Lum v. College of Physiotherapists of Ontario, 2019 ONSC 1880

DIVISIONAL COURT FILE NO.: 797/18

DATE: 20190325

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LO-MING LUm, Moving Party

-and-

COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO, COLLEGE OF PHYSICAL THERAPISTS OF BRITISH COLUMBIA, UNITY HEALTH TORONTO, ATTORNEY GENERAL OF CANADA, THE HONOURABLE HARJIT SINGH SAJIAN, THE HONOURABLE JUDY FOOTE, Respondents

BEFORE: F.L. Myers J.

COUNSEL: Lo-Ming Lum, in person Nicole Walton, for the Attorney General of Canada, the Honourable Harjit Singh Sajian, and the Honourable Judy Foote Victoria Cistrone, for Unity Health Toronto Joanna Birenbaum, for the College of Physiotherapists of Ontario, and as agent for the counsel to the College of Physical Therapists of British Columbia

HEARD at Toronto: March 22, 2019

ENDORSEMENT

This Motion

[1] Ms. Lum sues the respondents as a result of harm that she claims they inflicted upon her for “whistleblowing.” Ms. Lum is not a lawyer and labours under several misapprehensions as to how civil litigation is conducted. This motion is a result.

[2] Ms. Lum is in the process of seeking to leave appeal to the Divisional Court from a scheduling order made by Firestone J. in CPC on December 11, 2018. At that appointment, Firestone J. set the date of April 11, 2019 for the hearing of motions by the respondents to strike out the statement of claim, for summary judgment, and to set aside the noting in default by Ms. Lum of the federal government respondents represented by Ms. Walton.

[3] Ms. Lum moves today for an order to deal with technical aspects of her motion for leave to appeal from Justice Firestone’s scheduling order. Ms. Lum asks for an order (a) dispensing with service and filing of the transcript of the scheduling appointment heard by Firestone J. in CPC on December 11, 2019; and (b) dispensing with the need to include a copy of the signed and entered scheduling order from which see seeks leave to appeal in her leave to appeal motion record.

[4] Initially, Ms. Lum also sought an extension of time to file her motion for leave to appeal. She advised at the hearing of this motion that she no longer needs this relief because she has already filed her leave to appeal materials. I make no finding as to whether the motion for leave to appeal has been properly brought on a timely basis.

[5] The motion for the two items of relief sought by Ms. Lum is dismissed for the reasons that follow. As discussed in the postscript below, it is my fervent hope that Ms. Lum obtains legal advice from a lawyer, one of the organizations listed at the end of this endorsement, or otherwise, as this motion was completely ill-advised. If Ms. Lum continues along her current path, her claim for damages will take much longer, be more stressful, and will be much more costly for her than need be the case.

Background Facts

[6] Among the entities sued by Ms. Lum was one that she listed as “St. Joseph’s Health Centre (Toronto)”. This is or was the name of a well-known hospital in Toronto. As will be discussed below, Ms. Lum took exception to counsel’s advice that the name of the hospital had changed to “Providence St. Joseph’s and St. Michael’s Health Centre” and then changed again to the current name “Unity Health Toronto”. Both Ms. Lum and the hospital have interests in ensuring that Ms. Lum is suing the correct party. Ms. Lum wants a judgment against the hospital as a legal entity. A judgment against a name that is no longer the hospital legal entity may do her no good. But her manner of dealing with identifying the proper name of the hospital has been problematic.

[7] In addition, on September 10, 2018, Ms. Walton wrote to Ms. Lum enclosing her clients’ Notice of Intent to Defend. In her cover letter, Ms. Walton asserted that her clients had not been properly served with the statement of claim. Rather than requiring further service, Ms. Walton delivered the Notice of Intent to Defend which makes service of the Statement of Claim unnecessary under Rule 16.01(2) of the Rules of Civil Procedure, RRO 1990, Reg 194. Ms. Lum mistakenly believes that in stating that service was not properly done, the federal government respondents were somehow undermining their Notice of Intent to Defend or otherwise prejudicing Ms. Lum’s position. This is not the case. The allegation of improper service is rendered irrelevant by service of the Notice of Intent to Defend. At worst, Ms. Walton was inferring that her clients were making a minor, magnanimous accommodation to Ms. Lum by not relying on their view that service had not been properly performed.

[8] On September 18, 2018, Ms. Walton advised Ms. Lum that the federal government respondents intended to move to strike the statement of claim. The next day, Ms. Walton obtained a list of possible dates from CPC for a scheduling appointment for the proposed motion to strike. Ms. Lum did not respond to Ms. Walton’s request that she advise of her availability on the dates that had been provided by the court. Therefore, Ms. Walton set the date for the scheduling appointment for December 3, 2018 and advised Ms. Lum in an email dated October 4, 2018.

[9] On October 10, Ms. Lum noted the three federal government respondents in default without notice to Ms. Walton. This was improper. Ms. Lum knew that the respondents had booked a hearing to schedule a motion to strike the statement of claim. A motion to strike is usually heard before the moving party delivers a statement of defence to avoid an argument that the motion to strike is barred by the fresh step of delivering a statement of defence under Rule 2.02(b). Ms. Lum may not have understood this. But she knew that the federal government respondents had counsel and were responding to her claim. As I told Ms. Lum in court, the purpose of civil litigation is to try to get to the heart of the matter (also referred to as the merits of her claim). Noting a party in default is not a proper use of the default process when the plaintiff knows that the defendants are actively engaged in the proceeding and before defending have taken a perfectly proper step of setting up a scheduling appointment in CPC for a motion to strike the statement of claim.

[10] Ms. Lum says that she noted the federal government respondents in default because their Notice of Intent to Defend was defective in light of the indication in Ms. Walton’s letter that the respondents had not been properly served. As I noted above, Ms. Walton’s letter was telling Ms. Lum that the federal government respondents were waiving the claimed irregularity. That is, they delivered their Notice of Intent to Defend made service unnecessary despite claiming that service had been improper. Ms. Lum read the advice differently and attributed nefarious motives to Ms. Walton and her clients. However, instead of bringing her concern to the court, she acted unilaterally by noting those respondents in default.

[11] By letter dated October 19, 2018, Ms. Walton advised Ms. Lum that her clients would be moving to set aside the noting in default.

[12] The scheduling appointment came on before Justice Archibald in CPC on December 3, 2018. Ms. Lum did not attend. Justice Archibald adjourned the matter to December 11, 2018 and required the respondents’ counsel to give notice of the new date to Ms. Lum. They did so.

[13] The scheduling appointment came on for hearing before Firestone J. in CPC on December 11, 2018. Ms. Lum chose to refrain from appearing that day. As she explains it, had she appeared, she would have been acknowledging the impropriety of service alleged in Ms. Walton’s cover letter enclosing her clients’ Notice of Intent to Defend. This acknowledgement, she asserts, would have been to her detriment. In addition, by that time, counsel for the hospital had advised Ms. Lum that the proper name of the defendant was then “Providence St. Joseph’s and St. Michael’s Health Centre”. Ms. Lum determined that until the hospital obtained an order amending the title of proceeding, its Notice of Intent to Defend in its correct legal name was invalid. She determined that, by appearing for Providence St. Joseph’s and St. Michael’s Health Centre, counsel for the hospital was appearing for a non-party and that if Ms. Lum appeared, she would also be acknowledging this to her detriment.

[14] I explained to Ms. Lum that when parties have a procedural disagreement in a lawsuit, if they cannot sort it out through negotiation, the resolution is to occur in court whether by motion or case conference or otherwise. If parties were prejudiced by attending court to contest a procedural issue, no one would ever be able to attend court to argue against the opponents’ claims. Ms. Lum stated several times that it is her “position” that she cannot appear where doing so would acknowledge a claim by the other side with which she disagrees. This is not a correct view and in carrying out her “position”, Ms. Lum has prejudiced herself by giving up the opportunities to make her arguments to the court.

[15] In CPC on December 11, 2018, in the absence of the plaintiff and being satisfied that she had notice of the proceeding, Justice Firestone scheduled the hearing of the proposed motions to strike the statement of claim, for summary judgment, and to set aside the noting in default of the federal government respondents for April 11, 2019. This is the order that Ms. Lum seeks leave to appeal. It is not at all clear to me that the setting of a date for a motion in CPC is an appealable order. An appeal is likely premature until the motions that were scheduled are heard and resolved.

[16] In any event, Ms. Lum then decided to order the transcripts of the proceedings before Archibald J. and Firestone J. for the purposes of her proposed appeal. She recounts in her affidavits some internal court staff machinations as efforts were made to obtain approval to access the audio recordings, the transcripts were prepared and sent to the judges for review, and then released. Ms. Lum characterizes the procedural complexity and inefficiency as nefarious. She is particularly concerned that the front page of the transcript from the December 11, 2018 CPC attendance apparently lists counsel as attending before Firestone J. for the “hospital defendants” - plural - when there is only one hospital sued. In addition, elsewhere in the transcript, the hospital is referred to as “St Joseph’s, St. Michael’s” with a comma between the two hospital names instead of an “and”. It is Ms. Lum’s position that the bureaucratic difficulties that she encountered expose a plot to allow non-parties to participate in the litigation to her detriment.

Motion to Dispense with Transcripts

[17] These concerns led Ms. Lum to move to dispense with filing the transcripts containing the pluralized “defendants” on the front cover and the comma between the hospital names on the motion for leave to appeal. Once again, it is her “position” that she is prejudiced if the transcripts containing these entries are acknowledged by her by including them in her motion materials. I explained to Ms. Lum that the mis-naming of a known party is a minor procedural matter that can be readily fixed. She quite correctly argues that an order is required. However, she is simply in error in believing that use of documents that might have a naming issue is a problem for her. The finger of litigation has been pointed at St. Joseph’s hospital under whatever its current legal name may be. There is no confusion as to who Ms. Lum is suing. It is the Government of Ontario through whatever vehicle is responsible for the hospital. A nefarious litigant might leave Ms. Lum suing a party in a name that no longer exists to render enforcement of a judgment more difficult. Here, the hospital and its counsel have been transparent and proactive in advising Ms. Lum of the proper legal name that she should use to bind it.

[18] After I explained this to Ms. Lum, she expressly consented to an order correcting the title of proceeding to amend the name of the hospital to its current name Unity Health Toronto. I made a handwritten endorsement recording the consent order during the hearing.

[19] Ultimately, I advised Ms. Lum that she does not need to file transcripts of the CPC proceeding before Firestone J. for her motion for leave to appeal in any event. Ms. Lum is looking at Rule 61.03 which is not the correct rule governing her appeal despite is ambiguous title. Rule 61.03.1 applies to motions for leave to appeal to the Divisional Court from an interlocutory decision of a judge of the Superior Court of Justice. Loiselle v. Violette, 2018 ONSC 6688, at paras. 5 to 7. Rule 61.03.1(4) requires only “transcripts of evidence” to be filed with a motion for leave to appeal. There was no oral evidence transcribed during the CPC hearing before Firestone J. Therefore, Ms. Lum does not need to file the transcripts of the hearing if she does not wish to do so. She does not need an order to omit the transcripts as they are not required in the first place.

Order to Dispense with filing the Order from which Leave to Appeal is sought

[20] Ms. Lum then became concerned about the draft order circulated by the respondents’ counsel to implement the schedule ordered by Firestone J. Once again, her concerns dealt with the naming of the hospital and what she perceived as Justice Firestone wrongly granting an audience to counsel for a non-party. The order was settled by the registrar. Ms. Lum was not satisfied. She sent an email on February 1, 2019 to schedule an attendance before Firestone J. at which she could take issue with the form of order as settled. She did not give notice of her request to any of the counsel for the parties opposite.

[21] On February 5, 2019, Firestone J. released a brief endorsement in which he directed Ms. Lum and counsel who had attended in CPC on December 11, 2018 to attend before him on February 14, 2019 to settle the order. He also directed Ms. Lum to give counsel notice of the appointment. Ms. Lum takes objection to the listing of counsel on the endorsement by Firestone J. She says that he made it look like parties appeared and he had heard a motion on February 5, 2019. She argues that Firestone J. was “setting her up” and that he had become part of the nefarious process under which non-parties were allowed to appear, transcripts and audio recordings were not readily made available to her, and transcripts were then released with improper naming of the respondents etc.

[22] It is obvious from Justice Firestone’s endorsement of February 5, 2019 that counsel had not appeared before him that day. In para. 1 he recited that the endorsement was prompted by the plaintiff’s email to his office. When coupled with the requirement that Ms. Lum give notice to the counsel who had attended on December 11, 2018, it is apparent that they had not attended before him on February 5, 2019. Firestone J. was simply setting out the names of the relevant players for Ms. Lum. Moreover, he set an early return date and he did not seek input from counsel as to their availability. That is, he drove an early and efficient resolution to the plaintiff’s process concerns. It seems clear to me that he was trying to accommodate a self-represented litigant rather than acting out a nefarious plot against her.

[23] In light of Ms. Lum’s concerns with Justice Firestone’s actions, on February 14, 2019, she once again chose not to appear. This was a violation of Justice Firestone’s direction to her and to counsel requiring them all to appear to settle the order. Justice Firestone’s handwritten endorsement dated February 14, 2019 records that four lawyers attended so that Ms. Lum could argue her issues with the form of order settled by the registrar. In Ms. Lum’s absence the matter did not proceed. She lost the ability to raise her concerns with the form of order as settled by the registrar. It was a wasted attendance for the four counsel whom Firestone J. made attend to deal with Ms. Lum’s concerns. Despite this fact, Justice Firestone made no costs award against Ms. Lum that day.

[24] As things currently stand therefore, there is a formal order settled and entered by the registrar. Ms. Lum asks to dispense with the requirement to file a copy of the order in her motion record for leave to appeal. She argues that she will be prejudiced because the order does not refer to the presence of non-parties (i.e. that counsel attended on December 11, 2018 and signed-in under the correct legal name of the client). Ms. Lum was unable to articulate how her case could be hurt by this issue. She repeatedly just asserts that it is her “position” that she cannot be taken to acknowledge the presence of non-parties and conduct that she views as conspiratorial.

[25] In my view, for a court to consider granting leave to appeal from an order, it is important that a copy of the signed and entered order be contained in the motion record. This provides certainty as to what was actually decided and therefore as to what precisely is in issue on the motion for leave to appeal. Absent any prejudice to Ms. Lum, I see no basis to exclude the order from the record. Rule 61.03.1(4) incorporates Rule 61.03(2) that sets out the contents of the motion record on a motion for leave to appeal to the Divisional Court. Rule 61.03(2)(a)(iii) requires that the motion record contain a copy of the order from which leave to appeal is sought as signed and entered. Ms. Lum’s “position” that including the order will amount to an acknowledgement that will hurt her case is not correct. The order exists. It has been signed and entered. Her acknowledgement or non-acknowledgement of the order is not a relevant issue on a motion for leave to appeal. Nor is her case for leave to appeal hurt at all by the inclusion of the order in her motion record. By contrast, if she leaves it out of the motion record, I am doubtful that the court would hear the motion.

[26] Accordingly, Ms. Lum’s motion is dismissed.

Costs

[27] In my view, it is important that Ms. Lum understand that the “positions” that she adopts require the parties opposite to incur legal costs. All of this was avoidable had Ms. Lum agreed with the hospital’s counsel to amend the title of proceeding last fall. Her decision to note the federal government respondents in default due to concerns about the sentence in Ms. Walton’s letter that actually shows the government accommodating Ms. Lum on service of the statement of claim is also a potentially costly decision. In our system, when a party is unsuccessful in a motion or a step in the proceeding, he or she is usually ordered to indemnify the successful parties for a portion of their legal costs. Ms. Lum understands this as she asked for a few hundred dollars in costs in the event that she succeeded on this motion. The federal government respondents ask for costs on a partial indemnity basis of $1,395 all-inclusive for this motion. Unity Health Toronto seeks $200 - $300. The two regulators acknowledge that they were not affected by the relief sought. However, they argue that watching briefs were prudent and foreseeable given the inappropriate manner that Ms. Lum has conducted the case to this point.

[28] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[29] In my view Ms. Lum ought to be liable to partially indemnify the respondents for costs incurred on this motion. This motion was wholly unsuccessful and unnecessary. As I noted at the outset, Ms. Lum, does not understand the way in which litigation is conducted and labours under misapprehensions. Moreover, she persists in her “positions” despite efforts from counsel and the court to help her understand the process. Ms. Lum is attempting to advocate for herself and this is commendable. However, she is accountable if she adopts and persists in “positions” that are contrary to the evidence, the facts, or the applicable rules. The court will provide assistance to self-represented litigants to help them understand how to conduct the litigation process. The concomitant obligation on the litigants is to be open to learning about the litigation process and adapting their conduct as a result. It is not proper advocacy to adopt an unyielding “position” in face of evidence, facts, or legal rules to the contrary. Moreover, continuing to advocate a “position” after being shown evidence to the contrary, learning that the facts do not support the “position”, or learning that the law does not support it, is not fair advocacy. Rather, it is intransigent and unreasonable conduct. It wastes time and makes the other parties incur costs unnecessarily.

[30] In my view, the responding parties adopted very restrained and reasonable positions on costs. The federal government respondents prepared useful responding materials. Ms. Walton led the argument for all the respondents and thereby avoided duplication. It is fair and reasonable for Ms. Lum to be ordered to pay costs on a partial indemnity basis: (a) to Ms. Walton’s clients fixed in the amount of $1,250; (b) to the hospital fixed in the amount of $250; and (c) to the regulators fixed in the amount of $250 each. Ms. Lum is therefore ordered to pay these amounts within fourteen (14) days. I picked this timing to ensure that the payments are due before the hearing scheduled for April 11, 2019 which has not been stayed.

Postscript

[31] I urge Ms. Lum to obtain legal advice so that she can avoid further mis-steps. She should re-think her proposed appeal and the noting of Ms. Walton’s clients in default. Ms. Lum is sending everyone down a path of contested motion proceedings that appears to be potentially very expensive for her. As noted above, Ms. Lum’s proposed appeal and her noting in default are based on misapprehensions. I am not deciding those proceedings today although the most efficient, affordable, and proportionate outcome that best protects Ms. Lum’s costs risk would be an early, summary decision on those issues before substantial costs are incurred by the respondents.

[32] If Ms. Lum needs assistance finding a lawyer, she should contact the Lawyer Referral Service of the Law Society of Ontario. It can be reached at http://www.findlegalhelp.ca. If Ms. Lum cannot afford to retain legal counsel, I provide her with the following references for excellent legal services for qualifying clients:

[33] Law Help Ontario provides free legal assistance at 393 University Ave., Suite 110, Toronto, and can be reached at (416) 628-3552. In addition, Downtown Legal Services at the Faculty of Law of the University of Toronto can be reached at law.dls@utoronto.ca or 416-934-4535. Osgoode Hall Law School at York University also provides free legal services through Community & Legal Aid Services Programme (CLASP) that can be reached at (416) 736-5029.

[34] I have tried to explain the process issues to Ms. Lum both in court and in this endorsement. But I am not her lawyer. Ms. Lum needs legal help and she should quickly seek out advice from a privately retained lawyer, or a clinic listed above, or otherwise. If Ms. Lum insists on advancing her mistaken “positions” she does so at her own financial and substantive risk.

F.L. Myers J.

Date: March 25, 2019