2023 ONSC 253, 2023 ONSC 253

CITATION : Lengyel v. TD Home and Auto Insurance, 2023 ONSC 253 DIVISIONAL COURT FILE NO.: 281/21 DATE: 20230110 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: GABRIELLA LENGYEL v. TD HOME AND AUTO INSURANCE BEFORE: D.L. Corbett J. Ms Lengyel , self-represented Heather Hogan , for the Public Guardian and Trustee No one appearing for TD Home and Auto Insurance HEARD: November 18, 2022 REASONS FOR DECISION [ 1 ] Ms Lengyel seeks an order to extend the time to seek leave to appeal two orders appointing the Public Guardian and Trustee (“PGT”) as her litigation guardian in these proceedings.

The orders in question were made in 2017 and 2019. For the reasons that follow, the motion is dismissed in respect to the 2017 order appointing the PGT but is granted respecting the 2019 order appointing the PGT and declining to set aside the earlier appointment of the PGT in 2017. I give directions for exchange of materials for the motion for leave to appeal the 2019 decision at the end of this endorsement. [ 2 ] Ms Lengyel commenced proceedings in 2013 claiming damages arising out of a motor vehicle collision (CV-13-492093) [the “First Proceeding”].

In 2015 she retained Howie, Sacks & Henry LLP as her solicitors in the First Proceeding. Her solicitors terminated the retainer after about two weeks and subsequently moved to get off the record and for an order to appoint the PGT as Ms Lengyel’s litigation guardian. This motion was heard by Master Pope in 2017. Ms Lengyel took the position on this motion that she was capable.

The Master found otherwise: on the basis of the entire record before her, including psychological assessments and other medical records, the Master found that it was “inconceivable” that Ms Lengyel was capable of understanding or conducting the litigation ( 2017 ONSC 2512 , para. 70 ). [ 3 ] Ms Lengyel commenced a second claim against the same defendant in 2016 (CV-16- ) [the “Second Proceeding”]. This was done after her solicitors ceased acting for her in the First Proceeding. [ 4 ] The PGT retained Thomson Rogers as counsel for Ms Lengyel in the First Proceeding.

The PGT instructed Thomson Rogers to negotiate settlements in both the First Proceeding and the Second Proceeding, subject to court approval of the settlements and subject to the court appointing the PGT Ms Lengyel’s litigation guardian in the Second Proceeding. [ 5 ] Ordinarily, motions to approve settlements are conducted in writing. However, since the motion also sought to appoint the PGT as litigation guardian in the Second Proceeding, the motion was brought returnable in person, and Ms Lengyel was given an opportunity to respond to the motion.

The motion was heard and decided by Justice Darla Wilson, one of the Toronto Civil Team administrative judges and the lead judge for motions approving settlements in Toronto ( 2019 ONSC 6620 , para. 1 ). Ms Lengyel provided several volumes of materials to Justice Wilson and attended court and made oral submissions. [ 6 ] Justice Wilson found that Ms Lengyel was and continues to be a party under a disability.

Her Honour appointed the PGT as Ms Lengyel’s litigation guardian in the Second Proceeding and approved the proposed settlement of both the First Proceeding and the Second Proceeding. [ 7 ] Ms Lengyel appealed the decision of D. Wilson J. to the Court of Appeal. On motion brought by the PGT, the Court of Appeal quashed the appeal on the basis that Ms Lengyel lacked standing to bring the appeal. Both points made by the Public Guardian and Trustee are well-taken. Once a litigation guardian is appointed, the litigation guardian has sole control over the proceeding: Kavuru (Litigation guardian of) v.

Heselden , 2014 ONSC 6718 , 328 O.A.C. 399, 70 C.P.C. (7th) 60 (Div. Ct.). As was pointed out in Kavuru , if Ms. Lengyel is unhappy with the settlement, she could have sought to replace the Public Guardian and Trustee as her litigation guardian, but she has not done so. ( 2021 ONCA 237 , para. 4 ) [ 8 ] Following this decision from the Court of Appeal, Ms Lengyel brought a motion for leave to appeal to this court.

That motion was not framed properly, and I dismissed it pursuant to R.2.1 ( 2022 ONSC 4430 ), without prejudice to a further motion for an order extending the time to seek leave to appeal the decisions appointing the PGT as litigation guardian. Ms Lengyel then brought this motion for an extension of time to seek leave to appeal both orders appointing the PGT as her litigation guardian. Analysis I. Framing the Issues [ 9 ] The test for granting an extension of time to appeal or to seek leave to appeal is as follows: (

i) whether the appellant formed an intention to appeal within the relevant time period;

(ii) the length of the delay and the explanation for the delay; (iii) prejudice to the respondent; (iv) the merits of the appeal; and (

v) whether the justice of the case requires the granting of an extension. [ 10 ] There is no basis to grant an extension to appeal the decision of Master Pope. That decision was made in 2017. Counsel was retained and the proceeding conducted by the PGT on the basis of the order. Master Pope’s order was never stayed, and the PGT, the insurer and the court were entitled to proceed on the basis of that order, which they did. [ 11 ] Before Justice Wilson, Ms Lengyel was asking that the PGT not be her litigation guardian, and that the settlement negotiated on her behalf not be approved.

Justice Wilson found that Ms Lengyel was in need of a litigation guardian in the Second Proceeding, by implication concluding that Ms Lengyel still required a litigation guardian in the First Proceeding. Ms Lengyel was self-represented before Justice Wilson and as such was entitled to the court’s assistance to navigate the court’s process. Thus, if Justice Wilson had concluded that Ms Lengyel did not require a litigation guardian in the Second Proceeding, presumably Her Honour would have addressed the issue with the PGT continuing to act as litigation guardian in the First Proceeding.

As a self-represented person in this court, Ms Lengyel is also entitled to assistance in this court to place her arguable issues before this court properly for decisions on the merits. [ 12 ] For this reason, I conclude that Ms Lengyel’s request for an extension should be construed as an extension of time to seek leave to appeal the order of Wilson J.: (

a) appointing the PGT in the Second Proceeding; and (

b) either declining to set aside the appointment of the PGT in the First Proceeding prospectively or providing directions as to how this issue should be addressed. [ 13 ] At its core, Ms Lengyel was asking to have control of her own litigation, premised on her claim to not be in need of a litigation guardian as of the time of the motion before Wilson J. II. Applying the Test for an Extension [ 14 ] Ms Lengyel had a timely intention to appeal the decision of Wilson J., shown by her appeal to the Court of Appeal. She has proceeded in a timely manner in this court.

The first two branches of the test for an extension are satisfied. [ 15 ] I see no prejudice to respondents in permitting Ms Lengyel a chance to seek leave to appeal. The third branch of the test is satisfied. I note that I see some prejudice to Ms Lengyel herself, in granting the extension: in this and other proceedings, Ms Lengyel complains that the continuation of litigation conflict has been deleterious to her health, and there is some medical evidence in the record to support this conclusion. The record also supports a conclusion that Ms Lengyel has been a primary cause of the litigation being protracted.

I am concerned that allowing this matter to continue when the prospects of Ms Lengyel succeeding in this court are slim may do not more than prolong conflict and cause Ms Lengyel distress. [ 16 ] An order finding a party legally incapable, over that party’s vehement objection, is a serious matter. Appeal rights are substantive rights, and Ms Lengyel’s recourse to the appellate process in this court is her last chance to assert autonomy over matters of great importance to her.

It appears that the appeal turns on questions of fact, and, on the basis of the materials before me, the appeal appears to have little chance of success, but in view of the seriousness of the issues, their importance to Ms Lengyel, and the nature of the contested issues, a determination of the merits is best left to a panel on the leave motion than to a single judge on a motion for an extension.

Although I view the chances of Ms Lengyel obtaining leave to appeal as “slim” – and the chances of her succeeding on an appeal (if leave is granted) as “very unlikely” – given the overall matrix of factors on this extension motion, the weakness of the appeal is not enough to preclude affording Ms Lengyel the opportunity to make her case on the motion for leave to appeal. [ 17 ] I give one example to explain my assessment of the merits, so that Ms Lengyel may better understand the difficulties she faces on the leave motion – so that she may try to address them in her leave materials, if she can.

In the motion before me, Ms Lengyel argued that she had shown that she was able to retain and instruct counsel on her behalf. The example she gave was her retainer of and representation by Howie, Sacks & Henry LLP in the first proceeding. While it is true that this retainer showed that Ms Lengyel was capable if identifying and retaining suitable expert counsel for her claim, these solicitors only continued in their role for two weeks before they apparently concluded that Ms Lengyel was not legally capable. It was this firm that sought the order appointing the PGT.

Ms Lengyel also pointed to her working relationship with Thomson Rogers LLP, the solicitors retained by the PGT on Ms Lengyel’s behalf. Again, this example does not seem to assist Ms Lengyel. The settlement which Ms Lengyel vehemently resists was negotiated by and recommended by Thomson Rogers LLP.

The two examples in the record of expert counsel representing Ms Lengyel seem to show that Ms Lengyel was unable to maintain a professional relationship, provide instructions, and receive and act upon advice in her own best interests. [ 18 ] In respect to the overall justice of the case, I am influenced by the dicta from the Court of appeal when it quashed the appeal from the motion judge’s approval of the settlement. The Court of Appeal expressly stated that its decision was without prejudice to a motion for leave to appeal to this court from the decision(

s) appointing the PGT. Ms Lengyel would reasonably have understood the Court of Appeal to be telling her that she could not go to that court, but that she could have recourse to this court. Given my conclusion respecting the first three branches of the test for an extension, despite the weakness of the merits of the motion for leave to appeal, I conclude that Ms Lengyel should be given the opportunity to seek leave to appeal the decision of Wilson J. [ 19 ] For these reasons, order to go as follows: (

a) The motion for an extension of time to appeal the order of Master Pope is dismissed;

(

b) The motion for an extension of time to seek leave to appeal the order of D. Wilson J. appointing the PGT as litigation guardian in the Second Proceeding, and failing to set aside or directing a process for a motion to remove the PGT as litigation guardian in the First Proceeding, is granted; (

c) Ms Lengyel shall serve and upload to CaseLines her motion materials for the motion for leave to appeal the aspects of the order of D. Wilson J. described in subpara. b., by February 24, 2023; (

d) Any responding motion materials shall be served and uploaded to CaseLines by March 24, 2023; (

e) The motion for leave to appeal shall be heard by a panel of the Divisional Court the week of April 8, 2023, or as soon after as it may be reached. [ 20 ] There shall be no costs of this motion for an extension. _______________________________ D.L. Corbett J. January 10, 2023