) ) KENNY VUONG, LUU THONG, MY KIEN VUONG v. DUNG CHI, 2010 ONSC 6827

CITATION : Vuong et al. v. Toronto East General & Orthopaedic Hospital, 2010 ONSC 6827 DIVISIONAL COURT FILE NO.: 174-10 DATE: 20101214 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) KENNY VUONG, LUU THONG, MY KIEN VUONG and DUNG CHI VUONG Appellant (Plaintiffs) – and – TORONTO EAST GENERAL & ORTHOPAEDIC HOSPITAL Respondent (Defendant) )) )) )) )) )) ) ) ) Joseph Markin , for the Appellants Michele M.

Warner , for the Respondent ) ) ) HEARD at Toronto: November 30, 2010 REASONS FOR JUDGMENT ferrier j. : [ 1 ] This is an appeal by the Plaintiffs of the March 17, 2010 Order of Deputy Judge Levine dismissing the Plaintiffs’ Small Claims Court action pursuant to a motion brought by the Defendant Toronto East General & Orthopaedic Hospital (“the Hospital”) under rules 12.02 and 19 of the Small Claims Court Rules , and Rules 21 and 25.11 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 (“the Rules ”) on the basis that the claim discloses no reasonable cause of action, is inflammatory, a waste of time, a nuisance, frivolous and vexatious, and otherwise an abuse of process of the court, and therefore ought to be struck and the action dismissed. [ 2 ] The reasons of the learned trial judge succinctly set out the factual background: The plaintiffs are members of the immediate family of a deceased woman, Yen Bach Vuong, a lady who arrived at the emergency department of the Toronto East General Hospital on February 16, 1999, complaining that she had been breathing forcefully at home, but had recovered by the time of her arrival at the hospital, along with her son, the plaintiff, Kenny Vuong.

The deceased waited at the hospital for more than an hour until she was eventually examined by a doctor in the emergency department of the hospital. There was apparently nothing about the appearance of the deceased that would suggest anything abnormal or unusual in her medical condition requiring immediate attention. The triage nurse employed by the defendant did not prioritize her examination and following the waiting period, the rapid or forced breathing that had initially brought the deceased to the hospital had completely disappeared.

When the time came for the deceased to be examined, she advised the nurse who spoke to her that she was not ill and that she felt normal, indicating that she no longer had any pain in her chest, although when her chest was touched, she indicated that she felt a little bit of pain when she pressed her hand strongly against her chest. The doctor who was in charge of the emergency department at the material time, Dr. George S. Porfiris, indicated that he wished to have the deceased’s blood tested. She refused to permit such testing to be done at the time and accordingly, Dr.

Porfiris advised her that she should go home. However, as she was about to leave the hospital, she and her son the plaintiff Kenny Vuong were stopped by hospital staff who persuaded them to permit the blood work requested by Dr. Porfiris to be done. Although anxious, the deceased and Kenny Vuong agreed to permit the blood work to be done.

The deceased was accordingly given an intravenous line and thereafter once again indicated that she felt well, that she had more energy than when she came into the hospital, that her hands felt warmer than they had before she was given the intravenous line and that she felt totally normal and recovered. Nevertheless, apparently without the consent of the deceased who spoke only Chinese, Dr. Porfiris began to administer Nitroglycerin and Heparin to her. The nature of the substances being administered to his mother were not explained to her son, Kenny Vuong nor apparently to the deceased herself.

After receiving these medications, the deceased continued to insist that she felt normal and was experiencing no pain. Dr. Porfiris nonetheless began to administer another medicine known as Stretokinase. Within minutes thereafter, the deceased went into cardiac arrest and could not be revived despite resuscitative measures. Thereafter, the plaintiffs sought an explanation of the defendant's conduct from hospital staff and from Dr. Porfiris. Since that time, the plaintiffs either directly or indirectly have sought an explanation from the hospital for the death of Yen Bach Vuong.

A telephone discussion took place in the fall of 1999 with a Dr. Tran who spoke with the husband of the deceased, apparently in order to explain the circumstances of her death. Unfortunately, Dr. Tran did not have any opportunity to review the medical chart and as of the date of the telephone conversation, he was not aware that the deceased had received both Heparin and Stretokinase. Dr. Tran was accordingly not able to communicate knowledgeably with the plaintiffs or their agents with respect to the circumstances that resulted in the death of the deceased.

Thereafter, the plaintiffs continued efforts to communicate with an informed representative of the hospital regarding the circumstances of the death. Such efforts were apparently unsuccessful. In the absence of any reasonable explanation that the plaintiffs were able to appreciate by way of explaining the cause of death of the deceased, they commenced an action in the Superior Court of Justice, arising out of the circumstances described above. The aforesaid action was dismissed as “not being commenced within the applicable limitation period…”. The appellants’ appeal to the Court of Appeal was dismissed.

They sought leave to appeal in the Supreme Court of Canada but leave was denied. Almost four years after the denial of leave in the Supreme Court of Canada and almost 8 years after the death of Mrs. Vuong the appellants commenced this action in Toronto Small Claims Court. On a motion for judgment, the action was dismissed but this judgment was overturned on appeal for lack of adequate reasons given by the then trial judge. The new trial was heard by Deputy Judge Levine.

In the statement of claim, the appellants claim that “the defendant had a duty in law to provide them with a reasonable and informed explanation of the circumstances that resulted in the death of Yen Bach Vuong. The defendant failed to discharge such duty.”

[3] The appellants allege that they sustained damages and injuries including the following: (

a) anxiety, uncertainty and emotional harm resulting from their inability to be able to receive the information; (

b) inability to resolve their elongation grief reactions; (

c) pain and suffering; (

d) inability to resolve their sense of guilt and responsibility for not having done more to save the life of the deceased. [4] The learned trial judge correctly noted that on such a motion, the facts alleged in the statement of claim are taken as true. [5] The learned trial judge dismissed the action holding that the appellants’ claim is out of time and that it is also an abuse ofprocess. Standard of Review [6] The issues are questions of law and the standard of review is correctness. Issues 1. Whether the learned trial judge correctly decided that the action is an abuse of the court process. 2.

Whether the learned trial judge correctly decided that the action is statute-barred as being out of time. 3. Whether the claim discloses a reasonable cause of action. Abuse of Process [7] Where the Court is satisfied that a litigant is abusing its process, the Court has an inherent and residual jurisdiction to grantthe necessary relief to prevent that abuse. See: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 11(2); Toronto (City) v.

Canadian Unionof Public Employees (C.U.P.E.), Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77. [8] In a Small Claims Court action, the Court may strike a pleading on any one of the following grounds: (1) the action discloses no reasonable cause of action; (2) the action is inflammatory; (3) the action is a waste of time; (4) the action is a nuisance; or (5) the action is an abuse of the court’s process. See: Rule 12.02, Small Claims Court Rules.

[9] The Rules of Civil Procedure similarly provide that a Court may have an action stayed, dismissed or may strike all or part ofa pleading on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the Court, or that it disclosesno reasonable cause of action. See: Rules 21.01(3)(d), 21.01(1)(

b) and 25.11(

b) and (c), Rules of Civil Procedure. [10] Although similarly worded, Rule 12.02 of the Small Claims Court Rules apply in a different context than the Rules of CivilProcedure. Pursuant to

section 25 of the Courts of Justice Act, the court in Small Claims Court proceedings is to “hear and determine ina

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, mostexpeditious and least expensive determination of every proceeding on its merit in accordance with s. 25 of the Courts of Justice Act”. See:

Section 25, Courts of Justice Act, R.S.O. 1990, c. C.43; Rule 1.03(1), Small Claims Court Rules. [11] The terms “inflammatory”, “waste of time”, and “nuisance” as referred to in Rule 12.02 in the Small Claims Court Rulesestablish a lower threshold for striking leadings in that forum than is available in Superior Court pursuant to Rule 21.01(3)(

d) of theRules of Civil Procedure. See: Van de Vrande v. Bukowsky, 2010 ONCA 230 , [2010] O.J. No. 1239 (C.A.). [12] In Van de Vrande, supra, the Court of Appeal set out the following considerations with respect to motions under this Rule: Conceptually, I view r. 12.02 as being situated somewhere between the rules 20 and 21 of the Rules of Civil Procedure…It is more akinto a r.21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is amotion that is brought in the spirit of the

summary nature of Small Claims Court proceedings and involves an analysis of whether areasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuationwould be “inflammatory”, a “waste of time” or a “nuisance”. In my view, the references to actions that are inflammatory, a waste of time, or a nuisance was intended to lower the very high thresholdset by f. 21.01(3)(d)’s reference to actions that are frivolous, vexatious, or an abuse of process.

It bears remembering that r. 12.01 motions will often be brought and responded to by self-represented litigants who lack the extensivetraining of counsel. The test to be applied on such a motion ought to reflect this, and avoid the somewhat complex case law that hasfleshed out the Rules of Civil Procedure.

See: Van de Vrande, supra, at paras. 19-21. [13] I agree with the submission of the respondent that the learned trial judge correctly decided that this action is an abuse ofprocess on the basis that it is an attempt at fresh litigation based on a new view that the plaintiffs entertain of their case, a view whichthey could have, but chose not to articulate or pursue in the prior litigation, despite the fact that concerns giving rise to the allegations hadcrystallized in their minds at the time of commencing the prior litigation. [14] In this respect, I note paragraphs 19 and 20 of the statement of claim: 19.

Based upon the foregoing [description of medical care provided to deceased], the Plaintiffs sought an explanation of theDefendant’s conduct from the Defendant hospital staff and Dr. Porfiris…. Since that time, the Plaintiffs either directly or indirectlysought an explanation from the Defendant hospital for the death of Yen Bach Vuong…. The Plaintiffs state that they continued theirefforts thereafter in order to communicate with an informed representative of the Defendant hospital regarding the circumstances of thedeath…. 20.

In the absence of any reasonable explanation that the Plaintiffs would be able to appreciate that would explain the cause of thedeath of the deceased, the Plaintiffs undertook their own initiative bringing an action in the Superior Court of Justice arising out of thecircumstances of the death of the deceased. Regretfully, the aforesaid action was time-barred. The Plaintiffs subsequently appealed thedecision but were unsuccessful on technical grounds.” [emphasis added] [15] Parties are not permitted to commit repeated litigation because of new views that they may entertain of the law of the case.

Ifthis were permitted, litigation would have no end, except when legal ingenuity is exhausted: Maynard v. Maynard, (SCC), [1951] SCR 346 at 358-359. It is incumbent on litigants to raise all arguments in their litigation that they feel might support their

case, and it is not open to them to raise such arguments in subsequent litigation: Ontario v. Bear Island Foundation, [1995] O.J. No.1624 (Ont. Gen. Div.). [16] It is apparent from the pleading that the plaintiffs first sought information from the defendant soon after the death of thedeceased.

It is also apparent that they attempted to obtain information in the interval of time between the death and the commencementof the first action some three years later. [17] The plaintiffs take the position that the damages and injuries were occurring on an ongoing basis, and the full impact uponthem of the defendant's refusal to provide information was only known some time after the dismissal of the first action. They take theposition that the refusal in December 2006 continued the damages and injury.

They take the position that their claims are accordinglynew claims that could not have been advanced earlier. [18] I disagree. The refusal or failure to provide information by the defendant occurred within days of the death of the deceased. Clearly, from the pleading, the plaintiffs were unhappy with the lack of information and sued in negligence as a result some two and halfyears later. If they had a claim for emotional harm and pain and suffering resulting from the trauma, they could have and should haveincluded it in the prior action. [19] Accordingly on this ground alone I would dismiss the appeal.

Expiry of the Limitation Period [20] The plaintiff’s position is that the conduct of the defendant is ongoing. The plaintiff submits that when the conduct isongoing, the cause of action does not accrue until the ongoing conduct ends. Because the conduct of the defendant continued until atleast December 2006, when they made their last request, they are within time. [21] I disagree.

If this proposition were accepted, and the defendant continued to maintain its position that it could not provide theinformation requested, then upon each occasion when the plaintiffs requested information, the limitation period would begin to runanew. The effect would be that there could never be a limitation period applied. [22] In Visic v. Ontario (Human Rights Commission) (2008), (ON SCDC), 236 O.A.C. 115, [2008] O.J. No.1768 (S.C.), the applicant failed first-year law at the University of Windsor. She had a disability and was permitted on medical groundsto re-enroll.

She went on to successfully complete law school, receiving an LL.B. degree. The University policy required that transcriptsshow all years attended, including failed years. The University refused to have the failed year removed from her transcript.

Theapplicant lodged a complaint with the Ontario Human Rights Commission, taking the position that the policy was discriminatory andthat she continued to be adversely affected by the policy each time she needed to produce her transcript to a prospective employer. [23] On its face, it appeared that the complaint was filed too late and was barred by the six months limitation period in thelegislation.

However, the applicant took the position that the discrimination was continuing with the effect that the six-month limitationhad no application. [24] The complaint was dismissed and this Court heard an application for Judicial Review. This Court held, without decidingwhether the policy was discriminatory, that the continuing effect of the policy did not constitute a new act of discrimination whenever atranscript was requested. [25] The court in Visic referred to several decisions in the human rights field on the subject of continuing contravention of humanrights Codes. In Bourne v.

Ontario (Human Rights Commission), [1997] O.J. No. 5253 (Div. Ct.) the complainant alleged that therespondent's manner of dividing a pension surplus contravened and continued to contravene a provision of the code. The court rejectedthe submission that there was a continuing contravention: What the complaint referred to as a continuing contraventions of the code, were but continuing effects or consequences flowing from anotional split of the surplus. It was therefore open to the commission to conclude the complaint was made more than six months after

the facts occurred on which it was based. [26] In Manitoba v. Manitoba (Human Rights Commission) (1984), (MB CA), 25 Man. R. (2nd) 117 at para. 19(C.A.), the complaint was based on Manitoba legislation requiring compulsory retirement at age 65. The court had to determine whetherthe complaints were out of time and the issue of a “continuing contravention” was addressed. The court held that there was none: To be a "continuing contravention", there must be a succession or repetition of separate acts of discrimination of the same character.

There must be present acts of discrimination which could be considered as separate contraventions of the act, and not merely one act ofdiscrimination which may have continuing effects or consequences. [27] In my view the reasoning in Manitoba, supra, and in Bourne, supra, is similar to the reasoning to be applied here. The basisof the alleged cause of action is the fact that the defendant would not disclose information to the appellants. That cause of action firstarose soon after the death of the deceased some eight years before the commencement of this action.

The alleged damages and injury arethe continuing effects or consequences of the alleged cause of action. [28] Accordingly, the claim is statute barred. Is There a Cause of Action? [29] In view of the foregoing, it is unnecessary to deal with the question whether the appellants’ alleged cause of action isrecognized in law. Costs [30] Costs to the respondent fixed in the sum of $5,000. Ferrier J. Released: December 14, 2010 CITATION: Vuong et al. v. Toronto East General &Orthopaedic Hospital, 2010 ONSC 6827 DIVISIONAL COURT FILE NO.: 174-10 DATE: 20101214 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN:

KENNY VUONG, LUU THONG, MY KIEN VUONG and DUNG CHI VUONG Appellant (Plaintiffs) – and – TORONTO EAST GENERAL & ORTHOPAEDIC HOSPITAL Respondent (Defendant) REASONS FOR JUDGMENT Ferrier J. Released: December 14, 2010