Stoiantsis et al. v. Spirou et al.

[Indexed as: Stoiantsis v. Spirou]

91 O.R. (3d) 184

Court of Appeal for Ontario,

Rosenberg, Gillese and Epstein JJ.A.

July 11, 2008

Appeal -- Final or interlocutory order -- Parties in medical malpractice action agreeing to trial of factual threshold issue -- Order determining factual issue being final and not interlocutory as it disposed of issue raised by way of defence and thereby deprived defendants of substantive right that could be determinative of action -- Appeal lying to Court of Appeal.

In a medical malpractice action, the parties agreed to a trial of the threshold issue of whether or not one of the defendant doctors had advised the plaintiff to take a particular drug. The issue was decided in favour of the plaintiff. The defendants appealed to the Court of Appeal. The plaintiff moved to quash the appeal on the ground that the order appealed from was interlocutory, so that the appeal lay to the Divisional Court. [page185]

Held, the motion should be dismissed.

Even where an order does not finally dispose of the rights of the parties to the litigation, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and thereby deprives the defendant of a substantive right which could be determinative of the entire action. The parties in this case recognized that the defence that the doctors recommended the drug in question, if successful, would have been a complete answer to the claim. The order appealed from deprived the defendants of a substantive right that could be determinative of the action.

MOTION to quash an appeal.

Cases referred to Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, [1993] O.J. No. 972, 64 O.A.C. 85, 45 M.V.R. (2d) 319, 40 A.C.W.S. (3d) 1031 (C.A.), apld Other cases referred to Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380, [1932] 4 D.L.R. 580 (C.A.); S. (R.) v. H. (R.) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152, [2000] O.J. No. 4843, 195 D.L.R. (4th) 345, 139 O.A.C. 378, 7 C.P.C. (5th) 32, 19 R.F.L. (5th) 383, 101 A.C.W.S. (3d) 1093 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b) [as am.], 19(1)(b) [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1)

Kirk F. Stevens, for appellants/responding parties. Alan L. Rachlin, for respondents/moving parties.

The judgment of the court was delivered by

EPSTEIN J.A.: --

I. Overview

[1] This motion to quash the defendants' appeal to this court raises the issue of whether an order that determines a preliminary factual matter relevant to a defendant's liability is final or interlocutory.

[2] The plaintiffs in this medical malpractice action are seeking damages arising from the defendants' treatment of the plaintiff, Christos Stoiantsis, for a heart condition. The parties agreed to a trial of an issue for the purpose of determining the threshold question of whether one of the defendants, Dr. Christos Spirou, advised Mr. Stoiantsis to take the drug Coumadin.

[3] Following a nine-day hearing, Pomerance J. decided the issue in the plaintiffs' favour. The defendants appealed the order to this court. In response, the plaintiffs move to quash the appeal on the ground that the order appealed from is interlocutory and [page186] that any appeal properly lies to the Divisional Court, with leave, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b) and 19(1)(b).

[4] For the reasons that follow, I conclude that the order under appeal is final and that the motion to quash must be dismissed.

II. The History

A. Factual background

[5] Mr. Stoiantsis consulted Drs. Christos Spirou and Rajendra Chetty, his family doctor and cardiologist respectively, after suffering several episodes of atrial fibrillation. One of these episodes occurred in mid-February 1998 in Arizona where the family wintered. A physician in Arizona prescribed Coumadin, but after a single dose, Mr. Stoiantsis stopped taking it because a friend persuaded him that it was "rat poison".

[6] After returning to Ontario in April 1998, Mr. Stoiantsis began to see Dr. Spirou. At this appointment, Mrs. Stoiantsis informed Dr. Spirou that Mr. Stoiantsis had been counselled to take Coumadin but that he had refused to take it because he had been told that it was rat poison.

[7] After this appointment, Dr. Spirou referred Mr. Stoiantsis to Dr. Chetty. Mr. Stoiantsis met with Dr. Chetty on July 28, 1998. In a report to Dr. Spirou dated September 8, 1998, Dr. Chetty suggests that Mr. Stoiantsis could be left on another medication, but be put on Coumadin in the future.

[8] Mr. Stoiantsis saw Dr. Spirou several times throughout the summer and early fall of 1998. In his clinical records dated September 18, 1998, Dr. Spirou notes that he spent a great deal of time discussing Coumadin with Mr. Stoiantsis and that he advised Mr. Stoiantsis that Coumadin was appropriate given his risk factors. Mr. Stoiantsis is adamant that Dr. Spirou never discussed Coumadin at this meeting or otherwise.

[9] In November 1998, Mr. Stoiantsis returned to Arizona; shortly thereafter he suffered a debilitating stroke. The plaintiffs then brought a claim against the doctors.

B. Procedural history

[10] In their statement of claim, the plaintiffs allege that Drs. Spirou and Chetty were negligent in failing to advise Mr. Stoiantsis to take Coumadin.

[11] In their joint statement of defence, the doctors plead, among other things, that Dr. Spirou met the standard of care by counselling Mr. Stoiantsis to take Coumadin. According to the doctors' pleadings, the stroke Mr. Stoiantsis suffered was not [page187] due to their conduct but to the fact that Mr. Stoiantsis steadfastly refused to take Coumadin. In support of their position, they refer to Dr. Spirou's September 18, 1998 clinical notes, which contain references to his having counselled Mr. Stoiantsis to take Coumadin.

[12] On March 13, 2003, the plaintiffs moved before a master for an order bifurcating the trial: the plaintiffs proposed to separate the issue of the standard of care from those of causation and damages. By order dated April 17, 2003, the master ruled that the action be bifurcated and that the issue of standard of care be tried first.

[13] The defendants appealed the order. Rather than proceed with the appeal, the parties entered into minutes of settlement, dated November 7, 2003, in which they agreed to a trial of the threshold issues of what recommendations Dr. Spirou made to Mr. Stoiantsis regarding the use of Coumadin and whether Dr. Spirou's notes had been altered.

[14] According to the plaintiffs, the question of whether Dr. Spirou had recommended that Mr. Stoiantsis take Coumadin was a threshold issue that could be determined expeditiously, and one that would bring the lawsuit to an end if the finding were made that he had done so. The parties further agreed, therefore, that if the court found that Dr. Spirou had counselled Mr. Stoiantsis to take Coumadin and that his notes were accurate, the action would be dismissed. If the court found that Dr. Spirou had not counselled Mr. Stoiantsis to take Coumadin (meaning, that he had altered his notes), the action would proceed to trial on all remaining issues.

[15] After a nine-day trial of an issue, the trial judge, in very full reasons, found as follows:

(a) Dr. Spirou did not at any time recommend that Mr. Stoiantsis take Coumadin;

(b) Dr. Spirou's notes of September 18, 1998 (which referred to Coumadin being recommended) were not accurate.

[16] It is from this order that the defendants have appealed, and it is in response to this appeal that the plaintiffs have brought their motion to quash.

III. Parties' Positions

[17] The plaintiffs' argument that the order under appeal is interlocutory is grounded on the fact that the trial judge's determination of the Coumadin issue does not finally dispose of the defendants' claim. The order merely makes findings of fact, albeit [page188] important findings, upon which a trial on the legal issues (breach of the standard of care, causation and damages) can proceed. According to the plaintiffs, since the merits of the case remain to be determined, the order is interlocutory.

[18] The defendants submit that the order is final for the simple reason that it finally disposes of a defence. They argue that a defence is a factual situation that, if proven, entitles a defendant to judgment. According to the defendants, the facts, the law and the minutes of settlement all support the conclusion that the issue determined resolved whether a potential defence was available; the order under appeal is therefore final.

IV. Analysis

[19] The test of whether an order is final or interlocutory is set forth in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380 (C.A.), at p. 678 O.R.:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral.

[20] Hendrickson has been followed by many decisions dealing with the endlessly debated issue of what constitutes a final versus interlocutory order. A decision that is often cited is Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322, [1993] O.J. No. 972 (C.A.). In Ball, the defendant moved under rule 21.01(1)(a) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] for a determination before trial of a question of law raised by the pleadings relating to the application of a limitation period provision. The motions court judge decided the question against the defendant. This court held that the judge's order was final, reasoning, at p. 324 O.R.:

The effect of the order of Daudlin J. was to preclude the defendant's entitlement to raise thereafter, as a defence to this action, the plaintiff's failure to sue within the limitation period prescribed by the Highway Traffic Act. While that order did not finally dispose of the rights of the parties to the litigation, it did, subject to appeal therefrom, finally dispose of the issue raised by that defence, and thereby deprived the defendant of a substantive right which could be determinative of the entire action. (Emphasis added)

[21] Ball extends the reasoning in Hendrickson and establishes that even where an order does not finally dispose of the rights of the parties to the litigation, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and "thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action". [page189]

[22] The question then is whether the order in issue deprives the defendants of a substantive right that could be determinative of the action.

[23] In my view, that question should be answered in the affirmative.

[24] The procedural history and the minutes of settlement both demonstrate that the purpose of dealing with the so-called threshold matter of whether Dr. Spirou advised Mr. Stoiantsis to take Coumadin was to facilitate the early resolution of an issue that was of significant importance to the outcome of the action. The parties recognized that the defence that the doctors recommended Coumadin, if successful, would have been a complete answer to the claim.

[25] Ball is indistinguishable from the present case. Subject to appeal, the order disposed of an issue raised by the defendants that deprived them of a substantive right that could have been determinative of the entire action

[26] Further support for this conclusion is found by resort to the doctrine of res judicata. To determine whether an order is final or interlocutory, courts often consider whether the issue can be said to be res judicata: see S. (R.) v. H. (R.) (2000), 2000 17038 (ON CA), 52 O.R. (3d) 152, [2000] O.J. No. 4843 (C.A.), at paras. 19-21. Even though some orders only partially resolve issues between the parties, if the resolution of the particular question would give rise to an argument of res judicata, then the order is final despite other issues remaining outstanding. Had Pomerance J. struck out the relevant paragraphs or portions of paragraphs of the joint statement of defence, it would have been clear that the defence was res judicata. Although that was not done, her reasons show the doctrine of res judicata applies to the issues she determined.

[27] The manner in which the parties proceeded with this action has made things more complex, but this complexity does not alter the simplicity of this determination -- the order under appeal deprives the defendants of a defence. It is therefore final, and this court has jurisdiction to hear the appeal.

V. Disposition

[28] For these reasons, I would dismiss the motion to quash the appeal. The defendants are entitled to their agreed-upon costs in the amount of $2,300, including disbursements and Goods and Services Tax.

Motion dismissed.