] I have received the report of Ms. Ruby Shah dated September 14, 2022. She finds that Ms. Bajwa lacks the capacity to instruct counsel.

[3] I have also received the affidavit of Chandeep Singh Mangat dated October 6, 2022, a clerk for Mr. Mangat. He advises that he attended the capacity assessment. He says that even though Ms. Shah holds herself out as fluent in Punjabi, she did not conduct the assessment in Punjabi. Rather, she conducted the assessment in the Hindi language and asked Chandeep Mangat to interpret for her from Hindi to Punjabi, and later from English to Punjabi. Chandeep Mangat is not a certified interpreter. He felt that Mrs. Bajwa was left very confused by the language barrier, and in some instances unable to respond to the questions being put to her.

[4] Chandeep Mangat was also concerned about the objectivity of the assessor and suggests she was partial to the defendants.

[5] Mr. Mangat criticizes the fact that the assessment was not recorded.

[6] Mr. Mangat requests that a further capacity assessment be ordered and advises that Mrs. Bajwa’s daughter, Satpal, is prepared to fund it.

[7] Mr. Chahal argues that:

• The assessment interview was held on August 31, 2022 and the report was prepared on September 14, 2022. The affidavit of Chandeep Mangat was sworn on October 6, 2022. Mr. Mangat only raised his concerns after seeing the capacity assessment result.

• Before Ms. Shah was appointed, Mr. Mangat could have interviewed Ms. Shah himself to satisfy himself as to Ms. Shah’s fluency in Punjabi.

• If he wanted the interview recorded, Mr. Mangat could readily have arranged for this. This is something that should have been addressed beforehand as consent from Ms. Shah would have been required.

[8] I agree with Mr. Chahal’s arguments. The concerns Mr. Mangat raises would have greater credibility if they had been raised immediately after the assessment and before the report was prepared.

[9] In the circumstances, I am not going to order another capacity assessment. With that said, I see no impediment to Mr. Mangat arranging a further capacity assessment at the expense of Satpal or others. However, subject to any further order of this court, a further capacity assessment shall not be conducted at the expense of Mrs. Bajwa unless the PGT requests it. In addition, the parties need to be concerned about proportionality. What is the likely outcome if a further capacity assessment comes to a different conclusion? Will yet another capacity assessment be required? Will a hearing to address which assessor to believe be required?

[10] On the current evidence, I am satisfied that Mrs. Bajwa lacks the capacity to instruct counsel. I hereby appoint the PGT as litigation guardian for her pursuant to rule 7.04.

[11] I will arrange for a copy of this to be sent to Ms. Filgiano.

[12] I will hold a further hearing on November 16, 2022 at 4:00 p.m. by videoconference. I ask the PGT to be prepared at that time, if possible, to make submissions on what steps should be taken next, and to consult with Mr. Chahal in advance of the hearing.