Court File and Parties

Court of Appeal for Ontario Date: 20210225 Docket: C67948

Strathy C.J.O., Brown and Miller JJ.A.

Between

Cary Beazley Plaintiff (Appellant)

and

Attorney General of Canada and Her Majesty the Queen in Right of Ontario Defendants (Respondents)

Cary Beazley, acting in person Marshall Jeske, for the respondent, Attorney General of Canada Roopa Mann, for the respondent, Her Majesty the Queen in Right of Ontario

Heard: February 12, 2021 by video conference

On appeal from the order of Justice Sally A. Gomery of the Superior Court of Justice, dated December 19, 2019.

Reasons for Decision

[1] In this action, commenced against Canada and Ontario in 2018 (the “2018 Action”), Mr. Beazley raises substantially the same issues, on substantially the same pleadings, as he did in an action he commenced in 2017 against Canada, Ontario, some 28 physicians and the Queensway Carleton Hospital (the “2017 Action”).

[2] Mr. Beazley was diagnosed with Lyme Disease in 2017. In both actions, he pled, among other things, that his diagnosis and treatment were delayed or otherwise impaired by the misrepresentations by Canada and Ontario concerning the efficacy of testing for Lyme Disease.

[3] The 2017 Action was dismissed, without leave to amend, as disclosing no reasonable cause of action. A motion brought in this court to extend the time to appeal that decision was dismissed on the basis, among other things, that the appeal had no merit. A motion to review the dismissal of the time extension motion was dismissed by a panel of this court: Beazley v. Canada (Attorney General), 2020 ONCA 582.

[4] The motion judge dismissed the 2018 Action for the same reasons she had dismissed the 2017 Action. She held that this was one of the exceptional cases where written submissions from the responding party (the appellant) would serve no purpose, because the court had already made a final order dismissing the 2017 Action, the statements of claim were substantially identical, and the issues raised were res judicata. She found that the 2018 Action could not possibly succeed.

[5] We agree with all those conclusions. In our view, this was one of those clear cases in which the abusive nature of the claim was apparent on the face of the pleading which was, as the motion judge found, substantially identical to the pleading in the 2017 Action. We would not interfere with the exercise of the motion judge’s discretion.

[6] While Mr. Beazley suggests that the pleading could have been cured by amendment, the motion judge referred to her reasons on the 2017 Action in which she observed that the appellant had not alluded to any additional facts that could cure the defects in the pleading and was not satisfied that granting leave to amend would serve any useful purpose. Having heard Mr. Beazley’s submissions, we see no error in these conclusions.

[7] Nor are we persuaded that the motion judge erred in the exercise of her discretion in dismissing the 2018 Action pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, without giving Mr. Beazley an opportunity to make submissions. Rule 2.1.01(3) gave the motion judge discretion to dismiss a claim without requesting submissions: Alexander v. Longo Brothers Fruit Market Inc., 2020 ONCA 590, at para. 4. That discretion was exercised judicially.

[8] As the respondents note, there is no question of Mr. Beazley’s passionate belief that he has been wronged. However, a previous decision of this court has confirmed that there was no merit to Mr. Beazley’s appeal of the dismissal of the 2017 Action. That dismissal included a finding that Mr. Beazley had not established that the deficiencies in his statement of claim could be cured by amendment. It is not open to Mr. Beazley to re-argue that conclusion based on a subsequent, and almost identical, statement of claim.

[9] The appeal is dismissed, with costs fixed at $300, payable to each respondent, inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.”

“David Brown J.A.”

“B.W. Miller J.A.”