Court File and Parties

Court File No.: CV-23-00711193-0000 Date: 2024-04-17 Superior Court of Justice - Ontario

Re: GRANVILLE DE CARIES, Plaintiff And: STATEFARM/CERTAS HOME FINANCIAL AND AUTO INSURANCE COMPANY AND DR, DAVID HOLT, DR. RAYMOND ZATZMAN, LERNERS LLP, ADAM PATENAUDE, PAULA J. THOMAS, AND WITHROW AND ASSOCIATES, Defendants

Before: Akazaki J.

Counsel: Bonnie Greenaway, for Dr. David Holt and Dr. Raymond Zatzman Philippa G. Samworth, for State Farm, Paula Thomas, and Withrow & Associates

Heard: April 17, 2024

Endorsement

[1] This is a rule 2.1 review pursuant to letter requests from counsel for the defendants, State Farm (a.k.a. Certas), Paula J. Thomas, Withrow & Associates, Dr. David Holt, and Dr. Raymond Zatzman. Any party may file a request pursuant to subrule 2.1.01(6). The rule requires a holistic review, even of parts pertaining to parties who have not requested it.

[2] The statement of claim appears to tell the story of a motor vehicle accident victim who underwent recovery. During the recovery, the plaintiff alleges he received treatment from Dr. Zatzman and from Dr. Holt. This treatment is said to have included prescription of an “unauthorized and prohibited drug called ‘Kratom.’” Whether this treatment occurred or not, and whether there is such a drug, is not for me to inquire into on a rule 2.1 review. I cannot look beyond the face of the pleading.

[3] The plaintiff alleges that, because of ingesting the drug, he suffered various adverse effects, both physical and psychological. Based on the pleadings in the statement of claim, I do not see much if any prospect of the plaintiff’s success against the two doctors. Medical negligence claims are among the most difficult to bring, because the plaintiff usually has to find medical experts willing to write reports and testify against their colleagues. Nevertheless, rule 2.1 is said to be a blunt instrument to halt abusive litigation and not intended to be require an exploration of the cause of action – judicial exercises reserved for rule 20 and rule 21 motions: Alampur v. Avenel Non-Profit Housing Corporation, 2018 ONSC 3022, at para. 11.

[4] Here, the pleadings against the doctors, however crippled by the plaintiff’s cinematic language, does prompt sufficient questions about the treatment and the drug prescription to survive a rule 2.1 review. The need for more information is logically inconsistent with a process designed to weed out legal proceedings without the need for further evidence.

[5] I appreciate the formal motion routes leading to dismissal are more costly and will subject the doctors to the court’s delays. However, the lack of apparent merit is not sufficient to warrant dismissal under rule 2.1: Collins v. Ontario, 2017 ONCA 317, at para 19. Indeed, a reviewing judge can dismiss the action against all but one defendant, if the judge finds a scintilla of hope for a claim against that defendant in an otherwise prolix and unintelligible pleading against all and sundry: Brown v. Lloyd's of London Insurance Market, 2015 ONCA 235, at para. 1. Therefore, the request by the two doctor defendants is hereby denied, without prejudice to any motion under rules 20 and 21 that they may seek, to have the action dismissed against them after the facts and evidence are fleshed out.

[6] The claim against the plaintiff’s automobile accident insurer, State Farm / Certas, is that it provided statutory accident benefits (SABS), including possibly the funding of assessments and treatments by the defendant doctors. The nexus between the insurer and those medical services is unclear. Nevertheless, that defendant’s status as the plaintiff’s SABS carrier is the only connection between it and the plaintiff.

[7] This court has no jurisdiction over disputes in respect of the administration of SABS insurance benefits: Yang v. Co-operators General Insurance Company, 2022 ONCA 178, at paras. 4-6. It would be an abuse of process for this court to exercise jurisdiction over a matter where the legislature has conferred exclusive jurisdiction to a statutory tribunal. Rule 2.1 is therefore engaged.

[8] The claim against the lawyers and law firms, namely Lerners and Adam Patenaude (who acted for the doctors) and Withrow & Associates and Paula Thomas (who acted for State Farm / Certas), is also subject to a rule 2.1 review for abuse of process. The law does not recognize a cause of action against the lawyers who represent an adversary in a tort claim, where there is no duty of care arising from a relationship of proximity: King v Giardina, 2017 ONSC 1588, at para. 42.

[9] Quite apart from the absence of a cause of action, the courts’ duty to preserve the administration of justice includes the protection of advocates against ill-advised lawsuits or complaints brought by their clients’ opponents. The Law Society of Ontario’s Rules of Professional Conduct, s. 5.1.1, Commentary 1, requires lawyers in adversarial situations to uphold their duty to clients:

to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

[10] The effect of this professional standard is that lawyers are going to upset parties for standing in the way of what the parties seek from legal pursuits. It has never been and never should be “open season” to go after the other side’s lawyers. Such attacks brought against officers of the court must be repelled, because the court depends on them for the proper administration of justice. The courts command no armies, levy no taxes, and build no circuses. They rely principally on the integrity and intelligence of lawyers to help decide cases fairly and in accordance with law. A suit against opposing lawyers falls into the category of vexatious litigation by a party “clearly using the court system as a way to inflict damage on people with whom he is upset”: Collins, at para. 18. The claim against the lawyers, as pleaded, calls for an explanation from the plaintiff why it should be allowed to stand.

[11] Therefore, there are grounds to believe the action is frivolous, vexatious, or an abuse of process, as against all defendants except for Dr. Holt and Dr. Zatzman. I therefore order as follows:

1. The registrar shall give notice (Form 2.1A) to the plaintiff that the court is considering making an order dismissing the proceeding as against all defendants except for Dr. Holt and Dr. Zatzman.
2. The plaintiff may, within 15 days after receiving the notice, file with the court a written submission, no more than ten pages in length, responding to the notice.
3. If the plaintiff does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or to any other party.
4. If the plaintiff files a written submission that complies with paragraph 2, the registrar shall give a copy of the submission to the defendants.
5. The defendant, within ten days after receiving the copy of the submission of the plaintiff, file with the court a written submission, no more than ten pages in length, responding to the plaintiff’s submission and shall give a copy of the responding submission to the plaintiff and, on the request of any other party, to that party.
6. The proceeding is hereby stayed pending the resolution of the rule 2.1 process. The court office is directed not to accept any other filings during the period of the stay.
7. The registrar shall forward the submissions to my attention via my judicial assistant.

Released: April 17, 2024 Akazaki J.