J. 1999 SKQB 209 Q.B.G. A.D. 1999 No. 1616 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JAMES BRADY PLAINTIFF (RESPONDENT) and THE ATTORNEY GENERAL OF CANADA, DAVID KEEGAN and BERWYN LARSON DEFENDANTS (APPLICANTS) E. Van Olst for David Keegan D.G. Kohlenberg for The Attorney General of Canada R.J.E. Parker for James Brady FIAT LAING J. November 24, 1999 [1] The defendant, Dr. David Keegan, applies for an order pursuant to the inherent jurisdiction of this Court, or alternatively s. 50 of The Queen’s Bench Act, S.S. c. Q-1, for an order:(1) requiring the plaintiff to be examined by a qualified psychiatrist within thirty (30) days; and(2) requiring a report from the said psychiatrist as to whether the plaintiff is mentally competent to instruct his solicitor, which report shall be filed with the Court; and(3) staying any further proceedings in this action until a report is filed. This application is supported by the other defendants. [2] The background to this law suit is decision of this Court in Brady v. The Public Trustee for Saskatchewan, Dr. David L. Keegan, et al., Q.B.G. No. 690/1999 which resulted in an order revoking certificate of incompetence issued on December 18, 1998 with respect to the plaintiff, James Brady. [3] Mr. Brady is 78 years old and widower. In the fall of 1998 one or more persons employed by the Veterans Home in Saskatoon became concerned about Mr. Brady’s mental health; particularly, with respect to his ability to manage his own financial affairs. The concern expressed was that Mr. Brady was being subjected to what was described as “elder abuse”, and was being financially taken advantage off by third party. The staff person or persons decided it was proper to have Mr. Brady’s mental competency tested and the procedures available in The Mentally Disordered Persons Act, R.S.S. 1978, c. M-14 (hereinafter referred to as the “Act”), were resorted to. [4] The Act, despite its pejorative title, exists at this point in time solely to legislate the procedures to be followed in determining if person is mentally competent to manage his or her estate. Mr. Brady was tested by the defendant, Dr. Larson, who on the basis of his examination and the test results concluded Mr. Brady was mentally incompetent to manage his estate. Dr. Larson reported the results of his examination to Dr. David Keegan who at the time was the chief psychiatrist for the Saskatoon Health District, and Dr. Keegan issued the certificate of incompetency. The result that follows from the issuing of such certificate is that the Public Trustee takes over the estate of the person named. [5] Mr. Brady, following an unsuccessful appeal to review panel provided for in the Act brought an application for judicial review. Mr. Justice Matheson of this Court granted the application on the basis the competency examination had been obtained by the subterfuge (initiated by persons other than Dr. Keegan) of asking Mr. Brady to attend medical examination in connection with pension application he had made some time earlier and then administering to him mental competency examination; and also on the basis there was no record of the review panel hearing and no reasons given by the review panel for its decision to uphold the certificate. Mr. Justice Matheson in his fiat of May 19, 1999, at pp. 11-12 stated in part as follows: The fact that he was requested to attend for physical examination, for fictitious purpose, but was then subjected to competency examination, might very well have affected his responses to the inquiries made of him. The subterfuge utilized to attempt to determine Jim Brady’s competence to administer his own affairs cannot but leave one with the impression that he was not treated fairly. That impression is in no manner alleviated by the almost total lack of information as to the review panel’s inquiry and, more particularly, the absence of any reasons whatever for the decision reached by the review panel. While there is nothing in the available material to even suggest that Jim Brady was not treated fairly during the review panel’s investigation, on the other hand the absence of the foregoing information does not permit conclusion that he received just and fair hearing. Consequently, there must be an order revoking the certificate of incompetence issued on December 18, 1998. [6] The statement of claim in this action alleges that the issuance of the certificate of incompetency has caused Mr. Brady personal injury consisting of mental anguish, emotional suffering, loss of liberty, stigmatization, etc. The claim alleges conspiracy, abuse of process, breach of fiduciary duty, and negligence. Position of the Parties [7] Counsel for the applicant states the defendants are reluctant to initiate the procedure to have the plaintiff undergo another mental competency examination pursuant to the Act because of this intervening law suit, and the fear of being further accused of improper conduct or improper motives in doing so. At the same time, the defendants are of the view that on the basis of the evidence that led to the original certificate of mental incompetency being issued, and the evidence led at the review panel, they have more than reasonable and probable grounds to believe the plaintiff lacks the mental competence to instruct counsel in this law suit. [8] The applicants recognize that if the requested order is granted, and the plaintiff is found to be incompetent, this action could nevertheless continue with the appointment of a litigation guardian. However, counsel is candid enough to admit that based on the existing law in this Province which requires litigation guardian to be independent of the interest in the matter being litigated (Vide: Szwydky v. Magiera, 1988 CanLII 4975 (SK QB), [1989] W.W.R. 165 (Sask. Q.B.)) his client would have some hope that any such independent person would not pursue this law suit. [9] Plaintiff’s counsel states the application is simply another subterfuge and abuse of process to obtain evidence to support the original findings of incompetency to the benefit of the applicants in this law suit, and to possibly obtain new certificate of incompetency. He takes the position there is no acceptable medical evidence on the issue of Mr. Brady’s incompetency due to the flawed nature of the previous examination as found by Mr. Justice Matheson, and he relies on note provided by Mr. Brady’s family physician dated February 1999 which he provided to the review panel in which he cryptically notes he had examined the plaintiff and found him to be “physically fit for his age and mentally sound”. [10] Counsel for the applicant relies on the decision of this Court in Halstead v. Anderson (1993), 1993 CanLII 9038 (SK QB), 115 Sask. R. 257 (Sask. Q.B), in support of his position that this Court has the inherent jurisdiction to make the requested order. As noted by Baynton J. in this decision, the inherent jurisdiction of the Court exists in order that the Court might control its own process and he provides examples in this respect therein. Baynton J. went on to point out at p. 265: [35] Case authority suggests that the court should decline to exercise its discretion to grant orders on the authority of its inherent jurisdiction except in clear cases. Some of the authorities go further and infer that the court should decline to invoke its inherent jurisdiction if there is some other legal means by which the applicant can reasonably and realistically obtain the relief sought. In my view there is good rationale for such principle. [36] Firstly, there is no need that the court invoke its inherent jurisdiction if the remedy sought is readily available to the applicant by some other lawful means. Secondly, the risk of bypassing or duplicating existing legal procedures set out in legislation or the rules is avoided, (as is the risk of making an order that is contrary to law). Thirdly, granting discretionary orders outside the procedural framework established by statute or common law introduces an element of uncertainty into the law. [37] accordingly conclude that even if the court has the power pursuant to its inherent jurisdiction to grant relief, it should exercise its discretion to do so cautiously, only in clear cases, and only when the relief sought cannot reasonably and realistically be obtained by the applicant in some other lawful manner. [11] On the facts in this matter an alternative does exist; namely, the Act, which if resorted to could not only determine the merits of this application (if Mr. Brady was found mentally incompetent litigation guardian would be appointed), but could also determine on the merits the mental competency of Mr. Brady for the reason an examination was requested in the first instance. [12] To the extent the defendants or relatives of the plaintiff are hesitant to re-initiate such proceedings solely because of the earlier fiat, they should not be if they still hold the view the plaintiff is incompetent to manage his estate. There is nothing in the fiat of Matheson J., or in the general law that precludes person from doing so. Matheson J. at p. 12 of his fiat noted: The foregoing conclusion is not intended, in any manner, to impugn the motives of any of the individuals who initiated the incompetency proceeding or participated therein. There is absolutely no reason to even suspect that any of those individuals were actuated by any motive other than the best interests of Jim Brady. [13] If new competency proceedings were initiated, it would be procedurally important that persons who were involved in the medical examination or opinion of the plaintiff’s mental competence not be involved in any subsequent examination, but this should not be problem. Dr. Keegan’s affidavit indicates he ceased to be the chief psychiatrist for the Saskatoon Health District as of March 31, 1999, and the new chief psychiatrist would be capable of appointing designate other than Dr. Larson to conduct any such examination. [14] Our civil procedure does not contemplate the trial of an issue on person’s competency to bring civil law suit. Our Rules contemplate only what should happen when person is ruled incompetent under other provincial statutes which exist to provide the procedures and procedural safeguards to make such determinations. These procedures contemplate medical examinations, requests for medical re-examination, review panels, and judicial review as safeguards that person not lose the right to conduct his or her own affairs on the basis of the opinion of one person. Likewise, the criminal law with respect to its provisions on fitness to stand trial requires that such determination only be made following the trial of an issue, or on the recommendation of professional review panel who review any psychiatric evaluations made with respect to such person. [15] This application requests single psychiatric examination, and suggests the results of the same should be determinative of the issue on the plaintiff’s mental competence to instruct counsel. The complex medical/legal issues on what constitutes fitness and/or ability to instruct counsel (Vide: Schiffer; Mental Disorder and the Criminal Trial Process, Butterworths, 1978, p. 65, et seq.), leaves room for difference of opinion amongst medical and legal experts. It would therefore seem inappropriate that this Court should order single examination for determination of an issue where it would be unwise to act on single recommendation. Rather than this Court attempting to set down new set of procedural safeguards for determination of person’s mental competency to engage in civil litigation, with the inevitable time and costs associated with the trial of such an issue, it is preferable that the procedures outlined in existing legislation be resorted to for any such determination. [16] If the defendants or relatives of the plaintiff choose not to seek another determination of his mental competency to manage his estate, the Court’s process will not be offended should the litigation continue. It should be emphasized, that counsel for the plaintiff as an officer of the Court has the ethical responsibility to be satisfied that his client is mentally capable of providing him with instructions at each stage in the proceedings. The mental competency required to manage one’s financial affairs may well be lesser test than whether person suffers from mental disorder that renders him or her incompetent to stand trial or to instruct counsel. The opinion of Dr. Larson emphasizes Mr. Brady’s poor memory, but does not suggest he is delusional or incapable of coherent thought. In circumstances where the evidence was overwhelming that party to civil litigation was mentally incompetent without having been certified as such, it is my view the better procedure would be for the court to refer the question of the person’s mental competence to the chief psychiatrist pursuant to s. 38.3 of the Act and allow the chief psychiatrist to determine if it was advisable to make arrangements to have the person examined. A certificate of incompetence issued pursuant to the Act has the same effect as a finding that the person is incapable of instructing counsel or understanding the proceedings of trial, for the simple reason that the issuance of a certificate would result in a litigation guardian being appointed. This is not a case where I feel obliged to take this step based on the evidence presented. [17] Counsel for the applicant raised the issue of costs as reason why the litigation should be stayed pending determination of the plaintiff’s mental competence. The argument seemed to be premised on the fact that if the plaintiff was subsequently found to be incompetent and the action was discontinued, or the defendants were successful in their defence, that they would be at risk of not being able to collect taxable costs against the plaintiff. am not aware of any law that suggests costs incurred in defending oneself in civil action against person who is subsequently found to be incapable of managing his or her estate are not recoverable from the estate of such person. [18] With respect to the applicant’s request in the alternative that the Court order an examination pursuant to s. 50 of The Queen’s Bench Act, the section provides: 50(1) In any action brought to recover damages or other compensation for or in respect of bodily injuries sustained by any person, the court may order that the person, in respect of whose injury the damages or compensation is sought, shall submit to be examined by one or more duly qualified medical practitioners, whom neither party proposes to call as witness or witnesses at the trial of the action. The applicant admits the purpose of the requested examination is not for the purpose of assessment of damages at this point in time, but for another purpose as outlined in the foregoing. This legislation does not apply to this application. [19] The application is dismissed. [20] The plaintiff is entitled to his costs of the application in any event of the cause. [21] Order accordingly.
FIAT. A defendant applied for an order pursuant to the inherent jurisdiction of the court, alternatively s.50 of the Queen's Bench Act, for an order requiring the plaintiff to be examined by a qualified psychiatrist within 30 days; requiring a report to be filed with the court as to whether the plaintiff is mentally competent to instruct his solicitor; and staying proceedings until a report is filed. The certificate of incompetence issued in December 1998 was revoked (QBG No. 690/1999) on the basis the competency examination was obtained by subterfuge (other parties had asked the plaintiff to attend a physical examination for a fictitious purpose but conducted a competency examination); there was no record of the review panel hearing; no reasons were given for the decision to uphold the certificate. The plaintiff alleged the issuance of the certificate caused mental anguish, emotional suffering, and loss of liberty and alleged conspiracy, abuse of process, breach of fiduciary duty and negligence. HELD: The application was dismissed.  1)Our civil procedure does not contemplate the trial of an issue on a person's competence to bring a lawsuit. A certificate of incompetence issued pursuant to the Act had the same effect as a finding that the person is incapable of instructing counsel or understanding legal proceedings and would result in the appointment of a litigation guardian. This step was not deemed necessary based on the evidence presented. A stay was refused.  2)Costs incurred in defending a civil action against a person who is subsequently found to be incapable of managing his or her estate are recoverable from the estate. 3)Queen's Bench Act s.50 did not apply.  4)The plaintiff was entitled to his costs in any event of the cause.