Court File and Parties

COURT FILE NO.: CV-16-69137 DATE: 2023/08/15

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: PAUL-ROBERT HIPKISS, CHRISTOPHER HIPKISS and JONATHAN HIPKISS by their litigation guardian SYRMO YEROU-HUNTER, SYRMO YEROU-HUNTER and TIMOTHY HIPKISS, Plaintiffs

and

GAETAN COMEAU and MARC COMEAU, Defendants

BEFORE: Justice H. Williams

COUNSEL: Michael R. Switzer, counsel for the Plaintiffs Jessica Grant, counsel for the Defendants Kevin Temple, counsel for TD Insurance

HEARD: June 30, 2023 in Ottawa

ENDORSEMENT

Overview

[1] The motion before me was to enforce two settlements.

[2] I adjourned the motion because I had concerns about the plaintiff Paul-Robert Hipkiss’s capacity to make decisions about property that are in his best interests. I also question Mr. Hipkiss’s capacity to represent himself. As I will explain below, although Mr. Hipkiss has a lawyer of record, he was unrepresented at the hearing.

[3] There is also an issue about whether the court has jurisdiction over the settlement of Mr Hipkiss’s claim for accident benefits.

Factual Background

[4] Mr. Hipkiss was catastrophically injured in an October 29, 2014 motor vehicle accident.

[5] This action was started in 2016. Mr. Hipkiss’s stepmother, Syrmo Yerou-Hunter, was Mr. Hipkiss’s litigation guardian when the action was started. Ms. Yerou-Hunter and Mr. Hipkiss’s three sons were plaintiffs under the Family Law Act, R.S.O. 1990, c.F.3, as am. Ms. Yerou-Hunter was also the litigation guardian for two of the sons, who were under 18 years old when the statement of claim was issued.

[6] The action was scheduled to be tried beginning March 15, 2021. It was settled on March 12, 2021, along with Mr. Hipkiss’s accident benefits claim.

[7] The action and the accident benefits claim were each settled for $1 million, for a total of $2 million.

[8] The settlement provided for each of Mr. Hipkiss’s three sons to receive $10,000.

[9] The plaintiffs’ counsel, Mikolaj Grodzki of Quinn Thiele Mineault Grodzki LLP (“QTMG LLP”), appeared before me on March 15, 2021 with Toronto lawyer Todd McCarthy, who was described as Mr. Hipkiss’s trial counsel, and Joseph Griffiths, who, at the time, represented the defendants in Mr. Hipkiss’s action.

[10] Mr. McCarthy explained that there had been what he described as a “global” settlement, in that Mr. Hipkiss’s tort action and claim for accident benefits had both been settled. Mr. McCarthy said that although the same insurer would be funding both settlements, the lawyer for the accident benefits claim was not present because that claim was not at issue. Mr. McCarthy explained that the only item that required court approval was the $10,000 settlement on behalf of Mr. Hipkiss’s son, Jonathan, in the tort action, because Jonathan was under 18 years old.

[11] Mr. McCarthy said that an order to continue was required for Mr. Hipkiss because a capacity assessment had concluded that he had the capacity to manage property, and a litigation guardian was therefore no longer required. Mr. Grodzki provided me with a copy of an April 20, 2019 capacity assessment of Dr. Francine Sarazin in which Dr. Sarazin concluded that Mr. Hipkiss was capable of instructing counsel and managing property and said that she did “not foresee any concerns regarding his capacity to manage future settlement disbursement.” Mr. McCarthy said an order to continue was also required for one of Mr. Hipkiss’s sons who had turned 18 since the statement of claim was issued. Mr. McCarthy said that because one of the defendants had died, it would also be necessary to amend the statement of claim to name the deceased’s estate as a defendant.

[12] I read Dr. Sarazin’s capacity assessment and requested some further documentation from Mr. Grodzki relating to the settlement on behalf of Jonathan.

[13] On March 22, 2021, I signed an order approving the settlement on behalf of Jonathan, amending the statement of claim to name the estate of the deceased defendant as a party and removing the litigation guardian for the son who had turned 18 and, significantly, also for Mr. Hipkiss. The order directed the plaintiffs to execute releases and assignments, if any, in a form satisfactory to the defendants.

[14] More than one year later, in April 2022, lawyer Marc-Nicolas Quinn of QTMG LLP wrote to the trial coordinator, enclosing a draft notice of motion and requesting an appointment with me. The motion was for an order to enforce the terms of the two March 2021 settlements. The notice of motion said “the plaintiff” would make a motion. Which of the five plaintiffs would be making the motion was not specified. The grounds for the motion were that Mr. Hipkiss and his litigation guardian, Ms. Yerou-Hunter, had refused to sign releases required by the defendants and the accident benefits insurer. According to the notice of motion, Mr. Hipkiss had been served with an application in family court by his former wife, who was seeking retroactive child support. The notice of motion said that Mr. Hipkiss was refusing to finalize his settlements because he wanted to prevent his former wife from accessing the settlement funds. The notice of motion said that Ms. Yerou-Hunter was refusing to sign a release because she “feared reprisal” if she did so, presumably from Mr. Hipkiss.

[15] I instructed the trial coordinator to write to Mr. Quinn to say that it appeared to me that his law firm was proposing to bring a motion to seek relief against its own clients.

[16] On June 29, 2022, lawyer Michael Switzer wrote to the trial coordinator to say that he had been retained “as counsel to QTMG LLP” in connection with the enforcement of a settlement. Mr. Switzer requested a motion date. Mr. Switzer provided the trial coordinator with a notice of motion. This notice of motion identified the moving parties as Mr. Hipkiss’s three sons, Christopher, Jonathan, and Timothy Hipkiss. Mr. Switzer’s firm was now identified as being “lawyers for the plaintiff.” Otherwise, the notice of motion was virtually identical to the one Mr. Quinn had sent to the trial coordinator in April.

[17] The motion was eventually scheduled for June 30, 2023.

The June 30, 2023 Hearing

[18] Mr. Hipkiss, Mr. Switzer, Mr. Quinn, the defendants’ new counsel, Jessica Grant, and counsel for Mr. Hipkiss’s accident benefits insurer, Kevin Temple, attended the June 30, 2023 hearing.

[19] Ms. Grant and Mr. Temple said they were taking no position on the motion, although Mr. Temple later raised some important issues, to which I will refer below.

[20] Mr. Switzer said he represented Jonathan, Timothy, and Christopher Hipkiss, who were unable to access their share of Mr. Hipkiss’s tort settlement because Mr. Hipkiss was refusing to sign the release required to finalize the settlement. Mr. Switzer said he had been retained to act on behalf of the three sons because of the conflict between QTMG LLP and Mr. Hipkiss. Mr. Switzer said he did not represent the former litigation guardian, Ms. Yerou-Hunter. Mr. Switzer said that Ms. Yerou-Hunter was not seeking any funds from the settlements and did not wish to have any further involvement in the litigation.

[21] Mr. Switzer said that Mr. Quinn was present because QTMG LLP had an interest in the outcome. [1]

[22] Mr. Quinn said his firm no longer represents any of the plaintiffs. The firm had not, however, obtained an order removing itself from the record. Mr. Quinn said that Mr. Hipkiss had been made aware that he had a right to retain counsel but had chosen not to do so.

[1] It appears that Mr. Quinn’s firm has a not insignificant interest in the outcome. In one of his affidavits, QTMG LLP partner Michael Thiele said that Mr. Hipkiss’s net recovery from the settlement funds of $2 million would be $1.4 million, after payment of the claims of the Family Law Act claimants (which totalled $30,000) and legal fees, disbursements and HST. I take from this that QTMG LLP is anticipating fees and disbursements of $570,000.

[23] I expressed concern that Mr. Hipkiss was in court with a lawyer of record but with no one to represent his interests. Mr. Hipkiss smiled and said, “Mr. Quinn, you’re my lawyer today.” Mr. Quinn did not reply. Mr. Quinn was obviously in no position to act as Mr. Hipkiss’s lawyer.

[24] Before the hearing began, based on my review of the moving parties’ motion record, I already had concerns about whether Mr. Hipkiss was making decisions that were in his best interests. Dr. Sarazin’s 2019 capacity assessment said that Mr. Hipkiss was supporting himself with “limited ODSP income.” Dr. Sarazin also said that Mr. Hipkiss had been taking advantage of treatments available to him through his accident benefits. While recognizing that capable adults have the right to make decisions that are not in their best interests, that a person with Mr. Hipkiss’s limited financial means would refuse to sign releases that would unlock settlement proceeds of $2 million, raised a red flag for me.

[25] I asked Mr. Hipkiss several questions. Mr. Hipkiss explained that he believes that the settlement and the releases are unconstitutional. He said the releases represent an unlawful restriction on his freedom of speech because they would preclude him from starting further legal actions. Mr. Hipkiss said this was the only reason he was refusing to sign the releases; he did not suggest that he wanted to prevent his former wife from accessing his settlement funds. When I asked Mr. Hipkiss whether he appreciated that by not signing the releases, he was denying himself a significant amount of money, he replied that there is always a cost for freedom.

[26] In response to some other questions, Mr. Hipkiss replied by saying “hurly, burly, hurly burly.”

[27] I told Mr. Hipkiss that I would like him to undergo a capacity assessment to ensure that he was able to make his own decisions about this matter. Mr. Hipkiss said, “I don’t participate in that.” When I asked whether he had not participated in a capacity assessment with Dr. Sarazin in 2019, he said he had not. He said he had been there, but that he had just given the assessor the simplistic answers she was looking for. Mr. Hipkiss said he would not participate in a private sector assessment; he said the only time he had fully participated was with the public sector when he was in hospital.

[28] Asked whether he understood the nature of the relief the moving parties were seeking on the motion, Mr. Hipkiss said they were trying to force him to relinquish his fundamental human right of free speech. He added that fundamental human rights are not about money.

[29] Mr. Hipkiss said that if I ordered him to undergo a capacity assessment, he would respect my order by attending, but that he would say nothing.

[30] I asked Mr. Hipkiss if he would like to have legal advice. He said that he would appreciate having legal advice, but that Legal Aid has been unwilling to assist him.

[31] The lawyer for the accident benefits insurer, Mr. Temple, then said that, although the motion was to be adjourned, it would nonetheless be helpful if I were to make a decision about whether the court has jurisdiction over the accident benefits settlement. Mr. Temple said that, because of the stalemate over whether Mr. Hipkiss’s accident benefits claim had been settled, Mr. Hipkiss’s file has effectively been in limbo, and Mr. Hipkiss has not been receiving the on-going accident benefits to which he otherwise would have been entitled. Mr. Temple said his client is concerned about this and would like to rectify the situation.

[32] As I understand the situation, Mr. Hipkiss, who was catastrophically injured in the 2014 accident, has not had access to accident benefits, or, presumably, to the treatments funded by these benefits, since his accident benefits claim was settled more than two years ago. This is extremely worrisome.

Adjournment and next steps

[33] This motion concerns me for several reasons, but primarily because I have questions about Mr. Hipkiss’s mental capacity and because it is evident that Mr. Hipkiss has not had anyone advocating for him for some time.

[34] Although the motion was brought the names of Mr. Hipkiss’s three sons, it is not lost on me that in his first communication with trial coordination about this matter, Mr. Switzer said that he had been retained as counsel to QTMG LLP, or that it was QTMG LLP that had initially contacted trial coordination about a motion to enforce Mr. Hipkiss’s settlements.

[35] Without deciding the issue, I question whether co-plaintiffs such as Mr. Hipkiss’s three sons are even in a position to enforce a settlement against a co-plaintiff; the more typical scenarios would see a plaintiff enforcing a settlement against a defendant or a defendant against a plaintiff.

[36] I also do not see how Mr. Hipkiss’s sons would have any standing to enforce the settlement of Mr. Hipkiss’s accident benefits claim, quite apart from the issue of whether this court has jurisdiction over the claim.

[37] Regardless, it is evident that Mr. Hipkiss’s sons and QTMG LLP all want Mr. Hipkiss to finalize the settlements and Mr. Hipkiss does not wish to do so.

[38] Mr. Hipkiss was very much on his own at the June 30, 2023 hearing. He does not have a litigation guardian. He not only does not have legal representation but the law firm that had been representing him is now supporting a motion that Mr. Hipkiss feels is contrary to his interests.

[39] Mr. Hipkiss does not have a litigation guardian because I removed his litigation guardian in my order of March 22, 2021. I am now questioning whether I should have done so. Facts that were not available to me on March 22, 2021 have now come to my attention:

• As I have already mentioned, Mr. Hipkiss, who is living on a disability pension, is prepared to forego a significant amount of money because of his belief that the settlements and the associated releases are unconstitutional.
• The day Mr. Hipkiss agreed to accept the settlements, Mr. Hipkiss’s counsel, Mr. Grodzki, had sent Mr. Hipkiss a text message that said: “You would control your funds. This could only change if you were declared incompetent.” I infer that Mr. Grodzki believed at the time that there was a reason to warn Mr. Hipkiss about what might happen if he were declared incompetent; this is not exactly a boilerplate warning.
• The evidence on the motion included two affidavits from lawyer Michael Thiele of QTMG LLP. These affidavits contain a great deal of information I would characterize as confidential. I will refer to the contents of Mr. Thiele’s affidavits only briefly: Mr. Thiele said he believes that Mr. Hipkiss, although difficult and a contrarian, is capable within the meaning of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Thiele acknowledged that Mr. Hipkiss’s judgment may appear to be impaired. Mr. Thiele said that although he believes that Mr. Hipkiss has capacity, he supports the moving parties’ motion because he believes the requested relief is in Mr Hipkiss’s best interests. This tells me that despite Mr. Thiele’s insistence that Mr. Hipkiss has capacity, Mr. Thiele, who says he knows Mr. Hipkiss well, obviously believes that by not finalizing the settlements, Mr. Hipkiss is not acting in his own best interests.
• On March 11, 2021, Ms. Yerou-Hunter, identifying herself as Mr. Hipkiss’s litigation guardian, signed a consent approving the two settlements on Mr. Hipkiss’s behalf. Ms. Yerou-Hunter also signed a document confirming her approval of Mr. Hipkiss’s son Jonathan’s $10,000 settlement and Mr. Hipkiss’s son Christopher’s $10,000 settlement. In respect of Christopher’s settlement, Ms. Yerou-Hunter noted that she was his litigation guardian, “[h]owever, he is now 21 years old.” There was no “however” on the consent relating to Mr. Hipkiss’s settlement. What I mean is that the consent Ms. Yerou-Hunter signed in her capacity as Mr. Hipkiss’s litigation guardian did not include the words “however, he is now capable” or make any reference to Mr. Hipkiss no longer requiring a litigation guardian. I am not suggesting that this consent was hidden from me in 2021, only that I am now seeing it through a different lens.

[40] The effect of my March 22, 2021 order dispensing with Mr. Hipkiss’s litigation guardian was that the settlement of the tort action, any QTMG LLP contingency fee agreements and the law firm’s fee accounts would not require court approval. The settlement funds could also be paid directly to Mr. Hipkiss, who would not require a guardian for property. Another now very apparent effect was that no funds would flow to anyone unless Mr. Hipkiss signed a release.

[41] The courts must be extremely hesitant to deprive anyone of any of their rights. I am certainly hesitant to do so. However, based on what I have read and heard, I have concerns about whether Mr. Hipkiss is capable of making decisions in respect of the merits of the settlements, whether it is in his best interests to finalize the settlements, whether the fee arrangements with his lawyers are fair and reasonable and management of the settlement funds if the settlements are finalized.

[42] Mr. Hipkiss may need a litigation guardian. He certainly needs an advocate.

[43] In these unusual circumstances, I contemplated taking the unusual step of setting aside para. 5 of my March 22, 2021 order, which is the paragraph which granted Mr. Hipkiss leave to continue the action personally. I would do this under Rules 1.05. and 59.06 and in reliance on the court’s jurisdiction to vary or withdraw an order if it is in the interests of justice to do so and on the basis that facts relevant to the order have come to my attention since I made the order.

[44] However, if I were to set aside para. 5 of my March 22, 2021 order, Ms. Yerou-Hunter would be reinstated as Mr. Hipkiss’s litigation guardian. The evidence on the motion suggests that Ms. Yerou-Hunter should not have that responsibility and that she does not want it: There was evidence that Ms. Yerou-Hunter feared reprisals from Mr. Hipkiss and that she did not want to do anything that might alienate him. Alternative arrangements would need to be made. I do not know whether there are any other suitable candidates to act as Mr. Hipkiss’s litigation guardian: Mr. Hipkiss’s sons’ interests are obviously opposed to Mr. Hipkiss’s interests at this time.

[45] More fundamentally, while I am concerned that Mr. Hipkiss may be incapable within the meaning of s. 6 of the Substitute Decisions Act, I am not aware of a current medical or expert opinion to this effect and, in fact, the opinion of which I am aware, that of Dr. Sarazin in 2019, came to the opposite conclusion. I have already noted that Mr. Hipkiss says that if I order him to undergo a capacity assessment, he would attend but would not participate.

[46] For these reasons, I do not believe that I have the authority to appoint the Public Guardian and Trustee to act as Mr. Hipkiss’s litigation guardian under Rule 7.04(1) at this time.

[47] I do believe, however, that this situation engages s. 27(2) of the Substitute Decisions Act, which provides that the Public Guardian and Trustee shall investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur as a result. If, as a result of its investigation, the Public Guardian and Trustee has reasonable grounds to believe that a person is incapable of managing property, and the prompt appointment of a temporary guardian of property is required to prevent serious adverse effects, the Public Guardian and Trustee is to apply to the court for an order appointing the Public Guardian and Trustee as temporary guardian of property.

[48] A summary of the reasons for my concern that Mr. Hipkiss may be incapable of managing property and that serious adverse effects are occurring or may occur follows:

• Mr. Hipkiss is living on a disability pension.
• Mr. Hipkiss has not received the proceeds of two $1 million settlements because he is refusing to sign releases and a settlement disclosure notice on the basis that they are unconstitutional.
• The settlements were negotiated in March 2021, more than two years ago.
• Mr. Hipkiss is not receiving on-going accident benefits because his accident benefits claim was settled, subject to him signing a release and the settlement disclosure notice, which he has not signed.
• The relationship between Mr. Hipkiss and the law firm which represented him in respect of the two settlements has broken down. It appears that the law firm has a significant interest in both settlements. Court approval of any contingency fee agreements and fee accounts is not currently required, because Mr. Hipkiss is not considered to be a party under a disability.
• Mr. Hipkiss has no litigation guardian and no one to advocate for him.

[49] It appears from Mr. Temple’s submissions that Mr. Hipkiss’s accident benefits insurer is concerned that it has not been paying Mr. Hipkiss but requires a mechanism for doing so in light of the tentative settlement.

[50] Despite Mr. Temple’s request that I decide the issue of jurisdiction over the accident benefits settlement, I will defer this decision until after the Public Guardian and Trustee has taken a position in respect of this matter.

[51] I expect no steps to be taken that would affect Mr. Hipkiss’s interests until the issue of whether he requires a temporary guardian or a guardian has been made or until I have made a further order.

Disposition

[52] In conclusion, I make the following orders:

1. The motion is adjourned.
2. QTMG LLP shall bring a motion, forthwith, to remove itself as lawyers of record for Mr. Hipkiss.
3. A copy of this endorsement shall be forwarded to the Public Guardian and Trustee immediately. I assign Mr. Temple to ensure that this is done.
4. The moving parties’ counsel shall request, through the Ottawa trial coordinator, a 45-minute case conference after September 15, 2023 for a status check. A representative of the Public Guardian and Trustee shall attend this conference.

[53] I will remain seized of this matter.

[54] Costs of the June 30, 2023 appearance are reserved.

Justice H. Williams Date: August 15, 2023

COURT FILE NO.: CV-16-69137 DATE: 2023/08/15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: PAUL-ROBERT HIPKISS, CHRISTOPHER HIPKISS and JONATHAN HIPKISS by their litigation guardian SYRMO YEROU-HUNTER, SYRMO YEROU-HUNTER and TIMOTHY HIPKISS, Plaintiffs

and

GAETAN COMEAU and MARC COMEAU, Defendants

COUNSEL: Michael R. Switzer, counsel for the Plaintiffs Jessica Grant, counsel for the Defendants Kevin Temple, counsel for TD Insurance

HEARD: June 30, 2023 in Ottawa

ENDORSEMENT

Justice H. Williams Released: August 15, 2023