Berge v. College of Audiologists

CITATION: Berge v. College of Audiologists, 2021 ONSC 4403

COURT FILE NO.: 291/15

DATE: 20210618

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Berge v. College of Audiologists

BEFORE: D.L. Corbett J.

COUNSEL: Ernest Guiste, for Brenda Berge

HEARD: In Chambers, In Writing

ENDORSEMENT

[1] Brenda Berge’s appeal from an adverse decision of the College of Audiologists was dismissed by this court on November 29, 2016 (2016 ONSC 7034). Leave to appeal was refused by the Court of Appeal on September 22, 2017 and by the Supreme Court of Canada on June 14, 2018.

[2] Ms Berge returned to this court again in 2019, moving to vary or set aside this court’s decision from 2016 pursuant to Rule 59.06. This motion was dismissed by a panel of this court on June 7, 2019: 2019 ONSC 3351. The panel issued its costs decision on the R.59.06 decision on October 11, 2019 (2019 ONSC 6093). Then Ms Berge moved before the panel to vary or set aside the panel’s costs disposition, a motion that was dismissed by the panel on July 27, 2020 (2020 ONSC 4557).

[3] On April 1, 2021, Ms Berge initiated a second motion pursuant to R.59.06 (and other provisions) seeking to reopen the decision of this court from 2016. The notice of motion states that Ms Berge seeks to adduce fresh evidence in respect to “two mandatory statutory provisions” that are “not only relevant to the issues adjudicated but critical to a proper consideration and resolution of the matter.” The two provisions concern a deadline of 150 days for the adjudication of a complaint by the ICRC and a requirement that the ICRC “issue a decision” following its investigation. Ms Berge states in the notice of motion that “[t]he hearing panel and the parties somehow do not address” these two “mandatory statutory provisions”.

[4] As stated by this court in Ms Berge’s previous attempt to reopen this case, “Rule 59.06 is not an invitation to reargue cases endlessly or an invitation to raise new issues after a decision has been rendered. The rule provides a mechanism for re-opening a hearing under very strict conditions. As this court has previously remarked it is “not a do-over”. (See Massiah v. Justices of the Peace Review Counsel, 2018 ONSC 2179 (Div. Ct.)). As stated in Peoples Trust v. Atas, 2018 ONSC 58, para. 45:

It is axiomatic that a thing, once decided, may not be relitigated. This principle is known as res judicata, a Latin phrase that translates as “the thing has been adjudicated”. Res judicata includes “cause of action estoppel” which precludes relitigation of the same issue between the same parties. But the principle against relitigation goes further than this. It also covers claims that were not advanced, but should have been dealt with in prior litigation.

[5] There are two points to be made here. First, the issues Ms Berge now seeks to raise existed at the time of the proceedings before the College of Audiologists, and at the time of the appeal before this court. They existed at the time of the appeal proceedings before the Court of Appeal and the Supreme Court of Canada. They existed at the time of the prior R.59.06 motion in this court. If Ms Berge wished to raise these issues, she should have raised them long ago. The suggestion that Ms Berge or her counsel did not think to raise these issues until now does not make them “new”.

[6] By direction sent by email April 6, 2021, this court directed the Registrar to issue a R.2.1 notice to Ms Berge on the following basis:

Justice Corbett directs me to advise the parties as follows:

The Registrar is directed to give the moving party notice that the court is considering dismissing her motions pursuant to R.2.1.01 as frivolous, vexatious and an abuse of process, and ordering pursuant to R.2.1 that she be prohibited from bringing any further motions or taking any further steps in this proceeding or against the responding College or any of its agents or employees without first obtaining prior permission from a judge to so do, for the following reason:

The proposed motions appear to be contrary to the "finality" principle and appear to reflect an inability on the part of the moving party to accept that these proceedings have been finally decided against her: Peoples Trust v. Atas, 2018 ONSC 58, paras. 13-19, 32-49, 307-318, aff'd 2019 ONCA 359; Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, para. 41; Lochner v. Ontario Civilian, 2020 ONCA 720, aff'g 2020 ONSC 944 (Div. Ct.).

In her response, the moving party is directed to advise whether she has paid all outstanding costs orders against her in connection with these proceedings.

Responding parties are directed not to make submissions on the R.2.1.01 issue unless the court subsequently directs otherwise.

[7] In Ms Berge’s submissions responding to the R.2.1 notice, she asserts that she has discovered “new evidence”. She does not say what that “new evidence” is. She does not explain why the points she now seeks to raise were not apparent at the time of the hearing before the College of Audiologists or at any other point when she was before the courts.

[8] All of this should be placed in the context of the overall dispute between the parties. Ms Berge sought to use the title “Dr.” in connection with her provision of audiological health care services to individuals. This use was contrary to Ontario law. She went ahead and used the title “Dr.” anyway. The College prosecuted her. The adjudicative facts were not in dispute. Ms Berge lost on the legal issues of principle that she was raising. The technical and procedural issues she now seeks to raise, like many of the issues she has raised previously in this court, do not impugn the justice of the College’s decision of the substantive issue in this case.

[9] Ms Berge was obliged to raise all her issues in the proceedings before the College. Then, at each stage of the further litigation, she was obliged to raise all issues with the court, so that the matter could be adjudicated fully and brought to a conclusion. It is far too late for her to be raising “new” issues now. A bald assertion that there is “fresh evidence” – in respect to issues that had to be apparent at the time of the hearing before the College – is a frivolous response to the R.2.1 notice. The motion to reopen this court’s decision from 2016 is dismissed as frivolous, vexatious and an abuse of process pursuant to R.2.1.

[10] Ms Berge’s prior R.59.06 motion was patently without merit. The current motion has been dismissed pursuant to R.2.1. Enough is enough. It is clear that Ms Berge does not accept that her discipline case has been decided finally and is over. Ms Berge is hereby prohibited from bringing any further motions or taking any further steps in this proceeding or from commencing or pursuing any further proceedings against the College or any of its agents or employees in respect to or in any way related to the underlying discipline case without first obtaining prior permission from an administrative judge of the Divisional Court to so do.

[11] Ms Berge has commenced a proceeding in this court respecting current actions of the College arising from her alleged failure to pay the costs ordered against her. That proceeding is currently being case managed by this court. Ms Berge need not seek permission for the steps she has taken thus far in that proceeding and may seek permission for any subsequent steps she seeks to take in that proceeding during the course of case management of that proceeding in this court.

D.L. Corbett J.

Date: June 18, 2021