ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-2835-13
DATE: 2015/07/14
BETWEEN:
S.F.
Plaintiff
– and –
THE GREATER SUDBURY POLICE SERVICE, THE SUDBURY POLICE SERVICES BOARD AND SUDBURY POLICE ASSOCIATION, M. PAQUETTE, CRAIG MAKI, ROBIN TIPLAY, M. JEFFERY, DAVID BECK, CRAIG MOXAM, TODD BIGNOCOLLO, DAN ZULIANNI, JEFF KUHN, SUSAN LEYS, TIM BURTT, J. ROBERTSON, L. MCLOSKY, T. MARASSATO, P. SMYTH, ELAINA GROVES, SANDRA DICAIRE, PAUL MCGEE, MEAGAN O’MALLEY, JACK SIVAZLIAN, DUNCAN EPP, M. ROBINSON, GREG BERGERON, FRANK ELSNER, CONST. ELDEAMA, THE ATTORNEY GENERAL FOR ONTARIO, JOHN LUCZAK, KENDRICK ABBOTT, MERIEL ANDERSON, SUSAN BRUCE, MARC HUNEAULT, JOHN HOLLAND, LEILA MEHKERI, RUBY BECK, MICHEL J. MOREAU, MICHAEL G. KITLAR, SUSAN STOTHART, LEONARD KIM, DIANNE LAFLUER, ANDREA BEAL, RIA BIGNOCOLLO, HELENE BRYDGES, PIERRE BRADLEY LAW OFFICE, CHILDREN’S AID’S SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN, JEAN JACQUES PAQUETTE, REJEAN PARISE, COLLETTE PREVOST, NORA DOUGAN, LINDA CULLAIN, JEAN O’CONNER, DARLENE WILSON, MICHELLE GLOVER, DONALD KINGSLEY, CANDICE POULIN, KAREN FAGEN, CHRISTY CROTEAU, DEBBIE LACELLE, LAURA FOX, JODY MARCOTTE, MS. BISAILLON, LOUISE BRENDA BEAUVAIS, JOSH NEGUSANTI, PATRICIA L. MEEHAN, MINISTRY OF THE ATTORNEY GENERAL OFFICE OF THE CHILDREN’S LAWYER, SHEILA MILNE M.D., BRENDA PETRYNA, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE CHILD AND FAMILY SERVICES REVIEW BOARD, SUZANNE GILBERT and MR. OLIVER, OFFICE OF THE INDEPENDENT REVIEW DIRECTOR GERRY MCNEILLY, SUSAN DUNN-LUNDY, KIM MCDONALD, BERNIE MUILLER, TERESA PIRUZZA MINISTRY OF CHILD & YOUTH SERVICES, DEB MATHEWS MINISTRY OF HEALTH, RICK BARTOLUCCI MPP FOR SUDBURY ONTARIO, VICE CHAIR STANDING COMMITTEE ON GOVERNMENT AGENCIES
Defendants
S.F., Unrepresented
David P. Jacobs and Steven G. Bosnick, for the defendants, Brenda Petryna, and Health Professions Appeal and Review Board, and
Carole G. Jenkins, for the Defendants, Children’s Aid Society of the Districts of Sudbury and Manitoulin, Collette Prevost, Nora Dougan, Linda Cullain, Jean O’Connor, Darlene Wilson, Michelle Glover, Donald Kingsley, Candice Poulin, Karen Fagen, Christy Croteau, Debbie Lacelle, Laura Fox, Jody Marcotte, Louise Beauvais, Brenda Beauvais and Josh Negusanti, and
C. Kirk Boggs, for the defendants, THE GREATER SUDBURY POLICE SERVICE, THE SUDBURY POLICE SERVICES BOARD, M. PAQUETTE, CRAIG MAKI, ROBIN TIPLAY, M. JEFFERY, DAVID BECK, CRAIG MOXAM, TODD BIGNOCOLLO, DAN ZULIANNI, JEFF KUHN, SUSAN LEYS, TIM BURTT, J. ROBERTSON, L. MCCLOSKY, T. MARASSATO, P. SMYTH, SANDRA DICAIRE, PAUL MCGHEE, ELAINA GROVES, MEAGAN O’MALLEY, JACK SIVAZLIAN, DUNCAN EPP, M. ROBINSON, FRANKELSNER, CONST. ELDEAMA, and
Meagan Williams and Baaba Forson, for the defendants, THE ATTORNEY GENERAL OF ONTARIO, JOHN LUCZAK, KENRICK ABBOTT, MURIEL ANDERSON, SUSAN BRUCE, MARC HUNEAULT, JOHN HOLLAND, LEILA MEHKERI, RUBY BECK, DIANE LAFLEUR, MICHEL J. MOREAU, MICHAEL G. KITLAR, SUSAN STOTHART, LEONARD KIM, ANGELLA BEAL, RIA BIGNUCOLO, HELEN BRYDGES, THE CHILD AND FAMILY SERVICES REVIEW BOARD, SUZANNE GILBERT, OLIVER URCUYO, OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR, GERRY MCNEILLY, SUSAN DUNN-LUNDY, KIM MCDONALD, BERNIE MUILLER, TERESA PIRUZZA, DEB MATTHEWS, RICK BARTOLUCCI, MINISTRY OF CHILDREN AND YOUTH SERVICES, MINISTRY OF HEALTH, MINISTRY OF THE ATTORNEY GENERAL – OFFICE OF THE CHILDREN’S LAWYER, and
G.E. McAndrew, for the defendants, PIERRE BRADLEY LAW OFFICE, JEAN JACQUES PAQUETTE, PATRICIA L. MEEHAN, and REJEAN PARISE, and
Michael C. Birnie, for the defendant, SUDBURY POLICE ASSOCIATION, and
Phuong T.V. Ngo and Madeline Hall, for the defendant, Sheila Milne M.D., and
ms. Bisaillon and GREG BERGERON, unrepresented defendants
HEARD: August 15, 2014
REASONS – HEALTH PROFESSIONAL APPEAL AND REVIEW BOARD and BRENDA PETRYNA
Kane J.
HEALTH PROFESSIONALS APPEAL AND REVIEW BOARD and BRENDA PETRYNA
[1] The Health Professional Appeal and Review Board (the “Board”) and Brenda Petryna by motion seek:
a) An Order that the action be dismissed as against the Board and Brenda Petryna;
b) In the alternative, an Order that the action be stayed as against the Board and Brenda Petryna;
c) In the further alternative, an Order striking out the Statement of Claim in its entirety as against the Board and Brenda Petryna without leave to amend;
d) In the further alternative, an Order permitting late delivery of the Board and Brenda Petryna’s Statement of Defence pursuant to R. 2.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as am.
POSITION OF THE MOVING PARTY
[2] The moving parties submit that:
a) The Board and Ms. Petryna when acting in her capacity as a member of the Board are immune from this civil claim for damages pursuant to s. 18 of the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, R.S.O. 1998, c.18, Sched. H (the “Act”);
b) The action is a collateral attack on the decisions of the Board and is therefore frivolous or vexatious; or is otherwise an abuse of the process of the Court and should therefore be stayed or dismissed under R. 21.01(3)(d);
c) The Statement of Claim discloses no reasonable known cause of action, contains material facts to support a reasonable cause of action against the Board or Ms. Petryna and therefore should be struck against them pursuant to R. 21.01 (1)(b);
d) This action is barred by section 4 of the Limitations Act, 2002; and
e) The Plaintiff has not pled or has failed to properly plead bad faith and therefore the claim as against these defendants should be struck out without leave to amend, pursuant to Rules 25.06 and 25.11 and under s. 18 of the Act.
BACKGROUND AS TO PLAINTIFF
[3] Subject to the prohibitions as to evidence in R. 21.01(2) of the Rules of Civil Procedure, RRO 1990, Reg. 194, paragraphs 2 to 13 of this Court’s decision of the motion of the defendants Messrs. Paquette, Parise, Bradley and Ms. Meehan (the “Lawyers Decision”) are incorporated by reference and repeated herein as to such background, including the defined terms therein.
STATEMENT OF CLAIM GENERALLY
[4] Subject to the same prohibitions, paragraphs 14 to 22 of the Lawyers Decision as to Statement of Claim generally are incorporated by reference and repeated herein, including the defined terms therein.
BACKGROUND AS TO THE BOARD AND MS. PETRYNA
[5] The Board is established pursuant to s. 2 of the Act as an administrative and quasi-judicial adjudicative tribunal to conduct reviews and performs duties assigned to it under the Regulated Health Professions Act, 1991, S.O. 1991, c.l8 (the ‘’RHPA’’).
[6] The Board is composed of members appointed by the Lieutenant Governor in Council on the recommendation of the Minister of Health and Long-Term Care.
[7] At all material times, Ms. Petryna was, by order of the Lieutenant Governor, an appointed member of the Board.
[8] The Board oversees the colleges of certain Ontario self-governing health professions pursuant to health profession statutes, including medicine and dentistry.
[9] Pursuant to ss. 29(2) of the Health Professions Procedural Code, being Schedule 2 to the RHPA (the ‘’Code’’), the Board has the statutory jurisdiction to review complaint decisions of a panel of an inquiries, complaints and reports committee of a college of a regulated health profession (College Complaints “Committee” and “Decision”).
[10] In or about April 2005, the Plaintiff made a complaint to the College of Physicians and Surgeons of Ontario (the “College”) regarding Dr. Sheila Jane Milne alleging inadequate care as to her prescribing Ritalin for the Plaintiff’s child and her supervision in relation thereto.
[11] In or about November, 2006, the College Complaints Committee considered an expert opinion that Dr. Milne’s prescriptions of this drug and care of the patient were reasonable and met the appropriate standard of care. The College Complaints Committee issued a decision to take no action with respect to the Plaintiff’s complaint against Dr. Milne.
[12] The Plaintiff requested that the Board review the decision of the College Complaints Committee.
[13] On December 9, 2008, the Board of which Ms. Petryna was a member, after receiving oral and written submissions from the parties including the Plaintiff, issued a decision in which the Board determined the investigation by the College to have been adequate and its decision reasonable and therefore confirmed the decision of the College Complaints Committee to take no action with respect to the Plaintiff’s complaint against Dr. Milne.
[14] In December, 2008, the Plaintiff requested that the Board reconsider its decision dated December 9, 2008 denying his request for a review. The Plaintiff alleged that:
a) the first Board panel was biased or in a conflict of interest as Ms. Petryna as one of the Board panel resided in Sudbury and worked in a law firm,
b) the College Complaint Committee in reviewing the Plaintiff’s complaint and making its decision, relied upon the assessors report which contained errors, and
c) information as to interactions between the child and Dr. Milne should have been considered in favour of the Plaintiff.
[15] On June 4, 2009, the Board issued a decision denying the Plaintiff’s request for reconsideration as the Board was not persuaded that its earlier decision regarding the adequacy of the Committee’s investigation or the reasonableness of the College Complaint Committee’s decision to take no further action was in error.
[16] On October 3, 2013, the Plaintiff issued the Statement of Claim herein in which he seeks general and punitive damages against Ms. Petryna in the amount of $275,000.00 and general, aggravated, punitive and special damages against the Board in the amount of $15,524,489.00.
ALLEGATIONS AGAINST DR. MILNE
[17] The Plaintiff alleges that in 2005 and 2006, Dr. Milne was negligent:
a) in practicing mental health on children,
b) in her supervision and treatment of the Plaintiff’s child which was the proximate cause of the injury suffered by the child, including past and future pain.
c) in failing to act in accordance with the North American Industry Classification System (NAICS) standard of medical care owed to the Plaintiff and to his child and is vicariously liable for damages including physical injury and trauma that resulted from her negligence in prescribing Ritalin at a titration rate, her prescribing of Apoclonidine to address the child’s nightmares and difficulty sleeping and her prescribing PMS-methylphenidate, which medications caused adverse reaction and injury to the child,
d) and participated in a conspiracy in concealing and failing to disclose the accident suffered by the Plaintiff’s child.
ALLEGATIONS AGAINST THE BOARD
[18] The Plaintiff alleges that the Board:
a) together with the other Defendants, conspired with the College to “eliminate widespread opposition to the prescription of psychotropic drugs to children by unqualified mental health professionals”. (para. 98)
b) “failed to ensure that their primary duty is to serve the community”. (para. 368)
c) “failed to uphold the public’s standard of moral and deferred his values and judgment [sic] to a consensus of self-interest policy in favour of the other Defendants and their agents/servants”. (para. 369)
d) “failed to properly implement policies in accordance with the North American Industry Classification System (NAICS) putting Ontarian’s [sic] at risk of injury resulting from the medical malpractice of physicians who practice outside their NAICS”. (para. 370)
e) “disregarded recognized social and public responsibility expectation frameworks (NAICS) that were aimed at the protection of the Plaintiff and the general public from medical malpractice and injuries suffered by the Plaintiff and his child”. (para. 371)
f) the Defendants appointed/selected Brenda Petryna (a legal assistant for Sudbury law firm with conflicting interests” [sic] to the Board. The nature of the alleged conflict is not pled beyond the geographic area where Ms. Petryna lives, (para. 372)
g) “selected an unknown investigator [sic] with the College of Physicians and Surgeons” who produced an opinion that was anonymous and biased in its finding that Dr. Milne and others had acted prudently, and had the intention of eliminating “widespread opposition to the negligent prescription of psychotropic drugs to children by unqualified mental health professionals.”. (para. 373)
h) And, the other Defendants “deferred their values and judgement to a consensus of self-interest policy in favour of the other Defendants and their agents/servants” when they obtained the expert opinion in respect of the care provided to the Plaintiff’s son by Dr. Milne.
[19] None of the above allegations allege material facts to support a claim of bad faith against the Board or Ms. Petryna. The allegations do not extend beyond the Plaintiff’s disagreement with the original decision of the College and the two Board decisions.
ALLEGATIONS AGAINST MS. PETRYNA
[20] The Statement of Claim alleges that Ms. Petryna:
a) Was in a conflict of interest when she sat on the panel of the Board that adjudicated the Complaint Review. (paras. 22, 97, 98, 351-366 and 415)
b) Was employed as a legal assistant with Lacroix Forest Law Offices in Sudbury, Ontario,
c) operates in Sudbury a private business, “Petryna Advertising”, that provides: “Consulting and Strategic Planning for the Defendants and or their agents/servants”, and therefore acted in a conflict of interest in her role as a Board member in the hearing of the Complaint Review, (para. 22)
d) “shared common interest with her employer, the other Defendants and their agents/servants and or private business for professional advancement and special interest”, (para. 97)
e) Together with the Board and the other Defendants, conspired with the College to eliminate widespread opposition to the prescription of psychotropic drugs to children by unqualified mental health professionals.”, (para. 98)
f) Together with the Board, “’appointed a committee that was assisted by an ‘anonymous independent’ opinion from an expertise in paediatric psychiatry that was obtained by the College of Physician and Surgeons biased investigator” and that this appointment was a result of Ms. Petryna’s failure to recuse herself as a Board member.”, (para. 98)
g) Failed to ensure that her duties as a Board member were “performed without any conflict of interest, objectively and in a professional manner.”, (para. 353)
h) Was an employee and agent of the other Defendants “by association of persons to the other Defendants” and had interests that were distinct from those arising out of her role as a Board member, including a duty of loyalty to her employer and “to do favours for their associates the other Defendants”, (para. 354)
i) Is vicariously liable for torts committed by the other Defendants by virtue of sharing a “common/special interest” with her employer, her “private business”. Petryna Advertising, and the other Defendants and their “agents/servants”, (para. 355)
j) “engaged in the realm of political activity” by failing to recuse herself from the Complaint Review. (para. 362)
k) Ms. Petryna’s “outside employment and private business influence her independency, impartiality and decision to remain on the HPARB from a direct or indirect pecuniary interest shared with the other Defendants and their agents/servants and is vicariously liable for damages against the Plaintiff”. (para. 366)
l) breached the Conflict of Interests Act, S.C. 2006, c. 9 and the Public Service Act of Ontario Act, S.O. 2006 c.35, Schedule A, by failing to recuse herself from the Complaint Review, (paras. 356 to 361, 363 to 365)
[21] The above allegations do not allege material facts to support a claim of bad faith as against Ms. Petryna. These allegations consist of bald conclusions only and lack material facts in support thereof.
CLAIMS BARRED BY S. 4 OF LIMITATIONS ACT, 2002
[22] The moving parties argue that the appropriate limitation period in relation to the above claims is 2 years under s. 4 of the Limitations Act, 2002, S.O. 2002, C. 24 (the “Limitations Act”).
[23] The Plaintiff incorrectly submits that 15 years is the relevant limitation period.
[24] As to the claims herein, 2 years and not 15 years is the relevant limitation period for the reasons stated in paragraphs 52, 54 and 56 to 62 in the Lawyers Decision.
[25] Discoverability of these claims were December 9, 2008 and June 4, 2009, being the dates of the Board’s rejection of the Plaintiff’s appeal of the decision of the College Complaint Committee decision and the Board’s letter dismissing the Plaintiff’s request to review its earlier decision.
[26] The claims herein based on alleged acts and omissions between 2006 and 2009 were not brought within the 2 year, s. 4 statutory limitation period and are therefore barred.
IMMUNITY OF BOARD AND MS. PETRYNA FROM A PROCEEDING FOR DAMAGES
[27] No proceeding shall be commenced against the Board or a member thereof 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: the Act, s. 18.
[28] Bad faith requires a conscious or deliberate design to mislead or deceive another or a neglect or refusal to fulfil some duty that is prompted by some interested or sinister motive. Bad judgement or negligence does not constitute bad faith: Rogers v. Faught [2001] O.J. No. 850 (S.C.J.) at paras. 35, 36 and 38, aff’d 2002 19268 (ON CA), [2002] O.J. No. 1451 (C.A.).
[29] A pleading of bad faith is an allegation of intent to deceive or to make someone believe what is false. An allegation of bad faith is the equivalent of an allegation of dishonesty and proper particulars of such an allegation must be pleaded or the allegation will be struck: Faught, at para. 38.
[30] There are no material facts to support or particulars of bad faith pled in the Statement of Claim.
[31] An allegation of malice or intent must be supported by full particulars in the pleading: R. 25.06(8). No material facts or particulars of malice or intent have been pled.
[32] In the alternative, the Board is not a corporate body and cannot therefore be sued itself, unless so permitted by its enabling statute which the Act does not permit: the Act, McNamara v. North Bay Psychiatric Hospital (19941 O.J. No. 36 (C.A.) at para. 3 and Ho V. Ontario 2014 ONSC 2267, at para. 22.
[33] This action should be stayed or dismissed as against the Board and Ms. Petryna because neither defendant has the legal capacity to be sued: R. 21.01(3) (b) and the Act, s.18.
COLLATERAL ATTACK OF BOARD’S PROCESS
[34] These above allegations dispute and seek to litigate civilly the initial rejection of the Plaintiff’s complaint to the College Complaint Committee, the Board’s review of the Plaintiff’s request to the Board to review that Committee decision as well as the Board’s subsequent decision rejecting the Plaintiff’s request to reconsider the Board’s review of the Committee decision.
[35] A review hearing as to the Committee’s decision was within the jurisdiction of the Board. The Board in relation thereto had jurisdiction upon conclusion of its review to confirm all or any part of the decision of the College Complaint Committee: Board Decisions and Reasons dated December 9, 2008 and June 4, 2009, and the Act Schedule 2, Code sections 33 and 35.
[36] The hearing conducted and the decisions of the Board were made within its jurisdiction under the Code.
[37] The Court has no jurisdiction regarding the procedure and determinations made by the Board or its members acting under their statutory mandate as adjudicators: the Act, s. 18.
NO REASONALBLE CAUSE OF ACTION
[38] The Plaintiff has not pleaded or alleged material facts of bad faith nor has he properly pled bad faith against these Defendants.
[39] A Statement of Claim must contain a concise summary of the material facts on which the Plaintiff relies. A conclusion of law may not be pleaded unless the material facts supporting that conclusion are also pleaded: R. 25.06(1), (2).
[40] The Regulated Health Professions Act, 1991 S.O. 1991, c. 18 (the “RHPA”), which regulates health professionals including physicians, is a public protection statute. The RHPA does not impose a private duty of care on the Board or its members regarding a member of the public involved in a dispute with a regulated health professional: Rogers, at paras. 17‑19.
[41] The Plaintiff’s allegation, if true, that Ms. Petryna’s employment by a legal firm and her operation of a business in Sudbury are not material facts which alone or together constitute a conflict of interest or support the allegation that she breached her duty to avoid conflicts and withdraw from the Board in this matter. The Plaintiff once again has failed to plead material facts beyond these bald allegations of conflict.
[42] The Board in its reconsideration decision in which Ms. Petryna was not a member, examined this allegation of conflict as to the Board’s earlier review decision and concluded there was absolutely no information to support the Plaintiff’s allegation of bias or conflict of interest. The Board in this reconsideration decision stated the fact that a panel member is from the same city as a party, or worked in the legal profession in that city, is not sufficient to demonstrate bias in the circumstances.
[43] The Plaintiff’s claim herein directly challenges the Board’s reconsideration decision and seeks the Court to reverse that decision. That claim is an abuse of process.
[44] The Statement of Claim:
a) does not allege material facts to articulate or support a claim of malice or bad faith,
b) does not disclose any other cause of action recognized in law,
c) Pleads bald allegations that lack particulars and are not supported by material facts.
[45] In the result, the Statement of Claim does not disclose any allegations which give rise to a reasonable permitted cause of action recognized in law against these defendants and is therefore struck pursuant to R. 25.06 and R. 25.11, without leave to amend: Montgomery v. Seiden [2012] ONSC 6235, at paras. 37 and 70.
SCANDALOUS, FRIVOLOUS, VEXATIOUS AND ABUSIVE PROCEEDING
[46] For the reasons stated in the section above, the Statement of Claim as against these two defendants is frivolous, vexatious and an abuse of process pursuant to R. 25.11 and is therefore struck, without leave to amend: George v. Harris [2000] O.J. No. 1762, at para. 20 and Montgomery, at para. 39.
CONCLUSION
[47] For the above reasons, the Statement of Claim against these defendants is struck, without leave to amend as amendments will not alter this outcome. This proceeding against these defendants is dismissed.
COSTS
[48] Any party seeking costs shall within 30 days from the date hereof shall serve and file brief written submissions in support thereof. The opposing party shall serve and file any response thereto within 20 days thereafter with any reply, within 10 days thereafter.
If applicable, any Defendant seeking costs shall address the following questions:
(a) Why should a Defendant be entitled to costs for attending Court on a date after completion of their argument of their motion?
(b) Why should a Defendant be entitled to hourly rates of their counsel which exceed normal hourly rates charged by senior Sudbury counsel?
(c) Why should a Defendant be entitled to recover travel time and disbursements resulting from their selection of out of town counsel?
Kane J.
Released: July 14, 2015
COURT FILE NO.: C-2835-13
DATE: 2015/07/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
S.F.
Plaintiff
THE GREATER SUDBURY POLICE SERVICE et al
Defendants
REASONS – Health professionals Appel and Review Board and Brenda Petryna
Kane J.
Released: July 14, 2015