Docket: T-1332-10
Citation: 2011 FC 1125
Vancouver, British Columbia, September 30,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
|
|
JONATHON DAVID HOLLAND
(AKA JONATHAN DAVID HOLLAND)
BY HIS LITIGATION GUARDIAN,
ZSUZSANNA HOLLAND AND THE SAID
ZSUZSANNA HOLLAND
|
|
|
|
Applicants
|
|
and
|
|
|
CANADIAN HUMAN RIGHTS COMMISSION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND ORDER
[1]
Ms.
Zsuzsanna Holland (Ms. Holland) in the underlying judicial review seeks an
order that Charles Bryfogle (Mr. Bryfogle), Jonathon David Holland’s (Mr.
Holland) stepfather and non-lawyer, be appointed litigation guardian or, in the
alternative, be granted the privilege of audience to represent Mr. Holland
in the judicial review application pursuant to Rules 115 and 121 of the Federal
Courts Rules, SOR/98-106
(the Rules).
[2]
At
the beginning of the hearing in Vancouver on September 27, 2011,
Ms. Holland informed the Court and the respondent for the first time that she
is now divorced from Mr. Bryfogle and as such does not want to pursue her
motion that he be appointed as the legal representative for her son. She is now
asking the Court to order the appointment of a lawyer to be paid by the federal
government, or in the alternative that she be designated as the legal
representative to her son due to his disability.
[3]
For
the reasons that follow, the motion shall be dismissed.
Brief Statement of
Factual Background
[4]
This
matter has had a lengthy history in the British Columbia Supreme Court and in
the British Columbia Court of Appeal and is now before the Federal Court.
[5]
Very
briefly, on June 24, 2010, Mr. Holland wrote to the Canadian Human Rights
Commission (the respondent) and was informed that his inquiry was beyond the
respondent’s jurisdiction and thus, it would not be able to assist in resolving
the matter. On August 2, 2010, Mr. Holland wrote to the respondent to
express concern that it would not deal with the matters raised in his letter
dated June 24, 2010. Mr. Holland filed a Notice of Application for Judicial
Review in this Court on August 19, 2010.
[6]
Ms.
Holland and Mr. Holland were declared vexatious litigants by the British
Columbia Supreme Court on April 11, 2010 (Holland v Marshall, [2010] BCJ
No 2157 at para 11 [Holland 2010]). Justice Brown prohibited Ms. Holland
and Mr. Holland, together or separately, and in any name, from bringing or
commencing proceedings in the British Columbia Supreme Court without leave of a
justice of the court (Holland 2010 at para 12).
[7]
Ms.
Holland described herself as the litigation guardian of her son, Mr. Holland,
who was born on April 18, 1987. On March 17, 2011, Justice Russell found that
Ms. Holland was not and is still not the Court-appointed litigation guardian
for Mr. Holland. Further, Justice Russell issued an order adjourning the
judicial review hearing with the following conditions to be satisfied by the
applicants:
1) This application is
adjourned sine die in order to give the Applicants time to either find
and appoint qualified counsel or to bring a motion before this Court to
determine how and by whom Jonathon will be represented when this application is
heard;
2) The Applicants will have
30 days from the date of this Order within which to either inform the Court in
writing that qualified counsel has been appointed to represent Jonathon in this
matter, or to serve and file their notice of motion record seeking a
determination by the Court as to Jonathon’s representation at the hearing of
this application.
[8]
As
such, a motion was filed as ordered and set down to be heard at the General
Sittings in Vancouver on May 2,
2011. On April 28, 2011, Justice Pinard adjourned the hearing and asked that
the motion be set down at a special sitting.
[9]
During
this time, a Notice of Constitutional Question was filed by the applicants. On
July 5, 2011, I directed that the only issue to be dealt with at the hearing on
September 27 and 28, 2011, is to determine how and by whom Mr. Holland will be
represented.
Issues
[10]
The
issues on this motion are as follows:
a. Is Mr.
Holland a person under legal disability?
b. If so, should
the Court designate a lawyer to be paid by the federal government to be the
legal representative of Jonathan David Holland or in the alternative can
Ms.Holland be appointed as his legal representative?
a. Is Mr. Holland
a person under legal disability?
Applicants’ Arguments
[11]
The
applicants contend that Mr. Holland has been deemed legally disabled by Dr.
Miller, Dr. Bogyo, Dr. Kettner and the Province of British
Columbia
(Applicant’s Motion Record, pp 16-28; pp 29-43; pp 45-6; pp 64-67). The
applicants underscore that this Court has the authority to appoint a
representative for Mr. Holland under Rule 115 and Rule121.
Respondent’s
Arguments
[12]
The
respondent contends that no sufficient evidence has been filed to support the
claim that Mr. Holland is in need of a litigation guardian. The applicants
submit a number of medical reports that were already found insufficient by the British
Columbia
courts. The respondent notes that the British Columbia Court of Appeal was
very critical of Dr. Bogyo’s report and conclusions in Holland (Guardian ad
litem of) v Marshall, [2009] BCJ No 1294 at paras 31-37 [Holland 2009].
Further, the respondent asserts that Dr. Miller and Dr. Kettner’s reports did
not conclude Mr. Holland to be a person under a legal disability and unable to
act on his own.
[13]
Based
on almost the same evidence adduced before this Court, the British
Columbia
courts have reached the same conclusion: Mr. Holland is not a person under legal
disability (Holland 2009). The respondent declares that this
Court should not reach a completely different conclusion when the evidence is
almost identical.
[14]
Further,
the respondent submits that the Court should be careful in finding a person
under a legal disability in the absence of clear and uncontroversial
evidence supporting that conclusion when that person has not appeared before
the Court. Accordingly, as found by the British Columbia Court of
Appeal in Holland 2009, at para 49, Mr. Holland should be
able to represent himself in court with some assistance.
Analysis
[15]
Rule
115(1)(b) specifies that the Court may appoint one or more persons to represent
a person under a legal disability. Rule 121 requires that a person for
whom a representative is appointed must be represented by a solicitor. The
central concern in this motion – whether Mr. Holland is in fact legally
disabled – was addressed by Justice Neilson of the British Columbia Court of
Appeal in Holland 2009, who was faced with almost the identical issue
based on the same facts as in the present case (Holland 2009).
[16]
In
Holland 2009, Mr. Holland submitted an application for an order permitting
Ms. Holland and Mr. Bryfogle to appear as his agents and designated
representatives on his appeal, on the basis that he was a legally disabled person.
Justice Neilson raised several concerns with respect to Dr. Bogyo’s
medical report in that it did not address the central question of whether Mr.
Holland’s mental state seriously impaired his ability to react appropriately to
his environment or to associate with others (Holland 2009, above at para
31). Accordingly, Justice Neilson concluded the following at para 37:
I am satisfied on the evidence that Mr. Holland does have
ADHD, that he experienced difficulties in school, and that he has some ongoing
problems with memory. I am not convinced, however, that he has a mental
disorder that impairs his ability to react appropriately to his environment or
to associate with others. Nor is he a person under disability within the
meaning of R. 6 [emphasis added].
[17]
Although,
Dr. Miller's report dated July 7, 2011, was not filed in the Court of Appeal,
Ms. Holland admits that the conclusion of that report was discussed and
she was authorized to represent her son for that hearing.
[18]
Dr.
Miller's report (Applicant’s Motion Record, p 19) states:
"The patient is likely to
have some problems with respect to higher-order decision making and reasoning,
and particularly if the material is of more verbal nature. If he is required to
work through with the material, he will likely need additional time to
comprehend and appreciate the content of information. If he is expected to
arrive at the decision following reading or hearing more language-based
information, it is recommended that he have assistance and/or guidance to ensure
that he takes into account all important aspects of a situation to make
informed decisions".
[19]
I
share the respondent’s view, based on almost the same evidence adduced before
this Court, that I am unable to reach a different conclusion than the British
Columbia Court of Appeal (Holland 2009, at para 25-37). Accordingly, I
cannot find Mr. Holland to be legally disabled.
b. If so, should the Court designate a
lawyer to be paid by the federal government to be the legal representative
of Jonathan David Holland or in the alternative can Ms. Holland be appointed as
his legal representative?
Applicants’
Arguments
[20]
Ms.
Holland argues that the federal government should pay for a lawyer for her son
because the proceedings are complex and her son does not have the capacity to
represent himself properly. She tried without success to obtain legal counsel
for him.
[21]
She
contends that she is prepared to stand as interim litigation guardian or as
representative for theses proceeding. She also submits that based on the
medical reports, a fair hearing cannot occur without representation since Mr.
Holland is legally disabled (Minister of Health and Community Services) v
G(J), [1999] 3 S.C.R. 46.
[22]
Ms.
Holland cites Peter v Canada (Attorney General), [2009] FCJ No 528;
Marsden v Canada (Minister of Human Resources and Skills
Development Canada), [2006] FCJ No. 1571;
Re Weidenfeld, [2007] OJ No 4485, for the proposition that
the Court has the obligation to designate a lawyer paid by the government to
represent a disabled person.
Respondent’s
Arguments
[23]
The
respondent recognizes that Ms. Holland has at heart the best interests of her
son but opposes the remedies that she asked. First, none of the
above-mentioned cases support an obligation for the Court to designate a lawyer
paid by the government to represent Mr. Holland. Second, Ms. Holland should not
be designated as the legal representative to her son because he is not a person
under a legal disability, unable to act on his own.
[24]
The
respondent accepts that it is in the Court's discretion to name Ms. Holland as
an agent to her son for the service and filing of proceedings. The respondent
accepts also that Ms. Holland can assist her son but she cannot be appointed
his legal representative.
Analysis
[25]
The
Court cannot grant the remedy asked by Ms. Holland since the Court is not
satisfied that Mr. Holland is a person under disability.
[26]
Rule
121 specifies that “[u]nless the Court in special circumstances orders
otherwise, a party who is under a legal disability or who acts or seeks to act
in a representative capacity, including any representative proceeding for a
class proceeding, shall be represented by a solicitor”[emphasis added].
[27]
Ms.
Holland is not a lawyer. In her response to Justice Russell at the hearing on
March 17, 2011, she admitted that she did not feel competent enough to
represent her son and said that she would prefer counsel to do that (pages
21-22 of the transcript).
[28]
Ms.
Holland was declared a vexatious litigant by the British Columbia
Supreme Court (Holland 2010).
[29]
The
Court is also not satisfied that Ms. Holland adduced sufficient evidence as to
why it is impossible for her son to obtain legal representation.
[30]
The
Court is of the opinion that the issues and the facts in the case law cited by
Ms. Holland are not the same as in the present case.
[31]
The
respondent did not seek costs.
ORDER
THIS COURT
ORDERS that
the motion be dismissed. No costs are awarded. In order to advance this file,
the applicant, whether he intends to represent himself in the future or appoint
a counsel shall do so by advising the registry no later than October 15, 2011. Thereafter,
the other relevant Rules shall apply.
“Michel
Beaudry”
Email this Content