T-1940-89
Philias Guimond, William Bransfield, Alcime
Durelle, Ernest Durelle, Conine Cormier, in her
own right and on behalf of the Estate of the
Deceased, Alyre Durelle, Gerald Dutcher, in his
own right and as Litigation Administrator for
Arnold Dutcher, William Gulliver, Aida Jenkins,
in her own right and on behalf of the Estate of the
Deceased, Bernard Jenkins, Thomas P. Lewis,
Edward A. MacDonald, Adrian McIntyre, Ana-
thas McIntyre, Charles McKay, David A. McKay,
Hazel MacTavish, in her own right and on behalf
of the Deceased, Norman MacTavish, Benoit
Martin, Alfred Mercure, Matilda Murdoch, in her
own right and on behalf of the Deceased, Francis
J. Murdoch, Fernand Nowlan, Lloyd Richardson,
Robert Robichaud, in his own right and as Litiga
tion Administrator for Arthur Robichaud, Ernest
Robichaud, Aime Savoie, Joseph Scott, Hubert
Sweezey, in his own right and on behalf of the
Estate of Benson Sweezey, Frances Ireen Willis-
ton Reid, in her own right and on behalf of the
Deceased, Perley A. Williston, Herbert Williston,
in his own right and on behalf of the Deceased,
John Williston, Roland Williston and Wendell
Williston (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada
(Defendant)
INDEXED AS: GUIMOND V. CANADA (T.D.)
Trial Division, MacKay J.—Halifax, April 9;
Ottawa, April 19, 1991.
Practice — Parties — Appointment of litigation adminis
trator — Whether plaintiff is person under disability — Test
whether party capable of instructing counsel and exercising
judgment as to settlement as reasonable person would —
Application to act as litigation administrator for plaintiff
normally granted absent reason to question bona fides of
application or characterization of incapacity.
This was an application for orders appointing representatives
of deceased plaintiffs, appointing litigation administrators for
plaintiffs said to be incapable, and amending the statement of
claim. The defendant contests only the application for an order
appointing Gerald Dutcher as litigation administrator for his
father, the plaintiff Arnold Dutcher.
According to correspondence from his doctor, Arnold Dutch-
er is a chronic paranoid schizophrenic. He sometimes imagines
that individuals or, indeed, the whole town, are against him.
The doctor considers him not capable,of representing himself.
In examination for discovery, Gerald Dutcher said his father is
lucid only at intervals, and gave as his opinion that the older
man would not be able to testify at trial.
Held, the application should be allowed.
The requirements of Rule 1700 itself must be satisfied before
looking to the provincial procedures which it incorporates by
reference. It is sufficient, for this purpose, that there be some
evidence that the person is incapable. That evidence need not
speak to the time at which the action was brought; rather, the
relevant time for determining incapacity is the time at which
the application is brought. In Lingley v. Hickman the signifi
cant date was when the action was brought because that was a
motion to strike the action on the grounds that the plaintiff was
a person under disability. Here there is no challenge to the
right to suit by the named plaintiff. Rule 1700(2) provides for
continuing an action brought by a party who may since have
become incapable.
The test for determining whether a person is under disability
as "of unsound mind" was set out by Lord Denning in Kirby v.
Leather. Rule 1700 is not, however, restricted in its application
to persons of unsound mind. The key factors in an application
for the appointment of an administrator are whether the person
is capable to instruct counsel and to exercise judgment in
relation to the claims in issue and their possible settlement, as a
reasonable person would be expected to do.
Under the New Brunswick Rules, the requirements for
appointing an administrator to represent an incapable plaintiff
are lower than those for appointing a person to represent a
defendant. In the latter case, a court order is required while a
qualified person may act, without Court appointment, as litiga
tion guardian for a plaintiff under a disability. An application
forr appointment of a litigation administrator on behalf of a
plaintiff should ordinarily be accepted, unless there is some
reason to question the bona fides of the application or the
characterization of the plaintiff as a person under disability.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 420, 1700,
1710.
Rules of Court of New Brunswick, [N.B. Reg. 81-174],
RR. 7.01, 7.02, 7.03.
CASES JUDICIALLY CONSIDERED
APPLIED:
Kirby v. Leather, [1965] 2 All E.R. 441 (C.A.).
DISTINGUISHED:
Lingley v. Hickman, [1972] F.C. 171; (1972), 33 D.L.R.
(3d) 593; 10 C.C.C. (2d) 362 (T.D.); Bugden v. Bugder
(1974), 15 N.S.R. (2d) 535; 52 D.L.R. (3d) 241; 23
R.F.L. 253 (S.C.); Kennedy v. Sask. Cancer Foundation,
[1990] 2 W.W.R. 533; (1990), 81 Sask. R. 237 (Q.B.).
COUNSEL:
David N. Rogers for plaintiffs.
Michael F. Donovan for defendant.
SOLICITORS:
Gilbert, McGloan, Gillis, Saint John, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MACKAY J.: This application for orders, made
on behalf of the plaintiffs, to amend pleadings was
heard in Halifax on April 9, 1991. The orders
sought include:
1) An order that certain named persons be
appointed representatives of the estates of other
persons now deceased, for purposes of this
action, and the pleadings be amended to reflect
this, pursuant to Rules 1710 and 420 of the
Federal Court Rules [C.R.C., c. 663] an order
to which the defendant/respondent consents;
2) An order that certain other named persons be
appointed litigation administrators for two
other persons named as plaintiffs in the action
as originally framed, for purposes of this action
and that the pleadings be amended to reflect
this pursuant to Rules 1700 and 420 of the
Federal Court Rules, an order to which the
defendant consents in part only and to which in
part objection is taken; and
3) An order that the plaintiffs be entitled to
amend the pleadings by a substantive amend
ment to the statement of claim, pursuant to
Rule 420, an order to which the defendant
consents subject to its right to file an amended
defence.
The orders to which the defendant consents are
granted. To the extent these and the disputed
order sought, now resolved by these reasons, affect
the designation of parties named as plaintiffs in
the style of cause, this Court of its own motion
directs that the style of cause be changed to reflect
the terms of the orders granted.
The requested order which the defendant objects
to is in the following terms:
... that Gerald Dutcher and Robert Robichaud, be appointed
Litigation Administrators for Arnold Dutcher and Arthur
Robichaud, respectively, for the purposes of this action, and
that the pleadings be amended to reflect the same, pursuant to
Rules 1700 and 420 of the Rules of Court.
The defendant does not object to the appoint
ment of Robert Robichaud as Litigation Adminis
trator for Arthur Robichaud, for the purpose of
this action, in accord with Rule 1700, in recogni
tion that Arthur Robichaud is a "person under a
disability" as provided for in that Rule, and pro
vided that the requirements of the Rules of Court
of New Brunswick [N.B. Reg. 81-174], incorpo
rated by reference in Rule 1700(1)(a) are met.
The defendant does object to the proposed
appointment of Gerald Dutcher as Litigation
Administrator for Arnold Dutcher for the purposes
of this action. That objection is based on the
submission that there is a lack of evidence before
the Court, that at the time this action commenced,
September 11, 1989, Arnold Dutcher, originally
named as a plaintiff, was a person under a disabili
ty as a person of unsound mind.
Federal Court Rule 1700. so far as it relates to
this matter, provides as follows:
Rule 1700. (1) A proceeding by or against an infant, lunatic,
person of unsound mind or other person under disability or not
having free exercise of his rights (hereinafter referred to as a
"person under disability") may be brought or defended and
conducted in the Court,
(a) if the person under disability is resident in a province of
Canada, in the manner in which such a proceeding would be
brought or defended and conducted in a superior court of the
province where the person under disability is resident (as
though any reference to that superior court in the laws or
rules of court of that province regulating such proceeding in
that superior court or regulating any special step to be taken
concerning a person under disability in relation to such a
proceeding were a reference, with necessary modifications to
the Federal Court of Canada).
(2) Any failure to comply with the requirements imposed by
paragraph (1) may be remedied with effect retroactive to the
commencement of the proceeding at any stage of the proceed
ing or of any appeal.
Counsel for the defendant relies upon the opin
ion of Mr. Justice Heald, then of the Trial Divi
sion, in Lingley v. Hickman, [1972] F.C. 171
(T.D.), at pages 182-183, for two propositions. The
first, with which I agree, is that the party raising
the issue of disability must satisfy Federal Court
Rule 1700 before the provincial rules, in this case
the Rules of Court of New Brunswick, incorpo
rated by reference in the Federal Court Rule,
apply to the appointment of a litigation adminis
trator. In this case the applicable New Brunswick
Rules provide for a litigation guardian to act on
behalf of a plaintiff or applicant who is under a
disability. Secondly, it is urged that evidence sup
porting the conclusion that a party is a "lunatic,
person of unsound mind, or other person under a
disability or not having free exercise of his rights"
as set out in Rule 1700, must be provided and that
the significant date of that evidence is the date on
which the party commenced this action.
While I agree that there must be evidence upon
which a Court could conclude that a person is
under a disability, I do not agree that the signifi
cant time for such evidence is limited to the date
of the initiation of the action. For example, an
action may be initiated by a plaintiff who only
subsequently is considered to be a person under a
disability, a circumstance which would seem to be
provided for under Rule 1700(2). The date of the
initiation of the action was significant in Lingley
because the issue was there raised by the defend
ant's motion that an action be struck, among other
reasons because it was alleged that the plaintiff
was a person under disability. In this application
by the plaintiffs to appoint a litigation administra
tor for Arnold Dutcher, in an action commenced
September 1989 and for which trial is anticipated
some months hence, the time to which evidence of
disability is most clearly relevant is at the time of
this application.
Counsel for the parties essentially agreed that
the test to be applied in determining whether a
person be considered a "person under disability"
within Rule 1700 is that set out by Lord Denning,
M.R. in Kirby v. Leather, [1965] 2 All E.R. 441
(C.A.), at page 444, there stated in relation to a
statutory requirement concerning a person "of
unsound mind", that is, whether the person by
reason of mental illness is incapable of managing
his affairs in relation to the action as a reasonable
person would do, including the capacity of
instructing a solicitor properly and of exercising
any reasonable judgment on a possible settlement.
I point out that Rule 1700 does provide for cir
cumstances broader than those of persons of
unsound mind. In my view, the key factors in an
application for the appointment of a litigation
administrator on behalf of a person named as
plaintiff are whether the person in question is
capable, aside from any disability established by
law, such as infancy, to instruct counsel and to
exercise judgment in relation to the claims in issue
and their possible settlement, as a reasonable
person would be expected to do.
Counsel for the defendant refers to two cases
which, it is submitted, support the conclusion that
the evidence here before the Court does not meet
the necessary test. In Bugden v. Bugden (1974), 15
N.S.R. (2d) 535 (S.C.), a divorce case in which
the Court itself raised questions of the capacity of
the respondent who had been diagnosed as a "schi-
zophrenic paranoid type". On the basis of testimo
ny from a medical doctor, the Court concluded
that it was satisfied that the respondent in that
case was "mentally competent to appreciate the
legal aspects of the divorce process, to weigh its
probable consequences upon her and to make a
reasoned judgment on what action she should take
with respect thereto". Counsel also referred to
Kennedy v. Sask. Cancer Foundation, [1990] 2
W.W.R. 533 (Sask. Q.B.), at pages 535-536, a
case involving the application of the Limitation of
Actions Act of Saskatchewan to a delayed claim
for damages alleged as a result of medical treat
ment more than thirty years before. There the
Court heard evidence that the plaintiff was abnor
mally preoccupied with the state of her arm and
that it affected her social behaviour adversely and
"[h]er psychiatrist expressed the view that she
would have had difficulty discussing the matter
with a lawyer". Nevertheless, the Court concluded
that despite her distress there was not evidence of
unsoundness of mind following the plaintiff's
attainment of her majority which would be
required to suspend the application of the regular
limitation of actions provisions. In my view, nei
ther of these cases is directly referable to the
situation before the Court. At this stage this is not
a trial with oral testimony but rather is an inter
locutory application on behalf of plaintiffs for the
Court to name a litigation administrator to repre
sent a party originally named as one plaintiff,
where there is no challenge to the right to suit by
that party and no question of that party's capacity
in terms of being bound by any decision of the
Court.
In this application the following evidence about
the disability of Arnold Dutcher is presented with
an affidavit in support of the motion by counsel for
the plaintiffs. First, there is a note dated May 25,
1990 from his doctor, Paul E. L. Christensen,
M.D., as follows:
To Whom It May concern:
This is to verify that Mr. Arnold Dutcher is unable to testify
because of his physical & mental health. I hope you can assist
my patient in this matter.
Second, there is a further letter from Dr. Paul E.
L. Christensen, M.D. dated July 16, 1990,
addressed to the law firm of counsel for the plain
tiffs, which includes the following:
Re: Mr. Arnold Dutcher
To Whom It May Concern:
This 60-year-old gentleman has a long history of chronic
paranoid schizophrenia with multiple episodes of acute psycho
sis requiring hospitalization. His treatment initially goes back
to Dr. Duffy in 1971, ... He received multiple hospital admis
sions, which you can tell from the Discharge Summaries and
see that the patient was on multiple medications ... At that
time his firm diagnosis wasn't clear but in recent years he's
been assessed by Psychiatrist, Dr. Ali on several occasions and
felt to be a long-term chronic paranoid schizophrenic, and in
retrospect this is clear this has been going on a long, long time.
Over the last 5 to 10 years he's had multiple delusions and
psychosis, such as neighbors in Loggieville were harassing him
on the phone. He actually had police action againest [sic] him
for harassing a fellow neighbor and we felt justified in doing so,
as he felt that she was harassing him. He has come in multiple
times complaining about the whole town againest [sic] him and
hundreds of people out againest [sic] him. The gentleman is a
very nervous individual, as mentioned earlier had previous
episodes of psychosis.
His present medications include monthly injections of an
antipsychotic, as well as Valium for anxiety, Restoril for sleep,
and Buscopam for his chronic stomach problems.
In summary, it is very clear that this patient has had a long
history of disability and the question in time re. 1979 to '81, the
patient was also very ill from the same illness he suffers from
now. It's also obvious that this patient is not capable or suitable
to stand in court or represent himself in any adequate fashion.
Third, there is an excerpt from examination for
discovery, conducted by counsel for the defendant,
of Gerald Dutcher, now proposed as litigation
administrator for his father Arnold Dutcher, rele
vant portions of which are:
Q.2 You are going to be seeking to be appointed litigation
administrator for your father, Arnold Dutcher?
A. Yes.
Q.3 And exhibit 84 indicates that Arnold Dutcher has physical
and mental health problems which would prevent him
from testifying. Could you indicate what those problems
are?
A. He suffers from colitis, which is a physical — and
mental anxiety, stress. Depression. There is a number
of others, but I am not — I will have to check with his
doctor. I am not quite familiar with them all, but there
are a number of disorders that he has.
Q.4 Is he lucid?
A. Pardon me?
Q.5 Is he lucid? Is he able to answer questions and to under
stand questions that are put to him?
A. At times he is but at others he is not. Like, he had been
prepared, he thought that he might be able to go
through this, and he was here earlier this morning and
he, because of his nerves and a lot of other things, he
had to leave, and I just got that form from his doctor at
1:00 o'clock or 1:30.
Q.6 So the information that you are going to be supplying, is
this information derived from documents, or derived from
questions that you asked your father?
A. It could be from both.
Q.7 The difficulty in this case is that he appears to be still in a
position to supply evidence on an ongoing basis as to his
particular case.
A. Due to his condition I don't think that he would be able
to testify, regardless of what time it would be, right
now, whether it be two months from now or six months
from now or whatever. Like, due to his physical condi
tion and his mental condition is — you know —
regardless of when it is, I don't think he would be able
to do this. And this is why when he came in this
morning he had to leave.
Q.8 Well I understand that, but what I am trying to determine
is whether if I asked you a question and you don't know
the answer can you go to him and ask the question and he
will tell you?
A. Certainly. Well, as a matter of fact, I asked him a
number of questions yesterday which was in regards to
this discovery and I — he submitted to me several
answers to the questions I had asked.
It is submitted for the defendant that this evi
dence does not meet the test for the appointment
of a litigation administrator or guardian, that it is
clear that Arnold Dutcher can explain his situation
to his son, though I construe the comments of his
son during examination for discovery as indicating
that this was not consistently the case. Counsel
also urges that there is no evidence that Dutcher is
unable to instruct counsel and that the final sen
tence in the second letter from his doctor, a letter
which counsel characterizes as vague, does not
meet any legal test. Counsel for the applicants
urges that the evidence of Dr. Christensen, par
ticularly the stress in the second letter on a long
history of chronic paranoid schizophrenia with
multiple episodes of acute psychosis requiring hos
pitalization, supported by the reference to his con
tinuing treatment and the doctor's conclusion
about his ability to represent himself in any ade
quate fashion, all goes to satisfy the test for the
appointment of a litigation administrator or
guardian.
In my view, in this application, made by counsel
for the plaintiffs essentially on behalf of Gerald
Dutcher who seeks to act as litigation administra
tor for his father Arnold Dutcher, who was named
in the statement of claim and style of cause as
originally framed as one of the plaintiffs, it is
sufficient under Rule 1700 that there be evidence
that Arnold Dutcher, said to be "a person under
disability", is incapable of managing his own
affairs in relation to this action by instructing
counsel or exercising any reasonable judgment on
a possible settlement as a reasonable person would
be expected to do. This is a different situation
from that in Lingley where the defendant sought
to have the action struck in part on the argument
that the plaintiff was a person under disability at
the time the action commenced. In my view, the
latter situation might require evidence of a fairly
high standard where the Court is invited, without
the consent or implicit acceptance of the person to
be affected, to make a determination that a party
is a person under disability.
That somewhat different criteria may be appro
priate when a person seeks to act as litigation
guardian for a plaintiff who is a person under
disability from those where a defendant is a person
under disability seems clearly reflected in New
Brunswick Rules which provide, inter alia:
7.01 Representation
Unless ordered otherwise or provided otherwise by an Act, a
proceeding by or against a person under disability shall be
commenced, continued or defended, in the case of
(d) a person who is mentally incompetent or incapable of
managing his own affairs, not so declared, by a litigation
guardian. ...
7.02 Litigation Guardian for Plaintiff or Applicant
(1) Without being appointed by the court, any person who is
not under disability may act as litigation guardian for a plain
tiff or applicant who is under disability.
(2) A person shall not act as litigation guardian for a
plaintiff or applicant who is under disability until he has filed
an affidavit in which he
(a) consents to act in that capacity,
(b) confirms that he has given written authority to a solicitor
to act and specifies the name of that solicitor,
(c) sets out his place of residence and that of the person
under disability,
(d) sets out his relationship, if any, to the person under
disability,
(e) states that he has no interest in the proceeding adverse to
that of the person under disability, and
(f) acknowledges that he has been informed of his liability to
pay personally any costs awarded against him or against the
party under disability.
7.03 Litigation Guardian for Defendant or Respondent
(1) Until he has been appointed by the court, a person shall
not act as a litigation guardian for a defendant or respondent
who is under disability.
[Then follow the procedural steps to be followed by one to be
appointed by the Court as litigation guardian for a defendant
or respondent who is under disability.]
Under these Rules as I understand them, a quali
fied person may act, without being appointed by
the Court, as litigation guardian for a plaintiff or
applicant who is under a disability, but to act in
the same representative capacity for a defendant
or respondent who is under disability requires
appointment by the Court. The Court must consid-
er, among other factors, the circumstances of the
proceedings before it. An application for appoint
ment of a litigation administrator or guardian on
behalf of a plaintiff, in my view, should ordinarily
be accepted, unless there is some reason to ques
tion the bona fides of the application or the char
acterization of the plaintiff as a person under
disability.
I am satisfied on the basis of the written state
ments of Dr. Christensen emphasized by counsel
for the applicants, already referred to, and from
the description of his son Gerald Dutcher given in
examination for discovery that Arnold Dutcher at
times is lucid but at other times he is not, and that
Gerald Dutcher did not believe that his father
would be able to testify in this matter at any time.
I acknowledge that it is not solely his ability to
testify that is at issue here. I am not persuaded
that the fact that he may answer questions asked
by his son leads to the conclusion that he would be
able with consistency, as a reasonable person
might be expected to do, to instruct counsel and to
appreciate the implications of this action and any
proposals for settlement that might arise. I am
prepared to interpret Dr. Christensen's description
of Arnold Dutcher as a person who could not be
expected with any reasonable consistency to
appreciate his situation in relation to matters here
in issue and to instruct counsel adequately. I con
clude for purposes of this action that he is a
"person under disability" as provided for in Rule
1700.
Thus, in addition to the orders referred to earlier
in these reasons, an order goes appointing Gerald
Dutcher as litigation administrator for Arnold
Dutcher, for the purposes of this action and that
the pleadings be amended to reflect this, pursuant
to Rules 1700 and 420 of the Federal Court Rules.
It should be understood that to fully meet the
requirements of Rule 1700(1) (a) Gerald Dutcher,
as litigation administrator, is expected to meet the
requirements established for one so acting on
behalf of a plaintiff by the New Brunswick Rules
of Court.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.