Court File and Parties

COURT FILE NO.: 17-74859 DATE: 2022/03/24 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

CARY BEAZLEY Plaintiff – and – DR. MARY JOHNSTON, DR. JAMES GILL, DR. PRAVIN SHUKLE, DR KALPESH RAICHURA, DR. ROBERT GAUVREAU, DR. LAWRENCE NORMAN , DR. MARIKO HASHIMOTO, DR MARK TRECARTEN, DR BASKAR GOPALAN, DR. NATALIE KESES, DR DEAN HOLDEN , DR JAMES WARD, DR ELLEN HENRY , DR GUY HEBERT, DR MARTIN GREEN, DR. PABLO NERY , DR. ADAM NICHOLSON, DR ADAM COHN, DR DONALD HARRIS, DR KUAN CHIN CHEN , DR. ELIZABETH SCOTT, DR GORDON KEE , DR HYMAN RABINOVITCH, DR DANIEL CHUKWU, DR KADAMBI SITARAM , DR KARI SAMPSEL, DR GETNET ASRAT, DR RICHARD MOXON, DR STEPHEN CHOI, DR PABLO NERY, DR. SAMUEL HETZ , DR. JACINDA WONG, DR ROBERT NICHOLS, DR. SUNIL VARGHESE, DR. DAVID DAVIDSON, DR. NINA RAMIC, DR JANE DOE, DR JOHN DOE, THE ONTARIO MINISTRY OF HEALTH AND LONG TERM CARE , QUEENSWAY CARLETON HOSPITAL and PUBLIC HEALTH AGENCY OF CANADA Defendants

Plaintiff is self-represented

Counsel: Andrew McKenna and Justin McCarthy, for the Defendant Physicians Émilie Roy, for the Defendant, Queensway Carleton Hospital

HEARD: March 2, 7, and 8, 2022 (By Videoconference)

INTERIM RULING

(Motions For Summary Judgment)

Corthorn J.

Introduction

[1] At various times between December 2015 and May 2018, the 27 physicians named as defendants (“the Doctors”) were involved in the care and treatment of the plaintiff, Cary Beazley. Several of the Doctors saw Mr. Beazley at the emergency or another department of the defendant, Queensway Carleton Hospital (“the Hospital”). During the relevant period, Mr. Beazley communicated with one or more other physicians, who held privileges at the Hospital, but who are not named as defendants in the action.

[2] Mr. Beazley’s primary allegation is that as a result of the Doctors’ conduct, there was a delay in him being diagnosed with Lyme disease. Mr. Beazley alleges that the Hospital is vicariously liable for the actions of its employees and medical staff, as those actions relate to the alleged delayed diagnosis.

[3] Mr. Beazley alleges that as a result of the delayed diagnosis of Lyme disease, he has suffered injuries and losses. In the amended amended fresh as amended statement of claim (“the Pleading”), Mr. Beazley claims damages for past and future loss of income in an amount in excess of $200,000. Mr. Beazley also claims an unspecified quantum of damages under each of the following heads of damages: (a) general non-pecuniary damages for pain, suffering and loss of enjoyment of life and relationships; (b) special damages for out-of-pocket expenses; (c) punitive damages; (d) aggravated damages; and (e) damages for economic losses other than those for past and future loss of income.

[4] The claims against the Doctors are based in negligence, negligent misrepresentation, and breach of fiduciary duty. The claims against the Hospital are based in negligence and vicarious liability.

[5] Three motions for summary judgment are before the court. The Doctors ask the court to dismiss Mr. Beazley’s action against them in its entirety. The Hospital asks the court to dismiss Mr. Beazley’s action against it in its entirety. In response to the defendants’ motions, Mr. Beazley brings a motion for partial summary judgment.

[6] The Doctors rely on opinion evidence from physicians in seven practice areas. Those areas are cardiology, emergency medicine, family medicine, infectious diseases, internal medicine, neurology, and sports medicine. The Hospital relies on the opinion evidence of the seven physicians whose affidavits and reports (as exhibits to their respective affidavits) are included in the Doctors’ record. The Hospital does not rely on any additional expert evidence.

[7] Mr. Beazley relies on the opinion evidence of a physician who, prior to his retirement, practised in the areas of family medicine and emergency medicine. In addition, Mr. Beazley relies on two documents that he prepared. Each of those documents is titled “Expert – Report – Rebuttal – Cary Beazley” (“the Beazley Reports”).

[8] The first of the Beazley Reports is 38 pages. It includes references to numerous exhibits – none of which is appended to the report. The contents of the first report are a mix of information, which appears to be taken from the various exhibits referenced, statements made by Mr. Beazley, and hyperlinks to additional documents.

[9] The second of the Beazley Reports is approximately 125 pages. Its contents are similar to those of the first Beazley Report. In addition, the second report includes an introductory section titled, “General Observations On Errors, Bias & Perjury ***”. Mr. Beazley therein lists what he describes as 25 “general, common and summary observations in rebuttal of the [Doctors’] expert reports”.

[10] Mr. Beazley intends to rely on the Beazley Reports when making submissions in response to the defendants’ motions and in support of his motion. Mr. Beazley asks that he be qualified as an expert so that the court may rely on his opinion evidence in the areas of the diagnosis and treatment of Lyme disease.

[11] It is important for all parties to know – before Mr. Beazley commences his submissions – whether he is qualified by the court as an expert for the purpose of these motions. For that reason, on March 8, 2022, the court heard submissions on the issue of a party as their own expert. Those submissions were heard following the conclusion of the Doctors’ submissions with respect to the claims against them based in negligence.

[12] After hearing submissions on the issue of a party as their own expert, the balance of the submissions on behalf of the Doctors were made. At the conclusion of three hearing days, the motions were adjourned to be completed on April 11, 12, and 13, 2022. When the hearing of the motions continues, the court will receive submissions on behalf of the Hospital and thereafter from Mr. Beazley.

The Issue

[13] The sole issue to be determined at this stage of the motions is whether Mr. Beazley meets the threshold requirement for qualification as an expert witness. Specifically, is Mr. Beazley able and willing to carry out the “duty to the court to give fair, objective and non-partisan opinion evidence”? (See: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 10).

Positions of the Parties

[14] Mr. Beazley’s position is that he is able and willing to fulfil the duty to the court to be fair and objective. Mr. Beazley submits that the substantive contents of the Beazley Reports are presented in a balanced manner. He highlights that the reference materials cited span a number of decades and are from reputable sources including, for example, the Centre for Disease Control. Mr. Beazley also relies on what he describes as the fair approach he took when (a) cross-examining three of the seven physicians on whose opinion evidence the defendants rely, and (b) re-examining the physician on whose opinion evidence he relies.

[15] With respect to the duty to give non-partisan opinion evidence, Mr. Beazley submits that the assessment of potential partisanship is a matter of the weight to be given to his opinion evidence.

[16] The Doctors’ position and that of the Hospital, although not identical, are summarized as follows:

• By requesting to be qualified to give opinion evidence with respect to the diagnosis and treatment of Lyme disease, Mr. Beazley is asking the court to qualify him to give opinion evidence on the issue of the standard of care the Doctors were required to meet. Despite Mr. Beazley’s acquired knowledge with respect to Lyme disease, he is not a physician. He is therefore not qualified to give opinion evidence on the standard of care;
• The fair approach taken by Mr. Beazley in the context of cross-examination and re-examination of the physician witnesses is nothing more than the type of behaviour expected of a self-represented litigant or of counsel. Fairness in that context is not the same as the measure of fairness considered when determining whether an individual may be qualified to give opinion evidence; and
• Mr. Beazley’s role as a party to this action, his direct financial interest in the outcome of the action, and his assumption of the role as an advocate for himself individually and collectively make it very clear that he is unable or unwilling to provide the court with fair, objective, and non-partisan evidence.

[17] The defendants ask the court to dismiss Mr. Beazley’s request to be qualified as an expert to give opinion evidence on the diagnosis and treatment of Lyme disease.

The Law and Analysis

[18] In White Burgess, the Supreme Court of Canada provides a detailed analysis of the threshold requirement for qualification as an expert witness and for the admission of the proposed evidence. At para. 49, Cromwell J. said that the “threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it.” For the reasons that follow, I find that this is one of the “quite rare” matters for which the proposed expert’s evidence is ruled inadmissible because the proposed expert (i.e., Mr. Beazley) is unable or unwilling to give opinion evidence that is fair, objective, and non-partisan.

[19] In making that finding, I have considered the circumstances of the proposed expert and the substance of the proposed evidence: White Burgess, at para. 49. As to Mr. Beazley’s circumstances, he is a party to the action, with a direct financial interest in its outcome. As noted by Cromwell J. at para. 49 of White Burgess, a direct financial interest in the outcome of litigation is of “more concern” than a lesser interest or connection with the litigation.

[20] At para. 7 of Marshall v. Jackson, 2021 ONSC 2361, 154 O.R. (3d) 715, and relying on White Burgess, Morgan J. stated that it is “trite law to say that a party cannot function as his or her own expert, regardless of the professional qualifications of the party, since expert evidence must be ‘fair, objective and non-partisan’.” At para. 8, Morgan J. highlighted the impropriety of requiring a party to engage in what is considered the expert’s task.

[21] Leaving aside Mr. Beazley’s role as a party, the substance of the proposed evidence supports a finding that Mr. Beazley is unable or unwilling to give opinion evidence that is fair, objective and non-partisan.

[22] Mr. Beazley concludes the first of the Beazley Reports with the following paragraph:

I don’t expect Doctors to know everything – no one does and we are all learning. BUT: But I do expect Doctors to try and when I’m standing there with the standards of care literally in my hand and they won’t even look at them or do anything – that is negligence, failure in fiduciary duty, willful misconduct showing a wanton and reckless disregard for life that has resulted in years of misery, damage and likely a lifetime of more misery. [1]

[23] In the second of the Beazley Reports, the first section is titled “General Observations On Errors, Bias & Perjury ***”. In that section, Mr. Beazley states that the opinions of the seven experts upon whose evidence the defendants rely “are of little value.” Elsewhere in the same section, Mr. Beazley says that the experts’ reports upon which the defendants rely include “Many UNFOUNDED BAD ASSUMPTIONS”. In other entries, Mr. Beazley describes the opinions of the defendants’ experts as “ BIASED ”.

[24] In the same report, Mr. Beazley describes the evidence of the defendants’ experts as “ BLATANT PERJURY *** ”. Mr. Beazley devotes the second section of the same report to identifying that not only is he asking the court to “impeach the expert reports”, but that he “WILL BE SEEKING PERJURY *** CHARGES” against the defendants’ experts. Mr. Beazley also asks the court to (a) review any previous expert testimony given by the defendants’ experts, and (b) bar the defendants’ experts from future independent medical examination activities.

[25] The lack of objectivity and partisan nature of the contents of the paragraph quoted above are obvious.

[26] The substantive contents of the Beazley Reports also support a finding that Mr. Beazley has, in the context of providing expert evidence, taken on the role of advocate. As additional support for that finding, I rely on para. 5 of the affidavit of Mr. Beazley, at Volume 1, Tab 3, Caselines pp. A433-435 of the “Plaintiff Caselines Documents”. Mr. Beazley therein states that, after reviewing the Doctors’ motion record, including the affidavits and reports of the defendants’ experts, his “findings, opinions, conclusions concerning this case are unchanged from [the] Pleading”.

[27] By referencing the Pleading in the context of expert opinion evidence, Mr. Beazley conflates the purpose of that instrument of advocacy with the substance of expert opinion evidence. At the same time, he conflates the role of an advocate with that of an expert witness.

[28] It is clear from all of the above that Mr. Beazley is unable or unwilling to fulfill the primary duty of an expert witness.

[29] I also note the following regarding the substance of the Beazley Reports. As stated by Smith A.C.J. at para. 18 in Ocean v. Economical Mutual Insurance Company, 2010 NSSC 315, 293 N.S.R. (2d) 394, “calling a document an ‘expert’s report’ does not make it an expert’s report”; taking the opinions of several people and binding them together does not constitute an expert’s report. The Beazley Reports contain a mix of information, including hyperlinks to additional documents. I find that the Beazley Reports are not the reports of an expert.

Disposition

[30] Therefore, I dismiss Mr. Beazley’s request to be qualified as an expert witness to give opinion evidence in the areas of the diagnosis and treatment of Lyme disease. The Beazley Reports are not admissible as evidence either in response to the defendants’ motions or in support of Mr. Beazley’s motion for partial summary judgment.

Madam Justice Sylvia Corthorn

Released: March 24, 2022

[1] All quotations from the Beazley Reports appear as in the original including, for example, with all upper case lettering, bolded font, and appended by asterisks.