ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 62793/02

DATE: 20120201

B E T W E E N:

TARIQ FAROOQ

Patrick Di Monte, for the Plaintiff/ Responding Party

Plaintiff

• and -

DR. GABRIEL ALEXANDER MICELI, ROYAL KING ELECTRIC LIMITED and SAL GUGLIUZZI

Kate Findlay, for the Defendant/Moving Party Dr. Gabriel Miceli

Defendants

HEARD: January 20, 2012

REASONS FOR DECISION

LAUWERS J.:

[ 1 ] The plaintiff sues the defendants for medical malpractice and the tort of conspiracy. The defendant Dr. Miceli moves for summary judgment under rule 20, rule 21.01(3)(d) and rule 25.11 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 436/10.

[ 2 ] Counsel for the defendant, Dr. Miceli, argues that to have any prospect of success at trial against him. Miceli, the plaintiff requires a proper expert opinion establishing a breach of the standard of care by Dr. Miceli and causation. The plaintiff does not have a proper expert opinion. There is, accordingly, “no genuine issue requiring a trial and summary judgment should be granted.”

[ 3 ] A similar motion was brought by the defendants and heard by Boyko J. on February 14, 2006. Mr. Di Monte submits that the decision of Boyko J. binds Dr. Miceli who cannot bring another motion on the same ground. In relation to the medical malpractice claim, Boyko J. said: “In my view the plaintiff has explained that it is only now ready to file an expert’s report and this is not a ground on which to dismiss the plaintiff’s action as his report is premature at this time.” The report relied on by the plaintiff is that of an anaesthesiologist, Dr. G.D. Gale, dated December 2, 2008. Accordingly, Dr. Miceli is entitled to pursue the challenge to this report since it was not addressed by Boyko J.

[ 4 ] In relation to the conspiracy claim Dr. Miceli submits that: “the allegation that the Defendants conspired to deny the plaintiff his WSIB claim ought to be struck on the basis that it discloses no reasonable cause of action” or on the basis that “it is frivolous, vexatious and an abuse of process.”

[ 5 ] In relation to the conspiracy claim, Boyko J. noted that:

The latter tort claim does not arise out of the workplace injury per se, but the subsequent conduct of the employer/treating physician in post-injury non-workplace injury related conduct.

Conspiracy/intimidation tort claim – in my view this is a stand-alone tort, unrelated to the workplace injury or medical malpractice claim. See: Hunt v. T & N plc. (1990) S.C.C.

There are in my view sufficient particulars provided as to this claim.

[ 6 ] Ms. Findlay submits that Dr. Miceli can bring another motion for judgment, and relies on the decision of Pitt J. in 1413910 Ontario Inc. (c.o.b. Bulls Eye Steakhouse & Grill) v. Select Restaurant Plaza Corp., 2005 63807 (ON SC) , [2005] O.J. No. 3449, 75 O.R. (3d) 351 (S.C.). In that case the plaintiff had brought a partial summary judgment motion that was decided by Matlow J. The plaintiff then brought another summary judgment motion. Pitt J. granted summary judgment. He stated at paragraph 16: “Whether or not Rule 20 permits more than one motion for summary judgment has not been definitely determined, although I am inclined to the view that it is not prohibited. See DeMarco v. Mascitelli, [2003] O.J. No. 5035 (Div. Ct.) , affirmed [2004] O.J. No. 4079 (C.A.) . However, s. 138 of the Courts of Justice Act discourages multiplicity of proceedings.”

[ 7 ] I note that in deciding to proceed as he did, Pitt J. asked the following question at paragraph 5: “What developments have there been that would justify this proceeding given the nature of Matlow J.’s decision?” In other words, Pitt J. considered that there needed to be some change in circumstances to warrant another motion on the same issues.

[ 8 ] Ms. Findlay submits that the critical new development in this case came after the argument before Boyko J. when the plaintiff passed the trial record before obtaining full production and discovery from the defendants. She submits that the plaintiff is now unable to obtain any evidence from the defendants to substantiate the conspiracy claim, and is therefore unable to prove his case. I note in passing that rule 53.07 entitles a party to call an adverse party as a witness at trial, so the evidence is not lost it is just not available on this motion. I also note, however, that Mr. Di Monte made no effort to secure evidence under rule 39.03 under which he is permitted to cross-examine witnesses on a pending motion.

[ 9 ] Mr. Di Monte advises that he intends to proffer at trial the evidence of other employees of the corporate defendant who were discouraged from pursuing WSIB claims. One of the witnesses will be the consultant used by the corporate defendant who assisted in managing its WSIB obligations. He will subpoena the witnesses to testify at trial to substantiate the financial benefit to the defendant corporation in lowering WSIB claims and therefore insurance premiums. Some of this evidence, he asserts, was before the College of Physicians and Surgeons in disciplinary proceedings involving Dr. Miceli, who is no longer licensed. While the College proceedings are not admissible in a civil proceeding, Ms. Findlay conceded that exactly the same evidence could be adduced at trial.

The application of the “best foot forward” principle

[ 10 ] Ms. Findlay relies heavily on the decision of Karakatsanis J. in New Solutions Extrusion Corp. v. Gauthier , 2010 ONSC 1037 () , [2010] O.J. No. 661 (S.C.) at paragraph 12 :

In other words, consistent with existing jurisprudence, each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.

[ 11 ] In my view, this reasoning was somewhat superseded in the decision of Karakatsanis J. in Cuthbert v. TD Canada Trust , 2010 ONSC 830 () , [2010] O.J. No. 630, 88 C.P.C. (6th) 359 (S.C.) at paragraph 12 where she added an important qualifier: “The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial, although in some circumstances the interests of justice may require that a material issue should be determined at trial, upon a full evidentiary record. ” (Emphasis added.)

[ 12 ] One of the purposes of summary judgment is to avoid the expense of full trial preparation, but only where the case is amenable to summary judgment and does not require, by its nature, the forensic machinery of a trial. Ms Findlay’s approach has also been superseded by the Court of Appeal's decision in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , [2011] O.J. No. 5431 [ Combined Air ]. At paragraphs 50 and 51 the court establishes what it calls the "full appreciation test," holding that: "the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?" Or, putting it slightly differently, a motion judge is to consider whether, in light of the full appreciation test, the "forensic machinery of a trial" is necessary: Healey v. Lakeridge Health Corp ., 2010 ONSC 725 , [2010] O.J. No. 417 at para. 28 per Perell J., aff'd 2011 ONCA 55 () , 103 O.R. (3d) 401, [2011] O.J. No. 231 (C.A.).

[ 13 ] In Combined Air , the Court of Appeal expresses a caveat to the “best foot forward” principle at paragraphs 57 and 58. At paragraph 57 the court noted:

It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

[ 14 ] I read the court as setting out an example of when the “best foot forward” principle should not be applied. I do not read these words as confining the caveat to the discovery example. I draw this conclusion both on the basis of common sense and on the additional words at paragraph 58 of Combined Air : “Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial.”

[ 15 ] In my view, this is a case where the court cannot fully appreciate the case without the forensic machinery of a trial, and where it would be wrong in principle to compel the plaintiff to put forward in finished form all of the evidence he intends to adduce at trial. The “best foot forward” principle does not apply. I dismiss the motion as it relates to the conspiracy claim.

The absence of an expert’s report for the plaintiff

[ 16 ] Ms. Findlay relies on the plaintiff’s inability to secure an expert medical opinion on the medical malpractice claim to oppose the expert’s report of Dr. Lyndon Mascarenhas, dated May 1, 2008. The plaintiff’s failure to tender such a report will often, perhaps usually, result in summary judgment in the defendant doctor’s favour: McNeil v. Easterbrook , [2004] O.J. No. 3976 (S.C.) ; Barber v. Mustard , [1993] O.J. No. 2872, (C.J.) ; Samuel v. Ho , [2009] O.J. No. 172 (S.C.) , Claus v. Wolfman , 1999 14824 (ON SC) , [1999] O.J. No. 5023 (S.C.) at para. 11 , aff’d 2000 22728 (ON CA) , [2000] 52 O.R. (3d) 680 (C.A.), Beland v. Kieffer, [2002] O.J. No. 709 (S.C.) [ Beland ] . See however, David v. Credit Valley Hospital , [2008] O.J. No. 5178 (S.C.) and Schmidt v. Gollish , [2000] O.J. No. 944 (S.C.) and authorities therein.

[ 17 ] Mr. Di Monte was candid in admitting that he has thus far been unable to find an expert witness qualified and prepared to give an opinion on the standard of care which the plaintiff says Dr. Miceli breached. The plaintiff has tendered only the report of an anaesthesiologist, Dr. Gale.

[ 18 ] Further, Dr. Miceli relies on the case of Beland , where Weekes J. held at paragraph 10 that Dr. Gale:

…is not qualified to give an opinion on the issues of the standard of care to be expected of a reasonable general practitioner and whether that standard was breached. There is, therefore, no evidence before me on those issues that supports the plaintiff’s position. That being so, there is no genuine issue for trial regarding the care provided by Dr. Kieffer.

Weekes J. did accept that Dr. Gale was an expert “in pain management” and was “qualified to give an opinion as to the cause of his symptoms now experienced by the plaintiff.”

[ 19 ] There are some aspects of Dr. Miceli’s work on which Dr. Gale can opine. But not the standard of care applicable to a general practitioner. Is the absence of a qualified report on that issue fatal to the plaintiff’s case?

[ 20 ] Dr. Gale’s report refers to the causes of the plaintiff’s pain and asserts that they relate to a premature return to work by Mr. Farooq, prompted by Dr. Miceli: “this probably perpetuated Mr. Farooq’s back pain problem, which became chronic and led to depression.” He repeats that Mr. Farooq’s pain is attributable to his “being returned to full duties prematurely, causing exacerbation of his lumbar pain, which has become chronic and severe and the development of depression and further disability. Mr. Farooq’s chronic pain is the cause of his depression and not vice verse.”

[ 21 ] The balance of Dr. Gale’s report refers to various failures on Dr. Miceli’s part to complete and process WSIB forms properly, to ensure that Mr. Farooq’s return to work was accompanied by appropriate employer accommodation in view of his injury, Dr. Miceli’s practice in having someone present while Mr. Farooq was being examined by Dr. Miceli, and Dr. Miceli’s status to treat Mr. Farooq, given the fact that he was not his family doctor but a “company doctor.”

Would the treating doctor’s evidence suffice?

[ 22 ] Mr. Di Monte points out that at Dr. Miceli’s College discipline hearing, Mr. Farooq’s family doctor, Surinder S. Sidhu, testified. He was the doctor who ultimately filled in the appropriate WSIB forms that eventually allowed the plaintiff to get the appropriate treatment. Is Dr. Sidhu capable of providing expert opinion evidence on the appropriate standard of care in these circumstances, assuming that he is willing to do so?

[ 23 ] This issue engages new rule 4.1.01, the amendments to rule 53.03, and Form 53 of the Rules of Civil Procedure . It seems to me that one of the regrettable side effects of the changes to the rules has been to sow some confusion about the evidence that can be given by individuals who may not be qualified to be experts under the rule 53.03 but who nonetheless have relevant evidence to give that includes an element of expertise. The best example of such a witness is a treating physician.

[ 24 ] Typically family doctors or treating doctors do not provide expert reports to the court. Their evidence is set out in a letter sent to counsel or in a will say statement, along with the medical records that they authored. Their evidence is clearly relevant, material and probative. Are treating doctors capable of being experts within the meaning of rule 4.1.01 and rule 53.03? Given their intensive roles, are they capable of impartiality?

[ 25 ] For practical purposes, treating physicians have always been allowed to give evidence and have been allowed to give opinion evidence about their working diagnosis and working prognosis. Treating physicians use their expertise to form opinions routinely in the examination of patients, in their assessment of patients and in their treatment. Moore J. recognized in Beasley v. Barrand , 2010 ONSC 2095 () , [2010] O.J. No. 1466 (S.C.), that they do fall into a different category, noting at paragraph 64 that: “We are not dealing here with the treatment related opinions formed in the course of providing primary care to a plaintiff…”In Gutbir (Litigation guardian of) v. University Health Network, 2010 ONSC 6394 , [2010] O.J. No. 4982 (S.C) at paras. 12-14 , D. Wilson J. permitted the treating doctor to give evidence as a fact witness within limits but not as an expert.

[ 26 ] I accept the view of Rocammo J. in Williams (Litigation guardian of) v. Bowler , 2005 27526 (ON SC) , [2005] O.J. No. 3323 (S.C.) at para. 222 :

A medical witness who "wears two hats", and who testifies both as a treating physician and as an expert may, depending on the circumstances of the case, be in the best position to offer first hand observations as to the patient's condition over the course of medical history; however, to the extent that the physician has any personal interest in the outcome of the case or lacks the objectivity and independence essential to the medical expert, this may adversely affect the weight to be given to the expert testimony.

[ 27 ] In Chrappa v. Ohm , [1996] O.J. No. 1663 (C.J.) at para. 27 , Lax J. stated: “it is my view that, in general, the evidence of a family physician who has followed a patient over a long period of time can often be the most helpful evidence in sorting out the predictably differing views of medical experts who are assembled for the purposes of litigation.”

[ 28 ] Treating doctors are not immune from reliability challenges. In Greer v. Horton , [1996] O.J. No. 4826 (S.C.) at paras. 21-22 , Epstein J. gave “little weight” to the treating doctor on the basis that his evidence “lacked objectivity.”

[ 29 ] Based on the foregoing, I conclude that Dr. Sidhu is not incapable of providing an expert opinion to the court on the standard of care applicable to Dr. Miceli. I put the proposition that way because the final decision on Dr. Sidhu’s qualifications is that of the trial judge after a voir dire. My decision is simply that Dr. Sidhu is not disqualified because he was and is Mr. Farooq’s treating physician.

[ 30 ] Accordingly, if Dr. Sidhu prepares and serves a report that complies in substance with rule 53.03 within 30 days of the date of this order, the motion will be dismissed with costs to the plaintiff. If Dr. Sidhu does not do so, then the motion will be allowed and the action against Dr. Miceli dismissed with costs. I see no reason to dismiss the action against the other defendants.

[ 31 ] Order accordingly.

P.D. Lauwers J.

DATE: February 1, 2012