Court File and Parties

COURT FILE NO.: CV-11-423760

DATE: 20140306

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rahim Khan, a minor by his Litigation Guardian, Bibi Khan, Zameer Khan, and the said Bibi Khan personally, Plaintiffs

– AND –

Dr. Joseph Lee, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Millie M. Sparling, for the Plaintiffs

C. Kirk Boggs, for the Defendant

HEARD: March 6, 2014

ENDORSEMENT

[1] The Defendant has brought a motion to strike out the claim against him under Rules 21.01, 25.06, and 25.11 of the Rules of Civil Procedure. To summarize his argument, he submits that the Statement of Claim issued April 5, 2011 fails to disclose sufficient material facts or particulars to properly frame the claim against him or to allow him to properly plead in his defense.

[2] The action alleges medical malpractice against the Defendant, who was the obstetrician who oversaw the pregnancy of the Plaintiff, Bibi Khan. The Plaintiffs allege that the Defendant is responsible for the severe brain damage suffered at birth by the Plaintiff, Rahim Khan. The Statement of Claim states that Bibi Khan was in the Defendant’s care from November 9, 1990 until the birth of Rahim Khan on May 15, 1991.

[3] The details, such as they are, of the Defendant’s alleged negligence are set out in paragraph 8 of the Statement of Claim. That paragraph, which contains subparagraphs (a) through (n), provides that the Defendant

a) “did not use reasonable and proper skill…”

b) “failed to exercise the degree of knowledge, skill and diligence, which he ought to have possessed…

c) “failed to follow accepted medical practices in the diagnosis and treatment of the plaintiff…”

d) “did not carry out any diagnostic tests and procedures…”

e) “failed to diagnose the condition of the plaintiff…”

f) “failed to recommend tests and procedures…”

g) “failed to check and monitor the condition of the plaintiff…”

h) “failed to prescribe medication and therapeutic procedures…”

i) “failed to observe the damage occurring to the minor plaintiff…”

j) “created and/or increased the risk [in the treatment he provided]…”

k) “failed to admit the plaintiff, Bibi Khan, to the hospital when indicated”

l) “failed to provide for the availability of an immediate caesarean section…”

m) “created and/or increased the risk [in failing to provide for the availability of an immediate cesarian section when indicated]…”

n) “failed to obtain the informed consent…”

[4] Paragraph 9 contains a similar list of allegations, re-phrased to assert a claim of breach of contract rather than negligence.

[5] In a previous motion before Master Haberman, these allegations have been described as being inadequately particularized. In her endorsement of February 9, 2012, reported as Khan v Lee, 2012 ONSC 1348, the Master stated at para 5 that, “[t]hough 14 grounds of negligence are listed, most are boiler-plate in nature and fail to state with any specificity what it was that Lee did or failed to do that allegedly led to this unfortunate outcome.”

[6] On April 27, 2011, shortly after being served with the Statement of Claim, the Defendants served a Demand for Particulars. That Demand contained 20 paragraphs, and sought particulars of the Defendant’s alleged malpractice and misdiagnosis of the Plaintiffs, the tests and procedures that the Defendant allegedly missed, the indications for hospitalization and caesarian section that the Defendant is alleged not to have acted on, and the ways in which the Defendant is alleged to have increased risks and caused damage to the Plaintiffs.

[7] On May 6, 2011, just over a week later, the Plaintiffs provided their Response to Demand for Particulars. At paragraph 5 of the Response, it is asserted that “the plaintiffs do not have particulars of the ‘care and treatment or lack of proper care and treatment’…other than what is stated in the Statement of Claim.” That statement is then repeated 14 times in the Response, indicating that the Plaintiffs do not have any of the particulars sought by the Defendant.

[8] Having received the Plaintiffs’ Response, the Defendant brought a motion to strike the claim. The motion record did not contain an affidavit of the Defendant, and so the Plaintiffs moved pursuant to Rule 39.03 to examine the Defendant on the pending motion. The Defendant sought to resist that examination, and it was in the context of that contested motion that the matter came before Master Haberman.

[9] After commenting on the paucity of particulars contained in the Statement of Claim, the Master then considered the question of whether it was necessary for the Defendant to be examined on the pending motion. Although she observed that the Rules do not, strictly speaking, require a supporting affidavit in a motion of this kind, the nature of this claim inclined her to be as generous as possible to the Plaintiffs. In Master Haberman’s words, at para 7 of her endorsement, “the fact that this is a medical malpractice action may dictate a more indulgent approach than one would normally encounter.” She therefore ordered the examination.

[10] The order issued by Master Haberman was upheld by Stevenson J. on appeal. In her endorsement of July 25, 2012, reported at 2012 ONSC 4363, Stevenson J. indicated at para 24 that, “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.” She then concluded that this kind of motion generally does need evidence from the Defendant, and that the examination of the Defendant proposed by Plaintiffs’ counsel will satisfy that requirement.

[11] The examination of the Defendant by Plaintiffs’ counsel took place on December 11, 2012. The transcript of that examination makes a number of things clear. In the first place, it confirms that after more than 20 years the Defendant has no independent recollection of the Plaintiffs or of the medical issues involved in their care. It also confirms that the Defendant destroys his own medical records after 10 years, and that the Defendant’s records of the Plaintiffs’ medical care no longer exist.

[12] The transcript further confirms that copies of the Defendant’s office chart still exist, and that both parties now have a copy of it. It also demonstrates that Plaintiffs and their counsel have obtained copies of the hospital records pertaining to the labour and delivery of Bibi Khan and the birth and neonatal care of Rahim Khan from Branson North York General Hospital, and that they provided a copy of those records to the Defendant prior to his examination.

[13] The Plaintiffs had full opportunity to examine the Defendant. At the examination, Plaintiffs’ counsel sought to ask a number of questions that were objected to by counsel for the Defendants on the grounds that they were a form of pre-examination for discovery. Master Haberman had specifically restricted the examination to the issue of whether the Statement of Claim provides the Defendant with sufficient knowledge to allow him to plead in his own defense. Those refusals formed the subject of yet a further motion before Master Graham. On July 3, 2013, Master Graham upheld the Defendant’s position, concluding that “none of the questions refused are proper questions in relation to the underlying motion to strike…”

[14] The Plaintiffs now submit that the motion to strike should be dismissed. Senior counsel for the Plaintiffs, Mr. Hilik Y. Elmaliah, has filed an affidavit on behalf of his clients outlining the history of the proceedings. Mr. Elmaliah does not indicate that there are any further particulars that the Plaintiffs would like to add to their pleading. I confirmed this with counsel for the Plaintiffs at the hearing, Ms. Millie M. Sparling, and asked her whether the claim could be amended. Her response was that the Plaintiffs have included in the claim the minimal amount of factual information required of them.

[15] Ms. Sparling also submits that, in any case, a party can only plead what it knows, and that the Plaintiffs do not have any further particulars to add. She cites Chenier v Hôpital Général de Hawkesbury, [2006] OJ No 1679, at para 21, for the proposition that, “[t]he Plaintiffs cannot be expected to have retained their own medical experts to assist in particularizing their allegations regarding a breach of a standard of care by the Defendant physicians before those experts would have access to all available information as to what actually happened at the time of Sacha’s birth.”

[16] I am confronted with a vague Statement of Claim whose allegations, to use Master Haberman’s characterization, are “boiler-plate in nature”. After reviewing the existing hospital files and doctor’s office chart, and examining the Defendant on the pending motion, the Plaintiff still cannot say what tests the Defendant omitted, what procedures and treatments he should have pursued but did not, what indications he overlooked for hospitalizing or preparing Bibi Khan for a caesarian section, what steps he took or did not take that added to Rahim Khan’s risk of injuries, and what it is that was done without obtaining the Plaintiffs’ consent.

[17] I take Ms. Sparling’s point that the Plaintiffs are not required to retain an expert at the pleadings stage of an action; but the action must be framed by the Plaintiffs’ pleading and the Defendant must be in a position to know what alleged wrongdoing he is required to defend. As Nordheimer J. put it in Basdeo v. University Health Network, [2002] OJ No 263, at para 17, “[s]urely the defendants are entitled to have some indication of how they failed to exercise reasonable skill and care, what diagnostic steps were not taken, what tests were not administered, what medications should have been prescribed but were not, and so on…”

[18] I also hasten to add that the Rules do not differentiate between different causes of action in respect of the requirements for pleadings. While Master Haberman was willing to be more indulgent to Plaintiffs in a medical case on the motion to examine the Defendant, once that examination has been done the test for survival of the pleading under Rule 25.06(1) is the same. “If a plaintiff in a conspiracy claim is required to plead with specificity the facts giving rise to the conspiracy, I see no reason why the plaintiff in a medical malpractice claim ought not to be required to plead with specificity the facts which constitute the malpractice.” Basdeo, at para 29.

[19] The Plaintiffs cannot plead boiler-plate and then hope that the Defendant will lead them to a sustainable claim. This court made it clear in Senechal v Muskoka District, [2003] OJ No. 885, at para 50, that “[i]t is improper to baldly plead conclusions without any supporting facts.” Any Statement of Claim that attempts to do so must be struck.

[20] Having pleaded baldly, the Plaintiffs answered a Demand for Particulars with the assertion that they have no more particulars to give. Then, having obtained the existing hospital records and having examined the Defendant, they still insist that they have no more particulars to give. While one can sympathize with the Plaintiffs, there is nothing in the record or the governing case law that suggests that they should be relieved of the ordinary requirements of pleading.

[21] As Stevenson J. observed at para 24 of her endorsement, “pleadings have been struck for failing to meet the minimum level of material fact required under Rule 25.06.” This includes pleadings in medical malpractice claims such as the one at bar. Since the Plaintiffs have no particulars to add to their existing pleading, they do not seek to amend it and there would be no point in granting leave to amend it. The only remedy, therefore, is for the Statement of Claim to be struck out.

[22] The Statement of Claim is struck out in its entirety, without leave to amend.

[23] The Defendant is entitled to his costs of these proceedings. Both counsel have provided me with a Bill of Costs. Defendant’s counsel seeks a total of $10,906.53 on a partial indemnity basis, while Plaintiffs’ counsel would seek a totoal of $8,357.41.

[24] The difference of just over $2,000 is easily explained by the fact that Plaintiffs’ counsel, Ms. Sparling, is a first year lawyer who was just called to the bar in 2013, while Defendant’s counsel, Mr. Boggs, is a thirty year lawyer who was called to the bar in 1984. Ms. Sparling’s partial indemnity rate is $175/hour, while Mr. Boggs’ is double that rate at $350/hour.

[25] Both counsel did excellent jobs in the motion, but it stands to reason that Mr. Boggs seeks somewhat more in costs. Under these circumstances, Mr. Boggs’ Bill of Costs reflects what the Plaintiffs themselves could reasonably expect to pay, which is an important factor that Rule 57.01(1)(0.b) permits me to take into account in fixing costs.

[26] The Plaintiffs shall pay the defendants the all-inclusive amount of $10,906.53 in costs.

Morgan J.

Date: March 6, 2014