CITATION: Endean v. St. Joseph’s General Hospital, 2016 ONSC 7522
COURT FILE NO.: CV-97-0701, CV-96-0342, CV-97-0271 & CV-14-0209
DATE: 2016-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Court File No: CV-97-0701
Paulette M. Endean, Frank Willian Endean and Debbie Endean, Plaintiffs,
J. Legge and D. Steeves for the Plaintiffs
- and -
St. Joseph’s General Hospital, Defendant
Stephen J. Wojciechowski and Dawne A. Latta, for the Defendant
A N D B E T W E E N:
Court File No: CV-96-0342
Janet Hearsey and Leslie Hearsey, Plaintiffs,
- and -
St. Joseph’s General Hospital, Defendant
A N D B E T W E E N:
Andrew Karam, Plaintiff,
- and -
St. Joseph’s General Hospital, Defendant
A N D B E T W E E N:
J. Legge and D. Steeves for the Plaintiffs
Stephen J. Wojciechowski and Dawne A. Latta, for the Defendant
Court File No: CV-97-0271
J. Legge and D. Steeves for the Plaintiffs
Stephen J. Wojciechowski and Dawne A. Latta, for the Defendant
Court File No: CV-14-0209
Sherry Lind, Gino Deamicis, Lorraine Lind and Lauri Lind, Crystal Lind, Donald Deamicis, Daniel Deamicis, Plaintiffs,
- and -
St. Joseph’s General Hospital, Defendant
J. Legge and D. Steeves for the Plaintiffs
Stephen J. Wojciechowski and Dawne A. Latta, for the Defendant
HEARD: November 25, 2016
Mr. Justice F. Bruce Fitzpatrick
Oral Reasons On Motion
[1] This is a decision on a mid-trial motion in a complex medical malpractice case. The ruling comes at the beginning of week 9 of a trial that was originally scheduled for 12 weeks, which now has been extended to 15 weeks and likely will not finish in that time. This ruling engages a discussion of the operation of the provisions of Rule 31.11(6) and (7), the pretrial directions of a case management judge and pretrial orders of a case management judge that specifically deal with the conduct of this trial.
[2] The defendant seeks leave to introduce certain portions of transcripts of the discovery of Dr. William Dowhos from actions other than the one being presently tried before the Court. Dr. Dowhos died in 2011. He would have been a material fact witness at this trial. This engages the provisions of Rule 31.11(6) which states:
Where a person examined for discovery,
(a) has died;
(b) is unable to testify because of infirmity or illness;
(c) for any other sufficient reason cannot be compelled to attend at the trial; or
(d) refuses to take an oath or make an affirmation or to answer any proper question,
any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court. R.R.O. 1990, Reg. 194, r. 31.11 (6).
[3] Rule 31.11(7) states:
(7) In deciding whether to grant leave under subrule (6), the trial judge shall consider,
(a) the extent to which the person was cross-examined on the examination for discovery;
(b) the importance of the evidence in the proceeding;
(c) the general principle that evidence should be presented orally in court; and
(d) any other relevant factor. R.R.O. 1990, Reg. 194, r. 31.11 (7).
[4] Two transcripts of Dr. Dowhos’ evidence given on discovery have been admitted on consent. These were transcripts taken in December 2000, one of which expressly dealt with issues related to one of the four plaintiffs in this action.
[5] The defence now seeks to introduce two additional transcripts which I, for ease of reference, will refer to first as the “Cheryk transcript” and second as the “Tapper transcript”. The Cheryk transcript came from a discovery conducted in June 1998. The Tapper transcript comes from a discovery of Dr. Dowhos conducted in December 1997.
[6] In dealing with this matter the context of when various steps occurred in the pretrial litigation is highly relevant. This matter was case managed by now retired Justice Wilkins of Toronto. The trial records for all four actions before me contain Peirrenger orders made by him. The Peirrenger orders are all dated June 21, 2013. These orders clearly bind me in the conduct of this trial.
[7] For reasons not particularly relevant to the disposition of this motion, I did, finally, on Friday November 25, at the end of week eight of the trial, have the benefit of reviewing a number of redacted emails Justice Wilkins sent to counsel between August 8, 2013 and January 3 2014, pursuant to his role as case management judge. In my view, the directions as set out in the email were in the nature of pretrial court orders. I am sure had this matter been conducted in earlier times, pre email and the Internet, Justice Wilkins would have reduced all the directions to formal orders complete with the red seal.
[8] The use of email to express pretrial procedural orders of the Court in the context of managing a multi-party, multi-court location, multi-series of actions makes perfect sense to me. It was the most efficient, cost effective and fast way to deal with the procedural issues Justice Wilkins was facing. The emails I saw were redacted to eliminate the email submissions and responses from counsel. Having now read Justice Wilkins’ emails, I think it was appropriate to redact the emails from counsel. Justice Wilkins wrote in a clear and direct fashion. I had no trouble figuring out what was going on. I did not need to see counsels’ emails. However, in the end, the directions contained in these particular emails did not anywhere state that they were designed to bind me as trial judge. They were interim procedural orders designed to try and move the matter alone to either settlement or trial. This is to be contrasted with the language of the actual Peirrenger orders which I have indicated bind the conduct of the trial.
[9] In my view, despite the considerable period of time counsel for the plaintiff in particular spent dealing with the alleged deficiencies in production by the defendant, and ways that the hospital did not comply with the email directions of Justice Wilkins, I do not agree with the submission that the alleged conduct of the hospital relating to pretrial production, and I stress, alleged conduct, assists in the disposition of this motion.
[10] Rather what is significant are the circumstances under which the Peirrenger orders were made. Admittedly, I have been advised of virtually none of the background facts concerning the making of the Peirrenger orders save and except for two facts. I find these two facts are critical for the resolution of this particular motion.
[11] The first fact is the Peirrenger orders were made on consent. I can tell this because all the orders say “on consent”. The second fact is the plaintiffs’ affidavit material filed on this motion say they did not have the transcripts at that time, and even now, which the defendant seeks to introduce. The defence does not dispute this. Recently the defence tried to give the plaintiffs these transcripts and they were refused.
[12] The defendant points to a particular section in all of the Peirrenger orders which makes it abundantly clear that the Cheryk and Tapper transcripts should be allowed to be entered at trial; the wording of the section which appears in paragraph 6 (d) of all the orders is as follows:
6(d) All Discovery evidence provided by the Moving Defendants including all the Transcripts of the examinations of discovery conducted of the Moving Defendants in any file, action or proceeding which relates to the Vitek TMJ implant litigation shall be available for use at the Trial of this action.
[13] It seems plain that the words “all” and “any” have easily understood meanings. The defendants argue a Dowhos discovery in any TMJ litigation, including the Cheryk and Tapper actions should be available at this trial. However, I have accepted as fact that the plaintiffs did not have all the transcripts at issue at the time the order was made. The plaintiff argues the Peirrenger order could only relate to the fifteen actions in which Mr. Legge was counsel because he could not consent to the use of transcripts about which he did not know. I appreciate the defendants argument that the discoveries of Dr. Dowhos were conducted on a kind of “all for one and one for all” basis as he points to the opening line in one of the transcripts, Exhibit 85, p. 2 line 10 that has been accepted into evidence in this trial where counsel for the plaintiff (at the time) Mr. Pallett states:
Counsel, I believe we’ve agreed to do our best to deal with general questions which pertain to all of these actions against Dr. Dowhos as a single block at the commencement of this examination today. I confirm for the record that we have agreed with Mr. Lundy’s consent that this general examination of Dr. Dowhos will be admissible into evidence in each of the TMJ actions in which Dr. Dowhos is a party defendant.
[14] Having thought about that particular submission, I wonder why it is that the defendant would have to rely on any other transcript material as any further “general evidence” that would be highly relevant to this trial should have been obtained already if in fact Mr. Pallett did get it all for one and one for all when he did his two day examination of Dr. Dowhos in December 2000.
[15] Counsel for the defendant was quite candid in admitting that it may have been better had he specifically raised his intentions to introduce these Cheryk and Tapper transcripts at some point earlier in this litigation other than in his letter of September 24, 2016. I agree with that assessment.
[16] Given the fact that the need to file Dr. Dowhos’ evidence was likely known to the parties at least in 2012, it could have been something that was dealt with when Justice Wilkins made his Peirrenger orders had it been specifically brought to the attention of the plaintiffs. I suspect there were a lot of other things going on at the time which may have distracted counsel from this rather discrete issue. I accept the affidavit evidence of the plaintiffs to the effect that the defendant’s intention to file the Cheryk and Tapper transcripts was not discussed before any justice dealing with pretrial issues including myself until this trial had commenced.
[17] The plaintiffs also argue they would be irreparably prejudiced if these transcripts were admitted at this point. This is because their experts did not have the benefit of seeing these transcripts and we have now had the evidence of the other oral surgeons, who by the Peirrenger orders, have attended to give their evidence in person.
[18] I accept this argument of the plaintiffs as well. If the transcripts were admitted now, in light of the evidence submitted on behalf of the plaintiffs that they did not have these transcripts before the trial began, I cannot see how any prejudice could be adequately compensated by an award of costs or an adjournment of the trial.
[19] For all of these reasons the defence motion to introduce the Cheryk and Tapper transcripts is denied. I will deal with any costs consequences at the close of the liability section of this trial.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: November 27, 2016
CITATION: Endean v. St. Joseph’s General Hospital, 2016 ONSC 7522
COURT FILE NO.: CV-97-0701, CV-96-0342, CV-97-0271 & CV-14-0209
DATE: 2016-11-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CV-97-0701: Endean et al, Plaintiffs, vs. St. Joseph’s General Hospital, Defendant
CV-96-0341: Hearsey et al, Plaintiffs, vs. St. Joseph’s General Hospital, Defendant
CV-97-0271: Karam, Plaintiff, vs. St. Joseph’s General Hospital, Defendant
CV-14-0209: Lind et al, Plaintiffs, vs. St. Joseph’s General Hospital, Defendant
REASONS ON MOTION
Fitzpatrick J.
Released: November 27, 2016
/sab