CITATION: Noddle v. The Attorney General of Ontario, 2016 ONSC 1826

COURT FILE NO.: CV-16-546628

DATE: 20160314

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DARREN ROSS NODDLE, Plaintiff

AND:

THE ATTORNEY GENERAL OF ONTARIO, THE MINISTER OF HEALTH, Defendants

BEFORE: F.L. Myers J.

READ: March 14, 2016

ENDORSEMENT

[1] The Attorney General of Canada has asked the registrar to refer this matter to the court under Rule 2.1.01(6). The plaintiff has served the office of the federal Minister of Health for the second named defendant.

[2] The statement of claim advances a claim for medical malpractice arising from the plaintiff’s arrest, criminal conviction, and incarceration in British Columbia. The plaintiff’s allegations are not well-delineated so it is difficult to tell on the face of the pleading which defendant may have been involved in which allegations. Moreover, it is clear that some of the allegations, such as the allegations concerning the conduct of the criminal proceeding are not properly addressed in a medical negligence action if at all in civil proceedings.

[3] Counsel for the Attorney General has delivered submissions on notice to the plaintiff contrary to the practice under Rule 2.1. Covenoho v Ceridian Canada, 2015 ONSC 2468. It has done so, it seems, in order to try to provide unsworn evidence to explain the limited role of the federal government in the facts alleged. It also refers to a similar case brought by the plaintiff in the Federal Court of Canada. Assuming, without deciding, that I am entitled to look at a pleading before a different court that is submitted on an unsworn basis, doing so does not help me resolve the issues in this case. This is not a motion under Rule 21.01(c).

[4] While it is apparent that the statement of claim needs work, I cannot say that a claim for the failure of a government to provide medical care to a prisoner is necessarily frivolous. Moreover, it seems to me that there may be a Charter remedy being sought and that too is not on its face frivolous. Moreover, nothing on the face of the pleading shows the plaintiff to be a litigant who is likely to inflict frivolous proceedings on the defendants merely be participating in a motion or motions to strike under Rules 21 or 25. Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733.

[5] I decline to direct the registrar to send notice in Form 2.1A to the plaintiff. This decision is wholly without prejudice to whatever pleadings motions the defendants may choose to bring if so advised. No costs.

F. L. Myers, J.

Date: March 14, 2016