Court File and Parties
COURT FILE NO.: 86009/13 DATE: 20170307 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
AVA GRACE DUGGAN, a minor, by her Litigation Guardian, Alyson Michelle Duggan, ALYSON MICHELLE DUGGAN, personally, BRAD DUGGAN and MARYANN DUGGAN Plaintiffs
– and –
LAKERIDGE HEALTH CORPORATION, DR. PADAMJIT SINGH, DR. GRAHAM FINCH, DR. WILMA WHITING, DR. MAHMUD ALMADANI, STELLA ROSTAMIAN, MARIE ROLLAUER, H. PRENZELL, G. WOODSIDE, LISA GORSKI and JANE DOE Defendants
Counsel: Mr. Joseph Colangelo, for the Plaintiffs Mr. Mark Lerner, for the Defendant Dr. Padamjit Singh
HEARD: In Writing
Reasons for Decision
EDWARDS J.:
[1] Timely disclosure of all relevant documents is fundamental to the resolution of a civil lawsuit, whether it be by way of settlement or trial. In this case, the sole remaining issue in this medical malpractice claim is the quantification of damages. Liability has been admitted by the sole remaining Defendant, Dr. Singh (Singh). I have been case managing this action for at least two years and the action is ready for trial. Counsel for Singh seeks an order requiring the Plaintiffs to produce what are essentially updated medical records of documents that have already been produced. Counsel for the Plaintiff argues that Singh’s demands are excessive, and that the Plaintiffs have made full and proper disclosure of all relevant treating health care providers. More fundamentally, Mr. Colangelo suggests the defence demands for updated records is not necessary nor proportional.
[2] The obligation to make documentary disclosure begins with an analysis of the interaction of Rules 30.02; 29.2.01; and 1.04 of the Rules of Civil Procedure. Until recently, the obligation to disclose and produce documents was based on “semblance of relevance”. Now it is clear by the wording of Rule 30.02(2) the test is one of “relevance”. In making the determination of whether a party is required to produce a relevant document, Rule 29.2.03(1) provides that the Court must consider a number of factors, specifically:
a) the time required to produce the document; b) the expense associated with producing the document; c) any prejudice the party may suffer in having to produce a document; d) the possible undue interference with the orderly progress of the action; and e) whether the document is readily available to the party seeking production from another source.
The Court is also required to consider, while applying the aforementioned factors, whether requiring production of the documents sought will result in an “excessive volume of documents required to be produced”.
[3] Mr. Colangelo in his factum, quite correctly in my view, points to the application of Rule 1.04(1) and (1.1) as having an important application to a disclosure motion such as the one before me. As such, the Court must always construe the Rules “liberally” and in a manner that will secure “the just, most expeditious and least expensive determination” on its merits. Equally important, however, is Rule 1.04(1.1), which requires the Court to make orders that are “proportionate to the importance and complexity of the issues and the amount involved”.
[4] This action, as it presently stands, will require the trial judge to make an award of damages that will properly compensate – to the extent money can, the Plaintiffs for Singh’s negligence. There is no issue that Ava will require, and will undoubtedly receive, a significant award of damages to deal with her future care needs and future loss of income. The quantum of that award will be based on Ava’s needs, which will involve an assessment of her health care to date and her health care needs in the future. The quantum of her mother’s claim will, in part be based on her past economic, as well as her future economic losses. The medical and financial records of the Plaintiffs are prima facia relevant. The real issue, as framed by the Plaintiffs, is whether the extent of disclosure sought by the defence is disproportionate, unnecessary and excessive, and will serve no useful purpose.
[5] The Rules of Civil Procedure (The Rules) provide the framework within which parties to a civil action must govern themselves. In this day and age where judicial resources are stretched to the maximum, and where the costs of a civil trial have strained the ability of the average Canadian to obtain justice, the Courts must consider how justice can be provided in an efficient and cost effective manner commensurate with the issues at stake. While a $10,000 claim may seem like an enormous amount to a litigant seeking justice for an unpaid debt, the Court surely cannot provide unfettered access to the Courts where there are no limits to disclosure and no limits to the amount of trial time available. On the other hand where the claim involves a realistic assessment of many millions of dollars, such as the claim before this Court, the framework for disclosure should reflect that exposure.
[6] The costs of a civil action and the length of a civil trial have been the subject of extensive discussion by academics, members of the Bar, the media and of course our Supreme Court of Canada. The comments of Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87 at para. 1 and 2, requires everyone associated with the civil justice system to simplify pre-trial procedures and adopt “proportional procedures tailored to the needs of the particular case”. It is fair to suggest that the old ways of litigating are not always the best way of litigating. This is particularly so in what many refer to as the “post-Jordan era”. I am, of course, referring to the recent Supreme Court decision in R. v. Jordan, [2016] 1 SCR 632, which has had not only a significant impact on the criminal justice system but the civil justice system as well. Precious judicial resources have been quite properly diverted to ensure that the timelines for a criminal case laid down by Jordan, supra, are complied with. The inevitable result has been less judicial resources available to deal with an already overburdened civil justice system. If the civil action and the civil trial are to survive in this post-Jordan era, we must all play a part in ensuring that access to justice is fair and reasonable for all.
[7] Applying the principles to the case at hand, can it be said that updated medical and financial records are not relevant? The answer to this question, in my view, is they are relevant. The time involved in obtaining the updated records is a relevant consideration, as is the expense associated with obtaining the records. In my view, both the time and cost of obtaining the documents should be easily shifted to the party seeking the disclosure. I see no good reason why the Plaintiffs should shoulder this burden. As such, to the extent my order requires the Plaintiffs to produce documents, the Plaintiffs shall have the option of either obtaining the records themselves at the Defendants’ cost or, alternatively, the Plaintiffs may elect to give Singh’s counsel a consent or direction for the release of the records to Singh’s counsel. The costs to obtain the records shall be borne by Singh.
[8] In making the order that I am, I have also considered the question of whether there is any prejudice to the Plaintiffs, and in that regard I see no prejudice as there will be sufficient time for production that will not impact on the commencement of the trial. If that had not been the case, then prejudice may have been inferred. I have also considered whether the productions sought will result in an excessive volume of documents. I have, in that regard, considered the principle of proportionality and whether the productions sought are proportionate to the importance and complexity of the issues and the amounts involved in this action.
[9] As the case management judge, I am intimately aware of the complexity of the damages issues and what is claimed by the Plaintiffs. The assessment of damages in this case will have to provide for the rest of Ava’s life. The damages will be substantial. The issues are complex and are vitally important to both the Plaintiffs and Singh.
Application of the Law to the Requested Production
Alyson Duggan
[10] Alyson is the mother of Ava. She has her own claim for damages which includes a claim for economic losses, including loss of income. Alyson also claims for the damages associated with the injuries she alleges she suffered in the delivery of Ava. I itemize the documents that the defence seeks from Alyson as follows:
a) Alyson’s tax returns for 2013 and 2015; b) updated records from the local Social Services Department; c) the updated clinical notes and records (CNR) from Alyson’s family doctor; d) updated CNR from Alyson’s gastroenterologist; e) updated CNR of Alyson’s obstetrician; f) production of any hospital records postdating the birth of Ava; g) production of the CNR of Dr. Rodin and Barry Brown; h) production of the CNR relating to any psychological treatment Alyson has received since the birth of Ava; i) production of any disability benefit records received after the birth of Ava; and j) production of a decoded OHIP summary.
[11] In any personal injury action, which includes a medical malpractice action, there are certain types of records that should as a matter of routine be produced, as they relate to the damages portion of the claim. In that regard, Mr. Colangelo argues that the defence request for a decoded OHIP summary is an example of an “outdated litigation tactic”. He also argues that an OHIP summary contains information that is “misleading, confusing and unhelpful, which results in a waste of time and money”. In general, a decoded OHIP summary will reveal the names of medical professionals who may have seen the Plaintiff, both prior to and subsequent to the date of a cause of action. The OHIP summary provides a starting point for disclosure obligations – it does not mean that all doctors on the summary are relevant to the claim. The relevant doctors are those who are providing treatment to the Plaintiff for the injuries that are alleged to have been suffered as a result of the Defendant’s negligence. If the Plaintiff has suffered injuries or other health conditions subsequent to the cause of action that may impact on the damages claim, then doctors treating the Plaintiff in connection with those injuries and other health issues may also be relevant.
[12] Alyson shall produce an updated OHIP summary that covers the time period from the date of Ava’s birth to date. If OHIP does not provide records that cover such time period, then the Plaintiff shall produce what OHIP can provide. To avoid any further production motions arising out of the production of an OHIP summary, the Plaintiffs shall review the summary and produce the CNR of doctors providing regular treatment that are relevant to the Plaintiffs’ damage claims.
[13] Another basic category of documents in a personal injury claim are the Plaintiff’s tax returns. These records provide the benchmark from which the Court will have the necessary tools to quantify the Plaintiff’s claim for loss of income. As such, the defence request for Alyson’s tax returns is in my view a reasonable request and are to be produced. In order to avoid a further production motion this order shall include Alyson’s 2016 tax return, when and if filed.
[14] Included in the basic documents that should be produced as matter of course in a personal injury action are the CNR of the Plaintiffs’ family physician. These records may, but do not always provide, the most complete record of the treatment provided to the Plaintiff. They should be the starting point from which to determine the relevance of other CNR from specialists providing treatment to the Plaintiff. The family doctor’s CNR, as requested by the defence, shall be produced.
[15] The defence seeks the production of all hospital records that relate to Alyson’s admissions to hospital since the birth of Ava. If Alyson was hospitalized for reasons related to the matters at issue, those records would be relevant. If Alyson was hospitalized for reasons wholly unrelated to the matters at issue, then those records in my view are not relevant unless the hospitalization can be said to have some impact on her other damage claims, such as her claim for loss of income. An order shall therefore issue requiring Alyson to produce hospital records for admissions after the birth of Ava that are relevant to her various damage claims.
[16] The defence seeks an order requiring the Plaintiff to produce what are, in essence, the welfare records from the local welfare provider. While these records are typically requested by the defence in a personal injury claim, and while they may seem to prima facia fall within the category of relevant documents, they are also documents that need to be scrutinized from the perspective of proportionality and necessity. Proportionality requires the Court to fairly balance the issues, the damages claimed and the potential value of the document sought. In this case, the potential value of the welfare records is marginal. They are not, in my view, necessary to the overall resolution of the claim. They do not have to be produced.
[17] The CNR of specialists providing treatment to an injured Plaintiff fall within the category of documents that should, as a matter of course, be produced. The OHIP summary may reveal that a Plaintiff has seen more than one specialist in the same area of specialty. Does this mean that every specialist becomes relevant for production purposes? Proportionality, fairness and cost, must play an important role in this determination. If the records are merely duplicative of what has already been produced, then to require further production only adds unnecessary cost to the proceedings. Fundamentally, there needs to be a change in focus in the personal injury Bar which includes medical malpractice claims. That change requires an appreciation that it is cost prohibitive to turn over every stone and uncover every relevant document. Relevance and proportionality, together with a healthy dose of common sense, should refocus counsel to a determination of what is truly necessary for a fair and timely resolution of the claim. With these principles in mind, the Plaintiff is to produce the CNR of Alyson’s treating obstetrician. If Alyson’s damage claim includes damages that relate to treatment provided by Alyson’s gastroenterologist, those records are to be produced. If her damage claim does not include issues related to treatment by her gastroenterologist, then those records do not have to be produced.
[18] In a claim where part of the Plaintiff’s damage claim relates to her psychological condition it is difficult to conceive how those records are not part of what should, as a matter of course, be produced. The defence seeks production of the psychological records relating to any psychological treatment that Alyson has received since the birth of her daughter. As with the situation where the Plaintiff may have been seen by more than one specialist within the same discipline, the principles I have referred to above should apply to the defence request for any psychological records. The focus should remain on what is relevant and necessary to get to a fair resolution of the claim without expending needless energy and cost. The Plaintiff is therefore to produce the CNR of her primary treating psychologist and psychiatrist.
[19] The defence seeks production of the documents contained in any disability carrier’s file. While these records are not specifically delineated, they could include the records from CPP and or a private carrier. Disability benefits received by Alyson may be relevant to her claim for loss of income. The quantum of those benefits are therefore relevant and should be disclosed to the defence. The real issue in regards to the defence request is whether the entirety of a disability carrier’s file is relevant and producible. The file may include internal adjuster’s records, medical records, correspondence with the Plaintiffs and a whole host of other documents. While there may be relevance to some of those documents, experience shows that when it comes to a fair resolution of the Plaintiffs’ claims, whether by way of a negotiated settlement or trial, the vast majority of the disability carrier’s file is seldom relied upon. As such, with the principles of proportionality and relevance in mind, the Plaintiff is to provide the defence those parts of any disability carrier’s file that provides a breakdown of the disability benefits received by Alyson, together with any medical records not already produced in the disability carrier’s file.
[20] The defence seeks production of the records of Dr. Rodin, a psychiatrist who provided treatment over a period of six months and Barry Brown, a counsellor who provided counselling over a period of two years. There is no indication that either of these treatment providers are Alyson’s primary treatment provider in terms of her ongoing psychological or psychiatric needs. If they were providing ongoing treatment and or were the primary psychiatric/psychological treating doctors, then their records would be both relevant and necessary in the assessment of her damage claims. These records may have marginal relevance, but to simply require the Plaintiff to produce every document with marginal relevance is contrary to principles of proportionality. These records do not have to be produced.
Ava Duggan
[21] The liability issue for the injuries suffered by Ava is not in dispute. Ava will have to deal with her severe cerebral palsy for the rest of her life. Her damages, while not agreed upon, will be significant. The most contentious damage claims will involve the quantification of her future medical care needs, including the attendant care needs she will require during her life. Those claims will, of necessity, require a careful analysis of her medical condition. The documents now sought by the defence are summarized as follows:
a) the updated records from the Grandview Children’s Centre; b) the updated records from the school she attends; c) the updated CNR of Ava’s family doctor; d) a decoded OHIP summary; and e) the CNR of various therapists.
[22] The documents that are at issue concerning Ava’s claims are, in my view, far less contentious than the document requests in relation to Alyson’s claim. The request for a decoded OHIP summary is, in my view, such a basic request that I am surprised it is even at issue. The Plaintiff shall produce a decoded OHIP summary for such period of time as OHIP keeps records concerning the life and treatment of Ava.
[23] As with the OHIP summary, the defence request for the CNR of Ava’s family doctor is such a basic request it defies logic that this request is at issue. The Plaintiff shall produce the CNR of Dr. Gaal. For the sake of avoiding further motions, all of the records that have been ordered to be produced shall be updated at periodic intervals. In general terms, records should be updated on an annual basis. In this case, the Plaintiff shall comply with this Court’s order by requesting the documents ordered to be produced within 15 days of this order, and thereafter the documents shall be updated 30 days prior to trial.
[24] The Plaintiff has produced Ava’s school records through June 2016. Plaintiffs’ counsel refuses to update the school records, for reasons I fail to see has a logical basis other than to simply say they will not be produced. Such a response is not helpful, nor does it have any basis in law. The fact that the records have been produced through June 2016, demonstrates Plaintiffs’ counsel understood the relevance of those records and the obligation to make production to the defence. That obligation is an ongoing obligation. The school records shall be produced.
[25] Ava has attended the Grandview Children’s Centre over the course of many years. These records have been produced through June 2015. The only basis upon which the Plaintiffs justify denying production of these and most of the other records sought by the defence, as it relates to Ava’s claim, can be found in paragraph 9 of the Plaintiffs’ factum, where counsel states:
The Defendant Singh seeks to engage in an exercise to wear down the Plaintiffs by repeated periodic demands for more updated records. This is an offensive use of superior economic power by a well-resourced litigant (referring to the Canadian Medical Protective Association, the CMPA). The intervention of the Court to protect Ava and her family from this conduct is necessary to the proper administration of justice.
[26] Plaintiffs’ counsel relies heavily on the proportionality principle in support of his argument that most, if not all of the records now sought by the defence in this motion, need not be produced. In George Weston Ltd. v. Domtar, 2012 ONSC 5001 at para. 16, D.M. Brown J. (as he then was) stated:
Whether interpreting and applying the Rules of Civil Procedure or exercising their inherent case management powers, judges of this Court are to manage the litigation before them in such a way as to secure fair results by using fast, affordable and proportionate procedures. Further, if litigants propose to stray from these fundamental principles judges must pull them back to the Proportionate Way, so to speak.
[27] What has happened in Ava’s case has not been the utilization of the fastest, most affordable and proportionate procedure. There is a misplaced impression on the part of the Plaintiffs that the documentary demands of the defence are intended to wear the Plaintiffs down. If that were the case, the Court would have little difficulty in reining the defence in and imposing a costs sanction to signify the Court’s disapproval of such tactics. The defence request to update the records from Grandview Children’s Centre is not an unreasonable request and those records are to be produced.
[28] The defence seeks production of “any and all hospitalizations or attendances to date”. Ava’s health has been put in issue by this action. That by itself does not make all of her medical records relevant. The fact that she may have been seen in a hospital in relation to what may be loosely described as general health issues does not make those records relevant. Even if they were marginally relevant, requiring production of such a sweeping request is in my view neither proportional nor necessary, even taking into account the magnitude of Ava’s damages claim. Plaintiffs’ counsel is, however, required to review an OHIP summary of Ava’s medical care and determine if Ava has been hospitalized in connection with the matters that are at issue – primarily, her cerebral palsy condition. If she has been hospitalized in that regard, those hospital records are to be produced.
[29] The defence seeks production of any speech language pathologist, physiotherapist and or occupational therapist that have seen Ava which are not contained within the records of the Grandview Children’s Centre. There is no dispute that part of Ava’s past and future health care needs will require the assistance of a speech language pathologist, physiotherapist and occupational therapist. The extent of her future care needs and the quantification of that claim, not surprisingly, is very much in dispute. The fact that Ava may have been seen by more than one of these treatment providers may make their CNR relevant. Production of every CNR, of every treatment provider may meet the test of relevance, but in my view fails the test of proportionality.
[30] Production of every CNR will result in the destruction of many trees and a mountain of paper, much of which has marginal relevance and will likely never see the light of day in terms of documents the Court will ever likely rely upon in its assessment of Ava’s damage claim. What proportionality and relevance requires is the production of what is necessary to fairly resolve this case – this means the CNR of Ava’s primary and regular treatment providers. In this case the defence has been provided with three progress notes of Ms. Clements-Baartman, which sets forth Ava’s speech language treatment and progress during the time period February 29, 2016 through November 2016. To the extent a treatment provider or medical doctor provides periodic and regular progress notes, those records may very well be seen as a reasonable alternative to the production of that person’s complete file. As such, I am ordering the Plaintiff to produce all of the progress reports prepared by the speech language pathologists, physiotherapists and occupational therapists who have treated Ava, other than those contained within the records of the Grandview Children’s Centre. Progress reports provided by Ava’s treatment providers are to be updated prior to the trial.
[31] The defence seeks the records in connection with ongoing treatment received by Ava in the form of private ballet lessons and therapeutic dance riding at Windreach Farms. These records may have marginal relevance, but in my view do not fall within the category of documents that when looked at through the principles of proportionality, are necessary to a just and cost efficient adjudication of Ava’s damage claims. The defence has a progress report from Beverlee Melamed, who is an occupational therapist and is assisting in the coordination of Ava’s various therapies. These progress reports provide a necessary and reasonable summary of Ava’s progress. Progress reports are being copied to Mr. Colangelo and as they are received are to be provided to Singh’s counsel.
[32] When this matter came before me it was agreed that I would deal with the issues in writing. I undertook to give counsel a quick response as the issues appeared very straightforward. The issues were, and in fact are straightforward. The delay in providing Reasons was a desire on my part to reflect not just on this motion, but also the conduct of this litigation and personal injury litigation in general.
[33] I do not have at hand the statistics of what percentage of all cases commenced in the Superior Court are personal injury/medical malpractice cases. I hazard an educated guess, that well over 50 percent of all cases which have statements of claim issued in the Superior Court, relate to tort claims where there is a significant personal injury component. While the Rules of Civil Procedure govern these cases and have worked well in the past, it is clear that with all of the demands now placed on our judicial system that it is perhaps time to reset the clock, particularly with respect to the production of documents.
[34] The Commercial List in Toronto has been widely recognized for its successes. Underlying its successes are the “Three C’s”. In the words of the Commercial List Practice Direction “cooperation, communication and common sense shall continue to be the principles of operation of the commercial list”. While the Three C’s are not directly found in the Rules of Civil Procedure, it is hard to argue that they should not form the foundation upon which the tort and personal injury Bar should approach cases in the Superior Court.
[35] As the case management judge of this action, I would find it extremely difficult to conclude that the Three C’s have governed the conduct of this litigation. There has been an unnecessary lack of cooperation, communication and common sense. The production motion that I have now dealt with demonstrates in many respects that lack of cooperation, communication and common sense, particularly a lack of common sense. As I have already indicated, most of the production requests made by the defence in this matter were requests that should never have necessitated this motion. On the other hand, some of the requests did not reflect - on the part of the defence, a common sense approach to production of the truly relevant and necessary documents required to ensure that this case will ultimately be fairly adjudicated upon by the trial judge. As Trimble J. in Yim et al. v. Song et al., 2016 ONSC 1707 at para. 17 stated:
…proportionality is not an end in itself. Rather, it is a principle which allows the court to do justice between the parties in a more streamlined way where the case merits this approach and justice can still be done.
[36] In a paper prepared by Sedona Canada dealing with proportionality and electronic disclosure and discovery, the issue of proportionality was dealt with at some length. While this commentary relates to electronic disclosure and discovery, the comments at page three are in my view entirely appropriate as it relates not just to the issues before me, but also in general terms as it relates to relevance in a productions motion in a personal injury case:
Proportionality is not intended nor designed to prevent reasonable discovery. It is not intended to be used as a sword or a shield to either increase the costs to the opponent or avoid the burden, expense and delay associated with the search for and production of information that is crucial to the determination of the core issues.
[37] The production of documents and the opportunity to examine a party for discovery are fundamental steps in the pre-trial process and exist for a number of reasons, not the least of which is to ensure trial fairness and efficiency. The production of documents and discovery are also fundamental to the pre-trial process, which in the vast majority of cases ultimately result in an out-of-court resolution.
[38] In an entirely different context McLachlin J. in R. v. O’Connor, [1995] 4 SCR 411 at para. 193, noted that what the Court aims for is not necessarily:
…the fairest of all possible trials, but rather a trial which is fundamentally fair… Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
[39] Applying those comments, not just to the motion before me but to personal injury litigation in general, a little common sense would suggest that it is not every single document that has to be turned up to ensure that a case is fairly adjudicated upon. If that is the approach and I am wrong, the civil process will suffocate from the weight of its own paper disclosure obligations.
[40] If counsel require further assistance with respect to the formulation of my order, as reflected in these Reasons, I may be spoken to. I will leave it to counsel to prepare the necessary order for my signature. If the parties cannot resolve the issue of costs I will receive written submissions from the Plaintiff, to be received within 15 days from the date of receipt of these Reasons, limited to two pages in length, with responding submissions from the defence to be received within one week thereafter.
Justice M.L. Edwards Released: March 7, 2017