COURT FILE AND PARTIES
COURT FILE NO.: 2598/13
DATE: 2014 08 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DONNA MARY MILLER v. DR. ROBERT CAMERON TURLIUK
BEFORE: EMERY J.
COUNSEL:
No one appearing for the Plaintiff
Christopher Marshall, for the Defendant Robert Cameron Turliuk
Karen C. Watters, for the proposed Defendants Trevor Fisher, Dara Lamb and Lerners LLP
HEARD: August 5, 2014
ENDORSEMENT
[1] There were two motions before the court on August 5, 2014. There was a motion by the plaintiff, Donna Miller, who is self-represented in this action. Although there are several forms of her notice of motion in the court file, the most recent was a notice of motion that was returnable on November 6, 2013. This is the form of the motion that I considered to be the motion that was ultimately adjourned to August 5, 2014 for hearing.
[2] The plaintiff’s motion requested a variety of orders:
a) to add two lawyers and the law firm of Lerners LLP, lawyers of record for the defendant, Dr. Robert Cameron Turliuk as additional defendants,
b) to add Brenda Bell and Rose Urkevich, employees of Dr. Turliuk, as defendants,
c) to add the estate of Alana Mary McGuire as an additional plaintiff and to claim for the wrongful death of Alanna Mary McGuire in the action,
d) to convert the action to a “Class Action”,
e) for leave to increase the amount of her claim from $1,000,000 to $100,000,000,
f) a permanent injunction restraining Dr. Turliuk or his staff or any person at Lerners LLP from having contact with the plaintiff,
g) production of certain medical files and the missing section of her own medical file produced to date, and
h) an order against the defendant, Dr. Turliuk, enjoining him from practicing medicine.
[3] The defendant had brought the second motion seeking an order striking out various paragraphs of the statement of claim without leave to amend. Dr. Turliuk’s motion also requested an order providing direction with respect to the disclosure of various medical records belonging to third parties, an order providing for directions regarding the manner of service of documents on the plaintiff, and an order establishing a timetable for the conduct of the action.
Adjournment Denied
[4] At the outset of the motion, I was provided with a fax letter from Donna Miller dated August 4, 2014. At the top of the letter a return address in Cornwall, Ontario was shown but in the body of the letter Ms. Miller stated that she currently resides in Florida and it is her intention to continue to reside there. In that letter she requested an adjournment of the motions to a later date. She gave as the reason for requesting the adjournment an explanation that she had consulted on August 1, 2014 with one Dr. White about whether or not she could fly to Ontario to attend the notice of motion of August 5, 2014. The letter stated that Dr. White had informed Ms. Miller that due to a medical condition, she cannot fly. She attached a note allegedly scribbled on a sheet from a prescription pad to this effect from Dr. White. Neither the letter nor the note described the nature of the medical condition or the time needed before for the plaintiff might be fit to travel.
[5] Furthermore, the letter from Donna Miller did not suggest a new hearing date for the motion or even an address in Florida where she could be reached or served.
[6] For reasons endorsed on the record on August 5, 2014, I denied the plaintiff’s written request for an adjournment.
Plaintiff’s Motion
[7] Although the plaintiff requested an order that she be heard by teleconferencing or “Skype”, that request was already heard by Justice Gray on November 6, 2013. However, although she did not appear in court that day, Justice Gray considered her request and ordered that, having regard to the issues, all parties should appear in person when the motion was heard.
[8] In view of my dismissal of the plaintiff’s request for an adjournment, I find that Ms. Miller is deemed to have abandoned her motion under Rule 37.09(2) as she did not appear in person. If I have erred by denying Ms. Miller’s written request for a further adjournment, or should I ever be seen as having applied Rule 37.09(2) incorrectly or in a manner that could somehow been seen as unfair or unjust, I would have dismissed most parts of the motion for lack of evidence, or for reasons that the relief requested is contrary to law or the (Ontario) Rules of Civil Procedure for the following reasons:
On the request for expert testimony of a neurologist by teleconferencing: the action is still at the pleadings stage. In fact, the plaintiff is seeking to add a plaintiff and additional defendants on this motion. It is premature to seek leave with respect to the testimony of experts for any reason in the action, including trial. In any event, no expert was identified in the motion and no report was attached to provide the opposing parties with the nature of the expert testimony proposed. Therefore, for reasons that include non-compliance with Rule 53.03, the request for this order would have been dismissed.
To add the following as defendants: Trevor Fisher, Dara Lamb, and Lerners LLP: The plaintiff did not attach an amended statement of claim to her materials containing the precise allegations or showing how any claim could be made against these proposed defendants.
In any event, the proposed defendants as the lawyers and law firm representing the defendant Turliuk did not owe a duty to the opposing party. Therefore, any allegations of unethical conduct or negligence do not provide a basis for a cause of action: MacDonald v. MCAP Service Corporation [2013] ONSC 4473. Further, it was held by this court in Homelife Realty Services Inc. v. Homelife Performance Realty Inc. [2004] 53863 (ONSC) that a request to add defendants should not be made to put unfair pressure on the defendants to settle, and should not be made for some other tactical reason. The evidence must support the addition of the new party and the court must consider whether a cause of action against that party is tenable. Here, there was no amended statement of claim attached in draft form to the materials to make that determination.
The plaintiff’s affidavit does allege that Mr. Fisher’s intercepted a confidential document that puts him in a conflict position with the plaintiff. However, the responding affidavit of Trevor Fisher satisfies me that the document in question was a letter to the plaintiff’s process server that is not only not confidential in nature, but was actually faxed by the plaintiff herself to Lerners LLP in the course of sending 80 separate faxes to serve a previous motion record in this action. There would have been no reason to disqualify Mr. Fisher as counsel on this basis. Were it otherwise, all that would be needed for a plaintiff to construct a foundation to remove the defendant’s counsel of choice would be to send a controversial document to opposing counsel.
The affidavit material does not support any cause of action against the proposed defendants Brenda Bell and Rose Urkevich. There was no merit to consider this relief under Rule 26.01 or Rule 25.06 (1).
To add the estate of Alanna Mary McGuire as an addition plaintiff: A Certificate of Appointment issued by the court on September 9, 2003 naming the plaintiff as an estate trustee of the estate of her mother, the late Alanna Mary McGuire, jointly with her brother John Richard Darren McGuire. Rule 5.03(5) expressly requires the consent of a person before that person can be added as a plaintiff to a civil action. There is no evidence in the materials before me that Richard McGuire as the other estate trustee had given his consent to add the estate as a plaintiff. Therefore, the motion to add the estate of Alanna Mary McGuire would have been dismissed because the requirements of Rule 5.03(5) have not been met.
To add a claim for the wrongful death of Alanna Mary McGuire to this action: As the estate of Alanna Mary McGuire would not have been added to the statement of claim as a plaintiff, I would have dismissed the amendment to the Statement of claim to add a claim for her wrongful death. In any event, such cause of action the estate may have had is now statute barred by Section 38(3) of the Trustee Act, RSO 1990, ch.T.23 as more than two years have passed since Mrs. McGuire’s death in 2003.
To convert this to a “Class Action” law suit: Section 5(1)(b) of the Class Proceedings Act provides that there must be two or more persons of an identifiable class to seek certification of an action as a class proceeding. Since Donna Miller is the sole plaintiff, the Class Proceedings Act does not apply.
To increase the amount of the damages claimed from $1,000,000 to $100,000,000: This claim would have been dismissed because the plaintiff did not provide any evidence whatsoever as the basis for increasing the current amount of damages claimed. As the plaintiff did not attached a proposed amended statement of claim to her motion materials, I have no basis to determine the reason for increasing the damages claimed to the amount requested. I have no evidence of levels of insurance this increase in damages claimed might trigger. Without that evidence, I would not have granted this amendment without a proper foundation.
To remove the simplified procedure clause from the plaintiff’s statement of claim: I would have permitted this amendment based on the current damages claimed in the amount of $1,000,000.
To prohibit anyone with an L1 license at Lerners LLP from acting as counsel in this action for any defendant: I would have dismissed this part of the motion for the reasons given in paragraph 2 above.
For a permanent injunction/restraining order against Dr. Turliuk and his staff, and Lerners LLP from having any contact with the plaintiff: The supporting affidavit material does not establish a serious question to be tried in the action that would support this claim for injunctive relief. Nor does it provide evidence of any irreparable harm if the injunctive relief was not granted, as required by the Supreme Court of Canada in R.J.R-McDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 11.
To produce the medical/patient files of John George McGuire, Alanna Mary McGuire, Clara Garinther McGuire, Laura Jaclyn Miller, Stephanie Megan Miller: The plaintiff made a previous motion to Justice Gray on September 12, 2013 for this relief. Justice Gray dismissed the motion without prejudice to hearing a further motion it were served on the parties for whom those files were created. The plaintiff has furnished no proof of service of the motion on those third parties. As this motion has already been heard and disposed of by Justice Gray, I would have dismissed this part of the motion without further evidence as to service.
To produce the missing section of the medical/patient file of Donna Marie Miller (January to August, 1995, and March to September 2003): The affidavit of Stephen Schenke explains that Lerners LLP sent the entire file received from its client Dr. Turliuk to Mr. Harry Zahoruk’s office in Burlington as directed by the plaintiff and as Ms. Lamb represented to Justice Gray she would do on September 12, 2013. The evidence states the defendant and his counsel have no further parts of the file or information with respect to these missing sections.
An order for an independent person of the court’s choosing to examine the office of Dr. Turliuk for the above files, as well as to inspect sanitary conditions there: The motion was not framed properly to seek this relief.
An injunction ordering Dr. Turliuk to stop practicing medicine pending the numerous complaints filed: This court has no jurisdiction to make such an order.
To be heard by teleconferencing or Skype: This relief was heard and dismissed by Justice Gray on November 6, 2013.
An order prohibiting any person at Lerners LLP, or Dr. Turliuk or his staff from contacting the plaintiff without a court order: This relief is the same as the relief dismissed in paragraph 10 above.
Defendant’s Motion
[9] On the motion of the defendant Dr. Robert Cameron Turliuk to strike various paragraphs of the statement of claim, counsel referred to paragraphs, 3, 4, 5, 6, 7, and the last three sentences of paragraph 18 of the statement of claim.
[10] The plaintiff’s action is essentially a claim for damages allegedly caused by the perceived negligence of Dr. Turliuk while she was a patient in his care. Paragraph 3 of the statement of claim contains allegations about the delivery of her two daughters by caesarian section in 1987 and 1990 respectively, by a Dr. Johnson, who has since passed away. No allegation is made against Dr. Turliuk connected to these births. Paragraph 4 contains allegations about the plaintiff’s father “who dropped to the ground” in 1995 and was taken to Hamilton General Hospital where another doctor diagnosed him with a malignant brain tumor. Although there is an allegation that Dr. Turliuk was her father’s physician, there is no further allegation of Dr. Turliuk’s involvement with the treatment for this tumor, or any causal link to the father’s death in the weeks after surgery to remove it.
[11] In paragraph 5, the plaintiff alleges that Richard McGuire sent a letter to Dr. Turliuk in 2003 requesting a copy of the file for the plaintiff’s father. It is alleged that no response was ever received from Dr. Turliuk, and that the file was never produced. In paragraph 6, the plaintiff makes allegation about the death of her mother in 2003 and in paragraph 7 the plaintiff makes allegations that a copy of the patient file of her mother was requested from Dr. Turliuk in 2005. The plaintiff alleges that no response was ever received from Dr. Turliuk, and no file was ever provided.
[12] The statement of claim in its current form does not concern claims made by her daughters, or the estates of either her mother or her father. Rule 25.06 (1) is clear that a statement of claim must only contain allegations of material fact, and not the evidence to prove them. The allegations in these paragraphs are not relevant to the claims that the plaintiff is making against Dr. Turliuk. Those paragraphs under attack are therefore not proper as pleadings under Rule 25.06(1). Accordingly, paragraphs, 3, 4, 5, 6, and 7 of the statement of claim are hereby struck, without leave to amend.
[13] The defendant also seeks an order striking the last three sentences from paragraph 18 of the statement of claim. Those sentences read “The pain is unbearable. My toes on my left foot have curled. Dr. Turliuk referred to this as “claw foot”.” These are subjective statements and not allegations of material fact. If anything, they are statements of evidence, which is not permitted under Rule 25.06(1). I hereby order that those sentences of the statement of claim be struck, without leave to amend.
[14] The defendant also seeks an order providing directions for the disclosure to the plaintiff of the medical records she seeks. For the reasons given in paragraph 7.11 above and the order made on September 12, 2013 by Justice Gray, I am directing the plaintiff to bring a motion with proper materials on notice to any of the third parties concerned if she continues to seek an order of that kind. Alternatively, she may provide an authorization signed by the relevant third party in the form provided by Dara Lamb of Lerners LLP to the plaintiff in her letter dated September 16, 2013, provided that an affidavit of witness is attached to that authorization. On receiving any order of the court or a signed authorization, the defendant Turliuk shall produce a copy of that file to the plaintiff if it is within his custody or control.
[15] I am also asked to make an order providing directions regarding the service of documents on Ms. MIller. For the reasons described above in regard to the plaintiff’s request for an adjournment, neither counsel for the defendant or the court has a physical address for the plaintiff Donna Miller in Florida. Therefore, the plaintiff Donna Miller is hereby ordered to provide her mailing address in Florida by September 12, 2014 in writing and confirmation that her mailing address in Florida is good and sufficient for the service of materials and delivery of documents. This notice in writing of her address in Florida shall be provided to Mr. Fisher and Lerners LLP and to the court by fax. Counsel for the defendant may serve the plaintiff with any document required by the Rules of Civil Procedure by both e-mailing it to her as a PDF attachment at donnamarymiller@gmail.com and sending a paper copy to her by ordinary mail at her mailing address in Florida when it becomes known, failing which that paper copy shall be sent to her by ordinary mail at her at 7-841 Sydney Street, number 168 Cornwall, Ontario, K6H 7L2, being her last known address in Ontario.
[16] The defendant’s motion also seeks a timetable for the next steps in this litigation. I hereby order and direct the parties to complete the following steps as follows:
a. exchange affidavits of documents – by September 20, 2014
b. complete examination for discovery – by December 30, 2014
c. answer all undertakings and questions taken under advisement or refused – by March 31, 2015
d. bring and argue any motions relating to undertakings, questions taken under advisement or refused – by June 30, 2015
[17] I hereby dispense with the approval of any draft order as to form and content based on this endorsement. I further order counsel for the defendant to serve this endorsement, the written endorsement dismissing the plaintiff’s request for an adjournment on August 5, 2014 and any order in entered form on the plaintiff in the manner permitted herein.
[18] If the plaintiff intends to bring a motion to set aside all or any of these orders, I order that she serve proper materials to do so by September 30, 2014 to be heard by a judge in Milton before November 30, 2014 and that she or a lawyer or agent on her behalf appear in person on that motion.
[19] I would invite counsel for the defendant and counsel for the proposed defendants to make written submissions on costs by September 15, 2014 if they are inclined to do so. If costs are requested, the plaintiff shall then have until September 30, 2014 to make her submissions in writing. All submissions shall consist of no more than three typewritten, double spaced pages, not including a cost outline and may be sent to my judicial assistant Sherry McHady via facsimile 905-456-4834 at Judge’s Chambers in Brampton.
Emery J
DATE: August 25, 2014
COURT FILE NO.: 2598/13
DATE: 2014 08 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DONNA MARY MILLER v. DR. ROBERT CAMERON TURLIUK
BEFORE: EMERY J.
COUNSEL: No one appearing for the Plaintiff
Christopher Marshall, for the Defendant Robert Cameron Turliuk
Karen C. Watters, for the proposed Defendants Trevor Fisher, Dara Lamb, and Lerners LLP
ENDORSEMENT
EMERY J
DATE: August 25, 2014