CITATION: Loy-English v. The Ottawa Hospital et al., 2017 ONSC 6533
COURT FILE NO’s.: 15-62991, 16-68678, and 16-70930
DATE: 2017/11/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
INGELISE LOY-ENGLISH
Plaintiff
– and –
THE OTTAWA HOSPITAL, DR. HARINDER DHALIWAL, DR. DOE and NURSE DOE
Defendants
Tara Sweeny, counsel for Ingelise Loy-English
Stephen Cavanagh, counsel for Kevin Butler and Mann Lawyers LLP (moving parties)
Darryl Cruz, Dharshini Sinnadurai, counsel for Dr. Harinder Dhaliwal
Jacquie Dagher, counsel for The Ottawa Hospital
Steven Ronan, counsel for Dr. Marc Fournier, Dr. Erin Margaret Mary Kelly, Dr. John Morellato, Dr. Joseph Yelle, Dr. Patrick Sullivan, Dr. Sarika Amelia Mann aka Sarika Amelias Alisic, Dr. Jean-Claude Gauthier, Dr. Guy Hébert and “Dr. Doe”
HEARD: October 13, 2017 (Ottawa)
REASONS FOR decision
C.T. HACKLAND J.
Overview
[1] This is a motion to intervene in 3 medical negligence actions (the first, second and third medical actions), which arise out of medical care provided to Dr. Loy-English, the plaintiff in each of the actions, connected with an ERCP procedure (the medical procedure) carried out at the Ottawa Hospital in January of 2013.
[2] Dr. Loy-English’s solicitors in the first medical action were Kevin Butler of Mann Lawyers LLP, who are now seeking leave to intervene in all 3 medical actions. Dr. Loy-English subsequently retained new counsel to prosecute all 3 medical actions and she commenced a solicitor’s negligence action against Mr. Butler and Mann Lawyers LLP (“the solicitors”) based on the allegation that they negligently failed to sue the proper doctors within the applicable limitation period. The defendants in the second and third medical action are relying in part on limitation defences and their motion for judgment to strike the second and third medical actions as statute barred, is pending.
[3] The solicitors ask the court to be permitted to intervene with full party status in the three medical actions. Intervention in civil cases is governed by Rule 13.01 which provides:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
a) an interest in the subject matter of the proceeding
b) that the person may be adversely affected by a judgment in the proceeding; or
c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
[4] In her solicitors negligence action Dr. Loy-English claims that the solicitors, the moving parties, are liable to her in the event that her actions against the medical professionals turn out to be unsuccessful. The basis of her claim against the moving parties has been pleaded by Dr. Loy-English as follows:
a) they failed to conduct a proper review of Inge’s medical records in order to identify potential defendants;
b) they failed to perform all reasonable and necessary investigations to identify potential defendants in Inge’s action;
c) they failed to institute a claim against Drs. Hebert, Does (Emergency), Fournier, Kelly, Morellato, Yelle, Sullivan, Mann aka Alisic, Gauthier and Nurses Bloom and Nodolski when they knew or ought to have known that one or both contributed to the delay in treating Inge’s infection which developed after the ERCP; they failed to inform themselves as to who performed the ERCP that resulted in the perforated duodenum;
d) they failed to consult with the appropriate medical experts in a timely way when they knew or ought to have known that it was prudent to do so; they failed to provide particulars as against Dr. Doe in the main action with respect to the treatment received by Inge in the Emergency Room;
e) they failed to inform themselves as to the role played by the physicians, residents, fellows and nursing staff during the course of Inge’s treatment;
f) they failed to refer Inge’s file to counsel experiences in medical negligence claims when they knew or ought to have known that Inge’s case was too complicated for their level of experience; and
g) they failed to have in place a tickler system or a means by which to diarize limitation periods when they knew of ought to have known that is was prudent to do so.
[5] The moving parties submit that they have an interest in the three medical actions because essentially if Dr. Dhaliwal (the defendant in the first medical action which was commenced within the limitation period) has any joint liability for the plaintiff’s injuries then there will be no or minimal compensable loss that can be claimed in the solicitor’s action. Further, the solicitors argue that they have an interest in the limitation issue to be argued in the second and third medical actions and in the assessment of damages in the medical actions and, lastly in the disposition of any potential misnomer motion to substitute a named physician for “Dr. Doe”, named as a defendant in the first medical action.
[6] Counsel for the moving parties argues that as an intervener his clients should enjoy full rights of a party to the litigation, as permitted by Nordheimer J. in North American Financial Group Inc. v. Ontario Securities Commission, 2017 ONSC 2965.
[7] The moving parties argue that given the overlap of issues in the three medical actions and the solicitor’s negligence action, prejudice could occur to the solicitors from not interviewing in the underlying litigation – res judicata and/or issue estoppel principles could be applicable in the solicitors negligence action. Therefore, they submit it would be a denial of natural justice to preclude the solicitors from fully participating in the three medical actions.
[8] In a 2016 decision, the Court of Appeal was critical of a lawyer who had an interest in the outcome of the underlying litigation and who had failed to seek intervener status. In Meridian Credit Union Limited v. Baig, 2016 ONCA 150, a motion judge made an order in which he found that a lawyer had committed fraud. The lawyer was not a party to the action and had not participated in the motion leading to the finding against him. When he later sought to overturn the decision on that basis, the Court of Appeal dismissed the appeal, stating,
[53] In summary, the common law does not provide non-parties with the right to notice, to adduce evidence, or to make submissions whenever an adverse credibility finding may be made in judicial proceedings that involve them. Non parties are limited to whatever procedural rights they have under the rules.
[54] Rule 13.01 of the Rules of Civil Procedure provided the interveners with the right to intervene in this action as a party. After being served with a statement of claim in the appellant’s action against them, they would have been fully aware of this action and its potential impact on the claim against them. In spite of this, they chose not to intervene, adopting a wait-and-see approach.
[55] Similarly, rule 6 provided the interveners with the ability to consolidate the hearings on common issues of fact or law. Again, they chose not to pursue this option. Now, once a finding of fact with which they take issue has been made, they believe the result of a motion they knew about should be set aside.
[56] Non-parties should not be able to lurk in the shadows and then spring up to challenge a decision whenever the outcome-or findings of fact- may affect them in some manner they do not like. In my view, the statement of claim in the appellant’s action is the only notice to which the interveners were entitled. Once they were served with the claim, they knew about this action and had an option to intervene as a party.
[9] Counsel for the defendants in the three medical actions strongly oppose the moving parties’ intervention. They point out that the solicitors were not involved in any way in the plaintiff’s medical care. Therefore they could not have anything relevant or of assistance to say in the adjudication of the three medical actions in which they seek to intervene. They observe, in my view correctly, that there is no precedent for allowing former solicitors to intervene in these circumstances. In all the cases cited in argument, when a former solicitor has been permitted to intervene in a subsequent proceeding, the solicitor’s conduct in the prior proceedings has been placed in issue. They argue that it cannot be the case that solicitors who have allegedly missed a limitation period, could be allowed to intervene in the underlying tort action to, in effect, attempt to influence the liability outcome.
Analysis
This court has discretion to grant intervenor status. This is alluded to in subsection (2) of Rule 13.01(2)
On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).
[10] In exercising its discretion to grant intervenor status, the court must consider the nature of the case, the issues that arise and the likelihood of the moving party making a useful contribution to the resolution of the matter without causing injustice to the immediate parties, Peel (Regional Municipality) v. Great Atlantic & Pacific Co., 1990 CanLII 6886 (ON CA), 1990 Carswell Ont. 393.
[11] In this case the solicitor had no involvement whatsoever in the medical care provided to his former client. He was retained after the relevant medical care was concluded. For that reason I agree with the submission that the solicitor could not have anything useful to contribute to an adjudication of the liability issues in the medical actions:
[12] Furthermore, in my view, real mischief could arise from the solicitor’s intervention. Pursuit of the solicitor’s agenda, particularly with full rights of participation could interfere with or undermine the presentation of the plaintiff’s case or it could introduce another quasi-plaintiff into the mix, to the detriment of the defendants. This has a real potential to complicate and prolong proceedings. In this regard I respectfully agree with the observations of Master Short in Whirlpool Canada Co, v. Chavila Holdings Limited, 2015 ONSC 2080 where he stated:
While it is theoretically possible to intervene in a purely private dispute, the cases indicate that the moving party faces a serious challenge.
Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. My reading of most other cases indicates that our courts have indicated the intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the costs and complexity of litigation, regardless of an agreement to limit submissions.
[13] Counsel for the moving parties expressed the concern that failure to intervene could subject the solicitors to adverse factual findings by way issue estoppel or res judicata principles. I am satisfied that would not be the case where, as here the solicitors had no involvement in the underlying medical care nor in the factual matrix surrounding Dr. Loy-English’s medical care. On that basis the recent decision of the Court of Appeal in Meridian Credit Union, can be distinguished.
[14] Courts have consistently held that the doctrine of res judicata does not apply in lawyer negligence cases following civil proceedings. D.J. Lange succinctly explains in The Doctrine of Res Judicata in Canada:
When a client sues the client’s litigation lawyer in negligence, courts have recognized that the subject matter of the first civil proceeding will be relitigated in the proceeding against the lawyer, and have accepted this fact on the basis that the second proceeding involves a different party, that is, the lawyer and involves a different goal, that is, not to determine whether the first trial was correct but to determine whether the lawyer fell below the requisite standard of care. Where there is an opportunity in the prior civil proceeding to raise the inadequacy of legal representation, the subsequent proceeding may be barred.
[15] The defendants argue that the moving parties interest in the three medical actions lies only in the court’s determination on the medical negligence issues and not the underlying subject matter – in other words their interest is only in the outcome and that is not sufficient to justify intervening in the proceedings.
[16] Two decisions support this analysis: see Finlayson v. Gmac Leaseco Limited, 2007 CanLII 4317 (ON SC), [2007] O.J. No. 597 and Goldentuler Estate v. Crosbie, 2016 ONSC 989. In Finlayson, a former solicitor faced with a missed limitation argument, was not permitted to intervene in the subsequent proceeding. Quinn J. reasoned that the former solicitor’s interest was only in the outcome of the matter but this did not amount to an interest in the subject matter. This analysis was followed in Goldentuler in which the former lawyer of the defendants in an action sought to intervene in default proceedings in the same matter. As in the present case the lawyer argued that damages assessed by the court would be applied as damages for which he may be found responsible in the solicitor’s negligence action against him. The lawyer’s intervention was refused by the court as he had no involvement in the underlying subject matter of the dispute, only in the outcome.
[17] However, counsel in the second and third medical actions are in agreement that the moving parties do have a direct interest in the pending motion for judgment on the limitation issues in these two actions. I agree that the moving parties shall be permitted to intervene in and fully participate in that motion and in any subsequent appeal.
[18] In summary, I exercise the courts discretion to refuse the moving parties leave to intervene in the three medical actions, primarily because they were not involved in the plaintiff’s medical care and cannot therefore contribute to the proceeding and there is potential prejudice to the existing parties in permitting intervention, other than in relation to the pending limitations motion.
[19] If the defendants in the medical actions wish to seek costs of this motion, they are to submit a brief submission within 14 days of the release of these reasons and the moving parties may respond within 14 days of receiving the defendant’s submission.
Mr. Justice C.T. Hackland
Released: November 1, 2017
CITATION: Loy-English v. The Ottawa Hospital et al., 2017 ONSC 6533
COURT FILE NO.: 15-62991
DATE: 2017/11/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
INGELISE LOY-ENGLISH
Plaintiff
– and –
THE OTTAWA HOSPITAL, DR. HARINDER DHALIWAL, DR. DOE and NURSE DOE
Defendants
REASONS FOR decision
Hackland J.
Released: November 1, 2017