ST. CATHARINES COURT FILE NO.: 54641/13
DATE: 2015/10/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hyperbaric Oxygen Institute of Canada Inc.
Plaintiff/Respondent
– and –
The College of Physicians and Surgeons of Ontario, Dr. Rocco Gerace, Sandra Keough and Dr. Wayne A. Evans
Defendants/Moving Parties
Richard Simmons,
for the Plaintiff/Respondent
Michelle Gibbs,
for the Defendants/Moving Parties
HEARD: September 24, 2015
THE HONOURABLE JUSTICE J.R. HENDERSON
ENDORSEMENT ON MOTION
INTRODUCTION
[1] The defendants bring this motion to strike the Statement of Claim pursuant to Rule 21.01(1)(b) on the ground that it discloses no reasonable cause of action, or in the alternative to dismiss the action pursuant to Rule 21.01(3)(d) on the ground that it is an abuse of process. In the further alternative, the defendants request a summary dismissal of the plaintiff’s claim pursuant to Rule 20.
[2] The plaintiff, Hyperbaric Oxygen Institute of Canada Inc. (hereinafter called “HOIC”), submits that the claim should not be summarily dismissed. Further, HOIC submits that if the Statement of Claim is deficient, the court should not strike the pleading, but rather the court should grant leave to amend the Statement of Claim.
THE BACKGROUND
[3] HOIC is a corporation that offers hyperbaric oxygen therapy (hereinafter called “HBOT”) at a clinic in St. Catharines, Ontario. HOIC is owned and controlled by a chiropractor, Dr. Michael Venneri (hereinafter called “Venneri”).
[4] The defendant, the College of Physicians and Surgeons of Ontario (hereinafter called “the College”), is an entity created by statute that is empowered to regulate the practice of medicine in Ontario, and to govern the medical doctors who are members of the College. At all material times the named defendants in this action acted as employees or agents of the College.
[5] As a chiropractor, Venneri is not permitted to administer HBOT; rather HBOT must be administered by a medical doctor. Venneri is not a medical doctor and is not a member of the College. Therefore, as part of its business practice, HOIC employed medical doctors who provided HBOT to patients who attended the clinic.
[6] Pursuant to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (hereinafter called “the RHPA”) and Schedule 2 to the RHPA, known as the Health Professions Procedural Code (hereinafter called “the Code”), the College has the power to investigate any member for an act of professional misconduct or incompetence.
[7] In 2011, the College commenced an investigation into the medical doctors who were employed by HOIC. Subsequently, five staff medical doctors resigned their positions with HOIC, and signed undertakings that they would not practice in the area of hyperbaric oxygen therapy.
[8] HOIC claims that the investigation conducted by the College was unlawful and done in bad faith. It is alleged that the College pressured the five medical doctors into resigning from HOIC. Because HOIC was dependent upon the medical doctors for the provision of HBOT, HOIC claims that the College caused it to suffer economic loss.
[9] In addition, HOIC claims that the College has failed to prescribe any standards for the provision of HBOT, and it further claims that the College has failed to produce the College’s files that relate to the investigation of the five medical doctors.
[10] In its Statement of Defence, the defendants submit that at all times the College acted in good faith and in accordance with the governing legislation. The defendants acknowledge that the College did not have a formal policy for the provision of HBOT, but as in similar cases the College relied upon the expertise of its members to identify the expected standards. The College also relies upon s. 36(3) of the RHPA in support of its decision not to release the investigation files that were requested by HOIC.
THE LEGISLATION
[11] Rule 21.01(1)(b) reads, “A party may move before a judge, .…(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.”
[12] Rule 21.01(3)(d) reads, “A defendant may move before a judge to have an action stayed or dismissed on the ground that, .…(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court.”
[13] With respect to the request under Rule 20, the defendants rely on Rule 20.04(2)(a), which reads as follows, “The court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;”
[14] Certain provisions of the RHPA must also be considered as follows:
(1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act and every member of a Council or committee of a College shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except, ….
(2) No person or member described in subsection (1) shall be compelled to give testimony in a civil proceeding with regard to matters that come to his or her knowledge in the course of his or her duties.
(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, the Advisory Council, a College, a Council, or a member, officer, employee, agent or appointee of the Advisory Council, a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.
RULE 21.01(1)(b) – NO REASONABLE CAUSE OF ACTION
[15] On any motion under this Rule the court must assume that the facts set out in the pleadings are true, unless they are patently ridiculous or incapable of proof. The test is whether it is “plain and obvious” that the Statement of Claim discloses no reasonable cause of action. See the case of Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959.
[16] In the present case, on a plain reading of the Statement of Claim, it is difficult to ascertain the precise cause of action that is pleaded. In oral submissions, counsel for HOIC conceded that a negligence claim is not pleaded, and in any event such a claim could not succeed in light of s. 38 of the RHPA.
[17] Counsel for HOIC submits that the Statement of Claim should be read to include two separate causes of action, namely misfeasance in public office, and intentional interference with economic relations. Counsel relies upon paragraphs 11 and 12 of the Statement of Claim in support of that proposition. Further, at paragraph 14 of the Statement of Claim, I accept that HOIC makes a claim that the defendants did not act in good faith.
[18] In my view, the Statement of Claim is not broad enough to include the tort of intentional interference with economic relations. The phrase “interference with economic relations” does not appear in the Statement of Claim, and there is no similar phrase that could be interpreted as a substitute.
[19] Moreover, the tort of intentional interference with economic relations is a very narrow tort. In the case of A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, Cromwell J. considered the history of this tort (which has several different names) and wrote at para. 5:
A. What is the scope of liability for the tort of causing loss by unlawful means?
In light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability, the tort should be kept within narrow bounds. It will be available in three-party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff. (Other torts remain relevant in two-party situations, such as, for example, the tort of intimidation.)
(1) What sorts of conduct are considered "unlawful" for the purposes of this tort?
Conduct is unlawful if it would be actionable by the third party or would have been actionable if the third party had suffered loss as a result of it. The alleged misconduct of the defendants in this case was not unlawful in this sense and therefore they cannot be held liable on the basis of the unlawful means tort.
[20] Further, at para. 95 Cromwell J. wrote:
It is the intentional targeting of the plaintiff by the defendant that justifies stretching the defendant's liability so as to afford the plaintiff a cause of action. It is not sufficient that the harm to the plaintiff be an incidental consequence of the defendant's conduct, even where the defendant realizes that it is extremely likely that harm to the plaintiff may result. Such incidental economic harm is an accepted part of market competition.
[21] In my opinion, the Statement of Claim in the present case does not contain an allegation of an actionable unlawful act by the College against a third party. In this case, presumably, the third parties would be the doctors who gave undertakings to the College; however, there is nothing in the pleading to suggest that those doctors would have a cause of action against the College. Thus, the pleading does not allege the facts upon which any court could find intentional inference with economic relations, and there is nothing in the Statement of Claim that would inform the defendants that such a claim was being made against them.
[22] Regarding misfeasance in public office, the elements of this tort are concisely set out by Iacobucci J. at para. 23 of Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, as follows:
In my view, there are two such elements. First, the public officer must have engaged in deliberate and unlawful conduct in his or her capacity as a public officer. Second, the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff.
[23] Counsel for the defendants submits that the pleading does not disclose the precise breach of duty that is complained of. Moreover, counsel for the defendants submits that the College owes no duty to HOIC, but that the College has a duty to the public that is precisely prescribed by the provisions of the RHPA and the Code.
[24] In my view the Statement of Claim certainly lacks particulars, but the portion of paragraph 11 of the Statement of Claim that reads, “In a deliberate and unlawful manner, intended to harm the plaintiff, and in a manner which abused their public office…” when read in conjunction with the balance of that paragraph and paragraphs 12 and 14, is sufficient to inform the defendants that the claim against them is based on the tort of misfeasance in public office. Therefore, I accept that, read as a whole, the Statement of Claim includes the tort of misfeasance in public office.
[25] In this part of the motion counsel for the defendants also made submissions that s. 36(3) of the RHPA supported the defendants’ position that HOIC cannot prove a claim for misfeasance in public office. However, in my view, those submissions are more applicable to the request for summary dismissal under Rule 20.
[26] In summary, I will not strike the Statement of Claim pursuant to Rule 21.01(1)(b). That being said, if the plaintiff’s claim had survived the Rule 20 motion, I would have ordered HOIC to bring a motion to amend the Statement of Claim before taking any further steps in the proceeding.
RULE 21.01(3)(d) – ABUSE OF PROCESS
[27] I am not convinced that the Statement of Claim is an abuse of process. Therefore, I will not dismiss the action pursuant to this Rule.
RULE 20 – SUMMARY DISMISSAL
[28] In a motion under Rule 20 the court must consider more than the pleadings; rather, the court must take a hard look at the evidence, consider the use of the fact finding power set out in the Rule, and determine whether there is a genuine issue for trial. See the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 66 to 68.
[29] To succeed on a claim for misfeasance in public office, HOIC must prove the two aforementioned elements, namely, the College must have engaged in deliberate and unlawful conduct in public office, and the College must have been aware that the conduct was unlawful and likely to cause harm. In addition, in this case, because of s. 38 of the RHPA, HOIC must also prove that the College did not act in good faith.
[30] It is well known that all of the parties must “put their best foot forward” in a motion under Rule 20. See the case of Pizza Pizza Ltd. v. Gillespie, 1990 4023 (ON SC), 75 O.R. (2d) 225. However, in response to the defendants’ motion for summary dismissal in this case, HOIC has offered this court very little evidence.
[31] The only evidence from HOIC in response to this motion is a short affidavit from Venneri. In that affidavit, in summary, Venneri makes a bald allegation that the College did not like to see a chiropractor infiltrate its “turf”; that the five named medical doctors were forced to resign from HOIC as a result of the College’s actions; and that the actions of the College caused serious financial hardship for HOIC. In addition, Venneri alleges that the College will not release its investigation files despite the fact that HOIC has now provided the College with written authorizations from two of the medical doctors who were investigated.
[32] In my view, the evidence offered by HOIC on this motion is not sufficient to survive the defendants’ request for summary dismissal. Specifically, on the evidence before me, I cannot find that there are genuine issues as to whether the conduct of the College was unlawful, or whether the College acted in bad faith.
[33] Regarding unlawfulness, it is apparent that the College has a statutory obligation to govern and regulate medical doctors; that the College has broad investigative powers as set out in s. 75 of the Code; and that there are certain practical and scientific risks associated with HBOT that clearly bring HBOT within the purview of the College. There is simply no evidence that the College engaged in an unlawful investigation that went beyond its public duty.
[34] Further, there is no statutory mandate that requires the College to prescribe specific standards for the provision of all medical services. Fields such as HBOT are regulated by the College through the use of medical doctors who have expertise in the area and who can inform the College as to the necessary standards. Thus, again, there is no evidence that the College, or any of its employees or agents, did something unlawful or beyond its mandate.
[35] Regarding bad faith, even if HOIC could somehow establish that the College did something unlawful, it would be an even more remote possibility for HOIC to establish bad faith. At this point, HOIC cannot even articulate the bad faith that occurred, other than to suggest, without supporting evidence, that the College has a bias against chiropractors.
[36] In addressing the lack of evidence before the court, counsel for HOIC submits that any evidence regarding the unlawful conduct of the College or the bad faith of the College would be contained in the College’s own investigation files, files that the College refuses to release. The difficulty for HOIC is that whatever might be in those investigation files, any document contained in the investigation files is not admissible in a civil proceeding pursuant to s. 36(3) of the RHPA.
[37] In the case of M.F. v. Sutherland, 2000 5761 (ON CA), [2000] O.J. No. 2522 (OCA) the Ontario Court of Appeal considered s. 36(3), and determined that, even in the face of an allegation of fraud or bad faith, s. 36(3) provided absolute confidentiality with respect to the investigative records.
[38] At para. 29 of the Sutherland case Laskin J. wrote:
…The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3). The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.
[39] In summary, I find that there is no genuine issue as to whether the conduct of the College was unlawful, and there is no genuine issue as to whether the College acted in bad faith. Therefore, HOIC’s claim should be summarily dismissed.
CONCLUSION
[40] For all of the above reasons, pursuant to Rule 20, the plaintiff’s claim is dismissed.
[41] The defendants may make written submissions with respect to costs addressed to the trial coordinator in St. Catharines within 15 days of this decision, and the plaintiff shall have 10 days thereafter to deliver responding written submissions.
Henderson, J.
Released: October 9, 2015
ST. CATHARINES COURT FILE NO.: 54641/13
DATE: 2015/10/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hyperbaric Oxygen Institute of Canada Inc.
Plaintiff/Respondent
and
The College of Physicians and Surgeons of Ontario, Dr. Rocco Gerace, Sandra Keough and Dr. Wayne A. Evans
Defendants/Moving Parties
endorsement on motion
Henderson, J.
Released: October 9, 2015