COURT FILE NO.: CV-11-427571

DATE: 20140102

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. V.I. Fabrikant / Plaintiff / Moving Party

AND:

Dr. V. Dzavik and Toronto General Hospital / Defendants / Responding Parties

BEFORE: Justice Edward Belobaba

COUNSEL:
Dr. V.I. Fabrikant self-represented plaintiff

Larissa Moscu for the defendant Dr. V. Dzavik

Jonathan Gutman for the defendant Toronto General Hospital

HEARD: In writing

ENDORSEMENT

[1] The plaintiff’s action for damages for alleged medical malpractice was referred to me for case management. Because the plaintiff is self-represented and incarcerated, I will hear any motions by teleconference or in writing. The parties have agreed that the following five motions would be decided on written submissions.

[2] I will deal with each of them in turn.

(i) Motion to amend the statement of claim

[3] On November 11, 2013, the plaintiff served a motion for leave to amend his statement of claim to add “a new case of malpractice.” A supporting affidavit was served on December 3, 2013. Dr. Dzavik notes that the plaintiff is attempting to amend his claim more than two years after it was filed, after he was examined for discovery and after he received Dr. Dzavik’s motion materials in support of a motion for summary judgment, which, if granted, would result in a dismissal of the plaintiff’s claim in its entirety. Dr. Dzavik also submits that the plaintiff’s proposed amendments are not proper pleadings and contravene the statutorily-prescribed limitation periods.

[4] Nonetheless, in the interest of ensuring the most expeditious and least expensive determination of this matter, Dr. Dzavik will consent to the proposed amendments provided that he is not prejudiced with regard to his limitations defence and his ability to to amend his motion material on his motion for summary judgment in order to address the new allegations.

[5] Ruling: The plaintiff’s motion to amend his statement of claim is granted on consent on the conditions just noted.

(ii) Refusals motion

[6] On November 11, 2013, the plaintiff served a “Motion to Defendants to Provide Certain Documents.” The plaintiff had cross-examined Dr. Dzavik on his affidavit using written questions. Dr. Dzavik responded to the questions. The plaintiff has taken issue with Dr. Dzavik’s response to five questions. Of these five questions, Dr. Dzavik did not answer three on the basis of relevance, says he has no knowledge of the circumstances posed in the fourth question, and submits that he has answered the fifth question.

[7] The three questions that Dr. Dzavik refused to answer on the grounds of relevance are the following:

Do you find this amount [the professional fee for the services provided] to be reasonable? If not, why?

Did you feel that it was immoral on your part to cash the cheques received from my family? If not, why?

I have given $1,500 to Montreal cardiologist Eisenberg with the same type of presumption that he would perform angioplasty when requested. He refused to do so, so I reported him to College Des Medecins. He voluntarily returned the money. In addition, he was convicted by Discipline Committee on September 21, 2012 of breeching section 63 of the Code of Ethics of Physicians of Quebec, his licence was suspended for one week and [was] fined $1,500, plus costs. What do you think your conviction should be for taking the money in the amount more than 10 times greater than the amount taken by cardiologist Eisenberg?

[8] I agree with Dr. Dzavik that these three questions are irrelevant to the allegations at issue in this litigation. The plaintiff makes three allegations against Dr. Dzavik in the statement of claim: (a) that Dr. Dzavik erred on March 22, 2005 when he made a specific medical decision; (b) that Dr. Dzavik was negligent on March 2, 2007 when he declined to perform an angioplasty; and (c) that Dr. Dzavik's decision not to perform an angioplasty was a breach of contract.

[9] The first question, as noted above, relates to Dr. Dzavik’s personal opinion of whether the professional fee he received from the Hospital for services rendered is reasonable. The professional fee Dr. Dzavik received does not bear on the medical services provided to the plaintiff nor on the issue of whether there was a breach of any contract. The second question relates to Dr. Dzavik’s personal sense of morality. Dr. Dzavik’s view on morality is not relevant to whether Dr. Dzavik provided medical treatment within the standard of practice of the profession or whether there was any breach of contract. The third question asks Dr. Dzavik “what he thinks his conviction should be” in terms of disciplinary sanctions. This question is irrelevant to the allegations herein - any sanctions relating to Dr. Dzavik’s medical license are within the purview of the governing College of Physicians and Surgeon.

[10] The plaintiff also takes issue with Dr. Dzavik’s response to these questions:

After my 2002 angioplasty by Dr. Hilton in Victoria, BC, my family sent him a cheque. He refused to cash it stating that he was paid in full by the Hospital. Shouldn't you have done the same? If not, why?

Please provide the name(s) and position(s) of the person(s) at the College of Physicians with whom you consulted. Please describe in sufficient detail how you presented this case and what was (were) the advice(s) given to you.

[11] In my view, Dr. Dzavik has answered the fourth question by stating that he has no knowledge of the services provided by Dr. Hilton or of the plaintiff’s family’s interactions with this doctor. As for the fifth question, Dr. Dzavik responded to this question by indicating that he had consulted with the College of Physicians and Surgeons to obtain clarification of his responsibilities and was advised to contact the CMPA. This question was properly answered and no additional information is required.

[12] Ruling: The refusals motion is dismissed.

(iii) Productions motion

[13] In the “Motion to Defendants to Provide Certain Documents” the plaintiff has also asked that the defendant Hospital (more correctly, the University Health Network) produce certain employment-related documents relating to Dr. Dzavik. This motion does not succeed.

[14] I begin by noting that there is no mention of the defendant Hospital in either the statement of claim or the amended statement of claim. There are no allegations directed against the Hospital, not even a pleading alleging vicarious liability. Since relevance is determined on the basis of the pleadings, the defendant Hospital is right to say that there is no basis for the requested production order.

[15] In any event, I am satisfied on the material before me that the Hospital has produced all of the necessary and relevant documentation – such as Dr. Dzavik’s medical appointment papers and the Medical Staff by-laws that were in force during the time in question. Dr. Dzavik’s duties as “the head of the catheterization lab” have not been connected by any evidence before me to the clinical care that is at issue in this action. The Hospital advises that there is no “employment contract” between the Hospital and Dr. Dzavik.

[16] Ruling: the motion for productions against the defendant Hospital is dismissed.

(iv) Motion to strike affidavit paragraphs

[17] The plaintiff seeks to strike certain paragraphs from Dr. Dzavik’s responding Motion Record, namely paragraphs 2 to 6 of the affidavit of Lifa Jensen-Taillefer (and the exhibits referenced therein, Exhibits “A” through “F”); and paragraphs 3 (except for the first sentence) and 41 in Dr. Dzavik’s responding factum. These paragraphs and exhibits provide background information about the plaintiff’s criminal conviction and discuss his conduct as a litigant.

[18] Dr. Dzavik submits that these paragraphs are neither frivolous nor vexatious, nor an abuse of process of the court. Nonetheless, Dr. Dzavik will consent to having the paragraphs and exhibits, as described above, struck out.

[19] Ruling: The specified paragraphs and exhibits shall be struck on consent.

(v) Motion to produce audio recording

[20] The plaintiff is concerned about the accuracy of the transcripts from his examination for discovery and the cross-examination on his affidavit. In this motion he asks that the defendants be required to produce the audio tapes. Counsel for Dr. Dzavik do not have any audio tapes in their possession. They also advise that ASAP Court Reporting Services, hired for the plaintiff’s examination for discovery and cross-examination, does not release the audio tapes. Counsel for Dr. Dzavik further advise that ASAP will compare the certified transcript to its audio recording, if requested by a party to do so. (I assume for an additional charge.)

[21] The plaintiff has been provided with a certified transcript of his examination for discovery and the cross-examination on his affidavit. If he wishes, he can follow up with ASAP and request that the court reporter compare the certified transcript with the audio tape. The plaintiff may also wish to forward the list of the errors that he has compiled.

[22] Ruling: The motion requiring the defendants to produce the audio tapes is dismissed.

Disposition

[23] In sum, the plaintiff’s motions to amend the statement of claim and to strike certain affidavit paragraphs (as specified above) are granted on consent; the refusals motion, the productions motion and the motion for the audio tapes are dismissed.

[24] If costs are sought by the defendants, they should forward brief written submissions to my attention within 14 days. The plaintiff should provide his response within 10 days thereafter.

[25] I will hear the motion and cross-motion for summary judgment via teleconference on a date that is agreed to by the parties. I remind Dr. Fabrikant that he may wish to file responding material (i.e. an affidavit and factum) to the defendants’ cross-motion for summary judgment.

Belobaba J.

Date: January 2, 2014