COURT FILE NO.: CV-12-443944

DATE: 20120606

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raymond Kim -- Plaintiff

AND:

Theron Vieira -- Defendant

BEFORE: Justice Kevin Whitaker

COUNSEL:
No one appearing for the Plaintiff
Michelle Gibbs for the Defendant

HEARD: June 6, 2012

ENDORSEMENT

[ 1 ] This is one of 12 actions brought by the plaintiff Mr. Kim that have been assigned to me for case management. These actions are brought against a variety of health professionals and/or administrators and mainly on the basis of medical or professional malpractice.

[ 2 ] Later this month on June 19, 2012, I will hear a vexatious litigant motion brought against Mr. Kim in Foote v. Kim (Application No. CV-12-450582).

[ 3 ] On Thursday April 26 th , I convened a hearing to deal with all case management files (including the one before me now), providing directions. In my case management Directions at paragraph 2, I ordered that the matter now before me would be heard with another matter ( Kim v. Kmiec CV-12-443837) today June 6, 2012 commencing at 9:00AM. Mr. Kim was present in the court when this direction was made. He has since been provided with a copy of my Directions which confirm the scheduling of today’s matter. Mr. Kim was served with the defendant’s motion materials.

[ 4 ] Mr. Kim did not appear at 9:00 AM today and I deferred the matter to 9:30 to provide him with additional time to arrive at the court. Court staff attempted to call Mr. Kim on a phone number provided by him, but could not reach him.

[ 5 ] Opposing counsel advised court staff that Mr. Kim had told her yesterday that he would be appearing.

[ 6 ] Mr. Kim did not appear by 9:30 and I commenced the hearing at that time in his absence.

[ 7 ] The matters now before the court consist of a motion for default judgment brought by Mr.Kim and a motion to strike under Rules 21 and 25 brought by the defendant. Mr Kim asks that the defence by the defendant be struck and that default judgment be granted accordingly.

[ 8 ] The plaintiff has not filed a motion record or any affidavit material. He did file a brief two page factum which addresses his motion for default judgment and the defendant’s motion to strike.

[ 9 ] Having closely reviewed the factum which is the only material filed by the plaintiff, I conclude there is no basis for striking the defence. Even assuming that Mr. Kim was actually intending to bring this motion under Rule 20 for summary judgment, there is a complete absence of any evidence (or submissions) that would permit me to grant the plaintiff summary judgment.

[ 10 ] I have no difficulty in concluding that the plaintiff’s motion for default judgment (or summary judgment if that was his intention) should be dismissed.

[ 11 ] I now turn to the defendant’s motion to strike the claim without leave to amend.

[ 12 ] There are three grounds relied upon by the defendant.

[ 13 ] The first ground is that the entirety of the evidence that would be relied upon by the plaintiff is not admissible in a civil action by virtue of section 36(3) of the Regulated Health Professions Act 1991 (“RHPA”) . I accept and rely on the decision of the Court of Appeal in MF Sutherland and NS Sutherland, 2000 5761 (ON CA) , 2000 O.J. No. 2522 at paragraphs 29 and 30 .

[ 14 ] As to the second ground, I conclude that there is no allegation of bad faith and therefore immunity from any liability under section 38 of the RHPA (see Rogers and Faught full cite at tab 7 of the book of authority).

[ 15 ] On the third ground, I find there is no duty of care pleaded which is fatal to the claim (see Rogers and the decision of Perell J. in Drugov v. Ontario, 2008, O.J. No. 696 .

[ 16 ] Any one of the three grounds would be sufficient strike the claim.

[ 17 ] The plaintiff’s claim is struck.

[ 18 ] The plaintiff’s fundamental theory of liability is inconsistent with settled principals of law. In these circumstances, it is not appropriate to grant leave to amend.

[ 19 ] The defendant provided me with a cost outline in the event of her success. I have considered the factors set out in Rule 57 which should govern the exercise of my discretion to award costs. This matter was of significant importance to the parties who are all personal litigants. I am also aware of the fact that the plaintiff is a sophisticated litigant and understands the consequences of his conduct in this matter. He is likely to have a good appreciation of what his liability for costs will be in the event of the defendant’s success on this motion.

[ 20 ] As the successful party, the defendant is entitled to her costs inclusive of taxes and disbursements fixed at $8,000.00 payable forthwith.

[ 21 ] Order accordingly. The defendant is not required to obtain the plaintiff’s approval of the order as to form and content.

Whitaker, J.

Date: June 6, 2012