COURT FILE NO.: CV-12-443837
DATE: 20120606
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Raymond Kim -- Plaintiff
AND:
Kmiec -- Defendant
BEFORE: Justice Kevin Whitaker
COUNSEL: No one appearing for the Plaintiff
Michelle Gibbs for the Defendants
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 26th, 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. Vieira CV-12-443944) today June 6, 2012 commencing at 9:00AM. Mr. Kim was present in the court when this direction was made. He has since then been provided with a copy of my Directions which confirm the scheduling of today’s matter. Mr. Kim has been 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 matter now before the court consists of the defendant’s motion to strike under Rules 21 and 25. Mr Kim has filed no material on the motion.
[8] There are three grounds relied upon by the defendant.
[9] 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 CanLII 5761 (ON CA), 2000 O.J. No. 2522 at paragraphs 29 and 30.
[10] 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).
[11] On the third ground, I find that 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.
[12] Any one of the three grounds would be sufficient strike the claim.
[13] The plaintiff’s claim is struck.
[14] 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.
Costs
[15] 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.
[16] As the successful party, the defendant is entitled to her costs inclusive of taxes and disbursements fixed at $8000.00 payable forthwith.
[17] Order accordingly. The defendant is not required to obtain the plaintiff’s approval of the order as to form and content.
Date: June 6, 2012 Whitaker, J.