COURT FILE NO.: 39608

DATE: 20130213

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MELODY LYN ORMEROD and JOHNATHAN ORMEROD

David B. Williams and Jodi Dobson, for the Plaintiffs

Plaintiffs

• and -

STRATHROY MIDDLESEX GENERAL HOSPITAL, T. TIGCHELAAR, IAN K. FERGUSON and JOHN BENNETT

David Hamer, for the Defendant John Bennett

Defendants

HEARD: February 11, 2013

GRACE J. – (Orally)

A. Introduction

1Dr. Bennett’s motion seeks particulars of the plaintiffs’ response to his limitations defence. His additional request is framed as one seeking directions. In substance, however, Dr. Bennett seeks an order disqualifying Legate & Associates LLP from continuing as the plaintiffs’ counsel of record at the trial for which the parties and counsel have assembled.

2I will deal with the requests for relief in the order in which they were argued by the moving party after setting forth a brief procedural history.

B. Context

3John Ormerod passed away on July 9, 2001. This action was commenced against most of the remaining defendants on June 27, 2002.

4On November 8, 2005 the plaintiffs were given leave to amend their statement of claim to add Dr. Bennett as a party “without prejudice to the rights of Dr. Bennett to assert whatever limitation defence might be available to him pursuant to statute or otherwise.”

5The plaintiffs allege that negligence on the part of one, some or all of the defendants delayed treatment essential for Mr. Ormerod’s survival

6After addressing other issues, paragraphs 18 through 20 of Dr. Bennett’s statement of defence and crossclaim turn to the timeliness of this proceeding. They address that issue in these terms:

18. In any event, this action was commenced more than one year after the plaintiffs knew or ought to have known the facts upon which it is based and is accordingly barred pursuant to the transition provision of section 24 of the Limitations Act, 2002…which preserved the limitation period previously found in Section 89 of the Health Professions Procedural Code…and Section 17 of the Health Disciplines Act…

19. Further, this action was commenced as against Dr. Bennett more than two years after the death of the patient and is accordingly barred pursuant to subsection 38 (3) of the Trustee Act…

20. Further, Dr. Bennett pleads and relies upon subsection 21(1) of the Limitations Act, 2002 (sic).

7Later amendments to Dr. Bennett’s statement of defence and crossclaim did not affect those paragraphs.

8The plaintiffs did not serve a reply.

9Dr. Bennett filed a motion seeking summary judgment dismissing the action against him in February, 2006.

10The action and motion moved slowly along. That factual statement is not intended to be a negative one.

11The summary judgment motion was the subject of a July 18, 2011 endorsement of Rady J. with respect to some “preliminary matters”.

12The motion itself was argued April 13, 2012. Rady J.’s decision was released July 16, 2012.¹

13At para. 11 of her endorsement, Rady J. introduced the plaintiffs’ response to the motion. She wrote:

The plaintiffs submit that the court may extend the limitation period where special circumstances exist and there is no prejudice to the defendant.

14In effect, the motion judge concluded the issue was a genuine one requiring a trial.²

15Dr. Bennett sought leave to appeal. That motion was argued barely two months later. In her December 13, 2012 decision, Leitch J. concluded that neither test set forth in rule 64.02(4) of the Rules of Civil Procedure had been satisfied.

C. Directions re response to the limitations defence/request for disqualification

16On January 6, 2013, the debate that culminated in this motion commenced. Mr. Hamer’s e-mail to Ms. Legate read in part:

It will be our position at trial that Dr. Bennett’s limitations defences remain completely at large.

In light of my review, I consider it appropriate to place you on formal notice that we will be obliged to object to any attempt to call evidence from present or former members of your firm directed to those defences. I am not aware at this time of any intention on your part to do so, but thought it best to make our position clear, even in the absence of any such information.

17On January 13, 2013, Mr. Hamer asked his counterpart Ms. Legate to review the decision of Gillese J. (as she then was) in Urquhart v. Allen Estate, [1999] O.J. No. 48 (S.C.J.) (“Urquhart #1), leave to appeal motion quashed at [2000] O.J. No. 313 (S.C.J.) (“Urquhart #2”).

18Soon one-sided communication turned into a debate. In a January 14, 2013 e-mail, Mr. Hamer made this proposal:

If you undertake that no attempt will be made to have either yourself or anyone with your firm testify in relation to the issues raised by Dr. Bennett’s defences, then that should put an end to the matter. Failing that, I see no alternative but to bring a motion to the trial judge for directions, as was done in the Urquhart case…

19Mr. Hamer’s January 18, 2013 e-mail summarized the position taken before me. He wrote:

At bottom, this is not an issue as to whether caselaw (sic) says that special circumstances requires proof of due diligence in all cases. My position is that special circumstances in all cases requires proof of certain facts, the establishment of which seems likely in this case to require testimony both from the plaintiff and her advisors. One need only look at the series of affidavits, all sworn by members of your firm, upon which you relied in response to our summary judgment motion, to have a sense of that testimony…

Separate and apart from all of the foregoing, I will be arguing from first principles, that in this case, to the extent your special circumstances claim involves an assessment of ‘fairness’, the exercise of due diligence by the plaintiff and her advisors is an element to be taken into account in determining what is fair.

20This motion appears to have been served about a week later contemporaneously with a Demand for Particulars.

21The plaintiffs’ responding motion record contained two affidavits sworn February 6, 2013: one from the plaintiff Melody Ormerod and another from lawyer Steven Kenney. Ms. Ormerod summarized the plaintiffs’ position with respect to the limitations defence in paragraphs 9 and 10 of her affidavit as follows:

9. The Plaintiffs concede that the relevant limitation period for commencing an action against Dr. John Bennett expired before he was added as a party to this action in November, 2005. We seek to have the Court relieve us from the expiry of the limitation period…on the basis that special circumstances exist warranting that relief.

10. The Plaintiffs have set out the basis of the claim that special circumstances exists (sic)…in a draft Fresh as Amended Statement of Claim that has been forwarded to counsel for the defendants…marked as Exhibit “B” … [Emphasis in original]

22Exhibit “B” to Ms. Ormerod’s affidavit addressed the issue of the limitation period in paragraphs 16 through 24. The current version was handed up during argument. That edition corrected a numbering error and added a further statutory reference but is otherwise the same.

23Ms. Ormerod addressed Mr. Kenney in paragraph 17 of her affidavit. She said:

Mr. Steven Kenney is a lawyer who assisted with my cases (sic) starting in 2002 who may give evidence at trial if necessary.

24Mr. Kenney became the focus of subsequent exchanges between counsel.

25His potential involvement in the trial is now moot. In their factum, the plaintiffs have stated categorically that they “will not call and (sic) current or former member of its (sic) law firm, nor any counsel to give evidence at trial.”³ For absolute clarity, Mr. Williams confirmed during argument that Mr. Kenney will not be called as a witness by the plaintiffs.

26Counsel for the moving party maintains that testimony from a current member of Legate & Associates LLP, notably Ms. Legate, may well be required during the trial. While not undertaking to call her, counsel maintains that the exercise of due diligence by a party seeking to invoke the doctrine of special circumstances is a highly relevant consideration. That necessarily involves, he maintains, a review and assessment of the conduct of the plaintiffs’ advisers – their lawyers.

27The moving party points to a long line of cases that stand for the proposition that a lawyer cannot be both counsel and witness in a proceeding. The rule is not absolute but it applies except in very limited circumstances.⁴

28Given the reliance placed by Dr. Bennett on Urquhart #1, I turn to that case now.

29That action was also one in which the plaintiff alleged negligence on the part of the named physicians. One of them (Dr. Stewart) was added as a party more than four years after her involvement with Ms. Urquhart’s case. Dr. Stewart’s pleading maintained that the action had been commenced after expiration of the applicable period set forth in s. 89 of the Health Professions Procedural Code.⁵

30Subsection 89(1) read:

No person who is or was a member is liable to any action arising out of negligence or malpractice in respect of professional services requested of or rendered by the person unless the action is commenced within one year after the date when the person commencing the action knew or ought to have known the fact or facts upon which the negligence or malpractice is alleged.

31After some earlier procedural steps, the Court of Appeal ordered that the limitation defence be determined at trial.

32The motion/trial judge in Urquhart #1framed the issue under consideration in these terms at para. 9 of her reasons:

Ought the court to permit counsel to continue to represent the plaintiffs when he will be called as a witness on a contentious matter?

33At para. 20, the motion/trial judge addressed the onus of proof, writing:

…Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) establishes that where a defendant pleads the statutory limitation defence, the plaintiff bears the onus of proof that the cause of action arose within the limitation period. In a medical malpractice case, this means the plaintiff must demonstrate that she did not know, and that it cannot be said that she ought to have known, the facts upon which her claim is based more than one year before the action was commenced. The relevant actual knowledge and deemed knowledge includes knowledge on the part of the plaintiff herself and of her professional advisers.

34I pause here simply to note that the plaintiffs in this case do not allege that this action was commenced within the applicable limitation period(s). They concede it was not. They do, however, ask that the court to allow the action to continue against the moving party based on special circumstances and acknowledge that they bear the onus of establishing their existence.

35The motion/trial judge in Urquhart #1 applied the principles relating to discoverability to the motion before her. At paras. 22 and 23, Gillese J. (as she then was) wrote:

22 This motion was predicated on the assumption that plaintiffs’ counsel will testify at trial. The plaintiffs have not conceded that they will call counsel as a witness. I am satisfied, however, that it is extremely likely that he will be called to testify by one side or the other…

23. The issue of the limitation defence is not a purely formal or uncontroverted matter. The issue is plaintiffs’ counsel’s due diligence. Plaintiffs’ counsel will have to testify as to facts and about his management of the case...It is more than possible that the testimonial credibility of plaintiffs’ counsel will be in issue.

36Given the length of the retainer of the plaintiff’s lawyers (seven years) and the stage of the proceedings (the matter had been called to trial), various alternatives were proposed to the motion/trial judge short of disqualification: for example, argument based on a written record or bifurcation of the issues. Each was rejected. The motion/trial judge concluded:

28. Counsel are independent officers of the court. The trial judge must be able to rely upon plaintiffs’ counsel for a high degree of objectivity. The overriding value…is concern for the proper administration of justice…The dual roles Mr. Gilby intends to fulfill compromises the integrity of the system. As I can see no way to alter the process that respects the rights of both parties, fulfills the needs for due process and maintains regard for the dictates of the proper administration of justice…plaintiffs’ counsel cannot be permitted to continue.

37In Urquhart #2, McDermid J. quashed the plaintiffs’ motion for leave to appeal. He found that the ruling I have summarized was made by the motion judge “in her capacity as the trial judge, during the course of the trial and that her ruling is not of such a nature as to give rise to a right of appeal before the trial has been completed.”⁶

38Is this case analogous?

39Before attempting to answer that question I turn to the doctrine of special circumstances.

40Counsel for Dr. Bennett referred me to several authorities.⁷

41The following general principles emerge from my review of those cases and the precedents they cite:⁸

a. First, the phrase “special circumstances” has not been defined and an exhaustive list of factors does not exist;

b. Second, the person seeking to proceed notwithstanding the expiry of a limitation period bears the onus of:

i. Rebutting the presumption of prejudice to the person otherwise entitled to rely upon it: and

ii. Satisfying the court that special circumstances exist.

c. Third, while the application of the doctrine seems to be a discretionary one, the exercise of discretion is subject to an underlying and guiding principle: limitation periods were not created to be ignored. Consequently, the jurisdiction to invoke the doctrine of special circumstances will be exercised sparingly.

42Counsel for Dr. Bennett maintains that due diligence by the plaintiffs and their counsel will be a key issue in this proceeding. Indeed, that issue featured prominently in several cases cited dealing with special circumstances.

43The topic was specifically and usefully addressed by Perell J. in Ioannou v. Evans⁹ at paras. 37-42. In part, the learned judge wrote:

37 The case law about special circumstances reveals that the court may consider the totality of the factual background to the proceedings. The conduct and circumstances of the parties are relevant considerations.

39 The conduct of the party seeking to amend the statement of claim and the knowledge of his or her counsel at the time of the commencement of the proceedings are relevant to whether there are special circumstances…

40 However, a review of the cases reveals that the state of the plaintiff’s and his or her agents’ knowledge is an amorphous factor. If the plaintiff or his or her agents knew about the potential joinder and deliberately chose not to join a party, then there is less reason to allow the amendment and perhaps a reason not to allow it because the plaintiff can be said to be the author of their own misfortune…

41. In Mazzuca, Cronk, J.A. felt that it was important to consider whether the mistake in naming a wrong plaintiff was unintentional or a deliberate and informed decision; however, Laskin, J.A….felt that these distinctions were problematic, confusing and inconsistently applied. He opined that the court should be concerned not with the kind of mistake the lawyer made but with whether the mistake prejudiced the defendant.

42 Particularly amorphous is whether the circumstance that the plaintiff or his or her agents through inadvertence, accident, oversight, mistake, or negligence failed to join a party counts as a special circumstance justifying allowing an amendment to the statement of claim. Some cases reveal a reluctance to grant the amendment and, in effect, save the plaintiff’s lawyer from a negligence claim at the defendant’s expense of losing his or her limitation period defence…However, balanced against these cases where an amendment is not allowed, there are the misnomer and similar types of cases where the plaintiff’s solicitor mistakenly names a party, but the defendant is not misled, and the court allows the amendment to the plaintiff’s statement of claim. [Citations and some case references omitted]

44These passages lead me back to the question I posed earlier. Is this case analogous to Urquhart #1?

45In my view, the answer is no. In Urquhart #1, the parties proceeded on the assumption the plaintiffs’ lawyer would testify. The motion judge clearly concluded the assumption was an accurate one.

46In this case, the plaintiffs have identified the sources of the evidence they will call concerning the issue of special circumstances: Melody Ormerod and Dr. Gray. From the motion material it appears questions on the subject may also be directed to Dr. Ferguson if he testifies.

47As already mentioned, the plaintiffs have undertaken not to call any current or past member of their lawyer’s firm or any former counsel to that firm. In other words, Ms. Legate will not voluntarily testify. The plaintiffs are prepared to attempt to satisfy the onus that lies upon them with respect to the issue of special circumstances without evidence from that source or any other lawyer.

48If Ms. Legate testifies it will only be because counsel for Dr. Bennett successfully compels her to do so.¹⁰ At the moment, there is a possibility such an effort will be made. Nothing more.

49On the other side, the matters in issue arose more than 11 ½ years ago. This action has been outstanding for 10 ½ years. Dr. Bennett has been a party for over 7 years. Notwithstanding my recent introduction to the case, it is readily apparent this matter has wound its way through a procedural labyrinth.

50I recognize that the plaintiffs did not file a reply despite the requirements of subrule 25.08(2). However, the issue of special circumstances has been known for a long time. Ms. Ormerod was examined for discovery. When asked about its scope, counsel for Dr. Bennett allowed that the topic of special circumstances had been canvassed though he could not say to what extent.

51It appears to have featured prominently in the motion for summary judgment that spanned – for a number of reasons – years. The source of the plaintiffs’ evidence on the motion – their lawyers – was known. No effort appears to have been made then to disqualify counsel.

52As previously mentioned, when counsel for Dr. Bennett raised the issue in January, he made a proposal to Ms. Legate: provide an unqualified undertaking that no one from your firm will testify in relation to the issues raised by Dr. Bennett’s defences.

53While not obtained as quickly as sought, that very undertaking had been secured before argument. Notwithstanding its giving, that has not been the end of the matter.

54In summary, I do not share the moving party’s view that the proper administration of justice is, in any way, compromised or at risk or that there is any rational reason for anyone connected with this action to be concerned about trial fairness.

55If, as counsel for the moving party submits, an explanation from plaintiffs’ counsel is required in order to establish special circumstances, the fact evidence from that source will not be tendered by the plaintiffs should be celebrated, not challenged.

56It is well settled that litigants are only to be deprived of their choice of counsel “if it is done to prevent the imposition of a more serious injustice.”¹¹ That is not this case. Disqualifying counsel at this stage and based on this record is the step that would, in my respectful view, bring the administration of justice into disrepute. The request for an order disqualifying plaintiffs’ counsel is dismissed.

D. Particulars

57I turn to the issue of particulars.

58By the time it was argued before me, the areas of contention had narrowed. As mentioned, the plaintiffs have served versions of a Fresh as Amended Statement of Claim. A number of the proposed amendments are unrelated to this motion. For example, the title of proceedings has been abbreviated to reflect recent developments and names only the parties who are proceeding to trial.

59It also addresses Dr. Bennett’s limitations defences in paragraphs 16-24.

60With respect to a slightly different earlier version, counsel for Dr. Bennett had said:

We expect to be able to agree with the draft pleading, so long as you undertake in writing that the particulars therein contained represent full particulars of all material facts to be asserted at trial by the plaintiffs that underlie any claim to be relieved from the normal operation of any applicable limitation period, whether by virtue of discoverability or special circumstances.¹²

61As discussed, discoverability is not an issue in this proceeding.

62In a February 6, 2013 letter, Ms. Dobson addressed a question posed by Dr. Bennett’s counsel: whether the plaintiffs relied on anything outside the draft pleading in support of their argument on special circumstances. In part she wrote:

The Plaintiffs also set out the issues in detail in the summary judgment motion. You have sufficient particulars to know the case to meet.

63Dr. Bennett’s counsel submits that the pleading and response are insufficient and ignores the fact that purposes served by particulars include limiting and delineating the issues to be tried and tying the hands of the parties so they cannot delve into other matters at trial without leave.¹³

64I turn first to the pleading. Paragraph 20 of the most recent draft Fresh as Amended Statement of Claim commences with these words:

During continuing Examinations for Discovery of a former Defendant…the Plaintiffs learned for the first time about information in the possession of the defendants Ian K. Ferguson and John Bennett, and the former defendant, relevant to the issue of delay in treatment and implicating John Bennett, including…

65Two subparagraphs follow. With respect, the pleading is not open-ended. It is constrained by the identified source (the transcripts of the examination for discovery of a former defendant whose identity was confirmed during argument) and subject matter (information said to implicate Dr. Bennett). That is enough.

66The complaint with respect to the reference to the summary judgment material is that Dr. Bennett’s advisers are unnecessarily forced to again review hundreds of pages in an effort to identify some nugget of relevant information.

67Despite counsel’s able argument, I am not swayed for three reasons.

68First, the parties consented to this trial date on December 21, 2012. I recognize counsel were not asked to sign the certificate and undertaking to the court when the matter was pre-tried on September 6, 2012. However, I also note that when the report to trial judge was prepared that day, the list of contemplated motions did not include this one. True the leave motion had not yet been argued. If of significance at all, it ceased to be when Leitch J.’s decision was released. By later consenting to a trial date – and whether a written undertaking and certificate was requested or not, the parties should have realized that they were acknowledging their obligation to be ready to proceed on the date fixed for trial. The timing of this motion concerns me. Interlocutory motions at this stage and in these circumstances are to be discouraged.

69Second, I am not satisfied that further particulars are necessary. Why would and how could a party commence, let alone complete, a summary judgment motion if they did not believe they had “particulars” of the issue that was central to the motion judge’s analysis and disposition?

70Third, even if particularity was lacking when the motion was filed, how could it be by the time the motion for summary judgment was argued given the oft-stated requirement that the parties put their best foot forward and the apparent size of the record they compiled?

71In the circumstances, I decline to order further particulars beyond those appearing in the Fresh as Amended Statement of Claim to which I have referred.

E. Conclusion

72For the reasons given, Dr. Bennett’s motion is dismissed. The issue of costs is reserved until the conclusion of the trial.

Footnotes

1. 12012 ONSC 3987 (S.C.J.)
2. 2See, too, the endorsement of Leitch J. at 2012 ONSC 6898 (S.C.J.) at paras. 20-25.
3. 3That excerpt is drawn from para. 34 of the plaintiffs’ factum. A statement to the same effect is made at paras. 5 and 42.
4. 4See, for example, Imperial Oil Ltd. v. Grabarchuk (1974), 3 O.R. (3d) 783 (C.A.); Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.J.). At para. 14 of the latter decision, Gillese J. (as she then was) listed two possible exceptions: where the giving of evidence could not have reasonably been anticipated or the proposed evidence is not controversial. See, too, the decision of O’Brien J. in Essa (Township of) v. Guergis (1993), 1993 CanLII 8756 (ON SCDC), 15 O.R. (3d) 573 (Gen. Div.).
5. 5Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
6. 6[2000] O.J. No. 313 (S.C.J.) at para. 16.
7. 7Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196, [2009] O.J. No. 841 (C.A.) at paras. 50-58; Robertson v. O’Rourke (1997) 14 C.P.C. (4th) 182 (S.C.J.) at paras. 7 and 12-19, aff’d 1998 CanLII 2918 (ON CA), [1998] O.J. No. 1999 (C.A.); Spribille v. Rockcliffe Nursing Home, [2010] O.J. No. 4771 (Master) at paras. 13-18; Tantawy v. Casa Verde, [2006] O.J. No. 210 (Master) at paras. 18-20; Wong v. Adler (2004), 2004 CanLII 8228 (ON SC), 70 O.R. (3d) 460 (Master) at paras. 12-22; Ioannou v. Evans (2008), 2008 CanLII 117 (ON SC), 50 C.P.C. (6th) 358 (Ont. S.C.J.) at paras. 1 and 27-42.
8. 8For example, Basarsky v. Quinlan, 1971 CanLII 5 (SCC), [1972] S.C.R. 380 at 384; Deaville v. Boegeman (1984), 1984 CanLII 1925 (ON CA), 48 O.R. (2d) 725 (C.A.); Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768 (C.A.) ; Swain Estate v. Lake of the Woods District Hospital (1992), 1992 CanLII 7601 (ON CA), 9 O.R. (3d) 74 (C.A.); Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.); Woolford v. Lockhart (1985), 2 C.P.C. (2d) 16 (Ont. Gen. Div.); Bartucci v. John Doe (2003) 2003 CanLII 42940 (ON SCDC), 68 O.R. (3d) 599 (Div. Ct.); Swiderski v. Broy Engineering Ltd. (1992), 1992 CanLII 7559 (ON SC), 11 O.R. (3d) 594 (Div. Ct.) and G.D. Watson, “Amendments of Proceedings after Limitation Periods” (1975), Can. Bar. Rev. 237.
9. 9Supra, note 7.
10. 10Mr. Williams referred me to R. v. 1504413 Ontario Ltd. (2008), 2008 ONCA 253, 90 O.R. (3d) 122 (C.A.) where a summons served on opposing counsel was quashed. See, too, R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620 (C.A.).
11. 11See, for example, Chapman v. 3M Canada Inc. (1995), 1995 CanLII 7128 (ON SC), 25 O.R. (3d) 658 (Gen. Div.) and Urquhart, supra note 4 at para. 19.
12. 12This excerpt is drawn from a January 30, 2013 e-mail.
13. 13Powell v. 349131 B.C. Ltd., 1992 CanLII 2821 (B.C. Master) at p. 10.