COURT FILE NO.: CV 23 00700949
DATE: 20230811
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
580 Christie Street Co-Ownership Inc
Plaintiff
– and –
Miha Halik
Defendant
Jake Fine, for the Plaintiff
In person
HEARD: August 11, 2023
Papageorgiou J.
Overview
[1] The Applicant is a corporation which manages a residential building located at 580 Christie on behalf of a group of owners who each own a separate and undivided percentage interest as tenants in common in the Property (the “Corporation”).
[2] The Respondent is a self-represented litigant.
[3] There is a significant history which involves another Application as well as several motions brought by the Corporation, damage awards and costs orders made against the Respondent.
[4] The prior issues have related to the Respondent’s failure to allow the Corporation to fix a leak, conduct fire safety investigations, permit it to address infestation in the Respondent’s unit and his alleged hoarding.
[5] There have been 13 attendances before various judges in respect of these issues.
[6] The Respondent currently owes over $85,000 in respect of damage awards and costs orders.
[7] The Corporation now seeks an Order permitting it to sell the Respondent’s Co-ownership interest and requiring him to vacate his unit.
[8] This Application was issued on June 12, 2023.
[9] It had been scheduled to proceed on an urgent basis at a Civil Practice Court hearing on July 4, 2023. It was originally returnable before me on July 26, 2023.
[10] I adjourned the initial hearing date because the Respondent advised that he had not attended Civil Practice Court when the Application was scheduled because he had trouble connecting via the zoom link. By the time he did, the hearing had been scheduled. He advised that he had not had sufficient time to prepare responding materials.
[11] I provided direction in my endorsement to accommodate the Respondent including permitting him to file responding affidavit material and provide oral evidence, if necessary.
[12] These reasons are written to explain why I am again adjourning the Application scheduled to proceed before me today. I am concerned that the Respondent is a party under disability. I am ordering a capacity assessment.
The Respondent’s mental health issues
[13] The Respondent has provided a letter from his physician Dr. Ju Eun Lee dated March 24, 2023 which states that he is currently a patient of physicians who practice in the Department of Geriatric Psychiatry. It indicated that he suffers from serious psychiatric conditions including Adjustment Disorder with mixed anxiety and depressed mood, and Generalized Anxiety Disorder, with panic attacks. He also has unspecified Trauma and stressor related symptoms. It further indicated that he struggles with the current court issue and has demonstrated inability to care for and advocate for himself as a result of the mental illness. This affects his ability to function, understand and appreciate various circumstances.
[14] Based upon the timing of the various motions and hearings which have predated this letter, I am the only judge who has had the benefit of this letter from the Respondent’s treating physician.
[15] Because of this letter I have significant concerns that the Respondent is a party under disability as defined in ss. 1.03 of the Rules of Civil Procedure who then must have a litigation guardian in accordance with r. 7.
The Law
[16] I adopt the law as set out in Wilson J.’s endorsement in Chung v. Dale, 2018 ONSC 1820 with respect to rr. 1 and 7 as follows:
[18] ….litigation guardians are appointed to protect not only the person under disability, but also to protect opposing parties and the integrity of the court process.
[19]… I have jurisdiction to make an order for the assessment of the plaintiff’s capacity to conduct this proceeding pursuant the court’s inherent jurisdiction to control the court process in the interests of justice for all. The order in this case is made with my recommendation, but with the consent of all parties.
[20] Further it appears that there is jurisdiction under Rule 52.03 (1) and (3) of the Rules of Civil Procedure, R.R.O., Reg. 194, and Section 105(2) of the Courts of Justice Act, R.S.O. 1990, c C. 43. Rule 52.03(1) confirms that a judge “may, at any time, appoint one or more independent experts to inquire into and report on any question fact relevant to an issue in the action.” The capacity of a party to conduct a proceeding surely meets this test. Further, Rule 52.03(3) confirms that a judge shall provide instructions to the expert including on motion an order for the physical or mental examination of a party pursuant to section 105 of the Courts of Justice Act.
[17] Pursuant to rr. 1.03(1) and 7 a party is under a disability if they are determined to be incapable in accordance with ss. 6 or 45 of the Substitutes Decisions Act, 1992, S.O. 1992 (“SDA”) which provide as follows:
A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[18] As also set out by Wilson J. in Chung v. Dale at para 24, the test for whether a litigation guardian is required is as follows:
a. Is the person mentally incapable with respect to an issue in the case; and
b. Is a result, does the person need legal representation to be appointed by the Court?:
[19] At para 29 of Chung v. Dale, Wilson J. set out the following principles which should be applied in assessing whether a person is mentally incapable and under a disability:
The cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury, and not from other non-legal capacity related factors such as lack of sophistication, education or cultural differences;
The issue of capacity is not a simple medical diagnosis and is issue specific, but there must be some medical evidence to support a finding of incapacity.
The source of information to determine capacity include:
i. Medical or psychological evidence as to capacity;
ii. Evidence from persons who know the litigant well;
iii. The appearance and demeanour of the litigant;
iv. The testimony of the litigant; and,
v. The opinion of the litigant's own counsel.
Capacity is also time specific. One's incapacity to manage litigation at one time does not necessarily mean incapacity to manage litigation at a different time.
The capacity of a litigant must be assessed in respect of an issue in the proceeding.
A person with a disability is one who does not understand information that is relevant in making a decision in the management of his or her property as it relates to an issue in the proceeding or is not able to appreciate the reasonably pursuable consequences of a decision or lack of decision in respect of an issue in the proceeding.
The conduct of a lawsuit does not involve a single issue. To amplify the principle of understanding “an issue in a proceeding” I adopt the list compiled by Archibald, J. in his synthesis of the caselaw as helpful in defining the issues to be considered to determine capacity:
(a) A person's ability to know or understand the minimum choices or decisions required and to make them;
(b) An appreciation of the consequences and effects of his or her choices or decisions;
(c) An appreciation of the nature of the proceedings;
(d) A person's inability to choose and keep counsel;
(e) A person's inability to represent him or herself;
(f) A person's inability to distinguish between relevant and irrelevant issues; and,
(g) A person's mistaken beliefs regarding the law or court procedures.6
[20] Counsel for the Applicant candidly advised me that there was nothing urgent about this Application apart from the fact that the Corporation is owed $85,000 and that the other unit owners have been forced to subsidize the Corporation’s actions with respect to the Respondent.
[21] In my view, this does not speak to urgency. If the Corporation is ultimately successful, there is a significant asset, the Respondent’s unit, which will be sold so that the Corporation and other unit owners can recoup any amounts expended. Counsel advised that a similar unit has a value of approximately $450,000 to $500,000.
[22] The Corporation also argued that the Respondent had attended court on numerous occasions and never raised the issue of capacity. As set out above, capacity is time specific.
Conclusion
[23] I am directing that a certified capacity assessor conduct an assessment to determine whether the Respondent is a party under a disability.
[24] Since the Respondent has a treating physician, I am directing that the Respondent provide a copy of this endorsement to his treating physician on August 15, 2023, which is the date for his next appointment, and request that his treating physician arrange the capacity assessment with a certified capacity assessor on an urgent basis.
[25] I am also directing that the Applicant forward a copy of this endorsement to the Public Guardian and Trustee.
[26] I am seized of this matter and I will ensure that this matter proceeds in a timely manner.
[27] I am scheduling a case conference for September 5, 2023 before me at 9:00 in person to obtain a status update.
Papageorgiou
Released: August 11, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
580 Christie Street Co-Ownership Inc
Plaintiff
– and –
Miha Halik
Defendant
REASONS FOR JUDGMENT
Papageorgiou J.
Released: August 11, 2023