COURT FILE NO.: CV-11-00423760

MOTION HEARD: 2012-02-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RAHIM KHAN, a minor by his litigation Guardian, BIBI KHAN,

ZAMEER KHAN, and the said BIBI KHAN, personally, Plaintiffs

And

Dr. Joseph Lee, Defendant

BEFORE: Master Joan Haberman

COUNSEL:
Seibert, A. for the plaintiffs, moving parties
Hunter, J. for the defendants, responding party

REASONS FOR DECISION

Master Haberman :

[ 1 ] This motion was heard and the relief sought granted on February 9, 2012, with Reasons to follow. These are my Reasons.

CONTEXT

[ 2 ] The plaintiffs seek to compel Dr. Lee to attend to be examined pursuant to Rule 39.03(1) in relation to Dr. Lee’s motion to strike the plaintiffs’ claim.

[ 3 ] The motion arises in the context of a medical malpractice action, in which Lee is alleged to have provided negligent care and treatment and to have breached his contractual obligations to Bibi Khan, mother of the minor plaintiff, Rahim Khan.

[ 4 ] Rahim was delivered by emergency Caesarean section on May 15, 1991. It is alleged that Lee’s involvement with Bibi’s pre-natal care and with Rahim’s delivery led to the latter being brain damaged from birth.

[ 5 ] The statement of claim is sparse. Though 14 grounds of negligence are listed, most are boiler-plate in nature and fail to state with any specificity what it was that Lee did or failed to do that allegedly led to this unfortunate outcome. By way of example, while Lee is accused of not having recommended or carried out any diagnostic tests to determine Bibi’s condition, there is no indication of what tests the plaintiffs say he ought to have performed and what they might have revealed had they been undertaken. Similarly, it is alleged that Lee failed to admit Bibi to hospital “when indicated”, but what it was he ought to have observed that would have led him to that conclusion is absent from the pleading.

[ 6 ] While this is a medical malpractice action, such that medical expertise is often needed to help counsel wade through the clinical notes and records in order to develop a theory of the case, it has been in excess of 20 years since the events giving rise to the action. This time frame that could be considered more than adequate to for the plaintiffs to have figured out what, if anything, about Lee’s involvement with the case was deficient and causally relevant to the outcome.

[ 7 ] Lee’s motion to strike will no doubt be considered in context, so the fact that this is a medical malpractice action may dictate a more indulgent approach than one would normally encounter. That question is for another court on another day. The issue I must grapple with is whether the examination sought should be permitted, to enable the plaintiffs to put evidence before the court when it makes its determination on Lee’s upcoming motion.

[ 8 ] This action was started in April 2011 and a notice of intent to defend was served immediately. In their letter of April 19, 2011 to Khan’s counsel, Lee’s counsel wrote to say that Dr. Lee no longer had his office records for Bibi, however he believed the hospital chart would still be available. He therefore asked for a copy of the entire hospital record, including the prenatal care record, the NST tracing if available and Rahim’s chart from his admission immediately post-birth.

[ 9 ] On April 27, 2011, Lee’s counsel wrote again, this time enclosing a demand for particulars, setting out further documents they wanted to review and inquiring as to when the records sought would be available. The demand for particulars listed 20 questions.

[ 10 ] The plaintiffs’ response suggests they have not yet built their theory of the case. With respect to three of the requests, the response was that the records have been requested and copies will be provided when they are received. All of the remaining requests have been answered as follows: the plaintiffs do not have particulars....

[ 11 ] Accordingly, Lee is moving to strike the statement of claim without leave to amend.

[ 12 ] Under “grounds”, he states:

...the statement of claim discloses no material facts or particulars relating to any act or omission on the part of Dr. Lee.

Instead, the statement of claim baldly asserts that Dr. Lee is liable for the alleged injuries;

The claim does not meet the minimum requirements for pleading and does not disclose a cause of action against the defendant.

[ 13 ] Lee then relies on Rules 21.01, 25.06, 25.11 , 37 and 57. In view of the reference to Rule 21, the motion was brought before a judge.

[ 14 ] Lee has filed no evidence in support of the motion. The plaintiffs served him with a notice of examination under Rule 39.03 (10) to obtain evidence in respect of the motion. It was returnable on November 15, 2011. Lee did not attend. A court order compelling Lee’s attendance is now sought.

POSITIONS on the MOTION

[ 15 ] The plaintiffs will assert on the main motion that they have met the minimal level of disclosure required in their pleading. They state that if Lee believed there was truly an absence of material facts, this ought to have been apparent from the face of the pleading as soon as it was served. Yet, particulars were sought before this motion was brought. The plaintiffs claim this step is inconsistent with Lee’s current position.

[ 16 ] I do not agree with this as a general proposition. There may well be cases where it is appropriate to first seek particulars before moving to strike. An example would be where a pleading has not been as artfully crafted as is ought to have been and a request for particulars is all that is needed to flesh out what it really the focus of the claim. The result of the demand for particulars in such cases would be beneficial to all parties. This is therefore not a practice that should be discouraged in all cases

[ 17 ] That does not appear to have been what motivated the demand for particulars in this case. It seems to me that, here, the defendant was seeking to build a record for his motion to strike by asking for the medical records and by seeking particulars. On the basis of what he received, and likely expected to receive, he can now assert that “this is all they have.” While this strategy is not prohibited, it is also quite obvious.

[ 18 ] The plaintiffs point to the grounds under which the main motion was brought. They concede that while no evidence is permitted with respect to the portion of the motion brought under Rule 21.01, there is no such prohibition when the motion is brought under Rule 25.11. Here, the motion was brought under both rules and the plaintiffs maintain that the main motion is really one that relies on Rules 25.06 and 25.11.

[ 19 ] In that regard, the plaintiffs point to paragraph 12 of the factum submitted by Lee on his motion to strike, where he states that that the claim should be struck as it is frivolous and vexatious, and contains allegations that are irrelevant or unfounded, such that the pleading is scandalous. This is Rule 25.11 terminology.

[ 20 ] The plaintiffs also claim that the medical records only tell part of the story, and that Lee may well know the rest. They say it is therefore unfair for him to move to strike without submitting any evidence as to what he knows about these events. He may be well aware of how he could be seen to have mishandled this case. This point is particularly important in the context of the factum Lee filed in support of his motion to strike. Despite having filed no evidence, Lee states at paragraph 8 of that factum:

The Statement of Claim, as it is currently pleaded, fails to allow the Defendant or the Court to ascertain precisely the issues in dispute, nor does it permit the Defendant to respond to the allegations .

[ 21 ] Having taken that position on the motion without putting forward evidence to establish this as fact, Lee should now have to support it.

[ 22 ] Turning to Lee’s position, despite the reference in his factum to the claim “as it is currently pleaded”, Lee moves to strike without leave to amend.

[ 23 ] Lee’s position on this motion has been a moving target. He did not commit to a position before the return of the motion. Though 1.5 hours was booked for it, and though the parties were hopeful of obtaining an early disposition in view of the February 22 date scheduled for Lee’s motion to strike, he filed no factum in response to this motion. As a result, his position on this motion was largely unknown going into it aside from what his notice of motion stated. Some of the oral submission turned out to be inconsistent with what Lee stated in his notice of motion and in the factum he submitted for the main motion. Had he delivered a factum for this motion, those inconsistencies could have been identified before court and dealt with more easily at the hearing.

[ 24 ] Lee’s failure to pin down his position before the hearing created problems in terms of how the plaintiffs approached the motion. As it was not clear what Lee would be saying, the plaintiffs tried to anticipate where he would be going, therefore taking a more expansive approach in their oral submissions than they may have otherwise done. This increased the time needed for the hearing.

[ 25 ] The lack of responding factum also impacted on the court’s ability to deal with the motion as expeditiously as possible, something the parties hoped for in view of the time constraints imposed by Lee’s outstanding motion. Having a party’s position concisely set out in a factum before hearing oral submissions allows the court to know in advance what the focus of the motion will be and where to target questions for both sides. It also expedites the court’s ability to write Reasons afterwards.

[ 26 ] Instead of a factum, Lee filed two briefs of authorities with a total of 9 cases. Both the plaintiffs and the court were left to ascertain his position from a reading of these cases, ultimately supplemented by oral submission. This is not helpful for a motion of this significance to one party, booked for this length of time.

[ 27 ] Essentially, Lee took the position that the motion was really a Rule 21.01 motion despite the reliance on Rule 25.11. Under “Grounds” Lee focused on the absence of material facts as one basis for his motion. In her oral submissions, his counsel also indicated that the action was frivolous and vexatious and an abuse of process – classic Rule 25.11 language.

[ 28 ] His counsel also asserted that the plaintiffs approach to the motion was not helpful, as Lee’s motion is a motion to strike, not one for particulars. Lee’s counsel therefore maintained that whether or not Lee could plead to the claim was not relevant.

[ 29 ] This assertion ignores paragraph 8 of Lee’s factum in support of his motion to strike. Having taken the position in his factum that the claim as it stands does not permit the Defendant to respond to the allegations , Lee has invited precisely this type of response from the plaintiffs and he has made the issue relevant. How can he take this stand, having filed no evidence to support it, and now refuse to allow the plaintiffs to investigate whether this is, in fact, true?

ANALYSIS

[ 30 ] There is no prohibition against filing evidence for a motion brought under Rule 25.11. In fact, evidence is often required to establish some of the grounds under which that Rule could be found to apply.

[ 31 ] Motions are often brought under both Rules 21.01 and 25.11, and the evidence that is filed is restricted to the Rule 25.11 aspect of the motion.

[ 32 ] Despite having asserted in his factum that he is unable to respond to the allegations raised by the plaintiffs in their statement of claim, Lee has filed no evidence to support his position and now asserts that the issue is not relevant. This leaves the plaintiffs with no ability to refute the statement. Though, at the end of the day, the court may well give it little weight, this is not a risk the plaintiffs wish or should have to take.

[ 33 ] Rule 39.03 permits a party to seek to examine a witness before the hearing of a pending motion. It is trite law that this can include the examination of party who might otherwise seek to insulate himself from having to give sworn evidence to be used at the hearing. Lee’s counsel was unable to point the court to any case law where a party was denied an order under Rule 39.03 in the face of a Rule 25.11 motion.

[ 34 ] Of course, a Rule 39.03 examination is narrow in scope and must be restricted to the matters in issue on the motion. In this case, it would extend to the grounds raised in Lee’s notice of motion as expanded upon in his factum, and to the Rules under which the motion has been brought.

[ 35 ] Lee maintains that that the plaintiffs have the onus of showing that the examination they seek to conduct will be relevant, not to the action but to the motion. While I agree that the emphasis should be on the upcoming motion, I do not accept Lee’s position that the plaintiffs must do so by independent evidence, in the face of paragraph 8 of Lee’s factum. A party cannot speak out of one side of his mouth for one purpose and then change sides when dealing with another aspect of the same proceeding before the court.

[ 36 ] Thus, as Lee appears to be of the view that his inability to respond to the pleading is a relevant consideration on his motion to strike, then it is not open to him on this motion to deny the relevance of that issue.

[ 37 ] Lee relies on several cases to support his position here. Bilotta v. Barrie Police Services Board [2010] OJ No. 970 is clearly distinguishable. In that case, the police service board was sued, without reference to the individual officers or board members to which the claim referred. There, the court held that it was not appropriate to keep the action alive because material facts may be learned through examination for discovery. That is not what is being sought here.

[ 38 ] Lee also relies on Lee v. Aim Health Group Ltd. [2011] OJ No. 11 , my decision dealing with a motion to quash affidavit evidence before the return of a motion to strike a claim. His counsel refers to the case for the proposition that a party seeking to rely on Rule 39.03(1) must first show that the person they wish to examine is in a position to give evidence that is relevant to the issues raised and that here, there is no indication that Lee has any evidence that pertains to the motion.

[ 39 ] That position, however, is inconsistent with the assertion Lee makes in his factum in support of the motion to strike – he asserts he is unable to respond to the plaintiffs’ allegations as drafted. Having raised this as an issue to be addressed, Lee should not now be permitted to interfere with the plaintiffs’ attempts to explore that statement. As I said in the earlier Lee case, the onus on a party seeking to rely on Rule 39.03 is not a high one. I am satisfied that the plaintiffs’ have met it in this case by filing, on this motion, the factum they will be facing on the next.

[ 40 ] Lee also relies on the decision of Abella J.A. (as she then was) in Ontario Federation of Anglers & Hunters v. Ontario 2002 (ON CA) , [2002] OJ No. 1445 where she suggests that the plaintiffs had to show by way of evidence that responding party had relevant evidence. Her comments in that case are not without question but that issue is not one that need be addressed here. In this case, it was Lee’s factum that asserted he was unable to respond to the plaintiff’s pleading. Having taken that position, he has relieved them of having to establish it independently.

[ 41 ] The plaintiffs rely on Aitken J’s decision in Chenier v. Hopital de Hawksbury [2006] OJ No. 1679 , where their counsel responded to a Rule 25.11 motion in an action involving a similarly drafted pleading. They point to this as a case indicating that the court will expect to see evidence when a party relies on Rule 25.11. There, the court held that the failure of the defendant physicians to file evidence to the effect that the pleading was too bald to respond to it was fatal to their motion.

[ 42 ] Finally, in Bearden v. Trigg 13 CPC (6 th ) 364 , Speigel J. reconciled the different views expressed by the Court of Appeal regarding the onus on a party seeking an examination, concluding that the examination must be more than a fishing expedition, and that the onus on the moving party:

...need be no more than to demonstrate that the proposed examination would be conducted on issues relevant to the pending application (in our case, a motion) and the proposed witness is in a position to offer relevant evidence.

[ 43 ] Lee has now been provided with copies of the relevant clinical notes and hospital records. These will assist him in refreshing his memory about these events. It seems his review has already enabled him to assert in a factum that he is unable to respond to the pleading. The factual basis for this assertion should be open to scrutiny, under Rule 39.03, with the doctor speaking under oath rather than behind his counsel’s written submissions.

[ 44 ] It may be at the end of the day that Lee will say the same when asked under oath whether he is in a position to respond to the claim. Whatever he says will go a long way towards informing the plaintiffs of where they stand in the face of a very serious motion.

[ 45 ] Accordingly, the plaintiffs are at liberty to examine Dr. Lee under Rule 39.03 with respect to all, but only those issues raised by their motion to strike the plaintiffs’ claim. This includes the assertion at paragraph 8 of the factum submitted on Lee’s behalf on his motion to strike. The costs of the motion are to the plaintiffs, fixed at $7890, payable within 30 days.

Master Joan M. Haberman

Released: February 28, 2012