The plaintiffs in a medical negligence action brought a motion for leave to bring a motion after setting the action down for trial, and for an order compelling the defendant physician to produce his response letter to the College of Physicians and Surgeons of Ontario.
The court found that leave was required under Rule 48.04(1) and declined to grant it, as the plaintiffs had known about the letter for nearly a decade and offered no plausible explanation for the delay.
Even if leave had been granted, the court held the CPSO response letter was inadmissible in civil proceedings under s. 36(3) of the Regulated Health Professions Act, which constitutes an absolute bar to use of documents prepared for College proceedings.
