Salasel et al. v. Cuthbertson et al., (2015) 329 O.A.C. 324 (CA)

• Judge: Hoy, A.C.J.O., van Rensburg and Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 22, 2015
• Jurisdiction: Ontario
• Citations: (2015), 329 O.A.C. 324 (CA);2015 ONCA 115

Salasel v. Cuthbertson (2015), 329 O.A.C. 324 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. FE.012

Parichehr Salasel, in her own capacity and as substitute decision maker and litigation guardian for Hassan Rasouli, Mojgan Rasouli and Mehran Rasouli (appellants) v. Dr. Brian Cuthbertson, Dr. Gordon Rubenfeld and Dr. Richard Swartz (respondents)

(C58982; 2015 ONCA 115)

Indexed As: Salasel et al. v. Cuthbertson et al.

Ontario Court of Appeal

Hoy, A.C.J.O., van Rensburg and Brown, JJ.A.

February 20, 2015.

Summary:

Rasouli suffered debilitating complications following surgery and was kept alive on mechanical ventilation. Rasouli's doctors recommended withdrawing the mechanical ventilation. Rasouli's family opposed the decision. Litigation resulted (the prior proceedings). Ultimately, the Supreme Court of Canada ruled that the doctors were required to seek Rasouli's wife's consent to the withdrawal of life-sustaining measures. Rasouli was awarded costs at trial and appeal, totalling $65,000. Subsequently, Rasouli's family sued the doctors, seeking general damages for intimidation, assault, negligence, abuse of process, breach of contract and of fiduciary duty and intentional infliction of mental suffering and special damages, including $500,000 in legal fees spent to "keep [Rasouli] alive". The doctors moved to stay or dismiss the action.

The Ontario Superior Court granted the doctors' motion, dismissing the action. The family appealed.

The Ontario Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 5

General - Absolute privilege - Rasouli suffered debilitating complications following surgery and was kept alive on mechanical ventilation - Rasouli's doctors recommended withdrawing the mechanical ventilation - Rasouli's family opposed the decision - Litigation resulted - Ultimately, the Supreme Court of Canada ruled that the doctors were required to seek Rasouli's wife's consent to the withdrawal of life-sustaining measures - Subsequently, the family sued Rasouli's doctors, seeking general damages for intimidation, assault, negligence, abuse of process, breach of contract and of fiduciary duty and intentional infliction of mental suffering - The family relied on a letter from the doctors' counsel (the letter) that the family asserted was a "threat to kill" Rasouli - A motion judge dismissed the claim on the basis that the letter was written on an occasion of absolute privilege - The Ontario Court of Appeal dismissed the family's appeal - This was a communication by counsel for the doctors before the actual commencement of legal proceedings - However, by the date of the letter, the family had decided to litigate - The letter communicated the doctors' position on treatment, but also advised that they would cooperate in seeking a prompt determination from the courts - There was no basis on which to interfere with the motion judge's determination that the family's claim constituted an abuse of process and should be dismissed - This was a clear case in which the communication was protected by the doctrine of absolute privilege - See paragraphs 23 to 47.

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - [See Estoppel - Topic 386 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - Rasouli suffered debilitating complications following surgery and was kept alive on mechanical ventilation - Rasouli's doctors recommended withdrawing the mechanical ventilation - Rasouli's family opposed the decision - Litigation resulted (the prior proceedings) - Ultimately, the Supreme Court of Canada ruled that the doctors were required to seek Rasouli's wife's consent to the withdrawal of life-sustaining measures - Rasouli was awarded costs at trial and appeal, totalling $65,000 - Subsequently, Rasouli's family sued the doctors, seeking, inter alia, special damages, including $500,000 in legal fees spent to "keep [Rasouli] alive" - A motion judge dismissed the claim for legal fees as special damages on the basis of issue estoppel - The Ontario Court of Appeal dismissed the family's appeal - There was no error in the motion judge's determination that the issue regarding legal fees was the same as that decided in the prior proceedings - Issue estoppel applied to bar the family's claim in this action for recovery of "extra costs" incurred in the prior proceedings - There was no error in the motion judge's dismissal of the claim for "extra costs" as frivolous, vexatious or otherwise an abuse of process - See paragraphs 13 to 22.

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Estoppel - Topic 386 ].

Evidence - Topic 4233

Witnesses - Privilege - Lawyer-client communications - Commencement of privilege and protection - [See Barristers and Solicitors - Topic 5 ].

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - [See Barristers and Solicitors - Topic 5 ].

Medicine - Topic 4321

Liability of practitioners - Bars to actions - General - [See Barristers and Solicitors - Topic 5 ].

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See Barristers and Solicitors - Topic 5 and Estoppel - Topic 386 ].

Cases Noticed:

Rasouli v. Sunnybrook Health Sciences Centre et al., [2011] O.T.C. Uned. 1500; 105 O.R.(3d) 761; 2011 ONSC 1500, affd. (2011), 281 O.A.C. 183; 2011 ONCA 183, affd. [2013] 3 S.C.R. 341; 449 N.R. 313; 310 O.A.C. 19; 2013 SCC 53, refd to. [para. 3].

Cuthbertson v. Rasouli - see Rasouli v. Sunnybrook Health Sciences Centre et al.

Currie v. Halton Regional Police Services Board et al. (2003), 179 O.A.C. 67; 233 D.L.R.(4th) 657 (C.A.), refd to. [para. 8].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 11].

Weinstein Estate v. LePage (A.E.) (Ontario) Ltd. and Musa (1984), 4 O.A.C. 234; 47 O.R.(2d) 126 (C.A.), dist. [para. 15].

Crispin & Co. v. Evans Coleman & Evans Ltd. (1922), 68 D.L.R. 623 (B.C.S.C.), affd. [1923] 3 D.L.R. 1190 (B.C.C.A.), dist. [para. 16].

Savoie v. Mailhot (2004), 268 N.B.R.(2d) 348; 704 A.P.R. 348; 2004 NBCA 17, dist. [para. 16].

Mondel Transport Inc. v. Afram Lines Ltd., [1990] 3 F.C. 684; 36 F.T.R. 187 (T.D.), dist. [para. 16].

Harris v. GlaxoSmithKline Inc. et al. (2010), 272 O.A.C. 214; 106 O.R.(3d) 661; 2010 ONCA 872, leave to appeal denied (2011), 426 N.R. 391 (S.C.C.), dist. [para. 16].

West v. Cotton, 1993 CarswellBC 2026 (S.C.), dist. [para. 16].

Berry v. British Transport Commission, [1962] 1 Q.B. 306, dist. [para. 16].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 17].

Somers v. Fournier et al. (2002), 162 O.A.C. 1; 60 O.R.(3d) 225 (C.A.), dist. [para. 19].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 356 D.L.R.(4th) 595; 2013 SCC 19, refd to. [para. 20].

Amato et al. v. Welsh et al. (2013), 305 O.A.C. 155; 2013 ONCA 258, refd to. [para. 35].

Moseley-Williams v. Hansler Industries Ltd. (2004), 38 C.C.E.L.(3d) 111 (Ont. Sup. Ct.), affd., [2005] O.A.C. Uned. 209 (C.A.), refd to. [para. 36].

1522491 Ontario Inc. v. Stewart, Esten Professional Corp. et al. (2010), 260 O.A.C. 114; 100 O.R.(3d) 596; 2010 ONSC 727 (Div. Ct.), refd to. [para. 36].

Samuel Manu-Tech Inc. v. Redipac Recycling Corp. et al. (1999), 124 O.A.C. 125 (C.A.), refd to. [para. 38].

Dingwall v. Lax (1988), 63 O.R.(2d) 336 (H.C.), refd to. [para. 41].

Counsel:

J. Gardner Hodder, for the appellants;

Erica J. Baron and Andrew McCutcheon, for the respondents.

This appeal was heard on January 22, 2015, by Hoy, A.C.J.O., van Rensburg and Brown, JJ.A., of the Ontario Court of Appeal. On February 20, 2015, Brown, J.A., delivered the following judgment for the court.