The Supreme Court of Canada granted leave to appeal of the decision of the Ontarion Court of Appeal in Aletkina v. The Hospital for Sick Children, 2015 ONCA 804 (CanLII).
The origin of this appeal is a wrongful dismissal action filed in 2009, yet to be heard, with respect to the Ms. Aletkina’s dismissal from her employment in 2003, after about one year’s employment as a lab technician. The protracted proceedings also included an application to the Ontario Labour Relations Board (Aletkina v. Hospital for Sick Children, 2003 CanLII 44444 2003 and CanLII 33819 (ON LRB)). The complaint involved allegations of “discrimination on racial/national background and gender, case of a punishment for complaining” and adverse impact on Ms. Aletkina’s health.
In 2013, she made a motion to add defendants and include new causes of action, among others. Master McAfee dismissed the motion (Aletkina v. The Hospital for Sick Children, 2013 ONSC 4709 (CanLII)). One of the issues before the Master was the application of time limits, which had expired. The Master was “not satisfied that Ms. Aletkina was incapable such that the limitation period did not run.” Ms. Aletkina appealed the dismissal and brought motions to adduce fresh evidence. A single judge of the Divisional Court denied her motion to adduce fresh evidence at the appeal the Master’s order (Aletkina v. The Hospital For Sick Children, 2014 ONSC 716 (CanLII)). A panel of the Divisional Court set a side the decision, concluding that “it was an overriding and palpable error for the motions judge to reject the fresh evidence rather than leave the Palmer analysis to the Divisional Court judge who will decide the appeal on its merits” (Aletkina v. The Hospital For Sick Children, 2014 ONSC 2387 (CanLII)).
Judge Corbett of the Divisional Court heard the appeal and the motions to introduce fresh evidence (Aletkina v. Hospital for Sick Children, 2014 ONSC 6263 (CanLII)). He set out Ms. Aletkina brief employment ending in April 2003, and noted:
- Almost six years later, on April 27, 2009, Ms Aletkina sued HSC for wrongful dismissal, seeking $750,000 damages including punitive and exemplary damages. Now, more than five years later, the action has not been scheduled for trial, and Ms Aletkina seeks to expand the litigation by adding parties and claims. These amendments, if permitted, would have the effect of reopening documentary and oral disclosure and would place the parties virtually back at the beginning of the litigation process.”
The judge did not accept Ms. Aletkina submission that the running of the limitation period was suspended to 2011 because of her mental illness.
“12. The Master took a good, hard look at Ms Aletkina’s claim that she was under a legal disability that suspended the running of the limitations period. The voluminous materials filed on the motion established clearly that Ms. Aletkina does suffer from a mental illness and one that has been described as “severe” by her treating psychiatrist. Nowhere in the volumes of the material is there an opinion that this mental illness renders her under a legal disability. And while it may be true that Ms. Aletkina was slow taking steps related to this litigation, because of her mental health issues, receiving accommodation for health reasons is not the same thing as being unable to appreciate that she had claims that she now wishes to assert.”
Judge Corbett also accepted that “… [Ms Aletkina] was regularly pursuing doctor’s notes to further prolong and delay this litigation. It is significant that [Ms Aletkina] specifically requested a letter indicating she lacked capacity, and in July 2012, a physician specifically refused to provide such an opinion.””
Judge Corbett dismissed the appeal and fresh evidence motions.
Ms. Aletkina appealed to the Court of Appeal (Aletkina v. The Hospital for Sick Children, 2015 ONCA 804 (CanLII)). A motion judge of the Court of Appeal dismissed her motions; and she moved to have that decision reviewed by a panel of the Court. In the mean time she brought a motion to stay of the decision of the motion judge. The judge hearing that motion “concluded that Ms. Aletkina failed to meet the test for a stay and that there was “insufficient evidence to rebut the presumption of capacity set out in s. 2 of the Substitute Decisions Act” and further “despite the voluminous materials filed, her submission that she lacks legal capacity to conduct these proceedings is not demonstrated by the evidence.”
Ms. Aletkina then brought a motion to review that decision. In support she sought to add further fresh evidence before the court, including 3 documents relating to her efforts to obtain a “capacity assessment.” The panel of the hearing Court concluded:
“18. Both Master McAfee and Justice Corbett dealt with the request for a capacity assessment in their reasons for decision. The result of this court’s decision in June 24 is that her application for leave to appeal the order of Corbett J. is finally dismissed. In these circumstances, this court has limited jurisdiction. It can order a stay pending an application for leave to appeal to the Supreme Court of Canada, however, any request for further relief should be made either to the Supreme Court of Canada or to the Superior Court of Justice in relation to any aspect of the trial. The rules provide that a person under a disability which includes a person who is incapable within the meaning of s. 6 or s. 45 of the Substitute Decisions Act, is to be represented by a litigation guardian who may in appropriate circumstances be the Public Guardian and Trustee. The Substitute Decisions Act requires determination of legal capacity to be made by “assessors” as defined in the regulations to that Act. It is open to Ms. Aletkina to request an assessment of her own capacity under s. 16 of the Act by following the procedures that are laid out in that Act.”
The Court denied her motion to introduce fresh evidence.
To be continued …… in the Supreme Court of Canada.