R. Khan, a minor by his Litigation Guardian, B. Khan, et al. v. Lee^*^

[Indexed as: Khan (Litigation Guardian of) v. Lee]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Gillese and Pardu JJ.A.

December 11, 2014

123 O.R. (3d) 703 | 2014 ONCA 889

Case Summary

Civil procedure — Pleadings — Statement of claim — Motion judge erring in striking out statement of claim in medical negligence action on ground that it did not set out sufficient particulars — Plaintiffs only in position to particularize allegations after production and discovery — Plaintiffs not required to obtain expert opinion before pleading.

Held, the appeal should be allowed.

A plaintiff in a medical negligence action should not be expected to obtain an expert opinion before pleading. The plaintiffs would only be in a position to particularize the allegations against the defendant after production and discovery. The pleading contained a sufficient statement of the material facts to enable the defendant to deliver a statement of defence.

Basdeo (Litigation Guardian of) v. University Health Network, [2002] O.J. No. 263, [2002] O.T.C. 54, 111 A.C.W.S. (3d) 33 (S.C.J.) [Leave to appeal to Div. Ct. refused [2002] O.J. No. 3046, 115 A.C.W.S. (3d) 594 (Div. Ct.)]; [page704] Chenier v. Hôpital Général de Hawkesbury, [2006] O.J. No. 1679 (S.C.J.), consd

Other cases referred to

Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641; Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 81 C.C.L.T. (3d) 220, 276 O.A.C. 75 (C.A.); McSween v. Louis, 2000 5744 (ON CA), [2000] O.J. No. 2076, 187 D.L.R. (4th) 446, 132 O.A.C. 304, 97 A.C.W.S. (3d) 327 (C.A.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 25.06(1), (8)

APPEAL from the order of E.M. Morgan J., [2014] O.J. No. 1033, 2014 ONSC 1497 (S.C.J.) striking a statement of claim.

Gavin MacKenzie and Jennifer A. Whincup, for appellants.

Kirk F. Stevens and Jennifer Z. Hunter, for respondent.

The judgment of the court was delivered by

PARDU J.A.: —

[1] This appeal involves an assessment of the level of detail required by rule 25.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in a pleading alleging negligent medical care.

[2] Rule 25.06(1) provides:

25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

Background

[3] According to the statement of claim, Dr. Lee cared for Bibi Khan during her pregnancy, hospitalization and the delivery of her son Rahim Khan, who was born on May 15, 1991 following an emergency Caesarean section. The claim alleged that, because of Dr. Lee's conduct, Rahim Khan suffered permanent brain damage, resulting in serious mental and physical impairments.

[4] This matter has a lengthy procedural history. The statement of claim was issued on April 5, 2011. Shortly after service of the statement of claim, Dr. Lee served a demand for particulars as to exactly how it was alleged that he failed to meet the standard of care. He also asked for various hospital and clinical records. The plaintiffs undertook to provide him with the relevant records, but indicated that they did not have any further particulars to provide. [page705]

[5] Dr. Lee then brought a motion to strike the statement of claim on the ground that it did not disclose "material facts or particulars relating to any act or omission on the part of Dr. Lee". He did not swear an affidavit in support of his motion stating that he was unable to plead a defence.

[6] The plaintiffs then obtained a master's order to examine Dr. Lee under oath on his inability to respond to the claim. Dr. Lee's appeal from that order was dismissed. Dr. Lee admitted during the examination that, while he did not specifically remember Ms. Khan, he provided obstetric care to her during her pregnancy, hospitalization and the delivery of her baby. He had also reviewed the hospital records and his clinical notes.

[7] The statement of claim includes the following allegations of negligence:

The plaintiffs allege that their injuries, loss and damage were caused or contributed to by the negligence of the defendant, particulars of which include the following:

a. He did not use reasonable and proper skill or care in his efforts to treat the plaintiff, Bibi Khan, and [Rahim Khan];

b. He failed to exercise the degree of knowledge, skill and diligence, which he ought to have possessed and exercised on behalf of the plaintiff, Bibi Khan and [Rahim Khan];

c. He failed to follow accepted medical practices in the diagnosis and treatment of the plaintiff, Bibi Khan, and [Rahim Khan];

d. He did not carry out any diagnostic tests and procedures available to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] including tests and procedures available to assess fetal growth and well-being;

e. He failed to diagnose the condition of the plaintiff, Bibi Khan, and [Rahim Khan];

f. He failed to recommend that tests and procedures available to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] be carried out, including tests and procedures available to assess fetal growth and fetal well-being;

g. He failed to check and monitor the condition of the plaintiff, Bibi Khan, and [Rahim Khan] and failed to respond to same;

h. He failed to prescribe medication and therapeutic procedures required to prevent complications from arising;

i. He failed to observe the damage occurring to [Rahim Khan] and failed to take any steps to prevent injury or damage;

j. In the treatment he provided, he created and/or increased the risk that [Rahim Khan] would sustain injury and damage, and in particular, permanent brain damage; [page706]

k. He failed to admit the plaintiff, Bibi Khan, to the hospital when indicated;

l. He failed to provide for the availability of an immediate [Caesarean] section when same was indicated;

m. In failing to provide for the availability of an immediate [Caesarean] section when indicated, he created and/or increased the risk that [Rahim Khan] would sustain injury and damage, and in particular, permanent brain damage;

n. He failed to obtain the informed consent of the plaintiffs to the treatment and procedures carried out.

Decision of the Motion Judge

[8] The motion judge was confronted with conflicting authorities dealing with similar pleadings. He adopted the views expressed in Basdeo (Litigation Guardian of) v. University Health Network, [2002] O.J. No. 263, [2002] O.T.C. 54 (S.C.J.), [at para. 17], leave to appeal to Div. Ct. refused [2002] O.J. No. 3046, 115 A.C.W.S. (3d) 594 (Div. Ct.): "Surely the defendants are entitled to have some indication of how they failed to exercise reasonable skill and care, what diagnostic steps were not taken, what tests were not administered, what medications should have been prescribed but were not, and so on". The motion judge observed [at para. 18] that "the Rules do not differentiate between different causes of action in respect of the requirements for pleadings", and agreed with the view expressed in Basdeo, at para. 19: "If a plaintiff in a conspiracy claim is required to plead with specificity the facts giving rise to the conspiracy, I see no reason why the plaintiff in a medical malpractice claim ought not to be required to plead with specificity the facts which constitute the malpractice." The motion judge found that [at para. 16]:

[T]he Plaintiff still cannot say what tests the Defendant omitted, what procedures and treatments he should have pursued but did not, what indications he overlooked for hospitalizing or preparing Bibi Khan for a [Caesarean] section, what steps he took or did not take that added to Rahim Khan's risk of injuries, and what it is that was done without obtaining the Plaintiffs' consent.

[9] On this basis, the motion judge found that the pleadings, including the following pleadings in paras. 8(d) and 8(f) of the statement of claim, were insufficient:

d. [Dr. Lee] did not carry out any diagnostic tests and procedures available to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] including tests and procedures available to assess fetal growth and well-being; [page707]

f. He failed to recommend that tests and procedures available to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] be carried out, including tests and procedures available to assess fetal growth and fetal well-being[.]

[10] The motion judge accepted the point raised by the appellants' counsel that the plaintiffs were not required to retain an expert at the pleadings stage of the action, but indicated [at para. 17] nonetheless that the "Defendant must be in a position to know what alleged wrongdoing he is required to defend". The motion judge struck the statement of claim without leave to amend, given that the plaintiffs acknowledged that they had no further particulars to provide.

Analysis

[11] Each of the parties relies on a Superior Court decision. These decisions, dealing with similar pleadings, are conflicting. The respondent submits that the motion judge was correct to rely on Basdeo. The appellants argue that the motion judge ought to have applied Chenier v. Hôpital Général de Hawkesbury, [2006] O.J. No. 1679 (S.C.J.), which held that similar pleadings were sufficient.

[12] I do not agree with Basdeo, and prefer the reasoning in Chenier.

[13] I agree with the observation of Aitken J. in Chenier, at para. 21:

At this early stage in the litigation process, it would be placing an unduly onerous burden on the Plaintiffs to describe in detail what transpired or did not transpire at all of these points in time. The Defendants are in the position of knowing with great particularity what was done or not done by way of treatment and intervention. The Plaintiffs will only be able to further particularize their allegations once any records that have been disclosed to them by the Defendants are further supplemented with responses given on discovery. The Plaintiffs cannot be expected to have retained their own medical experts to assist in particularizing their allegations regarding a breach of a standard of care by the Defendant Physicians before those experts would have access to all available information as to what actually happened at the time of Sacha's birth.

[14] It is noteworthy that the defendant physician did not at any stage swear in an affidavit that he was unable to plead a defence.

[15] Presumably, the defendant would be aware of the standard of care at the relevant time. He has his office chart and the hospital records, so he would know what he did or did not do. His interactions with the patient over the period of the pregnancy are discrete and identifiable, over a relatively short period.

[16] As acknowledged by the respondent in oral argument, the effect of the motion judge's order is to require a plaintiff in a case [page708] like this one to obtain an expert opinion before pleading, in the absence of full information about the case. While getting an early opinion might be useful and prudent, it should not be required as a condition of starting an action. Many plaintiffs will not have the expertise required to plead with precision the exact tests a defendant should have ordered.

[17] Furthermore, a limitation period will begin to run when a plaintiff has "sufficient facts upon which she could allege negligence", and, in some cases, before the plaintiff has expert opinion evidence or knows the precise cause of the injury: Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75 (C.A.), at para. 36.

[18] In Lawless, at para. 36, the court approvingly cited the following passage from McSween v. Louis, 2000 5744 (ON CA), [2000] O.J. No. 2076, 132 O.A.C. 304 (C.A.), at para. 51: "the production and discovery process and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants".

[19] Rule 1.04(1) provides that "[t]hese rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits". To strike a statement of claim in the circumstances of this case would significantly impede rather than facilitate access to justice, an important value emphasized in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7.

[20] Further, I also observe that, contrary to the views expressed by the motion judge, at para. 18, and in Basdeo, at para. 19, the Rules of Civil Procedure do differentiate between causes of action in respect of the requirements for pleadings. Rule 25.06(8) provides: "Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars . . .".

[21] In my view, the motion judge erred in striking the statement of claim. In the circumstances of this case, the pleading contains a sufficient statement of the material facts to enable the respondent to deliver a statement of defence.

[22] Accordingly, I would allow the appeal.

[23] For these reasons, the appeal is allowed and the order of March 6, 2014 is set aside. The plaintiff is awarded costs of the motion in the sum of $8357.41, all inclusive, and costs on the appeal fixed at $15,000, all inclusive.

Appeal allowed.

• Vous trouverez la traduction française à la p. 709, post.

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