COURT FILE NO.: CV-16-6644 DATE: 2018/09/21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

J.O. and R.O. Plaintiffs

Gavin MacKenzie and Brooke MacKenzie, for the Plaintiffs

• and -

DR. L., DR. NATASHA L. PEREIRA-HONG, DR. S., DR. KARUNAKARA SHETTY, DR. ERIC LABELLE, DR. WILLIAM SQUIRES, DR. HONG CHAU NGUYEN, DR. HARRY VOOGJARV, DR. DAVID GEORGE HOOK, DR. DENNIS HONG, DR. GERARD MALO, DR. NISHARD ABDEEN, DR. MINOO BOZORGZADEH, DR. ERAN B. HAYEEMS, DR. CLAUDE VEZINA, DR. WILLIAM F. PAVLOSKY, DR. PATRICK CERVINI, HOSPITAL A, DR. DANIEL CARRIER, DR. DANIEL LEBEL, SMOOTH ROCK FALLS HOSPITAL, DR. J. DOE #1, DR. J. DOE #2, VICKY BERNARD, LISA DAVIS, M. CLEMENT, J. JOY, CLAIRE WHITE, M. LEPINE, PAULA HOGGETT, GAIL HAYES, BOBBIE FOLEY, JENNIFER RIZZUTO, S. JOHNSTON, BRENDA MONTROSE, KAREN MATTACOTT, BARBARA PIETILA, STEPHANIE DESHAIES, SHARLENE MCGLYNN, CAROLINE CAMPSALL, TARA GAGNON, MELISSA MILLS, AMANDA RIDEOUT, MELISSA GENEREUX, KYLIE SZCZEBONSKI, NICOLE ST. AMOUR, ANITA LEFEBVRE, LAURA GAGAIN, PATRICIA HEFFERNAN, BRIANNA BARBER, NURSE J. DOE #1, NURSE J. DOE #3 and NURSE J. DOE #2 Defendants

Karen A. Hamway and Bruno Desparts, for the Defendants Dr. L. and Dr. S. Anna L. Marrison and Logan Crowell for the Defendant Hospital A

HEARD: June 21, 2018

Ellies J.

REASONS FOR DECISION ON MOTIONS

OVERVIEW

[1] The two remaining defendant doctors in this medical malpractice action move to dispose of certain portions of the statement of claim (the “impugned paragraphs”) prior to trial.

[2] One of the doctors, Dr. L., had been denied privileges at the defendant, the Hospital A (the "hospital"), prior to performing surgery on the plaintiff, J.O.. The plaintiffs allege that the surgery caused J.O. to suffer damages. The decision to deny privileges to Dr. L. was under appeal at the time the surgery was performed.

[3] In the impugned paragraphs, the plaintiffs allege that Dr. L. was negligent and that she breached her fiduciary duty to J.O. by treating her when she knew or ought to have known that she was incompetent and by failing to tell J.O. about her past medical errors and about complaints against her, among other things.

[4] The doctors move to strike the impugned paragraphs under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the basis that they cannot succeed at trial. Alternatively, they move to strike the impugned paragraphs under r. 25.11 on the basis that they are scandalous, frivolous or vexatious. In the further alternative, they move for partial summary judgment under r. 20.04(2)(a) on the basis that there is no genuine issue for trial. In addition, they seek to compel J.O. to fulfill certain undertakings that she either refused to give or took under advisement during her examination for discovery.

[5] If the motions regarding the impugned paragraphs are successful, both the doctors and the defendant hospital also seek an order for separate trials of the claims against them on the basis that, while evidence surrounding the loss of Dr. L.’s hospital privileges is admissible in the plaintiffs' claim against the hospital for negligently allowing Dr. L. to practice there, it would prejudice a fair trial with respect to the allegations against Dr. L..

[6] For the following reasons, I find that only portions of the impugned paragraphs should be struck. I allow the claims of negligence and breach of fiduciary duty to proceed based on the allegation that Dr. L. knew or ought to have known of her own deficiencies and either ought not to have treated J.O. or ought to have warned her. I deny the request to bifurcate the trial and I order that J.O. provide her consent to obtain certain records.

FACTS

[7] In June 2009, J.O. underwent a surgical procedure called a “salpingo-oophorectomy” in order to treat a right ovarian tube abscess. The operation was performed at the hospital by Dr. L. with the assistance of another doctor. A few days later, J.O. began to develop certain symptoms. As a result, she underwent several further surgical procedures, including a laparotomy and colonoscopy. These procedures were performed by the other remaining defendant, Dr. S.. During the procedures, Dr. S. discovered that J.O.’s bowel was perforated and that she had intra-abdominal abscesses, all of which were then also treated by Dr. S..

[8] Following the surgery by Dr. S., J.O. developed several abdominal abscesses and what appeared to be a fistula. She was transferred from the defendant hospital to another hospital for further treatment.

[9] In May 2009, a month before J.O. underwent the slapingo-oophorectomy, Dr. L. was denied hospital privileges following a hearing held before the Board of Directors of the hospital under the Public Hospitals Act, R.S.O. 1990, c. P.40. The hearing resulted after the hospital's Chief of Staff received letters of concern from the hospital's Medical Director and from the Chief of Obstetrics and Gynecology about Dr. L.'s competence. Those letters led to a review of Dr. L.'s practice by an external medical reviewer and, ultimately, to a recommendation by the hospital's Medical Advisory Committee that Dr. L.'s request for active staff status at the hospital be denied.

[10] The decision of the Board to deny privileges to Dr. L. was under appeal to the Health Professions Appeal and Review Board at the time she operated on J.O.. Under the Public Hospitals Act, Dr. L.'s appointment to the medical staff of the hospital continued until the appeal was determined. Although the Board did have the power to restrict Dr. L.'s privileges to a point where she would not have been able to perform the surgery in question notwithstanding the appeal, it chose not to do so.

[11] In March 2011, J.O. and her husband commenced this action against a number of defendants. As is common in medical malpractice cases, the claims against all but a few of the defendants were ultimately dismissed on consent. Only the claims against Dr. L., Dr. S. and the hospital remain.

[12] The action was set down for trial by the plaintiffs, who served a trial record on September 8, 2015. The matter is now scheduled for trial before me, sitting without a jury, commencing on November 26, 2018.

[13] Both of the doctors are represented by the same lawyers. On behalf of Dr. L., they seek to dispose before trial of portions of the statement of claim that, broadly speaking, allege that Dr. L. was negligent in treating J.O. when she knew or ought to have known she was incompetent to do so and that she breached her fiduciary duty to J.O. by failing to disclose information with respect to her incompetence and by treating her in the face of that incompetence.

[14] The impugned paragraphs read as follows (the portions in parenthesis are not challenged):

80. At all material times, [Dr. L.] had a high surgical complication rate and was the subject of several complaints to the College of Physicians and Surgeons of Ontario. This complication rate was the result of Dr. [L.]’s poor surgical techniques and deficient clinical abilities.

81. (The Plaintiffs claim that the casualty aforementioned was caused by the joint and/or several negligence and/or breach of contract and/or medical malpractice and/or hospital malpractice of the Defendants, the particulars of which are as follows:)

(C. AS TO THE DEFENDANT, DR. [L.]:) (a) during the period of time that Dr. L. treated [J.O.], she was generally incompetent as an obstetrician and gynaecologist and had deficient clinical ability in areas relevant to the treatment provided by her to [J.O.] and she should not have been engaged in the practice of surgical obstetrics and gynaecology; (b) she provided care to [J.O.] when she knew or ought to have known that her relevant clinical and surgical skills were deficient; (c) she knew or ought to have known that she was incompetent, that her clinical and surgical skills were deficient and below the standard required of a competent physician practising medicine in the Province of Ontario, and to provide treatment to [J.O.] in the circumstances was an act of professional misconduct; (d) she knew or ought to have known of her high surgical complication rate and knew or ought to have known that this rate was the result of her pattern of poor surgical technique and practice; (e) she failed to investigate or identify the causes of her high complication rate and she continued to practice and conduct, inter alia, surgical obstetrical and gynaecological procedures thereby subjecting [J.O.] an unacceptable risk of harm;

87. (The Plaintiffs further claims (sic) that the Defendant, [Dr. L.], breached her fiduciary duties owed to [J.O.], the particulars of which are as follows:) a) she failed to disclose information that a reasonable person in [J.O].’s circumstances would have wanted to know; b) she failed to disclose information with respect to her past medical errors and/or complaints made with respect to her medical practices to the College of Physicians and Surgeons of Ontario; c) at all material times, [Dr. L.] knew or ought to have known that she had deficient clinical and surgical skills and was an incompetent physician lacking the knowledge, skill and experience necessary to treat [J.O]., the particulars of which are as follows: (i) she failed to take any steps to remediate her deficient clinical and surgical skills; (ii) she failed to advise [J.O.] of her deficiencies; (iii) she failed to refer [J.O.] for a second opinion. d) she breached the duties imposed on her by the Medicine Act, 1991, S.O. 1991, c. 30 and the Regulations thereunder; e) the Plaintiffs repeat and rely on the allegations contained in paragraph 81 (C), above.

88. The Plaintiffs further claim that had the Defendants discharged their fiduciary duties, [J.O.] would not have undergone surgery and/or procedures performed by Dr. [L.], nor would a reasonable person in her circumstances.

89. The Plaintiffs plead and rely on the provisions of the Medicine Act, 1991, S.O. 1991, c. 30, and the Regulations thereunder, including but not limited to: ii. O. Reg 856/93, as amended, and in particular, Section 1(1) 4.1 (“practising with deficient clinical ability”); and iii. O. Reg. 114/93 as amended, and in particular Section 26(1) (“deficient clinical ability”).

[15] The hospital supports the doctors in their motion to strike the impugned paragraphs and join with the doctors in bringing a companion motion to bifurcate the trial. Both the doctors and the hospital concede that the evidence of complaints against Dr. L., most of which is contained in a file maintained with respect to Dr. L.’s hospital privileges (the "privileges file”), is admissible as part of the claim against the hospital. However, based on the contention that this evidence is not admissible against Dr. L., they submit that the allegations against the doctors should be tried separately from the allegations against the hospital, with the trial against the doctors proceeding first, on the express understanding that the hospital will be bound by the result of that trial.

[16] The defendants submit that bifurcating the proceedings in this way will not only ensure that Dr. L. receives a fair trial, but will actually be more expeditious than trying all of the allegations together.

[17] The plaintiffs concede that the references to complaints made to the College of Physicians and Surgeons in paragraphs 80 and 87b) offend the provisions of s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, which prohibits any reference to proceedings under that Act being made in a civil proceeding. They propose that the words “to the College of Physicians and Surgeons” be struck from each paragraph. However, they oppose the remaining relief requested by the doctors.

[18] In addition to challenging the motions on their merits, the plaintiffs submit that the defendants require leave to bring their motions under r. 48.04 and that leave should be denied.

ISSUES

[19] These motions raise the following issues:

(1) Is leave required to bring the motion? (2) If so, should leave be granted? (3) Is it plain and obvious that the claims contained in the impugned paragraphs cannot succeed at trial? (4) If not, are the impugned paragraphs frivolous, scandalous or vexatious? (5) If not, should summary judgment be granted with respect to the claim made in the impugned paragraphs? (6) If the evidence relating to the denial of Dr. L.'s hospital privileges is not admissible against her, should the claims against the hospital be stayed pending the outcome of the trial against the doctors? (7) Should J.O. be required to give the undertakings that she refused to give or took under advisement during her examination for discovery?

ANALYSIS

Is Leave Required to Bring the Motion?

[20] Although the events underlying the statement of claim took place in the Northeast region, this action was originally commenced in Toronto. While the action was still pending there, the parties consented to an order by Master Haberman dated January 13, 2015 which required the plaintiff to set the action down for trial by September 30, 2015. The trial record was served by the plaintiffs in compliance with that order.

[21] Pursuant to the practice direction prevailing in Toronto, once the action was set down, the plaintiffs were required to complete a Certification Form to Set Pre-trial and Trial Dates, after conferring with opposing counsel. An order had to be taken out extending the time for filing the form while discussions took place among the parties with respect to the appropriate venue for trial. Eventually, before the form was due, the parties agreed that the matter should be transferred to North Bay.

[22] On September 19, 2016, Northeast Regional Senior Justice Gordon ordered that the action be transferred here in accordance with the parties’ agreement. The court record indicates that the matter was first addressed following Gordon R.S.J.’s transfer order at an assignment court held on April 13, 2017. On that date, a date for a pre-trial conference was set for September 14, 2017. The pre-trial conference date had been agreed to by the parties in advance of the assignment court and was confirmed at the assignment court without the necessity of anyone attending.

[23] At the pre-trial conference on September 14, Rivard J. set the trial date. His endorsement of that date indicates that the defendants specifically sought to preserve their right to bring a motion for bifurcation of the proceedings notwithstanding the setting of the trial date.

[24] The plaintiffs submit that, by their actions, the defendants consented to the action being placed on the trial list and, therefore, they must seek leave to bring their motions under r. 48.04(1). Rule 48.04(1) provides that any party who has consented to the action being placed on a trial list shall not initiate any motion without leave of the court.

[25] The defendants submit that they do not require leave under r. 48.04(1) because they did not consent to a trial date. Based on the current state of the law, I agree.

[26] In Arunasalm v. State Farm Mutual Automobile Insurance Co., 2015 ONSC 5235, Master Muir referred to two conflicting lines of cases under r. 48.04(1). One line of cases is anchored in the decision of DiTomaso J. in Grainger (Litigation Guardian of) v. Grainger, 2009 ONSC 16576. In Grainger, the court held that the defendant had consented to the action being placed on the trial list when the matter was placed on a particular trial list at the suggestion of defence counsel. Master Muir preferred the other line of cases, one of which was a decision of Stinson J. in Ananthamoorthy (Litigation Guardian of) v. Ellison, 2013 ONSC 340. In Ananthamoorthy, Stinson J. held that the reference in r. 48.04(1) to a party consenting to an action being placed on a trial list was a reference to a consent under r. 48.06(1). Rule 48.06(1) provides:

48.06(1) A defended action shall be placed on the appropriate trial list by the registrar sixty days after the action is set down for trial or, if the consent in writing of every party other than the party who set the action down is filed earlier, on the date of filing.

[27] Based on the decision of Stinson J. in Ananthamoorthy, Master Muir held in Arunasalm that a party does not consent to an action being placed on a trial list merely by attending at a trial scheduling court for the purpose of setting a date for trial. Master Muir distinguished the decision in Grainger on the basis that the defendant in that case had consented to placing the matter on the trial list under r. 48.06(1). As a result, he held that leave under r. 48.04(1) was not required in the case before him.

[28] The plaintiffs argue that the decision in Arunasalm has recently been restricted to Toronto cases. In 2116656 Ontario Inc. v. Grant, 2018 ONSC 1080, B. G. Thomas J. (now Thomas R.S.J.) held that the view of r. 48.04(1) espoused in Arunasalm is “unworkable” in the London system, where a matter is placed on the list to be addressed at the next assignment court once it has been set down for trial. He preferred the position taken by DiTomaso J. in Grainger. In the case before Thomas J., the matter had been set down for trial on February 23, 2017 and it appeared for the first time on an assignment court list on May 19, 2017. At some point, counsel for the defendant had attended an assignment court and, on consent, set the matter for trial in April 2018. In those circumstances, Thomas J. held that the defendant had consented to listing the matter for trial and, therefore, required leave under r. 48.04(1).

[29] The system in North Bay is more like the system in London than the system in Toronto. Nonetheless, on any view of the facts, it cannot be said that the defendants in this case consented to listing the matter for trial within the meaning of either line of cases. Certainly, they did not consent to the matter being listed for trial earlier than the 60 days that otherwise apply, as they could have done under r. 48.06(1). Nor does the record indicate that they did anything other than advise the pre-trial judge that they were available on the date that the matter was proposed for trial in November of this year.

[30] That effectively answers the question of whether leave is required under r. 48.04(1). However, I would like to make some observations about the question of leave to bring a motion once a matter has been listed for trial.

[31] It seems to me that the theme underlying both lines of cases under r. 48.04(1) is that a party will require leave when, by its own conduct, it indicates that it is ready for trial. However, setting the matter down and consenting to having it placed on a trial list under r. 48.06(1) are not the only ways in which the rules determine that a party is ready for trial. Rule 48.07(a) provides that, once an action is placed on a trial list, “all parties shall be deemed to be ready for trial”, without regard to how it got there. In my view, the rules should be interpreted to require any party to an action which has been placed on a trial list to seek leave unless a motion is specifically exempted from that requirement under the rules. Such an interpretation would be consistent with the scheme of the rules and with the intent expressed in r. 1.04(1) that they be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

[32] Under the rules, a matter is not to be placed on a trial list until 60 days after it has been set down for trial. In my view, this 60 day window provides sufficient time for a party who has not set the matter down and has not consented under r. 48.06(1) to bring motions without the necessity of leave.

[33] Nonetheless, as this interpretation of the rules was not advanced in the motions before me, I would not hold that the defendants require leave simply because the matter is now on a trial list.

[34] Given my conclusion that leave is not required in this case, I need not deal with whether it should be granted.

Can the Claims Contained in the Impugned Paragraphs Succeed at Trial?

[35] In their notice of motion, the doctors framed the issues as an attack on all of the impugned paragraphs under all three of the rules I mentioned earlier. In their argument, however, they have attacked different impugned paragraphs under different rules. With respect to paragraphs 87, 89 and 97, they argue that the allegation of breach of fiduciary duty contained in paragraphs 87 and 89 and the references to the Medicine Act, 1991 in paragraphs 87 and 97, are not tenable at law. These submissions raise questions of law under r. 21.

[36] So, too, does the submission that references to proceedings under the Regulated Health Professions Act are prohibited under that Act. That question has been resolved, however, by the plaintiffs' concession to that effect and their proposal to strike the impugned references.

[37] The doctors argue that the allegations in paragraphs 80 and 81C that Dr. L. had a high surgical complication rate resulting from a pattern of poor surgical technique and practice are "bare allegations" of prior negligence. They submit that evidence of prior negligence is generally inadmissible at trial, which is a question of law. However, they concede on the basis of the decision in Williams v. Wai-Ping, 2005 ONSC 16602 that such allegations may be admissible if they are supported by the pleading of material similar facts, which they contend has not happened here. In my view, these submissions should be dealt with under r. 25.11 rather than r. 21.01.

[38] I suggest that the issues surrounding the alleged high complication rate are best dealt with under r. 25.11, in part because of the reliance that the doctors place on the decision in Wai-Ping. In Wai-Ping, the issues surrounding the pleading of prior negligence and similar facts were decided in the context of r. 25.11, not r. 21.01. There is no prohibition against the introduction of evidence in a motion under r. 25.11. In Wai-Ping, in addition to the pleadings in the various other cases he considered, it appears that the motion judge also had evidence before him, including evidence as to how the defendant doctor's surgical complication rate compared to the provincial average (para. 16). It seems to me to be inappropriate, if not unfair, to measure the viability of the plaintiffs' allegations under a rule that prohibits evidence against a case decided under a rule where there was no such prohibition.

[39] In any event, given the conclusion I have reached that the claim against Dr. L. in paragraphs 87 and 89 of breach of fiduciary duty based on failure to warn and knowledge of incompetence can proceed as a matter of law under r. 21.01, and that the evidence relating to her hospital privileges is admissible in support of that claim, I need not decide the legal viability of the negligence claim made on that same basis in paragraphs 80 and 81 at this stage. I prefer the approach taken by Lax J. in McDonald-Wright (Litigation Guardian of) v. O'Herlihy, [2005] O.J. No. 135 (S.C.) of deciding the question on a full evidentiary record.

[40] I turn now to the arguments under r. 21.

[41] Rule 21.01(1)(a) provides:

21.01(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantially saving of costs;

and the judge may make an order or grant judgment accordingly.

[42] Under rr. 21.01(1)(a) and (b), the test is the same: Is it plain and obvious that the plaintiffs' claims cannot succeed? See Kaynes v. BP, P.L.C., 2017 ONSC 5172, at para. 15; MacDonald v. Ontario Hydro (1994), 19 O.R. (3d) 529 (Ont. Ct. (Gen. Div.)).

[43] As I mentioned immediately above, no evidence is admissible under r. 21.01(1)(a), except with leave, which has not been sought here. In a motion under r. 21, only the pleadings matter. Therefore, in arriving at my decision on this particular aspect of the motion, I have not considered the evidence adduced under the r. 20 motion, including the privileges file and the various expert reports.

[44] Under r. 21.01, the doctors raise the following questions of law:

(1) Are the claims in impugned paragraphs 87 and 89, that Dr. L. breached her fiduciary duties, untenable in law? (2) Are the references in impugned paragraphs 87d) and 97, to breaches of the Medicine Act, 1991, untenable in law because there is no recognized tort arising out of a breach of statutory duty in Canada?

[45] In my view, the answer to both of these questions is “no”. I will begin with the question surrounding the allegations of breach of fiduciary duty.

Alleged Fiduciary Breaches

[46] The doctors do not deny that a doctor can be in a fiduciary position with respect to a patient. Clearly, a doctor can be: McInerny v. MacDonald, [1992] 2 S.C.R. 138, at pp. 148-149; Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at p. 411. The issue in this case is the scope of that duty. Before we get to that issue, however, it is necessary to determine exactly what the plaintiffs allege the scope to be.

[47] The plaintiffs submit that the impugned paragraphs “raise an unsettled issue about a health care provider’s duties to disclose a recent decision to deny a physician privileges to perform the very same treatment for which consent is sought” [italics in original] (factum, para. 44). That is not exactly correct. The plaintiffs do not anywhere plead that Dr. L. had a duty to disclose the fact that she had been denied active hospital privileges. Had they done so, my task might have been an easier one. I have not been provided with any authority standing clearly against that novel claim. However, that is not what the plaintiffs have pleaded. Instead, the plaintiffs have pleaded that Dr. L. had certain other fiduciary duties, many of which have already been the subject of other decisions in motions such as these.

[48] For their part, the doctors suggest that impugned paragraphs 87 and 89 allege that Dr. L. breached her fiduciary duties by:

(1) failing to disclose information about alleged past medical errors; and (2) failing to disclose information about complaints made with respect to her medical practices (factum, para. 80).

However, this is also not exactly correct. The allegations go well beyond this.

[49] A close reading of paragraph 87 of the statement of claim reveals that the plaintiffs have pleaded that Dr. L.’s fiduciary duty breaches consisted of the following:

(1) failing to disclose information that a reasonable person in [J.O.]’s circumstances would want to know (para. 87a)); (2) failing to disclose past medical errors and complaints made with respect to her medical practices (para. 87b)); (3) treating [J.O.] while knowing of or being willfully blind to her own incompetence (paras. 87c) and e), the latter of which incorporates para. 81C by reference); (4) failing to take steps to remediate her clinical and surgical skills (para. 87c)(i)); (5) failing to advise [J.O.] of her deficiencies (para. 87c)(ii)); (6) failing to refer [J.O.] for a second opinion (para. 87c)(iii); and (7) breaching her duties under the Medicine Act, 1991 (para. 87e)).

[50] Paragraph 89 does not allege any further fiduciary duty. It merely alleges that the breaches were the cause of the plaintiffs' losses, in that J.O. would not have consented to the surgery, had the breaches not occurred.

[51] I will deal with the alleged duties in the order in which I have listed them. I will deal with the references to the Medicine Act, 1991 as a separate legal question relating both to the claims of breach of fiduciary duty and to negligence.

Failing to Disclose Information that a Reasonable Person Would Want to Know

[52] It is tempting to see paragraph 87a) as the umbrella under which the other fiduciary duties alleged in paragraph 87 fall. However, once again, that is not how the claim has been pleaded. Paragraph 87a) is a stand-alone allegation, part of a subset under paragraph 87, like the other allegations in paragraphs 87b) to e).

[53] It is also tempting to speculate that paragraph 87a) might be referring to paragraph 80, in which the plaintiffs plead that Dr. L. had a high complication rate and was the subject of several complaints. But neither the defendants nor the court should be left to speculate in this way.

[54] As it stands, the allegation in paragraph 87a) cannot succeed, not because there is no duty to disclose information that a reasonable person in J.O.'s circumstances would want to know, but because it fails to plead what that information is. There are no material facts pleaded in support of this allegation. As a result, it must be struck under r. 25.11, which I will address below.

Failing to Disclose Past Medical Errors and Complaints

[55] The scope of a surgeon’s common law duty of disclosure to a patient was set out by the Supreme Court of Canada in Hopp v. Lepp, [1980] 2 S.C.R. 192. After referring to the decision in Kenny v. Lockwood, [1932] O.R. 141 (C.A.), Laskin C.J. wrote for the court (p. 204):

… a surgeon who recommends an operation which involves known risks, that is probable risks, or special or unusual risks, is under an obligation to his patient to disclose those risks and, if he fails to do so, an injury results from one of the undisclosed or not fully disclosed risks, the patient’s consent to the operation will held to not be an informed risk consent, although the operation itself was competently performed. Apart from situations of this kind, a surgeon need not go into every conceivable detail of a proposed operation so long as he describes its nature, unless the patient asks specific questions not by way of merely general inquiry, and, if so, those questions must be answered, although they invite answers to merely probable risks. If no specific questions are put as to the possible risks, the surgeon is under no obligation (although he may do so) to tell the patient that there are possible risks since there are such risks in any operation. It becomes a question of fact how specific are any questions that are put and, equally, it is an issue of fact whether, questions or no questions, the evidence supports a finding that there were probable or special or unusual risks which the surgeon failed to disclose or did not fully disclose.

[56] It is clear that the errors and complaints referred to in paragraph 87b) are errors and complaints brought to the attention of the College of Physicians and Surgeons and not the complaints made by senior staff members of the hospital to the Chief of Staff contained in the privileges file.

[57] On at least two occasions, this court has held that a physician has no duty to disclose past medical errors or complaints. In Woods v. Jackiewicz, 2013 ONSC 519, Murray J. struck paragraphs in a statement of claim in which the plaintiffs alleged that the defendant doctor had failed to advise them of numerous complaints made against him to hospitals and to the College of Physicians and Surgeons and of numerous lawsuits commenced against him for complications arising from gynaecological and/or obstetrical services provided by him. In striking the impugned paragraphs in Woods, Murray J. held (paras. 26 and 27):

There is no duty on a physician to disclose to a patient the existence of complaints made against him to hospitals and to the College of Physicians and Surgeons or disclose lawsuits commenced against him. The claim that the failure to make such disclosure is a breach of fiduciary obligation is not tenable in law.

[58] In striking the impugned paragraphs, Murray J. relied on the decision of Pitt J. in Turner v. Bederman, [1996] O.J. No. 1712 (Ont. Ct. (Gen. Div.)). In Bederman, Pitt J. overturned a Master’s decision to allow the plaintiffs to amend their statement of claim to allege that the defendant doctor had a duty to disclose a number of unresolved lawsuits against him. Referring to the decision in Hopp, Pitt J. held that the amendments sought were untenable at law and that leave to amend, therefore, ought not to have been granted (p. 8).

[59] While it is not clear from the decision in Bederman whether the amendments in question alleged the breach of a fiduciary duty, as opposed to a claim sounding only in negligence, clearly the decision in Woods did relate to such a claim. As a result, I feel compelled to conclude similarly.

[60] Therefore, paragraph 87b) of the statement of claim should be struck as not disclosing a duty known to law.

Treating J.O. While Being Incompetent, Failing to Take Steps to Remediate, Failing to Advise of Her Incompetence, Failing to Refer for a Second Opinion

[61] I believe that I can deal with the next four alleged fiduciary duty breaches at the same time.

[62] In Wai-Ping, the motion judge, MacKinnon J., refused to strike claims of breach of fiduciary duty made against a treating doctor, his colleagues and the hospital at which he worked where the plaintiffs alleged that the defendants knew or ought to have known of the treating doctor's incompetence.

[63] The doctors submit that Wai-Ping was an exceptional case in which the motion judge found "striking similarities" in the negligence alleged in the numerous actions he reviewed. However, in this r. 21 motion, the question is not whether the evidence in this particular case is sufficient to support the claim. Instead, the question is whether a claim for breach of fiduciary duty can be maintained for failing to disclose known inadequacies and treating in the face of that knowledge.

[64] That question was answered definitely by the Divisional Court in Williams v. Wai-Ping, [2005] O.J. No. 6186, which dismissed the defendants’ appeal of the motion judge’s decision. At para. 27 of the Divisional Court decision, Lax J. wrote for the court:

We agree with MacKinnon J. that the impugned allegations are not “dressed up negligence claims”. There is a difference, although perhaps a subtle and novel one. It is not alleged that Wai-Ping failed to inform the plaintiffs of the material risks of the procedures he performed. See, Reibl v. Hughes, [1980] 2 S.C.R. 880 (S.C.C.). Rather, it is alleged that he had knowledge of the inadequacies of his skills to perform the procedures and to provide medical care for his patients, but failed to disclose this, failed to take any steps to remediate his skills and failed to obtain second opinions or supervision for his surgical procedures. These allegations seek to expand the physician’s obligations with respect to informed consent, but it is not plain and obvious that they cannot succeed as claims for breach of fiduciary duty rather than as claims based on contractual obligations or negligence. This is a matter for the trial judge. See, McDonald-Wright (Litigation Guardian of) v. O’Herlihy (2005), 75 O.R. (3d) 261 (Ont. S.C.J.) at 280.

[65] In Woods, the defendant conceded that a fiduciary duty might exist which requires a physician to advise patients of his deficient clinical skills and to take steps to remediate them. This concession was concurred with by Murray J., who wrote (para. 22):

The defendant concedes that a pleading for breach of fiduciary duty can succeed and not merely be addressed-up negligence claim in some circumstances. For example, the defendant says that a breach of fiduciary duty could arise in circumstances where a physician had knowledge of the inadequacies of his skill to perform the procedures and to provide care for his patient and failed to take steps to remediate his skills. This is consistent with the finding of the Divisional Court in Williams v. Wai-Ping …

[66] I note, as well, that the defendant in Woods did not seek to strike paragraphs in the pleadings in which it was alleged that he breached his fiduciary duties by failing to advise the plaintiffs of his deficient clinical skills and his high complication rate, failing to obtain a second opinion, and failing to refer the plaintiffs to another obstetrician (para. 5).

[67] The doctors rely on the decision in Blunt v. Vaidyanathan, 2018 ONSC 3243 as more recent authority in support of the submission that there is no duty in law requiring a physician to refer a patient for a second opinion, as alleged in impugned paragraph 87c)(iii). I do not believe that Blunt stands for that proposition. The motion judge in Blunt struck out a paragraph alleging that the defendant should have performed all labour and deliveries with a qualified obstetrician and/or surgeon. She did so on the basis that, because there were no material facts pleaded in support of that allegation, the plaintiffs were impermissibly attempting to explore the defendant’s past performance and conduct. I do not regard the decision in Blunt as authority for the proposition that there cannot be a fiduciary duty to refer a patient for a second opinion where a doctor is aware of her own incompetence.

[68] If I am wrong in my view of this aspect of the decision in Blunt, then I respectfully decline to follow it and prefer the authority in Wai-Ping.

[69] The defendants also rely on the decision in Blunt in support of their submission that there is no fiduciary duty on the part of a physician not to treat a patient when she knows or ought to know of her own incompetence. The defendants rely on the following paragraph from the decision of the motion judge (para. 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 allege knowledge of deficient skills or incompetence. [The motion judge’s reference to amendments relates to the fact that the motion was argued on the basis of a proposed amended statement of claim.]

[70] I do not interpret the foregoing paragraph as a statement of the law. No authority is provided in support of the statement, as one might expect when a judge is setting out the law, especially a statement that appears to conflict with settled authority. Instead, I interpret the foregoing paragraph to mean that the plaintiffs in Blunt had failed to properly plead the alleged breach of fiduciary duty as a result of the shortcomings in their pleadings that led to the impugned paragraphs being struck.

[71] If I am wrong in my interpretation of this part of the decision in Blunt, then I again respectfully decline to follow it. The decision conflicts with the decisions in Wai-Ping and Woods, in both of which the court acknowledged the potential liability of a physician for breach of fiduciary duty for treating a patient in the face of obvious incompetence.

[72] On the basis of the decisions in Wai-Ping and Woods, it is neither plain nor obvious to me that the allegations contained in paragraphs 87c) and e) cannot succeed at trial as a matter of law.

References to the Medicine Act, 1991

[73] The doctors seek to strike the references to the Medicine Act, 1991 found both at paragraph 87d) and at paragraph 97. I will deal with both references here.

[74] The plaintiffs plead the provisions of the Medicine Act, 1991, both generally and with specific reference to two sections of the regulations made thereunder. In particular, in paragraph 97 the plaintiffs plead the provisions of s. 1(1), para. 4.1 of O. Reg. 856/93, which defines professional misconduct for the purposes of cl. 51(1)(c) of the Health Professions Procedural Code as:

Practicing the profession while the member knows that he or she has deficient clinical ability, as defined in section 26 of Ontario Regulation 114/94 (General) made under the [Medicine Act, 1991].

[75] Section 26(1) of Ont. Reg. 114/94 provides that:

“Deficient clinical ability” means, in relation to a member, that the member’s level of medical knowledge, skill or judgment makes his or her clinical performance unsatisfactory.

[76] The doctors submit that the references to the Medicine Act, 1991 should be struck on the basis that there is no tort of breach of statutory duty recognized in Canada. They rely on the decision of the Supreme Court of Canada in R. v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. In that case, the court rejected the English common law position in favor of the American position and held that there was no “nominate tort of statutory breach giving a right to recovery merely on proof of breach and of damages” (p. 227).

[77] I do not view the references in the statement of claim to the Medicine Act, 1991 in this case to be allegations of absolute liability for a statutory breach. Instead, I view them as a pleading that the plaintiffs intend to rely on the alleged statutory breach as evidence of negligence and breach of fiduciary duty.

[78] In Saskatchewan Wheat Pool, the Supreme Court of Canada also held, in the paragraph immediately after the one referred to above, that (p. 227):

Proof of statutory breach, causative of damages, may be evidence of negligence.

[79] In my view, therefore, the references are proper and should not be struck.

Are the Impugned Paragraphs Scandalous, Frivolous or Vexatious?

[80] Rule 25.11 provides:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of process of the court.

[81] As the plaintiffs correctly submit, r. 25.11 permits the court to "surgically excise all or part of the offending pleading": Carney Timber Co. v. Pabedinskas, 2008 ONSC 63163, at para. 15. A pleading which is not supported by material facts will be struck as being frivolous and vexatious (Carney, para. 16).

[82] The doctors submit that paragraphs 80 and 81C contain bare allegations of prior negligence, without any material facts pleaded in support. Broadly speaking, paragraph 81C alleges that Dr. L. was incompetent and that she ought to have known she was incompetent as a result of her high surgical complication rate. Although paragraph 81C is pleaded in connection with the plaintiffs' claim for negligence, it is also incorporated by reference into their claim for breach of fiduciary duty in paragraph 87e). The doctors submit that, in order to be admissible at trial in support of either claim, material facts rising to the level of admissible similar facts must be pleaded to permit the evidence to be introduced. As I mentioned earlier, they rely on the decision in Wai-Ping. They also rely on the decision in Blunt.

[83] In a different case, I would accept the entirety of the doctors' submission. However, in the circumstances of this case, I accept only part of it.

[84] For the sake of convenience, I will again set out the contents of paragraph 80, as the plaintiffs propose to amend it:

80. At all material times, Dr. L. had a high surgical complication rate and was the subject of several complaints to the College of Physicians and Surgeons of Ontario. This complication rate was the result of Dr. L.’s poor surgical techniques and deficient clinical abilities.

[85] The plaintiffs also make reference to Dr. L.'s high complication rate and its cause in paragraph 81C, which reads:

(a) during the period of time that [Dr. L.] treated [J.O.], she was generally incompetent as an obstetrician and gynaecologist and had deficient clinical ability in areas relevant to the treatment provided by her to [J.O.] and she should not have been engaged in the practice of surgical obstetrics and gynaecology; (b) she provided care to [J.O.] when she knew or ought to have known that her relevant clinical and surgical skills were deficient; (c) she knew or ought to have known that she was incompetent, that her clinical and surgical skills were deficient and below the standard required of a competent physician practising medicine in the Province of Ontario, and to provide treatment to [J.O.] in the circumstances was an act of professional misconduct; (d) she knew or ought to have known of her high surgical complication rate and knew or ought to have known that this rate was the result of her pattern of poor surgical technique and practice; (e) she failed to investigate or identify the causes of her high complication rate and she continued to practice and conduct, inter alia, surgical obstetrical and gynaecological procedures thereby subjecting [J.O.] an unacceptable risk of harm;

[86] It is true that evidence of prior negligence is generally not admissible to prove subsequent negligence: Wilson v. Lind, 3 C.P.C. (2d) 113 (Ont. H.C.). In civil cases, evidence of prior negligence will be admitted as an exception to this principle if it meets the test for admission as similar fact evidence: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis Canada, 2014), at §11.229.

[87] In Wai-Ping, after reviewing allegations of negligence against the same doctor by the plaintiffs in ten different lawsuits, as well as the allegations contained in three others, MacKinnon J. refused to strike allegations that the defendant doctor’s medical and surgical practice was characterized by a pattern of repetitive negligence. He allowed an allegation relating to the defendant’s high surgical complication rate to stand in support of an allegation of negligence. In addition, he allowed pleadings of specific prior acts of negligence to stand in support of allegations of a breach of fiduciary duty and claims for punitive damages.

[88] The doctors focus on the motion judge's finding of "striking similarities" in the material he reviewed. At para. 7 of the decision, he wrote:

It is clear on the material before me that there exist a number of striking similarities in these initial ten suits which extend far beyond the mere fact that Wai-Ping was the treating physician. At the core of these cases is this doctor’s pattern of repetitive negligence. There are allegations of similar serious errors in judgment in his management of common gynecological conditions from his diagnosis to his management of post-operative complications. There are repeated, similar allegations of his practice of rushing to surgery when observation and medical management was clearly the better choice. There is demonstrated a significant disturbing pattern of repetitive negligence and poor judgment.

[89] I do not view the decision in Wai-Ping as setting some sort of minimum threshold for the admission of evidence of prior negligence in a medical malpractice action. Moreover, the essence of the plaintiffs’ case here is that Dr. L. knew or ought to have known of her deficiencies based on the opinions of senior medical staff members, the independent medical reviewer and the Medical Advisory Committee. I am not prepared to weigh the expert medical evidence at the pre-trial stage in order to determine whether the concerns about Dr. L.'s competence that were brought to her attention and that of the hospital are sufficient to meet the test for admission as similar fact evidence. That is an issue for trial.

[90] That does not mean, however, that the plaintiffs' pleadings relating to negligence are completely immune from review.

[91] In Blunt, the motion judge struck out a number of paragraphs in the statement of claim against the defendant physician. In one, the plaintiffs alleged that the defendant physician had been the subject of complaints “concerning his conduct and practice” that involved 26 patients in a period of two years leading up to and following the infant plaintiff’s birth. In another, the plaintiffs alleged that the defendant had breached his fiduciary duties by continuing to treat patients like the infant plaintiff in light of the complaints and the defendant’s “prior failures to recognize and appropriately manage obstetrical emergencies”.

[92] The motion judge in Blunt struck the paragraphs referred to above on the basis that they failed to state how the alleged concerns and complaints of the 26 patients related to the plaintiffs’ claims and how the defendant was supposed to know from those concerns and complaints that he was incompetent. In impugned paragraph 80 of the statement of claim at issue in this case, the plaintiffs have pleaded that Dr. L. “had a high surgical complication rate and was the subject of several complaints". As it presently reads, paragraph 80 goes on to refer specifically to complaints being made to the College of Physicians and Surgeons of Ontario, which the plaintiffs propose to remove. I agree with the doctors' submission that, even without the reference to the College, the words "and was the subject of several complaints" in paragraph 80 should be struck because the plaintiffs have failed to plead how those complaints relate to the present case in a way that would make them material.

[93] However, the same is not true with respect to the pleading that Dr. L. had a high surgical complication rate. As I read the statement of claim, the plea in paragraph 80 is tied to the plea in paragraph 81C. In paragraph 80, the plaintiffs have alleged a material fact, namely Dr. L.'s high complication rate, that supports the allegation in paragraph 87C that Dr. L. knew or should have known that she was incompetent.

[94] As I have pointed out, the plaintiffs have not pleaded as a material fact that Dr. L. had her hospital privileges denied. Nonetheless, in combination with the pleading in paragraph 80 that she had a high complication rate resulting from poor surgical techniques and deficient clinical abilities, the pleading in paragraph 81C is sufficient, if only just barely, to permit the plaintiffs to introduce evidence about the events leading to the denial of her privileges as it relates to her knowledge of her own deficiencies.

[95] For the reasons set out above, impugned paragraphs 87a), 87b) and the words "and was the subject of several complaints to the College of Physicians and Surgeons of Ontario" in paragraph 80 will be struck under r. 25.11. The balance of the impugned paragraphs will remain.

Should Partial Summary Judgment Be Granted Dismissing the Claims in the Impugned Paragraphs?

[96] Rule 20.04(2)(a) permits the court to grant summary judgment if the court is satisfied that there is no genuine requiring a trial with respect to a claim or a defence.

[97] Although the doctors framed the issues for the motion in a way that seeks to strike the impugned paragraphs under each of the various rules relied upon, they did not seriously advance an argument in favour of partial judgment in either their written or their oral submissions. In fact, the only evidence as to the merits of the plaintiffs' claims was provided by the plaintiffs, who introduced the privileges file, among other things, into evidence on the motion.

[98] I do not propose to treat the request for partial summary judgment any more extensively than did the doctors.

[99] I am of the view that the issues of whether Dr. L. was negligent for proceeding to treat J.O. despite the opinions of the various doctors that she was deficient and whether she had a fiduciary duty either to warn or not to treat, or both, are genuine issues requiring a trial. As I have already stated, the basis for the opinions calling Dr. L.'s competence into question are matters upon which evidence should be heard. So too, perhaps, is the question of medical ethics: see the recent decision in Stirrett v. Cheema, 2018 ONSC 2595.

[100] The motion for partial summary judgment is therefore dismissed.

Should the Trial be Bifurcated?

[101] The request that the trial be bifurcated was premised on the submission that the evidence relating to Dr. L.'s hospital privileges was not admissible in support of the allegations against her. As I have found otherwise, the question of bifurcation need not be addressed further.

[102] The request for bifurcation is denied.

Should J.O. be Compelled to Obtain Certain Information or Documentation?

[103] The doctors seek an order compelling J.O. to fulfill two undertakings that she took under advisement and one that she refused to give at her examination for discovery on February 13, 2018.

[104] In the two undertakings that were taken under advisement, counsel for the doctors asked counsel for the plaintiffs to send questions in writing to doctors who had treated J.O.. As neither undertaking has been confirmed since the discovery, r. 31.07(1) deems that it has been refused.

[105] On behalf of the doctors, counsel submits that the questions they proposed to ask the treating doctors were related to J.O.'s failure to mitigate her damages. Although it is not clear from the transcript, I am prepared to accept that submission. However, even if the questions that the defendant doctors propose to ask of the treating doctors relate to the issue of damage mitigation, I am not persuaded that the undertakings should have been given. I have not been provided with any guiding authority nor with any principled reason why the plaintiffs should be compelled to assist the doctors to interview third party witnesses. I understand that the treating doctors are probably precluded from providing information about J.O. without her consent. However, the defendant doctors have not explained why they are entitled to have J.O. cooperate in obtaining evidence that does not yet exist, as opposed, for example, to obtaining copies of the treating doctors' clinical notes and records.

[106] For this reason, the request to compel J.O. to allow counsel for the defendant doctors to write to the treating doctors is denied.

[107] The undertaking that was simply refused related to J.O.'s relationship with R.O., who has advanced a claim for damages under the Family Law Act, R.S.O. 1990, c. F.3, including a claim for loss of guidance, care and companionship. J.O. testified about an altercation she had with R.O. in November 2016, as a result of which she was arrested. On behalf of J.O., counsel refused to undertake to provide counsel for the doctors with the police records relating to that incident.

[108] Although the doctors treat this refusal as a refusal to answer a proper question, I believe that the refusal relates more to documentary than to oral discovery. In contrast to the request to assist in the creation of evidence that was referred to above, this refusal related to evidence that already existed. In my view, the documents in question fall within the scope of r. 30.02(1), which requires a party to disclose every document "relevant to any matter in issue in the action that is … in the possession, control or power of a party". The police records are relevant to R.O.'s claim for damages. Therefore, J.O. is required to consent to the production of the records in question and an order shall issue requiring her to do so.

CONCLUSION

[109] For the foregoing reasons, the motion to strike is allowed with respect to paragraphs 87a), 87b), and the words "and was the subject of several complaints to the College of Physicians and Surgeons of Ontario" in paragraph 80.

[110] In addition, J.O. is ordered to provide the doctors with a signed consent permitting the release of the police records relating to the incident of November 2016.

[111] The balance of the requests contained in the doctors' motion and that of the hospital are dismissed.

COSTS

[112] The parties may make written submissions with respect to the issue of costs, limited to five pages, exclusive of attachments, as follows:

(1) by the plaintiffs, within 20 days of the release of these reasons; (2) by the defendants, within 20 days of the receipt of the plaintiffs' submissions, (3) by the plaintiffs in reply, within 10 days of the receipt of the defendants’ submissions.

Ellies J. Released: September 21, 2018

COURT FILE NO.: CV-16-6644 DATE: 2018/09/21 ONTARIO SUPERIOR COURT OF JUSTICE J.O. and R.O. Plaintiffs – and – DR. L., DR. NATASHA L. PEREIRA-HONG, DR. S., DR. KARUNAKARA SHETTY, DR. ERIC LABELLE, DR. WILLIAM SQUIRES, DR. HONG CHAU NGUYEN, DR. HARRY VOOGJARV, DR. DAVID GEORGE HOOK, DR. DENNIS HONG, DR. GERARD MALO, DR. NISHARD ABDEEN, DR. MINOO BOZORGZADEH, DR. ERAN B. HAYEEMS, DR. CLAUDE VEZINA, DR. WILLIAM F. PAVLOSKY, DR. PATRICK CERVINIHOSPITAL A, DR. DANIEL CARRIER, DR. DANIEL LEBEL, SMOOTH ROCK FALLS HOSPITAL, DR. J. DOE #1, DR. J. DOE #2, VICKY BERNARD, LISA DAVIS, M. CLEMENT, J. JOY, CLAIRE WHITE, M. LEPINE, PAULA HOGGETT, GAIL HAYES, BOBBIE FOLEY, JENNIFER RIZZUTO, S. JOHNSTON, BRENDA MONTROSE, KAREN MATTACOTT, BARBARA PIETILA, STEPHANIE DESHAIES, SHARLENE MCGLYNN, CAROLINE CAMPSALL, TARA GAGNON, MELISSA MILLS, AMANDA RIDEOUT, MELISSA GENEREUX, KYLIE SZCZEBONSKI, NICOLE ST. AMOUR, ANITA LEFEBVRE, LAURA GAGAIN, PATRICIA HEFFERNAN, BRIANNA BARBER, NURSE J. DOE #1, NURSE J. DOE #3 and NURSE J. DOE #2 Defendants REASONS FOR decision Ellies J. Released: September 21, 2018