Lyons Estate v. Dr. Freeman et al., 2017 ONSC 533
CITATION: Lyons Estate v. Dr. Freeman et al., 2017 ONSC 533
COURT FILE NO.: 10-48566
DATE: 2017/01/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Laura Bond, Administrator for the Estate of Robert Lyons
Plaintiff
– and –
Dr. Joel B. Freeman, Dr. Robert John Fairfull-Smith, Dr. Jane Doe, Dr. John Doe, and The Ottawa Hospital – General Campus
Defendants
Thomas P. Connolly and Joseph Y. Obagi, for the Plaintiff
Heather J. Williams and Sarah Mahoney, for the Defendants, Drs. Freeman and Fairfull-Smith
HEARD: Friday, January 20, 2017
RULING
Motion No. 1 – Objection to Defendants’ Opening
Ruling No. 1 – Excerpt from Defendants’ Pre-trial Conference Memorandum
CORTHORN J.
[1] This Ruling is in follow up to the order made on Friday, January 20, 2017 on the terms set out in paragraph 19 below. When the order was communicated to the parties, I advised that I would provide written reasons.
Introduction
[2] The plaintiff raises an objection to the opening made on behalf of the defendants (the “Opening”). The objection is that the Opening includes a description of one or possibly two defences (the “Defences”) of which the plaintiff says it was not given notice prior to the commencement of trial. The plaintiff brings a motion seeking an order prohibiting the defendants from leading evidence and making submissions with respect to the Defences.
[3] In response, the defendants’ position is that the plaintiff had notice of the Defences. In any event, the defendants seek leave, if necessary, pursuant to rule 53.08 of the Rules of Civil Procedure[^1], to lead evidence on and make submissions with respect to the Defences.
[4] On their cross-motion, the defendants seek leave of the Court to refer to what I am advised is a three-page excerpt from the pre-trial conference memorandum filed on their behalf in the fall of 2016 (the “Excerpt”). The plaintiff does not object to the Excerpt being filed as evidence on the defendants’ cross-motion for leave, if necessary, to rely on the Defences.
[5] The parties are in agreement that rule 50.09 of the Rules of Civil Procedure governs the extent, if any at all, to which there may be disclosure of communication in the context of a pre-trial conference. That rule provides as follows:
No communication shall be made to the judge or officer presiding at the hearing of the proceeding or a motion or reference in the proceeding with respect to any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report until rule 50.08.
[6] The parties requested that I make a determination as to whether the Excerpt is to be filed as evidence on the cross-motion before they complete filing their respective materials on the cross-motion. The parties make this request based on the decision of the Court of Appeal in Bell Canada v. Olympia & York Developments.[^2]
[7] In Bell, the parties consented to an offer letter from Bell (as sent to Olympia and York) being put before the trial judge in the context of the assessment of costs following the trial. Reference was made in the offer letter to a particular settlement amount. That amount was described as “about a 17 % reduction from the pretrial judge’s suggested figure”.[^3]
[8] Writing for the Court of Appeal, Carthy J. concluded as follows:
Even if the parties consent to the admission of what occurred at a pre-trial conference, that evidence and what flowed from it remain irrelevant to trial considerations. The events were without prejudice when they occurred and should not be used as a basis for a subsequent assessment of the parties’ comparative reasonableness.[^4]
[9] The parties referred me to two additional cases: Marshall v. Watson Wyatt[^5] and Tondera v. Vukadinovic[^6]. Each of these cases is identified by at least one of the parties before me to support the conclusion that the ban on disclosure of evidence related to a pre-trial conference is not as broad as might be inferred from the decision in Bell.
[10] In Marshall, the Court of Appeal was critical of the trial judge for taking an “overly technical position”[^7] by refusing to permit counsel for the defendant to lead evidence and to cross-examine the plaintiff on an issue that had been:
a) The subject of questions posed on the examination for discovery of a representative of the defendant;
b) The subject of an undertaking given on that examination to advise in the event the defendant took a position contrary to that posited by the plaintiff; and
c) Addressed by the defendant in its pre-trial conference memorandum.
[11] Prior to the pre-trial conference the defendant did not advise the plaintiff that it would be taking a position contrary to that posited by the plaintiff when the question was posed and the undertaking given during the examination for discovery of the defendant’s representative. However, in its pre-trial conference memorandum, the defendant took such a contrary position. In addition, prior to the trial, the defendant provided the plaintiff with a summary of the evidence it anticipated calling. The evidence supported the contrary position as had been set out in the defendant’s pre-trial conference memorandum. The trial judge was only made aware of the first source of the information, not the second, as to the defendant’s change in position.
[12] It is clear from the decision in Marshall that the trial judge concluded that it was appropriate for her to consider the contents of the defendant’s pre-trial conference memorandum when making her ruling on the evidentiary issue.
[13] The Court of Appeal concluded that in the circumstances, the trial judge should have permitted defendant to lead evidence and to cross-examine on the basis of the position as set out in the defendant’s pre-trial conference memorandum. The Court of Appeal did not criticize the trial judge for considering the contents of the defendant’s pre-trial conference memorandum.
[14] In Tondera, the defendants sought to enforce a settlement, which they alleged was reached during a pre-trial conference on the basis of a verbal offer made by the plaintiff and accepted verbally on behalf of the defendants. Affidavits sworn by counsel for the defendants and for a third party were filed in support of the defendants’ motion. On the defendants’ motion to enforce the settlement, Mew J. considered rule 2.03 of the Rules of Civil Procedure. Rule 2.03 provides that, “[t]he court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.”
[15] Mew J. concluded that in the matter before him it was in the interests of justice “to permit evidence of communications relating to the making or acceptance of a settlement proposal, even if made at a pre-trial conference, to be given in evidence to establish the existence of a settlement agreement.”[^8]
[16] In Bell the ‘offence’ against the prohibition of communication with respect to a pre-trial conference was, in my view, was the disclosure of an opinion expressed by the judge presiding over the conference. It is easily understood why, even with the consent of the parties, such disclosure is not relevant to “trial considerations”[^9] (i.e., such as costs) and is prohibited.
[17] The disclosure requested by the parties before me is not of communication with or from the pre-trial conference judge. The disclosure requested is (a) of contents of a pre-trial conference memorandum; and (b) solely to address whether notice was given by the defendants of a theory they intend to advance at the trial of this action. I find that the disclosure requested by the parties before me is not of the same nature as the disclosure considered in Bell; it is in keeping with the disclosure requested and considered in Marshall.
[18] Relying as did Mew J. in Tondera on rule 2.03 of the Rules of Civil Procedure, I find that it is in the interests of justice that the defendants be permitted to file the Extract for the purpose of responding to the plaintiff’s motion and in support of their cross-motion, both related to the Defences.
[19] I therefore order as follows:
The defendants are granted leave to file the Excerpt with the Court for the purpose of responding to the plaintiff’s motion and in support of the defendants’ cross-motion, both related to the Defences.[^10]
The parties shall have until 6:00 p.m. on Sunday, January 22, 2017 to deliver electronically any additional statement of law and related authorities upon which they rely arising from the Excerpt filed with the Court.
Madam Justice Sylvia Corthorn
Date: January 24, 2017
CITATION: Lyons Estate v. Dr. Freeman et al., 2017 ONSC 533
COURT FILE NO.: 10-48566
DATE: 2017/01/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Laura Bond, Administrator for the Estate of Robert Lyons
Plaintiff
– and –
Dr. Joel B. Freeman, Dr. Robert John Fairfull-Smith, Dr. Jane Doe, Dr. John Doe, and The Ottawa Hospital – General Campus
Defendants
RULING ON MOTION AT TRIAL
Motion No. 1 – Objection to Defendants’ Opening
Ruling No. 1 – Excerpt from Defendants’ Pre-trial Conference Memorandum
Madam Justice Sylvia Corthorn
Released: January 24, 2017
[^1]: R.R.O. 1990, Reg. 194. [^2]: (1994), 1994 ONCA 239, 17 O.R. (3d) 135, 1994 CarswellOnt 520 (C.A.). [^3]: Bell, at para. 31. [^4]: Bell, at para. 36. [^5]: (2002), 2002 ONCA 13354, 57 O.R. (3d) 813, 2002 CarswellOnt 65 (C.A.). The plaintiff relies on this decision. [^6]: 2015 ONSC 5843, 2015 CarswellOnt 15088 (S.C.J.). The defendants rely on this decision. [^7]: Marshall, at para. 25. [^8]: Tondera, at para. 17. [^9]: Bell, (at page 7 of 8 in the copy of the decision provided). [^10]: The Excerpt was filed with the Court in a sealed envelope prior to this Ruling being released and is available for consideration when the Ruling on the motion and cross-motion arising from the Objection is made.