COURT FILE NO.: CV-17-72570
DATE: 2023/10/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Majed El-Helou, Maysa Abed Rabo, Malak El-Helou by her Litigation Guardian, Basila Yousif, Noor El-Helou, Raghad El-Helou, Sana El-Helou and Shahd El-Helou by their Litigation guardian
Plaintiffs and
Responding Party on the Motion
– and –
Bassi Construction and Jody Blum
Defendants and
Moving Party on the Motion
Mr. El-Helou and Maysa Abed Rabo, Self-Represented
Ms. Olivia Hajdas, Counsel for Bassi Construction and Jodi Blum
Kaylie Handler, Counsel for Office of the Children’s Lawyer (OCL)
James Meloche, Counsel for Plaintiff’s Insurance Company for counterclaim
Mobina Khan, Counsel for Litigation Guardian Basila Yousif
HEARD: Sept. 28 and Oct. 5, 2023
REASONS FOR DECISION ON MOTION
Somji j
Introduction
[1] The Defendants and moving party seek an order appointing the Office of the Children’s Lawyer (“OCL”) as litigation guardian for the minor Plaintiffs Malak El-Helou, Noor El-Helou, Raghad El-Helou, Sana El-Helou and Shahd El-Helou (“children”). The Defendants argue that the current litigation guardian, Basila Yousif, and her counsel, Mobina Khan, have failed to appear at case conferences and comply with timetables to move the action forward.
[2] Neither Ms. Yousif nor Ms. Khan attended the initial motion hearing on September 28, 2023, at 10 am. Ms. Yousif was directed to attend at 2 pm. At that time, Ms. Yousif indicated she had not been able to reach her counsel for over a year and suffers from chronic health issues. Her counsel Ms. Khan was not present at the motion hearing to respond to the statement having sent a note to the Defendant’s counsel that she did not have instructions from Ms. Yousif and would not appear at the motion hearing.
[3] Consequently, I adjourned the matter to October 5, 2023, for continuation. I indicated to Ms. Yousif that she would have a week to decide if she wished to continue as litigation guardian and if so, to take steps to retain new counsel. I directed that Ms. Khan attend the subsequent court appearance and placed her on notice that she may be liable to pay costs on a personal basis for her failure to attend the motion hearing: Endorsement Somji J September 29, 2023.
[4] On October 5, 2023, Ms. Yousif attended court. She was ambivalent about her continuation as litigation guardian. She indicated that her continued health issues make it difficult for her to fully participate. She requested more time to decide if she wanted to stay in the role as she is awaiting the results of further medical tests.
[5] Counsel Ms. Khan also appeared. Contrary to her client’s position, she states she has been unable to get instructions from Ms. Yousif. When asked why she had she not brought an application to remove herself as counsel of record if that was the case, she replied she was in the process of doing so. Ms. Khan was directed to file her application to get off the record by end of day October 10, 2023, which she did.
[6] The Plaintiffs Majed El-Helou and Abed Rabo are the parents of the children. They both agree that the OCL should be appointed as litigation guardian given the continued delays in moving the matter forward.
[7] Counsel for the OCL opposes the application on the grounds that it has not been established whether the delays are the result of Ms. Yousif’s inability to continue as litigation guardian or issues with her counsel. OCL argues that they should only be appointed litigation guardian as a measure of last resort and where no other suitable persons are available.
[8] The issue to be decided is one, whether Ms. Yousif should be dismissed as the litigation guardian for the children; and two, if so, should OCL be appointed instead?
Issue 1: Should Ms. Yousif should be dismissed as the litigation guardian for the children?
[9] This action involves a motor vehicle accident that occurred on May 28, 2015, in Ottawa.
[10] The Plaintiffs filed a Statement of Claim was issued on May 9, 2017. Ms. Abed Rabo was pregnant at the time of the accident. There were four children in the car. One of the children, Malak, sustained injuries. The other three children and the baby born following the accident are minor claimants, Family Law Act, R.S.O. 1990, c.F.3, as am.
[11] The father Mr. El-Helou was initially the litigation guardian for the children. The Defendants counterclaimed against the Plaintiffs for allegedly failing to properly secure Malak in the vehicle. Following the filing of a counter claim, Justice Beaudoin found the father was in a conflict of interest and could no longer be the litigation guardian. His Honour ordered the Defendants to apply to have OCL appointed as litigation guardian which they did: Endorsement of Beaudoin J., January 6, 2021.
[12] That motion was scheduled to proceed on March 18, 2021. However, on March 12, 2021, Mobina Khan advised that she was retained as counsel for Basila Yousif who had stepped forward to be the litigation guardian. Ms. Yousif provided an Affidavit of Litigation Guardian, but it was not signed. Associate Justice Fortier ordered that Ms. Yousif file a compliant Affidavit by March 31, 2021. A timetable was set for remaining steps in the litigation, including the exchange of updated affidavits of documents, completion of examinations for discovery, answers to undertakings, motions arising from examinations for discovery, and completion of mediation: Endorsement of Fortier A.J., March 18, 2021. Ms. Yousif perfected her affidavit.
[13] The Defendants claim that they have been unable to complete all steps set out on the timetable, particularly those related to the children, because Ms. Yousif and her counsel have not been cooperative in scheduling matters or following up on undertakings.
[14] For example, on September 30, 2021, over two years ago, the Defendants’ counsel requested updated affidavit of documents and supplementary affidavits of documents from the parties as well as the scheduling of examinations for discovery and mediation. As of September 2021, the Defendants had approximately two hundred pages of documents consisting of select documents from the children’s accident benefit files. To date, they have not received the additional documents requested, including medical records.
[15] On March 8, April 12, and May 26, 2022, the Defendants requested Ms. Khan to provide copies of the requests she had made for updated clinical notes and records for the children as per an updated timetable set out by AJ Fortier on February 28, 2022. Ms. Khan did not respond to the request. Instead, the father became involved in the correspondence chain and advised that he had requested the records as a parent and would forward them to Ms. Khan for distribution. While it may be understandable that the father would be involved to provide consents for the children, the Defendants are concerned that neither Ms. Yousif nor Ms. Khan were engaged with the Defendants’ request. Rather, it was the father, who was in a conflict of interest position, who was substituting himself in the role of the litigation guardian. Irrespective of the father’s involvement, as of October 6, 2023, the Defendants had still not received the updated clinical notes and records for the children, copies of the requests made for such records, or answers to the twenty-five undertakings given at the examination of discovery of litigation guardian Ms. Yousif on June 14, 2022.
[16] The Defendants have also been unable to complete examinations for discovery for the mother because of scheduling challenges with Ms. Yousif and Ms. Khan. The mother Ms. Abed Rabo cancelled her scheduled discovery on June 14, 2022, because she was ill. Between that date and January 31, 2023, Ms. Khan indicated she unavailable to attend on proposed dates.
[17] In addition, on March 28, 2023, neither Ms. Yousif nor Ms. Khan attended a case conference delaying matters further. Ms. Khan was instructed to attend a subsequent conference scheduled for June 7, 2023, and failed to appear without explanation. A follow-up case conference was scheduled for August 1, 2023. On that date, Ms. Khan appeared and explained her past absences at prior conferences were due to issues with internet, that she was situated in India, and that she was unsure of her return to Canada. Ms. Yousif attended but stayed a short while because of health issues at the time. AJ Fortier directed the Defendants to bring a motion to have the OCL appointed as a litigation guardian, the current motion before me.
[18] Defendants’ counsel also had difficulty corresponding with Ms. Khan. On April 28, 2023, and May 30, 2023, and July 25, 2023, they sent email requests to Ms. Khan and received a “delivery Failure Notice” and in one instance “Recipient Inbox full”. Inquiries were made as to who was representing the litigation guardian and if Ms. Yousif would be attending the case conference scheduled. Outside the appearance of August 1, 2023, the Defendants argue that Ms. Khan has not had meaningful correspondence with them or taken steps to advance the litigation.
[19] Following the appearance of October 5, 2023, Ms. Khan filed a motion electronically requesting to be removed as solicitor of record for litigation guardian Ms. Yousif. Upon review of the motion materials, I am satisfied that there has been a breakdown in the solicitor-client relationship. There will be an Order that Ms. Khan be removed as counsel of record for Ms. Yousif. Pursuant to Rule 15.04(1.3), Rules of Civil Procedure, R.R.O. 1990, Reg 194 [“Rule(s)”], there will be an Order that the motion materials are to be sealed and not to form part of the file.
[20] This leaves Ms. Yousif without counsel. The law requires proceedings involving a person with disability, which includes minor children, to be handled by a litigation guardian: Rule 1.03(1) and 7.01(1). Furthermore, the litigation guardian, other than the Children’s Lawyer or Public Guardian and Trustee, must be represented by a lawyer: Rule 7.05(3).
[21] On September 28, 2023, Ms. Yousif was advised that if she wished to continue in the role of litigation guardian, she should take steps to retain new counsel as it was evident that there had been a breakdown in her communications with Ms. Khan. Notwithstanding that Ms. Yousif claimed she contacted two legal agencies, I am not satisfied that Ms. Yousif is able to continue as litigation guardian.
[22] Ms. Yousif admitted she has chronic health issues. These health issues and medical appointments impede her ability to fully participate at court proceedings. For example, she stated she could only stay a few minutes at the August 1st case conference because of her health. Ms. Yousif did not attend the September 28, 2023, motion hearing which was specifically about her replacement until such time as court directed her to attend in the afternoon. Ms. Yousif’s health issues do not appear temporary. On the contrary, she is awaiting results of further medical tests. Finally, while I appreciate that Ms. Yousif claims she had challenges communicating with her counsel, she failed to take steps to remediate the issue by getting new counsel to ensure the litigation moves forward. In this regard, I do not find she acted in the children’s best interests.
[23] For all these reasons, I find that Ms. Yousif has not and cannot continue to diligently address the interests of the children and take all steps necessary to protect those interests as a litigation guardian is required to do: Rule 7.05(2). Accordingly, there will be an Order that Ms. Yousif be removed as litigation guardian.
Issue 2: Should OCL be appointed as the litigation guardian?
[24] Where it appears to the court, as is the case here, that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer as a litigation guardian: Rule 7.06(2). The Rules also prescribe that unless some other person is willing and able to act as litigation guardian for the children, the court shall appoint the Children’s Lawyer: Rule 7.04(1)(a). This is the situation the court now faces.
[25] This matter has been ongoing since 2017. There have been delays advancing the matter because of issues with the appointment and effectiveness of the litigation guardian. Between July 2018 and January 2021, the father had not engaged a lawyer for his role as litigation guardian causing delay. When the father was removed as litigation guardian because of a conflict of interest, there were further delays between January and March 2021 to find an alternate. The father’s attempts to secure a local Imam in the role of litigation guardian fell through. Later Ms. Yousif stepped forward. While some steps were taken such as completion of her examination for discovery as litigation guardian, further issues, as described above, have delayed the advancement of this matter. I have found that Ms. Yousif is no longer able to engage in this role.
[26] At the motion hearing on September 28, 2023, Mr. El-Helou proposed his sister as an alternate to Ms. Yousif. However, when I directed that she attend court to confirm her interest in the position, she failed to show. Finally, neither parent has put forth an alternate person for the role. For all these reasons, I find that there is no other proper person willing and able to act as litigation guardian and that pursuant to Rule 7.04(1)(a), the OCL should be appointed in the role in order to move this matter forward and advance the interests of the children.
Order
[27] There will be an Order removing Basila Yousif as litigation guardian and appointing the Children’s Lawyer as the litigation guardian for the children on the terms and conditions of the draft Order filed by the Children’s Lawyer and reviewed by the parties in court. The terms and conditions require Ms. Khan to deliver to the OCL the contents of the children’s file within 45 days of the Order.
Costs
[28] The Defendants seeks $321.75 for costs thrown away for the initial September 28, 2023, motion hearing. Ms. Khan was given notice that costs may be sought personally against her for her absence on that date. Ms. Khan has agreed to pay those costs personally in relation to that missed appearance. Pursuant to Rule 57.07, there will be an Order that Ms. Khan pay the Defendants $321.75 in 30 days.
[29] The Defendants are the successful party on the motion to have the OCL substituted as litigation guardian. If the Defendants seek any additional costs on this motion, they should file brief costs submissions by November 3, 2023. Responding submissions shall be filed by November 17, 2023, and any Reply submissions by December 1, 2023.
Somji J.
Released: October 17, 2023
COURT FILE NO.: CV-17-72570
DATE: 2023/10/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Majed El-Helou, Maysa Abed Rabo, Malak El-Helou by her Litigation Guardian, Basila Yousif, Noor El-Helou, Raghad El-Helou, Sana El-Helou and Shahd El-Helou by their Litigation Guardian
Plaintiffs/ Responding Party on the Motion
– and –
Bassi Construction and Jody Blum
Defendants/ Moving Party on the Motion
REASONS FOR DECISION ON MOTION
Somji J.
Released: October 17, 2023