CITATION: Rahsepar v. Mladenovic, 2016 ONSC 1438

COURT FILE NO.: 14-61645

DATE: 2016/02/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SIMINTAJ RAHSEPAR

Plaintiff

– and –

ALEKS MLADENOVIC

Defendant

Self represented

John P. Lundrigan, for the Defendant

HEARD: February 19, 2016

REASONS FOR JUDGMENT

Aitken J.

Nature of Proceedings

[1] The Defendant, Aleks Mladenovic, brings a motion for summary judgment under r. 20.01 of the Rules of Civil Procedure, R.R.O. 1990, c. C. 43, seeking a dismissal of the action with costs on a substantial indemnity basis. This motion was heard immediately after the motion for summary judgment brought by the defendants in action 08-CV-42085SR. Their motion was successful and resulted in the dismissal of the Plaintiff’s claims in that action with costs payable by the Plaintiff to each defendant.

Background Facts

[2] On July 15, 2008, the Plaintiff commenced action 08-CV-42085SR against Nelson House of Ottawa-Carleton Inc., the City of Ottawa (Ottawa Public Health), Dr. Peter Jessamine, and the Ottawa Hospital, 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 (“the Nelson House action”).

[3] The circumstances underlying this action were the following. 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.

[4] 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.

[5] 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”).

[6] On October 23, 2006, the Defendant, Dr. Peter Jessamine, a physician specializing in the field of Internal Medicine, Infectious Diseases, and Medical Microbiology, saw the Plaintiff for a follow-up visit at the TB Clinic at the Ottawa Hospital. He 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.

[7] In the Nelson House action, the Plaintiff claimed 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 claimed 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 claimed that Dr. Jessamine was negligent in his care and treatment of the Plaintiff from October 2006 to July 2007. Although originally the Plaintiff had also sued the Ottawa Hospital, the action against that defendant was dismissed without costs, on consent, on August 21, 2009.

[8] All claims against Nelson House, the City of Ottawa, and Dr. Jessamine were dismissed on February 19, 2016, following motions for summary judgment, as the Plaintiff had not tendered any evidence to show: (1) that she ever had acute pulmonary TB at any time from July 20, 2006 forward, (2) that she contracted acute TB while staying at Nelson House, (3) that Nelson House breached any duty of care owed to her, (4) that Ottawa Public Health breached the standard of care owed to the Plaintiff, or (5) that Dr. Jessamine breached the standard of care he owed to the Plaintiff. The Plaintiff did not produce any expert opinion evidence regarding the standard of care owed to the Plaintiff by either Dr. Jessamine or Ottawa Public Health, any breach of those standards of care, or any injuries suffered by the Plaintiff as a result of any such breach.

[9] When the Nelson House action was commenced, the Plaintiff was represented by Claude-Alain Burdet. The Plaintiff discharged Mr. Burdet on January 6, 2009 and started to represent herself. From January 6, 2009 to January 4, 2012, the Plaintiff had four other lawyers go on record in that action: William Fuhgeh, Miryam Gorelashvili, G. Todd Barney, and Paul Miller. At times, when she was between lawyers, she acted in person.

[10] In May 2011, the Plaintiff consulted the Defendant, Aleks Mladenovic, a lawyer practising in the areas of personal injury and medical malpractice at Thomson Rogers in Toronto. On May 27, 2011, the Plaintiff signed Thomson Rogers’ standard Medical Malpractice Retainer, authorizing the firm to take the necessary steps on behalf of the Plaintiff to investigate the alleged malpractice and to commence and conduct a lawsuit. By then, of course, a lawsuit had already been commenced. Attached to the Medical Malpractice Retainer was the following explanation:

This explanation summarizes your financial responsibility during the course of your medical malpractice action. Generally, the first step in your proceeding is to conduct a preliminary investigation. To do this, we must obtain those hospital and medical records that we believe to be relevant to your case and then have one or more medical experts review the materials received and comment on the issues raised. This investigation may take up to six or even twelve months to complete. Preliminary investigation expenses can be considerable. Unless you receive written confirmation to the contrary, we will require a monetary deposit (usually in the range of $5,000 to $7,500.00) from you to help fund the cost of this preliminary investigation.

The Plaintiff undertook to pay a retainer of $5,000. Her first cheque was returned for insufficient funds. The firm finally received the retainer on August 24, 2011.

[11] Immediately after the Defendant was retained, the Plaintiff started to bombard him with emails, resulting in him sending her this email on June 7, 2011:

I appreciate your interest in this matter, but I would caution you again that I am not going on the record as your counsel until I have satisfied myself that there is a case to proceed. This will require months to complete. I will not be attending any court appointments or motions on your behalf until the investigation is complete and I am satisfied there is a case to proceed. In the meantime, I must tell you that the constant barrage of emails and calls to my office is not helpful. It takes up time and effort that would better be spent on investigating your case. Every time I have to read an email or take your call, I am billing you for that time. The same applies to my staff, including my assistant, …, who tells me that she is fielding calls from you several times a week. If this continues, the $5,000 retainer you provided me will quickly be used up responding to your contacts. Please keep this in mind.

[12] On October 12, 2011, James J. ordered that the action against Nelson House, the City of Ottawa, and Dr. Jessamine be stayed, pending a mental capacity assessment of the Plaintiff.

[13] On December 15, 2011, the Defendant wrote to the Plaintiff to reassure her that he was continuing to investigate her case, but to warn her that he was having difficulty finding any expert who was willing to get involved. He reiterated earlier advice to her that her case was a difficult one and that her investment of retainer funds was likely not going to produce a favourable outcome. He again told her that he would not go on the record until he had satisfied himself that there was a case to proceed. He acknowledged that she was going to undergo a capacity assessment, but he stated clearly that he would not be getting involved in that or attending any court appearances until he was prepared to go on the record.

[14] Finally, after repeated urging by the Plaintiff, the Defendant agreed to go on record for her on January 4, 2012, on the explicit understanding that, if the results of an expert’s review were unfavourable to the Plaintiff’s case, the Defendant would not continue to represent her. In January 2012, the Defendant was able to retain Dr. Kamran Khan, an expert in the field of TB at the University Health Network and St. Michael’s Hospital, to provide an opinion regarding the Plaintiff’s claims.

[15] On January 31, 2012, Dr. Mark Ferland conducted the capacity assessment of the Plaintiff. In his report dated March 7, 2012, Dr. Ferland stated that the Plaintiff was incapable of self-representation.

[16] Throughout March 2012, the Plaintiff repeatedly wrote to the Defendant with allegations of wrongdoing on the part of court staff and with a request for a meeting. The Defendant declined to meet with the Plaintiff until such time as he had an expert report.

[17] On April 12, 2012, despite the action having been stayed by James J., the Registrar dismissed the action for delay. Notice of the dismissal was sent to the Defendant but did not come to his attention until sometime in July 2012.

[18] Meanwhile, throughout April and early May 2012, the Plaintiff continued to press the Defendant for a meeting, and the Defendant declined until such time as he had an expert’s opinion. On May 10, 2012, the Defendant had a lengthy conversation with Dr. Khan. On May 16, 2012, the Defendant wrote to the Plaintiff to report that, after having reviewed all of the material provided by the Plaintiff, including all medical records, litigation documents, and transcripts from examinations for discovery, Dr. Khan was of the opinion that the Plaintiff had no case against the defendants in the Nelson House action.

[19] The Defendant advised the Plaintiff as follows:

… given the fact that Dr. Khan believes you already had Tuberculosis before you were even a resident of Nelson House, the case cannot succeed.

In light of all of the above, I would ask for your instructions to discontinue this action and to seek a dismissal of the action on a without costs basis, meaning that you will not be required to pay legal costs to Dr. Jessamine or Nelson House. Quite frankly, I believe that this is in your best interest. To continue to pursue this claim in the face of Dr. Khan’s strong opinion is unwise. I certainly have no intention of continuing on your behalf in this case, given Dr. Khan’s opinion.

[20] The Defendant enclosed a Direction for the Plaintiff to sign authorizing him to discontinue the action and seek a dismissal on a without costs basis.

[21] The Plaintiff did not respond to the Defendant’s letter, despite a second copy being sent to her by email on June 6, 2012. On August 3, 2012, the Plaintiff complained to the Defendant that he should not have retained Dr. Khan as an expert because he was in a conflict of interest situation. He was a colleague of Dr. Valerie Sales, another expert in the field of Infectious Diseases, and the Plaintiff had consulted Dr. Sales in Toronto on an earlier occasion to get a second opinion. Dr. Sales, like Dr. Khan, had found no fault in Dr. Jessamine’s care of the Plaintiff.

[22] From May to August 2012, the Plaintiff refused to respond to the numerous emails and letters sent to her by the Defendant asking for a response to his May 16, 2012 letter. Nevertheless, during this period, the Plaintiff sent various communications to a senior partner at Thomson Rogers complaining that the Defendant had not done anything for months and, more particularly, that he had not brought motions on her behalf to deal with the unethical behaviour of the court staff and to request a change to the order of James J. regarding her mental capacity assessment.

[23] On August 9, 2012, the Defendant sent a letter to the Plaintiff setting out the chronology of events from May 2011 to date, again urging her to give him instructions to have the Nelson House action dismissed on a without costs basis. He advised the Plaintiff that the Nelson House action had been dismissed by the Registrar due to delay – something that had taken the Defendant by surprise since there was no previous warning that this would occur. The Defendant had advised counsel for the defendants in the Nelson House action that he would be bringing a motion to set aside the administrative dismissal. The defendants’ counsel advised in turn that they would be opposing the setting aside of the dismissal and would also be bringing a motion for summary judgment against the Plaintiff to bring the Nelson House action to a final close. The Defendant closed the lengthy letter by stating:

My obvious concern is that we will lose the motion for summary judgment because there is simply no expert opinion supporting our case. In the absence of such an opinion, the defence motion will, in all likelihood, bring this matter to a close. If the defence is successful in their motion, which I believe they will be, then they will be entitled to costs against you personally. I do not believe that you want this outcome. As such, I reiterate and restate my advice to you that you agree to a dismissal of this matter on a without costs basis, meaning that you discontinue the matter and will not be required to pay the legal costs of the defence.

[24] The Plaintiff and Defendant met on August 10, 2012 during which time the Defendant reiterated the same messages included in his earlier letter. The Plaintiff’s focus was on Dr. Khan having a conflict of interest and her wanting another expert opinion.

[25] On September 12, 2012, the Plaintiff requested the return of her original records. They were forwarded to her by the Defendant on November 8 and 22, 2012.

[26] Meanwhile, the Defendant had notified LawPRO of the administrative dismissal of the Nelson House action. LawPRO lawyers were able to get the dismissal set aside on consent. An order to this effect was entered in December 2013. Once the action was reinstated, the Defendant was removed as solicitor of record for the Plaintiff.

[27] 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 the Nelson House action. 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. Dr. Ferland was also retained to do an updated report. On March 11, 2015, he reported that there was no evidence of incapacity on the basis of intellectual impairment. With regard to the possibility of mental illness impeding decision making capacity, the evidence was inconclusive, leading him to deem the Plaintiff capable both to self-represent and to instruct legal counsel based on the presumption of capacity.

[28] The stay of the Nelson House action pursuant to the order of James J. dated October 12, 2011 was lifted by order of Master MacLeod following a case conference on September 23, 2015.

[29] Meanwhile, on August 8, 2014, the Plaintiff commenced this action against the Defendant seeking (and I am quoting):

(a) damages in the amount of $600,000.00 for inflicting unnecessary emotional, physical pain and financial damage, and for loss of income and gainful opportunities;

(b1) special damages in the order of $500,000.00 to be accounted for and to be disclosed prior to trial;

(b2) aggravated damages in the amount of $100,000 against the defendant for failure to act ethically and breach of trust, and trying to cover it up causing untold mental distress, grief, humiliation, indignation, anxiety, fear, wounded pride, damaged self-confidence or self-esteem;

(c) punitive damages in the amount of $250,000.00 against the defendant to strongly denunciate and deter them from such egregious abuse of Canadian citizens, including a pulmonary tuberculosis patient, in need of protection. This punitive damage should send a strong message of deterrence to the defendant and high-handed conduct against Canadian citizens including client pulmonary patient.

[30] On March 2, 2015, the Defendant filed a Statement of Defence denying all liability.

[31] Master MacLeod ordered that both the Nelson House action and this action proceed on the basis of a common timetable. At the case conference on September 23, 2015, Master MacLeod ordered that summary judgment motion in this matter be heard on February 18, 2016, immediately following the summary judgment motions in the Nelson House action.

Law on Motions for Summary Judgment

[32] 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]

[33] 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.

[34] 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.

[35] 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.

[36] 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.

[37] I note that the Plaintiff filed no affidavit directly relevant to this action in response to the Defendant’s motion for her action to be dismissed. Nor did she cross-examine the Defendant on his affidavit.

Analysis

[38] The Plaintiff has not provided any evidence to support her claim that the Defendant in some way caused her any damage or harm – be it physical pain, emotional distress, or financial loss.

[39] The Plaintiff has not provided any evidence to support the assertion that the Defendant did not live up to his professional obligations to her; in other words, that he acted negligently, in breach of trust, or in contravention of a contract between the two of them. She has produced no expert report from a qualified legal expert to support any of her claims of wrongdoing on the part of the Defendant.

[40] The Defendant provided a detailed affidavit, with numerous exhibits, setting out the chronology of events, the professional undertakings that he gave to the Plaintiff, and the steps he took to meet those professional responsibilities. The exhibits in the form of letters and emails to the Plaintiff confirm: (1) that the Defendant repeatedly told the Plaintiff that her case was a very difficult one with minimal chance of success; (2) that he would not become her solicitor of record until he had in his possession the report of a medical expert supporting her claims; (3) that he was having difficulty finding a medical expert willing to review all of the materials and provide an opinion; and (4) that if he could not get a positive medical report on her behalf, he would cease to be involved on the file.

[41] The Defendant cannot be faulted because he had difficulty finding a medical expert willing to review the Plaintiff’s file. Similarly, the Defendant cannot be faulted because the one expert who agreed to review the extensive file provided an opinion unfavourable to the Plaintiff’s claims. It is important to note that after the passage of eight years and the involvement of at least eight lawyers, the Plaintiff still does not have a report from a medical expert qualified to testify in Ontario that is supportive of the Plaintiff’s claims of wrongdoing against the defendants in the Nelson House action.

[42] In her Statement of Claim, the Plaintiff claims that the actions (or inactions) of the Defendant caused her health to deteriorate, and caused her anxiety, distress, grief and humiliation. There is no medical report to support this allegation.

[43] The Plaintiff also claims that her income and income potential have suffered as a result of the Defendant’s behaviour. Again, no evidence has been provided as to what the Plaintiff’s income was prior to her meeting the Defendant and what, if any, changes to her income occurred after 2011. Even if her income decreased over the last five years, where is the evidence that this can be attributed in whole or in part to any wrongdoing on the part of the Defendant?

[44] The one fact not in contention is that the Nelson House action was dismissed for delay by the Registrar on April 12, 2012 – at a time when the Defendant was solicitor of record for the Plaintiff in that action. For several reasons, this event cannot found a claim in damages against the Defendant.

[45] First, in my view, the Nelson House action should not have been dismissed for delay by the Registrar at a time when the action had been stayed by order of James J. pending completion of a mental capacity assessment of the Plaintiff. Put quite simply, the passage of time that would have justified an administrative dismissal for delay was stopped by the stay. As well, I note that under r. 48.14(8), r. 48.14(1) authorizing the Registrar to dismiss an action for delay does not apply if, at the time the Registrar would otherwise be required under that subrule to dismiss the action for delay, the plaintiff was under a disability. In r. 1.03(1) “disability” includes a person who is mentally incapable within the meaning of s. 6 or s. 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 in respect of an issue in the proceeding, whether the person has a guardian or not. Under s. 6 of the Substitute Decisions Act, 1992:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[46] As of April 12, 2012, Dr. Ferland had found that the Plaintiff was unable to represent herself because she “did not demonstrate a reasonable understanding of the facts in her case” and she “failed to demonstrate any reasonable appreciation for the possibility that she might not win her case and have to pay costs”. In my view, this assessment brings the definition of “disability” in s. 6 of the Substitute Decisions Act into play and supports the conclusion that the Registrar should not have dismissed the Nelson House action for delay under r. 48.14(1). The Defendant was not at fault for not realizing a dismissal was imminent.

[47] Second, even if the Defendant was in the wrong in some way regarding this dismissal, there is no evidence that the dismissal caused any delay in the Nelson House action. The action was already stayed, and would remain stayed until the Plaintiff had been reassessed and found capable to instruct counsel or represent herself. The reassessments occurred only during December 2014 and March 2015, and the stay was not lifted until September 2015. By this time, the Nelson House action had already been reinstated.

[48] Third, even if the Defendant was in the wrong in some way regarding the dismissal, there is no evidence that the dismissal caused any financial loss to the Plaintiff. As soon as the Defendant became aware of the administrative dismissal of the Nelson House action in July 2012, he notified LawPRO of the possibility of a claim against him. By December 2013, LawPRO had succeeded in having the action reinstated on the consent of the defendants. That was accomplished at no expense to the Plaintiff. In this regard, I note that no aspect of any cost award made against the Plaintiff in the Nelson House action relates to any costs incurred by the Defendants in regard to the reinstatement of that action.

Disposition

[49] The Plaintiff was obliged to put her best foot forward on this motion for summary judgment and lay out the evidence that would be available to support her claims if this matter were to proceed to trial. She has failed to do that. Based on the Defendant’s evidence and the corresponding lack of evidence tendered by the Plaintiff, I conclude that the Plaintiff’s claim against the Defendant has no possibility of success were a trial to be held. That being the case, the Defendant’s motion for summary judgment is granted and the Plaintiff’s action against the Defendant is dismissed.

[50] It is such a shame that the Plaintiff was incapable of accepting the advice of the Defendant, as clearly set out in his letter to her of May 16, 2012, that it would be in her best interest to try and have the Nelson House action discontinued or dismissed on a without cost basis. The Plaintiff was likely given this same advice by one or more of the lawyers who had been advising her earlier on in the proceedings. She is now facing significant costs awards in the Nelson House action – just as the Defendant had predicted – with costs still being an outstanding issue in this action.

Costs

[51] The Defendant is seeking costs against the Plaintiff on a substantial indemnity basis. The Defendant shall make written submissions on costs on or before March 15, 2016. The Plaintiff shall have until March 31, 2016 to make responding submissions. Each party’s submissions shall be no longer than five pages, exclusive of any offers to settle.

Aitken J.

Released: February 29, 2016

CITATION: Rahsepar v. Mladenovic, 2016 ONSC 1438

BETWEEN:

SIMINTAJ RAHSEPAR

Plaintiff

– and –

ALEKS MLADENOVIC

Defendant

REASONS FOR JUDGMENT

Aitken J.

Released: February 29, 2016