COURT FILE NO.: CV-18-75698
DATE: 2023/09/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALEXANDER ROBERT AURIEMMA and JOSEPH AURIEMMA
Plaintiffs
– and –
DR. NICHOLAS JOHN CRISTOVEANU
Defendant
Caroline C. Failes, for the Plaintiffs
Kathleen Lindsey, for the Public Guardian and Trustee (non-party Respondent)
No one appearing for the Defendant
HEARD: August 3, 2023 (By Videoconference)
RULING on motion
corthorn J.
Introduction
[1] In 2017, Alexander Robert Auriemma (“Mr. Auriemma”) retained Caroline C. Failes (“Ms. Failes”) of Perley-Robertson, Hill & McDougall LLP (“PRHM”) to represent him in the investigation and pursuit of a claim based in medical negligence. Following an investigation into the merits of the claim, this action was commenced. The co-plaintiff is Mr. Auriemma’s brother, Joseph.
[2] In summary, the alleged negligence of the defendant physician is the prescription of medications (opioids and benzodiazepines) for Mr. Auriemma for three to four years (2012-2015), without supervision. The action is being defended. The defendant physician is represented by Laura Stewart of Gowlings LLP.
[3] The affidavits in support of the motion describe a deterioration in the quality of the relationship between Mr. Auriemma and Ms. Failes, commencing in early 2023. Based on the nature of Mr. Auriemma’s interactions thereafter with Ms. Failes, other individuals at PRHM, Ms. Stewart, the court’s administrative office, and others, Ms. Failes formed the opinion that Mr. Auriemma is no longer capable of providing instructions for the purpose of the litigation.
[4] Ms. Failes/PRHM (“the moving parties”) bring this motion for an order appointing a litigation guardian for Mr. Auriemma. The moving parties assert there is no one available to act as a litigation guardian. The moving parties request an order appointing the Public Guardian and Trustee (“PGT”) as Mr. Auriemma’s litigation guardian.
[5] The motion was heard on August 3, 2023. The court determined that additional evidence was required to permit it to address, in addition to the request for the appointment of the PGT as Mr. Auriemma’s litigation guardian, the following matters:
a) service of documents related to the motion on Mr. Auriemma;
b) service of documents related to the motion on the defendant;
c) the discontinuance of the claim advanced by Joseph Auriemma; and
d) the sealing of documents, filed by the moving party or by Mr. Auriemma, which contain solicitor-client information.
[6] The additional materials requested were filed by the moving parties. Those materials include an affidavit from a law clerk with PRHM (“Mr. Rugna”). It is the fourth affidavit from Mr. Rugna in support of the motion.
[7] The following issues are to be determined on the motion:
Are the moving parties entitled to an order validating the method of service used for service of the motion documents on Mr. Auriemma?
Are the moving parties entitled to an order dispensing with the requirement to serve on the defendant copies of any documents other than the notice of motion (i.e., the supporting affidavits and the factum)?
Is Joseph Auriemma’s claim to be discontinued without costs?
Is a declaration to be made that Mr. Auriemma is a person under disability in regard to this matter and, as a result, it is necessary for decisions to be made on his behalf by a person who is designated to do so?
If the declaration requested under Issue No. 4 is made, is the PGT to be appointed as the litigation guardian for Mr. Auriemma?
Are any of the documents filed on this motion by the moving parties or Mr. Auriemma to be sealed (including whether sealed entirely or filed in a partially redacted form and the original document sealed)?
Issue No. 1 - Are the moving parties entitled to an order validating the substituted method of service used for service of documents on Mr. Auriemma?
[8] Three affidavits of service were filed regarding service of the materials upon which the moving parties rely in support of the motion. The affidavits of service are dated March 23, 2023 (amended motion record); June 5, 2023 (the first supplementary affidavit of Mr. Rugna); and July 27, 2023 (the second supplementary affidavit of Mr. Rugna and the factum). All the documents were served on Mr. Auriemma by email at the same email address.
[9] In his third supplementary affidavit, sworn on August 3, 2023, Mr. Rugna says Mr. Auriemma has been homeless for several months; the moving parties have been unable to physically locate him; and Mr. Auriemma regularly sends emails from and receives emails at the address to which all of the motion documents were sent by email.
[10] Validation of service is addressed in r. 16.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The court has the discretion to validate service if it is satisfied that “the document came to the notice of the person to be served”: r. 16.08(1)(a).
[11] Copies of emails sent from or to the email address upon which the moving parties rely for this issue are included as exhibits to at least one of the Rugna affidavits. In addition, in response to the motion, Mr. Auriemma filed copies of emails sent from or to that same email address. Mr. Auriemma did not file affidavit evidence, only copies of documents.
[12] Mr. Auriemma attended court on the original return date for the motion. Mr. Auriemma filed documents (although not in the form of evidence) in response to the amended motion record served in March 2023. He also filed documents subsequent to July 27, 2023 (i.e., the date on which the second supplementary affidavit and factum were sent to him by email). Mr. Auriemma’s response, over time, to the motion supports a finding that he received the motion materials sent to him at the email address on which the moving parties rely as Mr. Auriemma’s email address.
[13] I find that the documents described in the three affidavits of service came to the attention of Mr. Auriemma. The order made at the conclusion of this endorsement includes a term validating the method of service relied on by the moving parties for service of the motion documents on Mr. Auriemma.
Issue No. 2 - Are the moving parties entitled to an order dispensing with the requirement to serve on the defendant copies of any documents other than the notice of motion?
[14] The defendant was served with the notice of motion and with a document described by the moving parties as the “amended notice of motion”. The defendant has not been served with any of the affidavits or with the factum filed by the moving parties.
[15] Issue No. 6 (the request for a sealing order) requires the court to consider the sensitive nature of information in the documents filed by the moving parties in support of the motion and by Mr. Auriemma in response to the motion. The evidence in support of the motion includes affidavits, one or more of which refer to matters that address the solicitor-client relationship and to documents that are subject to solicitor-client privilege. If it were not for the concerns regarding Mr. Auriemma’s capacity, that evidence and those documents would not be disclosed to the defendant or to the court at this, or possibly any other, stage of the proceeding.
[16] The defendant did not respond to service of the notice of motion in any way and did not request that he be provided with copies of the documents filed by the moving parties in support of the motion or by Mr. Auriemma in response to it.
[17] On the return of the motion, Ms. Failes informed the court that, through her communication with the defendant’s counsel (Ms. Stewart), she confirmed that the defendant does not oppose an order being made which dispenses with the requirement to serve the supporting affidavits and factum on the defendant.
[18] The affidavit evidence in support of this motion is analogous to the type of evidence that is frequently before the court on a motion for an order for the removal of a lawyer of record. For motions of that kind, information subject to solicitor-client privilege is frequently disclosed.
[19] The procedure on a motion for an order removing a lawyer of record does not require any document other than the notice of motion be served on an opposing party: r. 15.04(1.1). That procedure also permits the redaction, from copies of documents served on an opposing party, of information that is subject to solicitor-client privilege: r. 15.04(1.2). Last, only the presiding judge sees a complete and unredacted version of documents filed; unredacted versions of documents are returned to the lawyer who seeks removal from the record: r. 15.04(1.3).
[20] I find it reasonable in the circumstances to dispense with the requirement to serve the supporting affidavits and factum on the defendant. The defendant is not prejudiced in any way; he will still have access to the court file. If a sealing order is made, the court file will include copies of the redacted versions of the supporting affidavits and other documents filed by either the moving parties or Mr. Auriemma.
Issue No. 3 - Is Joseph Auriemma’s claim to be discontinued without costs?
[21] In the Spring of 2023, Ms. Failes communicated with Ms. Stewart regarding the discontinuance of the claim on behalf of Joseph Auriemma. That communication was both in writing and by telephone. Mr. Rugna addresses that communication in his August 2023 affidavit (the third supplementary affidavit).
[22] Some of Mr. Rugna’s evidence is in the form of information and belief, although it is not specifically identified as such: see, for example, paragraph 6 of the August 2023 affidavit. Specifically, Mr. Rugna relies on information from Ms. Failes, about her telephone conversation with Ms. Stewart, as evidence of the defendant’s commitment that he is not seeking costs in response to the discontinuance of Joseph Auriemma’s claim.
[23] A copy of an April 24, 2023 letter from Ms. Stewart to Ms. Failes is Exhibit “A” to Mr. Rugna’s August 2023 affidavit. In that letter, Ms. Stewart states her client “has agreed that it will accept a notice of discontinuance … and forego the usual release in order to conclude the litigation brought by Joseph in an expeditious way.” Based on the contents of that letter, I am satisfied that the terms upon which Joseph’s claim is discontinued are not a contentious matter.
[24] I am satisfied that the defendant is not seeking costs in response to the discontinuance of Joseph’s claim. The order made at the conclusion of this endorsement includes a term pursuant to which Joseph Auriemma’s claim is discontinued without costs.
Issue No. 4 - Is a declaration to be made that Mr. Auriemma is a person under disability in regard to this matter and, as a result, it is necessary for decisions to be made on his behalf by a person who is designated to do so?
a) Mr. Auriemma’s Mental Health Challenges
[25] In 2017, Mr. Auriemma retained the moving parties to represent him in this matter. Until early 2023, Mr. Auriemma and Ms. Failes had a good working relationship. In January 2023, following an issue with his then roommate, Mr. Auriemma was hospitalized under a Mental Health Act, R.S.O. 1990, c. M.17 form. During his hospital admission, Mr. Auriemma communicated with Ms. Failes by email. The content of the emails which Mr. Auriemma sent at that time caused Ms. Failes to be concerned about his mental capacity.
[26] In the months from January through March 2023, the nature, tone, and frequency of Mr. Auriemma’s email communication with Ms. Failes caused her concern about Mr. Auriemma’s capacity to increase. Tens of pages of copies of those emails are included as exhibits to one or more of Mr. Rugna’s affidavits.
[27] It appears Mr. Auriemma continued to experience challenges with his mental health from April through June 2023. In those months, the police were called several times in response to Mr. Auriemma’s behaviour. The calls to the police were placed by a crisis centre in Cornwall, Ms. Failes, Mr. Auriemma’s mother, staff members at an addiction clinic, and staff members at the Royal Ottawa Hospital.
[28] By the spring of 2023, Ms. Failes was concerned for Mr. Auriemma’s physical well-being, in addition to Mr. Auriemma’s mental health.
[29] In June 2023, an order was made for Mr. Auriemma to undergo an assessment of his capacity to provide counsel with instructions for litigation. That order was made by Muszynski J. on June 15, 2023, pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the June order”). The June order provided that (a) Mr. Auriemma was to undergo the assessment within forty-five days of the date of the order, and (b) if Mr. Auriemma were found to be a party under disability within the meaning of the Rules, then the PGT would be appointed as his litigation guardian.
[30] Subsequent to the date of the June order, Mr. Auriemma refused to permit an assessment to proceed and informed Ms. Failes that he would never agree to attend such an assessment.
[31] After the June order was made, Mr. Auriemma began to communicate by email with other members of PRHM, Ms. Stewart, the expert witnesses who have provided reports (both plaintiff and defence experts), staff at the Ottawa Courthouse, and the Minister of Justice. Once again, the nature and tone of the email content was of concern to Ms. Failes.
b) Parties Under Disability – The Law
[32] Rule 7 of the Rules regulates the bringing of proceedings by or against parties under disability. The central requirement of Rule 7 is that parties under disability must be represented by a litigation guardian.
[33] In Cameron v. Louden [1998] O.J. No. 2791 (Gen. Div.), 81 A.C.W.S. (3d) 32, Master Beaudoin (as he then was) eloquently explained the purpose of having a litigation guardian for a party under disability. At para. 4, Master Beaudoin said,
The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party ensuring that a competent person with a duty to act for the party’s benefit is there to instruct counsel and take steps in the litigation on the party’s behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs and is responsible for seeing that the court’s eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.
[34] In summary, a litigation guardian provides protection for the party under disability, opposing parties, and the court: Huang v. Braga, 2016 ONSC 6306, at para. 17.
[35] The two-part test for whether a litigation guardian is required is set out in para. 18 of Huang, as follows:
(i) The person must appear to be mentally incapable with respect to an issue in the case and,
(ii) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.
[36] The term “disability”, where used in respect of a person, is defined in r. 1.03(1). The definition includes that the person is “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 [S.O. 1992, c. 30 and “the SDA”] in respect of an issue in the proceeding, whether the person has a guardian or not”. The definitions of incapacity in ss. 6 and 45 of the SDA address capacity to manage property and personal care, respectively:
• Pursuant to s. 6 of the SDA, 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.”
• Pursuant to s. 45 of the SDA, a person is incapable of managing their 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.”
[37] Medical evidence is not a pre-requisite to a finding that a person is a party under disability within the meaning of r. 1.03 and/or for the purpose of Rule 7: Murphy v. Carmelite Order of Nuns, 2004 CarswellOnt 9965 (S.C.J.), at para. 12. The refusal of a party to undergo an assessment of mental capacity for the purpose of Rule 7 is a factor the court may consider on a motion for the appointment of a litigation guardian: Murphy, at para. 12.
[38] A party may, by their behaviour, put their mental capacity for the purpose of Rule 7 in issue: Willmot v. Benton, 2019 ONSC 5610. The self-represented plaintiff in Willmot put her mental health in issue by stating that she was mentally disabled, experienced fluctuations in her reasoning power, had difficulty concentrating, had difficulty sleeping, was not always able to verbalize her thoughts and engage in logical reasoning, and suffered from a depressed mood. On a motion by the defendants to have a litigation guardian appointed for Ms. Willmot, the court considered the unusual documents filed by her, including that they were not in a rule-compliant form and were confusing in their content.
c) Analysis
[39] Based on the contents of the emails Mr. Auriemma sent over time, I find he brings his mental health in issue. For example, in his emails to Ms. Failes and others, Mr. Auriemma says he believes he is being victimized, abused, and stolen from in the context of this action. In addition, Mr. Auriemma describes the challenges he experiences with homelessness, not sleeping, not eating, and various physical and mental health issues from which he suffers. In those same emails, Mr. Auriemma expresses his belief that many of the individuals involved in his file are involved in criminal activity and he is the victim of a conspiracy.
[40] Based on the contents of those emails, I also find Mr. Auriemma does not understand the litigation process and is unable to understand the information provided by his counsel. There is a clear disconnect between Mr. Auriemma’s understanding of what he stands to gain from the litigation and the damages to which he may actually be entitled.
[41] Last, I find Mr. Auriemma is unable to appreciate the consequences of decisions he is required to make for the purpose of the litigation.
[42] In reaching the conclusions and making the findings set out in paras. 39-41, above, I have also considered Mr. Auriemma’s inability to represent himself (as demonstrated by the nature of, the content of, and the repetition in the documents filed in response to the motion). I did not have the opportunity to observe Mr. Auriemma personally, as he chose not to attend on the return of the motion on August 3, 2023.
[43] On July 27, 2023, Mr. Auriemma sent an email to a litigation assistant at PRHM. The email was sent in response to the service, by email, of Mr. Rugna’s third affidavit. In his July 27, 2023 email, Mr. Auriemma says, “Im not going to his hearing, I tried to appeal it, its all nonsense, I said all I have to say and tried all I can possibly do and this is all criminal. Im not going to his hearing. Its just abusing me. leave me alone.” The contents of the email appear in this endorsement as they appear in the original email.
[44] In reaching the conclusions and making the findings set out in paras. 39-41, above, I have also considered Mr. Auriemma’s refusal to participate in an assessment of his mental capacity relevant to issues in the case.
[45] I accept as legitimate and well-founded, Ms. Failes’ concerns, escalating as they have since early 2023, about Mr. Auriemma’s incapacity to provide instructions for the purpose of the litigation.
[46] I understand that the court is required to be “very cautious in coming to a conclusion which would bar [Mr. Auriemma] from having the final say in how [his] litigation is to be conducted or resolved”: Bilek v. Constitution Insurance, [1990] O.J. No. 3117, 49 C.P.C. (2d) 304 (Dist. Ct.), at para. 2. I do not lightly reach the conclusion set out in the paragraph which follows immediately below.
[47] I find that Mr. Auriemma is a person under disability in regard to this matter and, as a result, it is necessary for decisions to be made on his behalf by a person who is designated to do so. The order made at the conclusion of this endorsement includes a declaration to that effect.
Issue No. 5 - Is the PGT to be appointed as the litigation guardian for Mr. Auriemma?
[48] For a party under disability, the court is required to determine whether there is someone who is able to act in a representative capacity for a party under disability. The potential litigation guardians include a guardian (r. 7.03(2.1)(a)) and an attorney under power of attorney with authority to act in the litigation (r. 7.03(2.1)(b))
[49] I find Mr. Auriemma does not have a family member who is willing to act as litigation guardian and does not have either a guardian or an attorney under power of attorney (at all, let alone with the requisite authority).
[50] As a result, and pursuant to r. 7.03(2.1)(c), the PGT shall act as litigation guardian. The language of r. 7.03(2.1)(c) is mandatory. Because of that mandatory language, the PGT was served with the materials for and was represented on the return of the motion. Counsel for the PGT confirmed that the PGT is willing to act as litigation guardian in this matter.
[51] The order made at the end of this endorsement includes an order appointing the PGT as the litigation guardian for Mr. Auriemma.
Issue No. 6 - Are any of the documents filed on this motion by the moving parties or Mr. Auriemma to be sealed (including whether sealed entirely or filed in a partially redacted form and the original document sealed)?
[52] This portion of the motion is adjourned and shall be continued at an oral hearing to be scheduled by the moving parties. The materials filed by the moving parties subsequent to the August 3, 2023 hearing date include an index to documents which the moving parties request be sealed. The index refers to what appear to be Caselines page numbers; the page numbers in the index do not match the page numbers as they appear in the materials on Caselines.
[53] The moving parties request that more than twenty-five documents included as exhibits to the supporting affidavits be sealed.
[54] The moving parties also request that three documents filed by Mr. Auriemma be partially redacted and the unredacted versions of those documents sealed. I require submissions from the moving parties in support of the request for proposed redactions. Do the moving parties suggest that the proposed redactions include solicitor-client information or, are the moving parties relying on another ground in support of the request for redaction?
[55] The most efficient way to deal with the review of all documents for which a sealing order is requested is to hear oral submissions. Prior to the continuation of the motion, the moving parties shall upload to Caselines an index to the documents they request be sealed with page numbers that correlate to the Caselines page numbers.
[56] The index does not need to address the three documents filed by Mr. Auriemma and for which redactions are requested. Those documents will be made numbered exhibits on the motion. To the extent that redactions are ordered, they shall apply to the copies of the documents in the court file and as numbered exhibits on the motion.
Disposition
[57] For the reasons given under Issue Nos. 1-6, I make the following order and, in para. 4, below, declaration:
The service of documents by email on Alexander Robert Auriemma, at the email address set out in the affidavits of service dated March 23, 2023, June 5, 2023, and July 27, 2023, is deemed to be valid service.
The requirement to serve the defendant with the motion record, amended motion record, supplementary affidavits and factum filed in support of the motion is dispensed with.
The claims advanced by Joseph Auriemma shall be discontinued without costs.
The court declares that Alexander Robert Auriemma is a person under disability in regard to this action and, as a result, it is necessary for decisions to be made on his behalf by a person who is designated to do so.
The Public Guardian and Trustee is appointed and shall act in the capacity of litigation guardian for Alexander Robert Auriemma.
The title of proceeding in all documents served or delivered in this proceeding subsequent to the date of this order shall identify the plaintiffs as follows:
Alexander Robert Auriemma, by his litigation guardian, the Public Guardian and Trustee, and Joseph Auriemma
The request for a sealing order is adjourned and shall be continued, by videoconference, on a date to be arranged by the moving parties.
The moving parties shall, prior to the continuation of the motion, file with the court and upload to Caselines an index to the documents, from the moving parties’ materials, for which a sealing order is requested with the Caselines page number for each such document.
The moving parties shall serve a copy of the court’s August 3, 2023 interim endorsement and a copy of this ruling on (a) Alexander Robert Auriemma, and (b) the lawyer of record for the defendant.
Madam Justice S. Corthorn
Released: September 7, 2023
COURT FILE NO.: CV-18-75698
DATE: 2023/09/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALEXANDER ROBERT AURIEMMA and JOSEPH AURIEMMA
Plaintiffs
– and –
DR. NICHOLAS JOHN CRISTOVEANU
Defendant
RULING on motion
Madam Justice Sylvia Corthorn
Released: September 7, 2023