COURT FILE NO.: CV-12-447652
DATE: 20121015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pedro-Kandolo-Kwabanza, Plaintiff
AND:
The College of Physicians and Surgeons of Ontario (The Committee of the Fininal Decision Maker), Defendant
BEFORE: Pollak J.
COUNSEL:
Self-represented, Plaintiff
Michelle Gibbs, for the Defendant
HEARD: September 24, 2012
ENDORSEMENT
[ 1 ] The Defendant, The College of Physicians and Surgeons of Ontario (the “College”) brings this motion to strike out the Statement of Claim of the Plaintiff Pedro-Kandolo-Kwabanza (“Mr. Kwabanza”), without leave to amend, and/or to dismiss this action pursuant to Rules 21 and/or 25 of the Rules of Civil Procedure (the “ Rules ”).
[ 2 ] In this motion the College requests that:
(i) the Statement of Claim be struck out under Rule 21.01(1)(b) of the Rules , without leave to amend, on the ground that it discloses no reasonable cause of action;
(ii) the action be dismissed and/or the Statement of Claim struck out as an abuse of process in accordance with Rules 21.01(3)(d) and/or 25.11.
[ 3 ] In support of its motion, the College relies on the following grounds:
(a) the Statement of Claim discloses no reasonable cause of action;
(b) the documents and decisions that Mr. Kwabanza relies upon are not admissible as evidence as a result of the provisions of s. 36(3) of the Regulated Health Professions Act , 1991, S.O. 1991, c. 18, as amended (the “RHPA”);
(c) the College is immune from proceedings for damages with respect to acts carried out in good faith in the exercise or intended exercise of its statutory duties, pursuant to s. 38 of the RHPA ;
(d) the College is immune from liability resulting from decisions made by the Inquiries, Complains and Reports Committee (the “ICRC”), pursuant to the common law doctrine of judicial or adjudicative immunity;
(e) the College owes no individual duty of care to Mr. Kwabanza;
(f) the College is not vicariously liable for the alleged actions or conduct of its physician members; and/or
(g) the action is an abuse of process;
(h) Rules 21.01(1)(b), 21.01(3)(d), 25.06 and 25.11.
[ 4 ] The College regulates the practice of medicine in the Province of Ontario pursuant to the Medicine Act , 1991 , the RHPA , the Health Professions Procedural Code , being Schedule 2 to the RHPA (the “ Code ”), the regulations promulgated thereunder, and the College’s by-laws, as amended (collectively referred to as “the College’s Governing legislation”).
[ 5 ] The College investigates complaints about the alleged conduct or actions of its members. Its statutory duty is to serve and protect the public interest.
[ 6 ] Pursuant to s. 26 of the Code , a panel of the ICRC investigates a complaint, considers submissions of its member and makes reasonable efforts to consider all records and documents that it considers relevant to the complaint, in accordance with the Code . A copy of the decision and reasons must be given to the complainant and the member.
[ 7 ] Mr. Kwabanza had the right to request a review of the ICRC’s decision and reasons by an independent statutory review tribunal, the Health Professions Appeal and Review Board (“HPARB”).
[ 8 ] Mr. Kwabanza claims $18,000,000 in damages, caused by the alleged malpractice of his physician and the College’s alleged refusal to take action against that physician. His Statement of Claim alleges that the College did not properly investigate Mr. Kwabanza’s complaint and that the College’s investigation process was not transparent, in that the College refused to share certain documents with him that the College had received from others in the course of the College’s complaints investigation process.
[ 9 ] The Statement of Claim further alleges that the College “did not play its legal role as a regulator of conflicts”; did not respect the College’s policy statement relating to consent to medical treatment, failed to discover alleged negligence, malpractice, lies, defamation and distortion of his medical information on the part of the subject physician; and that the ICRC rendered an unfair decision and reasons.
[ 10 ] The College submits that the acts complained of in the Statement of Claim arise from the investigation and disposition of Mr. Kwabanza’s Complaint.
[ 11 ] It is necessary to specifically consider the allegations in all of the paragraphs of the Statement of Claim where the Committee is referred to. The Committee is referred to in the following paragraphs of the Statement of Claim:
1-5;
11-21;
25-27;
45;
48-49;
68;
74-75;
84-86;
92-93;
99-100;
105;
112-117;
126-127;
129-131;
142-144;
168-169;
184;
197-205; and
[ 12 ] A review of these allegations against the Committee shows that the claims against the College are that “the College did not properly investigate Mr. Kwabanza’s complaint, and that the College’s investigation process was not transparent, as the College would not disclose documents it had received from others in the course of its complaints investigation process.
[ 13 ] The requirements of Rule 21.01(2)(b) are properly described by the College as:
The test on a motion under Rule 21.01(1)(b) is whether it is “plain and obvious” that the Statement of Claim discloses no reasonable cause of action. No evidence is admissible, and it must be assumed that the facts pleaded are true, unless they are patently ridiculous or incapable of proof.
[ 14 ] The College argues that it is plain and obvious that Mr. Kwabanza’s action cannot succeed, because:
a. the Statement of Claim relates solely to Mr. Kwabanza’s alleged complaint to the College and its disposition. To succeed, Mr. K would have to rely on the ICRC’s Decision and Reasons, as well as evidence related to the alleged investigation, all of which is inadmissible by virtue of s. 36(3) of the RHPA .
b. Mr. Kwabanza does not plead bad faith or malice. Pursuant to s. 38 of the RHPA , the College is immune from an action for damage for all acts performed in good faith in the execution or intended execution of the College’s statutory duties under the RHPA .
c. The college is immune from liability in respect of decisions made by the ICRC pursuant to the common law doctrine of judicial or adjudicative immunity, applicable to statutory bodies exercising quasi-judicial functions.
d. The College does not owe Mr. Kwabanza an individual duty of care.
e. The College is not vicariously liable for the alleged acts or conduct of its members.
[ 15 ] Mr. Kwabanza’s response throughout the hearing to the submissions of the College was that the allegations made in his Statement of Claim are true. He did not make any submission in response to the arguments made by the College. The Court advised Mr. Kwabanza at the hearing what the issues were under consideration in this motion. However, Mr. Kwabanza continued to assert that all of the allegations he has made in his Claim all true and that it would be grossly unfair if a Court did not find in his favour. He emphasized that he could not get a lawyer and that he was not trained in the law.
Is it Plain and Obvious that this Action cannot succeed?
[ 16 ] The College relies on immunity from liability for all acts and inaction carried out in the furtherance of its statutory objects, powers and duties pursuant to s. 38 of the RHPA , which provides that:
- No action or other proceeding for damages shall be instituted against (…) a College, (…) employee, agent or appointee of (…) a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.
[ 17 ] From a review of the Statement of Claim it is clear that Mr. Kwabanza does not plead bad faith on the part of the College. He pleads unfairness but not bad faith.
[ 18 ] The College also submits that its disposition of Mr. Kwabanza’s complaint is protected from this Claim by reason of adjudicative or judicial immunity.
[ 19 ] The jurisprudence relied on by the College provides this Court with relevant guidance. I accept these submissions made by the College with respect to its immunity. On this ground, the Claim against the College must be struck as it is plain and obvious that it cannot succeed.
[ 20 ] The College further submits that it does not owe an individual duty of care to Mr. Kwabanza. It relies on jurisprudence, which in my opinion, supports these submissions that it does not owe a duty of care to individual members of the public, for any acts or omissions done in good faith in accordance with the College’s Governing Legislation. Mr. Kwabanza also does not plead that the College was negligent. As the College owes no individual duty of care to Mr. Kwabanza, this is another ground why the claims against the College must be struck.
Vicarious Liability
[ 21 ] Further, the College relies on relevant jurisprudence that establishes it is not vicariously liable for the alleged actions or conduct of its members.
[ 22 ] On the basis of the above-noted submissions and the jurisprudence referred to by the College, I find that it is “plain and obvious” that the Statement of Claim discloses no reasonable cause of action against the College. I order that the Statement of Claim be struck out. The College submits that there should be no leave to amend as amendments could not remedy the defects in the Claim. I agree and order that there be no leave to amend.
[ 23 ] The College requests costs of $9,500 on a partial indemnity basis.
[ 24 ] Mr. Kwabanza requests costs of $500. He submits that he has no money to pay a costs award and that he is a victim of the acts of the College. It is therefore not fair to award any costs to the College to be paid by him.
[ 25 ] I have reviewed the Bill of Costs of the College and have considered the submissions on costs made by the College and Mr. Kwabanza. I have considered all the factors set out in the Rules and in the Boucher case. I find that such amount is reasonable for the costs of the College.
[ 26 ] In the circumstances of this case, I find that it would be reasonable for Mr. Kwabanza to expect that if he were unsuccessful in his action that he would have to pay costs of $9,500 on a partial indemnity basis. I understand that Mr. Kwabanza has advised the Court of his circumstances and that he cannot pay such amount. The College is however still entitled to an award of costs of $9,500, (which includes disbursements and all applicable taxes) and I so order.
Pollak J.
Date: October 15, 2012