Savic v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3403

Court File and Parties

Court File No.: CV-21-00624205 Date: 2022-06-08 Superior Court of Justice - Ontario

Re: Dr. Mile Savic, Plaintiff – and – College of Physicians and Surgeons of Ontario, Defendant

Before: Justice E.M. Morgan

Counsel: Carlin McGoogan, for the Plaintiff Michelle Gibbs and Chantalle Youkhana, for the Defendant

Heard: June 7, 2022

Motion for Summary Judgment or for Striking Out Claim

Overview

1The Defendant moves for dismissal of the action under Rule 20.01(3) of the Rules of Civil Procedure or, alternatively, an order that the Statement of Claim, or large parts thereof, be struck under Rule 21.01 and/or 25.11. Under all of these headings, it is the Defendant’s position that the claim raises no viable cause of action and, even if the cause of action were theoretically possible, it can never be proved due to an assortment of immunities and admissibility rules and is therefore frivolous and vexatious.

2The action was commenced in July 2019 following a lengthy history of the Plaintiff being prosecuted by the Defendant. The Amended Statement of Claim pleads two causes of action: abuse of process and intentional infliction of mental distress. As explained by Plaintiff’s counsel, these are akin to pleading a cause of action in malicious prosecution, as they are based on allegations that the Defendant, through its officials, committees, prosecutors, and tribunals, acted in bad faith and pursued the Plaintiff out of malice. However, for the Plaintiff to make out the tort of malicious prosecution, he would have to show that the proceedings in issue ended in favour of the Plaintiff: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 SCR 170; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339.

3Here, of course, the result did not favour the Plaintiff, who ultimately lost his license to practice medicine. Accordingly, Plaintiff’s counsel has restricted his pleading to abuse of process and intentional infliction of mental distress, neither of which focuses on the result of the proceedings and both of which focus on the allegedly improper use to which the proceedings were put by the Defendant: Wright v. Urbanek, 2019 ONCA 823, at para 8; Colistro v Tbaytel, 2019 ONCA 197.

Background

4The Plaintiff is a physician whose license to practice medicine in Ontario was revoked on August 23, 2019. As indicated above, the Defendant brought an extensive series of investigations and proceedings against the Plaintiff over the years, most of which originated with complaints from a patient or other member of the public. Some smaller number of investigations also originated with the Defendant itself based on information that its officials came across. The earliest of the investigations into the Plaintiff’s conduct began in March 2008; the final court ruling against the Plaintiff, terminating his last right of appeal of the Defendant’s proceedings against him, was in January 2022.

5To make a long story short, the Plaintiff claims that all the investigations and disciplinary procedures against him have been the result of a personal vendetta by members or former members of the Defendant’s staff. More specifically, the Plaintiff alleges that the very first complainant against him, Dr. John Bonn, who was himself a former registrar of the Defendant and personal friend of the then current registrar, Dr. Rocco Gerace, was motivated by the fact that he and the Plaintiff were competitors in medical practice in Belleville, Ontario. It is the Plaintiff’s contention that Dr. Bonn persuaded Dr. Gerace to shut the Plaintiff’s practice down, and that Dr. Gerace took it on himself to engage in a vindictive campaign against the Plaintiff for years thereafter.

6Other than the Plaintiff’s speculation about the sheer quantity of proceedings against him, the record contains scant evidence of a bad faith campaign being waged. There is, however, one specific incident related in the Plaintiff’s affidavit that his counsel submits forms a key piece of evidence in the case. The Plaintiff has deposed that in 2010, he attended a meeting with the Defendant’s registrar, Dr. Gerace, which was held at least partially to discuss an undertaking that the Plaintiff had given to the Defendant in respect of an earlier disciplinary proceeding against him. According to the Plaintiff, the meeting contained a particularly dramatic moment:

Dr. Gerace approached me, pointed his finger in my face, and told me: ‘From now on, we are going to put you under microscopic scrutiny for the rest of your career’. He continued: ‘We are going to go after you, and eventually, we will get you’.

7The Plaintiff contends that all of the hardships and harms that have befallen him – the loss of his medical license, his livelihood, his investment in his practice, and the mental anguish with which he has had to live – flow from Dr. Bonn’s instigation of the first investigation of him and Dr. Gerace’s consistent follow-through with more and more investigations and procedures being commenced. To use a football analogy, Dr. Bonn’s kickoff started the campaign, while Dr. Gerace was the quarterback who called and directed each play. No matter who caught the ball or ran with it downfield, it all started and inevitably came back to them – especially to Dr. Gerace, who remained in his position as registrar until sometime around July 2018.

8Plaintiff’s counsel submits that, given their centrality in this entire matter, it is telling that the Defendant has not produced either of those two individuals as deponents in this case. Plaintiff’s counsel argues that since the Defendant’s record contains no response from Dr. Bonn and Dr. Gerace, the allegations against them are uncontroverted. He further submits that this, in effect, establishes that the entire process culminating in the Plaintiff’s loss of his medical license was pursued in bad faith.

9The Plaintiff concedes that the Defendant would be immune from suit for any disciplinary action it pursues in good faith against a member of the medical profession. But since bad faith has been deposed to by the Plaintiff and not responded to by the specific individuals against whom it is alleged, Plaintiff’s counsel submits that the central factor making up the two torts he has pleaded has been made out.

Analysis

10In response, Defendant’s counsel submits that the Plaintiff’s claim cannot possibly succeed. She notes that in order to avoid summary judgment, the Plaintiff would have to demonstrate “a real chance of success illustrating detailed facts and supporting evidence”, and that a self-serving affidavit does not suffice: Dawson v Rexcraft Storage & Warehouse Inc, 1998 4831 (Ont CA). It is the Defendant’s view that the Plaintiff’s evidentiary record contains nothing but the Plaintiff’s speculation about motive, along with one incident which on its face means very little since, even if it were true, it relates to the Defendant’s registrar – an official with no ultimate decision-making authority in any case brought against the Plaintiff.

11Defendant’s counsel argues that the evidentiary burden on the Plaintiff is not met here and could never be met as it runs up against a number of roadblocks. These include the inadmissibility of documents necessary to support the claim, the absolute privilege and judicial immunity of the Defendant and its agents, the statutory immunity of the Defendant, and the frivolous and vexatious nature of the claim as an attempt to circumvent ordinary statutory procedures.

Inadmissibility of Documents

12Turning first to the inadmissibility of documents, section 36(3) of the Regulated Health Professions Act, 1991, SO 1991, c. 18 (“RHPA”) provides:

36. (3) 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.

13Section 36(3) is one of several provisions in the RHPA that embody the overarching objective of keeping proceedings of colleges governing regulated health professions in Ontario separate from other civil proceedings. The provision constitutes an absolute bar to the admissibility of any evidence emanating out of the Defendant’s complaints and discipline processes. The Court of Appeal has specifically held that, “The wording of s. 36(3) contains no exception for fraud or bad faith: Task Specific Rehabilitation Inc. v. Steinecke, 2004 4853, at para 22.

14Along the same lines, this Court held in Mitchell v Provan, 2021 ONSC 1985, at para 33, that section 36(3) of the RHPA “creates a blanket prohibition against the admissibility of all evidence collected during the course of 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.” As a result, the Plaintiff’s allegations that the Defendant’s proceedings against him, including the numerous investigations, authorizations to proceed, prosecutions, tribunal hearings and judgments, are the result of malicious or abusive intent, are incapable of proof. His self-serving affidavit evidence does not suffice, and no documentary evidence will be adduced in support of the claim.

15Counsel for the Plaintiff relies heavily on the Court of Appeal’s holding in Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, at para 35, to the effect that a claimant is not precluded from asserting claims against a health profession regulatory body based on bad faith, as long as those claims can be proved without using any document referred to in s. 36(3). Defendant’s counsel responds that while that statement is correct, it is irrelevant under the circumstances. She points out that the question in a summary judgment motion is not whether a claim is theoretically possible; rather, it is whether the evidence shows that there is a serious issue to be tried. In light of the practical impossibility faced by the Plaintiff in adducing the evidence he would need to support his claim, the Defendant submits that there is no triable issue and that the action must therefore be dismissed.

Absolute Privilege and Judicial Immunity

16Turning next to the doctrine of absolute privilege and judicial immunity, in Amato v. Welsh, 2013 ONCA 258, at para 34, the Court of Appeal adopted the English law as stated in Halsbury’s Laws of England, vol. 28, 4th ed. (London: Butterworths, 1997), at para. 97:

97. Absolute privilege. – No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. – The privilege extends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by this privilege. – However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.

17By impugning the commencement of investigations, the initiation of proceedings, and the finding of professional discipline infractions against him, the Plaintiff challenges the acts of the Defendant’s Inquiries, Complaints and Reports Committee (“ICRC”) and its Discipline Committee panels. Defendant’s counsel explains that the ICRC and the Discipline Committee are statutory tribunals of the Defendant; the former exercises quasi-judicial and adjudicative functions in conducting and disposing of investigations, while the latter exercises judicial functions in the adjudication of allegations of professional misconduct. It has been repeatedly held by the courts that evidence submitted to these quasi-judicial bodies operating under the RHPA “should have the same protection as that evidence would have if tendered at a trial in court”: Deep v. College of Physicians and Surgeons, 2010 ONSC 5248, at para 59, aff’d 2011 ONCA 196, leave to appeal to SCC refused 2011 38825.

18Accordingly, Defendant’s counsel submits that the doctrine of absolute privilege/judicial immunity operates as an absolute bar to the Plaintiff’s claims against the Defendant relating to the decisions of its statutory committees and tribunals. In that case, the claim discloses no reasonable cause of action and cannot possibly succeed.

Statutory Immunity

19In addition, the Defendant enjoys a statutory immunity in carrying out its mandated duties. Section 38 of the RHPA provides:

38. No action or other proceeding for damages shall be instituted against…a College,…for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.

20Good faith immunity provisions such as this provide a regulatory body with broad immunity for the regulator itself and its staff. That immunity is only circumvented where bad faith or malice can be proved. Notably, the Court of Appeal has stated that a pleading of malice or bad faith must “meet a stringent standard of particularity. A bald plea of malice is insufficient”: Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, at para 89.

21As Defendant’s counsel points out, the Plaintiff’s pleading contains unparticularized allegations that he has been subjected to frivolous and vexatious prosecution. These allegations are pleaded baldly, which is in any case contrary to Rule 25.06(8) of the Rules of Civil Procedure, and constitute a failure to meet the standard set by the Court of Appeal for pleas of bad faith. As such, they do not suffice to overcome the Defendant’s statutory immunity under section 38 of the RHPA.

22Furthermore, the idea that these steps in the multiple proceedings against the Plaintiff were all done in bad faith strains credulity to the breaking point. They relate, first and foremost, either to investigations resulting from public complaints for which the Defendant has no discretion but to instigate, or to investigations and proceedings authorized by the Defendant’s statutory committees: Health Professions Procedural Code, being schedule 2 to the RHPA, s. 75(1)(a) (the “Code”). No such decision is the work of a single badly motivated individual, as the internal committee structure provides multiple layers of checks and balances on such authority. Moreover, for decisions of the ICRC arising out of investigations initiated in the absence of a public complaint, physicians are entitled to seek judicial review by the Divisional Court: Code, ss. 29(2), 75.

23The Plaintiff’s claim also relates to terms and conditions contained in undertakings signed by the Plaintiff himself, as well as adjudicative decisions made by the Defendant’s statutory committees and tribunals. These include at least one Discipline Committee decision made in 2015 on the consent of the Plaintiff. In these circumstances, it is self-evident that the good faith immunity clause must prevail.

Causation

24Finally, counsel for the Defendant points out that the impugned official identified by the Plaintiff, Dr. Gerace, was the Defendant’s registrar until July 2018. That means that he was not even an employee, and played no part in the Defendant’s disciplinary processes, for the proceeding that actually resulted in the Plaintiff’s license being revoked. That decision was rendered in the latter half of 2018 after Dr. Gerace’s departure. Moreover, the Plaintiff’s application for judicial review of the de-licensing decision was rendered some three years later, in July 2021. Finally, the last gasp of the Plaintiff’s litigation efforts took place in January 2022, when Justice Mathesson, sitting as a single judge of the Divisional Court, dismissed the Plaintiff’s motion for an extension of time to properly file his appeal.

25It is inconceivable that Dr. Gerace could have impacted on any of these decisions. These are the very decisions that most severely impacted on the Plaintiff and which must have caused him the harm alleged in his Amended Statement of Claim. To blame a committee-authorized investigation, a Discipline Committee adjudicative decision, and two decisions of the Divisional Court on the impact of a single official who had retired years before, takes the Plaintiff’s allegations into a realm of imagination that is difficult to take seriously.

26In discussing these final proceedings at the hearing before me, counsel for the Plaintiff expressed the view that had the Plaintiff’s appeal been dismissed on the merits, the situation would be different and the Plaintiff’s case would be over. But, he stated, the Plaintiff’s final appeal was dismissed on procedural grounds – i.e. the Plaintiff’s own lack of timeliness in filing the appeal – and so the merits were never reached and adjudicated. That, according to Plaintiff’s counsel, makes all the difference.

27In my view, the fact that the Plaintiff’s appeal was dismissed on procedural rather than substantive grounds is a distinction without a difference. The Plaintiff has no one to blame but himself for having lost the appeal. Any supposed bad faith on the part of Dr. Gerace some 12 years previously or on the part of Dr. Bonn some 14 years previously, has nothing whatsoever to do with it. The Divisional Court has dismissed with finality the Plaintiff’s application for an extension of time, and that decision cannot be circumvented by means of a separate statement of claim.

28It is tempting to say that the Plaintiff’s futile attempt to connect the acts of bad faith that he identifies (but, as indicated, will have difficulty actually proving) with the harm that he has suffered in losing his cases and his license, is emblematic of his entire claim. Whether or not Drs. Bonn and Gerace acted properly or improperly over a decade ago is not relevant. There have been unimpeachable processes since then that have been concluded without any participation of those two doctors. To allow this claim to proceed would be to authorize a collateral attack on those completed proceedings.

29In continuously pointing to Dr. Gerace’s and/or Dr. Bonn’s conduct prior to all of the investigations and adjudications that properly culminated in the loss of his license, the Plaintiff is reaching outside the chain of causation. There were numerous independent and objective decisions unconnected to those two individuals that have intervened and that cannot be impugned in an action such as this one. In sum, while one can sympathize with what has befallen the Plaintiff, in bringing this claim he is, in effect, grasping at straws.

Conclusion

30I conclude that there is no serious issue to be tried.

31Summary judgment is granted in favour of the Defendant. The Plaintiff’s claim is dismissed.

Costs

32The parties may make written submissions on costs. I would ask counsel for the Defendant to email brief submissions to my assistant within two weeks of today, and counsel for the Plaintiff to email brief submissions to my assistant within two weeks thereafter.

Morgan J.