Court File and Parties
COURT FILE NO.: CV-16-559705 DATE: 20231017 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Asadbilal Shehzada Hussain, a minor by his Litigation Guardian Sidra Naz Hussain Plaintiff – and – Edna R. De Borja and Libertato V. De Borja Defendants
Counsel: Sidra Naz Hussain, in person, Peter Danson, for the Defendant
HEARD: October 16, 2023
Papageorgiou J.
Overview
[1] The parties attended at this case conference in a proceeding which involves alleged injuries suffered by Asadbilal Hussain (“Asadbilal”) who was a minor when he was riding a bicycle and was struck by the defendant’s vehicle on August 23, 2015.
[2] Asadbilal was 11 years old at the time of the accident and is now 20 years old.
[3] His mother was initially Asadbilal’s litigation guardian but was replaced with his aunt, Ms. Sidra Naz Hussein (“Sidra”), because the defendant insurer alleged that his mother was contributorily negligent.
[4] Up until 2021, Sidra had a lawyer but he has gotten off of the record.
[5] There have been multiple promises by Sidra that she will obtain a lawyer but she has not.
[6] The defendant insurer is bringing a motion to determine whether Asadbilal has the mental capacity to litigate now that he is no longer a minor and settling whether Sidra or someone else would be available and suitable or whether the Public Guardian and Trustee should be appointed to act on behalf of Asadbilal.
[7] This motion is scheduled for June 4, 2024.
[8] The Public Guardian and Trustee is aware of this matter as the defendant sent it the Notice of Motion. The Public Guardian and Trustee wrote to Sidra on Jun 29, 2023 asking whether she was prepared to continue to act as litigation guardian. She did not respond.
Purpose of this endorsement
[9] It has been almost 8 years since this accident and further delay is not in anyone’s interests.
[10] It is also not in the justice system’s interest to use up its scarce resources with motions that might be resolved.
[11] I refer to Koenhen J’s endorsement dated August 11, 2023 in Miller v Ledra et al, 2023 ONSC 4656, where he discussed the backlog of cases on the Toronto Civil list as well as the fact that many motions do not warrant a hearing. At that case conference he made an order for production of materials.
[12] I am unable to make any order today because the Public Guardian and Trustee was not present and has only been served with the Notice of Motion and not the evidence.
[13] However, I am writing this endorsement which shall be sent to the Public Guardian and Trustee so that it can have more information and evidence to assess whether there is a basis for it to voluntarily agree to act as litigation guardian so that the June 4, 2024 date might not be necessary.
[14] As part of this, I requested that the defendant insurer send me the pleadings, the Catastrophic Injury Report, the notice of motion and a short summary of the steps that have taken place in this action since it was commenced on August 31, 2016.
[15] I also swore Sidra in as a witness so that I could obtain some understanding of her and her family’s circumstances as well as her willingness and ability to continue to act as litigation guardian if Asadbilal is found to not have capacity.
[16] The defendant insurer did not object to this and indeed welcomed this as they wish to get on with this matter.
The Catastrophic Injury Report
[17] The Catastrophic Injury Report indicates that Asadbilal has the following conditions: i) forehead abrasion; ii) possible concussion; iii) tension type headaches with a medication rebound effect; iv) soft tissue injuries to the cervical spine; iv) soft tissue injuries to the cervical spine; v) soft tissue injuries to the thoracolumbar spine; vi) soft tissue injuries to the shoulders, elbows, hands/writs, knees and right foot/ankle vii) post-traumatic stress disorder, moderate to severe and chronic; iix) generalized anxiety disorder with panic symptoms; ix) bipolar disorder; and x) psychosis NOS.
[18] With respect to the psychiatric conditions, it determined that vii) and iix) are conditions are related to the subject accident and that it is uncertain whether ix) and x) are related to the subject accident.
[19] As well, using the AMA Guides the Psychiatry Assessment determined that Asadbilal’s level of mental and behavioral impairment corresponds to ratings of Class 3 (Moderate Impairment) in one sphere of function and Class 4 (Marked Impairment) in three spheres of function.
[20] As well, the Report referenced the Occupational Therapy Assessment which found that Asadbilal does not routinely perform personal care activities, does not initiate tasks each morning and evening, that he relies on his mother to retrieve snacks, has no leisure or recreational outlets, has no friends, has a history of aggression towards himself and there are reports of aggression towards others. He presented as emotionally dysregulated, impulsive, agitated, having limited judgment, problem solving and reasoning skills.
[21] The occupational therapist noted holes in the walls of his home and smashed electronics, damage that his mother said he had done. The occupational therapist noted that this suggested that he could not be left alone.
[22] There have been multiple hospital admissions for psychosis and he did not finish high school.
[23] His having these conditions, or even the conclusion that he suffered a catastrophic injury does not necessarily mean that he lacks capacity, although counsel for the defendant insurer submits that the Catastrophic Injury Report is so significant that it is his view that Asadbilal, who is now an adult, lacks capacity and requires a litigation guardian.
The availability of a litigation guardian if he is determined to not have capacity.
[24] Sidra explained that she lives with her sister (Asadbilal’s mother) and Asadbilal’s 26 year old sister. They spend all of their time taking care of Asadbilal. She says that his condition is such that he must be watched 24 hours a day so that he does not harm himself and so that he does not cause trouble. She says that he breaks things and that their home is shattered because of his conduct.
[25] She stopped working two years ago because of all the time she must spend caring for Asadbilal. She says her family has exhausted their financial resources. She says they do not have enough food to eat and that “this is not a life.”
[26] She says she has not taken steps to proceed with the action because every time she has an appointment related to this action, she is unable to keep it because something happens with her nephew which then requires her intervention.
[27] Although there are other family members, no one will speak to them because of her nephew’s condition.
[28] She is well educated, but her manner of speaking about this case is in run on sentences and she is not an effective or clear advocate. It is difficult to follow her train of thought.
[29] It appears that she is doing her best, but also clear to me that Sidra has not been acting in the best interests of her nephew, in terms of her role as litigation guardian, which is the test pursuant to r. 7.06(2) if there was a motion to remove her. This is not because she does not care or is not trying. It is because all her time is spent caring for Asadbilal. She prioritizes his care over pursuing this litigation. Although her conduct is admirable in many ways, it has resulted in significant delays in this matter and has delayed the progress of this proceeding which has been brought to obtain financial compensation for his injury if he can prove liability and damages.
[30] I am requesting that the defendant insurer forward this endorsement to the Public Guardian and Trustee as well as the Catastrophic Injury Report so that it might consider whether there is a basis for it to voluntarily act as litigation guardian so that the June 4, 2024 date may be vacated.
[31] This is not an Order, merely a request for its consideration of the matter taking into account the information I have obtained at this case conference. Of course, the decision is the Public Guardian and Trustee’s to make as to whether it will agree or whether there is a basis for it to oppose the motion and whether it will require a formal capacity assessment.
[32] Sidra has indicated that she would not object to the Public Guardian and Trustee assuming this role.
[33] As well, since the Public Guardian and Trustee is now on notice of the motion I am directing that the parties arrange a further case conference before me at which time each of the parties provide a case conference brief no longer than 5 pages setting out their position and why they should succeed on the motion.
[34] I am putting the parties on notice that in accordance with Miller v Ledra I may decide the matter at that case conference.
Papageorgiou J. Released: October 17, 2023