Court File and Parties

COURT FILE NO.: CV-12-465540
DATE: 2013-11-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Misty-Lee Beal, Plaintiff

AND:

Dr. Ryan Rebello, Dr. Judit Coret-Simon, Dr. Michel Rathbone, Dr. John Wells, Dr. Heather Whittingham, Dr. Koon Teo, Dr. Salim Yusuf, Dr. Omid Salehian, Dr. Alena Skrinskas, Dr. Christopher Ricci, Dr. Karen Raymer, Dr. James Anderson, Dr. Arun Mensinkai, Dr. Arlene Franchetto, Dr. David Landry, Dr. Brian Birchenough, Dr. Andrea Thomson, Dr. Christopher Doris, Dr. Michael Patlas, Dr. Michael Romeo, Dr. Fernando Gastaldo, Dr. Draga Jichici, Dr. Cindy Hamielec, Dr. Ramiro Larrazabal, Dr. Blake Yarascavitch, Dr. Nurain Ibrahim, Dr. Kesava Reddy, Dr. J. Doe #1, Dr. J. Doe #2, Dr. J. Doe #3, Dr. J. Doe #4, Dr. J. Doe #5, Dr. J. Doe #6, St. Joseph’s Healthcare Hamilton – St. Joseph’s Hospital, Hamilton Health Sciences – Hamilton General Hospital, Defendants

BEFORE: Pollak J.

COUNSEL:
Shereen Rai, for the Plaintiff

Ian MacLeod, for the Defendants Dr. Ryan Rebello, Dr. Judit Coret-Simon, Dr. Michel Rathbone, Dr. John Wells, Dr. Heather Whittingham, Dr. Koon Teo, Dr. Salim Yusuf, Dr. Omid Salehian, Dr. Alena Skrinskas, Dr. Christopher Ricci, Dr. Karen Raymer, Dr. James Anderson, Dr. Arun Mensinkai, Dr. Arlene Franchetto, Dr. David Landry, Dr. Brian Birchenough, Dr. Andrea Thomson, Dr. Christopher Doris, Dr. Michael Patlas, Dr. Michael Romeo, Dr. Fernando Gastaldo, Dr. Draga Jichici, Dr. Cindy Hamielec, Dr. Ramiro Larrazabal, Dr. Blake Yarascavitch, Dr. Nurain Ibrahim, Dr. Kesava Reddy

HEARD: November 18, 2013

Endorsement

[1] The moving parties, the defendants Dr. Ryan Rebello, Dr. Judit Coret-Simon, Dr. Michel Rathbone, Dr. John Wells, Dr. Heather Whittingham, Dr. Koon Teo, Dr. Salim Yusuf, Dr. Omid Salehian, Dr. Alena Skrinskas, Dr. Christopher Ricci, Dr. Karen Raymer, Dr. James Anderson, Dr. Arun Mensinkai, Dr. Arlene Franchetto, Dr. David Landry, Dr. Brian Birchenough, Dr. Andrea Thomson, Dr. Christopher Doris, Dr. Michael Patlas, Dr. Michael Romeo, Dr. Fernando Gastaldo, Dr. Draga Jichici, Dr. Cindy Hamielec, Dr. Ramiro Larrazabal, Dr. Blake Yarascavitch, Dr. Nurain Ibrahim, and Dr. Kesava Reddy (the “Moving Defendants”), bring this motion to:

(a) strike out paragraph 5 (to the extent that it references the Moving Defendants), sub-paragraph 24.D, paragraph 25, and paragraph 26 of the Statement of Claim (the “Claim”), without leave to amend; and

(b) dismiss this action as against the Moving Defendants

[2] The Plaintiff, Misty-Lee Beal, claims for negligence and breach of contract with respect to a brain biopsy procedure performed at Hamilton Health Sciences Centre.

[3] The Statement of Claim refers to the Moving Defendants in paragraph 5 and pleads that they were physicians involved in the Plaintiff’s medical care and treatment and that they practised where the care and treatment was received. Sub-paragraph 24.D of the Claim contains 28 allegations against each of the Moving Defendants.

[4] The Moving Defendants emphasize that the Plaintiff does not plead what role any of them had with respect to her medical care and treatment, and makes no allegations of specific acts or omissions attributable to them.

[5] The Moving Defendants also submit that there are no material facts to support the allegation in paragraph 25 of the Claim that they “impliedly or expressly contracted with Misty-Lee Beal.”

[6] The parties agree that the test to be applied on this motion is whether, on the facts as pleaded, it is “plain and obvious” that the Claim discloses no cause of action and that, put another way, the pleading has no reasonable prospect of success.

[7] The Moving Defendants rely on the requirement that the Claim must, at a minimum, plead the necessary elements of a cause of action. They submit that to establish a claim for negligence, the Claim must set out the specific acts that give rise to a duty of care as between the parties, and the specific acts that allegedly fell below the standard of care.

[8] The Moving Defendants submit that the Claim contains no material facts with respect to the Moving Defendants and that there is therefore no cause of action to plead against them.

[9] Leave to amend a claim can be given if the claim could be remedied by an amendment and no injustice would result. It is submitted that the deficiencies in the Claim are too broad and substantive. It is argued that as the Plaintiff has not properly amended her claim in the six months preceding this motion, leave to amend should not be granted.

[10] The major complaint of the Motion Defendants regarding the Claim is that general allegations of incompetence or negligence are made against doctors without the pleading of facts that would form the basis of liability. Although the Plaintiff denies this, she submits, as an alternative argument, that it would have been better to include the role each doctor played with respect to her care. The Plaintiff has therefore agreed to make amendments to the Claim. The Moving Defendants are not satisfied with this proposal and submit that even with such amendments, the pleading does not disclose a reasonable cause of action, and that the claims should be struck as against the Moving Defendants.

[11] I agree with the submissions of the Moving Defendants that the Claim as drafted is defective, and I agree that it is plain and obvious that the Claim, in its present form, has no chance of success. In my view, however, the defects are easily remedied.

[12] The Moving Defendants argue that the Plaintiff has had six months to remedy the defects in the Claim and has not done so. The Moving Defendants do not, however, advance any other argument with respect to prejudice they would suffer as a result of amendment. On this basis, the Moving Defendants cannot show that granting leave to amend would result in an injustice. The prejudice submitted by the Moving Defendants does not, in this case, outweigh the prejudice that would befall the Plaintiff as a result of not allowing amendments to the Claim.

[13] I am satisfied in this case that the Moving Defendants have not met their burden of establishing that no leave to amend should be granted.

[14] To conclude, I agree with the Moving Party Defendants that the Claim as presently drafted does not disclose a viable action against the Moving Defendants. The paragraphs I have referred to above are therefore struck, with leave to amend the Claim within 30 days of this endorsement.

Costs

[15] Subject to any agreement between the parties, brief written submissions on costs are to be made within fifteen (15) days of the release of these reasons.

Pollak J.

Date: November 27, 2013