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 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.

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.

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.