Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Privilege and immunity – Physicians and surgeons – Governance – Investigations – Judicial review – Disclosure – Evidence – No reasonable cause of action – Abuse of process
Kwabanza v. College of Physicians and Surgeons of Ontario,  O.J. No. 4966, 2012 ONSC 5452, Ontario Superior Court of Justice, October 15, 2012, A. Pollak J.
The defendant, the College of Physicians and Surgeons of Ontario, brought a motion to strike out the Statement of Claim of the plaintiff, Pedro-Kandolo-Kwabanza, without leave to amend, and/or to dismiss the action pursuant to Rules 21 and/or 25 of the Rules of Civil Procedure. The defendant argued that the statement of claim should be struck out as it discloses no reasonable cause of action, and/or it constituted an abuse of process.
The plaintiff claimed $18,000,000 in damages caused by the alleged malpractice of his physician and the defendant’s alleged refusal to take action against that physician. The plaintiff’s statement of claim alleged that the defendant did not properly investigate the plaintiff’s complaint regarding that physician and that the defendant’s investigation process was not transparent as the defendant refused to share certain documents that it had received from others in the course of its investigation.
The defendant argued that it was plain and obvious that the action would not succeed as the evidence related to its investigation, including its decision and reasons would be inadmissible by virtue of the Regulated Health Professions Act, there were no allegations of bad faith or malice, the defendant is immune from liability in respect of decisions pursuant to the common law doctrine of judicial or adjudicative immunity, the defendant does not owe the plaintiff an individual duty of care and the defendant is not vicariously liable for the alleged acts or conduct of its members.
The Court held that it was plain and obvious that the Statement of Claim disclosed no reasonable cause of action against the defendant and should be struck out on that basis. The Court also ordered that the plaintiff be given no leave to amend. The Court also awarded costs against the plaintiff.
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