Reasons on Motion

Court File No.: C-454-14
Date: 2025/03/11
Ontario Superior Court of Justice

Between:
Gabriela Lucuta, Plaintiff
– and –
Dr. David Stevens, Dr. Peter Stevenson, and Grand River Hospital, Defendants

Appearances:
Gabriela Lucuta, Moving Party, appearing on her own behalf
Nadia Marotta, for the Responding Parties, Drs. Stevens and Stevenson

Heard: September 4, 2024
Judge: I.R. Smith

Introduction

[1] The plaintiff received medical treatment from Dr. David Stevens and Dr. Peter Stevenson (the “doctors”) at Grand River Hospital (the “hospital”) in 2010. In 2014, acting without counsel at all times, she sued, alleging medical malpractice. In August of 2019, the plaintiff accepted the doctors’ settlement proposal: the parties agreed that the plaintiff’s suit would be dismissed without costs.

[2] Four years later, in September of 2023, the plaintiff launched this motion seeking to set aside the order dismissing the action on the basis that her agreement to the settlement was obtained under duress.

[3] For the following reasons, the motion is dismissed.

Background

[4] In 2010, the plaintiff was treated by the responding parties following a knee injury. She alleges that she was negligently treated by the doctors, and that some of her treatment was undertaken without her informed consent.

[5] As I have said, the plaintiff acted on her own behalf. The plaintiff is not a lawyer but does hold a master’s degree in law from a university in the United Kingdom. In this case, among other things, she navigated the discovery process, engaged an expert, and appeared in court and at a pre-trial conference. Before me, she presented as intelligent and articulate.

[6] The plaintiff’s suit was launched in 2014. In March of 2019, after discoveries were complete and expert reports had been exchanged, the hospital successfully moved for summary judgment.

[7] In addition, in 2017, the plaintiff complained about the doctors’ conduct to the College of Physicians and Surgeons of Ontario. She was not satisfied with the disposition of her complaints by the College’s Inquiries, Complaints and Reports Committee and she therefore sought a review of that disposition before the Health Professions Appeal and Review Board (the “board”). The board held a hearing on June 18, 2019,[1] at which hearing the doctors were represented by Ms. Nathalie Carrothers.

[8] That same day, June 18, 2019, Ms. Carrothers’ law partner, Mark Lerner, wrote to the plaintiff with an offer to settle. He proposed that the parties agree that the plaintiff’s suit be dismissed without costs. He explained his proposal as follows:

“To further clarify our offer, upon acceptance by you both parties would absorb their own legal costs and the action will no longer continue despite the significant legal expenses which have been incurred defending this action.

If you do not accept our offer and the matter must proceed to trial, significant additional legal costs will continue to grow further to preparation for and attendance at trial. As you are aware, the successful party at trial is entitled to seek a costs award from the other party. It is my position that a trial judge will find that Dr. Stevens and Dr. Stevenson met the standard of care in Ontario and your claim will be dismissed.”

[9] The offer to settle was open for acceptance until one day prior to the commencement of the trial, which was then scheduled for November of 2019.

[10] After this letter was sent, on August 6, 2019, the parties attended a pre-trial conference before Sloan J. That conference is referred to in Mr. Lerner’s next letter to the plaintiff, which is dated August 13, 2019. Among other things, Mr. Lerner wrote the following:

“By letter dated June 18, 2019, we served an Offer to Settle on the basis of a dismissal without costs. You already have a costs award against you in excess of $30,000 as a result of the hospital’s successful motion for summary judgment. Mr. Justice Sloan urged that you seek an opinion from a lawyer before proceeding any further with this litigation. I also encourage you to do so. In the event you seek counsel for an opinion, I would be pleased to cooperate in any way appropriate.

I wish to make it clear that in the event that this matter proceeds to trial and your action is dismissed, my clients will be seeking costs against you which will be very significant.”

[11] On August 18, 2019, the plaintiff replied to Mr. Lerner, advising him that she accepted the settlement proposal. On September 5, 2019, she signed a consent to an order dismissing the action without costs and on September 23, 2019, she signed releases, one for each of the doctors. By virtue of the language of the releases, by signing them, the plaintiff acknowledged that she had had the opportunity to receive independent legal advice, that she had read the releases carefully, and that she signed them “voluntarily and freely and without any form of duress being exerted upon [her].” On September 25, 2019, the registrar issued the court’s order dismissing the action without costs.

[12] Thereafter, the doctors and their lawyers heard nothing from the plaintiff until four years later, in September 2023, when she launched this motion. At that time, for the first time, they were advised that the plaintiff alleged that she was threatened in the periods before and after the pre-trial conference, that she was threatened immediately after the hearing held by the Board on July 18, 2019, that she has been threatened in the community, and that she was under economic duress at the time she received Mr. Lerner’s letters proposing settlement. The notice of motion alleges that the plaintiff was “threatened with letters in order to abandon her case against the Defendants altogether. This conduct was outrageous and intentional [sic] meant to coerce her to discontinue this civil case against the Defendants altogether.”

[13] The notice also alleges that “under these serious threats, and economic duress the Plaintiff … was coerced to sign a consent and a final release in September of 2019 which led to the dismissal without costs of the civil case against the Defendants.”

[14] The plaintiff’s affidavits repeat and expand on these allegations.

[15] The plaintiff says that she was “verbally threatened” before and after the pre-trial conference and that she was under “great psychological and economic duress” at that time. She says that the threats and libels against her were intended to inflict distress, duress, and coercion upon her in the period immediately after the board’s hearing. Specifically, the plaintiff alleges that Ms. Carrothers made loud and disrespectful comments about her which were overheard by “all” in the lobby outside the hearing room. It is also alleged that the Chair of the board panel verbally threatened the plaintiff, intending to coerce her into discontinuing her civil action. Thereafter, the plaintiff says that she was “threatened verbally within the community and in other locations in Ontario.” That caused her duress, as did “outrageous” and threatening letters attempting to convince her to abandon her action. She heard malicious comments made against her by nurses when she attended at the hospital. Indeed, threats were made against her “at night, in the morning, and out in the community…”

[16] For all these reasons, the plaintiff says that she was coerced to sign a consent and final releases leading to the dismissal of her suit without costs. In addition, for the same reasons, the plaintiff’s employment opportunities were negatively affected in the period before trial. She says that she did not get any independent legal advice regarding the final release forms which were “sent to her unexpectedly.” Her attempts to get legal advice were “blocked and no one was willing to address the issue for a long time.” The letters to her from Mr. Lerner are said to have “created an imbalance of power” and to have been intended “to pressure the Plaintiff to accept [the settlement offer] unilaterally and unconditionally.” The offer was unfair because it included no compensation for her “losses and damages,” and was the result of “undue influence and power imbalance.” The defendants’ counsel, according to the plaintiff, knew that the settlement offer “unduly advantaged the Defendants.”

[17] Mr. Lerner deposes that the plaintiff did not ever indicate to him that she was accepting the offer to settle under duress. He understood that her decision to settle was a voluntary decision to avoid the risks of going to trial and losing. Mr. Lerner says that he has no knowledge of any reason why the plaintiff could not have secured independent legal advice before accepting the offer to settle. He said that the plaintiff never indicated to him that “she was unaware of, or mistaken about, or confused about the consequences of accepting” the offer to settle. Further, Mr. Lerner says that he has “no knowledge of any threats, libel, intimidation, coercion, pressure, abuse, undue influence, marginalization, or malicious comments/actions by anyone” against the plaintiff.

[18] For her part, in her affidavit, Ms. Carrothers denies having made disrespectful comments about the plaintiff at the board hearing or at any other time. She says that she treated the plaintiff with respect and dignity at all times and that she never threatened or coerced the plaintiff in any way. She has no knowledge of anyone else behaving in this way towards the plaintiff.

Positions of the Parties

[19] The plaintiff says that she was coerced by duress, intimidation and threats into signing the consent and final releases in this case. The order dismissing her suit should therefore be set aside and the action against the doctors should be permitted to continue.

[20] The doctors say that the plaintiff has established no basis to disturb the order dismissing her action. The settlement was fairly negotiated and was not generated by threats or intimidation. The plaintiff has simply had a change of heart years after having freely agreed to bring this litigation to an end.

Discussion

[21] The law recognizes “that there is a strong presumption in favour of the finality of settlements”: Deschenes v. Lalonde, 2020 ONCA 304, at para. 27. See also Catanzaro v. Kellogg’s Canada Inc., 2015 ONCA 779, at para. 9; Pierce v. Belows, 2020 ONCA 41, at para. 9. Accordingly, a consent order following a settlement agreement will typically represent a final and binding contract between the parties. It may only be set aside on proof of fraud, misrepresentation, mistake, unconscionability, or some other ground that would justify setting it aside: Teitelbaum v. Dyson (2000), 7 C.P.C. (5th) 536 (Ont. S.C.J.), at paras. 38–40; aff’d (2001), 151 O.A.C. 399; Verge Insurance Brokers Limited v. Sherk, 2015 ONSC 4044, at paras. 53–57; 2479240 Ontario Inc. v. CS Capital Limited, 2021 ONSC 8421, at para. 27.

[22] In this case, the plaintiff does not allege fraud, misrepresentation, or mistake. Instead, she relies on unconscionability to set aside the agreement. In a nutshell, she argues that threats, intimidation, and coercion caused her to enter into this agreement, which she now regards as improvident.

[23] A similar argument was made in Teitelbaum. In dismissing it, Caputo J. wrote as follows (at para. 52):

“The applicant may feel victimized and may have been anxious and distressed, but this was not caused by the conduct of respondent's counsel in defending the action and negotiating the settlement. The applicant pursued the respondent and insisted on settling, fully understanding the legal affect of her actions.”

[24] In the case before me, as the defendants argue, there was no material inequality of bargaining power. As I have already observed, the plaintiff is intelligent, has legal training, and navigated the legal process well up to the point of the settlement she achieved with Mr. Lerner. There is nothing in the contemporary documentary record that shows any evidence that the plaintiff was coerced, threatened or intimidated in any way. Mr. Lerner’s letters, which accurately set out for the plaintiff the risks of failing to settle, are completely professional and polite. He encouraged the plaintiff to seek out independent legal advice. The plaintiff’s letter accepting the offer to settle betrays no concern about the nature, tone or tenor of communications relating to settlement between the parties. The plaintiff then signed releases and the consent without objection or protest. As I have said, by signing the final releases, the plaintiff acknowledged that she was doing so “voluntarily and freely and without any form of duress being exerted.” There is also nothing in the contemporaneous record that shows any evidence that the doctors took advantage of the plaintiff, or that there was anything improvident about the bargain struck.

[25] Although the plaintiff points to the fact that the action was dismissed without costs and without any recognition of the harms she suffered, this is not evidence of an improvident bargain. In Madjarian v. Durham Regional Police Services (October 28, 2022), unreported, Dunphy J. wrote as follows:

“First, there is nothing about the settlement which is on its face oppressive or improvident. To find otherwise would require me to conclude that the claim was on its face a meritorious one. There is simply no basis for me to conclude that. The claim may have merit and it may not. […] The terms were plain and ordinary and of the sort proposed hundreds of times per week in this province. […] [B]oth sides assess the risk/reward ratio of incurring further costs to bring a matter to trial on the merits. A without costs walk-away settlement is an everyday occurrence in circumstances such as were present here.”

[26] In this latter respect, I note that the settlement in this case was of substantial benefit to the plaintiff. She avoided the risk of what undoubtedly would have been a significant costs award against her had she been unsuccessful at trial.

[27] In the absence of contemporaneous documentary evidence, instead the plaintiff attempts to create and relies on a record of threats and coercion on the basis of the vaguest of assertions in her affidavits. As the doctors argue, most of the statements and other conduct about which the plaintiff complains in her affidavits are not attributed to any specific person or are said to have occurred at any particular time or place. Importantly, with respect to much of the conduct, the plaintiff’s affidavits do not explain how that conduct affected her decision to settle with the doctors. In any case, any threats, pressure, or coercion has been denied by the doctors’ counsel, Mr. Lerner, and Ms. Carrothers, who were not cross-examined.

[28] The plaintiff’s affidavits, prepared and sworn years after the events and replete with vague and uncorroborated allegations, lack credibility on their face but, in any event, fall far short of establishing any reason for overturning the consent order made in this case. The fact that the plaintiff has changed her mind, or thought better of the deal in its aftermath, is no reason to overturn it: Deschenes, at para. 27.

Conclusion

[29] For all these reasons, the motion is dismissed.

[30] If the parties are unable to agree on costs, the doctors may serve and file brief written costs submissions within 14 days of the release of these reasons. The plaintiff may serve and file brief responding submissions on costs within 21 days of the release of these reasons. The doctors’ reply, if any, may be served and filed within 24 days of the release of these reasons.

I.R. Smith
Released: March 11, 2025

[1] I note that information respecting these proceedings, including any order or decision made, is not admissible in a civil proceeding. See Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 36(3).