Court File and Parties
COURT FILE NO.: CV-16-1850 DATE: 20170328 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rory Adrian Van Sluytman, Plaintiff AND: Dr. Charles Francis Brewster, Defendant
BEFORE: The Honourable Justice J. Di Luca
COUNSEL: Rory Adrian Van Sluytman, in person, for the Plaintiff Shauna K. Powell, Counsel for the Defendant
HEARD: In writing
Endorsement
[1] On January 24, 2017, Counsel for the defendant wrote to the Registrar of this Court requesting that the Court consider exercising its authority under Rule 2.1.01 of the Rules of Civil Procedure to dismiss this proceeding as frivolous, vexatious or otherwise an abuse of the Court’s process. On January 26, 2017, I issued a brief endorsement directing the Registrar to provide the Plaintiff notice that the Court was considering making such an Order. I invited the Plaintiff to make written submissions explaining why the Court should not make such an Order. That notice was issued on January 27, 2017. On February 6, 2017, the Plaintiff served his submissions on the defendant and on February 17, 2017, those submissions were filed with the Court.
[2] The same process was followed in two separately commenced but related actions; Van Sluytman v. How-Chi Lam, CV-16-1849 and Van Sluytman v. Rodway-Norman, CV-16-1848.
[3] I have considered the Plaintiff’s written submissions and have decided that this action is frivolous and vexatious and should be dismissed.
[4] I have also decided that the other actions noted in paragraph two are also frivolous and vexatious and should be dismissed. For ease of reference and given that the issues to be determined are the same, I will use this Endorsement as my main set of reasons and will issue brief Endorsements in the other two matters simply adopting the analysis here. The three Endorsements should be read together.
Background
[5] The Plaintiff has commenced many actions. I understand that eleven have been commenced in Bracebridge, one in Oshawa and at least five in Barrie. A number of these actions have been the subject of a similar review conducted by my colleague Wood J., who on January 23, 2017 released eleven Endorsements dealing with the various actions in Bracebridge. In eight of those Endorsements, the actions were dismissed as being frivolous and/or vexatious. Three of the eight actions that were dismissed related to incidents that took place on May 26-28, 2010 when the Plaintiff was involuntarily detained in hospital, see Van Sluytman v. Department of Justice (Canada), 2017 ONSC 481, Van Sluytman v. Shearing, 2017 ONSC 465 and Van Sluytman v. Muskoka Algonquin Healthcare, 2017 ONSC 458.
[6] On an earlier occasion, I issued an Endorsement dismissing an action also involving the events of May 26-28, 2010, see Van Sluytman v. Orillia Soldiers’ Memorial Hospital, 2017 ONSC 692.
This Action
[7] This claim also relates to the Plaintiff’s involuntary detention at the Orillia Soldiers’ Memorial Hospital on May 26 -28, 2010. Specifically, the Plaintiff seeks damages relating to a period of time when he was detained pursuant to a form under the Mental Health Act. The Plaintiff also seeks compensation for violations of his privacy rights and Charter rights.
[8] The Plaintiff alleges that Dr. Brewster was negligent, incompetent and biased in his involvement with the issuance of a Form 42 under the Mental Health Act and seeks $750,000 in compensation. He further alleges that Dr. Brewster violated his ss. 2, 7, 8, 9, 19, 11(a), 11(b), 11(d), 11(g), 12, 15 and 26 Charter rights. He seeks $500,000 in compensation for each act that violated his Charter rights. He also alleges violations of the Personal Health and Information Protection Act, the patient’s rights policy of the Bracebridge Hospital and the practice guide issued by the College of Physicians and Surgeons which details the expectations of doctors providing health services.
[9] The statement of claim does not contain a “concise statement of the material facts on which the party relies” as required by Rule 25.06(1) of the Rules of Civil Procedure. Rather, the statement of claim for the most part merely lists the various claims made without any recitation of material fact, other than a reference to an affidavit, submissions and other materials that are to be provided. Where facts are included, it is difficult to discern what the precise nature of the legal complaint or alleged cause of action is.
[10] Rules 2.1.01 and 2.1.02 of the Rules of Civil Procedure permit the Court to dismiss an action or a motion where the Court finds that the action or motion is on its face frivolous, vexatious or an abuse of the Court’s process. In Gao v. Ontario WSIB, 2014 ONSC 6100, Myers J. reviews Rule 2.1.01 and provides the following guidance on its application:
Rule 2.1 is not meant to apply to close calls. It is not a short form of summary judgment. But that does not mean that it is not to be robustly interpreted and applied. Where a proceeding appears on its face to meet the standards of frivolous, vexatious or an abuse of process, the court should be prepared to rigorously enforce the rule to nip the proceeding in the bud. Rigorous enforcement of this rule will not only protect respondents from incurring unrecoverable costs, but should positively contribute to access to justice by freeing up judicial and administrative resources that are so acutely needed to implement the “culture shift” mandated by the Supreme Court of Canada. The new rule tailors appropriate procedural fairness for the category of cases involved and is an example of early resolution of civil cases that is very much in line with the goals set out in Hryniak, 2014 SCC 7, [2014] 1 SCR 87.
[11] The approach delineated by Myers J. was approved of by the Court of Appeal in Scaduto v. Law Society of Upper Canada, 2015 ONCA 733.
[12] A proceeding that is “frivolous” or “vexatious” is one which lacks a legal basis or legal merit, or has been commenced without reasonable grounds. Frivolous and vexatious proceedings are often identified by, among other features, their multiplicity and their use of rambling language which makes discerning a legitimate cause of action very difficult.
[13] In reviewing this claim, I consider the fact that the Plaintiff is self-represented and of low income. I am not holding his statement of claim to the standard regularly expected with material prepared by counsel. I have attempted to assess whether the claim reveals anything that could possibly be a genuine cause of action. Regrettably, the absence of any material fact makes this task essentially impossible. More importantly, the claim appears to misapprehend and mischaracterize the role the defendant was required to perform in relation to the Plaintiff. As articulated, the Plaintiff’s complaints about the defendant’s involvement with the Form 42 process do not reveal any plausible cause of action.
[14] As well, like the earlier claim I dealt with, this claim relates to the Plaintiff’s involuntary hospitalization in May of 2010. This claim was not issued until December 15, 2016. On its face, the claim is clearly outside the applicable limitation period and is therefore barred by section 4 of The Limitations Act. Perhaps in anticipation that this might be my finding on this issue, as it was in the earlier claim I dealt with, the Plaintiff addressed this issue in his written submissions.
[15] According to the Plaintiff, The Limitations Act is not applicable because of a Decision of the Consent and Capacity Board dated October 15, 2015. The Plaintiff submits that this decision gives rise to a discoverability issue that re-sets the limitation period clock. In particular, the Plaintiff argues that this decision led to his “discovery” of the fact that he had been found to be “capable” both with respect to treatment and admission, and this finding is what turn his “involuntary incarceration” into an “illegal act.”
[16] I disagree with the Plaintiff’s description of the Consent and Capacity Board decision. From my review of the decision, a copy of which was included in various motion materials filed, the Plaintiff sought to challenge the use of a Form 2 and subsequently a Form 1 under the Mental Health Act before the Consent and Capacity Board. The use of those forms resulted in the Plaintiff’s involuntary detention in May 2016, which is the subject of this and the related proceedings. Following a prehearing, the Consent and Capacity Board issued an “Order/Endorsement of the Board” noting that “No formal finding of incapacity with respect to treatment was made. No finding of incapacity with respect to admission was made at this time.” The Board noted that as a result there was no finding of incapacity to review, and therefore dismissed the application.
[17] At paragraph 5 of the Order/Endorsement, the Board noted:
Notably, Mr. Van Sluytman seems to be most concerned with his detention pursuant to a Form 2 and subsequent Form 1 in 2010. The Consent and Capacity Board has no authority to investigate or proceed with an application about either Form. Under the Mental Health Act, an application may be made where a person is currently subject to involuntary detention (a Form 3 or Form 4). That is not the case here.
[18] This Order/Endorsement suggests two things. First, the Plaintiff sought to challenge the propriety of his involuntary hospital detention before the Consent and Capacity Board. The core of his complaint before the Consent and Capacity Board is the same as the core of his complaint in this action, namely his perceived unlawful confinement in hospital in May 2016. On this issue, I note that the Plaintiff’s response reveals that he also commenced a complaint with the College of Physicians and Surgeons against this defendant in 2015, before he started the lawsuit. It appears that the complaint before the College is the same complaint advanced in these proceedings.
[19] Second, the nature of the claim was not “discovered” during the Consent and Capacity Board proceedings. The Board’s reference to the absence of a finding of incapacity does not translate into a finding that the use of the Form 2 and then Form 1 was improper. Rather, it is simply an observation of the fact that following the use of the Form 2 and the expiry of the Form 1, there was no finding of treatment incapacity and no finding of incapacity in relation to admission. These latter findings, if they had been made, would have been matters that could have been reviewed by the Consent and Capacity Board. The Board could not and did not make any decision regarding the lawfulness of the Plaintiff’s initial involuntary detention.
[20] Having carefully considered the Plaintiff’s submissions, I find that there is no merit to the discoverability claim. The Plaintiff has pursued many avenues seeking redress for the same issue, his involuntary detention in May 2016. Nothing new about the core of this complaint was discovered in the proceedings before the Consent and Capacity Board. I find that the reference to the proceedings before the Consent and Capacity Board is merely an attempt to avoid the application of an obvious Limitations Act issue.
[21] In my view, the action is frivolous and vexatious. It has no possibility of proceeding to a successful conclusion and it should not be allowed to continue.
[22] The action and any related motions are dismissed.