Matthew Wilton

The defendant lawyer brought a motion to strike out the plaintiffs' statement of claim alleging professional negligence in his representation of the plaintiff dentist during a regulatory discipline proceeding.

The defendant argued the claim was incapable of proof due to the absolute prohibition on admitting discipline proceeding records in civil actions under s. 36(3) of the Regulated Health Professions Act.

The court dismissed the motion, finding the defendant required leave to bring the motion due to delay and having taken a fresh step by filing a statement of defence, and denied leave.

The court further noted that even if leave were granted, the claim would not be struck as the plaintiffs might prove their case using other admissible evidence, such as patient records and admissions in the pleadings.

Following a successful discovery motion where the plaintiff obtained an order for answers to undertakings and refusals, the plaintiff sought partial indemnity costs of $26,964.65.

The defendant argued the amount was excessive and suggested $5,000.

The court found the plaintiff was largely successful and the issues were complex, justifying senior counsel.

However, the court reduced the requested amount by 50% due to the use of two senior lawyers, a late adjournment caused by the plaintiff, and time spent on general discovery matters.

The court fixed costs at $13,500 inclusive of HST and disbursements.

The plaintiff in a constructive dismissal action brought a motion to compel answers to discovery questions and for non-party production of a workplace investigation file.

The defendant hospital refused to disclose the identities of medical residents interviewed during the investigation, claiming common-law privilege under the Wigmore test.

The court found that while the communications originated in confidence, the public interest in the correct disposal of the litigation outweighed the interest in protecting the identities, as the case involved a routine workplace dispute rather than patient safety or physician credentials.

The court ordered disclosure of the identities and production of the unredacted investigation file.

The plaintiff brought a motion under Rule 31.03(2)(a) to compel the defendant hospital to produce an independent contractor physician as its representative for examination for discovery.

The plaintiff argued the physician was the primary actor in his constructive dismissal claim.

The court dismissed the motion, finding that while the definition of 'officer, director, or employee' can be expanded in limited circumstances, the hospital's proposed representative (the Director of Medical Affairs) had sufficient knowledge of the internal matters at issue, including the hospital's response to complaints, workplace investigations, and a Ministry audit.