Larusson v. Wein, 2016 ONSC 5391

CITATION: Larusson v. Wein, 2016 ONSC 5391

COURT FILE NO.: CV-13-112660-00

DATE: 20160826

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NANCY LARUSSON

Plaintiff

– and –

DAVID J. WEIN

Defendant

Rahul Kesarwani, for the Plaintiff

Valerie Wise, for the Defendant

HEARD: In Writing

REASONS FOR DECISION PART II

CHARNEY J.

Introduction

1On May 18, 2016, I released my reasons with respect to the defendant Dr. Wein’s motion for summary judgment in respect of the plaintiff’s claim for dental negligence (see: 2016 ONSC 3283). The primary ground for the defendant’s motion was that, at the time the motion was brought, the plaintiff, Ms. Larusson, had failed to deliver an expert report to support the claim. The motion was complicated by the fact that on the eve of the motion, more than two months past the deadline imposed by court order, the plaintiff did file an expert’s affidavit to support her claim.

2The defendant argued on several grounds that this affidavit was inadmissible. The most compelling ground, in my view, related to s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. C.18 (RHPA), which provides:

(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

3The plaintiff’s expert report was written by Dr. Gupta. Dr. Gupta’s report relies in turn on two reports provided by Dr. Ira Schecter dated August 14, 2015, and October 4, 2015. The defendant asserts that Dr. Schecter cannot properly provide reports in this proceeding because Dr. Schecter was the defendant’s College-appointed mentor/supervisor and this would infringe s. 36(3) of the RHPA. The defendant argued that Dr. Schecter did not provide his own affidavit because his evidence is based, at least in part, on his role as the defendant’s College-appointed mentor/supervisor. He collected evidence in that role, and he appears to be relying on that evidence in his October 4, 2015 report. Permitting the College-appointed mentor/supervisor to act as an expert witness in civil proceedings and give evidence of his participation in the College proceedings would contravene the purpose of s.36 (3) of the RHPA to keep College disciplinary proceedings separate from civil proceedings. The plaintiff ought not to be able to circumvent s. 36(3) of the RHPA by having another dentist rely on Dr. Schecter’s report to swear an affidavit.

4After reviewing the law in relation to s. 36 (3) of the RHPA, I decided that the motion record did not provide enough information about Dr. Schecter and his role as the College appointed mentor/supervisor to permit me to decide this legal issue. I held (at para. 40):

While the supervision itself is a decision imposed by the College (and is therefore covered by s.36(3)), I cannot determine from the material provided to me on this motion whether Dr. Schecter’s January 2011 treatment plan qualifies as a “report, document or thing prepared for or statement given at such a [College] proceeding” within the meaning of s. 36(3) of the RHPA. I do not know, for example, whether this treatment plan was “prepared for” or provided to the College or used at any College proceeding. I do not know from the record on this motion if Dr. Schechter was responsible for preparing reports for the College. I do not know when the mentoring process began or ended. Are the plaintiff’s visits to Dr. Schechter in May 2013 and October 1, 2015 related to the supervision/mentoring process? Neither party made submissions with respect to these questions and the significance of this issue was not apparent to me during the hearing.

5Since the Gupta affidavit was served just two weeks before the motion was argued, and the defendant did not have an opportunity to deal with it in his factum, I concluded that the defendant should be given a fair opportunity to make submissions on this issue, and concluded (at para. 42):

The issue relating to the application of s.36 (3) of the RHPA to the College’s supervision/mentoring process, Dr. Schechter’s January 2011 treatment plan and his report of October 4, 2015 is too important to decide on the basis of the record or submissions available on this motion. Accordingly, I am directing the parties to provide further written submissions with regard to this issue

6The parties have now filed additional written submissions with regard to the application of s.36 (3) of the RHPA to the College’s supervision/mentoring process, Dr. Schechter’s January 2011 treatment plan and his report of October 4, 2015.

The Court of Appeal’s Decision in Sanzone v. Schecter

7On June 30, 2016, the Ontario Court of Appeal released its decision in the case of Sanzone v. Schecter, 2016 ONCA 566. By coincidence, the defendant in that case, Dr. Ira Schecter, is the same Dr. Ira Schecter who was Dr. Wein’s college-appointed mentor/supervisor in the case before me. That coincidence has nothing to do with this case. That coincidence aside, the Court of Appeal’s decision in Sanzone v. Schecter changes everything.

8Rule 20.01(3) of the Rules of Civil Procedure provide:

(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

9In the present case the defendant did not provide any supporting affidavit or other evidence going to the merits of his defence in support of his motion for summary judgment. The only affidavits filed by the defendant were affidavits by a law clerk outlining the somewhat tortured history of this action. The defendant did not file his own affidavit explaining his treatment of the plaintiff, or file an affidavit from a qualified expert on the issue of standard of care. He took the position that, notwithstanding Rule 20.01(3), there is no obligation on the defendant in a medical malpractice case to file an expert affidavit to support a motion for summary judgment. He relied on two decisions for this position: the decision of Hourigan J. (as he then was) in Cassibo v. Bacso, 2010 ONSC 6435, and the decision of Akhtar J. in Sanzone v. Schecter, 2015 ONSC 4829.

10In Cassibo, Hourigan J. concluded (at para. 20) that there is no obligation on the defendant to file an expert report to support its motion for summary judgment since that would “effectively reverse the evidentiary burden” and lead to a difficult situation for defendants “who would be forced to obtain costly medical expert opinions to respond to a case which has not been fully articulated by the plaintiff”.

11I followed this paragraph in the Cassibo decision at para. 18 of my May 18, 2016 decision and permitted the defendant to proceed with his motion for summary judgment in the absence of any supporting affidavit.

12In Sanzone, the Ontario Court of Appeal expressly disagreed with para. 20 of the Cassibo decision. The Court of Appeal affirmed that Rule 20.01(3) requires a defendant to put its “best evidentiary foot forward” and file evidence with its motion for summary judgment. The court stated (at para. 24):

Rule 20.01(3) requires a defendant to “move with supporting affidavit material or other evidence” on a summary judgment motion. The respondent dentists, as the moving parties, bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201 (C.A.), at para. 16; Connerty v. Coles, 2012 ONSC 5218, [2012] O.J. No. 4313, at para. 9. They were not entitled to rely merely on the allegations in their statement of defence; the respondents were required to put their best evidentiary foot forward.

13In Sanzone the defendants did not file any expert evidence going to the merits of their defence to support their motion for summary judgment. The Court of Appeal held (at para. 25) that the motion judge in Sanzone erred in accepting the argument that the plaintiff’s case must be dismissed because the absence of any expert evidence in support of her claim demonstrated that no genuine issue requiring trial existed. The defendants in Sanzone relied on para. 20 of the decision in Cassibo. After quoting para. 20 of Hourigan J.’s decision in Cassibo, Brown J.A. stated (at paras. 30 -34, footnotes omitted):

30I would respectfully disagree with that conclusion. First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) – “a defendant may… move with supporting affidavit material or other evidence.” As explained in Connerty, at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.

31Second, the decision in Cassibo stands outside the overwhelming weight of the case law that when medical practitioners move for summary judgment to dismiss a malpractice action, they file evidence on the merits of their defence, including expert reports. That general practice is consistent with the evidentiary obligation borne by moving parties on summary judgment motions.

32In the present case, given the absence of evidence from the moving party dentists in support of their defence, the motion judge should have addressed the threshold question of whether the respondents had discharged their evidentiary obligation as moving parties under Rule 20 to put their best foot forward by adducing evidence on the merits. In my respectful view, the motion judge erred in failing to address that question.

33If the respondent dentists had filed evidence dealing with the merits of their defence in support of their summary judgment motion, it would have been open to the motion judge to treat the appellant’s failure to deliver a compliant expert’s report as a basis to dismiss her action. In light of the respondents’ failure to file any such evidence, it was not open to the motion judge to grant summary judgment. He erred in so doing.

34In my view, the respondent dentists attempted to use rule 20 as a means to unfairly accelerate the delivery of an expert’s report by the appellant. Rule 53.03(1) requires a party who intends to call an expert witness at trial to serve a report “not less than 90 days before the pre-trial conference.” In the present case, no pre-trial conference date had been set.

14Following the release of the Court of Appeal’s decision in Sanzone I invited counsel to make submissions with respect to the effect of paras. 30 to 34 of that decision on this motion.

15Counsel for the defendant has made a valiant effort to distinguish Sanzone, arguing that the Court of Appeal was concerned that the self-represented plaintiff’s ability to prosecute her case was imperilled by defendant’s use of Rule 20 to accelerate the delivery of an expert report. She argues that since the plaintiff in this case is not self-represented, the Court of Appeal’s special solicitude for self-represented litigants does not apply. Paragraph 23 of the Court of Appeal’s decision states:

[W]hen a represented party invokes the mechanisms available under the Rules of Civil Procedure to seek some relief against a self-represented party, the represented party must ensure it complies fully with its own obligations under the rules, and not use the rules to take unfair advantage of the self-represented litigant.

16I do not interpret this comment as a suggestion that a represented party bringing a summary judgment motion against another represented party is somehow exempt from full compliance with its obligations under the rules. The Court of Appeal makes clear that one of these is the onus on the moving party under Rule 20 to discharge his evidentiary obligation to put his best foot forward by adducing evidence on the merits. Health care professionals are not exempt from this requirement.

17Based on the Court of Appeal’s decision in Sanzone, I was wrong to rely on Cassibo in my May 18, 2016 reasons. The defendant in this case was the moving party and “bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed” (Sanzone at para. 24). He did not do so.

18Given that the defendant has not filed any evidence going to the merits of his defence and has therefore not complied with Rule 20.01(3), the defendant’s motion for summary judgment must be dismissed.

19Since the defendant has not discharged his evidentiary burden of proving no genuine issue for trial, the burden does not shift to the plaintiff to prove that her claim has a real chance of success. Accordingly, it is not necessary for me to consider the admissibility of the plaintiff’s Gupta affidavit. I will observe, however, for the benefit of counsel should this case continue, that there is considerable merit to the defendant’s position that s. 36(3) of the RHPA precludes the plaintiff from relying on any information provided by Dr. Schecter that was obtained or came into Dr. Schecter’s knowledge in the course of his duties as the College-appointed mentor/supervisor to Dr. Wein.

20Accordingly, this court Orders that:

a. The defendant’s motion for summary judgment is dismissed;

b. The paragraphs or sentences in the latest version of the Statement of Claim listed in paragraph 47 of my decision of May 18, 2016 are struck from the Statement of Claim and a Fresh as Amended Statement of Claim be issued.

21Both parties have requested that this proceeding be case managed. The parties are directed to write to the Regional Senior Justice requesting the appointment of a case management judge.

22In the final result, the defendant was successful with regard to the motion to strike paragraphs of the Statement of Claim, but unsuccessful on its motion for summary judgment. If the parties are unable to reach an agreement on costs within 25 days, the defendant may file costs submissions limited to 3 pages plus costs outline and any offers to settle. The plaintiff may file costs submissions on the same terms within 15 days thereafter.