Court File and Parties

COURT FILE NO.: CV-22-1054 DATE: 2023-06-26

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Galina Filippova Appearing on her own behalf Plaintiff/Moving Party

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Heather Cross & Kathy Moreland Layte, (coba The School for Health and Life Sciences of the Conestoga College Institute of Technology and Advanced Learning), Wendy Miller & Ruth Auber & Janelle Hilborn & Jennifer Doe (coba The Schlegel Villages Inc., The Village at University Gates) Defendants

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Dr. George Heckman Responding Party

No-one appearing for the Defendants Carolyn Brandow and David Issac, for the Responding Party

HEARD: June 22, 2023, by videoconference

THE HONOURABLE JUSTICE SMITH

Reasons on Motion

Introduction

[1] The plaintiff was a nursing student but, in November of 2020, was removed from the nursing program in which she had been enrolled. By way of statement of claim dated September 28, 2022, she sued the college she had been attending, various employees of the college, the long-term care home at which she had received some practical training, and various employees of that home.

[2] By notice of motion dated March 15, 2023, the plaintiff seeks leave to amend her statement of claim pursuant to rule 26 of the Rules of Civil Procedure, R.R.O., Reg 194. The defendants to the original claim have consented to the amendment in the form of the draft amended statement of claim which the plaintiff provided to them. Importantly, for the purposes of this motion, the draft amended statement of claim proposes to add Dr. George Heckman as a defendant. Dr. Heckman opposes the request to add him as a party to this litigation.

[3] Although the amended draft statement of claim appears to make claims against Dr. Heckman in a broad array of areas, the plaintiff has clarified on this motion, both in writing and in oral argument, that her proposed claims against Dr. Heckman are limited to claims of defamation and negligent misrepresentation. Those claims relate to conduct said to have occurred in September of 2020. Accordingly, Dr. Heckman argues (among other things) that the claims are out of time. The plaintiff, by contrast, says that she did not discover the torts which she says had been committed against her until March 4, 2022.

Factual background

[4] The plaintiff attended at the long-term care home on September 10, 2020. She accompanied Dr. Heckman on his rounds. The plaintiff alleges that Dr. Heckman has falsely stated that on that day the plaintiff disagreed with him about a diagnosis and that she did so in the presence of a patient. On September 14, 2022, she accompanied Dr. Heckman again. With respect to that occasion, the plaintiff says that Dr. Heckman falsely accused her of “showing off” her knowledge of medications.

[5] It seems that these observations of Dr. Heckman were reported by him to the college. The plaintiff was aware of that fact no later than September 28, 2020. On that day, at 6:56 p.m., she wrote to Dr. Heckman by email. I quote verbatim from a portion of that email here:

I have received your feedback that I “was interrupting you while you were trying to round on the patients and argued clinical data with you”. I sincerely believed that I had been on my student’s learning, trying myself as part of our conversations framework. Your feedback also states that I “did not need to try impressing you” during our second time.

I am so mortified with the mistakes that I made, as I was completely unaware that I was making those mistakes. My school (McMaster/Conestoga) has prepared a letter for me to sign about this. This means a Fail for the nursing course to me. Before I sign it, please, will you let me know if there are any discrepancies in the report?

[6] Dr. Heckman replied that same evening. He said that he would be pleased to review the letter to which the plaintiff had referred. He added that it was not appropriate to have argued the “differential diagnosis” in front of the patient and that it is important “not to debate things in front of [patients].” Dr. Heckman also confirmed that it was his view that on the second occasion the plaintiff had “come across as showing off.”

[7] The plaintiff replied to Dr. Heckman later that evening. She thanked him for his response and said that everything in the college’s report “is very accurate.” She said that she agreed with Dr. Heckman’s feedback and that she would take no more of his time. The letter to which she referred was not sent to Dr. Heckman for his review.

[8] As I have said, later, in November 2020, the plaintiff was removed from the college. She appealed that decision to the Senate Board for Student Appeals of McMaster University. The appeal tribunal dismissed the appeal on March 4, 2022. In an excerpt from the tribunal’s reasons put into the record on this motion by the plaintiff, the following is written:

The Tribunal finds that the cumulative behaviour of the Appellant while in the Course necessitated the Appellant’s removal from the Course due to the following non-exhaustive factors:

(a) disagreeing with a physician’s diagnostic assessment in front of a resident;

(b) contacting a physician after hours to discuss their feedback;

[9] The balance of the list of “non-exhaustive factors” has not been reproduced by the plaintiff in the record before me but it is agreed between the parties to this motion that the two factors which are reproduced refer respectively to the incident on September 10, 2020, and to the plaintiff’s email to Dr. Heckman on the evening of September 28, 2020.

Discussion

[10] On a motion for leave to amend pleadings, the court should grant leave unless the responding party would suffer non-compensable prejudice, the amended pleadings are scandalous, frivolous, vexatious or an abuse of process, or if the pleading discloses no reasonable cause of action (1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, at para. 25). In this case, Dr. Heckman argues that the proposed pleadings, insofar as they make claims of defamation and negligent misrepresentation against him, disclose no reasonable cause of action.

[11] Dr. Heckman takes this position because, so he submits, the plaintiff is out of time and barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Act”). He submits that all the elements of the alleged defamation and the alleged negligent misrepresentation, including that the impugned statements had caused harm to the plaintiff, were known to the plaintiff by no later than her September 28, 2020, email to Dr. Heckman. In that email, she shows that she knew that Dr. Heckman had reported to the college about the two incidents and that because of that report the college was taking the position that “this means a Fail for the nursing course to me.” In any case, to her knowledge, the plaintiff was removed as a student in November of that same year at least in part because of Dr. Heckman’s feedback. I note that in argument before me, and in her written materials, the plaintiff made it clear that it is her position that she has always known that Dr. Heckman’s feedback about her conduct on September 10 and 14, 2020, was false and that she knew it on September 28, 2020, when she wrote to Dr. Heckman. [1] The draft amended statement of claim does not say otherwise.

[12] In other words, all the relevant facts pled against Dr. Heckman in the draft amended statement of claim were known to the plaintiff and discovered on September 28, 2020 (or, at the latest, November of 2020). [2] Accordingly, pursuant to s. 4 of the Act, the limitation period as against Dr. Heckman expired on September 28, 2022 (or, at the latest, in November of 2022). As I have said, the plaintiff sought to add Dr. Heckman by notice of motion dated March 15, 2023, well after the expiry of the limitation period.

[13] I agree with Dr. Heckman that the plaintiff is out of time and that, as a result, there is no reasonable cause of action against him. To quote Rouleau J.A. in Lawless v. Anderson, 2011 ONCA 102, at para. 23, in determining when the limitation period begins, “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, the claim has been ‘discovered’, and the limitation begins to run.” Justice Rouleau added (at para. 28) that “what a prospective plaintiff must know are the material facts necessary to make a claim whatever form they come in.”

[14] Here the plaintiff knew all the material facts necessary to base her claims against Dr. Heckman on September 28, 2020. That is, she knew that Dr. Heckman had provided the impugned feedback to the college and that it was going to result in harm in the form of at least “a Fail for the nursing course.”

[15] I do not accept the plaintiff’s argument that the claim against Dr. Heckman was discoverable only when she received the reasons and order of the McMaster University appeal tribunal on March 4, 2022, and that the limitation period should run from that date. To the extent that those reasons made it clear that the college had relied on Dr. Heckman’s feedback about the plaintiff in making its decision to remove the plaintiff, that information was known to the plaintiff in some form already no later than September 28, 2020. The decision to “Fail” the plaintiff from the nursing program was known to have been based (at least in part) on Dr. Heckman’s feedback which he had forwarded to the college and which the plaintiff, according to her, at that time, knew to be false. Her removal from the program followed shortly thereafter in November. In these circumstances, the tribunal reasons, newly received by the plaintiff in March 2022, do not “restart the limitation period” (see Dale v. Frank, et al., 2017 ONCA 32, at para. 13) even if they put the impact of Dr. Heckman’s feedback into starker relief for the plaintiff.

[16] To the extent that the reasons of the tribunal refer to the fact that the plaintiff contacted Dr. Heckman “after hours,” that fact does not relate to any conduct of Dr. Heckman (it is the conduct of the plaintiff), is not alleged by the plaintiff to be untrue, and could not be the basis for any claim of defamation or negligent misrepresentation against Dr. Heckman.

[17] Further, I agree with Dr. Heckman that the use of his statements by others after he made them in September of 2020 is something completely outside his control. He was not a participant in the proceedings relating to the plaintiff’s removal from the college, either at the college, or at the appeal tribunal, or at the Divisional Court. To the extent that his statements were referred to in those proceedings, those references do not constitute events which restart the limitation period. There is no suggestion by the plaintiff that Dr. Heckman repeated or further disseminated his feedback respecting the plaintiff at any time after the fall of 2020, although others may have relied on those statements.

[18] To the extent that there is communication between the plaintiff and Dr. Heckman after that time, all such communication was instigated by the plaintiff, who repeatedly sought to have Dr. Heckman retract or correct his September 2020 feedback. He is not alleged to have given her any assurance that he would do so, or that he would assist the plaintiff in any other way. Once in July of 2022, in response to an inquiry by the plaintiff when she was threatening to report Dr. Heckman to the College of Physicians and Surgeons of Ontario, Dr. Heckman agreed to speak to her by videoconference, but she declined (even though she had requested a call).

[19] Contrary to the submission of the plaintiff, this is therefore not a case like Brown v. Baum, 2016 ONCA 325, where the continuing efforts of the defendant doctor to correct the harm he had allegedly caused to the plaintiff were found to have delayed the start of the limitation period because during that time an action was not the appropriate means to seek to remedy that harm (see s. 5(1)(a)(iv) of the Act). Here, there is no suggestion that after the fall of 2020 Dr. Heckman did anything to remedy the harm he is alleged to have caused to the plaintiff. On the contrary, to the plaintiff’s knowledge, and as she states in the draft amended statement of claim, Dr. Heckman refused to co-operate with her as a witness. It is not pleaded in the draft amended statement of claim that he was doing anything (or proposing to do anything) to retract, correct, explain, or put in further context the feedback he gave to the college in September 2020. He is not alleged to have attempted to assist her in any way. Accordingly, his post-2020 conduct cannot be said to have delayed the start of the limitation period.

[20] Finally, with respect to the limitation period, nor is this a case like Scalabrini v. Khan, 2019 ONSC 2278, as the plaintiff suggests. The claims made against Dr. Heckman are not derivative of the claims made against the defendants and do not depend in any way on the plaintiff having sued the college or the long-term care home (or their employees). As counsel for Dr. Heckman put it in argument, the proposed claims against him “stand on their own two feet.” Accordingly, no delay to the start of the limitation period was justified because the plaintiff needed to sue the defendants first, or because the damages alleged to have been suffered by virtue of Dr. Heckman’s alleged wrongs were discoverable at a later date. In my view, Scalabrini is not analogous to this case and has no application.

[21] For all these reasons, the request to add Dr. Heckman as a party must fail because the claims are out of time and are barred by the Act.

[22] In addition, though, the claim of negligent misrepresentation proposed to be made against Dr. Heckman must also fail for another reason. Among the five elements of a claim of negligent misrepresentation are (1) that the defendant has a duty of care based on a special relationship with the plaintiff and (2) that the plaintiff reasonably relied on the alleged misrepresentation (Doumouras v. Chander, 2019 ONSC 6056, at para. 25). This claim as pled in the draft amended statement of claim discloses no reasonable cause of action because Dr. Heckman is not alleged to have been in a “special relationship” with the plaintiff. The plaintiff says in the draft amended statement of claim that he was not her supervisor (“preceptor”), nor was he employed by the college, nor is there any suggestion of some other special relationship, like doctor/patient. He met her only twice. Indeed, the plaintiff pleads that two of the defendants, both nurses, were her preceptors when she accompanied Dr. Heckman on his rounds. [3] He had no duty of care based on a special relationship.

[23] Further, the plaintiff does not claim that she relied on Dr. Heckman’s alleged misstatements. On the contrary, she takes the position that she always knew that those statements were false. Indeed, the draft amended statement of claim refers to his statements as “absurd and indefensible.” In other words, she pleads that she did the opposite of relying on the statements.

Conclusion and Costs

[24] Accordingly, leave to amend the statement of claim by adding Dr. Heckman as a defendant is denied.

[25] As I said at the outset of these reasons, the defendants to this suit consented to the filing of the plaintiff’s draft amended statement of claim. As I have now ruled that leave to amend the pleading is denied to the extent that the draft amended statement of claim makes claims against Dr. Heckman, the plaintiff will have to re-draft the draft amended statement of claim to exclude those claims. Once she has done so, the plaintiff should circulate her re-drafted draft amended statement of claim to the defendants along with a copy of these reasons and seek their consent again. In the absence of such consent being provided, she may apply to the court for directions or move again for leave to amend.

[26] If the parties to this motion are unable to agree on costs, Dr. Heckman may serve and file brief written costs submissions within seven days of the release of these reasons. The plaintiff may serve and file brief written responding costs submissions within seven days of the receipt of Dr. Heckman’s costs submissions. Dr. Heckman may serve and file his reply, if any, within three days of the receipt of the plaintiff’s submissions.

I.R. Smith J.

Released: June 26, 2023

Footnotes

[1] The plaintiff takes this position despite indications to the contrary in her September 28, 2020, email exchange with Dr. Heckman (see paras. 5 and 7, above).

[2] I note here that most of the relevant facts are set out in the plaintiff’s original statement of claim (at pp. 12 – 13).

[3] These pleaded facts distinguish the case upon which the plaintiff relies, Tapics v. Dalhousie University, 2018 NSSC 53, in which the plaintiff showed that the adjunct professor in that case was in fact her co-supervisor even though that role had never been formalized. See paras. 28 – 29.