SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-362334

MOTION HEARD: June 3 and 8, 2015

Re:

X,Y, their child B, a minor by his Litigation
Guardian X and A
Plaintiffs

v.

Industrial Alliance Insurance and Financial Services Inc.,
Claude R. Catellier and Lab One Canada Inc.
Defendants

BEFORE: Master Thomas Hawkins

APPEARANCES:
R. Douglas Elliott for moving plaintiffs
F (289) 293-0318

Sharon M. Addison for responding defendant
Lab One Canada Inc. and proposed defendant Lab One Inc.
F (416) 366-4183

REASONS FOR DECISION

Nature of Motion

[1] I have before me a motion within a motion. The motion before me seeks the following relief for the plaintiffs:

(a) an order under subrule 34.15(1) that Michael Citak (“Mr. Citak”), one of the lawyers for the defendant Lab One Canada Inc. and the proposed defendant Lab One Inc., answer three questions refused at his cross-examination of October 30, 2014 on his affidavits sworn September 23, 2014 in responses to the plaintiffs’ main motion; and

(b) an order under subrules 1.04(1) and 39.02(2) granting the plaintiffs leave to deliver in support of the plaintiffs’ main motion the following affidavits:

(i) the supplementary affidavit of Nanda Singh (a law clerk in the offices of the plaintiffs’ lawyers);

(ii) the supplementary affidavit of the plaintiff Y sworn May 4, 2015; and

(iii) the affidavit of Elena Mamay (one of the plaintiffs’ lawyers) sworn May 28, 2015.

[2] Although the affidavits of Ms. Singh and the plaintiff Y are described as supplementary affidavits, they have each sworn only one affidavit in connection with this motion.

[3] Plaintiffs X and Y are husband and wife with X being the wife and Y being the husband. A is their adult daughter and B is their minor son. They sue using pseudonyms rather than their real names because on September 11, 2008 they obtained an order from Janet Wilson J. permitting them to do so.

[4] The plaintiffs’ main motion is primarily one in which they seek leave to amend the statement of claim and add two defendants, one being Lab One Inc. The defendants Industrial Alliance Insurance and Financial Services Inc. (“Industrial Alliance”) and Claude R. Catellier take no position on this motion and the plaintiffs’ main motion.

Refused Questions

[5] I will deal first with the motion for an order that Mr. Citak answer three questions he refused to answer on his cross-examination. All three questions were objected to on the basis that they sought to infringe the solicitor/client confidential communications privilege. They were not refused on the ground of lack of relevance.

[6] One of the main issues in this action is who carried out tests on bodily fluid samples taken from the plaintiffs X and Y. In its statement of defence the defendant Lab One Canada Inc. has denied that it did any testing of the samples taken from the plaintiffs X and Y. That statement of defence does not state who did conduct tests on those samples.

[7] Questions 34 was the first refusal. In the leadup to that question Mr. Citak testified that one Connie Ballard told him that the testing in question was done by Lab One Inc. at its facilities in Lenexa, Kansas. Mr. Citak also testified that Ms. Ballard is a quality assurance manager at Lab One Inc.

[8] At question 34 examining counsel asked when Ms. Ballard provided this information to Mr. Citak. The objection that this question seeks to infringe the privilege against disclosure of confidential solicitor/client communications is without merit. This question does not seek disclosure of the substance of the Citak/Ballard conversation. Question 34 is not a question which seeks to infringe the privilege against disclosure of a lawyer’s work product. Question 34 is proper and should be answered.

[9] The second refused question is question 35. There examining counsel asked Mr. Citak if he was provided with any documents that substantiated the information which Ms. Ballard provided to him. This question is proper for the same reason that question 34 is proper. Question 35 should be answered. However, Mr. Citak need not disclose any document which constitutes a confidential lawyer/client communication or a lawyer’s work product.

[10] The third refused question is question 36. This question was answered at question 37.

Leave to Introduce New Evidence

[11] I now turn to the second aspect of this motion, namely the motion for leave to deliver the affidavits listed above in paragraph [1] in support of the plaintiffs’ main motion. In this connection I have made reference to subrules 1.04(1) and 39.02(2).

[12] Subrule 1.04(1) provides as follows.

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[13] Subrule 39.02(2) provides as follows.

A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[14] It is clear from the opening words of subrule 1.04(1) that it applies to the construction of subrule 39.02(2).

[15] The following are the alleged events that lead the plaintiffs to bring this motion for leave to deliver the new affidavits listed in paragraph [1] above.

[16] In 1998 both X and Y applied for life insurance with the defendant Industrial Alliance and provided blood samples for testing. Y was turned down because he was HIV positive. X was turned down because she might become HIV positive. She was not then HIV positive. At that time no one told X and Y their HIV status.

[17] In 2005 X and Y applied to a different underwriter for life insurance. On September 21, 2006 public health officials in Ottawa contacted Y and told him that he was HIV positive as revealed by testing of a blood sample he had provided in connection with his 2005 insurance application. Until September 21, 2006 Y neither knew nor suspected that he was HIV positive.

[18] Y immediately told his wife X that he was HIV positive. X promptly made arrangements to have herself tested for HIV. The test results as disclosed to X showed that she had become HIV positive. The plaintiffs allege that between 1998 and 2006 X became infected with HIV as a result of sexual contact with Y.

[19] The defendant Lab One Canada Inc. has raised a limitation of action defence in its statement of defence. This action is governed by the Limitations Act, 2002, S.O. 2002 c.24 Sched. B (the “Act”).

[20] Section 4 of the Act sets out the two year limitation period applicable to this action. Section 4 provides as follows.

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[21] Section 5 of the Act sets out the principles governing the discoverability doctrine. Section 5 provides as follows.

(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

(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).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless contrary in proved.

[22] During argument of the plaintiffs’ main motion (which argument is not yet completed) I expressed the following concern to plaintiffs’ counsel. Under subsection 5(2) of the Act, the plaintiffs are presumed to have known of the four matters listed in clause 5(1)(a) of the Act and thus to have discovered their claims on the day the act or omission on which their claims are based took place (here the failure of what is now the defendant Lab One Canada Inc. and the proposed defendant Lab One Inc. to advise X and Y that Y was HIV positive) unless the plaintiffs proved the contrary. Because there was no evidence before me as to what the plaintiffs knew from time to time before Sept. 21, 2006 about the HIV status of X and Y, there was no basis on which I could conclude that the plaintiffs neither knew nor ought they to have known that they had a claim against the proposed defendant Lab One Inc., until a point in time less than two years before the motion record in the main motion was served on Lab One Inc. in March 2013.

[23] On that state of the record I would have to dismiss the motion to add Lab One Inc. as a defendant because of the provisions of subsection 21(1) of the Act. This subsection provides as follows.

If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

[24] In one of his affidavits of September 23, 2014 Mr. Citak stated in part,

The facts relating to LabOne’s involvement with the testing of the samples and the allegations referenced above were known or ought to have been known by the plaintiffs in or about March, 2009, and therefore the proposed claims as against LabOne and the proposed allegations against LabOne Canada are statute barred;

[25] On October 30, 2014 Mr. Citak was cross-examined by plaintiffs’ counsel respecting these affidavits. The following exchange took place at question 25.

Q. Well, you say:

“…The facts relating to Lab One’s involvement with the testing of the samples were known or ought to have been known by the plaintiffs in or about March of 2009 …”

So my question to you is what facts were known or ought to have been known to the plaintiffs in March of 2009, and are you saying that it’s just the Statement of Defence is all they knew or ought to have known in March of 2009?

A. I think that’s a fair statement, yes.

MS. ADDISON: I think it goes to what they ought to have known, because that’s going to be legal argument, but certainly what information had been provided to them at that time is in the Statement of Defence.

[26] The statement of defence of Lab One Canada Inc. was delivered in March 2009. This statement of defence disclosed that Lab One Canada Inc. is a subsidiary of Lab One Inc. It alleges that in 1998 Lab One Canada Inc. did not do any testing of blood and urine samples and did not own or operate a laboratory testing facility. Further, the statement of defence of Lab One Canada Inc. alleges that it has no knowledge of the application made by X and Y to Industrial Alliance for life insurance and that it denies that it tested blood and urine samples of X and Y. However that statement of defence does not disclose who did conduct tests on bodily fluids from X and Y.

[27] Plaintiffs’ counsel thought that Mr. Citak’s answer to question 25 and in particular, his statement that all the plaintiffs knew or ought to have known in March 2009 was to be found in the statement of defence of Lab One Canada Inc., settled the issue of what the plaintiffs knew or ought to have known about who did testing on their bodily fluids.

[28] In retrospect, Mr. Citak’s answer to question 25 is significantly more helpful to the plaintiffs than I thought during argument up to and including June 3, 2015. I remained concerned about the lack of evidence from the plaintiffs concerning what they knew from time to time from 1998 forward about testing of their bodily fluids and the results of those tests.

[29] Plaintiffs’ counsel responded to the concerns I had expressed by bringing that part of the present motion in which the plaintiffs seek to introduce the three affidavits listed in paragraph [1] above.

[30] In First Capital Realty Inc. v. Centrecorp Management Services Inc., [2009] O.J. No. 4492 Janet Wilson J., who delivered the judgment of a three member panel of the Divisional Court, expressed herself as follows at paragraphs 9 and 10:

9 The case law under rule 39.02 confirms the criteria to consider in determining whether a party should be granted leave to respond to a matter raised on cross examination:

1. Is the evidence relevant;

2. Does the evidence respond to a matter raised on the cross-examination not necessarily raised for the first time;

3. Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs/terms/an adjournment

4. Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

10 Courts have said that even where the factors are not met, the court has residual discretion under rule 1.04 to permit the evidence if it is in the interests of justice to do so.

[31] In Nolan v. Canada (Attorney General), 1997 12213 (ON SC), [1997] O.J. No. 5421 (Ont. Ct. (Gen. Div.)) Quinn J. had the following to say about the application of subrule 39.02(2) to a motion for leave to introduce a new affidavit after cross-examination (at paragraph 18).

18 The restrictive interpretation of the rule reflected in the foregoing line of cases can lead to unfairness (by punishing a litigant for the oversight of his or her counsel) and injustice (by excluding evidence which might be of assistance to the court in arriving at a just determination of the matter in dispute). Obviously there are sound policy reasons why the barrage of affidavits, which unfortunately characterize many motions and applications, should be controlled; however, an unduly restrictive interpretation of rule 39.02(2) is an inappropriate solution.

[32] I will now summarise the content of each of the three affidavits which the plaintiffs seek to introduce.

[33] First there is the supplementary affidavit of Nanda Singh sworn April 27, 2015. This affidavit identifies the issues pertinent to the plaintiffs’ main motion for leave to amend the statement of claim and add Lab One Inc. as a defendant to this action, as those issues are set out in the statement of defence of the defendant Lab One Canada Inc., and in the affidavit of Carolyn Filgiano sworn March 21, 2013 and forming part of the plaintiffs’ original motion record for their motion returnable April 4, 2013. However, this affidavit does not contain argument as to how those issues should be resolved.

[34] The Singh affidavit also identifies the transcript of the cross-examination of Mr. Citak and the particular questions that are the subject of the refusals part of the plaintiffs’ motion, dealt with above in paragraphs [7] to [10].

[35] Next there is the supplementary affidavit of the plaintiff Y sworn May 4, 2015. In this affidavit Y states that in 2006 Industrial Alliance sent him and his wife (via their family physician) copies of their 1998 HIV test results. The plaintiff Y states that the copies clearly indicate on their face Lab One Canada Inc. with a Markham Ontario address and a 905 area code fax number. (These test results are also an exhibit to the affidavit of Carolyn Filgiano sworn March 21, 2013.) The plaintiff Y goes on to state that these 1998 test results were the only documents which he and the plaintiff X had in their possession when they commenced the present action indicating who had tested them. They had no document and still do not have any documents showing that they were tested by Lab One Inc.

[36] The third affidavit is that of Elena Mamay sworn May 18, 2015. This affidavit explains why the plaintiffs did not earlier file the affidavit of the plaintiff Y which the plaintiffs now seek to introduce. I have summarized that explanation in paragraphs [27] to [29] above.

[37] The Mamay affidavit also states that the plaintiffs have advised her that they have no evidence that an entity other than Lab One Canada Inc. had tested the plaintiff Y’s biological samples. (I believe that the failure to mention the plaintiff X’s samples at this point is an oversight.)

[38] In my view all three of these affidavits meet the test laid down in First Capital Realty, supra, in that they contain information relevant to the issues on the main motion for leave to amend the statement of claim and add Lab One Inc. as a defendant, they respond to an issue raised on the cross-examination of Mr. Citak (namely what the plaintiffs knew from time to time about who had tested their 1998 bodily fluid samples) to the extent that they deal with that subject, and the Mamay affidavit provides an explanation as to why the new information in these affidavits was not introduced at the outset.

[39] In response to this motion defence counsel served a responding motion record with an affidavit of Mr. Citak sworn June 1, 2015. That affidavit does not mention any prejudice to the defendants if I decide to admit the three affidavits in question. I therefore conclude that the defendants and proposed defendant Lab One Inc. will not suffer any non-compensable prejudice if I admit those affidavits.

[40] For all these reasons an order will issue granting the plaintiffs leave to introduce on the main motion for leave to amend the statement of claim and add Lab One Inc. as a defendant the three affidavits listed in paragraph [1(b)] above.

[41] I did not hear argument on whether, if I granted the plaintiffs leave to introduce new evidence, I should impose terms. If the parties cannot agree on the subject of terms, either side may write me requesting a telephone case conference at which time I will deal with the subject of terms.

[42] I will deal with the costs of this motion when I deal with the costs for the main motion.

_(original signed)

Date: September _28 , 2015
Master Thomas Hawkins