SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-14-1405-00
DATE: 2015 07 22
RE: REECE v BRAMPTON CIVIC HOSPITAL
BEFORE: Fragomeni J.
COUNSEL:
Meghan Payne, for the Defendant
Leonard Reece, in person
HEARD: July 15, 2015
E N D O R S E M E N T
[1] The plaintiff, Leonard Reece, (“Reece”) brings a motion for the following relief:
An order to strike out the defendant’s defence.
An order requiring counsel for the defendant, Katharine Byrick and Meghan Payne to be charged for perjury under the Criminal Code.
Costs of the motion on a substantial indemnity basis.
Statement of Claim:
[2] The Statement of Claim was filed on April 2, 2014. The claim alleges the following, in part:
A breach of Article 9 of the Universal Declaration of Human Rights which states that “no one shall be subjected to arbitrary arrest, detention or exile.”
Canadian Charter of Rights and Freedoms, Section 9 which states “Everyone has the right not to be arbitrarily detained or imprisoned.”
[3] Mr. Reece sets out the following allegations, in part, in his claim:
He has two clients who are receiving treatment in the Mental Health Unit at the defendant hospital.
On March 5, 2014 at 11:40 a.m., he visited the Mental Health Unit to receive documentation from his clients. This is a secure unit.
He met with his client, Miss Kuenzig and she provided him with the documentation.
He then met with a male staff member named Harrison. As his visit with his client concluded he asked Harrison to open the door so he could leave the ward. Harrison advised Mr. Reece he could not leave until his manager gets there. Mr. Reece insisted he be allowed to leave.
The manager arrived and told him he could not leave until he had spoken to her. Mr. Reece told her that if she did not open the door he would file a lawsuit against her and the Hospital. In turn she asked him why he was being so hostile and wanting to file a lawsuit. She told him he was free to leave.
[4] The Hospital filed a Notice of Intent to Defend dated April 21, 2014. By letter dated May 1, 2014, addressed via courier and regular mail, the Hospital delivered its Statement of Defence.
Statement of Defence:
[5] The defence sets out the following, in part:
The plaintiff expressed concern with regards to his experience in visiting a patient on the unit. These concerns were investigated and follow-up communication was sent to the plaintiff.
The Hospital denies that it discriminated against the plaintiff on the basis of race or on the basis of any other enumerated ground in the Ontario Human Rights Code.
[6] The plaintiff noted the defendant in default on April 23, 2014.
[7] On June 13, 2014 Justice Trimble made the following order:
The plaintiff’s motion for default judgment is dismissed.
The noting in default is set aside.
The following timetable is instituted:
Affidavit of Documents to be exchanged by July 31, 2014;
Discoveries to be completed by September 30, 2014;
Undertakings to be answered by November 28, 2014; and
The action is to be set down by November 28, 2014.
[8] The Examination for Discovery of Doreen Caron-Turcic, on behalf of the Hospital, was conducted on September 19, 2014. The Examination for Discovery of Mr. Reece took place on September 19, 2014 as well.
[9] By letter dated November 27, 2014, delivered via registered mail, the Hospital’s counsel, Meghan Payne enclosed the Hospital’s answers to undertakings, under advisement and position on refusals.
[10] On December 3, 2014 Ms. Payne delivered, via registered mail, a letter stating in part:
…we provided the Hospital’s answers to undertakings via registered mail on November 27, 2014. We sent the documents via registered mail as you have previously advised that you will not accept materials that are couriered to you. It is our position that we delivered the Hospital’s answers to undertakings in accordance with the endorsement of Justice Trimble.
[11] Ms. Payne also advised Mr. Reece in the December 3, 2014 letter that the interviews of the hospital staff occurred on the following dates:
Michael Johnston – October 7, 2014
Gregory Browne – October 21, 2014
Wendy Agugo – July 7, 2014 and October 21, 2014
Chantel Keshwah – October 7, 2014
Harrison Mungal – May 12, 2014 and October 21, 2014
[12] On December 4, 2014 Ms. Payne sent a letter to Mr. Reece, delivered via registered mail, setting out a detailed chart of the undertakings not yet answered by Mr. Reece.
[13] On December 8, 2014 Mr. Reece forwarded a letter, by regular mail to Ms. Payne and Ms. Byrick setting out his position that the Hospital’s undertakings have not all been answered.
[14] At this motion before me neither Mr. Reece nor the Hospital have filed motions relating to undertakings or refusals. As indicated at the outset Mr. Reece’s motion is to strike out the Statement of Defence of the Hospital.
[15] Mr. Reece sets out the following grounds to support his position:
Failure to comply with the timetable set out by Justice Trimble;
Perjury by the Hospital’s counsel. Mr. Reece submits that at the September 19, 2014 Discovery counsel for the Hospital stated that hospital staff had been interviewed. However, in response to an undertaking the dates of the staff interviews were after the Discovery date of September 19, 2014;
Failure to provide documents. This issue relates to the video surveillance tapes from the nurse’s station not being included in the Hospital’s Affidavit of Documents. The Hospital’s counsel confirmed with Mr. Reece that there are no videos available;
Interference with the process. In this regard Mr. Reece submits that Ms. Byrick continuously interrupted the deposition of Doreen Caron-Turcic;
Failure to answer undertakings.
Analysis
[16] The Hospital’s Notice of Intent to Defend was sent to Mr. Reece on April 21, 2014 by John Morris. In his April 21, 2014 letter to Mr. Reece, sent by courier and by ordinary mail, Mr. Morris states, in part:
We have only been retained recently in this matter. As investigations are ongoing I ask your indulgence for a reasonable period of time to allow me to investigate this matter and prepare a Statement of Defence. I would ask that you notify me in writing ten days before taking any default proceedings. If this is not satisfactory, kindly let me know forthwith.
[17] The Statement of Defence was sent to Mr. Reece on May 1, 2014. However, both the Notice of Intent to Defend and Statement of Defence could not be filed as Mr. Reece had noted the Hospital in default on April 23, 2014. That was the first notice of Mr. Reece’s intention to have the Hospital noted in default. The request made by Mr. Morris for ten days’ notice before taking any default proceedings was ignored by Mr. Reece.
[18] This of course necessitated the motion brought before Justice Trimble.
[19] I find that Mr. Reece should have contacted Mr. Morris and advised him of his intentions and given Mr. Morris some reasonable time to serve and file a Statement of Defence before noting the Hospital in default.
[20] With respect to the Affidavit of Documents the Hospital sent Mr. Reece its draft Affidavit of Documents by overnight courier on July 28, 2014. By letter dated July 28, 2014 Ms. Payne advises:
…please find enclosed a draft Affidavit of Documents on behalf of our client…A sworn affidavit will be provided to you at the Hospital’s Examination for Discovery.
Should you require copies of any of the Schedule “A” productions, please do not hesitate to let us know.
[21] This was delivered to Mr. Reece on July 29, 2014. It was sent by courier.
[22] In his August 13, 2014 letter Mr. Reece requests a copy of the surveillance tape from the front entrance and the nurse’s station for March 5, 2014 at 11:30 a.m.
[23] By letter dated August 18, 2014 Ms. Payne advises Mr. Reece that there is no video surveillance available.
[24] In her letter dated September 5, 2014 Ms. Payne advises Mr. Reece that recordings are only available for 20 to 30 days, unless a request is made to preserve the footage. Such a request was not made.
[25] The Hospital’s undertakings were sent to Mr. Reece via registered mail on November 27, 2014.
[26] Mr. Reece complains that the period from September 19, 2014 to November 27, 2014 is too long a time to provide answers to the undertakings. I do not agree. I cannot conclude that a period of two and a half months is unreasonable to comply with the undertakings given.
[27] With respect to the issue of undertakings it is important to note that there is a serious issue as to whether Mr. Reece has fully complied with the undertakings he gave at his Discoveries. That motion is not before me at this time, but I do note by letter dated December 4, 2014 Ms. Payne wrote to Mr. Reece advising him that several of his undertakings remained outstanding and that he provide answers to the refusals.
[28] With respect to Mr. Reece’s concerns regarding the timing of the staff interviews, the Hospital advised Mr. Reece at the time of the Examination for Discovery that staff had been interviewed, however, he was also advised that they did not have statements. There is no doubt and Mr. Reece is correct on this point, that not all of the staff members were interviewed before the discoveries and two staff members were interviewed prior to the discoveries.
[29] Mr. Reece complains that in her December 3, 2014 letter to him Ms. Payne only sent information with respect to five staff members when she said six had been interviewed. The reason for this is that the sixth staff member, Doreen Caron-Turcic had already been examined by Mr. Reece on September 19, 2014 at her Examination for Discovery.
[30] Mr. Reece asserts that Ms. Byrick interfered with the discovery process and interrupted his examination of Doreen Caron-Turcic. The reference he makes to support this is set out at Tab H of his Motion Record. At the examination Ms. Byrick makes it clear to Mr. Reece that Ms. Caron-Turcic is the representative best able to respond to questions on behalf of the Hospital due to her role with respect to the Mental Health Program, her personal involvement in these events and that she has taken steps to educate herself in these events. And where she could not answer a question she was prepared to give undertakings.
[31] Mr. Reece points to the following exchange to support his position that counsel interfered with the examination:
Page 42
Mr. Reece: Actually, you’re confusing the witness.
Ms. Byrick: Okay. I don’t mean to do that.
Mr. Reece: I do not understand why you would be doing this.
Ms. Byrick: Neither do I. That’s certainly not my intention Mr. Reece. I’m trying to assist and certainly if you would like to ask the witness your question again that’s more than appropriate.
Page 47
There is an exchange with respect to clarification of a question.
Page 52
There is a dispute regarding the characterization of earlier evidence.
Page 53
Mr. Reece asks Ms. Byrick not to interrupt. Ms. Byrick advises it is not her goal to do that.
Issue #1: Mr. Reece’s request for an Order requiring counsel for the Defendant, Katharine Byrick and Meghan Payne to be charged with perjury under the Criminal Code.
[32] This Court has no jurisdiction or authority to make such an order.
Issue #2: That the Hospital’s Statement of Defence be struck.
[33] This motion cannot succeed. The concerns raised by Mr. Reece do not support such a drastic remedy. The evidentiary record before me does not support Mr. Reece’s position.
[34] I cannot find and conclude that the timetable of Justice Trimble was not complied with. Even if I am wrong in that finding, at its highest the compliance may have been outside the timelines by days only. Mr. Reece has pointed to no prejudice to him in the circumstances.
[35] With respect to the undertakings issue, again the evidentiary record does not support Mr. Reece’s position. Further, Mr. Reece has not filed an Undertakings Motion so that the Court can determine the undertakings issue. If undertakings are not complied with a party is usually given a time period within which to comply, failing which motions to strike pleadings can be considered. To make an order striking a Statement of Defence without a clear finding in that regard is not reasonable nor is it appropriate.
[36] A further consideration on this issue is that there is a serious allegation that Mr. Reece has not complied with his undertakings.
[37] With respect to Mr. Reece’s position that counsel interfered with the Examination for Discovery process I am not prepared to find and conclude that the evidence supports Mr. Reece’s position in that regard.
[38] In summary, then, Mr. Reece has alleged that the Statement of Defence ought to be struck for the following main reasons:
The failure of the Hospital to comply with timelines;
The conduct of counsel; and
The failure to comply with undertakings.
[39] The plaintiff’s motion is dismissed. The evidentiary record before me does not support the order being requested.
[40] The parties shall file written submissions on costs within 20 days (three pages in length).
FRAGOMENI J.
DATE: July 22, 2015
COURT FILE NO.: CV-14-1405-00
DATE: 2015 07 22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: REECE v BRAMPTON CIVIC HOSPITAL
BEFORE: Fragomeni J.
COUNSEL: Meghan Payne, for the Defendant
Leonard Reece, in person
ENDORSEMENT
FRAGOMENI J.
DATE: July 22, 2015