Schiller v. HMTQ, NHA and BCCNP, 2018 BCPC 345 (CanLII)
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2018 BCPC 345 |
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Date: |
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File No: |
19711 |
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Registry: |
Terrace |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Civil
BETWEEN:
CAROLINE SCHILLER (as Claimant and as executor and
beneficiary of the Will of Dorothy Schiller, deceased)
CLAIMANT
AND:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA, AS REPRESENTED BY THE MINISTRY OF HEALTH and
NORTHERN HEALTH AUTHORITY and
BRITISH COLUMBIA COLLEGE OF NURSING PROFESSIONALS
DEFENDANTS
RULING ON APPLICATION
OF THE
HONOURABLE JUDGE J.T. DOULIS
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Schiller, C. |
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Counsel for the College of Registered Nurses of British Columbia: |
Herbert, J. |
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Lay, A. and Courtney, S. |
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Counsel for the Northern Health Authority: |
Peck, D. |
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Place of Hearing: |
Terrace, B.C. |
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Date of Hearing: |
November 6, 2018 |
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Date of Judgment: |
December 12, 2018 |
Procedural History
[1] On January 31, 2017, Caroline Schiller, “as a Claimant and as executor and beneficiary of the Will of Dorothy Schiller - deceased” (“the “Claimant”), filed a Notice of Claim (the “Claim”) in the Provincial Court of British Columbia, Terrace Registry 19711 against the Northern Health Authority (the “NHA”), Her Majesty the Queen in Right of the Province of British Columbia (the “Province”) as represented by the Ministry of Health and the College of Registered Nurses of British Columbia (the “CRNBC”), now the British Columbia College of Nursing Professionals (“BCCNP”).
[2] The Claimant sues for damages “on the basis of vicarious and direct liability for tortious misconduct (personal injury, mental suffering).” She claimed $125,000, however waives the amount over $25,000 to bring it within the monetary jurisdiction of this court, as it then was.
[3] On January 9, 2018, the NHA filed a Reply, denying liability generally, and asserting the following defences:
a. the Claim does not disclose any triable issue or cause of action;
b. the limitation period for any cause of action has expired;
c. the pleading of the cause of action is too vague and imprecise to sustain a claim;
d. the Claim is an abuse of process in light of the Claimant’s previous complaint to the CRNBC; and
e. the Claim is a collateral attack on the CRNBC complaint process.
[4] Also on January 9, 2018, the CRNBC filed a Reply setting out a chronology of the Claimant’s January 14, 2014 complaint (the “Complaint”) to the CRNBC under s.32(1) of the Health Professions Act (“HPA”) against registered nurses, Marjorie Colleen Leblanc (“Ms. Leblanc”) and Leslie West (“Ms. West”): see Exhibit “A”, Flynn Affidavit. The CRNBC advanced the following defences:
a. the Claim does not disclose a triable issue or any cause of action in law against the CRNBC and cannot sustain the Complainant’s claim for damages;
b. the Claim is barred by the principles of cause of action or issue estoppel;
c. this court has no jurisdiction to address any errors, omissions or other deficiencies, including the Claimant’s right to procedural fairness in the CRNBC investigation process. These issues are within the exclusive jurisdiction of the HPRB and subject to judicial review before the B.C. Supreme Court;
d. the CRNBC did not owe the Claimant a private law duty of care in relation to its investigation and disposition of her complaint; and
e. the Claim is statute barred by the Disciplinary Authority Protection Act, R.S.B.C., 1966, c. 98, s.1; and
f. the Claim is statute barred by the Limitation Act, S.B.C., c. 13, s.6(1).
[5] On January 11, 2018, the Province filed a Reply denying the allegations in the Claim and asks it be dismissed.
[6] On January 18, 2018, the Judicial Case Manager scheduled a Settlement Conference for May 17, 2018.
[7] On May 3, 2018, the Province filed an amended Reply to the Claim, in which it stated, among other things:
a. the Province is not responsible for hiring or supervising nurses at hospitals. Ms. Colleen Leblanc was not an agent or employee of the Province such that the Province could be vicariously liable for her actions;
b. the CRNBC regulates nursing professionals, including investigating complaints against its registrants;
c. the CRNBC’s Inquiry Committee investigated the Complaint and determined no further action be taken on the matter. HPRB concluded the Inquiry Committee’s investigation was adequate and its decision reasonable;
d. the Province does not have authority to initiate or intervene in the Inquiry Committee’s investigations or the HPRB’s review of the Inquiry Committee’s decisions;
e. section 18.1 of the HPA, which empowers the Province to commence an inquiry into systemic issues with a college or professions, is not relevant to a complaint against a specific registrant of a college, such as an individual nurse; and
f. the Claim discloses no triable issue against the Province, and is frivolous, without reasonable grounds and an abuse of the court’s process.
[8] On May 4, 2018, the Claimant filed a “Factum” setting out further particular of her allegations and attaching additional documents.
[9] On July 23, 2018, the Claimant filed a Particularization Document in the Terrace Court Registry, which she copied to Defendants’ counsel.
[10] On July 23, 2018, and September 27, 2018, the Claimant filed an Application to the Registrar seeking an order moving the hearing to a different registry and permission to attend by telephone.
[11] On July 24, 2018, the Claimant filed an Application to a Judge seeking the following relief:
a. her Claim be moved to another registry, preferably Robson Square Provincial Court in Vancouver, B.C.;
b. the hearing of the Defendants’ Applications to dismiss the Claim be in writing;
c. the Defendants disclose to her the following documents she had originally requested from Traci de Pape on December 30, 2016:
i. a letter written by Dr. Fourie to NHA and/or the disability insurer in 2009;
ii. Dorothy Schiller’s disability and employment files;
iii. assignment records of who provided health care (as an outpatient) to Dorothy Schiller in the months leading up to her passing-on. Emphasis to be on nurse Marjorie (Colleen) Leblanc and nurse Leslie West; and
iv. any other material relevant to this claim, including documents given or to be given to the CRNBC Inquiry Committee.
d. there only be one representative per Defendant in court appearances; and
e. the RCMP and/or the TD bank release TD bank surveillance photos under File F106276 or any newly assigned number.
[12] On August 23, 2018, the CRNBC filed an Application to a Judge seeking an order the Claim be dismissed against the CRNBC on basis the claim:
a. does not disclose a reasonable cause of action;
b. raises issues outside the jurisdiction of the Provincial Court;
c. constitutes a collateral attack against the HPRB’s July 10, 2015 decision;
d. constitutes an abuse of process;
e. is statute-barred by the Disciplinary Authority Protection Act; and
f. is statute-barred by the Limitation Act.
[13] On September 12, 2018, the Deputy District Registrar made the following orders:
a. the Claimant was permitted to attend the November 6, 2018, by telephone;
b. the Claimant must file all documents relevant to the hearing at the Terrace Court Registry and provide the Defendants copies prior to October 31, 2018;
c. if sworn evidence be required, this matter will be adjourned to a date when the Claimant will be required to appear in person; and
d. the Claimant’s additional request to appear by telephone on February 25, 2019, requires a separate Application to a Registrar.
[14] On September 14, 2018, NHA filed an Application to a Judge seeking to dismiss the Claim against NHA on the basis the Claim:
a. does not disclose a reasonable cause of action as against the NHA;
b. is an abuse of process; and
c. barred by the Limitation Act.
[15] On September 27, 2018 , the Claimant filed an Application to a Judge seeking:
a. Summons be issued for the persons and offences detailed in Affidavit 3 and filed with the court;
b. The Claimant is “Laying a Private Information”. Under the regulations a Justice must consider the allegations; and
c. The dismissal of the Defendants’ Applications to dismiss this Claim as being an abuse of the process, especially in light of the allegations.
[16] On October 19, 2018, the Claimant amended her Claim to increase her damages sought to $35,000, which was the Court’s new monetary jurisdiction as of June 1, 2017. In her Claim, as amended, the Claimant described “what happened” as follows:
Unknown to family and in contravention of the Hospital Act and with disregard for the CRNBC and HPA [Health Professions Act] legal standards, an employee of NHA became executor of a Will of a terminal and vulnerable client in her care (Dorothy Schiller). The nurse attempted to become power of attorney but the client passed-on before the documents were signed. The Will, dated days befor[e] the client passed-on, gave the nurse and her husband substantial bequests. Allegedly, the Defendants engaged in willful concealment of evidence and deception. Example: The Defendants repeatedly have falsely stated that the nurse was a friend and did not provide care while employed with NHA. Letters from two of the client’s family doctors, two nurses and numerous other documents substantiate that this is a deception and false statement. The Defendants failed to properly investigate and thoroughly analyze data thereby failing to find inconsistencies and errors. They failed to interview key witnesses and seek impartial consultations. Procedural unfairness evident. The alleged falsification of evidence has complicated other matters. The Defendants have supported a nurse who has allegedly breached the legal standards and created a report inconsistent with documentary evidence and case law. This is in detriment to the client and the Claimant. Allegedly the nurse has degraded the Claimant. There was failure to protect a vulnerable client from undue influence and failure to involve family in a terminal client’s care. There is nothing from the client indicating that she did not want family involved. Failure to enforce the legal standards have left the Claimant with intractable mental suffering. The Defendants made false statements outside their jurisdiction. A nurse attempted to convince the senile 94 year old father of the Claimant to write a negative statement about me.
[17] The Claimant says the damages arose in December 2015 and are ongoing.
[18] On October 25, 2018, the Province filed a response to the Claimant’s Applications to a Judge in which it stated:
a. the Province takes no position with respect to the Claimant’s request to move the claim to another registry;
b. the Province opposes the Claimant’s request to have the Applications to Dismiss heard in writing only;
c. the Province does not have the documentation the Claimant requests, namely, a letter written by Dr. Fourie to NHA in 2009, Dorothy Schiller’s disability and employment files, or assignment records for those providing health care to Dorothy Schiller. The Province has given the Claimant all relevant documents at the May 17, 2018 settlement conference;
d. the Province opposes the Claimant request to limit the Defendants to one representative per Defendant;
e. the Province takes no position on the Claimant’s request for disclosure of TD Bank’s surveillance photos;
f. summons are not obtained through an Application to a Judge;
g. the process for laying a private information is set out in the Criminal Code. The Provincial Court does not have the jurisdiction to make decisions relating to an information laid under the Criminal Code; and
h. the Province’s Application to Dismiss is not an abuse of process, but rather authorized by Small Claims Rules 16(6)(o) and 7(14)(i).
[19] On October 25, 2018, the Claimant filed an Application to the Registrar seeking permission to attend the February 25, 2019 hearing by telephone.
[20] On October 31, 2018, the Claimant filed an Amended Application to a Judge appending an excerpt from R. v. Sheppard, 2002 SCC 26, with the comments:
*No reasons for dismissal of claim Terrace file 19230 given.
In a real world sense I was “convicted” and the nurse exonerated despite my evidence.
*The HPRB Report that was not submitted by means of affidavit conflicts with my documentary evidence.’
[21] On October 31, 2018, the CRNBC file a Response to the Claimant’s July 24, 2018 and September 27, 2018, in which it took the following positions:
It agrees the style of cause ought to be amended to show the BCCNP as Defendant in place of CRNBC;
CRNBC opposes all other relief sought by the Claimant including:
a. the Claim be moved to another registry;
b. the Applications to Dismiss be heard in writing;
c. disclosure of documents given or to be given to the CRNBC Inquiry Committee;
d. limiting the Defendants to one representative each;
e. disclosure of TD Bank documents on the basis of relevance and lack of notice to the RCMP or TD Bank;
f. summons be issued to various persons;
g. laying private informations which is outside the jurisdiction of the Small Claims Court;
h. the Defendants’ Applications to dismiss be dismissed;
i. the trial of this Claim be heard in Vancouver, and by means of affidavits.
[22] On November 6, 2018, the Claimant’s Applications to a Judge filed July 24, 2018, September 27, 2018, and October 31, 2018, came before me for hearing. I was sitting in Smithers appearing by telephone without the benefit of the Terrace Court file. The Claimant appeared on her own behalf, Shawn Courtney appeared as counsel for the Province, Mr. Jason Herbert appeared as counsel for the CRNBC, and Mr. Devon Peck appeared as counsel for NHA. All parties appeared by telephone. At that time I made the following orders:
a. On or before November 30, 2018, the Claimant will file with the Terrace Court Registry and mail to the Defendants particulars as to why the Claimant says the documents she is seeking from the Northern Health Authority are relevant to this Claim;
b. The Claimant will provide a written response to the British Columbia College of Nursing Professionals as to the relevance of the document for which she seeks disclosure in her Application;
c. On or before November 30, 2018, the Claimant will file a written response to the Defendants’ Replies; and
d. The name of the Defendant, College of Registered Nurses of British Columbia, is amended to British Columbia College of Nursing Professionals.
[23] On November 6, 2018, I confirmed the Claimant’s address for delivery in these proceedings is 159 Hogan Road, Warkworth, Ontario, KOK 3KO.
[24] I reserved my decision on whether the parties should schedule a trial date and pre-trial conference prior to the hearing of the Defendants’ Application to dismiss the Claim currently scheduled for February 25, 2019. I advised the parties that upon reviewing the Court file, I would provide a written decision.
[25] I have now received court file 19711 and have reviewed the following materials filed in these proceedings:
a. Notice of Claim filed January 31, 2017, as amended on October 19, 2017;
b. Certificate of Readiness of the Claimant dated November 10, 2017, attaching a Statement of Facts;
c. Affidavit One of the Claimant sworn November 10, 2017 and filed on December 11, 2017 (comprising submissions and documents);
d. Trial Statement of the Claimant filed December 11, 2017;
e. Reply of the NHA filed January 9, 2018;
f. Reply of the CRNBC filed January 9, 2018;
g. Reply of the Province filed January 11, 2018;
h. Affidavit Two of the Claimant filed February 15, 2018 (comprising submissions and documents);
i. The CRNBC’s Book of Documents (“CRNBC BOD”) filed with the Court on April 27, 2018 containing 26 documents;
j. Amended Reply of the Province filed May 3, 2018;
k. Claimant’s Factum filed May 4, 2018, together with its attachments;
l. The Province’s Book of Documents filed May 15, 2018;
m. Claimant’s Particularization Document filed July 23, 2018;
n. Claimant’s Application to the Registrar filed July 23, 2018;
o. Claimant’s Application to a Judge filed July 24, 2018;
p. CRNBC’s Application to a Judge filed August 23, 2018;
q. Affidavit of Megan Flynn, filed August 27, 2018;
r. NHA’s Application to a Judge filed September 14, 2018;
s. Affidavit of Barb Munsie, Legal Assistant with Dives, Harper & Stanger, counsel for NHA filed September 13, 2018 (attaching Exhibits “A” to “L”);
t. Affidavit of Cindy Warner, Legal Assistance with Dives, Harper & Stranger, counsel for NHA, attaching a copy of the Claimant’s letter to NHA dated November 26, 2018;
u. Copy of the Claimant’s letter to NHA dated November 26, 2018;
v. Claimant’s correspondence to the Registrar filed September 26, 2018;
w. Affidavit Three of the Claimant filed September 27 2018 (comprising submissions and documents);
x. Affidavit Four of Earl Arsenault filed September 27, 2018;
y. Claimant’s Application to a Judge filed September 27, 2018;
z. Claimant’s correspondence to the Registrar filed October 4, 2018;
aa. CRNBC’s Application to the Registrar filed October 22, 2018;
bb. The Province’s Response to the Claimant’s Applications to a Judge filed July 24, 2018 and September 27, 2018;
cc. The Claimant’s Application to a Judge received October 25, 2018;
dd. Claimant’s correspondence to the Registrar filed October 25, 2018;
ee. The Claimant’s Application to a Judge filed October 31, 2018;
ff. Affidavit of Fiona Vandale, paralegal with the Province, attaching 28 exhibits and filed with the Court Registry on October 31, 2018;
gg. Orders of the Deputy District Registrar made September 12, 2018 and amended October 25, 2018;
hh. The CRNBC’s Response to the Claimant’s Applications to a Judge filed July 24, 2018, and September 27, 2018;
ii. The Affidavit of Fiona Vandale, paralegal to the Ministry of the Attorney General, filed October 31, 2018 (attaching Exhibits “A” to “BB”; and
jj. Affidavit of Cindy Warner filed November 2, 2018, appending the Reason for Judgment of Judge T.J. Wright in Terrace Registry Small Claims File 19230 between Caroline Schiller-Arsenault and Marjorie Colleen Leblanc.
Background
[26] The parties have provided voluminous documents setting out the background history to this dispute. From these documents I have attempted to construct a cohesive narrative in order to contextualize the Claim. As the BCCNP has been referred to throughout these documents by its previous incarnation, for consistency’s sake, I will refer to it in this decision as the CRNBC.
[27] The Claimant, Caroline Schiller, is 62 years old and resides at 159 Hogan Road, Warkworth, Ontario. She is the younger sister of Dorothy Schiller, a nurse practitioner who died of cancer in Mills Memorial Hospital in Terrace on September 14, 2013, at age 60. Dorothy Schiller was in the employ of NHA as a manager of its Terrace Home and Community Care Centre from April 1, 2008, until her death. I understand that the Claimant was or is a nurse.
[28] Dorothy Schiller left no children and had permanently separated from her common law spouse, Greg Proudman, in December 2012. The Claimant was her only sibling, although I gather Dorothy Schiller was survived by her mother and father, Harold and Glenna Schiller: Claimant’s Affidavit One, Tab 4. I also understand the deceased had aunts and cousins in Ontario.
[29] On August 30, 2013, two weeks before she died, Dorothy Schiller made a will (the “Will”) naming Marjorie Colleen Leblanc (“Colleen Leblanc” or “Ms. Leblanc”) as the executor of her estate. She left bequests to Colleen Leblanc, Charles Leblanc, Don Murray, Sigbum Yoo, and Shelagh Badge, all of whom the testator described in her Will as “my friend.” The Will named the Claimant as alternate executor and beneficiary of the residue of her estate. Dorothy Schiller also named the Claimant as her designated beneficiary on various financial instruments.
[30] Dorothy Schiller, Colleen Leblanc, and Leslie West were all registered nurses who worked for the NHA in Terrace, B.C. Ms. Leblanc is employed as Clinical Leader and Educator: see Claimant’s Affidavit Three, pp. 40 & 150. Ms. Leblanc and Ms. West provided support and care for Dorothy Schiller as her disease progressed. The Claimant claims they did so in their capacity as professional nurses. Ms. Leblanc and Ms. West maintained they cared for Dorothy Schiller as her friend and neighbour.
[31] The Claimant arrived in Terrace the day after Dorothy Schiller died. She was distressed to learn that two weeks earlier Dorothy Schiller made a Will naming Colleen Leblanc as executor. The Claimant believes Dorothy Schiller had a previous Will naming her executor and sole beneficiary of the estate. The Claimant bases this belief on an email she received from Dorothy Schiller on October 13, 2012, correspondence from Terry Crane dated October 16, 2013, and Dorothy Schiller designating her the beneficiary of various life insurance policies and RRSP: see Claimant’s Affidavit Three.
[32] Ms. Leblanc’s evidence indicates Dorothy Schiller’s August 30, 2013 Will was the only one she made subsequent to her separation from Greg Proudman: Claimant’s Affidavit, Tab 6, p. 92 or 469.
[33] The proximity of Dorothy Schiller’s death to the date of the Will raised the Claimant’s suspicions. Dorothy Schiller suffered hepatic encephalopathy shortly before her death which the Claimant believed impaired her thinking: see Claimant’s Affidavit Three. The Claimant believes Dorothy Schiller was preyed upon while vulnerable and isolated from her family.
[34] When in Terrace, the Claimant stayed at the deceased’s residence at 3404 Mile Place. Shortly after her arrival, the Claimant’s relationship with Colleen Leblanc unravelled. They accused each other of stealing from the estate and reported the other to the RCMP for theft and other misconduct: See RCMP General Occurrence Reports File CP 13-8984 (October 2, 2013) and GO# 3501 2013-9662 (October 27, 2013); Claimant’s Affidavit Two and Affidavit Three.
[35] Ms. Leblanc considered the Claimant mentally unstable and on October 27, 2013, Constable Couture delivered the Claimant to Mills Memorial Hospital for a psychiatric assessment, presumably under s. 28 of the Mental Health Act. The Claimant was not certified and discharged.
[36] On October 3, 2013, Ms. Leblanc renounced her right to probate Dorothy Schiller’s Will or receive any bequests. On October 10, 2013, Andrea Penner of Talstra & Company wrote to the Claimant advising her that on October 9, 2013, Ms. Leblanc attended at her office and provided a Banker’s box filed with papers. Ms. Leblanc also turned over monies that belong to the estate and receipts: see Claimant’s Affidavit Three, p. 106.
[37] As alternate executor, the Claimant assumed responsibility for probating her sister’s Will.
[38] Ms. Leblanc says she renounced her executorship because of the Claimant’s “interference, meddling, harassments and threats.” The Claimant says Ms. Leblanc renounced “when the bank determined that she was making unauthorized cash withdrawals from her client’s bank account hours after the client passed-on”: Claimant’s Affidavit Three.
[39] The Claimant believed and still believes Dorothy Schiller was a vulnerable patient over whom Ms. Leblanc exerted undue influence for monetary gain. Convinced of widespread wrongdoing, the Claimant spawned a spate of legal proceedings and processes which have continued unabated to this day.
The HPA Complaint
[40] On January 15, 2014, the Claimant, then known as Dorothy Schiller-Arsenault, sent her 24 page Complaint concerning Colleen Leblanc, Leslie West, Officer Charles Leblanc, Judy Murray, and Sergeant Don Murray to Terry Lake, Minister of Health, Stephen Brown, Deputy Minister of Health, Cathy Ulrich, Chief Executive Officer of NHA, Dr. Charles Jago, Chair of the NHA Board of Directors, the B.C. Nursing Association, NHA Patient Care Quality Office, NHA Human Resources, and the RCMP: see se Exhibit “B” to Flynn Affidavit; Exhibit “A”, Munsie Affidavit.
[41] The HPRB summarized Claimant’s Complaint against Ms. West as follows:
[6] The Complainant [the Claimant] alleged that after her Sister’s [Dorothy Schiller’s] death, [Leslie West]:
a. was insensitive when she asked the Complainant if she could remove the Sister’s coffeemaker from the workplace and give it away, shortly after the Sister’s death;
b. came to the Sister’s house, unannounced, and sought to have a book that she had loaned the Sister, returned; and
c. was rude and hurtful to the Complainant while attending the Celebration of Life for the Sister.
Tab 23, CRNBC BOD, p. 023-03.
[42] The HPRB summarized Claimant’s Complaint against Ms. Leblanc as follows:
[7] The Complainant [Claimant] alleged that [Colleen Leblanc], during the Sister’s palliative care and after her death:
a. took advantage of the Sister, while she was in a vulnerable medical condition;
b. was smug, dictatorial, and a bully when the Complainant was dealing with her, after the Sister’s death;
c. attempted to manipulate the Complainant;
d. spread negative information about the Complainant around the Community;
e. refused to provide the Complainant with a copy of the Sister’s will;
f. received a substantial bequest from the Sister in the will;
g. had her Sister’s PIN and withdrew money from her Sister’s bank account on several occasions before the account was frozen;
h. completed her Sister’s income tax return;
i. may have read and deleted private communications between the Complainant and her Sister;
j. kept confidential medical records on her electronic devices related to the Sister;
k. removed items from her Sister’s home without authorization that were not bequeathed to [Colleen Leblanc]; and
l. administered injections to her Sister while she was still in her own home and there were unusual amounts of the same medication in her Sister’s home.
Tab 23, CRNBC BOD, pp. 023-03 and-04.
[43] The NHA and CRNBC undertook the task of investigating and responding to the Complaint against Colleen Leblanc and Leslie West. The NHA investigated the allegations against Ms. Leblanc and Ms. West qua employees and the CRNBC investigated the allegations against them qua Registrants.
[44] On January 30, 2013, Daryl Beckett, Director of the Ministry of Health (“MOH”), wrote to the Claimant at Minister Terry Lake’s request. He states in part:
In this province, registered nurses are regulated by the College of Registered Nurses of British Columbia (the College) under the Health Professions Act (the Act). The College is established under the Act as a self-regulating body at arm’s length from government, and has a legal duty to act in the public interest at all times. It is responsible for overseeing the practice of the profession and governing its registrants in accordance with the Act, the Nurses (Registered) and the Nurse Practitioners Regulation and the College bylaws. The responsibilities of the College include establishing, monitoring and enforcing standards of practice for the profession, and having a process in place for responding appropriately to complaints from the public about the conduct of individual registered nurses.. .
. . . The Ministry does not have the authority to intervene in the investigation or resolution of complaints about the conduct of individual nurses.
. . . The [Health Professions Review Board] also has the authority to review, at the request of a complainant, the decision of a college to dispose of a complaint without referring the matter to a formal disciplinary hearing.
Exhibit “B”, Vandale Affidavit.
[45] Mr. Beckett goes on to advise the Claimant that concerns about possible fraudulent or criminal activity were beyond the mandate of the MOH and ought to be referred to the police. Concerns about the conduct of an RCMP officer should be directed to the Commission for the Public Complaints against the RCMP.
[46] By way of a letter dated March 11, 2014, Erin Crocker, a lawyer with Perry & Company, advised the Claimant her office did not take will instructions from Dorothy Schiller or draft a will: Claimant’s Affidavit Three. The Claimant has endorsed this correspondence with the comment:
Mr. Don Brown is experiencing substantial memory loss regarding my sister’s wills. There is an outstanding matter with the Law Society.
The NHA Investigation
[47] On February 25, 2014, NHA’s Northwest Human Resources Manager, Fred Alaggia, prepared an internal report in response to the Complaint, which the Claimant regards as false, contrived, misleading, and manipulative: Claimant’s Affidavit Three, Particularization Statement, p. 3, para. 17; p. 24, para. R.
[48] On April 11, 2014, Yvette Rutherford responded to the Complaint in her capacity as Regional Manager of the Patient Care Quality Office: Claimant’s Affidavit Three. On May 6, 2014, the Claimant sent a lengthy letter challenging the contents of Ms. Rutherford’s April 11, 2014 letter: see Exhibit “C”, Vandale Affidavit. In her Affidavit One the Claimant states Ms. Rutherford, “Manipulatively and falsely . . . repeats that nurse Leblanc was a ‘friend’.”
[49] On May 2, 2014, David Williams, the Regional Director of Human Resources for the NHA wrote to the Claimant concerning her Complaint, in which he stated:
We also inquired whether any of the individuals who were her friends and either beneficiaries in the Will had cared for Ms. Schiller while she was hospitalized. We have concluded that none of them were assigned to her care while she was hospitalized nor were they assigned to provide home nursing care as she declined that service. Clearly, some of the individuals named provided her with support while she was at home, but only in their capacity of friends and not employees of NHA.
In summary, none of the NHA nurses became involved with your sister as a result of her being a patient of NHA – they had a long-standing, existing friendship before Ms. Schiller became a patient of NHA. As a result, we have concluded that there was no conflict of interest.
See Claimant’s Affidavit One, pp. 64-65; Claimant’s Affidavit Three.
[50] The Claimant maintains Mr. Williams’ statements are deceptive and false as “there was no longstanding friendship. No family or Dorothy’s actual friends were aware of the Terrace persons.”
[51] On June 24, 2014, Gayle Downey for Sharon Stewart, Executive Director, wrote to the Claimant on behalf of Terry Lake, Minister of Health. Ms. Downey advised the Claimant that if she was dissatisfied with Ms. Rutherford’s April 11, 2014 letter, she could seek a review with the Patient Care Quality Review Board: Claimant’s Affidavit One, pp. 66 & 67; Exhibit “D”, Vandale Affidavit.
[52] On February 3, 2016, the Claimant made a request under the Freedom of Information and Protection of Privacy Act (“FOIPPA”). On July 12, 2016, Traci de Pape, Privacy Officer for NHA, responded:
1. There was no log book or medication record created by Community Care Services of Northern Health.
2. We have no supporting documentation to substantiate this claim. If you have any further details that you can provide us we will review and investigate. Examples: details of the Information released, dates, witnesses.
3. These concerns would be better addressed by CRNBC or the RCMP; as they are issues that do not appear to involve Northern Health;
4. The privacy office cannot address this issue as Ms. Leblanc was not acting as a Northern Health employee, but as a friend to your sister.
5. These concerns are better addressed through the RCMP, Northern Health cannot comment.
6. Concerns with CRNBC must be addressed through CRNBC, Northern Health cannot comment.
7. It is our understanding from this paragraph that your concerns are being dealt with by the RCMP. Human Resources are aware of your concerns with Ms. LeBlanc. My office cannot comment on these issues.
See Claimant’s Affidavit One, pp. 72-73; Claimant’s Affidavit Three
[53] The Claimant asserts Ms. de Pape falsely writes Ms. Leblanc “was not acting as a Northern Health employee, but as a friend” and “there was no log book or medication record. Conveniently these records have been lost”: see Claimant’s Affidavit One.
The CRNBC Investigation
[54] The CRNBC is a statutory corporation established under the Health Professions Act, R.S.B.C. 1996, c. 183 [HPA], and the Nurses (Registered) and Nurse Practitioners Regulation, B.C. Reg. 284/2008. It is the regulatory body governing nursing including registered nurses. Section 33 of HPA legislates the CRNBC Inquiry Committee (the “Inquiry Committee”) as the body responsible for the investigation and disposition of complaints against nurses.
[55] On January 30, 2014, CRNBC Inquiry Committee authorized further investigation into the Complaint under s. 33 of the HPA: see Exhibit “C”, Flynn Affidavit.
[56] The Inquiry Committee engaged Eric Wredenhagen, a member of the Law Society of British Columbia, to lead the investigation into the Complaint.
[57] Ms. Leblanc and Ms. West were assisted in the complaint process by Mary Ann Machado, the Professional Advocacy (LEAP) Officer of the Occupational Health & Safety Department of the British Columbia Nurses Union. I understand “LEAP” is an acronym for “Licensing, Education, Advocacy and Practice.”
[58] Mr. Wredenhagen interviewed the Claimant on March 3, 2014 and April 14, 2014, and Ms. Leblanc on May 23, 2014. He also interviewed RCMP Constable Isaac Couture (on June 2, 2014), Dorothy Schiller’s family physician, Dr. Jaco Strydom (on May 21, 2014), Colleen Leblanc’s husband, Sergeant Charles Leblanc, NHA’s Human Resources Manager Northwest Region, Fred Alaggia (on May 7 and 9, 2014), NHA’s Home and Community Care Manager, Mitch Griffith (on May 12, 2014), and NHA’s Regional Manager of Patient Care Quality Office, Yvette Rutherford (on May 9, 2014).
[59] On May 12, 2014, Mr. Wredenhagen contacted Myrna Petho, Manager of Health Information Services and on May 20, 2014, he obtained Dorothy Schiller’s complete health record. On May 20, 2014, Mr. Wredenhagen spoke to Tuuliki Tennant, a social worker, who had worked with Dorothy Schiller when she was a site manager in Revelstoke: Tab 4, CRNBC BOD, pp. 004-03.
[60] Mr. Wredenhagen received submissions and documents from the Claimant on or about January 15, 2014, December 2, 2013, January 17, 2014, February 11, 2014; February 25, 2014, March 5, 2014, March 7, 2014, April 11, 2014, April 16, 2014, May 15, 2014, May 24, 2014, May 31, 2014, July 4, 2014, and July 15, 2014: see Exhibit “D”, Flynn Affidavit, pp. 42-43.
[61] On July 23, 2014, Mr. Wredenhagen produced an investigation report (the “Investigation Report”) of the Complaint as it pertained to Ms. Leblanc: see Exhibit “D”, Flynn Affidavit. He indicated he reviewed the 14 sets of documents provided by the Claimant consisting of 121 pages of information. He further reviewed records provided by Northern Health, Mills Memorial Hospital and the BCNU LEAP program. The Investigation Report appends 55 documents: see Exhibit “B”, Munsie Affidavit.
[62] On September 18, 2014, Eric Wredenhagen sent a letter to the Claimant summarizing Ms. Leblanc’s response to the Complaint: see Claimant’s Affidavit Three.
[63] On October 20, 2014, the Inquiry Committee met and concluded the investigation into the Complaint having determined no further action need be taken under s. 33(6)(a) of the HPA: see Claimant’s Affidavit One, pp. 84-91; Claimant’s Affidavit Three; Exhibit “E”, Flynn Affidavit.
[64] On November 19, 2014, Kathleen Graham, on behalf of the CRNBC, wrote to the Claimant and Colleen Leblanc advising them the Inquiry Committee found the evidence did not substantiate the Claimant’s allegations with respect to Ms. Leblanc’s professional conduct and concluded its investigation: see Claimant’s Affidavit One, pp. 81-83; Claimant’s Affidavit Three; Exhibit “F”, Flynn Affidavit; Exhibit “C”, Munsie Affidavit. Ms. Graham provided Ms. Schiller with a copy of the relevant sections of the HPA and with the Minutes of the Inquiry Committee Meeting on October 30, 2014. Ms. Graham wrote on page 2 of her letter:
The College conducted an extensive investigation into this complaint. The investigation included obtaining medical records, interviews with Dorothy’s physician, an RCMP officer, the Registrant’s employer, as well as obtaining results of an internal investigation. An interview and written submissions from the Registrant were obtained. In addition, there were interviews, emails, voice messages and additional information from you throughout the course of the investigation. You were also provided with a summary of the investigative materials for additional opportunity to provide your comments and consideration by the Inquiry Committee.
On October 20, 2014, the panel of the College’s Inquiry Committee reviewed your complaint, all documents provided by you and Ms. Leblanc, the contents of the investigative file, an investigation report containing the findings of the College’s investigation, and the relevant standards, bylaws and standards of practice. The panel consisted of two registered nurses and a public representative who are appointed by the College’s Board. The Inquiry Committee was satisfied that the investigation conducted by the College was adequate to enable the Committee to dispose of your complaint against Ms. LeBlanc.
[65] In her November 19, 2014 correspondence, Ms. Graham advised the Claimant of her right to seek a review of the decision under s. 50.6 of the HPA before the Health Professions Review Board (the “HPRB”) and set out the review procedure: see Exhibit “F”, Flynn Affidavit; Exhibit “C”, Munsie Affidavit; Tab 8, CRNBC BOD, pp, 008-013.
[66] The Claimant describes the CRNBC report as “clearly contrived and vexatious”: see Claimant’s Affidavit One, p. 60. She asserts the CRNBC report has “innumerable clearly contrived statements. . . [was] cruelly insensitive to a grieving person. . . collusion was obvious. . documentary evidence ignored. . . False references outside the CRNBC jurisdiction”: see Claimant’s Affidavit One, p. 7.
HPRB Review of the CRNBC Investigation
[67] On November 28, 2014, the Claimant applied to the HPRB seeking a review of the CRNBC investigation and disposition of the Complaints against Colleen LeBlanc and Leslie West. To her Application, the Claimant appended a 30 page letter addressed to the HPRB, Terrace Crown Counsel, the Assistant Deputy Attorney General, Joyce de Witt Van-Oosten (as she then was), RCMP Commissioner Robert Paulsen, RCMP Inspector Roland Gosselin, Fifth Estate, Office of the Public Guardian and Trustee, MOH, Registrar and Deputy Registrar, B.C. Nursing Association, and the NHA: see Exhibit “G”, Flynn Affidavit. In her November 28, 2014 correspondence the Claimant made allegations of wrongdoing against Colleen Leblanc [and Sergeant Charles Leblanc], Sergeant Don Murray and Constable Couture, Judy Murray, Shelagh Badge, and Shelagh Badge’s husband.
[68] On December 1, 2014, the HPRB sent a letter to the Claimant, the CRNBC and the two Registrants, Colleen Leblanc and Leslie West, acknowledging the Claimant’s Application and providing information of the review process: see Claimant’s Affidavit Three; Exhibit “G”, Flynn Affidavit; Exhibit “D”, Munsie Affidavit.
[69] On December 17, 2014, the HPRB notified the parties to the review of its intention of combining the Complaints against Colleen Leblanc and Leslie West: see Exhibit “H”, Flynn Affidavit.
[70] The CRNBC was represented throughout the review process by its current legal counsel, Jason Herbert of DLA Piper (Canada) LLP, formerly DLA Piper, formerly Davis LLP: see Exhibits “I”, “J”, and “M”, Flynn Affidavit; Tabs 11 & 12, CRNBC BOD. Ms. Leblanc and Ms. West were represented by Craig Bavis, of the Victory Square Law Firm LLP: see Exhibit “K”, Flynn Affidavit. The Claimant was self-represented.
[71] On February 13, 2015, Jason Herbert delivered to the HPRB five copies of the record for review that CRNBC prepared in respect to the Claimant’s Application: see Exhibits “I”, “J”, “L”, “M”, Flynn Affidavit; Tabs 11 & 12, CRNBC BOD.
[72] On May 19, 2015, the HPRB issued Decision No. 2014-HPA-200(a); 2014-HPA-201(a) denying the Claimant’s request that certain materials be disclosed only to her and not to the other participants in the review: see Exhibit “N”, Flynn Affidavit; Exhibit “E”, Munsie Affidavit.
[73] On June 24, 2015, J. Thomas English, Q.C., chair of the HPRB provided the parties to the review, including the Claimant, with copies of record of the investigation and Inquiry Committee’s disposition. The record for review was 1253 pages and redacted to remove the parties’ personal contact information: see Claimant’s Affidavit Three, HPRB’s Rules of Practice and Procedure for Reviews under the HPA, Tab1, CRNBC BOD. The HPRB directed the review to proceed to the Stage 1 hearing process. Mr. English explained the process and procedures of the Stage 1 hearing and established time lines for filing Statement of Points and submissions. Mr. English also provided the parties with information sheets on various topics, including preparing for a written hearing, statement of points and their use and submitting additional information: see Exhibit “O”, Flynn Affidavit.
[74] On June 26, 2015, the Claimant emailed a 58 page document she referred to as “the Complainant’s Statement of Points” to HPRB, Mr. English, Craig Bavis, Counsel for the Registrants, Colleen Leblanc and Leslie West, and Jason Herbert, Counsel for the CRNBC. In her covering letter the Claimant states:
As well, a statement of claim and related judicial documents are being prepared for filing in an appropriate court registry by this writer’s counsel should there be no resolution to this matter by August 2015. If there is no resolution to all matters both within and outside the jurisdiction of the HPRB then the complainant will have no other option but to file the court documents with what will probably be an expanded style of cause.
Tab 18, CRNBC BOD.
[75] On July 8, 2015, the Claimant emailed an 18 page Supplemental Statement of Points to the HPRB, Counsel for the Registrants and to Counsel for the CRNBC: see Exhibit “P”, Flynn Affidavit; Tab 19, CRNBC BOD. On that day, Pam Bygrave confirmed she had forwarded the Claimant’s supplemental material to the HPRB panel: Tab 18, CRNBC BOD.
[76] On July 9, 2015, the Claimant emailed a three page document she referred to as “the Complainant’s clarification document” to HPRB, Counsel for the Registrants and to Counsel for the CRNBC. She also included a copy of the case Tiffin Estate v. Tiffin, 2004 SKQB 60 (CanLII): see Exhibit “Q”, Flynn Affidavit; Tab 21, CRNBC BOD.
[77] On July 10, 2015, Pam Bygrave, Case Manager for the HPRB, sent the Claimant an email confirming she had provided her supplemental Statement of Points and attachments to the panel as well as her July 9, 2015 clarification document. Ms. Bygrave further advised the Claimant submissions to the HPRB on this review were now closed: see Exhibit “Q”, Flynn Affidavit; Tab 22, CRNBC BOD.
[78] On July 10, 2015, the HPRB released its 13 page Decision No. 2014-HPA-200(b) and 2014-HPA-201(b) finding the investigation of the Complaint was adequate and the dispositions reasonable: see Claimant’s Affidavit One, pp. 92-105; Exhibit “R”, Flynn Affidavit. The HPRB confirmed the Inquiry Committee’s disposition of the Complaints. In its decision, the HPRB set out the materials received and reviewed applicable legislation and case law, the standard of review and the HPRB’s analysis of the law and its application to the evidence before it.
[79] On July 11, 2015, the Claimant sent email correspondence to Terry Lake, Minister of Health, enclosing “documentary evidence that establishes nurse Leblanc violated the Health Professionals Act by becoming executor of a client’s Will.” The Claimant demands an explanation as to why NHA and the CRNBC “have ignored conclusive documentary evidence.” The Claimant asserts:
Virtually all the association’s investigation ignored the documentary evidence and consisted of comments proven to be false or not relevant to the matter under consideration.
[80] The Claimant attaches medical records indicating Ms. Leblanc had provided Dorothy Schiller with some nursing services including administering medication: see Exhibit “E”, Vandale Affidavit.
[81] The Claimant sent correspondence dated July 16, 2015 and July 22, 2015 to the CRNBC about the HPRB’s July 10, 2015 decision: see Exhibit “S”, Flynn Affidavit. The Claimant demanded an explanation as to why the CRNBC ignored the “conclusive evidence” that Ms. Leblanc was Dorothy’s Schiller’s community health nurse when she became the executor of her Will and a beneficiary of her estate: See: Exhibit “F”, Vandale Affidavit. The Claimant sent a copy of these correspondence and evidentiary medical records to the MOH.
[82] The Claimant sent correspondence to DLA Piper on July 29, 2015: see Exhibit “S”, Flynn Affidavit.
[83] On July 30, 2015, Jason Herbert of DLA Piper sent the Claimant a letter responding to her recent correspondence to him and to the CRNBC: see Claimant’s Affidavit Three. Mr. Herbert states:
The intended purpose of your correspondence is not apparent to us.
It appears that you may be seeking to make further submissions at this time in support of your application for review of the Inquiry Committee’s investigation and disposition of your complaint against Marjorie Colleen Leblanc, despite the fact that the Health Professions Review Board (“HPRB”) has already issued a final decision on July 10, 2015 (Decision No. 2014-HPA-200(b); 2014-HPA-201(b)) dismissing your review application and confirming the Inquiry Committee’s original disposition of the complaint.
The HPRB’s July 10, 2015 decision finally and conclusively resolves the issues raised by your application for review. In light of the HPRB’s decision, the CRNBC’s Inquiry Committee is not in a position now to revisit its investigation or disposition of your complaint against Ms. Leblanc, and will do not do so.
Tab 24, CRNBC BOD, p. 024-01.
[84] Mr. Herbert notes the Claimant’s correspondence included submissions “questioning the fairness of the HPRB’s decision-making process and the merits of its July 10, 2015 decision.” Mr. Herbert advised the Claimant of her right to petition the B.C. Supreme Court seeking judicial review of the HPRB’s decision under s. 2 of the Judicial Review Procedure Act (“JRPA”) and ss. 57 and 58 of the Administrative Tribunals Act (“ATA”): see Exhibit “S”, Flynn Affidavit.
[85] On July 31, 2015, the Claimant emailed to the MOH a 72 page document requesting an inquiry pursuant to s.18.1 of the HPA: See Exhibit “G”, Vandale Affidavit: Claimant’s Affidavit One, p. 117.
[86] On August 4, 2015, Mr. English, Chair of the HPRB sent the Claimant a letter refusing to comment on the HPRB’s July 10, 2015 decision or the reasons expressed in it. He states:
. . . The Review Board’s work in reviewing the action of the College is complete. This file remains closed. The Review Board will not reopen the matter.
Tab 25, CRNBC BOD, p. 025-01 & 02.
[87] Mr. English advised the Claimant of her right to seek judicial review of the HPRB’s July 10, 2015 decision under the ATA and JRPA and referred her to the Community Legal Assistance Society’s online guide on the subject of judicial review, legal counsel, and the British Columbia Supreme Court Registry: see Exhibit “T”, Flynn Affidavit.
[88] The Claimant sent Mr. Herbert of DLA Piper a further letter dated August 11, 2015. Mr. Herbert responded to her correspondence on August 13, 2015, reiterating the finality of the HPRB’s July 10, 2015 decision and his comments set out in his July 30, 2015 correspondence. On August 13, 2015, Mr. Herbert again advised the Claimant that if dissatisfied with the HPRB’s decision she had the right to apply to court for judicial review and urged her to obtain legal advice in this regard: see Exhibit “U”, Flynn Affidavit; Tab 26, CRNBC BOD, p. 026-01-02.
[89] On August 17, 2015, Mark MacKinnon, Executive Director of Professional Regulation & Oversight, MOH, responded to the Claimant’s correspondence to Health Minister Terry Lake sent July 11, 16, and 29, 2015. He states:
Thank you for the materials you have provided. I have reviewed them, and note that they relate to the same matters addressed in your previous correspondence of January 15, 2014 and May 6, 2014. I also note you received responses to this previous correspondence, dated January 30, 2014 and June 24, 2014.
I have considered these previous responses, and have concluded that they remain applicable to this matter as expressed in your July and August 2015 correspondence.
[90] Mr. MacKinnon goes on to provide the Claimant with an overview of the health professional regulatory framework in B.C., underscoring the regulatory colleges operate at arm’s length from the government.
[91] On September 1, 2015, the Claimant sent an email to Gillian Yaron, asking she personally forward to Health Minister Terry Lake, the Claimant’s request for a s.18.1 HPA inquiry into “Nurse Leblanc’s becoming the executor of Dorothy Schiller’s estate and received bequests for herself, her husband, and their friends.”
[92] On September 8, 2015, the Claimant sent a letter to Health Minister Terry Lake attaching copies of letters she sent to Ms. Dookie of the CRNBC and its legal counsel Mr. Hebert. She states:
This is a letter from the CRNBC counsel. They have repeatedly refused to explain why they ignored conclusive evidence that appears in my 72 page document sent previously to this Ministry and to them.
Their decision is based entirely on hearsay and on defamatory comments made against this writer. The evidence has been completely ignored.
[93] On October 28, 2015, Mr. MacKinnon sent an email to the Claimant advising her that the HPRB was a specialized tribunal with exclusive jurisdiction under the HPA to review the disposition of a complaint by a college inquiry committee. He confirmed the HPRB completed its review of the CRNBC’s decision on July 10, 2015 and the MOH cannot provide any further assistance on the matter: see Claimant’s Affidavit One, p. 116.
[94] On December 15, 2014, the B.C. College of Social Workers responded to the Claimant’s complaint against Registrant Carole Fell: see Claimant’s Affidavit One, pp. 120-121. The Claimant says NHA social worker Carole Fell enabled Ms. Leblanc’s misconduct by failing to report her knowledge of Dorothy Schiller’s Will and unperfected power of attorney.
[95] By way of correspondence dated July 22, 2016, Mr. English, Q.C., of the HPRB provided the Health Minister Terry Lake, with the HPRB’s annual report for the period January 1, 2015 to December 31, 2015. The Complainant included the cover letter and pages 5, 6, and 25 of the HPRB’s 2015 annual report in her Affidavit Two with the comment:
*Regulatory college decisions are made without complainants seeing the evidence and without being able to respond.
[96] The Claimant’s comments are ambiguous given the HPBR’s 1253 Record of Review.
[97] The Claimant highlighted excerpts from the annual report emphasizing the need for regulatory colleges to act in the public interest and not primarily in the interests of their members. The Claimant comments on page 25 of the HPRB’s 2015 annual report:
The only value of going to the HPRB is to obtain the CRNBC documents.
The HPRB confirms virtually all regulatory college reports since their true authority is minimal.
[98] On July 27, 2016, the Claimant sent an email to Katherine Younker, Clinical Director for the MOH, complaining the CRNBC disclosed, “very private health information about [her] in an obviously defaming fashion without my consent.” The Claimant asked for a written apology.
[99] On September 12, 2016, Mr. MacKinnon responded to the Claimant’s July 27, 2016 correspondence once again distinguishing the respective roles of the MOH and the regulatory colleges.
[100] At some point the Claimant filed a complaint about Dorothy Schiller’s family physician, Dr. Jacobus Strydom, to the College of Physicians and Surgeons (“CPSBC”). Dr. Strydom responded to the complaint on December 14, 2015: see Claimant’s Affidavit Three. The CPSBC investigated and responded to the complaint by letter dated March 6, 2017: see Claimant’s Affidavit One, pp. 118-119.
[101] In her Affidavits One and Three, the Claimant included correspondence to her from Syd Lecky, Inspector, Officer in Charge, Terrace Detachment regarding the Claimant’s request to have documents added to past files with which she had involvement. On the bottom of this correspondence there is a handwritten note, “mailed 2017 -11-14”. The Claimant highlighted Inspector Lecky’s comment:
The Terrace Detachment has several files related to the events after the passing of your sister and the subsequent complaints which followed. All these files were concluded at that time.
[102] The Claimant has endorsed the face of the letter with the following comment:
*I was being tormented by Colleen Leblanc and her friends who made many false police complaints.
[103] On January 26, 2018, the Claimant sent the HPRB an electronic request to reopen her complaint against Colleen Leblanc and Leslie West, and “consider 510 pages of additional information” she had submitted: see Claimant’s Affidavit Two.
[104] On, January 29, 2018, Mr. English of the HPRB sent the Claimant a letter concerning her electronic correspondence of January 26, 2018. Mr. English, Q.C. refused the Claimant’s request to reopen the HPRB’s review of Inquiry Committee’s investigation of the complaint on the basis the HPRB’s official function as the trier of
facts and the law was complete and final. Mr. English stated:
Having reviewed the material you submitted in support of your request, I do not find that there are any circumstances that require the file be reopened as a matter of fairness or integrity of process. Your request is denied.
See: Claimant’s Affidavit Three.
[105] Mr. English refers the Claimant to his letter of August 4, 2015, denying her July 31, 2015 request to reopen the hearing of the matter and advising she had 60 days from the date of the decision to file an Application for judicial review under the Judicial Review Procedure Act.
[106] The Claimant has endorsed Mr. English’s January 29, 2018 correspondence as follows:
Mr. English refused to re-open this matter despite documentary evidence that impeaches the report.
*The HPRB cannot address clinical decisions but they should address fairness.
*I was denied evidence until after the CRNBC report was created. My evidence impeaches the CRNBC report.
See: Claimant’s Affidavit Two.
[107] On February 16, 2018, the Claimant emailed a 72 page document to Karen Younker, Clinical Director of the MOH, asking again for an inquiry under s.18.1 of the HPA.
[108] On March 9, 2018, Sue Lajoie, Director General of Privacy Act Investigations, wrote to the Claimant in response to the Claimant’s September 2, 2016 complaint filed against the RCMP under the Privacy Act alleging Constable Couture disclosed her personal information to the CRNBC. I understand the impugned information was the October 27, 2013 Emergency Room Record. The Director General investigated the complaint and concluded it was not well-founded.
Summary of Allegations
[109] In her affidavits and submissions, the Claimant sets out the multiple ways the NHA and CRNBC investigations and the HPRB review process were flawed, which included:
a. the decision-makers acted without jurisdiction or beyond their jurisdiction with respect to: (a) issues concerning Dorothy Schiller’s estate; (b) ignoring their regulations; (c) falsely claiming the Claimant and her sister were estranged; and (d) disclosing the Mills Memorial Hospital Emergency October 27, 2013 record containing the nurse’s psychiatric assessment of the Claimant;
b. the decision-maker’s-breached their duty to procedural fairness to the Claimant, including (a) denying the Claimant the CRNBC record while providing it to the registrant; (b) closing submissions prematurely; (c) withholding the Claimant’s correspondence to the Inquiry Committee;(d) failing to obtain expert evidence as to Dorothy Schiller’s mental competence at the material time; (e) failing to obtain expert evidence with respect to Ms. Leblanc “idea planting” the Claimant was delusional; and (f) failing to interview key witnesses, including, the Talstra law office staff, TD financial consultant, Terry Crane and realtor, Darren Beaulieu;
c. the decision-makers were biased as demonstrated by their ignoring Ms. Leblanc’s unethical conduct, including: (a) lying in the most “reprehensible fashion” to the CRNBC, the RCMP, and others; (b) theft and misappropriating funds and assets from Dorothy Schiller’s estate; (c) breaching trust to a vulnerable patient; (d) attempting to convince the Claimant’s elderly senile father to write a negative statement about the Claimant. In this regard, the decision-makers ignored the RCMP’s criminal investigation of Ms. Leblanc was under review and Ms. Leblanc was being sued civilly;
d. the decision-makers have demonstrated systemic bias – the NHA and CRNBC toward the registrant and the HPRB toward the NHA and CRNBC;
e. one of the decision-makers for the CRNBC, namely, Ms. Groenwold, acted in a conflict of interest;
f. the decision-makers acted contrary to law by accepting into evidence irrelevant and highly prejudicial evidence, such as the Mills Memorial Hospital Emergency Room Record of October 27, 2013 (setting out a nurse’s psychiatric assessment of the Claimant);
g. the decision-makers accepted false or inaccurate evidence even where it was contradicted by trustworthy documentary evidence. An example of this error in law included evidence from Ms. Leblanc that Dorothy Schiller and the Claimant were estranged;
h. the decision-makers ignored NHA medical records showing Ms. Leblanc provided nursing care to Dorothy Schiller as an employee of the NHA;
i. the decision-makers accepted without reliable evidence or corroboration Ms. Leblanc’s assertion Dorothy Schiller did not want her family apprised of her medical condition;
j. the decision-makers accepted Ms. Leblanc’s uncorroborated evidence on contested issues; and
k. the decision-makers ignored evidence of NHA’s negligence, which included: (a) NHA illegally permitted Ms. Leblanc to transfer Dorothy Schiller’s body from the hospital after her death to the funeral home; (b) NHA failing to list Dorothy Schiller’s family as the persons to contact on a terminal record; and (c) NHA failed to report Ms. Leblanc’s misconduct as required under the HPA.
[110] The Claimant asserts Ms. Leblanc, CRNBC, NHA, HPRB, and MOH all acted in bad faith: see Claimant’s Affidavit Three, p. 5.
Provincial Court Claim 19230
[111] On September 29, 2015, the Claimant filed a Notice of Claim (“Claim 19230”) in the Provincial Court of B.C. (Small Claims) Terrace Registry File 19230, against Marjorie Colleen Leblanc. The Claimant sought damages in the amount of $55,000 for conversion, costs, malpractice, and mental anguish. She abandoned any amount over $25,000 to bring it within the monetary jurisdiction of this court.
[112] The Claimant amended Claim 19230 on July 28, 2016: see Exhibits “W” &“X”, Flynn Affidavit; Exhibit “F”, Munsie Affidavit.
[113] On August 30, 2015, Ms. Leblanc filed a Reply to Claim 19230: see Claimant’s Affidavit Three; Exhibit “Y”, Flynn Affidavit; Exhibits “Y”, Flynn Affidavit; Exhibit “H”, Munsie Affidavit.
[114] On October 11, 2016, the Claimant filed a further amendment to Claim 19230: see Exhibits “Z””, Flynn Affidavit; Exhibit “I”, Munsie Affidavit.
[115] On February 17, 2017, the Claimant received a letter from Karen Leung, Legal Officer, for the Office of the Chief Judge. The Claimant redacted all but one paragraph of this correspondence as “not relevant to this matter”. The unredacted paragraph states:
. . . It is understood that if the parties do not agree with the judge’s assessment of the strengths and weakness, it remains open to them to proceed to trial. If the judge concludes that a settlement is not possible, the judge will assist the parties in identifying relevant issues, and in facilitating the exchange of relevant information, so as to promote a more focused and fully informed trial when it occurs before another judge of the Court. If the judge determines neither of these goals can be usefully pursued with the parties for any reason, the judge may conclude the settlement conference and direct the parties’ to the trial list. If the matter proceeds to a full trial, the settlement conference judge will not be the presiding judge at trial. Against this background, the role of the judge in a settlement conference is significantly different than that of a judge presiding at a trial.
See Claimant’s Affidavit Two, p. 30.
[116] On March 15, 2017, the Claimant filed a further amendment to Claim 19230, claiming damages against Ms. Leblanc in the amount of $327,527.94, which the Claimant reduced to $25,000 to keep Claim 19230 within the monetary jurisdiction of this Court: see Exhibits “AA”, Flynn Affidavit; Exhibit “J”, Munsie Affidavit.
[117] On April 13, 2017, Ms. Leblanc filed an Application to a Judge to dismiss Claim 19230 on the basis it:
a. failed to demonstrate any viable cause of action;
b. constituted an abuse of process with respect to allegations of professional misconduct and theft;
c. lacked jurisdiction with respect to the administration and execution of Dorothy Schiller’s estate;
d. lack of jurisdiction with respect to allegations of slander;
e. had no prospect of success with respect to allegations of intentional infliction of mental suffering; and
f. it disclosed no cause of action with respect to allegation against the Ms. Leblanc for actions of by other parties.
See Exhibits “BB”, Flynn Affidavit; Exhibit “K”, Munsie Affidavit.
[118] Ms. LeBlanc’s Application to Dismiss Claim 19230 came on for hearing before Judge Wright on June 20, 2018, in Terrace Provincial Court. At that time Judge Wright granted the Claimant’s claim to reopen submissions and ultimately ordered dismissed “each and every claim of the Claimant set out in every one of her notices of claim including but not limited to the last one filed, namely March 15, 2017.” The Court struck any future court dates set in Claim 19230: see Exhibit “A”, Warner Affidavit; Exhibit “L”, Munsie Affidavit.
Allegations of Liability
[119] The Claimant states in Affidavit One (at p. 25):
I believe that (Marjorie) Colleen Leblanc, a registered nurse giving care to my Sister, who was in a terminal condition, engaged in breach of trust, professional and financial misconduct, exploitation of a terminal person, used undue influence with conspiracy to deprive, engaged in theft, malpractice, negligence, cause me intentional mental suffering during a sensitive time and has property wrongfully taken.
[120] Much of the Claimant’s affidavits and submissions are devoted to Ms. Leblanc’s alleged misconduct. The Claimant says Ms. Leblanc is “central to about 14 files.” The Claimant claims the Defendants supported Ms. Leblanc’s misconduct. She explains:
The domino effect of misconduct started primarily with nurse Leblanc, but also included other employees. First nurse Leblanc, during her employment with NHA and with intense smugness, became executor of my Sister’s estate and engaged in many forms of misconduct. Then NHA provided false information which assisted in creating the false CRNBC report, which generated the false HPRB report, which is then used to deny my right to damages and a right to discipline of the nurses. The vile misconduct is intensified due to the source. They are health care professionals given the responsibility of serving and protecting the public.
Claimant’s Affidavit Three, Particularization Statement, p. 2, paras.5 and 11.
[121] As to the Claim against the Defendants, the Claimant asserts the Defendants owed her a legal duty of care in the investigation and disposition of the Complaint. They failed in this duty by: (a) acting in bad faith; (b) collusion; (c) deception; (d) frustrating and perverting the proper course of justice; (e) intentional misconduct; (f) intentional infliction of mental suffering; (g) malice; (h) negligence; (i) neglect of duty; (j) obstruction of justice; (k) procedural unfairness (intentional); (l) profound insensitivity; (m) rampant lying; and (n) willful concealment: see Claimant’s Affidavit Three, Particularization Document, p. 1 and Statement of Facts. As a result of the Defendants’ “appalling. . . despicable, unprofessional [and] unconscionable” conduct, the Claimant suffered compensable damages for “intractable mental suffering”, anguish, and humiliation. She asserts the Defendant’s liability in her Particularization Document as follows:
a. The Defendants cruelling using my hospital care that resulted from the misconduct of nurse Leblanc that implies criminal misconduct on my part.
b. They were enablers to nurse Leblanc’s misconduct such as her becoming executor of my Sister’s will, gaining bequests for herself, her husband and her friends, falsely trying to have me arrested on three different offences, writing 44 pages of hurtful and false comments, etc. Had there had been effective policies, monitoring and discipline, this misconduct, with the illness that resulted, would have been prevented or mitigated.
The Defendants’ blocked right to damages and other rights.
Examples:
a. Interfering with a legitimate claim of damages against nurse Colleen Leblanc by writing reports that directly conflict with documentary evidence;
b. Trying to avoid liability for their misconduct by writing false reports or providing false information so that a false report will be written;
c. Blocked and blocking right to have discipline against nurse Leblanc and nurse West;
d. Procedures clearly contrived with a lack of transparency. I was denied access to documents so that I could fairly respond and fairly present evidence. There is no Appeal to a CRNBC decision;
e. Conflict of interest obvious. The lawyer who has conduct of this file in regards to my re-open request in regards to the nursing registration issues is also the lawyer giving direction in this litigation matter. This lawyer has also refused my multiple requests to review the reports going to the Inquiry Committee for inaccuracies.
Depriving me of my right to damages for property wrongfully taken under the Hospital Act and related Acts, thus denying my broader legal rights.
The misconduct was flagrant and outrageous. It was calculated to produce harm. The result was a foreseeable illness and loss of other forms of damages.
[122] The Claimant submits that NHA is directly liable for its misconduct and vicariously liable for that of its employees, which include nurses Marjorie Colleen Leblanc, Leslie West, Mary Ann Machado, Nicole Ethy, and human resources manager, Fred Allagia, and social worker Carole Fell.
[123] As to the MOH, I understand the Claimant asserts it unduly fettered its discretion by refusing to conduct an inquiry under ss. 18.1 or 20.3 of the HPA. The Claimant seeks damages for MOH’s direct and vicarious liability by failing to act: see Claimant’s Affidavit Three, Particularization Document. The Claimant asserts the MOH failed to investigate the serious issue of CRNBC and HPRB colluding to:
deceive a grieving family of truth and justice by repeated and/or deceitful practices such as falsely writing that the nurse only acted as a friend and not as an employee of northern health, thereby claiming there was no discipline or damages warranted.
See: Claimant’s Affidavit Three, Statement of Facts, p. 1
Disposition on Claimant’s Applications to a Judge
[124] There are still issues raised in the Claimant’s Applications to a Judge filed July 24, 2018 and September 27, 2018 that have yet to be addressed.
The Claim be moved to another registry.
[125] I understand the Claimant is no longer seeking Court File 19711 be transferred to Robson Square or some other registry at this time. I will adjourn the Claimant’s Application in this regard and give her leave to revive in the future provided she does so in a timely manner. Accordingly, the Claimant’s Application to transfer Court File 19711 to another registry is adjourned generally.
The hearing of the Defendants’ Applications be in writing
[126] I expect the hearing of the Defendant’s Applications to dismiss will be based primarily on the materials which are already before the Court. Nevertheless, I can foresee contested facts may involve cross-examination on the written materials. Having reviewed the materials filed, I am of the view the hearing of the Defendants’ Applications, currently scheduled for February 25, 2019, will be dealt with expeditiously with both written and oral evidence and argument submitted before the Court on the hearing date.
[127] The Claimant appears to be seeking accommodation on the basis of a number of doctor’s notes. In her affidavits, the Claimant produced doctor’s notes from Dr. Brett Jamieson of the Trent Hills Family Health Team, 52 George Street, Warkworth, Ontario, and from Dr. R. N. Carlyle, of the Northumberland Hills Hospital, 1000 DePalma Drive, Cobourg, Ontario. She has included the following correspondence in her affidavits:
a. A letter from Dr. Brett Alexander Jamieson dated January 3, 2018, addressed, “To whom it may concern” regarding a “request for a psychological assessment”. In his correspondence, Dr. Jamieson states:
Caroline Schiller is a patient under my care. The topic of social pathology regarding Nurse Leblanc has been discussed. It is my opinion that the written words of nurse Leblanc as shown to me and her actions as described to me by Caroline may warrant assessment by a practitioner skilled in this area of psychology. Caroline has verbalized that she is fearful of Nurse Leblanc, her associates, and of returning to British Columbia.
b. A letter from Dr. Brett Alexander Jamieson dated July 25, 2018, addressed, “To whom it may concern” regarding the Claimant. In his correspondence, Dr. Jamieson states:
Caroline Schiller is a patient under my care. The cumulative effects of the ongoing matters has created a need for a period of rest in order that she may grieve and try and resolve the many emotional issues that she believes were created due to her perception of the various forms of misconduct.
c. A letter from Dr. Brett Alexander Jamieson dated June 1, 2018, addressed, “To whom it may concern” regarding the Claimant. In his correspondence, Dr. Jamieson states:
The above named is a patient under my care. Issuing a requirement that Caroline return to BC to attend hearings and/or a trial in person would be detrimental to her mental health status. Having the matters heard in writing or some other format would prevent an escalation of Caroline’s distress and would seem an appropriate method for all parties given the complexities of the issues and the location of the persons involved.
d. A letter from Dr. Brett Alexander Jamieson dated June 28, 2017, addressed, “To whom it may concern” regarding the Claimant. In his correspondence, Dr. Jamieson states:
The above named is a patient under my care. Issuing a requirement that Caroline return to BC to attend hearings and/or a trial in person would be detrimental to her mental health recovery. Having the matters heard in writing would prevent an escalation of Caroline’s distress and would seem an appropriate method for all parties given the complexities of the issues and the location of the persons involved.
e. A letter from Dr. Brett Alexander Jamieson dated April 26, 2017, addressed, “To whom it may concern” regarding the Claimant. In his correspondence, Dr. Jamieson states:
The above named is a patient under my care. I am aware of the litigation and ongoing nursing licensure issues. While it is understood that there are procedures to follow the long delays are increasing Caroline’s mental suffering and interfering with the grieving process. As well, since the comments of the Defendant has caused Caroline distress, it would be unwise for her to have to read such comments again. Accordingly anything that could be done to expedite the progression of this matter to a trial would be a benefit to Caroline’s mental health. As well having the evidence heard by the judge in writing as opposed to during the trial would seem appropriate to prevent an unnecessary escalation of Caroline’s mental suffering.
f. A handwritten note from a Dr. R. N. Caryle in the employ of Northumberland Hills Hospital dated March 2, 2017, which references the Claimant and states:
Caroline Schiller. . . is a client attending our clinic. I am aware of the nursing regulatory body related to her sister’s passing. This is causing her severe distress.
g. A letter from Dr. Brett Alexander Jamieson dated March 1, 2017, addressed, “To whom it may concern” regarding the Claimant. In his correspondence, Dr. Jamieson states:
Caroline Schiller is a patient under my care. The cumulative burden of the Defendants written statements and related actions is causing her mental suffering. Caroline has not been delusional. Prior to the issues with the Defendant, no mental health impairments were observed by me.
h. A handwritten note from a Dr. R. N. Caryle of Northumberland Hills Hospital dated February 28, 2017, referencing the Claimant which states:
Mrs. Schiller has been attending our clinic related to [the] passing of her sister, which is causing stress related to issues.
i. A letter from Dr. Brett Alexander Jamieson dated November 3, 2015, addressed, “To whom it may concern” regarding the Claimant. In his correspondence, Dr. Jamieson states:
This person is under my care for medical reasons. I am aware of the ongoing issues regarding the death of her sister and the problems settling the estate. The cumulative burden of the emotional distress and the severe anticipatory anxiety she feels about attending any further legal proceedings “in person” leads me to request, on compassionate and medical grounds, that further proceedings be undertaken via written correspondence or some other format that would allow her to stay at home and not attend in person.
j. A letter from Dr. Allison Lainey for Dr. Jamieson dated April 21, 2015, addressed, “To whom it may concern” regarding the Claimant. In this correspondence, Dr. Lainey states:
The above patient relates that estate matters have created an overwhelming situation for the past year, and may have precluded the ability to complete tasks in a timely manner.
k. A handwritten note from a Dr. R. N. Caryle in the employ of Northumberland Hills Hospital dated November 6, 2015, which states:
Caroline has an illness that makes it difficult to travel. If possible it is better that the hearing should be in writing.
l. A handwritten note from a Dr. R. N. Caryle of Northumberland Hills Hospital dated November 6, 2015, which states:
Caroline has an illness that makes it difficult to travel. If possible can this be arranged near home or in writing.
m. A handwritten note from a Dr. R. N. Caryle in the employ of Northumberland Hills Hospital dated May 25, 2015, which references the Claimant and states:
Caroline is grieving her sister’s death and is very upset with conflict over her estate. Very anxious and depressed.
See Claimant’s Affidavits One, Two and Three.
[128] If the Claimant requires some form of medical accommodation which precludes her from attending court in person, then the court will require medical evidence from a properly qualified expert. The Claimant has already provided medical opinions from two physicians. This means the she must now provide the court and the Defendants with a copy of the physician’s curriculum vitae so the court can assess whether to qualify the witnesses as experts capable of giving opinion evidence in their area of specialization. Once qualified, the expert may be required to attend court, either in person, or with permission, via video link, to respond to questions from the court and the parties.
[129] If the Claimant wishes to tender expert evidence, I encourage her to familiarize herself with the Rule 10 of the Small Claims Rules.
[130] In sum, I am denying the Claimant’s request the hearing of the Defendants’ Applications to Dismiss the claim be in writing. The Claimant is free to reapply for medical accommodation provided her Application is supported by a court qualified expert.
Disclosure of Documents
[131] The Claimant seeks an order the Defendants disclose to her a number of documents relating to Dorothy Schiller’s employment, disability, hospital care, and the CRNBC Inquiry Committee. I have already ordered the Claimant provide particulars as to the relevance of these documents to this Claim. I will not decide this issue until the Claimant has had an opportunity to provide those particulars. Accordingly, the Court orders the Claimant’s Application for disclosure of these documents is adjourned to a date to be fixed by the parties after the Claimant has provided the ordered particulars.
There only be one representative per Defendant in court appearances
[132] The Defendants are statutory bodies. The issues raised in the pleadings engage many different persons in their employ. I can foresee counsel having to take instructions from different people on different issues. Although I recognize it may be daunting for a self-represented Claimant to face off against such a large cast, I am not prepared to order the Defendants be limited to one representative in court appearances. If the numbers become unreasonable or unwieldly, I will revisit the issue. Accordingly, the Court orders the Claimant’s Application the Defendants are limited to one representative each in any court appearance is dismissed.
Non-Party Records
[133] The Claimant asks the Court order the RCMP and/or the TD Bank to release TD bank surveillance photos under Police File F106276 or any newly assigned number.
[134] This Court has jurisdiction to compel the production of non-party records on proper notice, subject to claims of privilege: Bain v. Rodrigue, 2004 BCPC 259 (CanLII), The Claimant should file a separate Application for non-party records clearly identifying the records sought and serve the record holder (the RCMP or the TD Bank) with the Application. Accordingly, the Claimant’s current Application for non-party records is dismissed.
Summons
[135] The Claimant seeks an order that “summons be issued for the persons and offences” detailed in Affidavit Three. The Claimant can apply to the Registrar for Summons. Rule 9, of the Small claims Rules state:
RULE 9 – WITNESSES
How a witness is told to attend court
(1) To summon a witness to court, a party must
(a) complete a summons to witness (Form 8), following the instructions on the form, and
(b) serve a copy of the summons on the witness at least 7 days before the date the witness is required to attend.
Travelling expenses
(2) At the time the summons is served, the party summoning the witness must offer the witness reasonable estimated travelling expenses.
Summons not always necessary
(3) If a witness will attend court voluntarily, a summons is not necessary.
What a witness served with a summons must do
(4) A person who is served with a summons to witness must
(a) attend court at the time and place stated on the summons, and
(b) bring to court any records and other things required by the summons.
[136] This Court orders the Claimant’s Application for summons be issued for the persons and offences detailed in Affidavit Three dismissed. The Claimant can make her Application to the registrar in compliance with Rule 9.
Laying a Private Information
[137] A private prosecution engages ss. 504 and 507.1 of the Criminal Code. It is not a process that is accessible through the Small Claims Court.
Dismiss the Defendants’ Applications to dismiss
[138] The Claimant seeks an order dismissing Defendants’ Applications to dismiss this Claim as being an abuse of the process. The Claimant can advance that argument at the hearing of the Defendant’s Applications, currently scheduled to proceed in the Terrace Provincial Court on February 25, 2019. Accordingly, this Court denies the Claimant’s Application to dismiss the Defendants’ Applications to dismiss as an abuse of process.
Fixing a date for trial and a pre-trial conference
[139] Having reviewed the entire court file, I do not consider it appropriate to set down the matter for trial or fix a pre-trial conference date prior to a fulsome hearing on the Defendants’ Applications to dismiss the Claim. The Court cannot expect counsel to put forward a reasonable estimate of time for the trial at this time given the number and complexities of the outstanding issues.
____________________________
Judge J.T. Doulis
Provincial Court of British Columbia