Court File and Parties
Court File No.: CV-23-615 Date: 2024 10 04 Superior Court of Justice - Ontario
Re: Jennifer Scarangella, as Trustee for the Estate of Christopher William Joseph Carew-Kaiser, deceased, and Jennifer Scarangella, personally, Plaintiffs And: Oakville Trafalgar Memorial Hospital, Dr. David Ellis Skogstad-Stubbs, Dr. Vikas Khera, Lois Maddox, Dr. David Reid McConachie, Rachel Tuffner, Lya Lamb, Janette MacDonald, Dr. J. Doe and Nurse J. Doe, Defendants
Before: M.T. Doi J.
Counsel: Jennifer Scarangella, self-represented Moving Plaintiff Drew Black, for the Defendants, Dr. David Ellis Skogstad-Stubbs, Dr. David Reid McConachie and Dr. Vikas Khera Celine Zhen, for the Defendants Halton Healthcare Services (incorrectly styled as “Oakville-Trafalgar Memorial Hospital”, Lois Maddox, Rachel Tuffner, Lya Lamb and Janette MacDonald
Heard: October 1, 2024
Endorsement
Overview
[1] On this motion, the self-represented Plaintiff, Jennifer Scarangella, seeks an order for her to act in a representative capacity on behalf of the estate of her late partner Christopher William Joseph Carew-Kaiser (the “Estate”) without a lawyer. The Defendants oppose the motion by asserting that Rule 15.01(1) requires an estate to be represented by a lawyer and that it would be inappropriate to apply Rule 2.03 to dispense with the requirement for a lawyer in this case.
[2] For the reasons that follow, I find that the motion should be dismissed.
Background
[3] On or about February 26, 2021, Mr. Joseph was transported by ambulance to Oakville Trafalgar Memorial Hospital and admitted to intensive care. He remained in hospital and passed away on March 3, 2021.
[4] On February 28, 2023, Ms. Scarangella, started this medical negligence action that names her as a claimant under the Family Law Act, RSO 1990, c. F.3 (“FLA”) and as a representative of the Estate for which she is the estate trustee. Ms. Scarangella is not represented by a lawyer in either capacity in this litigation, and is not a lawyer herself.
[5] Ms. Scarangella made some efforts to retain counsel. On October 11, 2022, she contacted a lawyer who declined to act and suggested that she contact the Law Society of Ontario’s lawyer referral service. On December 1, 2022, the Law Society referred her to several lawyers practicing in the required area of law. Following an initial consultation, at least one of the lawyers declined to act. Over the next two weeks, the Law Society referred her to a number of other lawyers but she did not retain anyone and claims that those she consulted have refused to take on her case. Another lawyer who declined to act suggested on April 3, 2023 that she review the public lawyers directory of the Ontario Trial Lawyers Association or return to the Law Society’s referral service to find a medical negligence lawyer. From the record, it is unclear whether she made further efforts to find a lawyer. In her factum and submissions for the motion, she indicated that she is able to afford a lawyer despite giving no evidence about her finances or those of the Estate.
[6] On March 1, 2023, Ms. Scarangella served the Defendants with the statement of claim. On March 20, 2023, counsel for the Defendant physicians wrote to Ms. Scarangella to serve a notice of intent to defend and to assert that Rule 15 requires a party bringing an action on behalf of an estate to be represented by a lawyer. In his letter, counsel for the physicians suggested that she obtain legal advice on the requirement for a lawyer under Rule 15, offered her some time to retain counsel, and advised that the Defendant physicians would hold off on filing a statement of defence until the issue of whether or how the Estate’s claim would proceed was sorted out, provided that she agreed to not seek to have the physicians noted in default. The other Defendants share the same position on Rule 15 as the Defendant physicians have taken.
Legal Principles
[7] Rules 2.03, 9.01 and 15.01 of the Rules of Civil Procedure, RRO 1990, Reg 194, provide as follows:
Court May Dispense with Compliance
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
Proceedings by or against Executor, Administrator or Trustee
General Rule
9.01 (1) A proceeding may be brought by or against an executor, administrator or trustee as representing an estate or trust and its beneficiaries without joining the beneficiaries as parties.
Where Lawyer is Required
15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.
(2) A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.
(3) Any other party to a proceeding may act in person or be represented by a lawyer.
(4) Subrule (3) permits a party to be represented by a lawyer acting under a limited scope retainer, but a limited scope retainer does not, in itself, make a lawyer the lawyer of record for the party. [Emphasis added]
[8] Under Rule 9.01, litigation by an estate is to be brought in the name of the estate trustee as representing both the estate and the beneficiaries: Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 (Div Ct) at para 3. An estate trustee who acts for an estate in litigation does so in a representative capacity and is subject to Rule 15.01(1) that requires the estate to be represented by a lawyer: Herberman Estate (Re), 2003 ONCA 10801 at para 5; Radzevicius at para 5; Brun Del Re v. The Estate of Philip Thomas Buck, 2022 ONSC 6002 at paras 13-18. Rule 15.01 itself does not confer a discretion on the court to permit a non-lawyer to act for an estate as it otherwise does for a corporation under Rule 15.01(2): Radzevicius at para 5.
[9] Rule 2.03 permits the court to dispense with compliance with any rule when granting such relief is necessary and in the interests of justice. In certain circumstances, the court may rely on Rule 2.03 to dispense with compliance with the Rule 15.01(1) requirement for a party in a representative capacity for an estate to be represented a lawyer: Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478 at para 15, leave to appeal denied 2023 SCC 19732; Preiano v. Cirillo, 2024 ONCA 206 at para 5.
[10] Applying Rule 2.03 to dispense with compliance with Rule 15.01(1) is done sparingly as the Legislature clearly and deliberately limited the court’s discretion under Rule 15.01 to allow a representative party to be self-represented. Rule 15.01(1) uses mandatory language in stating that an estate trustee in a representative capacity for an estate “shall” be represented by a lawyer. In addition, as noted earlier, the court has limited discretion under Rule 15.01(2) to allow non-lawyers to represent a corporation in a proceeding. Sound policy grounds support the scheme in Rule 15.01. Among other things, a non-lawyer is not able to practice law or provide legal services without a license: ss. 26.1(1) of the Law Society Act, RSO 1990, c. L.8; ss. 1(1) of the Solicitors Act, RSO 1990, c. S.15; Re Letros, 1972 ONCA 606, [1972] 2 OR 589 (CA) at 591. The court has inherent jurisdiction to control its process, including the right of audience, but will generally exercise its discretion to avoid conflicts with statutory enactments: Gagnon v. Pritchard, 2002 ONSC 49419, 58 OR (3d) 557 (SCJ) at paras 35-44; Equiprop Management Ltd. v. Harris, 2000 ONSC 29053, 51 OR (3d) 496 (Div Ct) at 501, 510 and 511-12; Baxter Student Housing Ltd. v. College Housing Cooperative Ltd., 1975 SCC 164, [1976] 2 SCR 475 at 480. Generally, the court controls its process by promoting compliance with required procedure: Gagnon at para 55; Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 513 at para 15.
Analysis
[11] As set out below, I find that this is not an appropriate case to dispense with the requirement under Rule 15.01(1) for Ms. Scarangella, a representative party acting on behalf of the Estate, to be represented by a lawyer.
[12] In two recent cases, the Court of Appeal applied Rule 2.03 to relieve a representative party for an estate from the requirement under Rule 15.01(1) to be represented by a lawyer. In Selkirk v. Trillium Gift of Life Network, 2022 ONCA 478, a non-lawyer acting for her late spouse’s estate sought declarations for alleged breaches of the deceased’s Charter rights. She acted as a self-represented litigant throughout the course of the proceeding over several years. Rule 15.01(1) was not raised before the application judge at first instance, and was first raised on appeal. In the circumstances, MacPherson JA writing for the Court of Appeal found that dispensing with strict compliance with Rule 15.01(1) was “necessary in the interests of justice” in the specific context of that case: Selkirk at para 15.
[13] In the second case, Preiano v. Cirillo, 2024 ONCA 206, the Court of Appeal heard an appeal in an action for specific performance after a failed real estate transaction in which a non-lawyer had acted for her mother and her late father’s estate at trial to defend the claim without a lawyer. Following the trial, the trial judge struck the statement of defence and awarded summary judgment to the plaintiffs after finding that the daughter lacked standing as a non-lawyer to defend the action. There was no evidence that the plaintiffs or the court ever challenged her standing before or during the trial. In light of this and the lengthy history of the action, the Court of Appeal held that the court had discretion under Rule 2.03 to dispense with compliance with Rule 15.01(1), and found that the trial judge erred in concluding that the daughter lacked standing. The Court of Appeal went on to uphold judgment for the plaintiffs as the evidence at trial clearly showed that the defendants had breached the agreement of purchase and sale.
[14] In both Selkirk and Preiano, no issues were raised about the non-lawyer’s standing until the court considered Rule 15.01(1) after each case had been presented. [1] A strict application of Rule 15.01(1) in these particular circumstances would have caused the parties in those cases to face the unjust prospect of having to unwind several years of litigation. In addition, neither case featured a non-lawyer seeking monetary damages for a beneficiary and on their own behalf, that would raise the sort of concerns that have been described as the “principal rationale” for the requirement under Rule 15.01(1) for representation by a lawyer: Selkirk at para 13.
[15] In my view, Selkirk and Preiano are distinguishable from the case at hand.
[16] In this case, the Defendant physicians promptly objected to Ms. Scarangella acting for the Estate without a lawyer shortly after the statement of claim was served. Counsel for the Defendant physicians advised her of their position under Rule 15.01(1), suggested that she consult a lawyer about the issue, and reasonably offered her some time to retain counsel before proceeding with the litigation. Unlike the situations in Selkirk and Preiano when Rule 2.03 was used to dispense with Rule 15.01(1) at a much later stage in the proceedings (i.e., after the case had been presented by a representative acting without a lawyer), the defence diligently put Ms. Scarangella on notice of the requirement to retain a lawyer under Rule 15.01(1) at the outset of the proceeding.
[17] Importantly, the “principal rationale” for Rule 15.01(1) that the Court of Appeal identified in Selkirk at para 13 is engaged in this case. Ms. Scarangella seeks to act for the Estate on its claim for monetary damages while also seeking her own damages as an FLA claimant. Accordingly, the concerns with the risks associated with an unqualified or unskilled person seeking to represent the legal rights of others take on added significance in the circumstances of this case: Gagnon v. Pritchard, 2002 ONSC 49419 at paras 30-31; R. v. Lawrie and Pointts Ltd., 1987 ONCA 4173, 59 OR (2d) 161 (CA) at 169; Stone v. Stone, 2000 ONSC 20767 at para 9; Fortin v. Chretien, 2001 SCC 45 at para 48. In raising this point, I mean no disrespect towards Ms. Scarangella who is a thoughtful and well-intentioned person. That said, Rule 15.01(1) is clearly intended to avoid the pitfalls associated with having untrained and unqualified people act for others in litigation, for which much is written: Gagnon at para 31.
[18] By Endorsement dated November 23, 2023 at para 3, Mirza J. noted that Ms. Scarangella’s initial 2-paragraph affidavit to support the motion gave no insight into why she was unable or chose not to retain counsel, which made it difficult to determine whether she is able to act in the estate’s best interests. In light of this and other factors, Mirza J. adjourned the motion and directed Ms. Scarangella to file a further affidavit and factum to address all relevant information and issues on the motion. Mirza J. also endorsed that, “ [a] full record is required to determine this important legal issue.” Despite this, Ms. Scarangella filed no evidence about the circumstances or status of the Estate, financial or otherwise. However, she clearly asserts that she can afford a lawyer and is not advancing an argument on the motion that is based on any financial inability to pay for counsel.
[19] There are other factors to consider. From the record as filed, it is unclear who else may be a beneficiary of the Estate apart from Ms. Scarangella. It appears, however, that her child with the deceased may well be a beneficiary, which raises concerns. This medical negligence action will likely involve complex factual and legal issues that will be expensive to litigate. Should the Estate not succeed with its claim, it will face a costs award in favour of the defence that may impact the amount of funds otherwise available to its beneficiaries. This potential outcome underscores the importance of the Estate having proper legal representation so that the risks and benefits of the litigation may be appropriately assessed by a lawyer and managed in reasonable fashion.
[20] I am not satisfied that Ms. Scarangella has shown a compelling access to justice reason that would justify an exercise of the discretion under Rule 2.03 to dispense with compliance with Rule 15.01(1) in the particular circumstances of this case. Access to justice is a significant and important consideration on this motion. However, the extent to which she has consulted lawyers to act for the Estate is unclear on the record. Having considered all of evidence as filed, I do not find that Ms. Scarangella has exhausted all reasonable means to retain counsel for the Estate. Given her apparent financial means that would allow her to retain counsel for the Estate, and the potential financial consequences of the litigation to its beneficiaries, I am not satisfied that compliance with Rule 15.01(1) should be dispensed with under Rule 2.03 on access to justice grounds at this time.
Outcome
[21] Based on all of the foregoing, I decline to exercise the court’s discretion under Rule 2.03 to dispense with compliance with the requirement under Rule 15.01(1) for a lawyer to act for the Estate in this proceeding. Accordingly I make the following orders:
a. the motion is dismissed; and b. Ms. Scarangella may not act for the Estate that must be represented by a lawyer in this proceeding as required by Rule 15.01(1) of the Rules of Civil Procedure.
[22] To be clear, there is no legal issue with Ms. Scarangella’s ability to continue with her own FLA claim against the Defendants as a self-represented litigant. That said, I strongly encourage her to obtain legal advice about her claim given its complexity and potential implications.
[23] After the motion was argued, all of the parties to this litigation expressed a willingness to mediate this matter in an effort to achieve closure for the deceased’s surviving family members. Accordingly, I ask the parties to make appropriate arrangements to facilitate the mediation at the earliest reasonable opportunity.
[24] Should the parties not resolve costs for the motion, the Defendants may deliver written costs submissions of up to 2 pages (excluding any costs outline or offer(s) to settle) within 15 days following the conclusion of mediation, after which Ms. Scarangella may deliver responding costs submissions on the same terms within a further 15 days. Reply submissions may not be delivered without leave.
Date: October 4, 2024 M.T. Doi J.
[1] Somewhat similarly, the court in Kamalanathan v. Centre for Addiction and Mental Health, 2019 ONSC 56 at para 16 applied Rule 2.03 after the start of a lengthy 2-day hearing (i.e., in which multiple defendants in three separate actions brought overlapping motions for summary judgment or to strike the plaintiffs’ claims) to dispense with compliance with Rule 15.01 to allow a non-lawyer plaintiff to represent other plaintiffs (i.e., his wife and son) who did not appear as the case was “too emotionally difficult” for them. Like in Selkirk, the Rule 15.01 issue was raised by the court on its own volition after the issue emerged when the motions were heard.