Court File and Parties

Court File No.: CV-13-485734 Date: 20180628 Superior Court of Justice - Ontario

Re: Michael Knud Due, Plaintiff And: Dr. Aurelie K. Collings, Defendant

Before: Carole J. Brown, J.

Counsel: Michael Ellis, for the Responding Party/Plaintiff Heather Vaughan, for the Moving Party/Defendant

Heard: May 14, 2018

Endorsement

[1] The moving party defendant, Dr. Aurelie K. Collings (“Dr. Collings”), brings this motion pursuant to Rule 21 of the Rules of Civil Procedure to have the plaintiff’s claim struck for failing to disclose a reasonable cause of action and, additionally, on the basis that the action is frivolous, vexatious and an attempt to re-litigate damages in the plaintiff’s underlying motor vehicle action.

[2] The statement of claim was issued on July 26, 2013 but, to date, no further steps in the litigation have been taken. Pleadings remain open.

The Original Action

[3] On June 6, 2005, the plaintiff, Michael Knud Due, was a passenger in a motor vehicle which was involved in an accident in which he allegedly sustained injuries. As a result of the accident, he commenced an action which was issued on June 5, 2007.

[4] In the context of the litigation, the plaintiff retained the defendant, Dr. Collings, a neuropsychologist, as a medical legal expert on August 19, 2005. Dr. Collings conducted an assessment of the plaintiff on February 21, 2006. In the summer of 2007, Dr. Collings advised that she was retiring from the practice. On July 20, 2011, Dr. Collings advised that the plaintiff’s file had been destroyed.

[5] Another neuropsychological medical expert was retained in 2011.

[6] On August 14, 2012, the plaintiff’s lawsuit was settled at mediation. The plaintiff claims that the matter was settled for significantly less than he would otherwise have obtained had it not been for Dr. Collings failure to provide an expert report or her records associated with the testing done in February 2006.

[7] As a result, this action was commenced against Dr. Collings on July 26, 2013, claiming damages associated with the plaintiff’s alleged reduced settlement, legal fees and unrecoverable and recoverable disbursements associated with proving damages in the motor vehicle accident lawsuit.

The Law

Rule 21.01

[8] Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

[9] The purpose of Rule 21.01(1)(b) is to enable a judge to strike from the pleadings, claims and defenses that do not, in law, have a chance of succeeding. While a court will be reluctant to strike out a claim, the claim should be struck where it is clear and obvious that no cause of action is disclosed. The pleading should not be struck if there is a chance of success. In determining whether a claim should be struck, the court is required to give a generous reading to the pleadings. The issue is whether, assuming the alleged facts to be true, the action is nevertheless certain to fail.

[10] While evidence is generally inadmissible in a motion under Rule 21.01(1)(b), the claim incorporates, by reference, any document pleaded in the pleadings and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings.

[11] The novelty of the cause of action will not militate against the party pleading. A novel claim of negligence should not be struck for absence of reasonable cause unless it can be established that the claim is clearly unsustainable.

Positions of the Parties

The Position of the Moving Party Defendant

[12] It is the position of the moving party defendant that the case law is now settled in Ontario and a party cannot sue their own expert with respect to a report or trial evidence: Paul v Sasso, 2016 ONSC 7488. The defendant maintains that the privilege accorded participants in court proceedings also extend to all preparatory steps taken with a view to judicial proceedings and that it is the occasion, not the communication, which is privileged: Salasel v Cuthbertson, 2015 ONCA 115.

[13] Further, the moving party maintains that while Mr. Due claims that Dr. Collings’ alleged negligence resulted in his receiving a lesser amount for damages in the settlement than he would otherwise have received, this claim is unanswerable as the defendant experts’ findings are unknown. It is possible that the expert opinion would not have supported the plaintiff’s case or would not be substantially different from the expert subsequently retained by the plaintiff. Given that the action was settled at mediation, the reasons and decisions for the settlement or the amounts accepted in the settlement are not able to be proven. There are no findings of fact made and it would be impossible to determine the issues of the damages claimed in this lawsuit.

The Position of the Responding Party Plaintiff

[14] It is the position of the responding plaintiff that the case law is not completely settled in Ontario as regards a party suing its own expert and that there is room for novel cases that fall into this category. It is the position of the responding party that this is one such case.

[15] It is further the position of the plaintiff that there is confusion in the law of Canada as to whether immunity accorded to an expert extends to all aspects of the expert’s work or only to an expert opinion in court and any reports prepared for that purpose: Halpern v Morris, 2016 ONSC 7855. The plaintiff submits that there are no decisions at the appellate level which have decided whether witness immunity should be extended to prevent a party from suing his or her own expert witness in negligence or breach of contract based on opinion evidence given in a court proceeding: Robinson v Ottawa (City), [2009] O.J. No 262.

Analysis

[16] In this case, the seminal issue to be determined relates to Rule 21. The issue to be determined in this case is whether the claim brought by the plaintiff, Mr. Due against the defendant, Dr. Collings, is sustainable, or whether it is plain and obvious that there is no reasonable cause of action.

[17] Based on the case law reviewed, there is a long-recognized immunity for expert witnesses which has, more recently, been extended to the party’s own expert in the context of litigation. In this case, the allegations against Dr. Collings are that her negligence as regards providing an expert report resulted in the plaintiff’s experts being unable to properly determine the full extent of the plaintiff’s head injury, loss of income and other damages, including general damages and special damages, and adversely affected his credibility in the personal injury lawsuit. Based on this, he seeks damages amounting to what he would otherwise have been able to expect in settlement of this action, as well as legal fees and costs.

[18] I am satisfied that, as regards such a claim as this, expert witness immunity is applicable, such that the action cannot be sustained.

[19] In the event that I am not correct in that finding, I am of the view that this claim for damages will fail as it is wholly speculative. It is not able to be proven whether settlement may have resulted in higher damages being negotiated or not. The potential for receiving a greater amount at trial, or a lesser amount, is also speculative. In essence, this claim suggests “settlement remorse”, subsequent to the negotiations which led to acceptance of the settlement. It would be impossible to determine the factors that went into the decision-making process resulting in the settlement arrived at.

[20] In essence, the claim against Dr. Collings seeks a “top up” as regards the settlement negotiated between counsel for the plaintiff and counsel for the tortfeasor in the motor vehicle accident and accepted by the parties. The action never went to court, there were no findings of fact and there is nothing on which it could be determined that the plaintiff may have received a better or more substantial amount for damages than was negotiated and accepted in the mediation. Again, it would be impossible and highly speculative to assess an amount which may have been able to be negotiated had Dr. Collings produced a report, rather than the second neuropsychologist who was retained.

[21] While this is not an attempt to “re-litigate” the action, as it was never actually litigated, but rather settled at mediation, I find the claim to also be frivolous and vexatious and an abuse of process in the context of the circumstances.

[22] Based on all of the foregoing, I grant the defendant’s motion and order that the plaintiff’s claim as against Dr. Aurelie Collings be struck.

Costs

[23] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown, J. Date: June 28, 2018