Chutskoff Estate v Bonora, 2013 ABQB 119

Court of Queen ’ s Bench of Alberta Citation: Chutskoff Estate v Bonora, 2013 ABQB 119 Date: 20130221 Docket: 0803 06510 Registry: Edmonton Between: Dr.

Brian Chutskoff, Executor and Trustee Under the Last Will and Testament of Charles Chutskoff, Deceased Plaintiff - and - Doris Celestina Esther Bonora, Reynolds Mirth Richards & Farmer LLP Defendants Corrected judgment: A corrigendum was issued on February 28, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ Introduction [ 1 ] The Applicants seek advice and direction from the Court with respect to the appointment of a litigation representative to represent the Respondent.

Background to the litigation and the application [ 2 ] The Applicants are Defendants in this action brought by the Respondent as executor and trustee of his uncle ’ s estate (the “ Chutskoff Estate ” ). The action alleges negligence and breach of fiduciary duty by the Applicants for failing to represent the Respondent in bringing an application to oppose the registration in Alberta of a judgment of the Court of Queen ’ s Bench of Saskatchewan against the Chutskoff Estate (the “ Saskatchewan judgment ” ). [ 3 ] The Respondent has been involved in lengthy litigation in relation to the Saskatchewan judgment.

He launched an unsuccessful appeal. The Saskatchewan judgment was then registered in Alberta by the judgment creditor (the “ Ruskin Estate ” ) under the Reciprocal Enforcement of Judgments Act , R.S.A. 2000, c. R-6 (Action No. 0603 04815). I dismissed an application brought by the Respondent, representing himself, to set aside the registration: Ruskin (Estate) v. Chutskoff (Estate) , 2007 ABQB 108 . [ 4 ] In ensuing enforcement proceedings, an application was brought before me to hold the Respondent in contempt.

In the course of the application I received advice that the Respondent was hospitalized for a psychiatric condition. I was also advised that the Respondent and his daughter, as co-executors of the Chutskoff Estate, were preparing an accounting which would be filed in the Chutskoff Estate action in this Court in the Judicial Centre of Lethbridge (Action ES06 10648). I ordered the Respondent not to access or deal with assets of the Chutskoff Estate: Order of Ross J. dated May 7, 2007, in Action No. 0603 04815.

I adjourned the application for contempt sine die, requiring the applicant to give 30 days notice to continue the application, so that the Respondent would have time to file and serve an affidavit attaching an original current letter from his doctor detailing his psychiatric condition and addressing its impact on his ability to deal with court proceedings: Order of Ross J. dated September 18, 2007, in Action No. 0603 04815. [ 5 ] On May 9, 2008, the Respondent commenced the within action against the Applicants.

The Respondent was initially represented by counsel, who filed and served a Notice of Ceasing to Act in March 2010. The Respondent has since then represented himself. [ 6 ] On May 12 and 19, 2010, the Respondent, representing himself, applied in the Saskatchewan courts to set aside the Saskatchewan judgment and stay its enforcement. The application was struck on the basis that it was frivolous and vexatious. The Respondent appealed to the Saskatchewan Court of Appeal, again representing himself.

The history of the matter is related and the appeal dismissed (except with regard to corollary orders) in Chutskoff (Estate) v. Ruskin (Estate) , 2011 SKCA 10 . [ 7 ] The Ruskin Estate continued its efforts to enforce the Saskatchewan judgment. In May 2010, the Respondent ’ s daughter applied to be discharged as personal representative of the Chutskoff Estate.

Her application was denied and Miller J. ordered her to prepare a full accounting of the Chutskoff Estate: Order of Miller J. dated October 12, 2010 in Action ES06 10648. [ 8 ] The Respondent as the second personal representative of the Chutskoff Estate appealed Miller J. ’ s decision to the Alberta Court of Appeal. The appeal was struck in June 2011. [ 9 ] The Respondent has recently been held in contempt of court in the Chutskoff Estate proceeding: Order of Miller J. dated September 26, 2012 in Action ES06 10648. Legislation [ 10 ] The Alberta Rules of Court provide: Litigation representative required

2.11 Unless otherwise ordered by the Court, the following individuals or estates must have a litigation representative to bring or defend an action or to continue or to participate in an action, or for an action to be brought or to be continued against them: (

c) an adult who, in respect of matters relating to a claim in an action, lacks capacity, as defined in the Adult Guardianship and Trusteeship Act , to make decisions. . . Court appointment in absence of self-appointment 2.15(1) If an individual or estate who is required to have a litigation representative under rule 2.11 [Litigation representative required] does not have one, an interested person may, or if there is no interested person, a party adverse in interest must, apply to the Court for directions about the appointment of a litigation representative for that individual or estate.

(2) On an application under subrule (1), the Court may appoint a person as litigation representative. Lawyer appointed as litigation representative 2.17(1) If the Court appoints a lawyer as the litigation representative for an individual referred to in rule 2.11(

a) to (d), [Litigation representative required] , the Court may direct that the costs incurred in performing the duties of the litigation representative be borne by (

a) the parties or by one or more of them, or (

b) any fund in Court in which the individual for whom the litigation representative is appointed has an interest.

(2) The Court may give any other direction for repayment of costs or for an advance payment of costs as the circumstances require. [ 11 ] The Adult Guardianship and Trusteeship Act, S.A. 2008, c. A-4.2, s. 1(

d) defines “ capacity ” as: . . . in respect of the making of a decision about a matter, the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of (

i) a decision, and (ii) a failure to make a decision. Evidence relating to capacity [ 12 ] The evidence regarding capacity was admitted with consent of the parties. It is the form of unsworn physician ’ s letters and reports and a physician ’ s Affidavit filed in the Chutskoff Estate proceeding (Action ES06 10648). [ 13 ] In various letters and reports, Dr. Lorne Warneke, Psychiatrist, indicates that the Respondent suffers from Obsessive Compulsive Disorder ( “ OCD ” ) and Major Depression as well as other psychiatric conditions. Dr.

Warneke has been treating the Respondent for these conditions since 1997, and the conditions have been in existence for longer than that. The conditions have affected

the Respondent to the extent that he has for many years been unable to pursue his profession as an Ear Nose and Throat Surgeon and he has become disabled from pursuing any profession. He has been hospitalized in the past as a result of the conditions. He has been and continues to be treated with a number of prescription medications. [ 14 ] Dr. Warneke swore an Affidavit on October 17, 2012 in the Chutskoff Estate proceeding in relation to the Respondent ’ s contempt of court. The Affidavit attaches letters from Dr.

Warneke outlining the Respondent ’ s psychiatric condition, and providing observations following a telephone visit between Dr. Warneke and the Respondent on October 11, 2012. Dr. Warneke deposes that “ in order to make a full and proper diagnosis ” he would need to see the Respondent in person. However he states that he believes that the Respondent ’ s psychiatric condition has been worsening. [ 15 ] In a letter dated October 2, 2012, attached to his Affidavit, Dr.

Warneke describes OCD: OCD is a biologically based illness that is strongly genetic and involves dysfunction of specific areas of the brain called the caudate nuclei as well as other areas. This dysfunction can be shown on functional brain imaging. Symptoms involve recurrent, intrusive thoughts that create horrific anxiety that leads to compulsions or repetitive mental or motor acts. OCD sufferers have insight, that is they realize the irrationality of their thoughts or actions, but are helpless to do anything about this because of the anxiety.

The drive to respond to an obsession or execute a compulsion can be so strong that it overrides other basic urges such as thirst. [ 16 ] In the same letter, Dr. Warneke describes the effect of OCD on the Respondent in the context of his litigation: It was at this time he became involved with the dispensation of the estate of his late Uncle. There appeared to be an injustice in the manner this was handled. [The Respondent ’ s] OCD then became enmeshed with the subsequent court proceedings.

He ended up spending most hours each day pouring over court documents, checking, rechecking, revising then revising again his notes, etc. . . Over time his situation became more and more complex such that he was living the estate case and subsequent court proceedings 24/7, whereas the average individual would have let things go, the OCD drove [the Respondent] to make more and more court applications. . . His description of the legal process was so complex and intricate that I found it impossible to follow his reasoning and convictions.

During this time, he became very depressed (commonly associated with OCD) and he had to be hospitalized for treatment. On several occasions he became very suicidal. The OCD, in my opinion, greatly affected his judgment and actions, which led to ‘ contempt of Court charges ’ . This he did not fully understand because of the OCD affecting his thinking. There is no doubt, in my opinion, that [the Respondent ’ s] recent actions in Court in Lethbridge were based on the OCD distorting his thinking and judgement. Submissions of the parties [ 17 ] The Applicants seek the Court ’ s advice and direction.

They note that, as a party adverse in interest, they are required under Rule 2.15(1) to apply to the Court for directions about the appointment of a litigation representative for an individual who requires one pursuant to 2.11(c). They note the psychiatric evidence, and advise that Respondent has identified himself as lacking capacity in matters relating to the within action. The Applicants take no position as to whether a litigation representative should be appointed.

They advise that, after receiving the Court ’ s advice and direction on this issue, they intend to bring an application to summarily dismiss the action. [ 18 ] The Respondent takes the position that he “ must have ” a litigation representative in accordance with Rule 2.11(c), that the

litigation representative should be court-appointed and should be a lawyer, and that the Court should direct payment of the lawyer/representative under Rule 2.17, as he lacks means. The Respondent filed lengthy written submissions on this application, the majority of which address the merits of the within action. Analysis [ 19 ] The Adult Guardianship and Trusteeship Act , whose definition of capacity is incorporated in Rule 2.11(c), provides that “ an adult is presumed to have the capacity to make decisions until the contrary is determined ” : s 2(a).

It is in my view appropriate to take the same approach under Rule 2.11(c). The admitted fact that the Respondent suffers from a psychiatric condition does not mean that he lacks capacity as defined in Rule 2.11(c). Lack of capacity in the defined sense must be proved on a balance of probabilities. [ 20 ] Dr. Warneke ’ s evidence does not prove that the Respondent lacks capacity. For one thing, Dr. Warneke has deposed that “ in order to make a full and proper diagnosis ” he would need to see the Respondent in person, which he had not done when he swore his Affidavit.

In any event, none of the letters or reports of Dr. Warneke directly address the Respondent ’ s capacity to understand relevant information or to appreciate the consequences of decisions relating to the within action. [ 21 ] Dr. Warneke ’ s letter of October 2, 2012 indicates that sufferers of OCD “ have insight, that is they realize the irrationality of their thoughts or actions, but are helpless to do anything about this ” . This suggests that the Respondent ’ s condition may not affect his capacity to understand information or to appreciate the consequences of decisions, but his ability to control his actions.

If this is the case, it may be that the Respondent does not require a litigation representative, but strict case management to enforce timelines and to deal with repeated applications. [ 22 ] The history of the Respondent ’ s appearances as a self-represented litigant, and my own review of the Respondent ’ s submissions, do not support the view that he is unable to appreciate the issues before the court and articulate a position on those issues.

For example, when the Respondent appeared on his own behalf before the Saskatchewan Court of Appeal in 2011, he was given full opportunity to explain his position and advance his arguments. The Court observed that, while the Respondent ’ s motion was “ drafted in rather opaque terms, its bottom line was clear ” : Chutskoff (Estate) v. Ruskin (Estate) , 2011 SKCA 10 , at para 32 . The Court “ considered [the Respondent ’ s] arguments carefully and reviewed in detail [his] materials ” .

As a result, the Court was able to determine that the Chambers judge was correct in her assessment of the merits of the motion. [ 23 ] There is no basis, on the evidence before me, to conclude that the Respondent lacks capacity as defined in Rule 2.11(c). I will not direct the appointment of a litigation representative under Rule 2.15. [ 24 ] Rule 2.15 puts adverse parties in a difficult position. It imposes an obligation on them to seek court appointment of a litigation representative when an opposite party lacks capacity to make decisions about a claim in an action.

The determination of whether the party lacks capacity must be based on proper evidence, and the adverse party may not have the ability to provide that evidence to the Court. In this case, the Applicants asked the Respondent to obtain an up-to-date letter from his doctor addressing his capacity in relation to the litigation. The Respondent did not do so. I am satisfied that the Applicants have fulfilled the obligation placed on them by Rule 2.15. They are now free to pursue their intention to bring a

summary dismissal application. [ 25 ] The Respondent himself may, if he obtains appropriate evidence, bring his own application for appointment of a litigation representative under Rule 2.15. Alternatively, the Respondent may prefer to delay any such application until after the Applicants ’

summary dismissal application. [ 26 ] I do not anticipate particular difficulty should the Respondent represent himself on the

summary dismissal application. He has already prepared a written submission regarding the merits of his action, which he may rely on in the application. Of course, he would also be entitled to file further materials in response to materials filed by the Applicants, as provided in the Rules and Practice Notes of the Court. If necessary, and with the agreement of the parties, I would be prepared to case manage the

summary dismissal application to ensure that materials are filed in a timely manner and that adequate time is scheduled for the application. Recusal

[ 27 ] During the hearing of the within application, I advised the parties of a conflict of interest on my part due to the individual Applicant having joined the law firm in which my husband is a partner. Both parties indicated that they had no concerns with my proceeding to hear this application, and would also consent to my hearing the Applicants ’

summary dismissal application. I have proceeded with this application, and have indicated my willingness to case manage the

summary dismissal application. However, I have decided that, in view of the conflict of interest and the significance of a

summary dismissal application, I will recuse myself from hearing that application. Conclusion [ 28 ] The application for appointment of a litigation representative is dismissed. Heard on the 18 th day of December, 2012. Dated at the City of Edmonton, Alberta this 20 th day of February, 2013. J.M. Ross J.C.Q.B.A. Appearances: Dr. Brian Chutskoff (Self-Represented Litigant for the Chutskoff Estate) Donald R. Cranston, Q.C. Bennett Jones for the Defendants _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.M. Ross

_______________________________________________________ On Page 1, Docket has been changed to read 0803 06510 and Registry has been changed to read Edmonton.