SUPERIOR COURT OF JUSTICE - ONTARIO

RE:

ABUDU IBN ADAM, MAY HYACENTH ABUDU,

IBRAHIM A.C. ABUDU (a minor by his litigation guardian, Abudu Ibn Adam), and THE ESTATE OF AMINATAWALLA NAPOGA CHIDINMA ABUDU (by the litigation administrator, Abudu Ibn Adam)

Plaintiffs

-AND-

CHRISTINE J. LEDESMA-CADHIT,

GLAXOSMITHKLINE INC.,

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, and

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendants

BEFORE: F.L. Myers J.

COUNSEL: Jasmine Ghosn for the plaintiff

Maureen Edwards for the defendant GLAXOSMITHKLINE INC.

Meredith Jones for the defendant Christine J. Ledesma-Cadhit

HEARD: May 12, 2015 by telephone

CASE CONFERENCE ENDORSEMENT

[1] This matter came before me originally for scheduling of a summary judgment motion at Civil Practice Court. The defendant Ledesma-Cadhit is bringing a motion to dismiss the medical malpractice case against her. The basis for the motion is that the defendant argues that the expert witness for the plaintiff is unqualified to give expert opinion evidence in court in Ontario so that there can be no serious issue to be tried that the defendant violated the applicable standard of care. I scheduled the motion and the exchange of materials. Counsel advised me that there was an issue among them concerning the production of witnesses for cross-examination. I scheduled a case conference telephone call to deal with that issue. In requiring the Case Conference, I gave notice to the parties that I might resolve the issue at the Case Conference under Rule 50.13(6).

[2] The defendant’s counsel wants to cross-examine the plaintiff’s expert on his report that was filed by affidavit of the expert. The purpose of the cross-examination is to show that the expert’s testimony cannot be sufficient to establish that there is a serious issue requiring a trial on medical malpractice.

[3] The plaintiff says that the defendant bears the burden on the motion and therefore, the defendant must put forward her experts first. The plaintiff’s counsel wants to cross-examine them. The defendant’s counsel says that the defendant does not intend to rely on its expert evidence as part of the motion. Rather, she thinks she can establish from cross-examination of the plaintiff’s expert that his evidence will be either inadmissible or given so little weight that the plaintiff will not be able to meet its burden at trial.

[4] There are many cases that say that a medical malpractice case can be dismissed on summary judgment where the plaintiff lacks an expert witness. The plaintiff’s lawyer says that she is relying on law that provides that malpractice issues in some cases are so clear that no expert evidence is required. She says however, that this action is at a very early stage. There has been no discovery as yet. Expert reports are not due for many months (or possibly years). If the case is to be decided summarily and the plaintiffs are at risk of having their action dismissed, simple farness requires that she be given a crack at the defendants’ experts to put the issue of the professional standard of care before the court fairly.

[5] The defendant responds that if her two expert witnesses have to cross-examined, then the benefit of affordability of the summary judgment motion will be lost.

[6] It is also relevant to note that the defendant has served a motion record that includes the affidavit of a law clerk from her firm. The affidavit appends correspondence and also exhibits the two expert reports that the defendant has served. Counsel for the defendant says that she did not submit the expert reports as evidence of the truth of their contents. She did not submit affidavits from the experts. Rather, the reports were included as exhibits just to show that the defendant had obtained and served the expert reports on the plaintiff. She proposes to withdraw the affidavit and replace it with a further clerk’s affidavit without the two reports being included as exhibits.

Analysis

[7] The issue before me is in the context of scheduling a summary judgment motion in Civil Practice Court. I am trying to determine the most expeditious, affordable, and proportionate manner to resolve this case. Hryniak v. Mauldin 2014 SCC 7 has recognized expressly that summary judgment is a legitimate form of resolution that is an alternative to a civil trial. Justice Karakatsanis wrote that the rule has transformed summary judgment “from a means to weed out unmeritorious claims to a significant alternative model of adjudication.” Hryniak at 45. In my view, it is the preferable alternative in many, if not most cases. However, it must always be borne in mind that the process of adjudication whether by summary judgment or trial must be fair and just. “This cannot be compromised.” Hryniak at 23.

[8] It seems that in some cases, counsel may think that summary judgment can be used to avoid exposing warts in a case. It may be, for example, that a motion for summary judgment can be brought on a single issue so that other issues will not be heard. Where cases can be reduced to a single or a small number of issues that can be decided with a minimum of factual conflict, summary judgment can provide a very expeditious, affordable and proportionate process. A case may be decided on a single issue that avoids production of documents and oral discovery on a cascade of other issues that might have been very difficult and very expensive.

[9] But once an issue is identified as one for which summary judgment is being sought, the parties should expect a full exploration of that issue. Parties are to provide the other with fair opportunity to bring forward relevant evidence. Indeed it is counsels’ duty to ensure that issues are brought before the court for a fair hearing. Handscomb v TD Home and Auto Insurance, 2015 ONSC 2938 at paras. 10 and 11. In that regard, affidavits from counsel or firm members are typically inapt for summary judgment. Although there may be times where the only evidence is just laying out correspondence among counsel, where a staff affidavit may be more acceptable. Examinations of witnesses can be held as of right simply by serving a summons to witness under Rule 39.03. Setting aside a summons is difficult under Re Canada Metal Co and Heap (1975), 1975 675 (ON CA), 7 O.R. (2d) 185 (C.A.). The Rules of Civil Procedure give broad scope to counsel to put all relevant evidence before the court to ensure a fair airing of the issues. The court can exercise some control over the amount and scope of evidence and, especially, reign in cases of abuse, by using Case Conferences under Rule 50.13 and motions for directions under Rule 1.05 as expressly recognized in Hryniak at para. 70.

[10] It is not clear to me if this case is ripe for summary judgment. Even if the plaintiff’s proposed expert evidence is inadmissible, there are other issues in the case like informed consent. As noted above, the plaintiff’s counsel thinks that she may be able to bring this case within a class of cases that do not require expert evidence. In fact, she says that if the defendant withdraws her expert reports from the law clerk’s affidavit, the plaintiff may withdraw her expert’s affidavit. So the precise issues and the evidence to be relied upon are not clear as yet.

[11] It seems to me that there is no issue before me that is ripe for decision. I note simply that it has always been viewed as unfair to try to withdraw an affidavit to avoid cross-examination. In Guestlogix v. Hayter, 2010 ONSC 5570,

… it is necessary to re-iterate that it is a well-established principle that if a matter is raised in, or put in issue by, anaffidavit, the opposite party is entitled to cross-examine on the matter even if the matter is irrelevant and immaterial to the motion before the court: Wojick v. Wojick and Donger, 1971 538 (ON SC), [1971] 2 O.R. 687 (H.C.J.), at p. 688; Ferring Inc. v. Richmond Pharmaceuticals Inc. (1996), 90 O.A.C. 88 (Div. Ct.), at paras. 14 and 15.

[12] Counsel are encouraged to agree on the process going forward. The moving party’s issues should be identified and counsel should cooperate to ensure that each side has a full opportunity to explore the issues so as to ensure that a fair hearing is held. Whatever issue is in play, it will be fairly explored. All parties will be entitled to adduce evidence relevant to the issue. I do not need to rule on the availability of summons to witness. Rule 39.03 is clear. If a party fears that the other is not using the Rules appropriately or that costs are being run up disproportionately, Civil Practice Court is always available to discuss such issues with a judge on short notice.

________________________________ F.L. Myers J.

Date: May 12, 2015