SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-11-423760
Date: 2012-07-25

RE: RAHIM KHAN, a minor by his Litigation Guardians, BIBI KHAN, ZAMEER KHAN and the said BIBI KHAN personally

Plaintiffs/Respondents

• and -

DR. JOSEPH LEE

Defendant/Appellant

BEFORE: Justice S. M. Stevenson

COUNSEL:
Andreas G. Seibert , for the Plaintiffs/Respondents
Kirk F. Stevens and Jennifer L. Hunter , for the Defendant/Appellant

DATE HEARD: June 12, 2012

E N D O R S E M E N T

Introduction

[ 1 ] This is a medical malpractice action in which the defendant, Dr. Joseph Lee ("Dr. Lee"), is alleged to have provided negligent care and treatment and to have breached his contractual obligations to the plaintiff, Bibi Khan (mother), Zameer Khan (father) and Rahim Khan (son) ("Rahim") arising from Rahim’s birth on May 15, 1991.

[ 2 ] The plaintiffs commenced an action against Dr. Lee in April 2011, approximately twenty years after the birth of Rahim. Dr. Lee contends that the statement of claim is boiler-plate in nature and contains very few material facts. Dr. Lee made a request for particulars. Of the twenty questions contained in the demand for particulars, for seventeen of the questions the plaintiffs indicated that they do not have particulars.

[ 3 ] Dr. Lee moved to strike the entire statement of claim without leave to amend pursuant to Rules 21.01 , 25.06 and 25.11 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. He filed a factum, but no evidence in support of the motion to strike. However, in his factum, at paragraph 8, Dr. Lee indicated that “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”.

[ 4 ] In response to Dr. Lee’s motion to strike, the plaintiffs served him with a notice of examination under Rule 39.03(1) to obtain evidence relevant to that motion. Dr. Lee did not attend and the plaintiffs sought an order compelling him to attend. Master Haberman granted such order on February 9, 2012.

[ 5 ] Dr. Lee now appeals the Order of Master Haberman, including the order for costs.

Issues

[ 6 ] The two issues in this matter are:

i) Did Master Haberman err in ordering Dr. Lee to be examined pursuant to Rule 39.03(1)?; and

ii) Did Master Haberman err in ordering costs against Dr. Lee in the amount of $7,890.00?

i) Did Master Haberman err in ordering Dr. Lee to be examined pursuant to Rule 39.03(1)?

Standard of Review

[ 7 ] The parties are in agreement that the appropriate standard of review on an appeal of a master’s order is whether the master made an error of law or exercised his or her discretion on wrong principles or misapprehended the evidence such that there is a palpable and overriding error. See: Zeitoun v. Economical Insurance Group , 2008 20996 (ON SCDC) , [2008] O.J. No. 1771 (Div. Ct.) at para. 40 , aff’d 2009 ONCA 415 , [2009] O.J. No. 2003.

Relevant Rules of Civil Procedure

[ 8 ] Dr. Lee brought motion to strike pursuant to the following Rules:

21.01 (1) A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[ 9 ] The plaintiffs brought their motion to examine the defendant before the motion to strike for the purpose of obtaining a transcript of the defendant’s evidence to have available on that motion pursuant to Rule 39.03(1):

Subject to subrule 39.02(2), a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing.

The Test on a Rule 39.03(1) Motion

[ 10 ] A frequently quoted articulation of the test on a Rule 39.03(1) motion comes from Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 7258 (ON SC) , 27 O.R. (3d) 291 (Gen. Div.), at p. 299, where Sharpe J. stated:

While I accept the proposition that rule 39.03 cannot be used to conduct third party discovery or "fishing expeditions", I do not accept the argument that that is what is involved here. In effect, the defendants are saying that a party seeking to conduct a rule 39.03 examination must show some likelihood that the examination will yield evidence helpful to that party. In my view, this places too heavy an onus on the party seeking to examine a witness. A party resorting to a rule 39.03 examination is required to show that the proposed examination will be on an issue relevant to the pending motion and that the party to be examined is in a position to offer relevant evidence. I am aware of no authority which requires the party to go one step further and show that the proposed examination will yield evidence helpful to that party's cause. In Canada Metal Co. v. Heap (1975), 1975 675 (ON CA) , 7 O.R. (2d) 185, 54 D.L.R. (3d) 641 (C.A.), the leading case interpreting Rule 230 of the Rules of Practice, the provision corresponding to rule 39.03 at the time the case was decided, Arnup J.A. stated (at p. 192): “The evidence sought to be elicited must be relevant to the issue on the motion. If it is, there is a prima facie right to resort to Rule 230.” [Emphasis added.]

[ 11 ] In Clarke v. Madill (2001), 2001 28089 (ON SC) , 57 O.R. (3d) 730, [2001] O.J. No. 3256 (S.C.J.), after quoting Arnup J.A. in Re Canada Metal Co. v. Heap (1975), 7 O.R. (2d) (C.A.) at p. 192, Master Dash stated, at para. 35:

The examining party has the onus of proving that the evidence sought to be elicited from the witness is relevant to the issues on the motion. If the examining party meets that hurdle he has a prima facie right to conduct the examination of the witness in aid of the motion. The burden of displacing that prima facie right on the basis that the exercise of the right would be an abuse of the process of the court lies with the party moving to attack the Summons.

[ 12 ] Paragraphs 38 to 39 of Clarke are also instructive:

¶38 In Elfe Juvenile Products Inc. v. Bern , [1994] O.J. No. 2840 White, J. held at page 9 that in considering what issues are relevant to the motion for which the examination is in aid, one should consider ‘the nature of the motion, and also the grounds for the motion’.

¶39 In LG&E Natural Canada Inc. v. Energistics Group Inc. , [1997] O.J. No. 1662 Gans, J. confirmed at page 2 that:

The moving party must establish that the questions asked ... are relevant to the issues in the main motion itself.

In that case the main motion was to vacate an Anton Pillar order, and Gans, J. determined for the questions to ‘be relevant or have a semblance of relevancy’ they must be questions which would allow the Anton Pillar order to remain or fall.

[ 13 ] Based upon these decisions, it is clear that it is important to consider the nature and grounds for the motion for which the examination is requested. In this case, the motion is a motion to strike out the entire statement of claim under Rules 25.06 and 25.11 on the grounds that it does not contain a concise statement of material facts, contains irrelevant or unfounded allegations and is therefore scandalous, frivolous or vexatious. The questions that may be asked on a Rule 39.03(1) examination must be relevant to that motion, that is to whether or not the statement of claim can stand in the face of allegations that it fails to plead sufficient material facts to give rise to an intelligible claim.

[ 14 ] At para. 40 of Clarke , Master Dash referred to the following:

¶40 In a case dealing with the use of a rule 39.03 examination in aid of a motion for particulars, Kendal v. Greymac Mortgage Corp ., [1985] O.J. No. 1628 , Master Peterson held:

The motion for particulars cannot be dealt with as an evidentiary matter but must stand or fall solely on a review of the pleadings itself ... Accordingly, the examination sought, in my view would really amount to a premature discovery and fishing expedition that can have as its primary purpose little relevance to the determination of the motion for particulars, restricted as mentioned above to an examination of the pleading alone.

[ 15 ] The defendant argues that by analogy, because the motion to strike the statement of claim in its entirety will fall solely on a review of the statement of claim itself, any examination sought of Dr. Lee would also amount to a fishing expedition and would not have relevance to determining the purely legal question of whether or not the plaintiff had plead its case with sufficient particularity.

[ 16 ] The plaintiffs, however, argue that the statement in paragraph 8 of Dr. Lee’s factum also makes his inability to respond to the plaintiffs’ allegations a relevant question in the motion to strike. Master Haberman agreed that by stating he is unable to respond to the allegations in the statement of claim, Dr. Lee has made his inability to respond a relevant issue on the motion to strike and the plaintiffs therefore have a prima facie right to examine him on that issue.

[ 17 ] This gives rise to the question of whether or not evidence from Dr. Lee is relevant on the Rule 25.11 motion to strike.

Evidence on a Rule 25.11 motion

[ 18 ] Master Haberman indicates at paragraph 18 of her decision that no evidence is permitted with respect to the portion of the motion brought under Rule 21.01 . However, she accepts that evidence would be permitted in respect of Rules 25.06 and 25.11 .

[ 19 ] The plaintiffs rely on Chenier v. Hôpital Général de Hawkesbury , [2006] O.J. No. 1679 (S.C.J.) in support of the contention that evidence may be permitted on a motion to strike brought pursuant to Rule 25.11 . Chenier is a case in which negligence was alleged against the defendant doctors in respect of a baby who became brain damaged at birth. In that case, the defendants attempted to strike out the pleading under Rule 25.11 for failure to disclose the minimum level of material fact required by Rule 25.06 , but their motion was dismissed because they failed to produce affidavit evidence in support of their contention that they could not comprehend the allegations against them. Chenier demonstrates that affidavit evidence is permitted and at times even required on a Rule 25.11 motion to strike. The plaintiffs use Chenier to argue that by analogy, Dr. Lee will require some evidence on his Rule 25.11 motion in support of his contention that he is unable to respond to the allegations in the statement of claim.

[ 20 ] Dr. Lee submits that Master Haberman committed an error of law by allowing the plaintiff to conduct a Rule 39.03(1) examination of Dr. Lee for the purpose of obtaining a transcript of his evidence to produce at the motion to strike when no evidence is required at that motion. Dr. Lee's argument implies that Master Haberman failed to consider the nature of this particular motion and that she failed to identify what is relevant on a motion to strike a statement of claim. At paragraphs 20 to 22 of his factum, Dr. Lee provides examples of cases where pleadings have been struck in the absence of affidavit evidence: see Copland v. Commodore Business Machines Ltd. , 1985 2190 (ON SC) , [1985] O.J. No. 2675 (Sup.Ct.). I note, however, that in Copland , Master Sandler relied only on Rule 25.06 .

[ 21 ] Dr. Lee also relies on Nordheimer J.’s decision in Basdeo (Litigation Guardian of) v. University Health Network , [2002] O.J. No. 263 (S.C.J.) as an example of a medical negligence case where the defendant doctors successfully moved to strike boilerplate language found in the statement of claim. Without reference to any evidence from the defendants, Nordheimer J. found that due to the boilerplate language, the defendants could not reply to the allegations except by way of a blanket denial. He indicated that where the plaintiffs are not in possession of material facts in support of certain allegations, those allegations should not be made. Consequently, he struck out the paragraphs that did not meet the minimum requirements of Rule 25.06 .

[ 22 ] At paragraph 28 of his factum, Dr. Lee argues that Nordheimer J.’s analysis in Basdeo is consistent with a number of other decisions, which together indicate that the issue of what constitutes the minimum level of material fact disclosure to raise a claim is purely a matter of law, and that evidence is irrelevant to that issue.

[ 23 ] At paragraph 48 of their factum, the plaintiffs point out that Basdeo did not deal with Rule 25.11 and only relied on Rule 25.06 . Basdeo also did not involve an attempt to strike an entire claim without leave to amend; rather, Nordheimer J. addressed and struck out specific paragraphs of the statement of claim with leave to amend. The plaintiffs also contend that Basdeo both pre-dates Chenier and was also relied on unsuccessfully by the defence in Chenier . At paragraph 50 of their factum, the plaintiffs stress that Basdeo does not address whether a plaintiff can move under Rule 39.03(1) to examine a defendant relying on Rule 25.11 to strike a claim because that issue clearly did not arise in that case.

[ 24 ] Dr. Lee has provided examples in both Copland and Basdeo of circumstances in which paragraphs of pleadings have been struck for failing to meet the minimum level of material fact required under Rule 25.06 . However, this does not settle the issue of whether a defendant who seeks to strike out a statement of claim in its entirety without leave to amend pursuant to Rule 25.11 should provide additional evidence in support of that motion. Basdeo demonstrates that it is possible for pleadings to be struck without reference to affidavit evidence (albeit in the Rule 25.06 context). Chenier demonstrates the converse (in the Rule 25.11 context). Although these cases do not settle the question of whether or not evidence is required on a Rule 25.11 motion, Chenier does demonstrate that in some circumstances, affidavit evidence will be necessary.

Disposition

[ 25 ] Dr. Lee alleges that Master Haberman erred in holding that it was incumbent on him to assert under oath that he lacks sufficient knowledge of the allegations against him in order to plead. Dr. Lee submits that this is a purely legal issue and that Master Haberman erred in law by finding that evidence may be relevant on this motion.

[ 26 ] The plaintiffs wish to examine Dr. Lee on his stated inability to respond to the allegations made in the statement of claim. The test for a Rule 39.03 examination requires that the plaintiffs demonstrate that the examination they seek will be relevant to the upcoming Rule 25.11 motion to strike. Master Haberman finds, at paragraph 36 of her reasons, that Dr. Lee made his inability to respond to the allegations relevant by raising the issue in the factum he filed on that motion. She points out that Dr. Lee clearly found that issue relevant to his Rule 25.11 motion because he raised it in his factum.

[ 27 ] As the case law set out above demonstrates, once it is shown that the proposed examination will be on an issue relevant to the pending motion, the party seeking to examine has a prima facie right to conduct that examination. Master Haberman is correct that the onus on a party seeking to rely on Rule 39.03 is not a high one. I see no error in Master Haberman’s finding that Dr. Lee’s statement about his inability to respond to the allegations in the statement of claim is relevant to his motion to strike. Clearly, part of his argument will be that the statement of claim is so lacking in material facts that he cannot determine to what he must respond. As Master Haberman indicated at paragraph 34, the Rule 39.03 examination will be limited in scope to questions specifically relating to that issue. Dr. Lee is in a position to give evidence regarding his own ability to respond to the allegations.

[ 28 ] Dr. Lee's other concern is that Master Haberman erred in law by misunderstanding what is relevant on a motion to strike. Dr. Lee submits that there is no need for the transcript evidence that a Rule 39.03 examination would produce because evidence is completely irrelevant to the determination that needs to be made on a motion to strike. However, Chenier demonstrates that this is not always the case, and that affidavit or transcript evidence from the moving defendants could be relevant on a Rule 25.11 motion. Although it is possible that a pleading could be struck because it completely lacks material facts in the absence of supporting evidence, I do not find that this is necessarily the case that this determination is purely a legal question and will never require supporting affidavit evidence. On this basis, I do not find that Master Haberman erred in law by finding that the Rule 39.03 examination may provide evidence that is relevant to the motion to strike. Dr. Lee has not proven that the issue on his motion to strike is purely a question of law such that no affidavit or transcript evidence would ever be relevant or required.

ii) Did Master Haberman err in ordering costs against Dr. Lee in the amount of $7,890.00?

[ 29 ] I do not find that Master Haberman erred in ordering costs against Dr. Lee in the amount of $7,890.00. Costs awards are highly discretionary and Master Haberman’s order falls within a range of reasonable outcomes.

[ 30 ] I note that as submitted by counsel for the plaintiffs, in Dr. Lee’s Costs Outline on the motion before Master Haberman he sought $5,533.36 in fees. Further, the plaintiffs’ Costs Outline reflected only 6.3 hours more in preparation time and the plaintiffs’ counsel prepared a factum, motion record and Book of Authorities. I do not find that there are strong grounds to find that Master Haberman erred in principle or was plainly wrong in exercising her discretion.

Order

[ 31 ] I order the following:

i) The Defendant’s appeal and motion seeking leave to appeal respecting costs are dismissed.

ii) I urge the parties to agree on costs but if they are unable to do so, the Plaintiffs shall serve and file written costs submissions no longer than three double-spaced pages, along with a Costs Outline within 20 days and the Defendant shall serve and file written costs submissions no longer than three double-spaced pages, along with a Costs Outline 20 days thereafter.

Stevenson J.

DATE: July 25, 2012