Court File and Parties

COURT FILE NO.: CV-20-83794

DATE: 2020/09/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kevin David Fleischhaker, Plaintiff

AND

Royal Ottawa Health Care Group, Defendant

BEFORE: Justice Sylvia Corthorn

COUNSEL: Mr. Fleischhaker as a self-represented Plaintiff

Emilie Roy and Roberto Ghignone, for the Defendant

HEARD: In writing

ENDORSEMENT

[1] In a letter dated July 15, 2020 addressed to the Registrar of this court, the defendant made a request in writing under r. 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That request came before the court in late August 2020.

[2] The defendant requests that the court make an order under r. 2.1.01(1) dismissing the action because it “appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court.” In the alternative, the defendant requests that the action be stayed while the summary procedure under r. 2.1.01 is completed.

[3] The defence counsel’s July 2020 letter attached a copy of the statement of claim in this action (“the Pleading”) and an endorsement of MacLeod J. (as he then was). That endorsement is with respect to a 2019 action commenced by Mr. Fleischhaker in which he named both the Royal Ottawa Health Care Group (“ROHCG”) and Dr. David Attwood as defendants: Fleischhaker v. Royal Ottawa Health Care Group and Attwood, 2020 ONSC 930 (“Fleischhaker No. 1”). A copy of the statement of claim in Fleischhaker No 1 was not attached to defence counsel’s letter.

[4] The defendant’s request with respect to the 2020 action complies procedurally with r. 2.1.01. Although not restricted to “one or two lines”, the request is limited to identifying the specific relief sought (Raji v. Borden Ladner Gervais LLP, 20151 ONSC 1355, at para. 12). It was appropriate for defence counsel to attach to their letter a copy of Fleischhaker No. 1 (Covenho v. Ceridian Canada, 2015 ONSC 1355, at para. 7).

[5] In Fleischhaker No. 1, MacLeod J. followed the summary procedure under r. 2.1.01 and ordered that the 2019 action be stayed. He concluded that a stay of the proceeding was more appropriate than its dismissal because “there might be a legitimate cause of action buried in the pleading and because there is a limitation period issue”: para. 7. MacLeod J. urged the plaintiff to seek legal advice.

[6] Observations and findings made by MacLeod J. with respect to the contents of the pleading in the 2019 action included the following (at para. 1):

• On its face, the statement of claim “appeared to exhibit many of the hallmarks of vexatious and frivolous litigation.”;

• The pleading was lengthy and rambling;

• The pleading included reference to many matters that were not justiciable in this court; and

• It was difficult to discern what cause of action Mr. Fleischhaker was attempting to pursue.

[7] Based on Fleischhaker No. 1, the statement of claim in the 2019 action included allegations by Mr. Fleischhaker that the ROHCG and Dr. Attwood breached the plaintiff’s privacy by releasing information from his chart to his lawyers. Other allegations made related to Dr. Attwood’s treatment of Mr. Fleischhaker.

[8] Against that background, I turn to the contents of the Pleading. Unlike the statement of claim in the 2019 action, the Pleading is neither lengthy nor rambling. The Pleading refers to two alleged breaches of Mr. Fleischhaker’s privacy. Those breaches are said to have been committed by the ROHCG in September 2015 and January 2020.

[9] It is unclear whether the breach of privacy alleged to have occurred in September 2015 formed the basis, in whole or in part, for the claims advanced in the 2019 action. If so, then the Pleading, at least in part, be vexatious or abuse of process.

[10] It is unclear from the Pleading whether Mr. Fleischhaker is seeking damages based on both alleged breaches of his privacy or only the breach of his privacy alleged to have occurred in January 2020. The relief sought in the 2020 action – damages of $5,000,000 – is not precisely set out in the Pleading.

[11] There may be deficiencies in the Pleading; it may even be duplicative, at least in part, of allegations made in the 2019 action that has been stayed. This does not, however, mean that the action is so clearly unmeritorious as to warrant dismissal under r. 2.1.01(6).

[12] A review under r. 2.1.01 is “not meant to be an easily accessible alternative to a pleadings motion, a motion for summary judgment, or a trial” (Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 12). The ROHCG may ultimately seek an order from this court based on a finding that the Pleading fails to disclose a cause of action against it.

[13] In at least two decisions, the Ontario Court of Appeal highlighted that dismissal of an action under r. 2.1.01 is a blunt instrument, reserved for the clearest of cases (Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 and Khan). I find that the Pleading does not fall into the category of “the clearest of cases”.

[14] In summary, I am not prepared to dismiss the 2020 action pursuant to r. 2.1.01 or to require Mr. Fleischhaker to make submissions as to why he should be permitted to proceed with it. The defendant’s request, under r. 2.1.01(6), for the 2020 action to be dismissed or, in the alternative, stayed is dismissed without costs.

Madam Justice Sylvia Corthorn

Date: September 4, 2020

COURT FILE NO.: CV-20-83794

DATE: 2020/09/04

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Kevin David Fleischhaker, Plaintiff

AND

Royal Ottawa Health Care Group, Defendant

BEFORE: Justice Sylvia Corthorn

COUNSEL: Mr. Fleischhaker as a self-represented Plaintiff

Emilie Roy and Roberto Ghignone, for the Defendant

HEARD: In writing

ENDORSEMENT

Corthorn J.

Released: September 4, 2020