Zurba et al. v. Lakeridge Health Corporation et al. [Indexed as: Zurba v. Lakeridge Health Corp.]

111 O.R. (3d) 69

2012 ONSC 3872

Ontario Superior Court of Justice

Gilmore J.

June 29, 2012

Motions -- Determination before trial of question of law -- Defendant summonsing plaintiffs' counsel to testify at trial and produce documents in his file which were allegedly relevant to issue of discoverability -- Plaintiffs moving under Rule 21 for determination before trial of question whether defendant could summons plaintiffs' counsel -- Rule 21 motion not appropriate procedure -- Motion not raising question of law in pleading -- Trial judge in best position to decide issues related to witness summonses and admissibility of privileged documents -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194 , Rule 21.

The plaintiffs sued the defendant orthopedic surgeon for negligence. The defendant raised a limitations defence. He summonsed the plaintiffs' counsel to testify at trial and produce documents in his file, taking the position that that evidence was relevant to the issue of discoverability. The plaintiffs brought a motion under Rule 21 of the Rules of Civil Procedure for determination before trial of a question of law, namely, whether the defendant could summons the plaintiffs' counsel to testify at trial and produce documents.

Held, the motion should be dismissed.

A Rule 21 motion was not the appropriate procedure. The plaintiffs' amended statement of claim did not raise a question of law related to the issue of discoverability. The trial judge was in the best position to decide issues related to witness summonses and the admissibility of privileged documents. The issue of discoverability remained a live one for trial, and prejudging issues of document admissibility and witnesses might interfere with the defendant's ability to properly defend his case. Discoverability is a fact-based analysis and does not raise a question of law.

MOTION to determine a question of law.

Cases referred to
Allen v. Morisette, 1993 14663 (ON CA) , [1993] O.J. No. 152, 69 O.A.C. 76, 79 C.C.C. (3d) 444, 18 W.C.B. (2d) 601 (C.A.);
Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102 , 81 C.C.L.T. (3d) 220, 276 O.A.C. 75;
MacDonald v. Ontario Hydro (1995), 1995 10628 (ON SC) , 26 O.R. (3d) 401, [1995] O.J. No. 3048, 86 O.A.C. 37, 10 C.C.P.B. 1, 58 A.C.W.S. (3d) 392 (Div. Ct.)

Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194 , rules 21, 21.01(1) (a)

Ronald P. Bohm, for plaintiffs.
Stuart Zacharias, for defendant Alexander Clark.

Reasons for Decision

GILMORE J.: -- [page70 ]

Overview

[1] This is the plaintiffs' motion for a determination of a question of law before trial. More specifically, can the defendant, Alexander Clark ("Clark"), summons the plaintiffs' counsel, Ronald Bohm, to testify at trial and require him to produce certain documentation in his file, including communications with the plaintiff Earl Zurba ("Zurba")? Clark claims that the communications are relevant to the issue of discoverability.

[2] Following the hearing of the motion on April 19, 2012, I rendered a decision that Clark could not summons Mr. Bohm for the upcoming trial nor was he required to produce the contents of his file. However, having more carefully reviewed the file and the law as presented, I am not persuaded that the relief sought can be granted on a Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ] motion. I was incorrect in my initial view of matters as I had not had the opportunity to fully review the Rule 21 issue and I apologize to counsel for any inconvenience this may have caused.

The Facts

[3] This is an action arising from alleged negligence by orthopedic surgeon Clark, who was involved in the initial treatment of Zurba. Mr. Zurba fell off a ladder and sustained a fractured ankle on August 23, 2003. The statement of claim was filed on December 29, 2006. In April 2008, Clark served and filed a statement of defence which raised a limitation defence, among other things. In November 2008, the plaintiff issued a notice of discontinuance of the action against the named defendants other than Clark and Lakeridge Health Corporation.

[4] Zurba underwent surgeries and treatment as recommended until the end of June 2006. It is alleged that he was advised that if he followed the treatment and rehabilitation plans, he would obtain a satisfactory result. When treatment concluded at the end of June 2006, Zurba was concerned that he had not received the result promised. He was unsure of the exact problem with his treatment but retained counsel, Mr. Bohm, who in turn obtained relevant records and sought a medical opinion.

[5] An initial oral medical opinion was obtained by Zurba through his counsel on December 27, 2006, and the statement of claim issued December 29, 2006. However, the statement of claim was not served until a written medical report was obtained on May 11, 2007. The statement of claim was served on June 11, 2007. The treatment of Zurba by Clark was identified in the medical opinion of Dr. Daniels as being sub-standard. [page71 ]

[6] In December 2008, Clark brought a motion to strike out the statement of claim on the ground that it failed to plead discoverability. The plaintiffs brought a cross-motion to amend the statement of claim acknowledging the necessity of pleading discoverability. In support of that cross-motion, plaintiffs' counsel, Ronald Bohm, swore an affidavit on January 8, 2009. The affidavit contained the following information: that Mr. Bohm was initially consulted by Zurba on June 22, 2006; that his office retained Dr. Timothy Daniels to give a medical opinion; that in December 2006, Mr. Bohm received preliminary oral advice from a medical practitioner in connection with records he had obtained; and that based on the advice and records, Mr. Bohm determined that it would be prudent to issue a statement of claim. The claim was issued on December 29, 2006.

[7] Zurba also swore an affidavit in support of the cross- motion to amend the claim. Zurba was cross-examined on that affidavit in March 2009. Clark's position on the cross-motion was that the plaintiffs had failed to provide evidence as to why their claim could not have been discovered within two years of the material events involving Clark. Ultimately, Clark's motion to strike the plaintiffs' cross-motion to amend was resolved on consent. No hearing occurred with respect to those motions and in May 2009 the amended statement of claim was issued.

[8] The amended statement of claim added an allegation that the plaintiffs "first learned of some of the underlying facts giving rise to their cause of action on December 27, 2006". Clark alleges that this pertains to the communication between Zurba and Mr. Bohm referred to in their respective affidavits sworn in early 2009.

[9] In November 2009, Clark brought a motion for summary judgment on the grounds that the action was statute-barred. The motion for summary judgment was dismissed and the issue of whether or not a medical opinion was needed to discover the cause of action has never been decided. Zurba maintains that he did not learn of any of the underlying facts giving rise to his cause of action until on or about December 27, 2006, when the initial oral medical opinion was obtained. Clark did not object to Mr. Bohm's affidavit or to Mr. Bohm acting for Zurba to defend the motion for summary judgment.

[10] Examinations for discovery of Clark and the plaintiffs took place in August 2010.

[11] This matter was scheduled for trial in the May 2012 sittings but has been adjourned to the November 2012 sittings.

[12] On January 6, 2012, Mr. Bohm received a letter from Clark's counsel indicating that because discoverability was an [page72 ]issue to be determined at trial, it was counsel's position that Mr. Bohm was a material witness and would be required to testify at trial and produce certain documentation in his file, including communications with Zurba relevant to the issue of discoverability.

[13] Zurba did not consent to the contents of his file being disclosed and did not wish to retain other counsel. Mr. Bohm objected to being summonsed and did not agree that this was an evidentiary matter to be determined by the trial judge. As a result, Mr. Bohm brought the within motion seeking an order pursuant to rule 21.01(1) (a) of the Rules of Civil Procedure .

The Issues

[14] There are two main issues raised on this motion. The first is whether this is an appropriate Rule 21 motion and the second is whether Clark should be entitled to serve Mr. Bohm with a summons for himself and his file.

Issue 1: Is the motion properly brought under rule 21.01(1) (a)?

[15] Rule 21.01(1)(a) states that:

21.01(1) A party may move before a judge, (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs.

[16] Mr. Bohm submits that he first heard of Clark's position on this issue by way of letter dated January 6, 2012, in which Clark's counsel indicated their intention to summons Mr. Bohm and require production of his file as it related to the issue of discoverability. Zurba complains that there was no objection to the affidavit of Mr. Bohm sworn in January 2009 during the course of the motions brought by Clark in 2008 and 2009.

[17] Mr. Bohm has never been cross-examined on the affidavit in question nor was he put on notice that there was any issue with him continuing to act as counsel. If required to testify, Mr. Bohm would no longer be able to act as trial counsel. Zurba has worked with Mr. Bohm since 2006. He does not wish to change counsel.

[18] According to the plaintiffs, a Rule 21 motion is the correct procedure for dealing with this issue. If the issue is determined by the trial judge and Mr. Bohm was required as a material witness, the trial would be delayed to the spring sittings in 2013 as the plaintiffs would require new counsel. The delay would be prejudicial to the plaintiffs. [page73 ]

[19] The plaintiffs argue that this will be a complex trial with many witnesses and at least three expert surgeons. Waiting until trial to see if Zurba will be entitled to have the counsel of his choice is precisely what Rule 21 tries to protect against.

[20] The defendant Clark argues that this motion does not raise a question of law in a pleading and therefore a Rule 21 motion is not the appropriate procedure. Rather, it raises evidentiary matters such as who may be called as a witness and documentary privilege: issues that should be decided by the trial judge.

[21] Clark relies on Allen v. Morissette, 1993 14663 (ON CA) , [1993] O.J. No. 152, 69 O.A.C. 76 (C.A.) for the proposition that the determination of the admissibility of documents is the task of the trial judge. In Allen, the appellant sought to quash subpoenas in order to assert statutory privilege over certain school documents of which the appellants were custodians. The appeal was allowed and the court concluded that the trial judge was in the best position to assess the impact of the statutory privilege and the relevance of the documents.

Ruling on Rule 21 Issue

[22] I agree with Clark's view that this is not an appropriate Rule 21 motion for the following reasons:
(a) The plaintiffs' amended statement of claim does not raise a question of law related to the issue of discoverability.
(b) It is premature for me to decide issues related to witness summonses and the admissibility of privileged documents when the trial judge is in the best position to do so (as per Allen v. Morrissette).
(c) The trial judge is also in the best position to decide the issue of waiver in relation to the alleged waiver created by Zurba's 2009 affidavit.
(d) While the result of the trial judge's ruling may create delays, the trial process must be a fair one for both parties. Zurba will have time to hire co-counsel if he feels that is necessary to guard against a situation where his own counsel may not be able to continue.
(e) Clark's motion for summary judgment to dismiss on the ground that the action was statute-barred was dismissed. Therefore, the issue of discoverability remains a live one for trial. Clark must be allowed to properly defend his case. Prejudging issues of document admissibility and witnesses may interfere with his ability to do so. [page74 ]
(f) Discoverability is a fact-based analysis (see Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102 , at para. 23 ) and does not raise a question of law.
(g) The determination of the legal issue is not "plain and obvious" as per MacDonald v. Ontario Hydro (1995), 26 O.R. (3d) 401, 1995 10628 (ON SC) , [1995] O.J. No. 3048 (Div. Ct.).

[23] Given all of the above, it is not necessary for me to decide the second issue. As indicated herein, the second issue is one properly dealt with by the trial judge.

[24] If the parties cannot agree on costs, they may provide written submissions no longer than two pages in length exclusive of any bill of costs or offer to settle. Submissions to be provided on a seven-day turnaround, starting with Clark on July 20, 2012.

Motion dismissed.