Court File and Parties

COURT FILE NO.: CV-21-00666281-0000 DATE: 20240502 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DONALD JAMESON WHITEHEAD, Plaintiff AND: ONTARIO SHORES CENTRE FOR MENTAL HEALTH SCIENCES and DR. OMAR GHAFFAR, Defendants

BEFORE: VERMETTE J.

COUNSEL: Donald Jameson Whitehead, self-represented Nadine Tawdy, for the Defendant Ontario Shores Centre for Mental Health Sciences Kosta Kalogiros and Erich Schultze, for the Defendant Dr. Omar Ghaffar

HEARD: November 14, 2023

Endorsement

[1] This is a medical malpractice action. The Defendants bring motions for summary judgment and ask that the action be dismissed. Both Defendants have filed expert evidence and other evidence in support of their motions.

[2] The Plaintiff did not file any evidence in response to the motions. At the hearing, he was allowed to file a package of medical records, which were not attached to any affidavit. Despite the fact that the hearing of the Defendants’ motions was scheduled one year in advance, the Plaintiff did not provide any affidavit evidence or expert evidence in support of his position. He has also stated more than once that he does not intend to obtain expert evidence in the action.

[3] It has been repeatedly stated in the case law that the absence of expert evidence in support of a plaintiff’s medical malpractice claim is fatal, aside from the clearest of cases. This case is certainly not one of those clearest of cases.

[4] In light of the evidence filed by the Defendants and the absence of any evidence – including expert evidence – supporting the Plaintiff’s position, I conclude that there is no genuine issue requiring a trial with respect to the claims made against the Defendants. Consequently, the motions are granted and the action is dismissed.

A. Factual Background

1. The parties

[5] The Defendant Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) is a public hospital that provides inpatient and outpatient psychiatric and mental health care.

[6] The Plaintiff, Donald Jameson Whitehead, was both an inpatient and outpatient at Ontario Shores starting in 2014.

[7] The Defendant Dr. Omar Ghaffar is a physician specializing in psychiatry. At all material times, he had privileges to practice at Ontario Shores. He provided care to Mr. Whitehead as both an inpatient and outpatient.

2. Factual chronology

[8] The following factual background is based mostly on the medical records that were filed and the affidavit of Dr. Ghaffar.

[9] Prior to any involvement by the Defendants, Mr. Whitehead underwent a lobectomy for treatment of seizures on January 12, 2012.

[10] On January 16, 2014, Mr. Whitehead was admitted as an inpatient of Ontario Shores following a transfer from Lakeridge Health after he was apprehended by police walking down the street with a sledgehammer. Mr. Whitehead was admitted pursuant to a certificate of involuntary admission under the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”), due to risk of serious bodily harm to another person.

[11] On January 21, 2014, Dr. Ghaffar determined that Mr. Whitehead no longer met the criteria for involuntary admission and changed his status to voluntary. Mr. Whitehead agreed with the change.

[12] On February 10, 2014, Mr. Whitehead was discharged. Following his discharge, he voluntarily attended the Ontario Shores Outpatient Neuropsychiatry Service where he saw Dr. Ghaffar a few times.

[13] On March 31, 2015, Mr. Whitehead was referred to Ontario Shores by the criminal justice system through the mental health diversion program.

[14] Later in 2015, more specifically from July 27 to November 30, 2015, Mr. Whitehead was an inpatient at Ontario Shores under the care of Dr. Ghaffar.

[15] On July 27, 2015, Mr. Whitehead was voluntarily readmitted at Ontario Shores. He was subject to a bail condition that he remain at Ontario Shores. On August 2, 2015, he left Ontario Shores in violation of his bail conditions by going through a bathroom window. He was brought back to Ontario Shores by the police.

[16] During this admission to Ontario Shores, Dr. Ghaffar diagnosed Mr. Whitehead with a cognitive disorder and a psychotic disorder due to a medical condition (right temporal lobectomy) with features of biphasic mood disorder.

[17] On August 5, 2015, Mr. Whitehead was assessed pursuant to a Form 1 assessment under the MHA. Also on August 5, 2015, Mr. Whitehead was delivered a Form 33 Notice to Patient identifying that a determination had been made that he was not mentally capable to consent to treatment of a mental disorder. Due to his ongoing aggressive behaviour, Mr. Whitehead was also placed under a certificate of involuntary admission. Mr. Whitehead appealed his involuntary status and incapacity to the Consent and Capacity Board. The Board upheld Mr. Whitehead’s involuntary status and incapacity on August 19, 2015.

[18] Mr. Whitehead’s parents were designated as his substitute decision-makers for psychiatric treatment, in accordance with the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.

[19] On August 24, 2015, Dr. Ghaffar met with Mr. Whitehead’s parents. He explained the risks and benefits of the proposed treatment plan, including the risk of seizures. Both parents signed “Consent to Treatment” forms. Mr. Whitehead’s treatment plan included a series of intramuscular (“IM”) injections of paliperidone palmitate, which is a long-acting injectable anti-psychotic medication used for the treatment of psychosis.

[20] On August 24, 2015, the staff at Ontario Shores applied restraints to Mr. Whitehead and administered medication via IM injections into Mr. Whitehead’s deltoids. Mr. Whitehead was cooperative during the procedure.

[21] On or about September 16, 2015, Mr. Whitehead agreed to remain at Ontario Shores voluntarily to comply with the treatment plan. As such, his involuntary status was discontinued.

[22] Mr. Whitehead was discharged as an inpatient of Ontario Shores on November 30, 2015 on a Community Treatment Order. Dr. Ghaffar remained involved in Mr. Whitehead’s care as an outpatient. Mr. Whitehead’s psychosocial functioning continued to improve in response to the paliperidone palmitate injections.

[23] Dr. Ghaffar resigned from Ontario Shores for parental leave, effective July 7, 2018. He informed Mr. Whitehead about his upcoming parental leave, and referred him to a psychiatrist at the Toronto Rehabilitation Institute to continue treatment. Following his resignation from Ontario Shores on July 7, 2018, Dr. Ghaffar had no further involvement in Mr. Whitehead’s treatment or care.

3. The action

[24] This action was commenced on July 28, 2021. When the action was commenced, Mr. Whitehead was represented by a lawyer. He is now self-represented.

[25] Mr. Whitehead seeks the following relief against the Defendants, jointly and severally: a. general damages in the amount of $1 million; b. damages for intentional or negligent infliction of emotional distress in the amount of $5 million; and c. punitive damages in the amount of $500,000.00.

[26] In his Statement of Claim, Mr. Whitehead states that he was transferred to Ontario Shores on January 16, 2014 for stabilization treatments of symptoms from a previous lobectomy surgery. He pleads that Dr. Ghaffar was an employee of Ontario Shores in 2014.

[27] Mr. Whitehead alleges that he was assaulted and battered by Dr. Ghaffar during the course of the treatments, including: a. strapping him against his will in order to inject him with medicine; and b. unlawfully and discriminatorily quarantining him in a solitary confinement.

[28] Mr. Whitehead also alleges that Dr. Ghaffar was negligent, including that Dr. Ghaffar failed to do the following: a. advise Mr. Whitehead adequately, or at all, of any risks associated with procedures in order to allow Mr. Whitehead the opportunity to provide informed consent; b. inform Mr. Whitehead that there was an alternative, more conservative treatment available that would have exposed Mr. Whitehead to less risk; c. advise Mr. Whitehead that neither Dr. Ghaffar nor Ontario Shores had the knowledge, expertise or facilities to treat Mr. Whitehead with available clinical alternatives that presented less risk to Mr. Whitehead; d. advise Mr. Whitehead that due to his special circumstances it would have been preferable for Mr. Whitehead to have treatments for seizures performed by another physician at a different hospital with the knowledge, expertise and facilities to conduct said procedure or treat Mr. Whitehead with appropriate alternatives that presented less risk to Mr. Whitehead; and e. advise Mr. Whitehead that Dr. Ghaffar was not sufficiently experienced in conducting the treatments for seizures and there was no other experienced physician at Ontario Shores who had adequate training in the procedure.

[29] In addition, Mr. Whitehead pleads that Dr. Ghaffar committed a battery because he either failed to obtain the consent to medical treatment, provided medical treatment beyond the scope of the consent or obtained consent as a result of misrepresentation. Mr. Whitehead states that Dr. Ghaffar, in performing the procedures, engaged in intentional physical contact with Mr. Whitehead in the absence of consent, which was harmful or offensive to Mr. Whitehead.

[30] Mr. Whitehead pleads that Ontario Shores was negligent. He provides the following particulars of negligence in the Statement of Claim: a. failure to provide proper facilities and adequate staffing for the purpose of diagnosing the condition of Mr. Whitehead in determining a suitable course of treatment; b. failure to have adequate medical systems in place to ensure that medical examinations were conducted with proper care; c. failure to provide and maintain proper hospital procedures and the standards for the diagnosis, care and treatment of its patients; d. failure to be aware of the limitations of knowledge and experience of Dr. Ghaffar; e. failure to train and supervise properly the healthcare providers employed by Ontario Shores or providing treatment to patients within Ontario Shores; f. failure to ensure that the knowledge and skill of the healthcare providers responsible for the diagnosis and care of the patients at Ontario Shores, and in particular persons in the condition of Mr. Whitehead, was proper and adequate; g. failure to have competent medically trained staff for the delivery of medical care to its patients; and h. failure to provide a level of medical care and skill reasonably expected of healthcare providers in Toronto.

[31] Mr. Whitehead pleads that his relationship with Dr. Ghaffar and Ontario Shores was contractual in nature, and that an implied term of the contract was that the Defendants would exercise due care, skill and diligence in providing healthcare services to him. Mr. Whitehead alleges that the Defendants breached the implied terms of the contract as a result of the alleged conduct set out above.

[32] Finally, Mr. Whitehead alleges that Dr. Ghaffar failed to discharge the fiduciary duties that he owed to Mr. Whitehead. Among other things, Mr. Whitehead pleads that Dr. Ghaffar should have known that he had deficient psychiatric skills and abilities relevant to the care and treatment of Mr. Whitehead, and that Dr. Ghaffar failed to disclose this and other related information to Mr. Whitehead.

[33] Ontario Shores served a Statement of Defence and Crossclaim dated October 7, 2021 in which it denies the allegations in the Statement of Claim and any breach of duty.

[34] Dr. Ghaffar served a Notice of Intent to Defend on October 8, 2021, and a Demand for Particulars on October 26, 2021. Mr. Whitehead responded to the Demand for Particulars on March 16, 2022. Dr. Ghaffar served his Statement of Defence and Crosscclaim on September 12, 2022. He denies the allegations in the Statement of Claim.

4. Motions for summary judgment

[35] On November 21, 2022, the parties participated in a case conference before Justice Koehnen. At the case conference, Justice Koehnen established a timetable for the steps in the action, including the examinations for discovery and the mediation. He also scheduled the Defendants’ motions for summary judgment for November 14, 2023, and established a timetable for the motions. Pursuant to the timetable, the Defendants’ motion records were to be delivered by June 16, 2023, and Mr. Whitehead’s responding motion record was to be delivered by August 1, 2023. Justice Koehnen noted the following in his endorsement:

Mr. Whitehead expects this will be a very long trial. Although this is a claim arising out of medical treatment at the Ontario Shores Centre of Mental Health Sciences, Mr. Whitehead does not intend to deliver an expert report because he cannot afford one.

[36] Oral examinations for discovery of Mr. Whitehead, Ontario Shores and Dr. Ghaffar were conducted on January 10, 2023. During his examination for discovery, Mr. Whitehead stated that he did not intend to obtain any expert opinion in relation to the motions for summary judgment or in support of his claim.

[37] A mandatory mediation took place on March 2, 2023. It was unsuccessful.

[38] The Defendants have filed affidavit evidence on this motion. Mr. Whitehead has not.

[39] Ontario Shores has filed two affidavits: the affidavit of a lawyer attaching medical records and documents related to the litigation, and the affidavit of a medical expert, Dr. Jay Moss.

[40] Dr. Ghaffar has filed three affidavits: his own affidavit, the affidavit of a law clerk attaching medical records and documents related to the litigation (including excerpts from the examination for discovery of Mr. Whitehead), and the affidavit of a medical expert, Dr. Andrew Lustig. Dr. Ghaffar has also filed a Supplementary Motion Record that contains an affidavit attaching communications between the Defendants’ counsel and Mr. Whitehead after the service of the motion records. These communications are set out below.

[41] On July 18, 2023, counsel for Dr. Ghaffar sent the following e-mail to Mr. Whitehead:

I write simply to remind you that, pursuant to the court ordered timetable, your responding materials for the defendants’ summary judgment motion are due on or before August 1st.

Many thanks.

[42] Mr. Whitehead responded as follows later on the same day:

My claim relies on the evidence that has already been submitted within the discovery process.

I can only hope that the Doctor is prepared for myself to appeal and present this up to the supreme courts if the Superior courts try to snuff my claim within the tomfoolery of legislated acts that only protects criminals such as himself in circumstantial claims like the one I have presented to the courts.

Shame on all of you.

[43] On August 9, 2023, counsel for Ontario Shores sent the following e-mail to Mr. Whitehead:

This simply serves as a reminder that your responding motion materials were due by August 1, 2023. Please note that rule 20.02(2) of the Rules of Civil Procedure indicates: “In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit materials or other evidence, specific facts showing that there is a genuine issue requiring a trial.”

As always, we cannot provide you with legal advice and nothing in this correspondence should be interpreted as providing legal advice.

[44] Based on the record before me, it does not appear that Mr. Whitehead responded to this e-mail.

[45] On August 17, 2023, counsel for Dr. Ghaffar sent an e-mail to Mr. Whitehead. The e-mail stated, in part:

We note that in your email of July 18, 2023, you identified that there is evidence that you intend to rely on in your response to the summary judgment motion. Can you please let us know which specific documents you intend to rely on? If you do, we are happy to prepare a brief of them for you.

[46] Mr. Whitehead did not respond to this e-mail.

[47] Despite being advised about Rule 20.02(2) of the Rules of Civil Procedure, Mr. Whitehead did not file any affidavit evidence in response to the motions. At the hearing, he had with him a package of numerous medical records that he wanted to use. The Defendants did not object to the records being admitted, except for written comments that were added onto the records by Mr. Whitehead. I allowed Mr. Whitehead to file the medical records and use them during his submissions, but I reminded him that the hearing was limited to submissions and that he could not give oral evidence.

[48] Despite this, Mr. Whitehead’s submissions constituted largely of unsworn and unsubstantiated oral evidence criticizing, denying and/or contradicting information contained in the medical records, and alleging various lies by numerous people, including a number of doctors, hospital staff and members of his own family.

[49] At the hearing, Mr. Whitehead was under the misapprehension that the Court could grant his action at this time. I explained to him that he had not brought a motion for summary judgment and had filed no evidence and that, therefore, the only motions before the Court were the Defendants’ motions and the determination of these motions could not lead to the granting of the action. During the hearing, Mr. Whitehead also made additional claims that have not been pleaded in his Statement of Claim, including a claim for defamation.

5. Expert evidence

i. Evidence of Dr. Jay Moss

[50] Ontario Shores has adduced the expert evidence of Dr. Jay Moss, a medical doctor and practicing psychiatrist. Dr. Moss has been practicing as a general psychiatrist at Sunnybrook Health Sciences Centre since 1987, and he holds the rank of Assistant Professor in the Department of Psychiatry at the University of Toronto.

[51] Based on his review of the materials, including clinical records, policies and discovery transcripts, Dr. Moss’ opinion is that the care provided to Mr. Whitehead by Ontario Shores and staff met the applicable standard of care.

[52] Dr. Moss also states in his report that: a. “[t]he use of restraint measures, be they chemical, mechanical or seclusion, were necessary components in the care and treatment of Mr. Whitehead at Ontario Shores”; and b. “[i]n consideration of the potential dangers posed by Mr. Whitehead through his assaultive and threatening behaviours, […] the restraint measures and treatments provided by Ontario Shores staff were appropriate.”

ii. Evidence of Dr. Andrew Lustig

[53] Dr. Ghaffar has adduced the expert evidence of Dr. Andrew Lustig. Dr. Lustig is a physician specializing in psychiatry. Dr. Lustig has been practicing as a psychiatrist at the Centre for Addiction and Mental Health (“CAMH”) since 2008. He is also the Inpatient Medical Head, Division of General Psychiatry and Health Systems at CAMH.

[54] Based on his review of the materials, including the medical records and discovery transcripts, Dr. Lustig’s opinion is that all aspects of the care that Dr. Ghaffar provided to Mr. Whitehead met the standard of practice expected of a psychiatrist practicing in Ontario at the relevant time. He states in his report that “Dr. Ghaffar demonstrated a high level of clinical and professional skill in his interactions with Mr. Whitehead and his family.” He also opines that Dr. Ghaffar was “supremely well qualified to treat Mr. Whitehead.”

[55] In his report, Dr. Lustig notes that: (a) Dr. Ghaffar had detailed conversations with Mr. Whitehead and, later, with Mr. Whitehead’s parents when they were functioning as his substitute decision-makers; (b) the treatments provided were exactly those treatments for which Dr. Ghaffar obtained informed consent, so he did not provide medical treatment beyond the scope of the consent; and (c) Dr. Ghaffar did not misrepresent the nature, risks or benefits of the treatments in obtaining informed consent.

[56] Dr. Lustig also opines that: (a) Dr. Ghaffar and the team at Ontario Shores used seclusion and restraint in a thoughtful and appropriate manner; and (b) Dr. Ghaffar appropriately assessed consent and capacity.

B. Discussion

1. General principles applicable on a motion for summary judgment

[57] On a motion for summary judgment, the court must first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers set out in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. See Hryniak v. Mauldin, 2014 SCC 7 at para. 66 (“Hryniak”).

[58] If there appears to be a genuine issue requiring a trial, the court should then determine if the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2), i.e., weighing the evidence, evaluating the credibility of deponents, drawing any reasonable inference from the evidence or ordering that oral evidence be presented. The court may, at its discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. See Hryniak at para. 66.

[59] While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either of the expanded fact-finding powers or to call oral evidence is discretionary. See Hryniak at para. 68 and Rules 20.04(2), 20.04(2.1) and 20.04(2.2) of the Rules of Civil Procedure.

[60] A party moving for summary judgment has the evidentiary burden of showing that there is no genuine issue requiring a trial with respect to a claim or defence: Rule 20.04(2)(a). The burden shifts to the responding party to prove that its claim or defence has a real chance of success only after the moving party has discharged its evidentiary burden of establishing that there is no genuine issue requiring a trial. See Sanzone v. Schechter, 2016 ONCA 566 at para. 30 (“Sanzone”) and Kinectrics Inc. v. FCL Fisker Customs & Logistics Inc., 2020 ONSC 6748 at para. 35.

[61] Each party must put its best foot forward to establish whether or not there is a genuine issue requiring a trial: see Ramdial v. Davis, 2015 ONCA 726 at para. 27 (“Ramdial”). The court is entitled to assume that the record contains all the evidence that the parties would present at trial: see Toronto-Dominion Bank v. Hylton, 2012 ONCA 614 at para. 5 and Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438 at para. 7. Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment: see Soliman v. Bordman, 2021 ONSC 7023 at para. 133. A responding party has an obligation to “lead trump or risk losing” and cannot rely on allegations or denials in the pleadings; it must present evidence of specific facts demonstrating that there is a genuine issue requiring a trial: see Ramdial at paras. 28 and 30, and Sylvite v. Parkes, 2020 ONSC 5569 at para. 16. A self-serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence: see Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 432 at para. 31 (“Gordon Capital”).

[62] The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in rule 20.02(1) of the Rules of Civil Procedure. See Sanzone at para. 15.

2. Self-represented litigant

[63] While fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable them to present their case to the best of their ability, any accommodation made by a judge to a self-represented party must respect the rights of the other party. A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law, whether the plaintiff is represented by counsel or self-represented. However, when a represented party invokes the mechanisms available under the Rules of Civil Procedure to seek some relief against a self-represented party, the represented party must ensure it complies fully with its own obligations under the rules, and not use the rules to take unfair advantage of the self-represented litigant. See Sanzone at paras. 21-23.

[64] In this case, the motions for summary judgment were scheduled one year before the actual hearing. The issue of expert evidence was raised during the scheduling case conference with Justice Koehnen, as reflected in his endorsement, but Mr. Whitehead indicated that he did not intend to deliver an expert report. This was confirmed during his examination for discovery in January 2013. Mr. Whitehead had ample time to obtain an expert report and/or prepare an affidavit with his version of events. However, he did not do so, despite the timetable ordered by Justice Koehnen and despite the communications of counsel for the Defendants informing him of the need to file responding materials.

[65] While I allowed Mr. Whitehead to file medical records at the hearing, it would be very unfair to the Defendants, and would not respect their rights as parties, to accept the oral evidence given by Mr. Whitehead at the hearing, which was unsworn, unsupported, and not subject to cross-examination. In any event, such evidence would be insufficient to create a triable issue as it was akin to a self-serving affidavit without detailed facts and supporting evidence: see Gordon Capital at para. 31.

[66] Mr. Whitehead did not request an adjournment. In fact, he stated that he wanted the matter to be decided quickly. Mr. Whitehead did not provide any explanation as to why he did not file responding materials at anytime during the five months between the delivery of the Defendants’ motion records and the hearing. He has also made it clear that he does not intend to obtain an expert report. I note that the Defendants have waited one year to have their motions heard. In these circumstances, an adjournment would not be appropriate, especially since it would almost certainly lead to the same result, notably Mr. Whitehead filing no expert evidence.

[67] In Sanzone, the Court of Appeal dealt with a situation where a self-represented litigant had failed to serve an expert report in a malpractice action. In that case, the self-represented plaintiff had commenced a malpractice action against two dentists. The defendants brought a motion for summary judgment and argued that the action should be dismissed because the plaintiff had failed to serve an expert report. The defendants’ motion for summary judgment was dismissed because neither of the dentists had filed an affidavit, nor had they filed an expert report. The Court of Appeal concluded that the defendants had failed to discharge their evidentiary obligation under Rule 20 to put their best evidentiary foot forward by adducing evidence on the merits. However, the Court of Appeal stated that if the defendants had filed evidence dealing with the merits of their defence in support of their motion for summary judgment, it would have been open to the motion judge to treat the self-represented plaintiff’s failure to deliver an expert report as a basis to dismiss the action. See Sanzone at para. 33. See also Kurdina v. Dief, 2010 ONCA 288 at para. 3.

[68] Contrary to the situation in Sanzone, the Defendants in this case have filed evidence dealing with the merits of their defence, including expert evidence. Further, they have complied with their obligations under the Rules of Civil Procedure, and have not used the rules to take unfair advantage of Mr. Whitehead. Therefore, it is open to this Court to treat Mr. Whitehead’s failure to deliver an expert report as a basis to dismiss his action. Mr. Whitehead’s failure to do so and its significance are discussed further below.

3. The Defendants have discharged their evidentiary burden

[69] I find that the Defendants have discharged their evidentiary burden, as the moving parties, of showing that there is no genuine issue requiring a trial with respect to Mr. Whitehead’s claims. See Sanzone at para. 30.

[70] Most of the causes of action pleaded in the action raise issues involving alleged breaches of the standard of care. This is the case for the allegations of negligence, but also for the allegations of breach of contract because the only breach that is pleaded is the breach of the alleged implied term that the Defendants would exercise due care, skill and diligence in providing healthcare services to Mr. Whitehead. [1]

[71] Further, in actions where a plaintiff alleges failure to obtain informed consent, the plaintiff must establish the following: a. the healthcare practitioner who recommended the treatment failed to disclose the material, special or unusual risks of the treatment that was provided; b. the patient (or substitute decision-maker) subjectively would not have consented to the treatment if the disclosure has been properly made; and c. a reasonable person in the patient’s circumstances would not have consented to the treatment had disclosure been properly made.

See Hirchberg v. The Branson Drug Store, 2016 ONSC 4853 at para. 59 (“Hirchberg”).

[72] Expert evidence is relevant to the question of what risks were associated with a particular treatment and were considered material from the standpoint of their probability of occurrence and severity. See Hirchberg at para. 60 and Leblanc v. Hunt, 2011 ONSC 1333 at paras. 60-62, 66-68.

[73] In this case: (a) Dr. Moss has opined that the care provided to Mr. Whitehead by Ontario Shores and staff met the applicable standard of care; and (b) Dr. Lustig has opined that all aspects of the care that Dr. Ghaffar provided to Mr. Whitehead met the applicable standard of practice. On the issue of informed consent and the scope of the treatments, Dr. Lustig’s opinion is that: (a) Dr. Ghaffar had detailed conversations with Mr. Whitehead and, later, with Mr. Whitehead’s parents when they were functioning as his substitute decision-makers; (b) the treatments provided were exactly those treatments for which Dr. Ghaffar obtained informed consent, so he did not provide medical treatment beyond the scope of the consent; and (c) Dr. Ghaffar did not misrepresent the nature, risk or benefits of the treatments in obtaining informed consent.

[74] Based on this expert evidence, as well as the evidence of Dr. Ghaffar and the medical records that were adduced in evidence, the Defendants have discharged their evidentiary burden of showing that there is no genuine issue requiring a trial with respect to Mr. Whitehead’s claims based on negligence, contract and lack of informed consent.

[75] The evidence of Dr. Lustig also constitutes a response to the allegations of battery, i.e., that Dr. Ghaffar either failed to obtain the consent to medical treatment, provided medical treatment beyond the scope of the consent or obtained consent as a result of misrepresentation.

[76] In addition, the evidence of both experts is that the use of seclusion and restraint measures in this case was appropriate and these measures were necessary components in the care and treatment of Mr. Whitehead at Ontario Shores. I also note that Dr. Ghaffar’s evidence is that the use of mechanical restraints, if necessary, was consented to by Mr. Whitehead’s parents, who were his substitute decision-makers. This is confirmed by contemporaneous notes prepared on August 24, 2015 by both Dr. Ghaffar and Matthew Breadner (a physician assistant at Ontario Shores).

[77] Thus, based on the expert evidence, Dr. Ghaffar’s evidence and the medical records, I find that the Defendants have discharged their evidentiary burden of showing that there is no genuine issue requiring a trial with respect to Mr. Whitehead’s allegations of battery and assault.

[78] As for the allegations of breach of fiduciary duty, they are based on Dr. Ghaffar allegedly having deficient psychiatric skills and abilities relevant to the care and treatment of Mr. Whitehead, and failing to disclose this and related information to Mr. Whitehead. As stated above, Dr. Lustig has opined that Dr. Ghaffar was “supremely well qualified to treat Mr. Whitehead”. Based on Dr. Lustig’s expert evidence and Dr. Ghaffar’s own evidence, I am of the view that Dr. Ghaffar has discharged his evidentiary burden of showing that there is no genuine issue requiring a trial with respect to the Plaintiffs’ claim based on breach of fiduciary duty.

[79] Finally, I also agree with Ontario Shores’ submission that it is not vicariously liable for any action by Dr. Ghaffar. It is a well-established principle that a hospital is not liable for the actions and decisions of a physician with privileges at the hospital. See Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208 at para. 20 and Whiteman v. Iamkhong, 2013 ONSC 2175 at para. 108.

4. Mr. Whitehead has not discharged his evidentiary burden

[80] Given that I have found that the Defendants have discharged their evidentiary burden of showing that there is no genuine issue requiring a trial with respect to Mr. Whitehead’s claims, the burden shifts to Mr. Whitehead to prove that his claims have a real chance of success. See Sanzone at para. 30.

[81] In a medical malpractice action, where a defendant has discharged its evidentiary burden, the absence of expert evidence in support of the plaintiff’s claim is fatal in all but the clearest of cases. As the Court of Appeal for Ontario stated in Liu v. Wong, 2016 ONCA 366 at para. 14 (“Liu”):

Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert evidence in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

See also Beazley v. Johnston, 2023 ONSC 4956 at para. 31 and Comer v. Mount Sinai Hospital, 2022 ONSC 1321 at paras. 13-14.

[82] The principles set out in Liu regarding the need for expert evidence also apply in a medical malpractice action where a plaintiff makes allegations with respect to whether informed consent was obtained. In order to raise a triable issue that relates to informed consent, the plaintiff must lead expert evidence. See Lewin-Gillies v. York Central Hospital, 2018 ONSC 883 at para. 48 and Samuel v. Ho at paras. 27-28.

[83] Mr. Whitehead has not adduced any expert evidence critical of Dr. Ghaffar’s and Ontario Shores’ care. Rule 20.02 of the Rules of Civil Procedure is clear:

In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

[84] Mr. Whitehead has not done so.

[85] In addition to not delivering expert evidence, Mr. Whitehead has not adduced any evidence of his mother – who was his substitute decision-maker at the relevant time – with respect to the consent issues that he has raised. [2] More generally, Mr. Whitehead has not filed any evidence in support of his claims and allegations. The medical records that he was allowed to file at the hearing do not, by themselves, support his claims.

[86] Thus, I conclude that Mr. Whitehead has failed to discharge his burden to prove that his claims have a real chance of success.

[87] In my view, this is an appropriate case to grant summary judgment. The record before me includes expert evidence and extensive medical records. In light of Mr. Whitehead’s approach to the litigation, in particular his intention not to adduce expert evidence, summary judgment constitutes a timely, affordable and proportionate procedure. I also note that summary judgment has been granted in numerous medical malpractice cases where plaintiffs had failed to adduce expert evidence.

[88] Thus, I am satisfied that there is no genuine issue requiring a trial with respect to Mr. Whitehead’s claims. As a result, the motions for summary judgment are granted and the action is dismissed.

[89] In light of the foregoing, it is not necessary to deal with the Defendants’ argument that the action is statute-barred because it was issued outside the limitation period.

C. Conclusion

[90] The Defendants’ motions for summary judgment are granted and the action is dismissed.

[91] If costs cannot be agreed upon, the Defendants shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by May 16, 2024. Mr. Whitehead shall deliver his responding submissions (with the same page limit) by May 30, 2024. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines. I ask that counsel for the Defendants assist with the uploading onto CaseLines of any submissions served by Mr. Whitehead.

Vermette J. Date: May 2, 2024

[1] While the Defendants’ position is that they had no contractual relationship with Mr. Whitehead, it is not necessary to decide this issue in the circumstances of this case.

[2] Mr. Whitehead’s father passed away some time ago.