Kamalanathan v. CAMH et al., 2019 ONSC 56

COURT FILE NO.: CV-17-579018, CV-16-565940, CV-17-578559

DATE: 20190103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CV-17-579018

Rajasivagurunathan Kamalanathan, Kamalapiriyan Kamalanathan and Shyama Kamalanathan Plaintiffs

– and –

The Centre for Addiction and Mental Health, College of Physicians and Surgeons of Ontario, Hau Van Troung, Chekkera Motaiya Shammi, Treena Wilkie, Leonard Ginsberg and Robert Friedman Defendants

AND BETWEEN:

R. Kamalanathan for himself and as agent for K. Kamalanathan and S. Kamalanathan

Christine Laviolette for The Centre for Addiction and Mental Health Carina Lentsch for the College of Physicians and Surgeons of Ontario Chris Kinnear Hunter for Drs. Truong, Shammi, Wilkie, Ginsberg and Friedman

CV-16-565940

Rajasivagurunathan Kamalanathan, Kamalapiriyan Kamalanathan and Shyama Kamalanathan Plaintiffs

– and –

Ebenezer Okyere and Scarborough and Rouge Hospital Defendants

R. Kamalanathan for himself and as agent for K. Kamalanathan and S. Kamalanathan

Meredith E. Jones for Dr. Okyere, Christine Laviolette for Scarborough and Rouge Hospital

AND BETWEEN:

CV-17-578559

Rajasivagurunathan Kamalanathan, Kamalapiriyan Kamalanathan and Shyama Kamalanathan Plaintiffs

– and –

Ian Robin Zatzman, Ebenezer Okyere and College of Physicians and Surgeons of Ontario (CPSO) Defendants

R. Kamalanathan for himself and as agent for K. Kamalanathan and S. Kamalanathan

Meredith E. Jones for Dr. Okyere and Dr. Zatzman, Carina Lentsch for the College of Physicians and Surgeons of Ontario

HEARD: July 4 and 5, 2018

Kristjanson, J.

A. Overview.. 4

1. CAMH Claim.. 4
2. Okyere Claim.. 4
3. Zatzman Claim.. 4
4. Common Elements. 4 B. Procedural Background. 5
5. Plaintiffs’ Failure to Comply With Timetable Orders. 5
6. Defence Counsel Explanation to Self-Represented Plaintiffs. 6
7. Obligations of Self-Represented Plaintiffs. 6
8. Accommodations for Self-Represented Plaintiffs. 7
9. Preliminary Objections by Plaintiffs to Counsel for Defendants. 8
10. Request to Appoint Mr. R. Kamalanathan as Litigation Guardian for his Son. 8 C. Legal Framework For Decisions. 9
11. Law on Summary Judgment 9
12. Motion to Strike - No Reasonable Cause of Action – Rule 21.01(1)(b) 10
13. Rule 25.11 Motion to Strike. 12
14. Rule 25.06(7) Documents. 13
15. Admissions. 13 D. General Comments Applicable to the Decisions. 13
16. Law Regarding Claims Barred by Limitations Act, 2002. 13
17. College of Physicians and Surgeons Complaint and Review Processes. 15 (a) Receipt of Complaint, Investigation, and ICRC.. 15 (b) Complaint Reviews by the HPARB.. 16 (c) Inadmissibility of Documents – RHPA, s. 36(3) 16
18. Personal Health Information Protection Act and Privacy Breaches. 17 E. Decision on CAMH Claim: CV-17-579018. 18
19. Background Facts. 19
20. Action Brought Against CAMH in 2007. 19
21. The Kamalanathan Complaints to the College in 2013. 20
22. Issues: 20
23. CAMH Action: Claims Against CAMH.. 20
24. CAMH Action: Claims Against the College. 24
25. CAMH Action: The Defendant Physicians. 28 F. Background Facts: Okyere and Zatzman Claims. 30 G. Decision on Zatzman Claim: CV-18-578559. 35
26. Claims Against the College. 35
27. Claims Against the Physicians. 38 H. Decision on Okyere Claim: CV-16-565940. 40
28. Claims against the Scarborough and Rouge Hospital 40
29. Claims Against Dr. Okyere. 41 I. Orders. 42

A. Overview

1The plaintiffs, Kamalapiriyan Kamalanathan ("K. Kamalanathan"), Rajasivagurunathan Kamalanathan ("R. Kamalanathan") and Shyama Kamalanathan ("S. Kamalanathan") have brought three separate actions involving overlapping facts and issues. All of the defendants in the three actions have brought summary judgment motions or motions to strike the claims.

1. CAMH Claim

2The plaintiffs brought the action in CV-17-597018 (the “CAMH Claim”) by an 81 page Statement of Claim issued on July 17, 2017. The defendants are:

(a) the College of Physicians and Surgeons of Ontario (“College”),

(b) the Centre for Addiction and Mental Health (“CAMH”), and

(c) five physicians, Drs. Hau Van Truong, Chekkera Motaiya Shammi, Treena Wilkie, Leonard Ginsberg, and Robert Friedman.

2. Okyere Claim

3The plaintiffs brought the action in CV-16-565940 (the “Okyere Claim”) by a 25 page Statement of Claim issued on December 13, 2016. The defendants are:

(a) Dr. Ebenezer Okyere, and

(b) the Scarborough and Rouge Hospital.

3. Zatzman Claim

4The plaintiffs brought the action in CV-16-578559 (the “Zatzman Claim”) by a 45 page Statement of Claim issued on July 10, 2017. The defendants are:

(a) Two physicians, Dr. Ian Zatzman and Dr. Okyere, who is also a defendant in the Okyere Claim, and

(b) the College, also a defendant in the CAMH Claim.

4. Common Elements

5The plaintiffs make allegations of negligence, misrepresentation, abuse of process, fraud, conspiracy and many other causes of action which relate to events commencing in or around 2004, involving:

(a) psychiatric treatment, assessments and reports relating to the mental health of the Plaintiff, K. Kamalanathan, provided by the defendant physicians. In the CAMH Claim, the assessment and treatment was provided in the period 2004-2005; in the Okyere and Zatzman Claims the assessment, treatment and reports relate to the period 2006-2008 and 2012;

(b) the conduct of physicians and hospitals with respect to the K. Kamalanathan’s Australian immigration/visa application in 2012;

(c) seven complaints made to The College of Physicians and Surgeons of Ontario (the "College") in 2012 and 2013 by R. Kamalanathan about the alleged conduct or actions of the seven defendant physicians with respect to their treatment, assessment and reports relating to K. Kamalanathan;

(d) the conduct of the investigations into the complaints about the seven physician defendants by the College; and

(e) complaints about the integrity of medical records, failure to obtain or respect consents to the disclosure of health records, and breaches of several statutes including the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”).

6I dismiss all three actions against all defendants, with costs, for reasons set out below.

B. Procedural Background

1. Plaintiffs’ Failure to Comply With Timetable Orders

7On January 26, 2018, the parties in all three actions attended at Civil Practice Court (“CPC”) to schedule these motions. Justice Dow directed that the motions to dismiss the plaintiffs’ claims in the three actions were to be heard together July 4 and 5. Some of the parties and Mr. R. Kamalanathan corresponded about scheduling the motions prior to the CPC attendance. Ms. Meredith Jones, counsel to Drs. Okyere and Zatzman, advised Mr. R. Kamalanathan that the defendants would be asking to schedule the motions in all three actions for one full day. She advised the plaintiff that: “It will be open to you to voice any concerns you have about the motions being heard together.” In CPC Court, Mr. R. Kamalanathan did not raise concerns about the defendants’ motions being heard together, except for his concern regarding his ability to concentrate for a full day. Justice Dow then scheduled the motions for two consecutive days. Justice Dow set a timetable requiring the plaintiffs to file their responding record by April 25, 2018. The plaintiffs’ responding factums were to be served June 20. Justice Dow’s endorsement states that he went over the timetable with Mr. R. Kamalanathan. The plaintiffs did not file their responding record as required, and Ms. Meredith Jones wrote five e-mails inquiring about the responding materials.

8The lawyers attended before Justice Gans in CPC Court on May 28; although advised of the date, none of the plaintiffs attended. Justice Gans noted that no material was filed in two of the actions, Court File Nos. 579018 and 565940, and limited material in 578559. Justice Gans extended the plaintiffs’ deadline to June 8 for filing materials in all actions. He directed the law firm of Lerners LLP to furnish a copy of the Order to Mr. R. Kamalanathan by e-mail, and he directed that the motions were to proceed on the July 4 and 5 dates which had been set in January. Ms. Meredith Jones wrote attaching a copy of the endorsement, and confirming the motions would proceed on July 4 and 5. The plaintiffs did not file any materials by June 8. They did not re-attend in CPC Court, or bring a motion to adjourn at any time prior to July 4, the return date of the eight motions. The plaintiffs were granted almost 6 months to file materials; they obtained an extension; they did not comply with two court orders; they did not file any evidence on any of these motions.

2. Defence Counsel Explanation to Self-Represented Plaintiffs

9Ms. Meredith Jones, counsel to Dr. Okyere and Dr. Zatzman, took commendable steps to alert the plaintiffs to the requirement to file admissible evidence, and she provided other procedural information to the plaintiffs on these motions. I encourage all lawyers on files with self-represented litigants to consider providing basic explanatory information regarding procedure, which does not compromise the interests of their clients, in order to ensure access to justice, fairness, and efficiency in the court system.

10On May 3, 2018 Ms. Meredith Jones wrote to the plaintiffs by e-mail and regular mail stating: “If you intend to rely on any evidence not contained in the motion materials served by the defendants, you must serve and file that evidence, in the form of a sworn affidavit, prior to the motion” (emphasis added). She also reminded the plaintiffs of their opportunity to cross-examine the affiants. On May 28, she served the plaintiffs with Justice Gans’ Order, and in plain language advised the plaintiffs that: “Justice Gans ordered that you serve all parties with your responding materials (i.e. the evidence upon which you intend to rely) by June 8, 2018. Justice Gans extended the deadline for the defendants’ facta (i.e. written legal arguments) to June 15, 2018.” (emphasis added). Finally, on June 27, she wrote to the plaintiffs advising them that “[i]f you intend to rely on any written evidence or argument at the motion, please provide us with a copy by week’s end.” She also advised the plaintiffs of the requirements of Rule 15.01(3), that a non-lawyer cannot represent parties, and thus all three plaintiffs should attend.

3. Obligations of Self-Represented Plaintiffs

11This Court expects and requires self-represented parties to comply with court orders, the Rules of Civil Procedure, and the rules of evidence. The Court of Appeal in Sanzone v. Shechter, 2016 ONCA 566 (Ont. C.A.), speaking of self-represented litigants responding to a summary judgment motion, held at paras. 21-22 that:

21Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability…

22Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party…A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.

12The plaintiffs had six months’ notice of these motion dates, and obtained the benefit of a filing extension. This was more than sufficient time for the plaintiffs to obtain legal advice, attend at Pro Bono Ontario, go online to review resources available on the Superior Court of Justice website, the Community Legal Education Ontario website or review relevant cases online, review the Rules of Civil Procedure, or otherwise take steps to respond properly to the summary judgment motions and motions to strike. Justice Dow reviewed the timetable with Mr. R. Kamalanathan. Ms. Meredith-Jones wrote specifically advising the plaintiffs of their opportunity to file evidence on these motions.

13Mr. Kamalanathan submits that he did not understand how to respond to the various motions, some of which combine relief sought under Rule 20, Rule 21 and Rule 25. He submits that each defendant should have brought motions under each Rule separately rather than combining the relief sought under the various Rules. He also submitted that it was unfair to hear the eight motions together over two days, as this too made it hard to respond. The plaintiffs have known of the scheduling of these motions since January, 2018. By failing to file any evidence or any written argument as provided for in two court orders, the plaintiffs did not even attempt to respond to these motions. The materials filed by the defendants were clear in terms of what they were seeking and the Rules they relied on. For efficiency, to best use the resources of the court and the parties on three actions with substantially similar parties and issues, the motions were scheduled to be heard together. The motions were properly brought, and the plaintiffs have had more than enough time to respond. As a result, I ruled that the court would proceed to hear the eight motions.

4. Accommodations for Self-Represented Plaintiffs

14I have made two accommodations for the self-represented plaintiffs. First, I agreed to receive written materials from Mr. R. Kamalanathan submitted on the eve of the motions. On July 3, the day before the motions were to be heard, I directed my assistant to request electronic copies of all factums from the parties. An e-mail was sent to Mr. Kamalanathan at the e-mail used by him for Court purposes. Starting the evening of July 3 and continuing until the morning of July 4th, Mr. R. Kamalanathan provided my assistant, but not the other parties, with a number of documents, including e-mails raising objections, a draft factum, and what are entitled “Motion Records”. When Court began, I directed that copies be made and provided to all counsel. I adjourned so that counsel could read the materials submitted by Mr. R. Kamalanathan.

15The materials did not include evidence, in that there were no affidavits. There were legal submissions, as well as reference to facts, some of which were contained in the motion records of the other parties, and some of which were not supported by any evidence. I asked for submissions on the proposal that despite the late service, Mr. Kamalanathan’s materials should be filed on the motion, and I would disregard any alleged facts contained in Mr. Kamalanathan’s materials that were not properly in evidence before me. The defendants all agreed with the proposed course of action despite the late service. As a result, I accepted Mr. R. Kamalanathan’s materials on these motions, and have disregarded any alleged facts not properly in evidence before me.

16The second accommodation was an order allowing one of the self-represented plaintiffs, the father, to serve as agent for the other two plaintiffs, the son and the mother. At the outset of the hearing I asked why the other two plaintiffs were not present, since Rule 15 requires that parties must either appear in person or be represented by a lawyer; individuals are not allowed to represent other individuals. Mr. Kamalanathan explained that the proceedings would be too emotionally difficult for the other plaintiffs to attend. He confirmed he had their permission to act as agent. In the special circumstances of this case, I exercised my discretion pursuant to Rule 2.03 in the interests of justice to dispense with compliance with Rule 15. I directed Mr. R. Kamalanathan to provide a document signed by the other two plaintiffs agreeing that Mr. R. Kamalanathan was acting as their agent for the purposes of the motions with the authority to make representations on their behalf, or else this matter would simply proceed in the absence of Mr. K. and Mrs. S. Kamalanathan. On the second day Mr. Kamalanathan filed the signed documents granting him authority to act as their agents on the motion, and I held that he had the authority to make submissions on behalf of all the plaintiffs.

5. Preliminary Objections by Plaintiffs to Counsel for Defendants

17On July 4th, at the outset of the hearing, the plaintiffs made two preliminary objections. The first objection was raised in an e-mail sent to my assistant on July 3 at 6:48 p.m. Mr. R. Kamalanathan alleged that the law firm of Borden Ladner Gervais LLP (“BLG”) was in a conflict of interest and abusing court proceedings by seeking a second dismissal by their client, CAMH, against the same plaintiffs. In 2007, BLG, acting for CAMH, had obtained an administrative dismissal of a Statement of Claim commenced by Mr. K. Kamalanathan and his father in Court File No. 07-CV-325190. He refers to an “Own Recognizance Cash Deposit Bond” to obtain an “OCRD dismissal.” Whatever the nature of the dismissal of the 2007 action, I held that this was not a disqualifying conflict of interest or abuse of process. A law firm may obtain a dismissal of an action for a client, continue to defend that client, and seek further dismissals against the same plaintiffs on behalf of the same client in a different action. I allowed BLG to continue to represent CAMH.

18The second objection was raised in an e-mail sent shortly after midnight on July 4th. While somewhat difficult to understand, it appears that Mr. Kamalanathan objected to Mr. Hunter representing the five physicians in the CAMH Claim on the grounds that Mr. Hunter had a conflict of interest. Essentially, he argued that Mr. Hunter lacked the requisite authority from his clients; had been appointed by the University of Toronto Health Network arm of CAMH to act for three of those physicians at the related HPARB hearing; and had improperly orchestrated the CPC hearing by which all motions were consolidated. I find that there was no conflict of interest, any issues regarding authority were issues to be asserted by the physician clients and not the plaintiffs, and no other issues raised would disqualify Mr. Hunter from acting. I ruled that Mr. Hunter could represent his five clients on the motion.

6. Request to Appoint Mr. R. Kamalanathan as Litigation Guardian for his Son

19Mid-way through argument on the second day of the hearing, Mr. R. Kamalanathan rose to request that he be appointed as litigation guardian for his son, Mr. K. Kamalanathan, due to his son’s mental health issues. Mr. R. Kamalanathan did not bring a motion, nor did he have evidence to support the request, and I denied the request. There is no evidence before me that Mr. K. Kamalanathan is mentally incapable within the meaning of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6 or 45, with respect to issues in this litigation. The most recent information before me with respect to Mr. K. Kamalanathan’s mental health issues is an unsworn report dated March, 2012, which does not constitute admissible evidence as to present mental incapacity.

20I encouraged Mr. Kamalanathan to attend the offices of Pro Bono Ontario on the main floor of 393 University Avenue to obtain legal information about obtaining an appointment of a litigation guardian. I informed Mr. Kamalanathan generally of the following, which I set out here in more detail:

(a) Rule 7 of the Rules of Civil Procedure regulates the bringing of proceedings by parties under a disability;

(b) “Disability” for the purposes of appointing a litigation guardian for a plaintiff has the meaning set out in Rule 1.03(1) of the Rules of Civil Procedure, “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding”;

(c) If he sought to be appointed a litigation guardian pursuant to Rule 7.02(2), Mr. R. Kamalanathan would have to ensure that K. Kamalanathan filed an affidavit with the court containing the information set out in Rule 7.02(2), in the absence of any evidence before me as to whether Mr. R. Kamalanathan would qualify under Rule 7.02(1.1).

C. Legal Framework For Decisions

21Some of the defendants bring motions for summary judgment under Rule 20 of the Rules of Civil Procedure; some bring motions to strike under Rule 21; and some bring motions to strike under Rule 25. Many rely on admissions pursuant to Rule 56. As a result, I set out the general framework applicable to the motions below.

1. Law on Summary Judgment

22Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." In Mayers v. Khan, 2017 ONSC 200, 2017 CarswellOnt 253, Justice Glustein summarized the Hryniak principles as follows at para. 18:

(i) Summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It is no longer merely a means to weed out unmeritorious claims but rather a “legitimate alternative means for adjudicating and resolving legal disputes” (Hryniak v. Mauldin, 2014 SCC 7, at paras. 5 and 36);

(ii) An issue should be resolved on a motion for summary judgment if the motion affords a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial (Hryniak, at paras. 4 and 49);

(iii) On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring a trial based only on the evidence before the judge and without using the judge’s fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2) (Hryniak, at para. 66); and

(iv) The standard for determining whether summary judgment will provide a fair and just adjudication is not whether the procedure is as exhaustive as a trial, but rather “whether it gives the judge confidence that [the judge] can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50). A judge must be confident that he or she can fairly resolve the dispute (Hryniak, at para. 57).

23The moving party bears the onus of demonstrating there is no genuine issue requiring a trial. If the moving party succeeds the burden shifts to the responding party to prove that its claim has a "real chance of success." Both parties must put their "best foot forward" to establish whether or not there is a genuine issue for trial. The responding party cannot rely on the prospect of additional evidence that might come out at trial. The Court can assume that the record on the motion contains all the evidence the parties would present at trial: Toronto-Dominion Bank v Hylton, 2012 ONCA 614, at para. 5.

2. Motion to Strike - No Reasonable Cause of Action – Rule 21.01(1)(b)

24Under Rule 21.01(1)(b), a defendant may move to strike out a pleading on the ground that it discloses no reasonable cause of action. The test is whether, assuming all of the facts pleaded can be proven, it is “plain and obvious” that the statement of claim discloses no reasonable cause of action: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (“Imperial Tobacco”) at para. 17. A pleading must be struck if a plaintiff fails to plead sufficient material facts to make out the requisite components of a cause of action: Imperial Tobacco, para. 22.

25A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven. No evidence is admissible on a Rule 21.01(1)(b) motion. Instead, the Court must consider whether the material facts pleaded disclose a claim in respect of which relief may be granted. The facts pleaded are the “firm basis upon which the possibility of success of the claim must be evaluated: Imperial Tobacco at para. 22. The Statement of Claim is to be read generously.

26As summarized by DiTomaso, J. in Becker v. Crowe Estate, 2015 ONSC 4207 (SCJ) at paras. 20-21 (internal citations omitted):

20The test for striking a claim for disclosing no reasonable cause of action is that it must be “plain and obvious” that the claim cannot succeed. The test is met where:

(a) a plaintiff pleads allegations that do not give rise to a recognized cause of action;

(b) a plaintiff fails to plead a necessary element of a recognized cause of action; or

(c) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where mere conclusions of law are asserted.

21As well, the following principles are relevant in applying Rule 21:

(a) Allegations set out in the statement of claim, unless blatantly ridiculous or incapable of proof, must be taken as true.

(b) Where the alleged facts fail to disclose a claim, the statement of claim should be struck.

(c) Vague allegations or allegations that are assumptions or speculation are by their very nature incapable of proof by the adduction of evidence, and therefore are not to be taken as true. They are impossible to reply to and should be struck.

(d) Where the minimum level of factual disclosure has not been attained, the granting of a motion to strike under Rule 21 is an appropriate remedy, as opposed to granting leave to amend or an order for particulars.

27I also consider Rule 25.06 of the Rules of Civil Procedure, which plays a role in evaluating whether a pleading should be struck. It provides in part:

(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

28In order to comply with Rule 25.06(1), a plaintiff must link particular material facts with a particular claim asserted: Cohen v. Cambridge Mercantile Corp., 2007 21596 (ON SC), [2007] O.J. No. 2305 at para. 22 (S.C.J)

29As Justice Strathy (as he then was) held in Cerqueira v Ontario, 2010 ONSC 3954 at para. 12

[n]either the opposite party nor the Court should be forced to nit-pick their way through a long, complex and sometimes redundant and split pleading, parsing each paragraph and each sentence with a view of extracting the claims and related material facts and redrafting them into a clear and precise pleading.

3. Rule 25.11 Motion to Strike

30Motions to strike are also brought under Rule 25.11 of the Rules of Civil Procedure, which provides:

25.11 The Court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

31In George v. Harris, 2000 CarswellOnt 1714, [2000] O.J. No. 1762, 97 A.C.W.S. (3d) 225, Epstein, J., as she then was considered the meaning of "scandalous", "frivolous" or "vexatious", holding in para. 20 that:

(a) A document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious.

(b) Portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous.

(c) Pleadings that contain only argument and include unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation will be struck out as being scandalous and vexatious.

(d) Documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety.

4. Rule 25.06(7) Documents

32Pursuant to Rule 25.06(7), a statement of claim is deemed to include documents incorporated in it by reference and which form part of the plaintiffs’ claim. For the purposes of these motions, those documents have to be contained in motion records. If they are not in motion records, then they are not properly before me. Thus, I have disregarded arguments in the ether about how documents not in motion records before me would support the plaintiffs’ case.

5. Admissions

33Finally, I turn to the question of admissions. Rule 51.06(2) provides:

Where an admission of the truth of a fact or the authenticity of a document is made by a party in a pleading or is made or deemed to be made by a party in response to a request to admit, any party may make a motion in the same proceeding to a judge for such order as the party may be entitled to on the admission without waiting for the determination of any question between the parties, and the judge may make such order as is just. (emphasis added)

34Many of the limitation period motions rely on admissions in the Statements of Claim as to the date that medical assessment and treatment was provided, when complaints were made to various regulatory bodies, and when documents were created or came to the attention of the plaintiffs. I accept that the facts set out in the Statements of Claim may be relied on as admissions pursuant to Rule 51.06(2), and may be relied on in these motions.

D. General Comments Applicable to the Decisions

35In order to make sense of the context underlying the three actions and the eight motions, I have generally summarized background facts referring to the material filed in each action, including evidence filed on the summary judgment and abuse of process motions. However, in disposing of the motions I have been careful to ensure that I have complied with the Rules of Civil Procedure regarding whether or not evidence is admissible on a particular motion. Evidence is admissible on Rule 20 summary judgment motions, and Rule 25.11 or Rule 21.01(3) motions to strike out pleadings as an abuse of the process of the Court. No evidence is admissible on Rule 21.01(1)(b) motions to strike on the grounds that a claim discloses no cause of action.

1. Law Regarding Claims Barred by Limitations Act, 2002

36Section 4 of the Limitations Act, 2002, S.O. 2002, c 24, Sch B provides that a proceeding shall not be commenced after the two year anniversary of the day on which the claim was discovered. Section 5 sets out the test for determining when a claim was discovered.

37Section 5(2) of the Limitations Act provides:

A person with a claim shall be presumed to have known of the matters referred to in [section 5(1)(a)] on the day the act or omission on which the claim took place, unless the contrary is proved.

38Sections 5(1)(a) and (b) of the Limitations Act provide:

Discovery

5(1)(a) A claim is discovered on the earlier of the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

39Section 5(2) creates a rebuttable statutory presumption that a claimant knows of his or her claim on the date the act or omission on which the claim is based took place. On a summary judgment motion where discoverability is in issue, there is an onus on the plaintiffs to rebut the statutory presumption. In the absence of evidence to the contrary, the plaintiffs are presumed to have discovered the material facts underpinning their claim on the day the act or omission took place.

40Section 5(1)(a) sets out the subjective knowledge date. Section 5(1)(b) sets out the objective knowledge date. The limitation period runs from the earlier of the subjective and objective knowledge dates. Where the statutory presumption operates such that a claim is deemed to be discovered on the date of the impugned act or omission, this will be the earliest date of discoverability of a claim.

41The Court of Appeal held in Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 42:

A plaintiff is required to act with due diligence in determining if he has a claim. A limitation period will not be tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a) [of the Limitations Act 2002]. While some action must be taken, the nature and extent of the required action will depend on all of the circumstances of the case.

42Summary judgment motions may be brought by defendants in relation to the application of limitation period defences, even in cases where an issue is raised about the discoverability of the claim. When confronted by a motion for summary judgment, the plaintiffs cannot solely rely on their pleading of discoverability. Where a plaintiff relies on a date for either objective or subjective knowledge, they must establish that date on the evidence. The failure of a plaintiff to respond to the summary judgment motion with evidence to rebut the presumption in s. 5(2) of the Limitations Act, 2002 is fatal: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10 at para 8. Where a limitation period is raised on a summary judgment motion, Brown, J.A. has set out the test as follows in Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725 at para. 35:

35Accordingly, a typical summary judgment motion involving the basic limitation period requires the judge to determine whether the record enables making a series of findings of fact, with the certainty required by Hryniak, on the following matters: (i) the date the plaintiff is presumed to know the matters listed in ss. 5(1)(a)(i)-(iv) – namely, the day on which the act or omission on which the claim is based occurred; (ii) the date of actual knowledge under s. 5(1)(a), in the event the evidence proves the contrary of the presumptive date; (iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and (iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years.

2. College of Physicians and Surgeons Complaint and Review Processes

43Two of the three actions involve allegations about the College’s complaint and review process. I set out below the statutory framework governing the complaints process and the Health Professions Appeal Review Board (“HPARB”) review process.

(a) Receipt of Complaint, Investigation, and ICRC

44The College regulates the practice of medicine in the Province of Ontario, pursuant to the Medicine Act, 1991, S.O. 1991, c. 30, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”), the Health Professions Procedural Code, which is Schedule 2 to the RHPA (the “Code”), the regulations, and the College’s By-Laws, as amended (the “College’s Governing Legislation”). In carrying out its objects, the College has a statutory duty to serve and protect the public interest pursuant to section 3 of the Code.

45The College’s regulatory mandate includes investigating complaints about the alleged conduct or actions of its members. Complaints received by the College are investigated and reviewed by a panel of the College’s Inquiries, Complaints and Review Committee (“ICRC”).

46Section 25(5) of the Code requires that the person making a complaint (the “complainant”) is to be notified of the College’s receipt of his/her complaint and is to be provided with information about the College’s complaints process.

47During the course of an investigation of a complaint, the College may request and obtain relevant medical information from third party health information custodians, including physicians and hospitals, either with the consent of the individuals to whom the information relates, or with the Registrar’s appointment of an investigator pursuant to s. 75(1) of the Code.

48Relevant documents and records gathered by the College for the purposes of a complaint investigation are compiled into a record of investigation (“ROI”) which is presented to a panel of the ICRC, for its review and consideration. The ICRC performs a screening function. Following the investigation of a complaint, a panel of the ICRC renders a decision in accordance with section 26 of the Code. There are four possible outcomes: (i) referral of misconduct or incompetence to the Discipline Committee; (ii) referral to incapacity proceedings; (iii) requiring a member to appear before an ICRC Panel for a caution; or (iv) other action consistent with the governing legislation. Copies of the decision and reasons are given to the complainant and the subject member(s), the “parties”, in accordance with sections 26 and 27(1)(a) and (b) of the Code.

(b) Complaint Reviews by the HPARB

49Pursuant to subsection 29(2) of the Code, unless the decision is to refer an allegation of professional misconduct or incompetence to the Discipline Committee or to refer the member to a panel of the ICRC for incapacity proceedings, the parties to a complaint have the right to request a review of the ICRC’s decision and reasons by the Health Professions Appeal and Review Board (“HPARB”). The HPARB is a specialized independent review tribunal. Upon request, the College must provide the HPARB with its record of investigation (“ROI”) for the purposes of the review in accordance with subsection 32(1) of the Code. As provided by subsection 32(2) of the Code, before reviewing a decision, the HPARB discloses to the parties everything given to it by the Registrar of the College, including the ROI, unless the HPARB refuses disclosure under s. 32(3).

(c) Inadmissibility of Documents – RHPA, s. 36(3)

50The decisions of the ICRC and any evidence related to the College’s investigation of the Complaint are not admissible in these civil actions. Section 36(3) of the RHPA, provides:

36. (3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

51Section 36(3) of the RHPA is one of a number of legislative provisions in the RHPA that have the overarching objective of keeping proceedings of colleges governing regulated health professions in Ontario separate from other civil proceedings. The provision operates as an absolute bar to the admissibility of any evidence emanating out of the College’s complaints process, including the complaint-related documents referred to in paragraph 369 of the Statement of Claim in the CAMH Claim: Task Specific Rehabilitation Inc. v. Steinecke, 2004 4853 at para. 22 (Ont. C.A.); M.F. v. Sutherland, 2000 5761 at paras. 29-32 (Ont. C.A.).

52Section 36(3) of the RHPA “creates a blanket prohibition against the admissibility of all evidence collected during the course of the College’s investigation and this prohibition is an absolute one”: Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324 at para. 55, aff’d 2011 ONCA 517, leave to appeal to S.C.C. ref’d. None of the records, reports, orders, decisions or other documents created during a College proceeding can be admitted in a civil action: Conroy, paras. 52-57. As a result, although there are pleadings and references in the evidence to the dates and types of complaints made, I do not and cannot have those materials before me.

3. Personal Health Information Protection Act and Privacy Breaches

53Many of the claims involve allegations of breach of PHIPA or privacy breaches. The Personal Health Information Protection Act, 2004 (“PHIPA”) sets out rules for the collection, use and disclosure of personal health information. These rules apply to health information custodians operating within the province of Ontario and to individuals and organizations that receive personal health information from health information custodians.

54Many of the allegations in the Claims relate to allegedly improper sharing of information between health care providers, or with the College. Some of the Claims refer to patient information being placed in a “locked bag”, and allege that K. Kamalanathan’s personal health information held by the health care custodians was improperly removed from the “locked bag”, or “lock-box”, without consent. Under PHIPA, individuals may expressly instruct health information custodians not to use or disclose their personal health information without their consent in the circumstances set out in sections 37(1)(a), 38(1)(a) and 50(1)(e) of PHIPA. This underlies the concept of the locked bag or lock-box relied on in the Claims.

55Notwithstanding the lock-box, disclosures by health care custodians of personal health information are permissible:

• where a statute “permits or requires a person to disclose the information” (PHIPA s. 37(1)(b));

• for the purposes of proceedings in which the custodian is to be a party or witness (PHIPA s. 37(1)(h), s. 41(1)(a));

• to comply with a summons, order or procedural production requirement (PHIPA s. 41(d)), and

• to a College under the Regulated Health Professions Act, 1991, including for the purpose of administration and enforcement of the RHPA, including professional disciplinary proceedings (PHIPA s. 43(1)(b)).

56The circumstances in which damages may be recovered for a breach of PHIPA are set out in section 65 of the statute:

65. (1) If the Commissioner has made an order under this Act that has become final as the result of there being no further right of appeal, a person affected by the order may commence a proceeding in the Superior Court of Justice for damages for actual harm that the person has suffered as a result of a contravention of this Act or its regulations.

(2) If a person has been convicted of an offence under this Act and the conviction has become final as a result of there being no further right of appeal, a person affected by the conduct that gave rise to the offence may commence a proceeding in the Superior Court of Justice for damages for actual harm that the person has suffered as a result of the conduct.

(3) If, in a proceeding described in subsection (1) or (2), the Superior Court of Justice determines that the harm suffered by the plaintiff was caused by a contravention or offence, as the case may be, that the defendants engaged in wilfully or recklessly, the court may include in its award of damages an award, not exceeding $10,000, for mental anguish.

57There is no pleading that the Commissioner made a final order against any of the defendants under PHIPA, or that any of the defendants have been convicted for a breach of PHIPA. As a result, there is no right to proceed in this court on a claim under PHIPA for damages suffered as a result of a contravention of PHIPA. However, it is also possible to advance a common law claim for breach of privacy relating to a breach of PHIPA requirements.

58Sharpe, J.A. for the Court of Appeal in Hopkins v. Kay, 2015 ONCA 112, 124 O.R. (3d) 481 (C.A.) held at para. 48 that a plaintiff may pursue a common law action for a breach of privacy claim based on intrusion on seclusion (a Jones v. Tsige claim), and identified the essential elements of such an action:

48 …Proving a breach of PHIPA falls well short of what is required to make out the Jones v. Tsige claim. The elements of the common law tort identified in that case, at para. 71, require a plaintiff to establish (1) intentional or reckless conduct by the defendant, (2) that the defendant invaded, without lawful justification, the plaintiff's private affairs or concerns and (3) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. The first and third elements of the common law claim represent significant hurdles not required to prove a breach of PHIPA.

E. Decision on CAMH Claim: CV-17-579018

59The plaintiffs raise allegations of negligence, misrepresentation, improper detention, alteration of PHIPA records, abuse of process, fraud and conspiracy, among others, relating to psychiatric treatment and assessments of K. Kamalanathan provided by the defendant physicians in 2004-2005, alleged improprieties in the investigation by the College of complaints made about the physicians in 2012 and 2013 by R. Kamalanathan, and alleged privacy breaches by CAMH.

60The primary plaintiff, K. Kamalanathan claims $1 million, plus interest and costs for “repeated false imprisonment in the medical malpractice trap through fraudulent misrepresentations…barring him from getting a proper diagnostic treatment for his mental health condition,” among other claims. The claims of his father, R. Kamalanathan, and his mother, S. Kamalanathan, are Family Law Act claims, as well as claims for “compensation damages from fraudulent misrepresentations by the defendants lasting over 12 years.” Each parent claims damages in the amount of $500,000.00.

61The defendant hospital, the Centre for Addiction and Mental Health (“CAMH”) brings a Rule 20 motion for summary judgment to dismiss the claim. The College also brings a Rule 20 motion for summary judgment as well as Rule 21 and/or Rule 25 motions to strike the claim. The five physicians bring a Rule 21 and Rule 25 motions to strike the claim.

1. Background Facts

62The CAMH Claim is based on treatment provided to K. Kamalanathan in 2004-2005. On October 14, 2004, K. Kamalanathan attended CAMH with a number of mental health concerns, and was admitted to CAMH the following day. He remained a patient at CAMH until January 6, 2005, when he was discharged pursuant to the order of Dr. Ginsberg, with medication and follow-up referrals.

63At the time of the events in issue, the defendants Dr. Shammi and Dr. Ginsberg were physicians with a specialization in psychiatry with privileges at CAMH. Dr. Friedman was a physician with a specialization in psychiatry with privileges at the North York General Hospital. The defendants Dr. Truong and Dr. Wilkie were medical practitioners engaged post-graduate psychiatry studies at CAMH.

64Dr. Friedman assessed K. Kamalanathan at the Outpatient Court Support Program of North York General Hospital in December 2004, and again on January 5, 2005. After K. Kamalanathan was discharged from CAMH, he was assessed by Dr. Friedman on 11 further occasions between January 12 and August 10, 2005. August 10, 2005 was the last interaction between the plaintiffs and any of the five defendant physicians.

2. Action Brought Against CAMH in 2007

65On January 5, 2007, the plaintiffs K. and R. Kamalanathan brought an action in the Superior Court of Justice against CAMH and the President and CEO of CAMH. The action related to K. Kamalanathan’s treatment at CAMH from October 14, 2004 to January 6, 2005 (Court File No. 07-CV-325190PD2, the “2007 Action”.)

66In the 2007 Statement of Claim, the plaintiffs alleged against CAMH negligence; a refusal of the "request to admit [K.] at the North York General Hospital" rather than "the emergency unit of CAMH" under the Form 1; "improper care and treatment"; "non-cooperation with police" and "inviting the police officers to charge the patient" regarding an incident where K. stabbed a co-patient in the head; "interfering with patient transfer to North York General Hospital"; "providing personal information related to the incident to third parties without the consent of the patient"; "involuntarily detaining the patient at the CAMH facility for offenders and applying form 3 infringing the rights of the patient"; and "providing discharge certificate with referral to the incident in violation to the patient rights and depriving future treatment and admission to other hospitals".

67CAMH delivered its Statement of Defence on or about February 5, 2007. No steps were taken, and the action was not set down for trial. An order dismissing the action for delay was made on May 26, 2009. No steps were taken by the plaintiffs to set aside the dismissal of their 2007 action.

3. The Kamalanathan Complaints to the College in 2013

68In March 2013, R. Kamalanathan made five written complaints to the College about the conduct or actions of the five defendant physicians in relation to his son, K. Kamalanathan. The College investigated the complaints. For the purposes of its investigation of the complaints, the College sought and obtained consents from K. Kamalanathan for the release of his medical information.

69The ICRC considered the complaints about the five defendant physicians, rendering separate decisions on in December, 2014 together with two other physician complaints addressed in the other actions. The plaintiffs admit that the College rendered the decisions in the complaints in December, 2014.

70R. Kamalanathan then sought to have the ICRC decisions reviewed by the HPARB. The College provided the record of investigation (ROI) to the HPARB, which included the documents and things upon which the ICRC decisions were based. The HPARB reviewed and confirmed all seven decisions of the ICRC in separate decisions issued on March 10, 2016.

4. Issues:

71The following issues are raised in the CAMH Claim:

(1) Should summary judgment be granted dismissing the claim against CAMH?

(2) Should summary judgment be granted dismissing the claim against the College, or should the claim be struck as disclosing no reasonable cause of action, or for abuse of process?

(3) Should the claim against the defendant physicians be struck without leave to amend?

5. CAMH Action: Claims Against CAMH

72CAMH submits that this case is appropriate for summary judgment. I agree. The evidentiary record before the Court in this motion is sufficient to allow me to make the necessary findings of fact. This case can be disposed based on the expiry of the limitations period and a hospital not being responsible in law for independent medical practitioners. These determinations can be fairly and justly made on the basis of the motion record and the accompanying documentary evidence. The law relating to the plaintiffs' claims is well-established and routinely applied by this Court. There are no novel or unique issues for this Court to consider. Finally, summary judgment in this case is a proportionate, more expeditious and less expensive means to achieve a just result, and no issue requires the costs and court resources of a full trial.

73The claims against CAMH are largely set out in paras. 16 to 85 and in 54 separate allegations listed in Section H of the Statement of Claim. It is very difficult to understand the claims, since the causes of action are not linked to facts in any organized manner. The bulk of the claims relate to treatment provided to Mr. K. Kamalanathan October 15, 2004 to January 6, 2005.

74The plaintiffs allege breach of privacy, breach of PHIPA and breach of the Mental Health Act. The allegations include "allowing Drs. Truong, Shammi, Wilkie, Ginsberg and/or Okyere [as well as 'third parties'] to access private and confidential information regarding K. Kamalanathan without [his] knowledge and/or consent", and allowing "persons yet unknown to the plaintiffs to alter and/or modify patient records without [K. Kamalanathan's] knowledge or consent." Many of the allegations against CAMH relate to allegedly improper statutory forms and a “bogus” and “faked” Consent and Capacity Board file and hearings held in 2004, as well as failures to supervise the physicians.

75Much of the claim centres around the improper diagnosis of schizophrenia, and allegedly altered records relating to assessment, treatment, medications and discharge notes prepared in the period between October, 2004 and April, 2005. The allegations regarding altered and falsified versions of patient records up to April, 2014 all relate to records created and actions taken in the October 2004 to April, 2005 period. The key allegation of falsification of a diagnosis of schizophrenia is that one of the physicians inserted a falsified “Discharge Summary Note” dictated on January 10, 2004 into the records in March 7, 2005, stating that the physician was the attending physician from October 17, 2004 through to January 6, 2005, and inserting a new admission record on January 6, 2005 backdated to October 14, 2004 relating to the continuing schizophrenia program for addicted patients. Other alleged falsifications regarding diagnosis and treatment, including medications, fall within the 2004 to April 2005 period. The only allegation outside the 2004-2005 period is the allegation that a physician altered CAMH records from October, 2008 to April, 2012 to satisfy College investigators. (para. 80). Any other allegations after 2005 are based on release of the records to the College (that the falsified records were provided to the College, thereby perpetuating the harm, although whether the harm relating to the alleged falsifications is actionable in any sense is another question).

76As noted above, the plaintiffs filed no evidence on this summary judgment motion.

77There is an admission in paragraphs 370-371, upon which I rely, that the plaintiffs obtained the final version of the CAMH records through HPARB in June, 2015, as well as through the CAMH Privacy office. I agree with the argument by CAMH that:

(1) The plaintiffs have failed to file any evidence in response to the CAMH’s motion for summary judgment and therefore have failed to rebut the presumption that they knew of the existence of the claim at the time of K. Kamalanathan's discharge in 2005 with respect to all claims, except the privacy and record-falsification issues: Bergen v. Fast Estate, 2018 ONCA 484 at para 10.

(4) The allegedly negligent treatment complained of occurred during K. Kamalanathan's admission at CAMH for psychiatric treatment from October 2004 to January 2005, over ten and a half years prior to the issuance of the Statement of Claim.

(5) Even if the plaintiffs did not actually discover the claim at the time the alleged acts or omissions took place, then they are nevertheless deemed to have discovered the claim on "the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known" of the existence of the claim.

(6) This is not the first action the plaintiffs have brought against the Hospital in relation to the treatment of K. Kamalanathan from October 2004 to January 2005.

(7) A reasonable person with the abilities and in the circumstances of the plaintiffs first ought to have known of the existence of the claim soon after K. Kamalanathan's discharge from the Hospital, and certainly no later than January 5, 2007, being the date the plaintiffs brought the previous iteration of this claim before this Court.

78I noted above that the plaintiffs had commenced an action in 2007 relating to the 2004-2005 CAMH admission. Although the plaintiffs' current Statement of Claim is not identical to the claim in the 2007 action, many of the facts pleaded are the same or similar. I accept this as evidence that the plaintiffs knew of the existence of the elements of the claim and a reasonable person with similar abilities and circumstances would know of the elements of the claim by this date. Among these dismissed claims that the plaintiffs are now attempting to re-litigate include:

(a) A refusal of the "request to admit [K. Kamalanathan] at the North York General Hospital" rather than "the emergency unit of CAMH" under the Form 1;

(b) "Improper care and treatment" while K. Kamalanathan was at CAMH from October 2004 to January 2005;

(c) "Non-cooperation with police" and "inviting the police officers to charge the patient" regarding the incident where K. Kamalanathan stabbed a co-patient in the head;”

(d) "Providing personal information related to the incident to third parties without the consent of the patient";

(e) "Involuntarily detaining the patient at the CAMH facility for offenders and applying form 3 infringing the rights of the patient"; and

(f) "Providing discharge certificate with referral to the incident in violation to the patient rights and depriving future treatment and admission to other hospitals".

79All of the claims based on matters raised in the 2007 litigation were known to the plaintiffs, and the relevant limitation period on both subjective and objective basis no later than 2007; summary judgment would issue on this basis alone. They also constitute a collateral attack and abuse of process, and I would have struck the claims without leave to amend on this basis.

80In any event, I grant summary judgment to dismiss all claims in the CAMH Action as against CAMH as statute-barred. In paras. 369-370, the plaintiffs plead that the information based on the facts alleged in the claim are based on productions received from:

(a) The Consent and Capacity Board in January, 2015,

(b) Mental Health and Criminal Court files received in January, 2015,

(c) The College’s ICRC decisions received in December 2014,

(d) Updated final records of CAMH and Scarborough and Rouge received through HPARB in June, 2015,

(e) Production of CAMH privacy information on matters pursuant to PHIPA in or about June, 2015, and

(f) The HPARB decisions in April, 2016.

81To the extent that the claim is based on allegedly falsified records, or PHIPA breaches contained in the College’s records from CAMH, this was discoverable, from a subjective and an objective perspective, no later than June, 2015, when the complete records were obtained from HPARB and CAMH. The presumptive limitation period is earlier, the date of the alleged falsifications or breaches. It is difficult to understand the plaintiffs’ argument based on the claim as filed, but I find that the facts underlying the allegedly falsified record claims were known or should have been known to the plaintiffs, and to reasonable persons with similar abilities and circumstances to the plaintiffs, no later than June 2015. Since the plaintiffs did not file any evidence on this summary judgment motion, the plaintiffs are unable to rebut the statutory presumption, and have failed to establish on the evidence any date later than the June, 2015 discoverability date.

82I do not accept the plaintiffs’ argument that receipt of the HPARB decision was necessary before the action was discoverable. I do not know what the HPARB decision contains. However, given the statutory scheme, the HPARB decision was a review of the ICRC decision which is based on the College’s record of investigation. The College’s record of investigation was provided to the plaintiffs in June, 2015. The discovery of a claim does not depend on the plaintiff knowing that his or her potential claim is likely to succeed. The limitation period runs from when the plaintiff has or ought to have had enough knowledge of a potential claim, and the later discovery of facts which change a borderline claim into a viable one does not impact discoverability: Colin v. Tan, 2016 ONSC 1187 at para. 72. The only date falling within two years of the issuance of the claim is the release of the Board’s decisions in April 2016. That is simply an adjudicative decision based on records provided to the plaintiffs by June 2015. The HPARB decision is not evidence, and does not toll the limitation period. The HPARB simply upheld the ICRC’s decisions, whatever those were, regarding the complaints made about the defendant physicians.

83The expiry of the applicable limitations period is dispositive of this action. The plaintiffs' claims are therefore statute-barred, and the action is dismissed as against CAMH on this basis alone.

84I also consider CAMH’s argument that summary judgment should be granted on the plaintiffs' claims of improper conduct, diagnosis, and treatment as against it. The law is settled in Ontario that hospitals are not vicariously liable for the negligence of physicians. Physicians are responsible for diagnosis and treatment - not hospitals or any of their employees. The physician defendants Drs. Shammi, Ginsberg, and Friedman were independent medical practitioners with privileges at hospitals. Further, Drs. Truong and Wilkie were medical practitioners engaged in a program of post-graduate medical education as residents, and not as employees of CAMH. Accordingly, even if there was negligent conduct, diagnosis, and/or treatment on the part of any of the doctors, CAMH cannot be held liable: Yepremian et al v Scarborough General Hospital el al, [1980] O.J. No. 3592 (ONCA) at paras 32-35. I dismiss the claim as against CAMH insofar as it is based on the conduct and actions of the defendant physicians.

6. CAMH Action: Claims Against the College

85The College seeks summary judgment dismissing the claim as against it, or to strike the Statement of Claim as against the College in its entirety pursuant to Rule 21.01(1)(b) as disclosing no cause of action, without leave to amend, or to strike/dismiss the claim as against the College as an abuse of process in accordance with Rules 21.01(3)(d) and/or 25.11.

86The claims against the College relate to the College’s handling, investigation, and disposition of the plaintiffs’ complaints against the five defendant physicians. The plaintiffs allege that the College failed to adequately investigate R. Kamalanathan’s complaints, conspired with the privacy office of CAMH by allowing the alteration of K. Kamalanathan’s PHIPA records held by CAMH, purportedly accepted falsified records, abused its own processes, made misrepresentations to HPARB by including these altered records and breaching the “locked bag” status of records as their record of investigation under false pretences, and “endorsed an unfounded diagnosis of Schizophrenia upon [the] plaintiff K. Kamalanathan with [a] conflict of interest.”

87The plaintiffs plead that the College is vicariously liable for the alleged wrongs of the co-defendant physicians, by allowing the “various doctors to walk away from their professional misconduct through a faulty investigation procedure.”

88The plaintiffs plead a number of causes of action, including: negligence, breach of contract, medical malpractice, administrative malpractice, vicarious liability for co-defendants’ alleged malpractice, acting with a conflict of interest, abuse of process, breach of fiduciary duty, unjust defamation, conversion and/or diversion, oppression, and conducting a negligent or “bogus” investigation.

89I accept the College’s summary of the key allegations against the College, which include:

(a) failure to conduct a meaningful complaints investigation, or conducting an improper, incomplete, or “bogus” investigation;

(b) failing to recognize that “PHIPA records from CAMH that were submitted as “ROI” are invalid under the law”;

(c) accepting documents (hospital and medical records) that they allege were falsified or fraudulent;

(d) failing to consider requests from the plaintiffs’ lawyers in rendering a decision on the complaints;

(e) endorsing an allegedly unfounded diagnosis of Schizophrenia of K. Kamalanathan with a conflict of interest (by the ICRC rendering its decisions);

(f) failing to enforce a stay of proceedings;

(g) abusing the complaints process;

(h) acting with a conflict of interest as the co-defendant physicians were purportedly “de facto employees of the College”; and

(i) allegedly making fraudulent misrepresentations to HPARB by disclosing the College’s records of investigation (“ROI”).

Summary Judgment

90Applying the same legal framework as set out above, I grant summary judgment dismissing the claims against the College, as there is no genuine issue requiring a trial with respect to the plaintiffs' allegations against the College. The evidentiary record before the Court on this motion, including the uncontroverted evidence of Katja Lutte, is sufficient to allow me to make the necessary findings of fact. This case can be disposed of based on the expiry of the limitations period and no duty of care owed to private parties. These determinations can be fairly and justly made on the basis of the motion record and the accompanying documentary evidence. The law relating to the plaintiffs' claims is well-established and routinely applied by this Court. There are no novel or unique issues for this Court to consider. Finally, summary judgment in this case is a proportionate, more expeditious and less expensive means to achieve a just result, and no issue requires a trial.

Limitation Period

91For largely the same reasons given with respect to CAMH, I find that the claims against the College are barred by the limitation period. The statutory presumption in section 5(2) applies; it has not been proved otherwise. Thus, all of the claims are deemed to be discovered pursuant to section 5(1)(a) on the day the act or omission took place. As noted above, given the statutory presumption, the objective discovery date by definition would not be earlier; I find the deemed subjective discovery date is the date each act/omission underlying the claim occurred, which is the earliest date. The uncontroverted evidence before me is that the plaintiffs’ complaints to the College were made in 2012 and 2013, the decisions of the ICRC were rendered in September 2014, and the ICRC’s decision and reasons were released to the plaintiffs in December 2014. The plaintiffs admit receiving the ICRC decision in December 2014 at paragraph 369 of the Statement of Claim.

92With respect to the allegation that the College accessed records without the plaintiffs' consent, the affidavit of Katja Lutte, filed by the College on the summary judgment motion, provides uncontested evidence which establishes that the College had signed consents by the plaintiff K. Kamalanathan to obtain the medical and personal health records in issue in this litigation.

• In October, 2012 the College received a complaint from plaintiff R. Kamalanathan about Dr. Okyere relating to the plaintiff K. Kamalanathan.

• In November, 2012, the College obtained consents signed by the plaintiff K. Kamalanathan for the release of his medical information from CAMH, Scarborough Rouge Hospital and Dr. Okyere.

• In March, 2013 the College received complaints from the father about the five defendant physicians in this action.

• On June 13, 2013, the College received consents signed by the plaintiff K. Kamalanathan for the release of his personal health information from the CAMH Queen Street site, North York General Hospital (Finch site), and the five defendant physicians.

• In July, 2013 the College received consents signed by K. Kamalanathan for the release of personal health information to the College from Dr. Zatzman.

93The Lutte affidavit establishes that these records, together with the College’s investigative files, were compiled into the record of investigation provided to the ICRC. The College sent copies of the ICRC decisions to R. Kamalanathan in December, 2014. The College provided the HPARB with its investigative records, which included the medical and health records obtained with Mr. K. Kamalanathan’s consent. The plaintiffs received the College’s record of investigation in June, 2015. When confronted by a motion for summary judgment, the plaintiffs cannot solely rely on their pleading. The failure of a plaintiff to respond to the summary judgment motion with evidence to rebut the presumption in s. 5(2) of the Limitations Act, 2002 is fatal: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10 at para 8.

94Although the plaintiffs plead that they did not discover the alleged causes of action until the receipt of the HPARB decision in April 2016, that is a conclusion of law, not of fact. As set out above, the plaintiffs admit receiving the College’s record of investigation and the complete CAMH records by June, 2015. A reasonable person would know upon receipt of the records all elements of the claims. For the same reasons given above, this is the latest date from which the limitation period runs, on either an objective or subjective analysis. The plaintiffs submitted no evidence in response to the College’s motion for summary judgment.

95With respect to the allegations that the College acted with a conflict of interest and the co-defendant physicians were purportedly "de facto employees of the College," I accept the College's evidence is that the co-defendants were not employees of the College. There is no issue requiring a trial.

96With respect to the allegation that the College allegedly made fraudulent misrepresentations to HPARB by submitting records gathered during the course of its investigation to HPARB as a record of investigation ("ROI"), again, no evidence was submitted by the plaintiffs. The evidence of the College is that the College submitted its investigative record (ROI) to HPARB, as required by section 32(1) of the Code. The applicable limitation period expired.

97I do not need to consider the motion to strike in light of my findings on summary judgment. I grant summary judgment to the College, and dismiss the plaintiffs’ Claim as against the College with costs.

(a) No Private Law Duty of Care

98I also find that the plaintiffs have no reasonable cause of action as against the College in negligence or fiduciary duty, because the College does not owe them a duty of care. The duties owed by the College are to the public-at-large. Section 3(2) of the Code provides: “In carrying out its objects, the College has a duty to serve and protect the public interest.”

99The Statement of Claim does not allege that the College owed the plaintiffs a private law duty of care to the plaintiffs, nor does it plead any facts that would give rise to a private law duty of care. The College does not owe a private law duty of care to individuals who register complaints with the College, and they are not vicariously liable for the actions of its members, physicians who are the subject of complaints: Montgomery v. Seiden, 2012 ONSC 6235 at paras. 45-63.

100There is no basis in law or in the facts, as pleaded, which would give rise to a fiduciary duty owed to the plaintiffs by the College. Because it owes duties to the public-at-large, the College cannot have a fiduciary duty or special relationship of trust to the individual plaintiffs. I would have struck the claims without leave to amend, as they are incapable of being proved.

Abuse of Process

101Rule 21.01(3)(d) permits a defendant to move to have an action dismissed on the ground that the action is an abuse of process of the Court. Rule 25.11 further empowers the Court to strike out a pleading, with or without leave to amend, on the grounds that the pleading is an abuse of process. The plaintiffs’ allegations against the College exclusively relate to the College’s exercise of its statutory duties and, in particular, its handling, investigation and disposition of the complaints.

102The College’s governing legislation sets out a comprehensive and exclusive statutory process governing the investigation, handling and disposition of complaints, which includes the right to seek a review of ICRC decisions by the HPARB.

103In this case, the plaintiffs exercised their statutory review rights and the ICRC’s decisions relating to the complaints were reviewed and upheld by the HPARB. The plaintiffs now seek to circumvent the comprehensive statutory scheme governing complaints to the College. This constitutes a collateral attack on the decisions of the ICRC and the HPARB. Allowing it to proceed would be an abuse of process.

104In Montgomery v. Seiden the Court relied on Rule 25.11, in addition to Rule 21.01(1)(b), to strike a claim against the College, holding at para. 62:

62It is also clear that Montgomery's claim is an attempt at a collateral attack on the decisions of the ICRC and the Board. There is a comprehensive statutory process which must be followed with respect to the investigation and disposition of complaints by the College, including the right of review by the Board of decisions made by the ICRC. Montgomery has already had the opportunity to pursue a complaint, to have the complaint reviewed and she was provided with a second opportunity to have the complaint reviewed. An independent tribunal reviewed the adequacy of the investigation as well as the reasonableness of the decision according to its mandate. I agree that the very issues which the Board considered have now resurfaced in Montgomery's Claim. Montgomery has exhausted her appeal routes and has now chosen to attempt to deal with these issues again in the litigation process. I find that this is a collateral attack and an abuse of process and as such, the Claim should also be struck as against Costello and the College pursuant to Rule 25.11.

105For the same reasons, I would strike the claims against the College, without leave to amend as the claims are untenable as a matter of law: Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280 at para. 93.

7. CAMH Action: The Defendant Physicians

106In March 2013, R. Kamalanathan made a complaint to the College about the treatment by the five defendant Physicians of his son K. Kamalapiriyan. The five defendant physicians bring a motion to strike the claim without leave to amend under both Rule 21.01(1)(b) as disclosing no reasonable cause of action, and Rules 21.01(3)(d) / 25.11 as frivolous, vexatious or otherwise and abuse of process. The physicians also assert that the limitation period expired long before the action was commenced. No evidence was filed by the physicians. On the motions to strike I must assume that the facts pleaded by the plaintiffs are true unless blatantly ridiculous or incapable of proof.

107As set out in Balanyk v. University of Toronto, 1999 14918 (ON SC), [1999] O.J. No. 2162 at para. 46 (SCJ), the purposes of pleadings are threefold:

(a) to give precise notice to the opposite party of the case which is to be met, sufficient to enable the opposite party to plead;

(b) to assist the court in understanding the material facts alleged and the factual and legal issues in dispute between the parties; and

(c) to establish a benchmark against which the parties and the court may determine the relevance of evidence on discovery and at trial and the scope of the evidence which will be required to fairly and efficiently address the issues in dispute.

108The claims against the five physicians are generally set out at paras. 10-15, 96-107, and 108-354. There are very few, if any, material facts pleaded in support of most of the causes of action. The focus is on clinical care provided in the period prior to August, 2005. Even on a generous reading of the pleading, it is unfair to expect the defendant Physicians to know the case to meet beyond general allegations of wrongdoing. The claim is long, disjointed and generally incomprehensible. It alleges almost 20 different causes of action and fails to connect pleaded facts to particular claims. Several causes of action are entirely incompatible with the facts as pleaded. The plaintiffs have failed to plead constituent elements of most or all of the causes of action alleged. For example, the plaintiffs plead:

(a) misrepresentation, but do not plead specific statements or reliance on those statements;

(b) breach of contract, but do not plead the existence of any valid contract;

(c) oppression, but do not plead any of the constituent elements of oppression (and, indeed, the claim does apply in this factual context);

(d) diversion, but do not plead any of the constituent elements of the tort (and, indeed, this is not a real property claim);

(e) conspiracy, but do not plead a predominant intention to harm the plaintiffs or unlawful conduct;

(f) defamation, but do not plead any specific statements, how they were published or that they would tend to lower the plaintiffs in the eyes of the community; and

(g) breaches of the Mental Health Act, Public Hospitals Act, Health Care and Consent Act, the Personal Health Information Protection Act, the Medicine Act, and the Criminal Code but do not plead the sections allegedly breached, how and when they were breached, or by whom, and in any event, statutory breach is not a cause of action in Canada.

109Ultimately, the Statement of Claim does not give the defendant physicians fair notice. It is struck on this basis.

110As I have found with respect to the other two defendants, the limitation period expired long before the action was commenced. On the face of the pleading, the claims are statute-barred. This is an unusual case, in that the discoverability aspect of the claim is pleaded in the Statement of Claim as noted above. Although it is unusual to deal with the issue of limitation periods as a question of law, without evidence, on a motion to strike, this is the unusual circumstance in which I may do so. The plaintiffs proactively addressed the issue of discoverability at paras. 369-370. The Statement of Claim was issued on July 17, 2017. All of facts relating to the alleged negligence, “medical malpractice” and “breach of contract” by the defendant physicians took place prior to August, 2005. The last interaction between the plaintiffs and any of the defendant physicians, as pleaded, was in August, 2005. All alleged record falsifications and alleged improper access to patient files by these physicians, all of which I note are bald allegations, were pleaded to have taken place prior to August, 2005. The plaintiffs are presumed to know of these claims by no later than 2005, by virtue of the presumption in Limitations Act, 2002, section 5(1)(a). The plaintiffs made a complaint to the College about the five defendant physicians by March 2013.

111The Statement of Claim itself contains an admission that the complete CAMH records were obtained by June, 2015. To the extent that the claims against the defendant physicians required access to CAMH records, the records were available no later than June, 2015. The only date falling within two years of the issuance of the Claim, July 17, 2017, is the release of the HPARB decisions in April, 2016. The Board simply upheld the College’s decisions regarding the defendant Physicians. Moreover, the harm allegedly suffered by the plaintiffs is entirely independent of and unrelated to the Board's decisions. The Board's adjudication in 2016 did not affect the nature of the impugned conduct of the defendant Physicians in 2004-2005. Since the plaintiffs had made a complaint to the College, they were aware of the impugned conduct.

112Moreover, K. Kamalapiriyan’s medical records were available to K. Kamalapiriyan on request at all times since 2005, both by virtue of PHIPA, sections 52-53, and the common law right established under McInerney v. MacDonald, 1992 57 (SCC), [1992] 2 S.C.R.138 (SCC). The plaintiffs were obliged to exercise due diligence. They cannot wait for almost a decade to complain to the College about the conduct of treating physicians, and then rely on that delay to toll the limitation period. There is no reason the plaintiffs could not have discovered any cause of action by exercising reasonable diligence prior to July 2015. Indeed, given the complaint to the College in March 2013, the plaintiffs were aware of all the facts on which their claims rest. I accept the admission by the plaintiffs in their pleading that they obtained the files more than two years prior to the commencement of the action. I strike the claims against the five physicians on the basis of the expiry of the limitation period as a question of law.

113I would strike the claims without leave to amend. The expiry of a limitation period presumptively credits non-compensable prejudice: Golic v. ING Insurance Company of Canada, 2001 ONCA 836 at paras. 22-23.

F. Background Facts: Okyere and Zatzman Claims

114The background facts in CV-16-565940 (the Okyere Claim) and CV-17-578559 (the Zatzman Claim) overlap, and I treat them together to provide context in this part of the decision.

115On December 13, 2016, the plaintiffs commenced an action against Dr. Okyere and Scarborough and Rouge Hospital in the Okyere Claim, with respect to: (1) treatment provided to the plaintiff K. Kamalanathan, by Dr. Ebenezer Okyere between February 27, 2006 and October 15, 2008 while K. Kamalanathan was registered for and attended Scarborough and Rouge’s outpatient Mental Health Program; and (2) a private medical report paid for by the plaintiff R. Kamalanathan (K. Kamalanathan's father) written by Dr. Okyere in March 2012 regarding K. Kamalanathan's mental health.

116The plaintiffs allege that Dr. Okyere was negligent in his medical treatment of Mr. K. Kamalanathan between February 2006 and October 2008, and that he made fraudulent misrepresentations in a Psychiatric Report in March, 2012 regarding Mr. K. Kamalanathan's medical condition, which allegedly resulted in the family's immigration application to Australia being denied. The presumably discretionary decision of the Australian immigration authorities is not part of this litigation, and I fail to see how any cause of action relating to the nature of documents provided to an independent decision-maker in these circumstances could lead to damages, given the remoteness.

117On July 10, 2017, the plaintiffs commenced a separate action against Dr. Okyere, Dr. Zatzman and the College as Court File No. CV-17-578559 (the "Zatzman Claim"). In the Zatzman Claim, the plaintiffs advance the same allegations against Dr. Okyere as contained in the Okyere Claim. As against Dr. Zatzman, the plaintiffs allege that he failed to properly conduct a health examination and report accurately on Mr. K. Kamalanathan's mental condition to the Australian Government in 2012, and inappropriately referred Mr. K. Kamalanathan to Dr. Okyere.

118The allegations against the College relate to its handling, investigation, and disposition of the plaintiffs’ complaints about Drs. Zatzman and Okyere.

119Dr. Zatzman, Dr. Okyere, the College and the Scarborough and Rouge Hospital filed affidavit evidence on the summary judgment motions. The plaintiffs filed no evidence.

Assessment and Treatment by Dr. Okyere (February 2006 to October 2008)

120In February 2006, Mr. K. Kamalanathan was referred to Dr. Okyere by his family physician for a diagnostic assessment. Dr. Okyere first saw Mr. K. Kamalanathan on February 27, 2006 in the outpatient mental health clinic at Scarborough and Rouge. Based on his initial assessment, Dr. Okyere's impression was that Mr. K. Kamalanathan's symptoms were most likely suggestive of a schizophrenic illness. At the time, Mr. K. Kamalanathan's father, Mr. R. Kamalanathan, acknowledged that his son had been diagnosed as suffering from schizophrenia at CAMH.

121Dr. Okyere continued to see Mr. K. Kamalanathan as an out-patient in the mental health clinic at Scarborough and Rouge from February 2006 to October 2008. Dr. Okyere was an independent medical practitioner with privileges at Scarborough and Rouge, and was not an employee of Scarborough and Rouge.

122Throughout the time Dr. Okyere was involved in Mr. K. Kamalanathan's care, Mr. R. Kamalanathan remained closely involved with his son's care and treatment. Dr. Okyere’s affidavit evidence is that Mr. R. Kamalanathan did not accept Dr. Okyere's diagnosis of schizophrenia and did not accept his professional opinions and/or treatment recommendations. Rather, Mr. R. Kamalanathan continued to insist that his son was suffering from a depressive illness. As Mr. R. Kamalanathan remained unwilling to accept Dr. Okyere's diagnosis and treatment recommendations, the physician-patient relationship between Mr. K. Kamalanathan and Dr. Okyere was terminated in October 2008.

Application for Immigration to Australia (January to March 2012)

123Dr. Zatzman first met Mr. K. Kamalanathan on January 16, 2012, for a medical examination for the purposes of Mr. K. Kamalanathan's immigration application to Australia. Based on the history provided and his examination, Dr. Zatzman completed a Health Report. Mr. K. Kamalanathan's Medical Assessment Information, including the Health Report, was sent to the Australian Government's Department of Immigration and Citizenship ("Australian Government") on January 26, 2012.

124After receiving the Medical Assessment Information, the Australian Government requested that Mr. K. Kamalanathan provide further medical information. In particular, the Australian Government requested an assessment by a psychiatrist regarding Mr. K. Kamalanathan's diagnosis of schizophrenia. It was specifically requested that the report address Mr. K. Kamalanathan's medical history, including details of previous hospitalizations.

125Dr. Zatzman saw Mr. K. Kamalanathan again on March 14, 2012 to discuss the Australian Government's request for further information regarding his past history of psychiatric admissions. At the time, Dr. Zatzman completed an Assessment of Activities of Daily Living in accordance with the Australian government's request. During this appointment, it was agreed that Mr. K. Kamalanathan would be referred to Dr. Okyere for a third party psychiatric assessment given Dr. Okyere's previous involvement with Mr. K. Kamalanathan.

126Dr. Okyere met with Mr. K. Kamalanathan and his family at Scarborough and Rouge on March 24, 2012 to conduct the requested psychiatric assessment. On March 26, 2012, Dr. Okyere completed a psychiatric assessment report (the "Psychiatric Report"), which concluded that Mr. K. Kamalanathan suffered from a severe psychotic illness, most likely a schizophrenic illness.

127On March 27, 2012, Dr. Okyere sent a copy of the Psychiatric Report to Dr. Zatzman as directed. On March 29, 2012, Dr. Zatzman's office forwarded a copy of the Psychiatric Report to the Australian Government. In accordance with the direction of the Australian Government, the Psychiatric Report was not released directly to Mr. K. Kamalanathan or his family.

128Dr. Okyere had no further involvement in the care, treatment or assessment of Mr. K. Kamalanathan, and had no further involvement with the Kamalanathan family's application for immigration to Australia, after March 2012. Dr. Zatzman had no further involvement with the Kamalanathan family's application for immigration to Australia after March 2012.

Requests to Obtain Records and Report

129On May 1, 2012, Mr. R. Kamalanathan requested a copy of the Psychiatric Report from Scarborough and Rouge. Dr. Okyere advised the Scarborough and Rouge staff that due to the nature of the Psychiatric Report, it could not be released directly to Mr. K. Kamalanathan or his family. At the time, Dr. Okyere confirmed with Dr. Zatzman that the Australian Government had directed that information not be released directly to applicants.

130After further inquiries by Mr. R. Kamalanathan, and at Dr. Okyere's direction, Scarborough and Rouge staff advised Mr. R. Kamalanathan that they could release a copy of the Psychiatric Report to him on the understanding that the Australian Government would be notified of his request and receipt of the report. In response, Mr. R. Kamalanathan advised that he did not want to proceed with the request.

131On October 4, 2012, the plaintiffs requested through their counsel copies of Mr. K. Kamalanathan’s medical records from his outpatient treatment at Scarborough and Rouge from 2006 to 2008 and a copy of the Psychiatric Report prepared by Dr. Okyere for the Australian immigration authorities in March 2012. The Scarborough and Rouge sent plaintiffs' counsel the clinical notes and records for 2006 to 2008. The Scarborough and Rouge noted that this disclosure did not include the Psychiatric Report prepared by Dr. Okyere in March 2012.

132Also in October 2012, the plaintiffs directly sought to obtain copies of K. Kamalanathan's medical records from his outpatient treatment at the Scarborough and Rouge from 2006 to 2008. In October, 2012 the Scarborough and Rouge responded to the plaintiffs' request and provided to them a copy of K. Kamalanathan's outpatient clinic records from 2006 to 2008.

133On February 15, 2013, R. Kamalanathan contacted the Scarborough and Rouge’s Privacy Officer to request, among other documents, a copy of Dr. Okyere's Psychiatric Report of March 26, 2012. He was informed on February 22, 2013 that documents, including the report, were ready for release, and he informed the Hospital that he would attend at the Hospital on February 25, 2013 to collect them.

134The Psychiatric Report, having been issued from a physician with privileges in the Hospital's mental health program, was printed on the Hospital's letterhead.

135The Psychiatric Report became the subject of complaints by R. Kamalanathan including to the College of Physicians and Surgeons of Ontario ("CPSO") and the Information and Privacy Commissioner of Ontario ("the Privacy Commissioner"). In the complaint to the Privacy Commissioner, R. Kamalanathan referenced the content of the Psychiatric Report, and the fact that it was printed on Scarborough and Rouge’s letterhead.

Plaintiffs’ Complaint to the Privacy Commissioner

136In June, 2014, the plaintiffs submitted a complaint to the Privacy Commissioner claiming breaches of PHIPA because of the allegedly inappropriate collection, disclosure, and use of K. Kamalanathan's personal information by the Scarborough and Rouge. As stated above, this complaint stemmed from the content and form of the Psychiatric Report created by Dr. Okyere in March 2012 and obtained by the plaintiffs in February, 2013.

137In its response to the plaintiffs' complaint, the Scarborough and Rouge denied that K. Kamalanathan's personal information had been inappropriately collected, disclosed, or used. It explained that any information provided to the Hospital was at the request of K. Kamalanathan's treating physicians as part of his circle of care. Furthermore, it took the position that the Psychiatric Report was created and issued to Dr. Zatzman (the Australian government's panel physician) by Dr. Okyere at the request of both Dr. Zatzman and R. Kamalanathan for the purpose of K. Kamalanathan's application to immigrate to Australia.

138On or around October 30, 2014, the Privacy Commissioner Analyst handling the plaintiffs' complaint provided the plaintiffs the opportunity to provide written submissions regarding the application of PHIPA to the circumstances of their complaint and to explain why the complaint should proceed. The plaintiffs failed to provide the Privacy Commissioner’s office with written submissions. Therefore, in December, 2014, the plaintiffs' complaint was closed.

The Plaintiffs’ Complaints to the College (October 2012 and March 2013)

(b) Complaint Against Dr. Okyere

139On October 27, 2012, Mr. R. Kamalanathan submitted a formal complaint to the CPSO regarding Dr. Okyere. Dr. Okyere submitted a reply to the CPSO on January 24, 2012. In accordance with s. 36(3) of the RHPA, the reports, documents and statements prepared in the context of Mr. R. Kamalanathan's complaint to the CPSO are not admissible in this civil proceeding.

140On March 25, 2013, Mr. R. Kamalanathan submitted a further letter of complaint to the CPSO about Dr. Okyere regarding the care and treatment provided to Mr. K. Kamalanathan at Scarborough and Rouge between 2006 and 2008, and regarding the Psychiatric Report in 2012. Mr. R. Kamalanathan submitted further details of his concerns regarding Dr. Okyere to the CPSO on April 18, May 1, and July 9, 2013.

141In November 2013, Mr. R. Kamalanathan retained a staff lawyer at the South Asian Legal Clinical of Ontario to assist with the complaint regarding Dr. Okyere's Psychiatric Report.

(c) Complaint As Against Dr. Zatzman

142On March 27, 2013, Mr. R. Kamalanathan submitted a formal letter of complaint to the CPSO outlining his concerns regarding Dr. Zatzman's handling of Mr. K. Kamalanathan's independent medical assessment performed in 2012. Dr. Zatzman submitted a response to Mr. R. Kamalanathan's complaint on September 30, 2013. In accordance with s. 36(3) of the RHPA, the reports, documents and statements prepared in the context of Mr. R. Kamalanathan's complaint to the CPSO are not admissible in a civil proceeding.

143On October 18, 2013, Mr. R. Kamalanathan submitted a letter to the CPSO further detailing his concerns about Dr. Zatzman's handling of Mr. K. Kamalanathan's independent medical assessment.

(d) Outcome of the complaints

144The College investigated the complaints. For the purposes of its investigation of the complaints, the College sought and obtained consents from K. Kamalanathan for the release of his medical information as described above. The ICRC considered the complaints about Drs. Zatzman and Okyere, together with five other complaints made by R. Kamalanathan to the College (as described in the CAMH Claim), rendering seven separate decisions in December, 2014.

145Mr. R. Kamalanathan subsequently requested that the Health Professions Appeal and Review Board ("HPARB") review the ICRC's decisions with respect to the defendant physicians. The College provided the record of the investigation to the HPARB, which included the clinical notes and records, hospital records and the Psychiatric Report, upon which the ICRC’s decisions were based. The HPARB subsequently reviewed and upheld all seven decisions, including the two complaints relating to the two physician defendants in this action.

146In March 2016, the HPARB issued separate Decisions and Reasons regarding the complaints against each of the defendant physicians.

G. Decision on Zatzman Claim: CV-18-578559

147The following issues are raised in the Zatzman claim:

(1) Should the claims against the College be struck under Rule 21 without leave to amend? Should summary judgment be granted dismissing the claim against the College?

(2) Should summary judgment be granted dismissing the claims against Drs. Okyere and Zatzman?

1. Claims Against the College

148The Plaintiffs “claim compensatory damages from the CPSO for undertaking a bogus investigation” on the co-Defendants and making decisions based on allegedly “altered PHIPA records of the respective hospitals abusing their privileges to access records without consent.”

149I accept the description of the allegations against the College as follows:

1. improper appointments of investigators;
2. conducting improper and incomplete investigations;
3. not cooperating with the Plaintiffs in their Australian visa appeal process;
4. accessing records without the plaintiffs’ consent;
5. allowing hospital records to be altered;
6. failure to provide records and/or reports to the Plaintiffs;
7. accepting documents that they allege were falsified;
8. acting in concert with the co-Defendants by allegedly creating a “PHIPA record” under “false pretenses”;
9. breaching a “locked bag” or “lock box”;
10. validating an “improper medical-legal report” and endorsing an allegedly “unfounded” medical diagnosis of Schizophrenia;
11. overriding a stay of proceedings;
12. rendering a decision without an “investigator’s report” and post-dating an unpublished ICRC decision;
13. allegedly re-submitting “newly created PHIPA records” to the Health Professions Appeal and Review Board (“HPARB”) as its record of investigation (“ROI”), and
14. allegedly making fraudulent misrepresentations to HPARB through the provision of the ROI.

No Private Law Duty of Care

150I find that the College owes no private law duty of care to the plaintiffs, for the reasons given in the CAMH claim. As a result, I strike out the claims on that basis.

No Vicarious Liability

151I find that the College, the regulator of physicians, is not vicariously liable for the actions of its members. To the extent that the plaintiffs rely on an inferred claim of vicarious liability, this claim is not sustainable for reasons given in the CAMH claim.

Collateral Attack/Abuse of Process

152The plaintiffs’ allegations against the College exclusively relate to the College's exercise of its statutory duties and, in particular, its handling, investigation and disposition of the complaints made by R. Kamalanathan about Drs. Zatzman and Okyere.

153The College’s Governing Legislation sets out a comprehensive and exclusive statutory process governing the investigation, handling and disposition of complaints, which includes the right to seek a review of ICRC decisions by the HPARB. In this case, the Plaintiffs exercised their statutory review rights and the ICRC’s decisions relating to the complaints were reviewed by the HPARB. The Plaintiffs now seek to circumvent the comprehensive statutory scheme governing complaints to the College: Montgomery, supra, at para. 62. I strike out the claim on this basis, as an abuse of process, without leave to amend.

Summary Judgment

154I apply the same legal framework set out in the CAMH claim. I grant summary judgment dismissing the action against the College. The affidavit evidence of Katja Lutte is unchallenged, and the plaintiffs have not filed any evidence in response.

155I agree with the College that there is no genuine issue requiring a trial with respect to the allegations against the College, and accept that:

(a) With respect to the allegations of improper appointments of investigators, there is no evidence before the Court to substantiate this allegation and no cause of action lies against the College with respect to its staffing decisions and/or appointments of investigators.

(b) With respect to the allegation that the College conducted “improper and incomplete investigations,” the evidence before the Court is that the College investigated the complaints and disposed of them, with ICRC decisions having been rendered in each complaint. Alleged inadequacies of complaints investigations are within the jurisdiction of the HPARB. No cause of action lies against the College with respect to its complaints investigation.

(c) With respect to the allegation that the College did not cooperate with the Plaintiffs in their Australian visa appeal process, the College’s statutory duties and objects do not include assisting members of the public with immigration or visa applications.

(d) With respect to the allegation that the College accessed records without the plaintiffs’ consent, the evidence of Katja Lutte demonstrates that consents of K. Kamalanathan were obtained and that records obtained for the purposes of the complaints investigations were obtained pursuant to those consents. That evidence is uncontroverted.

(e) With respect to the allegations that the College allowed hospital records to be altered, accepted documents that the Plaintiffs allege were falsified, acted in concert with the co-Defendants by allegedly creating a “PHIPA record” under “false pretenses”, breached a “locked bag” or “lock box”, validated an “improper medical-legal report” or endorsed an allegedly “unfounded” medical diagnosis of Schizophrenia, there is no evidence before the Court to substantiate these allegations or that the College acted outside its statutory scope of duties. The College’s evidence is that the ICRC only performs a screening functions, does not make findings of fact, and neither the College, nor its investigators, nor the ICRC, alter or endorse the medical information received for the purposes of a complaints investigation (see Lutte Affidavit, paras. 7-9).

(f) With respect to the allegations that the College failed to provide records and/or reports to the plaintiffs, there is no duty to provide such materials.

(g) With respect to the allegation that the College allegedly made fraudulent misrepresentations to HPARB by submitting records gathered during the course of its complaints’ investigation to HPARB as a record of investigation (“ROI”), again, no evidence was submitted by the Plaintiffs. The evidence of the College is that the College submitted its investigative record to HPARB, as required by section 32(1) of the Code. The College simply complied with its Governing Legislation.

156I also find that the action is barred by a limitation period. The governing law is set out in the CAMH claim. The College’s evidence demonstrates that the plaintiffs’ complaints to the College were made in 2012 and 2013, the decisions of the ICRC were rendered in September 2014, and the ICRC’s decision and reasons were released to the Plaintiffs in December 2014.

157The Plaintiffs admit receiving the ICRC decision in December 2014 at paragraph 185 of the Statement of Claim. Although they plead that they did not discover their alleged causes of action until later, no evidence has been submitted in response to the College’s motion for summary judgment. Pleadings are not evidence.

158When confronted by a motion for summary judgment, the Plaintiffs cannot solely rely on their pleading of discoverability. The failure of a plaintiff to respond to the summary judgment motion with evidence to rebut the presumption in s. 5(2) of the Limitations Act, 2002 is fatal: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10 at para 8.

159As a result, I grant summary judgment dismissing the plaintiffs’ action against the College.

2. Claims Against the Physicians

160The defendant physicians bring a summary judgment motion seeking to dismiss the action on the grounds that it is barred by a limitation period. I set out the applicable legal framework regarding both summary judgment and limitation periods in the CAMH claim.

161The initial care and treatment at issue by Dr. Okyere took place between February 2006 and October 2008. As such, the limitation period presumptively expired as of October 2010. The Statement of Claim was not issued until July, 2017. The defendant physicians’ assessments of Mr. K. Kamalanathan, in the context of the plaintiffs’ application for immigration to Australia, took place in January through March, 2012. As such, the limitation period presumptively expired as of March 2014. When a limitations defence is raised, the plaintiff bears the onus of leading evidence to displace the statutory presumption of the date on which he discovered his claim.

162In response to the defendant physician’s motion for summary judgment, no evidence was filed by the plaintiffs. Accordingly, there is no evidence before this court capable of rebutting the presumption that the plaintiffs knew of the allegations they now make against Dr. Okyere regarding his care and treatment of Mr. K. Kamalanathan as of October 2008 (i.e. when the physician-patient relationship between Mr. K. Kamalanathan and Dr. Okyere was terminated). Similarly, there is no evidence before this court capable of rebutting the presumption that the plaintiffs knew of the allegations they now make in regards to the immigration assessments as of March 2012 (i.e. when the defendant physicians conducted assessments of Mr. K. Kamalanathan). There is similarly no evidence before this court capable of rebutting the presumption that the plaintiffs knew of the allegations they now make against the defendant physicians as of October 27, 2012 and March 27, 2013 (i.e. when Mr. R. Kamalanathan submitted formal complaints to the CPSO).

163Given the plaintiffs’ obligation to put their “best foot forward” in response to the defendant physicians’ motions for summary judgment and their onus to rebut the presumption under s. 5(2), this court is entitled to assume that there will be no additional evidence at trial to assist the plaintiffs on these issues.

164By October 2008 (when the physician-patient relationship between Mr. K. Kamalanathan and Dr. Okyere was terminated), and certainly by October 2012 (when Mr. R. Kamalanathan submitted a formal complaint to the CPSO about Dr. Okyere’s care and treatment of Mr. K. Kamalanathan), the plaintiffs knew sufficient facts on which to base the allegations now made against Dr. Okyere regarding his care and treatment of Mr. K. Kamalanathan. Similarly, by March 2012 (when the defendant physicians conducted assessments of Mr. K. Kamalanathan), and certainly by October 2012 (when Mr. R. Kamalanathan submitted a formal complaint to the College about Dr. Okyere’s assessment of Mr. K. Kamalanathan), the plaintiffs knew sufficient facts on which to base the allegations now made against Dr. Okyere regarding his involvement in the immigration assessments.

165By March 2012 (when the defendant physicians conducted assessments of Mr. K. Kamalanathan), and certainly by March 2013 (when Mr. R. Kamalanathan submitted a formal complaint to the CPSO about Dr. Zatzman’s assessment of Mr. K. Kamalanathan), the plaintiffs knew sufficient facts on which to base the allegations made as against Dr. Zatzman regarding his involvement in the immigration assessments.

166The allegations against the defendant physicians in this action arises from the same underlying events as the allegations in the plaintiffs’ complaints to the CPSO in October 2012 and March 2013. At the time they filed their complaint to the CPSO, the plaintiffs had actual knowledge of the matters giving rise to the claims they now make in the actions.

167In their statements of claim, the plaintiffs seem to suggest they could not have discovered their claims against the defendant physicians until they had been provided with medical records through the College, and/or until they had been provided with medical records through the HPARB and/or until the decisions of the CPSO and/or the HPARB were released. The plaintiffs admit that the records were received by June, 2015, including the College’s record of investigation. I reject the claim of discoverability through the HPARB regulatory decision for reasons given above: Boychyn v. Abbey, 2001 CarswellOnt 4112 (S.C.J); Pantin v. Belman, 2010 CarswellOnt 2536 (S.C.J).

168As the Court of Appeal confirmed in Brown v. Wahl, there is “an important difference between proof of the discovery of a claim for the purpose of the commencement of a limitation period … and proof of the breach of a duty of care”. Learning additional information about allegations does not change the initial date on which the plaintiffs knew sufficient material facts to make a claim: Brown v. Wahl, 2015 ONCA 778 paras. 17-18.

169As a result, summary judgment is granted, and the action is dismissed as against the two physician defendants, Dr. Okyere and Dr. Zatzman.

H. Decision on Okyere Claim: CV-16-565940

1. Claims against the Scarborough and Rouge Hospital

170I have set out the legal framework applicable to summary judgment motions in the CAMH claim.

171I find that the claims against the Hospital are out of time and barred by the limitation period. The Limitations Act, 2002, provides that a proceeding shall not be started more than two years after the claim was discovered. There is a statutory presumption that a claim was discovered on the day the alleged action or omission took place. In this case, the allegedly negligent treatment took place between 2006 and 2008, and the allegations with respect to the psychiatric report of Dr. Okyere stem from events in March 2012. The plaintiffs’ Statement of Claim was issued on December 13, 2016.

172With regard to the allegations of negligent treatment by Dr. Okyere, for which the plaintiffs claim the Hospital should be held responsible, the limitation period had expired by the end of October 2010, over six years prior to the issuance of the Statement of Claim.

173Even if the plaintiffs' claim that the limitation period with respect to the claims of negligent treatment did not begin until they had received access to the medical records of the treatment from 2006 to 2008, the limitation period as calculated on that basis has also expired. The plaintiffs had obtained access to these records in October 2012. Any claims relating to the treatment that were discovered on receipt of these records therefore became statute-barred by the end of October 2014, over two years prior to the issuance of the Statement of Claim.

174With regard to any claims as against the Hospital arising from the Psychiatric Report prepared by Dr. Okyere in March 2012, the subjective limitation period had expired by the end of March 2014, over two years prior to the issuance of the Statement of Claim. These claims are therefore also statute-barred.

175Furthermore, even if the plaintiffs claim that the limitation period with respect to these claims did not begin until they had received a copy of Dr. Okyere's report, the limitation period as calculated on that basis has also expired. The plaintiffs requested and received a copy of the report in February 2013, a fact acknowledged by the plaintiffs in their Reply to the Hospital's Statement of Defence. In addition, the content and form of the report formed the basis of the plaintiffs' complaints against Dr. Okyere and the Hospital to the College and the Privacy Commissioner in June 2014.

176Any claims relating to the March 2012 Psychiatric Report of Dr. Okyere that were discovered on receipt of a copy of the Report became statute-barred by the end of February 2015, almost two years prior to the issuance of the Statement of Claim.

177The expiry of the applicable limitations periods is dispositive of this action. Reviewing the allegations made in the Statement of Claim, none of them post-date April 2014.

178The plaintiffs seem to suggest in their Statement of Claim that the limitation periods applicable to any claims relating to K. Kamalanathan’s patient records did not begin to run until June 2015, since this was the date these were "submitted to CPSO and received by HPARB", to be "used in [HPARB's] decisions in April 2016". To accept this argument would be to misapply the Limitations Act, 2002, which makes it clear that the two-year period begins to run from when the claim is first discovered, and not when the evidence underlying the claim is most recently reiterated or reproduced. Indeed, as shown above, the plaintiffs had obtained a copy of K. Kamalanathan’s complete patient records from 2006 to 2008 at the Hospital as early as October 2012.

179In order to raise a limitation defence, the plaintiffs bear the onus of displacing the statutory presumption. They must meet both a subjective and objective standard test of non-discovery. The plaintiffs have failed to file any evidence in response to the Hospital's motion for summary judgement and therefore have failed to rebut the presumption that they knew of the existence of the claim in 2008 when K. Kamalanathan was no longer under Dr. Okyere's care, or after Dr. Okyere's report was completed in 2012: Bergen v. Fast Estate, 2018 ONCA 484, para 10; Miaskowski v. Persaud, 2015 ONSC 1654, para 69.

The Hospital is not Responsible for the Treatment Provided by an Independent Medical Practitioner

180The plaintiffs' claims of improper conduct, diagnosis, and treatment as against the Hospital must fail. The law is settled in Ontario that hospitals are not vicariously liable for the negligence of physicians. Physicians are responsible for diagnosis and treatment - not hospitals or any of their employees. At all material times, Dr. Okyere was an independent medical practitioner with privileges at the Hospital. Accordingly, even if there was negligent conduct, diagnosis, and/or treatment on the part of Dr. Okyere, the Hospital cannot be held liable: Yepremian et al v Scarborough General Hospital el al, [1980] O.J. No. 3592 (ONCA) at paras 32-35.

2. Claims Against Dr. Okyere

181The claims against Dr. Okyere in the Okyere claim all relate to treatment and assessment in the period 2006 to 2008, and a medical-legal report prepared in March, 2012. Dr. Okyere submits that this case is appropriate for summary judgment. I agree. The evidentiary record before the Court in this motion is sufficient to allow me to make the necessary findings of fact. This case can be disposed based on the expiry of the limitations period. These determinations can be fairly and justly made on the basis of the motion record and the accompanying documentary evidence. The law relating to the plaintiffs' claims is well-established and routinely applied by this Court. There are no novel or unique issues for this Court to consider. Finally, summary judgment in this case is a proportionate, more expeditious and less expensive means to achieve a just result, and no issue requires the costs and court resources of a full trial.

182The presumptive limitation period pursuant to s. 5(2) of the Limitations Act is the date that the acts or omissions occurred, all of which are more than two years prior to the commencement of the claim in December, 2016. The plaintiffs bear the onus of leading evidence to displace the statutory presumption on a summary judgment motion, and they have failed to do so. The claims relating to periods of treatment, assessment, and the medical-legal report are clearly out of time. The plaintiffs make some allegations extending to April, 2014. They make bald allegations that Dr. Okyere “continuously intervened thereafter in modifying and/or altering the PHIPA records at [Scarborough and Rouge Hospital] and CAMH without authority and without consent of Kamalapiriyan until April 2014, for purpose of [Scarborough and Rouge] issuing a newly created version of the PHIPA records to the CPSO investigators.” Even accepting this date, for which I note there is no supporting evidence on the summary judgment motion, this is more than two years prior to the commencement of the claim in December, 2016. In addition, R. Kamalanathan made a complaint to the College about Dr. Okyere in October, 2012, and again in March, 2013. The plaintiffs knew of the grounds they now raise in respect of the treatment and report by that time. Since the records all relate to Mr. K. Kamalanathan, with due diligence all records could have been obtained at the time of creation, as well as at the time of any alteration. As a result, I grant summary judgment and dismiss the claims as against Dr. Okyere, with costs.

I. Orders

183In the CAMH Claim:

(1) Summary judgment is granted and the claim against CAMH is dismissed, with costs of $2,500;

(2) Summary judgment is granted and the claim against the College is dismissed, with costs of $2,500;

(3) The Claim against Drs. Truong, Shammi, Wilkie, Ginsberg and Friedman is struck without leave to amend, with costs of $2,500;

184In the Zatzman Claim:

(1) Summary judgment is granted and the claim against the College is dismissed, with costs of $5,000.00;

(2) Summary judgment is granted and the claim is dismissed as against Dr. Okyere and Dr. Zatzman, with costs of $2,500.00;

185In the Okyere Claim:

(1) Summary judgment is granted and the claim against the Scarborough and Rouge Hospital is granted, with costs of $2,500.00;

(2) Summary judgment is granted and the claim against Dr. Okyere is dismissed, with costs of $2,500.00.

Kristjanson J.

Released: January 3, 2019

COURT FILE NO.: CV-17-579018, CV-16-565940, CV-17-578559

DATE: 20190103

BETWEEN:

CV-17-579018

Rajasivagurunathan Kamalanathan, Kamalapiriyan Kamalanathan and Shyama Kamalanathan Plaintiffs

– and –

The Centre for Addiction and Mental Health, College of Physicians and Surgeons of Ontario, Hau Van Troung, Chekkera Motaiya Shammi, Treena Wilkie, Leonard Ginsberg and Robert Friedman Defendants

AND BETWEEN

CV-16-565940

Rajasivagurunathan Kamalanathan, Kamalapiriyan Kamalanathan and Shyama Kamalanathan Plaintiffs

– and –

Ebenezer Okyere and Scarborough and Rouge Hospital Defendants

AND BETWEEN:

CV-17-578559

Rajasivagurunathan Kamalanathan, Kamalapiriyan Kamalanathan and Shyama Kamalanathan Plaintiffs

– and –

Ian Robin Zatzman, Ebenezer Okyere and College of Physicians and Surgeons of Ontario (CPSO) Defendants

REASONS FOR JUDGMENT