SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-436115
DATE: 20121220

RE: HEM RAMLALL

Plaintiff

• and -

ONTARIO FAMILY MEDICINE PROGRAMS (OFMP/OCFP), McMASTER UNIVERSITY, QUEEN’S UNIVERSITY, UNIVERSITY OF OTTAWA and UNIVERSITY OF TORONTO

Defendants

BEFORE: Justice S. M. Stevenson

COUNSEL: The Plaintiff, Appearing in Person

Sarah L. Jones , for the Defendants McMaster University, Queen’s University and University of Ottawa

Jed Blackburn , for the Defendant University of Toronto

DATE HEARD: November 29, 2012

E N D O R S E M E N T

Introduction

[ 1 ] The plaintiff, Hem Ramlall ("Mr. Ramlall") is an international medical graduate who has been attempting to be admitted into a Canadian medical residency program. Mr. Ramlall has applied for admission to a first-year family medical residency program position ("PGY-1") on a number of occasions since 1985. His most recent application was in 2010. Each time Mr. Ramlall has been unsuccessful in obtaining a position.

[ 2 ] Mr. Ramlall has commenced at least five separate actions or applications for judicial review regarding his lack of success in securing a PGY-1 position. Within these proceedings, he has brought numerous motions and appeals of both final and interlocutory orders.

[ 3 ] Mr. Ramlall's current action involves claims for restitution, damages/costs, resulting from the actions of the defendant, Ontario Family Medicine Programs ("OFMP"), which is not a legal entity, and that was formed by six university medical schools, for failure to grant him an interview and dismissal of his application to certain family medicine residency programs. He also requests an order asking "these Defendants the ‑ (OFMP/OCFP) ‑ to make amends by admitting him for training in a family medicine residency program without any further delay". Mr. Ramlall alleges that the defendants "abused [their] process and power", "failed to act in good faith…in carrying out their duties", "acted negligently", and "treated him unequally". Mr. Ramlall also claims a violation of his Charter rights.

[ 4 ] The university defendants submit that Mr. Ramlall's claim is frivolous, vexatious and an abuse of process as it is an attempt to re-litigate previous proceedings which have all been dismissed or discontinued. They further submit that the present action has been commenced on essentially the same facts as were alleged against previous defendants, the Ontario International Medical Graduate Program ("OIMGP"), Council of Ontario Faculties of Medicine ("COFM"), the Government of Ontario, the Canadian Resident Matching Service ("CARMS"), the Association of Faculties of Medicine of Canada, and others.

[ 5 ] The defendants further contend that it is plain and obvious that Mr. Ramlall's claim cannot succeed as a reasonable cause of action does not exist and the Statement of Claim involves academic issues and decisions over which universities enjoy broad discretion. The university defendants seek an order dismissing the claim and/or order striking the claim.

Facts

[ 6 ] In 1997, Mr. Ramlall brought an application against the OIMGP, COFM, the Attorney General of Ontario, and the Minister of Health. Mr. Ramlall sought judicial review of the decision to deny his application for admission into the OIMGP. Mr. Ramlall's application was denied and his motions for leave to appeal were dismissed by the Ontario Court of Appeal and the Supreme Court of Canada.

[ 7 ] In 2004, Mr. Ramlall commenced an action against the Government of Ontario seeking damages for his lack of admittance into a medical residency training program. Horkins J. granted a motion to strike on the basis of cause of action estoppel and the lack of a reasonable cause of action. The decision was upheld by the Ontario Court of Appeal.

[ 8 ] In 2005, Mr. Ramlall commenced two actions against CARMS, one before the Federal Court and one before the Superior Court of Justice. The Federal Court action was dismissed on the basis that it was plain and obvious that it could not possibly succeed. Further, a motion for reconsideration of the order dismissing the action was dismissed.

[ 9 ] In the second action, CARMS was named as a defendant as well as the Association of Faculties of Medicine of Canada and several individual Ministers. Mr. Ramlall alleged that he received discriminatory treatment with respect to his attempts to obtain a residency placement. On a Rule 21 motion, Swinton J. struck Mr. Ramlall's claim for failing to disclose a reasonable cause of action, and on the basis of cause of action estoppel and abuse of process. (See: Ramlall v. Canadian Resident Matching Service , 2006 28108 (ON SC))

[ 10 ] In February 2011 Mr. Ramlall commenced another related action against the COFM. The defendants allege that the allegations made in that action are again essentially the same as in the present action. Mr. Ramlall discontinued that action on June 9, 2011.

[ 11 ] Mr. Ramlall also acknowledges in his Statement of Claim that he made unsuccessful complaints to the Ontario Human Rights Commission.

Issues

[ 12 ] The issues to be considered are:

i) 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 of Civil Procedure , R.R.O. 1990, Reg. 194?

ii) Should Mr. Ramlall's claim be struck under Rule 21.01(1)(b) without leave to amend, on the ground that it discloses no reasonable cause of action?

iii) Should the action be dismissed as being outside the court's jurisdiction due to the broad discretion over academic decisions afforded to universities, subject only to an application for judicial review?

[ 13 ] The relevant sections of the Rules of Civil Procedure 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,

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

(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.

25.11 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.

(i) 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 of Civil Procedure ?

[ 14 ] I find that Mr. Ramlall’s claim is an attempt to re-litigate claims made in prior proceedings and allowing the claim to proceed would be an abuse of process.

[ 15 ] This action concerns Mr. Ramlall's inability to obtain a PGY-1 position in Ontario which is the same issue he raised previously in at least five separate court proceedings. Horkins J. dismissed Mr. Ramlall's previous action on February 11, 2005 on the basis of cause of action estoppel and abuse of process, since the underlying facts were the same as those that gave rise to the previous Application that had been brought by Mr. Ramlall. Justice Horkins also held that there is no constitutional right to practice medicine and any restriction on access to PGY-1 positions does not constitute a breach of section 15 of the Charter . As such, she found that no reasonable cause of action existed. ( Ramlall v. The Government of the Province of Ontario , unreported: released February 11, 2005 (Ont. S.C.J.).)

[ 16 ] Further, Swinton J. held in the CARMS action that the damages claimed were barred by the doctrine of res judicata , as the facts had already been raised in the previous action before Horkins J. With respect to the issue of abuse of process, Swinton J. stated at paragraph 14:

[T]o allow this action to proceed would be an abuse of the court’s process. While the current defendants were not parties to the earlier action, they could have been named as parties. Moreover, the plaintiff cannot avoid the doctrine of cause of action estoppel or abuse of process by naming individual Ministers or former Ministers rather than the Government of Ontario. …

[ 17 ] Similar to the findings of both Justices Horkins and Swinton, I find that Mr. Ramlall is raising the same issues, the defendants could have been named defendants in prior actions, and the action should be dismissed on the basis of cause of action estoppel and abuse of process as the underlying facts are the same as those causes of action previously brought by Mr. Ramlall and dismissed.

[ 18 ] Mr. Ramlall concedes that he has made similar claims before but he argues that the outcomes have been beneficial to him and to other graduates as the various programs did change their policies. He submits that he has brought this current action as there has been a change in legislation in that the Fair Access to Regulated Professions Act , 2006, S.O. 2006, c. 31 now governs these defendants. Mr. Ramlall acknowledges that he is re-litigating the same issues, but because of new policies or new regulations he is entitled to proceed with this action.

[ 19 ] Counsel for the defendants submit that the Fair Access to Regulated Professions Act does not apply to medical professions and that Schedule 1 of the Act clearly sets this out. Additionally, counsel for the defendants indicates that the Act is not new and the same issue is before the Court which is: Mr. Ramlall objects to the process for selecting residency positions for international medical graduates.

[ 20 ] I do not find that Mr. Ramlall is raising any new issues that have not been raised before and the Fair Access to Regulated Professions Act does not apply. This is still an attempt to re-litigate the same issues and the action should be dismissed.

(ii) Should Mr. Ramlall's claim be struck under Rule 21.01(1)(b) of the Rules, without leave to amend, on the ground that it discloses no reasonable cause of action?

[ 21 ] Additionally, I would also strike Mr. Ramlall's claim without leave to amend on the ground that it discloses no reasonable cause of action.

[ 22 ] The Supreme Court of Canada 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.

[ 23 ] The Court in R. v. Imperial , at para. 22, further outlined the duty on the 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.

[ 24 ] Upon a review of the Statement of Claim, Mr. Ramlall has not clearly articulated any specific causes of action and it is plain and obvious that the pleading discloses no reasonable cause of action. It appears that Mr. Ramlall's allegations involve a claim of discrimination. Mr. Ramlall also states that the defendants "failed to act in good faith" and "acted negligently" by denying him admittance to the family medicine residency programs.

[ 25 ] Any claims for discrimination should be brought before the Ontario Human Rights Commission, not before this Court. An admission decision by the defendants denying Mr. Ramlall access to a medical residency program does not amount to discrimination and does not violate the Charter as was clearly stated by Horkins J. in the Ramlall v. The Government of the Province of Ontario decision at paras. 36-38:

[36] The set of facts giving rise to this action is the same set of facts that gave rise to Mr. Ramlall’s application for judicial review. Then and now he continues to allege that he has been denied access to the medical residency training program in Ontario. The proceedings have the same underlying factual basis; Mr. Ramlall’s failed attempts to qualify for the medical residency training program and the system that has judged him. Mr. Ramlall has unsuccessfully challenged this system, which has denied him access to a medical residency spot in Ontario. His appeals up to the Supreme Court of Canada were dismissed. The principle of cause of action estoppel operates to bar this action.

[37] There is a second reason why Mr. Ramlall has no cause of action. Our courts have determined that a cause of action cannot be founded on the argument that our system, which controls and restricts the number of foreign medical school graduates who will be eligible for a residency place, is a breach of the applicant’s Charter rights. As the court stated in Jamorski [ v. Ontario (Attorney General) (1988), 1988 4738 (ON CA) , 64 O.R. (2d) 161 (C.A.)], there is no constitutional right to practice medicine.

[38] In summary, it is plain and obvious that the plaintiff has no cause of action. The statement of claim seeks to pursue a claim that was dealt with by the Divisional Court and all appeals from that decision have been exhausted. Furthermore the law is well settled that the facts of this case do not constitute a breach of the rights under the Charter . The action is therefore dismissed pursuant to rule 21.01(1)(b).

[ 26 ] Further, with respect to any claim of negligence, it is incumbent upon Mr. Ramlall to demonstrate that the defendants owed him a duty of care, that they breached that duty of care, that Mr. Ramlall sustained damage, and that the damage was caused by the breach. See Mustapha v. Culligan of Canada Ltd. , 2008 SCC 27 at para. 3 . This is absent in the Statement of Claim and given that Mr. Ramlall is a candidate submitting applications for a medical residency placement, the defendants would not owe him a duty of care.

[ 27 ] Additionally, an action for breach of the duty of good faith requires a plaintiff to establish that the duty was an express or implied term of the contract between the parties and that there was a tenable cause of action for breach of contract. Jaffer v. York University , 2010 ONCA 654 at para. 49 . Mr. Ramlall has not pleaded that there was a contract between himself and any of the defendants. Mr. Ramlall had not entered into a contract with any of the university defendants as he had not yet been accepted into their programs.

(iii) Should the action be dismissed as being outside the court's jurisdiction due to the broad discretion over academic decisions afforded to universities subject only to an application for judicial review?

[ 28 ] I would also dismiss the action on the basis that universities have broad discretion with respect to academic matters and matters of an internal academic nature. As the Ontario Court of Appeal has stated in Jaffer v. York University at para. 26 , the proper procedure in such a case as this lies in an application for judicial review, not an action. Mr. Ramlall has already brought an application for judicial review that was dismissed.

[ 29 ] Further, as stated in Jaffer v. York University at paras. 26 and 27 , the court may have jurisdiction over a properly pleaded cause of action in tort or contract and a claim for damages against a university, but a university enjoys broad discretion with respect to academic decisions, such as an admissions decision. Mr. Ramlall has failed to plead any cause of action in tort or contract against the university defendants, or a proper claim for damages.

[ 30 ] For all of the above reasons, I strike the Statement of Claim brought by Mr. Ramlall against all of the defendants, without leave to amend, and dismiss the claim in its entirety.

Costs

[ 31 ] Counsel for the defendant, the University of Toronto, is seeking costs in the amount of $11,681.24 on a partial indemnity basis. Counsel submits that the matter was adjourned several times, due to Mr. Ramlall's failure to have appropriate documentation prepared. He further submits that the claim should not have been brought and that the defendants are entitled to their costs.

[ 32 ] Counsel for the remaining defendants, being McMaster University, Queens University, and the University of Ottawa (as Ontario Family Medicine Programs is not a legal entity), seeks costs in the amount of $8,243.91, inclusive of HST and disbursements. Counsel also indicates that there were multiple attendances due to Mr. Ramlall's failure to have appropriate documentation prepared and that the claim should not have been brought.

[ 33 ] Mr. Ramlall indicated that he was seeking $5,000 in costs from the defendants if he was successful on the motion and, if he was unsuccessful, no costs should be ordered against him.

[ 34 ] As stated in Boucher v. Public Accountants Council for the Province of Ontario , 2004 14579 (ON CA) , [2004] O.J. No. 2634 (C.A.) at para. 26 , with respect to costs: "… The objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in that particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant." In assessing costs, I must also consider what Mr. Ramlall would reasonably expect to pay if he was unsuccessful on this motion.

[ 35 ] I have taken into consideration the factors set out in Rule 57 of the Rules which the court may consider when exercising its discretion in awarding costs and the costs submissions of the parties. Taking all of this into consideration, I order that the plaintiff, Mr. Ramlall pay costs to the defendants the University of Toronto, in the amount of $5,000, inclusive of HST and disbursements, and that the plaintiff pay costs to the defendants McMaster University, Queens University and the University of Ottawa, in the amount of $5,000, inclusive of HST and disbursements. I find that these amounts are fair and reasonable for Mr. Ramlall to pay and an amount that he could have reasonably expected to pay if unsuccessful. Mr. Ramlall was well aware, and acknowledged, that he was attempting to re-litigate issues that had already been decided in various courts.

Order

[ 36 ] I order the following:

i) The Statement of Claim brought by the plaintiff, Mr. Ramlall, against all of the defendants is struck, without leave to amend, and the claim is dismissed in its entirety.

ii) The plaintiff, Mr. Ramlall, shall pay costs to the defendants the University of Toronto, in the amount of $5,000, inclusive of HST and disbursements, and the plaintiff shall pay costs to the defendants McMaster University, Queens University and the University of Ottawa, in the amount of $5,000, inclusive of HST and disbursements.

Stevenson J.

DATE: December 20, 2012