



COURT OF APPEAL FOR ONTARIO

CITATION: Aletkina v. The Hospital for Sick Children, 2015
    ONCA 804

DATE: 20151123

DOCKET: M44446  M45385

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

Nadejda Aletkina

Moving Party/Appellant/Plaintiff

and

The Hospital for Sick Children

Responding Party/Respondent/Defendant

Nadejda Aletkina, acting in person

Stephanie Young, for the respondent

Heard and released orally:  November 3, 2015

Motion to set aside the order of Justice Lois B. Roberts
    dated July 31, 2015.

ENDORSEMENT

[1]

The moving party seeks a review of the order of Roberts J.A. made July
    31, 2015, dismissing her motion for a stay and an order for a capacity
    assessment.

[2]

The motion before Roberts J.A. arose as a result of a decision of this
    court dated June 24, 2015, which dismissed her motion to review the order of
    Huscroft J.A. dated March 6, 2015.  This matter has a protracted history.

[3]

In her action against the hospital for Sick Children, the moving party
    seeks damages for wrongful dismissal.  She was employed at the Hospital for
    Sick Children for about 11 months from May 2002 to April of 2003 as a lab
    technician earning about $35,000 per annum. She commenced her action in April
    2009 and it has yet to be tried.

[4]

The issue that brings the matter to this court today has its genesis in
    an order made by Master McAfee in August of 2013.  At that time, the Master
    dismissed a motion brought by the moving party:

(1) to compel
    answers to questions refused and/or not answered on discovery;

(2) to add a
    number of parties as defendants; and

(3) to amend
    your statement of claim to add new causes of action.

[5]

The motion was dismissed in reasons delivered August 12, 2013. The
    moving party next appealed the order of the Master and brought two motions as
    part of that appeal to adduce fresh evidence. Her appeal and the motions to
    adduce fresh evidence were dismissed by order of Corbett J. dated October 27,
    2014.

[6]

In his reasons, at para. 12 the appeal judge noted:

The Master took a good, hard look at Ms Aletkinas claim that
    she was under a legal disability that suspended the running of the limitations
    period. The voluminous materials filed on the motion established clearly that
    Ms Aletkina does suffer from a mental illness and one that has been described
    as severe by her treating psychiatrist.  Nowhere in the volumes of the
    material is there an opinion that this mental illness renders her under a legal
    disability.  And while it may be true that Ms Aletkina was slow taking steps
    related to this litigation, because of her mental health issues, receiving
    accommodation for health reasons is not the same thing as being unable to
    appreciate that she had claims that she now wishes to assert.

[7]

Further, at para. 14 the appeal judge quotes from the responding partys
    factum:

... [Ms Aletkina] was regularly pursuing doctors notes to
    further prolong and delay this litigation. It is significant that [Ms Aletkina]
    specifically requested a letter indicating that she lacked capacity and in July
    2012 a physician specifically refused to provide such an opinion.

[8]

Justice Corbett set the new date by which the moving party was to set
    her action down for trial to November 30, 2014.  The moving party then sought
    leave to appeal a decision of Corbett J. to this court.

[9]

She was granted an extension of time to perfect her leave application to
    this court on two separate occasions and did not meet the deadline set in
    either order before she appeared before Justice Huscroft on March 5, 2015,
    again seeking yet a further extension of time to perfect her appeal and
    directions from the court on the form and content of her materials.

[10]

After
    dismissing her motion that he recuse himself from hearing her motion on grounds
    that were utterly unsubstantiated, the motion judge reviewed the history of the
    matter and the numerous requests made by the moving party for directions. 
    Her motion was dismissed.

[11]

Ms.
    Aletkina then moved to review the order of Huscroft J.A. before a panel of this
    court on June 24, 2015, and again brought a motion to introduce fresh evidence.
    Both her motion and appeal were dismissed in a brief endorsement issued by the
    court.  As part of its endorsement, this court required that the moving party
    set her action down for trial no later than July 30 failing that her action be
    dismissed.

[12]

On
    July 29, 2015, she moved before Roberts J.A. for a stay of this courts order
    of June 24, 2015, pending determination of her application for leave to appeal
    that decision to the Supreme Court of Canada and for an order that she undergo
    capacity assessment.  Her motion was dismissed.

[13]

Roberts
    J.A. concluded that Ms. Aletkina failed to meet the test for a stay and that
    there was insufficient evidence to rebut the presumption of capacity set out
    in s. 2 of the
Substitute Decisions Act
 and further despite the
    voluminous materials filed, her submission that she lacks legal capacity to
    conduct these proceedings is not demonstrated by the evidence. The deadline to
    set her action down for trial was extended by Roberts J.A. to August 31, 2015
    and we are advised that that has been done.

[14]

Ms.
    Aletkina moves before this court to review the order of Roberts J.A.  Before
    the hearing was about to start at the return of this motion on November 2,  Ms.
    Aletkina sought to file an extensive volume of further fresh evidence in
    addition to the volume of fresh evidence already filed which numbered some 579
    pages and she sought an adjournment of the proceedings and at her request, we
    adjourned the matter to November 3 as she requested.  The voluminous record
    contains much material that has been previously filed including many detailed
    memoranda and letters authored by the moving party. Ms. Aletkina has a history,
    demonstrated in these materials, of attempting to have her treating physicians
    offer an opinion that she is without legal capacity to conduct legal
    proceedings and to date none have offered any such opinion despite the
    persistent efforts of Ms. Aletkina.

[15]

Following
    her appearance before Roberts J.A. on July 29, the moving party presented in
    the Emergency Department of the Kingston General Hospital where she requested
    a capacity assessment by psychiatry.  She was told she needs a capacity
    assessment done in order to represent herself in an upcoming court hearing as recorded
    in the visit summary of the hospital dated September 25, 2015. It was suggested
    that she follow up with her general practitioner.

[16]

In
    her general practitioners notes for an October 2015 appointment it is recorded
    that the moving party talked at length about her quandary of having a capacity
    assessment and noted the doctors offer to refer her to psychiatry.  There
    follows Dr. Russells referral note to Dr. Fahy noting that Ms. Aletkina has
    been asking for a capacity assessment and that she is also looking for a
    retrospective capacity assessment despite me informing her that this is very
    difficult for a new psychiatrist to ascertain.

[17]

Next
    is a note dated October 30, 2015 from the Addiction and Mental Health Services
    Supervisor reporting on a visit to that clinic by the moving party on October
    28, seeking an assessment for use in her court proceedings.  This supervisor
    reported that the physician Dr. Naeem told the moving party that to do an
    assessment for court purposes he would have to be requested to do so by the
    courts.  Ms. Aletkina seeks such an order.

[18]

Both
    Master McAfee and Justice Corbett dealt with the request for a capacity
    assessment in their reasons for decision. The result of this courts decision
    in June 24 is that her application for leave to appeal the order of Corbett J.
    is finally dismissed. In these circumstances, this court has limited
    jurisdiction.  It can order a stay pending an application for leave to appeal
    to the Supreme Court of Canada, however, any request for further relief should
    be made either to the Supreme Court of Canada or to the Superior Court of
    Justice in relation to any aspect of the trial. The rules provide that a person
    under a disability which includes a person who is incapable within the meaning
    of s. 6 or s. 45 of the
Substitute Decisions Act
, is to be represented
    by a litigation guardian who may in appropriate circumstances be the Public Guardian
    and Trustee. The
Substitute Decisions Act
requires determination of
    legal capacity to be made by assessors as defined in the regulations to that
    Act. It is open to Ms. Aletkina to request an assessment of her own capacity
    under s. 16 of the Act by following the procedures that are laid out in that
    Act.

[19]

Accordingly,
    the motion to admit fresh evidence is dismissed, except for the three documents
    in records that we have referenced in these reasons.  In the result, we see no
    error in the decision of Roberts J.A. and the motion to review is dismissed.

[20]

Costs
    to the respondent fixed in the sum of $1,500 inclusive of disbursements and
    HST.


Alexandra Hoy A.C.J.O.

J.
    MacFarland J.A.

P.
    Lauwers J.A.


