Court File and Parties
COURT FILE NO.: CV-16-566791
DATE: 20180528
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Josee Blunt et al., Plaintiff
AND:
Dr. Sankar Vaidyanathan, Humber River regional Hospital and Jane Doe, Defendants
BEFORE: Carole J. Brown, J.
COUNSEL: D. Pacheco, for the Plaintiff
S. Zacharias, for the Defendants
HEARD: April 11, 2018
ENDORSEMENT
[1] The defendant moving party, Dr. Sankar Vaidyanathan, brings this motion pursuant to Rules 21 and 25 of the Rules of Civil Procedure to strike portions of the Statement of Claim relating to allegations against him of “past incompetence” and prior “patterns of substandard practice” on the ground that such claims are inherently prejudicial, will add significant complexity to the litigation and require a high standard for being advanced which, the defendant alleges, the plaintiffs have failed to meet.
[2] The action arises from the delivery of Kimberlee Blunt by Dr. Vaidyanathan on January 11, 2000, during which delivery it is alleged that she was injured by his actions. The alleged negligence is not contested. The only issue is the plaintiffs’ allegations of the defendant’s past incompetence and knowledge thereof which goes to their claim for punitive damages for breach of fiduciary duty.
[3] It is the position of the defendant that the plaintiffs’ pleading is deficient, lacking in particularity, does not comply with the Rules as regards pleading and should be struck.
[4] The plaintiffs have included in their motion materials a Fresh as Amended Statement of Claim. The defendant submits that the amended pleading is also deficient for the same reasons and should be struck.
[5] The defendant seeks to have struck from the Amended Statement of Claim paragraphs 21a, 23, 24a and 25a, and further seeks a declaration that the proposed amended claim fails to disclose a reasonable cause of action for breach of fiduciary duty.
The Positions of the Parties
The Position of the Defendant
[6] The Statement of Claim, as it is drafted, includes allegations of relevant deficiencies, past incompetence and a pattern of substandard practice on the part of the defendant. However, the defendant submits that the Statement of Claim pleads no material facts as to any prior specific patient in relation to whom the defendant is alleged to have displayed his relevant deficiencies, nor as to any specifics of “substandard practice”. The defendant submits that the allegations of “relevant deficiencies” and the claim for breach of fiduciary duty should be struck.
[7] The defendant relies, inter alia, on the cases of Wai-Ping and McNeil, as set forth below, which concerned pleadings of similar fact evidence.
[8] In Wai-Ping, 2005 CanLll 16602, para 13, the court observed, inter alia, as follows:
Similar fact evidence is presumptively inadmissible because it carries two types of unfair prejudice – reasoning prejudice (the concern that the trier of fact will be confused by the multiplicity of incidents and diverted from the real task of determining liability and damages on the pleated incident) and moral prejudice (the danger that the trier of fact may find a defendant liable not for what he did on this occasion but because he is a bad person). General propensity or disposition is not generally a legitimate basis for admitting similar facts because the evidence generally shows nothing more than a tendency to act badly and hence is not sufficiently probative. However, where the propensity is focused and specific to circumstances similar to the complained of activity, the probative value of the propensity may be sufficient to outweigh the prejudice. A high degree of probative value is required. The context in which the similar fact evidence is adduced is all important.
[9] In Williams v Wai-Ping, 2005 CanLll 16602 (Wai-Ping), the defendant sought to strike the pleadings pursuant to Rule 25.11 in 10 of 17 active lawsuits naming Dr. Wai-Ping, which themselves were “ a subset of some 200 filed or anticipated claims involving his medical treatment and care”. In the context of the motion, the court identified the 10 statements of claim and noted many striking similarities among the allegations regarding treatment, sufficient to meet the “system or scheme” element of the test for pleading similar facts regarding Dr. Wai-Ping’s alleged pattern of repetitive negligence.
[10] In the case of MacNeil v Humber River Regional Hospital, 2011 ONSC 669, para 51, the court found as follows:
Pleading of similar facts is only permissible if the following requiring requirements are met:
Such allegations are proper as long as the added complexity resulting therefrom does not outweigh the probative value;
Similar acts are not probative if there is not a sufficient degree of similarity; 3. The similarity must be probative without prolonged inquiry although inevitably the litigation process will be lengthened to some extent as a result of proper similar fact allegations;
The added complexity should not lead to undue oppression or unfairness;
If a system or scheme of conduct is alleged, the past similar acts must have sufficient common features to constitute the system or scheme.
[11] In the McNeil case, the plaintiffs advanced numerous allegations very similar to those impugned allegations in the subject Statement of Claim which are advanced to support claims of breach of fiduciary duty and punitive damages. In the McNeil case, Frank J struck the impugned similar fact allegations, setting forth her reasons at paragraphs 52 to 56. See also Woods v Jackiewicz, 2013 ONSC 519, para 3.
[12] It is the position of the moving party that the plaintiffs, in their Statement of Claim, have attempted to advance Wai-Ping style allegations, even using the phrase “relevant deficiencies” from the Wai-Ping pleading. The defendant submits, however, that the pleading in the case before this Court bears no comparison to that in Wai-Ping. It submits that this case resembles McNeil and Woods.
[13] The defendant argues that the similar fact allegations are, for the most part, lacking in particulars and do not demonstrate sufficient similarity. The defendant submits that no material facts are pleaded regarding any particular specific case in which the defendant was allegedly deficient in the areas alleged, including improper use of forceps, application of excessive force during delivery and failure to properly manage or identify shoulder dystocia. Accordingly, the defendant argues that the pleading is not sufficient to establish the degree of similarity necessary for the similar facts to have the probative value necessary to outweigh the prejudice resulting from the increased complexity that will be associated with such a pleading.
[14] The defendant submits that the plaintiffs’ broad and sweeping allegations, as they presently stand, lead to fishing expeditions and extensive prolongation of discovery. The defendant argues that, as pleadings define the issues in the litigation, a broad sweeping allegation regarding past undefined deficiencies would cause the discovery to go into the defendant’s entire obstetrical practice in order to prove the generalized allegation that he had “deficient labour and delivery, birthing and medical skills and abilities”, which would then have to be adjudicated upon by the court.
[15] As regards the plaintiff’s Amended Statement of Claim, included in the materials, and which the plaintiff seeks leave of the court to file, the defendant maintains that it still fails to meet the requirement to plead with specificity.
[16] In the Amended Statement of Claim, the plaintiff has removed allegations of past incompetence, a pattern of substandard practice, falsification of medical records, failing to make appropriate diagnoses, failing to recognize serious surgical and delivery complications, failure to implement appropriate birthing techniques, inappropriate prescription practices and failure to implement appropriate patient safety practices; the allegation that the defendant recklessly disregarded the advice of the hospital, experts in the field and his colleagues in relation to his relevant deficiencies, and it no longer uses the phrase “relevant deficiencies”.
[17] The defendant submits that, nevertheless, the original allegation that the defendant “knew or ought to have known that he had deficient labour and delivery, birthing and medical skills and abilities relevant to the care and treatment of the plaintiff’s… including: maintenance of accurate medical records, diagnosis and treatment of birthing complications, implementation of appropriate techniques to be utilized in birthing process” remains in the amended claim. The plaintiff continues to allege that the defendant should have known of his deficiencies due to his prior failure to recognize and appropriately manage obstetrical emergencies, that he was the subject of concerns and complaints raised to the Hospital authorities and the College of Physicians and Surgeons of Ontario (“College”) concerning his conduct and practice and was the subject of an investigation by the College including patient cases from September 1998 through September 2000 that involved 26 patients. There is nothing in the pleading to indicate that any of the patients received medical care from the defendant having any relevance to the subject allegations.
[18] In support of the claim for punitive damages, the defendant submits that the plaintiffs continue to allege that the defendant knew or ought to have known that he was incompetent and incapable of treating Josee and Kimberlee safely due to his incompetence, but treated them nevertheless. The defendant submits that this constitutes an allegation of intentional wrongdoing.
[19] The defendant submits that the issues are as follows:
Do the third to last sub-paragraphs of paragraph 21(a), paragraph 23, paragraph 24(a) and paragraph 25(a) of the Fresh as Amended Statement of Claim meet the applicable pleading requirements?
Do the proposed amendments disclose a reasonable cause of action for breach of fiduciary duty based on the concept that the defendant ought not to have provided medical treatment to the plaintiffs because of his alleged knowledge of deficient skills or incompetence?
[20] Unlike the case of Khan, relied upon by the plaintiff, below, this case does not involve the sufficiency of the pleading of allegedly negligent medical treatment. The issue is, rather, the fiduciary claim, which is based on the defendant’s medical care provided to third parties with whom the defendant allegedly had prior failures. The third parties are unidentified, as are the prior failures.
[21] In Wai Ping, the allegation that the doctor knew or ought to know that he was incompetent was based on a sufficient pleading of material facts regarding alleged past failures in performing the same or similar procedures, which is lacking in the subject claim.
[22] The defendant further submits that pursuant to Rule 25.06(8), where a claimant alleges inter alia misrepresentation or breach of trust, the pleading must contain full particulars, which was not done in the subject case. In this regard, the defendant relies on Balanyk v University of Toronto, 1999 CanLll 14918; Morrison v Partington, 2005 CanLll 26327 and Kozeya v Serpent River First Nation, 2007 CanLll 6236.
[23] The defendant maintains that the plaintiffs in their amended claim do not plead any material facts or particulars regarding any prior specific case in which the defendant was allegedly deficient in the same areas as the alleged negligence in this case, namely alleged improper use of forceps, application of excessive force during delivery, and failure to properly manage or identify shoulder dystocia. Here, the plaintiff’s allegations are that there were complaints against the defendant “concerning his conduct and practice”.
[24] As regards the allegations that the defendant was the subject of College investigations involving 26 patients, there is nothing to indicate the nature of these complaints or whether, as submitted by the defendant, they have any relevance or similarity to the allegations in the subject Amended Claim.
The Position of the Plaintiffs
[25] The Plaintiffs have brought a cross-motion to amend their Statement of Claim in order to provide particulars as to why it is alleged that the defendant knew or ought to have known of his incompetence; to plead additional material facts in support of the claim that he breached his fiduciary duty; to include pleadings to allege that he falsified a medical record and to plead reliance on the Public Hospitals Act, RSO 1990 c P 40, para 21(b)(vi).
[26] It is the position of the plaintiffs that the original Statement of Claim and the Fresh As Amended Statement of Claim do not plead impermissible similar fact evidence. Rather, they claim that the defendant knew or ought to have known of his own incompetence without alleging or pleading similar facts.
[27] As noted above, both parties fully argued this motion on the basis of the Fresh As Amended Statement of Claim.
[28] The plaintiffs allege that the defendant failed to recognize the obstetrical emergency known as shoulder dystocia, used excessive force in delivering the baby, failed to utilize standard maneuvers for shoulder dystocia and used forceps without consent of the patient. Further, the plaintiffs allege that the defendant breached his fiduciary duties in that he knew or ought to have known that he had deficient labour and delivery, birthing and medical skills relevant to the care and treatment of the plaintiffs and that he proceeded to treat them nevertheless. They allege that he should have known of his incompetence due to concerns and complaints raised to the Hospital and College involving 26 patients from September 1998 to September 2000. They further allege that he falsified or failed to accurately record information on medical records, failed to document the use of forceps and failed to document shoulder dystocia.
[29] The plaintiffs submit that in the context of a medical malpractice pleading, a pleading should not be struck for containing only limited material facts, as the defendants are the ones who would know what they did or did not do and why and when, with particularity. All that is required is sufficient material facts to permit the defendant to deliver a statement of defence: Khan (Litigation Guardian of) v Lee, 2014 ONCA 889, 2014 ONCA889 at paras 13, 18; Cadieux (Litigation Guardian of) v Cadieux, 2016 ONSC 4446 at para 30, 2016 CarswellOnt 12545. The plaintiff argues that it is permissible to plead speculative alternative theories of liability (Parris v Wiley 2016 ONSC 4778 at para 3, and submits that the pleading or part thereof should not be struck as being factually weak. The plaintiff submits that its Fresh As Amended Statement of Claim makes proper and tenable claims in negligence, breach of contract and breach of fiduciary duty, and that they have pled with the particularity available to them.
[30] It is the position of the plaintiff that the detailed particulars of any previous occurrences of misconduct or deficient conduct on the part of the defendant would constitute similar fact pleading of evidence and are not material facts of the causes of actions alleged. As such, they need not be pleaded. The plaintiff’s state that they are alleging the defendant’s previous knowledge is relevant to the exercise of the fiduciary duty, i.e. that the defendant knew or ought to have known that he was not competent to treat patients such as the plaintiffs given his previous failures to recognize similar situations and deal with them properly and his alleged knowledge of his own incompetence. The plaintiffs maintain that they have particularized the circumstances of the defendant’s knowledge and have provided sufficient particularity of the material facts necessary to support their allegations of a breach of fiduciary duty.
[31] It is the position of the plaintiffs that the amended claim meets all of the requirements of proper pleading and that they should be granted leave to amend their claim.
The Law
[32] In assessing the adequacy of pleadings under Rules 21.01, 25.06 and 25.11, the court must bear in mind their purposes. These purposes are:
To define clearly and precisely the questions and controversy between the litigants;
To give fair notice of the precise case which is required to be met and precise remedies sought; and
To assist the court in its investigation of the truth of the allegations made.
[33] The purpose of pleadings is to define the issues for the parties and for the court. The pleadings govern the trial and the interlocutory proceedings. Pleadings play a key role in defining the scope of recovery.
[34] A case properly pleaded permits an efficient use of judicial resources and the parties resources. Bad pleadings perform the opposite function. They are instruments of potential mischief in the litigation process.
[35] The essence of a properly drawn pleading is clarity and disclosure. With respect to a statement of claim in particular, the defendant must know from the face of the record precisely what case is to be met. The defendant must not be left to speculate or to guess the particulars of the case alleged against it and the remedy sought. Material facts must be pleaded with sufficient certainty to enable the defendant and the court at trial to identify the issues to be decided. The degree of detail and precision required can be determined only on a case-by-case basis.
Rule 21.01
[36] Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defense, and the judge may make an order or grant judgment accordingly.
[37] The purpose of Rule 21.01(1)(b) is to enable a judge to strike from the pleadings, claims and defenses or portions thereof that do not, in law, have a chance of succeeding. While a court will be reluctant to strike out a claim, the claim should be struck where it is clear and obvious that no cause of action is disclosed. The pleading should not be struck if there is a chance of success. In determining whether a claim should be struck, the court is required to give a generous reading to the pleadings. The issue is whether, assuming the alleged facts to be true, the action is nevertheless certain to fail.
[38] No evidence is admissible on a motion made pursuant to Rule 21.01(1)(a) or (b).
[39] The novelty of the cause of action will not militate against the party pleading. A novel claim of negligence should not be struck for absence of reasonable cause unless it can be established that the claim is clearly unsustainable.
Rule 25
[40] Rule 25.06(1) provides that every pleading is required to contain a concise statement of the material facts on which the party relies, but not the evidence by which those facts are to be proven.
[41] A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded. A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative. Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. The defendants are entitled to know with particularity the case they have to meet.
[42] Pursuant to Rule 25.06(1), disclosure of material facts must be made. These include facts that establish the constituent elements of the claim or defence. The material facts are to be stated concisely, i.e. set out with precision and clarity. The plaintiff is required to plead facts capable of supporting each constituent element of the cause of action raised. Rule 25.06 mandates a minimum level of material fact disclosure. If the level is not reached, the remedy is a motion to strike.
Rule 25.11
[43] Pursuant to Rule 25.11, the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading may prejudice or delay the fair trial of the action; is scandalous, frivolous or vexatious; or is an abuse of the process of the court. The claim must be read as generously as possible. Any inadequacies in the form of the allegations which are merely the result of drafting deficiencies are to be accommodated. Material facts are to be taken as proven, unless it is plain and obvious that they are based on assumptive or speculative conclusions that are not capable of belief. Similar facts may be pleaded as long as the added complexity arising from their pleading does not outweigh their potential probative value.
[44] A document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations, should be struck out as scandalous.
[45] As regards particularity of material facts pleaded, the Supreme Court of Canada discussed the necessity of pleading facts in R v Imperial Tobacco, 2011 SCC 42, as follows:
It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.
[46] If new developments raise new possibilities, as they sometimes do, the remedy is to amend the pleadings to plead new facts at that time: ibid.
[47] If the plaintiff does not, at the time of pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim: Balanyk, supra at para 29.
[48] While the plaintiff submits that they do not have the necessary facts, as they are within the knowledge of the defendant, the defendant maintains that all material facts to found the plaintiff’s allegations must be pled at first instance and amended as necessary thereafter. The defendant submits that the Fresh As Amended Statement of Claim, the third last sub-paragraph of para 21(a), para 23, para 24(a) and para 25(a) should be struck and further seeks a declaration that the proposed amendment fails to disclose a reasonable cause of action for breach of fiduciary duty based on the concept that the defendant ought not to have provided medical treatment to the plaintiffs because of alleged knowledge of deficient skills or incompetence.
Analysis
[49] The impugned allegations contained in the Fresh as Amended Statement of Claim are as set forth below.
Paragraph 21(a)
[50] Paragraph 21 (a) reads as follows
- The plaintiffs state, and the fact is that the injuries suffered by Kimberlee and the subsequent complications and damages herein were caused or contributed to by the negligence of the defendants, particulars of which include, but are not limited to:
(a) As against Dr. Vaidyanathan:
(i) he failed to perform all labour and deliveries with the assistance of a qualified obstetrician and/or surgeon;
[51] This is a bald allegation which should be struck. There are no material facts to suggest that the defendant would or should have performed all deliveries with the assistance of a qualified obstetrician and/or surgeon. It appears, based on the background of this matter, that the plaintiffs are attempting to open the door to making inquiry as regards Dr. Vaidyanathan’s past performance and conduct.
Paragraph 23
[52] Paragraph 23 reads as follows:
- Near or around the time of these events, Dr. Vaidyanathan was the subject of concerns and complaints raised to the defendant hospital authorities and the College of Physicians and Surgeons of Ontario (“College”) concerning his conduct and practice. Dr. Vaidyanathan was the subject of an investigation by the College including patient cases from September 1998 through to September 2000, and that involved 26 patients.
[53] This allegation is not supported by any material facts relating it to the subject claims brought by the plaintiffs. The allegation is that the defendant was the subject of concerns and complaints raised to the Hospital and College concerning his conduct and practice involving 26 patients from September 1998 to September 2000. The plaintiff does not plead what the conduct and practices were which were alleged to be the subject of concerns and complaints, nor who the 26 patients were, nor any indication of how the complaints related to the plaintiffs’ claim. The allegation does not provide the defendant with any details regarding the case which it has to meet in this regard.
Paragraph 24(a)
[54] Paragraph 24(a) reads as follows:
- The plaintiff’s state, and the fact is, that Dr. Vaidyanathan failed to discharge his fiduciary duties as follows:
(a) given the noted information at paragraph 23, and his prior failures to recognize and appropriately manage obstetrical emergencies, such as shoulder dystocia, Dr. Vaidyanathan knew or ought to have known that he had deficient labour and delivery, birthing, medical skills and abilities relevant to the care and treatment of the plaintiffs, Josee and Kimberlee, including: maintenance of accurate medical records, diagnosis and treatment of birthing complications, and implementation of appropriate techniques to be utilized in birthing process. Despite this knowledge, Dr. Vaidyanathan continued to treat patients such as Kimberlee and Josee contrary to his fiduciary duties to them and contrary to his obligations under the Medicine Act, 1991, S.O. 1991,c. 30, and regulations thereunder;
[55] It is alleged that, based on the complaints concerning his conduct and practice referenced in paragraph 23, and his prior failure to recognize and appropriately managed obstetrical emergencies, the defendant knew or ought to have known that he had deficient labour and delivery, birthing and medical skills and abilities relevant to the care and treatment of the plaintiffs, including maintenance of accurate medical records, diagnosis and treatment of birthing complications and implementation of appropriate techniques to be utilized in birthing process.
[56] I am of the view that paragraph 23, which I have struck out, did not provide any material facts as regards the “concerns and complaints raised” nor the “conduct and practices” which were alleged to be the subject of the concerns and complaints involving 26 patients. There is no indication that any of the concerns and complaints involved deficient labour and delivery, birthing and medical skills and abilities as alleged at paragraph 24(a). As a result, there is no basis for alleging that as a result of these “concerns and complaints” the defendant knew or ought to have known that he had deficient skills as specified. The plaintiff has failed to plead any material facts or specifics which would tie the concerns and complaints raised to the allegations that the defendant knew or ought to have known that he had deficient skills regarding labour and delivery, birthing and medical skills and abilities relevant to the care and treatment of the plaintiffs. The allegation should be struck.
Paragraph 25(a)
[57] Paragraph 25(a) reads as follows:
- Particulars of Dr. Vaidyanathan’ s negligent conduct warranting an award of punitive, exemplary and/or aggravated damages include, the fact that:
(a) Dr. Vaidyanathan treated Kimberlee and Josee during a complicated labour and delivery, when he knew or ought to have known that he was incompetent and incapable of doing so safely;
[58] Again, as discussed above, the allegation is that the defendant treated the plaintiffs as regards a complicated labour and delivery, when he knew or ought to have known that he was incompetent and incapable of doing so safely. Again, this is a bald allegation without any or sufficient material facts or specifics to support the allegation. It should be struck.
[59] Accordingly, I grant the defendant’s motion and order that paragraph 21(a), 23, 24(a) and 25(a) of the plaintiffs’ Fresh As Amended Statement of Claim be struck.
[60] I further find that the proposed amendment fails to disclose a reasonable cause of action for breach of fiduciary duty based on the concept that the defendant ought not to have provided medical treatment to the plaintiffs because of alleged knowledge of deficient skills or incompetence.
Costs
[61] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
Carole J. Brown, J.
Date: May 28, 2018