ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-1944
DATE: 2014/03/17
BETWEEN:
DIANE LALONDE-PAQUETTE, GÉRARD PAQUETTE, CAROLINE PAQUETTE and SERGE PAQUETTE
Plaintiffs
– and –
DR. MARK STEVEN FREEDMAN
Defendant
Allan O’Brien, for the Plaintiffs
Sally Gomery, for the Defendant
HEARD: January 17, 2014 (Ottawa)
REASONS FOR JUDGMENT
The Defendant Dr. Mark Freedman seeks leave to appeal to the Divisional Court from the July 8, 2013 decision dismissing Dr. Freedman’s motion for summary judgment.
PARFETT J.
Background
[1] This matter is a medical malpractice action. The Plaintiff, Diane Lalonde-Paquette suffered a serious stroke on September 16, 2005. On September 6, 2005, she attended the Emergency Department of the Ottawa Hospital. After being seen by two emergency room doctors – Dr. Worthington and Dr. Pozgay – she was sent home with a diagnosis of a headache with expressive asphasia.
[2] The Plaintiffs hired an expert – Dr. Hallé, a neurologist – to review the file prior to filing the initial action. He provided the Plaintiffs with an opinion that one of the two emergency room doctors was at fault and had failed to provide the appropriate standard of care, which resulted in the incorrect diagnosis of the Plaintiff’s condition and a subsequent lack of treatment prior to the stroke occurring.
[3] On September 12, 2007, the Plaintiffs filed a Statement of Claim against the two emergency room doctors and the hospital. The doctors filed their Statement of Defence on April 4, 2008. That Statement of Defence indicated, among other matters:
The resident conducted a consultation by telephone with neurology. The on-call neurologist advised the resident physician to order a CT scan of the head enhanced with contrast and, if the results were normal, to discharge [the Plaintiff] home with an order for an out-patient electroencephalogram and a follow-up consultation with neurology in the out-patient clinic.[^1]
[4] The on-call neurologist in question was Dr. Freedman. When the Statement of Defence was filed indicating that a neurologist had been involved, the lawyers for the Plaintiff asked Dr. Hallé whether his opinion had changed concerning who was at fault. They were advised that it had not.
[5] In June 2010, the emergency room doctors received a report from Dr. Tyberg, which they forwarded to the Plaintiff’s lawyers. This report indicated:
It is generally accepted practice by emergency physicians to follow the advice of specialty consultants regarding the care plan for patient presentations that are within the scope of expertise of the specialty consultant. Assuming the details of the case presentation as documented in the medial record were accurately presented to the consultant and the plan for outpatient follow-up jointly agreed upon then the standard care would have been met.[^2]
[6] This report was then forwarded to Dr. Hallé for his review. Dr. Hallé abruptly withdrew from the file, indicating that, had he known that a neurologist had been involved in the Plaintiff’s care, he would never have accepted the retainer.
[7] In November 2010, the Plaintiff’s lawyers filed an action against Dr. Freedman.
[8] Dr. Freedman’s lawyer brought an application for a summary judgment, alleging that the action against Dr. Freedman was statute barred by the expiry of the two-year limitation period pursuant to the Limitations Act, 2002.[^3] Dr. Freedman alleges that the cause of action against him was discoverable no later than April 2008, when the emergency room doctors filed their Statement of Defence.
[9] The judge hearing the summary judgment motion dismissed it on the basis that it was premature. In particular, he noted
It was submitted by the defendants that as the Statement of Claim against Dr. Freedman alleges virtually the same grounds for negligence as advanced in the earlier Statement of Claim against Drs. Worthington and Pozgay, the plaintiffs ought to have discovered their claim against Dr. Freedman no later than during the discovery of Dr. Pozgay in March of 2009 and possibly on the earlier date of April 2008 upon receipt by the plaintiffs of the Statement of Defence of Drs. Worthington and Pozgay wherein a treating neurologist was identified.
This may very well be an accurate determination, however, in my opinion, given the confusion surrounding Dr. Hallé’s medical opinion concerning fault, and his subsequent removal from the file, this is something that is best left to the trial judge. The motion is premature.[^4]
[10] The Defendant requests leave to appeal from that decision.
Issues
[11] There is only one issue to be determined on this motion: whether the Defendant has met the burden of demonstrating that the summary judgment decision meets one of the alternative requirements for leave to appeal as set out in Rule 62.02(4) of the Rules of Civil Procedure. The questions to be answered are as follows:
Does the decision give rise to conflicting tests to be used on a summary judgment motion; or
Is there is a good reason to doubt the correctness of the decision and the matter is of sufficient importance that leave ought to be granted?
Legal Principles
[12] Rule 62.02(4) of the Rules of Civil Procedure states that leave to appeal from an interlocutory order to the Divisional Court may be granted where:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[13] A conflict may be found to exist if another decision based on similar facts used different principles in the exercise of judicial discretion and, as a result, arrived at a different conclusion. It is not enough that the exercise of discretion has led to a different result because of different circumstances.[^5] Rather, it must be shown that the effect of the use of different principles has created a conflict and has left the law in an unsettled state.[^6] If the law is in an unsettled state, it is generally desirable that the conflict be resolved by having the matter heard on appeal.
[14] With respect to the requirements of the second branch of Rule 62.02(4), the caselaw has held that it is sufficient for the moving party to show the court that the correctness of the decision is open to very serious debate. It is not necessary that the applicant demonstrate that the decision is actually wrong.[^7] In addition, the judge hearing the leave application must also be satisfied that the issue is one of importance to the development of the law, rather than of importance to the parties only.[^8]
[15] In assessing the summary judgment decision, two other principles apply. The first is that the reviewing judge ought not to be hypercritical of the decision.[^9] Secondly, the reasons for decision must be read functionally and purposively in order to determine whether the reasons demonstrate an understanding of the legal principles to be applied.[^10]
Positions of the parties
[16] The Defendant’s position on this application is that this decision gives rise to a new test for a summary judgment motion. In the alternative, the Defendant argues that the judge misapprehended both the evidence and the Defendant’s position on the summary judgment motion. In either case, the Defendant contends that the decision significantly alters the approach to be taken on assessing whether an action has been started within the applicable limitation period.
[17] The Plaintiffs state that, when the judge’s reasons are read as a whole, it is clear that he knew what the relevant legal principles were and that he applied them to this case. Therefore, the decision is not in conflict with the principles as set out in Combined Air Mechanical Services Inc. v. Flesch.[^11] Furthermore, the Plaintiffs argue that, on a summary judgment motion, it is open to the judge to conclude – as the judge did in this case – that he has insufficient evidence in relation to a factual dispute. Therefore, the Defendant cannot meet the second branch of the test pursuant to Rule 62.02(4).
Analysis
Does the decision give rise to conflicting tests to be used on a summary judgment motion?
[18] In Combined Air, the Ontario Court of Appeal set out the parameters of a case that would lend itself to resolution on a summary judgment motion. Such a case would be one where “the documentary evidence was limited and not contentious,” where “[t]here were a limited number of relevant witnesses,” and where “[t]he governing legal principles were not in dispute.”[^12] In addition, the Court of Appeal noted that a motion judge must consider whether a “full appreciation of the evidence and issues that is required to make dispositive findings [could] be achieved by way of summary judgment,”[^13] or whether a trial is required.
[19] Subsequent to the argument in this case, the Supreme Court of Canada case in Hryniak v. Mauldin[^14] was released. Counsel made written submissions as to the application of that case to this matter. The Defendant argues that this case supports his position that the motions judge used the wrong legal test. He ought to have first determined what facts he needed to decide the discoverability issue and then determined whether he had the necessary evidence to make that determination. In short, the Defendant contends that the motions judge erred by proceeding on the assumption that a trial is the default procedure. The Plaintiff does not dispute the approach suggested by the Defendant, but argues that the motions judge effectively did take that approach. The Plaintiff states that the motions judge determined that the summary judgment process did not provide the court with the necessary evidence to fairly and justly adjudicate the dispute.
[20] In Hryniak, the Supreme Court focussed on what is required for a judge to determine whether there is a genuine issue for trial. The Court held that the Ontario Court of Appeal had set the bar too high with its requirement that the motions judge be able to achieve a full appreciation of the evidence before deciding the case on a summary judgment motion. Instead, the Supreme Court emphasized:
The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.[^15]
[21] In addition, the Court noted that there would be no genuine issue requiring a trial when the motions judge was able to
[r]each a fair and just determination of the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.[^16]
[22] The Defendant contends that this case was ideally suited to summary judgment. The sole issue to be determined was when the involvement of Dr. Freedman in the Plaintiff’s treatment could reasonably have been discovered by the Plaintiff. The evidence on this issue was based on documents, such as the medical notes and the Statement of Defence of the emergency room doctors, and on affidavit evidence of the Plaintiff’s lawyers, as well as the cross-examinations on those affidavits. The legal principles were not in dispute and, therefore, according to the Defendant, the stage was properly set for a summary judgment motion.
[23] However, the Defendant suggests that the motion judge failed to properly review the principles relating to discoverability. Instead, according to the Defendant, the motion judge determined that the motion was premature without any analysis of the applicable principles. The Defendant argues that this approach resulted in the motion judge applying a two-stage test. The first step involved a determination of whether the case was suitable for summary judgment (without considering the underlying principles), while, in the second stage, the judge went on to consider the applicable legal principles and decide if summary judgment could be granted. In so doing, the Defendant states that the motion judge applied a different set of principles than those set out in Combined Air. In making this argument, the Defendant points to three paragraphs in the reasons for decision, where the motion judge states:
It was submitted by the defendants that as the Statement of Claim against Dr. Freedman alleges virtually the same grounds for negligence as advanced in the earlier Statement of Claim against Drs. Worthington and Pozgay, the plaintiffs ought to have discovered their claim against Dr. Freedman no later than during the discovery of Dr. Pozgay in March of 2009 and possibly on the earlier date of April 2008 upon receipt by the plaintiffs of the Statement of Defences of Drs. Worthington and Pozgay wherein a treating neurologist was identified.
This may very well be an accurate determination, however, in my opinion, given the confusion surrounding Dr. Hallé’s medical opinion concerning fault, and his subsequent removal from the file, this is something that is best left to the trial judge. The motion is premature.
Having decided that this is not an appropriate case for summary judgment, I need not proceed with the issue of the limitation period and the application of sections 4 and 5 of The Limitations Act, 2002, S.O., c. 24.[^17]
[24] The Defendant contends that a consideration of the principles in the Limitations Act, 2002 is precisely what the motion judge ought to have done as part of his analysis of the discoverability issue.
[25] The Plaintiffs take quite a different view of the matter. They argue that a functional and purposive reading of the reasons for judgment shows that the motion judge appreciated the applicable legal principles as set out in the Limitations Act, 2002 and applied them to his analysis of the evidence before him. According to the Plaintiff, the motion judge ultimately determined, in the final paragraphs quoted above, that he could not fully appreciate the evidence on the issue of discoverability “given the confusion surrounding Dr. Hallé’s medical opinion concerning fault”. Therefore, he found the motion to be premature and dismissed it. As a result, the Plaintiff contends that the motion judge applied the principles as set out in Combined Air and, therefore, there is no conflict between this decision and Combined Air.
[26] I agree with the Plaintiffs that a purposive approach must be taken to the review of the reasons for decision, and that it would be inappropriate to lose sight of the substance of the decision in looking at its form. In paragraphs 4-33, the motion judge sets out the facts in this case from the time the Plaintiff first attended the emergency room to the date when the Statement of Claim against Dr. Freedman was filed. The Defendant has no issue with the outline of these facts.
[27] The motion judge then sets out the issues in two questions: 1) is this an appropriate case for summary judgment and 2) did the limitation period expire for an action against Dr. Freedman, the neurologist?
[28] In paragraphs 35 & 36, the motion judge indicated that, pursuant to the new Rule 20, the court has the power to weigh evidence, evaluate the credibility of the affiant and draw reasonable inferences from the evidence in order to determine whether there is a genuine issue requiring a trial. Furthermore, he noted that “in this case ‘discoverability’ is the focus and, it is necessary for the plaintiffs to provide facts which demonstrate a genuine issue for trial specifically as to the commencement of the limitation period for the action against Dr. Freedman”.[^18]
[29] The Limitations Act, 2002 provides that the onus is on a plaintiff to show that the material facts were not known, nor could they have been known, to the plaintiff prior to the date when the plaintiff claims to have come into possession of the necessary information.
[30] Section 5 of the Limitations Act, 2002 provides
(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[31] The test for discoverability is a two-step procedure; the first step is to assess the Plaintiff’s subjective or actual knowledge of the relevant facts. The second step requires an objective assessment of the plaintiff’s knowledge in relation to the steps a reasonable person would have taken to obtain knowledge of a claim.
[32] In my view, the motions judge appreciated the fact that discoverability was the key issue and that the Plaintiff had the onus of showing that she had discovered the relevant facts only within the two years prior to her filing of the claim against Dr. Freedman. In the paragraphs that start at paragraph 37, the motion judge makes findings that culminate in paragraph 43. In paragraph 43, while it could have been more clearly stated, it is nonetheless apparent that the motions judge found that he did not have sufficient evidence to properly assess the issue of discoverability. The fact that he did not specifically make reference to the need to “fully appreciate the evidence” does not detract, in my view, from the fact that this was his finding. The clear meaning of his finding was that he did not have confidence that he could find the necessary facts and apply the relevant legal principles so as to resolve the dispute on the basis of the record before him.
[33] In his decision, the motions judge notes that the Defendant’s position may ultimately prove correct. Then he notes that there is “confusion” surrounding Dr. Hallé’s opinion regarding fault. The Defendant argues that there was no confusion with respect to Dr. Hallé’s opinion and, therefore, it is apparent that the motion judge found a factual dispute that did not in fact exist. I disagree. Dr. Hallé was asked by the Plaintiff’s lawyers whether his opinion regarding the issue of who was at fault had changed given the contents of the Statement of Defence. He stated that it had not. Then, when Dr. Tyberg’s report was received, Dr. Hallé suddenly did an about face and withdrew from the file claiming that he was unaware that a neurologist had been involved in the Plaintiff’s treatment. The Plaintiff’s lawyers said on cross-examination that they were stunned by this action and the motions judge explicitly accepted that the lawyers’ reaction was understandable in the circumstances.[^19] It was this behaviour that caused the confusion – Dr. Hallé provided an opinion regarding fault that explicitly excluded Dr. Freedman and he maintained that opinion after receiving the Statement of Defence of the emergency room doctors. Then, when the emergency room doctors provide a report suggesting that Dr. Freedman might be at fault, Dr. Hallé withdraws from the file – not because he agrees with the fault assessment, but because he states he was unaware of any involvement of a neurologist in the Plaintiff’s treatment. This latter statement cannot be true if Dr. Hallé read the Statement of Defence. Therefore, I agree that there was confusion and, furthermore, it is a confusion that significantly affects the finding concerning discoverability.
[34] In my view, if the court accepts that Dr. Hallé reviewed the emergency doctors’ Statement of Defence in March 2009 and opined that Dr. Freedman was not at fault, then it would be open to the court to conclude that Dr. Freedman’s potential liability was not discoverable until Dr. Tyberg’s report was received. On the other hand, if the court concludes that Dr. Hallé did not review the Statement of Defence and that he should have done so, or that his opinion concerning fault was unnecessary to an assessment of Dr. Freedman’s potential liability, it would be open to the court to conclude that the limitation period started to run in April 2008. Consequently, in order to properly determine the issue of discoverability, it would be essential to hear from Dr. Hallé.
[35] The summary judgment motion judge’s reasons reveal that he understood the requirements of the test for discoverability as set out in the Limitations Act, 2002 and that, in applying those requirements to the facts of this case, he concluded – in keeping with the principles of Combined Air and Hyrniak – that he could not make the necessary findings of fact on the record that was before him. As a result, there is no conflict between the principles set out in the caselaw and the summary judgment decision. Therefore, the first branch of the test for leave to appeal is not met.
2. Is there is a good reason to doubt the correctness of the decision and is the matter is of sufficient importance that leave ought to be granted?
[36] The parties took two separate positions regarding the issue of discoverability. The Defendant argued that the material fact that was necessary for the Plaintiff to determine that Dr. Freedman was potentially liable was either contained in the emergency room notes, which stated “spoke with neurology” or at the latest, it was discoverable when the emergency room doctors delivered their Statement of Defence that indicated that they had consulted with the on-call neurologist.
[37] On the other hand, the Plaintiff argued that the mere fact that a neurologist was consulted was insufficient to indicate potential liability. Instead, what was required was knowledge of the protocol in effect between the consultant neurologist and the emergency physicians. Until Dr. Tyberg’s report was received in June 2010, the Plaintiff had no way of knowing what that protocol was and, most importantly, that the emergency room physician was obliged to follow recommendations regarding treatment made by the specialist. The Plaintiff was relying on Dr. Hallé to “fill in the blanks” between knowing of Dr. Freedman’s involvement in the treatment and knowing that his advice had to be followed by the emergency room physicians and, therefore, that he was potentially liable for a failure to meet the standard of care.
[38] The Ontario Court of Appeal has held that an action is discoverable when the material facts on which a cause of action is based have been discovered or ought to have been discovered by the plaintiff through the exercise of due diligence.[^20]
[39] The Defendant points to caselaw that indicates that knowledge of the legal consequences that flow from a known fact is not necessary in order to identify the potential liability of a defendant.[^21] Consequently, the Defendant argues that the Plaintiff did not need to receive Dr. Tyberg’s report or any information from Dr. Hallé. The receipt of the Statement of Defence was sufficient to put the Plaintiff on notice that Dr. Freedman was potentially liable. As a result, the Defence contends that the correctness of the motion judge’s decision is open to serious debate.
[40] The Plaintiff argues that what was required for discoverability in this case was not an opinion concerning Dr. Freedman’s legal liability, but rather the fact of the protocol that demonstrated that the chain of decision-making stopped with Dr. Freedman. The motion judge agreed with the Plaintiff’s argument on this point. He noted in the reasons for decision:
In dealing with allegations of medical malpractice, it is often that “discoverability” is complicated and confusing to even the most experienced counsel given the highly technical nature relating to the event.
In this case, the particular event and the medical treatment administered by the various physicians is further complicated by the meaning of the words: “spoke with neurology” as found in the September 6, 2005 “Emergency Room Report”, and with the consistent findings by Dr. Hallé who was retained by the plaintiffs in order to provide the expertise to determine whether medical errors had occurred and by which doctor or doctors.
Certainly in this particular situation it would have been necessary for the plaintiffs to retain a neurologist familiar with the procedures in the emergency room of a hospital to provide, at least initially, expert advice, which they did.[^22]
[41] The Plaintiff’s interpretation of when Dr. Freedman’s potential liability was discoverable is as valid as the Defendant’s argument. While I might not have made the same decision as the motions judge, it was within his discretion to make the decision that he did. It follows that I cannot find that there is good reason to doubt the correctness of the motion judge’s decision.
[42] The second criteria of this branch of the test for granting leave to appeal is whether the matter is also of sufficient importance that leave ought to be granted. As noted earlier, “importance” is defined as important to the development of the law. Had I agreed with the Defendant’s position that the motions judge used a different test than the one set out in Combined Air, I would have had no difficulty also finding that there was reason to doubt the correctness of the decision and that the matter was sufficiently important to warrant an appeal. However, in this case, I did not find that a different test was used, nor can I find any reason to doubt the correctness of the decision. Consequently, I cannot find that the matter is sufficiently important to justify an appeal given that there is no legal error that might require an appeal. Therefore, the second branch of the test for granting leave to appeal is also not met.
[43] In the circumstances, I conclude that the requirements for leave to appeal have not been met and the application is dismissed.
Madam Justice Julianne A. Parfett
Released: March 17, 2014
COURT FILE NO.: 13-1944
DATE: 2014/03/17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIANE LALONDE-PAQUETTE, GÉRARD PAQUETTE, CAROLINE PAQUETTE
and SERGE PAQUETTE
Plaintiffs
– and –
DR. MARK STEVEN FREEDMAN
Defendant
REASONS FOR JUDGMENT
Parfett J.
Released: March 17, 2014
[^1]: Supplementary Motion Record of the Plaintiffs, Tab 7.
[^2]: Supplementary Motion Record of the Plaintiffs, Tab 10, at p. 5.
[^3]: S.O. 2002, c. 24, Sched. B.
[^4]: Lalonde-Paquette v. Freedman, 2013 ONSC 4574, [2013] O.J. No. 3167, at paras. 42‑43.
[^5]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd., c.o.b. as 300 Group (1992), 1992 7405 (ON SC). See also Colantino (Litigation Guardian of) v. Kuhlmann, 2006 6908 (ON SC).
[^6]: Gavriluke v. Mainard, 2013 ONSC 537.
[^7]: Brownhall v. Canada (Ministry of Defence) (2006), 2006 7505 (ON SC).
[^8]: Ibid.; see also Bell Expressvu Limited Partnership v. Tedmonds & Co. (2001), 2001 28350 (ON SC).
[^9]: Colantino, supra.
[^10]: D.M Drugs Ltd. v Bywater, 2013 ONCA 356.
[^11]: 2011 ONCA 764.
[^12]: Ibid. at para. 219.
[^13]: Ibid. at para. 50.
[^14]: 2014 SCC 7.
[^15]: Ibid. at para. 56.
[^16]: Ibid. at paras. 49‑50.
[^17]: Reasons for Judgment, supra note 4 at paras. 42‑43 & 45.
[^18]: Ibid. at para. 35.
[^19]: Ibid. at para. 33.
[^20]: Alexis v. Toronto Police Service Board, 2009 ONCA 847.
[^21]: Duchesne v. St-Denis, 2012 ONCA 699.
[^22]: Reasons for Judgment, supra note 4 at paras. 37‑39.