CITATION: Lengyel v. Tucker, 2021 ONSC 8110
DIVISIONAL COURT FILE NO.: 487/21
DATE: 20211215
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: GABRIELLA LENGYEL, Applicant
AND:
JOAN TUCKER, M.D., Defendants (Respondent)
BEFORE: D.L. CORBETT J.
COUNSEL: Ms Lengyel, self-represented
J. Martin, for the Respondent
HEARD: In Chambers, In Writing
ENDORSEMENT
[1] Ms Lengyel brought this application for judicial review from the decision of the Health Professions Appeal and Review Board (“HPARB”), challenging its decision to dismiss her appeal from a decision of the Inquiries, Complaints and Reports Committee (the “ICRC”) of the college of Physicians and Surgeons of Ontario (“CPSO”) as frivolous and vexatious. The underlying decision of the ICPC declined to investigate a complaint on the basis that it was frivolous and vexatious.
[2] This court directed that Ms Lengyel be given notice that this court is considering dismissing her application for judicial review pursuant to R.2.1.01, and provided her with the following explanation of the court’s concerns giving rise to the notice:
The ICPC declined to investigate the complaint further on the basis that it is frivolous, vexatious and/or an abuse of process. The Health Professions Review Board came to the same conclusion. Both bodies based their decision on the following synopsis of the events in issue:
The respondent doctor was retained by an insurer to assess the appellant psychologically in her home. The respondent doctor came to the home to perform the assessment, but the appellant would not come out of her room for the assessment to be done. The respondent doctor then left the premises without conducting an assessment.
The applicant makes numerous complaints about the respondent doctor, but none of these complaints seems to contradict the basic facts described above. On the basis of the facts described above, it appears clear that there is no viable complaint about the respondent doctor to her professional regulator.
The Registrar is directed to give notice to the appellant that the court is considering dismissing this case on the basis that it is frivolous, vexatious and an abuse of process. In particular, based on facts that do not appear to be in dispute, it appears that the physician provided no professional services to the appellant and was under no duty to provide any services to the appellant.
The appellant should restrict her response to the court's R.2.1 notice to the specific concern raised by the court: what, precisely, does she say the doctor did or did not do that could amount to professional misconduct. If the doctor did not conduct the assessment, and did not provide any professional services to the appellant, on what basis does the appellant say there was professional misconduct?
[3] R.2.1.01 is only invoked to dismiss a proceeding in the “clearest of cases”. It is not a substitute for a hearing on the merits before a panel of three judges of this court. However, this does not mean that whenever an appellant seeks to challenge factual findings below, the case must go to a full panel of this court. Where, as here, it is clear that the appellant’s account of facts that are contested is not the product of objectively reasonable thinking, and on the undisputed facts the decision below is unassailable, this court will dismiss the case pursuant to R.2.1.01. Therefore, for the reasons that follow, this proceeding is dismissed as frivolous, vexatious and/or an abuse of process pursuant to R.2.1.01.
(a) Ms Lengyel’s arguments that the physician provided services or owed duties to Ms Lengyel which are the proper subject matter of a professional discipline complaint against the physician
[4] Ms Lengyel argues that there is a “core complaint negligence abuse that causing life deterioration violation of the Law” on the part of the respondent.
[5] Ms Lengyel argues that the respondent made a “false and misleading statement” in her Report and that this statement caused her damage.
[6] Ms Lengyel argues that the respondent failed to maintain the standard of practice of the profession and “abused a patient verbally” and “falsifying a record”.
[7] Ms Lengyel has not stated what conduct she alleges on the part of the doctor that makes out the generalized allegations set out above. The respondent provided no medical services to her. The respondent did not complete an examination of her. And the respondent was under no duty to provide services that she failed to discharge.
[8] The allegation that the respondent’s efforts to persuade Ms Lengyel to undergo the examination she had agreed to could not possibly ground an allegation of negligence. There is no evidence that the efforts at persuasion caused damage or could cause damage to Ms Lengyel, aside from unsubstantiated assertions to the contrary.
[9] The allegation that the respondent “abused a patient verbally” is without substance. Ms Lengyel was not a patient of the respondent. No particulars are provided of words used by the respondent that could possibly constitute “abuse”. Ms Lengyel obviously changed her mind about submitting to the agreed medical examination, and she got upset because the respondent tried to persuade her to go through with the agreed examination. That is not “abuse” of a “patient”.
(b) Ms Lengyel’s arguments that this is not an appropriate case for the application of R. 2.1.01
[10] Ms Lengyel argues that this matter “does not fit squarely within the purview of R.2.1.01.” She does not explain why she says this is so.
[11] Ms Lengyel argues that dismissal pursuant to R.2.1.01 is “premature violation of the Constitution Act and “Human Civil Rights” but she does not say why this is so.
[12] Dismissing the case pursuant to R.2.1.01 would deny Ms Lengyel the “opportunity to have the… case adjudicated” and “would have the effect of denying access to justice.”
[13] This is an appropriate case for dismissal under R.2.1.01. The decision of the HPARB accords with the uncontradicted facts. Where the facts are in dispute, Ms Lengyel fails to state a case for professional misconduct against the respondent, aside from broad unparticularized assertions.
(c) Ms Lengyel’s arguments that her case raises important issues that should not be dismissed summarily
[14] Ms Lengyel argues that the conduct of the respondent has caused “health deterioration lifetime injury trauma, pain and suffering, mental anguish, loss of capacity of enjoyment of life, aggravation of pre-existing condition, and medical expenses. The losses are either permanent in nature or continuing in nature and Ms Lengyel will suffer losses in the future.”
[15] There is not the slightest basis for these allegations, other than Ms Lengyel’s bald assertion of them.
Summary and Conclusion
[16] The court has sympathy for Ms Lengyel’s plight. From her medical history and based on her materials provided to this court, she seems to be in great distress. The reasons from the ICRC and from the HPARB are framed in restrained language, as befits the care and solicitude due to a member of the public who is obviously facing serious health challenges. The danger of such solicitude is that its subtlety may fail to communicate the central point of the decision. I will be more direct and the risk of being less kind.
[17] There is no merit to this complaint. The doctor came for the examination. She was retained by the insurer, with which Ms Lengyel is opposed in interest. Ms Lengyel would not submit to the examination. The doctor tried to persuade Ms Lengyel to undergo the examination to which she had previously agreed. Those efforts failed and the doctor left. The doctor reported what happened to the insurer. Ms Lengyel did not agree with the doctor’s account of what happened.
[18] The “misconduct” alleged against the doctor – even if true – is trivial: being rude or abrupt during the conversation. The “false statement” alleged (which turned out to be an incorrect statement) was a reasonable error, was qualified by the respondent at the time she wrote the statement and caused no conceivable damage. Ms Lengyel’s allegations that these events have caused her serious and long-term health consequences are (a) unsubstantiated and (b) absurd.
[19] The ICRC and the HPARB both concluded that the complaint is frivolous, vexatious and/or an abuse of process. These findings were available on the facts. This court will defer to the HPARB in its exercise of discretion in deciding which cases are worthy of the adjudicative process before it.
[20] As I stated at the outset, this court dismisses a case pursuant to R.2.1.01 only in the clearest of cases. This is one of those cases.
Disposition
[21] The appeal is dismissed pursuant to R.2.1.01, without costs.
“D.L. Corbett J.”
Released: December 15, 2021