ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-138
DATE: 2014-06-12
B E T W E E N:
Lisa Jean French, Courtney Moore, and Shaylin Moore, a minor by her Litigation Guardian Lisa Jean French
Mr. R. Somerleigh for the Plaintiff
Plaintiff
- and -
Barb Ellen Stachejczuk
Mr. M. Smith for the Defendant
Defendant
Ms. C. Brochu for Non-Party Witness Dr. D. Gleeson
HEARD: May 22, 2014
at Thunder Bay, Ontario
REASONS ON MOTION FOR LEAVE TO APPEAL
Mr. Justice J.S. Fregeau
Introduction
[1] The plaintiffs brought a motion pursuant to Rule 31.10 of the Rules of Civil Procedure (the “Rules”) seeking leave to examine Dr. Gleeson for discovery as a non-party witness. The motion was opposed by the defendant and Dr. Gleeson. The motion was heard by the Honourable Madam Justice Pierce on December 19, 2013.
[2] Pierce J. dismissed the plaintiffs’ motion for leave to examine Dr. Gleeson as a non-party witness. Pierce ordered that substantial indemnity costs were to be paid by the plaintiffs to both the defendant and the non-party, Dr. Gleeson
[3] The plaintiffs now seek leave to appeal the Order dismissing the motion for leave to examine the non-party as well as leave to appeal the Order as to costs, pursuant to s. 19(1)(b) of the Courts of Justice Act and Rule 62.02(4)(a) and (b) of the Rules.
Facts
[4] The plaintiffs’ action seeks damages arising from the alleged negligent care and treatment provided to the plaintiff Lisa French by the defendant Dr. Stachejczuk on August 16 and 17, 2010. The plaintiffs allege that Dr. Stachejczuk performed chiropractic adjustments to Ms. French’s cervical spine and that the adjustments caused her injuries.
[5] Ms. French’s regular chiropractor was Dr. Gleeson who practiced at the same Thunder Bay, Ontario chiropractic clinic as the defendant. The defendant treated Ms. French on August 16 and 17, 2010 while Dr. Gleeson was away from the office. The plaintiffs allege that the defendant performed two cervical spine adjustments on Ms. French on August 16, 2010 and a third adjustment on August 17, 2010.
[6] During the course of the litigation, the plaintiffs obtained a copy of the clinic’s notes and records for Ms. French. Ms. French’s chart contained the words “NO C/S ADJ”. The plaintiffs allege that this notation indicates that adjustments to Ms. French’s cervical spine were not to be performed.
[7] The plaintiffs allege that this notation was on Ms. French’s chart when Dr. Gleeson treated her on August 16 and 17, 2010 and that Dr. Gleeson either did not review the chart or adjusted Ms. French’s cervical spine in contravention of the chart notation.
[8] Ms. French was examined for discovery on November 15, 2012. Her evidence was that the notation would have been in her chart prior to her treatment by the defendant. The defendant was examined for discovery on November 16, 2012. The defendant acknowledged that Ms. French’s current chart contained this notation, that the notation was in Dr. Gleeson’s handwriting, that she did not know when the notation was added to Ms. French’s chart and that she did not see the notation prior to treating Ms. French.
[9] At the examination for discovery of Ms. French, counsel for the defendant asked plaintiffs’ counsel if he had any objection to her speaking to Dr. Gleeson directly to obtain her position regarding the timing of the notation. Plaintiffs’ counsel did not object, stating that, “There is no property in a witness. You can contact who you want.”
[10] In the plaintiffs’ motion material in support of their motion to examine Dr. Gleeson for discovery as a non-party witness, the plaintiffs indicated that they were seeking the following information from Dr. Gleeson:
When and why the words “NO C/S ADJ” were placed on Ms. French’s chart;
Did Dr. Gleeson ever speak to the defendant as to whether Ms. French’s chart noted “NO C/S ADJ” prior to August 16 and 17, 2010 and if so when;
If the words “NO C/S ADJ” were added to Ms. French’s chart after August 16 and 17, 2010, what was the reason and who did it.
[11] By letter dated August 21, 2013, defendant’s counsel wrote to plaintiffs’ counsel, advising that she had spoken directly to Dr. Gleeson who advised that this chart notation was made by Dr. Gleeson prior to August 16, 2010. In September 2013, counsel for Dr. Gleeson contacted plaintiffs’ counsel and offered to have Dr. Gleeson attend an all-party meeting to address the information being sought in the plaintiffs’ motion.
[12] This meeting took place shortly thereafter. The following information was provided to plaintiffs’ counsel by Dr. Gleeson:
That it was her belief that the notation was placed on Ms. French’s chart sometime in 2006 and that the note was written by her;
That she did not speak with the defendant with respect to the notation on Ms. French’s chart.
[13] Counsel for Dr. Gleeson ended this interview when plaintiffs’ counsel indicated that it was his intention to ask Dr. Gleeson why she had made this notation on Ms. French’s chart. Due to the refusal of Dr. Gleeson to provide information as to why she made this notation on Ms. French’s chart, plaintiffs’ counsel proceeded with the motion seeking leave to examine Dr. Gleeson for discovery as a non-party witness.
[14] In the affidavit material filed in support of their motion, the plaintiffs included material suggesting that the solicitor for the defendant and the solicitor for Dr. Gleeson were acting in an actual or perceived conflict of interest position. The plaintiffs’ affidavit material further suggested impropriety on the part of Dr. Gleeson and the defendant’s counsel in talking directly with another without the express written authorization of Ms. French.
[15] Pierce J. found that Dr. Gleeson had provided information that was responsive to the issue of the timing of Dr. Gleeson’s notation on Ms. French’s chart. Pierce J. found that plaintiffs’ counsel, in seeking information from Dr. Gleeson as to why she made the chart notation, was looking to go beyond the scope of the matters in the statement of claim. Pierce J. dismissed the plaintiffs’ motion because she found that the plaintiff had failed to establish that why Dr. Gleeson made the chart notation was relevant to a material issue.
[16] In respect to costs, Pierce J. found that the plaintiffs’ motion was “ill-considered” and that Dr. Gleeson had twice answered the plaintiffs’ questions prior to the plaintiff proceeding with the motion. Pierce J. also found that allegations of impropriety toward Dr. Gleeson, her counsel and counsel for the defendant had been made by plaintiffs’ in their factum and again in argument. These allegations were rejected by Pierce J. and found to be “without foundation”.
[17] Finding that this was “reprehensible conduct worthy of censure by costs”, Pierce J. awarded costs to both Dr. Gleeson and the defendant on a substantial indemnity basis in the amounts of $7,801.89 and $7,156.03 respectively.
The Test for Leave to Appeal to the Divisional Court
[18] Rule 62.02(4) provides two alternative bases on which leave to appeal to the Divisional Court may be granted, each one having two requirements. Rule 62.02(4) provides that leave to appeal shall not be granted unless,
(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.
Discussion
[19] The plaintiffs’ counsel did not make oral submissions requesting that leave to appeal be granted pursuant to Rule 62.02(4)(a)based on any conflicting decision by another judge or court in Ontario. I will therefore not address Rule 62.02(4)(a).
[20] On this leave motion, the plaintiffs submitted that there is good reason to doubt the correctness of the decision of Pierce J. on the Rule 31 motion and that the proposed appeal involves matters of significant public importance such that leave should be granted pursuant to Rule 62.02(4)(b).
[21] Plaintiffs’ counsel submitted that the reasons for Dr. Gleeson’s “NO C/S ADJ” notation on Ms. French’s chart are material to the plaintiffs’ cause of action as pleaded in the statement of claim and that the correctness of Pierce J.’s finding otherwise is open to serious debate.
[22] Plaintiffs’ counsel submits that the only allegation of negligence in the statement of claim is that the defendant ignored a chart restriction regarding the vulnerable spine of a chiropractic patient and performed spinal adjustments in direct contravention of the chart restriction, thereby causing injury to the Ms. French.
[23] Plaintiffs’ counsel submits that the plaintiffs bear the burden of proving on a balance of probabilities that the restriction was not only present on the chart on August 16, 2010, but that it was placed on Ms. French’s chart for valid medical reasons. Plaintiffs’ counsel submits that it is implicit throughout the statement of claim that the reason for the chart restriction is very much in issue.
[24] Plaintiffs’ counsel submits that Pierce J. fell into error on the Rule 31 motion by focussing on when the note was put on the chart and in holding that information as to why the notation was made on the chart “is beyond the scope of the matters pleaded.”
[25] Plaintiffs’ counsel also argued that the facts before Pierce J. on the Rule 31 motion included the issue of the scope of a treating physician’s fiduciary obligation in regard to providing patient information to a patient’s counsel when authorized by the patient to do so. Plaintiffs’ counsel submits that the issue of whether a plaintiff will have to resort to a Rule 31 motion to examine a treating physician to obtain information pertinent to their care is a matter of general importance that the Divisional Court should comment on.
[26] I am not persuaded that either of the conjunctive conditions for granting leave under Rule 62.02(4)(b) have been established.
[27] Dr. Gleeson has not been named in this action. Dr. Gleeson’s care of Ms. French, including any chart restrictions entered on Ms. French’s chart by Dr. Gleeson, is not in issue. Paragraph five of the amended statement of claim states that Dr. Gleeson had been caring for Ms. French since 1990 and that she kept a chart of her “treatment requirements and restrictions”. This paragraph further states that an MRI of Ms. French in 2006 showed “multilevel degeneration of the cervical spine…” Finally, paragraph five states that Dr. Gleeson then added “a large hand written notation on the front inside cover of the Plaintiff’s chart saying “NO C/S ADJ”. In response to the inquiries of plaintiffs’ counsel, it became known that this notation was added by Dr. Gleeson sometime in 2006.
[28] Paragraph 13 of the amended statement of claim alleges that Ms. French’s injuries were caused as a result of the negligence of the defendant, including that the defendant failed to note and follow the clear prohibition against cervical spine adjustments when she reviewed Ms. French’s chart on August 16, 2010. In paragraph 15 of the amended statement of claim, the plaintiffs allege that it was chiropractic negligence for the defendant to ignore the chart restriction and that the injuries allegedly suffered by Ms. French were caused or materially contributed to by cervical adjustments performed by the defendant in contravention of Ms. French’s chart restrictions.
[29] In the statement of defence, the defendant acknowledges that Ms. French’s “current” chart contains the notation suggested by the plaintiffs. The defendant pleads that she does not know when this notation was made. As a result of information provided by Dr. Gleeson all parties now accept that this notation was present on the chart prior to August 16, 2010.
[30] The defendant pleads that, in any event, “the defendant did not perform any adjustment to the Plaintiff’s cervical spine at any time.” Nowhere in the statement of defence is the medical validity of the notation put in issue. There was no suggestion in the material before Pierce J. that the medical validity of this chart entry was put in issue by the defendant on discovery.
[31] In essence, this is a medical malpractice action alleging that the defendant performed multiple spinal adjustments on Ms. French when she should not have because a chart restriction made by Ms. French’s treating chiropractor clearly said not to. The defendant acknowledges not seeing the note but claims not to have done any spinal adjustments on Ms. French.
[32] They when and the why as to the chart restriction were fully argued before Pierce J. She found that the when had been answered. Pierce J. reviewed the submissions on whether the why met the test under Rule 31.10. Pierce J. concluded that the test had not been met. Pierce J. was not persuaded that the reasons why the chart notation was made by Dr. Gleeson were relevant to a material issue in the action.
[33] I agree with Pierce J.’s analysis of the issue and her conclusion. In my opinion, the amended statement of claim is not broad enough to encompass the issue of why Dr. Gleeson made this chart notation. I do not find that the correctness of Pierce J.’s decision to dismiss the Plaintiffs’ Rule 31 motion is open to serious debate.
[34] The plaintiff also submitted that the issue of a treating physician’s fiduciary obligation relating to the voluntary release of patient information is of such general importance that leave to appeal should be granted.
[35] This issue was framed differently before Pierce J. On the Rule 31 motion, plaintiffs’ counsel alleged professional impropriety on the part of Dr. Gleeson for releasing information to the defendant’s counsel, suggesting this was done without Ms. French’s consent and after Dr. Gleeson had refused to speak to him directly. All such allegations were summarily dismissed by Pierce J. who stated that they were either non-issues or without foundation.
[36] I see no reason on the material before me to suggest that Pierce J. was incorrect in this conclusion. I am also not persuaded that this issue transcends the interests of the parties to this litigation.
[37] In regard to the substantive issues on the Rule 31 motion, the plaintiffs have failed to satisfy the test for granting leave to appeal as set out in Rule 62.02(4)(b). Leave is therefore denied.
[38] Leave to appeal the costs award of Pierce J. is also denied. A motions judge is granted extensive discretion as to whether costs should be awarded and, if so, on what scale and in what quantum. Pierce J. gave reasons for the award she made based on her review of the material, the contents of oral argument and her findings. I see no reason to doubt the correctness of the cost award made by Pierce J.
Costs
[39] The defendant and non-party are entitled to costs of this motion on a partial indemnity basis. Both filed their respective Costs Outlines and Bills of Costs at the conclusion of the motion. The plaintiff has not filed a Costs Outline or Bill of Costs.
[40] The defendant claims partial indemnity costs of $5,354.61 inclusive of disbursements and HST. The non-party Dr. Gleeson claims partial indemnity costs of $4,761.54, inclusive of disbursements and HST. I find both these requests to be fair and reasonable.
[41] The plaintiff shall pay costs to the defendant fixed at $5,354.61 and costs to the non-party Dr. Gleeson fixed at $4,761.54. All costs shall be paid within 30 days.
Mr. Justice J.S. Fregeau
Released: June 12, 2014
COURT FILE NO.: CV-12-138
DATE: 2014-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lisa Jean French, Courtney Moore, and Shaylin Moore, a minor by her Litigation Guardian Lisa Jean French
Plaintiff
- and –
Barb Ellen Stachejczuk
Defendant
REASONS ON MOTION FOR LEAVE TO APPEAL
Mr. Justice J.S. Fregeau
Released: June 12, 2014