Ontario Court (General Division), Divisional Court

Court File: 97-CU-120906

Date: 1999-04-20

Rosenberg, Wilson and Cumming JJ.

Counsel:

Ronald D. Manes and Duncan Embury, for appellant.

Susan Vella and Jonathan Eades, for respondent.

The judgment of the court was delivered by

ROSENBERG J.:—

THE APPEAL

[1] The defendant/appellant Dr. Norman Sutherland ("Dr. Sutherland") appeals to the Divisional Court from the Order of Madam Justice Sanderson dated June 26, 1997. Sanderson J. struck certain paragraphs of the statement of defence and counterclaim of Dr. Sutherland. As well she struck certain paragraphs in the Affidavit of Ane Lowe, which was filed in support of Dr. Sutherland's cross-motion requesting that Goodman and Carr be removed as solicitor of record. That motion was adjourned pending determination of the issues with respect to the Lowe Affidavit. The appellant requests that the order of Sanderson J. be set aside and that the plaintiff/respondent's motion to strike certain paragraphs of the statement of defence and counterclaim and affidavit be dismissed with costs.

[2] The appellant erroneously proceeded with this motion before the Court of Appeal. On February 3, 1998 the Court of Appeal ruled that the Order of Justice Sanderson was interlocutory [reported at 77 A.C.W.S. (3d) 471]. The Court of Appeal acknowledged that because of the novelty and difficulty of the issue in this matter, consideration by an appellate court would be desirable.

[3] On March 30, 1998 Madam Justice Boland granted Dr. Sutherland leave to appeal to this Court on the basis that the issues involved are serious and complex, and that there is disagreement as to what evidence should be before the Trial Judge.

[4] In this appeal the appellant alleges:

1. The Learned Judge erred in striking portions of the Statement of Defence and Counterclaim which alleged fraud relating to the facts arising out of the Respondent's institution of disciplinary proceedings against the Appellant before the College of Physicians and Surgeons of Ontario.

2. The Learned Judge erred in interpreting section 36(3) of the Regulated Health Professions Act, S.O. 1991, c.18, to create an absolute bar to the admissibility of evidence in civil proceedings in circumstances where the facts and documents in question demonstrate a prima facie case of fraud.

3. The Learned Judge erred in applying section 36(3) of the Regulated Health Professions Act, S.O. 1991, c. 18, to hold that allegations of fraud arising out of disciplinary proceedings before the College of Physicians and Surgeons of Ontario would be incapable of proof at trial notwithstanding that the disciplinary proceedings formed the basis of the fraud alleged.

4. The Learned Judge erred in finally disposing of the Appellant's rights to allege or prove that the institution of the disciplinary proceedings formed the basis of a fraud.

5. The Learned Judge erred in applying section 36(3) of the Regulated Health Professions Act, S.O. 1991, c.18, to exclude reference to a sworn statement executed by the Respondent in which she stated that the allegations she had leveled against the Appellant both in the disciplinary proceedings and in the civil proceeding giving rise to the settlement at issue in this case were false and untrue.

6. The Learned Judge erred in failing to consider that the allegations made in the Statement of Defence and Counterclaim must be taken as true for the purposes of a Motion under Rule 21.01 of the Rules of Civil Procedure.

NATURE OF PROCEEDINGS

[5] The plaintiff/respondent Murielle Forget ("Ms. Forget") commenced this action to enforce Minutes of Settlement between herself and the defendant/appellant Dr. Sutherland dated September 6th 1995. The Minutes of Settlement were executed in relation to an earlier civil action ("the original action") brought by Ms. Forget against Dr. Sutherland bearing Court File No. 94-CU-80748. In the original action Ms. Forget claimed damages for sexual assault and battery, breach of fiduciary duty, intentional and negligent infliction of mental suffering, negligence and exemplary punitive damages.

[6] In the statement of defence and counterclaim to this action Dr. Sutherland seeks to set aside the settlement relied upon by Ms. Forget and seeks substantial damages arising out of Ms. Forget's alleged misconduct in obtaining the settlement. Dr. Sutherland states that the settlement was obtained by fraud and as part of a fraudulent scheme designed to extort money. Accordingly, he claims the settlement is contrary to public policy and is null and void.

[7] In the factum filed by the appellant, the appellant conceded that:

... the impugned paragraphs relate to proceedings instituted by Ms. Forget against Dr. Sutherland before the College of Physicians and Surgeons of Ontario and to a sworn document executed by Ms. Forget in which she swears that the allegations leveled against Dr. Sutherland both before the College and in the earlier civil action forming the basis of the settlement are untrue.

THE FACTS

[8] This action was brought by Ms. Forget on March 24, 1997 to enforce the terms of a settlement agreement entered into September 1995 between herself and Dr. Sutherland in the original action. Dr. Sutherland complied with the settlement agreement requirement of weekly payments in the amount of $1,000.00 commencing October 16, 1995 to December 30, 1996. He failed however to pay the final lump sum payment in the amount of $436,000.00 due January 7, 1997. Hence these proceedings.

[9] In the original action dated November 30, 1994, Ms. Forget claimed damages for sexual assault and battery, breach of fiduciary duty, intentional and negligent infliction of mental suffering, negligence and exemplary and punitive damages. Ms. Forget alleged, inter alia, that Dr. Sutherland had forced her to have intercourse without her consent, that Dr. Sutherland had sexual intercourse with her during the course of a medical examination, and that Dr. Sutherland had subjected her to sexual, emotional, mental and physical abuse for a period of ten years.

[10] In August 1993 Ms. Forget had made a formal complaint to the College of Physicians and Surgeons of Ontario (the CPSO) in which she made substantially similar allegations to those which were leveled in the original action.

[11] In or about September 1995 the parties settled the original action. The Minutes of Settlement provide security for the payments outstanding, and further provide in case of default that Dr. Sutherland consents to judgment for the payments due. The Minutes of Settlement confirm that both parties received legal advice, and that they were signed voluntarily without duress or coercion.

[12] On September 5, 1995, at the time of the settlement, Ms. Forget swore a statement in which she recanted all or substantially all of the allegations which she had leveled against Dr. Sutherland (the "Statement"). Ms. Forget swore that the sexual relationship between her and Dr. Sutherland was at all time consensual, that it did not commence until following the termination of the doctor/patient relationship and that the specific allegations of improper kissing, rape and improper sexual conduct were untrue.

[13] At the heart of this appeal is the purpose for which the Statement was prepared and whether it can be relied upon by the appellant in this civil proceeding. It is the appellant's position that the purpose of the affidavit on its face is not clear. If it was not solely prepared for the purpose of the disciplinary proceedings, then it may be referred to in the pleadings in this civil proceeding. It is the respondent's position that it is clear from the pleadings and documents that the Statement was prepared for the disciplinary proceeding, and that therefore section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the RHPA), is an absolute bar to admissibility in civil proceedings.

[14] All counsel agreed that for the purpose of the motion under rule 21.01(b), no affidavit evidence could be introduced. Therefore, Sanderson J. (and the Divisional Court) could look only to the pleadings and documents referred to in the pleadings to determine the purpose for which the Statement was made. However, two affidavits were filed in support of the motion to remove Goodman and Carr as solicitors of record. The Lowe affidavit was filed by the defendant appellant. The Smith affidavit was filed by the plaintiff in response to the Lowe affidavit. The Smith affidavit contains a statement that the statement was prepared solely for the disciplinary proceedings. In the motion before Sanderson J. an order was sought striking the portions of the Lowe affidavit referring to the Statement and the disciplinary proceedings. For the purpose of this aspect of the motion before Sanderson J. both of these affidavits were relevant and admissible.

[15] Dr. Sutherland defends this action on the basis that the settlement was obtained by fraud and was void as being contrary to public policy. Dr. Sutherland further states that the settlement was unconscionable and was the result of duress and undue influence exerted by Ms. Forget. Dr. Sutherland's defence is based on the allegation that Ms. Forget had fraudulently made serious and inflammatory allegations in both the civil proceedings and the College complaint, knowing that the allegations were capable of destroying Dr. Sutherland's personal and professional life, and knowing that they were untrue. The endorsement of Sanderson J. is attached as Appendix "A".

GENERAL PRINCIPLES

[16] The crux of this appeal is with respect to the motion to strike the pleading initiated pursuant to rule 21.01(b) of the Rules of Civil Procedure. The findings with respect to the applicability and the scope of section 36 of the RHPA apply to both motions to strike. Prior to considering the arguments of the appellant, I reiterate general principles applicable in motions to strike brought pursuant to Rule 21 of the Rules of Civil Procedure.

[17] Pleadings should only be struck in the clearest of cases where it is plain and obvious that the defence could not succeed or is "doomed beyond doubt to fail". See Hunt v. T & N plc (1990), 1990 90 (SCC), 43 C.P.C. (2d) 105, 74 D.L.R. (4th) 321 (S.C.C.), per Wilson J., Hanson v. Bank of Nova Scotia (1994), 1994 573 (ON CA), 19 O.R. (3d) 142 (C.A.) per Finlayson J.A., Prete v. The Queen in the Right of Ontario (1993), 1993 3386 (ON CA), 16 O.R. (3d) 161, 110 D.L.R. (4th) 94 (C.A.), per Carthy J.A.

[18] The facts set out in the statement of defence and counterclaim are deemed to be true for the purposes of a Motion under Rule 21, even where the allegations are serious. See Hunt v. T & N plc, supra, pp. 125-126 and Prete v. The Queen in the Right of Ontario, supra p. 170.

[19] Rule 21 should not be used to conduct what amounts to a motion for summary judgment, especially since the Court will not have the benefit of sworn evidence and the test of cross-examination. See Prete v. The Queen in the Right of Ontario, supra, p. 170.

[20] The Court should not decide discretionary questions of admissibility on a motion to strike portions of a pleading. Unless clear in law, discretionary questions of admissibility should be settled at trial, not by the pleadings. Kwacz v. Kwacz (1985), 1990 11344 (MB QB), 40 C.P.C. 82 (Ont. H.C.), per Pennell J.

[21] Sanderson J. and this Court are entitled to consider documents referred to in Dr. Sutherland's statement of defence which includes the Forget Statement. While the allegations in the statement of defence were for the purpose of the rule 21.01(b) motion deemed to be true, the documents referred to therein can be considered for the purpose of the motion but their contents were not necessarily deemed to be true.

POSITION OF THE APPELLANT

[22] The appellant raises three issues, submitting that:

(1) Counsel have conceded the Smith Affidavit is not admissible with regard to the Rule 2 1.01(b) motion; without that affidavit it cannot be determined that the Statement of the plaintiff was prepared for a proceeding under the RHPA. (Emphasis added.)

(2) Since s. 36(3) of the RHPA takes away the right of a party to adduce evidence it should be strictly and narrowly interpreted. "Proceeding" is not defined in the RHPA. As section 36(3) may affect substantive rights, the section should not apply to prevent recourse to a document in a civil action, unless it is clear that the document is prepared solely for the purpose of the discipline proceeding. (Emphasis added.)

(3) In any event s. 36(3) of the RHPA does not apply in the facts of this case; the application of section 36(3) would lead to an absurdity when fraud is alleged in that the facts with regard to the fraud could not be proven if s.36(3) was applied.

ISSUE 1: WAS THE STATEMENT OF THE PLAINTIFF "PREPARED FOR" A PROCEEDING UNDER THE RHPA?

[23] In my view, looking only at the pleadings and documents referred to therein, the conclusion is inescapable that the sworn statement was "prepared for" the Health discipline proceeding within the meaning of s. 36(3) of the RHPA.

[24] The following is clear from the wording of Dr. Sutherland's statement of defence and counterclaim. Paragraphs 11, 12, part of 15 and 16, and paragraphs 19 and 20 all refer to the complaint and discipline proceedings before the College of Physicians and Surgeons of Ontario ("CPSO"). The Statement sworn September 5, 1995 recants and withdraws the allegations set forth in Ms. Forget's 1993 complaint to the CPSO. Ms Forget's counsel writes to the CPSO September 7, 1995 recanting all allegations. Her complaint is formally withdrawn October 23, 1995. Paragraph 19 provides:

On September 5, 1995 the Plaintiff executed a sworn statement recanting all or substantially all of the allegations that she had leveled against Dr. Sutherland.

[25] The appellant's pleading makes it clear that the allegations refer to those allegations made by her in the context of the CPSO proceeding. The Statement is necessarily a document "prepared for" the complaint and disciplinary proceeding before the CPSO. I conclude therefore that there is no merit to the appellant's first submission.

[26] The acknowledgement that the Statement was "prepared for" the proceeding appears clear from the concession made in the appellant's factum:

... the impugned paragraphs relate to proceedings instituted by Ms. Forget against Dr. Sutherland before the College of Physicians and Surgeons of Ontario and to a sworn document executed by Ms. Forget in which she swears that the allegations leveled against Dr. Sutherland both before the College and in the earlier civil action forming the basis of the settlement are untrue.

ISSUE 2: HOW SHOULD "PREPARED FOR THE PURPOSE OF A PROCEEDING" BE INTERPRETED WITHIN THE CONTEXT OF SECTION 36(3) Of The RHPA?

[27] Section 36(3) provides as follows:

36(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. ([amended] 1996, c. 1, Sch. G., s. 27(2).)

[28] The word "proceeding" in s. 36(3) covers the complaint and discipline proceedings referred to in paragraphs 25 to 70 of the Health Professions Procedural Code (the "Code") in Schedule 2 of the RHPA The Code is deemed part of each health profession Act by s. 4 of the RHPA. As well, the Medicine Act, 1991, c. 30, s. 2, also deems the Code as part of that Act, which confers authority and obligations upon the CPSO in the regulation of the medical profession.

[29] The appellant urges that a narrow interpretation be placed upon section 36 requiring that it be clear that the Statement is prepared solely for the purpose of the proceeding before the CPSO before precluding the appellant from relying upon the Statement in this proceeding. The respondent urges a purposive interpretation, having regard to the policies and objectives underlying section 36(3) and the RHPA generally.

[30] The interpretation of the purpose of section 36(3) was considered recently. In B. (J.L.) v. Dr. B. (E.J.) (1997), 13 C.P.C. (4th) 206 (Ont. Gen. Div.), Gans J. was faced with a similar issue in a motion to strike, noted the importance of the public policy underlying s. 36(3) of the RHPA and struck the offending provisions of a statement of claim. He stated at p. 209:

The Code is designed to encourage the reporting of alleged acts of sexual abuse (s. 1.1). to provide assistance to those subjected to the same, and to eradicate this conduct on behalf of the profession. If the proceedings are not clothed with an aura of confidentiality throughout, even if terminated before a hearing and ultimate decision, in my view, the underlying policy of the Code would be thwarted.

I concur with the conclusions of Gans J. with respect to the underlying purpose of the legislation.

[31] Richard Steinecke in A Complete Guide to the RHPA, para. 2.180, states that the Legislature had sound policy reasons for enacting s. 36(3) of the RHPA. This provision protects against the production of such documents in order to preserve the integrity of disciplinary proceedings, ensure the confidentiality of complaints and encourage the reporting of alleged acts of sexual abuse. It is part of the broader scope of s. 36 which preserves immunity for the College's investigation and renders them to be non-compellable witnesses. It is not this Court's role to seek to step behind that provision. (RHPA, Schedule 2, Health Professions Procedural Code.)

[32] The cases which have considered s. 36(3) of the RHPA have uniformly held that documents prepared for RHPA proceedings are inadmissible in civil proceedings, regardless of the consequences which flow to the party seeking to introduce such evidence. D.M.M. v. Pilo [summarized at 61 A.C.W.S. (3d) 1183], Kaczanowski v. Dr. Phillips (May 6, 1997) (Ont. Gen. Div.) [unreported], L.H. v. Caughell, [1996] O.J. 3331 (Ont. Gen. Div.), P.S. v. Batth (1997), 40 O.T.C. 236 (Ont. Gen. Div.), B. (J.L.) v. Dr. B. (E.J.), supra, J.L.B. v. Beaton, [1998] O.J. No. 5297 (Ont. Gen. Div.). Sutherland has not referred to any decisions which consider the application of s. 36(3) narrowly in support of his argument.

[33] I conclude that Sanderson J. properly approached the interpretation of s. 36(3) by looking at the purpose of the legislation and concluding that the offending paragraphs in the pleadings and affidavit be struck.

ISSUE 3: Do THE PROVISIONS OF SECTION 36(3) APPLY WHEN FRAUD IS ALLEGED?

[34] Counsel for the appellant submits that in any event, the allegation of fraud precludes the operation of s. 36(3), to avoid absurdity. I do not agree. The prohibition in s. 36(3) is absolute. While the civil action for fraud may be brought, those documents prohibited by s. 36(3) are not admissible in the civil action for fraud. I conclude therefore that Sanderson J. correctly struck the offending paragraphs in the Statement of Defence and Counterclaim. For the same reasons, parts of the Lowe affidavit were properly struck in relation to the material filed on the cross motion.

[35] In any event, with regard to the third argument that this interpretation of s. 36(3) would lead to an absurdity when there are allegations of fraud, I am of the view that eliminating the parts of the pleadings and parts of the affidavit referring to the Statement or the disciplinary proceedings do not preclude the allegations of fraud. The defendant has pleaded in the defence and counterclaim paragraphs that are not struck (with respect to the Minutes of Settlement) that the plaintiff made allegations that she knew to be false and obtained the settlement by fraud.

[36] However, even if the decision of Sanderson J. hampered or even eliminated the possibility of proving fraud, this absurdity would not change the plain meaning of the subsection. The plain meaning of the provision eliminates the possibility of making the absurdity argument. In R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R 686. Chief Justice Lamer in that case stated at p. 697:

... I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This is another way of asserting what is sometimes referred to as the "golden rule" of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise. [Emphasis added.]

He further stated at p. 704:

... where by use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact is that a provision which gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretative analysis. [Emphasis added.]

[37] The meaning of s. 36(3) is plain and unambiguous. The clear words of the section should be given their plain and ordinary meaning.

[38] All arguments raised on behalf of the appellant fail. This appeal has in its various stages taken three and a half days to conclude. Accordingly the appeal is dismissed with costs to the respondent payable forthwith fixed in the amount of $10,000.

[39] Appeal dismissed.

APPENDIX "A"

ENDORSEMENT OF SANDERSON J.

[40] This is a motion by the plaintiff to strike certain portions of the Statement of Defence and Counterclaim of Dr. Norman Sutherland. The defendant has brought a cross-motion to remove Goodman and Carr as solicitors of record for the plaintiff. The plaintiff also seeks to strike portions of the affidavit of one Ane Lowe (the Lowe affidavit) filed in support of the defendant's cross motion Although the cross-motion was not heard by me today, but was adjourned on the consent of both parties to a later date I did hear the plaintiff's motion to strike portions of the Lowe affidavit as common grounds were advanced for striking portions of the Statement of Defence and Counterclaim and the Lowe affidavit.

[41] The plaintiff seeks to strike all or parts of paragraphs 11, 12, 16, 19 and 20 of the Statement of Defence and Counterclaim.

[42] In a nutshell, the submission of counsel for the plaintiff is that reference to any document prepared for a proceeding of the College of Physicians and Surgeons of Ontario (OCPS) and any reference to such proceedings is not allowable in this civil proceeding. Such documents are incapable of proof by virtue of s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991 c. 18 (RHPA), which provides as follows:

36(3) No record of a proceeding under the Act, a health profession Act or the Drugs and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act. [As amended.]

[43] Documents to which s. 36(3) refers are inadmissible as evidence in this case. They may not be produced or proved even on a voluntary basis.

[44] In D.M.M. v. Pilo (unreported) Lissaman J. held that the language of s. 36(3) is very clear and prohibits the receipt into evidence of any documents relating to proceedings before or in relation to the OCPS, including the complaint, responses to the complaint and evidence or statements given in connection with the OCPS proceeding. The language of s. 36(3) does not allow the subject of an OCPS proceeding to waive the provisions of that section. It absolutely prohibits the admission into evidence of all such documents, reports, things, decisions, statements in most civil proceedings.

[45] In Kelpin v. Dr. Alfred, McRae J. on a motion to strike those parts of a Statement of Claim and a Statement of Defence which made reference to proceedings before the College of Physicians and Surgeons of Ontario struck the impugned paragraphs, notwithstanding that discoveries had been held during which many questions had been asked and answers given about the OCPS proceedings.

[46] In Kaczanowski v. Dr. Phillips (unreported) decided in May of 1997, Wright J. referring to s. 36(3) of the RHPA struck provisions of a Notice under the Evidence Act, R.S.O. 1990, c. E.23, in which the defendant doctor purported to provide notice of intention to introduce document into evidence at trial prepared for or in relation to a sexual abuse complaint launched by the plaintiff before the OCPS.

[47] I find that the wording of s. 36(3) of the Regulated Health Professions Act, 1991 is clear and unambiguous. Allegations of fact in a pleading which are incapable of proof must be struck. Every pleader is at liberty to allege any fact which would be allowed to be proved, but only such facts. See Duryea v. Kaufman (1910), 21 O.L.R. 161 at 168; Brydon v. Brydon [1951], O.W.N. 369 at 370; Air India Disaster Claimants v. Air India (1987), 1987 4125 (ON SC), 62 O.R. (2d) 130 at p. 135, 44 D.L.R. (4th) 317. Certain allegations in the Statement of Defence and Counterclaim are incapable of proof and cannot disclose a reasonable defence.

[48] The application of the plaintiff must therefore succeed. I order that all of paragraphs 11, 12, 19 and 20 be struck. From paragraph 15 will be struck the words "both in the disciplinary complaint and" and the words "made in the complaint and". From paragraph 16 will be struck the words "denied the various complaints and allegations leveled against him by the Plaintiff as set out above, and retained competent counsel to represent him in the proceedings. Dr. Sutherland filed documents before the College of Physicians and Surgeons of Ontario and "Paragraph 16 will now read as follows: "Dr. Sutherland filed documents in response to the civil proceedings advising that at all times the sexual relationship between Dr. Sutherland and the plaintiff had been based on mutual attraction and was consensual between the parties. Dr. Sutherland advised that he had terminated the doctor/patient relation with the plaintiff prior to the commencement of any personal relations between the parties and that any sexual activity between the parties was consensual."

[49] Similarly, portions of the Lowe affidavit sworn June 16, 1997 filed by the counsel for the defendant in support of its application remove Goodman and Carr as solicitor of record for the plaintiff will be struck. Paragraphs 2, 6 and part of paragraph 10 make reference to documents prepared for and filed in the OCPS proceedings. Attached to the Lowe affidavit are Exhibits A, the original complaint made by the plaintiff and filed with OCPS and Exhibit C, a sworn statement to be used in the OCPS proceedings against Dr. Sutherland in the event that the College of Physicians and Surgeons decides to proceed with a hearing.

[50] I find that paragraphs 2 and 6, those parts of paragraph 10 referring to documents prepared for the OCPS proceedings as well as Exhibits A and C of the Lowe affidavit are inadmissible as evidence and incapable of proof by virtue of s. 36(3) of the Regulated Health Professions Act, 1991. I therefore order them to be struck.

[51] Counsel are asked to make written submissions on costs to be received by me on or before July 14, 1997.

[Subsequently Sanderson J. ordered costs in the amount of $3,000.00 payable forthwith.]