Court File and Parties
COURT FILE NO.: 09-CV-375363 Heard: April 29, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cerquiera v. Bridgepoint Health et al.
BEFORE: Master Joan Haberman
COUNSEL: Setrakian, S. for the moving party Helen Cerqueira, on her own behalf
Reasons
Master Haberman:
[1] The defendant, K & S Temporary Medical Services Inc. moves to strike the Fresh as Amended Statement of Claim in this action. The pleading was amended on January 22, 2016, pursuant to my order of September 10, 2015. This is the 6th pleading motion in the life of this action.
Context
[2] The motion arises in the context of a claim against 9 entities that appear to provide or oversee long term care in this province. The plaintiffs’ involvement with these entities flowed from Mr. Cerquiera’s (now deceased) stroke in April 2002, which left him partially disabled. In July of that year, he was released from hospital to the care of his wife and daughter. Long term care organizations were then charged with assessing his needs and addressing them in the context of what is publicly available until his death in August 2009.
[3] Ms. Cerqueira, who has been handling the litigation for her late father’s estate, herself and her mother, is no stranger to our court. Having commenced this action in 2009, she has been to court no fewer than 10 times, five times dealing with deficiencies in the plaintiffs’ pleading. As I note in my last Endorsement, she is well-educated and articulate. She appeared to understand concepts when they were discussed in court and she seemed to grasp the nature of the court’s concerns. Her questions showed insight and her responses suggested she understood and accepted what she was advised.
[4] Despite that, it is now more than 7 years since the claim was issued and the action remains in limbo as Ms. Cerquiera’s multiple attempts at getting a workable pleading has yet to succeed. As I made clear in court last day and in my Endorsement, that Endorsement represented a “last chance order”. Considerable time was spent in court, explaining to Ms. Cerqueira why her pleading was not workable. I also went into great detail in that Endorsement, explaining what had to change, why that was the case and how she should go about correcting these problems.
[5] As I noted:
In view of the history of this proceeding and my decision to strike the claim with leave to deliver a Fresh Statement of Claim, this is a “last chance” order. As a result, I wanted to ensure that this time, the court’s comments regarding the problems with the pleading were addressed to the plaintiff directly, in open court, with an opportunity for her to clarify her objective and for the court to make it clear why she would not be able to do so on the basis of the current version.
In all, two hours of court time was used for this exercise. The plaintiff was asked to speak up if there was anything I was saying that she did not comprehend and she did, from time to time. It was then explained to her in a different way. I therefor take some comfort from the process when declaring this to be a “last chance” order. The court has now done everything it can to alert the plaintiffs, not only to the problems with their pleading but also to what they must do if they wish it to stand. They have also been told repeatedly that they expose themselves to significant cost orders if they fail to heed what they have been told.
[6] My endorsement came on the heels of 4 earlier efforts to explain the Rules of pleading to Ms. Cequiera and to garner her compliance with them. The first motion to strike came before Strathy J., as he then was, in June 2010. He struck out certain portions of the action in their entirety, as well as other parts, with leave to amend. In doing so, he provided the plaintiffs with a detailed explanation of the Rules of pleading, in essence, a guide they could follow.
[7] In his Reasons of July 14, 2010, which run for 20 pages, he noted that the version of the pleading before him was:
…a jumble of complaints, some of them recognized by law and some of which are not. These complaints are, in many cases, not asserted as elements of proper causes of action supported by material facts going either to liability or damages. It is almost impossible to do anything other than guess about the nature of the plaintiffs’ complaints against them. As expressed above, defendants are not required to do this. They are entitled to know the case against them.
[8] Justice Strathy also referred to the expired presumptive limitation period and pointed out the dangers of including so many defendants in the action. He indicated that this would increase the complexity and, hence, the costs of the action.
[9] In response, Ms. Cerquiera filed an amended statement of claim, which remained non-compliant with the Rules of pleading. It came before Master Abrams in March 2012 and on June 5, 2012, she held that the drafting problems remained so extensive and so fundamental that the pleading could not stand. The claim was struck with leave to deliver a Fresh as Amended Statement of Claim. Instead, an Amended Amended claim was filed.
[10] The third and fourth attempt to get this right both came before Master Muir, first in June and then again in December 2014. On both occasions, he struck the claim with leave to amend. The fifth attempt was before me.
[11] I began my last Endorsement last day by indicating that:
Two hours of court time was spent today, reviewing the claim, with defence counsel’s assistance, to explain to the plaintiff that the current version of the claim was still unsatisfactory, why that was the case and how she could improve it. I have also invested considerable time crafting an endorsement to ensure that everything I said in court was available for her as a frame of reference. Though it is not my task to draft pleadings for parties, I am hopeful that this approach will result in the plaintiff finally understanding what is required as regards the pleading so that this 2009 action can begin to move forward.
[12] Unfortunately, it appears that my guidance and optimism did not suffice to get this new pleading off the ground. It remains replete with problems and is fundamentally unworkable. Despite the guidance provided by Justice Strathy almost 6 years ago, and by myself and by two other masters, the current version of the claim still falls below an acceptable level of what is acceptable. It is still almost impossible to do anything other than guess about the nature of the plaintiffs’ complaints against [each defendant].
The New Pleading
Overall comments
[13] Using Justice Strathy words, the pleading remains a jumble of complaints. Although a section has now been devoted to each of the defendants, the allegations against each are identical so none of the defendants is any further ahead in understanding the case against them. Some, but not all, of the defendants revisited later in the pleading, where more wrong doings are alleged. This is an organisable nightmare at best.
[14] The plaintiffs have gone into some detail when discussing particular incidents, but have failed to put those incidents in context. There is still no clear assertion as to what duties each of these entities had vis a vis the plaintiffs; what basis there is for asserting the existence of these duties; how, when and by whom they were breached; in what manner they were breached; which of the plaintiffs sustained damages and what form that damage took.
[15] Instead, there are complaints that PSW’s failed to identify themselves unless asked to do so; that PSW’s refused to take “orders” from Ms. or Mrs. Cerquiera as they were not “the client”, but that the PSW’s never spoke to the deceased client. Lists of the deceased’s needs are set out in the pleading but there is little reference to the nature or extent of services the governing legislation required or authorized the defendants to provide. Mrs. and Ms. Cerquiera appear to have issues with having been expected to assist the sole PSW provided for only one hour per day, the main task being to bath the deceased but they don’t explain why this was not something they anticipated or how they expected the PSW’s to manage on their own.
[16] The claim of discrimination based on age, disability, ethnic origin and family status remains in the claim, though I made it clear to Ms. Cerquiera last day that the document she relied for support in this regard was not intended to be used in this way. After some discussion at that time, it became clear that the claim in this regard was based on Ms. Cerquiera’s view that the defendant agencies had taken advantage of the fact that, as the Cerquieras were a close knit family Catholic family, they would step in to help the deceased, reducing the work the defendants had to do. Despite our discussion about why that did not amount to discrimination, this claim remains.
[17] There are also allegations of fraud and misrepresentation without a factual foundation, though the Rules require a greater level of particularity in a pleading that raises these issues.
[18] One again, as in earlier versions of the pleading, the pleading discusses complaints made by the defendants about the plaintiffs, rather than focusing on what the defendants were legally obliged but failed to do.
Damages
[19] After having been told repeatedly that the plaintiffs must particularize their damage claims and put a dollar value to the damages sought in the pleading, paragraph one of their pleading finally has numbers. A separate amount, ranging from $500,000 to $10 million, has been claimed against each of the defendants, for a grand total of $23 million. These amounts have been claimed by the plaintiffs, globally - no distinction has been made among them. There is also no indication in the pleading as to what these numbers represent – are they general or special damages, damages under the Human Rights Code or something else?
[20] This paragraph fails to indicate what each plaintiff claims, from whom and why. It is clear the nature of their claims vary. For example, one is now deceased and was disabled at the time of these events so clearly, the estate has no claim for lost income, while both women focus on physical ailments they sustained as a result of their role in assisting the deceased. This is not a claim the estate would share.
[21] The plaintiffs return to the issue of damages at the end of the pleading, in paragraph 89. This paragraph must be read in context – the deceased was deemed entitled to only one hour of care per day, first for only two days, then for up to 5 days per week. There is no indication that that level of care was questioned while it was being received. With that in mind, the claims are extreme and appear to be relate to the totality of the plaintiffs’ experience in having to deal with an infirm loved one, as opposed to issues caused by the defendants.
[22] The estate claims for depression, edema, clots and pain in stoke-affected limbs. The claim extends to the deceased having sustained a leg infection and ultimately, to his demise from C Difficile contracted while in hospital, allegedly as a result a prolonged hospital stay caused by some of the defendants.
[23] Mother and daughter claim that this experience has left them burned-out. They claim the deceased felt like a dead corpse and they felt like his personal servant. Mrs. Cerquiera speaks of having developed arm strain, increased back pain, leg pain and poor posture, and claims that her balance has been affected and that she has experienced falls, stress and a weakened immune system. Her daughter has similar complaints, but also claims for loss of income, claiming she was unable to work without proper services in place for her father. She also claims loss of enjoyment of life from having been repeatedly lied to and exploited in the privacy of the Plaintiffs’ home.
[24] A review of the basis for the damages being claimed suggests that the plaintiffs were of the view that the deceased was entitled to considerably more, in terms of both the nature and the extent of the care provided to him by the defendants. However, the plaintiffs do not articulate in the pleading if this position is based on an alleged deficiency in what Ministry of Health long term care legislation provides for or a failure on the part of the defendants to provide the full range of services they were required to make available to the deceased under the operative statute(s).
[25] If the former, there is no basis for this claim to be made now, as HMQ has already been struck from the pleading by Justice Strathy about six years ago. If the latter, the basis for the position remains a mystery.
New Claims, No New Defendants
[26] In paragraph 73 of the pleading, the plaintiffs introduce a discussion about their dealings with the Health Service Appeal and Review Board in 2008 and 2009. By paragraph 80, they are alleging that this body acted negligently, though they are not a defendant to this action and the applicable limitation period to add them has long since expired.
[27] Similarly, in paragraph 81 and 82, the plaintiffs make an assortment of allegations against the Toronto Western Hospital. These include fraudulent concealment by the hospital and its physicians, though none of the doctors or the hospital are parties to this proceeding. At some point last day, Ms. Cerquiera indicated that she had commenced a separate proceeding against the hospital.
Conclusion
[28] I have provided only a smattering of examples of the remaining and the new problems with this pleading above. At the end of the day, despite considerable assistance from this court by 4 members of the Bench over a lengthy period of time, the pleading still fails to meet the requisite level of clarity, organization and specificity. It remains a jumble of complaints.
[29] I am not unsympathetic to the plaintiffs’ plight. With only one hour of assistance 5 times per week, these women clearly had no respite. It is not surprising that having to cope with full time care of their husband/father led both to suffer from physical and emotional difficulties.
[30] This case highlights one gap in our publicly-funded support network. Put simply, as the system is publicly funded, it is up the government of the day to assess its priorities, establish a budget that meets those priorities and then provide the funding for it from tax dollars. There are many worthy areas competing for the same tax dollars so there are and will always be gaps. Although long term care is certainly one of them, more so as many of us move into a stage of life where afflictions of this nature become more common place, this is the health care system we have in place at present and what the government of the day has determined we can afford.
[31] The question for this court is whether the current version of the pleading, after so many versions, clearly sets out why any of this lies at the feet of these defendants, and if so, on what basis. The answer is that it still does not do so.
[32] The plaintiffs are self-represented parties and have been given the benefit of the doubt for seven years. As I made it abundantly clear last day what the problems were and how to correct them, and as my last order was a “last chance” order, as I explained to Ms. Cerquiera at that time, I am of the view that at this stage, the claim should be struck without leave to amend. I have arrived at this conclusion based on all of the above and my view that further effort on the part of the plaintiffs to come up with an acceptable pleading will not provide a satisfactory result.
Costs
[33] I have reviewed the cost outline of the moving defendant and find that the rates charged and hours spent are both reasonable. I therefore order the costs of the motion, fixed at $2,093.87, payable to K & S Temporary Medical Services Inc. within 60 days.