COURT FILE NO.: C-2835-13

DATE: 2015/07/14

ONTARIO
SUPERIOR COURT OF JUSTICE

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

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, FRANK ELSNER, 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, and PATRICIA L. MEEHAN, 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

David P. Jacobs and Steven G. Bosnick, for the defendants, Brenda Petryna, and Health Professions Appeal and Review Board, and

ms. Bisaillon and GREG BERGERON, unrepresented defendants

HEARD: August 15, 2014 (at Sudbury)

REASONS on dr. milne’s motion

kane j.

[1] Dr. Milne by motion seeks:

(a) An Order striking out the Statement of Claim as against Dr. Milne without leave to amend, under Rule 21.01 (1 )(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as am., on the grounds that it discloses no reasonable cause of action;

(b) In the alternative, an Order striking out the Statement of Claim against Dr. Milne as the claims are statute-barred by the expiry of the two-year limitation period in section 4 of the Limitations Act, 2002, S.O. p 2002, c. 24, Sch. B;

(c) In the further alternative, an Order under Rule 21.01(3)(d) dismissing the action as against Dr. Milne on the ground that it is frivolous, vexatious or an abuse of the process of the court;

POSITION OF THE MOVING PARTY

[2] The claim against Dr. Milne allege she was negligent in her care as a physician of the Plaintiff’s child, that she negligently prescribed Ritalin to that child, negligently supervised treatment of that child, negligently recorded information from the Plaintiff’s former partner and conspired to conceal from the Plaintiff an accident experienced by the child.

[3] Dr. Milne submits that the allegations and claims against her:

(a) disclose no reasonable cause of action, are untenable at law and it is obvious that they cannot succeed;

(b) are statute barred pursuant to the Limitations Act, 2002, as the allegations:

(i) relate to events that occurred in 2005 and 2006;

(ii) the Plaintiff filed a complaint against Dr. Milne regarding her care and treatment as a physician of the child with the Complaints Committee of the College of Physicians and Surgeons in April 2006 which was unsuccessful;

(iii) the Plaintiff filed an affidavit alleging negligence against Dr. Milne in March, 2008;

(iv) the Health Professions Appeal and Review Board by decision dated December 9, 2008, reviewed and confirmed the decision of the Complaints Committee of the College of Physicians and Surgeons;

(v) the Health Professions Appeal and Review Board in its decision dated June 4, 2009, denied the plaintiff’s request for reconsideration of the Board’s above review decision; and

(vi) the Plaintiff did not commence this proceeding until October 3, 2013, well after the expiration of the 2 year limitation period.

(c) are frivolous, vexatious or an abuse of the process of the court.

BACKGROUND AS TO PLAINTIFF’S CLAIM

[4] 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

[5] 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.

ALLEGATIONS AGAINST DR. MILNE

[6] Appendix A to this decision is a summary of the allegations in the Statement of Claim against Dr. Milne prepared by defence counsel.

[7] Appendix A includes counsel’s interpretation as to the possible causes of action based on the allegations in the claim. The court agrees with this interpretation of the allegations as to possible causes of action, namely:

(a) Negligence, and

(b) Conspiracy.

[8] The court agrees that several of the allegations against this physician and others in Appendix A do not relate to a legally recognized cause of action.

R. 21.01(1)(b) NO REASONABLE CAUSE OF ACTION

[9] The court may strike a pleading which discloses no reasonable cause of action as the alleged “wrong”, if not recognized in law as actionable, prevents the court from granting a remedy even if the Plaintiff proved the facts alleged: Rule 21.01(1)(b) and Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.) at paras. 8 and 10.

[10] The issue on a R. 21.01(1)(b) motion requires the assumption that the facts alleged can be proved and on that basis, is whether it is “plain and obvious” that the Statement of Claim discloses no reasonable cause of action: Dawson, at para. 9 and Hunt v. Carey, 1990 90 (SCC), [1990] 2 S.C.R. 959 at para. 33.

[11] In interpreting R. 21.01, courts have determined the following principles:

(a) Assuming that the facts in the statement of claim can be proved, is it “plain and obvious” or “beyond a reasonable doubt” that the plaintiffs statement of claim discloses no reasonable cause of action?

(b) If there is a chance that the plaintiff might succeed, the claim should not be dismissed as disclosing no reasonable cause of action.

(c) Neither the length and complexity of the issues, the novelty of the cause of action, or the potential for the defendant to present a strong defence are grounds should prevent the plaintiff proceeding with his claim.

(d) Only if the action is certain to fail because it contains a radical defect ranking with those listed in R. 21.01 should the relevant portions of a plaintiff’s statement of claim be struck out: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 1990 90 (S.C.C.) at p. 336.

[12] The Statement of Claim will be legally insufficient if:

(a) the alleged facts do not give rise to a recognized cause of action; or

(b) the necessary legal elements of a recognized cause of action have not been plead: A. A. v. John, 2009 40557 (ONSC) at para 10.

[13] It is insufficient to allege conclusions of law without pleading the factual underpinning or material facts in relation to that conclusion of law: A. A., at para. 38.

[14] The test under R. 21.01(1)(b) is whether the Plaintiff’s allegations state a legally sufficient or substantively adequate claim. Where it is plain and obvious that the alleged facts fail to disclose such a claim, it should be struck: Aristocratic Restaurants Ltd. v. Ontario, 2003 CarswellOnt 5574, at paras. 16‑17 (Ont. S.C.J.).

[15] Failure to disclose a reasonable cause of action can occur if the basic elements of a recognized cause of action have not been pled or the allegations pled do not give rise to a recognized cause of action. Vague allegations that make it impossible for an opposing party to reply should be struck: Aristocratic, paras.18‑19.

[16] On a motion to strike for failing to disclose a reasonable cause of action, allegations in the nature of assumptions and speculations are not to be taken as true: Fitzpatrick v. Durham Regional Police Services Board (2005), 76 O.R. (3d) 290, 2005 63808, para. 11. (Ont. S.C.J.).

[17] Where the alleged facts in a claim clearly fail to disclose a reasonable cause of action, such claim should be struck: Aristocratic, at paras. 16‑17.

[18] The failure to properly establish a cause of action will occur if:

(a) The allegations do not give rise to a recognized cause of action, or

(b) The allegations in the claim fail to plead the necessary legal elements of a recognized cause of action: Aristocrat, at para. 18.

R. 25.06 – Absence of Material Facts

[19] R. 25.06 (1) and (2) requires that the claim must contain a statement of the material facts relied upon in support of the claim. Conclusions or points of law may only be pleaded if the material facts supporting that legal point are pleaded.

Rules 21.01 (3) And 25.11 – Frivolous, Vexatious Proceedings or Abuse of Process

[20] The court has jurisdiction to:

(a) Determine a question of law which may dispose of or shorten the proceeding or to strike a pleading which discloses no reasonable cause of action under R. 21.01 (1); and

(b) To strike all or part of a pleading, with or without leave to amend, which is frivolous, vexatious or is otherwise an abuse of the process under R. 21.01(3) and R. 25.11.

[21] A plaintiff:

(a) Alleging intentional or malicious conduct, must plead circumstances and full particulars sufficient to infer intentional or malicious conduct. Bald pleadings thereof are insufficient;

(b) May not commence a proceeding in an attempt to disclose facts to support allegations; and

(c) Presentation of a claim with a complete absence of material facts risks having that pleading struck as being scandalous, particularly claims alleging intentional or malicious conduct: Dyce v. Lyons-Batstone, 2012 CarswellOnt 568, at paras. 38 and 40.

[22] A pleading totally lacking of material facts is frivolous and vexatious and should be struck as scandalous, particularly where allegations are made, as here, of intentional or malicious conduct: Dyce, at para. 40.

[23] A plaintiff must plead circumstances and full particulars sufficient to enable a trier of fact to properly infer intentional or malicious conduct when allegations of intentional or malicious conduct are made. Bald allegations are not sufficient: Dyce, at para. 38.

[24] In interpreting R. 21.01, courts have determined the following principles:

(a) Assuming that the facts in the statement of claim can be proved, is it “plain and obvious” or “beyond a reasonable doubt” that the plaintiffs statement of claim discloses no reasonable cause of action?

(b) If there is a chance that the plaintiff might succeed, the claim should not be dismissed as disclosing no reasonable cause of action.

(c) Neither the length and complexity of the issues, the novelty of the cause of action, or the potential for the defendant to present a strong defence are grounds should prevent the plaintiff proceeding with his claim.

(d) Only if the action is certain to fail because it contains a radical defect ranking with those listed in R. 21.01 should the relevant portions of a plaintiff’s statement of claim be struck out: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 1990 90 (S.C.C.) at p. 336.

NEGLIGENCE AND DUTY OF CARE

[25] The alleged negligent medical treatment of the child includes diagnosing the child with ADHD in 2005 and prescribing Ritalin in 2005 and 2006, in excessive amounts and contrary to the wishes of the child and the Plaintiff.

[26] The allegations are that the medical treatment of the child, including the prescription of medication, caused the child to sustain an accident in July, 2006.

[27] As to a duty owed by Dr. Milne, the Plaintiff alleges that Dr. Milne and others conspired to conceal the accident suffered by the child “which was the proximate result of the Defendants (sic) breach of duty and service standard expected by the public.”: paras. 285, 318 and 320.

[28] The Plaintiff does not plead:

(a) that any duty of care existed between himself and Dr. Milne; nor

(b) that Dr. Milne owed a duty of care to the Plaintiff.

[29] The medical care provided in the present case was for and to the child, who at the relevant time was not in the custody of the Plaintiff pursuant to orders in child protection proceedings against the Plaintiff.

[30] Accepting the limited pleadings as to a duty owed in this case, the issues are:

(a) whether the circumstances disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care owed by Dr. Milne to the Plaintiff;

(b) whether analogous categories of cases in which proximity has previously been identified; and

(c) if there are no analogous categories of previously identified cases of proximity, whether a new duty of care should be recognized in the circumstances: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at paras. 31 and 36.

[31] No therapeutic relationship is pled between the Plaintiff and Dr. Milne as to the medical care provided from which a duty of care would result.

[32] A duty of care on the facts pled was not foreseeable or proximate given the absence of relationship between the Plaintiff and this defendant. This is relevant as to whether a new duty of care should be recognized.

[33] The damages claimed by the Plaintiff in addition are not reasonably foreseeable or causally connected to the alleged negligent acts.

[34] On the facts in this case, no new duty of care to the Plaintiff should be recognized.

[35] Having determined that Dr. Milne owed no duty of care to the Plaintiff, the claims in negligence against Dr. Milne are struck as disclosing no reasonable cause of action, without leave to amend which would be inappropriate: Delorme v. South National River Conservation Authority (1998), 18 C.P.C. (4th) 55 (Ont. Gen. Div.).

CONSPIRACY

[36] The conspiracies alleged are that Dr. Milne conspired with the defendants J.J. Paquette, Patricia Meehan and Melissa Verhagen:

(a) to conceal the accident suffered by the Plaintiff’s child on July 4, 2006;

(b) to incorrectly diagnose the Plaintiff’s child as having ADHD and to be of average intelligence.

[37] There are two types of civil conspiracy:

(a) unlawful conspiracy; in which the defendant’s conduct directed at the plaintiff is unlawful and is known by the defendant in the circumstances to likely cause injury to the plaintiff; and

(b) conspiracy to injure; in which the predominant purpose of the defendants’ conduct is to injure the Plaintiff by conduct which may be lawful or unlawful: Ontario Consumers Home Services Inc. v. EnerCare Inc., 2014 ONSC 4154, para. 19.

[38] To allege civil conspiracy, it is insufficient as in this claim to simply “lump some or all of the defendants together into a general allegation that they conspired”: Ontario Consumers Home Services, para.26.

[39] To allege civil conspiracy, the Plaintiff must plead material facts as to each essential element of the tort with precision and clarity, namely that:

(a) the defendants involved in the conspiracy acted together by agreement or design;

(b) each defendant’s conduct must be unlawful or lawful and performed in furtherance of the conspiracy, the primary purpose of which was to harm the plaintiff, as opposed to the collateral result of acts motivated by self-interest;

(c) the actions of the defendants must be directed towards the Plaintiff;

(d) the specific overt acts done by each conspiring defendant including time, place and nature of the acts;

(e) the defendants should have known that injury to the Plaintiff would likely result. The defendant’s primary intent to injure the Plaintiff governs, not the consequences the defendant realized or should have realized would result; and

(f) each defendant’s conduct caused specified injury to the Plaintiff including the specific nature thereof: Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, 106 O.R. (3d) 661, at para. 39 and Ontario Consumers Home Services, para. 21‑24.

[40] If the Plaintiff does not at the time of the pleading of conspiracy, have knowledge of the facts necessary to support the cause of action, it is inappropriate to make the allegation in the statement of claim: Balanyk v. University of Toronto, 1999 14918 (ONSC).

[41] As to the above requirements, this Statement of Claim does not contain allegations of material facts:

(a) to support the allegation of an agreement;

(b) as to the time, place or mode of agreement amongst the conspirators;

(c) as to what was the predominant purpose of the alleged conspiracy was to injure the Plaintiff;

(d) identifying the overt act of each of the defendants in furtherance of the conspiracy; and

(e) that the alleged conspiracy caused the Plaintiff to suffer damages as distinct from those caused by the other claims alleged.

[42] The Plaintiff has not pleaded the material facts necessary to support a cause of action of civil conspiracy.

[43] The Plaintiff’s claim in conspiracy is accordingly struck, without leave to amend.

Abuse of Public Office or Power

[44] The constituent elements of this tort include the requirement that the Plaintiff prove that:

(a) The defendant is a public officer;

(b) Who exercised that public office in the actions complained?

(c) Such actions were an wrongful exercise of that officer’s power of office;

(d) Which actions caused the harm to the plaintiff: Aristocrat at para. 47.

[45] The Plaintiff’s allegations as to this tort are again limited to bald statements using the name of the tort but are unsupported by any allegations of material facts in support thereof.

[46] The claim against Dr. Milne does not allege that she held any public office.

[47] There are no allegations that Dr. Milne used a power of public office, nor that a power of public office was used intentionally by her to harm the Plaintiff.

[48] There is no reasonable cause of action for this tort. This cause of action against Dr. Milne will not be successful.

[49] This claim is an abuse of process.

[50] This claim accordingly is struck.

Defamation of Character

[51] The tort of defamation requires the Plaintiff to prove that Dr. Milne made a statement:

(a) Which by its plain meaning or by innuendo, is defamatory;

(b) That statement refers to the Plaintiff; and

(c) Such statement was communicated or published to a third party: Khan v. Canada (Attorney General), 2009 7090 (ONSC), para. 26.

[52] In a defamation action, the Plaintiff must plead precisely the content of the defamatory communication, what specifically was communicated, when, by whom and to whom: Khan, at para. 25.

[53] This statement of claim fails to identify:

(a) The specifics of the defamatory communication;

(b) Which defendant communicated the defamatory communication;

(c) When, by what means was it communicated and to whom; and

(d) The nature and extent of damages suffered by the Plaintiff.

[54] Dr. Milne’s ability to defend this claim is impaired by the inadequate pleading of this cause of action.

[55] The cause of action against Dr. Milne is:

(a) abusive pursuant to R. 21.01(3)(d); and

(b) discloses no reasonable cause of action under R. 21.01(1)(b).

[56] This claim in defamation is accordingly struck.

Breach of Charter Rights

[57] The Plaintiff lacks legal standing to claim damages for breach of the child’s Charter rights.

[58] The Plaintiff may not sue a private person for beach of Charter rights as the Charter applies to the rights of Canadians in dealings with government: Pelletier v. Collins, 2012 SKQB 318 , (Sask. Q.B.) para. 26.

[59] There is no cause of action under the Charter against Dr. Milne. This claim is dismissed or the allegations are struck pursuant to R. 21.01(1)(a) and (b) respectively.

Other Causes of Action

[60] Negligent investigation, tortious interference of the Plaintiff, intentional infliction of alienation of affections, parental alienation, court abuse syndrome and emotional distress are not legal causes of action.

LIMITATIONS ACT, 2002

[61] Section 4 of the Limitations Act, 2002 provides that an action must be commenced within two years from the day on which the claim was discovered: Limitations Act, 2002, S.O. 2002, c. 24, Sched B, s. 4.

[62] The court may decide a limitation period issue under Rule 21.01 regardless of a discoverability test if the determination does not depend on disputed facts: Charlton v. Beamish (2004), 2004 35934 (ON SC), 73 O.R. (3d) 119, (S.C.J.) at paras. 18 and 48.

[63] The relevant provisions of the Limitations Act are the following:

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Ultimate limitation periods

15. (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.

General

(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.

24. (1) In this section, “former limitation period" means the limitation period that applied in respect of the claim before January 1, 2004.

Application

(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

Former limitation period expired

(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim. (emphasis added)

(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply:

1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.

2. If the claim was discovered before January 1, 2004, the former limitation period applies.

[64] Pursuant to the transitional provision in s. 24 (5), tort claims which arose before January 1, 2004 are subject to a 6‑year limitation period which would have expired no later than December 31, 2009. Otherwise, the claims herein are subject to the general 2‑year limitation period from the date of the event occurrence.

[65] Under the Limitations Act, the Plaintiff has the evidentiary burden to prove the claim was issued within the limitation period: Findlay v. Holmes, 1998 5488 (ONCA), at para. 25; McSween v. Louis, 2000 5744 (ONCA), (ONCA) at para. 37 and Liu, para. 10.

[66] Limitation periods of general application will apply to claims made under s. 24(1) of the Charter brought by an individual for a personal remedy. Limitations periods are applicable to Charter claims brought for remedies by individuals: Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3, and Alexis v. Toronto Police Service Board, 2009 ONCA 847, 100 O.R. (3d) 232, paras. 18 and 22.

[67] Section 15 of the Limitation Act creates a maximum limitation period of 15 years regardless of when the claim was discovered. Section 15 does not however lengthen the specified limitation periods in the Limitations Act such as the s. 4 two year limitation period.

[68] The Plaintiff was well aware by July, 2009 of the allegations of negligent medical treatment by this physician alleged in this claim and did not commence this proceeding until some four years later.

[69] The Plaintiff was a party to and directly participating in the CPPs, the pertinent orders of which commence in 2004 and extend to January 2009. Discoverability was the date of those orders all of which are more than two years prior to this claim.

[70] The decisions of the Complaints Committee of the College of Physicians and Surgeons in April, 2006 and the Health Professions Appeal and Review Board dated December 9, 2008 and June 4, 2009, included allegations of improper medical treatment by Dr. Milne, misdiagnosis and prescribing inappropriate medication.

[71] This claim against Dr. Milne is barred by s. 4 of the Limitations Act and is therefore dismissed.

COSTS

[72] Any party seeking costs shall within 30 days from the date hereof 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.

[73] 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

APPENDIX A TO FACTUM OF DR. SHEILA MILNE, DEFENDANT

F. v. Greater Sudbury Police Service et al

Court File No. C-2835-13

Amended Allegations Re: Sheila Milne

(Full appendix text preserved exactly as provided in the source HTML.)

COURT FILE NO.: C-2835-13

DATE: 2015/07/14

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

S.F.

Plaintiff

-and-

The Greater Sudbury Police Service, et al

Defendants

REASONS – DR. MILNE’S MOTION

Kane J.

Released: July 14, 2015