Court File and Parties

CITATION: Douglas v. Lewis, 2015 ONSC 4645

COURT FILE NO.: CV-10-410111

DATE: 20150717

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeffrey Douglas, Plaintiff

– AND –

Dr. Michael Lewis, Dr. Nicole Koziel, The Toronto Western Hospital, Dr. Murray, Schaila Raees, The Toronto Police Service, Police Constable Darcy Wood (badge 9142), Detective Constable Mark Weber (badge 89703), and the Functional Restoration Program, Defendants

BEFORE: Justice E.M. Morgan

APPEARANCES: Jeffrey Douglas, in person

Anna Marison, for the Defendants, University Health Network and Schaila Raees

Michael Rosenberg, for the Defendants, Dr. Michael Lewis and Dr. Nicole Koziel

Amanda Smallwood, for the Defendant, Dr. James Murray

HEARD: July 17, 2015

Endorsement

[1] This is a medical malpractice claim. The Defendants move for summary judgment under Rule 20, based on the Plaintiff’s failure to submit an expert report addressing the issues of professional negligence.

[2] On September 11, 2008, the Plaintiff was seen at Toronto Western Hospital. On that date, the Defendant, Dr. Michael Lewis, completed a Form 1 under the Mental Health Act. Section 15 of that Act permits the Plaintiff to be held for a psychiatric assessment. That assessment was ultimately made by the Defendant, Dr Nicole Koziel. Two other professionals, Schaila Raess, a cognitive behavioural therapist, and Dr. James Murray, a psychologist, were on a committee of the hospital assessing the Plaintiff.

[3] The Plaintiff issued a Statement of Claim on September 8, 2010, which alleges that the individual and institutional health providers, along with several police officers that engaged with him at the hospital, were negligent in taking these steps. The Defendants have all issued Statements of Defence. The action has been dismissed as against the police Defendants, and since November 2012 discoveries have been completed for all remaining Defendants. Since May 2013, the discovery of the Plaintiff has also been completed.

[4] In 2014, the action was administratively dismissed for delay. The Plaintiff brought a motion to reinstate the action in July 2014, which was granted by Master Short in a ruling issued on February 20, 2015. At paragraphs 73-75 of his reasons for decision, Master Short specifically mentioned that the Plaintiff would likely face a motion from the Defendants seeking dismissal of the action if he did not obtain an expert report addressing the issues of professional negligence.

[5] Prior to that, the Plaintiff had been put on notice of the requirement for an expert report by counsel on the first day of his discovery on April 12, 2013. He was at the time encouraged to seek legal advice regarding the evidentiary burden in a medical malpractice case. He was also put on notice in the responding materials filed in the Masters motion on July 2, 2014. Following Master Short’s ruling of February 20, 2015, all defense counsel wrote to the Plaintiff advising that they intended to seek summary judgment based on the lack of an expert report.

[6] The Plaintiff’s only response to all of this has been to submit a letter from his former family physician, Dr. Aaron Hotz, dated July 9, 2015. In this correspondence, Dr. Hotz states that, “I do understand he [the Plaintiff] is currently seeking an expert witness to assist in the matter. Although one is not available at the moment…” He also goes on to say that, “The impression Mr. Douglas made upon the UHN physicians and their decision to initiate a Form 1 is something I cannot comment upon.”

[7] Although Dr. Hotz is obviously sympathetic to the Plaintiff, his non-comment on the crucial issue means that his letter does not constitute the requisite expert report. The Plaintiff confirmed at the hearing before me today that he is not currently in the process of obtaining an expert report that conforms with the requirements of Rule 53. In his appearance at today’s hearing of the motion, he has not requested more time to obtain an expert report. In any case, as in Suserski v Nurse, [2006] OJ No 4836, at para 35 (SCJ), “There is no indication that if granted additional time to martial such [expert] evidence [he] will be able to do so.”

[8] Courts in Ontario have previously held that if there is no expert evidence submitted in response to a summary judgment motion of this nature, then a motions judge can infer that none is available: Richmond v Balakrishman, 2010 ONSC 588, at para 22. Unfortunately for the Plaintiff, without a supportive expert report in a medical negligence case involving issues of mental health, he has virtually no hope for success: Kurdina v Gratzer, [2009] OJ No 4626, aff’d 2010 ONCA 288, [2010] OJ No 1551 (Ont CA).

[9] In my view, this is an appropriate case for summary judgment. All of the advantages discussed by the Supreme Court of Canada in Hyrniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 – efficiency for the parties, judicial economy, etc. – are applicable here. The Plaintiff has had ample opportunity to put his best foot forward and to provide an expert report on the relevant issues of professional negligence. He has not done so and appears to have no prospect of doing so.

[10] The action is hereby dismissed.

[11] Turning to the question of costs, the three groups of Defendants have each incurred partial indemnity costs in excess of $25,000. Their counsel have indicated that they each seek $5,000 in costs today, given that the Plaintiff is self-represented and the amounts would be substantial for him.

[12] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario) (2004), 2004 CanLII 14579 (ON CA), 71 OR (3d) 291 (Ont CA), at paras 26, 37.

[13] The Plaintiff shall pay the three groups of Defendants – University Health Network and Schaila Raees, Dr. Michael Lewis and Dr. Nicole Koziel, and Dr. James Murray – costs in the amount of $5,000 each.

Morgan J.

Date: July 17, 2015