COURT FILE NO.: CV-17-570710-0000

DATE: 20191010

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sylvia Asa and Shereen Ezzat

Plaintiffs

– and –

University Health Network, Christopher Paige, Charles Chan, Bradly Wouters, Peter Pisters, Katherine Roposa and Thomas Goldthorpe

Defendants

L. Vermeersch and P. Fruitman, for the Defendants

M. B. Fraleigh and J. Schwartz, for the Plaintiffs

HEARD: July 16, 2019

O’bRIEN, j.

REASONS FOR DECISION

Overview

[1] The issue on this motion is whether the Plaintiffs’ Statement of Claim should be struck because they have already participated in multiple administrative proceedings over several years, culminating in two judicial reviews before the Divisional Court, with a third judicial review pending this Fall. The Defendants submit that the claim arises from the same facts as the administrative proceedings and constitutes an abuse of process, a collateral attack on the Divisional Court decisions, and/or is barred by issue estoppel. The Plaintiffs submit that, while there is some overlap between the Statement of Claim and the administrative proceedings, the Statement of Claim includes new allegations and facts. They ask that I exercise my discretion to permit the claim to proceed.

[2] The facts at issue date back to 2012. The Plaintiffs, Dr. Sylvia Asa and Dr. Shereen Ezzat, are physicians, researchers, and spouses of one another. They had clinical appointments and conducted research at the University Health Network (“UHN”) in Toronto starting in 2000. The Divisional Court has described them as “world-renowned cancer researchers.”

[3] In November 2012, UHN initiated an inquiry and subsequent investigation into allegations that publications, which the Plaintiffs authored, contained falsified and/or fabricated images. UHN initiated an investigation. It decided that given the number of images at issue, the investigation would proceed in two phases. In each phase, a committee was appointed to investigate, weigh the evidence, and determine whether research misconduct had occurred. In both phases of the investigation, UHN determined that the Plaintiffs had committed research misconduct and UHN subsequently issued sanctions against them. The Plaintiffs sought judicial review of these decisions in two judicial review applications, with a third judicial review application pending this Fall.

[4] By Notice of Action issued on March 2, 2017 and then by Statement of Claim dated April 3, 2017, the Plaintiffs commenced the current claim. The individual Defendants held senior positions at UHN and were participants or decision-makers in the UHN investigations. The Plaintiffs allege breach of contract, negligence, misfeasance of public office, conspiracy, and interference with economic relations. The overall thrust of their claim is that UHN and its staff treated them unfairly in the investigations against them and conspired to have them removed from UHN.

[5] At the same time as the Defendants’ motion to strike, the Plaintiffs also brought a motion before me to amend their Statement of Claim to include new facts, which they say were recently discovered. These facts play an important part in the motion to strike as they are, in part, the facts the Plaintiffs say were not known or raised in the administrative proceedings. They submit that these new facts are part of the justification for why their claim should be permitted to proceed.

[6] As further set out below, I conclude that the claim should be struck as an abuse of process. I find that, although some parts of the claim are articulated in a different manner, the claim raises the same factual and substantive issues as did the administrative proceedings. Even the alleged newly discovered facts that the Plaintiffs seek to add by amending the claim have been raised in the administrative proceedings. To the extent the Plaintiffs have added a few new facts to the Statement of Claim, they do not change the overall thrust of the claim. Further, because the overall context and nature of the claim mirrors those of the administrative proceedings, the Plaintiffs could have added these additional facts to the administrative proceedings, but chose not to do so. There is nothing significantly new and different here that would justify allowing the Plaintiffs to relitigate the same issues.

Issues

[7] The only issue for me to decide is whether allowing this claim to proceed would constitute an abuse of process. I do not need to separately consider the arguments related to collateral attack and issue estoppel, as the motion can be resolved under the doctrine of abuse of process. In considering this issue, I have reviewed the proposed Amended Statement of Claim. I have assumed that the Statement of Claim includes the facts the Plaintiffs seek to add via their motion to amend. The Defendants have also raised the alternative position that certain claims in the Statement of Claim should be struck as not properly pled. It is not necessary for me to address these arguments, as my conclusion is that the Amended Statement of Claim constitutes an abuse of process and should be struck.

Abuse of Process

[8] The Amended Statement of Claim constitutes an abuse of process, as the facts and allegations it raises have been, or could have been, litigated in the related administrative proceedings. The Plaintiffs had extensive opportunity to and did raise many facts and issues in their own defence over the course of multiple administrative proceedings. Further, there is considerable overlap between the facts and issues in the administrative proceedings and those raised in the Amended Statement of Claim.

Extensive Administrative Proceedings

[9] The Plaintiffs have played an active role in providing submissions and seeking appeals, reviews, and reconsiderations through multiple administrative processes in relation to UHN’s investigations. They were represented by counsel throughout. Further, their submissions have been considered by multiple decision-makers, both from within and outside UHN.

[10] The administrative proceedings they have pursued in great detail and all with the assistance of counsel include the following:

a. During the investigation of the first UHN committee (from 2013 to 2014), the committee met with the Plaintiffs and visited their research laboratory. The committee also interviewed and received written submissions from numerous co-authors who had worked with the Plaintiffs on the publications that were under review.

b. In July 2014, the first committee provided the Plaintiffs and their counsel with a draft report. The Plaintiffs, with the assistance of counsel, provided a comprehensive response to the draft report. In October 2014, the first committee issued its final report. The Defendants, Dr. Christopher Paige and Dr. Charles Chan, who were responsible for implementing the relevant research policy, subsequently advised the Plaintiffs of the sanction the Defendants considered appropriate. The sanction consisted of suspending the Plaintiffs’ research activities pending the outcome of the remainder of the investigation.

c. The Plaintiffs then appealed the first committee’s decision and the related sanction decision to the President and CEO of UHN, the Defendant, Dr. Peter Pisters. In January and February 2015, they submitted detailed appeal submissions, again with the assistance of counsel. By decision dated March 3, 2015, Dr. Pisters considered the Plaintiffs’ appeal submissions, as well as responding submissions from Drs. Chan and Paige. He also considered further reply submissions from the Plaintiffs. Dr. Pisters determined that the research policy had been properly applied and that the first committee’s decision and the first sanction decision were reasonable.

d. The Plaintiffs then brought an application for judicial review of the decisions on the appeal and the sanction. By decision dated January 22, 2016, the Divisional Court upheld part of the decisions, including the finding of research misconduct, but found that the finding of research misconduct related to falsification and fabrication could not be upheld. Because the Court could not determine if the findings of falsification and fabrication had influenced the sanction decision, it directed that the question of sanction be remitted back to Drs. Paige and Chan.

e. Drs. Paige and Chan reconsidered the sanction decision and confirmed that the sanction they had originally imposed was not based on the belief that the Plaintiffs had personally falsified or fabricated the images. Thus, they concluded the sanction was still appropriate. The Plaintiffs appealed this reconsidered sanction decision to Dr. Pisters, who dismissed the appeal and upheld the reconsidered sanction decision. The Plaintiffs applied for judicial review of this decision as part of their second judicial review, discussed further below.

f. In the meantime, the Plaintiffs also participated in the second phase of UHN’s investigation. In May 2015, UHN formed a different independent committee to investigate the next subset of papers about which allegations of irregularities had been made. In May 2016, the second committee provided its draft report to counsel for the Plaintiffs. The Plaintiffs, through their counsel, provided a detailed response to this draft report. The Plaintiffs’ response included reports written by three experts they had retained to provide opinions and assistance to the committee. In September 2016, the second committee delivered its final report, which concluded that the Plaintiffs had committed research misconduct. Drs. Paige and Chan then issued their sanction decision in response to this report. They concluded that the temporary suspension of the Plaintiffs’ research activities should be converted into a permanent closure of their research laboratory.

g. The Plaintiffs appealed the second committee’s decision to Dr. Pisters. The Plaintiffs made detailed submissions on the appeal and also provided reply submissions to Dr. Pisters. By decision dated January 4, 2017, Dr. Pisters again dismissed the Plaintiffs’ appeal.

h. The Plaintiffs appealed the second sanction decision to the Health Professions Appeal and Review Board (“HPARB”), as the decision impacted their hospital privileges. HPARB dismissed the appeal. Then, by lengthy submissions dated February 9, 2018, the Plaintiffs brought an internal appeal of the second sanction decision to Dr. Hodge. By that time, Dr. Pisters had resigned, and Dr. Chan had taken over as the CEO of UHN. As Dr. Chan could not review his own decision, Dr. Hodge was asked to act as the decision-maker on the appeal. The Plaintiffs also provided reply submissions. By letter dated May 2, 2018, Dr. Hodge upheld the second sanction decision.

i. The Plaintiffs also brought a second application for judicial review, seeking review of Dr. Pisters’ second appeal decision, as well as his decision on the appeal of the reconsidered first sanction (as referenced above). By decision dated July 13, 2017, the Divisional Court dismissed this application in its entirety. The Plaintiffs brought a motion for leave to appeal this decision, which was dismissed by the Court of Appeal.

j. By submissions dated November 16, 2018, the Plaintiffs then wrote to the new President and CEO of UHN, Dr. Kevin Smith, requesting that the second committee reconsider its decision, on the basis of what the Plaintiffs described as “recently discovered primary data from the research articles of the second phase of the investigation.” By letter from UHN counsel dated December 28, 2018, UHN declined to ask the second committee to reconsider its decision.

k. Finally, Dr. Essat now has initiated a third application for judicial review, by Notice of Application dated February 25, 2019. This application seeks review of the decision of Dr. Hodge with respect to the second sanction decision.

[11] Therefore, the Plaintiffs have had an extremely comprehensive opportunity to raise every possible fact, allegation, and complaint of any kind with respect to the investigation into their conduct and the findings made against them. Over a period of seven years, with one judicial review still outstanding, the Plaintiffs have participated fully, with the assistance of counsel, and have raised multiple and varied arguments in their defence.

Significant Overlap between Administrative Proceedings and the Statement of Claim

[12] There is significant overlap between the allegations in the administrative processes and the allegations in the Amended Statement of Claim. As set out above, the overall thrust of the Amended Statement of Claim is that UHN treated the Plaintiffs unfairly and conspired against them in the course of the investigations and with respect to the decisions made against them. The individual Defendants were all UHN employees who were involved in the investigation and/or decision-making processes. Examples of the overlap between the Amended Statement of Claim and the issues and submissions in the administrative processes include the following:

Overall Bias and Breaches of Procedural Fairness

[13] In the Amended Statement of Claim, the Plaintiffs plead that UHN and the individual Defendants “acted in bad faith in the investigation and decision-making process” (at para. 120). They were in breach of contract, including by “failing to provide the Plaintiffs with an unbiased investigation free of actual or potential conflicts of interest,” “failing to comply with the principles of natural justice and procedural fairness during the investigation and decision-making process,” and “failing to conduct the investigation in good faith” (at para. 122).

[14] In the administrative proceedings, the Plaintiffs also made allegations of bias and breach of procedural fairness. For example, in their submissions on the appeal to Dr. Pisters of the first committee’s decision, the Plaintiffs made reference to the “numerous procedural infractions that occurred throughout the two years of this investigation and the generation of the report of the Investigation Committee.” Dr. Pisters addressed this allegation in some detail in the appeal decision. In addition, on judicial review, the Plaintiffs advanced the submission that the matter should be sent back for redetermination in an oral hearing. In the first judicial review decision, the Divisional Court concluded that the Plaintiffs “were awarded the procedural fairness to which they were entitled”: Asa v. University Health Network, 2016 ONSC 439 (Div. Ct.), at paras. 44-45.

[15] Similarly, in their appeal of the second committee’s report, the Plaintiffs alleged breaches of natural justice and procedural fairness in that they claimed to have been “repeatedly subject to unfair investigation tactics in the form of unreasonable demands for data and/or information on short notice, or with no notice at all.” They also alleged a failure on the part of the committee to conduct a fair and balanced investigation and that the investigation was not conducted in good faith. Dr. Pisters addressed these allegations in some detail in his decision on the appeal. He made reference to the Divisional Court’s findings regarding the first investigation and stated, “I also believe the standard of procedural fairness identified by the Court has been met, if not exceeded, in this investigation.”

Allegations Against Individual Defendants

[16] In addition to alleging general breaches of procedural fairness, the Plaintiffs in the Amended Statement of Claim have made allegations of bias, bad faith, and conspiracy, against individual Defendants. These allegations can be matched against the same or very similar allegations in the administrative proceedings. I have not attempted to repeat every allegation here. The Plaintiffs’ allegations include the following:

(a) Bias/bad faith/conspiracy: In the Amended Statement of Claim, the Plaintiffs have alleged bad faith and that all of the individual Defendants conspired to injure their professional reputation and livelihood. In the administrative proceedings, they similarly alleged that the individuals responsible for administering the investigation were biased (e.g. in the second Judicial Review: Asa v. University Health Network, 2017 ONSC 4287, starting at para. 80 ("Second Judicial Review")) and made numerous specific allegations of bias against individual Defendants (e.g. against Dr. Paige in the second appeal submissions and Second Judicial Review, against Dr. Wouters in the second appeal submission and Second Judicial Review, and against Dr. Pisters in the Second Judicial Review).

(b) Termination of Employees: In the Amended Statement of Claim, the Plaintiffs have made allegations against Dr. Wouters related to the termination of employees. Dr. Wouters was the chair of the oversight committee. He was appointed to implement the first sanction decision and manage practical issues arising from it. This included overseeing the suspension of the Plaintiffs’ research activities and overseeing the trainees and other employees who worked in the laboratory. The Plaintiffs alleged that Dr. Wouters acted negligently and in a conspiracy to harm the Plaintiffs’ reputation and livelihood when he terminated the employment of two individuals, Dr. Liu and Ms. Wei, who worked in the Plaintiffs’ laboratory. The Plaintiffs alleged that Dr. Wouters failed to collect data from Dr. Liu and Ms. Wei prior to their termination. Alternatively, the Plaintiffs alleged that Dr. Wouters collected the data, placed it in cabinets, and failed to produce it to the committee investigating the allegations against them.

In the administrative proceedings, at the second Judicial Review, the Plaintiffs similarly alleged that UHN failed to appropriately consider the weight and impact of terminating the employment of Dr. Liu and Ms. Wei, and that UHN was in breach of its responsibilities by failing to collect data from Dr. Liu and Ms. Wei. In further administrative proceedings, described below in my discussion of the new allegations, the Plaintiffs also have made allegations about collecting the data and placing it in cabinets.

(c) Reliance on Independent Legal Counsel: In the Amended Statement of Claim, the Plaintiffs have alleged that Dr. Pisters inappropriately relied on the written legal opinion of independent legal counsel, without notifying the Plaintiffs or providing them with an opportunity to respond. They also have alleged that he excluded the Plaintiffs from this process, while counsel for UHN were copied on the written opinion from independent legal counsel. At the Second Judicial Review, the Plaintiffs alleged that the manner in which Dr. Pisters obtained legal advice from independent legal counsel was contrary to the principles of natural justice and procedural fairness, including in that the Plaintiffs (Applicants in that proceeding) were excluded from the process. I note that the Divisional Court’s decision on the second judicial review expressly rejected this argument: see Second Judicial Review, at paras. 80-84.

(d) Criticism of Forensic Analysis: In the Amended Statement of Claim, the Plaintiffs have made allegations against Mr. Goldthorpe. Mr. Goldthorpe was the Senior Director of Research Information Systems at UHN. Mr. Goldthorpe assisted the first committee with the review of the images that were the focus of the investigation. The Plaintiffs alleged that he was negligent in that he “erred in his forensic analysis” of primary data. He also provided the committee with “inaccurate, unfounded and/or unwarranted information.” With respect to the administrative proceedings, in the first phase of UHN’s investigation, the Plaintiffs expressed concern with Mr. Goldthorpe’s expertise.

[17] I do not mean to suggest that the overlapping allegations are all precisely the same. For example, with respect to allegations of procedural fairness, some specific alleged breaches in the administrative proceedings do not appear in the Statement of Claim. However, parties will be found to abuse the Court’s process regarding issues that were not raised in an earlier action but were known to them at the time of the earlier action: Reddy v. Oshawa Flying Club (1992), 11 C.P.C. (3d) 154 (Ont. Gen. Div.), at p. 16. In other words, the Court must consider allegations that were not raised but could have been raised. Further, although the allegations in the Amended Statement of Claim are worded differently, the question is not whether the legal issues or causes of action are pleaded in precisely the same manner, but whether they address the same underlying factual matrix: Aba-Alkhail v. University of Ottawa, 2013 ONSC 2127; aff'd 2013 ONCA 633; leave to appeal to S.C.C. refused, 35656 (March 14, 2014), at para. 43.

[18] The Plaintiffs submit, however, that the Amended Statement of Claim raises a number of new issues. They particularly highlight the following:

(a) The Amended Statement of Claim makes allegations of breach of confidentiality by UHN. These include the allegation that in July 2015, Dr. Pisters released a UHN-wide announcement highlighting a Toronto Star article about the conclusions of the first phase of the investigation and the retraction of the Plaintiffs’ research articles. The Plaintiffs allege that these actions contravened Dr. Pisters’ duty of confidentiality under UHN’s research policy and that UHN breached its duty to maintain the highest degree of confidentiality in the investigation.

(b) The Amended Statement of Claim makes new allegations regarding a report prepared by Stephen Ellwood, a digital forensic examiner retained by the Plaintiffs (the “Ellwood report.”). These allegations were not in the original Statement of Claim. The Plaintiffs argue that these allegations relate to recently discovered facts and seek to add them to the Statement of Claim by the motion to amend. The Ellwood report was prepared following Mr. Ellwood’s investigation of concerns raised by a journal editor. The Ellwood report concluded that the anomalies noted by the second committee regarding certain images were caused by the publishers and not by the Plaintiffs.

(c) The Amended Statement of Claim makes new allegations regarding missing data that was found in four locked cabinets discovered during the lab closure process. Again, these allegations were not in the original Statement of Claim and the Plaintiffs consider them to relate to recently discovered facts. They seek to add them to the Statement of Claim by the motion to amend. They allege that Dr. Wouters or Ms. Roposa collected the missing data identified in the second investigation from Dr. Liu or Ms. Wei and placed it in the cabinets. Ms. Roposa was the Director of Research Quality Integration at UHN. She headed UHN’s Research Integrity Team and provided procedural assistance to the first investigation committee. The Plaintiffs allege that Dr. Wouters or Ms. Roposa failed to provide the missing data to the committee and failed to notify the Plaintiffs about the location of the missing data.

[19] In addition to these allegations, the Plaintiffs submit that a significant reason the action should be permitted to proceed is that administrative proceedings are not able to address the fundamental concern at issue in the Statement of Claim. This is that there was a “backroom” conspiracy among a number of individuals to remove the Plaintiffs from UHN. They submit that this concern is outside the purview of an administrative review and that this litigation is the only way to address it.

[20] I find that the new facts and allegations do not detract from my conclusion that the action constitutes an abuse of process. I will address each in turn:

(a) With respect to the allegations of breach of confidentiality by Dr. Pisters and UHN, although these were not raised in the administrative proceedings, they fall within the scope of the types of allegations the Plaintiffs did raise and could have raised in those proceedings. For example, in the second Judicial Review, which followed the alleged breaches of confidentiality, the Plaintiffs/Applicants alleged that Dr. Pisters’ involvement in the first appeal gave rise to a reasonable apprehension of bias with respect to the second appeal. They also alleged that he failed to correctly apply the UHN research policy. They could have alleged that he and UHN breached the research policy by failing to maintain confidentiality but chose not to do so.

(b) With respect to the Ellwood report, the Plaintiffs raised their reliance on this report in submissions to Dr. Hodge with respect to the second sanction decision. They provided Dr. Hodge with the Ellwood report, quoted from it, and highlighted Ellwood’s conclusion that the irregularities noted by the committee were caused by the publisher’s image preparation process and not by Drs. Asa and Ezzat. They submitted that the Ellwood report should be considered in the determination of the appropriate sanction. Dr. Hodge, in his decision, raised concerns about considering the Ellwood report, given that it was not before the second committee. However, he also specifically considered the Ellwood report and concluded that it would not have changed the conclusions of Drs. Paige and Chan. His reasons included that the Ellwood report only addressed 6 of 16 images in one paper. This was one out of 19 papers reviewed by the two committees. The images at issue were 6 out of 130 total images considered in the two investigations. Dr. Hodge’s decision is now subject to the third judicial review.

(c) With respect to the new allegations regarding the missing data, as set out above, on November 16, 2018, the Plaintiffs made submissions to UHN about the “recently discovered primary data” and asked that the second committee reconsider its decision. The November 16, 2018 letter sets out the same factual allegations now sought to be included in the Amended Statement of Claim. Although UHN refused to ask the second committee to reconsider its decision, it provided reasons for its position. These reasons included that it did not accept that four cabinets containing primary data “suddenly appeared in the lab.” Further, it concluded that, although the second committee had raised concern about Drs. Asa and Ezzat’s inability to produce the primary data, the remainder of their conclusions about the images would not have been impacted by the reappearance of the primary data.

[21] In other words, all of the allegations in the Amended Statement of Claim were raised or could have been raised in the numerous, lengthy, administrative processes addressing the UHN investigations, decisions, and sanctions.

[22] Finally, I reject the submission that the administrative processes could not address the claim of conspiracy pleaded in the Amended Statement of Claim. Indeed, there are no new facts in the Amended Statement of Claim to ground the claim of conspiracy that have not already been raised in the administrative proceedings. The core of the alleged conspiracy, as set out in the Amended Statement of Claim, is that Dr. Asa implemented a tissue policy and a tissue bank for research at UHN that had the effect of negatively impacting the ability of others to conduct research, including Dr. Paige and Dr. Wouters. It is pled that as a result of Dr. Asa’s actions, Dr. Paige developed animus towards Dr. Asa and undertook a course of action that would result in the closure of the Plaintiffs’ lab. However, the Plaintiffs already raised all of this in the administrative proceedings. In the Plaintiffs' submissions to Dr. Pisters appealing the second committee’s decision, they specifically set out the background involving Dr. Paige and claimed he had antagonism towards Dr. Asa, due to her role in the tissue policy. Dr. Pisters' decision then was upheld on judicial review. In other words, throughout the administrative proceedings, the Plaintiffs already have submitted that the investigation into their conducted was tainted by personal animus from the outset.

Law Regarding Abuse of Process

[23] The Defendants have brought this motion under r. 21.01(3) and 25.11(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, both of which authorize the Court to dismiss or strike out pleadings that are an abuse of process. Rule 21.01(3) provides in relevant part:

21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order and grant judgment accordingly.

[24] Rule 25.11(c) 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,

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

[25] Judges have an inherent and residual discretion to prevent an abuse of the court’s process. Abuse of process is meant to preclude proceedings that are "unfair to the point that they are contrary to the interests of justice": Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 62, [2003] 3 S.C.R. 77, at para. 35; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 39. The doctrine is "characterized by its flexibility,” allowing judges to assess the litigation and determine whether allowing the case to proceed would bring the administration of justice into disrepute: Behn, at para. 40.

[26] The courts can find there has been an abuse of process when the litigation before the court has been determined already in previous judicial proceedings or in a different forum: C.U.P.E., at paras. 43-45; Behn, at para. 40. Allowing parties to relitigate the same issues with the aim of impeaching previous findings in a different forum is improper and attacks the integrity of the adjudicative process: C.U.P.E., at para. 46.

[27] I accept that to permit the action in this case to proceed would constitute an abuse of the process of the Court. This case is on all fours with Aba-Alkhail. There, three medical doctors commenced an action for, among other things, conspiracy, misfeasance in public office, negligence, and breach of contract (all causes of action pleaded by Drs. Asa and Essat). All three doctors had been subject to academic evaluations resulting in their placement in remediation or probation, or, in the case of one doctor, termination of his residency. All three appealed to the Senate Appeals Committee, which dismissed their appeals. Two of the doctors then brought applications for judicial review (with the third pending at the time of the motion to strike the doctors' action). The Divisional Court dismissed the applications for judicial review.

[28] The three doctors then commenced an action. On a motion to strike, the Court struck the Statement of Claim in its entirety as an abuse of process, stating at para. 43:

I accept the defendants’ position that the multiple claims in this case are window dressing. The underlying complaint of each plaintiff is that they were not promoted in their programs or were dismissed in their programs. To be successful on the claims would require different findings of fact from what was determined in the internal review process on the very same evidence. It would be re-litigation in a different forum. I find this to be an abuse of process.

[29] Similarly, here, the underlying complaint in the Amended Statement of Claim is that UHN and the individual Defendants treated them unfairly in the investigation and closed their lab as a result of improper motives. These complaints have been made already in the administrative proceedings. To be successful on these claims would require different findings and conclusions from those in the internal proceedings and the Divisional Court. The Plaintiffs, over a period of more than six years, have raised extensive facts and a considerable number of legal arguments. They have made multiple, lengthy submissions in internal processes and before the Divisional Court. The matters raised in the Amended Statement of Claim have been litigated thoroughly. It would be an abuse of process to allow them to be re-litigated in a different forum.

[30] I consider the case of Lipsitz v. College of Physicians and Surgeons of Ontario, 2011 ONCA 466, relied on by the Plaintiffs, to be distinguishable. There, the Court of Appeal agreed with the motions judge that the action should not be stayed or dismissed as an abuse of process, although found that the Defendants were still entitled to raise the abuse of process argument at trial. However, the administrative proceedings at issue were not comparable to the administrative steps the Plaintiffs have taken in the case at bar.

[31] In that case, the College of Physicians and Surgeons of Ontario (“CPSO”) had conducted a number of inspections and assessments of Dr. Lipsitz’s sleep disorder centres. As a result of the inspections, the Director under the Independent Health Facilities Act, R.S.O. c.I.3, proposed to revoke, suspend, or take other regulatory action in respect of Dr. Lipsitz’s licence. Dr. Lipsitz immediately appealed each of the Director's decisions or proposed decisions to the Health Services Appeal and Review Board, though he subsequently settled each appeal. The allegations in the Statement of Claim were that the CPSO, the Director, and others had engaged in a “closure campaign” with respect to his sleep disorder centres.

[32] The basis for the civil claim in that case required viewing the inspections and assessments as a whole, a perspective that was not necessarily available at the time of each individual appeal. Still, the Court of Appeal left open the possibility that ultimately the trial court may find an abuse of process. That is, the Court of Appeal left open for determination at trial whether Dr. Lipsitz was aware of the alleged closure campaign at the time of the settlement agreements.

[33] In the case at bar, by contrast, there is no larger perspective that came to light only after the conclusion of the administrative proceedings. Rather, the Plaintiffs have asserted their overall perspective, that the process against them was tainted from the beginning, throughout the administrative proceedings. Further, whereas in the Lipsitz case, the prior proceedings were resolved by way of settlement, here, I have before me a detailed and comprehensive record of multiple factual and legal submissions, as well as decisions by various decision-makers, on all aspects of the Plaintiffs’ claims, including the claim that the proceedings were tainted from the beginning. To the extent the Plaintiffs here have raised some new factual allegations in the Amended Statement of Claim, I consider these to be narrow and limited points in the context of the multiple proceedings over several years. They do not constitute the same kind of potentially new and overarching claim that grounded the civil action in Lipsitz.

Conclusion

[34] I conclude, therefore, that the Amended Statement of Claim constitutes an abuse of process and should be struck.

Costs

[35] The parties provided me with costs outlines for the two motions. I consider the Defendants to have been successful on both motions. Although I did not determine the motion to amend directly, it was not necessary to do so, as, regardless of the outcome, the entire claim would be struck.

[36] The Defendants’ partial indemnity costs for the motion to strike were $43,121.30. Their partial indemnity costs for the motion to amend were $7,562.46. The Plaintiffs’ costs were much more modest. Their partial indemnity costs for the motion to strike were $12,950.03. Their partial indemnity costs for the motion to amend were $3,457.40. The lawyer and law clerk time for the Defendants was 135 hours, whereas the lawyer and law clerk time for the Plaintiffs was 77 hours.

[37] These two motions together took one day to argue. Although the legal arguments were not overly complex, the history of the matter was complex, given the long history and multiple prior administrative proceedings. The materials were voluminous.

[38] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, costs are in the discretion of the court. I have considered the factors set out at r. 57.01, including the principle of indemnity and the amount of costs that an unsuccessful party could reasonably expect to pay. I also note that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 16.

[39] In the circumstances of this case, I consider the costs sought by the Defendants to be excessive. I am prepared to order costs that are higher than those set out in the costs outlines provided by the Plaintiffs, but the Plaintiffs' lower amounts do provide a basis by which to measure a reasonable expectation. In my view, costs for both motions in the total amount of $22,000 is fair and reasonable in the circumstances of this case.

Disposition

[40] The motion to strike is allowed and the action is dismissed. The Plaintiffs are ordered to pay costs in the amount of $22,000 to the Defendants within 30 days.

O’Brien, J.

Date Released: October 10, 2019

COURT FILE NO.: CV-17-570710-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sylvia Asa and Shereen Ezzat

Plaintiffs/Applicants

– and –

University Health Network, Christopher Paige, Charles Chan, Bradly Wouters, Peter Pisters, Katherine Roposa and Thomas Goldthorpe

Defendants/Respondents

REASONS FOR DECISION

O’Brien, J.

Released: October 10, 2019