COURT FILE NO.: C-1193-08
DATE: 2012-05-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ms. Samuray Diler
Plaintiff
– and –
Mr. Dr. David Stanley Heath
Defendant
Self-Represented
Kelly C. Tranquilli, for the Defendant
HEARD: April 30, 2012
The honourable Mr. Justice D. A. Broad
[1] The Plaintiff Ms. Diler commenced this action on December 29, 2008 against the Defendant Dr. Heath, claiming damages in the sum of $100,000.00, alleging that Dr. Heath was negligent and failed to obtain informed consent in providing psychiatric treatment to Ms. Diler from October 3, 2001 to January 11, 2002.
[2] At the material time Dr. Heath was the consultant psychiatrist with Hazelglen Outreach Mental Heath Services (“Hazelglen”), an outpatient treatment facility located in Cambridge Ontario, and affiliated with Grand River Hospital. Hazelglen offered at the time, and continues to offer, a short-term intensive mental health home treatment program for patients experiencing an acute mental health crisis who would otherwise require inpatient hospitalization. The treatment is delivered through regular home visits and telephone contact by registered nurse case managers under the supervision and guidance of the consultant psychiatrist.
[3] Ms. Diler was brought to Cambridge Memorial Hospital by Police on or about October 2, 2001 as a result of Ms. Diler contacting them about paranoid and delusional concerns. After refusing admission to the hospital for further assessment or treatment, Ms. Diler was referred to Hazelglen for treatment and support on an outpatient basis.
[4] In her Statement of Claim Ms. Diler alleges, in summary, that she was adversely affected by severe side effects of the anti-psychotic medication which was prescribed to her by Dr. Heath, that he did not provide her with proper treatment and that he failed to inform her of certain side effects of the medication.
[5] Dr. Heath has defended the action, which has proceeded through two days of examination for discovery of Ms. Diler, and lengthy written discovery of Dr. Heath. Dr. Heath now moves for summary judgment, seeking dismissal of the action on the basis that there is no genuine issue requiring a trial with respect to Ms. Diler’s claim. He also seeks an order under section 140(1) of the Courts of Justice Act, RSO 1990, c. C.43 that Ms. Diler may not initiate any further proceedings in any court, nor continue any previously instituted proceedings in any court, except by leave of a judge of the Superior Court of Justice (hereinafter called, for convenience, a “vexatious proceedings order”).
ISSUES
[6] The issues on the motion are as follows:
a. Can the full appreciation of the evidence and the issues that is required to make dispositive findings be achieved by a summary judgment, or can this full appreciation only be achieved by way of a trial?
b. Is there a genuine issue requiring a trial respecting Ms. Diler’s allegations of negligence and failure to obtain informed consent to treatment against Dr. Heath?
c. Should the Court order that Ms. Diler institute no further proceedings nor continue any ongoing proceedings in any court, except with leave?
DISCUSSION
(a) Test for Summary Judgment
[7] The amendments to Rule 20 of the Rules of Civil Proceedings, which came into effect on January 1, 2010, granted new powers to the presiding judge on a motion for summary judgment which were not available due to the previous line of authority on the Rule. These powers now specifically permit the motions judge to weigh the evidence, to evaluate the credibility of the deponents of affidavits and to draw reasonable inferences from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.
[8] The Court of Appeal in the case of Combined Air Mechanical Services Inc. v Flesch 2011 ONCA 764, [2011] OJ No. 5431 (CA) recently carried out a comprehensive review of the effect and scope of the amendments to Rule 20. In the course of doing so, the Court of Appeal determined, para. 50, that, in deciding if the new powers should be used to weed out a claim as having no chance of success or to resolve all or part of an action, the motion judge must ask whether the full appreciation of the evidence and issues that is required to make dispositive findings can be achieved by way of summary judgment, or can this appreciation only be achieved by way of a trial.
[9] The Court of Appeal in Combined Air confirmed that, in adopting the full appreciation test, it continued to recognize the established principles regarding the evidentiary obligations on a summary judgment motion, including the proposition that each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried. In this way, a party is “not entitled to sit back and rely upon the possibility that more favourable facts may develop at trial.” It is noted that the Court did add a caveat to the “best foot forward” principle in cases where the motion for summary judgment is brought early in the litigation process, i.e. before production of documents and oral discovery is completed [see para. 56-57]. As indicated above, discoveries have been completed in this case, so the caveat on the “best foot forward” principle is not applicable here.
(b) Application of Test for Summary Judgment
[10] Ms. Diler has not filed any Affidavit material in response to the motion, and in particular, has not served any expert report which would support the allegations of negligence and failure to obtain informed consent set forth in the Statement of Claim. The record indicates that the need to support her case with expert evidence was brought home to Ms. Diler by counsel for Dr. Heath on numerous occasions commencing with her examination for discovery on May 21, 2010. At question 267 of the transcript Ms. Diler testified as follows:
Well I’m planning to ask a few more doctors too because I’m just trying to search the expert evidence because in my, in my other experience my other case failed just because I didn’t have expert report. Like whatever research you bring judge is just asking for expert report so I think I am seeing it is a must in malpractice cases.
[11] Ms. Diler admitted later, at question 364 of the transcript, that she acknowledged the need to obtain an expert report with respect to the claim that Dr. Heath did not explain to her the side effects of the medication relating to neuroleptic malignant syndrome.
[12] Counsel for Dr. Heath, in serving the defendant’s expert report of Dr. Mark J. Berber on June 1, 2011, reminded Ms. Diler of the need to provide a written report of an expert qualified in the area in order to support her case.
[13] In argument Ms. Diler did not indicate that she intended to obtain an expert’s report, but rather stated that she intended to provide her own affidavit at trial as to what the psychiatrist who treated her in Turkey in early 2002 advised her concerning the care and treatment she had received from Dr. Heath.
[14] On the question of her failure to file an affidavit in response to the motion for summary judgment Ms. Diler advised in argument that she had attended another court proceeding in which she had witnessed a lawyer making submissions to the court without an affidavit and made the assumption, based upon that experience, that she was not required to submit an affidavit, notwithstanding that the defendant had served a number of affidavits in support of its motion. It is noted that there is nothing in the record to indicate that counsel for Dr. Heath in this proceeding did anything to contribute to Ms. Diler arriving at this assumption.
[15] Ms. Diler advised that she graduated with an engineering degree in 1993 and immigrated to Canada to study engineering at the master’s level and eventually to obtain a Ph.D. She described herself as a researcher and scientist. She indicated that in 2001, after beginning studies at the University of Waterloo, she developed a mental illness which was diagnosed as bi-polar disorder, a diagnosis with which she agreed. As indicated above, she was referred to Hazelglen. She stated that as a result of the medication that she was prescribed by Dr. Heath she developed “jaw-jerking,” “hand-shaking” and extreme restlessness. Ms. Diler advised that these symptoms lasted twelve to thirteen days. Ms. Diler confirmed that when she stopped taking the medication the side-effects went away within 48 hours and that she has not suffered any known permanent residual effects from the mediation. Although she stated that she suffers occasional migraine attacks, she cannot say that they are related to the medication prescribed to her by Dr. Heath.
[16] Ms. Diler offers six reasons why, in her view, the action should be permitted to proceed to trial:
She was subjected to “verbal sexual abuse” while under treatment at Hazelglen;
The case managers/nurses at Hazelglen gave a controlled drug to her (namely Clonazepam) without any doctor’s involvement or supervision;
She intends to put forward the opinion of the doctor who treated her in Turkey, following the completion of her treatment at Hazelglen, with respect to alleged deficiencies in the Hazelglen treatment, by way of her own Affidavit or her own verbal testimony at trial;
There are many other patients who suffer side-effects from anti-psychotic medication and she intends to adduce evidence at trial consisting of medical journals and articles which would indicate that Dr. Heath’s treatment was inappropriate;
Her suffering was great as a result of the side-effects from the medication; and
The Defendant’s expert report of Dr. Mark J. Berber is very weak, noting that it was done ten years after her treatment at Hazelglen and that Dr. Berber did not examine her.
[17] It is noted that the allegations of “verbal sexual abuse” and the administration of medication without a doctor’s direction or supervision appear nowhere in the Statement of Claim and no motion to amend the Statement of Claim to add those claims has been brought.
[18] It appears to be well settled in the authorities that, to establish a breach of the standard of care to support a claim for medical negligence, a plaintiff is required to lead expert evidence of a physician, practicing in the same field as the defendant, attesting to the defendant’s negligence.[see Kurdina v. Gratzer [2010] ONCA 288 at para. 2.] In Kurdina the Court of Appeal made it clear that to avoid summary judgment, the defendant is required to adduce some expert opinion evidence from a qualified practitioner in the same field as the defendant supporting her claim that the care she received fell below the applicable standard of care. Like this case, the plaintiff in Kurdina was self-represented and was suing for alleged negligence in psychiatric care provided to her by the defendants.
[19] The principle that, in order to avoid summary judgment in a medical malpractice case, the plaintiff must adduce relevant expert opinion evidence is supported by the cases of Claus v Wolfman (1999) 1999 CanLII 14824 (ON SC), 52 O.R. (3d) 673, appeal dismissed, 2000 CanLII 22728 (ON CA), 52 O.R. (3d) 680 (CA) and Suserski v. Nurse 2006 CarswellOnt 7686 (SCJ). Suserski also confirms that this principle also applies where informed consent is in issue (see para. 31).
[20] In the case of Samuel v Ho 2009 CarswellOnt 169 (SCJ), Kelly, J. stated at para. 28:
As with allegations surrounding a physician’s skill in performing a procedure or in providing post-operative care, an allegation of lack of informed consent is an allegation of negligence which must be supported by expert evidence. In order to raise a triable issue relating to informed consent, the plaintiff must lead expert evidence of a physician setting out the risks associated with a particular procedure that are considered material (given their probability of occurrence and severity), and attesting to the defendant’s breach of the standard of care by failing to disclose a material risk(s).
[21] As indicated by Pitt, J. in Claus v Wolfman, on a defence motion for summary judgment in a case such as this, a defence medical report is not an essential ingredient, and the court may grant summary judgment even without an expert report of the defendant. However, as was the case in Claus v Wolfman, Dr. Heath has provided the expert report and affidavit of Dr. Berber, which do provide comfort to the court.
[22] Although Dr. Berber did not examine Ms. Diler, he did, in his report, recite the extensive documentary record which he reviewed, and concluded, inter alia, that “overall, the care and attention given meet the requirements of good psychiatric care” and that “the medications were carefully prescribed and that the choice of medications and their dosage was appropriate.”
[23] Ms. Diler offered three reasons why she has not obtained an expert’s report, as follows:
The alleged mistakes of Dr. Heath should be obvious to a layperson, particularly since Clonazepam is a controlled drug;
There were two nurses working with Dr. Heath who were giving medications without a doctor’s direction and involvement; and
One of the nurses acted inappropriately by verbally sexually abusing her.
[24] It is noteworthy that when questioned on the point in argument, Ms. Diler did not indicate any intention to obtain an expert’s report, stating, as indicated above, that she intends to try to adduce hearsay evidence from the doctor who treated her in Turkey in 2002.
[25] In my view, the expanded powers granted to motions judges by the amendments to Rule 20, as interpreted by the Court of Appeal in Combined Air, do not relax the onus on a plaintiff in a medical malpractice case to adduce relevant opinion evidence to support her case, in response to a defence motion for summary judgment. As stated by the court in Combined Air, at para. 37 “the amended rule permits the motion judge to decide the action where he or she is satisfied that by exercising the powers that are now available on a motion for summary judgment, there is no factual or legal issue raised by the parties that requires a trial for its fair and just resolution”.
[26] At paragraph 38, the court emphasized that “the purpose of the new rule is to eliminate unnecessary trials, not eliminate all trials.” The question is whether the summary judgment process provides an appropriate means for a fair and just determination of the dispute before the court. Where, as here, the plaintiff has not brought forward an expert’s report to support her allegations of negligence and lack of informed consent, and certainly where there is no reasonable prospect of such an expert’s report coming forward before trial, a trial is unnecessary, and the action may be fairly and justly resolved by a summary dismissal.
(c) Vexation Proceedings
[27] The record shows that Ms. Diler has commenced numerous proceedings against various health care providers, including case managers/nurses involved with her treatment at Hazelglen. These proceedings include the following:
Defendant/Respondent
Date Commenced
Court/Tribunal
Nature
Disposition
Cathy Beebe – Hazelglen Case Mgr.
March 6, 2009
Small Claims Court
Alleged failure to obtain informed consent and to monitor side effects of medication
Dismissed at trial with costs of $2,000.00 awarded against Ms. Diler
Pauline Potzold – Hazelglen Case Mgr.
May 25, 2009
Superior Court of Justice
Alleged failure to advise of all possible risks of medications and failure to detect side effects
Action abandoned November 17, 2010
Dr. Edward Matti and Cambridge Memorial Hospital
March 2, 2010
Superior Court of Justice
Application for judicial review re a decision of Human Rights Tribunal of Ontario re alleged discriminatory treatment
April 8, 2010 leave refused and remainder of application referred to Divisional Court. Costs awarded against Ms. Diler in the sum of $4,500.00 application subsequently dismissed administratively by Divisional Court May 2, 2011, with costs against Ms. Diler in the sum of $750.00
Dr. Sanjay Uppal - Dentist
January 31, 2012
Small Claims Court
Alleged negligence in dental treatment
Dismissed on motion for summary judgment May 7, 2010 with costs against Ms. Diler in the sum of $400.00. Appeal by Ms. Diler to Divisional Court abandoned August 25, 2010
Dr. Sanjay Uppal
October 12, 2010
Small Claims Court
Defendant’s claim for resultant damages
Costs awarded against Ms. Diler totaling $300.00
Dr. Janet Sproat and Cambridge Memorial Hospital
January 6, 2011
Small Claims Court
Alleged malpractice for prescribing medication inappropriately on two occasions
Dismissed on settlement conference
Dr. Gurpreet Singh Sidhu and Cambridge Memorial Hospital
December 29. 2008
Small Claims Court
Claim for alleged negligent psychiatric care
Claim discontinued April 8, 2011
Grand River Hopital (Hazelglen Outreach Mental Health Service)
March 9, 2009
Human Rights Tribunal of Ontario
Alleged discrimination in provision of psychiatric services
Dismissed August 6, 2010
Cambridge Memorial Hospital (Dr. Edward Matti added party)
March 4, 2010
Human Rights Tribunal of Ontario
Alleged discrimination in the provision of psychiatric treatment
Application dismissed for delay December 11, 2009, Application for Reconsideration dismissed February 19, 2010
Cambridge Memorial Hospital
July 6, 2010
Human Rights Tribunal of Ontario
Alleged discrimination on the basis of disability in nurses contacting the humane society and giving away her pet cat
Dismissed June 1, 2010
Grand River Hospital
May 3, 2010
Human Rights Tribunal of Ontario
Applicant issued notice of intention to abandon the Application and Application therefore dismissed January 5, 2011
Cambridge Memorial Hospital
Human Rights Tribunal of Ontario
Alleged discrimination relating to the prescribing of medication
Application dismissed for delay September 15, 2011
[28] Section 140(1) of the Courts of Justice Act provides as follows:
Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,
(a) instituted vexatious proceedings in any court; or
(b) conducted a proceeding in any court in a vexatious manner,
the judge may order that,
(c) no further proceeding be instituted by the person in any court; or
(d) a proceeding previously instituted by the person in any court not be continued,
except by leave of a judge of the Superior Court of Justice. R.S.O. 1990, c. C.43, s. 140 (1); 1996, c. 25, s. 9 (17).
[29] In the leading case of Lang Michener Lash Johnston v Fabian 1987 CanLII 172 (ON SC), 1987 CarswellOnt 378, Henry J. enunciated the applicable principles flowing from the jurisprudence on section 140 of the Courts of Justice Act, at para. 20, as follows:
“From these decisions the following principles may be extracted:
(a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.”
[30] In the recent case of Bishop v Bishop 2011 ONCA 211 (leave to appeal to SCC dismissed) the Court of Appeal, after reaffirming the principles set forth in Lang Michener, confirmed that the institution of non-judicial proceedings can, depending on the circumstances, constitute evidence from which a court may infer that court proceedings commenced by the litigant are not bona fide but the product of someone who is unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped.
[31] There appears to be no threshold number of proceedings which must have been commenced in order to engage the application of the section, but rather the litigant must be shown to have “persistently” and “without reasonable grounds” instituted vexatious proceedings (plural) or conducted a proceeding (singular) in a vexatious manner.
[32] As appears from the record, Ms. Diler has persistently and without reasonable grounds, as evidenced by either the dismissal or abandonment of each of the proceedings, brought proceedings against various professionals who have provided her with health care services. This action, for instance, seeks to roll forward against Dr. Heath substantially the same complaints, arising from the same circumstances, as were asserted in the actions against Ms. Beebe, Ms. Potzold, Dr. Matti and Cambridge Memorial Hospital, and which were either dismissed or abandoned, and in respect of which there are outstanding costs awards. It is noted that in correspondence in this proceeding Ms. Diler has professed herself to be unconcerned with costs awards against her as she is judgment-proof. Moreover, Ms. Diler has been shown, in the conduct of this proceeding, to have engaged in what can be characterized as vexatious behavior by, amongst other things, threatening to prolong the proceedings unreasonably, attacking the integrity and competence of counsel for Dr. Heath, attacking the integrity of Dr. Heath and threatening litigation against the Defendant’s expert witness Dr. Berber and attacking his integrity and objectivity.
[33] In argument, Ms. Diler maintained that she has not brought the various proceedings for herself, but rather did so on behalf of, and for the benefit of, many other patients with mental health issues and conditions who have been harmed by inappropriate and harmful psychiatric treatment, including adverse side effects of anti-psychotic drugs. However laudable Ms. Diler’s motives may be to advocate on behalf of other vulnerable individuals, her use of the litigation process to do so, rather than other available forums and avenues, if left unchecked, will continue to have a serious impact on those named as defendants in her proceedings and ultimately on the judicial system as a whole. Section 140 of the Courts of Justice Act is directed towards the reasonable protection of those who may be caught up as named defendants and respondents in proceedings determined to be vexatious, as well as to the protection of the public interest in ensuring that judicial and administrative resources provided by society for the peaceful resolution of disputes are utilized efficiently and effectively and will continue to be there for those that legitimately need them.
[34] It is noted that the imposition of an order under section 140 will not have the effect of denying Ms. Diler access to the court, but rather will simply establish a first step by which the court will have an opportunity to vet the bona fides and merits of a proposed proceeding before permitting it to proceed. I am satisfied that it is appropriate and in the interests of justice to make such an order against Ms. Diler in this case.
DISPOSITION
[35] For the reasons set forth above, it is ordered and directed as follows:
a) The within action is dismissed.
b) No action, originating process, proceeding, motion or appeal of any kind may be continued or instituted by Samuray Diler, directly or indirectly in any Court in Ontario except with leave of a Judge of the Superior Court of Justice pursuant to s. 140(3) of the Courts of Justice Act.
c) In the event that Samuray Diler commences any proceeding or continues any proceeding in any Court in Ontario without first obtaining an Order granting her leave to do so, the proceeding shall be immediately stayed upon the filing of a copy of this Order with the Court in which such proceeding was commenced.
d) The approval of form and content of this Order by Samuray Diler is dispensed with.
[36] The parties may make brief written submissions (not to exceed five double-spaced typed pages, not including costs outline) with respect to costs. Each party’s submissions shall be served on the other party and filed, with proof of service, with the office of the Judge’s Secretaries for the Superior Court of Justice at Kitchener. Counsel for Dr. Heath shall provide her submissions by June 4, 2012 and Ms. Diler shall provide hers by June 18, 2012.
D. A. Broad J.
Released: May 22, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ms. Samuray Diler
Plaintiff
– and –
Mr. Dr. David Stanley Heath
Defendant
REASONS FOR JUDGMENT
D. A. Broad J.
Released: May 22, 2012