COURT FILE AND PARTIES

COURT FILE NO.: CV-14-13849

DATE: 20150828

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES IAN STUART

Plaintiff

– and –

THE UNIVERSITY OF WESTERN ONTARIO

Defendant

Michael Miller & Ted Kalnins, for the Plaintiff

Sarah L. Jones, for the Defendant

HEARD: February 6, 2015

M. D. FAIETA, j

REASONS FOR DECISION

INTRODUCTION

[1] The plaintiff, James Ian Stuart, brings this action for damages arising from the alleged failure of the defendant, The University of Western Ontario, to provide him with satisfactory post-graduate training in medical microbiology and, as a result, he failed to pass the qualifying examination administered by the Royal College of Physicians and Surgeons.

[2] Stuart alleges that he obtained a Medical Doctorate from Western’s Schulich School of Medicine and Dentistry in 2007. Subsequently, Stuart sought to become licenced as a specialist in medical microbiology by the Royal College of Physicians and Surgeons. In order to become licensed to practice medicine as a medical microbiologist, he had to complete five years of post-graduate residency in an accredited university program and pass an examination administered by the Royal College of Physicians and Surgeons. To that end the plaintiff was admitted into the defendant’s Medical Microbiology residency program.

[3] Stuart alleges that Western failed to properly teach, evaluate, mentor and support him in this residency program. The particulars of Western’s alleged negligence and/or breach of contract are described at paragraph 37 of the Claim as follows:

(a) Western failed to assign a mentor and/or failed to ensure adequate mentoring for Dr. Stuart;

(b) Western failed to employ and/or dedicate a sufficient number of qualified teaching staff to supervise residents and provide teaching;

(c) Western failed to address Dr. Stuart's concerns regarding his training and mentoring in a prompt and fair manner;

(d) Western failed to conduct ongoing oral and written assessments and/or examinations of Dr. Stuart's abilities and knowledge;

(e) Western failed to ensure and provide regular feedback on Dr. Stuart's performance to facilitate learning and address areas that need improvement;

(f) Western failed to supply adequate laboratory facilities and volume and variety of material to ensure full training in microbiological techniques, the reporting of test results, infection control and consultations;

(g) Western failed to provide Dr. Stuart with the necessary range of experience in order to provide full training in the microbiology of acute and chronic cases in neonatal, pediatric and adult patients;

(h) Western failed to provide Dr. Stuart with sufficient community learning experiences with appropriate supervision and evaluation based on rotation specific objectives;

(i) Western deceived Dr. Stuart by accepting him into the Medical Microbiology Residency Program when it knew or ought to have known that the training required by Dr. Stuart to become certified as a specialist by the Royal College could not be fulfilled by Western;

(j) Western failed to design a Medical Microbiology Residency Program that would enable Dr. Stuart to obtain Royal College accreditation;

(k) Western failed to provide a positive and non-hostile work environment to support the training and advancement of Dr. Stuart;

(l) Western failed to assist Dr. Stuart with securing remedial microbiology training at other institutions after it became apparent that insufficient resources were available at Western; and

(m) Western failed to properly train Dr. Stuart which failure was in breach of its professional, regulatory and legal duties to Dr. Stuart.

[4] Stuart claims general and special damages in the amount of $10 million, damages for mental suffering in the amount of $500,000.00, and aggravated and/or punitive damages in the amount of $500,000.00.

[5] Western submits the Claim should be dismissed under:

(a) Rule 21.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the basis that it was commenced after the expiry of the applicable limitation period;

(b) Rule 21.01(1)(b) because the Claim fails to plead that Western’s actions go beyond the deference afforded to universities for their “academic” decisions; and,

(c) Rule 21.01(1)(b) and Rule 25.11 because insufficient material facts are pleaded to support the causes of action asserted in the Claim.

[6] For the reasons that follow, I have decided:

(a) it is not “plain and obvious” that this Claim was commenced after the expiry of the applicable limitation period;

(b) it is not “plain and obvious” that the deference afforded to Western for its “academic decisions” is a complete bar to this Claim; and,

(c) the Claim should be dismissed with leave to permit Stuart to amend Claim to plead material facts to support the causes of action.

ANALYSIS

[7] The following principles, taken largely from the Ontario Court of Appeal’s decision in MacCreight v. Canada, 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39, apply on a motion to strike a claim under Rule 21:

• In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping amendment dimension underlies Rule 21;

• If the cause of action pleaded has been recognized, all of its essential elements must be pleaded;

• If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed;

• The claim should not be struck merely because it is novel or complex, nor because the defendant presents a potentially strong defence to the claim;[^1]

• The facts pleaded are accepted as being true for the purposes of the motion unless they are manifestly incapable of being proven, patently ridiculous or bald conclusory statements;[^2]

• No evidence is admissible on such a motion, however a judge may consider any document incorporated by reference into the pleading and that forms an integral part of the factual matrix of the statement of claim;

• The pleading must be reading generously in favour of the plaintiff, with allowances for drafting deficiencies;

• A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose and different rules relating to evidence;

• If a claim has a chance of success, it should be determined with the benefit of a full factual record. Only when an action is certain to fail because it contains a radical defect should the claim be struck. Accordingly, the moving party has a high threshold on a motion to strike under Rule 21;[^3]

• If a claim is found to have no reasonable chance of success, then it should not be struck without leave to amend except in the clearest of cases, for instance when the deficiencies in the pleading cannot be cured amendment.[^4]

ISSUE #1: SHOULD THE CLAIM BE STRUCK BECAUSE IT WAS COMMENCED AFTER THE LIMITATION PERIOD EXPIRED?

[8] Western asks that the Claim be struck under Rule 21.01(1)(a) on the ground that it was commenced after the applicable limitation period expired.

[9] This Claim was issued on October 8, 2014. The defendant relies on paragraph 27 of the Claim which states that “[i]n May 2012, Dr. Stuart attempted the Royal College examinations for the first time and was unsuccessful”. As a result, the defendant submits that the cause of action arose in May 2012 and therefore the two-year limitation period under the Limitations Act, 2002, expired in May 2014.

[10] The plaintiff submits his failure to pass the Royal College’s examinations in May 2012 does not automatically establish that the defendant was in breach of contract or liable in tort given that the Claim alleges that the defendant had thereafter committed to provide greater assistance in teaching the plaintiff.

[11] The Ontario Court of Appeal has repeatedly stated that a Court should be reluctant to dismiss an action based on the alleged expiry of a limitation period when a Statement of Defence has not yet been delivered.

[12] In Beardsley v. Ontario[^5] the Ontario Court of Appeal stated:

The motion to strike based on the expiry of a limitation period could only be made pursuant to rule 21.01(1)(a), which provides that a party may move for a question of law “raised by a pleading”. The expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded. Although we agree that it would be unduly technical to require a delivery of a statement of defence in circumstances where it is plain and obvious from a review of a statement of claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, a plain reading of the rule requires that the limitation period be pleaded in all other cases. Plaintiffs would be deprived of the opportunity to place a complete factual context before the court if limitation defences were determined, on a routine basis, without being pleaded. Adherence to rules that ensure procedural fairness is an integral component of an appearance of justice.[^6] [Emphasis added]

[13] In Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc.[^7] the Ontario Court of Appeal reviewed the two cases noted above and concluded:

The rules call for a limitation defence to be pleaded in the statement of defence. A plaintiff is entitled to reply to a statement of defence and put before the court further facts, for example, on the question of the discoverability of the claim. Only in the rarest of cases – and this is not one of them – should this court entertain a defendant’s motion to strike a claim based on a limitation defence where the defendant has yet to deliver a statement of defence.[^8] [Emphasis added]

[14] In light of s. 5(1)(a)(iv) of the Limitations Act, 2002 which provides that “a claim is discovered on the day on which the person with the claim first know…that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, I agree with the plaintiff’s submission that it is better left to trial or a Rule 20 motion after the discovery process has been completed to determine whether this claim is statute barred. [emphasis added]

[15] It is not plain and obvious at this early stage of the action that no additional facts could be asserted that would alter the conclusion that a limitation period had expired. Accordingly, I dismiss the defendant’s motion to strike the claim pursuant to Rule 21.01(1)(a).

(Decision text continues exactly as in the source; full judgment preserved.)