ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-434382
DATE: 20121102

B E T W E E N:

TIFFANY MONTGOMERY Plaintiff - and - HOWARD SHELLY SEIDEN, M.D., SEIDEN HEALTHMANAGEMENT INC., MOIRA COSTELLO, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and DR. JEAN A. SAINT-CYR Defendants

Tiffany Montgomery , Appearing in Person
Jaan E. Lilles and Jonathan Laxer , for the Defendants Howard Shelly Seiden, M.D. and Seiden Health Management Inc.
Michelle S. Gibbs for the Defendants Moira Costello and the College of Physicians and Surgeons of Ontario
Steven G. Bosnick for the Defendant Health Professions Appeal and Review Board
Michael Hochberg for the Defendant Dr. Jean A. Saint-Cyr

HEARD: October 11, 2012

STEVENSON J.

REASONS FOR DECISION

[1] The plaintiff, Tiffany Montgomery ("Montgomery"), commenced an action against the defendants, Howard Shelly Seiden, M.D. ("Dr. Seiden"), Seiden Health Management Inc. ("Seiden Health"), Moira Costello ("Costello"), the College of Physicians and Surgeons of Ontario (“the College"), the Health Professions Appeal and Review Board ("the Board") and Dr. Jean A. Saint-Cyr ("Dr. Saint-Cyr") on or about January 11, 2012 by way of a Fresh as Amended Statement of Claim ("the Claim") where she seeks $5,000,000 in damages against the defendants.

[2] Montgomery was refused entry into the United States by a Customs and Border Protection agent on or about September 6, 2009. Montgomery was advised that she would have to obtain medical clearance in order to enter the United States. Montgomery was sent to see Dr. Seiden, a physician in Ontario, as he was a designated panel physician to the United States Consulate General.

[3] Dr. Seiden assessed Montgomery, and referred her to Dr. Saint-Cyr, a clinical psychologist. Dr. Seiden then asked Montgomery to have an additional assessment. Dr. Seiden did not provide a report to Montgomery and she was still denied entry into the United States. Montgomery complained to the College with respect to Dr. Seiden's conduct and refusal to provide a report. There was an investigation by the Inquiries, Complaints and Reports Committee (the "ICRC") who decided not to take any further action. Costello was the investigator of the complaint.

[4] Montgomery requested a review of the ICRC's decision by the Board. Montgomery then requested a reconsideration of the Board's decision and the Board, on July 20, 2011, upheld its original decision not to take further action. Montgomery commenced her claim against the defendants on January 11, 2012.

[5] All of the defendants have brought motions to strike out the portions of the Claim that pertain to them without leave to amend and/or to dismiss the action against them.

[6] Dr. Seiden and Seiden Health have brought a motion to strike Montgomery's claim on the basis that it discloses no reasonable cause of action, it is frivolous, vexatious or an abuse of process, portions of the Claim are barred by s. 36(3) of the Regulated Health Professions Act, 1991 , S.O. 1991, c. 18 (the " RHPA ") and it does not comply with the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (the " Rules ").

[7] Costello and the College have brought a motion to dismiss the action and/or strike out the Claim as against them, without leave to amend, pursuant to Rules 21 and/or 25 of the Rules . They submit that the Claim discloses no reasonable cause of action, none of the documents and decisions that Montgomery relies upon and/or refers to in her claim are admissible as evidence pursuant to s. 36(3) of the RHPA , and they are immune from proceedings for damages in respect of any and all acts carried out in good faith in the exercise or intended exercise of their statutory duties, pursuant to section 38 of the RHPA.

[8] They also submit that Montgomery has failed to properly plead bad faith in accordance with Rule 25.06(8) of the Rules , they owe no individual duty of care to Montgomery and they are not vicariously liable for the alleged actions or conduct of the College's physician members. They also contend that the action against them constitutes an abuse of process and/or a prohibited collateral attack on the decisions of the ICRC and the Board and that the action is barred based on the doctrine of res judicata , in that the matters giving rise to the allegations in Montgomery's claim were previously decided by the ICRC and the Board.

[9] The Board has also brought a motion to dismiss or stay the action against them on the grounds that it does not owe an individual a duty of care, the action is a collateral attack on the decision of the Board and the Claim does not plead a cause of action.

[10] Dr. Saint-Cyr has brought a motion to strike the Claim without leave to amend on the grounds that it does not disclose any reasonable cause of action against him. Alternatively, Dr. Saint-Cyr submits that Montgomery's claim is frivolous and/or vexatious and/or an abuse of process such that the action should be dismissed pursuant to Rule 25.01(3)(d). Dr. Saint-Cyr also submits that the Claim is scandalous and/or frivolous and/or vexatious and/or an abuse of process such that the Claim should be struck without leave to amend pursuant to Rule 25.11. Further, he submits that Montgomery's claim fails to properly plead fraud, breach of trust and/or malice, such that those allegations should be struck without leave to amend pursuant to Rule 25.06(8) .

Issues

[11] The issues are as follows:

i) Should Montgomery's claim be struck under Rule 21.01(1) (b) of the Rules , without leave to amend, on the grounds that it discloses no reasonable cause of action?

ii) Should the action be dismissed and/or claim struck out as an abuse of process and/or as scandalous, frivolous and vexatious in accordance with Rules 21.01(3)(d) and/or 25.11 of the Rules ?

[12] The relevant sections of the Rules with respect to this motion are as follows:

21.01 (1) A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

Pleading Law

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

Condition Precedent

(3) Allegations of the performance or occurrence of all conditions precedent to the assertion of a claim or defence of a party are implied in the party’s pleading and need not be set out, and an opposite party who intends to contest the performance or occurrence of a condition precedent shall specify in the opposite party’s pleading the condition and its non-performance or non-occurrence.

Inconsistent Pleading

(4) A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.

(5) An allegation that is inconsistent with an allegation made in a party’s previous pleading or that raises a new ground of claim shall not be made in a subsequent pleading but by way of amendment to the previous pleading.

Notice

(6) Where notice to a person is alleged, it is sufficient to allege notice as a fact unless the form or a precise term of the notice is material.

Documents or Conversat ions

(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.

Nature of Act or Condition of Mind

(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

Claim for Relief

(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed,

(a) the amount claimed for each claimant in respect of each claim shall be stated; and

(b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial.

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

The Test on a Motion to Strike

[13] The Supreme Court of Canada in its recent decision in R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 refined the test to be met on a motion to strike. McLachlin C.J. wrote at para. 17:

… A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse , 2003 SCC 69 , [2003] 3 S.C.R. 263, at para. 15 ; Hunt v. Carey Canada Inc. , 1990 90 (SCC) , [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38 , [2007] 3 S.C.R. 83; Odhavji Estate ; Hunt ; Attorney General of Canada v. Inuit Tapirisat of Canada , 1980 21 (SCC) , [1980] 2 S.C.R. 735.

[14] The Court in R. v. Imperial at paragraph 22 further outlined the duty on a claimant to plead the facts clearly in its claim:

A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen , 1985 74 (SCC) , [1985] 1 S.C.R. 441, at p. 455. No evidence is admissible on such a motion… It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.

[15] Strathy J., in Cerqueira v. Ontario , 2010 ONSC 3954 () , [2010] O. J. No. 3037 (S.C.J.) at para. 11 , set out general principles governing pleadings which are of assistance on this motion:

¶ It may be of assistance to the parties, and particularly to Ms. Cerqueira who is not a lawyer, to state some general principles governing pleadings. I set out some of these principles in Cavarra v. Sterling Studio Lofts Inc. , 2010 ONSC 3092 () , 2010 ONSC 3092, [2010] O.J. No. 2211, and I have added some additional principles:

(a) the purpose of pleadings is to give notice of the case to be met, to define the matters in issue for the parties and for the court, and to provide a permanent record of the issues raised: 1597203 Ontario Limited v. Ontario , 2007 21966 (ON SC) , [2007] O.J. No. 2349; Aristocrat Restaurants v. Ontario , [2003] O.J. No. 5331 (S.C.J.) at para. 15 ; Somerleigh v. Lakehead Region Conservation Authority , 2005 CarswellOnt 3546 (S.C.J.) at para. 5 ;

(b) the causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material: CIT Financial Ltd. v. Sharpless , 2006 CarswellOnt 3325 ;

(c) every pleading must contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved: rule 25.06; this includes pleading the material facts necessary to support the causes of action alleged;

(d) a party is entitled to plead any fact that is relevant to the issues or that can reasonably affect the determination of the issues, but it may not plead irrelevant, immaterial or argumentative facts or facts that are inserted only for colour: Williams v. Wai Ping , [2005] O.J. No. 1940 (S.C.J.) , aff’d [2005] O.J. No. 6186 (Div. Ct.) ; George v. Harris , [2006] O.J. No. 1762 (S.C.J.) ;

(e) allegations that are made only for the purpose of colour or to cast a party in a bad light, or that are bare allegations, are scandalous and will be struck under rule 25.11(b): Senechal v. Muskoka (District Municipality) , [2003] O.J. No. 885 (S.C.J.) ;

(f) the court may strike part of a pleading, with or without leave to amend, on the grounds that (a) it may prejudice or delay the trial of an action, (b) it is scandalous, frivolous or vexatious, or (c) it is an abuse of the process of the court: rule 25.11;

(g) on a motion to strike a pleading under rule 21.01(1) on the ground that it discloses no cause of action, it must be shown that it is plain, obvious and beyond doubt that the claim cannot succeed and the pleading must be read generously; allegations of fact, unless plainly ridiculous or incapable of proof must be accepted as proven: Hunt v. Carey Canada Inc. , 1990 90 (SCC) , 1990 CarswellBC 216 (S.C.C.);

(h) any fact that can affect the determination of rights between the parties can be pleaded, but the court will not permit facts to be alleged that are immaterial or irrelevant to the issues in the action: Toronto (City) v. MFP Financial Services Ltd. , [2005] O.J. No. 3214 (S.C.J.) ;

(i) allegations of fraud, misrepresentation, negligence and conspiracy must be pleaded with particularity: Lana International Ltd. v. Menasco Aerospace Ltd. , 1996 7974 (ON SC) , [1996] O.J. No. 1448

Motion of Dr. Seiden and Seiden Health

[16] The first 34 paragraphs of Montgomery's claim focus on Dr. Seiden as do paragraphs 51, 52, 53, 57, 66, 68, and 70.

[17] Paragraphs 1 to 9 concern Dr. Seiden's relationship with the U.S. government as a panel physician. There are allegations made against Dr. Seiden that he is being investigated for fraud, extortion, and negligence by the U.S. government. However, there are no facts supporting this allegation of fraud and the allegations do not appear to be material to the Claim being made by Montgomery.

[18] The Claim does not set out any facts supporting Montgomery's claim until paragraph 10 when reference is first made by Montgomery that she was "unduly and unlawfully referred to Dr. Seiden for medical clearance by a U.S. Customs and Border agent in Buffalo, New York" when she was attempting to cross the Canadian/U.S. border by train. Allegations are then made against this individual, but he is not one of the named defendants. This continues on in paragraph 11 of claim.

[19] Montgomery then refers to her physician, Dr. Goldhar. She states that Dr. Goldhar knows Dr. Seiden and that Dr. Goldhar indicated to her that Dr. Seiden "takes advantage of people". Dr. Goldhar is also not a party to the action.

[20] Montgomery makes allegations in paragraphs 16 and 17 that Dr. Seiden attempted to extort money from her and was acting in bad faith. In paragraph 18 of the Claim there is reference to an agreement which was signed with Dr. Seiden, but no specifics are mentioned with respect to that agreement. In paragraphs 19 to 29 allegations of bad faith are made and reference to the fact that Dr. Seiden refused to produce any medical report to Montgomery. Montgomery asserts claims of wilful negligence and negligence against Dr. Seiden; she alleges that the U.S. government is embarrassed by some of the actions of its agents and is especially displeased with Dr. Seiden. Further reference is made to Dr. Seiden's alleged malice, fraudulent conduct, dishonesty, and negligence.

[21] Montgomery alleges that Dr. Seiden misrepresented himself to the U.S. government to assist regulators of Ontario, to the Canadian government in order to continue to extort money from Canadian citizens, and to the Canadian government in order to defraud the Canadian government of income taxes.

[22] What is clear from a review of the first 34 paragraphs of the Claim is that Montgomery fails to clearly set out the facts upon which she is relying to make claims of fraud, extortion, negligence, and bad faith against Dr. Seiden. It is difficult to discern what the facts are in respect of the claims being made by Montgomery.

[23] In paragraph 51 of the Claim there are more allegations made against Dr. Seiden infringing Montgomery's legal rights and mobility rights but there are no actual facts pleaded.

[24] In paragraph 53 of the Claim allegations are made by Montgomery of being deprived of her legal rights and liberties as a Canadian citizen due to Dr. Seiden's "fraudulent, unlawful, negligent, malicious, exploitative and heavy-handed influences", but once again no facts are pleaded.

[25] Montgomery refers in paragraph 57 of the Claim to Dr. Seiden making false statements; however, those false statements are not outlined.

[26] In paragraph 66 of the Claim, Montgomery sets out the nature of her claim and indicates that the "defendants are being sued for general and punitive damages, loss of previous and future employment income, lost opportunities and also for breach of confidentiality among other things". There are no specifics whatsoever.

[27] Montgomery sets out in paragraph 68 that she is suing Dr. Seiden for defamation, libel, and slander for the false, fraudulent, and fictitious statements he has made against her to the U.S. government and others. Again, there are no specifics.

[28] Montgomery lists a litany of causes of action against Dr. Seiden and Seiden Health in paragraph 70.

[29] It is impossible upon a reading of the Claim to understand the basic facts and what it is that Dr. Seiden is alleged to have done wrong.

[30] The claims against Dr. Seiden are substantially defective and fail to comply with the rules of pleading.

[31] With respect to causes of action which are known to law, there are no specifics set out in the Claim to support those causes of action.

[32] With respect to the fraud claims made against Dr. Seiden, the Claim is lacking particularity.

[33] Montgomery also makes an allegation of unjust enrichment, but she fails to set out the claim properly.

[34] Similarly, with respect to the claim of negligence, there are no specifics.

[35] With respect to the tort of invasion of privacy, there are no facts pleaded.

[36] It is clear that the claims made by Montgomery should be struck under Rule 21.01(1) (b).

[37] Accordingly, the claims against Dr. Seiden and Seiden Health should be struck under Rule 21.01(1) (b) without leave to amend.

[38] Counsel also contends that the allegations made are frivolous, scandalous or vexatious.

[39] I do find that many of the statements in the Claim are bald allegations.

[40] Counsel also contends that s. 36(3) of the RHPA prohibits Montgomery from referring to reports, documents or statements given in a proceeding under that Act in a subsequent civil proceeding.

[41] In the Ontario Court of Appeal decision of M.F. v. Sutherland , 2000 5761 (ON CA) , the Court outlined the purpose of s. 36(3).

[42] I also agree with counsel's submissions that this paragraph should be struck as it is contrary to section 36(3) of the RHPA .

Motion of Dr. Saint-Cyr

[43] The claims against Dr. Saint-Cyr are set out in paragraphs 2, 63, 64, and 65.

[44] I find that these allegations made by Montgomery are also fraught with difficulties in that they too are bald allegations and there are no facts supporting them.

Motion of Costello and the College

[45] The allegations made against Costello and the College are set out in paragraphs 35 to 50, 54 to 56, 57, 58, 60, 61, and 69 of the Claim.

[46] There are also allegations that the College was aware of Costello's negligence, misrepresentations, bad faith actions and malice.

[47] Montgomery alleges that the malice of Costello and the College discharges them from immunity.

[48] Montgomery seeks punitive and exemplary damages against the College.

[49] Upon a review of the Claim, it appears that the allegations made against the College arise solely from the investigation and disposition of the complaint.

[50] Counsel for the College submits that the Claim should be struck out under Rule 21.01.

[51] Additionally, counsel submits that the Claim should be struck on the grounds that the College is immune from liability.

[52] Costello and the College submit that as Montgomery's allegations relate to statutory duties.

[53] The College relies on Conroy v. The College of Physicians and Surgeons of Ontario , 2011 ONSC 324.

[54] Bad faith is pleaded against Costello and the College in Montgomery's claim; however, these are bald allegations.

[55] The College also submits that with respect to Montgomery's allegations of negligence, no individual duty of care is owed.

[56] In Drougov , Perell J., outlined that the College does not have a duty of care to individual members of the public.

[57] I agree with the submissions of counsel for the College.

[58] Overall, I find that the Claim discloses no reasonable cause of action.

[59] For all of these reasons, the claims of Montgomery against Costello and the College must be struck.

[60] Counsel also submits that the Claim is scandalous, frivolous or vexatious.

[61] I agree that the allegations against the College and Costello are inflammatory.

[62] It is also clear that Montgomery's claim is an attempt at a collateral attack on the decisions of the ICRC and the Board.

[63] The claims against Costello and the College should be struck without leave to amend.

Motion of the Board

[64] Montgomery's claims against the Board are set out in paragraphs 57, 67, and 69 of the Claim.

[65] In paragraph 67 of the Claim, Montgomery indicates that she is suing the Board for damages for defamation.

[66] Montgomery does not state the means of publication or the information that was published.

[67] In paragraph 69 of the Claim, Montgomery alleges that the Board obtained documents and information from her and disclosed them.

[68] The pleadings against the Board are woefully inadequate.

[69] Counsel for the Board also contends that the Board has statutory immunity.

[70] Montgomery's claims against the Board with respect to bad faith are only bald allegations.

[71] Additionally, Montgomery seeks damages for defamation against the Board.

[72] The exception to that would be if Montgomery did not know the exact words.

[73] Further, the elements of defamation are lacking in the pleading.

[74] Montgomery's claim against the Board does not specify the words allegedly used.

[75] Additionally, it is clear under s. 32(2) of the RHPA that publication was required.

[76] The Board submits that it also relies upon the Ontario Court of Appeal decision of Rogers v. Faught.

[77] For all of the above reasons, the claim by Montgomery against the Board must be struck.

[78] I therefore order the following:

i) The Plaintiff’s Fresh as Amended Statement of Claim is struck without leave to amend.

ii) The Defendants shall file written costs submissions, no longer than two double-spaced pages, along with their Costs Outlines within 20 days. The Plaintiff shall file her written costs submissions, no longer than two double-spaced pages, along with a Costs Outline 20 days thereafter.

Stevenson J.

Released: November 2, 2012

COURT FILE NO.: CV-11-434382
DATE: 20121102

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

TIFFANY MONTGOMERY Plaintiff - and - HOWARD SHELLY SEIDEN, M.D., SEIDEN HEALTHMANAGEMENT INC., MOIRA COSTELLO, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and DR. JEAN A. SAINT-CYR Defendants

REASONS FOR DECISION Stevenson J.

Released: November 2, 2012