Court File and Parties

COURT FILE NO.: 34/20

DATE: 20210105

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dorothy Henri and Ephraim Henri, Plaintiffs

AND:

Karen Gallagher, Defendant

BEFORE: Justice R. Raikes

COUNSEL: Ephraim Henri - self-represented for both Plaintiffs Donald J. C. Elliott – Counsel for the Defendant

HEARD: October 29, 2020

ENDORSEMENT

[1] This matter was commenced by Notice of Action issued February 28, 2020. A Statement of Claim was not filed within 30 days as required by r. 14.03(3) even allowing for the suspension of timelines during the period covered by provincial emergency declarations.

[2] The plaintiffs are mother and son. They are self-represented. It appears that the son, Ephraim Henri, has taken responsibility for drafting and filing of materials.

[3] The plaintiffs move for an order extending the time to file their Statement of Claim. The defendant opposes the plaintiffs' motion and brings her own motion to dismiss the plaintiffs' motion because the action is frivolous, vexatious and without merit. She relies on r. 2.1.01(1).

[4] There is no prejudice to the defendant that cannot be compensated for in costs by the extension of time to file the Statement of Claim. Subject to the outcome of the defendant's motion, I would extend the time for filing of the Statement of Claim.

[5] In Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, the Court of Appeal held that r. 2.1.01(1) is to be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious or an abuse of process.

[6] In Khan v. Krylov & Company LLP (2017), 2017 ONCA 625, 138 O.R. (3d) 581, the Court of Appeal held that r. 2.1 is an extremely blunt tool. It is reserved for the clearest cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Resort to this rule is not meant to be an easily accessible alternative to a pleadings motion or a motion for summary judgment.

[7] Generous allowance should be made for drafting deficiencies. The core complaint may be legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed: Gao v. Ontario (Workplace Safety and Insurance Board) (2014), 2014 ONSC 6497, 61 C.P.C. (7th) 153 (Ont. S.C.J.).

[8] In this context, "frivolous and vexatious" may be equated with a claim that does disclose a cause of action.

[9] The Notice of Action issued by the plaintiffs indicates that the plaintiffs seek $20,000,000 in damages from the defendant because the plaintiff, Dorothy Henri, was "unable to undergo time sensitive Breast Cancer Surgery on February 20, 2020 due to the actions of Karen Gallagher." The failure to go through with the needed surgery has had a profound impact on her course of treatment giving rise to damages.

[10] Attached to Mr. Henri's affidavit of October 26, 2020 is a draft Statement of Claim. It is not marked as an exhibit to his affidavit but I take it to be the Statement of Claim he proposes be filed and served in this action.

[11] I have carefully read his October 26, 2020 affidavit and the document titled "Statement of Claim" for the purpose of ascertaining the basis of the claim and to determine whether a cause of action is disclosed in either.

[12] The essence of the claim advanced by the plaintiffs in this action is:

• Dorothy Henri was diagnosed with breast cancer and surgery was recommended by her doctors.
• That surgery was scheduled to take place at Bluewater Hospital in Sarnia on February 20, 2020.
• Mr. Henri accompanied his mother to all her medical appointments.
• Ms. Henri was very frightened of the surgery because of earlier events in her life.
• Ms. Henri has a close bond with and relies heavily on her son, Ephraim Henri, who resides with her. His support was essential to ensure that his mother went through with the surgery as scheduled.
• Mr. Henri and the defendant were previously in a romantic relationship that is the subject of family law litigation in Sarnia.
• Ms. Gallagher was informed that Ms. Henri was having breast cancer surgery in February 2020.
• Notwithstanding that knowledge, she brought motions in the family litigation in February 2020 including two motions returnable the same date as the scheduled surgery.
• The defendant refused to adjourn the motions to a later date so that Mr. Henri could be with his mother at the hospital.
• Repeated attempts were made to contact the defendant to persuade her to adjourn the family motions.
• On February 13, 2020, Mr. Henri was arrested and charged with criminal harassment as a result of a complaint made by the defendant to Sarnia Police.
• His release from custody on February 14, 2020 included a no contact term that prohibited him from being in any place where Ms. Gallagher resided or worked.
• Ms. Gallagher is employed at Bluewater Hospital. Thus, Mr. Henri could not attend the hospital with his mother for her surgery unless the terms of the order were modified.
• Mr. Henri tried unsuccessfully to get the no contact order varied by the Crown. Unfortunately, the variation came too late for Mr. Henri to be with his mother at the hospital on her surgery date.
• He could not contact Ms. Gallagher directly once released from custody without violating the terms of the release order.
• Because he was not present at the hospital, Ms. Henri became too afraid to go through with the surgery and left the hospital. That has had significant adverse consequences for her health and her prospects for overcoming her cancer.
• The plaintiffs maintain that the defendant had a duty to be reasonable when he asked for the adjournment of the family motions. He was "forced to attend court on February 20, 2020" for the family motions.
• The motions were such that he would be substantially prejudiced if he did not attend in court on February 20, 2020.
• Ms. Gallagher's actions caused Ms. Henri to walk away from the surgery.
• But for her actions, Ms. Henri would have had the surgery, it would have been entirely successful and Ms. Henri would now be healthy.

[13] The draft Statement of Claim is repetitive and contains additional information not relevant to this motion. Much work would be required to give it a semblance of a proper pleading. That is, however, not the chief concern at this point. The issue is whether there is a viable cause of action at all. If there is, the pleading can be revised. If there is not, I must exercise my gatekeeper function to weed out the action as frivolous and vexatious.

[14] For purposes of my analysis, I assume the facts alleged by the plaintiffs in the proposed Statement of Claim are true or capable of being proven true. I also make allowance for drafting deficiencies.

[15] In oral submissions, Mr. Henri asserted that Ms. Gallagher was negligent, that she owed the plaintiffs a duty of care to be reasonable. Her conduct in pursuing the motions in the family litigation, knowing of Ms. Henri's scheduled surgery, was unreasonable. Her conduct kept him from being there to support his mother and get her through a difficult but crucial surgery.

[16] To succeed on a claim of negligence, the plaintiff must establish: (1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty of care, and (3) a causal connection between the defendant's breach of duty and the plaintiff's loss or injuries: Stewart v. Pettie, 1995 CanLII 147 (SCC), [1995] 1 S.C.R.131, at paras. 24-33 and 60.

[17] To determine whether there is a duty of care owed, the court must first consider whether the circumstances of the case fall within one of the recognized categories of duties. If it does not, the court must then conduct the two-stage analysis in Anns v. Merton London Borough Council, [1977] 2 All E.R. 492, affirmed in Kamloops (City) v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2 and Stewart v. Pettie, supra, at para. 24.

[18] The two-stage analysis requires the court to answer the following questions:

1. Is there a sufficiently close relationship between the parties such that in the reasonable contemplation of the defendant, carelessness on her part might cause damage to the plaintiffs?
2. If so, are there any considerations which ought to negative or limit the scope of the duty, the class of persons to whom the duty is owed, or the damages to which the breach may give rise. (see Kamloops)

[19] At stage one of the Anns analysis, the court determines whether the risk of harm is foreseeable and examines the strength and directness of the relationship between plaintiff and defendant. The strength and directness of the relationship informs the reasonableness of imposing a duty of care on the defendant to not expose the plaintiff to an unreasonable risk of harm: Menow v. Jordan House Ltd., 1973 CanLII 16 (SCC), [1974] S.C.R. 239, at p. 247. The proximity of the relationship must be of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff's legitimate interests in conducting his or her affairs: Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, at para. 24.

[20] The essential purpose of the proximity inquiry is to determine whether it is just and fair to impose a duty of care on the defendant. The relevant factors depend on the circumstances of the case. Factors that may be relevant include the expectations of the parties, representations, reliance and the nature of the property or interest involved: Odhavji Estate v. Toronto (metropolitan) Police Force, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 51. The determination of whether it is just and fair to impose liability requires the court to make a policy decision: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.

[21] If the plaintiff is successful in establishing that the nature of the relationship is such that the defendant ought to have regard for the interests of the plaintiff, that the injury in question was foreseeable and that there are no case specific factors that would negative or limit the imposition of liability, the court moves to the second stage of the Anns analysis: Childs v. Desormeaux, 2004 CanLII 15701 (ON CA), at para. 24.

[22] In Childs, Justice Weiler explained:

... At this second stage of the Anns test, the court will consider whether there are other residual policy considerations outside the relationship of the parties that might affect the imposition of a duty of care. The policy considerations concern the effect of recognizing a duty of care on other legal obligations, its impact on the legal system and society more generally: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Cooper.... At this stage, the onus falls on the defendants to show why they, as persons who negligently caused the loss, should be able to evade liability: Edwards, supra; Cooper, supra.

[23] I turn to the application of the above principles to the circumstances of this case.

[24] No case law was provided to me by either party to show either that a duty of care has been recognized in like circumstances or has been rejected and found not to exist.

[25] I am not aware of any case where a duty of care has been found to exist in circumstances analogous to those alleged in the proposed statement of claim herein.

[26] The Family Law Rules provide sanctions against unreasonable behaviour by a party in the conduct of family litigation. For example, a successful party on a motion or at trial may be deprived of his or her costs if he or she acted unreasonably. A pleading may be struck where a party fails to act reasonably such as by failing to provide required financial disclosure. Thus, there is an obligation to act reasonably in the conduct of family litigation the breach of which gives rise to costs sanctions and other procedural remedies. However, nothing in the Family Law Rules contemplates a civil claim for personal injury damages arising from the manner of conduct of the family litigation.

[27] I note that Dorothy Henri is not alleged to be a party to the family litigation between Ms. Gallagher and Mr. Henri. In my view, there is no sufficiently close relationship between the parties such that in the reasonable contemplation of the defendant, carelessness on her part might cause damage of the kind alleged to Dorothy Henri. The claim alleged does not satisfy the first stage of the Anns test. The harm alleged is not a foreseeable consequence of bringing motions in the family litigation. The relationship between the defendant and Dorothy Henri is not sufficiently proximate to ground a duty of care.

[28] With respect to Mr. Henri's claim, his claim is largely derivative of his mother's failure to go through with the surgery. In my view, the claim in negligence by Mr. Henri must fail because:

1. The harm alleged is not a foreseeable consequence of the alleged wrongful conduct;
2. Although the Family Law Rules provide sanctions against parties who act unreasonably, this does not give rise to, nor transmute into a common law duty of care owed to an opposing party;
3. There is no reliance by, nor reasonable expectation on the part of Mr. Henri that Ms. Gallagher would bring motions on dates convenient to him;
4. The private relationship between Mr. Henri and Ms. Gallagher was at an end. They were engaged in an adversarial process; and
5. There is no sufficiently close relationship to ground a duty to act to avoid any inconvenience or harm to him.

[29] The claim asserted is framed in negligence. It cannot succeed even if the facts alleged are assumed to be true. The claim must be dismissed.

[30] If the parties cannot agree on costs, they may make written submissions within 15 days hereof.

Justice R. Raikes

Date: January 5, 2021