Court File and Parties

COURT FILE NO.: CV-09-00012810CM DATE: 20130715 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Julie Pouget, Plaintiff/Responding Party AND: Saint Elizabeth Health Care and Judy Davidson, Defendants/Moving Parties

BEFORE: Nolan J.

COUNSEL: Donald W. Leschied, for the Plaintiff/Responding Party Christopher M. Andree, for the Defendants/Moving Parties

HEARD: April 15, 2013

ENDORSEMENT

INTRODUCTION

[1] The issue to be determined on this motion is whether certain parts of the plaintiff's Fresh as Amended Statement of Claim must be struck pursuant to rule 25.11 without leave to amend on the grounds that the facts contained in those portions of the claim cannot be proven at trial as they offend s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("RHPA").

BACKGROUND

[2] A review of the four-year journey of this litigation in which pleadings are not yet closed is helpful in understanding my determination of the issues on this motion brought by the defendants. The plaintiff, Ms. Pouget, was employed as a nurse with Saint Elizabeth Health Care ("SEHC"), from 1998 to March 25, 2003, when her employment was terminated. The defendant, Judy Davidson, was the manager at SEHC to whom Ms. Pouget reported.

[3] As required by s. 85.5 of Schedule 2 to the RHPA ("the Code"), Ms. Davidson filed a report with the Ontario College of Nurses ("OCN"). The OCN investigated. Ms. Davidson then prepared a further report detailing specific complaints that had been made against Ms. Pouget by a number of clients. The OCN initiated discipline proceedings against Ms. Pouget at the hearing of which no evidence was offered. In November 2008, all the charges against Ms. Pouget were dismissed.

[4] On March 24, 2009, Ms. Pouget instituted a claim against SEHC and Ms. Davidson. In addition to seeking a declaration that she was wrongful terminated, Ms. Pouget sought damages against SEHC and Ms. Davidson for wrongful termination, negligence, bad faith, breach of fiduciary duties, malicious prosecution, intentional infliction of mental distress caused by her being referred to the OCN and the false prosecution by the OCN which was the result of the allegations of professional misconduct and incompetence made by SEHC and Ms. Davidson.

[5] In October 2010, the defendants brought a motion pursuant to the provisions of Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the provisions of the RHPA, seeking to strike out various claims involving the SEHC and for an order that the action be dismissed against Ms. Davidson.

[6] After a hearing that lasted four days and in a decision released on April 13, 2011, Patterson J. dismissed all of Ms. Pouget's claims against SEHC with the exception of the claim for wrongful termination and without leave to amend. Patterson J. also dismissed all the claims against Ms. Davidson as well as Ms. Pouget's motion to add additional parties as defendants to her claim because of the expiration of the applicable limitation period.

[7] The plaintiff appealed the decision of Patterson J. seeking leave to amend her pleadings and asking the Court of Appeal to reinstate the action against Ms. Davidson. At the hearing of the appeal on March 11, 2012, the plaintiff withdrew her appeal with respect to the adding of additional parties.

[8] Feldman J.A., writing for herself along with MacPherson and Sharpe JJ.A., set out a detailed recitation of the facts taken from the statement of claim and Patterson J.'s reasons. Feldman J.A. made reference to the relevant portions of the RHPA, including s. 36(3), s. 85.5(1) of the Code as well as s. 85.6 of the Code.

[9] After reviewing three recent cases in the Court of Appeal dealing with the same sections of the RHPA and the Code, as well as the Supreme Court of Canada decision of Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, Feldman J.A. granted leave to the plaintiff "to amend her claim in accordance with these reasons." She found that Patterson J. had "erred in ruling that documents predating SEHC's report to the College are protected under s. 36(3). These documents may relate not only to the wrongful dismissal claim, but also to the bad faith claims against Davidson. I would allow the appeal on this issue and reinstate the action against Davidson" (emphasis added). Feldman J.A. concluded at para. 38:

I would allow the appeal to the extent that the appellant is granted leave to amend her claim in compliance with the principles set out in these reasons. I would also allow her claim against Davidson to be reinstated, again in compliance with the principles I have set out above. I would dismiss the portion of the appeal seeking the addition of parties.

[10] The decision of the Court of Appeal which was released on June 29, 2012, was settled by the registrar of the Court of Appeal on December 6, 2012. It is interesting to note that paras. 1 and 2 of the order as settled makes specific reference to leave to amend the claim as well as the reinstatement of the claim against Ms. Davidson "in compliance with the principles set out in the Reasons for Judgment."

[11] Following the release of the decision of the Court of Appeal, the plaintiff issued a Fresh as Amended Statement of Claim on September 27, 2012, along with a jury notice of the same date. Also in a letter to the court on the same date, counsel for Ms. Pouget requested a status hearing which was scheduled by the court for a case conference.

[12] Master Pope was advised at the case conference that counsel for the defendant had taken issue with four different paragraphs of the Fresh as Amended Statement of Claim and advised the master that he would be bringing a motion to strike those specific portions of the new claim. Although counsel for the plaintiff argued before the master that counsel for the defendant should not be permitted to bring such a motion without establishing a meritorious reason for bringing the motion, the master did not agree with that position and set out a timetable for the filing of the motion without any affidavit evidence or cross-examinations.

[13] The motion was served and responded to and set to be heard by the master on February 27, 2013. Prior to the hearing of the motion, the Master issued an order on consent on February 5, 2013, adjourning the motion from February 27, 2013, to a date to be fixed by trial coordination on a date mutually convenient by counsel before a judge. Counsel for the plaintiff challenged the jurisdiction of the Master to determine the mixed issues of fact and law raised by the motion. The motion was heard by me on April 15, 2013.

THE PARAGRAPHS IN DISPUTE

[14] The Fresh as Amended Statement of Claim contains 44 paragraphs. The following are the paragraphs in issue. The part sought to be struck is underlined:

Paragraph 25 – After meeting with the College investigators, Davidson prepared a multi-count Complaint against Pouget involving approximately fifteen (15) patients and alleged missed visits, billing irregularities, improper befriending of clients, alcohol dependency and improper financial dealings with clients.

Paragraph 27 – Although a discipline proceeding was instituted by the College, no evidence was offered and in November 2008 more than five and one-half (5.5) years after the College received the Complaint against Pouget, all of the charges against her were dismissed.

Paragraph 29 – Pouget was unable to work as a nurse for the period of time she defended herself and ultimately vindicated herself and her reputation and was able to begin to return to the nursing profession some six (6) to seven (7) years later.

Paragraph 42 – Further, as a consequence of the bad faith Report made by both SEHC and Davidson which caused the College of Nurses of Ontario to proceed with professional misconduct charges that were all dismissed by November 2008 without any evidence tendered, Pouget has been put to and claims damages for the following:

(a) Legal fees in the successful defence of all charges.

POSITION OF THE MOVING PARTIES

[15] The defendants bring this motion to strike the underlined portions of the four paragraphs set out above pursuant to rule 25.11 of the Rules of Civil Procedure. That rule provides:

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.

[16] The defendants argue that the impugned words offend s. 36(3) of the RHPA which provides:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. 1991, c. 18, s. 36(3); 1996 c. 1, Sched. G, s. 27(2).

[17] The defendants argue that a plain reading of this provision provides for an absolute prohibition against the admission of any evidence which relates to a record of a proceeding under the RHPA, any report or document prepared for the proceeding, any statement given at a proceeding or any order or decision arising from the proceeding in a civil matter.

[18] The defendants argue that the underlined portions of each of the paragraphs set out above offends one of these provisions and, as such, should be struck.

[19] The defendants assert that the words at issue at para. 25 refer directly to the content of the Report that was prepared for the College and, as such, cannot be proven at trial. In support of that position, counsel rely on the decision of the Court of Appeal itself in this matter: Pouget v. Saint Elizabeth Health Care Centre, 2012 ONCA 461, [2012] O.J. No. 3157, paras. 19, 21, 31 and 35, in addition to M.F. v. Sutherland, 2000 5761 (ON CA), [2000] O.J. 2522 (C.A.) at paras. 40, 43 and 45; Ontario v. Lipsitz, 2011 ONCA 466, [2011] O.J. No. 2820, at para. 113; Williams v. Wai-Ping (2005), 27 C.P.C. (6th) 83 (Ont. Div. Ct.) para. 23; Allen v. Morrison, 2004 48162 (ON SC) para. 18 and Allen v. Morrison, 2006 7281 (ON SC), para. 18.

[20] Further, the defendants argue that the words at issue at paras. 27 and 42 relating to the dismissal of the charges refer to the decision of the Discipline Committee and, as such, must be struck. To fail to do so would prejudice or delay the fair trial of the action (College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 685, 93 O.R. (3d) 139, para. 104; Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324, [2011] O.J. No. 136, paras. 56 and 57, aff'd 2011 ONCA 517, [2011] O.J. No. 3199, Armitage v. Brantford General Hospital (2004), 2004 32184 (ON SC), 71 O.R. (3d) 44 (S.C.) para. 29; Allen 2004 para. 18; Allen 2006 para. 18; Sutherland paras. 40 and 43; Lipsitz para. 113).

[21] Similarly, the words referring to no evidence being offered or tendered at paras. 27 and 2 constitute the record of the proceeding and can only be proved through the admission at trial of the decision and the reasons of the Discipline Committee at the end of the proceeding, a process forbidden by s. 36(3) (SHS Optical Ltd., para. 104; Conroy, paras. 55 and 57; Allen 2004 para. 18; Allen 2006 para. 18; Armitage para. 29; Sutherland paras. 40 and 43; and Lipsitz para. 113).

[22] With respect to the reference to the words "and ultimately vindicated herself and her reputation" at para. 29 and the word "successful" at para. 42, the defendants argue that these refer to Ms. Pouget's own characterization of the decision of the Discipline Committee at the end of the process. Since any evidence presented or not presented at a Discipline Committee is not permitted to be admitted in a civil action, these words should be struck. The defendants also argued that to permit the plaintiff to plead her own characterization of the decision of the Discipline Committee without the ability to refute the characterization through the admission of the decision or reasons or other evidence pursuant to s. 36(3) would result in prejudice to them.

[23] The defendants, relying on Jane Doe v. Escobar, 2004 20536 (ON SC), para. 27 and Walter v. Olgivie Realty Ltd., 2006 2827 (ON SC) para. 11, assert that such a statement is even more prejudicial to them since the plaintiffs served a jury notice, requiring the trial to be heard by a judge and jury.

[24] Further, the defendants argue that a narrow interpretation of s. 36(3) is not consistent with the purpose of the section which includes encouraging the reporting of complaints.

POSITION OF PLAINTIFF

[25] On a preliminary basis, counsel for the plaintiff raised objections to the bringing of a second motion to strike pursuant to rule 25.11. The core of the argument of counsel for the plaintiff is that in its decision of June 29, 2012, that the Court of Appeal gave leave to the plaintiff to include the challenged words and phrases in her Fresh as Amended Statement of Claim. At para. 5 of the plaintiff's factum, counsel argued:

[T]he appeal was allowed on all issues with leave to amend the pleadings "in accordance with these Reasons delivered by Feldman J.A.... The ruling in Pouget v. S.E.H.C., Davidson is a watershed pronouncement involving the complex interplay between reporting health professionals after termination (Section 85.5(1) of the Code); complaints of professional misconduct, bad faith claims founded upon Sections 85.6 and 92.1 of the Code, combined with wrongful termination claims and the admissibility of evidence and "business records" created by S.E.H.C. not directly for a proceeding but filed at a proceeding and the impact of Section 26(3) of the RHPA.

[26] At para. 7 of the factum, counsel for the plaintiff argued "In accordance with the Order of the Court of Appeal, the Plaintiff delivered a fresh, as amended, pleading to give effect to the many 'principles set out in the Reasons for Judgment'" (see paragraph 38, Reasons).

[27] Counsel for the plaintiff also argued that the principles underlying rule 25.11 of the Rules of Civil Procedure were restated in Williams v. Wai-Ping, [2005] O.J. No. 1940 (S.C.) at para. 3:

a) motions under rule 25.11 should only be granted in the "clearest of cases" – see Wernikowski v. Kirkland, Murphy & Ain 1999 3822 (ON CA), (1999), 50 O.R. (3d) 124, 181 D.L.R. (4^th^) 625 (C.A.);

b) any fact which can effect the determination of the rights of the parties can be pleaded but the court will not allow facts to be alleged that are immaterial or irrelevant to the issues in the action – see Duryea v. Kaufman (1910), 21 O.L.R. 161, [1910] O.J. No. 118 (C.J.);

c) portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous – see George v. Harris, [2000] O.J. No. 1762 (S.C.J.);

d) facts may be pleaded but not the evidence by which those facts are to be proved – rule 25.06(1) of the Rules of Civil Procedure;

e) similar facts may be pleaded as long as the added complexity arising from their pleading does not outweigh their potential probative value – see Garwood Financial Ltd. v. Wallace 1997 12276 (ON SC), (1997), 35 O.R. (3d) 280, 14 C.P.C. (4^th^) 277 (Gen. Div.).

[28] Counsel argued that on the basis of those principles, the pleadings should be allowed to stand.

[29] Counsel for the plaintiff also argued that the bringing of this second motion to strike following what he considered to be complete success by the plaintiff at the Court of Appeal offended the principles of proportionality as set out by D.M. Brown J. in Genge Weston Limited v. Domtar Inc., 2012 ONSC 5001, 112 O.R. (3d) 190. Although that case involved a motion for summary judgment and the comments of Brown J. were directed to the principles of proportionality and prematurity in relation to summary judgment motions, counsel for the plaintiff urged me to adopt that reasoning in relation to this second motion to strike brought by the defendants. He urged me to find that this second motion was not the proper use of court time and contrary to rule 1.04(1) of the Rules of Civil Procedure which provides:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[30] Counsel also attacked this motion on the basis that it was an unnecessary cost to the plaintiff, again a violation of the principles set out in rule 1.04(1.1):

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[31] Counsel argued that since the case is four years old and a defence has not yet been filed, that "The continued defence attack on her pleadings is inconsistent with rules 1.04(1) and 1.04(1.1) of the Rules of Civil Procedure and needs case management tools to send it on to trial" (para. 49 of plaintiff's factum).

[32] Counsel for the plaintiff also argued that since the College disclosed particulars of the charges against the plaintiff on its public website, this publication "militates against privacy as the foundation for Section 36(3) and she will be able to lead that evidence at trial" (para. 62 of plaintiff's factum) (Hopps-King Estate v. Miller, [1999] O.J. No. 3757 (para. 12-15); Contray v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324, [2011] O.J. No. 136 (para. 56)).

[33] At para. 65 of the plaintiff's factum, counsel argued the following:

Effectively, the Court of Appeal found that the reasoning of the Motions Judge to apply Section 36(3) to every document, irrespective of when and for what purpose it was created, be immune from both production and reciting in a pleading, if the claim was solely based on a bad faith claim under Section 85.5(1) of the Code and yet be capable of proof in a wrongful termination action was "absurd". In short, all such documents were not caught by Section 36(3) of the Act and, if they formed the narrative of the Report to the College under Section 85.5(1) of the Code that supported the bad faith claim, they were equally admissible for all purposes, including the wrongful dismissal claim. That's the very reason Pouget now stands alone, on its own facts and had all of the previous appellate cases on Section 36(3) before it, and distinguished them all.

[34] Although counsel for Ms. Pouget referred me to numerous cases in support of his position that the disputed phrases in the Fresh as Amended Statement of Claim were perfectly proper, he relied primarily on the decision of the Court of Appeal in the Pouget case. It is his position that the very words that are being challenged by the defendants in seeking to strike the pleadings are taken directly from the decision of the Court of Appeal itself and, therefore, are appropriately pleaded. He argued that in granting leave to amend the pleadings "in accordance with these reasons", the Court of Appeal gave leave to use any of the words found in its decision. Because the wording of the disputed pleadings themselves come directly from various parts of the reasons of the Court of Appeal, including the facts section and the legal underpinnings for the causes of action that the Court of Appeal had before it, the pleadings are proper in every respect. It is the position of counsel for Ms. Pouget that there is nothing in the fresh as amended pleadings that was not essentially "pre-approved" by the Court of Appeal and thus should stand as they are written.

ANALYSIS AND CONCLUSION

[35] A plain reading of the decision of Feldman J.A. in the Court of Appeal in its entirety dealing with the case before me does not support the interpretation which has been urged on me by counsel for Ms. Pouget. Contrary to counsel's argument, the Court of Appeal did not find simply that Ms. Davidson "did two procedural things which adversely affected its former nursing employee, Pouget". In fact, the Court of Appeal in its decision decided four things. The first was that the wrongful dismissal action could proceed as agreed by the parties and the motions judge. Secondly, the bad faith claim against Ms. Davidson could proceed but leave was not granted to the plaintiff to use the contents of any report prepared specifically for the discipline proceeding to prove the bad faith claim. Third, the Court of Appeal also found that existing documents, that is documents not prepared for a proceeding at the College such as prior employment records, time sheets, etc., are admissible. In its decision, the Court of Appeal follows Finney as well as the previous Court of Appeal decisions dealing with these very issues. The Court of Appeal confirmed that s. 36(3) of RHPA is a complete bar to using information prohibited by that section. Finally, the Court of Appeal decided that s. 85.6 of the Code provides immunity where reports are made in good faith but went on to find that "bad faith" must be proven without violating s. 36(3) of RHPA.

[36] Specifically, counsel for Ms. Pouget supported the wording of the disputed phrases in the Fresh as Amended Statement of Claim by referring to specific words and phrases in the decision of the Court of Appeal itself. He argued that the disputed phrase at para. 25 was a verbatim rendition of para. 10 of the Court of Appeal decision as was the portion of para. 27 that is disputed.

[37] He defended the disputed provisions of para. 29 because there was no reference to an order by the College and relied on para. 10 of the Court of Appeal decision as support for that argument. Finally, with respect to the disputed provisions of para. 42, counsel relied on para. 1 of the decision of the Court of Appeal.

[38] With respect, the decision of the Court of Appeal must be read in its entirety. A plain reading of the decision in its entirety does not support the argument of counsel for Ms. Pouget. The decision of the Court of Appeal is divided into seven sections. They are:

1. Introduction;

2. Facts which "are taken from the statement of claim and the motion judge's reasons" (para. 4);

3. The Motion to Strike;

4. The Appeal;

5. The Analysis which consists of the case law and the application of the case law to this case;

6. The Remedy; and

7. The Conclusion.

[39] With respect to section 4, The Appeal, Feldman J.A. set out at para. 19 the issues that were agreed upon between the parties and did not need to be determined by the Court of Appeal. The first was that Ms. Pouget should be allowed to proceed with her wrongful dismissal claim. Secondly, that SEHC's written report to the College, submitted on April 9, 2003, pursuant to s. 85.5(1) of the Code, is inadmissible and cannot form part of Pouget's claim. A further part of the agreement or the basic premise was that s. 85.6 of the Code immunizes a person from being sued for filing a report "in good faith" under s. 85.5 of the Code. Feldman J.A. went on to identify the issue that was not agreed upon by the parties and which the court needed to rule on. "Counsel did not agree on how to reconcile this provision with the documentary immunity from production accorded under s. 36(3)."

[40] At para. 20 of the decision, Feldman J.A. went on to say:

The main point of contention between the parties boils down to whether or not Pouget can rely on documents, principally business records, that were created before SEHC made its report to the College, but that were subsequently referred to in the report or provided as part of the complaint.

[41] At para. 21, Feldman J.A. acknowledged and agreed with the position of counsel for Ms. Pouget which was that any documents generated before her dismissal on March 25, 2003, are not covered by s. 36(3) "because they existed independently of any report to the College and were clearly not 'prepared for' that purpose." Paragraph 21 goes on:

He acknowledges that documents created between Pouget's termination on March 25 and SEHC's report to the College on April 10 would be inadmissible if they were created for the purpose of the report. He submits that the characterization of these documents is a question of fact that should be left to the trial judge. As noted above, counsel for Pouget accepts that the report itself and any information gathered in the resulting investigation are inadmissible under s. 36(3).

[42] After setting out the opposing positions of counsel on the issue of the business records, Feldman J.A. went on to make reference to recent decisions of the Ontario Court of Appeal: M.F. v. Sutherland; Task Specific Rehabilitation Inc. v. Steinecke (2004), 2004 4853 (ON CA), 244 D.L.R. (4th) 414 (Ont. C.A.); and Ontario v. Lipsitz. Each of those cases dealt with immunity provisions similar to the good faith provisions found in s. 85.6 of the Code. In addition, immunity provisions were also dealt with by the Supreme Court of Canada in Finney.

[43] With respect to Sutherland, Feldman J.A. made reference to the decision of Laskin J.A. that set out the purpose of s. 36(3) of RHPA whose purpose is to prevent all participants in College proceedings from using documents generated for those proceedings in civil proceedings, "in short, to keep the two proceedings separate." Laskin J.A. went on in that case to affirm the proposition at para. 40 that: "where a pleading pleads facts that cannot be proved at trial because it relies on documents that are inadmissible under s. 36(3), the pleading must be struck out under rule 25.11." Laskin J.A. in Sutherland also held that s. 38 of RHPA which immunizes College administrators from liability for acts done "in good faith" does not connote a "bad faith" exception to the application of s. 36(3). In other words, s. 36(3) contains no exception for investigations done fraudulently or in bad faith.

[44] Feldman J.A. went on to quote Laskin J.A. at para. 45 of the Sutherland decision that since s. 36(3) refers only to a "report, document or thing", it does not prevent a party from pleading and proving the fact that a complaint was made in the first place.

[45] In Task, an occupational therapy clinic sued a prosecutor from the College of Occupational Therapists of Ontario for prosecuting in bad faith. Feldman J.A. said at para. 27:

In bringing its action against the prosecutor, the clinic tried to reprise the argument made in Sutherland, namely, that s. 36(3) of the Act contains an implied exception where the prosecution by the College was done in bad faith. The plaintiff in Task argued that the majority in Sutherland had not appreciated that because s. 38 of the Act allows administrators of the Act to be held accountable for actions taken in bad faith, s. 36(3) must be interpreted to allow such an action to be proved using the documents prepared for the proceedings. The court in Task rejected that argument, holding that the issue had been clearly raised and decided in Sutherland.

[46] In that case, the court also referred to the Supreme Court's decision in Finney. In Finney, there was an immunity provision in a Quebec statute for persons involved in the discipline process for lawyers in Quebec which grants immunity to regulatory investigators and prosecutors for acts done in good faith. The court in Task did not find Finney of assistance because the case did not involve issues of proof or a section comparable to s. 36(3).

[47] Feldman J.A. went on to say at para. 29:

However, for the purpose of this case and the interpretation of s. 85.6 of the Code, Finney makes it clear that the good faith limitation on immunity is to be given effect by the courts. It follows, therefore, that where a claim asserts bad faith, as long as it can be proved without running afoul of s. 36(3), such a claim is not to be struck out at the pleading stage. [Emphasis in original.]

[48] At para. 30 of the decision of the Court of Appeal in Pouget, Feldman J.A. discussed the most recent case, Lipsitz, which considered the scope and effect of s. 36(3). Dr. Lipsitz sued both Crown employees and employees of the College of Physicians and Surgeons for their role in bringing complaints against him with respect to his sleep disorder clinics. The College of Physicians and Surgeons argued that s. 36(3) "made the claim regarding its investigation of Lipsitz unprovable at trial. The motion judge agreed and struck out that portion of Lipsitz's claim."

[49] Dr. Lipsitz appealed. The Court of Appeal dismissed his appeal on this point, the court referring to the Sutherland decision for two propositions. First, that a plea of facts that cannot be proven at trial should be struck out under rule 25.11 of the Rules of Civil Procedure. Second, that while documents referred to in s. 36(3) of RHPA are inadmissible in a civil proceeding, the fact of a complaint or of the commencement of an investigative proceeding may be proved at trial. The Lipsitz case also confirmed that the immunity provided in s. 38(1) of the Independent Health Facilities Act, R.S.O. 1990, c. I. 3, only grants immunity for acts done in good faith.

[50] Having set out the law, Feldman J.A. went on at para. 33 to say:

Applying these principles to this case, Pouget is not precluded from asserting claims against SEHC based on bad faith, which has been pleaded, as long as those claims can be proved without using any document referred to in s. 36(3). The fact of a complaint and of an investigation can be proved at trial. [Emphasis added.]

[51] Feldman J.A. then went on to affirm that documents created in the normal course of business prior to the making of a report to the College do not become inadmissible just because they are referenced in or appended to a report of the College. Feldman J.A. clarified that s. 36(3) deals only with a report, document or thing prepared for or a statement given at a proceeding. At para. 35, referring to the contents of the complaint, Feldman J.A. said:

The exclusion from evidence of the complaint will clearly pose a practical problem for Pouget's bad faith claim. She will have to prove bad faith without being able to refer to the contents of the complaint itself except to the extent that the substance of the complaint can be inferred from the background documents. That, however, is a practical problem of proof and not a legal barrier that would justify dismissing the action at the pleading stage.

[52] Finally, at paras. 36, 37 and 38, Feldman J.A. sets out the remedy afforded to Ms. Pouget. She was given leave to amend her claim "in accordance with these reasons." In my view, the decision of the Court of Appeal is eminently clear. The principles set out in the decision are ones that clearly define the absolute immunity provided by s. 36(3) of RHPA.

[53] With respect to the argument of plaintiff's counsel regarding proportionality and driving up the costs of litigation, I agree to the extent that in making any interlocutory order, the motions judge or master must take those principles into account. I have done so. To permit the impugned portions of the pleadings to stand would inevitably lead to demands for production of all the documents prohibited to be referred to by s. 36(3) of RHPA. Counsel would no doubt argue that because references to those documents or positions were contained in the pleadings, they became relevant within the meaning of rule 30.02 of the Rules of Civil Procedure, leading to further motions regarding undertakings and refusals. Pleadings are the foundation of an action. In my view, the defendants had no choice, given the clear direction of the Court of Appeal, but to bring this motion so that they can proceed to file a defence to which the plaintiff may reply. A proper discovery plan can be established and fulfilled, and a trial date can be set if the parties are unable to resolve the issues between them.

[54] With respect to the argument of plaintiff's counsel that the publication on the College's website of the allegations against Ms. Pouget interfered with her privacy and that this permits her to plead the disputed portions of the Fresh as Amended Statement of Claim, I find no support for that position. There is no exception to the provisions of s. 36(3) of the RHPA on account of public posting of the nature of the proceedings.

[55] Accordingly, the disputed portions of paras. 25, 27, 29 and 42 offend s. 36(3) and shall be struck. Paragraph 25 beginning with the word "involving" and ending with the word "clients" clearly makes reference to the contents of the complaint that was made against Ms. Pouget. Accordingly, that offends the provisions of s. 36(3). The first part of that sentence is acceptable because, as pointed out by Feldman J.A., the fact of a complaint can be plead but not its contents.

[56] The disputed portions of para. 27 shall be struck as the fact that "no evidence was offered" refers to the record of the proceedings and thus is not permitted in the plain reading of s. 36(3). In addition, "all of the charges against her were dismissed" also offends s. 36(3) because it refers to the decision or the outcome of the proceeding. That paragraph shall be redrafted to be grammatically correct:

A discipline proceeding was instituted by the College and in November 2008, more than five and one-half years after the College received the complaint against Pouget, the proceeding terminated.

[57] The disputed portion of para. 29 shall be struck. It makes specific reference to the outcome of the hearing as well as Ms. Pouget's subjective view of the outcome.

[58] The disputed portions of para. 42 shall also be struck as they make reference to both the record of the proceedings as well as the ultimate decision.

COSTS

[59] At the conclusion of the argument of the motion I was provided with a cost outline by both counsel. The defendants were successful on the motion. They are entitled to their costs. In my view, given the clear direction of the Court of Appeal, the drafting of the Fresh as Amended Statement of Claim with the disputed provisions included left the defendants with no choice but to bring a further motion to require the plaintiff to comply with the direction of the Court of Appeal. The mischaracterization of that decision by counsel for the plaintiff was not supported by the plain wording of the decision itself. The decision did not make new law, the decision confirmed the law that has been in place: that is, that s. 36(3) of RHPA is a complete prohibition against making reference in the pleadings to any fact that flies in the face of the provisions of s. 36(3).

[60] I have reviewed the cost outline of the defendants. They are seeking costs on a partial indemnity basis of $8,427.50. By comparison, had the plaintiff been successful, plaintiff's counsel was seeking partial indemnity costs in the amount of $19,862.58. This is not an appropriate case for costs on a substantial indemnity basis. It is appropriate in all the circumstances to fix costs in the amount of $8,427.50, inclusive of disbursements and HST due and payable by the plaintiff to the defendants.

SUMMARY

[61] The following order shall issue and the Fresh as Amended Statement of Claim shall be amended as follows:

1. The disputed portions of paras. 25, 29 and 42 shall be deleted;

2. Paragraph 27 shall be amended in accordance with para. 56 of this endorsement;

3. The defendants shall deliver a Statement of Defence within 30 days of the release of this decision;

4. Any reply by the plaintiff shall be delivered within a further 15 days;

5. Costs to be paid by the plaintiff to the defendants fixed in the amount of $8,472.50, inclusive of fees, disbursements and HST in any event of the cause.

Original signed by "Mary Jo M. Nolan"

Mary Jo M. Nolan

Justice

Date: July 15, 2013