Court File and Parties

COURT FILE NO.: CV-12-467351 DATE: 2021-03-24

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Wendy Sin Ming Ho, Plaintiff -and- Her Majesty the Queen in Right of Ontario, et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Wendy Ho in person Adam Mortimer, for Her Majesty the Queen in Right of Ontario

HEARD: March 24, 2021

ENDORSEMENT

This Action: 1999 - 2012

[1] The government moves to dismiss this action on the basis that Ms. Ho’s amended statement of claim does not set out a reasonable cause of action against it.

[2] Ms. Ho submits that she has a proper basis to sue the government. She also asks for an extension of the time limit for her to set the action down for trial. In 2018 Master Graham set a time limit of December 31, 2020 In December, 2020 Dow J extended it until today.

[3] In 1999, Ms. Ho endured what she views as harassment and criminal threats against her while employed by Credit Valley Hospital. Her efforts to obtain redress against her employer were dismissed by the Ontario Labour Relations Board and the Workplace Safety and Insurance Appeals Tribunal. The Ontario Human Rights Commission refused to take up her case. It said that Ms. Ho’s complaints were properly brought before the Health Professions Appeal and Review Board. She obtained no satisfaction there either.

[4] In 2012, Ms. Ho sued Her Majesty and the four tribunals as a result of their failure to protect her from the illegal acts of or on behalf of her former supervisor and employer in and around 1999.

[5] In June, 2014, Firestone J. dismissed the claim against all four tribunals. He found that they were not suable entities. He also struck out Ms. Ho’s statement of claim against the government on the basis that she had not pleaded facts that could support a lawsuit against the province under the Charter of Rights or on behalf of the hospital.

[6] Firestone J. allowed Ms. Ho to amend her claim to see if she could state a case against the government.

Amending the Statement of Claim, June: 2014 to October, 2020

[7] Ms. Ho has suffered significant psychological effects from the events in 1999 - 2000. She says that her psychological state plus her parental care obligations prevented her from serving a draft amended statement of claim on the government until mid-2018.

[8] Ms. Ho then had difficulty having the pleading formally amended because no formal order of Firestone J. was ever signed and entered. It took several months to get that done. In addition, the action had been administratively dismissed for delay and Ms. Ho had to obtain the order of Master Graham reinstating the action. Counsel for Her Majesty consented to the order.

[9] Even then, court staff did not accept Ms. Ho’s filings for several months for reasons that are not clear on the material before me.

[10] Ms. Ho attributes the difficulties that she had with filing materials with the court to ongoing harassment by the government. Her complaints to the Prime Minister and to the Ministry of the Attorney General brought her no further satisfaction.

[11] Then the pandemic took hold and made filing documents with the court that much more inconvenient in mid-2020. Ms. Ho was finally able to have her pleading amended in October, 2020. By then, she was facing the December 31, 2021 deadline to set the action down for trial set by Master Graham when he reinstated the action on consent in 2018.

[12] Ms. Ho moves to extend the deadline. The province moves to dismiss the proceeding against it under the amended statement of claim.

Ms. Ho’s Claim

[13] There are three elements to Ms. Ho’s claim. First, she wants relief for the harassment she suffered at her employer’s and supervisor’s hands in 1999. Second, she wants relief for the failure of the various tribunals to have supported her claims in subsequent years. Third, Ms. Ho says that she was threatened in or around 2000 by the hospital’s lawyers and this is the source of much of her upset.

[14] Ms. Ho says that she was named in a medical malpractice lawsuit against the hospital and others. Ms. Ho says that the hospital altered documents to try to make it look like she caused the plaintiff’s injuries. She says that the hospital’s lawyers then told her that if she disclosed unhelpful facts to the plaintiff, the hospital would not indemnify her in relation to the claim.

[15] Ms. Ho says that this threat was a criminal felony. She asks me to grant a declaration and an injunction requiring the RCMP to investigate the criminal misconduct and to extend the deadline for her to set the action down for trial until the results of the RCMP’s investigation are in hand.

[16] I repeatedly asked Ms. Ho to explain to me what the province did for which she seeks to hold it liable. Her only argument is that the province should be liable for all of the acts of the hospital, its employees, its lawyers, and the various tribunals, because under the constitution, the province is in charge of health care and the administration of justice. She says that the criminal threat and the harassment she suffered violated her security of the person and denied her equal benefit of the law and therefore she has Charter claims against the province as well.

Analysis

[17] I accept all the facts pleaded in the amended statement of claim as being true. I also look at the pleading from a generous point of view not concerned with grammar and technicalities. I do not deal with the government’s arguments about pleading deficiencies as they could all be cured by amendments. I am only considering whether the amended statement of claim could possibly result in judgment for Ms. Ho if what she pleads is true (as I assume it to be).

[18] For the reasons that follow, even if Ms. Ho went to trial and proved all the facts alleged in the amended statement of claim and told to me orally during the motion hearing, as a matter of law, the claims cannot succeed. As a result, the action must be dismissed.

[19] I do not need to deal with the alternative motion to extend the deadline for setting the action down for trial, so I just touch it briefly. Whether considered under the stricter two part test in Faris v. Eftimonski, 2013 ONCA 360, or the contextual four part Reid factors discussed in H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, I would not have extended the time. Ms. Ho did nothing for four years from 2014 to 2018 to prepare her amended statement of claim. Starting in 2016, after her mother passed away, Ms. Ho went to University of Toronto and has since graduated with a degree in political science. I do not accept her bald statement that she could not do anything to advance this claim in the two years after she consented to the new deadline before the Master. She was taking university courses at the time. Court bureaucracy accounts for only a small piece of lost time.

[20] Of greater significance, the claim deals with employment issues that are 20 years old. The presumption of prejudice is strong. Ms. Ho has adduced no evidence to show that she has preserved documents or witness testimony during the most recent two year delay. In fact, she says that she needs the RCMP to investigate to obtain proof in addition to whatever she might have.

[21] There is nothing pleaded that can make the government liable for the employment issues that injured Ms. Ho. Hospitals are not Crown agents and, even if they were, they are suable entities. Subsection 2 (2)(b) of the Proceedings Against the Crown Act, R.S.O. 1990. c. P. 27 immunizes the Crown against claims in such circumstances.. See: Mitchell Estate v Ontario, 2004 4044 (Ont Div Ct) at paras 25-31; The Catalyst Capital Group Inc. v Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272 at para. 115; and C.R. v Her Majesty the Queen in Right of Ontario, 2019 ONSC 2734 at para 93;

[22] Whatever claims Ms. Ho had were against the hospital. She brought those claims to the four tribunals and was not successful. She cannot mount a collateral attack against those decisions in this proceeding.

[23] Similarly, under s. 5 (6) of the Proceedings Against the Crown Act, the Crown cannot be sued for adjudicative decisions made by quasi-judicial tribunals.

[24] There is no basis pleaded for the Crown to be liable for any breaches of contract or torts committed by or on behalf of the hospital or otherwise. There are no Charter breaches pleaded. Ms. Ho’s description of her liberty and equality rights were simply disagreements with the outcome of tribunal proceedings.

[25] Finally, there is no basis for a court exercising civil jurisdiction to make a declaratory order to compel a criminal investigation by the RCMP. I assume that the proper police force to investigate alleged mischief or obstruction of justice (assuming either could possibly lie) would be the Toronto Police Service. Regardless, there is no tort, contract, or constitutional basis pleaded or that Ms. Ho could plead to obtain a court order to require the police to investigate her allegations. She remains free to make a complaint to any police force with jurisdiction.

[26] Justice Firestone gave the plaintiff a chance to recast her claim to state facts that amount to a legal basis to sue the government. In the next seven years she was unable to do so.

[27] In motions like this, I always ask self-represented plaintiffs to just tell, me in their own words, what they say the defendant has done wrong that is the basis for their complaint. While I cannot be the plaintiff’s lawyer, I think it is appropriate for the court to consider whether there might be a bud of a cause of action waiting to blossom if only the plaintiff understood the rules of pleading. There is none here.

[28] Ms. Ho is upset at the felonies committed in the medical malpractice claim and the harassment she suffered at the hands of her employer, the tribunals, and court staff. None of it is actionable against the Province as a matter of law.

[29] The events of 20 years ago were considered by the government tribunals lawfully charged with doing so. The government is not liable for the acts of hospital staff or lawyers. Neither is it liable for decisions of independent tribunals no matter how unjust those decisions feel to Ms. Ho. Nothing written or said by Ms. Ho raises a Charter issue against the province.

[30] I consider my discretion to allow Ms. HO to amend and have decided that I should not exercise that authority in this case. There is nothing that I can think of that she can plead to enable her to sue the government successfully for the things pleaded and that she told me.

[31] Ms. Ho says that she suffers ongoing upset by dealing with these matters. She submitted some medical evidence in which her treating doctors ascribe some of her health issues to her ongoing legal proceedings. It is time to bring this chapter to an end.

[32] Her Majesty is entitled to costs of the motion that I fix at $2,500. That is approximately 50% of the costs sought by Ms. Ho. I am satisfied that the amount claimed for the motion is fair and reasonable and well within the range that Ms. Ho ought reasonably to have anticipated given her own claim.

[33] Her Majesty may deliver cost submissions concerning the rest of the action no later than April 2, 2021. Ms. Ho may deliver cost submissions no later than April 9, 2021. In addition, the parties may deliver copies of any offers to settle on which they rely. Submissions shall be no longer than three pages (not counting the Cost Outlines and offers to settle).

[34] All costs material is to be filed through the Civil Submissions Online portal and shall also be sent to me in searchable PDF format as an attachment to an email to my Judicial Assistant. No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks to .

F.L. Myers J.

Date: March 24, 2021