COURT FILE NO.: 580/07
DATE: 20090202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
KENNY VUONG, LUU VUONG, MY VUONG, DUNG VUONG
Appellants
(Plaintiffs)
- and -
TORONTO EAST GENERAL & ORTHOPAEDIC HOSPITAL
Respondent
(Defendant)
Shan Padda, for the Appellants (Plaintiffs)
Michele M. Warner, for the Respondent (Defendant)
HEARD at Toronto: February 2, 2009
BELLAMY J.: (Orally)
[1] This is an appeal by the plaintiffs from a decision of Judge Sabol of the Toronto Small Claims Court in which he dismissed the appellants’ statement of claim by acceding to the defendant’s motion. The defendant had brought a motion seeking dismissal of the claim pursuant to Rule 21.01(1) on the basis that the matter was res judicata, and that pursuant to Rule 21.03(d), it was also frivolous or vexatious or was otherwise an abuse of process of the court.
[2] Without providing any reasons, the judge dismissed the plaintiffs’ claims. In filling out the Motion Endorsement Record, he said nothing about the disposition of the motion. He simply filled out item number 9 which deals with whether or not the claim is dismissed, stayed or otherwise. He wrote the letters “Pl” and circled the word “dismissed”. He awarded no costs to the successful defendant. As this was a motion, there is no transcript of the submissions and there appears also to be no transcript of the judge’s reasons.
[3] The defendant/respondent argued that the judge correctly decided the motion pursuant to Rule 21.01(1) and 21.03(d) of the Rules of Civil Procedure and submitted that the motions judge correctly relied on the decisions in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Lang Michener et al. and Fabian et al., [1987] O.J. No. 355 (H.C.J.) and Ontario v. Bear Island Foundation, [1995] O.J. No. 1624 (Ont. Gen. Div.) in deciding that the plaintiffs’ claim was res judicata and constituted an abuse of process. The defendant also submits that the motions judge correctly interpreted the Public Hospitals Act, R.S.O. 1990, C.P.40. Finally, the defendant submits that the motions judge correctly decided that the defendant’s legal obligations with respect to the sharing of personal information about its patients and the treatment provided to them were comprehensively and exhaustively set out in this legislation.
[4] The defendant is in an unenviable position because there is nothing on the form that would indicate the judge considered any of these things in making his decision. Ms. Warner submits to me that Judge Sabol did give oral reasons in which he basically agreed with submissions made on behalf of the hospital and accepted the bases that had been put forward on behalf of the hospital with respect to the materials. He focused in oral reasons on there not being a valid cause of action against the hospital, and essentially his reasons were that the failure not to meet with the family was not a novel claim, but was a claim that had no basis in law.
[5] Counsel for the plaintiff was not counsel at the trial. His only information was that the judge said it was not a triable case and that the case was dismissed.
[6] I recognize that the Small Claims Court is a very, very busy court. However, litigants are entitled to know the reasons why a judge has allowed a motion and dismissed an entire statement of claim. In the absence of any reasons whatsoever, it is impossible for a reviewing court to ascertain whether the motions judge believed the matter was res judicata, whether he believed it was frivolous or vexatious, whether it was an abuse of process or whether it was some combination of the above. It is impossible for a reviewing court to agree with the defendant that the judge took into consideration any of the cases now cited. I am basically faced with the situation where both counsel were before me having to guess as to the precise reasons of the motions judge.
[7] The appellants seek to have the judgment set aside and ask for an order permitting their matter to be directed for trial.
[8] There are no reasons whatsoever that would permit appellate review of the correctness of the judge’s decision. In my view, I really have no alternative but to set aside the judge’s decision and remit the matter to the Small Claims Court for the hearing of the motion before a different judge who should be made aware of my decision.
[9] In sending this back, I make no comment with respect to the merits of the plaintiff’s case.
COSTS
[10] I do not believe this is an appropriate case for costs. The defendant had no real choice in this matter but to defend this appeal.
BELLAMY J.
Date of Reasons for Judgment: February 2, 2009
Date of Release: February 4, 2009
COURT FILE NO.: 580/07
DATE: 20090202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
KENNY VUONG, LUU VUONG, MY VUONG, DUNG VUONG
Appellants
(Plaintiffs)
- and -
TORONTO EAST GENERAL & ORTHOPAEDIC HOSPITAL
Respondent
(Defendant)
ORAL REASONS FOR JUDGMENT
BELLAMY J.
Date of Reasons for Judgment: February 2, 2009
Date of Release: February 4, 2009