Court File and Parties

COURT FILE NO.: CV-17-584395

DATE: 20180516

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANTONIO CERQUEIRA, by his Estate Trustee, DEFINA CERQUEIRA and HELEN CERQUEIRA, Plaintiffs

AND:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, TORONTO CENTRAL COMMUNITY CARE ACCESS CENTRE, BRIDGEPOINT HEALTH, COTA HEALTH, CANADIAN BACK INSTITUTE (G) INC., VHA HOME HELATHCARE, EXTENDICARE (CANADA) INC., K. & S. TEMPORARY MEDICAL SERVICES INC. ALSO KNOWN AS S.R.T. MED-STAFF, CIRCLE OF HOME CARE SERVICES (TORONTO), REVERA INC., UNIVERSITY HEALTH NETWORK, DR. RODRIGO BRANDAO CAVALCANTI, DR. BOHDAN JULIUS LALUCK JUNIOR, DR. DMITRY ROZENBERG, DR. COURTNEY ANN THOMPSON, DR. MARISA SIT and DR. SHEILA BRAZEL, Defendants

BEFORE: Justice S. Nakatsuru

COUNSEL: Helen Cerqueira, Plaintiff, Self-represented Carole Jenkins, for the Defendant, Canadian Back Institute Colin Bourrier, for the Defendant, Her Majesty the Queen Andrea Wheeler, for the Defendants, Dr. Rodrigo Brandao Cavalcanti, Dr. Bohdan Julius Laluck Junior, Dr. Dmirty Rozenberg, Dr. Courtney Ann Thompson, Dr. Marisa Sit and Dr. Sheila Brazel

HEARD: April 24, 2018

Endorsement

[1] Sadly, Mr. Antonio Cerqueira died in hospital August 31, 2009, at the age of 86 years. He had a stroke in 2002 after which he got home care services. Understandably, the family has suffered from their loss. Both Mr. Cerqueira’s wife, Delfina, and his daughter, Helen, have a number of concerns about Mr. Cerqueria’s past care both at home and in the hospital. As Helen said to me, the core of those concerns is the lack of communication from those they have had to deal with in the health care system over her father’s care. Although this is not relevant on this motion, I wish to say that I do empathize with her concerns and recognize that theirs is probably not an isolated complaint. We all live in a world that is far from perfect.

[2] That said, there is a long history to this case. That is why the case is before me now. I will deal with each issue as argued by the moving parties. I do not intend to be lengthy in my reasons. The motion record pretty much speaks for itself. There are other decisions made by other judges in this case that also speak for themselves. These decisions are quite detailed.

[3] First of all, I will deal with the claims made against all the defendants except Dr. Sit and Dr. Brazel. I will deal with those defendants who have been represented on this motion by Ms. Wheeler separately and later in my reasons. It will become clear why when I do.

[4] So regarding the claims against all defendants except Dr. Sit and Dr. Brazel, these claims are an abuse of process and are dismissed. Essentially, these claims have been previously brought by the plaintiffs against the defendants. None of them got very far. The plaintiffs have appealed most of the dismissals. The appeals were not successful. This is a short summary of the prior proceedings:

• 2009 Action (CV-09-375363): Claim struck after multiple unsuccessful attempts to amend. No leave to amend granted.

• 2011 Action (CV-11-435274): Claim dismissed as statute-barred. Dismissal upheld at Divisional Court. Leaves to appeal to ONCA and SCC denied.

• 2015 Action (CV-15-532060): Claim dismissed without leave to amend as res judicata, an abuse of process, and statute-barred. Appeal to the Divisional Court dismissed as frivolous, vexatious and an abuse of process. A motion to set aside this order also dismissed.

[5] These prior claims are essentially the same as the ones before me. That is very clear from the pleadings and the decisions. These claims have been decided against the plaintiffs before. They are res judicata. There is no reasonable cause of action. I find it is an abuse of process to start these claims again as against these defendants. They are therefore dismissed without leave to amend.

[6] The second thing the defendants seek is an order under s. 140 of the Courts of Justice Act. This is an order that the plaintiffs cannot start another claim against the defendants without leave of the court. The defendants argue that the grounds for such an order are that the plaintiffs have persistently and without reasonable grounds started vexatious claims against them. I have already set out the history why the defendants want such an order. While I can see why they want such an order, I cannot give it on this motion. I do not have the jurisdiction to make such an order. The defendants must bring an application to get such an order. They cannot get such an order in a motion in an action. This is made clear in a case that I must follow. That case is Lukezic v. Royal Bank of Canada (2012), 2012 ONCA 350, 350 D.L.R. (4th) 111(Ont. C.A.).

[7] This brings me to the action against Dr. Sit and Dr. Brazel. In the statement of claim, this is a separate claim made regarding Ms. Delfina Cerqueria’s health. These claims have not been brought before in the previous actions. Dr. Sit and Dr. Brazel were not defendants in the previous actions. These actions have nothing to do with the care of Mr. Cerqueira. It is pleaded that Dr. Sit was Ms. Cerqueria’s ophthalmologist; that Dr. Sit performed cataract surgery to Ms. Cerqueria’s left eye on May 4, 2009; that Dr. Sit did not obtain informed consent from Ms. Cerqueira; that Dr. Sit committed battery; and that the Ms. Cerqueira suffered damages. It is pleaded that Dr. Brazel was also Ms. Cerqueria’s ophthalmologist; that Dr. Brazel performed laser eye and right eye cataract surgery on July 16, 2012, and November 29, 2012; that Dr. Brazel did not obtain informed consent from Ms. Cerqueira; that Dr. Brazel committed battery; and that Ms. Cerqueira suffered damages. While it is true, as Ms. Wheeler on behalf of these physicians argued, there may be defences to these actions, no statement of defence has yet been filed. I find these claims must be treated in a different fashion from the other claims.

[8] In my opinion, while there is a cause of action in battery as against Dr. Sit and Dr. Brazel, in the context of this statement of claim where the bulk of the claims against the other defendants have been dismissed with no leave to amend, the best course of action is to also strike the claims against Dr. Sit and Dr. Brazel with leave to amend. So that I am clear, the plaintiff, Ms. Delfina Cerqueira, can sue Dr. Sit and Dr. Brazel along the lines of what she has pleaded. She is not allowed to sue the other defendants for the claims regarding her late husband Mr. Cerqueira.

[9] This is not an appropriate case for costs.

Justice S. Nakatsuru

Released: May 16, 2018