CITATION: Elguindy v. St. Joseph’s Health Care, 2016 ONSC 2847
DIVISIONAL COURT FILE NO.: 16/15
DATE: 20160519
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. SACHS, C. HORKINS AND L. A. PATTILLO JJ.
BETWEEN:
EMAD ELGUINDY Applicant
– and –
ST. JOSEPH’S HEALTH CARE LONDON, LISA BARNES, DR. BRIAN LAROCQUE AND DR. HASSAN RAZVI Respondents
Applicant – Self-Represented
Lee Lenkinski for the Respondents, St. Joseph’s Health Care London and Lisa Barnes
Alysia Christiaen, for the Respondents Dr. Brian Larocque and Dr. Hassan Razvi
HEARD at London: April 20, 2016
REASONS FOR JUDGMENT
L. A. PATTILLO J.:
[1] This is an application by Emad Elguindy (the “Applicant”) for judicial review of the order of Deputy Judge Simon R. R. Davies of the London Small Claims Court (the “Judge”) dated March 25, 2015 (the “Order”).
[2] The Order was made at a settlement conference and provides for, among other things, third party production of the Applicant’s medical records, production of the reports the Applicant intends to rely on at trial to address the standard of care of the defendants within 90 days, amending the title of proceedings to correct the defendants’ names and setting the action down for trial.
[3] Although in the Notice of Application and Factum, the Applicant seeks to set aside the entire Order, in argument before us the Applicant advised that he was only taking issue with that portion of the Order which requires that he deliver the reports upon which he intends to rely at trial and the third party production order.
[4] The Applicant’s claim is for damages for medical negligence against the Respondent hospital, a member of its staff and two doctors. It arises out of a cancelled procedure scheduled for the Applicant at the Respondent hospital. The Applicant pleads that the Respondents breached the “applicable standard of medical care” owed to him. He also pleads that he suffered and continues to suffer from substantial pain and has sustained injuries and damages. The Respondents have defended and deny liability.
[5] One of the issues raised at the March 25, 2015 settlement conference was the production of the Applicant’s medical records relevant to the claim. The Applicant refused to produce records of his medical condition. Counsel for the Respondents requested an order for production of the Applicant’s medical records pertaining to urological issues or cardiology issues for which the Applicant received advice or treatment between September 1, 2011 to the present from a doctor and two hospitals, one in Toronto and one in Burlington, Ontario. The Applicant left the case conference prior to the Order being made. The Judge made a brief endorsement granting the Respondents’ third party production request without reasons.
[6] The Order is interlocutory. While there is no appeal from an interlocutory order of the Small Claims Court, judicial review is available, but only with respect to the narrow issue of jurisdiction: Peck v. Residential Property Management Inc., 2009 38504 (ON SCDC), [2009] O.J. No. 3064 (SCJ Div. Ct.).
[7] The Applicant submits that the Judge had no jurisdiction to make the Order for production either against him or against the third parties. The Respondents submit that in the circumstances of the case, the Judge did have the jurisdiction to make the Order and that the Application is, in effect an appeal, which is not permitted.
[8] A Small Claims Court Judge derives his or her jurisdiction from statute. The jurisdiction of the Small Claims Court is set out in the Courts of Justice Act, R.S.O. 1990, Chap. C.43 (the “CJA”), ss. 22 to 33.1 and in the Rules of the Small Claims Court, O. Reg. 258/98, as amended (the “SCC Rules”). The procedure to be followed in the Small Claims Court is set out in the SCC Rules: Van de Vrande v. Butkowsky, 2010 ONCA 230, 99 O.R. (3d) 641 (C.A.).
[9] The purpose of the Small Claims Court is to provide expeditious and low cost resolutions of monetary disputes (CJA, ss. 23-30). In keeping with that purpose, there is no provision in the SCC Rules for discovery generally in the Small Claims Court. Where the plaintiff’s claim or the defendant’s defence is based in whole or in part on a document, a copy of the document must be attached to the pleading (SCC Rules 7.01(2) 2; 10.01(4) 2.). A settlement conference is mandatory in every defended action (SCC Rule 13.01(1)). At least 14 days before the date of the settlement conference, each party is required to serve and file a copy of any document not attached to their pleading that they intend to rely on at trial, including an expert report (SCC Rule 13.03(2)).
[10] SCC Rule 13.05(1) provides that a judge conducting a settlement conference may make an order relating to the conduct of the action that the court could make. Rule 13.01(2)(a) sets out some examples of orders a judge may make including (vi) “directing production of documents”. This is the only place in the SCC Rules that deals with production of documents beyond those the parties intend to rely on and it arises only as part of a settlement conference.
[11] At the conclusion of the Applicant’s submissions, we advised counsel for the Respondents that we did not have to hear from them on the issue of whether the Judge had jurisdiction to issue the order requiring the Applicant to produce the expert reports he intended to rely on at trial within 90 days.
[12] The Applicant submits that the Order dealing with the production of documents was an equitable order and the Small Claims Court has no jurisdiction to order equitable relief except as provided by s. 23 of the CJA. While I agree the Small Claims Court has no jurisdiction to grant equitable relief apart from what is provided by statute (CJA s. 96(3)), an order to produce documents in an action is not equitable relief. It is a procedural order. Further, the jurisdiction to make such an order comes from the SCC Rules.
[13] In our view, the Judge clearly had jurisdiction at the settlement conference and pursuant to SCC Rule 13.05(2)(a)(vi) to order the Applicant to produce his expert reports dealing with the standard of care of the Respondents. There is no issue that in a medical negligence action such reports are necessary to succeed at trial. Further, they must be produced at least 14 days before the settlement conference: SCC Rule 13.03(2). In the face of the Applicant not providing such reports, it is appropriate to order their production before trial.
[14] In respect of that portion of the Order dealing with the third party production, the Respondents submit that the Small Claims Court has jurisdiction to make such an order. They rely on s. 25 of the CJA and the SCC Rules 1.03(1) and 13.05. They submit that the prior SCC rules assist in interpreting the current rules and particularly SCC Rule 13.05 concerning production of documents.
[15] The Respondents further submit that there is no prejudice to the third parties in this case. The scope of the records is defined both in terms of type and time. Further, hospitals and other medical providers have procedures in place to facilitate production of such records when ordered or consented to by the parties.
[16] Section 25 of the CJA provides:
- The Small Claims Court shall hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.
[17] Further, SCC Rule 1.03(1) provides:
1.03(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act.
[18] Both s. 25 of the CJA and SCC Rule 1.03(1) are concerned with and apply to actions within the Small Claims Court’s jurisdiction. They do not assist, in my view, in determining whether the Small Claims Court has jurisdiction.
[19] The parties have provided two conflicting decisions from the Small Claims Court dealing with the jurisdiction to order third party production. In Lemont v. State Farm Mutual Automobile Insurance Co., [2011] O.J. No. 4601, Deputy Judge Winny, in a carefully worded decision, concluded that there was no jurisdiction to make third party production orders whether on motion or at a settlement conference.
[20] In Lemont, Deputy Judge Winny was dealing with a motion under the SCC Rule 15 for production of non-party documents. The moving party submitted that the Small Claims Court had jurisdiction to make the production order, either under the SCC Rules dealing with motions or at a settlement conference. The Deputy Judge dismissed the motion for a number of reasons including that rule 30.10 of the Rules of Civil Procedure did not apply in Small Claims Court, both because of rule 1.02(1) of those rules and because SCC Rule 1.03(2), the analogy rule, can only be applied where the SCC Rules fail to cover a matter adequately and that cannot be said in respect of discovery in the Small Claims Court. In addition, Deputy Judge Winny further held that the settlement conference context of SCC Rule 13.05(2)(a)(vi) did not permit the Rule to be interpreted to mean that non-party production motions are a proper part of the settlement conference process.
[21] By contrast, in Dave’s Auto Detailing v. Guilbault Certiguard, [2013] O.J. No. 4082, Deputy J. P. Lepsoe, on the consent of both the parties and the third party, ordered production of third party records. After referring to Lemont, the Deputy Judge stated “I am satisfied that it is proper for this court in some circumstances to make an appropriately tailored order, such as the one herein, particularly with the advice and consent of counsel to that non-party.”
[22] Given that Dave’s Auto was on consent of all parties, including the third party and the Deputy Judge provided no reasoning concerning his jurisdiction to make the third party production order, it is of no assistance in dealing with the issue before the court.
[23] On the other hand, I am in complete agreement with Deputy J. Whinny’s reasons in Lemont. In the absence of discovery in the Small Claims Court, there is no gap in the SCC Rules which would permit incorporation of rule 30.10 of the Rules of Civil Procedure. Nor is there any provision in the SCC Rules for third party production orders, either on a motion or at a settlement conference. As noted, the only provision in the SCC Rules permitting an order for production of documents is SCC Rule 13.05(2)(a)(vi) which, in the context of a settlement conference, only permits an order for production by a party to the action as part of the settlement conference.
[24] Prior to the current SCC Rules being enacted in 1998, the former Small Claims Court Rules did in fact allow for the possibility of discovery, but only with leave of the court. Former rule 13.01 provided that no discovery was permitted but also provided that the court could grant leave for certain forms of discovery, including examination for discovery. In practice, except for the odd exception, no discovery was permitted by Small Claims Court Judges.
[25] The Respondents submit that because the prior SCC rules specifically prohibited documentary discovery, except with leave, whereas the current SCC Rules specifically provide for documentary discovery (SCC Rule 13.05(2)(a)(vi)), there is no restriction on that discovery limiting it to between the parties.
[26] In my view, the Respondents’ reliance on the prior SCC rules is of no assistance in determining jurisdiction for third party production in the current SCC Rules. There is still no discovery under the SCC Rules. SCC Rule 13.05(2)(a)(vi), which enables an order for production of documents is not a general provision concerning production. It is contained within the settlement conference rules. Settlement conferences are only between the parties to the action. It cannot be expanded to encompass the jurisdiction to order production from parties who are not part of the action and have had no notice of the request.
[27] Finally, because I have found there is no jurisdiction in the Small Claims Court to issue a third party order for production, it is not necessary to address the issue of prejudice to the third parties raised by the Respondents.
[28] For the above reasons, therefore, I hold that the Judge did not have the jurisdiction to issue that portion of the Order requiring third party production of the Applicant’s medical records.
[29] The Applicant’s application is therefore allowed in part. Only that portion of the Order providing for the production of medical records from the third party doctors and hospitals is set aside, without prejudice to the Respondents requesting an order for production of the third party records from the Applicant at a further case conference.
[30] The Applicant was successful only in respect of that portion of the Order that dealt with third party production. The Respondents were successful in respect of that portion of the Order that required production of the Applicant’s expert reports. As success is divided, there is no order as to costs.
L. A. Pattillo J.
H. Sachs J.
C. Horkins J.
Released: May 19, 2016
CITATION: Elguindy v. St. Joseph’s Health Care, 2016 ONSC 2847
DIVISIONAL COURT FILE NO.: 16/15
DATE: 20160519
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. SACHS, C. HORKINS AND L. A. PATTILLO JJ.
BETWEEN:
EMAD ELGUINDY Applicant
–and –
ST. JOSEPH’S HEALTH CARE LONDON, LISA MARIE BARNES, DR. BRIAN LAROCQUE AND DR. HASSAN RAZVI Respondents
REASONS FOR JUDGMENT
L. A. PATTILLO J.
Released: May 19, 2016