CITATION: Fletcher v. Matychuk et al., 2015 ONSC 4147
COURT FILE NO.: CV-12-450035
DATE: 20150625
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
LINDA FLETCHER
Plaintiff
-AND-
JULIANA MATYCHUK, HOWARD BIRCH, JANICE E. MITTON and DR. RICHARD LEVY
Defendants
BEFORE: F.L. Myers, J.
COUNSEL:
Richard E. Anka, Q.C. for the plaintiff
Kelly C. Tranquilli for the defendant Dr. Richard Levy
Ellen Brohm for the defendant Howard Birch
Susan Keenan for the Minister of Veterans Affairs and The Minister of National Defence
Deborah Berlach for the defendant Janice E. Mitton
John V. Kranjc for the defendant Juliana Matychuk
HEARD: June 24, 2015
AMENDED ENDORSEMENT
Background
[1] At a Case Conference on March 17, 2015, I determined to case manage summary judgment motions brought by each of the defendants Janice E. Mitton and Dr. Richard Levy. I scheduled many of the steps required for the hearing of the motions. The motions are scheduled to be heard on September 3, 2015.
[2] In accordance with my Endorsement of March 17, 2015, I was contacted by counsel for the plaintiff Linda Fletcher and for the defendant Howard Birch concerning production issues that potentially impact the schedule for the motion. Accordingly, I scheduled a further Case Conference that was held on June 24, 2015. Prior to the Case Conference, counsel agreed to exchange materials. All were on notice therefore, as contemplated by Rule 50.13(6), that I would be asked to resolve interlocutory production issues at the Case Conference.
The Action
[3] This action involves a claim by Ms Fletcher to obtain a share of the estate of her late father. She claims that her father’s spouse, the defendant, Juliana Matychuk, and the plaintiff’s former brother-in-law, Mr. Birch, conspired to usurp her father’s assets in 2009 and thereby to deprive her of her proper share of his bounty. The plaintiff sues as well her late father’s family doctor, Dr. Levy, and a nurse, Ms Mitton, who performed an assessment and confirmed the father’s capacity in 2009. They are sued for aiding the illicit plan by turning a blind eye and for negligence in 2009 respectively.
[4] Among the particulars of negligence pleaded by the plaintiff against the capacity assessor, Nurse Mitton, is that in conducting her capacity assessment in 2009, she only looked at the father’s medical records for nine months of 2009 that were provided to her by the referring lawyer. The plaintiff alleges that Nurse Mitton negligently failed to look at the father’s complex medical history prior to 2009, including, specifically, a period in 1970 when he was hospitalized for serious reactive depression and was treated with electroconvulsive (shock) therapy.
Dr. Levy’s Productions
[5] In his initial affidavit of documents, Dr. Levy’s counsel declined to produce clinical notes and records of the plaintiff’s deceased father before 2006 on the basis that three years of records was sufficient to determine whether Nurse Mitton looked at sufficient material to render a proper capacity assessment in 2009.
[6] The plaintiff moved for production of Dr. Levy’s entire clinical file including the file of his father who had also been the family doctor to Ms Fletcher’s father. The motion was determined by Master Abrams on July 13, 2006. At the motion, Dr. Levy’s counsel agreed to provide the medical file and records back two further years to 2004 and argued that this would be sufficient. The Master agreed but with two qualifications. First, she found that any records regarding the admission of the father to a hospital for shock therapy in 1969 or 1970, as expressly pleaded, ought to be produced. Second, she held:
And my ruling as to production from 2004 onwards is made without prejudice to the plaintiff’s right, on motion, to seek further production for an earlier period if there is anything in the documents produced that makes relevant […to the question of [the father’s] capacity and competency as at July 14/09 and following] the notes and records from an earlier period. [Emphasis added.]
[7] In addition, the Master granted the plaintiff’s request and ordered production of a non-party hospital’s file from 1969 to the date of the father’s death concerning, in particular, admissions for shock therapy. The Master also ordered the non-party Department of Veteran’s Affairs to produce all documents pertaining to the father’s disability and other benefits.
[8] Dr. Levy provided the documents as ordered and has augmented production as discussed below. Although the Master’s order was made in July 2013, the plaintiff did not take out the Master’s order so as to obtain documents from the hospital or the government until May 26, 2015. By that time, under the schedule set at the Case Conference in March, discoveries were completed.
[9] Prior to the examination for discovery of Dr. Levy, the plaintiff, her current spouse, and her counsel attended to review for several hours the original file of Dr. Levy from 2004. Through counsel, Dr. Levy advised that he had no documents concerning the shock therapy in 1969 or 1970. Prior to the Case Conference in March of this year, Dr. Levy recalled that he had kept a separate file in 2009 when he was approached by the plaintiff about her father at that time. He produced clinical notes that make some reference to the issue of the father’s capacity and the plaintiff’s concerns about Ms Matychuk’s alleged control over the father. The plaintiff also relies on other documents provided after the Master’s order that show Dr. Levy having a concern as to the plaintiff’s competency in 2009 and referring him for assessment. There are no surprises in those documents. Nurse Mitton is being sued precisely because of the capacity assessment that she provided at the request of counsel in 2009. Nothing in those documents “makes relevant […to the question of [the father’s] capacity and competency as at July 14/09 and following] the notes and records from an earlier period” (to quote the Master).
[10] The plaintiff alleges that counsel who attended before the Master, who is no longer with the firm representing Dr. Levy, represented to the Master that there were no documents in Dr. Levy’s file before 2004. Both the plaintiff and her spouse swear to hearing counsel make this representation and the plaintiff’s counsel said during discovery and before me that he heard this as well. Dr. Levy’s counsel has confirmed that there are indeed notes prior to 2004 although none is dated prior to 1976. The plaintiff argues that the counsel for Dr. Levy who attended before the Master misled the Master and them concerning the existence of pre-2004 documents and that the full medical file should therefore be produced.
[11] It is clear from the Master’s decision however, that she did not hear and was not misled by the statement alleged. She expressly found that documents prior to 2004 were not relevant to the capacity assessment that took place in 2009. Moreover, she expressly conditioned her order by saying that the plaintiff could return to court to seek pre-2004 documents if any subsequent productions that she ordered establish that pre-2004 documents are relevant. There was no purpose in making a relevancy determination about pre-2004 documents if there were no such documents. Nor would there have been any basis for the Master to allow for a motion for production of pre-2004 documents had she been misled to believe that no such documents existed. It is apparent that the Master did not hear or act upon the words that the plaintiff says were spoken.
[12] The plaintiff then argues that the piecemeal production of a few late documents by Dr. Levy should lead to an order that his entire file be produced in case documents have been altered or edited. If irrelevant documents have been altered or edited is no ground for ordering them produced. More fundamentally however, there is no basis at all for any such innuendo against Dr. Levy or his counsel and I decline to pay the unsupported suggestion of wrongdoing any heed.
Production from the Government
[13] The plaintiff also seeks an order for production from the federal government of its entire file but specifically limited to documents pertaining to the plaintiff’s late father “having been administered electro shock treatments...[in 1969 or 1970].” The government filed affidavit evidence attesting to having no documents that meet that description. The plaintiff was not able to say why any other documents might be relevant except to argue that the government must have more to justify the spousal pension that it is paying to Ms Matychuk. The plaintiff already has an order requiring production of pension documentation. As noted above, she sat on that order for two years until recently. Counsel’s incredulity concerning the lack of production of recent documents about the father’s pension when he has only just served the order requiring production of those materials has no bearing on the existence or non-existence of documents concerning shock therapy in 1969 or 1970. Without competing evidence or convincing cross-examination, there is no basis to undermine the evidence of people who have looked at the files and confirm that there are no documents of the type sought by the plaintiff.
Outcome on Production Sought by the Plaintiff
[14] The plaintiff has brought serious allegations against independent professionals who have moved for summary judgment. The plaintiff is fishing for documents of limited relevancy at best. The plaintiff has specifically pleaded that Nurse Mitton ought to have considered the father’s shock therapy from 1969 or 1970. Absent that pleading and in light of the expert evidence tendered, it is not at all clear that the events of 30 years prior to the capacity assessment would be at all relevant to a review of Nurse Mitton’s conduct.
[15] The principle of proportionality also has a role to play. There has to be a limit on production requests. In considering such requests, Rule 29.2.03(1) instructs the court to balance a number of factors including: the time involved in answering the question, the cost of responding, whether there may be undue prejudice in responding, whether requiring a response might unduly interfere with the orderly progress of the action, and whether the information is readily available elsewhere.
[16] In this case, the plaintiff has had an order in hand for two years entitling her to the original file from the hospital at which her father is alleged to have undergone his shock therapy. Dr. Levy testifies that he has no such documents. Neither does the government. Why the plaintiff waited to just a few weeks ago to take out and try to enforce the order is not in evidence. But it is clear that she has and has had available to her whatever documents may exist concerning the shock therapy treatment at the facility that administered the treatment. Moreover, the lack of documents in the files of Dr. Levy and the government concerning the one matter of possible relevancy from that time period does not make any other medical evidence from or before then relevant. In no sense has the Master’s condition for bringing a further motion been met.
[17] Moreover, fishing based on bald and unsupportable allegations of wrongdoing against a party and his counsel do not provide a basis to interfere with the summary judgment motions as scheduled. The motions are not urgent. However, every case is to be decided as efficiently as possible. The parties deserve that. Delay for insufficient grounds is itself prejudicial. Delay is the breeding ground for unnecessary proceedings and further unproductive email exchanges. Idle hands are the devil’s tool. The purpose of case managing a motion is to keep the parties moving on track toward a scheduled, efficient, proportional hearing that is as affordable as circumstances allow. Absent good grounds, schedules are to be adhered to so as to avoid delay and to keep the parties focused on the tasks at hand without inviting unnecessary diversions.
[18] It follows that the plaintiff’s motions are dismissed.
The Plaintiff’s Refusal
[19] Mr. Birch also moved before me on a refusal made by the plaintiff. The plaintiff pleads in para. 2 of the statement of claim that her former brother-in-law is an “expert in …wiretapping, surveillance, espionage and terrorism.” She believes that he tapped her phone as part of the conspiracy with Ms Matychuk. The plaintiff testified on discovery that one night she thought that Mr. Birch was in her backyard dismantling the bug that he planted. She called Bell Canada who attended at her house. The plaintiff has refused the request made by counsel to Mr. Birch that she contact Bell Canada to advise of the date of the attendance and to seek its file.
[20] Parties’ obligations to inform themselves and make reasonable inquiries for discovery are well understood. However the plaintiff denies the relevancy of the information and does not see why she should be burdened with the inquiry when Mr. Birch can bring a motion for non-party production against Bell Canada himself. It is apparent that Bell Canada could not provide Mr. Birch with information about Ms Fletcher’s account. What she should be able to obtain with a telephone call, Mr. Birch would be required to bring a motion to obtain.
[21] I should note that under my March 17, 2015 endorsement, it was open to the defendants Matychuk and Birch to join in their own motions for summary judgment after discovery and they have done so. It is apparent to me that the burden on the issue of the alleged conspiracy and proof of wiretapping is on the plaintiff. As she has refused to seek the documents from Bell Canada, she should not be able to use them later if they turn out to be helpful to her case. See Rule 31.07(2). Moreover, the plaintiff’s unwillingness to make a telephone call may well amount to a basis for drawing an adverse inference and/or undermine the credibility of any allegation that she tries to make as she has the date of the alleged attendance available to her and chooses to decline to obtain it. As to whether Bell documents might or might not confirm that the plaintiff’s telephone line was hacked, that is mere supposition and fishing by Mr. Birch. Balancing the factors in Rule 29.2.03(1) in my view, there is minimal relevancy in the document and perhaps as much or more relevancy in the plaintiff’s refusal to look for it. The proportional outcome is to keep moving forward to the hearing of the motions. The issues are clear. The plaintiff’s evidence is largely conjectural at best. Knowing the date of a Bell Canada attendance is of minimal import and is outweighed by the issue of proportionality and affordability especially in light of the alternative arguments available to Mr. Birch.
[22] Mr. Birch’s motion is therefore dismissed.
Scheduling
[23] Finally, the plaintiff asks for an extension of the time provided for responding material in the March 17 Endorsement. For reasons that are not explained, the plaintiff’s counsel has not yet started on the responding materials for the two motions that have been outstanding for several months. However, there are now two further motions. All involve the same principal denials and cast the burden on the plaintiff to prove that there is a serious issue requiring a trial in this action. She needs only tell the same story once. However, counsel says he needs more time and that can be accommodated without moving the date of the hearing. Therefore, the plaintiff’s responding motion material shall be delivered by July 31, 2015. The plaintiff’s counsel is directed to advise all other counsel by July 17, 2015 of the identities of all affiants whose affidavits he proposes to deliver and the names of all adverse witnesses whom he wishes to cross-examine, if any. In light of the lengthy discoveries that have already been held, cross-examinations by all parties should be limited. By July 31, 2015, there should also be a fixed schedule agreed upon among all counsel for cross-examinations in August. I can hear the parties during the week of August 3, 2015 to assist with scheduling if necessary. However I remind counsel of the importance of cooperation in matters of scheduling as it is all of our duties to ensure a fair hearing process for all parties. If necessary, I may be contacted under Rule 1.09 to set a date for a conference call or hearing in the week of August 3, 2015.
[24] Any defendants seeking costs may submit no more than three (3) pages of submissions and a Costs Outline to me by July 10, 2015. The plaintiff may deliver no more than five (5) pages in response and shall deliver her own Costs Outline by July 31, 2015. There will be no costs of Mr. Birch’s motion. The plaintiff filed no material or case law in response. Moreover, the motion was denied due to proportionality and not due to the propriety of the plaintiff’s refusal.
F.L. Myers J.
Date: June 25, 2015