ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DARREN ROSS NODDLE

Plaintiff

– and –

THE ONTARIO MINISTRY OF HEALTH and TODD LEVY

Respondents

No one appearing for the Plaintiff/ Responding Party Darren Ross Noddle, acting in person

Peter Entecott, lawyer for the Defendant/ Moving Party, Her Majesty the Queen in right of Ontario, improperly named as the Ontario Ministry of Health

Ryan MacIsaac, lawyer for the Defendant/ Moving Party, Todd Levy

HEARD: December 2, 2019

ENDORSEMENT

SANFILIPPO J.

Overview

[1] On February 13, 2016, the Plaintiff, Darren Ross Noddle, initiated this action against the Defendants, physician Dr. Todd Levy and a ministry of Her Majesty the Queen in right of Ontario, the Ontario Ministry of Health (“Ontario”). Mr. Noddle alleged that Dr. Levy was liable in medical malpractice on the basis that he negligently prescribed for Mr. Noddle a prescription drug known as Aldara, which Mr. Noddle claimed caused him harm, including cognitive impairment and vision loss. Mr. Noddle pleaded that Ontario was liable on the allegation that it negligently approved the drug and failed to warn of its side effects.

[2] Dr. Levy defended this action by a Statement of Defence delivered on July 27, 2016. Dr. Levy admitted that he treated Mr. Noddle at various times between July 2000 to June 2010 and pleaded that on June 14, 2010 Mr. Noddle reported that he experienced a mild adverse reaction to Aldara, after which Dr. Levy recommended discontinuation of the medication and referred Mr. Noddle to a dermatologist. Dr. Levy denied any liability to Mr. Noddle.

[3] Ontario served a Notice of Intent to Defend, but not a Statement of Defence, instead moving under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an Order that the Statement of Claim be struck against Ontario, without leave to amend, on the basis that it failed to disclose a reasonable cause of action as against Ontario.

[4] Dr. Levy brought his summary dismissal motion on April 17, 2017. Ontario brought its motion on November 24, 2017. As I will explain, these motions were adjourned on several occasions, always at the request of the Plaintiff, and returned for hearing on December 2, 2019, more than 2 years after they were first filed.

[5] These motions first came before me on June 18, 2019. Mr. Noddle requested an adjournment on that day, which I granted, peremptory on Mr. Noddle. I fixed a return date of December 2, 2019 on Mr. Noddle’s agreement with a set of terms that balanced fairness to Mr. Noddle in one further adjournment with fairness to the Defendants in having a fixed date for the substantive hearing of their motions.

[6] Mr. Noddle did not act on the terms of the adjournment of June 18, 2019. He did not file the responding materials that he was granted an opportunity to deliver. Mr. Noddle did not appear or attend on these motions, even though the terms provided that Mr. Noddle could make submissions by videoconference, if he so chose. Mr. Noddle asked Dr. Levy in advance of the hearing of December 2, 2019 for another adjournment, but Dr. Levy’s counsel notified him that they would strictly oppose any further adjournment because the Defendants seek a determination of their long-standing motions. I considered Mr. Noddle’s renewed request for an adjournment, unsupported by any submissions by Mr. Noddle and contested by the Defendants, and declined to adjourn these Motions further.

[7] For the reasons that follow, Dr. Levy’s motion for summary judgment is granted, with the result that this action is dismissed as against Dr. Levy. Ontario’s motion to strike the statement of claim as a nullity at law, is granted. The motion by Dr. Levy for an Order pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. 43 (“CJA”) was withdrawn without prejudice to its reinstatement.

I. THE MOTIONS

[8] I will first explain the three motions brought by the Defendants. I will refer to these motions collectively as the “Motions”.

A. Ontario’s Rule 21 Motion

[9] Ontario brought a motion to strike this action, without leave to amend, under Rules 21.01(3)(b), 21.01(1), and/or Rule 21.01(3)(d) (the “Ontario Motion”). Ontario’s main submission was that this action is a nullity as against Ontario on two grounds:

(a) Mr. Noddle did not provide notice to Ontario as required by s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (“PACA”), which although repealed is made applicable by the transition provision set out in s. 31(3) of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (“CLPA”);

(b) The governmental party defendant that Mr. Noddle named as a defendant, the “Ontario Ministry of Health” does not have the capacity to be sued and is not a proper party to this action, pursuant to s. 9 of PACA, as made applicable by s. 31(3) of the CLPA.

[10] Further, Ontario sought an Order that the striking of this Statement of Claim against Ontario ought to be without leave for Mr. Noddle to amend on the basis that the claim does not disclose a reasonable cause of action as against Ontario and is otherwise frivolous, vexatious, and an abuse of process.

B. Dr. Levy’s Rule 20 Motion

[11] Dr. Levy brought a motion under Rule 20 for summary dismissal of the claims pleaded against him on two grounds (the “Levy Dismissal Motion”):

(a) This Action discloses no genuine issue requiring a trial as the issue of Dr. Levy’s discharge of his duty of care can be determined on the record filed in this motion;

(b) This Action is limitation barred in that it was alleged to have been commenced after expiry of the applicable two-year limitation period provided for by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

C. Dr. Levy’s Section 140 CJA Motion

[12] Dr. Levy also brought a motion under s. 140 of the CJA for an Order that Mr. Noddle not institute any further proceedings in this Court without leave of a Judge of this Court. The motion record established that Mr. Noddle has not instituted any legal proceedings in Ontario affecting the Defendants since September 2016. Dr. Levy was granted leave to withdraw this motion without prejudice to its reinstatement.

II. PROCEDURAL HISTORY

[13] The litigation by Mr. Noddle against Ontario and Dr. Levy arising from Mr. Noddle’s use of the prescription medication Aldara has a lengthy procedural history, involving two other actions in this Court. I will summarize these proceedings as follows:

(a) On February 12, 2016, Mr. Noddle sued Ontario and the Attorney General of Ontario in this Court’s file number CV-16-546628 (the “Previous Action”).

(b) On February 16, 2016, Mr. Noddle initiated the within action (“this Action”). Mr. Noddle amended the Statement of Claim in this Action on May 29, 2016.

(c) On June 16, 2016, Dunphy J. struck the Statement of Claim in the Previous Action without prejudice to Mr. Noddle re-filing a properly pleaded Statement of Claim restricted to alleging negligence in the approval of Aldara or failure to warn in relation to its side effects.

(d) On September 20, 2016, Mr. Noddle issued in this Court’s file number CV-16-560878, a Statement of Claim against Dr. Levy, Ontario, and the Attorney General of Ontario (the “Subsequent Action”).

(e) On September 29, 2016, Mr. Noddle brought a motion for default judgment against both Dr. Levy and Ontario in this Action. By Endorsement issued October 5, 2016, Stinson J. dismissed this motion. On November 4, 2016, Master Short set aside Mr. Noddle’s noting of Ontario in default in this Action.

(f) On January 4, 2017, Ontario brought a motion for the dismissal of the Subsequent Action. At the return of that motion, Mr. Noddle sought and obtained an adjournment so that he could advance a motion for publicly funded legal counsel. Stinson J. implemented a timetable for Mr. Noddle to advance such a motion, scheduling its hearing on April 18, 2017.

(g) On April 12, 2017, Faieta J. ordered that the Subsequent Action be stayed on the basis of s. 106 of the CJA and Rule 2.1, and Mr. Noddle was given notice that the Court was considering making an Order dismissing the Subsequent Action. Mr. Noddle was provided with an opportunity to make written submissions as to why the Subsequent Action ought not to be dismissed but did not do so.

(h) On May 1, 2017, Mr. Noddle brought his motion for an Order that publicly-funded counsel be appointed to represent him in this Action and in the Subsequent Action. On that day, Dr. Levy served his motion record for the Levy Dismissal Motion in this Action.

(i) By decision rendered on June 5, 2017, Stinson J. dismissed Mr. Noddle’s motion for publicly-funded counsel in this Action and in the Subsequent Action: Noddle v. Ontario (Attorney General), 2017 ONSC 3465.

(j) By Endorsement issued on July 21, 2017, Faieta J. dismissed the Subsequent Action pursuant to Rule 2.1.01, in the absence of any submissions by Mr. Noddle: Noddle v. Attorney General of Ontario, 2017 ONSC 4461.

(k) On July 25, 2017, at Civil Practice Court, Glustein J. implemented a timetable for the argument of the Levy Dismissal Motion, scheduling a motion return date of February 5, 2018.

(l) On December 4, 2017, Ontario obtained approval at Civil Practice Court for the Ontario Motion to be heard on the same date as the Levy Dismissal Motion. Both motions were scheduled for hearing on February 5, 2018.

(m) On February 5, 2018, Copeland J. adjourned the Ontario Motion and the Levy Dismissal Motion because Mr. Noddle was incarcerated and not able to respond to the Motions. Copeland J. re-scheduled the Motions to May 22, 2018.

(n) On May 11, 2018, at case conference, Archibald J. vacated the May 22, 2018 return date for these Motions by reason of Mr. Noddle’s continued incarceration and directed counsel to return to Civil Practice Court to establish a new return date.

(o) On January 18, 2019, at a case conference participated in by Mr. Noddle by teleconference, Archibald J. established a new return date for these Motions: June 18, 2019. Mr. Noddle was told that the deadline for the filing of any responding motion material was June 3, 2019. He did not file any responding motion materials.

(p) On June 18, 2019, these Motions came before me. Mr. Noddle appeared by teleconference and requested an adjournment.

A. The June 18, 2019 Adjournment

[14] At the hearing on June 18, 2019, Mr. Noddle stated that he had an interest and intention to respond substantively to these Motions and asked for an opportunity to do so. Mr. Noddle stated that he intended to file responding materials, and to travel to the next hearing in Ontario to respond to these Motions.

[15] I determined that it was fair that Mr. Noddle be provided with an adjournment to advance his response to these Motions and attend for argument, but that this accommodation had to be balanced with fairness to the moving party Defendants who have an entitlement to have their Motions heard. I balanced fairness to the Defendants by imposing terms for the adjournment that would allow the Defendants an opportunity to be heard in substantive submissions on the next return date of their Motions.

[16] The Levy Dismissal Motion and the Ontario Dismissal Motion and the Section 140 CJA Motion were adjourned to December 2, 2019, a date agreed upon by Mr. Noddle and counsel for the moving parties and made available by the Court. I ordered the following terms of the adjournment (the “June Adjournment Terms”):

(a) The adjournment of these Motions to December 2, 2019 was peremptory to Mr. Noddle, who was notified that the Motions were to proceed that day;

(b) Any responding motion materials to be delivered by Mr. Noddle were to be delivered by November 1, 2019;

(c) Mr. Noddle had to deliver his factum by November 15, 2019, the moving party Defendants having already delivered their factums;

(d) Any reply factum by the moving party Defendants had to be delivered by November 26, 2019;

(e) The manner of service of the moving party Defendants’ motion materials to Mr. Noddle’s attention was ordered to be in the manner requested by Mr. Noddle;

(f) If Mr. Noddle should decide to make substantive submissions on the return of these Motions by videoconference, rather than his stated intention to appear in person, he had to notify the moving party Defendants of such and make advance arrangements with them in advance of December 2, 2019.

[17] Mr. Noddle was aware of the June Adjournment Terms at the time that they were read to all at the conclusion of the June 18, 2019 hearing. Additionally, counsel for Dr. Levy confirmed that he delivered a copy of my written endorsement containing the June Adjournment Terms to Mr. Noddle on June 20, 2019, in accordance with paragraph 21 of my endorsement of June 18, 2019.

B. The Responding Party’s Failure to Respond

[18] Mr. Noddle did not attend or appear at the return of these Motions on December 2, 2019, even though this date had been scheduled with his involvement on June 18, 2019.

[19] Mr. Noddle did not file any responding motion record by November 1, 2019, and did not file his factum by November 15, 2019, as provided by the June Adjournment Terms. Mr. Noddle delivered a box of material to the Court office that contained loose documents, unattached to any affidavit. The box did not contain any responding motion record, affidavit or factum. I did not consider this material as it was not properly before the Court on these Motions.

[20] Counsel for Dr. Levy conveyed that Mr. Noddle requested in writing on October 23, 2019 an adjournment of the December 2, 2019 hearing on the grounds that he lacked resources to travel to Ontario to participate and that he intended to advance a motion for publicly-funded legal representation. Counsel for Dr. Levy stated that he notified Mr. Noddle on October 29, 2019 that his client opposed any adjournment request and did not hear further from him. I accept Mr. Noddle’s communication to Dr. Levy’s counsel as a request by Mr. Noddle for an adjournment which was opposed and thereby contested by Dr. Levy and Ontario.

[21] As noted earlier, Mr. Noddle’s request for publicly-funded legal representation in this Action had already been denied: Noddle v. Ontario (Attorney General), 2017 ONSC 3465. Mr. Noddle could have participated in the argument of these Motions by videoconference, as this was provided for him in the June Adjournment Terms. He did not avail himself of this facility, not even for the purpose of explaining the basis for his adjournment request. As a result, I did not hear any submissions regarding what purpose would be served by further holding down these Motions.

[22] Dr. Levy first served his motion materials for the Levy Dismissal Motion on May 1, 2017 and first attended to its scheduling for hearing on July 25, 2017. Ontario brought its motion by December 4, 2017, and in the two years since, Mr. Noddle has been provided with adjournments to allow for an opportunity to respond. Mr. Noddle participated in the case conference of January 18, 2019, at which the June 18, 2019 hearing date was scheduled, and Mr. Noddle participated in the June 18, 2019 hearing at which these Motions were scheduled for argument on December 2, 2019.

[23] The Defendants requested that their Motions no longer be adjourned but rather be determined in Mr. Noddle’s absence on the basis that he has been provided with every opportunity to participate and has not responded. They contended that any further delay would be unfair to their clients and inconsistent with the June Adjournment Terms which were peremptory on Mr. Noddle and thereby “determinant and final”: Jourdain et al. v. Her Majesty the Queen in the Right of Ontario et al. (2008), 2008 CanLII 22130 (ON SC), 91 O.R. (3d) 465 (S.C.), at para. 19. They relied on the principles set out in Lewin-Gillies v. York Central Hospital, 2018 ONSC 883, where the Court denied an adjournment and proceeded to determine a matter where there had been a history of adjournment requests, delay, and failure to respect terms of prior adjournments granted on a peremptory basis.

[24] In considering the Defendants’ request to proceed in Mr. Noddle’s failure to appear, I am guided by the principles set out by the Ontario Court of Appeal in 1944949 Ontario Inc. (OMG ON THE PARK) v. 2513000 Ontario Ltd., 2019 ONCA 628, at para. 27, that all parties must be given a reasonable opportunity to be heard but that the opportunities so provided are not “unlimited”. Rather, the Court must balance the parties’ respective interests in a full and fair hearing.

[25] I accept the Defendants’ submissions that Mr. Noddle was afforded an opportunity to participate in the argument of these Motions and did not do so. He has been granted past adjournments and knew that the Motions were ordered to proceed today. I concluded that there was no basis for any further adjournment of these Motions. These Motions proceeded unopposed by oral submissions of Mr. Noddle, although I took into consideration written responding materials that Mr. Noddle filed at the first return of these Motions on February 5, 2018.

III. THE ONTARIO MOTION

A. The Governing Legislation

[26] Following the proclamation of the PACA in 1990, any action in tort against the Crown must comply with the requirements prescribed by the statute. The PACA was repealed on July 1, 2019: 2019, c. 7, Sched. 17, s. 33. On that date, the CLPA was promulgated. Section 31 of the CLPA is a transitional provision that provides that the PACA continues to apply, in the form that it read immediately before its repeal, to proceedings that were commenced before the CLPA came into force:

Transition

Application of Act to claims

31(1) This Act applies with respect to a claim against the Crown, or against the Crown or an officer, employee or agent of the Crown regardless of when the claim arose, except as provided in subsection (3).

Application of former Act to existing proceedings

(3) Subject to subsection (4), the Proceedings Against the Crown Act, as it read immediately before its repeal, continues to apply with respect to proceedings commenced against the Crown or an officer, employee or agent of the Crown before the day this section came into force, and to claims included in those proceedings.

[27] I will therefore apply the PACA to my consideration of the objections made by the Crown to the viability of this Action: Taylor v. Mayes, 2019 ONSC 5651, at para. 31. I note, however, that the objections made by the Crown are based on legislative entitlements provided identically by both the PACA and the CLPA.

B. The Plaintiff Has Improperly Sued a Government Ministry

[28] Mr. Noddle has sued the “Ontario Ministry of Health”. The Ministry of Health is a department of Her Majesty the Queen in Right of Ontario (the “Crown”) rather than its own legal entity: Ministry of Health and Long-Term Care Act, R.S.O. 1990, c. M.26, ss. 2-3.

[29] There is no basis for the commencement of an action against a ministry of the Crown: Deep v. Ontario, [2004] O.J. No. 2734 (S.C.), at para. 82, affirmed [2005] O.J. No. 1294 (C.A.). Section 9 of the PACA provides that in a proceeding under the PACA, the Crown shall be designated “Her Majesty the Queen in right of Ontario” or “Sa Majesté du chef de l’Ontario”. A substantively identical provision is contained in s. 14 of the CLPA.

[30] In naming the Ontario Ministry of Health as a defendant, the Plaintiff has improperly sued an entity that is incapable of being sued. However, if this had been the only defect in the Amended Statement of Claim, I would have granted leave to amend to name the correct party.

C. The Plaintiff Did Not Provide the Appropriate Statutory Notice

[31] Section 7(1) of the PACA provides that no action for a claim shall be commenced against the Crown “unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose…” Section 18 of the CLPA also requires that sixty days’ notice of a claim must be provided to the Crown.

[32] Proper notice is a necessary pre-condition to a claim in damages against the Crown, which cannot be waived or abridged: Beardsley v. Ontario Provincial Police (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at paras. 10-12. An action against the Crown that is commenced without providing the required statutory notice is a nullity: Miguna v. Ontario (Attorney General), 2005 CanLII 46385 (Ont. C.A.), at paras. 7-8.

[33] An examination of the procedural history of Mr. Noddle’s claim against the Crown established that he did not provide the Crown with sixty days’ notice of his claim before commencing this Action. Mr. Noddle issued the Statement of Claim in the First Action on February 12, 2016. Ontario submitted that the Crown did not become aware of this claim until March 15, 2016, but I do not need to determine whether the Crown was notified of this claim on February 12, 2016 or March 15, 2016 to decide this issue because either date is less than sixty days before the date of commencement of this Action: March 15, 2016. In either circumstance, the claim in this Action was issued in contravention of Mr. Noddle’s requirement to provide the Crown with 60 days’ notice.

[34] Mr. Noddle was notified by the Crown of this contravention of the PACA on August 12, 2016 and was invited to discontinue this Action and institute a further claim against the Crown with the requisite statutory notice, to cure the non-compliance with the PACA. He did not do so.

[35] As this Action against the Crown contravenes the 60 days’ statutory notice period for the institution of Mr. Noddle’s claim against the Crown, it is a nullity.

D. The Substantive Determination Sought by the Crown

[36] Ontario asked for an Order striking Mr. Noddle’s Statement of Claim as against Ontario without leave to amend on the basis that Mr. Noddle’s claim is an abuse of process and does not disclose a reasonable cause of action. Ontario’s contention that this claim is an abuse of process is predicated on Mr. Noddle’s history of litigation in British Columbia and in the Federal Court. Ontario’s submission that this claim does not disclose a reasonable cause of action is based on Ontario’s position that the Crown owes no private law duty of care toward individuals such as Mr. Noddle on the allegations pleaded, relying on R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, 3 SCR 45. Ontario also contended that Mr. Noddle’s claim against the Crown is barred through expiry of the applicable limitation period.

[37] I do not need to decide whether this Action discloses a reasonable cause of action against Ontario because this Action is a nullity and the Amended Statement of Claim must therefore be struck as against Ontario. However, I found the Crown’s arguments compelling, particularly that Mr. Noddle’s claim against the Crown is barred by expiry of the applicable limitation period, predominantly on an analysis that is similar to that which resulted in my determination that this Action is statute barred against Dr. Levy by expiry of the applicable limitation period.

E. Conclusion

[38] I have concluded that this Action is a nullity as against the Defendant Ontario and must therefore be struck.

IV. THE LEVY DISMISSAL MOTION

A. Applicable Principles

[39] The Levy Dismissal Motion was brought on the basis of Rule 20.01(3), which provides as follows: “A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.”

[40] Rule 20.04(2)(a) provides that if a Court is satisfied that there is no genuine issue requiring a trial with respect to a claim, the court shall grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7, 1 S.C.R. 87, the Supreme Court explained, at para. 49, the circumstances that will allow for a finding that there is no genuine issue for trial:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[41] On a motion for summary judgment, the Court will first determine if there is a genuine issue requiring a trial based only on the evidence presented without turning to the fact-finding powers in sub-rule 20.04(2.1). This involves an analysis of the factual record. If there is sufficient evidence to fairly and justly determine the dispute, summary judgment will be granted. If the judge determines that there is a genuine issue requiring a trial, the judge may determine whether the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2), namely: (1) weighing the evidence, (2) evaluating the credibility of a deponent, and (3) drawing any reasonable inference from the evidence.

[42] The summary judgment process must provide the judge with the evidence required to adjudicate the dispute: “There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).” Hryniak, at para. 66

[43] The burden on a party seeking summary judgment is to “move with supporting affidavit material or other evidence to support its motion”: Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 12. A foundational element of a summary judgment motion is that each side must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Cuthbert, at para. 12; Canada (Attorney General) v. Lameman, 2008 SCC 14, 1 S.C.R. 372, at para. 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Ont. Gen. Div.), at p. 434; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 27, aff’d 2014 ONCA 878, leave to appeal dismissed, [2015] S.C.C.A. No. 97.

B. Dr. Levy’s Discharge of his Duty of Care

[44] Dr. Levy provided evidence on this motion through his affidavit, sworn April 17, 2017. He annexed as exhibits to his affidavit the medical record that he made of his treatment of Mr. Noddle. I accept Dr. Levy’s submission that these medical records were admissible on this motion as business records under s. 35 of the Evidence Act, R.S.O. 1990 c. E.23.

[45] Dr. Levy deposed, and his medical records corroborate that he treated Mr. Noddle as a family medicine practitioner in the period from 1999 to 2013, both during the time that he operated an urgent care clinic and the time that he established his family medicine practice. On May 6, 2010, Dr. Levy diagnosed that Mr. Noddle had genital warts and prescribed Aldara, which Dr. Levy described as a standard topical cream for genital warts, containing the active medical ingredient called imiquimod (5%). Dr. Levy deposed that Aldara was a drug approved by Health Canada for the purpose of treatment of genital warts and was recommended for this purpose in 2010 by the U.S. Centers for Disease Control and Prevention.

[46] Dr. Levy deposed, and his medical records corroborate, that a month after he first prescribed Aldara, specifically on June 14, 2010, Mr. Noddle returned to see him and complained of an adverse reaction to Aldara, manifested by redness and a mild rash. Dr. Levy swore that he recommended that Mr. Noddle immediately discontinue the use of Aldara and he referred Mr. Noddle to a dermatologist. Dr. Levy deposed that he received a note from the dermatologist on June 25, 2010, stating that he had examined Mr. Noddle, confirmed the diagnosis of genital warts, and cauterized the warts.

[47] Dr. Levy deposed that he did not have contact with Mr. Noddle from November 2011 until January 10, 2013. I will have more to say on the communications between Dr. Levy and Mr. Noddle in 2013 when I address Dr. Levy’s limitation defence.

[48] In order for Dr. Levy to be liable to Mr. Noddle in this Action, Mr. Noddle must establish the following: (a) Dr. Levy owed Mr. Noddle a duty of care; (b) Dr. Levy breached the standard of care; (c) Mr. Noddle sustained damages; and (d) these damages were caused, in fact and in law, by Dr. Levy’s breach: Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, at para. 71; Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, at para. 77; Saadati v. Moorhead, 2017 SCC 28, at para. 13; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, 2 S.C.R. 114, at para. 3. These elements are conjunctive: they must all be established by Mr. Noddle, on a balance of probabilities.

[49] Dr. Levy conceded that he owed Mr. Noddle a duty of care as his treating family medicine physician. Dr. Levy sought summary judgment on the ground that there is no genuine issue requiring a trial regarding Dr. Levy’s discharge of his duty of care.

[50] The Supreme Court explained the standard of care of physicians in ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 SCR 674, at para. 33, as follows: “It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances.” See also Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132 (C.A.), affirmed 1956 CanLII 29 (SCC), [1956] SCR 991. The exception to this general principle is where the practice prevalent in the profession is found to itself be negligent: Samms v. Moolla, 2019 ONCA 220, at paras. 26-32; Crits v. Sylvester, [1956] O.R. 132 (C.A.), at para. 28.

[51] Dr. Levy tendered the expert opinion evidence of Dr. Kirk Gerard Hollohan, a practicing, certified family medicine physician in Ontario since 2008. I accept that Dr. Hollohan was qualified to provide expert opinion evidence, meeting the requirements for admissibility set out in R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, 2 S.C.R. 182; Imeson v. Maryvale, 2018 ONCA 888, 143 O.R. (3d) 241.

[52] Dr. Hollohan swore to the following expert opinions:

(a) Dr. Levy made a reasonable diagnosis of genital warts based on the information presented to him in May 2010. In fact, Dr. Levy’s diagnosis was subsequently confirmed by a dermatologist;

(b) Dr. Levy’s prescription of Aldara was within the standard of care at the time of Dr. Levy’s treatment;

(c) There was no medical record on which Dr. Levy could have been aware of Mr. Noddle sustaining an adverse reaction to this medication;

(d) Dr. Levy’s decision that Mr. Noddle discontinue use of Aldara was within Dr. Levy’s standard practice and was within the standard of care at that time;

(e) Dr. Levy’s decision to refer Mr. Noddle to a dermatologist for continued examination and treatment was reasonable and within the applicable standard of care, at that time.

[53] In summary, Dr. Hollohan opined that “Dr. Levy’s clinical decisions, investigations, referral and treatment were all within the standard of care”. Mr. Noddle did not file any expert medical evidence on Dr. Levy’s discharge of his standard of care to rebut the testimony of Dr. Hollohan, notwithstanding that Mr. Noddle has been aware of Dr. Hollohan’s expert opinion evidence since May 1, 2017.

[54] I accept Dr. Levy’s sworn evidence regarding his treatment of Mr. Noddle, and I accept Dr. Hollohan’s unchallenged expert opinion evidence. I conclude that Dr. Levy has established that he discharged his duty of care in the treatment of Mr. Noddle’s condition in the manner pleaded. Accordingly, there is no genuine issue for trial on Dr. Levy’s discharge of his duty of care on the claim pleaded. This Action shall be dismissed as against Dr. Levy because Mr. Noddle did not establish, on a balance of probabilities, that Dr. Levy breached his duty of care.

C. Dr. Levy’s Limitation Defence

[55] Section 4 of the Limitations Act provides a two-year limitation period for Mr. Noddle to initiate an action in medical malpractice against Dr. Levy. Section 5 of the Limitations Act causes the limitation period to begin to run from the date on which it was discovered or reasonably discoverable, setting out both a subjective and an objective assessment of when a claim is discovered. The limitation period is not activated until the plaintiff is actually aware of all the elements of s. 5(1)(a) or until a reasonable person with the abilities, and in the circumstances, of the plaintiff first ought to have known of all these matters: Longo v. McLaren Art Centre Inc., 2014 ONCA 526, at para. 41; Van Allen v. Vos, 2014 ONCA 552, 121 O.R. (3d) 72, at para. 34; Castronovo v. Sunnybroook & Women’s College Health Sciences Centre, 2008 CanLII 1174 (Ont. S.C.), at para. 54.

[56] The plaintiff is required to act with reasonable diligence in determining whether he has a claim: Findlay v. Holmes, 1998 CanLII 5488 (Ont. C.A.), at paras. 28-31. “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)”: Longo, at para. 42.

[57] When a limitation period defence is raised, the onus rests with the plaintiff to establish that its claim is not statute-barred in that he acted on his claims when he actually discovered the claim or when a reasonable person in the same or similar circumstances using reasonable diligence would have discovered the facts upon which the claim is based: Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.), at para. 14; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567, at paras. 12-14; Clemens v. Brown (1958), 1958 CanLII 331 (ON CA), 13 D.L.R. (2d) 488 at 491 (Ont. C.A.).

[58] A defendant moving for summary dismissal based on a limitation defence has the burden of establishing that there is no issue requiring trial about its limitation defence: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, at para. 33.

[59] In the Amended Statement of Claim at paragraphs 1, 2, 3, 7, 8, and 11, Mr. Noddle pleaded that he sustained injury by 2011 arising from his use of Aldara. By way of example, in paragraph 2, Mr. Noddle pleaded that in 2010, he “proceeded to inform Dr. Levy about the seizures that occurred from taking the medication Aldara”. In paragraph 8, Mr. Noddle pleaded that in 2011, “Dr. Levy became distant, not returning messages, failing to assist the Plaintiff with the injuries that resulted from the medication Aldara”. In paragraph 13, Mr. Noddle pleaded that in 2013 he “made several emergency visits to Scarborough General Hospital in regard to injuries caused by the medication Aldara and other health complications.”

[60] Dr. Levy’s medical records contain a note dated July 14, 2013, on which Dr. Levy recorded Mr. Noddle’s voicemail message threatening “malpractice” if Dr. Levy did not admit to his alleged wrongful treatment of him. On July 26, 2013, Mr. Noddle requested a copy of his medical records. On August 8, 2013, Mr. Noddle left a further voicemail message, which was recorded, reiterating his demand for a copy of his medical records. Dr. Levy swore that he delivered Mr. Noddle’s complete medical records to him on September 20, 2013, as corroborated by his medical records.

[61] To assess Mr. Noddle’s discoverability of the claim that he pleaded against Dr. Levy, I must assess when he had knowledge, or reasonably ought to have had knowledge, of the material facts on which the cause of action is based: Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, at p. 224; Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2, at p. 38; Zapfe v. Barnes, 2003 CanLII 52159 (ON CA), 66 O.R. (3d) 397 (C.A.). It is not necessary that a plaintiff “know with certainty that … injuries were caused by the fault of the defendant” in order for a limitation period to be activated: Dale v. Frank¸ 2017 ONCA 32, at para. 7, aff’g 2016 ONSC 3211. The question to be posed for discovery of a claim, as stated by the Ontario Court of Appeal in Dale, at para. 7, is “whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”, relying on Lawless v. Anderson, 2011 ONCA 102, at paras. 23 and 28, Soper, and McSween v. Louis (1999), 2000 CanLII 5744 (ON CA), 132 O.R. (3d) 304 (C.A.), at para. 51.

[62] I find that by September 20, 2013, upon his receipt of his complete medical records from Dr. Levy, Mr. Noddle actually knew, and in any event had all the evidence on which he reasonably ought to have known, of the facts on which he based his claim in medical malpractice against Dr. Levy. This means that the limitation period for his initiation of a claim against Dr. Levy expired on September 20, 2015. Mr. Noddle initiated this Action against Dr. Levy on February 16, 2016, beyond the two-year limitation period.

[63] I conclude that Mr. Noddle’s claim against Dr. Levy in this Action is statute barred as being in contravention of the applicable two-year limitation period.

D. Conclusion

[64] I conclude that Dr. Levy has established an entitlement for this Action to be dismissed as against him on the basis that there is no genuine issue for trial concerning his discharge of his duty of care, on the claim pleaded by Mr. Noddle. Additionally, this Action as against Dr. Levy is statute barred as it contravenes the applicable two-year limitation period.

V. DISPOSITION

[65] I order as follows:

(a) The Statement of Claim in this Action is struck, as against Ontario, as a nullity at law;

(b) This Action is dismissed as against Dr. Levy;

(c) Dr. Levy’s motion for an Order pursuant to s. 140 of the Courts of Justice Act, is withdrawn without prejudice to its reinstatement.

[66] As the Plaintiff did not appear on these motions, the Defendants may proceed to take out the Order resulting from my determinations without the necessity of obtaining the Plaintiff’s approval as to form and content.

VI. COSTS

[67] Dr. Levy and Ontario were successful in their motions. A successful party “is entitled to a reasonable expectation [of costs] in the absence of special circumstances: Bell Canada v. Olympia & York Developments Ltd., 1994 CanLII 239 (ON CA), 1994 ONCA 239, 17 O.R. (3d) 135, at para. 23; Yelda v. Vu, 2013 ONSC 5903, at para. 11 leave to appeal denied, 2014 ONCA 353.

[68] Both Dr. Levy and Ontario submitted that they do not seek costs from Mr. Noddle. Accordingly, there shall be no order as to costs.

Sanfilippo J.

Released: December 17, 2019