SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-530837
DATE: 20150714

B E T W E E N:

ALLEVIO HEALTHCARE INC.

Plaintiff

-and-

BRIAN KIRSH and NORMA PRIDAY

Defendants

BEFORE: F.L. Myers J.

READ: July 13, 2015

endorsement

[1] This motion was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of the defendants under subrule 2.1.01(6).

[2] According to the statement of claim, the plaintiff operates a physiotherapy business in Toronto. It pleads that it retained the defendant Kirsh, a doctor, to provide expert psychiatric assessments of patients for litigation purposes. Why a physiotherapist would be retaining expert witnesses instead of counsel doing so is not indicated. The plaintiff pleads that Dr. Kirsh provided inappropriate reports in breach of his retainer. The plaintiff therefore refused to pay for Dr Kirsh’s services. Dr. Kirsh retained the defendant Priday, a lawyer, to act for him to try to collect his accounts.

[3] The plaintiff alleges that Dr. Kirsh, Ms Priday, and others entered into a conspiracy to injure it or that they committed unlawful acts knowing that they would be likely to injure the plaintiff. The particulars of the acts in furtherance of the conspiracy are said to be the fact that on a pro bono basis, Priday brought proceedings in Small Claims Court to enforce Dr. Krish’s accounts; that she made unparticularized disparaging comments to the public about the plaintiff; that she referred to the plaintiff in court as a “criminal” solely to embarrass him; that she released the names of patients in the court proceeding in breach of the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A; that she threatened to ensure that any decision of the Small Claims Court would be published and made available to the public; that she threatened to report the plaintiff to the College of Physicians and Surgeons if it did not apologize to Dr. Kirsh; that she offered to provide useful business contacts and introductions to the plaintiff if it apologized to Dr. Kirsh; that she informed unnamed colleagues of her client’s issue and stated that the plaintiff is “dishonest;” that she attempted to intimidate the plaintiff in breach of the Rules of Professional Conduct of the Law Society of Upper Canada.

[4] The plaintiff alleges that the true motive of the defendants in the Small Claims Court proceeding was not to collect Dr. Kirsh’s accounts, but to damage the plaintiff’s reputation because they disapproved of its allegedly improper business practices. .

[5] There is obviously much wrong with the statement of claim. It does not purport to plead a claim in defamation. It rather uses bald pleadings of alleged defamation and absolutely privileged legal proceedings to try to assert a conspiracy. I suppose, on the plaintiff’s theory of the case, the defendants should counterclaim against the plaintiff and its lawyer who have agreed to bring this lawsuit to try to injure them.

[6] Having said that, Rule 2.1 is aimed at claims that are frivolous, vexatious, or an abuse of process on their face. The rule provides an abbreviated process in order to limit abuse by a party who may be inclined to respond inappropriately to regular motion proceedings. The rule is for obvious cases. Gao v WSIB, 2014 ONSC 6100 at para. 9. Here, the plaintiff will argue that it has alleged enough wrongdoing to properly state a claim. The defendants will argue that absolute privilege allows no exceptions. That is why it is said to be “absolute.” That is an argument that should be briefed and heard unless there is reason to fear that the regular hearing process may itself be subject to abuse. Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801. While the statement of claim leaves much to be desired, it discloses on its face no basis to conclude that the plaintiff is being vexatious or behaving as a querulent litigant so as to justify resort to the attenuated process of Rule 2.1.

[7] There is also no reference in the statement of claim to the outcome of the Small Claims Court action. If a judgment has been granted already, issues of issue estoppel, abuse of process and collateral attack may arise. That requires evidence.

[8] I therefore decline to direct the registrar to deliver a notice in Form 2.1A to the plaintiff. I do respectfully suggest that the plaintiff may wish to consider if a civil lawsuit is an economical and sensible manner for proceeding. The plaintiff may achieve full vindication vis-à-vis Dr. Kirsh in the Small Claims Court. If the plaintiff has ethical complaints about counsel opposite, such matters are dealt with by the Law Society and not the court.

[9] If the defendants have incurred any assessable costs in this Rule 2.1 process, then such costs are reserved to the judge hearing the defendants’ motion to dismiss or strike the claim if they choose to bring one.

________________________________ F.L. Myers J.

Date: July 14, 2015