ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-0206
DATE: 20-11-2013
B E T W E E N:
THOMAS CLARKE and CATHERINE HORYCHUK
Ms. A. Oakley, for the plaintiffs, moving parties
Plaintiffs
- and -
DENNIS T. LABELLE ALSO KNOWN AS TIM LABELLE and GOLF LINKS CHIROPRACTIC
Mr. J. S. McNeil, Q.C. for the defendants, responding parties
Defendants
HEARD: October 10, 2013
at Thunder Bay, Ontario
Regional Senior Justice H.M.Pierce
Reasons on Motion to Strike Portions of the Statement of Defence and for Other Relief
INTRODUCTION
[1] The plaintiffs seek three orders:
striking references in the statement of defence that refer to complaints filed against the defendant, Dennis T. Labelle, pursuant to s. 36 (3) of the Regulated Health Professions Act, 1991, S.O. c. 18;
for a “lesser and better” affidavit of documents, removing references to these complaints; and
for an order that discovery of the defendant be conducted in Toronto.
[2] The plaintiff, Thomas Clarke, claims against the defendants for damages for negligent chiropractic treatment alleged to have been administered by Dennis T. Labelle. Mr. Clarke also complained about Mr. Labelle’s treatment to the College of Chiropractors.
[3] Over the objections of the plaintiffs, the defendants included in their statement of defence and affidavit of documents references to documents and information arising from the complaint process to the College of Chiropractors of Ontario.
[4] The plaintiffs argue that since s. 36 (3) of the Regulated Health Professions Act prohibits the admissibility in a civil proceeding of any document prepared for a professional discipline proceeding, there should be no reference to the complaint in either the statement of defence or the defendants’ affidavit of documents.
[5] The defendants have agreed to remove from paragraph 10 of their statement of defence a plea that the disposition of the complaint process was a matter of res judicata. As well, the defendants have agreed to remove from their statement of defence all other references to the complaint lodged with the College of Chiropractors.
[6] These concessions leave paragraph 9 of the statement of defence in issue, as well as a reference to the initial complaint found in the defendants’ affidavit of documents. Paragraph 9 of the statement of defence reads:
The defendant states that on each occasion of supplying services to the plaintiff, the plaintiff reported receiving a beneficial and positive result, and the defendant denies that any incident of alleged injury as alleged in paragraph 9 of the statement of claim occurred, and that it was not for a period of 21 months after May 28, 2010 that the defendant was first advised of any complaint in regards to his services.
[7] The defendants also agreed that documents created for the complaint proceedings before the College of Chiropractors cannot be used in this action and proposes to remove from the defendants’ affidavit of documents all such references except the plaintiff’s letter of complaint. The defence submits that because the plaintiff’s letter of complaint may be used at trial to cross-examine the plaintiff on a prior inconsistent statement, it must be disclosed in the defendants’ affidavit of documents.
[8] The defendants also submit that evidentiary rulings are the province of the trial judge and not the motions judge.
THE LAW
[9] There is ample jurisprudence interpreting the effect of s. 36 (3) of the Regulated Health Professions Act. Unfortunately, counsel for the parties do not agree on the reach of that jurisprudence. Subsection 36 (3)of the Act states:
Evidence in Civil Proceedings
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 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.
STRIKING PORTIONS OF THE STATEMENT OF DEFENCE
[10] The seminal case interpreting s. 36 (3) is M.F. v. Sutherland, 2000 5761 (ON CA), [2000] O.J. No. 2522 (C.A.). The facts of the case are peculiar. M.F. complained to the College of Physicians and Surgeons alleging Sutherland’s sexual misconduct towards her while she was his patient and employee. She also sued for damages for sexual assault and breach of fiduciary duty. The civil action was settled by the defendant agreeing to make periodic payments followed by a lump sum payment. In conjunction with the settlement, M.F. provided to the College of Physicians and Surgeons a recantation of her complaint, and the complaint was withdrawn.
[11] Dr. Sutherland made some payments on account of the settlement and then defaulted. M.F. sued him for the balance. Sutherland defended by filing a statement of defence alleging that M.F.’s complaints of sexual assault were made fraudulently and in bad faith. His pleading referred to her written complaint to the College and her recantation.
[12] M.F. launched a motion to strike out these portions of the statement of defence on the grounds that they pleaded facts that were inadmissible in evidence pursuant to s. 36 (3) of the Regulated Health Professions Act. Sutherland argued that the prohibition under s. 36 (3) was not intended to cover allegations made fraudulently and in bad faith; as well, he argued that it was up to the trial judge to determine admissibility of the recantation.
[13] The motion to strike was granted in the first instance and sustained on appeal to the Divisional Court and then to the Court of Appeal, which split in the analysis and the result.
[14] The majority of the court, consisting of Mr. Justice Laskin and Associate Chief Justice Osborne, held that the purpose of s. 36 (3) is to encourage reporting of professional misconduct complaints to the regulatory body:
…to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.
[15] As well, the court held that the purpose of the section is to keep College proceedings and civil proceedings separate: paras. 29 and 31.
[16] In concluding that s. 36 (3) of the Act is an absolute bar to the admissibility of the complaint and sworn recantation in the civil action, Mr. Justice Laskin noted that had he found the complaint or recantation might be admissible, he would have left that determination to the trial judge: para. 44.
[17] Mr. Justice Laskin made two other important qualifications in his reasons. At para. 45, he made a distinction between the admissibility of a documentary complaint and the fact of a complaint having being made. He said:
Second, s. 36 (3) refers to a “report, document or thing,” suggesting a distinction between, for example, a written complaint and the fact of a complaint having been made. The document, the written complaint, is inadmissible, but the fact a complaint was made may be provable at trial. That distinction, however, does not arise in Dr. Sutherland’s pleadings because he has pleaded the written complaint and the sworn recantation and their contents to support his defence, and it is these documents he seeks to prove at trial…..
[18] In this case, paragraph 9 of the statement of defence does not identify any document related to the plaintiff’s complaint to the College of Chiropractors. Rather, the pleading is cast in terms of the plaintiff’s first known expression of physical complaint of injury following treatment. Thus, the defendants have not pleaded a “report, document or thing” in the statement of defence as provided at s. 36 (3) of the Act. As Mr. Justice Laskin notes, there is a distinction in the wording of the statute between admissibility of a document created or filed in furtherance of the complaint process, and the fact of the complaint. The timing of the complaint is relevant to the issue of causation.
[19] The Act is structured so as to keep documents used in regulatory proceedings separate from civil actions; it does not go so far as to preclude the bringing of civil actions based on allegations that mirror regulatory complaints. Nor does it prevent a defendant from making full answer and defence in a civil proceeding by discussing the timing of a complaint about treatment. As pleaded, paragraph 9 of the statement of defence raises causation as an issue in the claim. It does not identify documents filed in the regulatory proceeding or purport to use the documents filed in the regulatory proceedings to defend the civil action.
[20] This distinction between facts and documents was made by Justice Laskin at para 45 of Sutherland. He expressed the view that the fact a complaint was made in a regulatory proceeding may be provable at trial. In my view, the scope of s. 36 (3) is limited to documents, and was never intended to encompass facts to be proven at trial.
[21] As paragraph 9 of the statement of defence does not refer to a “report, document or thing,” the motion to strike paragraph 9 is dismissed.
IS A “LESSER AND BETTER” AFFIDAVIT OF DOCUMENTS REQUIRED?
[22] The plaintiffs move for a “lesser and better” affidavit of documents from the defendants, stripped of any documents created for the hearing before the College of Chiropractors. The narrow question is whether the defendants’ listing of the plaintiff’s complaint to the College of Chiropractors should be struck from their affidavit of documents on the grounds that it offends s. 36 (3) of the Act.
[23] The defendants have agreed to remove from their affidavit of documents all documents created for the hearing before the College of Chiropractors except the plaintiff’s letter of complaint. They submit that they are obliged by Rule 30.08 of the Rules of Civil Procedure to disclose or produce that document in order to be able to make use of it in cross-examination of the plaintiff at trial.
[24] Rule 30.08 (1) provides:
Where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking,
(a) if the document is favourable to the party’s case, the party may not use the document at the trial, except with leave of the trial judge; or
(b) if the document is not favourable to the party’s case, the court may make such order as is just.
[25] The only case interpreting the effect of s. 36 (3) in relation to an affidavit of documents is Mereweather v. Austin, [2011] O.J. No. 1602 (S.C.J.). In that case, the defendant moved to strike documents from proceedings before the College of Physicians and Surgeons listed in the plaintiffs’ affidavit of documents. These included the plaintiffs’ own complaints filed with the College. Mr. Justice Perell ordered the documents struck, applying Sutherland as interpreted in Middleton v. Sun Media Corp. [2006] O.J. No. 1640 (Div. Ct.).
[26] With respect, the scope of the decision in Sutherland cannot be appreciated without considering the obiter dicta at paras. 44 – 46 which make it clear that the court did not intend to bind the hands of the trial judge as to admissibility of evidence.
[27] My reading of the Sutherland decision leaves to the trial judge the question of whether a complaint or sworn recantation may be used for purposes of challenging credibility in cross-examination.
[28] At para. 46, Mr. Justice Laskin explains that his decision is not intended to prevent the trial judge from considering whether the complaint or the sworn recantation may be used to challenge M.F.’s credibility on cross-examination. To this extent, Justice Laskin agrees with Justice Borins in dissent, who held at para. 80 that it is up to the trial judge and not the motions judge to rule on the admissibility of evidence. I agree with this conclusion. As Justice Borins explained at para. 82, to permit a party to seek an evidentiary ruling in the guise of a pleadings motion is a dangerous precedent. He observed:
Furthermore, to uphold the decision of the Divisional Court would create a dangerous precedent. The result of the decision is that whenever a party holds the belief that the evidence on which an opposing party may rely to prove a fact that he or she has pleaded may be inadmissible, that party can bring an interlocutory motion at the pleading stage, totally out of context with the evidence before the trial judge, to obtain a ruling on the admissibility of the evidence. This would enable a party, in the guise of a pleading motion, to obtain a ruling from a master, or a motions judge, that encroaches upon the traditional role of the trial judge.
[29] The cases cited by the plaintiffs in support of their argument do not consider the statutory right of a party to put a prior written inconsistent statement to a witness in cross-examination, pursuant to ss. 20 of the Evidence Act, R.S.O. 1990, c. E-23, which provide as follows:
Examination of witnesses, proof of contradictory written statements
- A witness may be cross-examined as to previous statements made by him or her in writing, or reduced into writing, relative to the matter in question, without the writing being shown to the witness, but, if it is intended to contradict the witness by the writing, his or her attention shall, before such contradictory proof is given, be called to those parts of the writing that are to be used for the purpose of so contradicting the witness, and the judge or other person presiding at any time during the trial or proceeding may require the production of the writing for his or her inspection, and may thereupon make such use of it for the purposes of the trial or proceeding as he or she thinks fit.
[30] In my view, the application of the reasoning in Sutherland in subsequent jurisprudence is overbroad and does not take into account the limitations the Court of Appeal placed on the application of s. 26 (3) of the Act. In cross-examination, out-of-court statements used solely to impeach the credibility of the witness are not generally filed as an exhibit: R. v. A.B. 1997 1902 (ON CA), [1997] O.J. No. 1578 (C.A.) at para. 27. Thus, a complaint filed by a plaintiff may never become evidence at the civil trial.
[31] It is doubtful that the court intended to permit a party to hide behind s. 36 (3) in order to avoid cross-examination as to credibility. More likely, the Legislature intended that the prohibition related to documents found in s. 36 (3) was enacted to prevent a party from using restricted documents to present its case.
[32] In my view, the motions judge who is called on to rule on pleadings motions should refrain from making evidentiary rulings that bind the trial judge. Rulings on cross-examination at trial should be made in the context of the evidence and issues at trial, as is our time-honoured practice.
[33] For these reasons, I decline to order a further and lesser affidavit of documents. The motion for a further and lesser affidavit of documents is dismissed.
WHERE SHOULD THE DEFENDANT BE EXAMINED FOR DISCOVERY?
[34] The plaintiffs move for an order that the defendant be examined for discovery in Toronto.
[35] All parties live and work in Thunder Bay. Discovery dates were originally arranged in Thunder Bay during the summer but had to be abandoned pending this pleadings motion.
[36] Despite moving for an order that the defendant be examined in Toronto, counsel for the plaintiffs did not identify this as an issue and discuss it in her factum, or canvass it in oral argument. Her submissions on this point were made only in response to questions from the court at which time she conceded that Rule 34.03 provides, prima facie, that examinations of a person resident in Ontario take place in the county in which the person resides. There is no reason in this case to depart from the Rule.
[37] In submissions, counsel stated that she was “trying to get the case back on track” and “recover costs.”
[38] I conclude that this aspect of the motion was brought in a fit of pique, in order to inconvenience the defendant whose counsel could not be persuaded to Ms. Oakley’s point of view. In my opinion, this is quite improper. When counsel bring motions for strategic purposes, they delay the case without advancing their client’s interests; waste the time of the court and opposing counsel; and increase the costs of litigation. Such conduct delays access to justice generally. It is a practice to be firmly discouraged.
[39] The motion to compel the defendant to attend at Toronto for examination for discovery is dismissed.
COSTS
[40] If the parties cannot agree on costs, either may apply to the trial coordinator within thirty days for an appointment to argue same, failing which costs will be deemed to be settled. Counsel have leave to appear at the costs argument by teleconference, if so advised, upon prior arrangement through the trial coordinator.
Regional Senior Justice H.M. Pierce
Released: November 20th, 2013
COURT FILE NO.: CV-12-0206
DATE: 20-11-2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THOMAS CLARKE and CATHERINE HORYCHUK
Plaintiffs
- and –
DENNIS T. LABELLE ALSO KNOWN AS TIM LABELLE and GOLF LINKS CHIROPRACTIC
Defendants
REASONS ON MOTION
Pierce J.
Released: November 20th, 2013
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