Court File and Parties
COURT FILE NO.: 07-CV-9581CM
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jacob Michael Meuwissen, Jennifer Meuwissen both by their Litigation Guardian, Deborah Marie Meuwissen and the said Deborah Marie Meuwissen and Michael Meuwissen, Plaintiffs
AND:
Dr. Gary W. Perkin, Dr. Nicholaas Buma, a.k.a. Nick Buma, Dr. Nicolae Molotiu, Dr. Val Pusey, Dr. Ian K. Ferguson, Barbara Fonger, Sara Hinton, Tessa Tjoelker, Nancy Switzer, Deborah Feasey, Colleen Rolston-Payne, Dawn Wolfs, Julie Reid, Frances Pfeifer, D. Pray and Strathroy Middlesex General Hospital, Defendants
BEFORE: Master Lou Ann M. Pope
COUNSEL: Donald Leschied, for the Plaintiffs Dara M. Lambe, for the Defendants, Dr. Perkin, Dr. Burma, Dr. Pusey and Dr. Ferguson Emily McKernan, for the Defendants, Dr. Nicolae Molotiu, Barbara Fonger, Sara Hinton, Tessa Tjoelker, Nancy Switzer, Deborah Feasey, Colleen Rolston-Payne, Dawn Wolfs, Julie Reid, Frances Pfeifer, D. Pray and Strathroy Middlesex General Hospital
HEARD: July 11, 2011 and August 11, 2011
REASONS FOR DECISION
[1] The plaintiffs bring this pre-discovery motion seeking orders that the defendants deliver further and better affidavits of documents, production of documents including documents relating to allegations of prior similar facts, and for a discovery plan.
[2] This action involves allegations of medical malpractice arising out of the birth of the minor plaintiff. In addition to allegations of negligence, the plaintiffs claim that both Dr. Perkin and the Strathroy Middlesex General Hospital (“Hospital”) owed a fiduciary duty to the plaintiffs. The fiduciary duty claim is based on Dr. Perkin’s alleged history of violating Hospital guidelines in the use of forceps, caesarean sections, high complication rate in both obstetrics and non-obstetrical cases and breach of professional standards of care.
[3] In this action, there are essentially two groups of defendants; namely, the doctors who will be referred to throughout these reasons collectively as “Dr. Perkin,” and the hospital and nurses who will be referred to collectively as the “Hospital”.
Service of Motion on Non-Parties
[4] The plaintiffs were permitted to plead allegations of prior similar facts relating to five medical malpractice actions against, inter alia, Dr. Perkin and the Hospital between 1995 and 2002[^1].
[5] In this motion, the plaintiffs are seeking production from the defendants of the personal medical records of the plaintiffs in the five other actions that relate to the delivery of health care services by Dr. Perkin. As such, the plaintiffs were required to serve the plaintiffs in those five other actions with this motion pursuant to rule 37.07(1). I will hereafter refer to the plaintiffs in the five other actions as “non-parties”.
[6] A significant amount of time was spent at the hearing of this motion regarding the issue of service on the non-parties. Ultimately, the defendants agreed to proceed with this motion regarding production of medical records of the following non-parties in three of the other actions on the basis that they had proper service of the notice of motion: Christine Carruthers, Gayle and George Carreiro, and Jennifer Langford. I am satisfied that these non-parties were properly served with the notice of motion herein.
[7] I am now required to determine whether the plaintiffs effected proper service on the following remaining non-parties: Donna Anne Marie Romphf and Chad Jones in one of the prior actions (“Romphf/Jones”), and R. Christopher Bresett (“Bresett”) in the other prior action. In the event I find that those persons have not been served or there has not been effective service, the plaintiffs seek an order dispensing with service pursuant to rule 16.04(1). This relief was not sought in the notice of motion.
Romphf/Jones
[8] The Romphf/Jones action involves allegations of medical malpractice against, inter alia, Dr. Perkin and the Hospital arising out of the delivery of a baby and her subsequent death. The named plaintiffs, Donna Anne Marie Romphf and Chad Jones, were the baby’s parents. The amended statement of claim dated November 14, 2003, sets out that both parents reside in Strathroy, Ontario.
[9] The plaintiffs did not serve Donna Anne Marie Romphf with the notice of motion despite an attempted service at an address in Ilderton, Ontario that was found through a Canada411 name search. They further attempted service by mailing a copy of the motion material to the address of attempted service; however, it is clear from the Affidavit of Attempted Service of Michael Collins sworn July 4, 2011, that it was not Ms. Romphf’s residence. Furthermore, the plaintiffs have not filed the acknowledgment of receipt card mailed with the motion material to Ms. Romphf which would confirm that she received the material.
[10] Similarly, Chad Jones was not served despite an attempted service at an address in Strathroy, Ontario that was found through a Canada411 name search for the name “C. Jones.” Also, despite having mailed a copy of the motion material to him, the plaintiffs have not filed the acknowledgment of receipt card that would confirm receipt of the material by him.
[11] In a preliminary motion in this matter regarding service on the non-parties, I ruled that service must be effected either personally or by mail to the last known address pursuant to rule 16.03(4)[^2].
[12] Based on that ruling and for the foregoing reasons, it is my view that the plaintiffs have not effected proper service of this motion on Donna Anne Marie Romphf and Chad Jones.
[13] Regarding the plaintiffs’ request for an order dispensing with service on these non-parties, rule 16.04(1) requires that the plaintiffs prove that it is impractical to effect prompt service on the non-parties. The law in this area is well-established that a moving party must show they are unable to effect personal service or service by an alternative method permitted in the Rules by demonstrating, with detailed affidavit evidence, that all reasonable steps have been taken to locate the party and to personally serve them, or that it is impractical to do so. What is reasonable will depend on the nature of the case, the relief claimed, the urgency, and all of the surrounding circumstances[^3].
[14] My view is that the plaintiffs have not satisfied their onus. Firstly, the plaintiffs made minimal effort to locate these non-parties. Mr. Leschied’s legal assistant, Kathy Fazekas, conducted merely a Canada411 name search. Secondly, the results she obtained from that search revealed addresses for other persons by the name of D. Romphf; however, there is no evidence that any further searches were performed or any further efforts were made to locate her. As for Chad Jones, only the Canada411 name search was conducted for Strathroy, Ontario, as well as an attempt to locate him at the address obtained from that search. Lastly, the evidence reveals that the plaintiffs waited until just prior to the hearing of this motion before taking steps to locate and serve these non-parties; whereas, they were aware of the necessity to serve them since early in 2011, or the latest on June 6, 2011, the date my decision on the preliminary motion was released. Given the personal and confidential nature of the medical records sought by the plaintiffs, it is incumbent on them to take all reasonable steps to locate and serve them. As this has not been done, I decline to grant an order dispensing with service on them.
R. Christopher Bresett
[15] Bresett’s action against Dr. Perkin, the Hospital and others, involved allegations of medical malpractice arising out of an alleged failure to diagnose cancer. The amended statement of claim dated March 30, 2000, sets out that Bresett resides in Sarnia, Ontario.
[16] Attempts to locate him involved one Canada411 search under the name “Bresett” in Sarnia, Ontario, as well as an attempt to serve him at the address revealed from that search. However, the search results revealed an “R. Brisette”, a different spelling than the named plaintiff. They also attempted to serve him by mail at that address; however, Bresett did not return the acknowledgement of receipt card.
[17] Therefore, for the same above-noted reasons as with Romphf/Jones, the plaintiffs have not effected proper service of the notice of motion on Bresett, nor are they entitled to an order to dispense with service on him.
[18] I want to make it clear that these orders with respect to service on Romphf, Jones and Bresett do not preclude the plaintiffs in the future from seeking the relief sought in this motion or for an order dispensing with service relative to these non-parties should they locate them.
[19] I will now proceed to the substantive issues on this motion regarding production of documents from the defendants, including documents as they relate to the non-parties, Christine Carruthers, Gayle and George Carreiro, and Jennifer Langford.
This Motion
[20] This motion was brought prior to examinations for discovery. Both groups of defendants delivered unsworn affidavits of documents, as did the plaintiffs. The Hospital’s affidavit is not only unsigned but the deponent’s name is blank.
[21] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, impose a positive duty on every party to an action to disclose in a sworn affidavit of documents “all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power” and to produce for inspection any relevant document that is not privileged (rules 30.02(1), 30.03(1), 30.04(1)).
[22] The plaintiffs submit that numerous relevant documents have not been disclosed by the defendants, including documents relating to the similar facts as pled. They seek a ruling on the relevancy of these documents and if successful that the defendants deliver a further and better affidavit of documents and produce the said documents.
[23] The plaintiffs rely on rule 30.06 which gives the court discretion to, inter alia, order service of a further and better affidavit of documents and disclosure or production of the document if it is not privileged if the court is satisfied on any evidence that a relevant document was omitted from a party’s affidavit of documents.
[24] Courts have accepted that it is not always sensible to wait until examinations for discovery have commenced to seek a production order. Given the duration and cost of litigation, it is sometimes more prudent to move for production prior to examinations for discovery so that the party will have as complete a set of documents as possible upon which to examine.
[25] Here, the plaintiffs seek production of documents, including records of prior complaints about Dr. Perkin and the medical records of his former patients in the five other proceedings, prior to commencing examinations for discovery.
[26] It is a well-established governing principle and reiterated by Brown J. in Leduc v. Roman, 2009 6838 (ON SC), 73 C.P.C. (6th) 323 (Ont. S.C.), at paragraph 14, “that the onus for reviewing documents to determine their relevance rests, in the first instance, with the party bearing the obligation to produce.” He went on to state that under a rule 30.06 motion, evidence is required, “as opposed to mere speculation that potentially relevant undisclosed documents exist.” Therefore, where the plaintiff contends that the defendant has not met his obligation to produce relevant documents, then the plaintiff must provide some evidence that the defendant has relevant documents in his possession or control (at para.15). In relying on RCP Inc. v. Wilding, [2002] O.J. No. 2752 (Master), at para. 12, Brown J. concurred that “the level of proof required should take into account the fact that one party has access to the documents and the other does not.”
[27] I am required to apply the test of relevancy in order to determine whether the impugned documents ought to have been produced at the interim stage of this proceeding. Relevancy is not defined in rule 30.02; however, it is a fundamental principle of evidence law. In applying the principle of relevancy, courts have attempted to define the meaning of relevancy. In the context of the scope of documentary discovery in a recent Ontario decision, the court adopted the following definition of relevancy as set out at paragraph 2.35 of Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3d ed. (Toronto: Lexis Nexis, 2009):
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have a real probative value with respect to the latter[^4].
[28] Relevance in connection with the discovery of documents was broadly defined by the British Columbia Supreme Court in Beazley v. Suzuki Motor Corp., 2008 BCSC 850, 58 C.P.C. (6th) 240, at para. 13 as:
Any document which directly or indirectly may enable a party to advance his own case or destroy that of his adversary, or which may fairly lead to a train of enquiry to disclose evidence which may have either of those consequences, must be disclosed.
Analysis and Decision
A. Standards for use in the Obstetrical Unit of the Hospital
[29] The plaintiffs seek “all standards for use in the said Hospital in the Obstetrical Unit for obstetrical cases, in use at the time of the delivery of infant, Jacob Meuwissen, on the 30th day of December, 2000 as relevant to paragraph 34 (A) of the ‘Amended Statement of Claim’” (Notice of Motion, para. 1, (ii) (A) (a)).
[30] The Hospital produced five policies and procedures that are listed in Schedule A of the Hospital’s affidavit of documents.
[31] The request for “all standards for use”, in my view, is a request for a category of documents.
[32] Regarding requests for production of categories of documents, Brown J. in Leduc at para. 14, concurred with the court in RCP Inc. that “it may not be possible to determine the extent or depth of required production until preliminary questions have been asked, or a preliminary level of production of a category of documents has been made.”
[33] The plaintiffs have not particularized the “standards of use” documents that they say have been omitted from the Hospital’s affidavit of documents. In fact, the plaintiffs filed no affidavit evidence on this motion. This request appears to be a fishing expedition. As such, the plaintiffs have failed to satisfy their onus to adduce some evidence to establish that the Hospital has in its possession or control “standards of use” documents that have not already been disclosed or produced. This relief is hereby dismissed.
B. Records of complaints
[34] While there is much duplication and verbosity in the list of documents sought, it is fair to summarize that the plaintiffs seek all records of complaints or reports of alleged “prior serious errors in judgment” by patients and staff of the Hospital regarding Dr. Perkin, made to the Hospital, Dr. Perkin and/or The College of Physicians and Surgeons (“CPS”), both prior to and at the time of the minor plaintiff’s birth on December 30, 2000. They say these documents are relevant to paragraphs 34 (A) and (C)(vi) and (viii) of the amended statement of claim.
[35] I will address this relief in two parts; namely, records of complaints that were the subject of a proceeding before the CPS, and those that were not the subject of a proceeding before the CPS.
(i) Records of complaints (subject of a proceeding before the CPS)
[36] I will address the issue of production of documents relating to complaints or reports of alleged prior serious errors in judgment by Dr. Perkin made to the Hospital, Dr. Perkin or the CPS.
[37] Section 36(6) of the Regulated Health Professions Act 1991, (“RHPA”), S.O. 1991, c. 18, provides that:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
[38] The plaintiffs rely on Forget v. Sutherland (2000), 2000 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), for the proposition that any written records that were the subject of a proceeding before the CPS are “privileged”, and presumably then their argument would be that those documents must be disclosed in a party’s affidavit of documents. I note that the plaintiffs have in fact listed documents in Schedule A of their affidavit of documents that pertain to their complaint to the CPS, including Deborah Meuwissen’s letter of complaint. They further submit that the Court of Appeal in this case held that notwithstanding privilege, any such written records are fully capable of cross-examination thereon (Plaintiffs’ Factum, at para. 10).
[39] With respect, that is not what the Court of Appeal held. Firstly, plaintiffs’ counsel did not direct the court to any passage in that case that found that any such documents are privileged. Further, the reference to “cross-examination” in that case was made by way of comment that the trial judge could consider whether the plaintiff’s complaint could be used to challenge her credibility on cross-examination.
[40] In my view, the law is well-established that section 36(6) of the RHPA is an absolute bar to the admissibility of complaints made to the CPS in a civil action. Further, the Divisional Court in Middleton v. Sun Media Corp. (2006), 27 C.P.C. (6th) 253, at para. 20, held that there is no obligation to include documents that were the subject of a proceeding before the CPS in an affidavit of documents as that would be inconsistent with the meaning of s. 36(3) when read in light of the purpose of the subsection (Forget v. Sutherland, at para. 44).
[41] For the foregoing reasons, I find that the defendants have no obligation to disclose or produce documents that were the subject of a proceeding before the CPS, nor are those documents, if any exist, to be included in the defendants’ affidavits of documents. As such, the relief sought in this respect is hereby dismissed.
(ii) Records of complaints (not the subject of a proceeding before the CPS)
By the Hospital
[42] I will now turn to the issue of production of documents by the Hospital regarding complaints or other records that have not been the subject of a proceeding before the CPS.
[43] Given the five other lawsuits as referenced in the amended statement of claim, it is conceivable that there have been complaints regarding Dr. Perkin that were not the subject of a proceeding before the CPS, other than the plaintiffs’ herein.
[44] The Hospital filed the affidavit of Nancy Maltby-Webster, Chief Operating Officer of the Hospital, sworn October 19, 2010. The results of her apparent thorough searches, details of which are set out in paragraphs 12 and 13 therein, are that the Hospital has no records of complaints relating to Dr. Perkin.
[45] The plaintiffs did not cross-examine Ms. Maltby-Webster on her affidavit. Given that the plaintiffs have adduced no evidence to suggest that the Hospital has in its possession complaints or records regarding Dr. Perkin’s alleged “prior serious errors in judgment”, the relief sought as against the Hospital is hereby dismissed.
By Dr. Perkin
[46] I will now turn to the issue of production of documents by Dr. Perkin regarding complaints or other records that have not been the subject of a proceeding before the CPS.
[47] Dr. Perkin delivered an unsworn affidavit of documents. The affidavit does not disclose any complaint letters or documents regarding alleged “serious errors in judgment”.
[48] In response to this motion, Dr. Perkin filed the affidavit of Yola S. Ventresca, an associate lawyer at the firm of Lerners LLP, solicitors for Dr. Perkin. Despite the obvious evidentiary problem, I note that the affidavit contains no statement whatsoever of any searches Dr. Perkin conducted in order to ensure he has complied with his production obligations under the Rules of Civil Procedure.
[49] As such, there is no evidence before this court of any steps taken by Dr. Perkin to ensure he has complied with his production obligations. Had he delivered a sworn affidavit of documents or a sworn affidavit in response to this motion which set out his efforts to comply with his disclosure obligations, my conclusion may have been different. That said, on a pre-discovery production motion such as herein, it is the plaintiffs’ onus to adduce some evidence that Dr. Perkin has relevant documents in his possession. In the end, I am satisfied by the lack of evidence from Dr. Perkin and the facts of the five other proceedings that he has not complied with his disclosure obligations. Further, I find that any such records of complaints are relevant to the issue of a pattern of repetitive negligence as pled.
[50] Therefore, Dr. Perkin shall comply with the requirements of rule 30.03 and produce records of all complaints from patients and staff of the Hospital that have not been the subject of a proceeding before the CPS.
C. Records of the Hospital’s investigation
[51] The plaintiffs seek production of the Hospital’s records of its internal investigation of the delivery of Jacob Meuwissen, as relevant to paragraph 34 (A) of the amended statement of claim.
[52] Schedule B of the Hospital’s unsworn affidavit of documents contains a list of statements and notes given by some of the named defendants herein, and others, in which privilege is claimed. The affidavit of Ms. Maltby-Webster sets out that the Hospital did not conduct an internal investigation and, as such, there are no such documents. However, the Hospital did conduct interviews of staff members, many of whom are named defendants herein, following the birth. The notes and statements arising out of those interviews are listed in Schedule B.
[53] As noted above, the plaintiff did not cross-examine Ms. Maltby-Webster on her affidavit. Further, the plaintiffs have not challenged the Hospital’s claim of privilege on this motion. Given that the plaintiffs have adduced no evidence that the Hospital has in its possession records of an internal investigation, other than those disclosed, this relief sought as against the Hospital is hereby dismissed.
D. Records related to allegations of similar facts (Notice of Motion, para. 1 (iii))
[54] The plaintiffs seek production of a lengthy list of documents which they state relate to the allegations of similar facts as set out in paragraph 35 of the amended statement of claim. In my view, the documents listed in subparagraphs (iii) (d), (e), (f) and (h) are repetitive of other relief sought earlier in the notice of motion upon which I have already made rulings. Therefore, I will not repeat my rulings with regard to those subparagraphs.
[55] In particular, the plaintiffs seek production of all records of the five other lawsuits, and any other records of former patients of Dr. Perkin, with respect to prior similar facts between January 15, 1995 to October 18, 2002, including medical opinions regarding the delivery of health care services by Dr. Perkin related to the five other lawsuits, transcripts of discovery proceedings in the five other lawsuits, and a list of all litigation against Dr. Perkin from 1995 to the present.
[56] Given the preliminary issue addressed earlier in my reasons of proper service of this motion on the non-parties, I will proceed to determine the above production issues with respect only to the following non-parties: Christine Carruthers, Gayle and George Carreiro, and Jennifer Langford.
[57] Before proceeding, it must be made clear that I decline to consider the relief sought for production of documents relating to any of Dr. Perkin’s former patients because, firstly, the plaintiffs herein were granted leave to plead prior similar facts with respect to only the five other lawsuits. Secondly, any other former patients of Dr. Perkin have not had notice of this motion.
[58] It is noteworthy that all of the five other lawsuits were settled out of court. As such, there have been no findings of fact or law by a trial judge. The evidentiary record herein contains orders dismissing the actions without costs in four of the five actions. In the fifth action commenced by the Carruthers, which involved allegations of failure to diagnose viral meningitis, the parties entered into minutes of settlement and obtained judgment based on Dr. Perkin, Dr. Sanders and the Hospital paying the Carruthers $12,000.
[59] In my earlier decision[^5], the plaintiffs were permitted to plead that Dr. Perkin exhibited a pattern of repetitive negligence by use of similar fact evidence relating to the said five specific lawsuits. I found at paragraph 32 that:
. . . the allegation of a pattern of repetitive negligence is focused and specific to only the five cases pled in the amended statement of claim. Further, it is my view that given the closeness in time of the facts in those five actions to the facts in this action, and the similar allegations of negligence in obstetrical cases that involve the birth of a child, there is potentially a high degree of probative value to the similar fact evidence in these three cases.
[60] I went on to state at paragraph 33 with respect to the two actions that contained allegations of negligence in non-obstetrical cases, that:
. . . given the closeness in time of the facts in those actions to the facts in this action and similar allegations of medical negligence in both actions, I find that there is potentially a high degree of probative value to the similar fact evidence in these two cases.
[61] In my view, the fact that the plaintiffs were permitted to plead allegations involving similar fact evidence relating to the five other lawsuits, does not, in and of itself, lead to the conclusion that they are entitled to production of any and all medical records, opinions and transcripts that may exist in those other proceedings. However, at a minimum, the facts as pled regarding the other proceedings are merely evidence of other complaints against Dr. Perkin and the Hospital. I find however that the allegation of a pattern of repetitive negligence is a matter in issue in this action that, after a trial, may support a finding of negligence against Dr. Perkin or the Hospital.
[62] The non-parties have not filed responding material to this motion; therefore, I conclude that they do not take issue with the defendants having to produce the impugned documents.
[63] There is no issue that the non-parties are former patients of Dr. Perkin and that they had been admitted to the Hospital at times as set out in the respective pleadings, except for George Carreiro. Further, none of the defendants have taken the position that hospital records do not exist. Rather, the issue is whether these records are relevant to a matter in issue in this action. Given my above finding that the allegation of a pattern of repetitive negligence is in fact a matter in issue in this action, I will now determine whether the impugned documents are relevant thereto.
(i) All such records known to the Hospital (Notice of Motion, para. 1 (iii)(a))
[64] The plaintiffs request production of “[A]ll such records known to the Hospital including the five (5) proceedings as described in paragraph 35” with respect to the prior similar facts between January 15, 1995 to October 18, 2002. This relief is overly broad and it appears to be a fishing expedition. As such, the claim for this relief is hereby dismissed.
(ii) All Hospital records and all medical opinions (Notice of Motion, para. 1 (iii) (a) and (b))
[65] The plaintiffs seek production of “[A]ll Hospital records of the five (5) cases described in paragraph 35; including all medical opinions with respect to the delivery of healthcare (sic) services by Dr. Perkin in such cases” with regard to the prior similar facts between January 15, 1995 to October 1, 2002. I will address each category of document separately; namely, hospital records and medical opinions.
[66] Regarding the hospital records, it is the plaintiffs’ position that the onus is on the defendants to list all such records in its affidavit of documents and if privilege attaches, to support such privilege so as to narrow the focus of the argument. With respect, in my view, that is not an accurate statement of the law. The defendants’ disclosure obligations are to disclosure all documents that are relevant to any matter in issue in the action that are or have been in the defendants’ possession, control or power (rule 30.03(1)). The Hospital takes the position that it has not disclosed the records because they are not relevant.
[67] On a rule 30.06 motion, the plaintiff must provide some evidence that the defendants have relevant documents in their possession or control that have not been disclosed. The Hospital does not dispute that records exist for the non-parties. Again, the issue is relevance.
[68] For the following reasons, I have not been persuaded that the hospital records are relevant. I fail to see how these records have any probative value to the issue of a pattern of repetitive negligence. I concur with the Hospital’s contention that there is no basis for concluding that the records requested contain any information that is relevant to the plaintiffs’ case given that all of the allegations of negligence in all five lawsuits are unproven. Further, there have been no findings of negligence in the other five actions.
[69] In arriving at my decision, I have also considered the issue of proportionality and that production of the hospital records will unduly increase the volume of productions and likely prolong examinations for discovery for no justifiable reason. Therefore, the hospital records are not producible.
[70] The plaintiffs also seek production of “all medical opinions with respect to the delivery of healthcare [sic] services by Dr. Perkin” with regard to the prior similar facts between January 15, 1995 and October 18, 2002.
[71] The plaintiffs’ position regarding medical opinions is the same as their position regarding the Hospital records. The Hospital’s position is that any expert reports that relate to the standard of care of the Hospital are not relevant given that the plaintiffs have not alleged any similar fact negligence against the Hospital. With respect, I note that in paragraph 35 of the amended statement of claim, the plaintiffs allege that the Hospital had full knowledge of Dr. Perkin exhibiting a pattern of repetitive negligence during the stated dates, and in paragraph 38, they allege that as a result, the Hospital was in breach of its fiduciary duty. Thereafter, starting at paragraph 39, the allegations and particulars of the breach of fiduciary duties are set out.
[72] The Hospital further submits that the Rules of Civil Procedure only require that the findings, opinions and conclusions of experts need to be disclosed if they are going to be relied upon at trial. Therefore, they argue that the plaintiffs’ request may produce the absurd result of expert reports being produced in this action that were not produced in the actions for which they were obtained.
[73] It is further submitted by the Hospital that any expert reports that it may have delivered to the other parties during those proceedings remain cloaked with litigation privilege. With respect, if that were the case, it had an obligation to list those reports in Schedule B of its affidavit of documents, which it did not do. Further, the Hospital did not rely on any case law that extended the right to claim litigation privilege for any reason beyond the time when the litigation ended. As such, this argument has no merit.
[74] The defendants further submit that any reports that the Hospital received from opposing parties during the other litigation cannot be produced as to do so would violate the deemed undertaking rule. Dr. Perkin relies on the case of Livent Inc. v. Drabinsky (2001), 2001 28039 (ON SC), 53 O.R. (3d) 126 (S.C.), for the proposition that non-parties are generally not entitled to transcripts from examinations for discovery. In that case, the motion was brought by a non-party to the action; namely, CIBC, seeking copies of the transcripts of the examination for discovery of one of the defendants, Myron Gottlieb. CIBC was party to litigation pending in the United States in which it was alleged that it and certain former officers of Livent Inc., including Gottlieb, had misrepresented the financial condition of Livent Inc. Whereas, in the action herein, not only has this motion been brought by the plaintiffs; moreover, these plaintiffs have pled allegations of similar facts in five other actions, and it is the transcripts of examinations for discovery in those proceedings that are being sought. In my view, the ruling in the Livent motion can be distinguished on the facts.
[75] The plaintiffs’ rely on the case of Lang v. Crowe, (1997) 10 C.P.C. (4th) 377 (Ont. C.J. (Gen. Div.)), for the proposition that disclosure by a party in one proceeding of that party’s transcript from a previous proceedings does not violate any deemed undertaking rule. I concur with the plaintiffs’ position and that of Leitch J. in Lang where Her Honour made it clear the distinction between “using evidence or information obtained through discovery for any purposes other than those of the proceeding in which the evidence was obtained” (at para. 17) and the obligation to disclose such documents. She concluded that the disclosure of such documents does not amount to making use of information in a way which would violate rule 30.1.
[76] Here the defendants are simply being asked to produce the documents they received in the other actions. As such, production of same would not, in my view, violate the deemed undertaking rule.
[77] Furthermore, it is noteworthy that the non-parties are not opposed to producing any expert reports either obtained by them or otherwise in their lawsuits as they have not responded to this motion.
[78] Moreover, the allegations of negligence against the defendants in the other actions are similar to if not the same as the allegations of negligence in this action. For example, the facts in both the Carriero and Langford actions are the same as in this action. They all involve the birth of a child. In my view, the plaintiffs are entitled to know of any expert opinion regarding the defendants’ actions in the same or similar proceedings. Knowledge of these opinions may lead to a line of inquiry in the within action that may enhance the plaintiffs’ case. Conversely, it may bolster the defence. The defendants likely have in their possession and control expert reports involving the practices and procedures used by the defendants in circumstances that are either the same or similar to the facts of this case. Considering the allegations of similar facts in this action, in my view, all medical reports, whether or not disclosed to the opposing party in the Carruthers, Carreiro and Langford actions, are relevant to the issues in this action. The fact that an expert report in the other actions may not have been disclosed has no bearing on the defendants’ disclosure obligations herein.
[79] Therefore, I am satisfied that all medical reports in the possession, control or power of the defendants that relate to the other three actions are relevant and shall be disclosed to the plaintiffs as required by rule 30.02.
(iii) Transcripts of discovery proceedings (Notice of Motion, para. 1 (iii) (c))
[80] The plaintiffs seek production of all transcripts of discovery proceedings from the five other actions.
[81] The defendants object to production relying on the deemed undertaking rule. Based on my reasons set out above, I am satisfied that production of the transcripts would not offend that rule.
[82] The plaintiffs rely on Beazley v. Suzuki Motor Corp. (2008) 2008 BCSC 850, 58 C.P.C. (6th) 240 (BCSC), where a British Columbia court found that both trial and deposition transcripts of the defendants’ representative from some 119 actions in the United States involving similar allegations were relevant to the Beazley action. The Beazley’s had been involved in a single vehicle crash and they brought an action against the vehicle manufacturer defendants alleging that the vehicle was defective in design and manufacture resulting in vehicle instability and accident.
[83] The Hospital distinguishes Beazley on the basis of the British Columbia Supreme Court Civil Rules which expressly contemplate that in certain circumstances discovery transcripts will be disclosed to non-parties. An equivalent provision does not exist in Ontario.
[84] The Hospital refers to rule 27(25) of the British Columbia Supreme Court Civil Rules which provides that:
An examination for discovery shall be taken down in the form of question and answer, and copies of the transcript may be obtained on payment of the proper fee by any party of record, the person examined or by any other person as the court for special reason may permit. (emphasis added)
[85] Given that rule, the court in Beazley was required to determine whether the moving party had satisfied its onus in proving that a “special reason” existed for production of the transcripts. The court referred to an earlier case in Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. 1998, 27 C.P.C. (4th) 252 at para. 23, where that court considered rule 27(25) and found that:
[t]he onus of establishing special reasons is not a heavy one; an order for production of a discovery transcript from another action should be almost automatic provided it is established that there is sufficient connection between the two actions, by the parties, their interests and the broad issues between them, so that it can be said that the actions are related. The overall question is whether the evidence given by the witness at discovery in the earlier action, may have some bearing on relevance directly or indirectly, on the evidence he may give in the second action. Any doubt in this regard, in my view, should be resolved in favour or [sic] the applicant, provided there is no evidence that substantial detriment or injustice will be done to the witness, and which in most cases will be unlikely. Even then restrictions on the use of the transcript in most cases should reduce any detriment or injustice to the witness, to the extent that the balancing of the competing interests will come down in favour or [sic] the party seeking to use the transcript.
[86] Given that the Rules of Civil Procedure in Ontario do not contain the same or similar provision regarding who is entitled to obtain copies of transcripts of an examination for discovery, in my view, the plaintiffs are not required to meet any such test of “special reasons”. That said, the cases referred to in Beazley are instructive. In particular, the court referred to the decision in Ashton v. A.E. LePage (B.C.) Ltd. (1992), 1992 1225 (BC SC), 65 B.C.L.R. (2d) 210 (S.C.), where that court ordered the production of such transcripts. In Ashton at para. 22, Allen J. held that “a party is entitled to know the evidence that the other party may have given under oath on previous occasions with respect to the same broad issues....to bar such access would cloak the defendant’s prior testimony of relevant matters in secrecy, which is a value not worthy of protection.”
[87] The court in Beazley also referred to the recent Supreme Court of Canada decision in Juman v. Doucette, 2008 SCC 8, 2008 SCC8, [2008] 1 S.C.R. 157, where that court noted at para. 35 that “when discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, leave will generally be granted.”
[88] It is important to note that in Beazley the plaintiff sought production of the trial and disposition transcripts of only the defendants’ representative from prior proceedings, whereas in this motion, the plaintiffs seek production of all transcripts of discovery proceedings in the prior five actions. In ordering production of the transcripts of the defendants’ representative from prior proceedings, the court in Beazley held that “[T]ranscripts of what representatives of the GM defendants said on prior occasions may lead to a train of enquiry which could advance the plaintiffs’ case or damage that of the GM Defendants.” As such, the court found that the transcripts were relevant documents and had to be produced.
[89] It is noteworthy that many of the defendants in this action are the same defendants in the five other actions. Dr. Perkin and the Hospital are defendants in the other five actions, but also Dr. Buma, Mr. Pusey and Dr. Ferguson are named defendants in both this action and the Carriero action.
[90] The defendants have possession or control of the said discovery transcripts. The defendants adduced no evidence that the transcripts were not ordered. I concur with the reasons in Beazley and for the reasons above, I find that the transcripts of the examinations for discovery of Dr. Perkin and the representative of the Hospital are relevant and must be produced.
[91] The next issues relate to whether production of the transcripts should be limited to the representative of the Hospital and Dr. Perkin or extend to all the parties in the three other actions, including experts. The plaintiffs’ production request is broad in that they seek production of all transcripts of discoveries in the prior actions. The parties have not referred me to any cases that addressed this issue.
[92] The court in Beazley was of similar concern that if the requested order were granted, the plaintiffs would have “available to them a much broader range of pre-trial discovery then would normally be the case” (at para. 30). On the other hand, the court weighed the fact that the transcripts deal with similar issues to those involved in that action, and they may contain evidence or admissions that will be of value to and otherwise not available to the plaintiffs (at para. 31).
[93] The plaintiffs have not specifically addressed this issue. The defendants’ material fails to disclose the number of examinations for discovery that were conducted in the other actions. For example, their material fails to state whether all of the parties were examined, including the Family Law Act[^6], claimants and the nurses. Without this information, the defendants’ arguments on proportionality carry little weight.
[94] This case involves significant claims for damages and the alleged injuries to the infant plaintiff cannot be ignored. The facts in two of the three other actions arise out of similar facts to this action. For the above reasons, I am ruling in favour of production of all of the transcripts of examinations for discovery in the other three actions. To rule otherwise may prejudice the plaintiffs in that they could be deprived of proceeding to trial without valuable evidence that could possibly bolster their case.
(iv) List of all litigation against Dr. Perkin from 1995 to present (Notice of Motion, para. 1 (iii) (g))
[95] The plaintiffs seek a listing of all litigation against Dr. Perkin with respect to obstetrical and non-obstetrical cases from 1995 to present. I concur with the defendants’ position that there is no obligation on a party to to create a document for its affidavit of documents. The Hospital’s evidence is that it does not have in its possession any such listing. The plaintiffs have offered no evidence that any such list exists. As such, the claim for this relief is hereby dismissed.
E. Discovery Plan (Notice of Motion, paragraph 1 (iv))
[96] The plaintiffs request that this court order that a discovery plan be entered into by all parties.
[97] Since January 1, 2010, any party who intends to obtain evidence by various methods of discovery provided for under Rules 30 through 33 and 55, has a positive obligation to agree to a discovery plan “before the earlier of, 60 days after the close of pleadings or such longer period as the parties may agree to; and attempting to obtain the evidence.” (rule 29.1.03 (1) and (2)). There are serious sanctions for failure to agree to a plan. The court may refuse to grant any relief or to award any costs on any motion under Rules 30 to 35 relating to discovery (rule 29.1.05).
[98] The plaintiffs filed no evidence of any attempts by the parties to enter into a discovery plan. Nor have the plaintiffs provided any authority for the court to make such an order. Clearly rule 29.1.05 gives the court discretion to refuse to grant any relief for failure to agree to a discovery plan; however, that relief is not being sought. This action continues to be case managed under Rule 77. Under that rule, a judge or case management master has authority, as set out in rule 77.04, to make orders, including establishing a timetable and to make orders, impose terms and give directions as necessary to carry out the purpose of that rule.
[99] Therefore, as no authority exists for the relief sought, that request is hereby dismissed.
[100] However, given the orders made herein, I am requiring that the plaintiffs schedule a case conference at a time mutually agreeable for all counsel in order to deal with establishing a timetable and discovery plan.
Conclusion
[101] For the above reasons, the following orders are hereby made:
Dr. Perkin shall serve a further and better sworn affidavit of documents that complies with rule 30.03 and produce the following documents within 45 days of the date of this order: records of complaints regarding Dr. Perkin that have not been the subject of proceedings before the CPS, all medical reports relating to the other three actions, and all transcripts of examinations for discovery in the other three actions;
The Hospital shall serve a further and better sworn affidavit of documents that complies with rule 30.03 and produce the following documents within 45 days of the date of this order: all medical reports obtained or produced in the course of the other three actions, and all transcripts of examinations for discovery in the other three actions.
The balance of the relief sought by the plaintiffs is hereby dismissed.
The plaintiffs shall schedule a case conference at a time mutually agreeable to all counsel to deal with establishing a timetable and discovery plan.
Costs of motion heard on April 21, 2011
[102] The defendants were successful on this motion regarding the appropriate method of service on the non-parties. Each group of defendants shall be entitled to partial indemnity costs of $1,200 payable within 60 days.
Costs of plaintiffs’ motion heard on July 11, 2011 and August 11, 2011
[103] There was divided success; however, in my view, this motion was necessary as the defendants must deliver further and better affidavits of documents.
[104] That said, I am concerned about the conduct of the plaintiffs that lengthened unnecessarily the duration of the motion. For example, I am referring to the lack of specificity in some of relief sought outlined above, duplication of relief sought and verbosity in notice of motion. Furthermore, the plaintiffs caused delays as follows: failed to confirm the motion scheduled for February 14, 2011, which necessitated a case conference held on March 18, 2011; excessive oral argument on July 11, 2011, of the majority of the day when the plaintiffs confirmed six hours in total for all parties necessitating a further hearing on August 11, 2011, for the defendants’ oral submissions (completed in approximately three hours for both); plaintiffs’ unsuccessful request for an order to dispense with service of the motion on several non-parties when there was no formal motion before the court and this issue was specifically addressed in paragraph 37 of my Endorsement dated June 6, 2011 (hearing held on April 21, 2011) and in light of my order made at the case conference on November 23, 2010, requiring the plaintiffs to serve the non-parties personally or obtain an order for substitutional service by January 14, 2011; plaintiffs’ unsuccessful attempt to obtain leave to late file a Supplementary Brief of Authorities at the hearing on August 11, 2011, after completion of plaintiffs’ oral submissions on July 11, 2011. This conduct caused the defendants to incur unnecessary costs that, in my view, the plaintiffs ought to be responsible.
[105] While I would not have ordered costs to any party given the divided result on this motion, I find that this is a proper case to order that the plaintiffs pay those unnecessary costs. Therefore, the plaintiffs shall pay to each group of defendants the following sums: $570 for the three-hour hearing on August 11, 2011; $250 for failure to confirm the motion scheduled for February 14, 2011; $250 for the case conference held on March 18, 2011, for a total $1,070 to each group of defendants, payable within 60 days.
Original signed “Master Pope”
Master Lou Ann M. Pope
Date: January 6, 2012
[^1]: Meuwissen v. Perkin, 2008 67902 (ON Master). [^2]: Meuwissen v. Perkin, 2011 ONSC 3426, 2011ONSC 3426. [^3]: Zhang v. Jiang (2006), 2006 24131 (ON SC), 82 O.R. (3d) 306 (S.C.); Laframboise v. Woodward (2002), 2002 49471 (ON SC), 59 O.R. (3d) 338 (S.C.). [^4]: Dali v. Panjalingam, 2011 ONSC 3418, at para. 21, citing R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709. [^5]: Meuwissen v. Perkin, 2008 6792 (ON Master). [^6]: Family Law Act, R.S.O. 1990, c. F. 3.