SUPERIOR COURT OF JUSTICE - ONTARIO
MOTION HEARD: December 7, 2011, April 18, June 4
and September 10, 2012 and March 27, 2013
Re: Catherine Georgina Bingham
Plaintiff
v.
Paul Dollak LL.M.
Defendant
BEFORE: Master Thomas Hawkins
COUNSEL: Catherine Georgina Bingham,
moving plaintiff in person
50 Graydon Hall Drive, Apt. 502
Toronto, Ontario M3A 3A3
F (416) 444-0311 (call first)
J. Gardner Hodder for responding defendant,
Yan Wang with him on April 18, 2012 only
F (416) 947-0909
REASONS FOR DECISION
Nature of Motion
1In this legal malpractice action the plaintiff moves for leave under rule 26.01 to amend the amended statement of claim in terms of a draft amended statement of claim found at volume 41 tab 203 of the materials which the plaintiff has filed with me from time to time since I was assigned to case manage this action.
2Rule 26.01 provides as follows.
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
3Rule 26.01 contains a reverse onus in favour of granting leave to amend a pleading.
4The defendant opposes this motion on several grounds. Defence counsel submits that the proposed amended statement of claim is prolix, unintelligible and would be prejudicial to the fair trial of this action. He submits that this proposed pleading contains what are in essence claims by persons that are not parties, claims against non-parties, claims that are statue-barred, scandalous allegations, and many allegations that do not comply with the rules of pleading.
Background Facts
5The following summary of background facts is taken from the reasons for decision of the Court of Appeal for Ontario in C.B. v. Sawadsky, 2006 34259 (ON CA), [2006] O.J. No. 4050. In this decision the Court of Appeal dismissed Ms. Bingham’s appeal from the decision of Karakatsanis J. (as she then was) after trial of the underlying action in which Mr. Dollak represented Ms. Bingham.
6On May 22, 2003 at the request of Ms. Bingham’s daughter, a justice of the peace issued an order for examination of Ms. Bingham, being Form 2 under the regulations passed under the Mental Health Act, R.S.O. 1990 ch.M.7.
7The justice of the peace acted on the authority of subsection 16(1) of the Mental Health Act. This subsection, as amended, provides as follows.
Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself:
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition based upon the information before him or her the justice of the peace has reasonable cause to believe that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
the justice of the peace may issue an order in the prescribed form for the examination of the person by a physician.
8Acting on the authority for the Form 2 order for examination, police officers attended at Ms. Bingham’s home in the early afternoon of May 26, 2003, took custody of Ms. Bingham and escorted her to Sunnybrook Health Sciences Centre (as it is now known, hereinafter “Sunnybrook”) for examination by a physician.
9Ms. Bingham was initially examined by Dr. Bruce Sawadsky. He made an application under Form 1 under the regulations passed under the Mental Health Act for a psychiatric assessment of Ms. Bingham by another physician. She was examined by another physician who ordered her released at about 5:30 or 6:00 pm the same day.
10Ms. Bingham was given a taxi chit and sent home. She was asked to return to Sunnybrook on May 29, 2003 for a follow up assessment. She did so.
11Ms. Bingham retained Mr. Dollak to commence an action on her behalf. Mr. Dollak then commenced the action underlying this legal malpractice action. He named one plaintiff (Ms. Bingham) and two defendants (Dr. Sawadsky and Sunnybrook) in this action. In this underlying action Ms. Bingham alleged that her detention at Sunnybrook was unlawful and that Dr. Sawadsky and Sunnybrook had violated several of her rights under sections 7, 8, 9 and 10(a) to (c) of the Canadian Charter of Rights and Freedoms. Both the trial judge, Karakatsanis J., and the Court of Appeal rejected these claims. Ms. Bingham’s motion for leave to appeal to the Supreme Court of Canada was unsuccessful.
The Proposed Amended Statement of Claim
12I will deal first with defence counsel’s submission that the proposed amended statement of claim is prolix and does not comply with the rules of pleading.
13Subrule 25.06(1) sets out general rules of pleading applicable to all pleadings. This subrule provides as follows.
Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
14The proposed amended statement of claim is definitely not a concise statement of the material facts. This pleading is 236 pages long. Ms. Bingham’s main complaint in this proposed pleading is that Mr. Dollak failed to name the appropriate parties as plaintiffs and as defendants, and failed to prepare for trial and call appropriate witnesses at trial. While earlier versions of the statement of claim alleged that Mr. Dollak failed to name appropriate parties and failed to prepare for and conduct the trial by not calling additional witnesses, the proposed amended statement of claim dramatically expands this basic complaint in a manner that is far from concise, in part because it is very repetitive. The following examples from paragraph 7 clauses (a) to (e) of the proposed amended statement of claim illustrate this.
- In preparation for and at the trial of the action, Paul Dollak failed to properly prepare the case in that he failed to, among other things:
(a) obtain a report, electronic recordings, information, Letter from Sunnybrook and Women’s Health Sciences Centre Hospital and Institution (Prison), Supervisor, University of Toronto Clinic, Professor, Dr. Kenneth Israel Shulman to his legal counsel, an Affidavit by Dr. Kenneth Israel Shulman and his counsel, provide evidence against Dr. Kenneth Israel Shulman and make any necessary arrangements for Dr. Kenneth Israel Shulman to provide evidence as a witness at trial
(b) obtain a report, electronic recordings, medical records, information, Letter and Affidavit from Dr. Frederick Gee Foo Mark, provide evidence against Dr. Frederick Gee Foo Mark and make any necessary arrangements for Dr. Frederick Gee Foo Mark to provide evidence as a witness at trial
(c) obtain a report, electronic recordings, information, Letter from North York General Hospital, Emergency Physician, Dr. Arun Kumar Sayal to his legal counsel, an Affidavit by Dr. Arun Kumar Sayal, and his legal counsel, provide evidence against Dr. Arun Kumar Sayal, and make any necessary arrangements for Dr. Arun Kumar Sayal to provide evidence as a witness at trial
(d) obtain a report, electronic recordings, medical records, information, Letter from North York General Hospital, Dr. Russell Sheldon Tanzer to his legal counsel, an Affidavit by Dr. Russell Sheldon Tanzer and his legal counsel, provide evidence against Dr. Russell Sheldon Tanzer and make any necessary arrangements for Dr. Russell Sheldon Tanzer to provide evidence as a witness at trial.
(e) obtain a report, electronic recordings, medical records, information results of ultra sound of Ms. C. Bingham’s heart, Letter from Bayview –Finch Medical Centre, Dr. Milton William Schacter to his legal counsel, an Affidavit by Dr. Milton William Schacter and his legal counsel, provide evidence against Dr. Milton William Schacter and make any necessary arrangements for Dr. Milton William Schacter to provide as a witness at trial
15An examination of the parts of these clauses that are not underlined shows that the statement of claim already alleged that Mr. Dollak failed to obtain reports from and failed to call as witnesses at trial Doctors Shulman, Mark, Sayal, Tanzer and Schacter.
16In clauses 7(s) and (t) Ms. Bingham proposes to allege as follows. (The references to “he” are references to Mr. Dollak.)
(s) he failed to enquire and make necessary arrangements to obtain and obtain the Ontario Court, Information Transcript of and before His Worship Justice Of the Peace Robert E. Whittaker ordering (issuing) the Form 2 who provided improper information to Ms. D. Bingham the Plaintiff’s Daughter from the Toronto Police Services, Toronto Police Services Board, Mr. R.D. Uba, Mr. H.W., Ms. L. R., neighbours of Ms. C. Bingham, Mr. Maalouli, and Four Points Express Ltd. previous place of employment of Ms. C. Bingham and thereby His Worship Justice Of the Peace Robert E. Whittaker coerced and improperly counseled Ms. D. Bingham the Plaintiff’s daughter, and he failed to provide evidence against His Worship Justice Of The Peace Robert E. Whittaker and to provide evidence against allegations, against Ms. C. Bingham
(t) he failed to enquire and make the necessary arrangement to obtain and obtain a report, information, Letter, Affidavit, Exhibit, from the legal counsel for The Toronto Police Services Board and The Toronto Police Services, provide evidence against The Toronto Police Services and Toronto Police Services to provide evidence the Form 2 was unwarranted, wrongful, unlawful, the Arrest Warrant was unwarranted, wrongful, unlawful, the psychiatric assessments were unwarranted, wrongful, unlawful, and the imprisonment is unwarranted, wrongful, unlawful, to provide evidence the Police involved were untruthful, to provide evidence Toronto Police Committed the Criminal Offence of Perjury and make any necessary arrangements for Toronto Chief of Police Julian Fantino, Toronto Police Staff Sergeant Fry, Badge No. 7125, Toronto Police Constable Ronald T. Green, Badge No. 722, Toronto Police Constable Jennifer Thompson, Badge No. 99559, Toronto Police Constable Pacherco, Badge No. 5424, Toronto Police Constable Angela La Pointe Badge No. 8729, Toronto Police Constable Barry Ashton, Badge No. 2811, Toronto Police Constable Anthony Fisher, Badge No. 6880, Toronto Police Constable Hughes, Badge No. 4070, Toronto Police Constable Norman McCrimmon, Badge 3609, Toronto Police Detective Anthony Young, Badge No. 4968, Toronto Police Detective Stagg, Badge No. 4617, Toronto Police Constable Dinner, Badge No. 87485, Toronto Police Constable Pipia, Badge No. 86564, Toronto Police Constable Taylor, Badge No. 87979, Toronto Police Constable Whitelaw, Badge No. 87320, Toronto Police Inspector Olga Cook, and other Toronto Police Constables and Officers to provide evidence as witnesses at trial.
17The allegations in proposed clauses 7(s) and (t) are pleas of evidence rather than material fact, pleas of wrongs to another (the allegation that Justice of the Peace Whittaker coerced Ms. Bingham’s daughter Deborah Bingham) and are in part untenable and an abuse of process. Justice of the Peace Whittaker is immune from civil liability to Ms. Bingham for things done in the discharge of his official duties, such as issuing a Form 2 order for the examination of Ms. Bingham. This allegation is an abuse of process because Justice of the Peace Whittaker is not a party to this action and will not have an opportunity to answer these allegations and clear his name.
18The following extract from proposed clause 9(a)(5) is another example of an untenable plea that Mr. Dollak failed to obtain the necessary evidence for trial. Ms. Bingham proposes to allege the following.
The Federal Government of Canada and The Federal Government of Canada Minister of Immigration was gross negligent of a professional by allowing a landed immigrant into Canada and failing to physically examine and investigate for tuberculoses. [sic]. Ms. C. Bingham, was treated unjustly, and unfairly, by The Ontario Ministry of Health and The Ontario Ministry of Education, causing severe damages and upset to her when she was a teenager in High School, because of another student in the High School who had developed tuberculoses [sic] caused by the negligence of the Federal Government of Canada Minister of Immigration. Ms. C. Bingham and others did not receive compensation for the damages caused to them for life. Ms. C. Bingham, has witnesses.
19Claims by private individuals such as Ms. Bingham for civil wrongs against the Crown in right of Canada must be brought in the Federal Court of Canada and not in this court.
20I do not know exactly how old Ms. Bingham was when her underlying action was commenced in 2003. However, I am confident that in 2003 claims for civil wrongs done to her while she was a teenager would have been barred by the provisions of the Limitations Act, R.S.O. 1990 ch. L.15. Clause 9(a)(5) is an untenable plea clearly impossible of success.
21Proposed clause 9(a)(10) is another example of an untenable plea. Leave to amend to raise an untenable plea should not be granted if the proposed amendment is clearly impossible of success. See Chinook Group Ltd. v. Foamex International Inc. (2004), 2004 33017 (ON SC), 72 O.R. (3d) 381 per MacLeod M. at paragraph 13.
22In clause 9(a)(10) Ms. Bingham proposes to allege the following.
he failed to obtain the information, Letters, of The Federal Government of Canada, is responsible to Govern, and by, and in Law, responsible to coordinate Laws, Policies, Rules, Regulations, Statues, [sic] Acts, Legislations, Forms, and information with all Federal Government of Canada Ministers and all Federal Government of Canada Ministries and responsible to Govern all Canadian Provinces and Territories, and working in partnership with all Canadian Provinces and Territories, and responsible to assure all Canadian Provinces and Territories comply to The Canadian Charter of Rights and Freedoms and The Canadian Mental Health Laws and Policies, is responsible to Govern The Federal Government of Canada Minister of Health responsible to Govern The Royal College of Physicians and Surgeons of Canada responsible to Govern Physicians registered with The College of Physicians and Surgeons of Canada, working in partnership with all Canadian Provinces and Territories in Canada. Her Majesty The Queen In Right of Ontario, by, and in Law is responsible to coordinate Laws, Policies, Rules, Regulations, Statues, [sic] Acts, Legislations, Forms, and information with The Federal Government of Canada, and The Federal Government of Canada’s Laws, Policies, Rules, Regulations, Statues, [sic] Acts, Legislations, Forms, information, The Canadian Charter of Rights and Freedoms, and The Canadian Mental Health Laws and Policies to provide proper legal Laws, Policies, Rules, Regulations, Statues, [sic] Acts, Legislations, Forms, and information to, and for, and working in partnership with Ontario Court, Justices of The Peace, and The Ontario Crown Attorney General, responsible to Govern, the Toronto Police Services Board and The Toronto Police Services ….”.
23The allegations in this clause are based upon a flawed and erroneous view of the constitutional roles of the Parliament and government of Canada on the one hand and of the legislatures and governments of the provinces and territories of Canada on the other hand.
24In my view, the issues raised in this clause are essentially political in nature. They are not issues which this court should hear and determine at the request of a private citizen such as Ms. Bingham. These proposed amendments are untenable pleas clearly impossible of success.
25Paragraph 20 of the proposed amended statement of claim is another paragraph in which Ms. Bingham complains of wrongs done to another, namely her son and daughter. Here Ms. Bingham proposes to allege the following.
Ms. C. Bingham, pleads that Mr. Paul Dollak, received, and accepted cheques, for retainers from Ms. C. Bingham for Ms. C. Bingham’s Son Mr. K.B., and Ms. C. Bingham’s Daughter Ms. D.B. Mr. Paul Dollak was “tort Law” negligent of a Solicitor by failing to bring a formal Motion to the Court, to ask the Court, for an order by the Court, to release of the documents, reports, information, electronic recordings, and tape recordings from the Toronto Police Services Board, and Toronto Police Services. Mr. Paul Dollak was negligent by failing to obtain disclosure from the Ontario Human Rights Commission of documents, reports, information, electronic recordings, tape recordings. Mr. Paul Dollak by failing to obtain the disclosure of Documents, reports, information, electronic recordings, and tape recordings from the Toronto Police Services Board, and Toronto Police Services and the Ontario Human Rights Commission was Tort Law” negligence of a Solicitor and breach his contract with Ms. C. Bingham, for the provision of legal services to properly protect and defend Ms. C. Bingham’s interests. Ms. C. Bingham, pleads that Ms. C. Bingham, asked Mr. Paul Dollak, and instructed Mr. Paul Dollak, verbally, and in writing, to ask the Court, for an Order by the Court, to release her Son Mr. K.B., and her Daughter Ms. D.B., totally and completely from Slander, untrue information, incorrect information, exaggerated information, allegations and any holds, Forms, or confinements that maybe against them.
26In my view these proposed allegations are untenable pleas clearly impossible of success. In this action Ms. Bingham is the only plaintiff. Her son and daughter are not plaintiffs. Ms. Bingham is self represented. She has not moved to have her adult son and daughter added as plaintiffs. Ms. Bingham cannot assert claims for people who, like her son and daughter, are not plaintiffs.
27Proposed paragraph 21 contains allegations first, that the trial judge was negligent and secondly, that the three judges of the Court of Appeal who heard her appeal were also negligent. These are untenable pleas and an abuse of process. Trial and appellate judges, when acting in their official capacity, do not owe a private law duty of care to those who, like Ms. Bingham, appear before them personally or through counsel. Such judges are immune from that liability. Proposed paragraph 21 is an untenable plea clearly impossible of success.
28The remedy of litigants who feel that a judge has made an error at trial or when hearing an appeal is to appeal. Mr. Dollak did so on behalf of Ms. Bingham. He appealed to the Court of Appeal and, when her appeal was dismissed, moved unsuccessfully for leave to appeal to the Supreme Court of Canada. That brings to an end the issue of whether the trial and appellate judges who heard Ms. Bingham’s underlying action committed any errors.
29Several times during argument Ms. Bingham explained her reason for seeking many of the proposed amendments to the statement of claim. On their face, these proposed amendments allege that Mr. Dollak failed to collect additional evidence for trial and to name additional defendants. However, Ms. Bingham explained that if she does not provide the details found in her proposed amendments, she will not be able to obtain a court order directing various hospitals, police officers, the Toronto Police Service, Four Points Express Ltd. and members of the Maalouli family (her former employers), the Ontario Human Rights Commission and various physicians to expunge from their records entries about Ms. Bingham which she objects to.
30Since Mr. Dollak is the only defendant in this action, it is unlikely that this court will order non-parties to expunge from their records entries which Ms. Bingham objects to. In addition, some at least of these non-parties are required by statute or regulation to keep their records in a manner that would prevent Ms. Bingham from obtaining a mandatory order expunging entries from their records. Further, such a mandatory order is not a remedy which Ms. Bingham expressly seeks in this action.
Conclusion
31In these reasons I have not dealt specifically with all the deficiencies in the proposed amended statement of claim. There are more deficiencies of the kind I have mentioned. This is not a situation where this proposed pleading simply needs a little fine tuning, after which it will comply with the Rules of Civil Procedure and contain tenable pleas from start to finish. This proposed pleading is fundamentally flawed. For all these reasons this motion is dismissed. This dismissal is with prejudice to a further motion by Ms. Bingham for leave to amend in the case of those pleas which I have ruled are not tenable and which allegations I regard as clearly impossible of success, or are an abuse of process.
Costs
32The defendant Mr. Dollak has been successful on this motion is entitled to the costs of it. I fix those costs at $8,000 and order Ms. Bingham to pay such costs to Mr. Dollak within 30 days.
33I am not persuaded that a different order as to costs of this motion, such as costs in the cause, would be more just. Defence counsel have been very patient as this motion has dragged on for well over one year, and required at least five attendances. There were several occasions when defence counsel attended ready to proceed but Ms. Bingham had not completed drafting her proposed amendments and her motion had to be adjourned. I have fixed costs at the partial indemnity rate. While I have disagreed with Ms. Bingham about her proposed pleading, I do not feel that she has conducted herself in a manner that would attract a higher rate scale of costs. I have disallowed the disbursement claims for transcripts and a mediation. There was no reference to transcripts during argument. The mediation was not an integral part of this motion.
Master Thomas Hawkins
DATE: __________ , 2013