Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Safee-Basir and N. Shivtahal, Plaintiffs
AND:
Wernham, Antoon Alghiril and Ararat Trading Inc., Defendants
BEFORE: Justice A.P. Ramsay
COUNSEL: Jahan Safee-Basir Jeffrey Mitchell, for the defendant Wernham Neil Searles, for the defendant Ararat Trading and Alghiril Ben Salsberg, for the Estate of Harvey Consky and Consky Professional Corporation Andrea Harper, for the Public Guardian and Trustee
HEARD: November 29, 2022
ENDORSEMENT
1.
Background
These matters are being case managed by me.
The plaintiff’s lawyer of record, Harvey Consky, passed away in 2020. He was the owner of Consky Professional Corporation (collectively “the Consky firm”). Counsel for the Consky firm brought a motion to remove the firm as lawyers of record for the plaintiff and obtain a charging order. The motion was adjourned because the adverse parties raised a question of whether the plaintiff, Jahan Safee-Basir (“Mr. Safee-Basir”), lacks capacity. Mr. Searles indicated at a prior case management conference that Mr. Safee-Basir’s lack of capacity was raised by the late Mr. Consky himself, which resulted in a further discovery of the plaintiff as well as a defence medical assessment being postponed. There are conflicting reports by occupational therapists regarding the plaintiff’s capacity.
Mr. Safee-Basir participated at the case management conference.
The Public Guardian and Trustee (“PGT”) became involved in the litigation at the request of the court, and has now provided a letter dated November 24, 2022, and an accompanying helpful Statement of Law, to address the question of the removal of the Consky firm as lawyers of record for Mr. Safee-Basir.
The Legal Framework
There is no specific framework in place under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for a motion to appoint a litigation guardian where a party’s incapacity arises during the course of the litigation. The capacity of a litigant, in the context of a civil proceeding, must be assessed in respect of an issue in the proceeding and is ultimately a legal question. There is some suspicion that Mr. Safee-Basir is a person under a disability, as defined by r. 1.03.
Section 2 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 presumes that a person is capable. A person is under a “disability” under r. 1.03 if he or she is “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 capacity inquiry relevant for the determination of whether someone is under a “disability” for the purposes of the Rules is specifically with reference to “an issue in the proceeding”: 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, 116 O.R. (3d) 202, at para. 21, Huang v. Braga, 2016 ONSC 6306, at para. 18.
In Kagan, Shastri, at para. 41, Stinson J. held that a court does have jurisdiction under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to compel a party to “undergo a mental examination for the purposes of providing evidence to decide whether the party is a person under a disability for whom a litigation guardian is required” for the purposes of a r. 7 motion. In Chung v. Dale, 2018 ONSC 1820, J. Wilson J. ordered a capacity assessment on the court’s initiative under rr. 52.03 (1) and (3) and s. 105(2) of the Courts of Justice Act.
In Huang, at para. 19, Archibald J. sets out several factors to be considered when determining whether a party is under a disability and requires a litigation guardian.
However, in this case, if Mr. Safee-Basir does lack capacity, a motion may not be necessary as there are family members who may agree to act as a litigation guardian. However, it would seem to me that this would require the agreement of Mr. Safee-Basir. Pursuant to subrule 7.01(1), a party under a disability must be represented by a litigation guardian.
In turn, a litigation guardian must be represented by a lawyer pursuant to r. 15.01(1) of the Rules, which provides that: “A party to a proceeding who is under a disability or acts in a representative capacity shall be represented by a lawyer.” In this case, the PGT suggests that the Consky firm is responsible for ensuring that a party under disability is represented by a litigation guardian.
The court must appoint the PGT or the Office of the Children’s Lawyer to act as the litigation guardian for the person under a disability if no other proper person is willing and able to do so (rule 7.04(1)). Mr. Safee-Basir indicates that he is currently residing with his mother, Susan Rezvani. From the information disclosed by Mr. Salsberg, Mr. Safee-Basir may have a brother living in Ontario.
The procedural safeguards set out in r. 7 are not simply a matter of convenience to any party. They are in place to protect not only a person under a disability, but also to safeguard the integrity of the judicial process for all participants in the litigation, including the adverse party and the court. As noted by Lofchik J. in Lico v. Griffiths, 2008 CanLII 11047 (Ont. S.C.), at para. 24, because the rules protect the person under a disability, they consequently protect the entire court procedure.
Next Steps
There are therefore many questions raised by the case management conference about the process and next steps. The parties are expected to consult, in advance, and have a framework in place for proceeding against this backdrop. The questions to be answered are as follows:
i. Is Mr. Safee-Basir a person under a disability as defined in Rule 1.03 and does he require a Litigation Guardian, pursuant to Rule 7.01(1).
ii. Is a capacity assessment required to determine the threshold question in paragraph (i), and, if so, will Mr. Safee-Basir consent to the assessment, or is a motion required, and, if so, on whose initiative?
iii. Who should carry out the assessment?
iv. Who should bear the costs of the assessment?
a) What will be the timing of the assessment?
b) What will be the timing of any motion to determine if a Litigation Guardian is required?
c) What other evidence may be required on the motion (aside from medical evidence)?
It would be helpful if Mr. Safee-Basir’s mother were to participate at the next case management conference.
Ms. Harper has agreed to ensure that Mr. Safee-Basir receives a copy of this endorsement.
A resumption of the case conference is scheduled for January 4, 2023, at 9:15 a.m.
A.P. Ramsay J.
Date: December 5, 2022