COURT FILE NO.: CV-19-1124-00
DATE: 2021 03 16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RICHARD STEVE MITCHELL, aka REV. RICHARD STEVE MITCHELL, DR. RICHARD S. MITCHEL, RICHARD MITCHELL, AND STEVE MITCHELL
Richard Steve Mitchell, the Plaintiff, on his own behalf
Plaintiff
- and -
DR. DAVID CALDWELL PROVAN (CPSO #89125 Family Medicine Emergency Medicine) and THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Pino J Cianfarani and Alec Yarascavitch, for the Defendant. Dr. David Caldwell
Monica Tessier, for the Defendant, The College of Physicians and Surgeons of Ontario
Defendant
HEARD: January 21, 2021 via video conference
REASONS FOR DECISION ON DEFENDANTS' MOTIONS
PURSUANT TO RULES 21.01 (1)(b) and 25.11
P.A. DALEY J.
INTRODUCTION:
[1] The defendants both move pursuant to rules 21.01 (b) and 25.11 of the Rules of Civil Procedure seeking an order striking the statement of claim, without leave to amend.
[2] The plaintiff is a self-represented litigant and before considering the defendants' motions, I must deal with two preliminary matters raised by the plaintiff in his submissions on these motions.
[3] Firstly, the plaintiff initially submitted that I should recuse myself from hearing this motion. He alluded to the fact that, in the past, I had considered a request by a defendant, in another unrelated action brought by the plaintiff, under Rule 2.1.01 where I made a ruling against him.
[4] While I have a recollection of the plaintiff's name, he had never appeared before me personally and I have no memory of the case he referred to.
[5] The plaintiff was advised that if he wished he could proceed with a formal recusal motion on a proper evidentiary record. Having been given the opportunity to do so, he declined and indicated he wished to proceed with making submissions on the defendants' motions.
[6] The plaintiff raised a second preliminary issue relating to an alleged procedural deficiency on the part of the court's administration in accepting the defendants' motions. As I understand it from submissions from the plaintiff and counsel for the defendants, the plaintiff sought to bring a motion seeking an order striking the defendants' motions on the basis of an alleged procedural irregularity arising from the fact that the within action was now proceeding as a Simplified Procedure action. The basis for this objection was never clearly articulated and having considered the record submitted, I was satisfied that the defendants' motions were property before the court and the plaintiff was advised accordingly.
[7] As to the background of this action, it has its origin in the tragic loss of the plaintiff's mother.
[8] In this action the plaintiff seeks damages from the defendants based on allegations of conduct by the defendants that are not articulated in any way setting out the nature of the causes of action being relied on and absent details as to any material facts that could possibly support a legally recognized cause of action.
[9] Further, as discussed below, the plaintiff filed a complaint to the defendant The College of Physicians and Surgeons of Ontario (the "College") in respect of the defendant David Caldwell Provan ("Provan"), a member physician of the College solely relating to its investigation and disposition of the plaintiff's complaint against Provan.
[10] In addition to the provisions of the aforementioned Rules, both defendants further rely upon section 36 (3) of the Regulated Health Professions Act, 1990, S.O. 1991, C. 18 ("RHPA"), which provides that any document prepared for a professional discipline proceeding against doctor is inadmissible in a civil proceeding.
[11] As the defendants' motions are purely pleadings motions, they proceeded without any underlying evidentiary record and the material considered was limited to the pleadings, the defendants' motion records and facta. The plaintiff did not file a factum but offered oral submissions on these motions.
LEGAL FRAMEWORK & ANALYSIS:
[12] The defendants each moved to strike the plaintiff's statement of claim relying upon the same rules of pleading and the provisions of the RHPA.
[13] Rule 25.11 provides:
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,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[14] The purpose of pleadings is to identify and define the issues at stake for the court and to allow the parties opposite to fully know the case they are to meet: Woods et al. v. Jackiewicz et al., 2013 ONSC 519 at para 12.
[15] As to the framing of a pleading, whether a statement of claim or statement of defence, the pleading must contain a concise statement of the material facts upon which the party relies in support of the cause of action or defence being asserted. Absent the requisite material facts, the claim should be struck as scandalous: Copland v. Commodore Business Machines Ltd. (1985), 1985 CanLII 2190 (ON SC), 3 CPC (2d) 77at para 15.
[16] Similarly, conclusory statements and principles of law must be supported by material facts otherwise the pleading should be struck: Copland v. Commodore, at para 19.
[17] As to the defendant Provan, the statement of claim contains no statements as to the defendant’s alleged breaches or that his actions fell below a specific standard of care or that any conduct on the part of this defendant caused or contributed to any damage or injury.
[18] The statements made in the statement of claim relating to this defendant are not grounded in any material facts, as none are pleaded and so all the allegations are no more than argument, assumptions, and speculation.
[19] Notably in paragraph 9 of the statement of claim, the plaintiff states that he will provide "other written and material facts within the plaintiff's factum, and other relative (sic) materials." The material facts must be in the statement of claim and they are completely absent in this case.
[20] As to the defendant College, the statement of claim is similarly devoid of any material facts connected with any cause of action known to law.
[21] The allegations against the College and Provan are solely related to the investigation and disposition of the plaintiff's complaint against Provan, without any material facts or any factual link to a known cause of action. There is no known cause of action articulated as against the defendants within the statement of claim.
[22] As such, the plaintiff's statement of claim has failed to meet the minimum standards as required by Rule 25.06 (1) and as such the statement of claim must be struck as it relates to both defendants.
[23] Furthermore, as there could be no meaningful amendments to the statement of claim that could possibly cure the deficiencies in the pleading, which would save it from a further pleadings attack, leave to amend the pleading or to deliver a fresh statement of claim is denied.
[24] For completeness and to consider the alternate basis more fully for the defendants' motions, the statement of claim will be examined within the context of Rule 21.01(1)(b) as well as under section 36(3) of the RHPA.
[25] Rule 21.01(1)(b) provides as follows:
A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[26] The test as articulated on a motion under this rule is whether the claim has no reasonable prospect of success where: (1) the plaintiff pleads allegations that do not give rise to a recognized cause of action or (2) the statement of claim fails to plead a necessary element of a known cause of action: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC) at P 980.
[27] The plaintiff has failed to meet either of these two requirements in that the statement of claim is void of any material facts that would support a recognized cause of action and no cause of action is articulated against the defendants.
[28] Furthermore, as to the defendant College in addition to there being no cause of action articulated relating to this defendant, there is in any event no private law duty owed by this defendant to the plaintiff: Kawabanza v. The College of Physicians and Surgeons of Ontario, 2012 ONSC 5452 at paras 16-20; Rogers v Fraught, 2002 CanLII 19268.
[29] Thus, the statement of claim is frivolous and vexatious in its entirety and the plaintiff's statement of claim is struck without leave to amend.
[30] The provisions of the RHPA and specifically section 36 (3) of the act provides further support for the conclusion that the statement of claim must be struck, quite apart from the application of the rules of pleading as considered above.
[31] Section 36 (3) of the Act provides as follows:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
[32] Given the effect of this statutory provision, the allegations made by the plaintiff in the statement of claim are incapable of proof and as such it is plain and obvious that the statement of claim fails to disclose a reasonable cause of action in respect of both defendants.
[33] This provision of the Act creates a blanket prohibition against the admissibility of all evidence collected during the College's investigation and this prohibition is an absolute one such that none of the records, reports, orders, decisions, or other documents created during a College proceeding can be admitted in a civil action: Conroy v. The College of Physicians and Surgeons of Ontario, 2011 ONSC 324 at paras 52 – 57, aff'd 2011 ONCA 517, leave to appeal to SCC ref'd.
[34] Additionally, section 38 of the RHPA provides statutory immunity for the College as a regulator as well as its staff such that the broad immunity statutorily provided can only be overcome if bad faith or malice is pleaded and proven. A pleading of malice or bad faith must meet a stringent standard of particularity. A bald plea of bad faith or malice is insufficient to defeat the requirements of rule 21.01 (1) (b): Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501 at para 87.
CONCLUSION:
[35] For the reasons outlined the plaintiff's statement of claim is struck without leave to amend.
[36] As to costs, counsel for the defendants shall serve and file submissions as to costs within 20 days from the release of these reasons. The submissions shall be no longer than two pages plus a costs outline. The plaintiff shall serve and file his submissions of a similar length and content within 20 days thereafter. No reply submissions shall be served and filed without leave of the court.
Daley, J.
Released: March 16, 2021
COURT FILE NO.: CV-19-1124-00
DATE: 2021 03 16
ONTARIO
SUPERIOR COURT OF JUSTICE
RICHARD STEVE MITCHELL, aka REV. RICHARD STEVE MITCHELL, DR. RICHARD S. MITCHEL, RICHARD MITCHELL, AND STEVE MITCHELL.
– and –
DR. DAVID CALDWELL PROVAN (CPSO #89125 Family Medicine Emergency Medicine) and THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
REASONS FOR DECISION ON DEFENDANTS' MOTIONS
PURSUANT TO RULES 21.01 (1)(b) and 25.11
Daley, J.
Released: March 16, 2021