MBrown Sandbox

Cope v Gesualdi, 2021 CanLII 58972 (ON SCSM)

[1] The parties in this case have not specifically pleaded the legal description all of their claims or particular defences in writing but have each set out their own version of the facts. Accordingly, Rules 7.01(2) and 9.02(1) have not been entirely satisfied, even though the legal nature of all the claims and defences are not always explicitly stated. This court will consider the causes of action and defences advanced orally by the parties when they were invited to open their respective cases. I have no difficulty with this except that it prolongs judicial consideration of the case. Superior Court Rule 25.06, after all, requires no more than that that the parties plead pertinent facts and allows them, but does not make it mandatory, to plead exact points of law. A cause of action need not be pleaded if the specific facts giving rise to that cause of action are included in the pleading: 677960 Alberta Ltd. v Petrokazakhstan Inc., 2013 ABQB 47 at para. 53. In this instance, I find that the causes of action are clearly identifiable from the facts pleaded and have been supported in testimony by facts which are material: Cerqueira v. Ontario 2010 ONSC 3954 at para. 11 and see further J.W. Morden and P.M. Perell, The Law of Civil Procedure in Ontario (1st ed.) (Markham: NexisLexis Canada Inc., 2010) at 339-45. In any event Small Claims Court pleadings are to be read generously: Chovaz et. al. v. 7120761 Canada Inc. et al, 2020 ONSC 1811 at para. 25 (“In Small Claims Court, a liberal, non-technical approach should be taken to pleadings”).

Malone v College of Physicians and Surgeons of Ontario, 2021 CanLII 66083 (ON SCSM)

[7] The analysis by Justice Mackinnon of the Divisional Court in O’Brien v. The Ottawa Hospital (Civic Campus) et al., 2011 ONSC 231, is instructive in this case. Justice Mackinnon wrote at paragraph [16]: … “The claims are a waste of time within the meaning of r. 12.02 because they have no meaningful chance of success at trial.”

[8] Section 38 of the Regulated Health Professions Act, 1991 speaks to the question of immunity:

No action or other proceeding for damages shall be instituted against the Crown, the Minister, a College supervisor appointed under section 5.0.1 or his or her staff, an employee of the Crown, the Advisory Council, a College, a Council, or a member, officer, employee, agent or appointee of the Advisory Council, a College, a Council, a committee of a Council or a panel of a committee of a Council for an act done in good faith in the performance or intended performance of a duty or in the exercise or the intended exercise of a power under this Act, a health profession Act, the Drug and Pharmacies Regulation Act or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power. [emphasis added]

Looking at Ms. Malone’s Amended Claim, she gives few specifics with respect to the claims against the defendant, although it is clear she disagrees with the result. Ms. Malone makes no claims of bad faith or malice. I find that section 38 provides an absolute bar to the claim before the court, which is a claim against a College.

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[10] The case of Deep v College of Physicians and Surgeons of Ontario, (2011 ONSC 324, aff’d 2011 ONCA 517) speaks to this issue. Justice Ruth E. Mesbur wrote in a claim against the members of the adjudicative panel of the College’s discipline committee, that:

Campbell J. (in the case of Agnew v. Ontario Association of Architects, 1987 CanLII 4030 (ON SC), 1987 64 OR (2d) 8 Div. Ct.) held that the rule of judicial immunity applies equally to both judges and tribunal members. The doctrine prohibits lawsuits against courts and tribunals based on their actions as adjudicators. It is rooted in the concept of judicial independence, allowing adjudicators to conduct their role freely and impartially, without fear of suit.