COURT FILE NO.: CV-11-430125
DATE: 20111204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RAYMOND KIM
Plaintiff
– and –
JULIANNA CHOI, ANDY CHEOK, CRTSTAL BALUYUT, LESLIE VIENI, SHELLEY CORNACK, MICHAEL COOKE, HELEN SUH, MARCEL CHARLAND, NIRTAL SHAH, MICHAEL BARTHMANN and D’ARCY GAGNON
Defendants
CV-11-417575
AND BETWEEN:
RAYMOND KIM
Plaintiff
- and-
AMANDA BROWN
Defendant
CV-12-444262
AND BETWEEN:
RAYMOND KIM
Plaintiff
-and-
FARZANA HAQ
Defendant
CV-12-444549
AND BETWEEN:
RAYMOND KIM
Plaintiff
-and-
DANIEL PLATZKER, AYIMAN AL-ARABI, ALAN TAN, WILSON AYOUNG-CHEE, STEVE GOLDHAR and KAREN BIR
Defendants
CV-12-444551
AND BETWEEN:
RAYMOND KIM
Plaintiff
-and-
DAVID DUSHENSKI, RON TAYLOR, MIRIAM GRANEK, and SHAUNA MARTINIUK
Defendants
CV-12-444136
AND BETWEEN:
RAYMOND KIM
Plaintiff
-and-
ALICIA SCHREADER
Defendant
CV-12-444367
AND BETWEEN:
RAYMOND KIM
Plaintiff
-and-
JOEL LEXCHIN, CATHERINE BEAUDREAU and MATTHEW HODGE
Defendants
CV-12-444138
AND BETWEEN:
RAYMOND KIM
Plaintiff
-and-
PAUL FREEDMAN and DIANE KLJENAK
Defendant
CV-12-444103
AND BETWEEN:
RAYMOND KIM
Plaintiff
-and-
BORIS SO
Defendant
In person
J. Blackburn, for the Defendant Cornack
G. Campisi, for the Defendant Suh
A. Dunlop, for the Defendants Shah and Barthmann
A. Posno, B. Gray, for the Defendants Choi, Cheok, and Balayut
R. Kleiman, for the Defendant Cooke
H. Vaughan, for the Defendant Charland
M. Warner for the Defendant Vieni
In person
A. Dunlop, for the Defendant
In person
A. Posno, B. Gray, for the Defendant
In Person
A. Posno, B. Gray, for the Defendants
In person
G. Campisi, for Defendant Granek
A. Posno, B. Gray, for Defendants Dushenski, Taylor, and Martiniuk
In person
A. Posno, B. Gray, for the Defendant
In person
A. Posno, B. Gray, for the Defendants Lexchin and Hodge
M. Warner, for the Defendant Beaudreau
In person
A. Posno, B. Gray, for the Defendant Kljenak
M. Warner, for the Defendant Freedman
In person
HEARD: October 29,30,31, 2012
J. WILSON J:
REASONS FOR JUDGMENT
The Motions
[1] In this omnibus motion, all of the defendants seek orders for summary judgment that the actions be struck as disclosing no genuine issue for trial. One defendant also seeks a declaration that the actions are frivolous and vexatious. Four defendants argue that the limitation periods have been exceeded.
[2] Beginning on January 11, 2011 continuing to January 20, 2012, the unrepresented plaintiff Raymond Kim (Mr. Kim) initiated these nine actions against a number of medical professionals, including nineteen doctors, two nurses, one social worker, four physiotherapists, one massage therapist, one chiropodist, as well as two academic advisors.
[3] For the reasons to be outlined, the motions are granted on behalf of all defendants and the actions are dismissed pursuant to Rule 20 and 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, precludes suit against four of the defendants, but in any event, these actions are dismissed on the merits for these defendants.
This Judgment
[4] This judgment is organized as follows:
Overview
Factual overview organized as a review of the nine actions in chronological order of interaction and treatments rendered
The Law
Allegations and findings of fact with respect to liability of each defendant in the nine actions
Overall Conclusions
Disposition of Costs
1. Overview
[5] The vice-president of George Brown College confirmed, “I am saddened by Mr. Kim’s situation as I continue to believe that, with proper treatment, he [Mr. Kim] has definite academic potential”. I echo these comments.
[6] There are two reoccurring themes in the contact between Mr. Kim and the various defendants in these nine actions:
• The evidence is clear that Mr. Kim began experiencing psychiatric and academic difficulties in 2006. In April 2007, Mr. Kim was diagnosed with schizophrenia, paranoid subtype, and strongly encouraged to take medication to control his condition. Mr. Kim did not accept the diagnosis, nor agree that he needed to take medication to control his symptoms. His view was that his behaviour was controlled and interfered with by synchronicities and outside influences. These actions document Mr. Kim’s efforts to have others accept his firmly held beliefs. Mr. Kim continues to dispute his diagnosis of schizophrenia, continues to refuse to take medication, and continues to believe that his behaviour is controlled by synchronicities.
• Mr. Kim had genuine physical complaints, including shoulder and hip issues, originating from skateboard, snowboard, and weight lifting injuries. These physical complaints appear to predate his psychiatric diagnosis. According to Mr. Kim, his injuries were far more serious and widespread than observed by the many health professionals whom he has seen and sued. Mr. Kim alleges that many of the defendants providing treatment for his physical complaints caused or aggravated his existing injuries, failed to adequately diagnose the seriousness of the injuries, failed to order adequate imaging tests to confirm Mr. Kim’s self diagnosis, and refused to corroborate Mr. Kim’s allegations of negligence against health professionals rendering prior treatment.
[7] The material before me confirms that Mr. Kim began his odyssey searching for medical professionals who would validate his point of view and treat his various medically unconfirmed physical injuries beginning in 2006, and continuing to 2012. The record before me confirms that Mr. Kim shopped from hospital to hospital, and from walk in clinic to walk in clinic, seeking professionals who would be prepared to treat his unconfirmed injuries and be prepared to testify against medical professionals who had allegedly treated Mr. Kim in a negligent fashion. Clearly Mr. Kim did have some sports injuries, but not of the degree and breadth of Mr. Kim’s self-diagnoses. It seems clear that Mr. Kim’s fixed beliefs about the scope of his physical injuries, and what he perceives as the necessary treatment for them, are a symptom of his schizophrenia.
[8] Beginning in January 2011, Mr. Kim brought the series of claims that are before me. There have been other actions which have been struck as disclosing no cause of action, see: Kim v. Kmiec, 2012 ONSC 3364; Kim. v. Vieira, 2012 ONSC 3357; Kim v. Foote, endorsement of Justice Stinson dated April 24, 2012; Kim v. Foote, endorsement of Justice Spence dated October 24, 2011. There are three other cases that still in the system against an orthodontist and two against police officers.
[9] Justice Whitaker has been case managing the matters before me. On June 19, 2012, in the action Foote v. Kim, 2012 ONSC 3734, he declared Mr. Kim to be a vexatious litigant precluding any further actions to be commenced in any court without leave of a judge of any court. He found, at paragraph 20, that it was “in the interests of justice to protect the court’s process and honest potential defendants” to declare Mr. Kim a vexatious litigant. A close review of all of the actions in this omnibus motion confirms his conclusions.
[10] Presently, Mr. Kim is not in school, is not working, and is living at home with his parents. His parents are not aware of these proceedings, although Mr. Kim states that they go through his papers in his room and therefore have some knowledge of matters. Pursuit of these actions appears to be Mr. Kim’s present life focus. He is tenacious and firmly believes in his perception of the facts and the merits of his cause.
2. Factual Chronology
[11] At my request, the defendants prepared a chronology which the defendants agree is accurate to summarize and place each claim in context (the Chronology). The Chronology is filed as Exhibit 4. Mr. Kim has made his handwritten notes on the Chronology where he disagreed with specific details filed as Exhibit 6. In general, Mr. Kim accepts most of the Chronology as accurate, subject to his written comments, which adds or contests details.
[12] Where there is a disagreement between the defendants’ documentary records reflected in the Chronology, and Mr. Kim’s recollection of events, I accept the defendants’ evidence as accurate, as it is substantiated by notes and records. I therefore accept as accurate the Chronology prepared by the defendants filed as Exhibit 4.
Action #1 Kim v. Choi et al. CV-11-430125 commenced July 16, 2011
[13] In this action, Mr. Kim sues nine health professionals and two academic advisors.
[14] In January and March 2006, Mr. Kim attended with the defendant Helen Suh, a chiropodist, for two treatments to remove callouses from his feet. She did so, and prescribed cream. He did not return for a scheduled follow up appointment two months after the treatments. In December 2010, Mr. Kim attended Suh’s clinic claiming that the two treatments caused necrosis and an ulcer on his feet.
[15] Suh raises a limitation defence.
[16] In 2006 to 2007, Mr. Kim was registered as a third year philosophy student at University of Toronto. He was having difficulty academically, and a meeting was held with the registrar of University of Toronto, the defendant Shelley Cornack, as Mr. Kim faced potential suspension due to his low grade point average. Mr. Kim complained of problems communicating with professors and teaching assistants.
[17] Mr. Kim disclosed to Cornack that in 2006 that he had been diagnosed as having ADHD [Attention Deficit Hyperactive Disorder], bipolar disease, and anxiety issues, but that he had “self cured”. To achieve accommodation for his academic difficulties, Cornack explained to Mr. Kim that he required medical evidence to support his request. Cornack referred Mr. Kim to a psychiatrist at Student Health Services for evaluation. Mr. Kim did not immediately attend for a psychiatric evaluation. Mr. Kim’s last contact with Cornack was in November 2007.
[18] Cornack raises a limitation defence.
[19] Mr. Kim had physical complaints to his neck, shoulder, elbow and wrist, relating to skateboard and snowboard injuries. He sought nine massage treatments from the defendant Marcel Charland, a Certified Sports Massage Therapist, from December 2006 to April 2007.
[20] Charland raises a limitation defence.
[21] Mr. Kim continued to experience academic difficulties in the 2006/2007 academic year. In the summer of 2007, Mr. Kim attended at the University of Toronto Clinic for a psychiatric evaluation, pursuant to Cornack’s referral in 2006.
[22] The defendant Dr. Choi, a psychiatrist, met with Kim on three occasions on July 30, August 1 and 7, 2007. She reached the provisional diagnosis of paranoid schizophrenia. In accordance with her obligations under section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as she was of the view that it would be dangerous for Mr. Kim to operate a motor vehicle, she advised the Ministry of Transportation to suspend Mr. Kim’s drivers licence. She also prescribed anti-psychotic medication. Mr. Kim disagreed with her diagnosis. He also disagreed with her advice that he required medication for his condition. He was angry about the suspension of his driver’s licence. Mr. Kim sought a second opinion from a male doctor.
[23] At Mr. Kim’s request, he met with the defendant Dr. Cheok on September 24, and October 2, 2007. Dr. Cheok was also a psychiatrist with University of Toronto Student Services. Dr. Cheok confirmed the diagnosis of schizophrenia, and referred Kim to CAMH to the “First Episode Psychosis Clinic” for follow up treatment.
[24] Meanwhile, Mr. Kim attended the sport medicine clinic at University of Toronto from October 5, 2007 to April 14, 2008, and received physiotherapy treatments from the defendant Nirtal Shah for his physical problems. In his first interview with Shah, Mr. Kim complained of electrical implants which were placed in his body by the government. Thereafter on seven occasions, Shah provided physiotherapy treatments and prescribed exercises with respect to Mr. Kim’s problems with his right shoulder, right wrist, left knee, and hip flexors.
[25] Shah raises a limitation defence.
[26] At CAMH, Mr. Kim came under the care of the defendant Dr. Balayut and the staff at CAMH as an out-patient from October 22, 2007 until March 2010.
[27] Dr. Balayut tried various alternatives for medication in 2007 and 2008. For some time, Mr. Kim was compliant and took the prescribed medication. Indeed, on November 15, 2007, Mr. Kim confirmed in his last contact with Cornack, the academic advisor at University of Toronto, that he was doing better and was on medication.
[28] However, according to Mr. Kim, the medication caused unpleasant side effects, and affected Mr. Kim’s ability to study and his ability to perform his preferred physical activities including brake dancing, skateboarding and working out at the gym. For the last two years while under the treatment of CAMH, Mr. Kim refused to take any prescribed medication.
[29] The defendant Leslie Vieni was Mr. Kim’s Case Manager and a nurse working at CAMH with Dr. Balayut.
[30] In that final meeting on July 6, 2010, Mr. Kim presented Dr. Balayut with video clips of him brake dancing, which Mr. Kim believed confirmed that his behaviour was being controlled by outside forces and that he was not schizophrenic. Mr. Kim presented these same video clips and others in the courtroom before me to advance his theory that he was being controlled by outside forces, a phenomenon he refers to as “synchronicity”, and that he had been misdiagnosed. My observation of the video clips, when visible, showed Mr. Kim brake dancing with evident agility and skill, and without any evidence of outside forces acting upon him. The CD of these activities is filed as Exhibit 3.
[31] The final note in the CAMH file by Dr. Balayut on July 6, 2010, confirms that at that time Mr. Kim was experiencing “active psychotic symptoms, auditory tactile hallucinations, persecutory grandiose delusions, and delusions of reference”.
[32] Between May 11, 2009 and July 2010, Mr. Kim received physiotherapy treatment from the defendant Michael Barthmann with respect to shoulder and right hand pain. Mr. Kim also wished to have Mr. Barthmann give evidence against Mr. Chartland and Mr. Shah with respect to their prior treatment of the plaintiff. Mr. Barthmann refused.
[33] Beginning in the fall of 2009 and continuing to July 2010, Mr. Kim raised other complaints with regard to pain or injury in his left hip, left shoulder, and left foot. Mr. Barthmann treated Mr. Kim for these complaints. Mr. Kim alleges that these treatments caused further damage.
[34] In the fall of 2008, Mr. Kim began attending George Brown College. Between the fall of 2008 and the spring of 2010, when Mr. Kim discontinued his studies at George Brown, Mr. Kim met on several occasions with the defendant Michael Cooke, a vice president of the college. Mr. Kim complained that the professors’ minds were being controlled and that he was experiencing harassment in the classroom. Mr. Cooke referred Mr. Kim to various counselling services available, and even went so far as to contact a senior researcher in Germany who studied mind control. The researcher confirmed that the kinds of synchronicity complaints Mr. Kim alleged were scientifically impossible.
[35] Mr. Kim concluded that the expert contacted by Mr. Cooke was not the correct sort of expert. Thereafter, Mr. Cooke concluded that there was nothing further he could do to assist Mr. Kim as “[i]t was clear to me that Mr. Kim was not being harassed by his teachers (or that they were being mind controlled). Rather it appeared that Mr. Kim was suffering from delusions”.
[36] Between November 2010 and January 2011, on five occasions, Mr. Kim saw the defendant Dr. D’Arcy Gagnon, a family physician, initially with respect to right arm pain. On November 9, 2010, Mr. Kim indicated that he wished to have x-rays performed with respect to twenty areas of his body. Dr. Gagnon’s note was that Mr. Kim’s behaviour was “very bizarre”. Later, Mr. Kim requested x-rays of his heels and ankles as he had concern that he had been subject to experiments at the University of Toronto. Dr. Gagnon made a psychiatric referral. Dr. Gagnon ordered various x-rays and ultrasounds, but fewer than requested by Mr. Kim. All studies were returned normal.
[37] This concludes the factual chronology with respect to the eleven defendants in the first action.
Action #2 Kim v Brown CV-12444262 commenced January 11, 2011
[38] This action against Amanda Brown, a physiotherapist, was initiated on January 11, 2011.
[39] In December 2010, Mr. Kim attended two appointments with the defendant Amanda Brown with complaints of pain in his right shoulder, left hip, and ankles. She gave him an exercise regime.
[40] Mr. Kim requested that Ms. Brown provide expert testimony against a number of physiotherapists who previously treated him, including Mr. Charland, Mr. Shah, and Mr. Barthmann. She refused to do so. Mr. Kim returned once again in December 2010, without an appointment, with various complaints and requests.
[41] In addition to this lawsuit, Mr. Kim also sued Brown’s former counsel, but that action has been dismissed. Brown laid criminal public mischief charges against Mr Kim. The criminal matter was resolved by the peace bond and undertaking given by Mr. Kim not to attend at the clinic where Brown worked. He has complied with that undertaking.
Action #3 Kim v. Haq CV-12-444262 commenced January 17, 2012
[42] This action is against Dr. Farzana Haq.
[43] Mr. Kim met with Dr. Haq, a family doctor at a walk in clinic, on five occasions between March 17, 2011 and March 23, 2011. Mr. Kim requested ultrasounds and x-rays for various parts of his body. Some ultrasounds and x-rays were ordered. When Dr. Haq refused Mr. Kim’s request for further imaging, he was discharged by Mr. Kim.
Action #4 Kim. v. Platzer CV-12-444549 (the Walk in Clinic Action) commenced January 20, 2012
[44] Between March 25, 2011 and June 2, 2011, Mr. Kim attended at the Doctors Office Walk in Clinic at 595 Bay Street and raised various physical complaints with the five defendant family doctors with whom he had contact including the defendants: Doctors Daniel Platzker, Ayiman Al-Arabi, Alan Tan, Wilson Ayoung-Chee, and Steve Goldhar.
[45] Mr. Kim made 12 visits to the various doctors during this period complaining of various musculoskeletal complaints and requesting numerous tests and imaging.
[46] Dr. Goldhar referred Mr. Kim to the defendant Dr. Karen Bir, a rheumatologist for evaluation of potential fibromyalgia. Mr. Kim was assessed by Dr. Bir in June 2011. He met with Dr. Bir in June and October 2011, and disputed her negative findings.
[47] Mr. Kim was also referred to a psychiatrist, who is not a defendant in this action.
Action #5 Kim v. Dushenski CV-12-444541 (the Mount Sinai Emergency Action) commenced January 20, 2012
[48] There is a chronological overlap between the treatment sought by Mr. Kim in Action #4- (the Walk in Clinic action), and the treatment sought at Mount Sinai Emergency Action, in Action #5. There is also overlap with evaluation or treatment with the defendants in Action #8, Kim v. Freedman and Kljenak, which involved a psychiatric evaluation following up from a referral made by a physician in the Walk in Clinic action.
[49] With respect to Action # 5, on May 15, 2011, Mr. Kim attended Mount Sinai Emergency Clinic and was assessed by the defendant Dr. David Dushenski, an emergency room physician, with respect to his complaints of leg pain.
[50] Dr. Dushenski referred Mr. Kim to a sports medicine clinic run by Mount Sinai. On May 25, 2011, Mr. Kim was evaluated by the defendant Miriam Granek, a physiotherapist, and by Dr. Ron Taylor, a family physician with expertise in sports medicine.
[51] At the initial visit on May 25, 2011, Dr. Taylor refused Mr. Kim’s request to order an MRI but did order x-rays. Ms. Granek, a physiotherapist, assessed Mr. Kim’s shoulder on the first visit and made the diagnosis of chronic right rotator cuff impingement.
[52] Mr. Kim was seen on May 31, 2011, by the defendant Dr. Shauna Martiniuk, an emergency room physician, for left hip pain. She recommended that Mr. Kim follow up with Dr. Taylor.
[53] On May 31, 2011, Mr. Kim also attended an appointment to assess Mr. Kim’s left hip issues with Ms. Granek. She assessed the plaintiff’s left hip and found that he had left anterior rotation dysfunction with mild hip impingement. Based on this diagnosis, she did not recommend an MRI.
[54] On the same day, Dr. Taylor confirmed the diagnosis and declined to order an MRI. Mr. Kim was very angry and terminated his involvement with Mount Sinai sports injury clinic.
[55] On June 29, 2011, Mr. Kim re-attended the Mount Sinai emergency department with complaints of ankle foot and hip pain. He was seen again by Dr. Dushenski. Mr. Kim left angry. Dr. Dushenski noted that Mr. Kim was aggressive and agitated, and called Dr. Dushenski “a fucking asshole”.
Action #6 Kim v. Schreader CV-12-444136 commenced January 16, 2012
[56] On June 8, 2011, Mr. Kim attended with Dr. Alicia Schreader, family physician at a private walk in clinic, as a potential new patient. After meeting with Mr. Kim, Dr. Schreader advised him to return to his current treating physicians in the Walk in Clinic action.
Action #7 Kim v. Lexchin CV-12-444367 (the UHN Emergency action) commenced January 18, 2012
[57] This action is against a nurse practitioner and two doctors at the University Health Network emergency department of the Toronto General Hospital.
[58] On June 29, 2011, on the same day, when Mr. Kim expressed angry dissatisfaction in his interaction with Dr. Dushenski at the emergency department at Mount Sinai, Mr. Kim attended the University Health Network emergency department of Toronto General Hospital in pursuit of his quest for verification of his self-diagnosis of various fractures and injuries.
[59] Mr. Kim met first with nurse practitioner Catherine Beaudreau, who examined the x-rays and the radiologist report, and confirmed to Mr. Kim that they did not reveal a fracture.
[60] On June 29, 2011, Mr. Kim was also seen by the defendant Dr. Joel Lexchin, an emergency room physician. Dr. Lexchin also confirmed that there was no fracture indicated on the x-rays. Mr. Kim disputed his interpretation.
[61] Mr. Kim wished to have another opinion, and so returned to the emergency department at the University Health Network on June 30, 2011, and met with the defendant Dr. Matthew Hodge, also an emergency room physician. Again, Dr. Hodge confirmed that there were no fractures displayed on the x-ray. Mr. Kim insisted that the June 29, 2011 x-ray reveals a fracture. They had a heated exchange.
Action #8 Kim v. Freedman and Kljenak CV-12-444138 commenced January 16, 2012
[62] This action is against a social worker and a psychiatrist.
[63] On May 16, 2011, Mr. Kim attended a psychiatric assessment at the Toronto Western Hospital ordered by one of the doctors at the Walk in Clinic (who is not a defendant in any proceeding).
[64] The first phase of the assessment was conducted by the defendant Paul Freedman, a social worker.
[65] The second phase of the assessment took place on October 4, 2011 with both Mr. Freedman, and with Dr. Diane Kljenak, a psychiatrist.
[66] Both Mr. Freeman and Dr. Kljenak wrote comprehensive reports to the referring physician confirming the diagnosis of schizophrenia, stating that Mr. Kim was experiencing “a number of symptoms reflective of thought disease for the past five years. Some of these symptoms include auditory hallucinations, referential thinking, thought broadcasting, as well as believes that his phone calls are being monitored.”
Action #9 Kim v. So CV-12-444103 commenced January 16, 2012
[67] On December 20, 2011, Mr. Kim presented to yet another family doctor, the defendant Dr. Boris So, at a walk in clinic. After reviewing Mr. Kim’s past history and diagnosis of schizophrenia, as well as various musculoskeletal complaints, Dr. So referred Mr. Kim back to his previous treating physicians in the Doctors Office Walk in Clinic.
3. The Law
[68] On January 1, 2010, amendments were made to the Rules of Civil Procedure as they apply to summary judgment motions. The new rule reads as follows:
20.04 (2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[69] In Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, the Court of Appeal provided a thoughtful interpretation of the meaning of the amended Rule 20 with comprehensive guidelines to the profession and to motion judges as to how to apply the rule.
[70] The court will grant summary judgment when it is satisfied that there is no genuine issue requiring a trial. From the perspective of a defendant, the purpose of the summary judgment rule, as amended, is to identify and end claims that are factually unsupported and do not require a full trial.
[71] In Combined Air, at paragraphs 50-55, the Court of Appeal developed the “full appreciation test” as a primary guideline to decide whether or not a trial is necessary in the interest of justice. The Court described three kinds of cases in which summary judgment may be granted:
The first is when the parties submit their dispute on consent to be determined by summary judgment.
The second is when the claim or the defence has no chance of success. To evaluate whether this is true, motion judges may use the enhanced powers provided by rules 20.04(2.1) and (2.2). The Court noted further, at paragraph 73, that the court may only use these new powers if the case meets the full appreciation test, stating, “[h]owever, before the motion judge decides to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence, the motion judge must apply the full appreciation test.”
The third kind of case, the most nuanced of the three, is deciding whether issues can be fairly and justly resolved without a trial, guided by the full appreciation test.
[72] It is the position of the defendants that Mr. Kim’s claims fall within the second category: that is the claims of Mr. Kim are clearly devoid of merit, and have no hope of succeeding at trial.
[73] In a medical negligence action, the central issue is whether or not the physician met the appropriate standard of care. To succeed, a plaintiff must lead expert evidence of a physician practicing in the defendant’s area of medicine who attests to the defendant’s failure to meet the standard of care required in such circumstances. Without relevant expert evidence, the plaintiff will have “no hope of success”: see ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 51; Samuel v. Ho, [2009] O.J. No. 172 (S.C.J.), at paras. 26-34; Kurdina v. Gratzer, [2009] O.J. No. 4626 (S.C.J.), at paras. 21-25, aff’d 2010 ONCA 288, [2010] O.J. No. 1551 (C.A.)
[74] The same principles apply in actions brought against other health professionals including physiotherapists, nurses, massage therapist, social workers, or chiropodists. For a plaintiff to succeed he or she must lead expert evidence from the appropriate professional that confirms that the professional being sued has not met the standard of care required. Without such evidence, a plaintiff has no hope of success: see Hardy (Litigation guardian of) v. Hospital for Sick Children, [2001] O.J. No. 4008, at para. 8; Richmond v. Balakirshnan, 2010 ONSC 5888, at para. 22, aff’d 2011 ONCA 316.
[75] Mr. Kim did not produce any expert reports with respect to any of the defendants that confirmed his allegations of negligence.
4. Allegations and findings of fact with respect to liability of each defendant
[76] In this section of the judgment I will review the claim made against each defendant in the nine actions and my conclusions.
Action #1 Kim v. Choi et al. CV-11-430125, commenced July 11, 2011
The defendant Helen Suh
[77] Helen Suh provided two treatments to Mr. Kim for callouses in January and in March 2006. Mr. Kim did not return for his follow up appointment.
[78] The expert report from Cesar M. Mendez, a professor in chiropody, confirms that the treatment given by Ms. Suh met the standard of care, and that there was no evidence that the integrity of the skin had been compromised. Mr. Kim failed to attend the recommended follow up appointment in May, 2006.
[79] I conclude that Ms. Suh met the standard of care in the treatments rendered, and that there is no genuine issue requiring a trial in this matter. Therefore the action against this defendant is dismissed. (See Schedule 1(a) in the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant)
[80] In any event, no complaints were made by Mr. Kim at the time of his treatments. This action commenced on July 11, 2011, exceeds the test of discoverability stipulated in the Limitations Act. The limitation period in this matter is exceeded by some three years, precluding this action from continuing.
The defendant Marcel Charland
[81] The defendant Marcel Charland is a certified massage therapist working from a sports medicine clinic at University of Toronto. Mr. Charland saw Mr. Kim from December 13 2006 to April 26, 2007. He initially assessed Mr. Kim for rotator cuff injuries from a skateboard fall. Thereafter, he treated the plaintiff for various soft tissue injuries including the neck, shoulder, elbow, and wrist. On the last appointment on April 26, 2007, Mr. Kim had a full range of motion and normal strength for his shoulder. He was told to follow up as needed. There was no further contact.
[82] Mr. Kim alleges that Mr. Charland failed to provide a sling, cast, or splint, and failed to order various medical imaging. Mr. Kim also alleges that the treatment received caused further injury.
[83] The defence is that ordering slings and medical imaging is beyond the scope of expertise of a massage therapist. Further, the evidence is clear that Mr. Kim’s condition improved as a result of the treatments.
[84] The expert report of Lee Kalpin, a registered massage therapist, confirms that the standard of care was met, that the treatments provided were appropriate, and that any symptoms complained of by Mr. Kim are not a result of the conservative treatment rendered.
[85] I conclude that the evidence confirms that Mr. Charland met the standard of care for the treatments rendered, and that the complaints of Mr. Kim for failure to splint, cast or order medical imaging is beyond the appropriate role of a massage therapist.
[86] I find that there is no genuine issue for trial in this matter, and therefore the action against this defendant is dismissed. (See Schedule 1(b) in the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[87] Mr. Charland raises a limitation defence. The limitation period and any test for discoverability in this matter is exceeded by some two years, precluding this action from continuing.
The defendant Shelley Cornack
[88] The defendant Shelley Cornack is a registrar of the University College at the University of Toronto. Ms. Cornack first met with Mr. Kim in September 2006, to discuss his low grade point average and potential academic suspension. During this appointment, Mr. Kim stated that he was experiencing problems communicating with his professors and that he previously experienced a number of mental health issues. Ms. Cornack referred Mr. Kim to the University’s counselling and accessibility services. Ms. Cornack further advised Mr. Kim that he would need documentation from a licensed medical practitioner to assist the University with any necessary accommodations.
[89] Mr. Kim emailed and met with Ms. Cornack over the summer and fall of 2007 to discuss his grade point average and his allegations that his academic performance was affected by the movements of his professors and fellow students. Ms. Cornack discussed with Mr. Kim how these gestures can be easily misinterpreted and followed up with Mr. Kim’s professor. Mr. Kim also advised Ms. Cornack that he had been diagnosed with schizophrenia by two psychiatrists.
[90] Mr. Kim alleges that Ms. Cornack took no action with regard to his complaints of social and psychological abuse, defamation, sexual harassment, and harassment at the hands of his classmates and professors. He asserts that she should have believed what he told her, and that he should have been given proper advice.
[91] The defence is that Ms. Cornack responded fully and in good faith to Mr. Kim’s concerns and provided him with the resources he needed. The facts outlined in the record fully support the position of the defence. Ms. Cornack, with patience and diplomacy, did her best to assist Mr. Kim. Further, the defence is that Ms. Cornack was an employee acting within the scope of her duties, and there could be no personal liability in these circumstances. University of Toronto was not sued in these proceedings.
[92] I conclude that there is no genuine issue for trial in this matter, and therefore the action against the defendant is dismissed. (See Schedule 1(c) in the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[93] In any event, Ms. Cornack raises a limitation defence. Ms. Cornack’s last contact with Mr. Kim was in November 2007. This action commenced in July 2011. The limitation period in this matter is long exceeded, precluding this action from continuing.
The defendant Dr. Julianna Choi
[94] The defendant Dr. Julianna Choi is a psychiatrist practicing at the University of Toronto Clinic. Dr. Choi saw Mr. Kim on July 30, 2007, and again on August 1 and 7, 2007.
[95] Mr. Kim alleges negligence against Dr. Choi for diagnosing him with schizophrenia, rather than accepting his evidence of his behaviour being controlled by synchronicities. Mr. Kim further alleges that Dr. Choi did not comment on his concern regarding sexual harassment. Finally, Mr. Kim disagreed with Dr. Choi filing the mandatory report to the Ministry of Transportation precluding Mr. Kim from driving.
[96] The defence is that Dr. Choi met the required standard of care at all times, and that advising the Ministry of Transport was an obligation, not a choice.
[97] The expert report of Dr. Peter Williamson, a psychiatrist, confirms that Mr. Kim received exemplary care from Dr. Choi, meeting the expected standard of care. The assessment was thorough and the diagnosis was justified. Dr. Williamson also confirms that it was not safe for Mr. Kim to operate a motor vehicle throughout the period between the summer of 2007 to the final follow-up session in July 2010. There was no credible evidence that Mr. Kim had been sexually harassed.
[98] I conclude that Dr. Choi met the standard of care in the circumstances, and that there is no genuine issue for trial against this defendant. Therefore the action against Dr. Choi is dismissed. (See Schedule 1(d) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Andy Cheok
[99] The defendant Dr. Cheok is a psychiatrist practicing at the University of Toronto Clinic. Dr. Cheok met with Mr. Kim on September 24 and October 2, 2007. Dr. Cheok confirmed the diagnosis of schizophrenia and referred Mr. Kim to the “First Episode Psychosis Clinic” at CAMH.
[100] Mr. Kim alleges negligence against Dr. Cheok for diagnosing him with schizophrenia, rather than accepting his evidence of synchronicities. Mr. Kim alleges that Dr. Cheok did not want to discuss the effects of his extra-curricular activities or other sociological issues, and instead suggested that Mr. Kim take medication to have his driver’s licence returned. Mr. Kim also requests summary judgment against Dr. Cheok for the late delivery of the Statement of Defence and the false statements made therein.
[101] The defence is that Dr. Cheok met the required standard of care at all times.
[102] The expert report of Dr. Peter Williamson, a psychiatrist, confirms that Mr. Kim received exemplary care from Dr. Cheok, meeting the expected standard of care. The assessment was thorough and the diagnosis was justified.
[103] I conclude that Dr. Cheok met the standard of care in the circumstances, and that there is no genuine issue for trial with respect to Dr. Cheok. Therefore the action against this defendant is dismissed. (See Schedule 1(e) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Crystal Baluyut
[104] The defendant Dr. Crystal Baluyut is a psychiatrist at CAMH. Dr. Baluyut met with Mr. Kim regularly between October 22, 2007 and March 2010. Dr. Baluyut diagnosed Mr. Kim with schizophrenia, paranoid subtype, and recommended antipsychotic medication.
[105] Mr. Kim did not accept the diagnosis and did not fully commit to the treatment plan. Mr. Kim discharged himself as a patient at CAMH prior to March 2010. Dr. Baluyut last saw Mr. Kim on July 6, 2010, when he tried to convince Dr. Baluyut that he was not suffering from psychosis or schizophrenia and presented evidence that his actions and behaviour were being controlled by others and by synchronicities. Dr. Baluyut explained her continued opinion of a schizophrenia diagnosis and encouraged Mr. Kim to recommence treatment.
[106] Mr. Kim alleges negligence against Dr. Baluyut for diagnosing him with schizophrenia, rather than accepting his evidence of synchronicities. He further alleges that the various medications and dosages prescribed did not work and performed negatively. Mr. Kim alleges Dr. Baluyut and the defendant Ms. Vieni, who was his case manager, became obsessive over the diagnosis of psychosis and did not provide Mr. Kim with the appropriate duty of care.
[107] In oral argument he argued that Dr. Baluyut tried to overdose him and “did a lot of lying” by prescribing various medications. Dr. Baluyut tried different options for medications, as Mr. Kim complained that the medications were “ruining” his physical performance and his ability to study.
[108] The defence is Dr. Baluyut met the required standard of care at all times.
[109] The expert report from Dr. Peter Williamson, a psychiatrist, confirms that Mr. Kim received exemplary care from Dr. Baluyut, meeting the expected standard of care, as the assessments were thorough and the diagnosis was justified. The antipsychotic medications were appropriate and prescribed in reasonable levels, and Mr. Kim was appropriately monitored as to the effects of the medication prescribed.
[110] I conclude that Dr. Baluyut met the standard of care in the circumstances, and that there is no genuine issue for trial against her. Therefore the action against Dr. Baluyut is dismissed. (See Schedule 1(f) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Leslie Vieni
[111] The defendant Leslie Vieni is a registered nurse and was the case manager for Mr. Kim at the “First Episode Psychosis Clinic, Schizophrenia Program” at CAMH. Ms. Vieni met with Mr. Kim on a number of occasions between October 22, 2007 and March 2010. Mr. Kim alleges that Ms. Vieni was negligent as she made an improper diagnosis and wrongly prescribed or encouraged him to take medication. She inappropriately suggested that he try yoga, and also inappropriately suggested that if he was having difficulty with his medication, he could sleep over at CAMH so he could be monitored. He further alleges that Dr. Baluyut and Ms. Vieni became obsessive over their diagnosis of psychosis and did not provide him with the appropriate duty of care. Mr. Kim states that Ms. Vieni was negligent as she did not believe that Mr. Kim was being controlled by synchronicities controlling his performance.
[112] The defence is that Ms. Vieni acted reasonably and professionally in accordance with acceptable standards and pursuant to the directions of independent medical practitioners at all material times.
[113] The expert report from Dr. Peter Williamson, a psychiatrist, confirms that Mr. Kim received exemplary care from CAMH, meeting the expected standard of care. Assessments were thorough, the diagnosis was justified, and the medications prescribed were appropriate and within reasonable levels. The expert report does not mention Ms. Vieni specifically, but I conclude that she was part of the treatment team, and that the treatment rendered was appropriate. It is not within the scope of responsibilities of a nurse to prescribe medication or to diagnose patients.
[114] I conclude that Ms. Vieni met the standard of care of a psychiatric nurse and case manager, that that there is no genuine issue for trial against her. Therefore the action against Ms. Vieni is dismissed. (See Schedule 1(g) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Michael Cooke
[115] The defendant Michael Cooke is a Vice President, Academic at George Brown College. Mr. Cooke met with Mr. Kim starting in the fall of 2008 and last had contact with Mr. Kim in March 2010. Mr. Kim complained that his professors’ minds were being controlled and that they were making harassing gestures at him. Mr. Cooke referred Mr. Kim to various counselling services and even contacted a researcher, who confirmed that the mind control as discussed by Mr. Kim was impossible.
[116] Mr. Kim alleges that expert contacted was inappropriate, as his reply did not mention “computation neuroscience” or “quantum physics”. Further, Mr. Kim alleges that Mr. Cooke did not address the question of synchronicities nor the harassing behaviour from his professors that raised issues of human rights.
[117] The defence is that Mr. Cooke acted reasonably and sensitively at all times with Mr. Kim, and that he tried to offer the student services available to Mr. Kim at George Brown College.
[118] I conclude that Mr. Cooke acted reasonably in trying to assist Mr. Kim as an academic advisor, and encouraging him to comply with the advice of his doctors to take the prescribed medication. There is no genuine issue for trial against Mr. Cooke, and therefore the action against him is dismissed. (See Schedule 1(h) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Nitral Shah
[119] The defendant Nitral Shah is a licensed physiotherapist who was practicing at the David L. MacIntosh Sport Medicine Clinic. Mr. Shah met with Mr. Kim approximately six times between October 5, 2007 and April 14, 2008. Mr. Kim complained of pain in his right knee, right wrist, right shoulder, and fatigue and weakness. At the initial appointment, Mr. Kim discussed that he had electrical implants in his body from the government. At each appointment, Mr. Kim received treatment and instruction on how to perform the prescribed exercises. Mr. Kim did not complain about any of the prescribed exercise causing him pain. Mr. Kim did not attend the final appointment scheduled for April 15, 2008.
[120] Mr. Kim alleges that the prescribed exercises caused him further severe and extensive damage, that Mr. Shah caused bodily harm by criminal negligence by not requesting medical imaging when it was required, and that Mr. Shah committed a fraud in listing the rehabilitative exercises as aerobic. Mr. Kim also alleges that Mr. Shah did not report his allegations of medical malpractice against Mr. Charland.
[121] The defence is that at all times Mr. Shah provided competent and prudent physiotherapy treatment to Mr. Kim that met the appropriate standard of care.
[122] The expert report of Christian Séguin, a registered physiotherapist, confirms that the treatment Mr. Shah delivered was adequate and met the expected standard of care. Séguin further confirmed that the treatment plan was prudent and conservative and that the treatment rendered did not cause long-term injury, damage, or aggravation of a pre-existing condition.
[123] I conclude that Mr. Shah met the standard of care of a physiotherapist in the circumstances and that there is no genuine issue for trial in this matter. Therefore the action against Mr. Shah is dismissed. (See Schedule 1(i) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[124] Mr. Shah also raises a limitation defence. As the last contact with Mr. Shaw was in April 2008, and this action started in July 2011, the limitation period in this matter is exceeded, precluding this action from continuing.
The defendant Michael Barthmann
[125] The defendant Michael Barthmann is a licensed physiotherapist who was practicing at the Dundas University Health Clinic. Mr. Barthmann met with Mr. Kim on a number of occasions between May 11, 2009 and July 2010. Mr. Kim complained of pain in his right shoulder, left hip, left foot, left ankle, left pelvis, and left thigh. Mr. Barthmann performed various exercises on Mr. Kim and prescribed similar exercises for Mr. Kim to do at home. Mr. Kim did not complain that these exercises caused him pain.
[126] Mr. Kim alleges that Mr. Barthmann committed severe medical malpractice, as his treatment caused Mr. Kim severe long-term damage and injury by worsening a number of existing conditions. Mr. Kim also alleges criminal negligence because Mr. Barthmann did not suggest medical imaging. Mr. Kim further alleges that Mr. Barthmann should have obtained braces to align bone structure and skeletal deformities. Finally, Mr. Kim alleges that Mr. Barthmann should have assisted Mr. Kim with his complaints of negligence against Mr. Charland and Mr. Shah.
[127] The defence is that at all times Mr. Barthmann provided competent and prudent physiotherapy treatment that met the appropriate standard of care.
[128] The expert report from Christian Séguin, a registered physiotherapist, confirms that Mr. Barthmann delivered adequate, complete, and well-informed treatment to Mr. Kim, meeting the required standard of care. Mr. Barthmann’s treatment plan was prudent and conservative and did not cause long term injury, damage, or aggravation to a pre-existing condition.
[129] I conclude that Mr. Barthmann met the standard of care in the circumstances, and that the treatment plan was prudent and conservative. I find that the treatment did not cause further injury to the plaintiff. It is not within the scope of work of a physiotherapist to prepare braces, to realign bone structure, or to order medical imaging as suggested by Mr. Kim. There is no genuine issue for trial in this matter, and therefore the action against Mr. Barthmann is dismissed. (See Schedule 1(j) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. D’Arcy Gagnon
[130] The defendant Dr. Gagnon is a licensed physician who was working at the Downtown Doctors Walk In Medical Clinic. Dr. Gagnon met with Mr. Kim on five occasions, first on November 9, 2010, and finally on January 6, 2011. Mr. Kim originally complained of right arm pain and an x-ray was ordered.
[131] Mr. Kim then complained of other pain, in his heels and ankles, and requested a number of x-rays, some of which Dr. Gagnon ordered. Mr. Kim requested x-rays of twenty areas of his body, most of which Dr. Gagnon refused.
[132] In a number of these visits, Mr. Kim stated that he believed the University of Toronto was conducting experiments on him. Dr. Gagnon made a psychiatric referral. There is a note in Dr. Gagnon’s file that Mr. Kim’s behaviour was “very bizarre”.
[133] Mr. Kim alleges professional malpractice, as Dr. Gagnon did not show concern for his injuries in his forearms, instead suggesting that Mr. Kim should be taking the prescribed psychiatric medication. In oral argument Mr. Kim suggested that not only did Dr. Gagnon fail to order x-rays for twenty areas of his body, but that he failed to order further ultrasound tests.
[134] The defence is that Dr. Gagnon provided medical care, treatment, and services to Mr. Kim in a careful, competent, and prudent manner in accordance with the prevailing standard of practice.
[135] An expert report from Dr. Thompson, a licensed family physician, confirms that Dr. Gagnon provided exemplary care for Mr. Kim, meeting the expected standard of care. Dr Gagnon properly assessed and investigated Mr. Kim’s musculoskeletal complaints and offered appropriate referrals.
[136] I conclude that Dr. Gagnon met the standard of care in the circumstances, and that there is no genuine issue for trial in this matter. The number and scope of imaging and testing requested by Mr. Kim was not appropriate, and was more a reflection of his psychiatric diagnosis, not his physical problems. Therefore the action against Dr. Gagnon is dismissed. (See Schedule 1(k) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[137] In conclusion, the first action is dismissed in its entirety.
Action #2 Kim v. Brown CV-11-417575, commenced January 5, 2011
[138] The defendant Amanda Brown is a certified physiotherapist, practicing at On-The-Mark-It Physiotherapy and Sports Injury Clinic. Ms. Brown met Mr. Kim initially on December 8, 2010, when he complained of injuries in his right shoulder, left hip, and left ankle. Ms. Brown assessed Mr. Kim but did not provide treatment. Mr. Kim asked Ms. Brown to sign a medical expert form to testify against prior therapists, but Ms. Brown declined. On December 15, 2010, Mr. Kim returned and repeated his request to sign the expert form and Ms. Brown again declined. Ms. Brown prescribed a number of exercises and referred Mr. Kim to another clinic.
[139] On December 20, 2010, Mr. Kim returned without a scheduled appointment, complaining about the prescribed exercises and alleging fraud because Ms. Brown would not sign the witness form.
[140] Mr. Kim alleges that Ms. Brown committed a fraud by refusing to complete the expert witness form when it had been previously discussed on the phone. He also alleges medical malpractice, claiming that Ms. Brown ignored his claims of injury and further damaged his pre-existing injuries.
[141] Ms. Brown denies that she agreed to act as a medical expert, expert witness, or sign an expert witness document at any time. Ms. Brown also denies the allegations of medical malpractice and breach of professional standards, as she provided competent and prudent physiotherapy treatment that met the appropriate standard of care.
[142] The expert report from Christian Séguin, a registered physiotherapist, confirms that Ms. Brown’s treatment plan was prudent and conservative, that the treatment did not amount to medical malpractice or medical negligence, and that Ms. Brown met the appropriate standard of care. The expert confirms that by choosing conservative and prudent treatment plan, the treatment rendered by Brown on one occasion did not cause or contribute to Mr. Kim’s pre-existing injuries.
[143] I find that Ms. Brown met the standard of care in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Ms. Brown is dismissed. (See Schedule 2(a) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[144] The second action is dismissed.
Action #3 Kim v. Haq CV-12-444262, commenced January 20, 2012
[145] The defendant in this action is Dr. Farzana Haq, a physician practicing at the Emkiro Clinic as a family physician. Dr. Haq met Mr. Kim on five occasions, from March 17 to May 5, 2011. Mr. Kim originally complained of pain in his left knee and left shoulder and Dr. Haq ordered ultrasounds. However, Dr. Haq did not cede to Mr. Kim’s later requests for x-rays on his femur, fibula, right arm, or a whole body CT scan for his feet, shoulders, and mandible. The results of the left knee and left shoulder ultrasound tests were normal.
[146] Mr. Kim alleges that Dr. Haq did not provide enough medical imaging to properly diagnose his condition and did not provide proper treatment.
[147] The defence is that Dr. Haq met the required standard of care at all times.
[148] The expert report from Dr. Marmoreo, a family physician, confirms that Dr. Haq’s assessments were thorough and her diagnostic tools appropriate. Dr. Haq provided more than the expected level of care from a family physician in Ontario.
[149] I conclude that Dr. Haq met the standard of care in the circumstances, and that she properly refused the requests of Mr. Kim for further medical images. There is no genuine issue for trial in this matter, and therefore the action against Dr. Haq is dismissed. (See Schedule 3(a) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[150] The third action is dismissed.
Action #4 Kim v. Platzer CV-12-444549, commenced January 20, 2012 (the Walk In Clinic Action)
[151] By way of overview, Mr. Kim’s complaints against this group of doctors practicing from the Doctor’s Office walk in clinic is that they failed to properly interpret medical imaging, failed to diagnose and report fractures, and failed to order additional medical imaging and MRI testing requested by Mr. Kim. Mr. Kim wanted the additional medical imaging that was refused in support of his action against Ms. Amanda Brown, in Action #2.
The defendant Dr. Alan Tan
[152] The defendant Dr. Tan is a family physician practicing at the Doctor’s Office walk in clinic located at Bay and Dundas in the City of Toronto. Dr. Tan met Mr. Kim on March 25, 2011 and May 25, 2011. Mr. Kim complained of numerous musculoskeletal complaints and Dr. Tan ordered x-rays on both occasions.
[153] Mr. Kim alleges that Dr. Tan did not provide proper medical services or proper and immediate treatment. Specifically, Mr. Kim alleges that Dr. Tan gave him only limited x-ray imaging and not the requested MRI or ultrasound imaging that he requested.
[154] The defence is that Dr. Tan met the required standard of care at all times.
[155] The expert report of Dr. Marmoreo, a family physician, confirms that Dr. Tan and the other physicians at the clinic provided Mr. Kim with care that more than met the standard of care expected of a family physician in Ontario. The extra testing requested by Mr. Kim was not warranted.
[156] I conclude that Dr. Tan has met the standard of care in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. Tan is dismissed. (See Schedule 4(a) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Wilson Ayoung-Chee
[157] The defendant Dr. Ayoung-Chee is a family physician practicing at the same Doctor’s office walk in clinic as Dr. Tan. Dr. Ayoung-Chee met Mr. Kim on March 26, 2011. Mr. Kim complained of numerous musculoskeletal complaints and Dr. Ayoung-Chee ordered multiple x-rays.
[158] Mr. Kim alleges that Dr. Ayoung-Chee did not order additional medical imaging or an MRI as required, nor did he provide treatment for his existing injuries.
[159] The defence is that Dr. Ayoung-Chee met the required standard of care at all times.
[160] The export report of Dr. Marmoreo, a family physician, confirms that Dr. Ayoung-Chee and the other physicians at the clinic provided Mr. Kim with care that more than met the standard of care expected of a family physician in Ontario.
[161] I conclude that Dr. Ayoung-Chee met the standard of care in the circumstances, and that the additional tests demanded by Mr. Kim were not necessary or appropriate. There is no genuine issue for trial in this matter, and therefore the action against Dr. Ayoung-Chee is dismissed. (See Schedule 4(b) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Ayman Al-Arabi
[162] The defendant Dr. Al-Arabi also is family physician practicing at the Doctor’s Office walk in clinic. Dr. Al-Arabi first met Mr. Kim on April 11, 2011, when he presented with an injury to his right heel. Medication was prescribed but no x-rays were ordered. Dr. Al-Arabi met Mr. Kim three further times in May 2011, to review his x-rays and in regard to complaints that he was having difficulty concentrating and a hand condition. Dr. Al-Arabi referred Mr. Kim to a psychiatrist who is not a defendant to this action, who reached a diagnosis of schizophrenia, paranoid subtype.
[163] Mr. Kim alleges that Dr. Al-Arabi did not provide him with the ultrasound and x-rays his medical condition required.
[164] The defence is that Dr. Al-Arabi met the required standard of care at all times.
[165] The expert report from Dr. Marmoreo, a family physician, confirms that Dr, Al-Arabi and the other physicians at the clinic provided Mr. Kim with care that more than met the standard of care expected of a family physician in Ontario.
[166] I conclude that Dr. Al-Arabi met the standard of care in the circumstances of this case, and that the additional tests that Mr. Kim demanded were not necessary or appropriate. There is no genuine issue for trial in this matter, and therefore the action against Dr. Al-Arabi is dismissed. (See Schedule 4(c) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Steve Goldhar
[167] The defendant Dr. Goldhar is also a family physician practicing at the Doctor’s Office walk in clinic. Dr. Goldhar met with Mr. Kim a number of times in April 2011 and on July 12, 2011. Dr. Goldhar ordered x-rays, reviewed the results with Mr. Kim, and referred him to a rheumatologist to rule out fibromyalgia in his hands.
[168] Mr. Kim alleges that Dr. Goldhar did not take care of his medial plantar arch and femoro-acetabular impingement, nor did he order ultrasound medical imaging or an MRI.
[169] The defence is that Dr. Goldhar met the required standard of care at all times.
[170] The expert report from Dr. Marmoreo, a family physician, confirms that Dr. Goldhar and the other physicians at the clinic provided Mr. Kim with care that more than met the standard of care expected of a family physician in Ontario.
[171] I conclude that Dr. Goldhar met the standard of practice in the facts of this case. He additional tests demanded by Mr. Kim were not appropriate in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. Goldhar is dismissed. (See Schedule 4(d) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Daniel Platzker
[172] The defendant Dr. Platzker is also a family physician, practicing at the Doctor’s Office walk in clinic. Dr. Platzker met with Mr. Kim on May 17, 2011, and June 2, 2011. At these meetings, Mr. Kim complained of a hand condition, pain in his shoulder and elbow. As well Mr. Kim discussed his theory of synchronicity and subliminal messages. Dr. Platzker ordered an ultrasound of the hand, advised that he attend the Women’s College Hospital ER for a sling, and discussed referring Mr. Kim to a psychiatrist.
[173] Mr. Kim alleges that Dr. Platzker did not order an MRI for his shoulders, elbows, and hands, did not correctly diagnose his condition, and did not investigate his concerns regarding synchronicity.
[174] The defence is that Dr. Platzker met the required standard of care at all times.
[175] The expert report from Dr. Marmoreo, a family physician, confirms that Dr. Platzker and the other physicians at the clinic provided Mr. Kim with care that more than met the standard of care expected of a family physician in Ontario.
[176] I conclude that Dr. Platzker met the standard of care in the circumstances of this case. It was appropriate to discuss a psychiatric referral, and the requests made by Mr. Kim for further testing was not appropriate. There is no genuine issue for trial in this matter, and therefore the action against Dr. Platzker is dismissed. (See Schedule 4(e) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Karen Bir
[177] The defendant Dr. Bir is a rheumatologist who was referred to Mr. Kim by Dr. Goldhar to assess a possible diagnosis of fibromyalgia.
[178] Dr. Bir assessed Mr. Kim on June 8 and June 30, 2011. He presented with a number of injuries and pain in a number of areas. Dr. Bir ordered x-rays and blood work but declined to order an MRI. Mr. Kim did not attend the lab for blood work. The x-rays came back normal and Dr. Bir suggested that Mr. Kim follow up with his family doctor.
[179] Mr. Kim disputed Dr. Bir’s interpretations of the x-rays. On October 18 and 19, 2011, Mr. Kim contacted Dr. Bir’s office to note his dissatisfaction with his care and the interpretation of the x-rays. Dr. Bir reported these meetings to Dr. Goldhar. Mr. Kim alleges that the x-rays were insufficient and that Dr. Bir did not correctly diagnose his injuries.
[180] The defence is that Dr. Bir met the required standard of care at all times.
[181] An expert report from Dr. Jovaisis, a rheumatologist, confirms that Dr. Bir met the standard of care by a rheumatologist in Ontario, as the presenting problem was clearly identified, the history and physical examination was appropriate, and the investigations and follow up were also appropriate.
[182] I conclude that Dr. Bir met the standard of care in the circumstances of this case. There is no genuine issue for trial in this matter, and therefore the action against Dr. Bir is dismissed. (See Schedule 4(f) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[183] In conclusion, the fourth action is dismissed in its entirety.
Action #5 Kim v. Dushenski CV-12-444541 commenced January 20, 2012 (the Mount Sinai Emergency Action)
The defendant Dr. David Dushenski
[184] The defendant Dr. Dushenski is a physician practicing at the emergency room at Mount Sinai hospital. Dr. Dushenski first met with Mr. Kim on May 15, 2011, when he assessed Mr. Kim’s multiple musculoskeletal complaints. The physical examination was normal and Dr. Dushenski recommended Mr. Kim attend the hospital’s sports medicine clinic.
[185] Dr. Dushenski again assessed Mr. Kim at the emergency room on June 29, 2011 for ankle, hip, and foot pain. The physical examination was normal. Mr. Kim became angry and agitated when advised of Dr. Dushenski’s findings.
[186] Mr. Kim alleges that Dr. Dushenski did not provide him with the appropriate medical imaging or treatment to his numerous physical injuries.
[187] The defence is that Dr. Dushenski met the required standard of care at all times.
[188] The expert report from Dr. Sayal, an emergency physician, confirms that the standard of care by Dr. Dushenski to Mr. Kim “most definitely” met the expected standard of care for an emergency physician in Ontario and his decisions were fully supported by the facts of the case.
[189] I conclude that Dr. Dushenski met the standard of care in the circumstances of this case. There is no genuine issue for trial in this matter, and therefore the action against Dr. Dushenski is dismissed. (See Schedule 5(a) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Ron Taylor
[190] The defendant Dr. Taylor is a sports medicine physician practicing at the Rehab and Wellness sports medicine clinic at Mount Sinai hospital.
[191] Dr. Taylor first met Mr. Kim on May 25, 2011, when he presented musculoskeletal complaints relating to his right shoulder and hip and asked for an MRI. The physiotherapist and Dr. Taylor conducted an assessment and diagnosed Mr. Kim with right rotator cuff impingement syndrome. Dr. Taylor declined to order an MRI.
[192] Mr. Kim returned to the clinic on May 31, 2011. Dr. Taylor assessed the Mr. Kim’s hip, suggested a home exercise program and a physiotherapy referral, and declined to order an MRI. Mr. Kim became angry and aggressive when he was informed that an MRI would not be ordered and was asked to leave the clinic. Mr. Kim also contested the findings of Dr. Taylor that any x-rays were normal.
[193] Mr. Kim alleges that Dr. Taylor did not give him the medical imaging that he knew was required, neglected his concerns that previous doctors and physiotherapists had caused him harm, and recommended treatment that caused him more harm.
[194] The defence is that Dr. Taylor met the required standard of care at all times.
[195] The expert report from Dr. Marmoreo, a family physician, confirms that Dr. Taylor more than met the standard of care expected of a family physician in Ontario, as the assessment and treatment plan were thorough, comprehensive, and detailed.
[196] I conclude that Dr. Taylor met the standard of care in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. Taylor is dismissed. (See Schedule 5(b) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Miriam Granek
[197] The defendant Miriam Granek is a physiotherapist practicing with Dr. Taylor at the Rehab and wellness clinic associated with Mount Sinai hospital.
[198] Ms. Granek first met Mr. Kim on May 25, 2011, when he attended the clinic complaining of numerous musculoskeletal issues including his right shoulder. He requested an MRI. Ms. Granek assessed Mr. Kim’s right shoulder and reviewed simple shoulder exercises with him.
[199] Mr. Kim returned to the clinic on May 31, 2011. Ms. Granek assessed Mr. Kim’s left hip and performed some stretching. She diagnosed his hip as having left anterior innominate rotation dysfunction with mild left anterior hip impingement. Ms. Granek agreed with Dr. Taylor’s diagnosis of Mr. Kim’s right shoulder as a right rotator cuff impingement syndrome, and that no MRI was necessary. Mr. Kim left the clinic angry when he was informed that an MRI would not be ordered.
[200] Mr. Kim alleges that Ms. Granek did not tell him what conditions he had, did not complete a thorough enough assessment, and did not order an MRI when one was necessary. Mr. Kim further alleges that on the second visit, Ms. Granek’s assessment and treatment left him in pain, affecting his gait condition, and the prescribed exercise treatment was abnormal, irregular, and worsened his conditions. Mr. Kim alleged that Ms. Granek overstretched his femur during the evaluation, causing further deterioration to the existing condition. Mr. Kim also complains that Ms. Granek did not adequately follow up on his concerns of medical malpractice and negligence arising from treatment received from his previous physiotherapists.
[201] The defence is that Ms. Granek carried out all examinations and diagnoses in a careful, competent, and diligent manner. Ms. Granek expressly denies all allegations, noting that she did not assess or treat Mr. Kim’s back or arms, and that Mr. Kim did not complain of pain during his assessment and treatments.
[202] The expert report from Christian Séguin, a registered physiotherapist, confirms that the treatment that Ms. Granek provided met the required standard of care, that her assessment findings were consistent with her clinical impression and her treatment plan was prudent and conservative and did not aggravate any pre-existing condition.
[203] I conclude that Ms. Granek met the standard of care required in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Ms. Granek is dismissed. (See Schedule 5(c) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Shauna Martiniuk
[204] The defendant Dr. Shauna Martiniuk is also a physician practicing at the emergency department at Mount Sinai hospital.
[205] Dr. Martiniuk met Mr. Kim on May 31, 2011, when he attended the emergency department complaining of hip pain arising from physiotherapy and requesting an MRI. Dr. Martiniuk assessed Mr. Kim, finding normal gait and range of motion in both hips. Dr. Martiniuk advised Mr. Kim to follow up with Dr. Taylor and to return to the emergency room if he had any new signs or symptoms.
[206] Mr. Kim alleges that Dr. Martiniuk did not treat his complaints, did not order MRI or ultrasound medical imaging as required, and did not tell Mr. Kim of proper resting positions or that he required medical instruments [this later allegation is in his claim, and Mr. Kim did not clarify this aspect of his complaint in his affidavit or oral submissions].
[207] The defence is that Dr. Martiniuk met the required standard of care at all times.
[208] The expert report of Dr. Sayal, an emergency physician, confirms that the care provided by Dr. Martiniuk to Mr. Kim unequivocally met the expected standard of care for an emergency physician in Ontario, as the physical exam was thoughtful and complete, an appropriate follow up was arranged, and an MRI was not necessary in the circumstances.
[209] I conclude that Dr. Martiniuk met the standard of care in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. Martiniuk is dismissed. (See Schedule 5(d) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[210] In conclusion, the fifth action is dismissed in its entirety.
Action #6 Kim v. Schreader CV-12-444136, commenced January 16, 2012
[211] The only defendant in this action is Dr. Alicia Schraeder, a family physician practicing in Toronto. She met Mr. Kim on one occasion on June 8, 2011, when Mr. Kim made an appointment seeking a new family doctor.
[212] At this meeting, Mr. Kim informed Dr. Schreader that had previously been evaluated for the same problems by numerous physicians, one of whom had ordered an MRI. Dr. Schreader advised Mr. Kim that in order to ensure continuity of care, he should follow up with the physician who ordered the MRI, and that if he needed urgent care, he could attend a walk in clinic, urgent care centre, or emergency department.
[213] Mr. Kim alleges that Dr. Schreader did not provide him with the standard duty of care, did not provide proper treatment or read x-rays professionally, and did not agree to act as an expert witness against his previous physiotherapists and physicians. Further, Mr. Kim alleges that Dr. Schreader did not properly assess a second degree burn or prescribe an anti-infection cream. As well, Dr. Schreader failed to adequately consider his of the synchronicities that were influencing him.
[214] The defence is that Dr. Schreader met the required standard of care at all times.
[215] The expert report from Dr. Marmareo, a family physician, confirms that Dr. Schreader more than met the expected standard of care for family physicians in Ontario, as her assessment was thorough, reasoned, detailed, and respectful.
[216] I conclude that the care offered by Dr. Schreader met the standard of care in the circumstances. It was wise not to accept Mr. Kim as a new patient given Mr. Kim’s history. Her advice about continuity of treatment was entirely appropriate. There is no genuine issue for trial in this matter, and therefore the action against Dr. Schreader is dismissed. (See Schedule 6(a) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[217] In conclusion, the sixth action is dismissed in its entirety.
Action #7 Kim v. Lexchin CV-12-444367, commenced January 18, 2012 (the University Health Network Emergency Action
The defendant Dr. Joel Lexchin
[218] The defendant Dr. Lexchin is a physician practicing at the emergency department of the Toronto General Hospital, part of the University Health Network.
[219] He met Mr. Kim on June 29, 2011, which was the same day that Mr. Kim had met with Dr. Dushenski and left in anger from the Mount Sinai Emergency clinic.
[220] Mr. Kim attended the UHN emergency department complaining of ankle pain and requesting an MRI. Dr. Lexchin performed an ankle exam and reviewed an x-ray which was ordered by a nurse practitioner. No abnormality was found on assessment and the x-ray was normal. Mr. Kim asked to take photos of the x-rays to compare the photos of the x-rays with photos of normal and fractured ankles available on the internet. Dr. Lexchin advised Mr. Kim to follow up with his family doctor.
[221] Mr. Kim alleges that Dr. Lexchin injured his ankle further, did not order other required x-rays, and misinterpreted the results of the x-ray.
[222] The defence is that Dr. Lexchin met the required standard of care at all times.
[223] The expert report of Dr. Sayal, an emergency physician, confirms that a full examination took place. X-rays were ordered, and there were no abnormalities identified. Dr. Sayal reviewed the x-rays and confirmed the advice given. The treatment plan of ibuprofen and acetaminophen and referral to the family doctor was appropriate. An MRI was not warranted. Dr. Sayal confirmed that the standard of care Dr. Lexchin provided to Mr. Kim most definitely met the expected standard of care for an emergency physician in Ontario.
[224] I conclude that Dr. Lexchin met the standard of care in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. Lexchin is dismissed. (See Schedule 7(a) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Matthew Hodge
[225] The defendant Dr. Hodge is another emergency room physician practicing at the Toronto General Hospital, part of the University Health Network. Dr. Hodge met Mr. Kim on June 30, 2011, when Mr. Kim returned to the emergency department to question the results of the x-ray taken the day before. Dr. Hodge reviewed the x-ray image and report and explained to Mr. Kim that the x-ray did not reveal a fracture of his left ankle.
[226] Mr. Kim alleges that Dr. Hodge did not properly diagnose his fracture, misread his x-ray, and failed to order x-rays for his knee and femur.
[227] The defence is that Dr. Hodge met the required standard of care at all times.
[228] The expert report of Dr. Sayal, an emergency physician, confirms that the care Dr. Hodge provided to Mr. Kim most definitely met the standard of expected standard of care for an emergency physician in Ontario, as he thoroughly reviewed the x-ray and confirmed no fracture existed. Dr. Sayal reviewed the same x-rays and reached the same conclusion.
[229] I conclude that Dr. Hodge met the standard of care in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. Hodge is dismissed. (See Schedule 7(b) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Catherine Beaudreau
[230] Mr. Kim returned to the emergency department again on June 30, 2011 as he was not satisfied with the opinion of Dr. Lexchin that there were no fractures evident. He was initially seen by the defendant Catherine Beaudreau, who is a registered nurse practitioner at the UHN emergency department, as well as a student. Mr. Kim questioned the conclusions reached by Dr. Lexchin and by Ms. Beaudreau that there was no fracture visible.
[231] The defence is that Mr. Kim was appropriately cared for by Ms. Beaudreau in accordance with her role as a nurse practitioner conducting the preliminary assessment, under the direction of the emergency room physicians. The x-rays and the radiologist report confirmed there were no fractures. Ms. Beaudreau confirmed this advice to Mr. Kim. When Mr. Kim became verbally abusive with Ms. Beaudreau, Dr. Hodge intervened. He confirmed the advice given by Ms. Beaudreau that there was no fracture, and discharged Mr. Kim.
[232] Ms. Beaudreau relies upon the expert opinion of Dr. Sayal, confirming that no fractures were present, and that the standard of care at the hospital had been met. Dr. Sayal confirms in his report that Mr. Kim was assessed thoroughly by Ms. Beaudreau and a student nurse practitioner. They reviewed the x-rays and the radiologist report from the previous day and confirmed that no fracture existed. Dr. Sayal reviewed the x-rays, and confirmed the advice given to Mr. Kim by Ms. Beaudreau, as well as the doctors.
[233] I conclude that Ms. Beaudreau met the standard of care in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Ms. Beaudreau is dismissed. (See Schedule 7(c) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[234] In conclusion, the seventh action is dismissed in its entirety.
Action #8 Kim v. Freedman and Klejenak, commenced January 16, 2012
The defendant Paul Freedman
[235] The defendant Paul Freedman is a Mental Health Clinician at the Toronto Western Hospital. Mr. Freedman first met Mr. Kim on May 16, 2011, when Mr. Kim attended for a preliminary psychiatric assessment following a referral from a family physician who is not a defendant. Mr. Kim cancelled his follow up appointment on May 30, 2011. Mr. Freeman prepared a detailed report that was forwarded to the referring physician.
[236] On October 4, 2011, Mr. Kim attended the hospital for a further psychiatric assessment performed by Mr. Freedman and the defendant Dr. Kljenak. Mr. Kim was diagnosed with schizophrenia and medication was suggested for treatment. A further comprehensive report was prepared by Dr. Kljenak and forwarded to the referring physician.
[237] Mr. Kim alleges that Mr. Freedman did not seem concerned with social and cultural problems and synchronicity discussed with him at the first meeting. Mr. Kim further alleges that Mr. Freedman’s attendance at the October 4, 2011, appointment created a biased environment.
[238] The defence is that Mr. Freedman cared for Mr. Kim appropriately, as he acted at all times reasonably and in accordance with the accepted standards of practice of a psychiatric social worker and pursuant to the directions of independent medical practitioners. Mr. Freedman denies that there was a breach of duty, want of care, or negligence.
[239] The expert report of Dr. Peter Williamson, a psychiatrist, confirms that Mr. Freedman provided exemplary care to Mr. Kim, meeting the standard of care of a mental health clinician with training in social work. The assessments prepared by Mr. Freeman were thorough, the diagnosis was justified, and the proposed treatment was appropriate.
[240] I conclude that Mr. Freedman met the standard of care appropriate in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Mr. Freedman is dismissed. (See Schedule 8(a) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
The defendant Dr. Diane Kljenak
[241] The defendant Dr. Klejnak is a psychiatrist practicing at the Toronto Western Hospital. Dr. Klejnak met Mr. Kim on October 4, 2011, when Mr. Kim attended for a psychiatric assessment with Mr. Freedman. Mr. Kim presented with psychotic symptoms including delusions evidenced by his references to synchronicity. Mr. Kim was diagnosed with schizophrenia and antipsychotic medication was advised. Mr. Kim refused this treatment.
[242] Mr. Kim alleges that Dr. Klejnak was biased, gave him only basic assessment, did not contact the authorities, and did not address his scientific concerns. Mr. Kim further complains that Dr. Klejnack refused to provide testimony against others who had previously provided treatment.
[243] The defence is that Dr. Kljenak met the required standard of care at all times.
[244] The expert report from Dr. Williamson, a psychiatrist, confirms that Dr. Klejnak provided exemplary care to Mr. Kim meeting the standard of care in this situation. The assessment prepared by Dr. Kljenak was thorough, the diagnosis was justified, and the proposed treatment was appropriate.
[245] I conclude that the standard of care has been met by Dr. Kljenak in the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. Kjenak is dismissed. (See Schedule 8(b) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[246] In conclusion, the eighth action is dismissed in its entirety.
Action #9 Kim v. So CV-12-444103 commenced January 16, 2012
[247] In the final action, the only defendant is Dr. Boris So, a family physician practicing at a walk in clinic in Toronto.
[248] Dr. So met Mr. Kim on December 20, 2011, when Mr. Kim attended the clinic with complaints of pain in his left shoulder and arm, and requested Dr. So to follow up on the results of previous physicians’ investigations. Dr. So suggested Mr. Kim follow up with the physicians who ordered the tests or his family doctor. Dr. So expressed the view that it was not reasonable for Dr. So to re-order tests already conducted by other physicians. Mr. Kim reported being controlled by satellites and was aggressive and argumentative throughout the appointment.
[249] Mr. Kim alleges that Dr. So did not provide him with the standard duty of care, did not care for his injuries, and did not agree to act as an expert witness in regard to his other medical malpractice and criminal negligence actions.
[250] The defence is that Dr. So met the required standard of care at all times.
[251] The expert report of Dr. Marmareo, a family physician, confirms that Dr. So more than met the standard of care expected of a family physician in Ontario in his care of Mr. Kim, as his assessment was reasoned, compassionate, reassuring, and non-judgmental.
[252] I conclude that the standard of care has been met by Dr. So in all of the circumstances. There is no genuine issue for trial in this matter, and therefore the action against Dr. So is dismissed. (See Schedule 8(b) of the Compendium Exhibit 1 for the summary of the evidence relevant to this defendant).
[253] The ninth action is dismissed in its entirety.
5. Overall Conclusions
[254] In summary, I conclude that all nine actions against all 30 defendants fail to disclose a genuine issue for trial and all nine actions are therefore dismissed.
[255] As mentioned above, the Court of Appeal in Combined Air developed the “full appreciation test” as a primary guideline to decide whether or not a trial is necessary in the interest of justice.
[256] In my view, the evidence is clear that these actions fall within the second category of cases described in Combined Air, that is, that Mr. Kim’s claims against all of the defendants have no chance of success. It is not necessary to use the enhanced powers for drawing inferences from the evidence in accordance with the new Rule 20, as applying the test of a genuine issue for trial applicable in summary judgment motions confirms that there is no possible merit to Mr. Kim’s claims.
[257] Clearly, Mr. Kim has fixed false beliefs about the nature of his injuries and the validity of his claims. He continues to refuse to accept the diagnosis of schizophrenia, paranoid subtype. He continues to be convinced of his theory of synchronicities and made various arguments to this effect, including showing me the videos of him brake dancing as proof of his theory that he is controlled by outside forces.
[258] The evidence confirms that throughout this lengthy saga, Mr. Kim sought expert medical opinion challenging the prior treatments by other professionals. Not one professional has criticized the previous treatment rendered.
[259] The defence experts without exception are of the opinion that the treatment rendered by the various professionals met or exceeded the required standard of care, and that the treatment was appropriately and sensitively given in Mr. Kim’s circumstances.
[260] Where allegations of medical negligence in a statement of claim are not supported by an expert report, it is well-recognized that a genuine issue for trial has not been raised, and summary judgment ought to be granted to the defendant: see Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208, at para. 27, Samuel v. Ho, at paras. 26-34, Kurdina v. Gratzer, at paras. 21-25; Claus v. Wolfman, (2000), 1999 CanLII 14824 (ON SC), 52 O.R. (3d) 673 (S.C.J.), at para. 12, aff’d 2000 CanLII 22728 (ON CA), [2000] O.J. No. 4818 (C.A.); Foote v. Kim.
[261] In this case, there is no support for Mr. Kim’s allegations against the health professionals including all of the nineteen doctors, the four physiotherapists, the one massage therapist, the two nurses, the one social worker, and the one chiropodist. There is also no genuine issue for trial with respect to the assistance rendered by the two academic advisors.
[262] One of the defendants, Ms. Cornack, registrar at University of Toronto, also seeks to have the action against her dismissed under Rule 21 of the Rules of Civil Procedure.
[263] As Whitaker J. stated Foote v. Kim, at paragraph 18:
The courts have identified a number of factors which may be indicative of vexatious proceedings (McTeague v. Kalevar, [2005] O.J. No. 314 ... at paras 27-61):
(a) bringing one or more actions to deal with a dispute already decided by the court;
(b) where it is obvious that an action cannot proceed or nothing of any use can be accomplished by maintaining the action;
(c) actions brought for improper or collateral purposes;
(d) actions based on grounds rolled forward into subsequent actions, repeated and supplemented;
(e) actions against counsel who have acted against the litigant;
(f) patterns of litigious conduct.
[264] I echo the conclusion of Whitaker J. at paragraph 19, that each of the above factors can be identified in Mr. Kim’s behaviour and conduct in the nine actions before the court.
[265] I conclude that all of these actions against all of the defendants, not only the action of Ms. Cornack, are an abuse of process within the meaning of Rule 21 of the Rules of Civil Procedure. Mr. Kim tirelessly and relentlessly has sought treatment and diagnostic tests for non-existent or exaggerated injuries. Each of these nine actions are frivolous and vexatious, wasting precious resources in both our over-loaded health care system and in the justice system.
6. Disposition of Costs
[266] At the conclusion of the argument, I advised Mr. Kim that all of the actions would be dismissed, and I heard submissions on behalf of all defendants as to costs.
[267] All of the defendants sought some sort of award of costs if successful with their motions, varying between requests for some $1500.00 per defendant on behalf of several of the doctors, and up to $8500.00 requested by other defendants.
[268] Counsel were sensitive to the reality that Mr. Kim suffers from a psychiatric illness, does not work, and is impecunious. Counsel acknowledge that any award for costs is more symbolic than real, as the chances of collection of any award made are virtually non-existent.
[269] However, counsel spoke eloquently of the frustration experienced by the defendants, and the time, energy, and resources wasted by these nine lawsuits. The defendants want peace and want to get on with their work without interference from Mr. Kim or any other litigant like him. The defendants argue that an award of costs is a symbolic gesture by the court, not to compensate for fees actually incurred, which greatly exceed their requests, but to bring home to Mr. Kim and others that there are consequences for irresponsible conduct for all litigants, regardless of their circumstances.
[270] For this reason, I am of the view that an award of costs is justified and required. I therefore order costs fixed and payable by Mr. Kim in favour of each defendant in all of the actions in the amount of $1500.00 per defendant.
[271] I am confident that if Mr. Kim ceases his pursuit of these actions, that the defendants will not pursue the issue of costs.
7. No further actions may be commenced without leave of the Court
[272] Mr. Kim made a comment during the argument that he had plans to bring other actions against other individuals, or perhaps against the defendants sued in these actions. I made it clear to Mr. Kim during the argument that he is precluded from bringing any future action in any court as he has been declared to be a vexatious litigant. Mr. Kim did not seem to understand the effect of Justice Whitaker’s order. I explained to him, and I reiterate now, that he is precluded from bringing any future action in any court unless he obtains leave from a judge of that court prior to initiating his lawsuit.
[273] I reiterate the concerns expressed by Mr. Cooke, that Mr. Kim has potential if he would only take his medication and seek psychiatric help for his condition.
[274] I thank counsel for their professionalism and understated approach to the matters before me.
J. Wilson J.
Released: December 4, 2012