COURT FILE NO.: SC-91-9401-00
DATE: 20201007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO FEDERATION OF OSTEOPATHIC PROFESSIONALS AND JACOB BRAINIS
Plaintiffs
– and –
INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC.
Defendant
Lou Brzezinski, lawyer for the plaintiffs
Brendan Y.B. Wong and Leah Mangano, lawyers for the defendant
HEARD: IN WRITING
G. DOW, J.
REASONS FOR DECISION
[1] This matter came before me in writing as a result of the COVID-19 pandemic and short motion triage directions of Justice Myers. The defendant seeks to have this Small Claims Court action transferred to the Superior Court of Justice on the basis the issues in dispute should not be determined in Small Claims Court. Alternatively, portions of the relief sought are beyond the jurisdiction of the Small Claims Court.
Background
[2] Osteopathic services in the province are not provincially regulated. The Ontario Federation of Osteopathic Professionals (“the Federation”) is a group of 150 osteopaths with the plaintiff, Jacob Brainis as its president. The educational route to becoming an osteopath involves the World Health Organization having designated Type I or Type II training. The Federation and its members were Type II trained.
[3] Payment for osteopathic services is available for some individuals through collateral insurance plans. The defendant, Industrial Alliance Insurance and Financial Services Inc. (“Industrial Alliance”) is an insurer providing such plans. In 2018, Industrial Alliance reviewed the educational requirements for osteopaths and concluded it should no longer include coverage for osteopathic services performed by those with Type II training and certification from some organizations, one of whom was the Federation. This is known as “delisting”. Industrial Alliance advised its members in writing or electronically that it would no longer reimburse individuals covered by its plans for services performed by the osteopaths within the Federation.
[4] The plaintiffs commenced an action in the Toronto Small Claims Court on August 27, 2019 seeking one dollar for damages arising from defamation and libel. The Statement of Claim was amended September 30, 2019 to increase the prayer for relief to the (then) court limit of $25,000.00 and mandatory orders for retraction of statements made, and reinstatement as authorized providers for their services.
Analysis
[5] The legal test to be applied sets out five factors:
(i) the complexity of the issues;
(ii) the importance of export evidence to determine the issues;
(iii) the need for discovery;
(iv) whether the case involves issues of general importance; and
(v) the desire for a just and fair determination (see Farlow v. Hospital for Sick Children (2009), 2009 63602 (ON SC), 100 O.R.(3d) 213 at paragraph 20).
This is to be balanced against the general principle that this court should rarely exercise its discretion to transfer a case to the Superior Court with scrutiny on the resulting increase in costs to the litigants and its negative impact on access to justice.
[6] Regarding complexity, the plaintiffs claimed its current action is straightforward and couched its claim of defamation within the its three components as described in Grant v. Torstar, 2009 SCC 61. However, in reviewing that decision, it is clear many ancillary issues, including Charter rights, can arise. Further, while the plaintiffs’ factum (at paragraph 20) claimed to withdraw “any and all remedies sought in the Statement of Claim except for damages”, the existing Amended Statement of Claim is to the contrary. It seeks mandatory orders which are beyond the jurisdiction of the Small Claims Court as set out in Section 23 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The statement of withdrawal of these types of claims in a factum is insufficient, particularly when the pleading relied on has been previously formally amended.
[7] By comparison, the defendant asserts a full defence will require evidence detailing the training and certification process of the plaintiff and his Federation. As part of whether it defamed the plaintiffs, it needs to tender evidence about why it made the decision it did and compare Type I and Type II training certification. I would conclude this factor is in favour of the defendant.
[8] Regarding the importance for a need for expert evidence, of the plaintiffs claim that they will not be relying on any such evidence and whether Type I training is equivalent to Type II training is irrelevant. However, in its disagreement with that position, the defendant noted that pre-litigation statements from plaintiffs’ counsel relied on an opinion by the Chair and Director of the Osteopathic International Alliance that graduates of either Type I and Type II programs “have the same core competencies, practical skills, osteopathic skills, and are considered equivalent practitioners”. The acceptance of such evidence would greatly assist the plaintiffs and its rejection would undermine the plaintiffs’ allegations. I would accept the defendant’s position for this factor.
[9] Regarding the need for discovery, the plaintiffs submit same is unnecessary as the issue is whether the removal of insurance coverage is defamatory. To the contrary, the defendant asserts it requires oral evidence not contained in the records available, particularly details of the plaintiffs’ training processes and the connections between the Federation and the educational facilities whose graduates are certified by the Federation. Further, that evidence will be required to inform experts as part of their tendering opinions on this issue. I would conclude in the plaintiffs’ position has oversimplified the issue and the defendant’s position has greater merit.
[10] Regarding whether the matter involves issues of general importance, the plaintiffs submit its case is restricted to the delisting of services performed by its members and is not of general importance to society at large. It relies on its minor role in the larger milieu of regulated health services. The defendant attempted to reframe the issue as this matter being a prelude to class action proceedings. This is not the actual test. However, beginning class proceedings was raised by plaintiffs’ counsel in its letter dated March 14, 2019. The defendant also raised whether it would lead to action by the remaining members of the Federation or the other osteopathic organizations delisted in addition with the Federation. I would conclude this factor favours the defendant.
[11] Regarding a just and fair determination of the matter, the plaintiffs have raised the increase in costs in proceeding in the Superior Court of Justice and that this will impair their ability to proceed. However, no details of the Federation or Jacob Brainis’ financial situation were provided. They have been represented by counsel from the outset. That counsel advised the defendant in writing on March 14, 2019, his instructions were to “take whatever steps it deems necessary to protect its reputation, including the commencement of an action for libel and for inducing breach of contract”. This statement was made in the letter of March 14, 2018, just before raising the possibility of class proceedings.
[12] It is clear the trial will take more than one day and case law relied on indicates that Small Claims Court does not provide continuous trial dates (paragraph 42 of Farlow v. Hospital for Sick Children, supra).
[13] The plaintiffs also raised being exposed to a Rule 37.01 Motion. However, no evidence from the defendant having raised same was tendered. Further, I would note, that should the matter be transferred to the Superior Court of Justice, the recovery of costs will not be limited as occurs in Small Claims Court. Further, higher levels of costs are available through the application of Rule 49 and the court’s discretion under Section 131 of the Courts of Justice Act, supra. In addition, the Law Society of Ontario permits contingent fee arrangements in certain circumstances to promote access to justice.
[14] I also rely on the quote repeated by Justice Herman in Farlow v. Hospital for Sick Children, supra (at paragraph 48), “Small Claims Court is hospitable to litigants who are not represented by counsel. Its procedures are straightforward”. That is not the situation before me.
[15] The law requires the factors evaluated above be evaluated against the presumption the court should rarely exercise its discretion to transfer a case, particularly where the plaintiffs, who are entitled to select the form, opposes same. That selection should be respected. However, from my review and analysis of this matter, the plaintiffs are capable of proceeding in the Superior Court of Justice and, importantly, sought relief that is only available in the Superior Court and that it was only willing to abandon in the face of this motion.
[16] Accordingly, I conclude this is one of those rare occasions where the action should be and is hereby ordered to proceed in the Superior Court of Justice.
[17] Regarding an exemption from simplified procedure, I am not satisfied same should occur at this stage. There were no detailed submissions to support same by either party. The plaintiffs should be given the opportunity to review this order and reevaluate its litigation strategy.
[18] To that end, I grant the plaintiffs 30 days to serve and file its fresh Statement of Claim in the Superior Court with leave granted under Rule 26.01 to amend its pleading.
Costs
[19] Despite the success of the defendant, I order costs of this motion be in the cause. Neither party addressed the issue of costs in its material although Rule 57 and particularly Rule 57.01(6) sets out the process for same.
_____________________________Mr. Justice G. Dow
Released: October 7, 2020
COURT FILE NO.: SC-91-9401-00
DATE: 20201007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO FEDERATION OF OSTEOPATHIC PROFESSIONALS AND JACOB BRAINIS
Plaintiffs
– and –
INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC.
Defendant
REASONS FOR DECISION
Mr. Justice G. Dow
Released: October 7, 2020