SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-423032

DATE: 20130821

RE: GALINA KURDINA, Plaintiff

AND:

DOCTOR RICHARD E. BERRY, Defendant

BEFORE: STEWART J.

COUNSEL:
Galina Kurdina, in person

Amanda Smallwood, for the Defendant

HEARD: July 25, 2013

ENDORSEMENT

Nature of the Motion

[1] This is a motion brought by the Defendant, Dr. Richard Berry (“Berry”) for summary judgment dismissing the claim of the Plaintiff, Galina Kurdina (“Kurdina”) on the basis that there is no genuine issue requiring a trial.

[2] Kurdina submits that a genuine issue has been raised by her that will require a trial to determine.

Background Facts

[3] Berry is a registered psychologist who carries on a private practice in the City of Mississauga, Ontario.

[4] According to the evidence filed by Berry in support of this motion, on March 9, 2009 Kurdina contacted him to seek his assistance with litigation she had commenced against two psychiatrists. Kurdina alleged that these two psychiatrists had negligently misdiagnosed her as suffering from delusional disorder and psychosis. Kurdina claimed that she had been misdiagnosed because the symptoms she had reported to them were not caused by mental illness, but rather by the effect of electromagnetic energy/psychotronic weapons/directed energy weapons and/or mind control weapons directed upon her by unidentified assailants.

[5] Kurdina attended and was interviewed by Berry on March 12, 2009. She completed a Client Information Form. In response to the question: “What is the problem with which you want to deal?”, Kurdina wrote: “Cancel psychiatric diagnoses”. This obviously referred to her desire to use Berry’s opinion to rebut the earlier diagnoses made by the psychiatrists she was suing. Berry’s notes also record that Kurdina told him that she had filed a civil claim against the police and RCMP for allegedly failing to properly investigate her claims of assault by psychotropic weapons.

[6] Berry administered the Minnesota Multiphasic Personality Inventory (MMPI-2) and Symptom Checklist 90-R (SCL-90) to Kurdina. These are well-known and basic psychometric test instruments. He also reviewed the various documents and records that Kurdina had provided for his consideration. Berry considered the information obtained from his clinical interview, the psychometric tests and the documentation provided and formed the clinical opinion that Kurdina suffered from a Delusional Disorder. He prepared a report dated March 25, 2009, which summarized the information obtained and his conclusions.

[7] On March 26, 2009, Berry provided Kurdina with a copy of the report and met with her to discuss his findings. Kurdina was upset and disagreed with his conclusions. She asked him to change the conclusions/recommendations section of the report. Berry declined. Kurdina threatened to sue Berry if he would not change the report in the manner requested.

[8] On November 4, 2009, Kurdina’s claim against the two psychiatrists was dismissed by Perell J. on a motion for summary judgment brought by the defendant psychiatrists in that action. In his reasons, Perell J. stated that none of the authors of correspondence and reports in the material filed by Kurdina were qualified to offer an opinion on the standard of care to be expected from a psychiatrist practising in Ontario.

[9] On April 13, 2010, the Court of Appeal for Ontario heard Kurdina’s appeal from the decision of Perell J. dismissing her claim. In dismissing her appeal, the Court stated:

None of the deponents the appellant offered were psychiatrists qualified to practice in Ontario or qualified to provide expert evidence on the applicable standard of care in Ontario. Without any evidence that the respondents had fallen below the standard of care that applies to them, the appellant’s claim had no hope of success. Both actions were properly dismissed by way of summary judgment.

[10] On September 20, 2011, Berry was served with Kurdina’s Statement of Claim which alleged that he had negligently misdiagnosed her as suffering from a Delusional Disorder. Her Statement of Claim alleges, among other things, that Berry’s actions left her open to further attacks and caused post traumatic stress disorder, “continuous torture” due to the “stigma of being labeled as a mentally disabled person”, job deprivation, loss of love and trust from family, deprivation of her right to have the RCMP investigate crimes she reports, and loss of faith in health care professionals.

[11] In his Statement of Defence, Berry denied all allegations against him. He also pleaded that the reports referred to by Kurdina in her Statement of Claim were insufficient to establish that he had breached the applicable standard of care. He also pleaded a defence of “expert witness immunity” on the basis that his relationship with Kurdina consisted solely of performing an independent psychological evaluation for use in litigation she was pursuing.

[12] Kurdina has put forward on this motion a variety of reports, affidavits and correspondence from the same individuals she relied upon in her failed suits against her psychiatrists. These include materials from: (1) Hildegarde Staninger, a California toxicologist; (2) Cynthia Spanier, a Pennsylvania psychologist; (3) June Steiner, a California hypnotherapist; and (4) Joyce Myers, a New York social worker and psychotherapist. None of these individuals are or purport to have been trained or licensed to practice psychology in the Province of Ontario or elsewhere in Canada.

[13] Further, no report advanced by Kurdina describes the standard of care applicable to a psychologist in Ontario, nor does it provide an opinion on whether Berry met or failed to meet the applicable standard. No opinion is advanced to support a finding that Berry’s actions caused the damages claimed by Kurdina.

[14] Kurdina freely admits that she has contacted at least 1500 psychologists licensed in Ontario to request an expert opinion and all have either declined to return her calls or declined to provide the requested opinion.

[15] In a nutshell, Kurdina has failed to advance any credible and admissible expert evidence from a psychologist that is critical of Berry’s conduct, or which demonstrates that the actions of Berry caused or contributed to the damages that she claims.

Issue

[16] Is there a genuine issue requiring a trial?

Law and Discussion

[17] The Court of Appeal for Ontario has confirmed that summary judgment remains appropriate in cases where the evidence available to the court permits a full appreciation of the issues (see: Combined Air Mechanical Services Inc. et al. v. Flesch et al., 2011 ONCA 764). Summary judgment prevents cases that are without merit and have no chance of success from proceeding to trial at a heavy cost to all of the parties and the justice system.

[18] Courts in Ontario have consistently held that expert evidence is required to determine a case of professional negligence. (see: Haines v. Bellissimo (1977), 1977 1027 (ON SC), 18 O.R. (2d) 177 (S.C.J.)).

[19] In support of her claim, Kurdina has disclosed reports and correspondence from the same four individuals she relied upon in her failed suits against her psychiatrists. It has been determined in other proceedings that these four individuals are not qualified to provide opinion to the Court on the standard of care of a psychiatrist practicing in Ontario. In my view, they are likewise lacking the necessary qualifications to provide an opinion on the standard of care of a psychologist practicing in Ontario.

[20] Staninger, Steiner and Myers do not purport to be licensed psychologists in any jurisdiction. Although Kurdina offers up Spanier as having been trained in psychology in Pennsylvania, Spanier has never been trained or licenced to practice psychology in Ontario. Furthermore, Spanier has been suspended from practice by the professional regulatory authority in Pennsylvania since 2003 on the basis that she was found unable to practice with skill and in safety.

[21] Even if Spanier were qualified to comment on the applicable standard, her report does not state what the standard of care in Ontario requires nor whether Berry’s conduct met or fell below that standard. Moreover, her report does not speak to whether or how Berry’s conduct could have caused or contributed to any losses alleged to have been suffered by Kurdina.

[22] Accordingly, Kurdina has failed to discharge her evidentiary burden on this motion. This Court is entitled to infer that she similarly will be unable to discharge that burden at trial.

[23] Such an inference is amply supported by Kurdina’s admission that she has contacted many Ontario psychologists in respect of this matter and none could or would provide an opinion in support of her allegations.

[24] Without any credible and admissible evidence that Berry has fallen below the standard of care that applies to him, Kurdina’s claim has no hope of success. In the circumstances, the action must be dismissed.

[25] As a result of this determination, I decline to address the further issue of expert witness immunity advanced on Berry’s behalf.

Conclusion

[26] For these reasons, this action is dismissed.

Costs

[27] In the unlikely event that Berry is seeking costs, written submissions on that subject may be delivered by him within 15 days and by Kurdina within 10 days thereafter.

Additional Order

[28] Any need to have the formal order reflecting this disposition approved by Kurdina as to form and content is hereby dispensed with.

STEWART J.

Date: August 21, 2013