CITATION: Emad Elguindy v. St. Joseph’s Health Care London, 2017 ONSC 4247

DIVISIONAL COURT FILE NO.: 7/17

DATE: 2017/07/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Emad Elguindy

Appellant

– and –

St. Joseph’s Health Care London, Lisa Barnes, Brian Larocque and Hassan Razvi

Respondents

COUNSEL:

In person

L. Crowell, for the Respondents St. Joseph’s Health Care London and Lisa Barnes

P. Kryworuk and J. Damstra for the Respondents Brian Larocque and Hassan Razvi

HEARD: July 5, 2017

GRACE J.

A. Introduction

[1] Emad Elguindy commenced an action in the Small Claims Court against a hospital, a nurse and two physicians as a result of the cancellation of a medical procedure.

[2] At a March 25, 2015 settlement conference, Deputy Judge S. Davies ordered, among other things, that Mr. Elguindy produce the reports he intended to rely upon to address the standard of care of the defendants (the “standard of care expert reports”) by a stipulated date.

[3] Mr. Elguindy brought an application for judicial review. While successful in part, the portion of the order of the Deputy Judge to which I have referred was upheld by the Divisional Court in a decision released May 19, 2016. On behalf of the panel, Pattillo J. wrote at para. 13:

In our view, the Judge clearly had jurisdiction at the settlement conference and pursuant to SCC Rule 13.05(2)(a)(vi) to order the Applicant to produce his expert reports dealing with the standard of care of the Respondents. There is no issue that in a medical negligence action such reports are necessary to succeed at trial. Further, they must be produced at least 14 days before the settlement conference: SCC Rule 13.03(2). In the face of the Applicant not providing such reports, it is appropriate to order their production before trial.

[4] Mr. Elguindy did not provide the standard of care expert reports. However, Mr. Elguindy did serve a June 18, 2015 letter from his treating urologist shortly before a second settlement conference was held on August 12, 2016.

[5] Deputy Judge Cormier presided. He gave Mr. Elguindy thirty days more to deliver the standard of care expert reports failing which the defendants could bring a motion to dismiss his claim.

[6] Once again they were not served by Mr. Elguindy. However, the Claim was amended for the second time on August 1, 2016.

[7] The defendants moved for dismissal of the action on the basis it was “inflammatory, a waste of time, a nuisance or an abuse of the court’s process.”[^1] The quoted words track the language contained in rule 12.02(1)(c) of the Rules of the Small Claims Court (“Small Claims Court Rules”). Dismissal of the action is one of the powers conferred on the court by rule 12.02(2) 1.

[8] The motion was originally returnable October 7, 2016. The matter was not reached and was adjourned to November 24, 2016. Deputy Judge Cormier presided on both occasions. A transcript of the latter attendance was included in the materials filed with this court.

[9] Mr. Elguindy asked the Deputy Judge to recuse himself at the outset of the latter attendance. He said in part:

Justice Cormier, I think we were here before you on two occasions…[o]ne during the settlement conference and one during the motion…And at that time I did raise the issue that there may be a conflict of interest due to the fact that you were the judge who suggested this motion and you went personally to set this motion for a date and then you appeared on that date, so I didn’t understand what [was] happening and I did inform Your Honour at that time that it could not be a coincidence that you were the judge in the circumstances. In the meantime, when this day was set, the trial coordinator told me that you were not going to be sitting here. It would be another judge. So I see you are sitting here again. By all means I’m asking you to remove yourself because there appears to be a reasonable conflict of interest in this subject. If you don’t remove yourself then I have no choice but to proceed of course. Thank you.

[10] After a number of brief exchanges covering about two pages of the transcript, the Deputy Judge addressed Mr. Elguindy as follows:

I will be proceeding and your assumption that a motion brought would have [been] heard by me is inaccurate because it’s to remove me. They obviously would have given it to another judge. You also seem to be under the impression that somehow I arranged the court lists. I don’t. Grace tells me where I’m going to be when and I often don’t even know what I’m going to be hearing that day. I know only that I’m going to come on a certain day, that’s it. So all this stuff about making sure that I’m the one sitting, I don’t make sure I’m sitting anything [sic].

[11] Mr. Elguindy responded with:

I have no worries about this motion because this motion is a joke with all due respect.

[12] Argument followed. Decision was reserved. In an endorsement released May 3, 2017, the Deputy Judge concluded that:

a. Mr. Elguindy’s claim was founded in negligence despite the amendments he had made;

b. Having asserted such a claim, Mr. Elguindy was required to produce expert reports on the standard of care;

c. Any claim in contract was baseless because there was no evidence that a contract was formed.

[13] The Deputy Judge explained why he was exercising the power to dismiss the action as follows:

This matter was started in October of 2014 despite of [sic] numerous requests and several courts [sic] orders the Plaintiff has still not provided any expert report regarding the standard of care required by either doctor. Without the expert reports supporting the position of the plaintiff there is no possibility of the plaintiff succeeding. Therefore, a trial would be a waste of time and effort. Accordingly, the claim is dismissed [sic].[^2]

The Plaintiff argued that his claim is also made pursuant to a contract with the named parties. However there is no evidence of the formation of a contract with any party. A contract requires an offer, acceptance and terms. No evidence of any of these aspects of the formation a [sic] was presented during the argument of the motion or referred to during the argument of the motion.[^3]

[14] Mr. Elguindy exercised the right of appeal s. 31(a) of the Courts of Justice Act confers by serving a Notice of Appeal dated May 1 [sic], 2017.

B. Relief Sought

[15] The respondents Larocque and Razvi seek an order which would make it unnecessary to argue the appeal on September 8, 2017 as is currently scheduled.

[16] The moving parties ask that the appeal be dismissed as frivolous, vexatious or otherwise an abuse of process or quashed for being devoid of merit. They rely on rule 2.1.01 of the Rules of Civil Procedure (“SCJ Rules”) and s. 134(3) of the Courts of Justice Act respectively. Alternatively, the moving parties rely on rule 25.11 of the SCJ Rules and ask that the court strike the Notice of Appeal in its entirety without leave to amend, on the grounds that it is scandalous, frivolous and vexatious or an abuse of the process of the court.

C. The Appellant’s Jurisdictional Argument

[17] Mr. Elguindy submitted the court lacked jurisdiction to entertain the moving parties’ motion. I disagree.

[18] I have already mentioned the SCJ Rules and section of the Courts of Justice Act upon which the moving parties rely. The grounds they advanced mirror the language appearing in the applicable provision.

[19] The court’s power to dismiss a proceeding if it appears, on its face, to be frivolous or vexatious or otherwise an abuse of the court’s process under rule 2.1.01(1) applies to appeals: Collins v. Ontario, 2017 ONCA 317 (“Collins”). Section 134(3) of the Courts of Justice Act provides that a court to which an appeal is taken may, on motion and in a proper case, quash the appeal. Rule 25.11 permits the court to strike out all or part of a pleading or other document if scandalous, frivolous or vexatious (rule 25.11(b)) or an abuse of the court’s process: rule 25.11(c).

[20] Mr. Elguindy relied on authorities that consider whether the court’s jurisdiction should be exercised, not whether it could be invoked. As the Court of Appeal said in Collins, supra at para. 19, rule 2.1.01 of the SCJ Rules:

…does allow for a speedy process for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.

[21] However, even an absence of merit is not sufficient to warrant the granting of an order under that subrule. A merits based argument must be addressed in a motion to quash: Collins, supra at para. 19.

[22] Appeals which are manifestly devoid of merit may be quashed. The Court of Appeal’s Practice Direction Concerning Civil Appeals requires that such motions be heard together with the appeal: for a recent example see Yim v. Song, 2016 ONCA 642. Such a provision does not appear in the Consolidated Divisional Court Practice Direction.

[23] However, the power will hardly ever be exercised. As the Court of Appeal explained in Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.) at para. 6:

It is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal.[^4]

[24] I turn to the substance of the moving parties’ motion.

D. Analysis and Decision

i. The Notice of Appeal

[25] Seventeen grounds of appeal were articulated in the notice of appeal. They may be summarized as follows:

a. Numerous, albeit unspecified, errors of fact and law were made;

b. The Deputy Judge was ignorant of the law and Small Claims Court proceedings. This ground is really subsumed by the previous one;

c. Ten paragraphs contained statements of alleged facts underlying Mr. Elguindy’s position the Deputy Judge was biased. They included allegations that the Deputy Judge was friendly with one and affectionate with the other lawyer representing the defendants before the August 12, 2016 settlement meeting. The Deputy Judge was alleged to have advised counsel for the defendants Larocque and Razvi to bring the motion to dismiss the action and to have arranged the date on which it was to be argued. The Notice of Appeal also alleges the Deputy Judge acted improperly by presiding on October 7 and November 24, 2016 at all and in his conduct of the proceedings that unfolded.

[26] Mr. Elguindy dutifully assembled an Appeal Book and Compendium. It appears to contain most and perhaps all of the material required by rule 61.10(1).[^5]

[27] However, the record to be provided to the judge hearing the appeal contains no evidence to support the factual allegations Mr. Elguindy has made in the Notice of Appeal concerning the August 12, 2016 settlement conference or October 7, 2016 court attendance. As mentioned, the transcript of the November 24, 2016 attendance has been filed with the Divisional Court. It provides a complete record of what transpired in court that day. The file does not contain a transcript of the October 7, 2016 in-court attendance. Insofar as the August 12, 2016 settlement conference is concerned, only the Endorsement Record/Order of the Court form completed by the Deputy Judge is included in the Appeal Book and Compendium.

[28] There are, of course, circumstances in which the evidentiary record can be augmented. A court to which an appeal is taken may receive further evidence in a proper case: Courts of Justice Act, section 134(4)(b). If brought, a motion for such an order must be heard with the appeal: rule 61.16(2). As noted, the appeal has been scheduled for argument. The time allotted is for the appeal only since Mr. Elguindy did not serve or file a motion seeking to introduce additional evidence.

[29] For the purpose of this motion only, affidavits were filed by the moving parties and Mr. Elguindy that provide very different versions of what transpired during the involvement of the Deputy Judge. The former parties exercised the right to cross-examination. The latter did not.

ii. The Appellant’s factum on Appeal

[30] Rule 61.08(2) of the SCJ Rules provides as follows:

No grounds other than those stated in the notice of appeal…may be relied on at the hearing, except with leave of the court hearing the appeal.

[31] Having perfected the appeal, Mr. Elguindy can no longer amend the Notice of Appeal without leave: rule 61.08(1).

[32] Although not mentioned in the Notice of Appeal, Mr. Elguindy advanced an additional ground in the factum he filed for the purposes of the appeal. One sentence drawn from the factum succinctly sets forth his position:

A settlement [c]onference judge must not preside at trial or a motion for summary judgment.

[33] Mr. Elguindy argued that the issue was implicit in the Notice of Appeal. For the purposes of this motion only, I will accept that position. That ground was addressed in the material filed for my use and was the subject of argument. I have treated the additional issue as if it was specifically set forth in Mr. Elguindy’s Notice of Appeal.

iii. Rule 2.1.01 of the SCJ Rules

[34] The court is given the power to dismiss a proceeding if it appears on its face to be frivolous, vexatious or otherwise an abuse of process. Counsel for the moving parties agrees that it is only the Notice of Appeal and the parties’ submissions that are relevant to an inquiry under rule 2.1.01. Evidence is not to be considered: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at paras. 11-12.

[35] As mentioned, I will consider the Notice of Appeal as if it expressly raised the issue of whether the same judge could preside over a settlement conference and a motion under rule 12.02 of the Small Claims Court Rules.

[36] Although it is to be interpreted and applied robustly, the use of rule 2.1.01 of the SCJ Rules is to be confined to the clearest of cases: Scaduto v. The Law Society of Upper Canada, supra at para. 8; Collins v. Ontario, supra at para. 17

[37] I have read and re-read the Notice of Appeal. Mr. Elguindy is self-represented. He should not be held to the same standard as a lawyer.

[38] Nonetheless, the Notice of Appeal is fatally deficient in almost every way. As noted earlier, no particulars are given of the alleged errors of fact and/or law allegedly made by the Deputy Judge. Those grounds are too vague. As framed, they lack a legal basis. They are frivolous.

[39] The balance of the “grounds” expressly set forth in the Notice of Appeal relate to the Deputy Judge’s alleged conduct. Virtually every one of them is an allegation of fact that belongs in an affidavit, not in a document that defines the issues to be argued on appeal.

[40] Furthermore, the unsworn and unproven allegations are occasionally asserted using inflammatory language. The Deputy Judge was said to have made one comment “foolishly”. He was described as “grossly incompetent” and as a person “making a mockery of the justice system.”[^6] Other portions seem designed only to embarrass the Deputy Judge and the lawyers who appeared on behalf of the defendants before him. Paragraphs in a notice of appeal that attempt to introduce evidence are frivolous. Language which is inappropriate is vexatious. Attempts to embarrass, rather than to deal with the merits of the matter, constitute an abuse of process. The Notice of Appeal has the dubious distinction of checking all three boxes.

[41] However, it is clear from language used in rule 2.1.01 that the court has two options when faced with a request to dismiss a proceeding under this rule. It can grant the request and dismiss the proceeding or decline to do so.

[42] In this case, the “implicit” ground must also be considered, namely, whether the Deputy Judge could preside over the defendants’ motion after having conducted a settlement conference. That issue is merits based. It saves this proceeding from dismissal under rule 2.1.01 of the SCJ Rules. I turn to the moving parties’ alternative argument based on s. 134(3) of the Courts of Justice Act.

iv. Section 134(3) of the Courts of Justice Act

[43] Section 134(3) reads:

On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.

[44] Motions to quash are rarely successful for two reasons. First, the motion is not a simulation of the appeal. As the Court of Appeal said in Schmidt v. Toronto-Dominion Bank, supra at para. 7, the return of the motion is not the time “to engage in a de facto hearing of the full appeal.”

[45] Second, the motion will only be successful if the court is satisfied that “no aspect of the appeal” has any merit. Only a minimal level is needed to defeat a motion to quash: Schmidt v. Toronto-Dominion Bank, supra at paras. 7 and 9.

[46] This is one of those rare cases where it is appropriate to argue a motion to quash in advance of the appeal. I have already concluded that there is only one ground that could conceivably be heard at that time. Mr. Elguindy comes close to conceding the point in his factum. At para. 1 he wrote in part:

Rule 1.03(2) and 13.08 of the Small Claims Court Rules, and Rules 50.09 and 50.10 of the Rules of Civil Procedure are the strongest support for my appeal. A settlement Conference [sic] judge must not preside at trial or a motion for summary judgment. In my case he did...

[47] Mr. Elguindy relies on Royal Bank of Canada v. Hussain, 2016 ONCA 637 (“Hussain”). In Hussain, a judge presided over a pre-trial and almost a year later heard and granted Royal Bank of Canada’s motion for summary judgment.

[48] The appellant argued that the motion judge was not permitted to hear both. The initial hurdle the appellant faced was rule 50.10(1) of the SCJ Rules. It provides that a pre-trial judge is not to preside at a trial of an action unless all parties consent in writing: rule 50.10(1). The word “motion” does not appear in that subrule.

[49] Nonetheless, the appeal succeeded. Rule 50.09 of the SCJ Rules played an important part in the Court of Appeal’s analysis. That rule permits disclosure of pre-trial orders and the contents of the prescribed form of pre-trial report. However, no other statement is to be disclosed to a judge presiding over, among other things, a motion: rule 50.09.

[50] On behalf of the Court, Simmons J.A. wrote at paras. 18 and 19:

Rule 50.09 reflects the intention that a judge hearing a motion in a proceeding should be insulated from knowledge of statements made at a pre-trial conference. It is designed to reassure litigants that any information revealed in the pre-trial will not be used against them at a hearing, in order to encourage full and frank exploration of settlement prospects at an early stage of the proceeding.

Having regard to rule 50.10(1), absent written consent from the parties, a judge who conducts a pre-trial should not be the judge who determines the merits of the issues in a proceeding. Particularly with the expanded powers available to motion judges under the amended Rule 20, presiding on a summary judgment motion must be viewed as akin to presiding at a trial…

[51] Mr. Elguindy maintains that the same principle applies in the Small Claims Court. His argument follows this path.

[52] As in the Superior Court, pre-trial orders and the memorandum prepared by the pre-trial judge may be disclosed: rules 13.03(4), 13.03(5) and 13.03(6).

[53] However, in all other respects, confidentiality is a hallmark of a settlement conference. The Small Claims Court Rules expressly provide that “the matters discussed at the settlement conference shall not be disclosed to others until after the action has been disposed of” unless the parties file a consent in the prescribed form: rule 13.03(4).

[54] As in rule 50.10 of the SCJ Rules, a deputy judge who presides at a settlement conference is prohibited from presiding at trial: rule 13.08. Mr. Elguindy submits that the Deputy Judge in this case did precisely what Hussain prohibited him from doing.

[55] The moving parties observe that the Court of Appeal in Hussain determined that pre-trial judges were prohibited from hearing motions for summary judgment. The reasoning went no further.

[56] They note this case involved a motion under rule 12.02 of the Small Claims Court Rules. Rule 12.02(1) allows the court, on motion, to strike out or amend all or part of any document that:

a. Discloses no reasonable cause of action or defence;

b. May delay or make it difficult to have a fair trial; or

c. Is inflammatory, a waste of time, nuisance or an abuse of the court’s process.

[57] If the test is met, the court can also dismiss the action: rule 12.02(2) 1.

[58] The moving parties also note that motions to strike under rule 12.02 of the Small Claims Court Rules are different than motions for summary judgment under rule 20 of the SCJ Rules. As Rouleau J.A. explained in Van de Vrande v. Butkowsky, 2010 ONCA 230 at para. 19:

Conceptually, I view r. 12.02 as being situated somewhere between… rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in r. 20 of the Rules of Civil Procedure where the responding party must put his “best foot forward”. It is more akin to a r. 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be “inflammatory”, a “waste of time” or a “nuisance.”

[59] Further, counsel for the moving parties submits rule 13.05 of the Small Claims Court Rules provides a full answer to Mr. Elguindy’s argument. Rule 13.05(2)(a)(iv) specifically allows the settlement conference judge to make an order “striking out a claim…under subrule 12.02(1)”. This, the moving parties maintain, was the subrule the Deputy Judge relied upon in his May 3, 2017 endorsement. How, they reason, could be impermissible for the Deputy Judge to grant relief on a motion that he could have granted at the settlement conference?

[60] That argument is a formidable one. However, I reject it for these reasons.

[61] Rule 13.05(1) of the Small Claims Court Rules gives judges presiding at a settlement conference the power to “make any order relating to the conduct of the action that the court could make.” Rule 13.05(2)(a) sets forth a non-exhaustive list of those that can be made.

[62] As mentioned, rule 13.05(2)(a)(iv) allows a settlement conference judge to make an order “striking out a claim…under rule 12.02(1)”.

[63] However, the power to dismiss an action comes from rule 12.02(2). Rule 12.02(2)(a) provides in part as follows:

In connection with an order striking out…a document under subrule (1), the court may do one or more of the following:

1. In the case of a claim, order that the action be…dismissed.

[64] Settlement conference judges were given the authority to make an order dismissing an action: rule 13.05(2)(a)(v). Interestingly, that provision was revoked in 2014.[^7]

[65] I recognize that the Deputy Judge’s endorsement is unclear. On several occasions he refers to rule 12.02. He does not expressly indicate whether he is relying on rule 12.02(1), rule 12.02(2) or both of them. On the final page of his endorsement[^8], the Deputy Judge concluded “a trial would be a waste of time and effort.” The words “waste of time” appear in rule 12.02(1)(c). A finding to that effect allows the court to “strike out…all or part of any document”.

[66] However, the Deputy Judge did something more. He disposed of the motion with these words: “Accordingly, the claim is dismissed.” What he clearly intended to do was to strike the claim and dismiss the action. Rule 12.02(1) gave him the authority to do the former. The jurisdiction to do the latter came from rule 12.02(2).

[67] In my view, the Deputy Registrar made a finding under rule 12.02(1) (c) and then disposed of the motion in a manner permitted by rule 12.02(2) 1.

[68] The following questions arise.

[69] Why was the change to rule 13.05(2)(a) made in 2014? What is its effect? Is Hussain to be confined to motions for summary judgment or does it apply to any motion which could finally determine the action? If the latter, is Hussain nonetheless confined to proceedings governed by the SCJ Rules? Are the words in rule 50.09 of the SCJ Rules prohibiting communication of any statement made at a pre-trial conference to “the judge…presiding at the hearing of…a motion” critical to the decision? Is the absence of those words from rule 13.03(4) of the Small Claims Court Rules significant? Is the characterization of motions under rule 12.02 of the Small Claims Court Rules as set forth in Van de Vrande v. Butkowsky, supra significant? Does the requirement that the Small Claims Court Rules “be liberally construed to secure the most expeditious and least expensive determination of every proceeding on its merits” have any effect?[^9]

[70] Those questions are ones to be asked and answered following the hearing of the appeal on September 8, 2017, not on the return of a motion of this kind. On this one issue, the appeal is not manifestly devoid of merit.

[71] Counsel for St. Joseph’s Health Care London and Lisa Barnes submitted that resolution of this ground of appeal would not change the result of the motion the Deputy Judge heard. Expert reports on the standard of care were essential. Mr. Elguindy had been ordered to produce them. He failed to do so. The additional amendments made to the Claim Mr. Elguindy filed in the Small Claims Court did not relieve him of the obligation the common law recognizes and the court imposed.

[72] The same argument was made in Hussain. In rejecting the submission, Simmons J.A. said at para. 25:

Finally, I would reject the Bank’s claim that the strength of its case should govern the outcome of this appeal. The purpose of rules 59.09 [sic] and 59.10 [sic] is to protect the efficacy of pre-trial conferences in facilitating settlements. In all the circumstances, upholding the result in this case would sanction ignoring the Rules and undermine public confidence in the administration of justice.

[73] The same applies here. I decline to quash the appeal.

v. Rule 25.11 of the SCJ Rules

[74] Rule 25.11 of the SCJ Rules allows the court to strike out all or part of a document, with or without leave to amend, on the ground it is scandalous, frivolous, vexatious or an abuse of process of the court.

[75] As framed, the Notice of Appeal is all of those things. Mr. Elguindy made vague statements that the Deputy Judge “made numerous errors in facts and in law” and “was quite ignorant of the law and the proceedings in Small Claims Court”: paras. 1 and 3. No explanation was given. Those paragraphs are, therefore, meaningless, unhelpful and as drafted do not constitute grounds of appeal. They are frivolous and are hereby struck.

[76] Paragraph 1 of the Notice of Appeal is to be treated as if amended to read:

The Deputy Judge erred by presiding over a motion under rule 12.02 of the Rules of the Small Claims Court after presiding over a settlement conference.

[77] That amendment is the argument Mr. Elguindy seeks to make as set forth in paragraph 1 of his factum.

[78] Paragraphs 2 and 4 through 15 contain the allegations of bias. They constitute an attempt by Mr. Elguindy to introduce evidence through a Notice of Appeal. That is not permitted and is an abuse of the court’s process. Those paragraphs are also hereby struck.

[79] Prior to hearing the motion I reviewed the affidavits of Alysia Christiaen sworn May 31and June 10 2017, Mr. Elguindy and Marta Tsar each sworn June 5, 2017, Lee Lenkinski sworn June 19, 2017 and the transcripts of the cross-examinations of Mr. Elguindy and Ms. Tsar conducted June 20, 2017. After reviewing that material and having heard the parties’ submissions, I am satisfied leave to amend those paragraphs should not be granted.

[80] Paragraphs 16 and 17 of the Notice of Appeal are also struck without leave to amend. Paragraph 16 suggests Mr. Elguindy will introduce evidence through his factum and/or the Appeal Book. That is not and will not be permitted. In paragraph 17, Mr. Elguindy suggested he might insert additional grounds of appeal in his factum. The only ground of appeal to be argued is as set forth in paragraph 76 of these reasons. No other ground is to be pursued.

E. Conclusion and Costs

[81] For the reasons given, I decline to dismiss or quash the appeal. However, paragraphs 1 through 17 at pages 1 through 4 of the Notice of Appeal are struck without leave to amend except to the extent set forth in paragraph 76 above.

[82] If a draft order is not approved by Mr. Elguindy as to form and content within ten days of the date it is sent to him, it may be forwarded to me through the Divisional Court office for review and signature.

[83] The issue of costs is reserved. Written cost submissions not exceeding five typed pages each may be submitted through the Divisional Court office in London according to the following schedule:

a. By the respondents on the appeal by no later than 4:30 p.m. on July 26, 2017;

b. By Mr. Elguindy by no later than 4:30 p.m. on August 10, 2017.

Grace J.

Grace J.

Released: July 11, 2017

CITATION: Emad Elguindy v. St. Joseph’s Health Care London, 2017 ONSC 4247

DIVISIONAL COURT FILE NO.: 7/17

DATE: 2017/07/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Emad Elguindy

Appellant

– and –

St. Joseph’s Health Care London, Lisa Barnes, Brian Larocque and Hassan Razvi

Respondents

REASONS FOR DECISION

Grace J.

Released: July 11, 2017

[^1]: The quoted words are drawn from the Notice of Motion and Supporting Affidavit of the defendants Larocque and Razvi originally returnable October 7, 2016. I note that the Appeal Book contains the motion material of those defendants only. Two concerns arise following my review. First, the final exhibit to the affidavit of Rebecca Stevens sworn September 19, 2016 (Exhibit “L”) appears to be incomplete. Second, the Appeal Book does not contain motion material from the defendants St. Joseph’s Health Care London or Lisa Barnes. Articling student Kate Deakon appeared as their agent on November 24, 2016. Ms. Deakon made submissions on what she described as a “companion motion” brought by those defendants. She referred to “our notice of motions [sic], supporting affidavit and factum”. It appears, therefore, that all defendants sought the same relief. If so, the Appeal Book is, once again, incomplete.

[^2]: Having struck the claim, the court has authority to dismiss the action.

[^3]: On the motion the agent for the hospital and nurse took the position the action must necessarily fail against those defendants if dismissed against the physicians because the nurse “was acting based on what Dr. Larocque and Dr. Dr. Razvi had concluded and in their clinical judgment”. Seemingly, the Deputy Judge accepted the argument although he did not address it in his endorsement.

[^4]: See, too, Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 13 O.R. (2d) 430 (C.A.) at para. 18.

[^5]: I have commented on this issue in footnote 1 above.

[^6]: These excerpts are drawn from paragraphs 12 and 15 of the Notice of Appeal.

[^7]: O.Reg. 44/14, s. 12(3).

[^8]: The pages and paragraphs are unnumbered.

[^9]: The excerpt is drawn from rule 1.03.