Court File and Parties

CITATION: Cerqueira v. Ontario, 2016 ONSC 5112

COURT FILE NO.: 644/15

DATE: 20160818

SUPERIOR COURT OF JUSTICE – ONTARIO

Divisional Court

RE: Antonio Cerqueira by his Estate Trustee, Delfina Cerqueira, Delfina Cerqueira and Helen Cerqueira, Appellants

AND:

Her Majesty the Queen in Right of Ontario, University Health Network, Dr. Rodrigo Brandao Cavalcanti, Dr. Bohdan Julius Laluck Junior, Dr. Dmitry Rozenberg, Dr. Courtney Ann Thompson, Respondents

BEFORE: H. Sachs J.

COUNSEL: Appellants acting in person

Daniel Mayer, for the Respondent, Her Majesty the Queen

Daniel Girlando, for the Respondent, University Health Network

Rory Gillis, for the physician Respondents

HEARD: In writing

ENDORSEMENT

[1] On September 19, 2011, the Appellants commenced a proceeding against the Respondents alleging negligence in relation to the treatment of Antonio Cerqueira while he was in a hospital run by the University Health Network. Mr. Cerqueira died on August 31, 2009. The Appellants’ claim was struck as statute-barred since it was commenced more than two years after Mr. Cerqueira’s death. The Appellants unsuccessfully appealed the decision to strike their action.

[2] On July 9, 2015, the Appellants initiated this proceeding. A review of the Statement of Claim in relation to this proceeding makes it clear that the action is against the same parties and is based on the same underlying facts as the 2011 action that was struck. The only difference is that in this action, the Appellants have specifically pleaded fraudulent concealment.

[3] In appealing the decision to strike their 2011 action, the Appellants argued that the motion judge erred in not invoking the doctrine of fraudulent concealment to toll the limitation period. The Divisional Court found that the motion judge made no error in this regard. Leave to appeal this decision was refused by the Court of Appeal and by the Supreme Court of Canada.

[4] On November 10, 2015, J. Wilson J. granted a motion for summary judgment to dismiss the Appellants’ 2015 claim without leave to amend. She did so on the basis that the claims made in the 2015 action were the same as the claims made in the 2011 action and that the issue of fraudulent concealment had also been canvassed in the prior proceeding such that it was res judicata. In the course of her reasons, the motion judge wrote:

[10] It was clear from the plaintiff’s submissions that she carries a heavy burden of grief and guilt associated with her father’s death. The facts confirm that she did everything a diligent loving daughter could do. All counsel and this Court express sympathy for the plaintiff’s loss.

[5] The Appellants seek to appeal the order dismissing their 2015 Claim. In their Notice of Appeal, they allege that the motion judge erred in finding that there were no facts that would support a finding of fraudulent concealment, that she erred in finding that the Appellants bear a heavy burden of grief and guilt and that she erred in determining that the action was res judicata or statute-barred.

[6] At my direction, on June 2, 2016, the Registrar gave the Appellants’ notice under Rule 2.1.01 that the court was considering making an order dismissing their appeal on the basis that, on its face, it appeared to be frivolous, vexatious or otherwise an abuse of the process of the court. The Appellants were given 15 days, from receipt of the notice (which was mailed to their last known address on June 6, 2015), to file written submissions. To date, no submissions have been received from the Appellants.

[7] After reviewing the endorsements in the 2011 proceeding, the Statement of Claim in the 2015 proceeding, the summary judgment decision and the Notice of Appeal, I have determined that the Appellants’ appeal on its face is frivolous, vexatious and an abuse of process of this court. It is clear that the Appellants in the 2015 proceeding are seeking to relitigate the claims that they made in the 2011 proceeding. All of those claims, including the claim of fraudulent concealment, were finally disposed of in that proceeding. As such, this case meets the test for dismissal under Rule 2.1.01 that was endorsed by the Court of Appeal in Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733.

[8] With respect to the error alleged in relation to the motion judge’s reference to the fact that it was clear from Ms. Cerqueira’s submissions that “she carries a heavy burden of grief and guilt associated with her father’s death”, this finding was not essential to the motion judge’s decision.

[9] For these reasons, the Appellants’ appeal will be dismissed. Since the Respondents were not called upon to make any written submissions and have not filed any material on the appeal, there will be no order as to costs.

H. SACHS J.

Date: 20160818