COURT FILE NO.: CV-19-00626598-0000 DATE: 20210301 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CELIA YANG Plaintiff

• and -

CO-OPERATORS GENERAL INSURANCE COMPANY, VIVIAN POON, MALA LEIDOUX, SCM INSURANCE SERVICES INC. (a.k.a. CIRA MEDICAL SERVICES INC.), DR. ROBERT BRIAN HINES, RANYA GHATAS, SCM INSURANCE SERVICES GP INC., CIRA HEALTH SOLUTIONS LP, DR. ABRAHAM ORNER (a.k.a. DR. AVI ORNER), ARIEL ANG and SMARTSIMPLE SOFTWARE INC. Defendants

Counsel: Peter Murray and Ashu Ismail for the Plaintiff Lee Akazaki for the Defendants, SCM Insurance Services Inc. (a.k.a. Cira Medical Services Inc.), SCM Insurance Services GP Inc., Cira Health Solutions LP, Dr. Abraham Orner (a.k.a. Dr. Avi Orner), and Ariel Ang P. Voula Kotoulas for the Defendant Ranya Ghatas Anne E. Posno for the Defendant Dr. Robert Brian Hines Daniel Freudman for the Defendant SmartSimple Software Inc.

HEARD: January 27, 2021

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In this action, the Plaintiff Celia Yang, who was injured in a motor vehicle accident, claims damages of $150 million. Ms. Yang’s action concerns how her automobile accident insurer, Co-operators General Insurance Company, administered her claims for statutory accident benefits (“SABs”) under O. Reg. 34/10 (Statutory Accident Benefits Schedule), a regulation of the Insurance Act.

[2] In this action, Ms. Yang sues: (a) Co-operators General Insurance Company, her automobile accident insurer; (b) Vivian Poon, an employee of Co-operators; (c) Mala Leidoux, an employee of Co-operators; (d) SCM Insurance Services Inc., a.k.a. Cira Medical Services Inc., a SABs service provider; (e) SCM Insurance Services GP Inc., a SABs service provider; (f) Cira Health Solutions LP, a SABs service provider; (g) Dr. Abraham Orner, an employee of Cira Health; (h) Ariel Ang, an employee of Cira Health; (i) Ranya Ghatas, a roster occupational therapist for Cira Health; (j) Dr. Robert Brian Hines, a roster psychiatrist for Cira Health; and (k) SmartSimple Software Inc., a software developer that developed a document management computer program used in the automobile accident insurance industry.

[3] The Defendants Cira Medical Services Inc., SCM Insurance Services GP Inc., Cira Health Solutions LP, Dr. Orner, and Ms. Ang. (the “Cira Health Defendants”) bring a motion to strike Ms. Yang’s Statement of Claim.

[4] For the reasons that follow, Ms. Yang’s action is dismissed.

[5] By way of overview, Ms. Yang’s Statement of Claim should be struck without leave to amend because: (a) the pleading contravenes rule 25.11 of the Rules of Civil Procedure; (b) the Court does not have subject matter jurisdiction over her claim; and (c) she has not plead a legally tenable cause of action against any of the defendants.

B. Procedural and Evidentiary Background

[6] The case at bar is the third of three administrative tribunal or court proceedings brought by Ms. Yang.

[7] On December 29, 2011, Ms. Yang, who was a minor (eleven years old) at the time, was a passenger in motor vehicle that was struck by a vehicle that fled the scene of the accident. The driver was not identified. In 2012, Ms. Yang applied to Co-operators for SABs.

[8] Between 2012 and until recently, Ms. Yang initiated SABs dispute resolution proceedings against the Co-operators. This was Ms. Yang’s first proceeding. The proceeding was before the Financial Services Commission of Ontario (“FSCO”) and then the Licence Appeal Tribunal, which has succeeded FSCO and has been given exclusive jurisdiction to resolve SABs disputes pursuant to s. 280 of the Insurance Act.

[9] On July 11, 2018, Ms. Yang, with Campisi LLP as her lawyer of record, commenced a motor vehicle accident tort action against John Doe and Co-operators. This was Ms. Yang’s second proceeding. In her action, she claimed non-pecuniary damages of $300,000, pecuniary damages of $2.5 million, and damages of $25,000 for breach of privacy and intrusion upon seclusion. The action against Co-operators was with respect to the unidentified driver liability insurance coverage provided by Co-operators.

[10] On August 30, 2019, Ms. Yang commenced her action in the immediate case against Co-operators, the Cira Health Defendants, Ms. Ghatas, Dr. Hines, and SmartSimple Software Inc.

[11] On December 3, 2019 the Cira Health Defendants brought a motion to have Ms. Yang’s action dismissed pursuant to rule 2.1.01 (7) of the Rules of Civil Procedure.

[12] On December 13, 2019, the Cira Health Defendants delivered their Statement of Defence.

[13] On December 16, 2019, Justice Leiper dismissed the rule 2.1.01 (7) motion.

[14] On January 8, 2020, Ms. Yang served a Demand for Particulars with respect to the Statement of Defence. There has been no response to the Demand for Particulars.

[15] On August 21, 2020, the Cira Health Defendants brought this motion to strike the Statement of Claim and to have Ms. Yang’s action dismissed. There was no supporting affidavit, but documents from Ms. Yang’s first and second proceeding were included in the motion record.

[16] Ms. Yang responded to the motion with an affidavit from Eric Winkworth dated January 4, 2021. Mr. Winkworth is a lawyer of Campisi LLP, Ms. Yang’s lawyers. Once again documents from the other proceedings were included.

[17] The Co-operators also brought a motion to strike Ms. Yang’s Statement of Claim.

[18] However, Ms. Yang has recently settled with Co-operators and Co-operators’ motion did not proceed. The terms of the settlement have not been disclosed, and Co-operators did not appear at the hearing of the Cira Health Defendants’ motion.

[19] Ms. Ghatas, Dr. Hines, and SmartSimple Software Inc., respectively, appeared at the hearing, and they supported the motion to have Ms. Yang’s action dismissed.

C. The Statement of Claim Contravenes Rule 25.11

[20] Under rule 25.11 , the court may strike out a pleading that may prejudice or delay the fair trial of the action or that is scandalous, frivolous, vexatious or an abuse of process of the court. For the purpose of rule 25.11, the term “scandalous” includes allegations that are that are irrelevant, argumentative, simply inserted for colour, or to impugn the behaviour or character of the other party unrelated to the issues in the litigation. A scandalous pleading refers to indecent or offensive allegations designed to prejudice the opponent or unnecessary allegations maliciously directed at the moral character of the opponent. Pleadings that are irrelevant, argumentative or inserted only for colour, or that constitute bare unfounded allegations should be struck out as scandalous.

[21] Ms. Yang’s prolix, bloated, hyperbolic, polemical, ill-crafted 41-page, 83-paragraph Statement of Claim is a flagrant violation of the rules of pleading. Some of the pleading borders on the incomprehensible.

[22] Telling the court that the defendant is “corrupt,” “heinous,” “ruthless,” “underhanded,” “dirty,” “dirtiest,” “loathsome,” and “unethical,” tells the court nothing; material facts - not adjectives - will determine whether a defendant is liable and whether punitive damages are appropriate.

[23] In her factum Ms. Yang justifies the use of words like “corrupt”, “fraud” and “perverted” because: (a) the words support her claim for punitive damages because they are relevant to blameworthiness and there is a need for deterrence, including “the need for the award to provide a ‘whack’ for [Cira Health] that would otherwise fail to achieve deterrence”; (b) the words are true depictions of Cira Health’s conduct, which would justify an award of punitive damages; and, (c) she seeks to put on the cloak of a private attorney general as conceived by the Supreme Court of Canada in its decisions about punitive damages.

[24] There is no merit to this rationalization for the scandalous pleading. A pleader should show by pleading material facts, not tell by the use of conclusory adjectives how and why a defendant’s conduct is blameworthy. It is for the court to determine the truth of the facts, and notwithstanding the crusader’s passion of her lawyers, Ms. Yang is not a private attorney general.

[25] All of the Statement of Claim should be struck as a violation of rule 25.11.

D. Facts - No Jurisdiction over the Subject Matter of the Action

1. Facts

[26] The factual background to her claim as pleaded in her Statement of Claim can only be understood in the context of the operation of the SABs regime. As I shall also explain below, the court does not have subject matter jurisdiction with respect to Ms. Yang’s SABs regime grievances.

[27] On December 29, 2011, Ms. Yang, who was a minor at the time, was a passenger in motor vehicle that was struck by a vehicle that fled the scene of the accident. The driver was not identified.

[28] Ms. Yang was an insured under her mother’s automobile accident insurance policy with Co-operators, and Ms. Yang made a claim for SABs and she made a motor vehicle accident tort claim under the unidentified driver coverage in her parent’s motor vehicle insurance policy. Co-operators provided $1.0 million of coverage for unidentified driver tort liability.

[29] Pursuant to s. 2 (1) of O. Reg. 34/10, the benefits set out in the Regulation shall be provided under every contract evidenced by a motor vehicle liability policy in respect of accidents occurring on or after September 1, 2010. Pursuant to ss. 2 (4) and (5) of O. Reg. 34/10, SABs payable under the Regulation shall be paid by the insurer that is liable to pay under s. 268 (2) of the Insurance Act. In the immediate case, the insurer liable to pay Ms. Yang’s SABs was Co-operators.

[30] Pursuant to O. Reg. 34/10, sections 2 (1), (1.1), (1.2) and sections 14 to 18, Co-operators was liable to pay Ms. Yang medical and rehabilitation benefits. Medical and rehabilitation benefits include all fees and expenses for conducting assessments and examinations and preparing reports other than fees in connection with any examination required by an insurer under section 44 of the Regulation.

[31] Pursuant to section 32 of O. Reg. 34/10, a person who intends to apply for SABs must notify the insurer and the insurer shall promptly provide the person with, among other things, the appropriate application forms and information to assist the person in applying for benefits.

[32] Under O. Reg. 34/10, after the insured submits a signed application, if the insurer receives an incomplete or unsigned application, the insurer must advise the applicant of the missing information or signature that is required. No benefit is payable before the applicant provides the missing information or signs the application, as the case may be. The applicant may be required by an insurer to submit an additional application in respect of a benefit that the applicant is receiving or that he or she may be eligible to receive.

[33] Pursuant to section 34 of O. Reg. 34/10, the insurer may request and the insured must provide additional information. Section 34 states:

Duty of applicant to provide information

33. (1) An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:
    1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
    2. A statutory declaration as to the circumstances that gave rise to the application for a benefit. 3 The number, street and municipality where the applicant ordinarily resides.
    3. Proof of the applicant’s identity. (2) If requested by the insurer, an applicant shall submit to an examination under oath, […] (5) The insurer shall limit the scope of the examination under oath to matters that are relevant to the applicant’s entitlement to benefits described in this Regulation. (6) The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2).

[34] Sections 38 of O. Reg. 34/10 specifies the procedure for claims for medical or rehabilitation benefits, as follows:

Claim for Medical or Rehabilitation Benefits

Claims for medical and rehabilitation benefits and for approval of assessments, etc.

38. (1) This section applies to, (a) medical and rehabilitation benefits other than benefits payable in accordance with the Minor Injury Guideline; and (b) all applications for approval of assessments or examinations. (2) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless, (a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan; (3) A treatment and assessment plan must, (a) be signed by the insured person unless the insurer waives that requirement; (b) be completed and signed by a regulated health professional; and (c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation and, (i) stating, if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010, (A) that the insured person’s impairment is not predominantly a minor injury, or (B) that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline, or

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. (10) If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under section 44. (13) Within 10 business days after receiving the report of an examination conducted under section 44 for the purpose of the treatment and assessment plan, the insurer shall give a copy of the report to the insured person and to the regulated health professional who prepared the treatment and assessment plan. (14) Within 10 business days after receiving the report, the insurer shall, (a) provide the insured person with a notice indicating the goods and services described in the treatment and assessment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the medical and any other reasons for the insurer’s decision; or (b) if the insurer determines that the Minor Injury Guideline applies, advise the insured person that the Minor Injury Guideline applies to the insured person’s impairment and provide medical and any other reasons for the insurer’s determination.

[35] In understanding the facts of Ms. Yang’s case, it shall be important to keep in mind that under section 38 of O. Reg. 34/10, an insurer is not liable to pay SABs before the insured submits a treatment plan completed and signed by a regulated health professional opining that the proposed costs of the treatment plan are reasonable and necessary. The insurer may agree to pay the SABs, or the insurer may give notice that it does not agree to pay for the SABs. The insurer must provide the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

[36] Further, the insurer may notify the insured person that the insurer requires the insured person to undergo an examination under section 44 of O. Reg. 34/10. Insurers are prohibited from paying more than $2,000 for a section 44 examination and all associated reports and expenses with the section 44 examination.

[37] If there is a section 44 examination, the insurer must provide the insured and the regulated health professional who prepared the treatment assessment plan a copy of the report from the person who conducted the section 44 examination. The insurer must also provide the insured person with a notice indicating the goods and services described in the treatment and assessment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the medical and any other reasons for the insurer’s decision.

[38] In Ms. Yang’s case, as will be described below, there were section 44 examinations. Section 44 of O. Reg. 34/10 provides the procedure for a section 44 examination. Section 44 states:

44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. (2) Despite subsection (1), if a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment and the purpose of the examination is to determine whether the insured person has sustained a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits. (5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out, (a) the medical and any other reasons for the examination; (b) whether the attendance of the insured person is required at the examination; (c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and (d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

[39] To foreshadow an aspect of the allegations made by Ms. Yang in the immediate case, she alleges that Co-operators and Cira Health had a scheme in which more than $2,000 was charged for section 44 examinations by holding back inquiries in order to have additional follow-up section 44 examinations. In other words, Ms. Yang contends that notwithstanding that there is nothing in O. Reg. 34/10 that precludes more than one section 44 examination and indeed the Regulation envisions multiple examinations over time, Ms. Yang contends that multiple examinations were a device to pay more than $2,000 for a section 44 examination.

[40] Section 45 of O. Reg. 34/10 provides the procedure when an insured applies for SABs in circumstances in which the insured claims that he or she suffered a catastrophic impairment. Section 45 states:

Determination of catastrophic impairment

45. (1) An insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment. (2) The following rules apply with respect to an application under subsection (1):
    1. An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
    2. Despite paragraph 1, if the impairment is a traumatic brain impairment only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require.
    3. If a Guideline specifies conditions, restrictions or limits with respect to the determination of whether an impairment is a catastrophic impairment, the determination must be made in accordance with those conditions, restrictions and limits. (3) Within 10 business days after receiving an application under subsection (1) prepared and signed by the person who conducted the assessment or examination under subsection (2), the insurer shall give the insured person, (a) a notice stating that the insurer has determined that the impairment is a catastrophic impairment; or (b) a notice stating that the insurer has determined that the impairment is not a catastrophic impairment and specifying the medical and any other reasons for the insurer’s decision and, if the insurer requires an examination under section 44 relating to whether the impairment is a catastrophic impairment, so advising the insured person. (5) Within 10 business days after receiving the report of an examination under section 44, the insurer shall, (a) give a copy of the report to the insured person and to the person who prepared the application under this section; and (b) provide the insured person with a notice stating that the insurer has determined that the impairment is a catastrophic impairment or is not a catastrophic impairment and setting out the medical and any other reasons for the insurer’s determination.

[41] Sections 54 to 56 of O. Reg. 34/10 provide an insured a right to dispute an insurer’s decision with respect to SABs by application to the Licence Appeal Tribunal. Sections 54 to 56 state:

Notice of right to dispute insurer’s refusal to pay or reduction of benefits

54. If an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction.

Restriction on proceedings

55. (1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:
    1. The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this Regulation.
    2. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.
    3. The issue in dispute relates to the insurer’s denial of liability to pay an amount under an invoice on the grounds that, i. the insurer requested information from a provider under subsection 46.2 (1), and ii. the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part.

(2) The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 or 3 of subsection (1). (3) The Licence Appeal Tribunal may impose terms and conditions on a permission granted under subsection (2).

Time limit for proceedings

56. An application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

[42] As shall be discussed further below, for the purposes of Ms. Yang’s SABs claim, it is significant to note that sections 279 and 280 infuse the Licence Appeal Tribunal with an exclusive jurisdiction to determine disputes about SABs. Sections 279 and 280 state:

Dispute Resolution — Statutory Accident Benefits

Definitions

279 For the purposes of sections 280 to 283, “insured person” includes a person who is claiming funeral expenses or a death benefit under the Statutory Accident Benefits Schedule “Licence Appeal Tribunal” means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999.

Resolution of disputes

280 (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

Application to Tribunal

(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).

Limit on court proceedings

(3) No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review..

Resolution in accordance with Schedule

(4) The dispute shall be resolved in accordance with the Statutory Accident Benefits Schedule.

[43] It can be gathered from Ms. Yang’s Statement of Claim that sometime after her car accident, a regulated health professional submitted a treatment plan for SABs on her behalf to Co-operators. The treatment plan was handled by Ms. Poon, a SABs adjuster at Co-operators. Ms. Yang complains that Ms. Poon rejected the treatment plan and coerced the regulated health official to submit another treatment plan that provided fewer, which is to say cheaper, SABs.

[44] On October 29, 2013, Dr. Harold Becker, a regulated health official submitted an OCF Form 18 Treatment Plan for a Catastrophic Impairment determination at a SABs benefit cost of $7,232. Ms. Poon refused to approve the plan, and she required that a new plan be submitted. For the next several months, a series of revised treatment plans were submitted to and rejected by Ms. Poon.

[45] Ms. Yang pleads that on November 28, 2013, Ms. Poon contacted Ms. Yang’s physicians providing treatment under the treatment plans and harassed them to extract confidential medical information. However, the physicians refused to provide the information, and Ms. Yang pleads that Co-operators then required a section 44 examination of Ms. Yang.

[46] Ms. Yang pleads that the demands for section 44 examinations were designed to impose hardships on her to provoke her to commit suicide that would eliminate Co-operators’ exposure to liability to pay SABs for a catastrophic injury.

[47] When Ms. Yang applied for a catastrophic injury designation, Ms. Poon decided to use a SABs service provider to administer the catastrophic injury application. Ms. Yang pleads that Co-operators had a contractual arrangement with Cira Health to provide regulated health professional services including medical examination and reports for SABs claims. Cira Health is a medical assessment company. Cira Health is a licensed service provider that, among other things, arranges examination services for the purpose of section 44 and section 45 examinations. Dr. Orner is a physician employed by Cira Health to liaise with insurance companies with respect to SABs claims.

[48] Ms. Yang pleads that Dr. Orner advised Cira Health how to draft the reports required by sections 44 and 45 of O. Reg. 34/10. Cira Health also employed Ms. Ang, who has a doctorate but who is not a regulated health professional. Ms. Ang’s job was to liaise with insurance companies involved with SABs claims and to review claims, reports, and related documents for CAT (catastrophic accident treatment) assessments.

[49] Cira Health had a consulting agreement with Dr. Hines. Dr. Hines is a roster psychiatrist for Cira Health, who may be retained for section 44 and section 45 assessments. Cira Health had a consulting agreement with Ms. Ghatas. Ms. Ghatas is a roster occupational therapist for Cira Health for section 44 and section 45 assessments.

[50] Cira Health uses a software program known as Insurer360 to draft the section 44 and 45 reports. The software was developed by SmartSimple. Insurer360 was developed for the insurance industry and for medical examiners providing reports to insurers. Cira Health used the program to manage documents and secure document retention and exchange.

[51] In 2014, Co-operators retained Cira Health to arrange the section 44 and section 45 examinations of Ms. Yang.

[52] Meanwhile in May 2014, Dr. Becker made an assessment of Ms. Yang and opined that she met the criteria for having suffered a catastrophic impairment. On May 22, 2014, Dr. Becker submitted a treatment plan for SABs catastrophic impairment.

[53] Ms. Yang pleads that around this time, Ms. Poon of Co-operators and Ms. Ang of Cira Health conspired to create false medical records for Ms. Yang.

[54] On June 3, 2014, a Dr. Meikle examined Ms. Yang. She pleads that Dr. Meikle’s report was falsified by Cira Health.

[55] On June 5, 2014, Co-operators denied Ms. Yang’s SABs application and required her to attend section 44 insurer examinations for the purpose of determining her entitlement to SABs benefits including a catastrophic injury determination. Co-operators required examinations to be conducted by Dr. Hines and by Ms. Ghatas.

[56] Ms. Yang pleads that Dr. Hines and Ms. Ghatas were recruited to deliver reports to diminish the seriousness of her injuries. She pleads that Co-operators had Cira Health provide falsified and incomplete information to Dr. Hines and Ms. Ghatas.

[57] Ms. Yang also pleads that Dr. Hines was not qualified to assess minors of her age and that this limitation on his expertise was not disclosed to her or to the regulated health professionals who had submitted treatment plan applications.

[58] Ms. Yang pleads that Co-operators and Cira Health destroyed the paper trail of the falsified information and that Cira Health wrote Dr. Hines’ and Ms. Ghatas’ reports and signed them using electronic signatures that had been provided to them by Dr. Hines and Ms. Ghatas. Ms. Yang pleads that Cira Health destroyed the drafts of section 44 and section 45 reports. She alleges that these actions were in aid of compromising Ms. Yang’s ability to present her case and these actions denied her treating health professionals access to important information.

[59] Ms. Yang pleads that Cira Health interfered with other assessments of Ms. Yang. For instance, it is pled that Cira Health and Ms. Ang manipulated Dr. Tuff, a neuropsychologist, to not comment on criteria that would have qualified Ms. Yang for a catastrophic impairment designation.

[60] Ms. Yang pleads that her treating physicians were misled by the falsified medical information prepared by Cira Health and in turn Ms. Yang’s medical treatment suffered. She pleads that Co-operators and Cira Health were obliged to provide her doctors with the draft reports that had been delivered pursuant to O. Reg. 34/10.

[61] Ms. Yang pleads that she instructed her counsel Joseph Campisi of Campisi LLP to investigate to determine how her personal information was being utilized by Co-operators. She pleads that Co-operators responded by lodging a complaint with the Law Society of Ontario that Mr. Campisi was intimidating its expert witnesses who had been retained for insurer medicals.

[62] Ms. Yang pleads that in the motor vehicle accident tort litigation, Ms. Poon arranged for surveillance of Ms. Yang. She pleads that the surveillance was improperly used to adjust Ms. Yang’s SABs claim. She alleges that co-operators lied in denying that there was communication between those dealing with the SABs claim and the tort litigation. She alleges that the purpose of the surveillance of approximately 90 days was to criminally harass her and to exacerbate her psychological condition in hopes that she would kill herself. She pleads that fortunately, she was oblivious to the surveillance because of her serious cognitive impairment.

[63] Ms. Yang alleges that SmartSimple’s software was configured in a way that allows insurers to improperly access medical information.

[64] Ms. Yang alleges that the Defendants are liable for the tort of spoliation because of falsification of medical reports and the destruction of draft reports. The basis of this allegation is that the draft reports were not given to the regulated health professionals who submitted treatment care plans on behalf of Ms. Yang.

[65] Ms. Yang alleges that Co-operators, Ms. Poon and Ms. Leidoux conspired to covertly circumvent the requirements related to the SABS by involving Cira Health, Ms. Ang, and Dr. Orner and utilizing the pre-configured SmartSimple document sharing system. She alleges that the defendants paid secret commissions and staged insurer examinations in which Ms. Yang’s personal information was manipulated.

[66] She alleges that Cira Health, Ms. Ang, and Dr. Orner: (a) filtered information provided to regulated health professionals; (b) created strategies to modify the evidence of Ms. Yang’s serious impairments; (c) misdirected regulated health professionals; and (d) caused the regulated health professionals to create misleading reports. Ms. Yang alleges that the defendants conspired to suppress evidence directly relevant for the tort liability obligations imposed through the contract of insurance thereby obstructing justice.

[67] She alleges that Cira Health’s activities contravened privacy legislation including misusing personal information and providing misinformation to regulated health professionals as an agent for Co-operators.

[68] Ms. Yang alleges that Dr. Orner allowed his draft reports to be misused by Cira Health and that he refused to respond to reasonable inquiries with respect to his lack of qualifications to examine children under the age of 16.

[69] Ms. Yang alleges that Ms. Ghatas allowed her signature to be attached to reports to obtain corrupt payments and that she failed to report false billings under her name.

[70] Ms. Yang pleads that the Defendants knew that their conduct would likely injure her. She pleads that the predominate purpose of the Defendants’ actions was to injure her.

[71] Ms. Yang relies on the Charter of Rights and Freedoms, the Criminal Code, the Personal Information Protection and Electronic Documents Act (“PIPEDA), and the Insurance Act and related regulations.

[72] Ms. Yang claims non-pecuniary and aggravated total to $1.25 million. Ms. Yang claims punitive damages of: (a) $140 million from Co-operators; (b) $50,000 from Ms. Poon; (c) $75,000 from Ms. Leidoux; (d) $40,000 from Cira Health; (e) $500,000 from Ms. Ang; (f) $50,000 from Dr. Orner; (g) $750,000 from Dr. Hines; (h), $10,000 from Ms. Ghatas; and (i) $3.5 million SmartSimple.

[73] Ms. Yang has recently settled with the Defendants Co-operators Insurance, Ms. Poon, and Ms. Leidoux. In her factum, she vaguely mentions Mary Carter or Pierringer settlements, but the terms of the settlement with Co-operators has not been disclosed.

2. Discussion and Analysis

[74] The Cira Health Defendants submit that Ms. Yang’s core complaint is that Co-operators required her to undergo section 44 examinations by Dr. Hines and Ms. Ghatas that had been arranged by Cira Health for the purpose of preparing biased reports. She pleads that Co-operators instructed Cira Health to falsify the information in health records and to pay the experts more than the prescribed $2,000 as a bribe to deliver false reports.

[75] The Cira Health Defendants thus submit that Ms. Yang’s action in the Superior Court is about the process and procedures for SABs claims. But, the Cira Health Defendants argue that matters about SABs claims are within the exclusive jurisdiction of the Licence Appeal Tribunal. Therefore, they submit that the Superior Court does not have subject-matter jurisdiction, and Ms. Yang’s claim should be dismissed for this reason. Moreover, the Cira Health Defendants submit that Ms. Yang having settled with Co-operators makes the subject matter of her action in the Superior Court moot.

[76] I agree with Cira Health’s argument the Superior Court does not have subject matter jurisdiction over Ms. Yang’s action. The Ontario Court of Appeal’s decision in Stegenga v. Economical Mutual Insurance Co., 2019 ONCA 615 is dispositive.

[77] Very much like the case at bar, in Stegenga, Ms. Stegenga, a SABs claimant, was seriously injured in a motor vehicle accident when she was a teenager. In light of the way the insurer, Economical Mutual, administered her SABs claim, Ms. Stegena sued the insurer alleging bad faith and a conspiracy to harm her. She claimed damages including punitive damages. Ms. Stegenga alleged 56 particulars of alleged breaches including: (a) failing to provide proper information, forms, examinations, assessments, and treatment while knowing that she had suffered a catastrophic injury; (b) failing to properly consider information about her medical condition and her entitlement to SABs; (c) preventing her from accessing SABs; (d) delaying or denying benefits based on inaccurate and irrelevant considerations; and (e) withholding information and failing to make disclosure, knowing that she would not receive the treatment, care and SABs to which she was entitled. Ms. Stegenga alleged that the insurer’s conduct prolonged her suffering and caused new difficulties and impairments she would not otherwise have experienced, as well as emotional, psychological and financial distress.

[78] Affirming the motions judge, Justice Zarnett for the Court of Appeal held that pursuant to s. 280 of the Insurance Act, the court did not have the subject matter jurisdiction to hear the civil action because the Licence Appeal Tribunal had exclusive jurisdiction “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”

[79] Justice Zarnett explained that the SABs dispute resolution process was designed to capture a broad range of disputes, which pursuant to s. 280 of the Insurance Act were within the exclusive subject matter jurisdiction of the Licence Appeal Tribunal – not the courts – to determine. Justice Zarnett stated at paragraphs 21, 22, 53, and 65 of his judgment for the Court of Appeal:

21. As I explain, the SABs dispute resolution provisions capture a broad range of disputes, including disputes about how an insurer handled a SABs claim. The purpose of the provisions, the expansive language used and the extent of the powers given to the LAT all support this interpretation.
22. Neither the legal characterization of the cause of action asserted against the insurer nor the relief claimed determines whether a claim falls within the scope of the dispute resolution provisions. If the dispute relates to the insurer's compliance with obligations to the insured concerning SABs, the timeliness of performance of those obligations and/or the manner in which they were administered, it falls within the broad reach of the dispute resolution provisions, and within the jurisdiction of the LAT. The prohibition on court proceedings will apply.
23. Disagreements between an insurer and insured about the SABs the insured should receive, their amount, the timeliness of their provision, and the conduct and process of the insurer in providing them (that is, the handling or administration of the claim) constitute disputes in respect of the insured person's entitlement to SABs or their amount. Put in terms applicable here, an insured person could properly be said to have a dispute falling within s. 280(1) if a benefit the insured considers ought to have been paid or provided was not, or if it was paid or provided but only well after the insured considers it should have been because of what the insured considers to have been the insurer's inappropriate handling of the claim. These are matters the legislature has empowered the LAT to decide, and has taken away from the court.
24. Ms. Stegenga's entitlement to benefits and the insurer's non-provision of benefits recurs as a theme in her pleading. If the court action were allowed to proceed, the benefits to which Ms. Stegenga was entitled, their amount, and when they ought to have been provided would have to be determined as a predicate to determining whether the insurer's withholding or delay in providing benefits -- its handling of the claim -- gave rise to an actionable wrong such as bad faith. Those same determinations would have to be made in order to decide whether the insurer made actionable misleading statements. But those predicate determinations are within the LAT's jurisdiction. In intending to enact a cost-effective and efficient dispute resolution scheme, the legislature did not intend both the LAT and the court to determine the same questions on the path to granting different relief.

[80] Applying Stegenga v. Economical Mutual Insurance Co., 2019 ONCA 615 to the circumstances of the immediate case, Ms. Yang’s complaints about the inappropriate handling of her SABs claim is a matter over which the court does not have subject-matter jurisdiction and the subject matter of her dispute with all the defendants is within the exclusive jurisdiction of the SABs dispute resolution regime. Accordingly, her Statement of Claim should be struck and her action should be dismissed.

E. Striking Claims for Failure to Show a Reasonable Cause of Action

1. Law

[81] Cira Health’s motion is brought in part pursuant to rule 21.01 (1)(b) of the Rules of Civil Procedure, which states:

WHERE AVAILABLE

To any Party on Question of Law

21.01 (1) A party may move before a judge, (a) […] (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly. (2) No evidence is admissible on a motion, … (b) under clause (1)(b).

[82] Where pursuant to rule 21.01 (1)(b), a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause of action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim. Matters of law that are not fully settled should not be disposed of on a motion to strike, and the court's power to strike a claim is exercised only in the clearest cases.

[83] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 17-25, the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success. Chief Justice McLachlin stated:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, [1932] A.C. 562 (U.K. H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[84] In Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at paras. 87–88, the Supreme Court of Canada stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial.

[85] On a motion under rule 21.01 (1)(b), the court accepts the pleaded allegations of fact in the statement of claim as proven, unless they are patently ridiculous or incapable of proof.

[86] The failure to establish a cause of action usually arises in one of two ways: (a) the allegations in the statement of claim do not come within a recognized cause of action; or (b) the allegations in the statement of claim do not plead all the elements necessary for a recognized cause of action. If a material fact necessary for a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars.

2. Discussion and Analysis

[87] With varying degrees of clarity ranging from vague to precise to overly particularized, Ms. Yang alludes or indicates in her Statement of Claim or in her factum that she is advancing claims of: (a) breach of the Canadian Charter of Rights and Freedoms; (b) breach of PIPEDA; (c) tort of bribery; (d) tort of spoliation; (e) breach of contract; (f) inducing breach of contract; (g) interference with contractual relations; (h) breach of fiduciary duty; (i) conspiracy to injure; (j) wrongful act conspiracy; and (k) punitive damages.

[88] For several of these causes of action, it is immediately apparent that it is plain and obvious that the claims are doomed for failure and that the Statement of Claim cannot be saved by any amendment. For others a more detailed explanation is required, but it becomes readily apparent that all of the proposed causes of action are doomed to failure and all cannot be saved by any amendment to the already bloated Statement of Claim.

(a) Breach of the Canadian Charter of Rights and Freedoms

[89] In the immediate case, a breach of the Charter is untenable because all of the defendants are in the private sector and they are not government actors or agents bound to comply with the Charter.

[90] The Charter does not apply to actors in the private sector, unless the actor is performing some specific government function or acting as a government agent and it is not sufficient that the actor is carrying out some purpose that is regulated and for the public good.

[91] It is plain and obvious that there is no breach of Charter cause of action in the immediate case.

(b) Breach of PIPEDA

[92] Ms. Yang has no breach of PIPEDA claim in the Ontario Superior Court of Justice.

[93] PIPEDA sets out the circumstances in which an organization may collect, retain, and disclose personal information, and the purposes for which that information may be used. It establishes a Privacy Commissioner. A person may complain to the Privacy Commissioner who may conduct an investigation of the complaint. The Privacy Commissioner may issue a report making recommendations on how to resolve the complaint. The Privacy Commissioner, however, is not empowered to award damages. Only if a person makes a complaint to the Privacy Commissioner, then the complainant may also have a hearing in the Federal Court and the Federal Court, among other remedies, may award damages.

[94] In the immediate case, Ms. Yang complained to the Privacy Commissioner. The Privacy Commissioner declined to investigate her complaint.

[95] If Ms. Yang has a breach of PIPEDA claim, this is now a matter for the Federal Court to determine. It is plain and obvious that Ms. Yang’s breach of PIPEDA claim is untenable in this Court.

(c) Tort of Bribery

[96] Ms. Yang’s bribery claim is a non sequitur, and it is plain and obvious that the claim cannot succeed.

[97] As a matter of civil law, a bribe occurs when a person (the briber) secretly pays money or provides goods or services (the bribe) to a recipient (the person bribed) who may be an employee, agent, partner, trustee, or fiduciary of another (the victim of the bribe). The payment may be made to induce the recipient to exercise his or her influence in a way that favours the briber, but the motive is not determinative, and the essential factor is the secrecy, and if the payment is secret, then a corrupt motive and the success of the inducement will be assumed. The secret payment is a bribe even if the person making the payment did not intend a bribe and believed or expected that the recipient would properly disclose the payment; the person making the payment must accept the risk that the recipient will not disclose the payment. In some cases, it is the briber who offers the secret inducement, and, in some cases, it is the recipient who demands it, in which case, the words “graft” or “extortion” are sometimes used to describe the occurrence.

[98] In the immediate case, there are no secret commissions. It is debatable that there may or may not have been more assessments than necessary to determine Ms. Yang’s SABs entitlements but there was nothing secret about it. In the immediate case, the persons supposedly being bribed by Co-operators must invoice for their payments for their services in accordance with a publicly regulated invoice and billing system. In the immediate case, the persons supposedly being bribed or supposedly extorting bribes are not directly or indirectly an employee, agent, partner, trustee, or fiduciary of Ms. Yang, the supposed victim of the bribe.

[99] Ms. Yang is ultimately just complaining that she may have received unfavourable section 44 or section 45 reports for which there were more than one examination of her SABs claim. It is plain and obvious that there is no claim for her for the tort of bribery.

(d) The Tort of Spoliation

[100] It is not settled as to whether spoliation is a tort amenable to an award of damages or a principle of the law of evidence that will justify a court in making adverse findings of fact.

[101] In Spasic Estate v. Imperial Tobacco Ltd., [2000] O.J. No. 2690 (C.A.), leave to appeal refused [2000] S.C.C.A. No. 547 (S.C.C.), the Ontario Court of Appeal held that it was not plain and obvious that spoliation could not also be a tort with a remedy of damages, but the Court held that the tort, if it existed, would be a derivative tort to be considered only if it was established that the destruction or suppression of evidence made the plaintiff incapable of establishing the other nominate torts pleaded in the statement of claim. In Spasic Estate, the Court of Appeal overruled the decision of the Divisional Court in Rintoul v. St. Joseph’s Health Centre (1998), 42 O.R. (3d) 379 (Div. Ct.), in which a majority of the court ruled that it was plain and obvious that a separate cause of action for spoliation by a party to the lawsuit did not exist in Ontario.

[102] The elements of spoliation, however, are known. Spoliation occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Spoliation has four elements: (1) the missing evidence must be relevant; (2) the missing evidence must have been destroyed intentionally; (3) litigation must have been ongoing or contemplated at the time the evidence was destroyed; and (4) it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.

[103] In the immediate case, Ms. Yang alleges that the Defendants are liable for the tort of spoliation because of falsification of medical reports and the destruction of draft reports. The basis of this allegation is that the draft reports were not given to the regulated health professionals who submitted treatment care plans on behalf of Ms. Yang.

[104] In the immediate case, there has been no destruction of reports intentional or otherwise. In the immediate case, the failure to deliver the draft reports, if any, would not incapacitate Ms. Yang from establishing the other causes of action pleaded in her Statement of Claim. In the immediate case, the draft reports, if any, have just not been produced to Ms. Yang’s regulated health professionals who have the official reports. The delivery of the reports is governed by O. Reg. 34/10, and there is no obligation to deliver draft reports under the regulation. The reports are not evidence in any contemplated litigation and rather are reports to determine SABs benefit entitlements.

[105] It is plain and obvious that Ms. Yang has no cause of action for spoliation.

(e) Breach of Contract

[106] There is no breach of contract claim against Cira Health and the other non-settling defendants. There is no contractual relationship between Ms. Yang and these defendants.

(f) Inducing Breach of Contract

[107] The elements of a claim of inducing breach of contract are: (1) the plaintiff is a party to a valid and enforceable contract; (2) the defendant is aware of the contract and its terms; (3) the defendant intends to procure a breach of the contract; (4) the defendant persuades or induces a contracting party to breach the contract with the plaintiff; and (5) the plaintiff suffers damages as consequence of the breach of the contract.

[108] In the immediate case, Ms. Yang was the party to a valid and enforceable contract and Cira Health was aware of the contract and its terms. Thus, two of the five elements of the tort of inducing breach of contract have been pleaded. It is, however, plain and obvious that the other elements of the tort cannot be satisfied and thus the inducing breach of contract claim is doomed to fail.

[109] This is perhaps most clear with respect to the damages element of the tort. Ms. Yang’s damages, if any, are associated with her SABs claim. There is nothing to suggest that Ms. Yang did not obtain her SABs entitlements or uninsured driver compensation. She has settled with Co-operators. How she suffered damages with respect to SABs as a consequence of a breach of contract associated with O. Reg. 34/10 is not evident. There is also no readily apparent connection to damages arising from the alleged O. Reg. 34/10 breaches and her tort claim and uninsured driver claim against Co-operators, which has also been resolved. The pleaded breaches of O. Reg. 34/10 occurred four years before the motor vehicle litigation was commenced.

[110] Turning to the other elements of the tort of inducing breach of contract, as explained in paragraph 39 of her factum, Ms. Yang alleges that the Cira Health Defendants induced Co-operators to breach five sections of O. Reg. 34/10. Thus, she alleges that these sections of the regulation are terms of Co-operator’s contract or insurance with Ms. Yang. Ms. Yang alleges that Co-operators was induced to breach: (a) section 25(5)(a); (b) section 44 (1); (c) section 44 (5); (d) section 44 (9) para. 2 ii; and (e) section 50 of O. Reg. 34/10. More particularly, Ms. Yang alleges that the Cira Health Defendants induced Co-operators to breach the insurance contract: (a) by making excessive payments for SABs examinations; (b) by choosing unqualified Cira Health Defendants to conduct examinations; (c) by misrepresenting who was conducting the examinations; their qualifications and assessments; (d) by failing to provide the person conducting the examination with the necessary information and documentation; and (e) by not disclosing the payments making the payments secret and corrupt.

[111] There are several fatal problems with these pleaded allegations. First, the provisions of O. Reg. 34/10 are not terms of Ontario Automobile Policy (OAP 1 – Owner’s Policy) approved by the Superintendent of Financial Services for use as the standard Owner’s Policy. Second, if the provisions are terms of the Owner’s Policy, they are terms for the benefit of the insurer charged with paying the SABs. Third, there are no material facts to support the allegations and in particular there was nothing secret about the payments and if they were improper or corrupt this was a matter manifestly for the Licence Appeal Tribunal to deal with. Fourth, it is difficult to conceive how it can be alleged that Ms. Ghatas, Dr. Hines, and SmartSimple Software Inc. were inducers. Ms. Ghatas and Dr. Hines were not employees of Co-operators or of Cira Health. There are no material facts pleaded that they induced a breach of O. Reg. 34/10. What it is that SmartSimple did that could be described as culpable is a mystery.

[112] The most critical point is that the provisions of O. Reg. 34/10 about which Ms. Yang has grievances were not contractual promises for her benefit. I agree with the following paragraph from the Cira Health Defendants’ factum:

Even without the jurisdictional bar, the Statement of Claim discloses no legal cause of action, either in liability or damages, against the SCM defendants. The attempt to expose and sensationalize s. 44 expert reports as tainted by bias or by a rigged (“staged”) process cannot transform the facts into the paradigm of “cover-up” cases involving the concealment of the cause of action (e.g. actions against Big Tobacco). SABS is a no-fault benefit. The only issue is whether her physical or mental condition satisfies the entitlement criteria. The s. 44 process exists for the insurer’s benefit, to verify benefits claims. The insurer is entitled to make its determination with or without the s. 44 IME’s [insurer medical examinations]. A flawed or biased IME amounts to a squandered opportunity to investigate the claim and exposes the insurer to an adverse result in the LAT. The SABS regulation also provides its own punitive remedy for benefits denied in bad faith. There is no cause of action against the IME provider or the expert assessors. They owe the plaintiff no legal duty.

[113] In short, it is plain and obvious that there is no cause of action for inducing breach of contract against the non-settling defendants.

[114] This conclusion is corroborated by the discussion that follows next about the hidden breach of fiduciary duty claim. Breach of fiduciary duty is tied to Ms. Yang’s case theory about the obligations of Co-operators, the Cira Health Defendants, Ms. Ghatas, Dr. Hines, and SmartSimple under O. Reg. 34/10.

(g) Breach of Fiduciary Duty

[115] In the immediate case, Ms. Yang’s breach of fiduciary duty claim is an example of a cause of action being disclosed more in her factum than in her Statement of Claim. The alleged breach of fiduciary duty, however, is the lynchpin of all her causes of action, and most particularly, the breach of fiduciary obligations is at the heart of the inducing breach of contract claim, discussed above, and of the conspiracy to injure and wrongful act conspiracy causes of action, discussed below.

[116] Although Ms. Yang does not plead a breach of fiduciary duty claim as such, she explains the centrality of this claim to the theory of her case at paragraphs 22 and 23 of her factum as follows:

22. Insured persons who attend s. 44 examinations are placed in a special relationship with that regulated health professional, creating a fiduciary duty imposed on the regulated health professional, as: (a) The regulated health professional has the ability to exercise a discretionary power, writing medical reports which impact on care direction of treating regulated health professionals and assessment of injuries; (b) The exercise of the power is unilateral, outside of the control of the insured; (c) Insured persons like Celia, who was at all relevant times, a minor, are in a position of vulnerability in having such reports conveyed to treating regulating health professionals impacting on care, and assessment of severity of impairments, to the detriment of the person if accurate or misleading information in the reports.
23. Section 44 examinations create a tripartite agreement, a principal/agent relationship between the insured (principals) and the s. 44 regulated health professional. By choosing the regulated health professional and arranging a s. 44 examination the insurer is bound by the findings and conclusions of the s. 44 examination. By attending at an insurer examination, the insured person is consenting to the regulated health professional collecting information from the insurer and insured and using the collected information and documents to offer a professional opinion, which is required to be disseminated to treating regulated health professionals. The regulated health professional implicitly agrees to create a report. The contents of such reports impact on the legal position of the insured with respect to any tort claim for personal damages and with respect to entitlements to benefits. The insured controls the creation and distribution of the report having the right to revoke consent at will preventing any use or disclosure with the contractual consequences resulting from such directions being provide to a regulated health professional.

[117] Respectfully, in my opinion, the suggestion in the immediate case that the Co-operators, the Cira Health Defendants, Dr. Hines, Ms. Ghatas, and SmartSimple have a fiduciary relationship to Ms. Yang under O. Reg. 34/10 because her treating physicians will see and may rely on the assessment reports is nonsense.

[118] The nonsense can be unpacked by the following five observations.

[119] First, with respect to O. Reg. 34/10, there is no fiduciary relationships between any of the defendants and Ms. Yang. In paragraph 22 of her factum, Ms. Yang’s counsel leaves out the most important criterion for the formation of an ad hoc fiduciary relationship. The indicia for an ad hoc fiduciary relationship are: (1) the alleged fiduciary has scope for the exercise of some discretion or power; (2) the alleged fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal interest; (3) the alleged beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power; and (4) the alleged fiduciary either implicitly or expressly has undertaken or accepted a responsibility to act in the best interest of the alleged beneficiary and to act in accordance with a duty of loyalty.

[120] What is missing from paragraphs 22 and 23 of Ms. Yang’s factum is the recognition that under O. Reg. 34/10, there is no undertaking of loyalty by any of the defendants to be loyal to Ms. Yang and her legal interests, the fourth element of a fiduciary relationship.

[121] O. Reg. 34/10 does not implicitly or expressly impose a duty of loyalty to the insured onto the persons arranging or conducting the section 44 or 45 examinations. Outside of O. Reg. 34/10, there is no connection between the Cira Health Defendants, Dr. Hines, Ms. Ghatas, and SmartSimple. Inside O. Reg. 34/10, there is no fiduciary relationship between these defendants and Ms. Yang. The service providers under the SABs regime do not have a duty of care or of loyalty to the insureds. Insofar as the Co-operators is concerned, the provisions of sections 44 and 45 are for its benefit to ensure the viability of the compulsory no-fault insurance regime of the Insurance Act, which is designed to be to the benefit of all Ontarians who do not have to prove fault to receive accident benefits.

[122] I agree with the Cira Health Defendants submissions in their factum that:

35. The [section 44 and section 45] expert does not determine entitlement [to SABS] or CAT [catastrophic accident treatment]. It is the insurer who determines those questions. Moreover, the requirement of a s. 44 examination is purely discretionary for the purposes of s. 45. The IME [insurer medical examination] process exists entirely for “assisting” the insurer make a medically informed decision. The failure of any of the defendants to perform the IME’s adequately or to the plaintiff’s liking does not allow the plaintiff a claim in damages against any of the participants.

[123] Second, Ms. Yang’s allegation of vulnerability is highly suspect. Upon close analysis, the alleged vulnerability is connected to her treating physicians receiving inaccurate or incomplete information as part of the section 44 and section 45 examination process under O. Reg. 34/10. This allegation of vulnerability is suspect because the report is designed to assist the insurer in making a decision about SABs entitlements, it is not a consultive report for a treating physician. While the treating physician might also find the section 44 and section 45 report interesting, informative, or helpful, it would not relieve the treating physician of his or her own treatment responsibilities, and more to the point, the delivery of a report has nothing to do with Ms. Yang’s vulnerability. Moreover, Ms. Yang has the resource of her own regulated health professionals and thus the whole notion of her being vulnerable is a stretch of both law and facts. There is nothing in O. Reg. 34/10 that relieves the treating physicians from their professional responsibility to provide proper diagnosis, care, and treatment.

[124] Third, it is not the case that by attending at an insurer examination, Ms. Yang consented to the regulated health professional collecting information from the insurer and insured. Ms. Yang attends because that is what she has to do if she wishes to obtain approval of her treatment plan in whole or in part.

[125] Fourth, it is not the case that the regulated health professional implicitly agrees to create a report. The regulated health professional is obliged by O. Reg. 34/10 to deliver a report and the report is to assist the insurer in making SABs decisions not to assist the insured.

[126] Fifth, while the section 44 or section 45 report will affect the entitlement to SABS, it is not the case that the contents of the reports impact on the legal position of Ms. Yang with respect to any tort claim in the motor vehicle accident litigation. The evidence for the tort claim will be prescribed by the law of evidence and by the Rules of Civil Procedure not by O. Reg. 34/10.

[127] These observations explain why there is no tenable breach of fiduciary duty cause of action that could be pleaded in the immediate case against the Cira Health Defendants, Dr. Hines, Ms. Ghatas, and SmartSimple.

(h) Conspiracy to Injure

[128] The elements of a claim of conspiracy to injure are: (1) two or more defendants make an agreement to injure the plaintiff; (2) the defendants use some means (lawful or unlawful) for the predominate purpose of injuring the plaintiff; (3) the defendants act in furtherance of their agreement to injure; and, (4) the plaintiff suffers damages as a result of the defendants' conduct.

[129] In the immediate case, it is plain and obvious that there is no tenable claim of conspiracy to injure Ms. Yang. In addition to the problems noted above about the breach of fiduciary duty allegations that underlie the conspiracy claims, it is plain and obvious that the conspiracy claim is fatally flawed. The fatal flaws in the pleaded conspiracy to injure cause of action are numerous:

1. Ms. Yang did not suffer any damages as a result of the defendants’ conduct in arranging or conducting the section 44 and section 45 insurer examinations. There are no material facts pleaded that suggest that Ms. Yang did not get the SABs benefits for which she was entitled. Obviously, the personal injuries suffered by Ms. Yang were caused by the car accident and not by anything the defendants did or did not do in the O. Reg. 34/10 process.
2. If the argument is that she suffered because her SABs benefits were delayed or could have been greater, the SABs regime empowers the Licence Appeal Tribunal to address this complaint. Section 10 of R.R.O. 1990, Reg. 664 under the Insurance Act confers jurisdiction on the Tribunal to make a special award of up to 50% plus a 2% rate of compound interest on unreasonably withheld or delayed payments. A tort action against the service providers is not a work-around to obtain entitlements outside of the statutory regime.
3. For the reasons expressed above, there are no material facts that support the element of the tort that the defendants used means (lawful or unlawful) for the predominate purpose of injuring the plaintiff. As for means, all the defendants were acting in accordance with the rights and tasks assigned to them under O. Reg. 34/10, and if they were non-complaint that was a matter to be raised with the Licence Appeal Tribunal.
4. The acts of the defendants were in furtherance of the operation of section 44 or section 45 of O. Reg. 34/10 and the exercise of statutory rights is not by that very fact. an intention to injure. None of the defendants, including Co-operators which had a contractual relationship with Ms. Yang owed her any legal duty to provide diagnostic information for use by her treatment providers or to help her succeed in her motor vehicle accident claim.
5. The determinations made in the SABs process would not be binding to the court process, which is an adversarial process and not an administrative one. The examinations complained about in the O. Reg. 34/10 process occurred four years before the tort claim was commenced. SABs is a no-fault regime. The tort action is a fault regime in which Co-operators had a right to defend itself including by using surveillance to disprove the extent of her injuries and impairments.

[130] In short, there is no intention to injure when the insurer exercises its rights under O. Reg. 34/10 and if there is non-compliance with the rules associated with the administration of SABs, then that was an issue for the Licence Appeal Tribunal. It is plain and obvious that in the immediate case there is no legally viable cause of action for conspiracy to injure.

(i) Wrongful Act (Unlawful Means) Conspiracy

[131] The elements of a claim of wrongful act conspiracy are: (1) two or more defendants make an agreement to injure the plaintiff; (2) the defendants use unlawful means with knowledge that their acts were aimed at the plaintiff and knowing or constructively knowing that their acts would result in injury to the plaintiff; (3) the defendants act in furtherance of their agreement to injure; and, (4) the plaintiff suffers damages as a result of the defendants' conduct.

[132] For the reasons set out above, there are fatal flaws to Ms. Yang’s Wrongful Act (Unlawful Means) conspiracy. The Defendants means were not unlawful means but were the exercise of their rights and roles under O. Reg. 34/10.

(j) Punitive damages.

[133] Punitive damages are a remedy not a free-standing cause of action. Because in the immediate case it is plain and obvious that there are no tenable causes of action, it follows that the pejorative pleadings that the Defendants are so egregiously blameworthy that they should be punished are without substance.

F. Conclusion

[134] For the above reasons, Ms. Yang’s action is dismissed.

[135] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of the Cira Health Defendants, Ms. Ghatas, Dr. Hines, and SmartSimple within twenty days of the release of these Reasons for Decision followed by Ms. Yang’s submissions within a further twenty days.

Perell, J. Released: March 1, 2021