Emma Gardiner

The Patient Ombudsman appealed a Divisional Court decision that quashed its proposed investigation into long-term care homes, which the Divisional Court found was prohibited by s. 13.3(5) of the Excellent Care for All Act, 2010, due to existing proceedings on the matter.

The Court of Appeal dismissed the appeal, upholding the Divisional Court's application of the reasonableness standard and its broad interpretation of "in connection with" in s. 13.3(5).

The court found no error in the Divisional Court's conclusion that the Patient Ombudsman's investigation was unreasonably commenced given the extant proceedings and the clear overlap of subject matter.

The non-party Gore Mutual Insurance Company brought a motion under Rule 37.14(1) to vary a previous production order (the "Doi Order"), arguing that its failure to appear at the original motion was due to accident or mistake.

The plaintiff opposed the motion.

The court dismissed Gore Mutual's motion, finding that it failed to establish that its non-appearance was due to accident or mistake, but rather due to carelessness and lack of diligence in processing court documents.

The court also found that Gore Mutual failed to bring its motion forthwith and that the general claim of prejudice lacked merit, especially given the implied undertaking rule.

The applicants sought judicial review of the Patient Ombudsman's decision to initiate an investigation into their long-term care home's handling of the COVID-19 pandemic.

The applicants argued that section 13.3(5) of the Excellent Care for All Act precluded the investigation because the matter was already the subject of other proceedings, including a provincial commission, an Ontario Ombudsman investigation, and class actions.

The Divisional Court agreed, finding that the Patient Ombudsman unreasonably interpreted the statute and was prohibited from proceeding.

The application for judicial review was granted and the decision to investigate was quashed.

The non-party insurer sought costs for two motions regarding summonses issued by the plaintiff, which were previously found to be an attempt to abuse the court's process.

The insurer claimed over $79,000 on a substantial indemnity basis.

The court declined to award substantial indemnity costs, finding that an abuse of process finding on a summons does not automatically justify an elevated scale.

Applying the principle of fairness and reasonableness, the court fixed costs at $18,930, noting that the two motions should have been heard together and the amount claimed was disproportionate for relatively straightforward motions.

The non-party insurer, Gore Mutual Insurance Company, brought a motion to quash four summonses issued by the plaintiff under Rule 39.03(5).

The plaintiff sought to examine four Gore employees in connection with an underlying motion brought by Gore to vary a Rule 30.10 production order.

The court granted the motion and quashed the summonses, finding that the intended examinations were unnecessary, would not enhance the record for the underlying motion, and appeared to be an abuse of process aimed at obtaining advance discovery for a separate insurer misconduct claim.