2015 MBCA 15, 2015 MBCA 15

Citation: Klippenstein v. Manitoba Ombudsman, Date: 20150204 2015 MBCA 15 Dockets: AI13-30-08075; AI13-30-08084; AI14-30-08112 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) L. P. Klippenstein LARRY PETER KLIPPENSTEIN ) on his own behalf ) ) R. H. Kravetsky (Plaintiff) Appellant ) for the Respondent ) ) J. Taylor - and - ) on a watching brief ) for the Public Guardian and ) Trustee of Manitoba MANITOBA OMBUDSMAN ) ) Chambers motions heard: ) December 22, 2014 (Defendant) Respondent ) ) Decision pronounced: ) February 4, 2015 MAINELLA J.A.

Introduction and Issues [ 1 ] The circumstances of the motions before me raise the delicate question of how to ensure reasonable access to justice for a person who, while able to live in the community, also suffers from mental illness. [ 2 ] The law presumes Mr. Klippenstein to be mentally competent to conduct his own appeal (Queen’s Bench Rule 15.01(3), Man. Reg. 553/88 , applicable by s. 36(1) of The Court of Appeal Act , C.C.S.M., c. C240 (the Act )). That presumption is not easily displaced. However, a psychiatrist has provided an opinion that Mr.

Klippenstein is pursuing his case on the basis of “a distorted or paranoid view of reality.” The psychiatrist’s concern as to competency is situational; he does not suggest Mr. Klippenstein is mentally incompetent generally. [ 3 ] The Manitoba Ombudsman (the Ombudsman) moves for a stay on three appeals Mr. Klippenstein has filed in this court because, he says, it is not in the best interest of justice to allow a delusional litigant to continue an appeal. A stay in like circumstances was granted in another of Mr. Klippenstein’s appeals ( Klippenstein v.

The Manitoba Human Rights Commission , 2013 MBCA 1 , leave to appeal to S.C.C. ref’d, [2013] S.C.C.A. No. 418 (QL)). Mr. Klippenstein says granting a stay, as was done in The Manitoba Human Rights Commission decision, is beyond the jurisdiction of a judge sitting in chambers. [ 4 ] Mr. Klippenstein moves to have the Public Guardian and Trustee of Manitoba (the PGTM) or the Children’s Advocate appointed as his litigation guardian. Although served with Mr. Klippenstein’s motion, the Children’s Advocate did not attend these proceedings. Mr.

Klippenstein considers himself to be disabled for the purposes of Queen’s Bench Rules 1.03, 7 and 15.01(1) because he says his father, who is his attorney under a power of attorney, will not pursue his action against the Ombudsman. Therefore, he says a litigation guardian is necessary. He stressed, however, any litigation guardian appointed by the court must follow the instructions he gives them as to the conduct of the litigation. Both the Ombudsman and the PGTM submit that Mr.

Klippenstein’s mental illness is not so severe that he is mentally incompetent or incapable of managing his affairs to warrant appointing a litigation guardian. [ 5 ] At the commencement of the hearing of the motions, Mr. Klippenstein demanded that I recuse myself. I dismissed his recusal motion. My reasons for dismissing his recusal motion, granting a stay of the three appeals until further order of the court and not appointing a litigation guardian for Mr. Klippenstein, are as follows. Background

Personal Circumstances of Mr. Klippenstein [ 6 ] Mr. Klippenstein is 42 years old. He is permanently disabled. According to the scale of the American Spinal Injury Association, he has complete T11 paraplegia. He has experienced ongoing mental illness for some time which he says in his written materials has been diagnosed as schizophrenia. He subsists on a modest disability pension and lives independently in the community. [ 7 ] Mr. Klippenstein’s father is his attorney and health care proxy under a power of attorney and health care directive signed by Mr. Klippenstein on June 14, 2004. Mr.

Klippenstein’s father lives in Steinbach, Manitoba, while Mr. Klippenstein lives in Winnipeg. Mr. Klippenstein and his father have been in conflict for some time. Mr. Klippenstein believes that, because he is under the care of his father who is not protecting his legal rights to Mr. Klippenstein’s satisfaction, others are obligated to do so. This includes the Ombudsman, according to Mr. Klippenstein. [ 8 ] The power of attorney and health care directive were prepared by a lawyer after Mr. Klippenstein became physically disabled. There is no suggestion either is invalid by virtue of Mr.

Klippenstein lacking capacity at the time of execution. The power of attorney is revocable at any time, provided Mr. Klippenstein is competent. The Action Against The Ombudsman [ 9 ] Mr. Klippenstein commenced an action on September 19, 2013, against the Ombudsman that ultimately has led to the three appeals before this court that the Ombudsman asks me to stay. [ 10 ] In his action, Mr. Klippenstein alleges that he was a victim of crime on two separate occasions while riding a transit bus. In the first incident, he says he was assaulted when another passenger kicked him.

In the second incident, he says the bus driver and other passengers tried to demonstrate he was not physically disabled by suddenly stopping the transit bus in an attempt to dislodge him from his wheelchair. [ 11 ] Mr. Klippenstein advised me at the hearing of the motions that his historical relationship with the Winnipeg Police Service is, what I characterize as, abysmal. The police will not listen to him when he contacts them to file criminal complaints and effectively treat him as, what I gather, a nuisance.

He does not recall if he attempted to contact the police in relation to the two incidents on the transit bus before complaining to the Ombudsman. [ 12 ] It is common ground between the parties that Mr. Klippenstein filed a complaint with the Ombudsman for each transit bus incident, requesting information under The Freedom of Information and Protection of Privacy Act , C.C.S.M., c. F175 ( FIPPA ). In accordance with FIPPA , the Ombudsman responded to the complaints. However, Mr.

Klippenstein was not satisfied with the investigations done by the Ombudsman because they did not lead to prosecutions of the alleged perpetrators. [ 13 ] In his action, Mr. Klippenstein alleges the Ombudsman acted in bad faith because he failed to properly investigate the transit bus incidents such that prosecutions could be conducted. Procedural History of These Three Appeals [ 14 ] Because of concerns about Mr. Klippenstein’s mental competency, the Ombudsman moved to stay his action under s. 38 of The Court of Queen’s Bench Act , C.C.S.M., c.

C280, as opposed to moving to strike out the claim, or having it summarily dismissed under the Queen’s Bench Rules. [ 15 ] Ultimately, the Ombudsman was successful in having Mr. Klippenstein’s action stayed (see Klippenstein v. Manitoba Ombudsman , 2014 MBQB 25 , 302 Man.R. (2d) 198). The motion judge stated in his reasons (at para. 25): Accordingly, the stay requested by the defendant is granted until Mr.

Klippenstein provides a medical opinion from a duly qualified health care physician which opines that he has the capacity to manage his affairs with specific reference to his mental ability to understand and manage this litigation. Once such an affidavit is filed with a medical opinion, Mr. Klippenstein will be in a position to proceed with his motion on his own behalf. Alternatively, he may elect to proceed with the assistance of a litigation guardian in accordance with the Queen’s Bench Rules . [ 16 ] Mr.

Klippenstein appealed the motion judge’s order staying his action, on the basis that he cannot proceed with his action without a medical opinion, (AI14-30-08112). Previously, Mr. Klippenstein had also filed two other appeals (AI13-30-08075 and AI13-30-08084) related to his action against the Ombudsman, arising from unsuccessful attempts in the Court of Queen’s Bench and this court to prevent the Ombudsman’s motion for a stay being heard. The three appeals have been consolidated to be heard by one panel of this court, once perfected. [ 17 ] Subsequently on June 20, 2014, Mr.

Klippenstein moved for the appointment of a litigation guardian to continue his three appeals. [ 18 ] On July 10, 2014, the parties, including counsel from the PGTM, appeared before me in chambers on Mr. Klippenstein’s motions. As a result of the order made by the motion judge who stayed his action, Mr. Klippenstein advised that he desired a psychiatric report of himself, but said he cannot pay for one. An agreement was confirmed on the record between the parties that Mr.

Klippenstein would see one of the psychiatrists he has seen in the past and the Ombudsman would pay for the preparation of a report which was to be shared with both parties, the PGTM and the court. [ 19 ] On September 10, 2014, Dr. Michael Eleff, a staff psychiatrist at the Health Sciences Centre in Winnipeg, provided a

report as to Mr. Klippenstein’s competency. Dr. Eleff’s Report [ 20 ] Dr. Eleff met with Mr. Klippenstein on September 3, 2014, and interviewed him. He has seen Mr. Klippenstein intermittently since 2005. His treatment of Mr. Klippenstein for his ongoing mental illness has been limited, as Mr. Klippenstein did not wish to undergo any treatment which included antipsychotic medication. The two discontinued regular meetings some years ago. However, in 2010, Dr. Eleff saw Mr. Klippenstein and provided an opinion to the court as to his competency in relation to a landlord- tenant dispute. [ 21 ] In his report, Dr.

Eleff provided the following opinion regarding Mr. Klippenstein’s competency: His current complaint, which he wishes to have the ombudsman’s office investigate, concerns an incident which took place on a Winnipeg Transit bus approximately two and a half years ago. When he discussed this incident with me, he made it very clear that he regards this as having been a deliberate assault and as having taken place in the context of an elaborate conspiracy against him.

Involved in this conspiracy, as he presented it to me on September 3, 2014, were the bus driver, a transit officer present on the bus at that time, a physiotherapist also present on the bus, as well as a person with a camera and an additional person who was standing and observing the incident. He indicates that the bus driver put on the brakes suddenly and that Mr. Klippenstein was thrown from his wheelchair by this sudden braking and had some bruising as a result. He expressed the opinion to me that the incident was deliberate and represented a conspiracy to demonstrate that Mr.

Klippenstein is not, in fact, physically disabled and that therefore his other, earlier court case can be dismissed. The conspiracy to arrange this deliberate incident on the bus, he feels, was initiated by a combination of the Human Rights Commission, Income Assistance, the Social Services Review Board, Public Services, the Residential Tenancies Branch, and the rental agency against all of whom he has an ongoing legal complaint . As Mr. Klippenstein described it to me, the purpose of this conspiracy was to demonstrate that he is not physically disabled.

His allegation that this was a conspiracy was either a distortion of reality (paranoid) or is, in fact, correct. Because he alleges that this was arranged and deliberate, he therefore seeks this investigation of the incident to demonstrate that it really was arranged by this conspiracy. The matter upon which I have been asked to express an opinion concerns Mr. Klippenstein’s competency to argue these matters before the courts on his own behalf, as he does not have a lawyer.

Although, in 2010, I expressed the opinion that he was competent to argue his case with the Residential Tenancies Branch and the rental agency, there was no overt evidence of a disturbance in reality testing concerning his complaints at that time. The current situation is significantly different. Because Mr. Klippenstein is unquestionably physically disabled, any alleged conspiracy to prove otherwise seems to make no sense. Therefore, because Mr.

Klippenstein’s complaint is that the ombudsman’s office has failed to investigate what he regards as a deliberate conspiracy to prove something that is manifestly unprovable, I see his competency to argue on this matter as interfered with by his underlying mental disorder. In meeting with Mr.

Klippenstein, I indicated to him that I view his notion that this was a conspiracy to prove that he is not physically disabled and therefore that his other legal matters are without basis, as expressing a distorted or paranoid view of reality . [emphasis added] Recusal Motion Background [ 22 ] On October 30, 2014, I heard a contempt motion brought by Mr. Klippenstein over the alleged non-payment by counsel for the Ombudsman for Dr. Eleff’s report. I dismissed the motion as it was frivolous and devoid of merit. [ 23 ] At the beginning of the hearing of the motions on December 22, 2014, Mr.

Klippenstein asked me to recuse myself as he alleged, because of my contempt decision, I had a personal interest in these proceedings. [ 24 ] A formal motion, with the required supporting materials, was not filed as required by Rule 43.1 of the Court of Appeal Civil Rules, Man. Reg. 555/88R . Nevertheless, I allowed Mr. Klippenstein to proceed with his recusal motion based on his oral submissions and one document he filed with the court. [ 25 ] The basis of my alleged personal interest is that Mr. Klippenstein has appealed my order dismissing his contempt motion (AI14-30-08283).

Also, on the same day his contempt motion was dismissed, he immediately attended to the Provincial Court of Manitoba and laid an information pursuant to s. 504 of the Criminal Code (the Code ) against me personally because of my decision on his contempt motion. He presented a copy of the information he laid with the Provincial Court of Manitoba. From the information Mr. Klippenstein provided me orally, it would appear that his private prosecution of me is currently being addressed in the manner set out in s. 507.1 of the Code and is not yet resolved.

Analysis and Conclusion [ 26 ] There is a strong presumption of judicial impartiality ( Wewaykum Indian Band v. Canada , 2003 SCC 45 at para. 59 , [2003] 2 S.C.R. 259 ). I am satisfied that there is no cogent evidence or reason to disqualify myself in these proceedings applying the

well-known test for a reasonable apprehension of bias (see CAE Aircraft Ltd. v. Canadian Commercial Corp. (1994), (MB CA), 95 Man.R. (2d) 101 at para. 25 (C.A.); and Metis Child, Family and Community Services v. A.J.M. et al., 2008 MBCA 30 atpara. 56, 225 Man.R. (2d) 261). [27] A reasonable and right-minded person having all of the facts would conclude from reading Mr.

Klippenstein’s pleadingsand other materials filed that, although he is a prolific litigant (according to the public registry, he has filed 18 different appeals in thiscourt alone since 2008 and is also well-known in both higher and lower courts), he does not possess a rudimentary understanding of thelegal process and the respective roles of counsel and the judiciary. The pleadings and other documents he has filed with the court arerambling missives that lack clarity.

In sum, the presentation of his case before me is strikingly similar to past experiences of other courts(see The Manitoba Human Rights Commission at para. 10; and Klippenstein v. Canada, 2014 FC 174 at para. 34 (QL), aff’d, 2014 FCA216). [28] Moreover, the strong presumption of judicial impartiality is not displaced merely because of a previous, unfavourabledecision by a judge involving the same party earlier in the proceeding (Sanofi-Aventis Canada Inc. v. Apotex Inc., 2008 FCA 394 at para.6 (QL); CAE Aircraft Ltd. at paras. 26-27; HKS Management Inc. v.

Kapelus (1995), (MB CA), 107 Man.R. (2d) 239at para. 2 (C.A.)). [29] Finally, the mere fact that a judge is attacked personally by a litigant, as Mr. Klippenstein has done by his criminalcomplaint, is not reason per se for disqualification of the judge (McElheran v. Canada, 2006 ABCA 161 at para. 6 (QL)). Such a bright-line rule would erode public confidence in the administration of justice and would encourage mischief by self-represented litigants.

Ifany form of personal attack disqualified a judge, no matter how frivolous, a self-represented litigant could bring the administration ofjustice into disrepute merely by commencing a baseless criminal, civil or administrative process against every judge presiding over theircase to delay and potentially manipulate the justice system.

While the reasonable person knows such conduct is unethical for a lawyer(see The Law Society of Manitoba, Code of Professional Conduct, Winnipeg: Law Society of Manitoba, 2010, ch. 5.6), and likelydetrimental to their career, self-represented litigants are unrestrained by ethical precepts and also, in some cases, by common sense. [30] Mr. Klippenstein has appealed my decision refusing to hold counsel for the Ombudsman in contempt. The criminalcomplaint he has filed mirrors his civil appeal in substance. I am satisfied that a reasonable person would fully appreciate I have nopersonal stake in Mr.

Klippenstein’s various legal proceedings. The different legal processes he has initiated as a result of my contemptdecision will take their respective courses independently, to their appropriate forums for determination, without my involvement (see s.22 of the Act and s. 507.1(2) of the Code). Accordingly, I see no reason why I am unable to fairly adjudicate this case based on theapplicable law and the evidence before me.

Analysis and Conclusions on the Stay and Litigation Guardian Motions The Case Splitting Issue [31] Although the Ombudsman’s motions to stay AI13-30-08075 and AI13-30-08084 were adjourned from chambers to apanel for consideration, there has been a material change in circumstances. As mentioned, Mr. Klippenstein subsequently filed forappointment of a litigation guardian on the three appeals. He also wanted the question of his representation dealt with first, therebycreating a problem of case splitting between which matters were in chambers and which were to be decided by a panel of the court.

Tocomplicate matters, the Ombudsman also subsequently moved for a stay on Mr. Klippenstein’s main appeal, AI14-30-08112, based onDr.

Eleff’s report. [32] In my view, as I will explain, because a judge in chambers has jurisdiction to decide all of the motions both parties havebrought, the just, most expeditious and least expensive approach to resolving this unusual procedural briar patch is for my decision toapply to all three appeals; not just AI14-30-08112 for both sides’ motions, and AI13-30-08075 and AI13-30-08084 for Mr.Klippenstein’s request for a litigation guardian; based on the material change in circumstances I have described.

To allow unnecessarycase splitting is not consistent with s. 94 of The Court of Queen’s Bench Act and the principle of proportionality which is the“touchstone” for modern civil justice (Hryniak v. Mauldin, 2014 SCC 7 at paras. 28-32, [2014] 1 S.C.R. 87).

Jurisdiction of Chambers Judge to Stay an Appeal Over Competency Concerns [33] Section 7(1) of the Act provides: Powers of judge in chambers 7(1) In any cause or matter pending in the court, any application or motion incidental thereto, not involving the decision of that causeor matter may be heard and disposed of by a judge of the court sitting in chambers; and a judge of the court may at any time duringvacation make any interim order to prevent prejudice to the claims of any party as the judge thinks fit.

[34] Once an appeal is commenced, a judge in chambers has jurisdiction by virtue of s. 7(1) of the Act to make any incidentalorder necessary, including a stay, so long as the order does not dispose of or determine the appeal (see Canada (Attorney General) v.Courchene, 2010 MBCA 4 at para. 5; 85 C.P.C. (6th) 97; and British Aviation Insurance Group v. Coseco Insurance Co., 2010 MBCA56 at para. 3, 251 Man.R. (2d) 318). [35] In The Manitoba Human Rights Commission decision, an interim stay of an appeal was granted by a judge in chambersin the unique circumstances where there was a credible concern that Mr.

Klippenstein, acting on his own behalf, was incompetent tounderstand and manage the particular litigation, but was not disabled within the meaning of the Queen’s Bench Rules. His situation wasa proverbial “no man’s land.” Scott C.J.M. decided it was unjust to allow the appeal to continue until steps were taken by Mr.Klippenstein to obtain professional advice. [36] The logic of Scott C.J.M. in The Manitoba Human Rights Commission decision properly reflects, in my view, the realityof mental health, that an individual’s capacity can fluctuate depending on the context (see Banks v.

Goodfellow (1870), L.R. 5 Q.B. 549at 560; Khan v. St. Thomas Psychiatric Hospital (1992), (ON CA), 7 O.R. (3d) 303 at 313 (C.A.), leave to appeal toS.C.C. ref’d, [1992] S.C.C.A. No. 417 (QL)). Competency is not an “all or nothing” proposition where a person either enjoys thepresumption of competency for all purposes, or they do not. For example, on given facts, a person may be legally competent in onecontext but not another (see Banks; McElroy, Re (1978), (ON SC), 22 O.R. (2d) 381 (Surr. Ct.); Montreal Trust Co. v.McKay (1957), (AB CA), 21 W.W.R. 611 (Alta. S.C.); and Reg. v.

Hill (1851), 5 Cox C.C. 259 (C.C.R.)). [37] On the basis of The Manitoba Human Rights Commission decision, I am satisfied that a judge in chambers hasjurisdiction under s. 7(1) of the Act to stay an appeal on an interim basis where there is a credible concern that a self-represented litigantis incompetent to understand and manage his or her appeal, but is not disabled within the meaning of the Queen’s Bench Rules, and it isunjust in the given circumstances for the appeal to continue. [38] Such a remedy falls within the jurisdiction of a single judge in chambers because an interim stay does not determine themerits of the appeal nor does it dispose of an appeal because capacity can change over time.

An interim stay is, by definition, notpermanent. The interim stay can be lifted when the concerns about a litigant’s competency to conduct particular litigation are alleviatedby subsequent events. For example, after proper treatment or counselling resulting in a litigant’s competency, with respect to theparticular litigation, no longer being materially interfered with by their mental illness. Whether an Interim Stay Should be Imposed or a Litigation Guardian Appointed? [39] In its decisions of Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110at 127-29; and RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 at 334, the SupremeCourt of Canada has articulated a tripartite test for granting a stay (serious issue; irreparable harm if a stay is not granted; and the balanceof convenience favours granting the stay). The three considerations are interrelated and are to be assessed cumulatively in light of thecircumstances. Strength in one of the factors may compensate for weakness in the others. [40] Applying the tripartite test, I am satisfied that the Ombudsman has discharged its onus that this is an appropriate case inwhich to impose an interim stay of Mr.

Klippenstein’s appeals. Once again, Mr. Klippenstein occupies “no man’s land.” There arecredible concerns about his competency regarding this litigation, but it is situational only; he is not disabled within the meaning of theQueen’s Bench Rules. [41] Mr. Klippenstein’s written materials and oral submissions demonstrate a lack of understanding of the legal process andthe roles of the Ombudsman, the PGTM, the Children’s Advocate and the concept of a litigation guardian.

Several examples illustratemy conclusion. [42] When I asked him why he thought the Children’s Advocate, whose mandate is independent advocacy for the benefit ofchildren and youths, should take on the responsibility of a lawsuit filed by a middle-aged adult, his response defied logic. I see no rolefor the Children’s Advocate in this case given its statutory mandate. [43] In his notice of constitutional question, Mr.

Klippenstein introduces to his action regarding the Ombudsman’sinvestigation of events during transit bus rides, allegations of practices in the court that infringe freedom of religion and violate s. 2(

a) ofthe Canadian Charter of Rights and Freedoms. None of these religious objections has anything to do with the Ombudsman’s conduct. [44] Another example of Mr. Klippenstein’s understanding of the legal process can be found in his factum filed in the AI13-30-08075 appeal. Mr. Klippenstein challenges the jurisdiction of the judge who dealt with a scheduling matter of his case (which is thesubject of the appeal) over questions of the seal of the Court of Queen’s Bench.

Although he appeared before the judge and heard hisdecision, he does not acknowledge the authority of the court order because he does not view it as authentic due to sealing issues. [45] A final example of Mr. Klippenstein’s understanding of the legal process can be seen in his argument in his factum onthe AI13-30-08075 appeal that the entire Court of Appeal is in a conflict of interest in regard to his case. It is unnecessary to explain histortured logic, but he proposes that this court simply refer his matters to the Supreme Court of Canada.

Such non-sensical decision-making in the conduct of his litigation reinforces for me the reliability of Dr. Eleff’s opinion regarding Mr. Klippenstein’s competencywith respect to this litigation. [46] The presumption of competence of a party can only be rebutted by clear evidence that a person lacks capacity to makedecisions for himself or herself. A court should not be too quick to succumb to the draw of paternalism or the practical advantage it mayachieve to the conduct of litigation. I have not been satisfied that there is clear evidence that Mr.

Klippenstein meets the definition of“disabled” under the Queen’s Bench Rules 1.03, 7 and 15.01(1). He lives independently in the community and manages his affairs as far

as his physical disabilities allow. He is also able to understand the rules of court. For example, he is very proficient in the rules ofservice of documents. The files of these appeals are inundated with affidavits of service completed by him with supporting Canada Posttracking printouts. Also, as Dr. Eleff explains, in other litigation situations, Mr. Klippenstein’s mental illness did not affect hiscompetency to represent himself. [47] Dr. Eleff’s opinion makes this case for a stay even more compelling than the situation in The Manitoba Human RightsCommission.

The balance of convenience favours granting a stay and to do so would not cause irreparable harm to Mr. Klippenstein’sinterests, particularly as the Ombudsman has raised a serious issue of situational incompetency. In my view, a pause in this litigation isthe just remedy. It is inappropriate and would bring the administration of justice into disrepute to allow a delusional litigant to continueto perpetuate their delusions until given an opportunity to first seek professional assistance. As Dr. Eleff explains in his report,Mr.

Klippenstein is able to make his own treatment decisions regarding his mental health under The Mental Health Act, C.C.S.M., c.M110. [48] I am also not satisfied that this is an appropriate case to appoint a litigation guardian because, as previously stated, Mr.Klippenstein does not meet the definition of “disabled” in the Queen’s Bench Rules. Mr. Klippenstein’s submissions to me indicate thatwhat he really wants is not a litigation guardian as that role is properly understood. He wants state-funded counsel, who would ignorethe ethical boundaries placed on advocates and who would pursue these appeals based on Mr.

Klippenstein’s delusion. [49] As counsel for the PGTM properly argued, in all likelihood, the result of an appointment of a litigation guardian wouldbe for these appeals to be discontinued. The appeals were filed due to a mental illness and the underlying action would likely not survivea motion to strike under Queen’s Bench Rule 25.11(d), given the responsibilities of the Ombudsman under FIPPA, which do not includetaking on the role typically occupied by the police of investigating alleged crimes. [50] The numerous authorities cited by Mr. Klippenstein to me do not assist him on a careful review.

In my view, it is onlynecessary to comment on two of the many authorities Mr. Klippenstein brought to my attention: Salamon et al. v. Alberta (Minister ofEducation) et al. (1991), 1991 ABCA 279 , 120 A.R. 298 (C.A.), leave to appeal to S.C.C. ref’d, [1991] S.C.C.A. No. 535 (QL);and Dugas v. Duguay (1986), (NB CA), 71 N.B.R. (2d) 93 (C.A.). [51] Both Salamon and Dugas were cases involving plaintiffs who were minors and, by definition, would be considereddisabled under Manitoba law. The facts of those decisions are quite different than the situation of Mr. Klippenstein.

As well, Salamonexplains the proper role of a litigation guardian as that of ensuring that litigation is sensible, well-conducted and is in the best interests ofthe disabled party, which is anything but what Mr. Klippenstein seeks in this case. Disposition [52] The motion for recusal is dismissed. Mr. Klippenstein’s three appeals are stayed until further order of the court. Theregistry is directed to not accept any document of any sort from Mr. Klippenstein in relation to these three appeals, except onsatisfactory, written proof that Mr.

Klippenstein is represented by a member in good standing of the Law Society of Manitoba. Ifnecessary, the registry is authorized to return to Mr. Klippenstein any document relating to these three appeals by regular mail, care of hislast known address. The motions for the appointment of a litigation guardian on these three appeals are dismissed. Costs in the cause. J.A.