Henry Ngan

The appellant appealed an order declaring her a vexatious litigant under s. 140 of the Courts of Justice Act.

The application judge had found that the appellant persistently and without reasonable grounds instituted vexatious proceedings against the respondent college and an individual respondent, including multiple proceedings, repeated attempts to review unfavourable outcomes, and initiation of new proceedings on the same subject matter, accumulating $161,000 in unpaid costs orders.

The Court of Appeal found no errors warranting intervention, confirmed the correct legal test was applied, and dismissed the appeal with costs of $2,500 to the college.

The moving party, a surgeon whose hospital privileges were not renewed in 2016, brought a motion to set aside a single judge's order dismissing his motion to set aside a Registrar's dismissal for delay.

The responding hospitals requested a dismissal under Rule 2.1 of the Rules of Civil Procedure.

The Court of Appeal found the moving party exhibited hallmarks of a vexatious litigant by exhausting all rights of review and attempting to re-determine settled issues.

The motion was dismissed as an abuse of process and a collateral attack on underlying decisions, with costs awarded to the responding parties.

The decision addresses two applications, heard together, seeking to have Nathalie Xian Yi Yan declared a vexatious litigant under section 140 of the Courts of Justice Act.

The applicants, the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and Mahadai Bahadur, presented evidence of Ms. Yan’s persistent and meritless litigation against numerous parties, including the College, its staff, and others.

The court found that Ms. Yan’s conduct met the statutory and common law indicia of vexatious litigation, including repeated unsuccessful proceedings, improper purposes, and failure to pay costs.

The court granted orders prohibiting Ms. Yan from instituting or continuing proceedings without leave, except for certain outstanding appeals.

The applicant physician sought to set aside a motion judge's decision quashing his application for judicial review of the hospital boards' decision not to renew his privileges.

The motion judge had found the application would offend the principle against fragmentation and constituted a collateral attack on the Public Hospitals Act process.

The Divisional Court dismissed the motion to set aside, finding the application was premature, any procedural defects were cured by a subsequent de novo hearing before the Health Professions Appeal and Review Board, and the remedy sought was an abuse of process aimed at producing an inconsistent result.

The plaintiffs brought a motion for leave to appeal the order of Centa J. dated April 17, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $5,000.

The plaintiffs in two medical negligence actions appealed a decision dismissing their motions to compel production of documents and answers to discovery questions related to hospital quality of care reviews.

The Associate Justice had found the information irrelevant and protected by common law quality assurance privilege.

On appeal, the court found the documents and questions to be relevant but upheld the Associate Justice's conclusion that a common law evidentiary privilege (Wigmore test) applied to the quality assurance communications, and that the Quality of Care Information Protection Act, 2016 (QCIPA) did not abrogate this common law privilege.

The appeals were dismissed.

The defendants brought a motion to dismiss the action by the minor plaintiffs due to the litigation guardian's failure to appoint new counsel, as required by a previous court order and the Rules of Civil Procedure.

The litigation guardian, who was self-represented for his personal claim, had not retained a lawyer for the minor plaintiffs despite over a year passing since the previous lawyers were removed from the record.

The court found insufficient evidence of diligent efforts to find counsel and emphasized the mandatory requirement for a litigation guardian to be represented by a lawyer.

The motion was granted, dismissing the minor plaintiffs' claims.

The appellant physician appealed a decision of the Health Professions Appeal and Review Board (HPARB) confirming the respondent hospitals' decision not to renew his hospital privileges.

The non-renewal was based on a long-standing pattern of disruptive behaviour and an inability to maintain collegial relationships with colleagues and staff, which jeopardized patient safety.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the HPARB's conclusion that the appellant's conduct led to a complete breakdown of trust and confidence.

The court also dismissed the appellant's late motions to amend his notice of appeal and adduce fresh evidence.

The applicant physician sought judicial review of a decision by the respondent hospitals not to renew his hospital privileges.

The hospitals brought a motion to quash the application, arguing it was an abuse of process and a collateral attack because the applicant had already appealed the decision to the Health Professions Appeal and Review Board (HPARB) and subsequently to the Divisional Court, where a decision was pending.

The court granted the motion and quashed the application, holding that permitting it to proceed would offend the principle discouraging fragmentation of the administrative process and would constitute a collateral attack on the ongoing statutory proceedings.

A physician sought judicial review of a hospital board's decision not to renew his privileges, while an appeal of the same decision was already underway through the Health Professions Appeal and Review Board (HPARB) and further appealed to the Divisional Court.

The hospitals moved to dismiss the application for judicial review, arguing it was moot, vexatious, an abuse of process, and a collateral attack on the statutory process.

The court granted the motion, quashing the application for judicial review, emphasizing the principle of exhausting administrative remedies and preventing fragmentation of proceedings.

The court also denied the applicant's request to amend his application to include earlier privilege restrictions.

The plaintiffs in two medical negligence actions brought refusals motions seeking production of information and documents from hospital case reviews and morbidity and mortality rounds.

The defendants argued the information was irrelevant and protected by common law quality assurance privilege.

The court dismissed the motions, finding the information irrelevant as it involved hindsight and potential remedial measures.

Furthermore, the court held that the Quality of Care Information Protection Act, 2004 did not abrogate common law privilege, and the communications satisfied the Wigmore criteria for protection.

The defendant requested an order dismissing the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure, arguing it was frivolous, vexatious, or an abuse of process.

The defendant cited 21 other legal proceedings initiated by the plaintiff.

The court declined to dismiss the action, finding that the abusive nature of the proceeding was not apparent on the face of the pleading.

The court noted that a multiplicity of proceedings alone is not a basis for dismissal under Rule 2.1 without an apparent attempt to re-litigate determined issues.

The defendant requested an order dismissing the plaintiff's action under Rule 2.1.01 of the Rules of Civil Procedure, arguing it was frivolous, vexatious, or an abuse of process.

The defendant pointed to 21 other legal proceedings initiated by the plaintiff.

The court declined to dismiss the action, finding that the abusive nature of the proceeding was not apparent on the face of the pleading and that a multiplicity of proceedings alone is not a basis for dismissal under Rule 2.1.

The appellants appealed an order granting the respondents' motion to enforce a settlement agreement under Rule 49.09 of the Rules of Civil Procedure.

The appellants, initially self-represented in a medical malpractice action, had emailed the respondents offering to dismiss the action on a without costs basis, which the respondents accepted.

The appellants later retained counsel and refused to proceed with the settlement, arguing the email was sent without the authority of all appellants and was merely an exploratory step.

The Court of Appeal upheld the motion judge's finding that an objective reading of the correspondence established a binding agreement on the essential terms.

The Court also found no error in the motion judge's refusal to exercise his discretion to decline enforcement, as the settlement was not unconscionable.

This decision addresses a challenge to the admissibility of an expert witness, Dr. David Gladstone, during a medical malpractice trial.

Counsel for the defendants argued that Dr. Gladstone was not impartial or objective and was in a conflict of interest due to a prior treating relationship with the plaintiff.

The court found that Dr. Gladstone had disclosed the prior relationship to the plaintiffs' counsel, believed it irrelevant to his expert opinion, and was confident in his objectivity.

The court also clarified that treating physicians can act as medical experts, with their duty solely to the adjudicative body, not to advocate for former patients.

The judge qualified Dr. Gladstone as an expert and permitted him to testify, criticizing the defendants' counsel for raising the challenge for the first time at trial as a 'trial by ambush'.

The court addressed a dispute in a medical malpractice jury trial regarding the wording of causation questions and whether the jury should provide reasons for their findings.

The plaintiffs proposed "caused or contributed to" language, while the defendants advocated for "but for" and requested reasons.

The court accepted the plaintiffs' "caused or contributed to" language, finding no compelling reason not to translate the "but for" test into everyday language, and rejected the request for the jury to provide reasons, citing the risk of confusion and violation of jury secrecy.

The plaintiffs brought a motion for court approval of a proposed $47,500 settlement in a medical negligence claim arising from the death of their father and grandfather.

The court found the motion materials deficient, as they lacked information regarding the alleged negligence, liability issues, efforts to retain experts, and the nature of the relationship between the minor plaintiffs and the deceased.

The court directed plaintiffs' counsel to file a further affidavit addressing these issues before the settlement could be evaluated for reasonableness.

The self-represented plaintiffs brought a medical malpractice action against several physicians and hospitals.

After their initial lawyer declined to formally represent them, the plaintiffs emailed defence counsel agreeing to dismiss the action on a without-costs basis.

When the plaintiffs later retained new counsel and sought to continue the action, the defendants brought a motion under Rule 49.09 to enforce the settlement.

The court granted the motion, finding that the email exchange constituted a binding agreement on all essential terms and that there was no evidence of unconscionability to vitiate the settlement.

The Hospital respondents sought costs on a substantial indemnity basis following the applicant's unsuccessful motion to stay a Health Professions Appeal and Review Board appeal pending a judicial review application.

The applicant, a self-represented litigant, argued that no costs should be awarded or that they should be stayed.

The court found that the Hospital respondents were entitled to costs but not on a substantial indemnity basis, as the applicant's conduct did not warrant such an elevated scale.

Costs were awarded to the Hospital respondents on a partial indemnity basis in the amount of $9,780.

The applicant physician sought an interlocutory injunction to stay proceedings before the Health Professions Appeal and Review Board (HPARB) regarding the non-renewal of his hospital privileges, pending the disposition of his application for judicial review.

The Divisional Court dismissed the motion, applying the RJR-MacDonald test.

The court found the applicant's claim for judicial review prior to exhausting the statutory HPARB process was weak, he failed to demonstrate irreparable harm, and the balance of convenience favoured allowing the HPARB process to continue.

A motion for leave to file a 100-page factum was also dismissed.