G. M. v. Alter, 2005 CanLII 8711 (ON SCDC)

COURT FILE NO.: 591/04

DATE: 20050330

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: G.M., BABY G.S. by her Litigation Guardian G.M. and BABY G.J. by his Litigation Guardian G.M. v. Dr. Larry Alter, Dr. Dennis K. Chu and Dr. Vivian P.T. Lee

BEFORE: Ellen Macdonald J.

HEARD: March 23, 2005

COUNSEL: Allan Sternberg and Lori Stoltz, for the Plaintiffs/Moving Parties

Nina Bombier, for the Defendants/Respondents

E N D O R S E M E N T

1This motion is for an order granting leave under Rule 62.02(1) of the order of The Honourable G. Speigel J. dated November 2, 2004. Her Honour dismissed the Plaintiffs’ appeal from the decision of Master Jane Egan released on May 28, 2004. Master Egan’s detailed analysis of the issues is contained at Tab 5 of the motion record.

2The motion before Master Egan was the Plaintiffs’ motion for an order requiring the original copy of a fax dated December 11, 2003 from David Harvey to Nina Bombier be returned to Goodman and Carr without the Respondents retaining a copy of the original. David Harvey was then a partner at Goodman and Carr and had carriage of the Plaintiffs’ action. The fax contained reports that were identified in the cover sheet by Mr. Harvey as being expert reports of three doctors. The reports were not dated or signed. The next day, Mr. Sternberg, on behalf of the Plaintiffs, disclosed to Mr. Griffin, that the documents were sent in error. Mr. Sternberg asked that the documents be returned and that no copies be made. Mr. Griffin agreed and, in letter dated March 1, 2004, confirmed that the original reports would be returned to the Plaintiffs and that no copies would be made. Mr. Griffin would not agree to Mr. Sternberg’s demand that the three documents be expunged from the record. Mr. Griffin wanted to reserve the Defendants’ rights to subsequently bring a motion requiring production of the documents, should it be determined that their contents could be relevant and material to the issues in the litigation.

3When the matter came before Master Egan she ordered the return of the documents but she refused to order that the documents be expunged from the record. As she put it in para [45] of her reasons “The defendants merely seek to keep their options open for potential motions for production of the documents which cannot be done if they are destroyed”.

4I have concluded that there is no merit to the Plaintiffs’ application for leave. There was a crucial factual finding by Master Egan. There was evidence for her conclusion that Mr. Harvey did not send the documents in error. The Plaintiffs conceded before Speigel J. that if there was evidence to substantiate this finding, there was no basis for the appeal of the order of Master Egan. I agree with the summary of the Defendants’ position on this leave application as expressed in para [8] of their factum dated March 21, 2005. The Plaintiffs’ motion is therefore dismissed with costs. If there can be no agreement on costs, the parties may make written submissions within 30 days of the release of this endorsement.

Ellen Macdonald J.