Court File and Parties

Court File No.: CV-18-610716 Motion Heard: 2023-08-31 Superior Court of Justice - Ontario

Re: Thushyandhan Karuppannan, Plaintiff And: Accenture Inc. and The Manufacturers Life Insurance Company carrying on business as Manulife Financial, Defendants

Before: Associate Justice Jolley

Counsel: Elaine Yakau, counsel for the moving party defendant Manulife Financial Melanie McNaught, counsel for the defendant Accenture Inc. Thushyandhan Karuppannan, self-represented responding plaintiff Melanie Neill, counsel for the non-party Office of the Public Guardian and Trustee

Heard: 31 August 2023

Reasons for Decision

[1] The defendant Manulife Financial, supported by the defendant Accenture, seeks an order declaring the plaintiff a person under disability for the purpose of this action and appointing the Office of the Public Guardian and Trustee (“PGT”) as litigation guardian.

[2] PGT advises that if the court finds on the evidence that the plaintiff is a person under disability and there is no other appropriate litigation guardian, it will consent to the appointment.

[3] The plaintiff is presently self-represented. He attended to oppose the motion. He delivered upwards of 4,000 pages of documents to the defendants half an hour before the start of the motion, but did not file any of that responding material with the court or upload it to Caselines.

[4] He argues that, while he may suffer from a disability, he does not suffer from a mental disability and he is capable of understanding and managing the litigation.

[5] The plaintiff ceased attending at work at Accenture in February 2018 and applied for short term disability benefits. The short term disability plan was established and self-funded by Accenture, but the claims process was managed by Manulife. Manulife itself provides Accenture’s eligible employees with long term disability benefits. Manulife reviewed the plaintiff’s application for short term disability benefits and recommended that it be denied and Accenture did so. The plaintiff then applied to Manulife for long term disability benefits and Manulife denied that claim in December 2018. He then started this action in December 2018 and has been self-represented since December 2020.

[6] Based on his statements concerning his capacity, certain positions he has taken in the litigation and allegations he has made concerning the parties, the defendants are of the view that the plaintiff is mentally incapable in respect of an issue in the proceeding, as disability is defined in rule 1.03, and that he requires the appointment of the PGT as litigation guardian to protect his interests.

The Test

[7] In order to appoint a litigation guardian for a party, the court must be satisfied that the party appears to be mentally incapable with respect to an issue in the case and that, as a result of being mentally incapable, the person requires legal representation to be appointed by the court.

[8] The court may consider a number of factors including:

(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. (see Huang v Braga 2016 ONSC 6306 at paragraph 19).

[9] The plaintiff acknowledged that he had mental health challenges and was hospitalized for them in June 2019. However, he stated to the court that he has not suffered from any mental health disability since then. This assertion is belied by both his medical records and by the plaintiff’s own statements, contained in the motion materials, acknowledged by the plaintiff to be written by him after 2019.

The plaintiff’s medical records concerning his mental health

[10] The medical records indicate the plaintiff was hospitalized a second time in 2019 on the basis of his mental health, having suicidal thoughts. Then, in May 2020 the police brought the plaintiff to Scarborough and Rouge Hospital, where he was admitted on a Form 1 after threatening to harm himself, having no motivation for self-care and notably suffering from PTSD and depression.

The plaintiff’s own statements concerning his mental health

[11] In a series of letters he sent to the defendants at various times throughout 2020, 2021 and 2022, the plaintiff has made a number of statements concerning his own capacity, the more pertinent parts of which I have italicized:

(a) “IMPORTANT NOTE: - As a person with a mental and physical disability, I am claiming, enforcing, and asserting my rights under the Human Rights Code, Employment Standard Act (ESA), Occupational Health and Safety Act (OHSA), Canadian Charter of Rights and Freedoms, AOHS (Quebec), Act respecting labour standards, CNESST, Quebec's Charter of human rights and freedoms.”;

(b) "my medical condition (mental and physical disabilities) has made it impossible or extremely difficult for me to make any meaningful decisions to completely understand Manulife's and Accenture's letters, offers, mail, emails, courier, benefit calculations and cheques”;

(c) “I did not understand the defendants' letters, cheques, offers, mail, emails, couriers, calculations, terms and conditions, nature, significance, consequences, as well as its full meaning and effects”;

(d) “I am unable to fully understand Manulife's and Accenture's letters, cheques, offer, mail, emails, courier, benefit calculations, terms and conditions, nature, significance, and consequences, as well as its full meaning and effects (that is relevant to making a decision and am unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision)";

(e) “I am not in sound mind, incapable of understanding of what was being done, and while Accenture and Manulife Financial has the knowledge of my disability, fragility and unsound mind";

(f) “I was not in a sound mind and unable to understand information that is relevant to making a decision or unable to appreciate the reasonably foreseeable consequences of a decision.”;

(g) “Defendants are exploiting and abusing my vulnerable medical condition, financial situation, and unsound mind as a result of inequality of bargaining power, defendant's unconscientious use of its position of power while I have difficulty to understand and process the information, advice, and the options presented to me;”

(g) In June 2020 he described himself to the defendants as having “mental health disabilities” and being a “mentally disabled employee”;

(h) “My medical condition, disability and illness, and injury have made it impossible for me to make meaningful decisions to fully understand the Accenture Inc's "Offer to Settle, agreement, contract and release and its implications and consequences because none of these documents was (or have been) delivered to me (verbally or in writing) until today (14 February 2021); and

(i) “My medical condition, impairment, mental and physical disabilities have made it impossible for me to make meaningful decisions to fully understand the changes and its nature, significance, implications, consequences and its full meaning and effects. At all times, the terms and conditions of Accenture Inc has been uncertain, incomplete, vague, unclear, ambiguous, not fixed, and it's not understandable.”.

[12] The plaintiff has self-described as someone with a mental disability and unsound mind, who is unable to understand the legal documents he is presented, unable to understand the decisions he is asked to make and unable to make those decisions as a result. This description is borne out by the decisions he has made or failed to make about this litigation, as set out below.

The plaintiff’s statements concerning the defendants and third parties

[13] In addition to his comments concerning his own lack of decision-making ability, the plaintiff has repeatedly stated that the defendants and their lawyers are colluding and conspiring with each other and with his three former lawyers. He also believes that the defendants are interfering with his banking arrangements to ensure that he cannot retain counsel. He advised the court in this hearing that his CPP payment had recently been deposited into his bank account and then had disappeared, as a result of the defendants influencing his banks.

[14] The plaintiff also alleges that the defendants have deliberately hidden documents from the court. This view may stem, in part, from his failure to appreciate the concept of relevance and the obligation on parties to produce only relevant documents to the court. This seems supported by his delivery of over 4,000 pages of documents to the defendants the morning of the motion and his multiple letters with similar, repetitive information to the defendants (for instance, the plaintiff wrote the defendants on each of August 12, 13, 14, 15, 16, 17 and 18, 2021 as well as on September 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 27 and 29, 2021).

[15] The plaintiff has also accused the defendants of falsifying his documents and tendering them to the court. I note a few examples of the plaintiff’s statements in these timeframes:

(a) … All medical records and evidence underlined below (relevant to this matter in STD and LTD lawsuit) have been deliberately hidden, ignored and not disclosed to the court at the influence and power of the defendants (Accenture Inc and Manulife) due to collusion and conspiracy between defendants (defendants lawyers) and my former legal counsels (Share lawyers, MK disability lawyers, Campisi LLP) in bad faith”;

(b) “The defendants and their lawyers deliberately hidden material documents and evidence, concealed all of my important medical records, job duties, and falsified my medical and personal information with the help of third parties, lawyers, IME doctor, consultants, insurance companies and my former legal counsels in order to mislead (deceive) the court and cause inordinate and inexcusable delays in this lawsuit. The defendants and their lawyers took advantage of my medical condition and improperly influenced my former legal counsels not to take any meaningful action (not to proceed with any court proceedings) to advance the litigation to next stages.”;

(c) “The defendants repeatedly discriminated me, violated our privacy, pressured and harassed me and my family, both physically and mentally. They held us like hostages, repeatedly blackmailed and threatened me and my family with the help of third parties (lawyers, insurance companies, IME doctors, landlord, banks, realtors, telecommunication companies etc.) and evicted us from our rental unit (causing significant financial and housing crisis). Defendant's main intention is to blackmail and threaten me until I accept their proposals, offers, release, cheques, agreements, demands and willfully cause undue delays in this lawsuit to struck off and dismiss it.”;

(d) The plaintiff titled his email of 7 September 2021 to the defendants “Subject: Court File No: CV-18-00610716-0000 - STD and LTD DECLINATION letters purposefully falsified and fabricated by MANULIFE under the influence of ACCENTURE INC as part of Organized Criminal Activities (fraudulent concealment and spoilation of ev ...)”

(e) “Further to the above-noted matter, please find enclosed a copy of STD and LTD DECLINATION letters purposefully falsified and fabricated by MANULIFE under the influence of ACCENTURE INC by engaging in an organized criminal activities of deliberately hiding, falsifying, tampering, altering and forging of my medical records/information, personal information, physician medical entries, physician diagnosis, phone call details and notes, job duties, job title, employment records, changing the MVA date, creating a fake story of two MVA, leave records, MVA details, timesheet, leave policy, STD and LTD policy, defaming employee and his spouse, hiding and tampering restrictions, limitations, impairments and other details for the purpose of misleading and deceiving the court, which is being served upon you pursuant to the Rules of Civil Procedure and/or Evidence Act. Money or other value or compensation has been paid to hide, falsify, tamper, alter and forge all of the above information and evidence relevant to this STD and LTD claim and lawsuits in bad faith. This organized crime was well-planned, calculated, deliberate, motivated malice and improper use of civil court procedures and processes that has been maliciously planned and carried out by defendants and lawyers for the purpose of misleading and deceiving the court. The legal counsels involved engaged in misconducts involving dishonesty and un-businesslike habits of another which reflects adversely on lawyers honesty, trustworthiness, fitness as lawyer, completely undermining the administration of justice, and public confidence in the rule of law and judiciary proceedings”.

The plaintiff’s litigation conduct

[16] The defendants have attempted to pay the plaintiff his owed short term and long term disability benefits but he refuses to accept the payments. He argues that “it is a trap” and they are tricking him into giving up his litigation.

[17] In advising that he would not accept the cheques, the plaintiff described the payment in his letter of 6 December 2021 as “prohibited grounds of discrimination, retaliation, abuse and exploitation of my mental and physical disabilities by Manulife Financial and Accenture Inc. Defendants (Manulife Financial and Accenture Inc.) organized crime, fraud and forgery”. He has characterized the attempted payments as being done “maliciously on purpose in bad faith as part of its organized crime, fraud and forgery in order to abuse and exploit my mental and physical disabilities: (a) With the intent and attempt to bring a Motion or Summary Hearing in Honorable Court (to enforce settlement through fraud, forgery, and organized crime), (b) To mislead and deceive the court (with intent and attempt to fraudulently obtain a release and minutes of settlement from plaintiff by way of fraud, forgery, and organized crime.)”

[18] The plaintiff has given a number of reasons for refusing the cheques, including that acceptance may be construed as severance and “by deceit, falsehood, or other fraudulent means to defraud me … because of my mental and physical disabilities contrary to the Criminal Code of Canada”.

[19] He has threated the defendants and their lawyers with complaints to “higher and government officials”, “regulatory bodies”, law enforcement, the court and the Law Society. He threatened to contact the authorities if Manulife continued to send him his long term disability cheques.

[20] Accenture has confirmed that the plaintiff remains employed by it and is presently on a leave of absence. Despite that confirmation, the plaintiff is of the view that he is being tricked into receiving “severance” and ending his employment. He alleged that the defendants were attempting to “coerce [him] to give up all of his claims against Accenture Inc. and Manulife Financial by tying his employment relationships (termination) and STD and LTD payment settlements together” and to “make his human rights complaint invalid”.

[21] Initially, Accenture’s counsel confirmed to the plaintiff that he would not have to give up any employment-related rights in order to receive the STD benefit payment and that the release they sent him would be restricted to his STD benefits claim.

[22] Upon receipt of further medical evidence and its assessment in January 2021 that the plaintiff might not be capable of entering into an enforceable agreement, Accenture decided to pay the plaintiff what it believed to be his entire entitlement to STD benefits and do so without requiring him to sign a release or to agree that the payment was in full settlement of his action against Accenture. Its letter to the plaintiff stated: “we have made the decision to pay you the full remaining value of your STD claim without requiring you to agree that it is in full settlement of your claim, or to sign a release… Your acceptance of this money will have no impact on your right to continue the lawsuit against Accenture.” Despite those clear statements, the plaintiff continued in at least thirty instances in one responding letter alone to refer to the payment as an offer to settle that he rejected and characterized the payment, in part, as an attempt to trick him into giving up his human rights complaint.

[23] In February 2021, Accenture wrote the plaintiff to confirm that it acknowledged that the plaintiff had not accepted its offer and that it agreed there was no settlement but was making the payment nonetheless, and with no requirement for a release. Upon receipt of this confirmation, the plaintiff attended at Accenture’s office and physically returned the cheque.

[24] The plaintiff refused to accept the short term disability payment of $22,000 less applicable taxes and withholdings, stating that he had not settled his action with Accenture, something Accenture went to great lengths to state was not a consequence of the plaintiff accepting the payment. It reiterated that “Accenture acknowledges that you have not accepted its Offer to Settle of November 17, 2020 and agrees that there has been no settlement.” While Accenture delivered the funds without any admission of liability, it confirmed that it has not and will not seek repayment. The plaintiff’s refusal to accept the funds demonstrates that he does not understand the choices offered to him or the consequences of making those litigation choices. This is particularly so where he alleges his family is suffering financial hardship.

[25] Based on the ongoing situation, Manulife also determined that the plaintiff qualified for long term disability benefits. In delivering one of the monthly long term disability cheques, Manulife stated in its letter to the plaintiff of 26 January 2022: “if you chose to accept the January 2022 monthly LTD benefit payment, you are not settling the action and the litigation is ongoing.” It has made it clear that the payment did not represent any sort of settlement, did not preclude the plaintiff from continuing this litigation and did not require him to sign a release. It has approved him for LTD benefits and will not seek repayment in future.

[26] Because of the plaintiff’s inability to understand the legal implications (or lack thereof) of accepting the cheques that are rightly his, the plaintiff has deprived himself of $22,000 gross in short term disability benefits and in excess of $170,000 in long term disability benefit payments to date. It is evident that he does not appreciate the consequences and effects of his decision, which is based on his misunderstanding of the documents presented to him and his view that the parties are colluding to rob him of his legal rights. The defendants offered to contribute up to $1,000 to permit the plaintiff to seek independent legal advice about the payments but he declined that offer.

The plaintiff is mentally incapable in respect of an issue in this proceeding

[27] Based on all the above, it is apparent that the plaintiff appears to be mentally incapable with respect to the issues in the litigation, the delivery of relevant material and the delivery of entirely without prejudice disability payments.

[28] The plaintiff has admitted that he cannot understand the decisions required of him and cannot make them. He has confirmed that he does not appreciate the consequences of his decisions. He has a history of being unable to keep counsel, which he attributes to the fact that each of his former three counsel has been co-opted by the defendants. He also has a mistaken belief about the terms of the defendants’ payments and will not accept what is clearly stated – that accepting the payments does not require a release, does not impact his right to continue his litigation and is not a way to trick him into giving up his rights. (Huang v Braga, supra and MacLeod v. Toronto Catholic District School Board, 2021 ONSC 5672 at paragraph 24)

[29] Were I not prepared to find the plaintiff to be a person under disability at this stage, the defendants proposed that the plaintiff be ordered to undergo a capacity assessment. He objects to any such order as a breach of his Charter rights. I have determined that an assessment is not the most appropriate route or, indeed, necessary.

[30] For the reasons set out above, I find the plaintiff to be a person under disability for the purposes of the rules and someone who requires legal representation to be appointed by the court. Such an appointment will benefit the plaintiff and also protect the defendants from vexatious allegations that will overtake the real issues in the litigation.

[31] This is not a finding of general incapacity of the plaintiff. It is limited to his incapacity with respect to the issues in this litigation.

The appropriate litigation guardian

[32] Having found the plaintiff to be a person under disability, rule 7.01 requires that he be represented by a litigation guardian. While the plaintiff opposes any litigation guardian being appointed, he particularly objects to the PGT. He argues that it has a conflict of interest because it will side with the defendants to his prejudice. He has suggested a list of family members who could assist him. None of them has provided any affidavit indicating he or she consents to act. Further, if the plaintiff’s representations are accurate, his wife, at least, would not be an appropriate candidate as she is said to share his views about the defendants tricking or trapping him, using the disability benefit payments as a continued form of torture of the family and misrepresenting facts to the court.

[33] On the evidence before me, there is no other proper person willing and able to act as the plaintiff’s litigation guardian. I determine that the PGT be appointed to act as litigation guardian for the plaintiff pursuant to rule 7.04(1)(b).

Other relief sought

[34] It is likely that the defendants and the PGT will be able to come to a resolution on the disposition of the funds proffered by the defendants for the benefit of the plaintiff. In the event they are unable to do so, the defendants are at liberty to renew that portion of their motion seeking directions as to the payment.

Date: 5 September 2023 Associate Justice Jolley