CITATION: Gelinas v. Ucar, 2015 ONSC 1151

COURT FILE NO.: CV-14-5935

DATE: 2015/02/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chantal Gelinas v. Colin David Ucar and Timmins and District Hospital l’hopital de Timmins et du District Ontario Corporation Number 768701

BEFORE: Ellies J.

COUNSEL: Chantal Gelinas, acting in person

Trevor S. Fisher, for the Defendant, Colin David Ucar, and as agent for counsel for the Defendant, Timmins and District Hospital

HEARD: February 20, 2015

ENDORSEMENT

[1] Ms. Gelinas commenced an action in July, 2014, against Dr. Ucar and the Timmins and District Hospital. She represents herself in the action.

[2] In essence, Ms. Gelinas’s claims are as follows:

(1) that Dr. Ucar improperly failed or refused to treat her child, whom she had brought to the hospital on the evening in question;

(2) that Dr. Ucar improperly reported Ms. Gelinas to Child and Family Services when the plaintiff left the hospital with her daughter so that her daughter could see another doctor; and

(3) that Dr. Ucar defamed Ms. Gelinas, both in the medical records that were generated as a result of her attendance at the hospital on the evening in question and by the substance of his complaint to Child and Family Services.

[3] Unfortunately, as Ms. Gelinas concedes, her statement of claim fails to state the basis of her claim in such a succinct fashion. The statement of claim consists of 278 paragraphs and is 50 pages in length.

[4] There are three motions before me relating to Ms. Gelinas’ statement of claim, as follows:

(1) a motion brought on behalf of Dr. Ucar seeking, among other things, to stay the plaintiff’s action pending the determination of the motion under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and to strike the entire statement of claim under rule 25.11 of the Rules of Civil Procedure, R.R.O 1990, O. Reg. 194, with leave to amend;

(2) an identical motion brought on behalf of the hospital; and

(3) a motion brought by Ms. Gelinas seeking to strike the affidavit sworn in support of Dr. Ucar’s motion, to dismiss the hospital’s motion, and to permit her to amend her statement of claim.

[5] In this endorsement, I will deal first with Ms. Gelinas’ motion and then turn to the merits of the motions brought on behalf of Dr. Ucar and the hospital.

Ms. Gelinas’ Motion

[6] Ms. Gelinas seeks to strike the affidavit sworn in support of Dr. Ucar’s motion by Dara M. Lambe, a partner in the law firm acting for Dr. Ucar. She submits that the affidavit is improper for a number of reasons.

[7] First, she submits that it is improper for Mr. Fisher to appear on an affidavit sworn by a member of his law firm. In support of her submission, she relies on cases such as the decision in Shipdock Amsterdam B. V. v. Cast Group Inc. (2000), 2000 15071 (FC), 179 F.T.R. 282 (F.C.T.D.), in which O’Keefe J. wrote, at para. 11:

There is always a danger in a solicitor deposing to an affidavit and then using the affidavit on a motion which the solicitor argues or members of his firm argues. The solicitor could be cross examined, privilege issues may arise on cross-examination and the Court would have to comment and weigh the allegations made by the solicitor in the affidavit. As well the solicitor’s law firm could not continue to appear for the defendant in the motion in which the affidavit was used (see IBM. Corp. v. Printech Ribbons Inc. 1993 3013 (FC), [1994] 1 FC 692 (FCTD)).

[8] Shipdock and IBM Corp. were relied upon by Prothonotary Hargrave in the subsequent Federal Court decision of Butterfield v. Canada (Attorney General), 2005 FC 396, 280 F.T.R. 101, also relied upon by Ms. Gelinas. The court in Butterfield referred to another Federal Court decision, Imperial Oil Ltd. v. Lubrizol Corp. (1999), 1999 7455 (FC), 162 F.T.R. 112, at para. 16, for the proposition that, “should a solicitor in a firm depose to facts in an affidavit and the affidavit is filed for use on the motion, then another member of the firm should not argue the motion.”

[9] In my view, none of these decisions are applicable in this motion.

[10] All of the cases referred to by Ms. Gelinas are decisions of the Federal Court. As such, they are not binding on this court. To the extent that these decisions stand for the proposition that a lawyer should never appear on a motion supported by an affidavit which has been sworn by a member of his or her own law firm, they conflict with the practice in motions before this court.

[11] Rule 82 of the Federal Courts Rules, S.O.R./98-106, prohibits a solicitor presenting argument to the Federal Court based on an affidavit sworn by that solicitor. A similar rule exists in the Superior Court of Ontario by virtue of rule 5.2-1 of the Rules of Professional Conduct of the Law Society of Upper Canada (Toronto: Law Society of Upper Canada, 2014) and by a line of cases that goes at least as far back as the decision of the Ontario Court of Appeal in Imperial Oil Ltd. v. Grabarchuk (1973), 1974 869 (ON CA), 3 O.R. (2d) 783 (C.A.), in which the court refused to allow counsel who had submitted affidavits to the court of first instance to appear on the argument of the appeal.

[12] In the line of cases relied upon by Ms. Gelinas, the Federal Court has extended the prohibition against counsel appearing on his or her own affidavit beyond what the Rules of Professional Conduct and the common law prohibit in cases before our court. It has long been a tradition in this court for lawyers to swear affidavits in support of motions argued by their associates or partners on behalf of a firm’s client. The only prohibition against appearing on the affidavit of a member of one’s own law firm arises where the information and belief of the deposing lawyer is in reality that of the lawyer appearing to argue the motion: see Trempe v. Reybroek (2002), 2002 49410 (ON SC), 57 O.R. (3d) 786 (S.C.), at para. 38.

[13] That is not the situation here. The affidavit of Ms. Lambe refers only to the contents of the statement of claim, a document that presently forms part of the court record. Therefore, her affidavit is not objectionable on the basis that it was sworn by a member of Mr. Fisher’s law firm: see Cousineau v. Perrier, 2004 35656 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. NO. 545.

[14] Ms. Gelinas also argues that Ms. Lambe’s affidavit should be struck out because it improperly contains opinions and conclusions of law. I do not need to cite authority for the proposition that an affidavit sworn in support of a motion should not usually contain opinion evidence or conclusions of law. However, it is hard to avoid those opinions and conclusions in an affidavit sworn in support of a motion under rule 25.11.

[15] Rule 25.11 of the Rules of Civil Procedure permits the court to strike out or expunge all or a part of a pleading on the ground that the pleading or other document:

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[16] It is difficult, if not impossible, to avoid expressing an opinion in an affidavit sworn in support of a motion in which the moving party attacks a pleading on the basis that it offends one or more parts of this rule. It is clear to me that Ms. Lambe’s affidavit was sworn in an attempt to assist the court to find its way through a very prolix pleading and to highlight portions of that pleading that the moving party says offend the various provisions of rule 25.11. In my opinion, Ms. Lambe’s affidavit would have been more confusing and less helpful if she somehow managed to avoid altogether pointing out the parts of the statement of claim to which her client objects for one reason or another under rule 25.11.

[17] Ms. Gelinas also submits that, under rule 25.11, the affidavit should be sworn by a party, and not by counsel. She submits that only a party can have personal knowledge of whether a pleading is, for example, scandalous. With respect, I believe that Ms. Gelinas’ submission demonstrates a misunderstanding of the reasons for which a pleading may be struck under rule 25.11.

[18] The prejudicial, scandalous, frivolous, vexatious or abusive nature of the pleading referred to under rule 25.11 is not a reference to the manner in which a party perceives another party’s pleadings. These terms are legal terms and are, as Ms. Gelinas pointed out in the submission I have dealt with above, conclusions of law. It is not, therefore, necessary that a party swear the affidavit in support of a motion under rule 25.11.

[19] For these reasons, Ms. Lambe’s affidavit ought not to be struck out.

[20] Ms. Gelinas also seeks to strike the hospital’s motion as a result of the fact that the hospital failed to file an affidavit in support of its motion under rule 25.11 and failed to file a factum in support of its motion under Rule 21, as required by rule 21.03. In my opinion, the hospital’s motion ought not to be stricken as a result of these deficiencies.

[21] As counsel for Dr. Ucar points out, it was necessary for both the hospital and the doctor to serve motions in order to prevent Ms. Gelinas from noting them in default of filing statements of defence.

[22] Further, the hospital’s motion was simply “piggybacked” onto the doctor’s motion, in support of which motion Ms. Lambe’s affidavit was filed, as well as a factum. The hospital relies on those materials.

[23] While the hospital is technically in breach of the rules, rule 2.01 provides that a failure to comply with the rules is an irregularity. That rule provides the court with authority to grant all necessary relief to secure the just determination of the real matters in dispute. In these circumstances, I can see no reason to strike the hospital’s motion. As counsel for the defendants submits, there was no need for the hospital to duplicate the work undertaken on behalf of the doctor inasmuch as success on behalf of the doctor in striking Ms. Gelinas’ statement of claim is exactly the same result sought by the hospital. Had it not been necessary to do so in order to prevent being noted in default, the hospital could well have dispensed entirely with the service of a notice of motion.

The Defendants’ Motions

[24] As indicated above, Ms. Gelinas concedes that portions of her statement of claim are deficient and must be struck out. However, she submits that much of what is set out in her statement of claim must remain there in order to satisfy the provisions of rule 25.06(7) (effect of a document or the purport of a conversation, if material) and rule 25.06(8) (allegations of fraud, misrepresentation, breach of trust, malice or intent). Thus, for example, she argues that para. 79 of her statement of claim should remain in the amended pleading. That paragraph reads:

The defendant sarcastically and with a smirk ordered: “You can’t leave or I am calling CFS and say (sic) you are denying to have your child’s health looked after!”

[25] I disagree that paragraphs such as this should remain in the statement of claim. As rule 25.06(7) provides, the precise words of a document or conversation need not be pleaded unless those words are themselves material. It may be necessary for Ms. Gelinas to set out precisely the allegedly defamatory words contained in the hospital records and in Dr. Ucar’s complaint to the Child and Family Services (CFS). However, conversations of the type that I have referred to above need not, and should not, be pleaded.

[26] Unfortunately, both the original statement of claim and the proposed draft amended statement of claim attached as exhibit “A” to Ms. Gelinas’ affidavit are filled with this type of evidence. They also contain various arguments and rhetorical questions. None of this should be pleaded.

[27] In my view, it is not possible to strike out only the offending portions of the statement of claim and leave anything comprehensible intact. Therefore, the defendants’ request to strike out the entire statement of claim is granted, without prejudice to Ms. Gelinas preparing, serving and filing a Fresh as Amended statement of claim. Ms. Gelinas shall have 30 days from the date of these reasons within which to do so, which she agrees is a reasonable period of time. The statement of claim presently in the court record shall remain on file for 30 days, following which it shall be expunged from the court file in accordance with the provisions of rule 25.11 of the Rules of Civil Procedure and s. 137(2) of the Courts of Justice Act.

COSTS

[28] The defendants were successful on the motion. Ordinarily, costs follow the event and the defendants would be entitled to their costs. In light of the concessions Ms. Gelinas made with respect to the need to amend her statement of claim, counsel for the defendants advises the court that the defendants, very reasonably, seek only nominal costs in the amount of $200 against Ms. Gelinas and content that those costs be awarded in the discretion of the trial judge.

[29] However, Ms. Gelinas advises she made an offer to settle made in advance of the motion. The rules provide that the normal cost consequences may not obtain where the successful parties have refused to accept an offer and not done better than that offer in the result on the motion.

[30] If Ms. Gelinas is of the view that her offer to settle was in terms more favourable to the defendants than the results of the motion, she may make written submissions with respect to the matter of costs within 20 days of the date of these reasons. Those submissions shall be limited to five typewritten pages, double spaced, excluding attachments (such as the offer to settle). The defendants shall have ten days from receipt of those written submissions within which to make any reply, similarly limited in length.

[31] If no written submissions are received within the time limits set out above, an order shall issue requiring Ms. Gelinas to pay costs to the defendants in the total amount of $200, by paying the said costs to the law firm representing Dr. Ucar.

Ellies J.

Date: February 25, 2015