No costs personally against law firm that drafted ‘scandalous’ $150-million claim over SABS
Judge dismissed action against insurer and SABS service providers
An Ontario judge has declined to award costs personally against the lawyers who drafted a $150-million statement of claim struck out in its entirety as “scandalous.”
The plaintiff Celia Yang launched the lawsuit over the way the Co-operators General Insurance Company handled her claim for statutory accident benefits, following a 2011 collision which left her seriously injured when she was 11 years old. Other defendants included a number of companies and professionals linked to medical service provider Cira Health Solutions, which arranges examinations required by insurers under sections 44 and 45 of the Statutory Accident Benefits Schedule.
The Co-operators initially moved to strike the sprawling claim, which sought damages for breaches of the Charter and PIPEDA, as well as allegations of bribery, breach of contract and conspiracy to injure, among others.
But the insurer later settled with Yang, leaving the Cira defendants to proceed with the motion to strike before Ontario Superior Court Justice Paul Perell, who concluded that the entire statement of claim should be struck as a violation of Rule 25.11 of province’s Rules of Civil Procedure.
“Ms. Yang’s prolix, bloated, hyperbolic, polemical, ill-crafted 41-page, 83-paragraph Statement of Claim is a flagrant violation of the rules of pleading. Some of the pleading borders on the incomprehensible,” he wrote, rejecting the plaintiff’s attempt to justify the use of emotive language as supportive of a claim for punitive damages.
“There is no merit to this rationalization for the scandalous pleading. A pleader should show by pleading material facts, not tell by the use of conclusory adjectives how and why a defendant’s conduct is blameworthy. It is for the court to determine the truth of the facts, and notwithstanding the crusader’s passion of her lawyers, Ms. Yang is not a private attorney general,” Justice Perell added.
The judge then went on to dismiss Yang’s entire action, concluding that it was “readily apparent that all of the proposed causes of action are doomed to failure and all cannot be saved by any amendment to the already bloated Statement of Claim.”
In a statement, the Cira defendants’ counsel Lee Akazaki said that the allegations in the lawsuit were “imagined.”
“Cira Health, its employees, and the independent healthcare professionals named in the suit serve an important role in Ontario’s auto accident compensation system,” said Akazaki, a partner at Toronto insurance boutique Gilbertson Davis LLP. “They provide medico-legal assessments that favour neither insurers nor claimants. They do not know what provoked the plaintiff to launch the baseless attack on their integrity and impartiality.”
According to Perell’s subsequent ruling on costs, the Cira defendants asked the court to make Yang’s lawyers at Campisi LLP personally liable for the $63,000 they spent on a substantial indemnity basis. They argued that the Toronto personal injury firm was driving the action without instructions from their client, pointing to previous lawsuits in which Campisi LLP had challenged the current SABS regime for clients or its own behalf.
“On the one hand, Ms. Yang, a person described as an accident victim with catastrophically diminished cognitive ability, could not have instructed her lawyers to prepare the civil procedure equivalent of a Rube Goldberg machine. On the other hand, it is hard to imagine how the plaintiff’s lawyers, expert civil litigators, could have prepared such inflammatory allegations. And yet the statement of claim is a real artifact. The key is the evidence that the lawyers, not Ms. Yang, had unfinished business from their thwarted public interest litigation, and that Ms. Yang was not the first client enlisted to provide standing to reignite that cause,” reads a portion of the defendants’ costs submission quoted in the decision.
“Ironically (because two pleadings wrong do not make it right), on a quest for an additional $11,000 of costs, it is now the Cira Health Defendants who are making the adjudication of costs the civil procedure equivalent of a Rube Goldberg machine and a real artifiact,” Justice Perell responded in his ruling.
If the Cira defendants genuinely believed that Yang was incapable of giving instructions, then they should not have brought their motion before the appointment of a litigation guardian, the judge continued.
“Alternatively, if the Cira Health Defendants had a concern that Ms. Yang’s counsel were on a quixotic mission and legal frolic of their own, then Cira Health ought to have relied on Rule 15.02, which provides a procedure for a party to determine whether a lawyer purporting to act for another party is acting with proper authority,” he added.
Noting that the motion to strike occurred with the full cooperation of Yang’s counsel, Justice Perell ultimately concluded that costs should be granted on a partial indemnity basis, awarding the Cira defendants $52,000.
Campisi LLP lawyer Peter Murray, who represented Yang before Justice Perell, did not respond to a request for comment.
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