Floryan v. Luke et al., 2023 ONSC 5108

COURT FILE NO.: CV-22-00000136-0000

DATE: 2023/09/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CASPAR FLORYAN, Plaintiff

AND:

SEEMA LUKE, HENRYK PIETRUS, KURT KIMPINSKI, KATHY KAYE, MARKO MRKOBRADA, JATINDER TAKHAR, ST JOSEPH’S HEALTH CARE LONDON, LONDON HEALTH SCIENCES CENTRE, THE UNIVERSITY OF WESTERN ONTARIO, NINA A. MCCURDY, M.W.K. PEIRCE, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: The plaintiff self-representing[^1]

Natasha O’Toole, for the defendant University of Western Ontario

No other parties participating

HEARD: April 12, 2023

ENDORSEMENT

Introduction

[1] Before me is a motion brought by the defendant University of Western Ontario, (“the university” or “UWO”), pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, for an order dismissing the self-represented plaintiff’s claim against it on the suggested ground that the pleaded claim fails to disclose a reasonable cause of action.

[2] As noted and described in further detail below, this is the second such motion brought by the university in this medical malpractice litigation; i.e., after the university succeeded in having the plaintiff’s earlier version of his pleaded claim against the university struck out, albeit with the plaintiff being granted leave to amend.

Litigation history

[3] By way of further background, which will be incomplete but sufficient for present purposes, and which will be based in large measure on the plaintiff’s pleading, having regard to the nature of this Rule 21 motion and the implications of Rule 21.01(2)(b) discussed in greater detail below:

a. The plaintiff, Mr Floryan, commenced this action by an original statement of claim issued herein on or about January 25, 2022. According to the contents of that pleading, which I summarize and paraphrase to some extent for the purpose of brevity:

i. Mr Floryan was an extremely gifted and intelligent post-secondary student who graduated from the Engineering Physics Program at Cornell University, thereafter worked for a time at Deloitte Consulting where he focused on projects for major pharmaceutical companies, and then gained admission to the doctoral program at the Harvard School of Engineering and Applied Sciences in 2010.

ii. While working towards his doctorate from Harvard, Mr Floryan focused his research in the “lab-on-a-chip” field, and participated in teaching physiology courses. His career goal was the development of technology for a high-tech biomedical company, and ultimately the formation of his own company.

iii. Mr Floryan’s academic studies, career goals and life plans nevertheless suffered a dramatic and serious turn for the worse starting with his experiencing a streptococcus infection in or around September of 2010. Mr Floryan says his condition was misdiagnosed by Harvard University Health Services, which failed to prescribe appropriate antibiotics, in turn leading to Mr Floryan suffering significant damage to his autonomous nervous system and the onset of dysautomania; i.e., a group of medical conditions associated with malfunction of a person’s autonomic nervous system.

iv. Mr Floryan’s pleading thereafter describes a lengthy history of health difficulties; e.g., extraordinary sensitivity to external stimulants of any kind, (including physical or mental stress, sudden movement and/or exposure to light or sound), which can rapidly trigger a wide range of pronounced symptoms such as debilitating episodes of headache, extreme fatigue or sleepiness, “brain fog” or forgetfulness, shortness of breath, chest pain/discomfort, dizziness, swings in body and skin temperature, urinary incontinence, blurred vision, difficulty swallowing, dangerous tachycardia, and associated “breakdowns” or “crashes” in relation to Mr Floryan’s ability to function in a basic way, let alone pursue his academic studies and career objectives.

v. Mr Floryan’s pleading also describes a very extended history of successive physicians in Massachusetts and Ontario failing to take seriously, properly investigate via appropriate testing, accurately diagnose, and/or properly treat his dysautomania. Indeed, it is said that such failures, (including the prescription of inappropriate medications), aggravated his already debilitating condition and endangered Mr Floryan’s life. Medical treatment providers in that regard, apparently based here in Ontario, were said to include:

1. the defendant Dr Seema Luke, the plaintiff’s first family doctor;

2. the defendant Dr Henryk Pietrus, the plaintiff’s second family doctor;

3. the defendant Dr Kurt Kimpinski, a neurologist;

4. the defendant Dr Kathy Kaye, another neurologist;

5. the defendant Dr Marko Mrkobrada, an internal medicine specialist;

6. the defendant Dr Jatinder (sic) Takhar, a psychiatrist;

7. the defendant St Joseph’s Health Care London, which I understand via judicial notice to operate a number of multi-site medical care facilities here in the city of London, including but not limited to St Joseph’s Hospital and the Parkwood Institute; and

8. the defendant London Health Sciences Centre, which I understand via similar judicial notice to operate a number of other multi-site medical care facilities here in the city of London, including University Hospital and Victoria Hospital.

vi. In his original Statement of Claim, the defendant also named the university as a defendant. The specifics of the claim pleaded by Mr Floryan against the university in his original statement of claim are found primarily in paragraphs 155-160 inclusive of that original pleading, speak for themselves, and were the subject of focused consideration and analysis by Justice Garson, as described in further detail below. For present purposes, I will simply note by way of broad summary that Mr Floryan based his claim against the university on pleaded allegations that Dr Kimpinski, Dr Mrkobrada and Dr Takhar all held faculty appointments with the university, (and through its Schulich School of Medicine and Dentistry in particular), and that Dr Luke, Dr Kaye and Dr Takhar obtained all or at least some of their education at or via the university. Numerous alleged failings, (summarized and analyzed by Justice Garson), then were attributed to the university by Mr Floryan in his original pleading, such as:

1. alleged failures associated with negligent supervision of those faculty member physicians;

2. alleged failure to provide appropriate and effective training or retraining to such faculty members;

3. alleged failure to ensure the provision of effective and proper education to properly teach and equip prospective physicians;

4. alleged failure to intervene when members of the university’s faculty failed to employ available and appropriate diagnostic tools; and

5. alleged failures to intervene when members of the university’s faculty made life-affecting decisions in an arbitrary or otherwise improper manner, such as doing so without personally seeing and evaluating Mr Floryan, and/or doing so without familiarizing themselves with relevant documentation.

vii. All of the defendants’ alleged failings essentially were said to have left Mr Floryan permanently disabled and unable to continue with his academic studies or chosen career path. That in turn was said to have caused, amongst other things:

1. a very substantial loss of past and future income, (described in Mr Floryan’s pleading as “lost compensation”), over a projected period of 50 years, which Mr Floryan quantified in the amount of $31,402,199.36 USD;

2. very substantial future care costs, (described in Mr Floryan’s pleading as “living expenses”), over a projected period of 50 years, which Mr Floryan quantified in the amount of $25,121,759.00 CDN; and

3. very substantial general damages and Family Law Act claims, (described in Mr Floryan’s pleading as “compensation for pain and emotional suffering”), experienced by Mr Floryan, his parents and his siblings, which Mr Floryan quantified in the total amount of $2,220,000.00 CDN.

b. Following service of the plaintiff’s original statement of claim, a number of the named defendants filed defence pleadings.

c. For its part, the university brought a motion, pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, to strike out Mr Floryan’s pleaded claim against the university on the basis it disclosed no reasonable cause of action. On August 10, 2022, that Rule 21 motion was heard by Justice Garson, who released his resulting decision on August 19, 2022. Justice Garson’s endorsement in that regard, reported as Floryan v. Luke, 2022 ONSC 4809, speaks for itself and should be read and considered in its entirety. However, for present purposes, and only by way of an extended summary:

i. It was said that Mr Floryan essentially was alleging “a claim for medical malpractice against six doctors, two hospitals and UWO for $66.5 million CAD because of a delayed medical diagnosis”.[^2]

ii. It repeatedly was noted that Mr Floryan’s pleaded claim against the university asserted that three of the six doctors named as co-defendants “held professional appointments and/or were faculty at UWO”, were “clinical faculty members” of the university, “affiliated” with the university as “faculty or instructors” and/or as “staff working at UWO”, and therefore were “employed by UWO” as “UWO employees”.[^3]

iii. It also was noted that Mr Floryan’s pleaded claim against the university alleged:

1. that the role of those doctors, as clinical faculty members and employees of the university, included the provision of medical services;[^4]

2. that the plaintiff received negligent care from those doctors, and from the university as the employer of those doctors;[^5] and

3. that such negligence involved errors such as inadequate supervision, an ineffective quality verification process, failure to provide or ensure effective training for members of the university’s medical faculty, failure to provide an effective or adequate educational process to the university’s medical students; and failure to act when members of the university’s medical faculty failed to use available diagnostic tools, and/or made “life affecting decisions” without seeing and evaluating patients or familiarizing themselves with documentation.[^6]

iv. It was acknowledged that Mr Floryan, in his original pleading, was alleging that the university owed him a duty of care, acted negligently in that regard, (i.e., so as to breach that alleged duty of care), and thereby caused Mr Floryan substantial damages.[^7]

v. While acknowledging that those were the essential ingredients of an action in negligence,[^8] Justice Garson found that the claim pleaded against the university nevertheless failed to “reasonably allege that UWO owed a duty of care and was negligent to the plaintiff”, or to “disclose any material facts that, if true, could reasonably support a cause of action in negligence”.[^9] [Emphasis added.]

vi. In that regard, it was emphasized:

1. that the plaintiff’s pleading failed to “make the connection” between the role of the defendant doctors as clinical faculty members employed by the university, and their provision of medical care to the plaintiff;[^10]

2. that the facts as pleaded were not sufficient to support a conclusion that the relevant doctors provided medical care in their capacity as UWO employees;[^11]

3. that there similarly was nothing to indicate that any of the pleaded “visits, consults, tests or diagnoses” were done by the defendant doctors in their role as clinical faculty members of the university;[^12]

4. that the facts as pleaded were not sufficient to support a conclusion that the university delivered medical care to the plaintiff through its managed and supervised clinics, and instead indicated that the relevant doctors who provided care to the plaintiff had done so as physicians practising medicine and providing care as licenced physicians working for and/or at local hospitals or private offices;[^13] and

5. that the plaintiff, without providing any adequate basis for doing so, was trying to connect and conflate UWO’s supervisory role in relation to its faculty members to the duty of care owed by physicians to patients seen by such doctors in their capacity as a private practice licenced physicians with privileges at local hospitals or private offices.[^14]

vii. In any event, Justice Garson found that the plaintiff’s attempt to establish the university’s liability for a doctor’s practice of medicine in an affiliated clinic or hospital was a “novel” claim, in respect of which he had been provided with no case “coming close” to establishing a precedent that the university owed a duty of care to the plaintiff in such circumstances. To the contrary, it was held that the plaintiff’s pleaded claim against the university not only failed to establish the university’s liability for the negligent actions of doctors practising at hospitals or affiliated clinics, but “any known intentional tort”.[^15]

viii. In the circumstances, Justice Garson proceeded to apply “the Anns/Cooper framework”, (endorsed by the Supreme Court of Canada and therefore routinely followed by our lower courts),[^16] for determining whether that “novel” claim pleaded by Mr Floryan should be recognized as disclosing a reasonable cause of action, and found that the plaintiff’s intended claim against the university failed both stages of that test. In that regard, Justice Garson found that the pleaded claim Mr Floryan sought to advance against the university failed both stages of the Anns/Cooper test. In particular:

1. The pleaded facts failed to give rise to any prima facie duty of care; i.e., insofar as they failed to establish sufficient proximity in the relationship (or lack thereof) between the university and Mr Floryan such that the university’s failure to take reasonable care might foreseeably cause harm or loss to Mr Floryan. In that regard, Justice Garson emphasized that mere foreseeability was not enough, and emphasized that there was nothing before him to indicate any direct or even proximate relationship between the university and Mr Floryan.[^17] In particular:

a. Mr Floryan had failed to plead, for example, any material facts indicating:

i. that the university had made any representations to him, that he had relied upon any such representations, or that he had any expectations of the university with respect to his medical care;[^18]

ii. that there were any relevant statutory obligations owed by the university to the plaintiff;^19 or

iii. that the alleged negligence of the relevant doctors arose in the context of their roles as faculty or instructors at the university^20.

b. To the contrary, in Justice Garson’s view, the pleaded facts fell “far short” of establishing that the medical care provided to the plaintiff by the relevant doctors “was done with within the reasonable scope of the doctors’ affiliation and employment with UWO”.

c. Mr Floryan’s allegations suggesting that the university owed Mr Floryan a duty of care to supervise the doctors in their provision of medical care were described, in particular, as “a stretch” and a bridge that Justice Garson was “not prepared to cross”.[^21]

d. No authority had been presented to indicate or suggest any previously recognized or existing “duty of care” category in relation to such circumstances. If anything, authority dealing with analogous situations suggested the opposite conclusion.[^22]

e. In Justice Garson’s view, it was plain and obvious that the pleaded circumstances fell “woefully short” of establishing that the university owed any prima facie duty of care to Mr Floryan. In Justice Garson’s words, Mr Floryan’s pleading not only failed to meet the threshold for proximity; it was “not even close” to doing so.

2. In any event, Justice Garson found that there were policy reasons to negate any such potential prima facie duty of care; i.e., having regard to the detrimental impacts which recognition of such a duty of care might have “on other legal obligations, on society, and on our legal system as a whole”, and the existence of other legal remedies available to Mr Floryan to address such concerns. In that regard:

a. Justice Garson found that imposing such a duty of care would lead to indeterminate and “inconceivably broad” liability to an indeterminate class, not only for the university but other institutions of higher learning as well. In particular, having regard to the number of faculties and disciplines frequently existing at such institutions, the potential scope of such a prima facie duty of care would create the spectre of indeterminate amounts of liability, owed to an endless and indeterminate class of potential claimants, over an indeterminate or infinite period of time. In that regard, Justice Garson made reference to considerations such as the inability of such institutions to identify, control or monitor other activities in which their faculty may engage in other capacities, (such as the provision of medical care by licenced and practising physicians who also serve as members of a university’s faculty of medicine), and/or the persons potentially affected by such other activities, (such as the patients to whom medical care is provided), with such inabilities being compounded by other supervening restrictions such as an institution’s lack of direct contact with such individuals and the existence of modern laws of confidentiality that would hamper or prevent such institutions from even accessing such information.

b. Justice Garson noted that individuals affected by such other activities done by a university’s faculty members did not lack other legal avenues of redress. In particular, a patient in the position of Mr Floryan clearly had recognized claims of liability for medical malpractice currently being asserted against six doctors and two hospitals, with a (then) pending motion to add two further doctors to the action for their alleged conduct while providing medical care during their time as resident physicians. Striking out the “novel” claim advanced by Mr Floryan accordingly would “not deny the plaintiff his day in court nor his ability to advance the remaining claim against the remaining parties”.

c. In the result, Justice Garson found that he simply could not “expand liability to UWO on these facts for the actions of its professors, former students and others affiliated with the medical faculty, when this group allegedly provides medical care to patients in other facilities or at private medical offices”, as “UWO is not the insurer” for the alleged negligent acts of such physicians.

ix. In the result, Justice Garson struck out Mr Floryan’s pleaded claim against the university.

x. Despite considerable expressed hesitation and reservations, (based on his view that the claim pleaded against the university was seriously deficient, and his remaining “highly skeptical” as to whether any further pleading amendments would be capable of addressing those deficiencies so as to disclose “a reasonable and meritorious cause of action”), Justice Garson nevertheless struck out Mr Floryan’s pleaded claim against the university with leave to amend that claim. Justice Garson granted such leave primarily on the basis that Mr Floryan was a self-representing litigant, (or “SRL”), and “the law should not be used as an obstacle to hinder the legal interests or rights of SRL’s”.

d. On or about September 23, 2022, Mr Floryan then delivered an Amended Statement of Claim. In that pleading, the majority of Mr Floryan’s allegations from his initial Statement of Claim were reproduced. However, paragraphs 155-160 of that original pleading, setting forth the plaintiff’s claim against the university, were deleted and replaced by “new” paragraphs 155-168 in that regard, with the remaining allegations thereafter, (also carried over from the original statement of claim), being renumbered accordingly.

e. In response to delivery of that amended pleading, the university brought this second Rule 21.01(1)(b) motion on or about October 19, 2022, returnable on November 18, 2022, seeking an order striking out the plaintiff’s amended claim against the university for failure to disclose a reasonable cause of action, without leave to amend. On or about December 1, 2022, the university amended its notice of motion to indicate a new return date of April 12, 2023; i.e., the date scheduled for a special appointment hearing of the university’s motion.

f. On or about January 23, 2023, the plaintiff Mr Floryan then obtained an Order made by Justice Desotti, permitting Mr Floryan to deliver an Amended Amended Statement of Claim which amended existing paragraphs of the plaintiff’s earlier pleadings and added new ones, so as to assert additional claims against additional defendants.

g. In particular, pursuant to that aforesaid Order made by Justice Desotti, Mr Floryan’s already amended pleading was amended again by an Amended Amended Statement of Claim formally delivered on or about February 2, 2023, to assert new claims against:

i. Dr Nina A. McCurdy, who was said to have been a resident physician who provided assistance to Dr Takhar; and

ii. Dr M.W.K. Peirce, who was said to have been a resident physician who provided assistance to Dr Mrkobrada.

h. Insertion of the aforesaid additional pleading amendments relating to Dr McCurdy and Dr Peirce did not alter the plaintiff’s amended claim pleaded against the university, apart from those allegations being renumbered such that they are now found at paragraphs 165-178 inclusive of the plaintiff’s Amended Amended Statement of Claim.

[4] For present purposes, and for reasons outlined in more detail below, the primary focus of the motion before me accordingly was the sufficiency in law of the claim now pleaded against the university in those paragraphs 165-178 of the plaintiff’s Amended Amended Statement of Claim.

[5] As those amended allegations against the university extend across four pages of Mr Floryan’s pleading, I will not replicate them in full detail here.

[6] Although I carefully have reviewed and considered all aspects of those amended allegations against the university in their original form, (and they should be considered incorporated by reference in their precise entirety into this endorsement), they may be summarized for present purposes as follows:

a. It is alleged in paragraph 165 of Mr Floryan’s Amended Amended Statement of Claim, albeit in a more “rolled up” fashion than the segregated and enumerated sub-paragraphs which follow:

i. that the university owed the plaintiff a duty of care “through its clinics, employees and residency programs”;

ii. that the university “engaged in providing health care services through its Schulich School of Medicine and Dentistry, the Faculty of Health Sciences and their various clinics”;

iii. that Doctors Kimpinski, Takhar and Mrkobrada were “clinical faculty members” of the university;

iv. that Doctors McCurdy and Pierce were “postgraduate students” of the university; and

v. that all five of the aforesaid doctors “were involved in the provision of the Plaintiff’s health care”.

b. In the thirteen paragraphs that follow, (i.e., paragraphs 166-178 of the plaintiff’s Amended Amended Statement of Claim), Mr Floryan alleges that the university “was negligent” insofar as it is said to have committed twelve pleaded “errors” that resulted in “significant losses” to the plaintiff:

i. negligent supervision of Doctors Kimpinski, Takhar and Mrkobrada, (“its employees”, “who were engaged in provision of health care”), and failure to act when those “employees” were “committing errors”;

ii. negligent failure “to verify and maintain the competence of” Doctors Kimpinski, Takhar and Mrkobrada, (“its employees”), “who were engaged in provision of health care”;

iii. negligent acceptance of Dr Kimpinski’s conduct in providing a diagnosis “without even seeing the plaintiff”;

iv. negligent acceptance of the conduct of Doctors Kimpinski, Takhar and Mrkobrada, (“its employees”), in providing a diagnosis “while dismissing the use of available diagnostic tools” and “making their diagnoses speculative”;

v. negligent acceptance of the conduct of Doctors Kimpinski, Takhar and Mrkobrada, (“its employees”), in providing a diagnosis made “without knowledge of the plaintiff’s health documentation”;

vi. negligent failure to take action when Doctors Kimpinski, Mrkobrada and Takhar, (“its employees”), made “unsubstantiated statements about the plaintiff’s health and quoted each other rather than providing an independent assessment”;

vii. negligent failure to act when Doctors Kimpinski, Mrkobrada and Takhar, (“its employees”), ignored the plaintiff’s requests to “be tested for dysautomania”, despite such testing being “specifically advocated”;

viii. negligent supervision of Doctors McCurdy and Dr Peirce, (residents assigned to Dr Takhar and Dr Mrkobrada respectively), who were “postgraduate students (residents) enrolled in its programs”, “provided the Plaintiff with medical care”, and “made medical errors”;

ix. negligent failure to ensure that Doctors Takhar and Mrkobrada, (“clinical faculty members employed by UWO”), properly supervised “their post graduate students”;

x. negligent failure to ensure that Doctors Takhar and Mrkobrada, (“clinical faculty members employed by UWO”), had “the ability, knowledge and competence to properly supervise and instruct their postgraduate students”;

xi. negligent operation of “substandard postgraduate programs which inadequately prepared” their “participants” or “residents” Doctors McCurdy and Peirce “for clinical work”, with the plaintiff adding that “[a]bout 20% of postgraduate programs at the UWO Schulich School of Medicine have lost their accreditation”; and

xii. negligent failure to act when Doctors Kimpinski, Mrkobrada and Takhar, (“its employees”), and Doctors McCurdy and Peirce, (“its graduate students”), “colluded to present the Plaintiff’s condition as resulting from an unspecified mental illness, thus denigrating the Plaintiff and placing the Plaintiff and his family under extreme emotional stress”.

[7] With the above context in mind, I turn next to the applicable law.

General principles

[8] The general rules and principles concerning motions of this nature are well-settled, and include the following:

a. Rule 21.01(1)(b) of the Rules of Civil Procedure permits a party to move before a judge “to strike out a pleading on the ground that it discloses no reasonable cause of action”, and the judge “may make an order or grant judgment accordingly”.

b. Rule 21.01(2)(b) of the Rules of Civil Procedure indicates that “no evidence is admissible” on a motion brought under Rule 21.01(1)(b); i.e., to determine whether the targeted/impugned pleading “discloses no reasonable cause of action”.

c. The primary focus in this context accordingly is on the targeted/impugned pleading, and a judge hearing a motion brought under Rule 21.01(1)(b) must accept the facts alleged in that targeted/impugned pleading as proven unless they are patently ridiculous or manifestly incapable of being proven. The court should not look beyond the pleadings to determine whether a claim has any chance of success; to do otherwise is to effectively conduct a summary judgment proceeding under Rule 20 of the Rules of Civil Procedure, without having the sworn evidence of the parties as a basis for determining whether there is a genuine issue for trial.[^23]

d. The governing test is to ask whether, (assuming that the facts as stated in the targeted/impugned pleading can be proved), is it “plain and obvious”, and beyond reasonable doubt, that the pleading discloses no reasonable cause of action and has no reasonable prospect of success.[^24]

e. In applying the required test, the targeted/impugned pleading should be read generously, to accommodate drafting deficiencies.[^25]

f. It nevertheless must be remembered that it is incumbent on a claimant to clearly plead the facts upon which the claimant relies in making a claim. The claimant may not be in a position to prove the facts pleaded at the time of the motion, and may only hope to prove them. But the claimant must plead them. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.[^26]

g. Nor is it proper to allow conclusions to be pleaded baldly and without any supporting material facts.[^27]

h. Novelty of a pleaded claim is not, by itself, a concern or sufficient reason to find “no reasonable cause of action”. A novel claim should be struck at the pleadings stage only where it is clearly unsustainable. The fact that the law has not yet recognized a particular cause of action also is not determinative. Nor should the court, at an early stage of the pleadings, dispose of matters that are not fully settled in the jurisprudence.[^28]

i. The purpose of the rule is to eliminate hopeless claims and should be used with care. In that regard, it should be remembered that the law imposes a very low standard for the demonstration of a cause of action.[^29] However, the court also must keep in mind that the power to strike claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial, thereby promoting two goods: correct results and efficiency in the conduct of litigation. In particular, striking out claims that have no reasonable prospect of success promotes litigation efficiency insofar as it reduces time and expense. Litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and arguments on claims that are in any event hopeless. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice.[^30]

j. The importance of applying critical analysis to prevent untenable claims from proceeding has been emphasized increasingly in the current age of scarce judicial resources and systemic delay.[^31] In that regard, the court must act as a gatekeeper at the pleadings stage to prevent claims that have no hope of being legally tenable from proceeding. Where a pleading fails to disclose a reasonable cause of action, the appropriate remedy is to strike the claim.[^32]

[9] With the above rules and principles in mind, I turn next to a preliminary ruling I made in relation to the plaintiff’s desire to file evidence in response to the university’s motion.

Preliminary rulings – Plaintiff’s desire to file evidence and AI generated research

[10] In his efforts to address the university’s motion, Mr Floryan delivered a “Responding Motion Record of the Plaintiff” on or about March 17, 2023.

[11] Without introduction through any sworn or affirmed affidavit, that responding record included, (in addition to reference copies of Justice Garson’s aforesaid endorsement and Mr Floryan’s Amended Amended Statement of Claim delivered on or about February 2, 2023), copies of the following:

a. A document entitled “The University of Western Ontario and the Schulich School of Medicine & Dentistry - CONDITIONS OF APPOINTMENT FOR PHYSICIANS (2018)”. The document also indicates on its cover page that:

i. the document was updated on March 1, 2018, and approved by the Board of Governors on April 26, 2018; and

ii. the “Conditions of Appointment” provide “process and criteria for appointment, promotion and granting of Continuing Appointment and other appointment related conditions for physicians to the Schulich School of Medicine & Dentistry as Clinical Academics”.

b. A document bearing the logo of “Schulich Medicine & Dentistry” with the principal heading “Postgraduate Medical Education”, followed by the sub-heading “Residency Programs & AFCs”, followed by numerous sub-headings and text throughout the document.

c. Another document bearing the logo of “Schulich Medicine & Dentistry” with the principal heading “POST GRADUATE MEDICAL EDUCATION – SCHULICH SCHOOL OF MEDICINE & DENTISTRY – POLICY ON FACULTY SUPERVISION OF POST GRADUATE TRAINEES”. The document also indicates, below that principal heading, that it was revised in February of 2022, approved by the “PGME Committee on March 9, 2022, and approved by the “ECSC” on April 1, 2022, with the date of “next scheduled review” being 2025.

d. A document entitled “Results of legal research carried out using artificial intelligence system ChatGPT (Chat Generative Pre-Trained Transformer)”.

[12] I independently indicated that I intended to place no reliance on the latter document. In that regard:

a. I believe I am entitled to take a degree of judicial notice that the potential benefits and dangers of artificial intelligence, (underlying tools such as ChatGPT currently being made available to the public), currently are the subject of intense debate and scrutiny.

b. As emphasized by Innovation, Science and Economic Development Canada, (a department of the Government of Canada previously known as Industry Canada), there currently is no regulatory framework in Canada specific to artificial intelligence. In particular, while some regulations in specific areas such as health and finance apply to certain uses of artificial intelligence, there currently is no generally applicable approach to ensure that artificial intelligence systems, (such as ChatGPT), address systemic risks during their design and development.

c. In an effort to address such concerns, the Government of Canada has introduced a bill; i.e., Bill C-27 of the first session of then 44th Parliament, the full title of which is “An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts”. Its short title is the “Digital Charter Implementation Act, 2022”.

d. The stated purposes of the proposed “Artificial Intelligence and Data Act”, (one of the new pieces of legislation to be created by Parliament), include the introduction of new rules to strengthen Canadians’ trust in the development and employment of artificial intelligence systems, including protection of Canadians by ensuring high-impact artificial intelligence systems are developed and deployed in a way that identifies, assesses and mitigates the risks of harms and bias.

e. While the first reading of the aforesaid Bill C-27 was completed on June 16, 2022, and its second reading was completed on April 24, 2023, it currently is the subject of no committee activity, and passage of the bill in its final form by Parliament seems far away; i.e., with news agencies reporting that the legislation is expected to be in effect no earlier than 2025.

f. In the meantime, the currently unregulated risks inherent in artificial intelligence continue. In that regard, I note in particular that, south of the border, the Federal Trade Commission of the United States of America recently opened, (on July 13, 2023), an investigation into OpenAI, the maker of ChatGPT, over whether the chatbot has harmed consumers.

g. It seems likely that legal systems and the teaching of law, like all other areas of human activity, will be affected by advancements in artificial intelligence.[^33] Again, however, the benefits in that regard also come with inherent risks that currently are unregulated.

h. Having regard to all of the above, while there may come a time when legal research and submissions generated by artificial intelligence will be recognized and accorded value in our courts, in my view that time has not yet arrived.

[13] In relation to the other three documents in Mr Floryan’s responding motion record, described above, counsel for the moving university objected to their introduction or consideration, or consideration of Mr Floryan’s arguments based on such documents, emphasizing that the material not only constitutes evidence which is unsworn and therefore procedurally inadmissible, but also evidence clearly intended to be excluded by Rule 21.01(2)(b) of the Rules of Civil Procedure, the text of which already has been noted above.

[14] In response, Mr Floryan decried the university’s reliance on what he characterized as “procedural technicalities”, emphasizing that he had come to this court for justice, and submitting that any ruling made in relation to the university’s motion would be unjust without regard to the evidence he admittedly had tendered and upon which he felt the need to rely. To the extent such evidence ostensibly was precluded by Rule 21.01(2)(b) of the Rules of Civil Procedure, Mr Floryan suggested that this would be an appropriate case for the court to exercise its general power, pursuant to Rule 2.03 of the Rules of Civil Procedure, to dispense with the need for rule compliance.

[15] In the course of the hearing before me, I indicated, (for oral reasons provided but which I intend to reiterate and supplement here), that I intended to exclude and not consider, for purposes of the university’s Rule 21.01(1)(b) motion, the evidence tendered by Mr Floryan or his arguments based on such evidence.

[16] In doing so, I was mindful that Justice Garson’s prior endorsement did include numerous comments suggesting that Mr Floryan’s previously pleaded claims against the university were struck out owing to Mr Floryan’s failure to file adequate supporting evidence. For example:

a. At paragraph 22 of that endorsement, it was said that “I reject this argument as no evidence is before me that any of the visits, consults, tests or diagnosis were done by the defendant doctors in their role as “clinical faculty members”. [Emphasis added.]

b. At paragraph 26 of that endorsement, it was said that “The Plaintiff falsely and without evidence tries to connect UWO’s supervisory role of its own faculty to that of a duty of care owed to these doctors’ patients who are seen through the doctors’ capacity as private licenced physicians, with privileges at local hospitals or private offices”. [Emphasis added.]

c. At paragraph 33 of that endorsement, it was said that “There is no evidence of a close or direct relationship between the parties. At best, there is evidence of an affiliation which falls far short of establishing that the medical care provided by the doctors to the plaintiff was done within the reasonable scope of the doctors’ affiliation and employment with UWO”. [Emphasis added.]

d. At paragraph 34 of that endorsement, it was said that “The plaintiff brought forward no evidence that UWO made any representations to him, nor that the plaintiff relied on any such representations or had any expectations of UWO with respect to his medical care. There was no evidence of statutory obligations owed by UWO to the plaintiff, and no evidence that the three doctors’ alleged negligence arose in the context of their roles as faculty or instructors at UWO.” [Emphasis added.]

[17] Such comments may have encouraged Mr Floryan to tender evidence in response to the university’s second Rule 21.01(1)(b) motion.

[18] While the repeated reference to adequacy of evidence on a Rule 21 motion may be regrettable on their face, I nevertheless think it clear, from a reading of Justice Garson’s endorsement in its entirety, that there actually was no intention to base Justice Garson’s decision on the adequacy or inadequacy of evidence filed by Mr Floryan. In particular:

a. At the outset of his discussion of the law relating to such motions, Justice Garson expressly noted, at paragraph 13 of his endorsement, the governing principle emphasized by the Supreme Court of Canada in Hunt v. Carey Canada Inc., supra, that “No evidence is admissible on the motion and the court must assume that the allegations pleaded in the statement of claim are true, unless the facts alleged are patently ridiculous or clearly incapable of proof”.

b. At paragraphs 16-20, Justice Garson prefaced his further remarks about the viability of the plaintiff’s claim against the university by emphasizing that he was focused on Mr Floryan’s pleaded allegations in that regard, and whether what had been pleaded, (making “the necessary allowance for drafting deficiencies considering the status of the plaintiff as a self-represented litigant”), would suffice to establish a viable claim against the university. He also emphasized that he was focused on what he regarded as the failure of the plaintiff’s pleading “to disclose any material facts that, if true, could reasonably support a cause of action” against the university.

c. Towards the end of his endorsement, Justice Garson made further comments emphasizing his continued regard to the importance of not having regard to evidence in determining the outcome of the university’s Rule 21.01(1)(b) motion; e.g., by noting at paragraph 57 of the endorsement that Mr Floryan, as a self-represented litigant, had conflated evidence and submissions. At paragraph 58 of his endorsement, Justice Garson also said this: “On repeated occasions in oral submissions, both [by] himself or through representations made on his behalf by his younger brother or father, the plaintiff attempted to make me aware of additional facts pertaining to the clinical role of medical faculty at UWO and university policies or by-laws. I clearly explained to the plaintiff that I could not consider these”.

d. Finally, at paragraph 61 of his endorsement, (and therefore immediately prior to reaching his conclusion as to whether Mr Floryan’s initial pleading against the university should be struck, and whether that should be done with or without granting Mr Floryan leave to amend his pleading in relation to the university), Justice Garson expressly indicated that he was focused on whether the plaintiff had been afforded sufficient opportunity “to plead all of the relevant and material evidence”. [Emphasis added.]

[19] Having regard to all of the above, in my view Justice Garson’s references to absence of evidence, despite their literal wording, should be read as intended references to Mr Floryan’s failure to plead and rely upon any material facts referring to the matters Justice Garson then identifies in his endorsement.

[20] I also note that, when the matter was spoken to before Justice Tranquilli on November 18, 2022, (apparently for the purposes of scheduling a further special appointment hearing to address the university’s second Rule 21 motion), Mr Floryan was expressly advised, (in response to his apparent indication of an intention to file evidence at the hearing of the motion”), that “on a motion under Rule 21.01(1)(b), the rules of civil procedure preclude the review of evidence and the rule does not permit the motion judge to consider such evidence”, with the court’s inquiry being “limited to the pleadings and any documents that may be incorporated in the pleadings by reference to those documents”.

[21] In any event, I independently thought it inappropriate to consider the evidence tendered by Mr Floryan in relation to the university’s second Rule 21.01(1)(b) motion, and similarly thought it inappropriate to dispense with the need for compliance with Rule 21.01(2)(b) in that regard.

[22] Without limiting the generality of the foregoing, my reasons for that decision included the following:

a. Rule 2.03 reads in its entirety as follows: “The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time”. On its face, the rule grants the court a general discretion to deviate from any rule contained in the Rules of Civil Procedure at any time, subject to finding that such a deviation is considered “necessary in the interest of justice”.

b. Rule 2.03 accordingly is general in nature, insofar as it applies on its face to “any rule at any time”. In contrast, Rule 21.01(2)(b) of the Rules of Civil Procedure is very specific. It speaks directly to, and only to, the admissibility of evidence on a motion brought pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, and expressly indicates that no evidence is admissible in that regard.

c. Moreover, while the legislator left open the possibility of evidence being admitted on consent or pursuant to leave being granted by the presiding judge in relation to motions brought pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure, (i.e., motions seeking determination before trial of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs),[^34] no allowance whatsoever is made in relation to motions brought pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, where the “question of law” addressed by the motion is whether a claimant’s pleading should be struck out on the ground that it discloses no reasonable cause of action. Rule 21.01(1)(b) briefly but clearly indicates that no evidence is admissible on such a motion. In particular, the court is given no discretion whatsoever to deviate from that clearly expressed intention of the legislator.

d. According to longstanding canons of legislative interpretation dating back to the Latin maxim generalia specialbus non derogant: “When two legislative provisions apparently conflict with each other, and one of them deals specifically with the matter in question while the other is of more general application, the conflict is avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general. It does not matter which was enacted first.”[^35] This arguably supports a view that the legislator intended Rule 21.01(2)(b) and its prohibition against the consideration of evidence to apply in relation to all Rule 21.01(1)(b) motions. However, I am mindful that, insofar as both legislative provisions are found within the same piece of subordinate legislation, and that subordinate legislation should be read in its entirety, the legislator arguably expressed an intention to have the residual overriding discretion described in Rule 2.03 apply as indicated to all aspects of the Rules of Civil Procedure, including those rules worded in an apparently absolute manner.

e. Our courts nevertheless have emphasized the importance of adhering to Rule 21.01(2)(b) and its prohibition against the admission of evidence in addressing motions brought pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. In that regard:

i. As noted above, appellate authority has made it clear that a judge hearing such a motion must take the facts pleaded to be provable and true. The basic principle is that the court will look at the impugned pleading, (as well as any documents incorporated into the pleading by reference, and particulars provided by the claimant in response to any demand in that regard), and no more. Evidence therefore is neither permissible nor necessary in relation to such a motion.[^36]

ii. Our Court of Appeal also repeatedly has emphasized that the only issue on such motions is the sufficiency in law of a pleaded claim; i.e., on whether the claimant has pleaded the material facts necessary to support a cause of action recognized by the law.[^37] Admitting and considering evidence in relation to such a motion therefore not only strays impermissibly into matters that are irrelevant and unnecessary, but also substantively undermines the function of such pleadings motions,[^38] the importance of which has been emphasized by the Supreme Court of Canada in the manner already noted above.

f. The discretion conferred on the court by Rule 2.03 of the Rules of Civil Procedure, to “dispense with compliance with any rule at any time”, typically is used to overlook a litigant’s technical breach of a service or filing deadline or similar instance of technical rule non-compliance.[^39] Counsel for the university indicated that extensive research revealed no reported decision in which Rule 2.03 was invoked to permit a deviation from strict compliance with Rule 21.01(2)(b) of the Rules of Civil Procedure. I similarly was unable to locate any reported decision in which that had been done.

g. In any event, I independently was of the view that, in this case, it would have been inappropriate to exercise Rule 2.03 in the manner suggested by Mr Floryan so as to permit his introduction of evidence in relation to the university’s second Rule 21.01(1)(b) motion. In addition to the all the considerations noted above:

i. As I indicated to Mr Floryan, Rule 2.03 of the Rules of Civil Procedure does not focus exclusively on justice for a claimant. It authorizes deviation from rule compliance “only where and as necessary in the interest of justice” generally.

ii. Applying Rule 2.03 in an even-handed manner accordingly would require any permitted deviation from Rule 21.01(2)(b) of the Rules of Civil Procedure by Mr Floryan to be accompanied by a similar dispensation granted to the university; i.e., allowing the university to tender evidence in support of its motion. Nor would there be any principled basis for setting any definite limits on the evidence to be filed in response or in reply.

iii. In my view, the litigation history of this matter to date suggests there almost certainly would be factual disputes flowing from the competing evidence filed by the parties in relation to the university’s motion, in turn effectively transforming the motion in a fundamental way to one akin to a motion by the defendant for summary judgment dismissing the plaintiff’s claim, pursuant to Rule 20.01(3) of the Rules of Civil Procedure. All of the underlying policy objectives of Rule 21.01(1)(b), emphasized by the Supreme Court of Canada, would be defeated.

[23] In deciding the university’s second Rule 21.01(1)(b) motion, I therefore notionally have paid no regard to the evidentiary material filed by Mr Floryan.

[24] I instead have approached the matter by focusing on the sufficiency in law of the plaintiff’s impugned pleading targeted by the university’s second Rule 21.01(1)(b) motion; i.e., Mr Floryan’s Amended Amended Statement of Claim.

Preliminary ruling – Plaintiff’s request for a sealing order

[25] I note for the sake of completeness that, in the course of the hearing before me, Mr Floryan also made an informal request that the court file for this matter be sealed, owing to his concerns about privacy.

[26] As I indicated at the time, I was not inclined to grant his request in that regard for reasons that included the following:

a. Pursuant to section 135 of the Courts of Justice Act, R.S.O. 1990, the proceedings of this court generally are open to the public.

b. As emphasized by the Supreme Court of Canada:

i. that “open court” principle is protected by the constitutionally-entrenched right of freedom of expression, which is considered a central feature of a liberal democracy;

ii. as a general rule, the public accordingly can attend hearings and consult court files, and the press is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable;

iii. there accordingly is a strong presumption in favour of open courts, despite an understanding that allowance for such public scrutiny can be the source of inconvenience and embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives, as such discomfort and embarrassment generally are not enough to overturn the strong presumption that the public and press should be able to attend court hearings, consult court files and report thereon; and

iv. while exceptional circumstances do arise where competing interests justify a restriction on the open court principle, an applicant seeking a discretionary court order limiting constitutionally-protected court openness must demonstrate, as a threshold requirement, (described as an intentionally “high bar”), that openness presents a serious risk to a competing interest of public importance, that the order is necessary to prevent that risk, and that, as a matter of proportionality, the benefits of such an order restricting openness outweigh its negative effects.[^40]

c. In my view, it followed that a sealing order in the nature of that requested by Mr Floryan could not and should not be made without adequate evidence, proper submissions, and completion of the analysis mandated by the Supreme Court of Canada. I certainly was not content to grant such relief “on the fly” as it were, in response to an informal request, made incidentally by Mr Floryan during the course of a hearing scheduled to address the university’s second Rule 21.01(1)(b) motion, and without Mr Floryan having prepared, served and filed a formal motion seeking such relief.

[27] In relation to the last point, I also noted and emphasized to Mr Floryan that the parties to this litigation are not limited to Mr Floryan and the university; i.e., the only parties who appeared before me in relation to the university’s second Rule 21.01(1)(b) motion.

[28] All parties to the proceeding would have to be provided with proper formal notice of Mr Floryan’s request for any sealing order, publication ban, order excluding the public from a hearing, redaction order, or any similar relief placing restrictions on the open court principle.

Analysis

[29] With the above preliminaries addressed, I turn finally to consideration of whether the university should be granted the relief sought in its second Rule 21.01(1)(b) motion; i.e., an order striking the claim pleaded against the university in Mr Floryan’s Amended Amended Statement of Claim, without Mr Floryan being granted any further leave to amend.

[30] In that regard, I bear in mind throughout my analysis that Mr Floryan has advanced a new form of pleading against the university, and the specific question to be addressed in the present context is whether that particular new pleading discloses a reasonable cause of action against the university. Nothing in my comments which follow should suggest that I do not have that current question utmost in my mind throughout the course of my analysis.

[31] Having said that, I nevertheless think it also important to note, at the outset of my analysis, the reality that I am not being asked to approach that determination in circumstances where issues concerning the legal sufficiency of Mr Floryan’s proposed claim against the university is a figurative “blank slate”.

[32] To the contrary, a judge of this court obviously has reviewed the plaintiff’s earlier attempts to plead a legally sufficient claim against the university, considering and resolving particular issues that arose in that regard.

[33] In my view, such considerations do not necessarily give rise to formal issue estoppel. Particular issues arising during the university’s current Rule 21.01(1)(b) motion arguably may be the same as ones decided by Justice Garson, (depending on the extent to which Mr Floryan’s pleading does or does not essentially conform with the earlier version of his pleading against the university), and such issues may have been decided in proceedings between the same parties. However, Justice Garson’s prior judicial decision arguably was not final, particularly insofar as the broader decision made by Justice Garson focused on whether the plaintiff’s pleading could be regarded as disclosing a reasonable cause of action against the university, and Mr Floryan was granted leave to amend in that regard. In such circumstance, all three preconditions for the application of “issue estoppel” may not be present.[^41]

[34] At the very least, however, it seems to me that judicial comity, rule of law principles relating to horizontal stare decisis, and the goal of achieving general consistency in the decisions of this court all favour an approach whereby one of this court’s judges generally should not depart from a decision made by another, in very similar if not identical circumstances, without adequate justification for doing so; e.g., the rationale of the earlier decision being undermined by subsequent appellate decisions, some binding authority or statute not being considered by the earlier judge, the earlier decision not being fully considered, or some aspect of the underlying factual matrix being sufficiently different to distinguish the earlier situation in some meaningful way.[^42]

[35] With such considerations in mind, I begin by noting my view that:

a. I am not aware of any intervening appellate decision that would undermine the decision made by Justice Garson;

b. Justice Garson’s decision was “fully considered”, in the sense that it was not made in a rushed context such as an ongoing trial but was instead the subject of a reserved decision to consider the matter, and the authorities submitted by the parties;

c. it was not suggested that Justice Garson failed to consider any relevant binding authority or statute; and

d. in my view, the plaintiff’s new pleading against the university, set forth in the Amended Amended Statement of Claim, does not seem significantly or sufficiently different to warrant a departure from the underlying reasoning calculus carried out by Justice Garson.

[36] In particular, (in relation to the last point), while Mr Floryan has “repackaged” his pleaded claim against the university, it seems to me that the essential elements of the claim pleaded against the university, in the Amended Amended Statement of Claim, are not substantially or significantly different from the pleaded claim against the university considered and struck out by Justice Garson -- at least insofar as it addresses suggested liability implications for the university of alleged medical malpractice by Doctors Kimpinski, Mrkobrada and Takhar vis-à-vis the plaintiff, at a time when they also were members of the university’s faculty of medicine.[^43]

[37] Without limiting the generality of the foregoing, I think Mr Floryan’s Amended Amended Statement of Claim essentially tracks, albeit perhaps not in precisely the same words or order, his earlier pleading considered by Justice Garson as described above.[^44] In particular, having regard to that Amended Amended Statement of claim:

a. In my view, Mr Floryan once again essentially advances a claim for medical malpractice, albeit one now advanced against eight doctors, (rather than six), two hospitals and the university.

b. Mr Floryan once again pleads that Doctors Kimpinski, Takhar and Mrkobrada were clinical faculty members of the university and employees of the university.[^45]

c. Mr Floryan once again pleads that the role of Doctors Kimpinski, Takhar and Mrkobrada, as UWO clinical faculty members, included their provision of health care services.[^46]

d. Mr Floryan once again pleads that he received health care from those doctors, and from the university as the employer of those doctors.[^47]

e. Mr Floryan once again pleads that the care he received from those doctors was negligent and breached the applicable standard of care, insofar as it involved various identified errors. Most of the pleaded errors, (i.e., apart from those relating to Doctors McCurdy and Peirce, whose conduct was not addressed in the plaintiff’s original pleading), paraphrase and fall within the general rubric of the various errors alleged by Mr Floryan in his earlier pleaded claim against the university, including inadequate supervision,[^48] an ineffective quality verification process,[^49] failure to ensure effective training for members of the university’s medical faculty,^50 failure to act when the doctors did not make use of available diagnostic tools and testing for dysautomania in particular,[^51] and failure to act when the doctors made decisions without seeing, evaluating or familiarizing themselves with documentation.[^52] In his new pleading against the university, Mr Floryan expressly pleads that the university was “negligent” in committing the various alleged errors.[^53]

f. Mr Floryan once again alleges that the university owed him a duty of care. He does so expressly this time, in the opening words of paragraph 165 of the Amended Amended Statement of Claim. However, as noted above, Justice Garson approached the plaintiff’s earlier pleading on the basis that it alleged that the university owed Mr Floryan a duty of care, even if those precise words may not have been used in Mr Floryan’s original pleading.

g. Mr Floryan once again alleges that the university breached the applicable standard of care. He does so expressly this time, in paragraph 166 of the Amended Statement of Claim. However, as noted above, Justice Garson approached the plaintiff’s earlier pleading on the basis that it alleged such a breach through the various alleged errors that had been pleaded, even if those precise words may not have been used in Mr Floryan’s original statement of claim.

h. Mr Floryan once again alleges that breach of the university’s alleged duty of care caused substantial damages.[^54]

i. Like Justice Garson did in relation to the plaintiff’s original statement of claim, and for reasons similar to those offered by Justice Garson, I nevertheless find, in relation to the plaintiff’s Amended Amended Statement of Claim, that the plaintiff’s amended pleading fails to “make the connection” between the role of Doctors Kimpinski, Takhar and Mrkobrada as clinical faculty members employed by the university, and their provision of health care to the plaintiff. In that regard:

i. As emphasized by Justice Garson implicitly if not expressly in his endorsement, the particular capacity in which physicians may have been acting when supplying relevant medical care is of vital importance in establishing a basis for alleged responsibility and liability in relation to such actions. In particular, physicians are capable of holding more than one position or status; e.g., insofar as physicians employed by a hospital may also be employed from time to time as members of a university’s medical faculty. Their provision of medical care while working for a hospital does not necessarily or automatically entail any finding that they simultaneously were engaged in their employment as members of the university’s faculty. Material facts establishing such a connection would be necessary to warrant such a conclusion. However, as noted above, no such material facts were alleged in the plaintiff’s original pleading against the university, and in my view, no such material facts are alleged in the Amended Amended Statement of Claim either. At most, the plaintiff simply pleads bald conclusions, unsupported by any allegations of material fact, that the clinical faculty member status or employment of the relevant doctors entailed their provision of medical care, and/or that the relevant doctors provided medical care to the plaintiff in their capacity as clinical faculty members employed by the university.

ii. Similarly, material facts would be required to support the plaintiff’s bald allegation and conclusion that the university delivered medical care to the plaintiff through its managed and supervised clinics; i.e., as opposed to the plaintiff having received his relevant medical care via the relevant physicians providing services through hospitals or private offices. Justice Garson found that there were no such material facts pleaded in the plaintiff’s original statement of claim, and I make a similar finding in relation to the plaintiff’s Amended Amended Statement of Claim. In that regard, I note in particular:

1. that Justice Garson found that the original pleaded allegations before him were not sufficient to support a conclusion that the university delivered medical care to the plaintiff through its managed and supervised clinics, and instead indicated that the relevant doctors who provided care to the plaintiff had done so as physicians practising medicine and providing care as licenced physicians working for and/or at local hospitals or private offices;

2. that the allegations pleaded by the plaintiff in that regard have not changed from the plaintiff’s original statement of claim to his Amended Amended Statement of Claim; and

3. in my view, a similar conclusion therefore is warranted.[^55]

j. Like Justice Garson, and for reasons similar to those he offered, I accordingly find that the plaintiff, while still failing to plead any adequate basis for doing so, is still trying to connect and conflate the university’s supervisory role in relation to its faculty members to the duty of care owed by physicians to patients seen by such doctors in their capacity as licenced physicians at local hospitals.

k. Like Justice Garson in relation to the claim pleaded against the university in the plaintiff’s original pleading, I similarly regard the claim pleaded against the university in the Amended Amended Statement of Claim as a novel one; e.g., insofar as it asserts that a university such as UWO owes a duty of care to patients seen by physicians while practising medicine at hospitals, who nevertheless also are employed as clinical factual members of a university. In particular, like Justice Garson, I was presented with no authority or precedent recognizing the existence of such a duty of care, either directly or by way of analogy. In deciding whether the Amended Amended Statement of Claim discloses a reasonable cause of action in that regard, the situation before me therefore once again calls for application of the “Anns/Cooper test”.

l. In that regard, I find in relation to the Amended Amended Statement of Claim, (as Justice Garson found in relation to the plaintiff’s original statement of claim), that mere foreseeability is not enough, and that Mr Floryan has failed to plead any allegations of material fact sufficient to indicate any direct or proximate relationship between the university and Mr Floryan, or warrant any reasonable conclusion to that effect. In particular, and without limiting the generality of the foregoing:

i. In his Amended Amended Statement of Claim, Mr Floryan once again has failed to plead any material facts to indicate that the university made any representations to him, that he relied upon any such representations, or that he had any expectations of the university with respect to his medical care.

ii. Nothing in the Amended Amended Statement of claim indicates or suggests that there were any relevant statutory obligations owed by the university to the plaintiff.

iii. Nothing in the Amended Amended Statement of Claim indicates, except as a bald conclusion unsupported by any allegations of material facts, that the alleged negligence of Doctors Kimpinski, Takhar and Mrkobrada arose in the context of their roles as faculty or instructors at the university.

iv. I think it plain and obvious that the pleaded circumstances fall short of establishing that the university owed any prima facie duty of care to Mr Floryan; i.e., that the novel claim pleaded against the university in the Amended Amended Statement of Claim fails the “first stage” of the Anns/Cooper test.

m. In my view, the novel claim pleaded against the university in the Amended Amended Statement of Claim also fails the “second stage” of that Anns/Cooper test, insofar as I read and heard nothing of significance to undermine, in any material or significant way, the conclusion reached by Justice Garson that recognition of such a claim, and the corresponding spectre of imposing liability on universities and similar institutions of higher learning in these or similar circumstances, raises fundamental policy concerns that militate against recognition of such a duty of care. Without limiting the generality of the foregoing:

i. I am mindful that the claim pleaded against the university in the Amended Amended Statement of Claim does not suggest liability of the university for the conduct of its graduates, (i.e., its former students), which was one of the concerns identified by Justice Garson in relation to the plaintiff’s original pleading against the university.

ii. In my view, the fundamental concerns identified about institutions of higher learning such as the university facing indeterminate liability to an indeterminate class of potential claimants, for the conduct of faculty members undertaken in other contexts and capacities, nevertheless remain, having regard to such considerations as:

1. the number of faculties and disciplines frequently existing at such institutions;

2. the reality that individuals who serve as faculty members and instructors at such institutions frequently engage in other roles and employment related to their fields of expertise or knowledge;

3. the reality that such institutions frequently lack any ability to identify, control or monitor such other activities and/or the individuals potentially affected by such other activities; and

4. the reality that such institutions frequently lack any direct contact with individuals potentially affected by such other activities, and/or the ability to access potentially confidential information relating to such individuals.

iii. In my view, nothing has changed since the time of Mr Floryan’s original pleading to alter the reality that Mr Floryan has other legal avenues, apart from claiming against the university, to address his concerns about the medical malpractice alleged in his Amended Amended Statement of Claim, and to seek potentially substantial recovery in that regard. To the contrary, through amendments to his pleading, Mr Floryan now has added claims against two more physicians to supplement his existing claims pleaded against the six other doctors and two hospitals.

[38] For obvious reasons, nothing in Justice Garson’s earlier endorsement addressed the question of whether the claims now pleaded against the university in relation to Doctors McCurdy and Peirce, in the Amended Amended Statement of Claim, are legally sufficient to disclose a reasonable cause of action against the university. In that regard:

a. The claim pleaded directly against Dr Pierce generally asserts that Dr Peirce assisted Dr Mrkobrada as Dr Mrkobrada’s resident, and confirmed the assessment made by Dr Takhar, despite sharing Dr Mrkobrada’s alleged failure to request dysautomania tests. That in turn was said to have involved errors such as inaccurate interpretation of existing test results, failure to maintain proper professional standards, and arriving at false conclusions which effectively led to misdirected further investigation and delay.[^56]

b. The claim pleaded directly against Dr Peirce generally asserts that Dr McCurdy assisted Dr Takhar as Dr Takhar’s resident, confirmed the assessment made by Dr Takhar and concurred with Dr Takhar’s recommendation, while sharing Dr Takhar’s alleged failure to interview the plaintiff’s parents before arriving at a diagnosis. That in turn was said to have led to Dr McCurdy’s provision of a false diagnosis and prescription of drugs dangerous to someone like the plaintiff suffering from dysautomania, as well as corresponding failures to maintain proper professional competency, properly investigate available records, or follow proper methodology.[^57]

c. In relation to the plaintiff’s pleaded claim against the university arising from the alleged involvement of Doctors Peirce and McCurdy in the medical care provided to the plaintiff, it was alleged in the Amended Amended Statement of Claim that the university was negligent in:

i. properly supervising such postgraduate students (residents) enrolled in its programs;[^58]

ii. ensuring that its clinical faculty members Doctors Takhar and Mrkobrada exercised proper supervision over such postgraduate students;[^59]

iii. ensuring that its clinical faculty members Doctors Takhar and Mrkobrada had the ability, knowledge and competence to “properly supervise and instruct” such postgraduate students;[^60]

iv. operating “substandard graduate programs”, which “inadequately prepared their participants (residents) … for clinical work”;[^61] and

v. failing to take action when “its postgraduate students … colluded” with Doctors Kimpinski, Mrkobrada and Takhar “to present the Plaintiff’s condition as resulting from an unspecified mental illness”.[^62]

[39] In my view, for reasons similar to those outlined above in relation to the claims pleaded against the university in relation to Doctors Kimpinski, Mrkobrada and Takhar, those additional pleaded claims against the university, stemming from the alleged involvement of Doctors Pierce and McCurdy in the plaintiff’s medical care, also fail to disclose a reasonable cause of action against the university.

[40] For present purposes, I think it unnecessary to repeat, in complete detail, my full application of the same analysis set forth above to these additional claims against the university. I instead think it sufficient to indicate my view that they suffer from deficiencies similar to those identified in relation to the claims pleaded against the university in relation to Doctors Kimpinski, Mrkobrada and Takhar. For example, and without limiting the generality of the foregoing:

a. The provision of medical care by Doctors Pierce and McCurdy as physicians working for and/or at a hospital, where they were assisting Doctors Mrkobrada and Takhar respectively, does not necessarily or automatically entail any finding that they simultaneously were engaging in such activity as postgraduate students of the university. In my view, material facts establishing such a connection would be necessary to warrant such a conclusion, and none are pleaded in the Amended Amended Statement of Claim. Once again, the plaintiff simply pleads, at most, bald conclusions in that regard; e.g., to the effect that the status of Doctors Peirce and McCurdy as postgraduate students of the university entailed their provision of medical care, and/or that they provided medical care to the plaintiff in their capacity as postgraduate students of the university.

b. In my view, the plaintiff similarly is trying, without provision of an adequate basis in material facts for doing so, to connect and conflate the university’s supervisory role over its postgraduate students with the duty of care owed by such postgraduate students, already qualified as doctors, to patients seen by such doctors in their capacity as licenced physicians practising at local hospitals and lending assistance to other physicians.

c. In my view, the claim pleaded against the university in relation to Doctors Peirce and McCurdy, alleging that such an institution of higher education owes a duty of care to patients seen by such postgraduate students while practising medicine at hospitals, is equally novel and merits similar application of the Anns/Cooper test.

d. In my view, the claims pleaded against the university in relation to Doctors Peirce and McCurdy nevertheless similarly fail both stages of that test. Without limiting the generality of the foregoing:

i. For the reasons outlined above, the Amended Amended Statement of claim fails to plead any allegations of material fact sufficient to indicate any direct or proximate relationship between the university and Mr Floryan, or warrant any reasonable conclusion to that effect.

ii. In my view, the suggestion that a university owes a duty of care for the conduct of its postgraduate students, undertaken while engaged in work for and/or at another institution, raises similar policy concerns militating against the recognition of such a duty of care. In particular, I think such institutions of higher learning have similar lack of ability to identify, control or monitor such other potentially wide-ranging activities in which their postgraduate students may engage, (e.g., during summer or other employment undertaken during the course of their postgraduate studies), or the individuals potentially affected by such other activities – although a defendant’s knowledge of such potential plaintiffs is critical to concerns about indeterminate liability.[^63] I also think the imposition of liability on a university or similar institution of higher learning, in relation to such activities by post-graduate students, once again raises the spectre of such institutions being faced with the prospect of indeterminate liability to an indeterminate class of potential claimants, in respect of whom such institutions usually will lack direct contact or any means of obtaining relevant and potentially confidential information. In relation to such matters, I see no principled basis upon which to draw the line between those to whom the proposed duty of care would be owed and those to whom it would not.[^64] In my view, universities and similar institutions of higher learning should not be made effective insurers for the activities in which their postgraduate students may engage, in the absence of material facts indicating that such individuals engaged in such activities in their capacity as postgraduate students as opposed to some other capacity.[^65]

e. Mr Floryan obviously has other legal avenues available to him, in relation to the medical malpractice allegedly committed by Doctors Peirce and McCurdy, apart from claiming against the university. In particular, he will still have claims against those doctors themselves, and against the hospitals at which those doctors were practising medicine and assisting other physicians.

[41] For the reasons outlined above, in my view the claim pleaded against the university in Mr Floryan’s Amended Amended Statement of Claim therefore should be struck out as disclosing no reasonable cause of action.

[42] Without limiting the generality of the foregoing, like Justice Garson, I find that the claim pleaded against the university fails to reasonably allege that UWO owed a duty of care and was negligent to the plaintiff, or disclose any material facts that, if true, could reasonably support a cause of action in negligence against the university by Mr Floryan.

Further leave to amend

[43] In his written and oral submissions, Mr Floryan addressed the possibility of my striking out the claim pleaded against the university in his Amended Amended Statement of Claim.

[44] In particular, he asked that he be granted leave, in that event, to amend his pleaded claim against the university yet again. In that regard:

a. While not tendering the draft of any proposed Amended Amended Amended Statement of Claim, Mr Floryan indicated that his contemplated further amendments would be “minor” and limited to the insertion of allegations that the university is “vicariously liable” for the conduct of its clinical faculty members and postgraduate students, insofar as they were involved in the provision of the plaintiff’s health care. In Mr Floryan’s view, that would suffice to establish a cause of action against the university and end all further debate about the legal sufficiency of his pleading in that regard.

b. Mr Floryan also indicated that his original amendments added multiple references to the university being liable because it was “negligent” only because the university had complained during the course of its original notice of motion that his pleading had not done that, and it was Mr Floryan’s impression that Justice Garson thought that complaint had merit. In Mr Floryan’s view, he also now could remove all references to the university being liable in negligence, as “vicarious liability does not require UWO to have been negligent” and UWO and Justice Garson accordingly were said to have been “wrong” about that.

[45] Perhaps not surprisingly, the university strongly opposed Mr Floryan’s request for further leave to amend his pleaded claim against the university yet again, if the university succeeded in its current motion to strike the plaintiff’s amended claim against it.

[46] Among the arguments advanced by counsel for the university in that regard:

a. It was noted that, if the university succeeded in having Mr Floryan’s amended claim against it struck out, Mr Floryan will have failed again in his efforts to plead a viable claim against the university, even though he had the benefit of the university’s legal position in relation to his pleading against it as well as the benefit of Justice Garson’s views in that regard.

b. It was emphasized that Mr Floryan, to date, has failed to expressly plead and rely upon any claim of vicarious liability, as he was obliged to do according to law.

c. It was said that Mr Floryan’s reliance on the concept of vicarious liability in any event was misplaced, and insufficient to address the fundamental defects that carried over into Mr Floryan’s amended pleading against the university, insofar as Mr Floryan apparently still fails to grasp the implications and necessary distinctions to be made in relation to individuals, such as the physicians identified in this case, who are capable of holding different positions and capacities, with corresponding different and distinct obligations, depending on the particular context in which such individuals may be acting at any given time; i.e., the reality that the physicians primarily targeted by Mr Floryan figuratively are capable of “wearing different hats at different times”. Bald allegations that the university is “vicariously liable” for the conduct of physicians who provided health care to the plaintiff were said to be inconsequential and meaningless without the pleading of detailed material facts which might warrant a conclusion that the physicians in question provided health care to the plaintiff in their capacity as clinical faculty members or postgraduate students of the university; e.g., as opposed to providing that care as physicians separately employed at private offices and/or by the defendant hospitals, (as suggested by the plaintiff’s pleading), and/or possibly as independent contractors.

d. It was emphasized that the plaintiff now has been given two opportunities to plead such material facts and a corresponding viable claim against the university, but has failed to do so on both occasions, unfairly obliging the university to incur the time and expense of bringing successive and successful motions to strike his pleading -in the event the university succeeded in relation to this motion as well. While acknowledging the plaintiff’s status as a self-representing litigant, the university argued that basic notions of fairness require the process of pleading and amendment to come to an end vis-à-vis the university; e.g., as it too is entitled to the benefit of the Rules of Civil Procedure, and should not be exposed to the prospect of having to bring further motions in that regard while Mr Floryan struggles to remedy a contemplated claim against the university incapable of being “fixed”, having regard to the underlying realities.

[47] In approaching this particular issue, I am mindful of pleading amendment considerations that include the following:

a. Although the general rule is that amendments are presumptively approved,[^66] the right to amend a pleading is not absolute. The court has a residual and discretionary right to deny amendments were appropriate.[^67]

b. Where a plaintiff already has been provided with an opportunity to amend and/or supplement his or her pleading, and has failed to add any allegations of material fact sufficient to demonstrate a viable cause of action in relation to a defendant, it is reasonable to infer that the plaintiff is incapable of adding anything else to the claim that would support the existence of a viable cause of action against that defendant.[^68]

c. Self-representation may be unfortunate, in many cases, but it does not confer an unfettered right to assert claims without a proper foundation and/or which are untenable in law. In situations where a self-representing litigant has been unable to plead a reasonable cause of action, (i.e., a claim having a proper legal foundation or basis in law), and there is no indication of possible amendments that would result in the pleading of a valid cause of action against a defendant, the court should strike the pleaded claim against that defendant and decline further leave to amend.[^69]

[48] In relation to vicarious liability, I also am mindful of considerations that include the following:

a. As emphasized by the Supreme Court of Canada:[^70]

i. Vicarious liability is not a distinct tort. It is instead a theory that holds one person responsible for the misconduct of another because of the relationship between them.

ii. To make out a successful claim for vicarious liability, a plaintiff must demonstrate two things:

1. It must be shown that the relationship between the tortfeasor and the person against whom liability is sought was sufficiently close at the relevant time to make a claim for vicarious liability appropriate.

2. It must be demonstrated that the tortious conduct was sufficiently connected to the tasks assigned to the tortfeasor by the person against whom liability is sought that the tort can be regarded as a materialization of the risks created by the relevant enterprise.

iii. Although the categories of relationships in law that attract vicarious liability are neither exhaustively defined nor closed, the most common one to give rise to vicarious liability is the relationship between master and servant, now more commonly called employer and employee. However, the particular context in which the person said to be primarily responsible for the alleged tortious conduct was acting at the relevant time must be closely examined to determine whether vicarious liability may apply to a further targeted defendant. For example, a person acting in the context of a relevant relationship of employer and employee is distinguished from a person acting in the context of a relationship between an employer and independent contractor, which typically does not give rise to vicarious liability.

iv. There is no one conclusive test which can be universally applied to determine whether a person, said to be primarily responsible for alleged misconduct, was acting in circumstances that may give rise to vicarious liability of another party having regard to the above considerations. To the contrary, a court must always examine the total relationship between the parties at the relevant time, and whether the alleged tortious conduct was sufficiently connected in the sense required to the tasks assigned to the tortfeasor within the context of that relationship, having regard to the various relevant material facts in that regard.

b. The above principles are exemplified in numerous reported decisions which have indicated that vicarious liability of a hospital for the negligence of a resident physician is a legal possibility, albeit one dependent on close examination of the underlying material facts rather than a categorical approach, such as finding vicarious liability of a hospital based on a simple assertion that the physician held the status of a “resident” at a hospital.[^71]

c. Our Court of Appeal has emphasized that a statement of claim must properly plead an allegation of vicarious liability in order for any finding of vicarious liability to be made at trial.[^72]

[49] In the circumstances of this particular case, Mr Floryan has pleaded that three of the named defendants (Dr Kimpinski, Dr Mrkobrada and Dr Takhar) were clinical faculty members and employees of the university, and that two of the named defendants (Dr McCurdy and Dr Peirce) were postgraduate students of the university.

[50] Mr Floryan also has pleaded that the five physicians in question were involved in the provision of health care to the plaintiff.

[51] However, Mr Floryan repeatedly has failed to plead any material facts to establish:

a. the precise nature of the relationship between those five doctors and the university, including the tasks assigned by the university to those physicians, and the risks (if any) created by that relationship;

b. that any medical care provided by the said doctors to the plaintiff was done within the reasonable scope of the doctors’ relationship with the university, (through employment, affiliation or postgraduate student status), as opposed to the provision of such medical care via some other status such as their working as employees of the defendant hospitals or as licenced physicians in private practice working as independent contractors with privileges at local hospitals or private offices; or

c. more specifically, that the alleged tortious conduct of the five physicians was connected in any way, (let alone sufficiently connected for the purpose of establishing vicarious liability), to tasks assigned to the physicians by the university or the risks (if any) created by the relationship between the university and the physicians in question.

[52] Moreover, he has failed to do so despite very clear indications from Justice Garson that the nature of the relationship between the university and defendant physicians, and whether health care provided to the plaintiff by defendant physicians was performed within the reasonable scope of that relationship, (i.e., the defendant doctors’ employment and/or affiliation with the university), or in some other capacity, were relevant and important considerations that had to be addressed by sufficient material facts alleged in the plaintiff’s pleading.

[53] Although self-represented, (apparently through his inability to retain counsel), Mr Floryan clearly is a highly intelligent individual. This litigation is clearly important to him, and he obviously reviewed and considered Justice Garson’s endorsement with care.

[54] In my view, the natural and reasonable inference arising from Mr Floryan’s repeated failure to address such matters in his pleading against the university through the assertion of relevant material facts, particularly in relation to the status in which or through which the physicians were acting at the time of the alleged tortious conduct, is that Mr Floryan either has no knowledge whatsoever of any such material facts, or has knowledge of material facts in that regard which would not lend support to his desired claim against the university.[^73]

[55] In either case, I think Mr Floryan’s repeated failure to assert such material facts in his pleading effectively deprives the court of any proper legal basis for an assertion that the university should be found vicariously liable for the alleged tortious conduct of the physicians in question, and warrants a reasonable inference that pleaded allegations of such material facts would not be forthcoming if Mr Floryan was permitted to amend his pleaded claim against the university yet again; i.e., to make bald and inadequately supported assertions that the university should be found vicariously liable for the alleged tortious conduct of the physicians in question. Certainly, despite Mr Floryan’s apparent expectations to the contrary, merely adding the words “vicariously liable” to Mr Floryan’s pleading, even repeatedly, will not constitute a panacea for his identified pleading deficiencies.

[56] Beyond such considerations, while I too am sympathetic in relation to the challenges faced by self-representing litigants obliged to navigate our civil legal system without the benefit of professional legal advice, I think Mr Floryan now has been provided with sufficient opportunity to plead a reasonable cause of action against the university – especially having regard to the substantial amount of time that has passed since commencement of this proceeding, and the observations provided by Justice Garson in his endorsement.

[57] As emphasized by counsel for the university, represented parties and defendants also have rights, and those rights include a reasonable expectation that the Rules of Civil Procedure will be applied to all concerned in an even-handed way.

[58] In my view, two figurative “bites at the cherry” therefore should suffice, in terms of Mr Floryan’s attempts to plead a reasonable cause of action against the university in the sense required. The university reasonably should not have to face the prospect of further pleading amendments by Mr Floryan, and the associated prospect of having to incur the additional time and expense associated with further appropriate Rule 21.01(1)(b) motions to strike Mr Floryan’s pleaded claims against the university.

[59] Having regard to the considerations outlined above, in my view Mr Floryan should not be granted further leave to amend his pleaded claims against the university yet again.

Conclusion

[60] For the reasons outlined above, I conclude that the claim pleaded against the university in paragraphs 165 to 178 inclusive of the plaintiff’s Amended Amended Statement of Claim should be struck out as disclosing no reasonable cause of action, without the plaintiff Mr Floryan being granted any leave to further amend his pleading in that regard.

Costs

[61] Because my decision was reserved, the parties were unable to make any submissions regarding costs having regard to the substantive outcome of the motion.

[62] If the parties are unable to reach an agreement on costs:

a. the university may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision;

b. Mr Floryan then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the university’s written cost submissions; and

c. the university then may serve and file, within one week of receiving any responding cost submissions from Mr Floryan, reply cost submissions not exceeding two pages in length.

[63] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

“Justice I.F. Leach”

Justice I.F. Leach

Date: September 11, 2023

[^1]: During the course of the hearing before me, accommodations similar to those described by Justice Garson in paragraphs 6-9 of his endorsement made herein on August 19, 2022, (discussed in much greater detail below), were once again made for and extended to Mr Floryan.

[^2]: See Justice Garson’s endorsement at paragraph 10.

[^3]: For example, see Justice Garson’s endorsement at paragraphs 11, 21, 25, 26, 27, 28, 33, 34 and 46.

[^4]: See Justice Garson’s endorsement at paragraph 21.

[^5]: See Justice Garson’s endorsement at paragraph 21.

[^6]: See Justice Garson’s endorsement at paragraphs 12 and 21.

[^7]: See Justice Garson’s endorsement at paragraph 3.

[^8]: See Justice Garson’s endorsement at paragraph 19.

[^9]: See Justice Garson’s endorsement at paragraphs 16 and 20.

[^10]: See Justice Garson’s endorsement at paragraphs 25 and 27.

[^11]: See Justice Garson’s endorsement at paragraph 27.

[^12]: See Justice Garson’s endorsement at paragraph 22.

[^13]: See Justice Garson’s endorsement at paragraphs 26, 28 and 29.

[^14]: See Justice Garson’s endorsement at paragraphs 27 and 28.

[^15]: See Justice Garson’s endorsement at paragraph 18.

[^16]: See Cooper v. Hobart, [2001] 3 S.C.R. 571; and Meekis v. Ontario, 2012 ONCA 534.

[^17]: See Justice Garson’s decision at paragraph 32.

[^18]: See Justice Garson’s endorsement at paragraph 34.

[^21]: See Justice Garson’s endorsement at paragraph 35.

[^22]: See Justice Garson’s endorsement at paragraph 36.

[^23]: See, for example: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959; Prete v. Ontario (1993), 1993 CanLII 3386 (ON CA), 16 O.R. (3d) 161 (C.A.), leave to appeal refused (1994), 17 O.R. (3d) xvii (note) (S.C.C.); Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.); Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources) (2013) 2013 ONCA 683, 117 O.R. (3d) 721 (C.A.); and Paton Estate v. Ontario Lottery and Gaming Corp. (2016), 2016 ONCA 458, 131 O.R. (3d) 273 (C.A.).

[^24]: See, for example: Hunt v. Carey Canada Inc., supra; R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 CanLII 2731 (ON CA), 5 O.R. (3d) 778 (C.A.); Knight v. Imperial Tobacco Company Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Paton Estate v. Ontario Lottery and Gaming Corp., supra; Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra; Apotex Inc. v. Eli Lilly and Co. (2012), 111 O.R. (d) 683 (S.C.J.), reversed 2013 ONSC 5937 (Div.Ct.), affirmed (2015), 2015 ONCA 305, 125 O.R. (3d) 561 (C.A.), leave to appeal refused (January 14, 2016) Doc. 36538, 2016 CarswellOnt 465 and 2016 CarswellOnt 466 (S.C.C.); Tran v. University of Western Ontario, 2015 ONCA 295; and Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra.

[^25]: See, for example: Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police) (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225 (Div.Ct.); and Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra.

[^26]: Knight v. Imperial Tobacco Canada Ltd., supra, at paragraph 22.

[^27]: See Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 CanLII 6761 (ON SC), 12 O.R. (3d) 750 (H.C.J.), at paragraph 20; Balanyk v. University of Toronto, 1999 CanLII 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.), at paragraph 29; Transamerica Life Inc. v. ING Canada Inc. (2003), 2003 CanLII 9923 (ON CA), 68 O.R. (3d) 457, at paragraph 38; and Savary v. Tarion (2021), 2021 ONSC 2409, 157 O.R. (3d) 363, at paragraph 7

[^28]: See, for example: Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police), supra; Hanson v. Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 O.R. (3d) 142 (C.A.); Nash v. Ontario, supra; Choc v. Hudbay Minerals Inc. (2013), 2013 ONSC 1414, 116 O.R. (3d) 674 (S.C.J.); Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra; and Apotex Inc. v. Eli Lilly and Co., supra.

[^29]: See, for example: Hanson v. Bank of Nova Scotia, supra; Millwright Regional Counsel of Ontario v. Celestica Inc. (2012), 2012 ONSC 6083, 113 O.R. (3d) 264 (S.C.J.), affirmed (2014), 2014 ONCA 90, 118 O.R. (3d) 641 (C.A.), additional reasons 2014 ONCA 344, affirmed 2015 SCC 60, [2015] 3 S.C.R. 801; Paton Estate v. Ontario Lottery and Gaming Corp., supra; Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), supra; and Golden Oaks Enterprise Inc. v. Lalonde (2016), 113 O.R. (3d) 513 (S.C.J.), appeal quashed Salewski v. Lalonde (2017), 137 O.R. (3d) 762 (C.A.).

[^30]: See Knight v. Imperial Tobacco Canada Ltd., supra, at paragraph 22.

[^31]: See Rayner v. McManus, 2017 ONSC 3044 (Div.Ct), at paragraph 25; and Savary v. Tarion, supra, at paragraph 7.

[^32]: See Bonenfant v. Ponesse, 2021 ONSC 8544, at paragraph 43. Without limiting the generality of the foregoing, if any fact material to the establishment of a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleading, not a motion for particulars.[32]

[^33]: See, for example, Charles E. Cahillane, “Traditional Legal Education: Outdated Model of Schooling for a Modern Legal Industry that Utilizes Artificial Intelligence Technology” (2023), 17 J. Parliamentary & Pol. L. 359.

[^34]: See Rules 21.01(1)(a) and 21.01(2)(a) of the Rules of Civil Procedure.

[^35]: See Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ontario: Butterworths Canada, 2002), at p. 273. See also Ottawa (City) v. Eastview (Town), 1941 CanLII 9 (SCC), [1941] S.C.R. 448, at paragraph 60; Audziss v. Santa, [2002] O.J. No. 396 (S.C.J.), at paragraphs 19-20; and Harding v. Fraser (2006), 2006 CanLII 21784 (ON SC), 81 O.R. (3d) 708 (S.C.J.), at paragraph 31.

[^36]: See Bowman v. Ontario, 2022 ONCA 477, at paragraph 25; and McCreight v. Canada (Attorney General), 2013 ONCA 43, at paragraph 29. See also White Point Capital Inc. v. Communitylend Holdings Inc., 2022 ONSC 5146, at paragraphs 24-27, and Tewari v. Sundar, 2012 ONSC 8404, at paragraph 29.

[^37]: See Trendsetter Developments Ltd. v. Ottawa Financial Corp. (1989), 32 O.A.C. 327 (C.A.), at paragraph 4; Brozmanova v. Tarshis, 2018 ONCA 523, at paragraphs 25-26; and The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, at paragraph 39.

[^38]: See White Point Capital Inc. v. Communitylend Holdings Inc., supra, at paragraph 33.

[^39]: See Onex Corp. v. American Home Assurance Co., 2009 CanLII 72052 (ON SC), [2009] O.J. No. 5526 (S.C.J.), at paragraph 15.

[^40]: See Sherman Estate v. Donovan (2021), 458 D.L.R. (4th) 163 (S.C.C.), at paragraphs 1-3.

[^41]: See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paragraph 8. I say “may” not be present, because I think it arguable whether the branch of res judicata applicable to Justice Garson’s ultimate decision to strike the plaintiff’s pleaded claim against the university was a decision possibly giving rise to “cause of action estoppel”, and that issue was not finally decided, whereas Justice Garson’s incidental treatment of underlying issues in that regard, (e.g., addressing whether residual policy considerations militated against the recognition of any duty of care in the nature of that suggested by the plaintiff vis-à-vis the university), arguably were decided with finality, thereby giving rise to the branch of res judicata addressed by “issue estoppel”. See Lange, Donald J., The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000), at pages 1-3.

[^42]: See in particular R. v. Sullivan, 2022 SCC 19, [2022] S.C.J. No. 19, at paragraphs 73-79.

[^43]: At the time of Justice Garson’s decision, Mr Floryan’s motion to amend his statement of claim, so as to add pleaded claims against Doctors McCurdy and Peirce as additional defendants, had not yet been heard and decided in the plaintiff’s favour. For obvious reasons, Justice Garson’s decision accordingly did not formally address any pleaded claim against those two doctors or the university for medical treatment they are alleged to have provided while also being postgraduate students of the university.

[^44]: See paragraph 3(c) of these reasons.

[^45]: See the plaintiff’s Amended Amended Statement of Claim, at paragraphs 165, 167, 168 170, 171, 172, 175, 176 and 178.

[^46]: See the plaintiff’s Amended Amended Statement of Claim, at paragraph 165.

[^47]: See the plaintiff’s Amended Amended Statement of Claim, at paragraph 165.

[^48]: See the plaintiff’s Amended Amended Statement of Claim at paragraph 167, and also at paragraphs 168-173 and 178, insofar as allegations that the university “accepted” and/or “failed to act” in relation to what the doctors alleged did and failed to do arguably constitutes negligent supervision.

[^49]: See the plaintiff’s Amended Amended Statement of Claim at paragraph 168, alleging failure by the university “to verify and maintain the competence of” the relevant doctors, and at paragraph 176, alleging failure by the university to ensure that Doctors Takhar and Mrkobrada, as clinical faculty members, had “the ability, knowledge and competence to properly supervise and instruct their postgraduate students”.

[^51]: See the plaintiff’s Amended Amended Statement of Claim at paragraphs 170 and 173.

[^52]: See the plaintiff’s Amended Amended Statement of Claim at paragraph 169, wherein Dr Kimpinski is alleged to have provided a diagnosis without seeing the plaintiff, and at paragraph 172, wherein Doctors Kimpinski, Takhar and Mrkobrada are alleged to have made unsubstantiated statements about the plaintiff’s health by quoting each other rather than providing independent assessments.

[^53]: See the Amended Statement of Claim at paragraphs 167-178 , each of which expressly alleges that “UWO was negligent” in relation to the errors that were said to have been made.

[^54]: Paragraphs 167-177 of the Amended Amended Statement of Claim each include an express reference to the alleged error “resulting in significant losses to the plaintiff”. In my view, causation of loss is also implicit, if not express, in the paragraph 178 allegation that the conduct of the university’s employees and postgraduate students denigrated the plaintiff, thereby “placing the Plaintiff and his family under extreme emotional stress”.

[^55]: In that regard, I note in passing that Justice Garson based his conclusion on the plaintiff’s original pleading, but also made reference, in paragraph 29 of his endorsement, to allegations pleaded by the defence. Mindful of the authorities noted above, indicating that the proper focus in such Rule 21.01(1)(b) motions is exclusively on the relevant impugned pleading, I prefer to base a similar conclusion on the original allegations of the plaintiff which were not amended and which therefore were carried over into the Amended Amended Statement of Claim; e.g., allegations that the defendant doctors providing care to the plaintiff did so while working on behalf of the defendant hospitals, (carried over into paragraphs 154-164 of the Amended Amended Statement of Claim), supplemented by further allegations such as an express assertion, (carried over into paragraph 134 of the Amended Amended Statement of Claim), that the London Health Sciences Centre was Dr Kimpinski’s employer, and an allegation, (carried over into paragraph 160 of the Amended Amended Statement of Claim), that St Joseph’s Health Care London failed to preserve essential medical documentation which included documentation relating to the assessment of the plaintiff carried out by Dr Takhar; i.e., an allegation implicitly if not explicitly indicating that Dr Takhar was working for and/or at a hospital or medical facility operated by St Joseph’s Health Care London when providing medical care to the plaintiff.

[^56]: See paragraphs 74-75 and 102-104 of the Amended Amended Statement of Claim.

[^57]: See the Amended Amended Statement of Claim at paragraphs 111 and 147-153.

[^58]: See the Amended Amended Statement of Claim at paragraph 174.

[^59]: See the Amended Amended Statement of Claim at paragraph 175.

[^60]: See the Amended Amended Statement of Claim at paragraph 176.

[^61]: See the Amended Amended Statement of Claim at paragraph 177.

[^62]: See the Amended Amended Statement of Claim at paragraph 178.

[^63]: See Hercules Management Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, at paragraphs 28-30.

[^64]: See Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, at paragraph 70.

[^65]: For obvious reasons, submissions during the hearings before Justice Garson and before me were focused on the medical context; i.e., on situations involving doctors practicing medicine at hospitals who nevertheless also serve as university faculty members or instructors, or who are also engaged in postgraduate studies at a university. However, to bring the similar policy concerns home to those in the legal profession, one might just as easily consider the situation, (raised during the course of the interactive submissions before me), of full time lawyers actively engaged in legal practice who nevertheless also serve as adjunct professors at a university’s faculty of law, and postgraduate students enrolled in a university’s faculty of law who actively engage in the practice as summer students. The prospect of imposing liability on universities, for the professional negligence committed by such lawyers or summer students while engaged in the practice of law rather than their teaching duties or studies, raises immediate and obvious policy concerns; e.g., insofar as such universities have little or no ability to identify, control or monitor the legal practice activities in which such adjunct professors and students may engage in their other capacities, and/or the individuals who may be affected by such other activities. Such universities effectively would face the prospect of indeterminate liability to an unlimited class of potential claimants, and become an added insurer in relation to such activities. In my view, that is but one of the unacceptable outcomes likely to follow, if only by way of analogy, to the novel duties of care Mr Floryan effectively asks the court to recognize in his Amended Amended Statement of Claim.

[^66]: See Rule 26.01 of the Rules of Civil Procedure which provides -- at least in situations not addressed by Rule 5.04(2) dealing with the addition, deletion or substitution of a party or the correction of any misnomer -- that “On motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[^67]: See Daniele v. Johnson (1999), 1999 CanLII 19921 (ON SCDC), 45 O.R. (3d) 498 (Div.Ct.), at paragraphs 11-15; Marks v. Ottawa (City), 2011 ONCA 248, at paragraph 19; and Turner v. York University, 2011 ONSC 6151, at paragraph 55. See also Grigonis v. Toronto Boardsailing Club, 2010 ONCA 651, at paragraph 5; and Mortazavi v. University of Toronto, 2013 ONCA 655, at paragraph 3.

[^68]: See Cottage Advisors of Canada v. Prince Edward Vacant Land Condominium Corporation No. 10, 2020 ONSC 6445, at paragraph 27.

[^69]: See Mohammed v. Sajjad-Hazai, 2021 ONSC 8490, at paragraph 22; and Tewari v. Sekhorn, 2022 ONSC 417, at paragraph 22.

[^70]: In relation to the following points, see Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534, at p.557; 671122 Ontario Ltd. v. Sagaz Industries Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at paragraphs 25, 33 and 46-48; and K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, at page 417.

[^71]: See, for example, Aynsley v. Toronto General Hospital, 1971 CanLII 23 (SCC), [1972] S.C.R. 435; Ferguson v. Hamilton Civil Hospitals (1983), 1983 CanLII 1724 (ON SC), 40 O.R. (2d) 577 (H.C.J.); Kielly v. General Hospital Corp., 1997 CanLII 14701 (NL CA), [1997] N.J. No. 123 (C.A.); Comeau v. Saint John Regional Hospital, 2001 NBCA 113, [2001] N.B.J. No. 450 (C.A.); and Guay v. Wong (2008), 2008 ABQB 638, 463 A.R. 289 (Q.B.).

[^72]: See Wilson v. Beck, 2013 ONCA 316, at paragraph 27.

[^73]: As noted above, the remainder of Mr Floryan’s pleading strongly suggests knowledge and acceptance on his part that, at the time they provided the alleged health care to Mr Floryan and engaged in tortious conduct in that regard, the physicians were not acting in their capacity as faculty or students of the university, but as employees of the defendants hospitals or as independent contractors with privileges at those hospitals.