COURT FILE NO.: 17-74859
DATE: 2019/10/04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CARY BEAZLEY Plaintiff/Responding party
– and –
DR. MARY JOHNSTON AND 27 OTHER PHYSICIANS, THE QUEENS CARLETON HOSPITAL, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA Defendants/Moving parties
Plaintiff representing himself
Andrew McKenna for the defendant physicians Émilie Roy for the defendant hospital Adrian Johnston for the defendant Government of Canada Heather Burnett for the defendant Government of Ontario
HEARD: September 26, 2019
JUSTICE S. GOMERY
REASONS ON MOTIONS TO STRIKE
[1] In November 2015, the plaintiff Cary Beazley began having flu-like symptoms and rashes after being bitten by two ticks. He consulted many physicians over the next year as his condition worsened. Finally, in January 2017, he was diagnosed with Lyme disease. In this action, Mr. Beazley claims that his diagnosis and treatment were delayed due to the actions and omissions of the defendants, and that this has permanently affected his health.
[2] The defendants currently include 28 physicians who allegedly saw and treated Mr. Beazley between December 2015 and September 2016. Mr. Beazley claims that these physicians were each negligent in failing to diagnose and treat his Lyme disease, and also breached other legal duties towards him. Mr. Beazley is also suing the Queensway-Carleton Hospital, where some of these physicians held privileges, asserting that it is responsible in law for their actions.
[3] The other two defendants are the Government of Ontario and the Government of Canada, originally named and identified in the statement of claim as the Ontario Ministry of Health and Long Term Care and the Public Health Agency of Canada respectively. Mr. Beazley alleges in his action that, at various times, government representatives understated the prevalence of Lyme disease and the shortcomings of available tests to diagnose it.
[4] The defendants brought these motions to strike parts of the Fresh as Amended Statement of Claim (the “statement of claim”) or to have the actions against them dismissed outright. The defendants all rely principally on rules 21 and 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[5] I will first review the legal principles regarding a motion to strike, then consider each defence motion in turn.
Legal principles
[6] A defendant may ask that a pleading be struck under rule 21.01 on the basis that it discloses no reasonable cause of action. For the purpose of the motion, the judge must assume that all facts pleaded in the statement of claim are true.[^1] The motion will be granted only if it is plain and obvious that the claim cannot succeed, that is, the facts alleged could not give rise to the judgment sought by the plaintiff.[^2]
[7] A motion to strike a pleading can succeed only in the clearest of cases. A claim should not be struck just because it is novel, or because the underlying law is unsettled, or because the plaintiff’s odds of success seem slim.[^3] If there is any chance that the plaintiff could succeed, the court should allow the lawsuit to proceed.
[8] Rule 25.06 sets out the rules for all pleadings, including the rules that:
• Every pleading shall contain “a concise statement of the material facts” on which the party relies, but not the evidence by which those facts are to be proved; rule 25.06(1);
• Conclusions of law may be pleaded only if the material facts supporting them are pleaded; rule 25.06(2); and
• Where fraud or misrepresentation is alleged, the pleadings shall contain full particulars; rule 25.06(8).
[9] A court may strike out all or part of a pleading, with or without leave to amend, on the ground that it is scandalous, frivolous or vexatious, or is an abuse of process of the court; rule 25.11.
The motion by the Government of Ontario
[10] The plaintiff alleges that the Ontario government (“Ontario’) negligently misrepresented the accuracy of testing for Lyme disease to physicians, resulting in a delayed diagnosis of Lyme disease in his case.
[11] Ontario argues that the action against it should be dismissed for two reasons. First, before starting the action, the plaintiff did not comply with the notice requirement in Section 7(1) of the Proceedings Against the Crown Act.[^4] Second, he has not pleaded material facts that could support the causes of action asserted against the provincial government.
Was notice given?
[12] When Mr. Beazley began this action against Ontario, s. 7(1) of the Proceedings Against the Crown Act required him to give notice of the claim to the government at least 60 days beforehand. The notice had to contain “sufficient particulars to identify the occasion out of which the claim arose”.
[13] The purpose of the notice requirement is “to allow the Crown to gather sufficient information to permit it to resolve the complaint to the mutual satisfaction of itself and the complainant in advance of any litigation, and failing that, to allow the Crown to properly prepare a defence to the litigation which may result”.[^5] Any action brought without providing the required notice is a nullity.
[14] The notice does not need to expressly state that the claimant intends to take legal action to recover damages or other relief.[^6] Not every letter of complaint delivered to a provincial agency will fulfil the statutory notice requirement, however.[^7] The communication must contain enough information to satisfy the purpose of the notice requirement.
[15] Mr. Beazley argued that he provided notice to Ontario through an email he sent to Natalie Cleroux on August 22, 2017. Alternatively, Mr. Beazley argued that a request for referral sent to Dr. Falconer on August 15, 2016 constituted sufficient notice. The email to Ms. Cleroux read:
Hello Natalie:
I picked up a copy of the medical records after we spoke months ago – thank you.
Unfortunately, many doctors are still not getting the message and our medical system is failing miserably with regards Lyme [sic] and other diseases – I can tell you quite a few horror stories.
I am aware of the Lyme controversy. Unfortunately, many doctors are still unaware of how reliable Lyme testing is according to medical literature.
Attached is some quick Lyme&ID literature and papers references [sic] ripe for another grand rounds or M&M learning session. I think you will find many of the references interesting. Many are decades old. Despite many months of positive antibiotics, this patient’s serum Lyme PCR test was still positive… .
Many doctors still do not believe a positive PCR test, which meets the Canadian Lyme case definition ….
Can you forward this email and attached document to Dr. Davidson, Dr. Mehta and the authors of the above grand rounds presentation indicating I’d be willing to assist, so this doesn’t happen to anyone else…
Please feel free to circulate and contact me.
[16] There is no evidence explaining who Ms. Cleroux is. I infer from her email address that she worked at the time in some capacity at the Ottawa Hospital, but have no information about her role there. A communication to a physician or hospital staff member furthermore does not amount to notice to the government of Ontario even if, as observed by the plaintiff, they may be paid through the provincial health care plan.
[17] In any event, neither the request for referral sent to Dr. Falconer nor the email to Ms. Cleroux fulfilled the statutory notice requirements. There was nothing in them that suggested that Mr. Beazley expected that any government representative should take steps to resolve a claim or specific problem affecting him.
[18] Mr. Beazley sent another email to Dr. Eric Hoskins, then the Ontario Minister of Health, on November 21, 2017. He acknowledges that this letter was not sent 60 days prior to the commencement of the action. Even if it had been, it again did not fulfill the statutory notice requirements. There was no indication in the email that the plaintiff had Lyme disease, no demand for any action to be taken, and nothing that would have given Dr. Hoskins to understand that a claim might be made.
[19] As a result, I conclude that this action against Ontario is a nullity.
Has the plaintiff pleaded a valid cause of action against Ontario?
[20] In 2018, Mr. Beazley began a second action against the governments of Ontario and Canada in Court file. no. 18-78696, alleging substantially the same facts and seeking the same orders against them. He has served a motion seeking joinder of that action with this one.
[21] Ontario concedes that the claim in this action constitutes notice of the second action under the Act. It is therefore necessary to consider its further submission that the allegations against it do not give rise to any reasonable cause of action.
[22] In his statement of claim, the plaintiff asserts that Ontario is liable for damages for negligence or negligent misrepresentation, for breach of contract, for breaches of s. 7 of the Canadian Charter of Rights and Freedoms, and for violations of the Criminal Code. He also seeks equitable relief: orders from the court for immediate changes to established criteria for Lyme disease testing published by various government bodies, orders forcing unspecified medical boards to issue statements supporting physicians using Lyme treatment guidelines “without fear of reprisals”, and “a CPSO [College of Physicians and Surgeons of Ontario] order suspending licenses for members guilty of breaches of their Hippocratic oath-code of ethics resulting in suffering, harm, or death of their patients”.
[23] The plaintiff appeared to acknowledge, at the hearing of the motions, that he could not claim the equitable relief set out in his statement of claim. A court could not order an independent body such as the CPSO to make findings against a member of a regulated profession or issue an injunction against the government. He took the position that he should however be permitted to amend his statement of claim to seek declaratory relief.
[24] With respect to the claim for breach of contract, the plaintiff alleges at para. 74 of the statement of claim that he has a contract with the government that requires it to provide him with health services, because he has an OHIP card and pays taxes.
[25] On a motion to strike, the statement of claim must be read generously. The court should not strike a cause of action merely because it is not pleaded elegantly. The court cannot however overlook fatal deficiencies in a claim.
[26] It is plain and obvious that the plaintiff’s allegations cannot give rise to a claim in contract. Mr. Beazley does not allege specific terms of any contract with the province or how Ontario breached those terms. The statement of claim does not articulate any link between provincial health insurance coverage or payment of provincial taxes and the damages claimed by Mr. Beazley. The claim in contract is therefore not a viable claim.
[27] Mr. Beazley also claims that Ontario is liable for breaching his Charter rights and for violating the Criminal Code. He alleges that, by claiming that the Lyme 2 tier ELISA was a high accuracy test, Ontario breached s. 7, “showing lack of diligence, indifference, nonfeasance, willful blindness amounting to negligence, given the mandated nature of the health care system”. Although it is possible to make a claim for damages based on a Charter breach, the allegations here do not contain allegations of material fact that could ground such a claim. The same is true with respect to the allegations that Ontario violated the Criminal Code.
[28] The only acts or omissions by Ontario that are grounded in allegations of material fact in the statement of claim are misstatements about the accuracy of Lyme disease testing. The question that I must therefore consider is whether, if all of the facts pleaded are true, Mr. Beazley could establish Ontario’s liability for negligent misrepresentation. I have concluded that he could not.
[29] In any negligent misrepresentation claim, the plaintiff must first prove that the defendant owed them a duty of care. Only a sufficiently close and direct relationship can give rise to the necessary degree of proximity between the parties required to ground a prima facie duty of care. Proximity is based on the parties’ expectations, representations, reliance and interests, as well as any statutory obligations.[^8] In a claim against a government actor, proximity may arise explicitly or implicitly from a statutory scheme, or from interactions between the claimant and the government, or a combination of the two.[^9]
[30] The plaintiff alleges in the statement of claim that the Ontario government knew or ought to have known that its testing for Lyme disease was inadequate (paras. 15-16). Despite this, the Ontario Ministry of Health overstated the quality of the testing available (para. 62) and negligently or intentionally misrepresented that the accuracy of Lyme disease testing (para. 73). Government officials were aware that misrepresentations about testing were affecting diagnosis as early as 2000 (para. 63) and that “testing sensitivity is poor missing many cases” (para. 73).
[31] In paragraph 73, entitled “Misrepresentations by the defendants OMOH, PHAC representatives”, the plaintiff names nine physicians and “Minister David Caplan”. He alleges that these individuals “knowingly, recklessly, carelessly, willfully blindly, negligently, and/or fraudulently misrepresented, by their words and actions, that Lyme disease testing is highly sensitive and accurate”. He does not state the circumstances in which misrepresentations were allegedly made by these individuals. The statement of claim is also silent about any relationship between the individuals listed and these government agencies.
[32] The plaintiff does not allege in this paragraph, or elsewhere in the statement of claim, that any government representatives made any statements directly to him or interacted with him in any way. Leaving aside the plaintiff’s failure to comply with rule 25.06(8), I infer that any erroneous statements by these government officials were statements made to the public at large.
[33] Mr. Beazley did not argue otherwise at the motion hearing. He contended, however, that when he received treatment from certain physicians or interacted with them, these physicians represented the provincial government. As a matter of law, I have serious reservations about this argument. In any event, for the purpose of this motion, I am confined to the facts pleaded. I cannot consider what allegations the plaintiff might advance in the future. Such an approach would “gut the motion to strike of its logic and ultimately render it useless.”[^10]
[34] There is no allegation that the plaintiff understood, when he received advice and information from his treating physicians, that these were statements that could be attributed to the provincial government, or that he relied on what they said because he understood they were speaking as government spokespersons. There is not even a clear allegation that any physician involved in Mr. Beazley’s care made misstatements; in the statement of claim, the plaintiff identifies only misstatements by the Ontario Ministry of Health or unnamed government officials.
[35] In Adam, Abudu v. Ledesma-Cadhit, my colleague Justice Chiapetta struck claims brought against the federal and provincial governments.[^11] The plaintiffs’ daughter had died a few days after receiving a vaccination for H1N1 influenza. The judge concluded that her parents’ action could not succeed, because their allegations, even if assumed to be true, did not establish that the defendants owed a duty of care to them:
The relevant statutes do not demonstrate a legislative intent to provide a private remedy to individuals. Rather, the purpose of the relevant legislative schemes is to facilitate the public authority to act in its discretion in the interest of public health. Further, the factual allegations do not distinguish the relationship that exists between the public health regulators and the members of the public sufficiently to create a relationship of proximity between the Plaintiffs and the public health regulator.
[36] The conclusion in Adams, Abudu is consistent with the Supreme Court of Canada’s determination in Imperial Tobacco that the federal government did not owe smokers a duty of care with respect to information it published about the health risks arising from low tar cigarettes. The Court held that the relevant statutes establish only general duties for the promotion and preservation of the health of the Canadian public, and not private law duties to consumers.[^12] The Ontario Court of Appeal has similarly concluded that the provincial Minister of Health’s discretionary powers, exercised in the general public interest, cannot be converted to private law duties owed to specific individuals.[^13]
[37] Given this clear and consistent authority, it is plain and obvious that Mr. Beazley’s claim against Ontario cannot succeed. He has not pleaded that the statutory scheme in which the Ontario Ministry of Health operates gives rise to a duty of care. This would not however assist him, given the unequivocal finding of the Supreme Court and the Court of Appeal that the scheme does not, by itself, create a relationship of proximity giving rise to a duty of care to individuals like Mr. Beazley.
[38] The plaintiff seeks leave to amend his statement of claim to assert additional facts that could establish a prima facie duty of care, or to seek declaratory relief with respect to the province’s statements about Lyme disease and Lyme disease testing.
[39] The lawyer for Ontario acknowledged that, where a court concludes that a plaintiff has failed to allege the material elements of a viable cause of action, leave to amend their statement of claim should only be denied in the clearest of cases.[^14] She noted, however that she advised Mr. Beazley, in writing, of the defects in his pleading in a letter dated August 2, 2018. Despite this, he did not provide additional facts either by way of amendment in this action, in the facts alleged in his second action against Ontario and Canada, or in particulars annexed to his factum.
[40] In these circumstances, I agree that this is an exceptional case where no purpose would be served by granting the plaintiff leave to amend his statement of claim to attempt to plead a viable claim against Ontario. Mr. Beazley has not alluded to any additional facts which, if pleaded, could fix the radical defects in his claim. He has not provided the court with a further draft amended statement of claim. He conceded, during oral argument, that he cannot recall any specific interactions with government officials prior to being diagnosed with Lyme disease. In light of this concession, and the rejection of a duty of care for government representations in the cases I have already mentioned, granting Mr. Beazley leave to amend would serve no purpose.
[41] At the hearing, Mr. Beazley argued passionately for an opportunity to address what he sees as critical deficiencies in the testing and treatment for Lyme disease in Ontario. I accept that, through this lawsuit, he is sincerely attempting to improve the health care system. The plaintiff’s good faith effort to bring about social change is not however an excuse to circumvent or ignore the rules of pleading, or to permit him to amend his statement of claim when it is apparent that he has no legal basis to sue the government.
[42] Ontario’s motion to strike the claim against it is therefore granted, without leave to amend.
The motion by the government of Canada
[43] I find that the claims against Canada are bound to fail for the same reason as the claim against Ontario are bound to fail. The statement of claim does not contain allegations of material facts that could, if true, support advance any recognized cause of action. The plaintiff’s allegations against the two levels of government are identical or broadly similar. The only additional allegation against Canada is that a 2007 federal access to information request was denied. The plaintiff does not allege the subject-matter of the request, identify the requesting party or specify what, if any, relationship the denial of the request has to his case. This allegation accordingly does not add anything meaningful to his claim.
[44] I therefore conclude that the action against Canada must also be struck, with no leave to amend.
The motion by the defendant physicians and hospital
[45] The defendant physicians acknowledge that, if they provided medical services to the plaintiff, they owed him a duty of care. They accordingly are not asking the court to strike the claims against them entirely. They do however take issue with some of the relief claimed against them. They contend that some of the allegations in the statement of claim are not material facts but argument or evidence. They point out that there are no specific allegations against some of the physicians named in the action, although they concede that this could be addressed through amendments.
[46] The main claim against the defendant hospital is found at paragraph 75 of the statement of claim, where the plaintiff alleges that Queensway Carleton is “responsible for the torts of its medical staff”. Counsel for the hospital argued, and the plaintiff admitted, that the hospital is not legally liable for the medical acts and omissions of physicians acting purely in the capacity of privilege-holders. There is no allegation in the statement of claim of any connection between the plaintiff and the hospital beyond his attendance for the purpose of seeking treatment from physicians who practiced there. The plaintiff argues however that he should be granted leave to amend the pleading to allege his interactions with hospital officials and employees, for whose acts the hospital could be legally responsible either directly or vicariously. Counsel for the hospital did not contend that this is an exceptional case where leave ought to be denied.
[47] I find as follows on the motions to strike by the physicians and the hospital:
− Paragraph 1(i) –the plaintiff seeks equitable relief I have already mentioned above at paragraphs 22 and 23 of these reasons. None of the orders sought could be granted by the court and para. 1(i) of the statement of claim must therefore be struck.
− Paragraph 1(j) – in this subparagraph, the plaintiff seeks an order compelling the College and Physicians and Surgeons of Ontario to suspend physicians’ licenses. The court could likewise not grant this relief and para. 1(j) must also be struck.
− Paragraph 1(m) – in this paragraph, the plaintiff invokes “lex talionis”, or the principle whereby an offender should be made to suffer to the same degree as their victim. There is no cause of action or relief available based on this principle and para. 1(m) must be struck.
− Paragraphs 9 through 20 – in this section, entitled “Lyme Brief”, the plaintiff refers to evidence that Lyme disease is a serious and growing problem, that testing procedures are often flawed and its diagnosis challenging. He also argues that Lyme disease “is mired in politics, money, ignorance and medical dogma” as well as conflicts of interest, and that the government and medical system are “failing Canadians miserably in breach of our Charter rights”. This section consists mostly of evidence or argument as opposed to allegations of material fact. In my view, paragraphs 12, 13 and 18 are arguably relevant to the standard of care. Paragraphs 9, 10, 11, 14, 15, 16, 17, 19 and 20 must however be struck.
− Paragraphs 56 to 59 – in these paragraphs, the plaintiff alleges that Ottawa has been identified as an area at risk for Lyme disease for several years, and that medical officers of health have issued memorandums reminding physicians that tests are unreliable and early treatment is critical for a full recovery. This is again evidence and argument as opposed to allegations of material fact, with the exception of the first two lines of paragraph 56, paragraph 58 and the first sentence in paragraph 59. The balance of these paragraphs must be struck.
− The first sentence of paragraph 61 alleges best treatment guidelines for Lyme disease. This again falls under the category of evidence and must be struck. In the remainder of the paragraph, the plaintiff alleges that he sustained additional injuries as a result of the failure of the defendants to comply with these guidelines. These are material allegations.
− Paragraphs 62, 63, 64 and 65 allege misrepresentations by government officials. These allegations are not relevant to the claims against the physicians and hospital that survive the governments’ successful motions to strike and must therefore be struck.
− In paragraph 66, the plaintiff asserts claims against all defendants in tort, contract and fiduciary duties. The allegation of intentional infliction of mental suffering must be struck, as the elements of this tort are not pleaded. The allegation of breach of contract must also be struck, as there is no allegation of any contract between the plaintiff and the defendant physicians or hospital.
− Paragraph 67, which alleges that Ontario Ministry of Health owes the plaintiff a duty of care, is not relevant and must be struck.
− In paragraph 68, the plaintiff asserts various causes of action including “negligence causing bodily harm”, “negligence causing death of other Ontario patients”, misrepresentations, breach of contract, infliction of physical and mental suffering, breach of trust and torture. These are either causes of action not recognized under Ontario law or in respect of which material facts have not been pleaded. These allegations must therefore be struck, leaving only subparagraph (a) and the reference to fiduciary duty in (g).
− In paragraph 69(a), the allegation of “breach of Hippocratic oath – code of ethics” against Dr. Mary Johnston must be struck, as this is not a recognized cause of action.
− Paragraphs 72, 73 and 74, which allege various legal breaches by Ontario and Canada, must be struck as irrelevant to the remaining action against the physicians and hospital.
− In paragraphs 78 and 79, the plaintiff alleges that the defendants breached provisions of the Criminal Code. Breach of a criminal statute does not necessarily give rise to a private right of action, and material facts in support of these claims are not pled. These allegations must therefore be struck.
[48] I grant leave to the plaintiff to amend his statement of claim, within the next 60 days, to allege material facts in support of his claim in negligence, vicarious liability and breach of fiduciary duty against the defendant physicians and hospital.
[49] If the parties are unable to agree on costs on the motions, the defendants’ counsel may each file a cost outline no longer than two pages in length, along with a draft bill of costs, by October 15, 2019. The plaintiff may file a responding outline, no longer than eight pages in total, along with a draft bill of costs if he so chooses, by October 25, 2019.
Justice Sally Gomery
Released: October 4, 2019
COURT FILE NO.: 17-74859 DATE: 2019/10/04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CARY BEAZLEY Plaintiff
– and –
DR. MARY JOHNSTON AND 27 OTHER PHYSICIANS, THE QUEENS CARLETON HOSPITAL, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and HER MAJESTY THE QUEEN IN RIGHT OF CANADA Defendants
Plaintiff representing himself
Counsel for defendants: Andrew McKenna for the defendant physicians Émilie Roy for the defendant hospital Adrian Johnston for the defendant Government of Canada Heather Burnett for the defendant Government of Ontario
REASONS ON MOTIONS TO STRIKE
Justice S. Gomery
Released: October 4, 2019
[^1]: Operation Dismantle Inc. et al v. The Queen et al, 1985 74 (SCC), [1985] 1 S.C.R. 441 at pp. 486-87; Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959 (“Hunt”) at pp. 977-979; Connor v. Scotia Capital Inc., 2018 ONCA 73, [2018] O.J. No. 394 (“Connor”) at para. 3. [^2]: Hunt, at pp. 977-978; Connor, at para. 3. [^3]: Hunt, at p. 979. [^4]: RSO 1990, c P 27. [^5]: Mattick Estate v. Ontario (Minister of Health), 2001 24086 (ON CA) (“Mattick”), at para. 15. [^6]: Mattick, at para. 16. [^7]: Beardsley v. Ontario, 2001 8621 (ON CA), at para. 13. [^8]: Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855 (“Livent”), at paras. 29 and 34. [^9]: R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45 (“Imperial Tobacco”), at paras. 43 to 46. [^10]: Imperial, at para. 23, [^11]: 2014 ONSC 5726. [^12]: Imperial, at para. 50. [^13]: Eliopoulos Estate v. Ontario (Minister of Health and Long-Term Care) (2006), 2006 37121 (ON CA), 276 D.L.R. (4th) 411, at para. 17. [^14]: Piedra v. Copper Mesa Mining Corporation, 2011 ONCA 191, at para. 94.