SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sherrie Graat, Plaintiff

AND:

Ali Adibfar, Defendant

BEFORE: D. M. Brown J.

COUNSEL:
A. Rachlin, for the Plaintiff

N. Bombier and J. Laxer, for the Defendant

HEARD: March 20, 2013

mid-trial ruling (corrected)

[1] This is a medical malpractice civil jury trial. In this action Sherrie Graat sues Dr. Ali Adibfar for damages allegedly caused by a cosmetic surgical procedure she underwent on October 13, 2006, specifically a bilateral breast augmentation and peri-areolar mastopexy. A live issue in the action is what instructions Ms. Graat gave to Dr. Adibfar about the aesthetic result she wanted the procedure to achieve, in particular the resulting size of her breasts.

[2] The plaintiff wishes to read-in the following portions of the examination for discovery of Dr. Adibfar:

Q. 133: Did you make any note of what the patient's expectations or wishes were for a cup size post-surgery? Let me rephrase that, that was unclear, I'm sorry. Up to or including August 11, 2006, did you record your patient’s wishes as to what cup size she wished to have as an outcome from any procedure you performed?

A. There's no record of that.

Q. 134: And do you have any independent recollection of anything that Ms. Graat may have said to you about her wishes for a cup size outcome from her enhancement?

A. Independently I recollect. She said she wanted to be a B or C.

Q. 135: And did she qualify that as to whether she wanted to be a large, full C, a small C?

A. Not – not - I can't recall that. However, personally I have a hard time knowing what's a large C, what's a small C, what's a medium-sized C. To me it seems like it's shades of white or shades of blonde.

[3] The defendant submitted that pursuant to Rule 31.11(3) of the Rules of Civil Procedure the plaintiff should be required to read-in additional answers given by Dr. Adibfar on his examination for discovery. Rule 31.11(3) provides:

31.11 (3) Where only part of the evidence given on an examination for discovery is read into or used in evidence, at the request of an adverse party the trial judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced.

[4] Specifically, the defendant submitted that the plaintiff should be required to read-in the following evidence from his discovery which arose during the course of questioning on a notation which Dr. Adibfar made after the surgery had been performed:

Q. 342: I'm not sure that really answered my question. You recorded that the patient told you she wanted to be a B or a small C?

Ms. Bombier: Yes, he's answered that.

The Deponent: Yes.

Q. 343: Was that your understanding prior to undertaking the surgery, that the patient wanted to be a B or small C?

A. No. Prior to the – prior to the surgery and even after surgery for the first month and a half, she was actually quite happy with the size of them.

Q. 344: Wasn't your understanding from her before the surgery that she wanted to be a B or a small C cup after the procedure?

Ms. Bombier: He said no.

The Deponent: I said no.

Mr. RAchlin: He hasn't said no.

Ms. Bombier: His last answer, if you want to read it back, started off “no” and then he gave a further explanation.

[5] Sopinka, Houston and Sopinka, in their 1998 book, The Trial of an Action, Second Edition, wrote, at page 62:

A party reading in portions of evidence from an opposite party may be required to read in additional portions at the request of the adverse party to clarify the evidence given. Under the former R. 329, the judge could direct that additional portions be read in where he or she was "… of the opinion that any part is so connected with the part to be so used that the last mentioned part ought not to be used without such other part."

This wording has been changed under the current rules to read that “at the request of an adverse party the trial judge may direct the introduction of any other part of the evidence that qualifies or explains the part first introduced". The cases under the old rule placed a very restrictive interpretation on any additional read-ins. While, today, the scope of the current Ontario rule does not appear to have been judicially considered in any reported case, the clear legislative intent is to broaden the scope of this practice by changing the wording to use more vague qualifiers.

[6] In the present case counsel made their submissions on this issue without referring to any authorities. In the short amount of time available to me, the best summary I have found of the effect of reading-in evidence from an examination for discovery is contained in the 1970 text written by W.B. Williston Q.C. and R.J. Rolls, Q.C., The Law of Civil Procedure. In that text they wrote at pages 876-7:

Material from an examination for discovery which is read in by counsel as part of his case may be used against his client as well as in his favour, but a party putting in discovery evidence is not necessarily bound by the answers. If a party as part of his case puts in unfavourable evidence from the discovery of the opposite party, he is at liberty to contradict that which is unfavourable by other evidence, and the weight to be given to that evidence depends upon the circumstances of each case.

[7] Those authors referred to the following portion of the judgment of Hodgins J.A. in Capital Trust Corporation v. Fowler (1921), 1921 517 (ON CA), 64 D.L.R. 289 (Ont. C.A.):

The law seems quite settled that, if an admission is used by one party, it must be used in its entirety, that is, everything must be read that is necessary to the understanding and appreciation of the meaning and extent of the admission. It is also equally established that, if the party uses an admission, he makes it evidence in the cause both as to himself and as to the opposite party in the litigation as well; but, if he desires to contradict or qualify any statement in it, he may do so. He can therefore give other evidence so to contradict or qualify it, but, if he does not see fit to do so, the whole of the admission remains as evidence in the cause for the benefit of both parties. If this were not so, there would be no sense in requiring all of it to be read nor any necessity for allowing contradiction of part of it...

The examination for discovery of a party, when put in as evidence under our rules, is merely an admission made under oath before an examiner. Those rules permit part of the examination to be put in. But such portion as may be selected differs in no way from any other admission, except that its proof is simplified and defined, and it must therefore be taken as a whole.

[8] Williston and Rolls, at page 883 of their text, highlighted a problem which might arise when one party requests that a judge compel the reading-in of additional evidence from his examination for discovery:

Care must be taken not to allow a party to introduce evidence on his own behalf under the pretence of adding explanatory or connecting questions and answers. In Saskatchewan Co-Op. Wheat Producers Ltd. v. Luciuk, it was said by Turgeon J.A.:

I take the latter part of this rule to provide only against injustice being done to a party by putting in an answer given by him upon his examination which does not by itself truly indicate his evidence upon the point brought forward by the question. For instance, such an answer when read alone might amount to an admission which in justice the party ought to be allowed to show he did not in fact make, because of another answer which completed it or explained it. But care must be taken not to allow a party, under the pretence of adding explanatory questions and answers, to introduce evidence in his own behalf which he should only be allowed to give by going into the witness box.[^1]

[9] Just over two years, in her reasons in Andersen v. St. Jude Medical Inc.,[^2] Lax J. gave extensive consideration to the reasons behind and the practice associated with Rule 31.11(3). Lax J. held that qualified read-ins are only allowed where they assist the trier of fact to understand otherwise incomplete, unclear, or incorrect answers. In doing so, she discussed the case law on the current and former rule as well as similar rules of civil procedure in other provinces. Justice Lax noted:

13 …The latitude given to an examining party on discovery combined with the right given to that party to select the evidence it will read in as part of its case under rule 31.11(1), gives that party the prima facie right to control the read-ins. The qualification on that right is fairness. The underlying principle is to ensure that the trier of fact is not misled by a partial admission or one that is qualified or explained elsewhere.

14 Thus, rule 31.11(3) permits the opposing party to request of the court that additional evidence be read in. Neither party has an unqualified right to read in evidence, but the party reading in may read in "any part of the evidence given on examination for discovery" if the evidence is otherwise admissible. The opposing party does not have an equivalent right nor does it have the right to control the content of the adverse party's evidence. If the evidence read in fairly represents an answer to the question asked, no qualification or explanation will be necessary or permitted.

19 Rule 31.11(3) provides the trier of fact discretion to allow the opposing party to explain an answer or admission that will assist the trier of fact to understand an otherwise incomplete, unclear, or incorrect answer. As noted by Master Beaudoin in Roumeliotis, rule 31.11(3) should not be used to allow parties to recast their own examination more favourably. It would be unfair to use rule 31.11(3) as a substitute for cross examination of an opposing party or examination in chief of one's own party, and such an allowance would encourage parties to lead their witnesses during a discovery re-examination (Roumeliotis, paras. 14 & 17).

[10] From these authorities and texts the principle emerges that a court may require a party to read-in additional evidence from the discovery of the opposite party in order to prevent an injustice being done to the examined party “by putting in an answer given by him upon his examination which does not by itself truly indicate his evidence upon the point brought forward by the question” and to “ensure that the trier of fact is not misled by a partial admission or one that is qualified or explained elsewhere.” That said, a court must be alive to attempts by the examined party to misuse Rule 31.11(3), including seeking to use the qualifying read-in provision to avoid taking the stand to testify at trial or as a substitute for cross-examining the party which wishes to read-in the evidence, or by transforming the re-examination on an examination for discovery into a device to compel the opposite party to read-in at trial evidence it would otherwise not so adduce.

[11] In the present case, the risk of the defendant not testifying does not exist: Dr. Adibfar does plan to take the stand. The defendant has conducted a full cross-examination of the plaintiff, and the portion sought to be read-in did not arise from the re-examination on discovery.

[12] One possible interpretation of the evidence given by Dr. Adibfar at QQ. 342-344 of his examination for discovery is that it contradicts the evidence which he gave at QQ. 133-135 of his discovery. From a linguistic point of view, arguably contradictory evidence constitutes “qualifying” evidence. One meaning given to the word “qualify” in the Concise Oxford English Dictionary, 11th Edition, is "make (a statement or assertion) less absolute" (p. 1174), and the Oxford English Reference Dictionary, Revised Second Edition, offers the following meaning for “qualify": “add reservations to; modify or make less absolute (a statement or assertion)" (p. 1179).

[13] The issue of the use of contradictory evidence under Rule 31.11(3) was considered in the Andersen case. There the defendants had cited Edmonton (City) v. Lovat Tunnel Equipment Inc.,[^3] for the proposition that a qualified read-in that provides contradictory or contrary information is admissible.[^4] The Alberta rule of procedure at issue in the Lovat case closely resembled the old Ontario Rule 329. In Andersen Justice Lax observed:

17 The court in Lovat does not indiscriminately allow in contradictory evidence. At para. 22, the court refers to a three prong test for the admissibility of a qualifying read-in, which includes that "The scope of the qualification must not go beyond a direct answer to the question asked of the employee and must be connected in substance to the admission itself." The first and third prongs are that the qualification must find its source in some document or on information provided to the officer by someone who can speak to the matter on the basis of personal knowledge; and that qualifications may not be based on the officer's belief as to the true facts or his disbelief of the evidence given by the employee.

[14] Against that background, I conclude that notwithstanding the evidence which Dr. Adibfar gave at QQ. 342-344 of his examination for discovery could be interpreted as contradicting that which he gave at QQ. 133-135 of his discovery, to leave the jury only with the answers to the latter questions would put before them only part of the discovery evidence which Dr. Adibfar gave on the issue of his pre-surgery discussions with Ms. Graat about her desired cup size. Leaving the jury with only partial evidence of the party on the point could risk misleading them. Consequently, I direct that when the plaintiff reads-in QQ. 133-135 from the examination for discovery of Dr. Adibfar, she must also read-in QQ. 342-344 which I view as qualifying the evidence first read-in.

[15] Before the plaintiff reads-in those portions of the examination for discovery of Dr. Adibfar, I propose to give the following explanatory instruction to the jury:

Plaintiff’s counsel now proposes to read in two sets of questions from the examination for discovery of Dr. Adibfar. The first set of questions consists of evidence that the plaintiff intended to read-in. The second set consists of evidence that the defendant has requested be read in and I have directed that it be read in. I gave that direction to ensure that the examination for discovery evidence of Dr. Adibfar read-in on that point was not incomplete or unclear. However, the plaintiff is not bound by that second set of questions and answers which I have directed be read-in, and she is free to contradict it.

I will now hear submissions from counsel on that proposed instruction.

D. M. Brown J.

Date: March 20, 2013

[^1]: Saskatchewan Co-Op Wheat Producers Ltd. v. Luciuk, [1931] 2 D.L.R. 981 (Sask. C.A.), p. 983. https://www.canlii.org/en/sk/skca/doc/1931/1931canlii250/1931canlii250.html

[^2]: 2010 ONSC 1824, 14 C.P.C. (7th) 391.

[^3]: [2000] A.J. No. 431 (Q.B.).

[^4]: Ibid., at para. 12.