CITATION: Endean v. St. Joseph’s General Hospital, 2016 ONSC 7587
COURT FILE NO.: CV-97-0701, CV-96-0342, CV-97-0271 & CV-14-0209
DATE: 2016-12-05
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: December 2, 2016
Mr. Justice F. Bruce Fitzpatrick
Oral Reasons On Mid-Trial Motion
[1] There are three discrete mid trial motions before the Court. The motions were heard on Friday December 2, 2016 which was the 38^th^ day of the trial, at the end of week number nine. On consent, the parties have agreed to bifurcate the trial. We are near the end of the liability portion of the trial evidence. The plaintiffs have closed their case and the defendants have one more witness to call before they close on the issue of liability.
[2] The three witnesses at issue are Mary Jean Ryder, Dr. James Colquhoun and Dr. John Derek Wyant. As we are mid trial and in the interests of moving matters along I advised the parties of my disposition of the motions concerning Mary Jean Ryder and Dr. Wyant by letter late Friday afternoon, December 2, 2016. I advised at that time I was still thinking about Dr. Colquhoun. I will now give my decision concerning Dr. Colquhoun. The following are my written reasons for the decisions concerning all three witnesses.
[3] Two of the motions are made by the plaintiffs, one by the defence. In my view, the defence motion is quite straightforward and was not seriously contested by the plaintiffs. Accordingly, there will be an order to go that the defence has leave to call Dr. John Derek Wyant. The timing as to when he is to be called will be discussed below.
[4] The two motions by the plaintiffs involve interesting procedural issues. Also the circumstances which led to the necessity of these motions is quite different for the two witnesses. The witnesses the plaintiffs seek to call are Mary Jean Ryder and Dr. Colquhoun. The plaintiffs cast their notice of motion concerning these two as a request for leave to issue summons to these persons as well as relying on the provisions of Rule 53.07(1) dealing with calling adverse witnesses at trial. Upon closer questioning at the opening of the motion, the plaintiffs indicated they seek to reopen their case in order to call Ms. Ryder and seek to call Dr. Colquhoun in reply, or in the alternative to reopen their case to allow him to be called as an adverse witness.
[5] A useful summary of the law concerning the reopening of a plaintiffs’ case before the defence has closed is contained in a decision of Justice E.B. Murray of the Ontario Court of Justice in the case Catholic Children’s Aid Society of Toronto v. M. R., [2014] O.J. No. 6531. At paragraph 17 of that decision Justice Murray states:
Factors which a court will consider in civil cases in determining whether to allow a plaintiff to re-open are set out below:
• At what stage of the trial is the motion made?
• Why was evidence not adduced during the party's case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party's attention, despite diligent earlier efforts?
• What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
• Can any prejudice be remedied in costs?
• How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?
• What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point? Does it merely "shore up" evidence led in chief?
• Is the proposed new evidence presumptively credible?
[6] In coming up with this list Justice Murray relied on Dvbongco-Rimardo Estate v. Lee, [1999] O.J. No. 5061 (S.C); Jaskiewicz v. Humber River Regional Hospital, [2000] O.J. No. 4178 (S.C.); J.R.I. Food Corp. v. Yonadam, [1993] O.J. No.1380 (Gen Div); Patterson v. Patterson, 2007 CanLII 26619 (ON SC), [2007] O.J. No. 1145 (S.C.); Kav v. Caverson, [2010] O.J. No. 5456 (S.C.); and Weeks v. O’Connor, 2009 PECA 13.
Position of the Parties regarding Mary Jean Ryder
Position of the Plaintiffs
[7] Ms. Ryder was employed by the defendant as the Director of Health records during the 1990’s. Apparently, she left employment with the hospital in 2000 as the result of restructuring. Her identity was unknown to counsel for the plaintiffs until November 28, 2016. During preparation for cross examination of the defendant’s expert witness Terry Fadelle, plaintiffs’ counsel came upon minutes of the hospital’s medical advisory committee dated October 22, 1991. These records had been entered in to evidence on consent but to that point had not been referred to by any witnesses in this trial. It is to be noted the documents entered on consent are voluminous and at this point all the exhibits are housed in 14 bankers boxes.
[8] These minutes noted that an “M.J. Ryder Director of Health Records made a presentation on the HMRI Executive Program”. Counsel for the plaintiffs immediately contacted counsel for the defence to inquire if this person was one and the same who was referenced in correspondence entered during the evidence given earlier by Carole Dowhos. Mrs. Dowhos had corresponded with a person “M.J.” on September 5 and 6, 1996 concerning whether or not the hospital had a list of persons on whom Doctors Tomlak, Orpana, and Dowhos had performed TMJ implant or explant surgeries. These letters were entered as Exhibit 61 and 62 at this trial.
[9] Prior to the trial, and at least as of July 14, 2016, counsel for the plaintiffs were making inquiries of counsel for the defence about circumstances leading to the production of the letters at Exhibit 61 and 62. Despite the general requisition during discovery for production of a list of all persons who might reasonably have knowledge of matters at issue, it appears the hospital was never directly asked on discovery for Ms. Ryder’s last name.
[10] Counsel for the plaintiffs argue these efforts indicate a diligent effort on their part to determine who “M.J.” was by way of explanation as to why she was not called as part of the plaintiffs’ case in chief.
[11] The plaintiffs now wish to reopen their case to call Ms. Ryder to talk about the state of the hospital’s records in the 1990’s. This is relevant to the plaintiffs claim for spoliation. The plaintiffs have made much in general arguments from time to time in this trial, (despite the fact the Court did not specifically invite such argument), about the existence of a list of 72 or 74 persons that the hospital may or may not have had at some relevant time of persons for whom TMJ surgery was performed by Drs. Tomlak, Dowhos and Orpana. According to a will say that was given to the defendant early this week, Ms. Ryder can confirm the existence of the list. I note that counsel for the defence objected to the will say being given to me during argument of this motion. I accepted that request and left it to counsel for the plaintiffs to outline in general terms what might be the expected evidence of Ms. Ryder.
[12] Counsel for the plaintiffs did not specifically address how the trial may be unduly lengthened by the calling of Ms. Ryder at this point. Further counsel for the plaintiffs did not address the issue of any prejudice the calling of Ms. Ryder might have on the defence.
[13] Counsel for the plaintiffs did note it was relatively easy for a computer savvy junior lawyer to locate Ms. Ryder once counsel knew her last name. She has now been interviewed and is prepared to come to court to give evidence.
Position of the Defence
[14] Counsel for the defence argues that to allow the plaintiffs to reopen now would be tantamount to allowing the plaintiffs to split their case. Obviously if the identity of Ms. Ryder was so important the plaintiffs could have directly asked for her name or pursued it more diligently well before now. The hospital also submits it will be prejudiced by allowing Ms. Ryder to testify. Although the hospital submits Ms. Ryder’s evidence will be largely irrelevant or covered by solicitor and client privilege, it argues that it could require the hospital to recall certain of its witnesses or may have changed the way certain of the plaintiffs’ witnesses were cross examined. This could unduly delay the trial. Counsel also points to the authorities that suggest the later in the day a motion to reopen is launched, the more narrow is the discretion that is to be exercised in favour of the moving party.
Decision Regarding M.J. Ryder
[15] In considering the tests for reopening a case as set out in Catholic Children’s Aid above, I find as follows:
[16] This motion comes mid trial. While I appreciate the liability portion is almost complete, there has been a good deal of latitude granted to counsel about how the trial has been conducted to date. Although I appreciate the degree of discretion narrows as the trial progresses, it is not so late in the process to say that my discretion cannot be exercised in favour of allowing the plaintiffs to reopen with respect to Ms. Ryder.
[17] I am of the view that the plaintiffs did not intentionally omit to lead the evidence of Ms. Ryder while their case was still open. As a side note, the letters at Exhibit 61 are addressed to “M.J. Med. Health Records”. In light of the spoliation claim of the plaintiffs, this should have been a bit of a clue as to in which department Ms. Ryder worked. Of course hind sight is 20/20. For the purposes of this particular motion, I can understand how counsel for the plaintiffs did not put two and two together until this late date. When she testified, Mrs. Dowhos could only remember this person as “M.J.” and could not recall her last name. Two hospital witnesses were also asked if they knew an “M.J.” Both Carl White and Joan Weckner testified they did remember her, but neither could not recall her last name.
[18] I am also of the view that calling Ms. Ryder will not cause prejudice to the defence. The argument to the effect that “if she was so important you should have thought of it earlier” cuts both ways. Clearly the plaintiffs were interested in M.J. for a long time well before this trial started. The defence not so much. However, she was a hospital employee albeit over 16 years ago, and inquiries could have been made prior to this trial commencing. Also, it is clear to me that questions about her involvement as arising from Exhibits 61 and 62 did not come as surprise to the hospital. I am not convinced the hospital cross examination strategy would have been materially affected by the evidence of Ms. Ryder particularly as the hospital asserts most of her evidence is irrelevant or will not be allowed in as it relates to solicitor/client and litigation privilege. We will cross the privilege bridge when we come to it. However I am not prepared at this point to accept that prejudice will be incurred which outweighs the probative value of what Ms. Ryder might have to say about the state of hospital records in light of the plaintiffs’ claims regarding spoliation.
[19] Regarding undue delay caused by calling Ms. Ryder, I do not think such arguments lie well in the mouth of either party at this point in the trial given the way it has progressed to date.
[20] I do think Ms. Ryder may have some important things to say about the state of the hospital records and perhaps her interchange with Carole Dowhos in 1996.
[21] For these reasons I am prepared to allow the plaintiffs to reopen their case to call Ms. Ryder. As she has not been employed by the hospital since 2000, I do not think the provisions of Rule 53.07(1) apply to her. That is to say, Mr. Legge may call her as his witness. However, he will not be allowed to lead her in chief unless it is on non-contentious matters. Mr. Wojciechowski will be entitled to cross examine her. Further, I will be restricting her testimony to issues of medical records at St. Joseph’s hospital, the state of those records during her employment with the hospital and her communications with the offices of the oral surgeons. I expect her evidence will be focused on the issues discussed during the motion. I will not allow any questions to her about circulation within the hospital of Health Canada, or FDA, or ECRI reports. This list of documents from third parties is by way of example and is not exhaustive. I believe that ground has been more than adequately ploughed by all counsel with various witnesses so far.
Positons of the Parties Regarding Dr. James Colquhoun
Position of the Plaintiffs
[22] Mr. Legge on behalf of the plaintiffs argues that he believed up until about a week ago that Dr. Colquhoun was going to be called as a defence witness. This is because it was clear that during the trial management phase of the proceedings counsel for the defence referred to his intentions to call him. In fact, Dr. Colquhoun showed up on the list of potential witnesses in the last version of the trial schedule prepared by the defence albeit with a question mark beside his name. Mr. Legge admits had he been abundantly cautious, he would have served a summons to witness on Dr. Colquhoun well before the trial commenced so as to put counsel for the defence to their election pursuant to Rule 53.07(1).
[23] Mr. Legge argues there are areas of evidence which could be given by Dr. Colquhoun which had not been touched upon during the read ins. The plaintiffs intend to question Dr. Colquhoun about the so called “silo issue” (an argument about various departments in the hospital not sharing information among themselves), the recall issue, issues relating to how Doctors Tomlak, Orpana and Dowhos came to be credentialed to do the TMJ surgeries at issue and how it was Dr. Tomlak was able to request hospital staff to order the Vitek implants at issue at a time when the plaintiffs apparently intend to argue he was not credentialed.
[24] Counsel for the plaintiffs did not specifically address how the trial may be unduly lengthened by the calling of Dr. Colquhoun at this point. Further counsel for the plaintiffs did not address the issue of any prejudice the calling of Dr. Colquhoun might have on the defence.
Position of the Defendant
[25] Mr. Wojciechowski admits he indicated during pretrial procedures and during the trial he might be calling Dr. Colquhoun as a witness. However, he made no such undertaking to the Court or to Mr. Legge. Given the way the trial has proceeded and the evidence contained in the read ins, the defence has made a simple tactical decision not to call Dr. Colquhoun. Counsel notes present plaintiffs’ counsel had the opportunity to discover Dr. Colquhoun in 2012 and it produced a 183 page transcript. The defence submits all relevant evidence is contained in the read ins and calling him is unnecessary. Counsel did not refer to any particular prejudice or undue delay that would be occasioned by calling Dr. Colquhoun at this point.
Decision Regarding Dr. Colquhoun
[26] The resolution of this particular motion turns on very specific facts as to how this trial has unfolded. Counsel have had a long history on this file. I believe they have made genuine efforts to cooperate to run this trial as efficiently as possible. There clearly has not been strict compliance with the Rules on certain issues to date by both parties. Also there has not been complete follow through on counsel’s representations to the Court about what they intend to do on a day to day basis on the part of both parties. This is not meant as a criticism. This is a very complex matter. I can understand how certain things have been overlooked in the melee of this litigation. It hasn’t been a tea party. Counsel are vigorously asserting their clients’ positions in accordance with the rules of professional conduct. Both counsel have their eyes fixed on the prize. I know sometimes details get missed.
[27] In this case, I accept the submission of counsel for the plaintiffs that he would have summonsed Dr. Colquhoun if he was taking a “belts and braces” (old central Ontario reference to being overly cautious) approach to the litigation. I do not intend to convey any sense that counsel for the defence has done anything improper here. This issue just evolved as it did. In my view it would not be just to deny the plaintiffs the opportunity to further question Dr. Colquhoun in light of the central position he held at the hospital at times material to matters in this litigation.
[28] In my view, justice requires that I put the parties in the position they would have been had Mr. Legge issued his summons to Dr. Colquhoun prior to trial. Mr. Wojciechowski is put to the election under Rule 53.07(1) regarding Dr. Colquhoun. He has until 9 a.m. December 7, 2016 to determine if wishes to maintain his position that he will not call Dr. Colquhoun as part of his case. If he changes his mind, he may call Dr. Colquhoun at the end of his case. If not, the plaintiffs may call him and the provisions of Rule 53.07(5) and (6) will apply when Mr. Legge calls Dr. Colquhoun.
[29] I advise counsel that I intend to be vigilant in controlling any further examination of Dr. Colquhoun. I expect he should not be asked to deal with areas about which his evidence has already been read in. Further, I trust he will not be subject to extensive questioning about things he did not see or did not do in the course of his working as a physician or chief of staff at St. Joseph’s hospital. For example I expect he will not be asked about the content of professional journals directed at oral surgeons, or about notices received from the Royal College of Dental Surgeons for Ontario by the oral surgeons.
[30] I note the evidence to date (Exhibit 28 tab 44 p. 3184) indicates Dr. Colquhoun was appointed chief of staff on July 1, 1991. I note as well that on the issue of recall of TMJ patients I have heard the evidence of Mr. White both in person and from a read in to the effect that the hospital did not do anything to deal with the TMJ patients until after litigation was commenced in 1994. I would hope Dr. Colquhoun will not be badgered by questioning on any issue which has had a thorough airing from the evidence of previous witnesses.
[31] I will leave it to Mr. Wojciechowski to see to it that Dr. Colquhoun attends court. There is no need for Mr. Legge to issue and serve a summons on him at this point. If Dr. Colquhoun has personal issues the Court will do its level best, as it has done for all witnesses to date, to accommodate his needs.
[32] Orders to go accordingly.
[33] Costs for these motions and any issues of addition costs occasioned by these three witnesses being called may be addressed in any submissions regarding costs following delivery of the decision concerning liability.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: December 5, 2016
CITATION: Endean v. St. Joseph’s General Hospital, 2016 ONSC 7587
COURT FILE NO.: CV-97-0701, CV-96-0342, CV-97-0271 & CV-14-0209
DATE: 2016-12-05
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
ORAL REASONS ON MID-TRIAL MOTION
Fitzpatrick J.
Released: December 5, 2016
/sab