ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-467351

DATE: 20140604

BETWEEN:

WENDY SIN MING HO

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, MINISTRY OF HEALTH, WORKPLACE SAFETY INSURANCE APPEAL TRIBUNAL, ONTARIO HUMAN RIGHTS COMMISSION, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and ONTARIO LABOUR RELATIONS BOARD

Defendants

Wendy Sin Ming Ho, In Person

Fatema Dada, for Her Majesty the Queen
Steven Bosnick, for the Defendant, Health Professions Appeal and Review Board

HEARD: January 30, 2014

REASONS FOR DECISION

Firestone J.

[1] The moving party defendants bring these motions pursuant to Rules 21.01(1)(a) and (b), 21.01(3)(b) and (d), 25.06 and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 (“the Rules”) for an order dismissing or in the alternative striking out the plaintiffs amended Statement of Claim without leave to amend.

ISSUES FOR DETERMINATION

(a) Whether the claims against the Ministry of Health (“Ministry”), Ontario Human Rights Commission (“HRC”), Ontario Labour Relations Board (“LRB”), Workplace Safety Insurance Appeal Tribunal (“WSIAT”) and Health Professions Appeal and Review Board (“HPARB”) should be struck because they are not suable entities.

(b) Whether the claim against all the moving parties should be struck because it discloses no reasonable cause of action and is frivolous, vexatious or an abuse of process.

(c) Whether the claim against the Ministry, HRC, LRB and HPARB should be struck because they were brought after expiry of the limitation period.

FACTUAL BACKGROUND

[2] The Plaintiff’s amended statement of claim was issued November 8, 2012 and amended January 29, 2013.The claims asserted arise from her employment relationship with two public hospitals where she claims she was harassed, discriminated against, falsely accused and treated unfairly.

[3] As a result the plaintiff submitted various complaints and commenced various proceedings to the HRC, LRB, WSIAT and HPARB.

NATURE OF THE PLAINTIFF’S CLAIMS

(a) As against Her Majesty the Queen in right of Ontario (“Crown”)

[4] In essence, the plaintiff alleges a breach of duty for failure “to provide sufficient governing authorities for the protection of rights” and “enforcement” of the constitution; “corruption”, permitting “governing authorities to perform favourable treatment for government, backed up hospitals on immoral practice without looking up evidence for truthfulness” and “allowed barrier in justice system”. Further allegations are set forth in the amended statement of claim.

[5] This claim appears to be based on a breach of the Crown’s constitutional duty under section 7 of the Charter to provide sufficient governing authorities for the protection of her rights The plaintiff alleges that the Crown breached this duty as a result of the conduct of the Ministry, HRC, LRB, WSIAT and HPARB.

(b) As against the HRC

[6] The plaintiff’s claim appears to be that after she reported one of her former employers to the HRC they provided a decision with a denial in file No. SBHE-44RQB6 thereby violating the principles of fundamental justice.

(c) As against LRB

[7] The basis of the claim is that the LRB “denied decision in reconsideration” after the plaintiff reported one of her former employers to them.

(d) As against WSIAT

[8] The plaintiff asserts that in August 2011, it improperly granted an adjournment at the

outset of a scheduled hearing for hospital personnel.

(e) As against the Ministry

[9] It is alleged that the Ministry failed to keep documents for the purpose of litigation after being pursued by a patient’s family; they failed to involve her “know how”; they failed to disclose correspondence; failed to employ “effective management personnel to practice morally without ongoing fabrications to harass” the plaintiff and “failed to prevent administrative bodies to cover up for each other to conceal truth for justice through control of access to Wendy’s work documentation for evidence”.

(f) As against the HPARB as well as the LRB, HRC and WSIAT, as pleaded at paragraph 26(c)

• They failed to familiarize their duty to perform adequately for justice on complaints.

• They failed to access Wendy’s work documentations as accused by her hospital employers for truthfulness, though with sufficient information for access from Wendy.

• They violated the principles of fundamental justice on Wendy.

• They failed to render Wendy real access to justice, but dragged on with tedious bureaucracy.

• They failed to properly use their power for equity treatment between hospital and Wendy.

• They failed to carry out their duty but compounded mental and psychological torturing on Wendy through lengthy arbitrary complaint avenues over the past 12 years since year 2000.

• They failed to assess illogical fabrications, but jump to decision with denial on Wendy’s complaint.

• They failed to seek out information source for proper decision with just.

ANALYSIS

(a) Whether the claims against the Ministry, HRC, LRB, WSIAT and HPARB are suable entities.

[10] The Ministry can only be sued if its enabling statute allows it. The Ministry is a government department of Her Majesty the Queen (Crown) and is not a distinct legal entity. There is no basis in the statute or anywhere else that provides for the commencement of an action against a Ministry of the Crown: Deep v. Ontario, [2004] O.J. No.2734 (S.C.J.) at para 82, aff’d [2005] O.J. No. 1294 (C.A.); McNabb v Ontario (2000), 2000 22413 (ON SC), 50 O.R.(3d) 402 (S.C.J.) at para 29.

[11] The action against the Ministry is therefore dismissed pursuant to Rule 21.01(3)(b).

[12] The LRB is a non-corporate entity established under the Labour Relations Act, 1948 and Labour Relations Act, 1995, S.O. 1995, C.1 and operates as an adjudicative tribunal.

[13] In Hollinger Bus Lines Limited v. Ontario Labour Relations Board, 1952 16 (ON CA), [1952] O.J. No.439 (C.A.) the Ontario Court of Appeal confirmed that “the whole scheme and purpose of the Act is to deal with certain phases of the employer-employee relationship. The Board does not carry on any business. Its function is primarily administrative and it has been given power to exercise certain functions of a judicial nature. There is nothing in the Act remotely suggesting that it was intended by the Legislature that the Board should have the capacity to sue or be sued.”

[14] On this basis the action against the LRB is dismissed pursuant to Rule 21.01(3)(b).

[15] The WSIAT is an administrative tribunal which hears appeals from the Workplace Safety and Insurance Board under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sch. A. It is the final appellate forum.

[16] WSIAT exercises a quasi-judicial function and therefore “lacks the legal status and capacity to be sued for actions taken carrying out those functions”: Aird v. Ontario (Workplace Safety and Insurance Appeals tribunal), 2010 ONSC 3600, [2010] O.J. No. 2717 (S.C.J.) at para 24.

[17] The action against WSIAT is dismissed pursuant to Rule 21.01(3)(b).

[18] The HRC derives its authority from the Human Rights Code, R.S.O. 1990, ch. 19. It is not a body corporate. There is “[n]othing in the Code that constitutes either the Commission or the Tribunal as a body corporate nor is there anything in the Code that provides that either is liable to suit”: York Advertising Ltd. v. Ontario (Human Rights Commission), [2004] O.J. No. 949 (S.C.J.).

[19] The action against the HRC is dismissed pursuant to Rule 21.01(3)(b).

[20] HPARB is an administrative and quasi-judicial adjudicative tribunal. It conducts reviews and preforms various duties under the Regulated Health Professions Act, 1991 S.O. 1991, c. 18.

[21] Under the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, S.O. 1998, c.18, s.18 (“The Act”) “No proceeding for damages shall be commenced against a Board, a member, employee or agent of a Board or anyone acting under the authority of the chair of a Board for any act done in good faith in the performance or intended performance of the person’s duty or for any alleged neglect or default in the performance in good faith of the person’s duty.”

[22] The HPARB however is not itself a corporate body. Further the constituting statute does not expressly or by necessary implication make the HPARB itself a suable entity. See generally McNamara v. North Bay Psychiatric Hospital (1994), 1994 1158 (ON CA), 16 O.R. (3d) 633 (C.A.).

The action against HPARB is dismissed pursuant to Rule 21.01(3)(b).

[23] Given my finding that the Ministry, HRC, LRB, WSIAT and HPARB are not suable entities, I need not address the application of Rule 21.01(3)(d) or the limitation issue against them.

(b) Whether the claim against the Crown should be struck because it discloses no reasonable cause of action and is frivolous, vexatious or an abuse of process.

[24] On a motion to strike under Rule 21.01(1)(b) the test to be applied is whether it is “plain and obvious” assuming that the facts pleaded are true and capable of proof, that the claim cannot succeed because the allegations do not give rise to a recognized cause of action: Hunt v. Carey Canada Inc., [1990] S.C.R. 959 paras 30-34.

[25] The failure to properly establish a cause of action can occur in one of two ways. Firstly, it will be found to be legally insufficient when either its allegation(s) do not give rise to a recognized cause of action. Secondly, if it fails to plead the necessary elements of an otherwise recognized cause of action: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R (4th) 257 (C.A.) at p. 264; Williams v. Canada (2009), 2009 ONCA 378, 95 O.R. (3d) 401 (C.A.) at para 10 and Coote v. Ontario Human Rights Commission, [2009] O.J. No. 4264 (S.C.J.) paras 38-41.

[26] Pleadings are required to contain a concise statement of the material facts on which the party relies. A party must plead all of the facts that it must prove to establish a cause of action: Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.J.) at para 20.

[27] The basis of the plaintiff’s claim against the Crown appears to be that it appointed governing boards and tribunals who carried out their duties in bad faith, violated her Charter rights and breached a duty of care owed to her. Her Claims arise as a result of complaints she made involving her former employment relationship with various hospitals.

[28] As against the Crown, the plaintiff specifically alleges corruption and implies improper conduct between the Crown and boards or tribunals and failure to enforce the Constitution. No particulars regarding such allegations are pleaded.

[29] On a generous reading of the statement of claim the facts do not support a private law duty of care between the Crown and the plaintiff.

[30] It is unclear whether the plaintiff’s claim against the Crown is limited to acts done while discharging responsibilities of a judicial nature.

[31] With respect to the plaintiff’s Charter claim the plaintiff pleads and relies on sections 7 and 24(1). In order to maintain a claim for Charter damages there must be evidence of mala fides: John Doe v. Ontario, [2007] O.J. No. 3889 (S.C.J.) at para.118.

[32] The plaintiff has failed, my respectful view, to plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. The bald and vague allegations in the claim make it impossible for the Crown to know the case they have to meet: Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (Ont. Sup Ct) para. 19.

[33] The absence of the necessary material facts and the bare allegations render the pleading “frivolous, vexatious and an abuse of process”: Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, [2003] O.J. No. 5331 (Ont. Sup Ct.) para 21.

[34] Regarding the Charter damages claim, the plaintiff has failed to plead full particulars as required by Rule 25.06(8). A bald allegation of mala fides is insufficient. The statement of claim fails to plead the material facts, which if true, could give rise to a prima facie Charter breach and mala fides necessary to support a s. 24(1) Charter damage claim.

[35] For the reasons set forth above, the plaintiff’s claim against the Crown is struck with leave to amend.

(c) Whether the limitation period against the Crown has expired

[36] The Crown argues that the claim against it is statute barred because the events giving rise to the allegations occurred between 2000-2002.

[37] Under the Limitations Act, S.O. 2002, c. 24, Sch. B, where a claim based on acts or omissions which occurred prior to January 1, 2004, is discovered prior to that date a six-year limitation period applies. On the other hand, if the claim is discovered after January 1, 2004, a two-year limitation applies.

[38] On the limited record before me there is insufficient factual information to determine the “discoverability” issue and whether the applicable limitation period was suspended for any period because of the plaintiff’s physical, mental or psychological condition.

[39] This finding is made without prejudice to the Crown to renew or bring such other motion, if necessary, to determine this issue.

DISPOSITION

[40] For the reasons set forth above I order as follows:

1. The action against the Ministry, HRC, LRB, WSIAT and HPARB is dismissed.
2. The action against the Crown is struck with leave to amend.

[41] I encourage the parties to agree on costs. If they cannot, written costs submissions totaling no more than 4 pages are to be submitted on or before May 9, 2014.

Firestone J.

Released: June 4, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

WENDY SIN MING HO

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, MINISTRY OF HEALTH, WORKPLACE SAFETY INSURANCE APPEAL TRIBUNAL, ONTARIO HUMAN RIGHTS COMMISSION, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and ONTARIO LABOUR RELATIONS BOARD

Defendants

REASONS FOR DECISION

Firestone J.

Released: June 4, 2014