CITATION: Rahsepar v. Nelson House of Ottawa-Carleton Inc., 2016 ONSC 1419
COURT FILE NO.: 08-CV-42085SR
DATE: 2016/02/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SIMINTAJ RAHSEPAR
Plaintiff
– and –
NELSON HOUSE OF OTTAWA-CARLETON INC., PETER JESSAMINE, CITY OF OTTAWA AND THE OTTAWA HOSPITAL
Defendants
Self-Represented
Sophia Zahariadakis, for the Defendant, Nelson House of Ottawa-Carleton Inc.
Madeline Hall, for the Defendant, Peter Jessamine
Andrew Sherwood, for the Defendant, City of Ottawa
HEARD: February 18-19, 2016 (at Ottawa)
REASONS FOR JUDGMENT
Aitken J.
Nature of Proceeding
[1] On February 18, 2016, the first three Defendants brought a motion for summary judgment seeking a dismissal of the Plaintiff’s action and any cross-claims, and costs as against the Plaintiff. They relied on r. 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. On the resumption of the hearing on February 19, 2016, I advised all parties that I was granting the Defendants’ motions for summary judgment and would provide written reasons subsequently. I went on to hear submissions regarding costs. These are my reasons for granting the Defendants’ motions and my decision and reasons regarding costs.
[2] I note that, on August 21, 2009, the action against the Defendant, Ottawa Hospital, was dismissed without costs, on consent. Therefore, that Defendant is not mentioned further in these Reasons.
Background
[3] The Plaintiff commenced an action against the Defendants on July 15, 2008, seeking: (1) general damages against each defendant in the amount of $100,000 for inflicting unnecessary pain and suffering on the Plaintiff and negligently endangering her health and worsening her medical conditions; (2) special damages in the amount of $25,000; and (3) aggravated damages in the amount of $50,000 for failure to disclose an obvious medical error and trying to cover it up.
[4] From July 20, 2006 to October 21, 2006, the Plaintiff resided at Nelson House, a home for abused women and children operated by the Defendant, Nelson House of Ottawa-Carleton Inc., a non-profit organization (“Nelson House”). While the Plaintiff was staying at Nelson House, she came into contact with Ms. J., another resident. Ms. J. had resided at Nelson House in the period leading up to July 10, 2006. On July 14, 2006, Ms. J. was admitted to the Ottawa Hospital, where she was diagnosed as having active pulmonary tuberculosis (“TB”). She was actively treated for this illness. Ms. J. was discharged from hospital on August 18, 2006, following three negative tests for mycobacteria on August 9, 12, and 14. At that time, Ottawa Public Health advised Nelson House that Ms. J. posed no risk to the general public. Ms. J. returned to live at Nelson House and thereafter shared a room with the Plaintiff.
[5] On September 20, 2006, the Plaintiff attended the Ottawa Public Health office and asked for a TB skin test. The test came back positive for TB. The Plaintiff was referred to the TB Clinic at the Ottawa Hospital for follow-up.
[6] On October 3, 2006, the Plaintiff attended the Ottawa Hospital, General Campus, TB Clinic and was seen by Drs. Roth and Al Bedwawi. Dr. Roth diagnosed the Plaintiff as having a latent (non-infectious) TB infection. The Plaintiff was placed on a course of Isoniazid therapy (“INF”).
[7] The Defendant, Dr. Peter Jessamine, is a physician specializing in the field of Internal Medicine, Infectious Diseases, and Medical Microbiology, who works at the Ottawa Hospital. On October 23, 2006, Dr. Jessamine saw the Plaintiff at the TB Clinic for a follow-up visit, and confirmed the diagnosis of a latent TB infection. Dr. Jessamine saw the Plaintiff on a monthly basis thereafter until July 2007 (with the exception of June 2007). During this period, Dr. Jessamine performed numerous tests on the Plaintiff to ensure that she had a latent, and not active, form of TB, and he continued the INF treatment that had originally been prescribed by his colleague.
[8] The Plaintiff claims that Ottawa Public Health was negligent in advising Nelson House and the Plaintiff that Ms. J. posed no risk of transmitting TB to her. The Plaintiff claims that Nelson House was negligent in exposing the Plaintiff to active TB by having Ms. J. live at Nelson House and share a room with the Plaintiff. The Plaintiff claims that Dr. Jessamine was negligent in his care and treatment of the Plaintiff from October 2006 to July 2007.
Law on Motions for Summary Judgment
[9] Under r. 20.04(2) of the Rules of Civil Procedure:
20.04(2) 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; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. [emphasis added]
[10] This rule must be read in the context of the general directions provided in r. 1.04, namely, that the rules must be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits, and the court shall make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.
[11] As Karakatsanis J. stated in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, [2014] 1 SCR:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[12] It is trite law that, on a motion for summary judgment, the responding party must put his or her “best foot forward” or risk losing (Cuthbert v. TD Canada Trust, 2010 ONSC 830, 88 C.P.C. (6th) 359, at para. 12; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC 1037, at para. 12). As stated in r. 20.02(2):
In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
[13] Although r. 20.04(2.1) provides additional fact-finding powers to a judge for the purpose of determining whether a trial is necessary in circumstances where there is a genuine issue to be determined and the judge is unable to decide the issue on the basis of the evidence in the record, I find it unnecessary, in the circumstances of this case, to make use of those additional powers. Here, in regard to each Defendant, the Plaintiff has failed to tender any evidence to support some of the facts which must be proven in order to support the Plaintiff’s claims.
[14] It is especially important that the mechanism of summary judgment be used in this case. The Plaintiff has had eight years to collect the necessary evidence to support her claims against the Defendants, and has failed to do so. The Defendants have lived under the cloud of this litigation during this lengthy period without there being any sign that any of the claims against them could possibly succeed at trial. The procedure has been inordinately lengthy and convoluted due, in great measure, to the Plaintiff’s penchant for frequently changing lawyers and for representing herself from time to time as she searches for her next legal advisor. Further time elapsed as the issue of the Plaintiff’s mental capacity and ability to instruct counsel or represent herself had to be fully canvassed. Although the Plaintiff has focused on her physical health during the course of this litigation, anyone reviewing this file would have to have serious concerns about the Plaintiff’s mental health. The evidence on this motion suggests that the Plaintiff is bright and intellectually capable; however, her fixation on certain ideas despite evidence to the contrary, and her preoccupation with conspiracy theories, suggests that her grasp on reality may be tenuous, at best. Based on the record submitted on this motion for summary judgment, there is sufficient evidence for me to fairly and justly adjudicate the dispute, and summary judgment in favour of the Defendants would be a timely, affordable, and proportionate procedure.
Motion for Summary Judgment of the City of Ottawa
[15] For the Plaintiff to succeed in her action against the City of Ottawa in regard to the actions of Ottawa Public Health, as a starting point, the Plaintiff must establish on a balance of probabilities that she was infected with tuberculosis through her contact with Ms. J. when the two were residing at Nelson House in the summer/fall of 2006.
[16] First, the Plaintiff has not tendered evidence to support her claim that she contracted active pulmonary TB in the summer of 2006. The physicians at the Ottawa Hospital TB clinic who saw, diagnosed, and treated the Plaintiff in October 2006 (Drs. Roth and Jessamine) diagnosed her as having a latent tuberculosis infection, and treated her accordingly. The Plaintiff has not tendered any medical evidence tending to prove that these two physicians misdiagnosed the Plaintiff’s condition and that she had, in fact, an active TB infection. For his part, Dr. Jessamine has tendered the expert opinion evidence of Dr. Pamela Orr to the effect that Dr. Jessamine’s diagnosis of the Plaintiff as having a latent TB infection, and his prescribed treatment, were both appropriate.
[17] Second, the Plaintiff has not tendered evidence to support her claim that she contracted active TB after she started residing at Nelson House and as a result of her contact with Ms. J.
[18] There is no expert evidence before the court to the effect that the Plaintiff ever had active pulmonary TB at any time from July 20, 2006 forward, nor is there any expert evidence that she contracted active pulmonary TB while she was at Nelson House. The Plaintiff’s last lawyer, Arthur Ayers, advised the Defendants’ counsel on July 9, 2015 that the Plaintiff was in the process of obtaining a medical report as to whether she had contracted active pulmonary TB while at Nelson House or whether she was at the time, and continues to be, impacted by latent TB. At a case conference before Master MacLeod on September 23, 2015, Mr. Ayers reported that the Plaintiff had obtained a preliminary report from a medical expert, but that she did not intend to rely on that expert opinion at trial. No other report of a medical expert has been tendered to support the Plaintiff’s claim.
[19] The documentary evidence from Nelson House and from the Ottawa Hospital is to the effect that Ms. J. left Nelson House on July 10, 2006 and was admitted to the Ottawa Hospital on July 14, 2006. Barbara Ellis, a public health nurse who did a TB skin test on the Plaintiff on September 20, 2006, stated in a letter to the Plaintiff that a case of pulmonary TB had been discovered in an unnamed person who was a resident of Nelson House from June 6 to July 15, 2006. It is uncontroverted that the Plaintiff began to reside at Nelson House only on July 20, 2006 – at a time when Ms. J. was already an inpatient at the Ottawa Hospital and when the person referred to in Ms. Ellis’s letter (whether Ms. J. or someone else) had already left Nelson House. The documentary evidence of the Ottawa Hospital is that Ms. J. was discharged from hospital on August 18, 2006, after she had provided three sputum samples on August 9, 12, and 14 confirming that her TB was no longer infectious. The records of Nelson House show that Ms. J. returned to Nelson House on August 18, 2006, at which point she started to share a room with the Plaintiff.
[20] The evidence that the Plaintiff relies on as proof that she was in contact with Ms. J. at a time when Ms. J. was infectious is an affidavit of Rima Abughaflei, another resident of Nelson House, sworn January 27, 2010. But all that Ms. Abughaflei states in that affidavit is that she was a resident at Nelson House from May to September, 2006, Ms. J. was a resident at Nelson House in July and September 2006, and Ms. J. and the Plaintiff were residing at Nelson House at the same time. There is no issue that Ms. J. resided at Nelson House for part of July and during the month of September, 2006. There is no issue that Ms. J. and the Plaintiff were at Nelson House at the same time – namely from August 18, 2006 onward into the fall. That evidence does not assist the Plaintiff in proving that she was in contact with Ms. J. at Nelson House at a time when Ms. J. had an active TB infection. This is not evidence that Ms. J. and the Plaintiff overlapped at Nelson House during the month of July, when Ms. J. may have had an active TB infection.
[21] Furthermore, the Plaintiff has not tendered evidence tending to prove that Ottawa Public Health acted negligently, or did anything for which they would be liable in damages, when they determined that Ms. J. posed no risk to the public or the staff and residents at Nelson House when she was discharged from the Ottawa Hospital on August 18, 2006. There is no expert evidence to the effect that Ottawa Public Health did not follow the appropriate protocols when dealing with Ms. J. and when advising the staff at Nelson House.
[22] Based on the evidence filed on this motion and, particularly, on the lack of evidence tendered by the Plaintiff on critical facts, I conclude that the Plaintiff’s claim against the City of Ottawa has no possibility of success were a trial to be held. That being the case, the Plaintiff’s action against the City of Ottawa is dismissed. The cross-claims of Nelson House and Peter Jessamine as against the City of Ottawa are also dismissed.
Motion for Summary Judgment of Nelson House
[23] For the Plaintiff to succeed in her action against Nelson House, she must prove, as a starting point, that while she was at Nelson House, she was in contact with a person who had an active TB infection. The Nelson House resident whom the Plaintiff claims had an active TB infection at a time when the Plaintiff was in contact with her at Nelson House is Ms. J. As I have just reviewed, the evidence tendered on this motion by way of the records of Nelson House and the Ottawa Hospital is to the effect that Ms. J. was not a resident at Nelson House when the Plaintiff arrived on July 20, 2006. Ms. J. had left Nelson House five to ten days earlier. Furthermore, the evidence is that, when Ms. J. was discharged from the Ottawa Hospital on August 18, 2006 and returned to reside at Nelson House, she was no longer infectious. The Plaintiff has adduced no evidence to refute this evidence tendered by Nelson House and Ottawa Public Health in this regard.
[24] There is no independent medical staff at Nelson House. It relies on the advice and recommendations of Ottawa Public Health when managing medical issues at its residence. There is no evidence that Nelson House, in handling Ms. J. and the Plaintiff, did anything contrary to the advice and recommendations received from Ottawa Public Health, and, as already indicated, there is no evidence that Ottawa Public Health breached any standard of care it owed the Plaintiff in managing Ms. J. and her TB diagnosis.
[25] Based on the evidence filed on this motion and, particularly, on the lack of evidence tendered by the Plaintiff on critical facts, I conclude that the Plaintiff’s claim against Nelson House has no possibility of success were a trial to be held. That being the case, the Plaintiff’s action against Nelson House is dismissed. The cross-claims of the City of Ottawa and Dr. Peter Jessamine as against Nelson House are also dismissed.
Motion for Summary Judgment of Dr. Peter Jessamine
[26] For the Plaintiff to succeed in her action against Dr. Peter Jessamine, there must be some expert opinion evidence from a qualified expert to the effect that Dr. Jessamine was negligent in his diagnosis or treatment of the Plaintiff. In other words, there must be admissible expert evidence to the effect that Dr. Jessamine did not meet the standard of care that he owed to the Plaintiff as a physician specializing in the field of Internal Medicine, Infectious Diseases, and Medical Microbiology, and this breach of the standard of care caused or materially contributed to the Plaintiff’s alleged injuries. No such evidence has been tendered by the Plaintiff, even though she has had eight years since the commencement of this action to obtain such a report. During the course of those eight years, the Plaintiff sought the advice of at least eight lawyers, and was formally represented by at least six of those. There is no question that she was advised of the need to have a formal expert opinion from a physician qualified to provide expert opinion evidence in an Ontario court relevant to the question of Dr. Jessamine’s alleged negligence. The Plaintiff has not obtained such evidence, and that is fatal to her claim against Dr. Jessamine. As Belobaba J. summarized in Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208, at paras. 26-28:
(a) In cases where liability issues are not within the ordinary knowledge and expertise of the trier of fact, such as this medical malpractice action, a finding of negligence must be based on a supporting expert opinion. The central issue in a medical malpractice action is whether or not the defendant met the appropriate standard of care. To support allegations of negligence …, the plaintiff must lead expert evidence of a physician practicing in that area of medicine attesting to the defendant’s failure to meet the standard of care required in such circumstances. Where there is no such evidence, the plaintiff will have “no hope of success”.
(b) The case law is clear that the court should not make a finding that a medical professional has breached the standard of care without an expert opinion to support his finding. Where the allegations in a statement of claim have not been supported by an expert report, a genuine issue for trial has not been raised and summary judgment ought to be granted to the defendant accordingly.
(c) The court may infer that the plaintiff was unsuccessful in obtaining an expert medical opinion to support his allegations of negligence where the plaintiff has failed to obtain an expert report for use in defending against a motion for summary judgment.
[27] As indicated above, the last lawyer acting on the Plaintiff’s behalf, though not officially solicitor of record, was Arthur Ayers. He advised the Defendants in the summer of 2015 that the Plaintiff was obtaining the necessary expert medical report; however, no such report was obtained. All that the Plaintiff offered on this motion for summary judgment was an untitled letter from Reza Nejat, who identified himself as an M.D., anesthesiologist, RCCM, and a Fellow of Critical Care Medicine, working in Iran. There is no evidence that Dr. Nejat would be qualified to provide expert medical evidence in Ontario as to the standard of care owed by Dr. Jessamine to the Plaintiff.
[28] Although not required to do so, Dr. Jessamine tendered the report of Dr. Pamela Orr, a specialist in Internal Medicine and Infectious Diseases with a Masters of Science in Community Health Sciences. Dr. Orr is currently Professor of Internal Medicine (Infectious Diseases), Medical Microbiology and Community Health Sciences at the University of Manitoba, and the Past-President of the North American Region of the International Union Against Tuberculosis and Lung Disease. She has 30 years of experience caring for patients with TB infections. She is qualified to practice medicine in Ontario.
[29] Dr. Orr reviewed the pleadings and medical records available in this litigation and prepared a report dated September 6, 2010 in which she offered the opinion that Dr. Jessamine had met the standard of care expected of him with respect to the care and treatment of the Plaintiff. According to Dr. Orr, Dr. Jessamine had appropriately assessed the Plaintiff’s symptoms, ordered the appropriate investigations, made the appropriate diagnosis of latent TB infection, and prescribed the appropriate medication. Moreover, over the course of approximately ten months, Dr. Jessamine had provided the Plaintiff with appropriate care that was skilled and informed, holistic, caring and patient, attentive to his role as educator, attentive to communication, collaborative, and scholarly.
[30] Based on the evidence filed on this motion and, particularly, on the lack of expert evidence tendered by the Plaintiff in regard to any breach of the standard of care owed to the Plaintiff by Dr. Jessamine, I conclude that the Plaintiff’s claim against Dr. Jessamine has no possibility of success were a trial to be held. That being the case, the Plaintiff’s action against Dr. Jessamine is dismissed. The cross-claims of the City of Ottawa and Nelson House as against Dr. Jessamine are also dismissed.
Costs
[31] Costs are normally awarded to the successful litigant. Here, all of the Defendants were successful on the motion for summary judgment and that, in turn, means that they have successfully defended the action commenced by the Plaintiff. It is important for the Plaintiff to realize that, in the normal course, there would be a costs order against her in favour of all three Defendants – both in regard to the costs they incurred in bringing the motion for summary judgment and in regard to the costs they incurred in defending the action up until the time summary judgment was granted in their favour. I have no doubt that the Plaintiff was advised on numerous occasions that this was a possible outcome in this litigation. Despite her being advised of this possibility, the Plaintiff soldiered on with her litigation, shedding any advisors who may have suggested to her that she likely would not be successful with her claims.
[32] Under r. 57.01 of the Rules of Civil Procedure, there are numerous factors for the court to consider in exercising discretion to award costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. Those include:
- The principle of indemnity
- The amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding under consideration
- The amount claimed and recovered in the litigation
- The apportionment of liability
- The complexity of the proceeding
- The importance of the issues
- The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding
- Whether any step in the proceeding was improper, vexatious or unnecessary or was taken through negligence, mistake or excessive caution
- A party’s denial or refusal to admit anything that should have been admitted
[33] I will offer some preliminary observations and then proceed to consider the costs claims of each Defendant.
[34] First, the Plaintiff was entirely unsuccessful against each Defendant. At least in regard to Dr. Jessamine and the City of Ottawa, this outcome was predictable early on in the litigation. It was clear that, in regard to these two Defendants, the Plaintiff had to have expert opinion evidence to the effect that each had breached the standard of care that they owed to her. The Defendant, with the help of her lawyers, was unable to obtain any expert’s report to support her claims against these two Defendants. That should have signalled to her that her claims against these two Defendants were doomed to failure and, if she proceeded, she did so at her own peril in regard to costs. The claims against Nelson House may not have required the same type of expert evidence; nevertheless, in that there was no evidence that Nelson House did anything other than rely on the advice, recommendations, and directions of Ottawa Public Health, it is hard to see how an action against Nelson House would succeed where no case existed against Ottawa Public Health.
[35] Second, the Plaintiff claimed damages in the total amount of $375,000 plus pre-judgment interest, not a huge amount in the scheme of tort litigation these days. Nevertheless, she recovered nothing.
[36] Third, the claims in this case were not unduly complex; however, the passage of time, the revolving door of lawyers retained by the Plaintiff, the issues regarding the Plaintiff’s mental capacity and mental health, the Plaintiff’s difficulty following the directions of the Case Management Master, the Plaintiff’s refusal to follow the Rules of Civil Procedure in regard to the preparation, service and filing of documents, and, finally, the unorthodox, repetitive, and often irrelevant nature of the materials the Plaintiff placed before the court resulted in the litigation being much more complex, time-consuming, and costly than otherwise would have been the case.
[37] Fourth, in regard to the administrative dismissal of the Plaintiff’s action at a time when the action had been stayed so that a capacity assessment could be conducted of the Plaintiff, I assign no fault to the Plaintiff. In my view, that administrative dismissal should not have occurred at a time when the action was stayed. This put all parties to the additional cost of having the dismissal overturned. To the credit of the Defendants, they eventually consented to the action being reinstated.
[38] Fifth, in regard to the Defendants’ motions to have a capacity assessment done and, subsequently, to have the Office of the Public Guardian and Trustee appointed as the Plaintiff’s litigation guardian, I assign no fault to either the Plaintiff or the Defendants. There was ample reason for the Defendants to have concerns about the Plaintiff’s mental capacity to represent herself or to instruct counsel. That is made clear from the reports prepared by Dr. Mark Ferland.
[39] To recap the chain of events relating to the capacity assessment, on October 12, 2011, James J. ordered that this action be stayed until a mental capacity assessment of the Plaintiff was completed pursuant to s. 105(2) of the Courts of Justice Act. The assessment was conducted by Dr. Mark Ferland on January 31, 2012. In his report dated March 7, 2012, Dr. Ferland concluded that the Plaintiff was incapable of self-representation.
[40] On April 12, 2012, the action was dismissed by the Registrar for delay. On December 17, 2013, on consent, Master MacLeod set aside the Registrar’s order, reinstated the action, and ordered that it be set down for trial by June 30, 2014. The Defendants then brought a motion for the appointment of a litigation guardian for the Plaintiff. The Office of the Public Guardian and Trustee alerted the court to the need for a further capacity assessment to be done specifically addressing the question as to whether the Plaintiff was capable of instructing counsel.
[41] On June 27, 2014, McLean J. ordered a further capacity assessment for the Plaintiff to determine whether she was capable of instructing counsel or otherwise of representing herself in this litigation. This was completed by Charles Leclerc on December 12, 2014. He concluded that the Plaintiff was capable of understanding facts involved in the litigation, she appreciated the consequences of the decisions she was making in that regard, and she was capable of making decisions regarding self-representation or instruction of counsel.
[42] Dr. Ferland was also retained to do an updated report. On March 11, 2015, he provided a very detailed report of all of the documentation that he had reviewed, his interactions with the Plaintiff, and his observations of the Plaintiff. His conclusions were the following:
In terms of self-representation and guiding legal counsel in this matter, there is no evidence of incapacity on the basis of intellectual impairment. With regard to the possibility that mental illness is impeding decision making capacity, there is in my opinion at present inconclusive evidence pointing in this direction. Accordingly presently, based on a presumption of capacity, Ms. Rahsepar is deemed capable both to self-represent and guide legal [counsel]. [Emphasis added.]
[43] Dr. Ferland did go on to raise the question as to whether the Plaintiff’s perceptions of the case exceeded a variant on normalcy and whether they reflected a set of ideas or beliefs detached from reality (i.e. delusional thoughts). As he pointed out, “delusions are fixed beliefs that are not amenable to change in light of conflicting evidence”. He noted that delusional thinking can arise secondary to various mental illnesses, and can be linked to “significant obsessional thinking”. Dr. Ferland went on to review the documentary evidence, particularly medical records, and concluded that: “the records indicate that anxiety and obsessional thinking, rather than obstinacy, marked [the Plaintiff’s] presentation well before the onset of her legal claim”.
[44] Dr. Ferland also raised a concern that the Plaintiff was fixated with the idea that virtually everyone with whom she had been in contact in both the medical and legal fields was engaged in a conspiracy to do her wrong. He expressed his concern as follows:
Undercurrents of foul play (both by parties in the health care and legal system) and of significant threat against parties who would seek to uncover the truth about her case (including physical injury against parties and their families) pervade Ms. Rahsepar’s thinking…
I am not an expert on the integrity of the health care or legal system, or of the stakes involved here. I will leave these observations with the Court. Still, from an alternative perspective, if in fact, certain delusional beliefs were formed and sealed (i.e. became immutable) in Ms. Rahsepar’s mind at a time of great emotional vulnerability, it would make sense that all sources of evidence and courses of action by parties challenging these beliefs, must have at their basis deception and intimidation. By extension, in such a circumstances, would decisions made about one’s working relationship with counsel, benefit truly and consistently from the expressed recognition that lawyers possess expert knowledge that one does not (i.e. a value expressed by Ms. Rahsepar)? I think not.
As these legal matters proceed with Ms. Rahsepar as a capable decision maker, by presumption, perhaps some of the information reviewed here may help the Court determine how justice will be best served along the way.
[45] The stay of litigation imposed by the order of James J. in October 2011 was lifted by order of Master MacLeod on September 23, 2015.
[46] There is no question that time was lost during the course of this litigation due to the Defendants’ justified belief that they had to deal with the Plaintiff’s mental capacity before they could proceed with their motions for summary judgment. This resulted in a delay of almost four years as this matter was dealt with. I do not fault anyone for that delay.
[47] From the summer of 2015 to the time of this motion for summary judgment, the Plaintiff does have to assume responsibility for her refusal to accept the inevitable, for the numerous delays she sought regarding the preparation of service of documents, and for the sorry state of the documents that she served on the Defendants and filed with the court in regard to these motions.
City of Ottawa
[48] The City of Ottawa is seeking only its disbursements on the motion and in the action in the total amount of $2,400. This decision on the part of the City of Ottawa likely reflects its understanding of the difficult life the Plaintiff has experienced, its appreciation that there may be mental health issues underlying this litigation, and its assessment that it is unlikely that the Plaintiff will ever be in a position to pay a full costs award. No issue was taken with the validity of the City’s disbursements.
[49] The Plaintiff shall pay the City of Ottawa’s disbursements fixed in the amount of $2,400 inclusive of HST.
Dr. Jessamine
[50] Dr. Jessamine is seeking costs against the Plaintiff on the summary judgment motion on a partial indemnity basis in the amount of $10,000 all in. He is not seeking his costs in the action.
[51] Again, I reiterate that in the normal course, Dr. Jessamine would have been entitled to costs of the action.
[52] No issue was taken with the time or hourly rates of the lawyers and staff working on the summary judgment motion.
[53] The Plaintiff shall pay Dr. Jessamine’s costs on the summary judgment motion fixed in the amount of $10,000 inclusive of disbursements and HST.
Nelson House
[54] Nelson House is seeking costs against the Plaintiff as follows: (1) $24,320.62 on a substantial indemnity basis in regard to the motion for summary judgment, and (2) $44,555.14 on a partial indemnity basis in regard to the action.
[55] Nelson House is a non-profit organization, providing emergency shelter and social services to women and children who are being abused. Nelson House is not the type of organization that builds into its annual budget legal fees of the magnitude that it is facing in defending the action to date and bringing a motion for summary judgment.
[56] Although under r. 20.06 of the Rules of Civil Procedure, the court may fix and order payment of the costs of a motion for summary judgment by a party on a substantial indemnity basis if the party acted unreasonably by responding to the motion or if the party acted in bad faith for the purpose of delay, I am declining to make such an order in the circumstances of this case. The Plaintiff did act unreasonably in defending the motions for summary judgment. She did take steps to delay the hearing of the motions. Did she act in bad faith? I am not convinced that she did. I think it more likely that the Plaintiff suffers from a form of mental illness that impacts her judgment and makes it next to impossible for her to accept a view of events different from that fixed in her mind. She sees conspirators and enemies in every quarter. She simply cannot understand why others do not see the same thing and why they do not embrace her views of what fairness and justice demand in this case. Imposing substantial indemnity costs on the Plaintiff in regard to the motion for summary judgment would feel like punishing her for not being able to help herself, and I decline to do so.
[57] The costs of Nelson House for the summary judgment motion on a partial indemnity basis are $16,720.75 – a sum significantly higher than the partial indemnity costs sought on behalf of Dr. Jessamine. I question the amount of time that counsel for Nelson House devoted to correspondence relating to the motion for summary judgment (38.4 hours) and for her and her student to draft and review all documentation relating to the motion (28.5 hours and 42.5 hours respectively). That is an inordinate amount of time.
[58] The Plaintiff shall pay Nelson House’s costs on the summary judgment motion fixed in the amount of $10,000 inclusive of disbursements and HST.
[59] In regard to the action, Nelson House is seeking fees in the amount of $25,635.60 plus HST. The Bill of Costs shows that seven lawyers, one student, and two clerks worked on this file. Inevitably, this would have resulted in some overlap. I will not allow any costs relating to the Registrar’s administrative dismissal of the action or to any negotiations regarding the reinstatement of the action. Nor will I allow any costs relating to steps taken by the Defendants to have the Plaintiff found incapable of representing herself or instructing counsel.
[60] In regard to disbursements, Nelson House is seeking $13,810.29 plus HST. Included in that amount is $10,151.08 for travel. No explanation is provided as to why travel expenses would be so great when the law firm representing Nelson House, and all litigants involved in this action, are located in Ottawa. There is also an expense for “litigation vendor services and supplies” but no explanation as to what that entails.
[61] There is no question that Nelson House is entitled to costs in regard to the action – the dilemma facing me is how much to award. On the one hand, Nelson House is a non-profit organization providing much-needed shelter and social services to the unfortunate women and children who arrive there. Such an organization cannot afford to pay for legal fees to defend unwarranted claims. On the other hand, the Plaintiff is one of those vulnerable women for whom Nelson House exists. In all likelihood, she suffers from a form of mental illness that has propelled her through this litigation. I doubt that she will be able to pay the costs awards being ordered, and allowing them at normal partial indemnity rates will likely fuel her conviction that the legal community, as well as the medical community, has conspired against her. A high cost award may simply be fuel for a lingering fire.
[62] Taking these considerations into account, I find that a fair, reasonable, and proportionate cost award is for the Plaintiff to pay Nelson House’s costs of the action fixed in the amount of $15,000 inclusive of disbursements and HST.
Aitken J.
Released: February 29, 2016
CITATION: Rahsepar v. Nelson House of Ottawa-Carleton Inc., 2016 ONSC 1419
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SIMINTAJ RAHSEPAR
Plaintiff
– and –
NELSON HOUSE OF OTTAWA-CARLETON INC., PETER JESSAMINE, CITY OF OTTAWA AND THE OTTAWA HOSPITAL
Defendants
REASONS FOR JUDGMENT
Aitken J.
Released: February 26, 2016