CITATION: Mehedi v. Mansour, 2023 ONSC 3683
DIVISIONAL COURT FILE NO.: 500/22 DATE: 20230619
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
GOLAM MEHEDI
Self-Represented Plaintiff/Appellant
Plaintiff/Appellant
– and –
ALI ABDULLAH MANSOUR and MAJDA CERKVENIK
Hayley Goldfarb and Sam Rogers, for the Respondent
Defendants/Respondents
HEARD at Toronto: June 19, 2023
Leiper J. (Orally)
PART i - INTRODUCTION
[1] The Plaintiff, Golam Mehedi has appealed from a decision of Deputy Judge Shelley Timms which granted the Defendants’ motion to strike the Plaintiff’s claim in this case and dismiss the action, pursuant to Rule 12 of the Rules of the Small Claims Court.
[2] The Plaintiff brought claims against the Defendants, who are physicians. Each saw the Plaintiff on one occasion at a walk-in clinic in 2017.
[3] The Plaintiff claimed that the Defendant Physicians used improper OHIP billing codes when they billed for their encounters with him. He also alleged that the Defendants improperly disclosed his personal health details to the police.
[4] Before trial, the Defendants moved to strike the Plaintiff’s claim as having no cause of action. Deputy Judge Timms granted the motion. She found that the incorrect use of OHIP billing codes disclosed no reasonable cause of action. Deputy Judge Timms concluded that most of the claim was an attempt to review and overturn the CPSO and HPARB decisions, matters outside of the jurisdiction of the Small Claims Court.
[5] Deputy Judge Timms found that there was no reasonable cause of action for claims against non-parties, claims outside the jurisdiction of the Small Claims Court (including revocation of the Defendant Physicians’ medical licenses, remedies under the Privacy Act, the Charter of Rights, and findings of guilt for an offence.)
[6] For the reasons that follow, I dismiss the Plaintiff’s appeal. There are no legal errors in Deputy Judge Timms’ decision. She conducted the motion fairly. The Plaintiff received notice in advance of the Defendants’ motion to strike. The Plaintiff was not denied procedural fairness.
PART II - ISSUES ON APPEAL
[7] The Plaintiff raises several issues on this appeal as follows:
a. Did Deputy Judge Timms err in her decision?
b. Was the Plaintiff/Appellant denied his right to procedural fairness and natural justice?
c. Did Deputy Judge Timms err in her determination of the burden of proof?
d. Did Deputy Judge Timms err in law by providing inadequate reasons?
e. Should the Appellant’s second appeal be dismissed?
PART III - STANDARD OF REVIEW
[8] The standard of review on appeal for a pure question of law is one of correctness. On a pure question of law, an appellate court is free to replace the opinion of the trial judge with its own: RVR Concrete v. Windsor Wall Forming, 2022 ONSC 4535 at para 30, citing Housen v. Nikolaisen, 2002 SCC 33 at para 8.
[9] Findings of fact are reviewable on a standard of whether the trial judge has made a “palpable and overriding error.” A palpable error means an error which is “plainly seen.” Where the issue involves the application of the law to the facts as found, and there is an extricable error in law, the finding is subject to a standard of correctness: Housen v. Nikolaisen, at paras. 8, 11, 36-37.
[10] Where the application of the facts to the law involves a review of the evidence as determined by the trial judge, the appeal court should accord deference to those findings. The trial judge’s interpretation of the evidence should not be overturned absent palpable and overriding error: Housen v. Nikolaisen at para. 36.
PART IV - ANALYSIS OF THE ISSUES
a. Did the Deputy Judge err in her decision?
[11] The Deputy Judge applied Rule 12.02 of the Small Claims Court Rules which describes the circumstances in which a judge may dismiss a claim summarily.[^1]
[12] The Deputy Judge applied Rule 12 to the claim before her and in doing so made several findings. I consider each of those in turn.
Finding #1: The Alleged Improper Disclosure of Incorrect OHIP Billing Codes did not Disclose a Reasonable Cause of Action
[13] The Deputy Judge concluded there was no legal basis or evidence in support of the Plaintiff’s claims for $35,000 in damages against each of the Defendants for “negligen[ce],” “violation of privacy,” “breach of fiduciary duty,” and “pain, suffering and emotional distress” for the use of improper OHIP billing codes.
[14] The Plaintiff submits that this was an error, an injustice, and a fettering of the Deputy Judge’s discretion. He submits that he should have been able to strike out the Defendants’ Statement of Defence.
[15] I disagree. Deputy Judge Timms did not commit a palpable and overriding error by dismissing these claims. The incorrect or wrong use of OHIP billing codes cannot ground an action in negligence or breach of fiduciary duty. These are codes used to bill the government for health care services. Misuse or incorrect application of the codes is a matter between the government funder and the physician. I conclude that this finding is entitled to deference and would not give effect to this ground of appeal.
Finding #2: The Allegations Relating to the Privacy Act and the Charter Disclose No Reasonable Cause of Action
[16] The claim also included allegations of breach of federal and provincial privacy legislation and the Charter of Rights and Freedoms.
[17] Deputy Judge Timms considered the Privacy Act R.S.C., 1985, c. P-21, s. 2 concluding that this is federal legislation relevant to personal information held by federal government institutions. A “government institution” is defined as “any department or ministry of state of the Government of Canada, or any body or office, listed in the schedule” and “any parent Crown corporation” or wholly owned subsidiary. The Deputy Judge found that the Defendants do not fall within the definition of a “government institution.” There was no error in her findings in this regard.
[18] Deputy Judge Timms correctly relied on Kim v. Canada 2017 FC 848 at para. 32 in support of her holding that an alleged breach of the Privacy Act does not provide an independent cause of action or civil remedies relative to an unauthorized disclosure of personal information.
[19] Deputy Judge Timms also made no palpable and overriding error in finding that a claim under the Personal Health Information Protection Act (“PHIPA”) 2004, S.O. 2004, c. 3, Sched. A is not available. Section 65 of PHIPA contains a limited right to damages for a breach of PHIPA. This may be available where the Information and Privacy Commissioner has made an order under PHIPA, or a person has been convicted of an offence under PHIPA. The Plaintiff did not plead, nor was there any evidence, that the Commissioner made a final award against the Defendants, or that they have been convicted for a breach of PHIPA. Indeed, this is not the case. Therefore, the Deputy Judge did not err in her finding that “[a]s a result, there is no right to proceed in this court on a claim under PHIPA for damages suffered as a result of a contravention of PHIPA.”
[20] Deputy Judge Timms further found and made no palpable and overriding error in doing so that the Appellant did not plead a common law breach of privacy (i.e. the tort of intrusion upon seclusion). Had he done so, the use of OHIP billing codes would not amount to a breach of privacy. Deputy Judge Timms found that the Appellant did not plead how the use of OHIP billing codes supports this tort. The elements of the common law tort require a plaintiff to establish the following three elements, which Mr. Mehedi did not do:
(1) intentional or reckless conduct by the Defendants,
(2) that the Defendants invaded, without lawful justification, the Plaintiff's private affairs or concerns, and
(3) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.
[21] Finally, Deputy Judge Timms did not err in finding that the Small Claims Court does not have jurisdiction to find a violation of the Charter of Rights and Freedoms. Deputy Judge Timms correctly referred to McKinney v. University of Guelph 1990 60 (SCC), [1990] 3 S.C.R. 229 for the holding that “[t]he Charter of Rights and Freedoms was not intended to be used to govern actions between private individuals.”
Finding #3: The Small Claims Court Does Not Have Jurisdiction to Review the HPARB and CPSO Investigations
[22] The Deputy Judge found that the portions of the claim seeking relief relative to the HPARB proceedings and the CPSO investigations should be struck because these are allegations against a non-party (the CPSO). The Deputy Judge also applied s. 36(3) of the Regulated Health Professions Act S.O. 1991, c. 1, which bars the admissibility of complaints to the CPSO in a civil action.
[23] When I asked the Plaintiff during oral argument about his position on this question, he submitted that the Defendants’ disclosure to police was improper, and he suffered emotional distress as a result.
[24] I would not give effect to these submissions. The Deputy Judge correctly identified the applicable law and principles. The CPSO was not a party before her. The Plaintiff could have sought his remedies elsewhere from any alleged deficiencies in the CPSO/HPARB process. It did not belong in a claim against the Defendants in the Small Claims Court.
Finding #4: The Plaintiff Required Expert Evidence to Support His Case, Which He Failed to Adduce
[25] A section of the Plaintiff’s claim alleged medical negligence on the part of the Defendants however, he did not include any medical experts in his list of witnesses and in his oral submissions before the Deputy Judge, he confirmed that he would not be calling any medical expert evidence.
[26] Deputy Judge Timms reasonably held that “even if there was a reasonable cause of action, without an expert report to adduce the standard of care and support for the injuries alleged, there is no reasonable chance of success at trial, and it would be a waste of the court’s time and resources to proceed with this Claim.” This finding is supported by jurisprudence to this effect from the Court of Appeal for Ontario: see Suserski v. Nurse, 2008 ONCA 416 at paras. 4-5.
[27] On appeal, Mr. Mehedi submitted that he could use evidence from the police officer who he says advised him that they received information from the Defendants about his mental health and thus, there is no need for expert evidence.
[28] I would not give effect to this submission. Even if the facts claimed by the Plaintiff are assumed to be true, the communications to the police officer or his notes about those conversations would not amount to expert evidence that would support a claim in medical negligence. These are fact-based matters, but they would not amount to evidence to support findings of standard of care or a breach of the standard of care that would be required to ground a claim in medical negligence.
[29] I conclude that the Deputy Judge applied the correct law to the facts before her and in doing so made no palpable or overriding error.
Finding #5: The Small Claims Court Does Not Have Jurisdiction to Grant the Relief Sought
[30] Deputy Judge Timms did not err in finding that she did not have jurisdiction to grant certain of the relief that the Plaintiff was seeking, including imprisonment of the Defendant Physicians or revocation of their medical licenses. She correctly held that “the jurisdiction of the Small Claims Court is limited to payment of money up to the prescribed amount” pursuant to section 23 of the Courts of Justice Act R.S.O. 1990, c. C.43. The Small Claims Court does not have jurisdiction to impose criminal penalties or revoke professional licenses.
[31] There was no error made by the Deputy Judge in making these findings.
Issue b.: Was the Plaintiff Denied Procedural Fairness?
[32] The Plaintiff submits that Deputy Judge Timms denied him procedural fairness during the hearing of the motion. Although he was able to present oral submissions and was assisted with the procedure that the Deputy Judge would follow during the motion, he submits that nevertheless he did not receive sufficient time to make his arguments.
[33] The record reveals that the Plaintiff had notice of the Defendants’ motion to strike his claim, that he understood what was at stake and was given a right to be heard before the Deputy Judge made her rulings. Further, he was provided with detailed reasons for the decision, which the Deputy Judge wrote after carefully considering each of his arguments.
[34] The Plaintiff also submits that he did not receive disclosure from the Defendants which rendered the decision unfair. However, this was his claim. He had set the issues in motion. As Plaintiff, it was within his control to provide any additional information that he believed would assist the court in determining the merits of the motion.
[35] The Defendants disclosed medical records in their possession as exhibits to the Statement of Defence. The Plaintiff requested and received his own medical records on August 7, 2019. The Plaintiff submitted that “the evidence to support his claim for breach of the Privacy Act, breach of fiduciary duty, medical negligence, and discrimination would have [been] found in the documentary disclosure of the Defendant Physicians. However, in his oral submissions he did not identify the type of disclosure that he would have expected to be made available to him that was relevant to the issues before the Deputy Judge.
[36] The Plaintiff Mr. Mehedi also submits that he was only given half an hour to make his arguments on the motion to strike his claim and this time limit denied him procedural fairness.
[37] A judge may control the process to focus submissions and use court resources with both fairness and economy. There were several places during the hearing of the motion in which the Deputy Judge explained the processes and limits on the jurisdiction of the Small Claims Court. At page 16 of the transcript, the Deputy Judge explained to the Plaintiff that she was helping to focus his submissions. There was a further explanation at page 18 from the Deputy Judge about the limits on the jurisdiction of the court to monetary disputes. At page 27, the Deputy Judge explained that much of the evidence being discussed would be for a trial, while this was a motion to strike out his claim. I find that Deputy Judge Timms did not unfairly limit Mr. Mehedi’s arguments. Her interventions were intended to assist him with the process and the limits on the jurisdiction of the Small Claims Court.
[38] I conclude that the Plaintiff was not denied procedural fairness during the hearing of the motion to strike, that he was accommodated and assisted appropriately by the Deputy Judge in accordance with his status as a self-represented party and that there was no additional disclosure required to be made to him at this stage of the proceedings that would have affected the outcome or assisted him in responding to the motion.
Issue c: Did the Deputy Judge Err In Her Determination Regarding the Burden of Proof?
[39] The Plaintiff submits that the Deputy Judge improperly shifted the burden of proof to him on the motion to strike. He relies on case law for this proposition including Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 regarding the test for Human Rights Code and on Dabic v. Windsor Police Service, 2010 HRTO 1994. Neither of these cases apply to the present appeal. Hill sets out the test for proving a human rights complaint in British Columbia; it has no application to the appropriate burden of proof in a motion to strike a claim in Small Claims Court. Dabic sets out the burden of proof and when the need for a summary hearing arises in the context of a human rights complaint. It does not apply to these circumstances.
[40] The Deputy Judge correctly instructed herself on the motion to strike as to the nature of the claim, the prevailing test from Rule 12.02 and applied the facts to the test. There is no suggestion in the reasons or during oral argument that she required the Plaintiff to disprove the allegation made by the Defendants that there was no cause of action. The Defendants presented the motion, the Deputy Judge heard arguments on all aspects of the issues raised by the motion and took the matter under reserve. She provided detailed reasons explaining her decision to strike the claim.
[41] The Deputy Judge did not err regarding the burden of proof.
Issue d: Did the Deputy Judge Fail to Provide Adequate Reasons for her Decision?
[42] On a motion to strike a claim, a judge is required to provide reasons that explain why the claim is being struck, which must be more than merely conclusory: Abbasbayli v. Fiera Foods Company, 2021 ONCA 95 at paras. 51-52.
[43] The motion judge explained her reasons for decision in writing. Her reasons accomplished what they were required to do, and although the Plaintiff disagrees with the outcome, the Deputy Judge gave him the reasoning for her conclusions in seven pages of reasons.
[44] The Deputy Judge did not fail to provide adequate reasons for her decision.
Other Issues: The Amended Notice of Appeal and other Relief Sought on Appeal
[45] On November 29, 2022, the Plaintiff submitted a document for this appeal titled “Fresh as Amended Notice of Appeal.” In that document, he appears to argue that Deputy Judge Timms stated at the conclusion of the motion that “her decision …to take time to read the material” means that the parties should convene a settlement conference. I would not give effect to this submission. Deputy Judge Timms reserved her decision after hearing the motion on May 27, 2022 and released her decision and reasons on August 9, 2022. Deputy Judge Timms dismissed the claim in its entirety and gave reasons for doing so. Her involvement in the claim is now finished.
[46] On this appeal, the Plaintiff has submitted that he is entitled to mediation or to a summary hearing. However, he did not make these arguments before the Deputy Judge. This is an appeal and thus an inquiry into the merits of the grounds of appeal from the decision of the Deputy Judge.
CONCLUSION
[47] I thank Mr. Mehedi and Ms. Goldfarb for their submissions on this appeal. I recognize that this is not the outcome that Mr. Mehedi was seeking. However, after reviewing the transcript, the reasons, and the written arguments from the parties, as well as hearing the oral submissions, I must dismiss the appeal.
[48] The Defendants seek $5,000 in costs. Mr. Mehedi seeks $2,000 in costs. In the circumstances, I order that Mr. Mehedi pay $2,000 in costs to the Defendants.
___________________________ Leiper J.
Date of Reasons for Judgment: June 19, 2023
Date of Release: June 30, 2023
CITATION: Mehedi v. Mansour, 2023 ONSC 3683
DIVISIONAL COURT FILE NO.: 500/22 DATE: 20230619
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
GOLAM MEHEDI
Plaintiff/ Appellant
– and –
ALI ABDULLAH MANSOUR and
MAJDA CERKVENIK
Defendants /Respondents
ORAL REASONS FOR JUDGMENT
Leiper J.
Date of Reasons for Judgment: June 19, 2023
Date of Release: June 30, 2023
[^1]: The Rule reads as follows:
12.02(1) The court may, on motion, strike out or amend all or part of any document that,
(a) discloses no reasonable cause of action or defence;
(b) may delay or make it difficult to have a fair trial; or
(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.
(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:
In the case of a claim, order that the action be stayed or dismissed.
In the case of a defence, strike out the defence and grant judgment.
2.1 In the case of a motion, order that the motion be stayed or dismissed.
- Impose such terms as are just.