In this post, we discussed two recent cases where the courts have had to make the difficult decision of whether to order a condo owner to have their mental capacity assessed. Interestingly enough these cases led to surprisingly different results.

The Ottawa case

The Ottawa case originated from a dispute surrounding Ms. Sennek’s garden. She appeared to have installed a frame around her raised garden bed in her front and rear yard. As this was prohibited by the corporation’s rules, the corporation had them removed and sought to recover the cost for doing so: approximately $763. Ms. Sennek refused to pay this chargeback and a lien was placed on her unit. She started a Small claims court proceeding, alleging several torts against a number of defendants (including the corporation’s lawyer). She also brought a separate court application to get the lien discharged.

The lien matter was first heard by Justice Kershman who became concerned with Ms. Sennek’s behaviour. His Honour concluded that each of her behaviours, observed separately, might not be considered odd, but when looked at together, he found that Ms. Sennek’s behaviour appeared to be “bizarre”. He specifically cited her odd behaviour with respect to her identity (the name used in the court proceedings and the name appearing on title of the unit were different). He noted her complaints made to the Privacy Commission and to the Law Society of Upper Canada (LSUC) against the corporation’s lawyer and the derogatory terms she used in reference to others in her pleadings.

Overall, his Honour was concerned that Ms. Sennek may not have the ability to appreciate the reasonably foreseeable consequences of her decisions in both litigations. His Honour ordered that she undergo a capacity assessment under the Substitute Decisions Act. She tried to appeal this decision, but the decision was maintained by a second judge.

She did not attend the assessment

When she did not attend the ordered assessment, the corporation returned to court to have her found to be in contempt of court. Justice Roger indicated that he had reasonable doubts as to whether Ms. Sennek was “deliberately and wilfully” breaching the court order (considering that there were issues as to her mental capacity). On that basis, he did not find her to be in contempt of court but ordered her to have her mental capacity assessed by a specific professional at a specified time and place. This was the third time she was ordered to get assessed. He also ordered that, if she failed to attend the assessment, the corporation could bring a motion to the court to get her court proceedings dismissed.

Ms. Sennek sought to appeal this decision but, on February 21, 2017, the Court of Appeal found that it did not have the required jurisdiction to hear this question. This question should have been brought before the Divisional Court. I note in passing that it is difficult for the average layperson to navigate through our legal system. It is always best to seek legal advice.

Where does that leave us?

I’m not sure where things stand as of now. If Ms. Sennek does not submit herself to a capacity assessment, one can assume that the corporation will seek to have all of Ms. Sennek’s cases dismissed. One would assume that the best way to avoid that is to undergo the assessment and one may be left somewhat puzzled by her refusal to submit herself to it.

The fact of the matter is that these various steps must have been and must continue to be very costly to the corporation. One of the earlier judges noted that the corporation’s fees were over $18,000. I’m sure by now these costs have likely doubled. That’s considerable considering that this all stemmed from a $763 lien….

The Toronto case

In the Toronto case, Ms. Wong’s pattern of behaviour escalated to the point of becoming threatening and dangerous. At the corporation’s AGM she was shoving her camera in people’s face, taking their pictures without their consent. She left threatening voicemail messages and complained repeatedly that people were abusing her pet and injecting flies and gas in her unit. In the lobby, she was seen rearranging furniture and sleeping on the lobby couch with a table on top of her. She would spend hours dialing the same number at the intercom and knock on people’s doors at inappropriate times, asking for “Justin” or indicating that she was Justin’s sister.

The corporation sought various injunctive reliefs, seeking to prevent her from disturbing the comfort and quiet enjoyment of other and basically preventing her from harassing the corporation’s employees, manager and security personnel. The corporation also sought to have her mental capacity assessed to determine whether a litigation guardian was required to assist her in this litigation.

While the judge confirm that she had the required jurisdiction to order a mental capacity assessment, she was of the view that this remedy should be reserved to “rare exceptions”. Indeed, a mental examination represents a significant intrusion into one’s autonomy. The judge concluded that, despite the very odd behaviour described above, there was no evidence before her to suggest that Ms. Wong was not capable of understanding the information relevant to making decisions with respect to the court proceeding.

On the merit of the application, the court concluded that Ms. Wong’s conduct constituted harassment under the Occupational Health and Safety Act and that it raised serious concerns about the physical and emotional safety, security, comfort and enjoyment of other residents. The court therefore granted the interlocutory reliefs sought, seeking to put an end to this behaviour. The court also imposed legal costs on Ms. Wong in an amount exceeding $16,000.

Where does that leave us?

It is quite likely that Ms. Wong’s behaviour is actually out of her control. Perhaps a capacity assessment would have help us shed more light on this. I unfortunately suspect that this is not the end of this story either.

Lessons Learned

One of the lessons learned from this is that, to some extent, going to court is, at best, an unpredictable process. It is also best to retain a legal professional to assist you in these processes.

When facing potential mental health issues, it may be best (if possible) to attempt to reach out to family members to secure their assistance. If that is not possible, it is crucially important to properly document the various incidents to build the best possible case. In many cases, the corporation may be left with no choice but to take the matter to court, such as cases where the safety and security of other is at risk.