2017 ONSC 5887, 2017 ONSC 5887

CITATION : W. M. v Office of the Public Guardian and Trustee, 2017 ONSC 5887 COURT FILE NO.: 03-43/17 DATE: 20171006 SUPERIOR COURT OF JUSTICE - ONTARIO B E T W E E N: W.M. et al. Applicants -and- Office of the Public Guardian and Trustee Respondent BEFORE: F.L. Myers J. COUNSEL: W. M. , in person Alan Rachlin for the Public Guardian & Trustee in its capacity as Litigation Guardian of W.M. Yeoh-Tae Kim, for the Public Guardian & Trustee on its own behalf HEARD: September 20, 2017 endorsement [ 1 ] For most of his life, WM has suffered serious mental health and behavioural challenges.

To make matters worse, when he was a teenager, WM suffered brain damage and other personal injuries when he was struck by a motor vehicle as he crossed the street in Toronto. [ 2 ] WM is plaintiff in two personal injury actions that were commenced for him when he was a minor. Substantial damages were claimed on his behalf.

When he attained the age of majority, WM dismissed his counsel and commenced an additional 25 or so lawsuits arising out of alleged mistreatment that he claims to have suffered from educators, social agencies, police, the airport, couriers, telephone service providers, banks, foreign governments, the federal government, the province, the city, and others. [ 3 ] Mew J. was assigned to case manage all of WM's cases. Mew J. appointed the PG&T to act as the litigation guardian for WM in the two personal injury actions but not in any other actions. [ 4 ] I replaced Mew J. as case management judge.

Shortly after, I stayed all of the actions other than the two in which the PG&T was involved pending review as I considered that many of the other 25 appeared to be frivolous proceedings. [ 5 ] Shortly after, WM underwent a capacity assessment and was found to be incapable of managing his own property. As a result, the PG&T became his guardian for property and automatically became his litigation guardian in all of the cases by operation of law. [ 6 ] With the PG&T and WM's input, many of the 25 other cases have been dismissed on consent. Those dismissed on consent to date are listed in

Schedule "A" to this Endorsement. WM agrees that all but the two personal injury claims and two claims against the US government should be dismissed. Most of the defendants have previously agreed to waive costs. Therefore, the claims listed in

Schedule "B" are dismissed without costs. [ 7 ] By decision dated June 1, 2017, the Consent and Capacity Board overruled the capacity assessor and held that WM is capable of managing his property. As a result, WM moves to remove the PG&T as his litigation guardian in all of his litigation.

[8] The Consent and Capacity Board ruled that the capacity assessor had improperly placed a burden on WM to prove hiscapacity. Moreover, it found that he had demonstrated sufficient and reasonable foresight of the consequences of his decisions regardingmanagement of his property generally. It was also positively impressed with WM's presentation at the hearing. The board found: He followed the proceedings carefully and presented his own evidence in a way that was clear and compelling.

The panel was taken withWM's efforts to pursue work and educational goals despite the challenges of his disabilities. [9] A person is under “disability” under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, if he or she is "mentallyincapable within the meaning of

section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding…"[Emphasis added.] [10] The case law is clear that in assessing disability for litigation purposes the issues are somewhat wider than theconsiderations before the Consent and Capacity Board under the Substitute Decisions Act, 1992. Capacity "in respect of an issue in theproceeding" involves an assessment of capacity addressed in the context of the administration of justice.

In Huang v Braga, 2016 ONSC6306 , <http://canlii.ca/t/gv313> Archibald J. summarized the state of the case law and held: [19] The jurisprudence has established the following additional factors should be considered when determining whether a party is underdisability and requires a litigation guardian: (

a) The person's ability to know or understand the minimum choices or decisions required and to make them; (

b) An appreciation of the consequences and effects of his or her choices or decisions; (

c) An appreciation of the nature of the proceedings; (

d) A person's inability to choose and keep counsel; (

e) A person's inability to represent him or herself; (

f) A person's inability to distinguish between relevant and irrelevant issues; and (

g) A person's mistaken beliefs regarding the law or court procedures. [11] Although the board found that the capacity assessor had erroneously reversed the burden of proof, there was no medicalevidence contradicting the assessor's factual findings. WM concedes that as a result of his disabilities, he sometimes cannot processinformation. He recognizes that he is prone to manic "episodes" that can last a week or more during which he is unstable and should notbe instructing counsel. I agree with the board that WM shows much and growing insight into his health issues.

He is developing copingmechanisms to help him deal with his issues. For example, he says that he recognizes a need to re-read documents multiple times to try tounderstand the information that they convey. He recognizes that he needs to withdraw during episodes of mania. He has physicallimitations that prevent him from taking medications that might otherwise help. [12] Last summer, for example, WM found himself without accommodation briefly while suffering through a period of mania.He tried to instruct counsel to settle his litigation at an imprudently low level in view of his urgent desire for cash.

WM says that he isgetting better at detecting when he is descending into an "episode." He also says that his economic circumstances have improved so thathe is less likely to find himself thinking that he is desperate for funds during a manic episode. [13] There is also a concern with WM's ability to keep counsel. He fired and sued Mr. Rachlin previously. He complains about alack of involvement in decision-making between Mr. Rachlin and the PG&T. By contrast, Mr. Rachlin says that although the PG&Tinstructs him, he responds to WM and communicates with him on important issues.

It is apparent to me that if WM is put in charge of hisclaims, Mr. Rachlin is not likely to remain his counsel of record for very long. [14] Although WM is able to engage in discussion and respond to issues, it does not take long for him to descend into lengthysoliloquys that lose the focus of the discussion. He is not able to maintain a train of thought concerning issues of relevancy in thelitigation. He is cooperative and tries to respond to questions in court. But, it is difficult for him to contribute with any depth orcomplexity.

He does not display the ability to understand the issues, to articulate the facts relevant to specific issues, or the potential risksand benefits of available decisions on the issues. He certainly could not present or be helpful in the presentation of highly complexevidence to a jury concerning brain injury or the assessment of damages when brain injury compounds pre-existing significant mentalhealth issues. [15] In light of WM's 25 lawsuits, it is also clear that he has mistaken views of the purposes of civil litigation and the bases onwhich civil relief may be available.

His desire to continue suing the government of the United States shows that he does not appreciatesovereign immunity or, on a less technical and more practical level, that the US government can hardly be expected to be interested inengaging with him in civil proceedings here. [16] Under the factors set out by Archibald J. therefore, I have many concerns. [17] I am very aware of the need to contain any paternalistic desire to protect a competent person from the consequences of hisor her own decisions however foolish they may seem to others.

Respecting each individual's autonomy is fundamental to the exercise ofhis or her right to participate in the Canadian community on an equal footing with fellow participants. But, the administration of justice isa particular area in which the needs of the individual can come into conflict with the needs and rights of the party opposite. Moreover thecivil justice system's ability to provide fair, just, and proportional relief must also weigh in the outcome. [18] The party opposite is entitled to expect that it will be met by a competent person instructing counsel.

Cooperation amongcompetent litigants is required to achieve fair procedures. A competent litigant opposite is required to ensure that there is someone who

will be bound by costs awards that may be made. A competent litigant opposite is required to provide an assurance that the court's orders will be responded to by someone able to ensure that they are obeyed in letter and in spirit. Cameron v Louden , [1998] OJ No 2791 (Gen Div) . [ 19 ] In all, despite the burden of proof before the Consent and Capacity Board, it is undisputed that WM has a complex medical history including a range of learning and behavioural development disorders in addition to his traumatic brain injury that is the subject of the litigation being carried by the PG&T.

At various times, WM has been diagnosed with ADHD, OCD, intermittent explosive disorder, receptive/expressive language disorder, and articulation disorder. After the motor vehicle accident, he suffered or suffers seizures, chronic pain, visual charges, a heart disorder (from medication), short-term memory deficits, migraines, and what he calls manic episodes. [ 20 ] The board was content that WM's overall appreciation of his financial circumstances precluded a general finding of incapacity.

But, in the more limited context of complex personal injury litigation, in my view, WM must be found to continue to suffer disability at this time. He does not appreciate the purposes or complexity of civil litigation. He cannot take in and process the highly specialized and difficult procedures, evidence collection and presentation methods, or the very difficult expert medical evidence that will be required to present his cases. He cannot instruct counsel in a timely way identifying and balancing relevant factors and outcomes.

Neither the parties opposite nor the court can be assured of a competent client directing counsel so as to protect the rights of both parties to a fair and just proceeding. [ 21 ] I understand that WM has sufficient intellect and comprehension to be disappointed at this decision. I do not make this decision just to do what the court feels is “good” for WM.

Rather, in balancing all of the relevant factors set out in the relevant case law, the court is required to weigh WM's capacity specifically in the context of his ability to appreciate issues in civil litigation considering the rights of the parties opposite, and the overall goals of the civil justice system. In that context, the decision to keep the PG&T in place as litigation guardian reflects a proper systemic outcome. I note as well that this decision is consistent with the submissions of the PG&T in its public policy role and Mr. Rachlin as counsel in the two actions. [ 22 ] The claims listed in

Schedule “C” will continue with the PG&T remaining as WM’s litigation guardian. F.L. Myers J. Date: October 6, 2017

Schedule “A” Actions Previously Dismissed W.M. v. Alan Lewis Rachlin of Rachlin & Wolfson LLP et. al. , CV-15-529826 Dismissed, Mew J., Jul 28, 2015 W.M. v. Bell Canada Enterprises and its subsidiaries et. al. , CV-15-532131 Dismissed, Myers J., Dec 22, 2015 W.M. et. al. v. Hatts Off Specialized Services et. al. , CV-15-538376 Dismissed, Pollak J., Jun 3, 2017 W.M. v. Her Majesty the Queen in Right of Ontario , CV-15-538383 Dismissed, Myers J., Dec 22, 2015 W.M. et. al. v. Hamilton Police Services , CV-15-538390 Dismissed, Myers J., Jan 3, 2017

W.M. v. United Kingdom Home Office , CV-15-538395 Dismissed, Myers J., Feb 21, 2017 W.M. v. Ontario Provincial Police et. al. , CV-15-538401 Dismissed, Myers J., Feb 21, 2017

Schedule “B” Actions Dismissed W.M. v. Ryerson, Ministry of Training, Colleges and Universities , CV-15-529306 W.M. v. Wawanesa Mutual Insurance Company , CV-15-529308 W.M. v. Toronto Police Services et. al. , CV-15-529829 W.M. v. Ministry of Children and Youth Services et. al. , CV-15-529831 W.M. v. Presidents Choice Financial, CV-15-529835 W.M. v. United Parcel Services of America, Canadian Division et. al. , CV-15-529838 W.M. v. Toronto Catholic District School Board et. al. , CV-15-532132 W.M. et. al. v. Bell Canada Enterprises, CV-15-538380 W.M. v. Toronto Lester B.

Pearson International Airport et. al. , CV-15-538403 W.M. v. Air Canada , CV-15-538404 W.M. v. Office of the Public Guardian & Trustee et. al. , CV-17-304300ES W.M. v. Canadian Mini-Warehouse Properties Company, Acting as Public Storage Canada et al. , CV-17-579765

Schedule “C” Matters to Proceed W.M. et. al. v. Government of the USA et. al. , CV-15-538392

W.M. v. United States Department of Homeland Security and its divisions et. al. , CV-15-538382 W.M. v. Canadian Road Management Co. et. al. , CV-12-456473 W.M. v. Wawanesa Mutual Insurance Company , CV-14-516323