Ou v. Ferring Inc., 2010 ONSC 1534

CITATION: Ou v. Ferring Inc., 2010 ONSC 1534

COURT FILE NO.: 559/09

DATE: 2010/03/11

DIVISIONAL COURT, SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YU BI OU et al v. FERRING INC. et al

BEFORE: H. Sachs J.

COUNSEL: Anita M. Varjacic, for the Defendants/Appellants, Judith Reid and Advantage One Home Care Inc.

Anna L. Marrison, for the Defendant/Respondent, North York General Hospital

DATE HEARD: March 10, 2010 at Toronto

E N D O R S E M E N T

[1] This is an appeal from the order of Master Birnbaum dated October 23, 2009 (the ”Order”) dismissing the Appellants motion to amend their Statement of Defence and Crossclaim to plead that Ms. Reid was an employee of North York General Hospital (the “Hospital”) at the time that the plaintiffs’ claim arose.

[2] The plaintiffs commenced a medical malpractice action arising from the medical care and treatment provided to Yu Bi Ou at the Hospital in October of 2001. Initially, the Appellants were not parties to the action. At the Hospital’s discovery, Ms. Reid was identified as one of the nurses involved in the plaintiff’s care. Ms. Reid was also identified as a nurse provided by the Appellant, Advantage One Home Care Inc. (“Advantage”). As a result the Plaintiffs added the Appellants as defendants in the action.

[3] In their Statement of Defence and Crossclaim the Appellants specifically pleaded that “at all material times, Advantage One Home Care Inc. subcontracted the Defendant, Judith Reid, to North York General Hospital to provide reasonable and appropriate nursing care.” The pleading also contained a general denial of all the allegations in the Statement of Claim, including the allegation that Ms. Reid was an employee of the Hospital.

[4] Advantage and Ms. Reid were examined for discovery. During their examination Advantage agreed that in October of 2001 they had an employee by the name of Judith Reid working for them. In her examination Ms. Reid agreed that in October of 2001 she was an employee of Advantage. Further, during Ms. Reid’s examination her counsel (who was also Advantage’s counsel) refused to allow her to answer any questions directed at ascertaining what a hospital employee nurse does on the basis that Ms. Reid was an agency nurse.

[5] After these events and after the Hospital had circulated their expert’s report for use in an upcoming mediation, the Appellants changed counsel and advised everyone, including the Hospital, that they wished to amend their pleading to include an assertion that Ms. Reid was an employee of the Hospital. All parties, except the Hospital, were prepared to consent to the amendment. When the Hospital refused to consent the Appellants brought a motion for leave to amend their pleading pursuant to Rule 26.01.

[6] Under Rule 26.01 a court is obliged to grant leave to amend “on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” The motion proceeded before the master who found that the Appellants had made an admission during their examinations for discoveries that Ms. Reid was an employee of Advantage and not an employee of the Hospital. As such, under rule 51.05 they could not withdraw that admission without leave and the Appellants had provided no evidence upon which leave could be granted. In her reasons the master chose not to deal with the issue of prejudice.

[7] I agree with the Appellants that rule 51.05 does not apply to an admission made on discovery. By its terms the rule only applies to “an admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading.” However, in spite of this error, I agree with the result that the master arrived at.

[8] In my view, even if the Appellants’ pleading and the specific statement in that pleading that Ms. Reid was subcontracted to the Hospital by Advantage cannot be interpreted as an admission that Ms. Reid was an independent contractor and not an employee of the Hospital (which is arguable), the Appellants’ actions in pleading the way they did and during discovery caused the Hospital to very reasonably conclude that this was their position. The Hospital then conducted themself based on that position. In particular, their counsel did not participate in preparing Ms. Reid for discovery, something they might well have done if they had thought that Advantage was going to be alleging that the Hospital was vicariously liable for Ms. Reid’s actions. Secondly, the Hospital retained an expert and asked him to focus his attention on the time period when the plaintiff was under Ms. Reid’s care. They did so because of what they legitimately understood to be the Appellants’ position; Ms. Reid was not a hospital employee, she was an independent contractor that had been supplied to the Hospital by Advantage.

[9] The action is now scheduled for trial in October. The defendants have settled with the plaintiffs. The Hospital has circulated their expert’s report to all parties. Ms. Reid has given the evidence that she did on discovery; it cannot be taken back. To allow the Appellants to amend their pleading at this stage because their new counsel has decided to change the Appellants’ strategy in the case would cause the Hospital prejudice that cannot be compensated for in costs.

[10] For these reasons the appeal is dismissed. The parties agreed that costs should follow the event and that the costs for this appeal should be fixed at $5,000.00. Therefore, I order the Appellants to pay to the Hospital their costs of this appeal fixed at $5,000.00.

H. Sachs J.

DATE: March 11, 2010