Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation: Ocean v. Economical Mutual Insurance Co.,

2009 NSCA 81

 

Date: 20090717

Docket: CA 301593

Registry: Halifax

 

 

Between:

May Ocean

Appellant

v.

 

Economical Mutual Insurance Company

Respondent

 

 

Judges:                  Roscoe, Bateman and Hamilton, JJ.A.

 

Appeal Heard:      May 28, 2009, in Halifax, Nova Scotia

 

Held:           Appeal allowed per reasons for judgment of Bateman, J.A.; Roscoe and Hamilton, JJ.A. concurring.            

 

Counsel:               appellant in person

Patricia Mitchell and Scott Campbell, for the respondent

 

Reasons for judgment:

 

[1]              May Ocean’s car was struck by a vehicle operated by the respondent Raymond Patrick Sullivan, an uninsured motorist.  She was insured under a motor vehicle insurance policy with the respondent Economical Mutual Insurance Company (“Economical”).  When Economical declined to respond to her claim under the uninsured provisions of her policy, Ms. Ocean sued her insurer as well as the driver of the other vehicle.  This is an appeal from an interlocutory Order arising in the course of that action.  That Order required Ms. Ocean to undergo a psychiatric assessment to determine her fitness to conduct litigation on her own behalf.  At the time of writing these reasons Ms. Ocean has attended for the assessment but the report has not been delivered to the court.

 

BACKGROUND

 

[2]              The general background to the appeal is summarized in the reasons for judgment of Oland, J.A. following an application by the appellant to this Court seeking to stay the Order under appeal.  That decision is reported as Ocean v. Economical Mutual Insurance Company, 2009 NSCA 9:

 

[2]        In December 2000, the appellant, May Ocean, was involved in a motor vehicle accident with the respondent, Raymond Patrick Sullivan.  He was allegedly an uninsured motorist.  In 2002, she sued Mr. Sullivan and the respondent, Economical Mutual Insurance Company of Canada, pursuant to the uninsured motorist provisions of her own insurance policy, for personal injuries allegedly suffered in the accident.  Ms. Ocean has represented herself since late August 2006.

 

[3]        Trial dates were set for several days commencing September 26, 2008.  On September 10, 2008, Economical Mutual applied for an order that Ms. Ocean be assessed by an independent medical expert to determine her competency to represent herself in the proceeding.  At the conclusion of the hearing on September 17, 2008, Smith, A.C.J. of the Nova Scotia Supreme Court gave an oral decision granting the order and adjourning the trial.  She granted the order pursuant to Civil Procedure Rule 23 and, alternatively, the inherent jurisdiction of the court.  According to counsel for Economical Mutual, this is the first time that a court in this province has issued such a ruling in a civil case.

 

[4]        In the course of her decision,  which is reported as Ocean v. Economical Mutual Insurance Company et al., 2008 NSSC 282, the judge stated:

 

[17]      As I indicated previously, Ms. Ocean is advancing a significant claim in excess of $500,000.00. She is a self‑represented litigant and suggests that she suffers from Post Traumatic Stress Disorder. ...

 

[18]      I have an obligation as a trial judge to help to insure that the parties to this action receive a fair trial. In order to insure that the plaintiff receives a fair trial, I must be satisfied that she is competent to represent herself in this proceeding. The evidence that has been presented satisfies me that it is appropriate to order a psychiatric examination of Ms. Ocean to determine this issue.

 

[3]              To more fully explain how the assessment order came about I will provide further detail.  In so doing I will refer to some of the key events primarily from Ms. Ocean’s perspective because her view of how this litigation has unfolded is important to understanding her case against Economical.  It is impossible to adequately summarize all of what has transpired over the nine years of this litigation.  Some of the occurrences to which I will refer are, in the legal sense, allegations which must eventually be proved by Ms. Ocean.  However, in her view they are indisputable facts.  In referring to these events I am making no factual findings.  The facts are to be determined only after a trial of the action.  Some events are a matter of record and beyond dispute.  The following summary is not complete, not always chronological and provided only for the purpose of context.

 

[4]              Ms. Ocean believes that, from the outset, Economical has been dismissive of her claim.  This, she says, is evidenced by the fact that it immediately took the position that the accident was her fault and refused to investigate the circumstances.  With no progress for four months after the accident, she found it necessary to retain counsel and to commission and pay for her own investigation.  That investigation produced a key witness. 

 

[5]              As a result of Economical holding her at fault for the accident, Ms. Ocean says her automobile insurance was cancelled and she was unable to obtain alternate coverage at an affordable rate.  Her only option was to secure coverage through a high risk facility underwriter at a premium running around $10,000 which was about five times what she had been paying through Economical.  She could not afford that coverage.

 

[6]              Eventually Economical commissioned an accident reconstruction report which is dated July 16, 2001.  The writer of that report concludes that Ms. Ocean was not at fault for the accident.  Notwithstanding that finding she was still unable to secure insurance coverage from any insurer at a reasonable rate.  She believes that her file had been “red flagged” by Economical in a way that alerted other companies that she had been at fault for the accident and was a poor insurance risk.  She believes that the negative alert remained in place despite Economical having received the expert’s report effectively exonerating her.

 

[7]              Hoping to rectify her insurance record Ms. Ocean sought help from the Superintendent of Insurance, the Insurance Bureau of Canada, the Ombudsman, the Better Business Bureau and the Minister responsible for insurance, but to no avail.

 

[8]              Ms. Ocean asked her insurance broker to intervene with Economical on her behalf to remove any negative remarks on her file so that she could obtain substitute coverage.  Although the broker agreed to assist her, Ms. Ocean concluded that she was reluctant to do so for fear of losing the opportunity to offer Economical’s insurance product to other clients. 

 

[9]              Eventually Ms. Ocean threatened to picket Economical’s offices and commence a hunger strike to draw attention to the company’s treatment of her.  By letter dated March 7, 2002 Gordon Murray, Branch Manager for Economical offered an apology, stating that that “the initial stages of this claims process have not gone well” and enclosed a copy of a letter, of the same date, sent by Mr. Murray to Ms. Ocean’s broker clarifying that it was Economical’s position that the third party was wholly responsible for the accident.

 

[10]         In December of 2002 Ms. Ocean’s counsel commenced a legal action against Economical and the other driver.  Notwithstanding the contents of Mr. Murray’s letters, in November of 2003 Economical filed a Defence which, inter alia, maintained that Ms. Ocean was at fault for the accident and denied that she had a valid policy of insurance with Economical at the relevant time.  While this may have been a standard form of Defence, Ms. Ocean could not understand how Economical would allege such things in the face of her own investigation, the insurer’s reconstruction report and the Mr. Murray’s admissions in the March 7, 2002 letters.

 

[11]         There were a number of other strange events which Ms. Ocean attributed to her dispute with Economical.  To provide but one example, the cost of her adult children’s motor vehicle insurance coverage was inexplicably increased.  This  caused Ms. Ocean to conclude that Economical was using its corporate influence against her and her family. 

 

[12]         Ms. Ocean believes that the insurance industry exercises what she terms as “monopolistic conglomerate activity”.  I understand this to mean that she is of the view that the various insurance companies work together, effectively as one, against the interests of individual insured persons, such as Ms. Ocean.

 

[13]          Ms. Ocean was diagnosed with moderate to severe post-traumatic stress disorder (“PTSD”) resulting from the motor vehicle accident.  She was referred to a psychologist, Tracey Earle, for related therapy.  Ms. Earle provided an interim progress report to Economical on November 20, 2001, advising that Ms. Ocean was exhibiting symptoms of depression in addition to the PTSD, which depression was exacerbated by the ongoing stress of dealing with the unresolved insurance issues. 

 

[14]         Ms. Ocean says that the PTSD caused hyper-vigilance as well as both  concentration and sleep difficulties.  To cope with the PTSD symptoms Ms. Ocean began conceptualizing, then writing, short fictional stories.  From these activities she progressed to further reflection, research and writing which, she says, has led to some significant discoveries.  For example, she believes that she has discovered the origins of all modern language, which she terms “the Root language of mankind”.  She has further hypothesized that modern mankind is a product of highly evolved and perfectly conjoined twins.  She has done extensive research and writing on these and other theories.  The writings initially came to the attention of the respondent when Ms. Ocean referred to them as an example of her method of coping with the PTSD.  They have now become central to this challenge to Ms. Ocean’s competence. 

 

[15]         Ms. Ocean’s case has been plagued by a number of procedural difficulties.  She was initially represented by counsel.  Ms. Ocean says that it was not until 2006 that she first saw the 2002 Statement of Claim issued by her lawyer.  It was then that she learned that her action, as put forward by her lawyer, was limited to the claim for the motor vehicle accident itself (as against the other driver) and a claim against Economical for refusing to respond under the uninsured motorist provisions of her contract.  In her view the lawyer knew that her claim should have included an allegation of negligence and breach of a duty of good faith (which I will refer to as the “negligence” claim) against Economical, arising from the way in which she and her claim were treated by the company.  The fact that the negligence claim was not made as well as other action or non-action by her lawyer caused Ms. Ocean to lose confidence in him.  She became concerned that her lawyer was colluding with counsel for Economical to work against her interests by, for example, intentionally failing to include the negligence claim.  Ms. Ocean parted ways with her counsel and is now self-represented.  She would like to be represented by a lawyer but cannot find one to act on her behalf.

 

[16]         Over the course of this litigation Ms. Ocean’s pewter design and production business declined dramatically which she attributes, at least in part, to the combined effects of her PTSD; her poor physical health; the stress of dealing with her insurance situation and the litigation.

 

[17]         Economical sought production of detailed financial information relating to Ms. Ocean’s alleged business reversals.  When sufficient information was not forthcoming, Economical applied to strike her claim.  That application was eventually dismissed.

 

[18]         Economical obtained an order for an independent medical examination by a psychiatrist to assess Ms. Ocean’s PTSD claim (Civil Procedure Rule (1972)  22.01).  Economical retained psychiatrist Dr. Edwin Rosenberg who conducted a two hour interview with Ms. Ocean.  The insurer provided Dr. Rosenberg with court documents and some of Ms. Ocean’s extensive writings about her discoveries and theories which material Dr. Rosenberg used, along with the interview, in forming his opinion.

 

[19]         Dr. Rosenberg’s opinion letter to Economical’s counsel is dated February 10, 2005.  As he reported, during the interview Ms. Ocean outlined her perception of the difficulties she had encountered in dealing with her insurer.  She explained to him that she believed that for the past four years of the litigation Economical had been “trying to beat [her] down”.  She felt the emotional and mental anguish she suffered as a result of her dealings with the insurance company caused her far more impairment in functioning that did the physical injuries resulting from the accident.  Dr. Rosenberg concluded the report with the following opinion:

 

Ms. Ocean’s symptomatology is based on a delusional system, based on her anger toward her previous insurer, wherein she has elaborated a thought system based upon her belief that the insurance company has been conspiring against her.  This belief system is all inclusive, and has gathered various of Ms. Ocean’s caregivers and supporters into its midst.  As well, seemingly random occurrences have been attributed by Ms. Ocean to the machinations and influence of her insurer.

 

In the absence of any previous history of delusional thinking, it is my opinion that the precipitating event/stressor leading to the development of persecutory delusional thinking in Ms. Ocean was her perception of the response of her insurer to the accident, “increasing” her insurance rates.  Further, it is my opinion that it is not the accident itself which has led to this delusional system, but, rather, the actions of the insurance company as perceived by Ms. Ocean.

 

The effect of delusional disorder on functional ability is variable on occupational and social functioning.  However, from the description offered by Ms. Ocean at this assessment, it is my opinion that it is her personal choice, and not a choice dictated by delusional thinking, to be involved in “research and writing”, and not in her pewter business.

 

The clinical course of delusional disorder is variable.  The prognosis for delusional disorder with a precipitating event or stressor may be somewhat better, particularly with resolution of the precipitating stress.  Management of individuals with delusional disorder is best attempted by psychotherapy, both supportive and explanatory, describing how certain reactions to stress may give rise to delusional systems. 

 

Please note that on the basis of review of documentation and examination of Ms. Ocean, I was unable to confirm a diagnosis of post-traumatic stress disorder relating to the accident of December 2000.

 

[20]         This report, together with a comment by Ms. Ocean in one of the many appearances before the Court, set in motion the events which resulted in the Order on appeal.

 

[21]         Ms. Ocean applied in June of 2008 to amend her claim to include the negligence and breach of good faith allegations.  It was Economical’s position  that her negligence claim was barred under the Limitation of Actions Act, R.S.N.S. 1989, c. 258.  Alternatively, Economical submitted that, if the amendment were to be granted, the action should be bifurcated with the negligence claim heard at a future date, separate from the original action.  The hearing on the amendment application commenced on July 9 and continued on July 28, 2008. 

 

[22]         As Ms. Ocean explained at the time of those hearings, she had researched the limitation issue as best she could as a lay litigant and found law which she understood to say that limitations do not run against minors and others who are  “incapable of advancing a claim during the relevant time”.  It was Ms. Ocean’s submission to the court that she was “incapable” of making the negligence claim  prior to the expiration of the limitation period because she had been physically ill;  under a great deal of stress for a significant period of time; was suffering the effects of PTSD; was trying to keep her business afloat and had been struggling with the insurance industry to have her good standing reinstated. 

 

[23]         The judge inquired as to whether Ms. Ocean was claiming that she was “currently” mentally incompetent.  In a lengthy exchange with the judge Ms. Ocean advised that due to the stress of the proceedings and her ill health she did not feel mentally competent to proceed with the action “at that time”.  It is clear from the exchanges on the transcript around this issue that Ms. Ocean and the judge were speaking at cross purposes.  While the judge was asking about Ms. Ocean’s mental competency, Ms. Ocean was speaking about her “incapacity” to make the claim within the limitation period and of the fact that she currently found the legal process to be overwhelming.  Ultimately Ms. Ocean seemed to agree that  she did not feel completely competent to proceed with her case at that time but stated that she wanted to press on with it.  She now submits that she did not appreciate that in agreeing she was not mentally competent she would put her sanity in issue.  She understood incompetence to be synonymous with incapacity, which she had raised on her application to amend the pleadings.  She believed she was speaking of the effects of her physical health, the PTSD and the fact that she found the requirements of the litigation increasingly overwhelming as the trial approached.  Ms. Ocean says that the inquiry into her mental competency took her completely by surprise, arising as it did in the middle of her amendment application. 

 

[24]         On July 31, 2008, when the parties appeared before the judge for the decision on the amendment and bifurcation applications, the judge scheduled a further hearing for August 5 to discuss procedural matters in preparation for the trial, as well as her concern about Ms. Ocean’s competence to represent herself.

 

[25]         Before that further date, the judge granted both Ms. Ocean’s application to amend the statement of claim and Economical’s application to bifurcate the action, with the negligence claim to be heard separately from the main claim.  One of the reasons for splitting the claim was to preserve the September 2008 trial dates for the original action.

 

[26]         At the August 5, 2008 hearing Ms. Ocean, in addressing the question of her competence, said:

 

MS. OCEAN: Well, pretty much I’ve said everything in the 10 page letter [dated August 1 and addressed below] that I’ve thus provided.  I know that perhaps Mr. Sullivan [the other driver] hasn’t had the proper time to go over that.  But I would say that, for a member of the general public, I would say that I’m competent in that regard, but I do have some issues, and I’ve stated that right along, and they  – that can't be avoided. 

 

And the fact that I’m here speaking now, that says a lot to me.  I’ve been able to get myself to the point where I can move ahead and I feel more confident as every day goes by, so I don’t suspect that there would be a problem.  It’s just that I know from experience in the last while that I can tend to seize up, and a lot of that, I believe, is from the post-traumatic stress disorder.  So  – but I believe I can also override that.  It’s difficult at times and there could be a moment where I might have to just get a hold of myself, but I do not see a problem.

 

You know, as far as my mental awareness, I would say probably its more keen than its ever been, and so I have confidence that that will guide me through.

 

[27]         In two very lengthy letters to the judge dated August 1 and, later, August 28, 2008 Ms. Ocean attempted to assure the judge that she was competent to represent herself.  She wrote that she had not meant to say that she was not “mentally competent" in the legal sense and felt she was able to conduct the litigation on her own behalf.  The letters were somewhat rambling and, to an extent, dealt with issues much broader than those engaged by the litigation before the court.  This is driven by Ms. Ocean’s determination to publicly expose the alleged predatory activities of the insurance industry which work against the consumer’s interests.  Included in these letters were details of her discoveries resulting from her research and writing, which she feels were prompted by the PTSD.  She feels the heightened awareness that accompanies PTSD has enabled her to perceive with greater clarity the malfeasance by the insurance industry.  The rambling nature of these writings undoubtedly contributed to the judge’s concern about Ms. Ocean’s competence. 

 

[28]         Ms. Ocean’s letters and submissions did not assuage the judge’s concerns about her mental competence.  She provided Ms. Ocean with three options: the court could order a psychiatric examination; or subpoena Ms. Ocean’s doctors for testimony about her mental status; or, Ms. Ocean could provide a certification of competence from her family doctor that “ . . . in the doctor’s opinion, [Ms. Ocean is] capable of managing her own affairs at this time”.  Because a requirement for a medical examination would inevitably delay the commencement of the trial beyond the scheduled September dates and, as Ms. Ocean explained to the Court, the second choice was not an option because she had only one doctor - her family physician, Ms. Ocean chose to bring a certificate from her doctor.  She said:

 

MS. OCEAN:  Yeah.  I would say that would be my best option, if this is required.  I mean, at this point in time I feel confident enough.  And as far as I’m concerned, when it was brought up about competency, it was based on originally my thinking that – – it was capability.  And you have to recall that I was also thinking in terms of what had transpired over the last eight years, and I was going through several traumatic episodes.  And I survived all of them to bring me to this point.

 

Yes, it has worn on my physical body, there’s no question in my mind as to that.  Yes, it has worn on my mental capabilities.  And, you know, as I’ve said, there are some issues where I feel more astute than ever before, and there are some issues, it’s kind of like a stutter developing, okay.  There’s wounding and damaging that creates a problem, you know, but I do not see in any regard that that means I’m incompetent to proceed.  I believe – – you know, we are all human.  There is no guarantee for anybody for that matter.  But Kathy is here as my support person.  She’s also a certified person in – – as a firefighter and, you know, emergency health care.  So, you know, she’s aware of my situation, which is one of the reasons why she’s here as a support for me, and I recognize that I need her and she recognizes that I need her.

 

So given that, that gives me more confidence.  I don’t feel so threatened.  And I’m sure that this is probably pretty much normal anyhow.  I know, for instance, that Raymond Sullivan [the other driver] has his mother here.  I mean, this is not easy for us.  You know, so – – but on that regard, if a letter is required, I’m sure my doctor would have no problem with that.  She knows my story.  Even though she’s relatively new, she’s been aware of my health and she’s aware of the, you know, problems that I’m having there and she can testify as to whether at least physically – – I don’t know, you know, as far as the mental goes, that might be a little difficult.  She may not feel . . .

 

THE COURT: That’s the only area, quite frankly, I’m interested in right now.  We’ll deal with – if physical issues arise during the trial, we’ll deal with them.  But your comment the other day which related to limitation period, the suggestion was made that, because you were incapable – – and I asked you specifically, “Are you suggesting that you’re mentally incompetent?”  And you did eventually say, “Yes, I am”.                 

 

With that statement on the record, and with some of your writings, I want to ensure that you are competent and can proceed with this trial, and I want to do that before the trial begins, not after it’s over.  So . .

 

MS. OCEAN: No, I – – I understand, My Lady

 

THE COURT. Okay.

 

MS. OCEAN:  . . exactly where you’re coming from.  And my angle, when I said – – talked about incompetency, I mean, I don’t have a dictionary before me.  But, you know, my view on that was how I would be able to proceed to represent myself given that I know that there are times I feel almost overwhelmed and I need to take a break, kind of, way of looking at it.

 

As time goes by I feel more confident, as I’ve expressed in my letter.  I feel more sure.  I know what you’re saying about my writings, and I’ve stated before that, until you hear them all from beginning to end, you know, of course – – you know, as I’ve said, Darwin was thought of as incompetent.  You know, some of my things are out there because that’s who I am.  I’m a creative person.  I see things from a different angle that perhaps others don’t.  And that, as I’ve stated too, comes from the post-traumatic stress disorder.  It set me in a field that perhaps we need to look at that.  I think that it will shed new light on what we consider to be post-traumatic stress, and . . .

 

THE COURT: So, let me make sure I understand you.  So you’re saying that you – – of the three options, your preferences is option number three, and  am I correct that you have no difficulty getting a certificate of competency so that we can move forward with the trial, all being comfortable with the fact that you’re competent?

 

MS. OCEAN: well, I have no difficulty with approaching my doctor with that.

 

. . .

 

THE COURT: Let me make sure you’ve written down the words that are in the Civil Procedure Rules.  I want to know that you’re capable of managing your own affairs, in the doctor’s opinion.  And I’d like you to bring that with you on September 3rd, because if – – if you don’t have the certificate of competency, I’m going to have to look at other options that are available. 

 

MS. OCEAN: So all that you would require is a letter stating that, to that effect?  Okay. ...

 

[29]         On August 11, 2008 Ms. Ocean provided a communication from her doctor attesting to her competence.  It was a brief note written on a prescription pad, signed by her doctor, Saroj Premsagar, and stating that “ [May Ocean] is competent to defend herself in court”.  As Ms. Ocean explains, she would have preferred to have a formal letter from her doctor, but the doctor, who was very busy, chose to provide her opinion in that form.      

 

[30]         In a letter to the court dated September 2, 2008, preparatory to a pre-trial conference to be held the following day, counsel for Economical stated that she was not satisfied by Dr. Premsagar’s note and requested a court appointed medical examination.  Economical’s counsel advised the court that she was concerned that, once the issues in dispute were resolved after a lengthy trial, Ms. Ocean might allege that she had been incompetent to act on her own behalf, resulting in the proceeding being nullified.

 

[31]         This narrative does not begin to capture the volume of interlocutory issues that were before the courts at this time.  As these matters were being addressed the parties were fully engaged preparing for the September trial.  This gave rise to additional applications which are not directly relevant to the issue on this appeal.  To provide one such example: believing that counsel for Economical had been complicit in Economical’s ill treatment of her, Ms. Ocean subpoenaed Ms. Mitchell to appear at trial.  Ms. Mitchell applied to quash the subpoena.  In response to the motion to quash Ms. Ocean filed a lengthy affidavit, again including considerable detail about her writings and discoveries.

 

[32]         On September 10, 2008 Economical, pursuing the position stated in the September 2 letter, formally applied to the court, pursuant to Civil Procedure Rules (1972) 22 and 23 or the inherent jurisdiction of the Court, for an order requiring that Ms. Ocean “be assessed by an independent medical expert as to her competency to continue to represent herself”. 

 

[33]         The application was heard on September 17, 2008 and resulted in the Order on appeal.  In support of the application Economical filed a September 10, 2008 affidavit of Dr. Edwin Rosenberg.  The affidavit included, among other things, a copy of his earlier February 10, 2005 report (see para. 19, above); a January 2007 follow-up report in letter format; and a list of Ms. Ocean’s writings and documents that had been provided to him by Economical.  Dr. Rosenberg had no further direct contact with Ms. Ocean.  His updated opinion was based upon the written material provided to him by Economical.  In his affidavit Dr. Rosenberg states that he is unable to reach any conclusions on Ms. Ocean’s competency to represent herself in court proceedings but adds:

 

[15]  . . . However, having reviewed the material submitted by Ms. Ocean since my January 2007 report, it is my opinion that Ms. Ocean has most probably developed a serious and dramatic escalation of the original delusional order (sic) which now interferes with her ability to separate reality from fiction and which certainly impacts significantly on her mental competency and ability to represent herself at trial.

 

[34]         According to Dr. Rosenberg’s affidavit, the evidence of Ms. Ocean’s alleged escalating delusional state included the increased rhetoric in her submissions to the court; the frequent repetition of her views of factual issues and concepts surrounding the litigation; and the content of her writing about her discoveries about twinning and the root language of mankind.

 

[35]         He further opined:

 

[24]  Based on a review of the most recent written submissions by Ms. Ocean, it is my opinion that she is not able to understand the issues and purpose of the trial, comprehend the nature of the evidence she must present to support her claim, or give evidence in a cogent fashion at the September 26, 2008 trial.

 

[36]         At the September 17th hearing Ms. Ocean cross-examined Dr. Rosenberg on his affidavit.  In her questioning she challenged the reliability of his opinion by  suggesting that he was biased in favour of insurance companies from whom he derived a significant amount of income from preparing such reports.  She disputed his reference in the first report to her having said that there was a “conspiracy” in the insurance industry.  Dr. Rosenberg acknowledged that he could not recall whether or not she had used the descriptor “conspiracy”.  She further asked Dr. Rosenberg whether, to the extent that he based his diagnosis of delusional behaviour on her beliefs of conglomerate monopolistic activity by the insurance industry, should she establish that such activity was occurring, would he agree that her beliefs would not then be delusional.  Dr. Rosenberg acknowledged that such would be cause for reconsideration of his opinion in that regard.  Without reviewing the cross-examination in detail, it suffices to say that Ms. Ocean conducted it in a coherent, respectful and effective way.  While she does not exhibit the focus or skill of a trained litigator she was able to make her points. 

 

[37]         It bears noting that included in the documentation listed by Dr. Rosenberg as reviewed preparatory to the hearing were the records of Ms. Ocean’s former psychologist, Tracey Earle who treated her for the PTSD.  There is no suggestion in Dr. Rosenberg’s affidavit that Ms. Earle had recorded concerns about Ms. Ocean’s competence.

 

[38]         The judge’s reasons on the application are reported as Ocean v. Economical Mutual Insurance Co., 2008 NSSC 282; [2008] N.S.J. No. 419 (Q.L.).  I will quote from that decision:

 

11     Economical has applied pursuant to the inherent jurisdiction of the court and Civil Procedure Rules 22 and 23 for an Order requiring that Ms. Ocean be assessed by an independent medical expert as to her competency to continue to represent herself in this proceeding. In support of this application they have filed an affidavit of Dr. Edwin M. Rosenberg. Dr. Rosenberg saw the plaintiff for the purpose of a medical examination at the request of Economical on January 25th, 2005. In February of 2005, Dr. Rosenberg prepared a report in which he diagnosed Ms. Ocean with a delusional disorder, persecutory type. In a further report dated January 18th, 2007, Dr. Rosenberg confirmed this diagnosis. According to Dr. Rosenberg's affidavit sworn to on September 10th, 2008, earlier this month he received and reviewed further documentation from Economical's counsel including the materials that Ms. Ocean has filed with the court in recent months. At paragraph 15 of Dr. Rosenberg's affidavit he states:

 

15.       I am unable to make any final conclusion or diagnosis regarding Ms. Ocean's competency to represent herself in this litigation at this time. A personal assessment of Ms. Ocean would be required in order to reach a conclusion on competency. However, having reviewed the material submitted by Ms. Ocean since my January 2007 report, it is my opinion that Ms. Ocean has most probably developed a serious and dramatic escalation of the original delusional disorder which now interferes with her ability to separate reality from fiction and which certainly impacts significantly on her mental competency and ability to represent herself at trial.

 

12     Further, at paragraph 19 of this affidavit, Dr. Rosenberg states:

 

19.       In my opinion, there is a blurring of fantasy and reality interfering with her ability to relate to the world and which would necessarily interfere with her ability to represent herself in court, beyond the normal lack of legal skills possessed of a self‑represented litigant and in keeping with mental incompetence.

 

13     Finally, at paragraph 24 of his affidavit Dr. Rosenberg states:

 

24.       Based on a review of the most recent written submissions by Ms. Ocean, it is my opinion that she is not able to understand the issues and purpose of the trial, comprehend the nature of the evidence she must present to support her claim, or give evidence in a cogent fashion at the September 26, 2008 trial.

 

14     During his testimony this afternoon, Dr. Rosenberg confirmed that he is not suggesting that Ms. Ocean is incompetent. However, he feels that it would be appropriate for Ms. Ocean to be assessed by an independent psychiatrist who is experienced in dealing with issues of competency.

 

15     Ms. Ocean, understandably, disputes Dr. Rosenberg's suggestion that she is delusional and, in her written submissions to the court, points out that if her beliefs are in fact correct ‑‑ then she would not fit the definition of "delusional". Ms. Ocean notes that she has a number of support people who will help her during the trial and submits that the defendants have not submitted sufficient evidence for me to order an assessment.

 

16     I have considered the various materials and authorities filed, as well as the evidence and representations made in court today. I have concluded that it is appropriate to grant an Order requiring Ms. Ocean to be assessed by an independent expert to determine her competency to represent herself in this proceeding.

 

17     As I indicated previously, Ms. Ocean is advancing a significant claim in excess of $500,000.00. She is a self‑represented litigant and suggests that she suffers from Post Traumatic Stress Disorder. She has been diagnosed by Dr. Rosenberg as being delusional. While her family doctor has written a brief note indicating that she is "competent to defend herself in court" I am not satisfied that that brief note adequately deals with Ms. Ocean's situation.

 

18     I have an obligation as a trial judge to help to insure that the parties to this action receive a fair trial. In order to insure that the plaintiff receives a fair trial, I must be satisfied that she is competent to represent herself in this proceeding. The evidence that has been presented satisfies me that it is appropriate to order a psychiatric examination of Ms. Ocean to determine this issue.

 

19     I want to make it clear that I am not in anyway finding that Ms. Ocean is incompetent. I am satisfied, however, that it is appropriate for me to grant an Order requiring an assessment to insure that Ms. Ocean receives a fair trial.

 

20     I am granting this Order pursuant to Civil Procedure Rule 23. I am satisfied that this Rule allows for such an Order. As indicated by Justice Goodfellow in Noseworthy v. Murphy, [1999] N.S.J. No. 79 (N.S. S.C. [In Chambers]) our court has repeatedly indicated that our Rules are to receive a liberal interpretation in order to meet the objects of the Rules. The Civil Procedure Rules are our tools and not our masters. I am satisfied that it is appropriate to use Civil Procedure Rule 23 in the circumstances of this case. If I am in error in this regard, I am fully satisfied that it is appropriate to use the Court's inherent jurisdiction to issue such an Order. In light of my finding that I can make this Order under Rule 23, I am not going to make any finding on whether I could have used Civil Procedure Rule 22.

(Emphasis added)

 

[39]         Ms. Ocean was given the opportunity to select the psychiatrist.  She advises that she had great difficulty finding a doctor who was willing to do the assessment and it was only after many calls to various psychiatrists that she found one.

 

[40]          The December 15, 2008 assessment Order provides:

 

IT IS HEREBY ORDERED pursuant to Civil Procedure Rule 23 that the Plaintiff attend at the office of Dr. Aileen Brunet (located at the Sun Tower Building, suite #416, 1550 Bedford Highway, Bedford, Nova Scotia (on Wednesday the 7th day of January, 2009 at 6 p.m. for the purpose of an assessment by Dr. Brunet to determine the Plaintiff's competency to represent herself in this proceeding.

 

IT IS FURTHER ORDERED that Dr. Brunet shall address the following questions during the course of this assessment:

 

(a)        Does the Plaintiff suffer from a mental disorder, psychiatric condition or other mental health issue?

 

(b)        If the answer to the above question is "yes" ‑ does this disorder, psychiatric condition or mental health issue prevent the Plaintiff from adequately representing herself at a trial of this proceeding?  In answering this question Dr. Brunet shall consider, but is not limited to, the following questions:

 

(i)         Does the Plaintiff have the ability to understand the purpose of a trial?

 

(ii)        Does the Plaintiff have the ability to understand the matters that will be in issue at the trial?

 

(iii)       Does the Plaintiff have the ability to understand the consequences of failing to prove her claim at trial?

 

(iv)       Does the Plaintiff have the ability to understand the nature of an oath?

 

(v)        Does the Plaintiff have the ability to comprehend the nature of the evidence she must present to support her claim?

 

(vi)       Does the Plaintiff have the ability to comprehend the nature of any evidence that will be given?

 

(vii)      Does the Plaintiff have the ability to give evidence in a coherent fashion?

 

(viii)      Does the Plaintiff have the ability to question witnesses in a coherent fashion?

 

(ix)       Does the Plaintiff have the ability to communicate with the Court in a coherent fashion?

 

(c)        Is the Plaintiff incapable from infirmity of mind of managing her own affairs?

 

IT IS FURTHER ORDERED THAT:

 

(a)        Subject to clause (e) below, the Plaintiff shall be entitled to have Ms. Cathy Bennett in attendance at the said assessment;

 

(b)        Ms. Bennett shall not participate in the assessment unless requested by Dr. Brunet to do so;

 

(c)        Should Dr. Brunet elect to have Ms. Bennett participate in the assessment, Dr. Brunet shall determine the manner in which Ms. Bennett will participate (if at all.)  For example: Dr. Brunet may elect to speak to Ms. Bennett in the presence of the Plaintiff or outside the presence of the Plaintiff;

 

(d)        Dr. Brunet shall be at liberty to decide whether Ms. Bennett shall be permitted to take notes during the assessment;

 

(e)        Notwithstanding clause (a) above, Dr. Brunet shall be entitled to ask Ms. Bennett to leave the assessment should Dr. Brunet deem it appropriate to do so.  Ms. Bennett shall leave the assessment if requested by Dr. Brunet to do so.

 

IT IS FURTHER ORDERED that C. Patricia Mitchell shall forthwith provide to Dr. Brunet a true copy of the Affidavit of Dr. Edwin M. Rosenberg sworn to September 10th, 2008 along with all attachments exhibited thereto as well as true copies of any and all documents referred to at Tabs B and E of the said Affidavit of Dr. Edwin M. Rosenberg.

 

IT IS FURTHER ORDERED that Dr. Brunet shall have access to the entire Supreme Court file relating to this matter (S.H. No. 190673).  Dr. Brunet shall not be obliged to review the entirety of the said file but shall be at liberty to review all documents from the said file that she considers relevant to the issue of the Plaintiff's competency.

 

IT IS FURTHER ORDERED that the Plaintiff may provide Dr. Brunet with copies of any additional documents that the Plaintiff considers relevant to the issue of her competency.  Dr. Brunet shall not be obliged to review the entirety of any materials submitted to her by the Plaintiff but she shall be at liberty to review any of the said documents that Dr. Brunet considers relevant.

 

IT IS FURTHER ORDERED that the Plaintiff shall provide to C. Patricia Mitchell and Bryna D. Fraser a complete list of all documents that she forwards to Dr. Brunet (if any).  The Plaintiff shall further provide Ms. Mitchell and Ms. Fraser with copies of any of the said documents upon request by Ms. Mitchell or Ms. Fraser.

 

IT IS FURTHER ORDERED that upon completion of the assessment Dr. Brunet shall send a written report containing her findings to Associate Chief Justice Deborah K. Smith, Supreme Court of Nova Scotia, The Law Courts, 1815 Upper Water Street, Halifax, NS B3J 1S7.

 

IT IS FURTHER ORDERED that the cost of this assessment shall be borne by the Nova Scotia Department of Justice. 

 

[41]         Although Ms. Ocean has attended for the assessment, to our knowledge, the report has not yet been filed with the court.

 

ISSUE

 

[42]         Ms. Ocean seeks leave to appeal and, if granted, appeals on the basis that the judge was without jurisdiction to order an assessment and, in any event, the order should not have been issued in these circumstances.  It is her position, as well, that the order infringes her entitlements under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, including ss. 2(b), 7, 11, 12, 13, 14 and 15.

 

LEAVE TO APPEAL

 

[43]         As this is an appeal from an interlocutory order made in the course of a proceeding leave is required.  While Ms. Ocean’s September 23, 2008 Notice of Appeal does not, on its face, articulate the issue with precision, it is clear from her documentation and would have been understood by Economical that she is challenging the court’s authority to order a competency assessment.  I am satisfied that this is a novel issue of significant importance and one upon which we should grant leave. 

 

STANDARD OF REVIEW

 

[44]         Chipman, J.A. wrote in Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143 at p. 145:

 

[9]        At the outset, it is proper to remind ourselves that this court will not interfere with a discretionary order, especially an interlocutory one such as this, unless wrong principles of law have been applied or a patent injustice will result . . .

 

[10]      Under these headings of wrong principles of law and patent injustice an Appeal Court will override a discretionary order in a number of well‑recognized situations.  The simplest cases involve an obvious legal error.  As well, there are cases where no weight or insufficient weight has been given to relevant circumstances, where all the facts are not brought to the attention of the judge or where the judge has misapprehended the facts.  The importance and gravity of the matter and the consequences of the order, as where an interlocutory application results in the final disposition of a case, are always underlying considerations.  The list is not exhaustive but it covers the most common instances of appellate court interference in discretionary matters. ...

 

 

 FRESH EVIDENCE

 

[45]         Ms. Ocean made application to admit fresh evidence on this appeal.  Of the proposed fresh evidence I have considered only the transcripts of the court proceedings leading up to the order for the assessment, which are referred to by date later in these reasons and the material which was put before the judge by the parties on those hearings, but not the additional letter and affidavit evidence proposed by Ms. Ocean.

 

ANALYSIS

 

[46]         Throughout these reasons my references to the Rules will be to the former Civil Procedure Rules (1972), which were those in effect at the relevant time.

 

[47]         Adult persons are presumed to be competent to manage their own affairs.  Access to justice is an important right to be limited only in exceptional circumstances.  Being able to represent oneself is a fundamental part of our judicial system (Nova Scotia Law Reform Commission, Vexatious Litigants: Final Report (Halifax: The Commission, 2006)).

 

[48]         As Lamer, C.J., writing for himself, Sopinka and Cory, JJ. observed in R. v. Swain, [1991] 1 S.C.R. 933 at p. 970-71:   

 

     This Court has, on numerous occasions, acknowledged that the basic principles underlying our legal system are built on respect for the autonomy and intrinsic value of all individuals. In Re B.C. Motor Vehicle Act, supra, at p. 503, I referred to the principles of fundamental justice as:

 

... essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms).

 

Similarly, in R. v. Morgentaler, [1988] 1 S.C.R. 30, Wilson J. stated, at p. 171:

 

In my opinion, the respect for individual decision‑making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter. Indeed, as the Chief Justice pointed out in R. v. Big M Drug Mart Ltd., beliefs about human worth and dignity "are the sine qua non of the political tradition underlying the Charter".

 

[49]         Indeed, Civil Procedure Rule (1972) 9.08 provides that any person has the right to engage in legal proceedings in person or represented by a lawyer.

 

[50]         Obviously important to this analysis is the law on mental incompetence in Nova Scotia.  The Incompetent Persons Act, R.S.N.S. 1989, c. 218 (the “IPA”) and the Adult Protection Act, R.S.N.S., c. 2, are the two key statutes (there are two other statutes which are of no relevance here - The Inebriates' Guardianship Act, R.S.N.S. 1989, c. 227 and The Involuntary Psychiatric Treatment Act, S.N.S. 2005, c. 42).

 

[51]         Under the IPA an incompetent person is “. . . a person, not an infant, who is incapable from infirmity of mind of managing the person's own affairs” (s. 2(b)).   Where a person is mentally incompetent the IPA provides that friends or relatives or certain government agencies may apply to have a guardian appointed for the incompetent person (s. 3(1)).  On such an application notice must be given to the person in question and a hearing held to determine competency (s. 3(3)).  Where the court concludes “ . . . that the person in question is incapable of taking care of himself. . .” a guardian shall be appointed (s. 3(3)).  Upon appointment the guardian has care and custody of the incompetent person and is responsible to manage the incompetent person's estate until legally discharged (s. 3(4)).  The guardian has far reaching powers including the management of the incompetent person’s financial estate and the right to encumber or sell her real and personal assets (ss. 9 to 12).  An incompetent person who is at large may be apprehended under a warrant and taken into custody (s. 16).

 

[52]         Under the Adult Protection Act, an adult in need of protection is one who, by reason of physical or mental disability, cannot protect themself from abuse or is not receiving and is unable to make provision for adequate care and attention.  The court application to have a person declared an adult in need of protection must be accompanied by an assessment by a qualified medical practitioner.  Since there is no suggestion here that Ms. Ocean is an adult in need of protection, that Act is of no relevance.  I will confine my discussions to the IPA.

 

[53]         The Civil Procedure Rules (1972) contain two definitional provisions relevant to the issue here:

 

1.05. In these Rules, unless the context otherwise requires,

 

                                                                . . .

 

(r) "mentally incompetent person" means a person, not an infant, who is incapable from infirmity of mind of managing his own affairs;

 

                                                            . . .

 

(v) "person under disability" means a person who is an infant or a mentally incompetent person;

 

                                                                . . .

 

[54]         Rule 6 requires a mentally incompetent person to conduct a proceeding through a litigation guardian:

 

6.01. In this Rule, "Act" means the Incompetent Persons Act or the Adult Protection Act. [Amend. 29/11/96]

 

6.02. (1) A person under disability shall commence or defend a proceeding by his litigation guardian. [E. 80/2(1)]

 

(2) Unless a rule otherwise provides, anything in a proceeding that is required or authorized by the rules to be done by a party shall or may, if the party is a person under disability, be done on his behalf by his litigation guardian. [E. 80/2(2)]

 

(3) A litigation guardian of a person under disability shall act by a solicitor. [E. 80/2(3)] [Amend. 20/6/94]

 

6.03. (1) Unless the court otherwise orders or an enactment otherwise provides, any person may be a litigation guardian of a person under disability without being appointed by the court. [E. 80/3(2)]

 

(2) Where a person is appointed as the guardian of a mentally incompetent person under the Act, the guardian shall, unless the court otherwise orders, be the litigation guardian of that person in any proceeding. [E. 80/3(3)]

 

(3) Where a party becomes a mentally incompetent person and a guardian has not been appointed for him under the Act, the court shall appoint a litigation guardian for the party. [E. 80/3(5)]

 

(4) Where a party has a litigation guardian in a proceeding, no other person shall, unless the court otherwise orders, act as the litigation guardian. [E. 80/3(4)]

 

(5) When it is in the interest of a party who is a person under disability, the court may remove, appoint, or substitute a litigation guardian and make such other order as is just.

 

(6) Before a person acts as litigation guardian of a person under disability there shall be filed in the office of the prothonotary an affidavit of the proposed litigation guardian in which the person:

 

(a) consents to act as litigation guardian in the proceeding;

 

(b) confirms giving written authority to a named solicitor to act in the proceeding;

 

(c) states his or her ordinary residence and that of the person under disability;

 

(d) sets out his or her relationship, if any, to the person under disability;

 

(e) states that he or she has no interest in the proceeding adverse to that of the person under disability;

 

(f) attaches a copy of the infant's birth certificate where the person under disability is an infant;

 

(g) acknowledges potential liability to pay personally any costs awarded against him or her or against the person who is under disability. [Amend. 20/6/94]

 

(7) Unless a guardian has been appointed under the Act, the solicitor for a person under disability before acting in a proceeding shall file in the prothonotary's office a certificate certifying that he knows or believes,

 

(a) the person to whom the certificate relates is an infant or mentally incompetent person, giving the grounds of his knowledge or belief, and if a mentally incompetent person, that a guardian has not been appointed for him under the Act, and

 

(b) the litigation guardian of the person under disability has no interest in the proceeding adverse to that person. [E. 80/3(8)(c)]

                                                            . . .

(Emphasis added)

 

[55]         The definition of a mentally incompetent person in Rule 1.05® is identical to that for an incompetent person in s. 2(b) of the IPA.  The Rules do not contain a procedure for determining the competence of a person.  Nor do the Rules contemplate a status between competence and full incompetence. A person under a disability, for purposes of the Rules, is a mentally incompetent person. 

 

[56]         The procedure for determining competence is contained in the IPA.  Significantly, that Act does not empower a court to order an assessment of mental competence.  The necessary evidence must accompany the application.  A guardianship application under the IPA must include affidavits from the applicant and two medical practitioners, the latter providing particulars of the current state of mental health of the person in question (Supreme Court of Nova Scotia Practice Memorandum No. 10).

 

[57]         The order for a mental competency assessment here was not made under the authority of either Act.  Indeed, there is no suggestion that Ms. Ocean is incapable of managing her own affairs; of caring for herself; that she cannot protect herself from abuse; or that she presents a danger to herself or others.  Economical’s application sought an assessment of her mental competence to conduct litigation on her own behalf.

 

[58]         As was recognized in R. v. Swain, supra, raising a question about a litigant’s mental competence represents a profound attack on the dignity and autonomy of an individual.  One of the issues before the Court in Swain was whether the common law criteria permitting the Crown to adduce evidence of an accused's insanity violated ss. 7, 9, and 15 of the Canadian Charter of Rights and Freedoms.  In the course of his reasons Lamer, C.J. commented at p. 972:

 

     Given that the principles of fundamental justice contemplates an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence. . . .

 

     An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society's traditional respect for individual autonomy within an adversarial system. In R. v. Chaulk, supra, I indicated that the insanity defence is best characterized as an exemption to criminal liability which is based on an incapacity for criminal intent. In my view, the decision whether or not to raise this exemption as a means of negating criminal culpability is part and parcel of the conduct of an accused's overall defence.

 

                                                                 ...

 

   . . . The stigma of mental illness can be very damaging. The intervener, C.D.R.C., describes the historical treatment of the mentally ill as follows:

 

For centuries, persons with a mental disability have been systematically isolated, segregated from the mainstream of society, devalued, ridiculed, and excluded from participation in ordinary social and political processes.

 

The above description is, in my view, unfortunately accurate and appears to stem from an irrational fear of the mentally ill in our society. While I have a very high regard for the intelligence and good faith of Canadian juries, it is nonetheless apparent that an accused's credibility could be irreversibly damaged by the Crown's raising evidence of insanity.

 

Civil Procedure Rules 22 and 23

 

[59]         It was Economical’s position that the court could order a competency assessment under the authority of Rule 22 or 23 or pursuant to its inherent jurisdiction.  The judge was satisfied that she had authority to order the assessment under Rule 23.01 or, in the alternative, the court’s inherent jurisdiction.  For the reasons which follow, it is my respectful view that neither Rule 22 or 23 authorize the court to order a psychiatric assessment of a litigant’s mental competency in these circumstances. 

 

[60]         Rule 22 states:

 

22.01 (1) Where the physical or mental condition of a party is in issue, the court may, at any time on the application of an opposing party or on its own motion, order the party to submit to a physical or mental examination by a qualified medical practitioner.

 

(2) The order shall only be made on notice to all parties and shall specify the time, place, manner, conditions and scope of the examination and the medical practitioner by whom it is to be made, and unless it is otherwise ordered, the examination shall be at the expense of the party requesting the same.

 

(3) The court may order a further examination or examinations on such terms as to costs or otherwise as it deems just.

 

                                                                . . .

 

22.02.(1) A medical practitioner may, in conducting the examination of a party under rule 22.01, ask the party any relevant questions concerning his medical condition and history and the party shall answer the questions.

(Emphasis added)

 

[61]         Because the assessment was not ordered under this Rule I will not analyze it in detail.  However, in my view, the Rule was not available.  In order for a medical examination to be ordered ". . . the physical or mental condition of a party” must be in issue.  The equivalent or similar rule has been considered in other jurisdictions.  A party’s mental condition is in issue only if her mental competency must be established in order to prove her cause of action.  Therefore, only if Ms. Ocean’s entitlement in the main action is dependent upon proof of her mental competency (or incompetency) is it in issue in the proceeding (See Handfield v. Lacroix (1988), 26 C.P.C. (2d) 44, [1988] O.J. No. 2795 (Q.L.)(H.C.J.) and Valentin v. Winkler (1995), 7 E.T.R. (2d) 84, [1995] B.C.J. No. 248 (Q.L.) (S.C., Chambers)).          

 

[62]         Rule 23.01 provides:

 

23.01(1) Where independent technical evidence would appear to be required, the court may at any time appoint one or more independent experts to inquire and report on any question of fact or opinion not involving questions of law or construction.

 

 

. . .

 

(3) The court may from time to time make such further orders as it deems necessary to enable the court expert to carry out its instructions, including the making of experiments and tests. [E. 40/3]

(Emphasis added)

 

[63]         There is no case law in Nova Scotia where Rule 23 has been employed to order a psychiatric or medical examination of a party to litigation. 

 

[64]         As the equivalent rule has been most commonly interpreted in other provinces, it is to be used only to assist the court in interpreting evidence and not  to create evidence in order to prove a fact in issue.  Consider for example, the decision in Drury v. Wiwchar, [1984] W.D.F.L. 046 (O.H.C.).  The issue before the court is summarized in the headnote:

 

In a proceeding under the Ontario Family Law Reform Act, the respondent sought an order for partition and sale of the jointly held matrimonial home, proposing to purchase the applicant's one‑half share at fair market value. The applicant, who was resident in a nursing home, had consented to the order. However, the respondent was concerned that the applicant might be mentally incompetent and that the order might therefore fall under attack in the future. Accordingly, he sought a second order directing psychiatric assessment of the applicant regarding her mental competency, a trial of the issue, and an order declaring the applicant mentally incompetent and appointing the official guardian as her next friend and guardian in the proceedings.

 

[65]         The respondent in Drury was relying upon a rule similar to our Rule 23.  Although Cromarty, J. resolved the matter before the court on another basis and  found it unnecessary to determine the application, he commented, in obiter:

 

4_____The respondent also relies on Rule 267 ‑

 

(1) The court may obtain the assistance of merchants, engineers, accountants, actuaries or scientific persons, in such way as it thinks fit, the better to enable it to determine any matter of fact in question in any cause or proceeding, and may act on the certificate of such persons.

 

Both these rules were thoroughly discussed by Evans J.A. in Phillips v. Ford Motor Co., [1971] 2 O.R. 637 at pp. 661‑2, where he said, briefly, that a court cannot call evidence but can call an assessor only to assist it in better understanding the evidence given. I am not faced with complex conflicting expert testimony but rather I am invited to go on my own fishing expedition and that, in my opinion, without authority.

 

5_____Mr. Voege has also urged that s. 10(2) of the Mental Incompetency Act, R.S.O. 1980, c. 244, and s. 29(9)(c) of the Mental Health Act, R.S.O. 1980, c. 262 apply. These sections clearly do not apply to matters such as the one before me. Mary Louise Dickinson in the 1983 Annual Institute on Continuing Legal Education on Law and the Handicapped states at p. 6:

 

In Ontario, a person over the age of 18 years is presumed to have full capacity to manage his financial affairs whether he actually can or not. Apart from the appointment of the Public Trustee as statutory committee of a person certified as mentally incompetent under Part III of the Mental Health Act or pursuant to the Developmental Services Act the only way a person can be deprived of his rights to manage his own financial affairs and some other person can be granted legal authority to act on behalf of such person is through proceedings under the Mental Incompetency Act.

 

The applicant here is not in a psychiatric facility designed by the regulations and has not been certified. Obviously the Developmental Services Act has no application because she does not have a developmental handicap and is not in a facility designed for the care of such persons.

 

6_____It seems to me that the only way this applicant can be declared mentally incompetent or be deprived of her rights to manage her own affairs is through proceedings taken under the Mental Incompetency Act and only in such a proceeding could an examination be ordered under s. 10(2).

(Emphasis added)

 

[66]         In Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., [1971] 2 O.R. 637, referred to by Cromarty, J., Evans, J.A., writing for himself and two others of a five member panel of the Ontario Court of Appeal, observed that the purpose of appointing an expert under Rule 267 is solely to assist the judge in understanding the evidence (at para. 74).  And further:

 

[76]  The expert is not a judicial officer charged with the responsibility of determining the matters in issue, nor is he a Court‑appointed investigator empowered to advance possible theories and state, as conclusions of fact, opinions based on matters not advanced in evidence. While Rule 267 permits the Court to obtain the assistance of experts in such way as it thinks fit, such assistance must be restricted to the purpose of better enabling the Court to determine from the evidence adduced the questions of fact in issue. . . .

 

[77]  One of the functions of a trial Judge is to make findings of fact and a proper exercise of that duty requires that the Judge understand the evidence. If there is failure to understand and appreciate the evidence, it follows that there cannot be a proper judicial finding of fact, and it is to avoid such error that Rule 267 is invoked. An expert who is appointed has the limited role of explaining to the Judge that evidence adduced by the parties which is within his particular area of competence to the end that the Court may be better informed in the spheres of knowledge requisite for the proper determination of those complex questions of fact presented to it.

 

[67]         Phillips, supra, was cited with approval in Alberta (Director of Child Welfare) v. E. (J.) (1991), 35 R.F.L. (3d) 288 (Alta.Q.B.) where a provincial court ruling that a mother and her child undergo a psychiatric assessment was appealed.  The judge had ordered the assessment relying, in part, upon Alberta rule 218 which contains wording almost identical to our Rule 23:

 

218(1) The court, on its own motion or upon the application of any party in any case where independent technical evidence would appear to be required (including the evidence of an independent medical practitioner) may appoint an independent expert (herein called 'the court expert').

 

[68]          In allowing the appeal and finding the lower court was without jurisdiction to make the assessment order, Dixon, J. adopted the statement of purpose for Rule 218 from Phillips, supra. (See also Westfair Foods Ltd. v. Watt (1992), 4 Alta L.R. (3d) 268 (C.A.)).

 

[69]         While there is some conflicting, non-appellate authority across the jurisdictions as to whether a court appointed expert can “create” rather then interpret evidence, nowhere has the rule been used to produce evidence unrelated to a fact in issue in the proceeding (see, for example, Cashin v. Cashin (1985), 48 R.F.L. (2d) 104 (S.C.) where the court appointed an expert to prepare a custody report, both parties being of the view that the court had the authority to do so; and Zombor v. Rockyview Hospital, 2005 ABQB 882, where a judge appointed an expert to conduct experiments on a piece of gauze left inside a patient after surgery).

 

[70]         I would conclude that Rule 23 cannot be used to appoint a medical practitioner to ascertain the mental competency of a party to litigation where  competency is not a fact in issue in the proceeding.

 

The Inherent Jurisdiction of the Court

 

[71]         The alternative authority cited by the judge for the assessment order is the inherent jurisdiction of the Court.  A widely cited source on the subject of inherent jurisdiction is an article by I.H. Jacob,  "The Inherent Jurisdiction of the Court"  (1970), 23 Current Legal Problems 23.

 

[72]         Mr. Jacob writes that from the earliest times the superior courts exercised an “inherent” power to address contempt of court and to prevent abuse of process.  This power was employed to ensure that the courts had not only form but substance but was to be used sparingly.  He says (at p. 30):

 

. . . the resort to the summary process under the inherent jurisdiction of the court involves a serious and severe curtailment of the right of a party to have his case on the merits heard by a court of law in the ordinary way at a trial held for the purpose.  For these reasons, the courts will exercise its coercive powers by summary process to punish for contempt or to terminate proceedings without a trial only with the greatest care and circumspection and only in the clearest cases.  In contempt cases, the court will only act where the case is clear and beyond reasonable doubt or argument, and in cases involving abuse of process, the court will exercise its inherent jurisdiction very sparingly and only in very exceptional circumstances, or, in what are called plain and obvious cases....

(Footnotes omitted)

 

[73]         William H. Charles, Q.C. wrote in an August 2005 paper titled “Inherent Jurisdiction of Nova Scotia Courts”, commissioned by the Nova Scotia Law Reform Commission at pp. 7-8:

 

. .  from the somewhat narrow limits of punishing contempt and controlling abuse of court process the concept of “inherent jurisdiction” has been used to justify, among other things, the variation of trust, the safeguarding of children, the provision of remedies in situations where the statutory provisions do not, to supervise as well as protect and assist inferior courts and tribunals and the filling of gaps in statutes.  This ever expanding jurisdiction is bound to create concern among legal observers that courts may think they have “inherent jurisdiction”s to order anything necessary to do justice in any proceeding.  An examination of the language used by some courts to describe their “inherent jurisdiction” could easily give this impression although the House of Lords has clearly rejected such an open-ended approach.

 

 At the other end of the spectrum is the suggestion by Lord Diplock that:

 

“It would, I think be conducive to legal clarity if the use of these two expressions (inherent power and inherent jurisdiction) were confined to the doing by the court of such acts which it needs must have power to do in order to maintain its character as a court of justice.”

 

Part of the reason for what appears to be an ever-broadening scope of the concept of “inherent jurisdiction” is the tendency of some courts to fail to realize the difference between “inherent jurisdiction” and 1) the general jurisdiction of a superior court as a court of common law and equity 2) the exercise of the Crown prerogative vis a vis  inferior courts and tribunals as well as parents patria regarding children and 3) the maxim “where there is a right there is a remedy“ (ubi ius ibi remedium).

 

[74]         In a thorough canvass of the authorities on inherent jurisdiction, Professor Charles observes that none of the theories put forward to explain the basis for inherent jurisdiction attempt to determine its limits. Indeed, in this jurisdiction the courts have generally addressed what is not a proper exercise of the court’s inherent jurisdiction on a case by case basis (see for example, Bank of Nova Scotia v. Golden Forest Holdings Ltd., [1990] N.S.J. No. 230 (Q.L.) (C.A.) and ABN Amro Bank Canada v. NsC Diesel Power Inc. (1991), 101 N.S.R. (2d) 361 (CA)).

 

[75]         This Court cautioned in Goodwin v. Rodgerson, 2002 NSCA 137, (2002), 210 N.S.R. (2d) 42:

 

[17]  The inherent jurisdiction of the court has been described as a vague concept and one difficult to pin down. It is a doctrine which has received little by way of analysis, but there is no question it is a power which a superior trial court enjoys to be used where it is just and equitable to do so. It is a procedural concept and courts must be cautious in exercising the power which should not to be used to effect changes in substantive law. 

(Emphasis added)

 

[76]         Whether a court has the discretion to order that a civil litigant undergo a competency assessment pursuant to its inherent jurisdiction is not directly addressed in the authorities I have reviewed (see, for example, Sampson (Re) (1987), 78 N.S.R. (2d) 419 (S.C.)).  However, I will assume, without deciding, that in certain exceptional circumstances the inherent jurisdiction may be used for that purpose.  Was this one of those situations?

 

[77]          Inherent jurisdiction does not bestow an unfettered right to do what, in the judge's opinion, is fair as between the parties.  A court’s resort to its inherent jurisdiction must be employed within a framework of principles relevant to the matter in issue (see ABN Amro Bank Canada, supra and Golden Forest Holdings Ltd., supra).

 

[78]         An action taken pursuant to the inherent jurisdiction of the court requires an exercise of discretion.  Discretion must always be exercised judicially (British Columbia v. Worthington (Canada) Inc., [1988] B.C.J. No. 1214 (Q.L.)(C.A.), per Lambert, J.A., dissenting in the result).  (See also Ward v. James, [1965] 1 All E.R. 563 (C.A.) at p. 570)

 

[79]         As the standard of review permits (para. [44] above), an appellate court may  intervene in a discretionary decision where no weight or insufficient weight has been given to relevant circumstances.  In Grimshaw v. Dunbar, [1953] 1 All E.R. 351 (C.A.) at p. 353 Jenkins, L.R. considered the meaning of a judicial exercise of discretion:

 

... did the judge here exercise his discretion on wrong considerations or wrong grounds, or did he ignore some of the right considerations?  If so, then he decided on wrong principles, his error was a matter of law, and this court can interfere...

 

... In my view, although no reasons are given by a judge exercising, or refusing to exercise, a discretionary jurisdiction, it may, nevertheless, be possible, on looking at the facts, to say that, if the judge had taken all the relevant circumstances into consideration and had excluded from consideration all irrelevant circumstances, he could not possibly have arrived at the conclusion to which he came, because on those facts that conclusion involves a palpable miscarriage of justice....

 

...  What were the matters to be taken into consideration here?  Far be it from me to attempt an exhaustive statement of the considerations which should influence a judge in exercising his discretion under Ord. 37, r.2; but I can, at all events, state a few considerations which are of the first importance....

 

[80]         I will discuss the considerations that should have informed the judge’s resolution of Economical’s application for a mental competency assessment. 

 

[81]         The fundamental precept is that an adult person is presumed to be competent to manage her own affairs.  A competent adult is entitled to access justice either personally or represented by a lawyer.

 

[82]         I have previously referred to the fact that the Civil Procedure Rules (1972) does not outline a procedure for having a person declared incompetent.  While a litigation guardian may be appointed for a “person under a disability”, that person must be someone who is mentally incompetent, in other words, someone who by reason of mental infirmity, is incapable of managing her own affairs.  The statutory vehicle to address issues of incompetency is the IPA.

 

[83]         The established procedure associated with the IPA requires that an application for guardianship be accompanied by affidavits from two medical practitioners providing the facts upon which their opinion of incompetence is based.  Significantly, there is nothing in the IPA that permits a court to require  that a person submit to a medical examination, either prior to or subsequent to the application for guardianship being made.  Additionally, under the IPA, competency is an all or nothing proposition.  Only where a person is, by reason of mental infirmity, incapable of managing her affairs - both property and personal - is a guardian appointed.  There is no category of partial incompetence, such as “litigation incompetence” which is the focus here.  The legislators have chosen to limit those who may apply for the appointment of a guardian for the alleged incompetent to the relatives or friends of the person, or the social services committee of the district in which the person resides.

 

[84]         I have referred, as well, to the decision of the Supreme Court of Canada in R. v. Swain, supra confirming that respect for the autonomy and intrinsic value of all individuals is a basic principle underlying our legal system.        This includes  respect for individual decision-making in matters of fundamental personal importance.

 

[85]         As I have previously discussed, the inherent jurisdiction of the court is  rooted in the need to give effect to the authority of the court by punishing contempt and preventing the abuse of the court’s process.

 

[86]          It is helpful as well to consider how the issue of mental competency is addressed in the criminal law context.  An accused person is presumed to be fit to stand trial.  If there are reasonable grounds to believe that the accused is unfit the powers of the Court are set out in s.672 of the Criminal Code of Canada, R.S.C. 1985, c. C-46: the judge may direct a trial of the issue of mental competency but must order counsel for an unrepresented accused for the purpose of the fitness hearing.  The Code contains an express provision empowering the judge to order an assessment of the accused's mental condition for the purpose of the fitness hearing.  The Crown may not raise evidence of insanity over and above the accused's wishes.  Only where the accused's own evidence tends to put his or her mental capacity for criminal intent into question, is the Crown entitled to put forward evidence of insanity R. v. Swain, supra).

 

[87]         As to the test for fitness under the criminal law, an accused is unfit to stand trial if he or she is unable, on account of mental disorder, to conduct a defence or instruct counsel to do so and, in particular, unable on account of mental disorder to: (a) understand the nature or object of the proceedings; (b) understand the possible consequences of the proceedings; or, (c) communicate with counsel.  "Mental disorder" is defined in s. 2 of the Code to mean a “disease of the mind” which refers to any illness, disorder or abnormal condition that impairs the human mind and its functioning. 

 

[88]         It is sufficient that an accused person has the “limited cognitive capacity” to understand issues a, b and c in the definition above.  Significantly, that test does not require that an accused have the capacity to make good or wise choices about how the trial ought to be conducted in his or her best interests R. v. Taylor, [1992] O.J. No. 2394 (Q.L.), (1992), 77 C.C.C. (3d) 551)(C.A.).

 

[89]         Nor is an accused required to accept legal representation, even if it is in his best interests to do so.  In R. v. Mian, [1998] N.S.J. No. 398 (Q.L.)(C.A.), for example, this Court allowed an appeal were the trial judge refused the accused’s request that he be permitted to dismiss counsel and represent himself.  The judge was convinced that it was in Mr. Mian’s best interests and would expedite a fair trial to have him represented by counsel.  This Court confirmed that it was Mr. Mian’s right to conduct his own defence even though he may act to his detriment in doing so (citing R. v. Romanowicz, [1998] O.J. No. 12, (Q.L.)(Ont. Ct. Gen. Div.) at paras. 30 and 31, and R. v. Taylor, supra at para. 51 (Q.L.)).

 

[90]         It is not surprising that there is a paucity of case authority on the issue of requiring a civil litigant to submit to a mental competency assessment.  Economical cited the following cases to the application judge: K.(M.) v. Nova Scotia (Minister of Community Services), 1996 CarswellNS 271, (1996), 153 N.S.R. (2d) 20 (Fam. Ct.); Sherman v. Dalhousie University, 1996 CarswellNS 272, 153 N.S.R. (2d) 334 (S.C.).  K.(M.) involved an application by a parent to set aside a permanent care order on the basis that she was not competent to instruct counsel during the permanent care proceedings.  It does not address the court’s jurisdiction to order an assessment.  In Sherman, the plaintiff, who was enrolled in first year law at Dalhousie University, claimed in his action seeking damages from the University, that the poor quality of the teaching had caused him to be “brain dead” and “a vegetable”.  Relying upon Mr. Sherman’s own allegation about his mental competence which was a fact in issue in the proceeding, the Chambers judge stayed the action pending the appointment of a litigation guardian.  Neither case is helpful here.

 

[91]         In addition to the above cases the judge had before her Halstead v. Anderson, 1993 CarswellSask 568 (Sask Q.B.); E.M.E. v. D.A.W., 2003 BCSC 1878 (Q.L.(S.C.); and M.D. v. Barr, 2005 BCSC 591 (Q.L.)(S.C.).

 

[92]         Halstead involved a claim by a former patient against his addiction counsellors alleging that they had prolonged his addiction.  The plaintiff repeatedly threatened the counsellors and their lawyers.  The defendants applied for a restraining order; a stay of proceedings and for a psychiatric report attesting to the plaintiff’s mental competency, relying upon the court’s inherent jurisdiction to prevent an abuse of its process.  The nature of the evidence, in what the judge described as a unique and life-threatening case, is captured in the following excerpts from the decision:

 

16_____Statements made under oath by the plaintiff, in his affidavit and at his examination for discovery, are in themselves a strong basis for the concern that the defendants have for their safety. The plaintiff has made statements to the effect that he harbours a lot of anger and is suicidal all the time. He feels crazy half the time and is often not able to sleep. He is far worse than he was before. He ominously states that someone is going to die. But he claims that he only threatens to injure or kill when he is angry or upset.

 

17_____Some of the psychiatrists who have assessed the plaintiff are of the opinion that he should be taken seriously and that he lacks concern for social or moral standards. Some were told by the plaintiff that he had bought a gun, put it in his mouth, and pulled the trigger.

 

[93]         In those circumstances, the judge concluded that the court had the inherent jurisdiction to grant the relief requested.  In considering whether to exercise his discretion to make the order, the judge observed that a court should decline to exercise its discretion to grant orders on the authority of its inherent jurisdiction except in clear cases.  With respect to the concern that the plaintiff represented a danger to himself or others, the judge declined to order a psychiatric examination because an application could and should be made under the Mental Health Services Act, S.S. 1984‑85‑86, c. M‑13.1, as amended.  In refusing to order the psychiatric assessment the judge said:

 

56_____. . . Except in the case of the appointment of a litigation guardian to accept service of process, and except in the case of an application for the appointment of a litigation guardian on behalf of the person with the mental disability, the determination of a mental competence issue is rarely, if ever, done on an interlocutory basis within the framework of the civil action that involves the person with the mental disability.

 

57_____There is good reason for such a practice. If the mental competence of a party can be challenged in an interlocutory fashion within the framework of the litigation by a party adverse in interest, the potential for abuse is significant. An order staying an action and requiring a party to submit to a psychiatric examination to determine his competence to manage his affairs, could establish a dangerous precedent and become a diversion tactic in the hands of an adverse party. Not all litigants act reasonably or even rationally, and many may have mental skeletons in their past. The threat of a potential psychiatric examination to determine mental competence might prevent or stifle legitimate claims from being brought or prosecuted.

 

58_____I have already concluded that the court has inherent jurisdiction to "fill in the holes", such as in the case where the Rules make provision for an eventuality, but set out no procedure whereby that eventuality can be determined. Accordingly, the court has the jurisdiction to grant an order that a party submit to a psychiatric examination to determine his or her mental competence. But the discretion to make such an order should only rarely be exercised and then only in the clearest of cases. The case before me is not such a case. The plaintiff's action was commenced just over one year ago and, but for the threats, harassment, and intimidation, has proceeded fairly expeditiously. The examinations for discovery have been concluded and the parties are ready to go to trial. The plaintiff is represented by counsel. Although the conduct of the plaintiff toward the defendants and their counsel is irresponsible and intolerable, there is no convincing evidence, medical or otherwise, that he is mentally incompetent. The fact that he may be a danger to himself, and possibly even to others, does not conclusively establish that he is incompetent to manage his affairs in the sense envisaged by the statutes and the rules, thereby requiring the appointment of a litigation guardian.

(Emphasis added)

 

[94]         The judge in Halstead did order that the plaintiff be examined by a psychiatrist pursuant to s.50 of The Queen’s Bench Act, R.S.S. 1978, c. Q‑1, as amended, which is the equivalent of our former Rule 22.  Mr. Halstead’s mental competency may have been a fact in issue in that proceeding.  In any event, I have previously discussed why, in my view, our Rule 22 cannot be used in this manner to assess Ms. Ocean’s mental competency.

 

[95]         In E.M.E., supra the defendant applied for the appointment of a litigation guardian for the plaintiff in a civil action to recover damages as a result of a motor vehicle accident.  Three prior trial dates were adjourned due to the plaintiff’s ill health.  The trial was again adjourned when the plaintiff was admitted to a mental health facility pursuant to the Mental Health Act, R.S.B.C. 1996, c. 288. She had been previously admitted, both involuntarily and voluntarily, on several occasions.  In applying for the litigation guardian the defendant relied upon the report of the psychiatrist who examined the plaintiff during her most recent admission to hospital.  In the psychiatrist’s opinion the plaintiff suffered from delusional thinking which might impact her representation of herself at trial.  For example, he opined that the plaintiff’s own testimony and that which she would elicit on the cross-examination of witnesses would be likely to include irrelevancies.  There was no suggestion that the plaintiff, who lived independently and operated a car could not attend to her basic needs.  The judge was satisfied that the plaintiff suffered from a mental disorder but refused the request to appoint a litigation guardian, saying:

 

24     But the question remains: Does the incorporation of the definition of a "person with a mental disorder" into rule 6 [appointment of a litigation guardian] empower the court to appoint a litigation guardian where the evidence establishes no more than that a person who is a party to a proceeding has a disorder of the mind that requires treatment and seriously impairs the person's ability to react appropriately to the environment of the court and its processes?

 

25     I conclude that the answer to this question is "No". My reasons follow.

 

[96]         The judge held that the criteria for a declaration of incompetence under the various B.C. statutes must be met before a litigation guardian is appointed.  He further found that the procedural requirements for a determination of incapacity under the statues must also be followed.  A guardian was not appointed.

 

[97]         Finally, in M.D., supra, the 41 year old plaintiff, who was represented by counsel at trial, claimed to be unable to work as a result of a motor vehicle accident.  Only damages were in issue, liability having been admitted.  At his jury trial the plaintiff’s physician testified that he had ill-defined mental health concerns including at least seven admissions to a psychiatric facility.  The judge found that it was obvious from the plaintiff’s gestures, tone of voice and conduct during his own testimony that he had mental health issues.  His answers, even on simple matters, were unfavourable or did not make sense.  By the third day of trial he was agitated; his evidence was scattered and difficult to understand; he rambled and was unresponsive and he was exhibiting paranoid tendencies.  The judge considered discharging the jury but the defendants would not consent to continuing by judge alone.  As matters progressed the plaintiff’s lawyer advised the court that he was unable to get instructions.  The judge declared a mis-trial and ordered a new trial.  However, he did not order that the plaintiff undergo a psychiatric assessment. 

 

[98]         None of these cases stand as authority for a judge to order a competency assessment pursuant to the Court’s inherent jurisdiction in circumstances similar to those of Ms. Ocean.  

 

[99]         I have accepted without deciding that in exceptional circumstances a court can rely upon its inherent jurisdiction to inquire into a litigant’s competence.  Such a situation might occur, for example, where a litigant by his or her conduct poses a threat to witnesses, litigants, the judge, court staff, himself or herself where his or her conduct otherwise amounts to an abuse of the court’s process and where there is no statutory vehicle to address the issue.  In my view an assessment order would be an extraordinary step to be taken only as a last resort in the clearest of cases where the assessment is necessary to control the court’s process. 

 

[100]     With respect, I would conclude that the judge here erred in ordering the psychiatric assessment by failing to take relevant circumstances into consideration.  Those circumstances include:

 

•        The Civil Procedure Rules (1972) do not provide a procedure for determining the competency of a party to a proceeding.

 

•        There is no authority in the IPA to order a competency assessment of an alleged incompetent person.

 

•        Both under the Civil Procedure Rules (1972) and the IPA an incompetent person must be incapable of managing her own affairs.  There is no lesser category of mental incompetency.  There is no suggestion that Ms. Ocean is incapacitated in that way.

 

•        Ms. Ocean is in a stable domestic relationship, has an extended family and circle of friends.  None of those persons, who are those entitled to apply for guardianship under s. 3(1) of the IPA, have indicated that she is not capable of managing her affairs.

 

•        There is no suggestion that this is a vexatious action or that Ms. Ocean is abusing the process of the court.

 

•        The transcripts of the proceedings reveal that Ms. Ocean is articulate, coherent and respectful in court and responsive to direction from the judge.

 

•        Although Ms. Ocean may have difficulty confining her oral and written submissions to material which the judge and opposing counsel view as clearly relevant to her case she is able to provide a rational explanation which connects her reference to her writings and discoveries to the matters at issue in the litigation.  She says: (1) the writings and research demonstrate the impact of the hyper-vigilance which accompanies the PTSD; and, (2) she was forced to defend the integrity of her research because it formed the basis of Dr. Rosenberg’s opinion of incompetence.

 

•        Ms. Ocean’s family doctor provided a note attesting to her capacity.

 

•        Dr. Rosenberg had access to Ms. Ocean’s medical records from  psychologist, Tracey Earle, who treated her for the PTSD.  There is no suggestion in his report that Ms. Earle had raised any concern about Ms. Oceans competence.

 

•        The “limited cognitive capacity” test applied in criminal proceedings does not require that an accused, even one whose liberty may be at risk, have the ability to make choices about the conduct of the litigation which are in her best interests.

 

•        Permitting an opposing litigant to raise the question of a party’s mental capacity in a proceeding sets a dangerous precedent, as discussed in Halstead v. Anderson, supra at para. 57 (reproduced in para. [93] above).

 

•        The court’s inherent jurisdiction is an extraordinary power, rooted in controlling contempt of court or abuse of the court’s process and should not be used save in the clearest of cases.

 

[101]     In my respectful view, these considerations militate against the use of the court’s inherent power to order an assessment here.  I would allow the appeal and set aside the Order under appeal.

 

[102]     It is appropriate, as well, to briefly address the procedure that was followed here.  The judge was faced with a unique and difficult situation.  She understood Ms. Ocean to be raising the issue of her own competence in the course of the amendment application.  Ms. Ocean was summarily required to bring a note from her doctor addressing her mental competence.  As her exchange with the judge reveals, Ms. Ocean thought she had no choice but to comply with the judge’s direction (at para. 28, above).  Although she provided the doctor’s note, which confirmed her competency, she was then faced with Economical’s application requesting a psychiatric assessment order.  In the rare instance were a court finds it necessary to address the question of a self-represented litigant’s competence procedural fairness is critical.  Where it is the mental competence of a party that is in question one would expect that court-appointed counsel should be offered to the litigant for the purposes of the competency inquiry, as must be done in criminal proceedings. 

 

[103]     Although Ms. Ocean claims that the judge exhibited bias toward her, the record reveals that, at all times, the judge was courteous, helpful and accommodating and made allowance for the fact that Ms. Ocean did not have legal counsel.  There is no merit to Ms. Ocean’s suspicion that the judge was acting against her interests.  I am satisfied that, in ordering the assessment in this very difficult situation, the judge was motivated solely to ensure that Ms. Ocean received a fair trial with her case properly put forward. 

 

[104]     Ms. Ocean has implored us to order an inquiry by the R.C.M.P. or C.I.A. into the alleged abuses perpetrated by the insurance industry.  It suffices to say that this was not a request made of the hearing judge and is, therefore, not properly before us.  I would add that I know of no authority which would permit this Court, or the Court below, to make such an order.  Contrary to Ms. Ocean’s submissions, the Judicature Act, R.S.N.S. 1989, c. 240, does not grant such jurisdiction.

 

[105]     As I have found that the assessment order cannot stand, it is unnecessary for me to consider Ms. Ocean’s, alternative, Charter challenge to the Order in question.

 

[106]      Trial of this action will be a tremendous management challenge for the court.  A review of the hearing transcripts and Ms. Ocean’s correspondence with the court reveals her to be articulate, respectful, responsive to direction and ardent.  However, as a self-represented litigant, she is understandably not familiar with the court process.  She files volumes of material, much of it unhelpful and unnecessary, and is seemingly unable to narrow the issues.  She is consumed by a picture much larger than that dictated by issues under consideration in the law suit and tends to digress at great length.  As is the case with many self-represented litigants, she will likely have a great deal of difficulty putting her case forward in an effective or efficient way. 

 

[107]     A particular challenge for Ms. Ocean will be separating the issues in the original action from those that arise on the negligence claim.  As I understand it, one of the reasons for bifurcating the claim was to preserve the September 2008 trial dates for the original action.  Those dates have been lost.  The trial court may wish to consider revisiting the bifurcation order to determine whether it would be more efficient to try both claims in a single proceeding.  This is not an order but an observation.  As matters now stand, the main action and the negligence claim will proceed as separate trials.

 

DISPOSITION

 

[108]     I would allow the appeal and set aside the order of December 15, 2008 requiring Ms. Ocean to submit to a psychiatric assessment.

 

[109]     I would further order that when the report of Dr. Aileen Brunet is received by the Court, a copy be provided to Ms. Ocean, but that the original report and any other copies be permanently sealed.

 

[110]     Ms. Ocean shall be forthwith reimbursed by Economical for her disbursements in this matter which amount I would fix at $4000. 

 

 

 

 

Bateman, J.A.

 

Concurred in:

 

Roscoe, J.A.

Hamilton, J.A.