IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101018

Docket: S087311

Registry:
Vancouver

Between:

Kendyl
Wayne DeMerchant by his litigation
guardian Marty Earle DeMerchant

Plaintiff

And

Tammy Chow, Dick Yut Shong Chow and
Elsie Choi Yee Chow

Defendants

And

A-1 Fire Supplies Ltd. and Royal City Fire Supplies Ltd.

Third
Parties

Before:
 Master Taylor

Reasons for Judgment

[1]            
The defendants/applicants seek two orders in these proceedings:

         
1.       That the plaintiff is competent to give
evidence on his own behalf in these proceedings, and

         
2.       That the defendants are granted leave to
examine for discovery the plaintiff at such time and place as may be decided by
counsel for the parties.

[2]            
The application is made pursuant to Rule 7-2(9) of the new Rules which
was formerly Rule 27(11) of the old Rules.  The wording of both rules is
similar, but the new Rule has changed the wording somewhat.  The new Rule
provides:

7-2(9)  If a party to be
examined for discovery is a mentally incompetent person, his or her litigation
guardian and his or her committee may be examined for discovery, but the mentally
incompetent person must not be examined without leave of the court.

[3]            
The defendants maintain that the only reason they seek to examine the
plaintiff is to obtain evidence in order to instruct their experts.

[4]            
Plaintiff’s counsel advised the court in response to the application
that there is no intention to call the plaintiff at trial.  Accordingly,
it is submitted, the plaintiff may be at a disadvantage if his examination for
discovery is allowed and that discovery is available to the judge at trial.

Background Facts

[5]            
Kendyl DeMerchant
was injured in a work-related accident on July 3, 2007 after a fall of
approximately 10 to 15 feet from a ladder to concrete or asphalt.  He was
45 years of age at the time.

[6]            
The plaintiff sustained a traumatic brain injury including right frontal
subarachnoid hemorrhage, significant encephahalomalacia, atrophy, and gliosis
(with evidence of previous hemorrhage in several
lesions), as well as a fractured ankle.  It is common knowledge that he
has suffered two prior head and or brain injuries and has a grade 8 education.

[7]            
After hospitalization and rehabilitation lasting some three months, Mr. DeMerchant moved to Edmonton on the invitation of his brother,
Marty DeMarchant.

[8]            
The plaintiff commenced this litigation on October 17, 2008.

[9]            
Marty Earle DeMerchant applied for Trusteeship
of the plaintiff pursuant to the Dependent Adults Act of Alberta on
January 28, 2010.  He relied on the opinion of Dr. William Paul Green, a
clinical neuropsychologist, dated September 30, 2009.  In his report, Dr.
Green opined that the plaintiff was unable to make reasonable judgments in
respect of matters relating to all or any part of his estate and thus needed a
trustee.  He further stated that there was a “history of a severe brain
injury leading to deterioration of personality, impaired cognition and
pathological gambling.  “Will gamble away rent money if he has it.”  Dr. Green’s diagnosis was “severe brain injury
with frontal lobe syndrome” and he felt the plaintiff’s prognosis was poor.

[10]        
On March 30, 2010, the Alberta Court of Queen’s Bench appointed Marty DeMerchant as trustee of the plaintiff’s estate and granted
various powers to Marty DeMerchant relating to the
plaintiff’s estate.  Some of those powers included being able to make
decisions or take steps regarding the plaintiff’s real and personal property
and this litigation.  The order did not grant Marty DeMerchant  with the authority to make reasonable judgments
regarding the plaintiff’s mental and physical health or day to day decisions.

[11]        
Since January, 2010, the defendants have been seeking to examine the
plaintiff for discovery.  Counsel for the plaintiff maintains that the
plaintiff is incompetent and confabulates and, therefore, will not produce him
for discovery.

[12]        
In anticipation of this application, the defendants retained Dr. Desmond
J. Coen to assess Mr. DeMerchant
and “to provide his opinions regarding Mr. DeMerchant’s
ability to participate in legal proceedings, more specifically the ability to
understand the nature, quality and obligation of an oath, so as to be
examinable in the proceedings.”   Dr. Coen’s
report is dated July 27, 2010.

[13]        
The defendants rely on the reports of a neuropsychologists and a
psychiatrist: the neuropsychological opinion of Dr. Nicholas Bogod in the form of a 3-page letter dated August 25, 2010,
the Independent Neuropsychological Assessment of Dr. Nicholas Bogod, dated September 22, 2010 and the letter dated August
13, 2010 and medical-legal opinion of Dr. Shaohua Lu
dated October 23, 2009.

[14]        
At page 5 of his neuropsychological consultation, Dr. Coen says the following:

I now report that my interview findings, test results and
general behavioural observations indicates to me that Mr. DeMerchant
is able to understand the nature, quality and obligation of making an oath and
is examinable in legal proceedings, provided the points to be elaborated in the
following paragraphs are kept in mind.  Also, in my subsequent report I
will opine on the appropriate psychiatric/psychological diagnoses for Mr. DeMerchant, but I note that the presence of psychiatric
diagnoses in themselves do not establish mental incompetence.

[15]        
In the next ensuing paragraphs, Dr. Coen
allows that Mr. DeMerchant is prone to fatigue during
intellectually-demanding work; is quite slow to process verbal information; and
has a tendency to apathetic non-responding when asked to summarize large
portions of his past history.  In relation to the last indicator, Dr. Coen goes on to explain that what he means is that the
plaintiff is not prone to taking the time and effort to interpret, analyze, and
organize a response to broad questions.  Dr. Coen
also notes that this tendency to non-responding is not to be confused with
confabulation.  Instead, Dr. Coen specifically
says Mr. DeMerchant does not confabulate.

[16]        
In contrast, Dr. Bogod’s neuropsychological
opinion dated August 25, 2010 disagrees with Dr. Coen’s
conclusion that Mr. DeMerchant could make a
reasonable response under oath.

[17]        
Both psychologists agree that:

a.        
Mr. DeMerchant “is of Low Average intelligence,”

b.        
Mr. DeMerchant “is prone to fatigue during
intellectually demanding work,”

c.        
Mr. DeMerchant “is quite slow to process verbal
information,”

d.        
Mr. DeMerchant “is likely to misrepresent statements
with multiple embedded phrases, particularly with multiple negative
assertions,”

e.        
. . . Mr. DeMerchant’s “. . . auditory attention is
further likely to deteriorate if questioned against a noisy background,”

f.         
Mr. DeMerchant “has a slow reading speed, and tends
to process most visually-oriented materials slowly.”

[18]        
Dr. Bogod found additional cognitive
limitations that were apparent in his evaluation of Mr. DeMerchant
as follows:

a.        
Mr. DeMerchant displays a dysnomia. 
His ability to name a series of pictures fell within the Borderline Impaired
range,

b.        
Mr. DeMerchant has reduced semantic verbal
fluency.  His ability to generate works within certain categories (e.g.
animals) was Borderline Impaired,

c.        
Mr. DeMerchant has very poor sustained attention and
weak divided attention (multitasking capacity),

d.        
Mr. DeMerchant displays impairments of visual
learning and memory,

e.        
Mr. DeMerchant reports autobiographical amnesia for
much of his remote and recent adult life prior to the accident,

f.         
Mr. DeMerchant has poor impulse control,

g.        
Mr. DeMerchant was observed to be irritable and edgy
with low frustration tolerance throughout the examination and required a very significant
amount of external encouragement, redirection and praise to remain on tasks.

[19]        
While Dr. Bogod says that it cannot be
determined with certainty that Mr. DeMarchant does
not confabulate, he does give some examples of what Mr. DeMerchant
says regarding his winnings at poker, which Dr. Bogod
says seem unlikely given the plaintiff’s lack of ability
to be attentive, or use his memory and multitasking skills.

[20]        
Dr. Bogod summarizes his opinion in the
following words:

. . . due to the significant cognitive deficits noted by both
Dr. Coen and myself during formal evaluation of Mr. DeMerchant, and which I elaborate upon above, it is my
opinion that Mr. DeMerchant’s ability to accurately
and reliably answer questions under oath is severely compromised due to his
brain injury.

[21]        
Dr. Shaohua Lu is a psychiatrist.  His
response to Dr. Coen’s psychological report of July
27, 2010 is dated August 13, 2010.  He strongly disagrees with Dr. Coen’s opinion that Mr. DeMerchant
is fit to understand the nature, quality and obligation of an oath and to his
ability to answer questions under oath.

[22]        
Dr. Lu is of the opinion that Mr. DeMerchant
does confabulate in these words:

I strongly disagree with Dr. Coen’s
statement that Mr. DeMerchant does not
confabulate.  Mr. DeMerchant indeed confabulates
in my assessment and fills in the gaps of his personal history.  Mr. DeMerchant does not consciously lie but he would try to
fill in gaps in his memory with his general fund of knowledge, especially when
he is pressed in stressful situations.

[23]        
Further on in his opinion, Dr. Lu says this:

Mr. DeMerchant cannot reliably
answer questions put to him.  He cannot be relied on to give accurate
answers to his personal history, current activities and previous events. 
He would have difficulties recognizing his own areas of deficit.  He
cannot stop reliably an examiner who asked questions that he does not
understand.  He would be completely reliant on counsel to intervene on his
behalf.  Yet he would have difficulty seeking help when he does not have
the understanding of the questions involved.  There is a high degree of
probability that Mr. DeMerchant provides a response
even when he does not understand the question posed to him.  Although Mr. DeMerchant, from an intellectual standpoint, understand
what taking an oath means, in the moment of answering the question, he would
have difficulty to maintain the impulse control necessary to reflect, analyze
and provide answers that are fully truthful to the events of history and
activities.  Mr. DeMerchant can be easily
persuaded, convinced or influenced to give answers about his future due to lack
of analytical thoughts and evaluation.  He would have difficulty to be
fully aware of the consequence of giving wrong answers or potentially
contradictory answers to his daily activity, past history and future
expectations.

[24]        
Dr. Lu also provided an extensive opinion dated October 23, 2009. 
At page 5 of 22 of that report he says

Mr. DeMerchant does not have the
capacity to give testament [sic] in court.  As illustrated in clinical
history, he cannot be sure of his personal history and memory.  He is
highly suggestible.  He would have difficulties making abstract decisions
when given choices.  Due to the nature of his brain injury, he cannot give
reliable or consistent responses.  His unreliability is strictly due to
neuropsychiatric consequence of brain injury.

Discussion and Analysis

[25]        
The defendants insist that the plaintiff is competent in managing his
personal affairs which would be sufficient for the court to find that he is
capable of understanding the nature and quality of an oath and therefore able
to be examined for discovery.  They make this submission, in part, because
the plaintiff does not have a committee appointed to look after his affairs,
but rather a trustee appointed under the Dependent Adults Act, R.S.A. 2000, c. D-11, an Alberta
statute.  This is due, say the defendants, to the distinction between the appointment of a guardian versus the appointment of a
trustee under that statute.

[26]        
Section 7 of the Dependent Adults Act deals with the appointment
of a guardian in these terms:

7(1)  When the Court is
satisfied that a person named in an application for an order appointing a
guardian is

           
(a) an adult, and

           
(b) repeatedly or continuously unable

                       
(i) to care for himself or
herself, and

                       
(ii) to make reasonable judgments in respect of
matters relating to his or her person

the court may make an order
appointing a guardian.

[27]        
Subsection (3) of section 7 sets out 10 powers which the Court can grant
to the guardian, such as “to decide where the dependent adult is to live,
whether permanently or temporarily”.

[28]        
Section 35 of the Dependent Adults Act is concerned with the
appointment of a trustee in these words:

35(1)  When the Court is
satisfied that a person named in an application for an order appointing a trustee
is

           
(a)  an adult,

           
(b)  unable to make reasonable judgments in
respect of matters relating to all or any part of the person’s estate, and

           
(c)  in need of a trustee,

          the Court may make an order appointing a trustee.

[29]        
According to section 38 of the same Act, the trustee, once
appointed, has the right to and may take possession and control of all the real
and personal property of the dependent adult.

[30]        
Thus, say the defendants, although the standard required for a
guardianship order is not the same as the standard for competence to give
evidence in a discovery, the difference between a trusteeship and a
guardianship is illustrative of the nature and degree of Marty DeMerchant’s power and authority over the plaintiff and
suggests by inference that the plaintiff is competent in managing personal
matters.

[31]        
The plaintiff submits that the appointment of a trustee, pursuant to the
Dependent Adults Act is the equivalent to the appointment of a committee
of the estate of a person pursuant to the Patient’s Property Act, RSBC 1996, c. 349, while the appointment of a guardian
pursuant to the Dependent Adults Act is the equivalent to the
appointment of a committee of a person pursuant to the Patient’s Property
Act.

[32]        
According to the Patient’s Property Act upon reading the
affidavits of two medical practitioners setting out their opinion that the
person who is the subject of the application is, because of

          (i)  mental infirmity arising
from disease, age or otherwise, or

         
(ii)  disorder or disability of mind arising from
the use of drugs,

incapable of managing his or her affairs or incapable of
managing himself or herself, or incapable of managing himself or herself or his
or her affairs, the court must declare that the person is incapable of managing
his or her affairs, or incapable of managing himself or herself or both
incapable of managing his or her affairs and managing himself or herself. 
Accordingly, in British Columbia a person could have a committee if they were
incapable of managing their affairs, which is similar to the trusteeship in the
Dependent Adults Act of Alberta, although the test for the appointment
of a trustee under the Alberta Act appears to be substantially lower than that
required by the B.C. Act.

[33]        
With all due respect to the defendants, I do not think the distinction
between the two statutes is significant in these proceedings as the governing
consideration is the wording of Rule 7-2(9).

[34]        
The question to be determined, therefore, is whether the evidence before
me is sufficient to find that court approval should be granted to allow the
plaintiff to be examined for discovery.

[35]        
In Penn v. Secord (1979), 16 B.C.L.R.
48, [1980] 1 W.W.R. 464, 106 D.L.R.(3d) 9 Ruttan, J. said the onus
for showing that a party is competent to be examined rests on the party seeking
his examination.  In the case at bar, the onus rests on
the defendants.

[36]        
The Rule in question uses the term, “a mentally incompetent person”.

[37]        
It has been assumed up to now that Mr. DeMerchant
is a mentally incompetent person because he has a trustee and a litigation
guardian.  As well, the very nature of the application assumes the
plaintiff is a mentally incompetent person since the application seeks leave of
the court to examine him.

[38]        
According to section 29 of the Interpretation Act, a “mentally
incompetent person” is a “person with a mental disorder as defined in section 1
of the Mental Health Act”.

[39]        
Reference to the Mental Health Act reveals the definition of a
“person with a mental disorder” as “a person who has a disorder of the mind
that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to
associate with others”.

[40]        
In Morrison v. Cormier Vegetation Control Ltd., unreported,
Vancouver Registry No. B944774, January 16, 1996, Madam Justice Downs said:

The pronouncement of an order for Committeeship give rise to a presumption that the
patient is not competent to give evidence under oath.

[41]        
Downs, J. was sitting in appeal of a Master’s decision in Morrison v.
Cormier.  She commented on the Master’s decision in the following way:

I find that the Master exercised his discretion carefully and
prudently.  I agree that the medical evidence before him justified his
conclusion that the examination would be futile as none of the evidence given
could be relied upon without corroboration.

[42]        
In Penn v. Secord, supra, Ruttan, J.
considered some Ontario jurisprudence in his decision to allow an examination
pursuant to Rule 27(11) at paragraph 8 of his judgment:

It is helpful, however, to consider the grounds applied in
Ontario for allowing the examination.  I refer in particular to the
judgment of Steel J. in the case of McGowan v. Haslehurst
(1977), 17 O.R. (2d) 440, 5 C.P.C.
280 (C.A.) who in turn relied on the decision of the Ontario Court of Appeal in
Barnes v. Kirk (1968), 2 O.R. 213.  As Aylesworth J.A.
said in Barnes v. Kirk at para. 216:

           
“The question essentially is one to be decided upon medical evidence; without
direct cogent evidence from a person duly qualified to speak with authority
upon the subject, it is difficult to perceive how the Court could pass upon the
question judicially.”

[43]        
Continuing his reasons at paragraph 9, Ruttan
said:

Here, on medical evidence the patient was committed but the finding
was not one of unsoundness of mind rendering him unfit to give evidence. 
The order committing him did not go beyond saying that he was incapable of
managing his own affairs or person.  On examination by Dr. Turnbull, an
eminent neurologist, it was found that though the patient was mentally ill he
could relate a clear story, though his memory was very faulty in many
areas.  He was able to remember some circumstances immediately prior to
the accident though none of the accident itself.

[44]        
The court and the litigants must be satisfied that evidence given by a
witness is reliable.  If a witness confabulates then the evidence is not
reliable.  And, as submitted by the plaintiff and suggested by Downs, J.
in Cormier what use can evidence be if unreliable and must be
corroborated by others?  Surely, that would make the taking of evidence
from the witness a futile exercise.

[45]        
In the case at bar, there is medical evidence which conflicts, however I
am satisfied that Drs. Bogod and  Lu have
provided sufficient medical evidence  to suggest that the plaintiff does
confabulate and would be unreliable as a witness.

[46]        
I am also satisfied that the evidence of Drs. Bogod
and Lu establish that the plaintiff meets both tests set out in the definition
of a person with a mental disorder. 

[47]        
Accordingly, I determine that the applicants have not met the onus
imposed upon them in seeking an order that the defendants be granted leave to
examine the plaintiff at discovery.  It should also go without saying that
I do not find the plaintiff to be competent to give evidence on his own behalf
in these proceedings.

[48]        
  Consequently, I dismiss the defendants’ applications with
costs to the plaintiff in any event of the cause.

“Master
G. Taylor”