Court of Appeal for Ontario

Citation: Jack v. Gowling, Strathy & Henderson, 2011 ONCA 736

Date: 2011-11-25

Docket: C53461

Before: Feldman, Sharpe and Epstein JJ.A.

Between:

Heather Jack

Plaintiff (Appellant)

and

Gowling, Strathy & Henderson, Harry Dahme, Rhonda Jansen, Gluckstein, Neinstein, Michael Huclack, Neinstein & Associates, Zak A. Muscovitch

Defendants (Respondents)

Counsel:

Allan Rouben, for the appellant

Brian A. Pickard, for the respondent Zak. A. Muscovitch Robin Squires, for the respondent Michael Huclack

Heard: November 21, 2011

On appeal from the order of Justice P.D. Lauwers of the Superior Court of Justice dated March 4, 2011.

ENDORSEMENT

[1] The motion judge dismissed the appellant’s action on the ground that she had failed to comply with undertakings given on discovery despite two court orders that she do so.

[2] The motion judge declined to dismiss the action on non-compliance alone and held that the action could only be dismissed if the respondents were able to demonstrate that non-compliance had given rise to potential or actual prejudice. The motion judge reviewed the various undertakings that had not been complied with and concluded that the crucial issue could be narrowed to this: were the respondents prejudiced or exposed to the risk of prejudice by the appellant’s failure to comply with an undertaking to provide copies of reports and test results from Dr. Zazula, an allergist?

[3] The appellant had seen Dr. Zazula twice: once in April and once in May, 1993. A letter from Dr. Zazula, dated August 25, 1993, written to the appellant’s general practitioner, indicated that the appellant had agreed to a plan involving investigation and treatment. In response to the appellant’s May 29, 2008 request for further records (the lawyer had previously made the same request in May and October 2007), Dr. Zazula indicated that his records were no longer available.

[4] The motion judge noted in his reasons that the respondents’ counsel indicated in oral argument that “we do know that [Dr. Zazula’s records] were destroyed in 2007”. The motion judge concluded that prejudice to the respondents was made out on the basis that Dr. Zazula’s records had been destroyed after the discovery in 2006 and before the appellant requested their production.

[5] Unfortunately, there is no evidence to support the assertion that Dr. Zazula’s records were destroyed in that time period. The basis for counsel’s assertion appears to have been regulations that required Dr. Zazula to retain his records. The appellant asserts that period to be 10 years while the respondents say it is 12 years. Even if the respondents are correct, Dr. Zazula would have been free to destroy his records in 2005, before the examination for discovery.

[6] Moreover, it is not at all clear to us from this record that Dr. Zazula actually did any tests, further investigation or treatment.

[7] Accordingly, there was no basis on the evidence for the motion judge to have concluded that the respondents did suffer actual or potential prejudice from the appellant’s failure to comply with her obligations to comply with the undertakings given on discovery pertaining to the production of materials relating to her consultation with Dr. Zazula or with the order. As this finding was crucial to his disposition of the motion the error is fatal to the order dismissing the action.

[8] The appeal is allowed and the order dismissing the action is set aside. The appellant is entitled to costs of the appeal fixed at $25,000 inclusive of disbursements and H.S.T.

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“G.J. Epstein J.A.”