CITATION: Tuan v. Bachus and Dayan, 2016 ONSC 2292

COURT FILE NO.: CV-11-421765

DATE: 20160405

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tuan Cao-Huu, Plaintiff

– AND –

Debra Bachus and Willy Dayan, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Tuan Cao-Huu, in person

Julia Lauwers, for the Defendants

HEARD: April 4, 2016

ENDORSEMENT

[1] The Notice of Motion states that the Plaintiff brings this motion for “leave to appeal to the Supreme Court for Charter violation and breaches.”

[2] Although the Plaintiff is unclear precisely what section of the Charter has been violated or what right was breached, I take it that what he complains of is a denial of his right to fundamental justice. He states that in a ruling at a Status Hearing on December 16, 2014, Master Glustein (as he then was) violated his constitutional rights by holding inadmissible an affidavit submitted by the Plaintiff which set out in some detail proceedings held by the Royal College of Dental Surgeons of Ontario (the “College”).

[3] The short answer to the Plaintiff’s motion is that this Court does not have jurisdiction to grant leave to appeal to the Supreme Court of Canada, whether for a Charter violation or for any other type of claim. However, I have heard the Plaintiff and given him leeway to argue his case in an effort to understand whether there may be some substance to his contention of injustice despite the fact that the procedural route he has requested is not possible for me to grant.

[4] The underlying case is a dental malpractice claim. The Master ordered that the Plaintiff’s references in his affidavit dated November 4, 2014 and inclusion of documents relating to disciplinary proceedings at the College are not admissible in a civil proceeding. Section 36(3) of the Regulated Health Professions Act (RHPA) makes that explicitly clear.

[5] I understand from the submissions of Defendants’ counsel and from the material before me that the Plaintiff was advised well in advance of the hearing before the Master that the Defendants were taking the position that his affidavit is inadmissible. The Plaintiff has expressed that he feels that his rights were undermined by the fact that the Master gave a ruling on the spot after a short hearing. However, the Master was not only quick in his ruling, he was correct.

[6] There are sound policy reasons for not permitting the record of proceedings at the College to be admissible in a civil proceeding – not the least of which is that this encourages a full exploration of the issues at the College hearing. The Ontario Court of Appeal stated in M.F Sutherland, 2000 5761 (ON CA), [2000] OJ No 2522 that, “…those complaints [to the College] 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.”

[7] Under Rule 37.02(2) of the Rules of Civil Procedure, the Master had jurisdiction to decide the issue of the admissibility of evidence contained in an affidavit for use on a hearing, including a Status Hearing. I see no error made by the Master in excluding the Plaintiff’s affidavit.

[8] Likewise, I see no Charter violation in the Master’s ruling. The Plaintiff was afforded all of the procedural rights that civil litigants are entitled to receive, including notice of the hearing, notice of the Defendants’ position, and an opportunity to make both written and oral submissions. He was provided with copies of the Defendants’ motion materials and submissions, and was permitted to respond orally to Defendants’ counsel at the hearing before the Master. His rights of fundamental justice were not violated at the hearing on December 16, 2014.

[9] The Plaintiff also asserts that his equality rights under the Charter were somehow violated by the Master’s ruling at the hearing. I confess that I do not understand this submission. The Plaintiff has identified no enumerated or analogous ground of discrimination under section 15 of the Charter on which this alleged discrimination was based. He was treated exactly like every other litigant under the Rules of Civil Procedure who comes before a Master on a Status Hearing.

[10] Counsel for the Defendants submits that this motion is, in effect, an attempt to appeal the Master’s order. I tend to agree with her. The Plaintiff handed up to me at the hearing a second affidavit which he said he would like to file in the record to replace the one that Master Glustein rejected. That affidavit is not particularly relevant to the issues at either a Status Hearing or on this motion. It mostly argues the merits of the Plaintiff’s dental negligence claim against the Defendants.

[11] Under Rule 62.01(2), an appeal from an interlocutory order of a Master must be contained in a notice of appeal and served within seven days after the making of the order appealed from. The first indication given by the Plaintiff that he intended to pursue this motion, which is an appeal in all but name, was when he delivered a Notice of Constitutional Question to Defendants’ counsel on March 4, 2015 – some 3 months after the Master’s ruling.

[12] It has now been over two and a half years since the Master’s ruling. I am advised by counsel for the Defendants that twice before now the motion adjourned due to the Plaintiff’s failure to file materials. The Plaintiff himself advised me at the hearing that he is afraid to file any materials for fear that he will be in violation of the Master’s order not to reference the proceedings before the College.

[13] The Plaintiff also complains that he has been unable to obtain transcripts from the hearing before the Master, and has asked for my help in obtaining them. I do not understand why he needs those transcripts, although he seems to be of the view that they will serve some important evidentiary purpose. It is, however, not for the judge to put together whatever evidentiary record a party thinks will help his case. It is for the parties to compile the record and for the judge to then evaluate the evidence that the parties submit. I do not know what exactly the problem is with obtaining the audio recording of the hearing, but I cannot produce for the Plaintiff the materials he needs to compile the evidentiary record; he must obtain that on his own from the court office.

[14] I find that there are no breaches of the Plaintiff’s Charter rights in the ruling by the Master regarding the admissibility of the Plaintiff’s affidavit. The Master was correct in law and in procedure. Further, the Plaintiff is out of time to appeal the Master’s ruling, and he has presented no valid reason for an extension of time.

[15] At the hearing before me, the Plaintiff said several times that he just wants to be able to proceed to trial. He also said repeatedly that he needs to obtain the audio recording of the Masters motion in order to be able to proceed. I fail to see how the audio transcripts of a Masters motion will be relevant to a trial, and the Plaintiff has not been able to explain this position. In any case, the Status Hearing is still pending since the Master’s ruling in 2014. It still needs to be reconvened. If the Master presiding at that hearing permits the action to move forward, the parties will proceed with documentary and oral discovery and ultimately move the matter ahead to trial.

[16] The Plaintiff also requests that he be able to file material directly with me rather than through the usual civil court process. He may not do so. I am not seized of this matter beyond the motion presently before me.

[17] Accordingly, the motion is dismissed.

[18] Counsel for the Defendants requests costs in the amount of $6,853.54 on a partial indemnity basis. She has provided me with a Costs Outline that demonstrates that the time invested in responding to this motion was substantial The Defendants have filed responding motion materials, a factum, and a substantial brief of authorities. The motion itself has consumed several hours of court time. The amount sought by the Defendants is reasonable.

[19] That said, the Plaintiff has indicated that he has some economic difficulties, in particular with respect to a son with health problems that has caused him financial distress. Costs, of course, are discretionary under section 131 of the Courts of Justice Act. Rule 57.01(1)(0.b) directs me to take into account the amount of costs that a party might reasonably expect to incur. I am not convinced that the Plaintiff understood in bringing this motion that he would be exposing himself to the level of costs sought by the Defendants. Accordingly, I will exercise my discretion to award the Defendants half of what they seek in costs.

[20] The Plaintiff shall forthwith pay the Defendants a total of $3,426 in costs, inclusive of disbursements and HST.

Morgan J.

Date: April 5, 2016