2011 ONSC 231, 2011 ONSC 231

CITATION : O’Brien v. The Ottawa Hospital (Civic Campus), 2011 ONSC 231 DIVISIONAL COURT FILE NO.: 09-DV-1553 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT B E T W E E N: ) ) STEPHEN O’ BRIEN ) ) ) Stephen O’Brien, in person, for the Plaintiff (Appellant) ) Plaintiff (Appellant) ) ) - and - ) ) ) THE OTTAWA HOSPITAL (CIVIC CAMPUS), LAWRENCE NORMAN, and WALEED CHEHADI )))))) Jacquie El-Chammas, for the Defendant (Respondent), The Ottawa Hospital (Civic Campus) Andrew McKenna for the Defendants (Respondents) Lawrence Norman and Waleed Chehadi ) Defendants (Respondents) ) ) ) ) HEARD: January 5, 2011 J.

Mackinnon J. [ 1 ] Mr. O’Brien appeals from the decision of Tierney J. dated October 2, 2009 dismissing his action against the Respondents pursuant to r. 20.01(3) of the Rules of Civil Procedure , R.R.O. 1990 Reg. 194, on the basis that there was no genuine issue for trial. The action arose out of the care received by the Appellant at the Ottawa Hospital (Civic Campus) (“Civic Campus”) on February 26, 2009.

The gist of the Appellant’s case is that the two named doctors were negligent in failing to diagnose that he had a concussion and that the Hospital was liable vicariously and directly in contract. [ 2 ] Both the named doctors and the hospital brought motions before Justice Tierney. The doctors moved under r. 20.01 and the Hospital moved under that rule and under Rules of the Small Claims Court , O. Reg. 258/98, r. 1 and r. 12 and the Courts of Justice Act , R.S.O. 1990, c. C.43, s. 25. Justice Tierney’s Reasons focus exclusively upon r. 20.01 of the Rules of Civil Procedure .

He reviewed the evidence before him and applied the case law applicable under r. 20.01 as to whether there was a genuine issue for trial. In particular, the Defendants had delivered an expert report to the effect that the doctors had not fallen below the standard of care and that the Plaintiff had not, in any event, suffered any damages. The Plaintiff did not deliver any evidence on the motion.

The motions judge did however have, in addition to the Defendants’ expert report, the nursing triage note from February 26 and the records of the Queensway Carleton Hospital from February 28 where the Plaintiff was diagnosed with a concussion. The nursing note was made at 14:08 and notes that the Plaintiff complained of worsening headache and no loss of consciousness.

The Plaintiff was not seen by Dr Chehadi until 17:50 at which time the doctor recorded that the Plaintiff told him that he did not have a headache, had not lost consciousness and had had no direct trauma to the head. [ 3 ] The Queensway Carleton Hospital note records that the Plaintiff complained of increasing headache and fatigue. The diagnosis was concussion. The Plaintiff relied on this subsequent diagnosis as evidence that the standard was not met two days earlier by the Defendants. Justice Tierney dealt with this in his Reasons. The Defendants’ expert opinion had disagreed with this contention and stated

that it is impossible for a diagnosis of concussion to be made based on what the Plaintiff told Dr Chehadi, namely that he did not have aheadache, and had no direct trauma to the head. His opinion was that the fact that the diagnosis was made two days later was irrelevant tohow he presented at the Civic Campus. The Plaintiff submitted that if a CT scan had been done at the Civic Campus as was done at theQueensway Carleton two days later, the correct diagnosis would have been made earlier. There is no evidentiary basis for thisstatement.

To the contrary, to the extent that a lay person can tell from the Queensway Carleton Hospital records, the CT scan was donein order to rule out any other more sinister problems. The Defendants’ expert opinion was also to the effect that had the Defendantsdiagnosed the Plaintiff with a concussion, they would have done exactly what they did in any event, release him with advice to return if aheadache developed or he sustained any loss of consciousness.

The opinion continued on to note that even assuming there was a delayeddiagnosis, no harm occurred to the patient between February 26 and February 28 when the diagnosis was made. [4] Based on this record, the motions judge found that there was no genuine for trial and dismissed the claim. STANDARD OF REVIEW ON

SUMMARY JUDGMENT MOTION [5] On an appeal from a decision granting

summary judgment, the standard of review is correctness on the issue of whether themotions judge applied the appropriate test. With respect to the judge’s conclusion that the record raised no genuine issue for trial, thestandard of review is whether there is a palpable and overriding error. In my view, Justice Tierney applied the correct test on a motionfor

summary judgment and made no overriding or palpable error in his conclusion that there was no genuine issue for trial. This is not acase where the court could find that the Defendant doctors were below the standard of care without an expert opinion. Neither the fact ofthe discrepancy between what the Plaintiff told the nurse several hours before he was seen by Dr Chehadi, nor the subsequent diagnosismade on different information raised a genuine issue for trial on the issue of the standard of care.

Further there was no evidence beforethe motions judge capable of raising a genuine issue for trial that the Plaintiff had sustained any damages in any event. Accordingly, themotion judge reached the correct decision on a motion brought pursuant to r. 20.01 of the Rules of Civil Procedure. VAN DE VRANDE v BUTKOWSKY (2010), 2010 ONCA 230 , 99 OR (3d) 641 (Ont. C.A.) (QL) [6] This decision of the Ontario Court of Appeal was released on March 30, 2010, several months after the Judgment under appeal. In it, the court held that the procedure of a motion for

summary judgment is not available under the Rules of the Small Claims Court. Inthat case, the motion had actually been brought under r. 1.03(2) and 12.02 of the Rules of the Small Claims Court which provide asfollows: 1.03

(2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just,and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the actionand, if the court considers it appropriate, by reference to the Rules of Civil Procedure. … 12.02

(1) The court may, on motion, strike out or amend all or part of any document that, (

a) discloses no reasonable cause of action or defence; (

b) may delay or make it difficult to have a fair trial; or (

c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more ofthe following: 1. In the case of a claim, order that the action be stayed or dismissed. 2. In the case of a defence, strike out the defence and grant judgment. 3. Impose such terms as are just. [7] The motion judge granted the motion and dismissed the action. On appeal to the Divisional Court, that court set aside thedismissal by applying jurisprudence developed under r. 20 the Rules of Civil Procedure.

The Court of Appeal reinstated the dismissalgranted by the motion judge. [8] In so ruling, the Court of Appeal discussed the nature of r. 12.02 of the Rules of the Small Claims Court at paragraphs 14, 17,18, 19, 20 and 21: [14] Rule 12.02 of the Small Claims Court Rules allows a party to bring a motion to strike a document, including a claim,before trial. It is therefore more akin to a Rule 21 motion than a Rule 20 motion.

It is, however, worded differently than any of Rules 20,21 or 76 of the Rules of Civil Procedure. … [17] There are several important differences between rule 21.01 of the Rules of Civil Procedure and rule 12.02 of theSmall Claims Court Rules. First, where a Rule 21 motion can be brought to strike a pleading, a rule 12.02 motion can be brought to strikeany document. Second, the prohibition on admitting evidence contained in rule 21.01(2) is absent from rule 12.02.

Third, where rule21.01(3) allows an action to be struck on the very narrow grounds of its being frivolous, vexatious or an abuse of process, rule 12.02(1)(

c) adds the criteria of inflammatory, waste of time and nuisance.

[18] Further, rule 12.02 applies in a somewhat different context than the Rules of Civil Procedure .

Section 25 of the Courts of Justice Act provides that in Small Claims Court proceedings, the court is to "hear and determine in a

summary way all questions of law and fact". The court can make "such order as is considered just and agreeable to good conscience". In addition, rule 1.03(1) of the Small Claims Court Rules provides that the rules shall be "liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merit in accordance with s. 25 of the Courts of Justice Act". [19] Conceptually, I view rule 12.02 as being situated somewhere between the Rules 20 and 21 of the Rules of Civil Procedure . It is not a

summary judgment motion involving extensive affidavits and a requirement such as contemplated in Rule 20 of the Rules of Civil Procedure where the responding party must put his "best foot forward". It is more akin to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the

summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be "inflammatory", a "waste of time" or a "nuisance". [20] In my view, the references to actions that are inflammatory, a waste of time or a nuisance was intended to lower the very high threshold set by rule 21.01(3)(d)'s reference to actions that are frivolous, vexatious or an abuse of process. [21] It bears remembering that rule 12.02 motions will often be brought and responded to by self-represented litigants who lack the extensive training of counsel.

The test to be applied on such a motion ought to reflect this, and avoid the somewhat complex case law that has fleshed out the Rules of Civil Procedure . [ 9 ] Both parties rely upon this decision. The Appellant submits that since r. 20 of the Rules of Civil Procedure does not apply in the Small Claims Court, Justice Tierney’s decision based on that Rule should be set aside.

The Respondents submit that the findings and analysis made by Tierney J. combined with other curative rules applicable to the Small Claims Court are sufficient to sustain his decision on appeal. [ 10 ] In this regard, the Appeal Court in Van de Vrande , supra , excused the motion judge for referring to the motion before her as a motion for

summary judgment and for failing to indicate the specific provision of r. 12.02 that she was relying on: [22] In the matter before us, the motion judge correctly referred to and applied rule 12.02 in deciding the issue before her. Unfortunately, at one point she erroneously referred to the motion as one for

summary judgment. This is likely due to the appellant having mislabelled his motion in this way.

I do not, however, consider this error as undermining her analysis and conclusion. … [26] Although the motion judge did not indicate the specific provision of rule 12.02(1) that she was applying, it is apparent that, after making her findings, the claim could properly be viewed as a "waste of time" and struck pursuant to rule 12.02(1)(c). [ 11 ] The curative rules relied upon by the Respondents are r. 2.01 and r. 2.02 which state: 2.01 A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute. 2.02 If necessary in the interest of justice, the court may dispense with compliance with any rule at any time. [ 12 ] There is one case on point that has been decided after Van de Vrande , supra .

Diler v Uppal , [2010] O.J. No. 1903 is a decision of Deputy Judge Winny. She stated at ¶19 and 20: 19 I do not read that case as holding that the appropriate test is whether the plaintiff's claim has "no chance of success". Those were the motions judge's words in that case and the Court of Appeal simply upheld the result. I read the decision as holding that the test is somewhat less onerous than that, based on the finding of Rouleau J.A. (at para. 21) that the test under SCCR rule 12.02(1) should be "lower" than that under rule 21.01(3) (

d) of the Rules of Civil Procedure . 20 In my view, the court's intent was to fix a lower test for a motion under SCCR rule 12.02(1) than that which would apply under Rules 20 or 21 of the Rules of Civil Procedure , which is to say lower than would apply at that point somewhere between those two rules where SCCR rule 12.02(1) was found to be conceptually situated. The rationale for that position was based on the

summary nature of Small Claims Court proceedings, which often involve self-represented litigants. [ 13 ] Deputy Justice Winny went on to dismiss the action before her, finding that so doing was just and agreeable to good conscience, that the claim had no meaningful chance of success and its dismissal at trial was effectively a foregone conclusion so that permitting the trial to continue would be a waste of time within the meaning of r. 12.02(1)(c). She also noted that opinion evidence is properly admissible in a r. 12.02 motion seeking dismissal of a professional malpractice claim.

ANALYSIS [ 14 ] A review of Justice Tierney’s decision reveals that the Appellant‘s case has no meaningful chance of success at trial. The defects are that the Appellant has no expert opinion on the standard of care issue and no stated intention of obtaining one in a case where an opinion is necessary for success. He has demonstrated no evidentiary foundation for any damages whatever. The law in Ontario is against him as to any vicarious liability of the hospital for the doctors, even assuming they had fallen below the standard of care.

In submissions on appeal, the Appellant stated that there were disputed facts as to what had been said between him and Dr Chehadi but there is nothing in the record before the motion judge or this court to indicate what those disputed facts might be. The Appellant also

referred to his alternate allegation of breach of contract by the hospital. This claim asserts that the hospital owed the Appellant a duty to insure that the doctors working there provided services in a competent and nondiscriminatory way. The Appellant felt that Dr Chehadi profiled him as a homeless person and therefore provided below standard service to him. Again the allegation is made but the Appellant has not provided any foundation that would show any merit to the claim.

He does not specify what the hospital did or did not do in terms of its policies or procedures that could amount to a breach of contract with the Appellant.

Although the Appellant details questions Dr Chehadi asked him about alcohol consumption, even assuming these facts in his favour, there is still no basis to support any damages arising from the questions being asked. [ 15 ] In addition, when asked, the Appellant was unable to say how or whether he would have handled the motion any differently if he had been arguing it under r. 12.02 of the Rules of the Small Claims Court rather the r. 20.01 of the Rules of Civil Procedure . [ 16 ] Finally the Hospital did identify in its notice of motion before Justice Tierney that it was relying on r. 1.03 and 12.02 of the Rules of Small Claims Court.

In my view, for the reasons given by Tierney J., on a proper application of those Rules, the Respondents were entitled to have the action dismissed. The claims are a waste of time within the meaning of r. 12.02 because they have no meaningful chance of success at trial. Similarly, were the appeal allowed, it would also be a waste of time for the Respondents to renew their same motion under r. 12.02 because the outcome would be the same. For these reasons, the appeal is dismissed. COSTS [ 17 ] The Respondents seek costs of the appeal. As the successful parties, they are entitled to reasonable costs.

The costs should be on a partial recovery basis. I am fixing the costs at $6,500 all inclusive, to be divided between the doctors and the hospital on the basis of $4,000 and $2,500 respectively, having regard to the greater burden of the appeal work being assumed by the doctors’ counsel. ________________________________ J. Mackinnon J. Released : January 11, 2011 CITATION : O’Brien v. The Ottawa Hospital (Civic Campus), 2011 ONSC 231 DIVISIONAL COURT FILE NO.: 09-DV-1553

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT B E T W E E N: STEPHEN O’ BRIEN Plaintiff (Appellant) - and – THE OTTAWA HOSPITAL (CIVIC CAMPUS), LAWRENCE NORMAN, and WALEED CHEHADI Defendants (Respondents) REASONS FOR JUDGMENT J. Mackinnon J. Released : January 11, 2011