COURT FILE NO.: CV-17-494
DATE: 20240925
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KUNAL TIPU
Plaintiff
– and –
DR. MUNCHI, DR. HABIB, DR. EID, THE ESTATE OF DR. DUNCAN SCOTT, DECEASED, DR. WATSON, DR. PATERSON, DR. VANNER, KINGSTON GENERAL HOSPITAL AND HOTEL DIEU HOSPITAL
Defendants
Self- Represented, Plaintiff
Isabelle Corbeil, Counsel for the Defendant Physicians
Kim Dullet and Emilie Roy, Counsel for the Defendants, Kingston General Hospital and Hotel Dieu Hospital
Lisa Filgiano, Counsel for the Public Guardian and Trustee
HEARD: March 6, 2024 (Ottawa)
ENDORSEMENT
H.J. Williams J.
Overview
[1] In this medical malpractice action, the plaintiff, Kunal Tipu, claims that the care provided to him by the defendants Dr. Munchi, Dr. Eid, Dr. Habib, Dr. Scott, Dr. Watson, Dr. Paterson and Dr. Vanner between 2013 and 2017 fell below the expected standard of care.
[2] The defendant physicians have now brought a motion under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for orders declaring Mr. Tipu to be a party under a disability and appointing the Office of the Public Guardian and Trustee (“OPGT”) as his litigation guardian.
Background
[3] In the context of this action, the issue of Mr. Tipu’s capacity arose on July 13, 2021. Mr. Tipu raised the issue himself.
[4] The defendants had brought motions for summary judgment to dismiss Mr. Tipu’s action because he had failed to serve any expert evidence in support of his claim.
[5] Mr. Tipu requested an adjournment of the motion. I denied his adjournment request.
[6] Mr. Tipu then said that it would be unfair for the motions to proceed because he had lacked capacity and had to be represented by a lawyer. A lawyer, Howard Lastman, had attended the hearing with Mr. Tipu and had requested the adjournment, but said that he had not been retained to argue the motion and was not prepared to do so.
[7] Mr. Tipu had represented himself at several case conferences leading up to the July 13, 2021 motion date. He had never suggested that he lacked capacity or that he did not believe he could represent himself.
[8] Having observed Mr. Tipu over the course of the several case conferences, and having reviewed his written court materials, I believed that there could be substance to his claim that he lacked capacity. I stayed Mr. Tipu’s action and ordered him to obtain a capacity assessment that specifically addressed the issue of whether he had the capacity to represent himself in litigation. I gave him a deadline of three months.
[9] Mr. Tipu said his father would act as his litigation guardian if required.
[10] At a case conference on November 5, 2021, Mr. Tipu appeared without counsel. He said he had not undergone a capacity assessment. He appeared unconcerned about his capacity. He said he wanted a trial date and that he could be ready for trial in six months.
[11] The defendants’ counsel offered to assist Mr. Tipu to obtain a capacity assessment and to communicate with Mr. Tipu’s potential litigation guardians. The parties agreed that Mr. Tipu would be given an extension of time to obtain a capacity assessment and that the potential litigation guardians, Mr. Tipu’s father and the OPGT, would be informed of the requirement for the assessment. In my case conference endorsement, I cited Chung v. Dale, 2018 ONSC 1820, and listed several questions to be answered by the capacity assessor.
[12] After receiving my endorsement, the OPGT advised the parties that it had been acting as Mr. Tipu’s guardian for property since 2015 and that the guardianship was still in place. It said it would take steps to become Mr. Tipu’s litigation guardian in the action.
The capacity assessments obtained by Mr. Tipu
[13] On February 23, 2022, Mr. Tipu served the defendant physicians with a report from a capacity assessor, M. Ismail Shaikh. Mr. Shaikh was of the opinion that Mr. Tipu was capable of retaining and instructing counsel.
[14] At a case conference on May 5, 2022, the OPGT said that it would schedule a motion to be confirmed as Mr. Tipu’s litigation guardian in this action.
[15] However, on October 19, 2022, Mr. Tipu served a report from another capacity assessor, Mohammed AlMudallal. Mr. AlMudallal was of the opinion that Mr. Tipu was capable of managing his property.
[16] On November 4, 2022, counsel for the OPGT advised the parties and the court that, in light of the capacity report of Mr. AlMudallal, the OPGT’s authority to act as guardian for property for Mr. Tipu had ended. Consequently, it had no authority to make submissions on behalf of Mr. Tipu and it would have no further involvement in his action.
[17] At a case conference on March 29, 2023, I ordered Mr. Tipu to undergo a capacity assessment within the next six months. The defendants would make arrangements for the assessment and would pay for it. All parties would have the opportunity to provide documents to the assessor. The assessment was to address, in particular, whether Mr. Tipu was capable of representing himself in this action and whether he had the capacity to appreciate and consider the cost consequences or proceeding with this litigation in the event that he is ultimately unsuccessful.
[18] The defendant physicians scheduled a capacity assessment with a clinical neuropsychologist for June 27, 2023 in Kingston, where Mr. Tipu was living. They provided Mr. Tipu with the date of the assessment and the related details on June 8, 2023. Mr. Tipu did not attend the assessment.
[19] This motion was initially scheduled to be heard on December 7, 2023.
[20] In November 2023, Mr. Tipu organized and attended a capacity assessment with Angela Yenssen, a capacity assessor who is also a lawyer.
[21] Ms. Yenssen prepared a report dated November 17, 2023. Ms. Yenssen concluded that there was insufficient evidence to displace the presumption of capacity in Mr. Tipu’s case.
[22] Mr. Tipu had not informed the defendants that he had scheduled this assessment. Contrary to my case conference endorsements, the defendants did not have an opportunity to provide Ms. Yenssen with documents.
[23] After reviewing Ms. Yenssen’s report, Stephanie Pearce, counsel for the defendant physicians, wrote to Ms. Yenssen and asked her to review the defendant physicians’ motion record and a 2016 psychological report and to comment on whether the additional information affected her opinion. The defendant physicians’ motion record contained medical records and email correspondence between Mr. Tipu and the defendant physicians’ counsel that Mr. Tipu had not provided to Ms. Yenssen.
[24] Ms. Yenssen agreed to review the additional material, noting that the request was consistent with my endorsement, which stated that all parties could provide documents for the capacity assessor to consider. Mr. Tipu, however, objected. He said that it would be a conflict of interest for Ms. Yenssen to review the additional documents.
[25] On December 22, 2023, Ms. Yenssen sent an email to the defendant physicians’ lawyer, Isabelle Corbeil, saying that she had not reviewed the additional documents, because Mr. Tipu had informed her that he had retained counsel.
[26] On January 19, 2024, Ms. Corbeil informed Ms. Yenssen that Mr. Lastman had confirmed that he was not representing Mr. Tipu in relation to the matter and that there had been no indication that Mr. Tipu had retained counsel.
[27] Later in January, Ms. Yenssen wrote to the defendants’ counsel to say that she had not accessed the additional documents she had been provided. Ms. Yenssen added that another assessment of Mr. Tipu’s capacity could be warranted if there is diagnostic or symptom information in the documents that was not available to her when she met with Mr. Tipu in November 2023.
The issues
[28] The issues on the motion are the following:
Is Mr. Tipu a party under a disability under r. 7 of the Rules of Civil Procedure?
If Mr. Tipu is a party under a disability, should the OPGT be appointed to act as Mr. Tipu’s litigation guardian in this action?
Issue #1: Is Mr. Tipu a party under a disability under r. 7 of the Rules of Civil Procedure?
[29] I accept and rely upon the helpful summary of the law in paras. 30-40 of the factum of the defendant physicians.
[30] I note that the capacity assessments obtained by Mr. Tipu did not assist me in deciding this issue and I place no weight on them. It is very clear that Mr. Tipu did not provide Ms. Yenssen with all available information. He then objected to the defendant physicians’ efforts to do so, despite my endorsement that specifically provided that all parties would be entitled to provide a capacity assessor with documents. Mr. Tipu then suggested to Ms. Yenssen that she would be in a conflict if she were to review documents provided by the defendants and told her that he was going to hire a lawyer.
[31] It is evident that Mr. Tipu tried to manipulate the outcome of Ms. Yenssen’s assessment. Mr. Tipu’s efforts to affect Ms. Yenssen’s assessment call into question the reliability of the other assessments that were obtained by Mr. Tipu without the defendants’ input.
[32] It is also extremely telling, in my view, that although Mr. Tipu obtained three assessments, he failed to attend the one assessment the defendant physicians had arranged for him.
[33] I have considered the factors identified in Costantino v. Costantino, 2016 ONSC 7279, at para. 57, which are to be considered when a court is deciding if a party is under disability and requires a litigation guardian. I make the following findings and observations.
[34] I find that Mr. Tipu does not understand the civil litigation process. This does not appear to be due to a lack of intelligence. Mr. Tipu proved himself to be both resourceful and wily. I have previously referred to his surprise declaration of incapacity to avoid the defendants’ summary judgment motions and to my impression of his dealings with the capacity assessors. His lack of understanding was also not due to a lack of resources. More often than not, when he attended case conferences and hearings, he was accompanied by a lawyer, Mr. Lastman, who was never on the record and always emphasized that his retainer was “limited”.
[35] Mr. Tipu repeatedly insisted that he wanted a trial. He repeatedly claimed that I had promised him a trial. However, he has known for years that, to be successful in his action, he requires an expert’s opinion that is supportive of his case. If the stay of his action is lifted, the next step in the litigation will be to reschedule the defendants’ summary judgment motions to dismiss Mr. Tipu’s claims on the basis that he has no supportive expert evidence. Mr. Tipu either does not understand this or has forgotten this.
[36] Not only does Mr. Tipu not have supportive expert evidence, but he has also served the defendants — on more than one occasion — with a copy of an assessment of his case, prepared by a Dr. Patel, which concluded that the defendants had, in fact, met the expected standard of care in their treatment of him.
[37] When the defendants’ counsel initially brought Dr. Patel’s report to my attention, I had refused to consider it because I assumed that Mr. Tipu had disclosed it unintentionally, even though he was being assisted by Mr. Lastman at the time. However, Mr. Tipu subsequently provided the defendants with a further copy of the report. Neither Mr. Tipu nor Mr. Lastman objected to the defendants’ counsel’s reliance on the report at this motion. While I have no doubt that in other circumstances, privilege would have been claimed over Dr. Patel’s report, that was not done in this case. In the context of this motion, in which I must decide whether Mr. Tipu requires the protections a positive finding under r. 7 will offer him, I am comfortable relying on Dr. Patel’s report. It is both revealing and concerning that Mr. Tipu is demanding a trial of an action against multiple defendants, when the only expert evidence he has is to the effect that his action will not succeed.
[38] Although he knows, or should know, that he has no evidence in support of his case, and although he has had legal assistance, of some nature from Mr. Lastman available to him for years, Mr. Tipu nonetheless appears to believe that if the court gives him “a trial”, it will somehow be a good thing for him.
[39] Mr. Tipu does not have a realistic sense of the value of his claim if it were to succeed. Although I stayed Mr. Tipu’s action when he first raised the issue of his incapacity, Mr. Tipu has since attempted to amend his statement of claim. One of these attempted amendments sought to increase the damages claimed to $400 million.
[40] There is evidence that Mr. Tipu has difficulty differentiating between information that is relevant to his action and that which is irrelevant. He has also sent communications to the defendants’ counsel that suggest that he is having some difficulty processing the world around him. For example, Mr. Tipu has sent correspondence to the defendants’ counsel informing them that Loblaws is stealing from him, that a “device” was telling him to purchase Loblaws credit cards and that because of this device, he would be unable to represent himself in the action. Mr. Tipu told one of the defendants’ counsel in an email that one of the defendants had tried to turn him into a terrorist. Mr. Tipu also said he has a man-made foreign object inside of him as well as a monitoring device, which makes him do things he does not want to do. Further, Mr. Tipu informed defendants’ counsel his kidneys may have been taken outside of the hospital he was in.
[41] A finding that a party is under a disability and requires a litigation guardian is not a punishment or a sanction. Such a finding is intended to ensure that the person’s interests are protected, and that the person does not take steps in the litigation process that may cause them harm.
[42] For these reasons, I find that Mr. Tipu is a party under a disability pursuant to r. 7 and that he requires a litigation guardian.
Issue #2: If Mr. Tipu is a party under a disability, should the OPGT be appointed to act as Mr. Tipu’s litigation guardian in this action?
[43] Having found that Mr. Tipu is a party under a disability, I now find that the OPGT should be appointed to act as his litigation guardian in this action.
[44] There is no evidence of anyone else willing to act as Mr. Tipu’s litigation guardian. I note that when Mr. Tipu first suggested that he was mentally incapable in July 2021 and the issue of a litigation guardian arose, Mr. Tipu said his father would act as his litigation guardian. The defendants’ counsel communicated with Mr. Tipu’s father and were told that the father was not, in fact, willing to do so.
[45] The OPGT advised that if the finding that Mr. Tipu is a party under a disability is made, as it now has been, it will not object to being appointed as his litigation guardian.
Disposition
[46] I find that Mr. Tipu is a party under a disability pursuant to r. 7 of the Rules of Civil Procedure.
[47] Having made this finding, I order the OPGT to act as Mr. Tipu’s litigation guardian in this action.
Costs
[48] It is my understanding that no party is seeking costs. If I am incorrect, a brief (30 minute) appointment with me for oral costs submissions may be requested through trial coordination.
Date: September 25, 2024
Madam Justice H. J. Williams
COURT FILE NO.: CV-17-494
DATE: 20240925
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: KUNAL TIPU
Plaintiff
AND
DR. MUNCHI, DR. HABIB, DR. EID, THE ESTATE OF DR. DUNCAN SCOTT, DECEASED, DR. WATSON, DR. PATTERSON, DR. VANNER, KINGSTON GENERAL HOSPITAL AND HOTEL DIEU HOSPITAL
Defendants
BEFORE: Madam Justice H.J. Williams
COUNSEL: Self Represented, the Plaintiff
Isabelle Corbeil, Counsel for the Defendant Physicians
Kim Dullet and Emilie Roy, Counsel for the Defendants, Kingston General Hospital and Hotel Dieu Hospital
Lisa Filgiano, Counsel for the Public Guardian and Trustee
REASONS FOR DECISION
Madam Justice H. J. Williams
Released: September 25, 2024