Canamed (Morrison Street) Limited v. The Executor and Trustee of the Estate of Dr. Joginder Singh Gill

COURT FILE NO.: 56838/16, 56899/16

DATE: 2018-09-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Canamed (Morrison Street) Limited

Plaintiff

-and-

The Executor and Trustee of the Estate of Dr. Joginder Singh Gill, 2133290 Ontario Inc., Hesham Abdel Sayed, Magdy Nashat, Medhat Ibrahim, Ramez Tawfik, Ragui Mesiha, 2232588 Ontario Inc., Amir Shenouda

Defendants

-and-

Canamed (Morrison Street) Limited

Plaintiff

-and-

Dr. Terence Chan, Dr. Azim Velji, 2133290 Ontario Inc., Hesham Abdel Sayed, Magdy Nashat, Medhat Ibrahim, Ramez Tawfik, Ragui Mesiha, 2232588 Ontario Inc., Amir Shenouda

Defendants

COUNSEL:

T. Caldwell, for the Plaintiff

Joseph M. Gottli for Dr. Terence Chan and Zaim Velji,

Brian Whitwham, as agent for Amir Shenouda, and as counsel for 2133290 Ontario Inc., Hesham Abdel, Sayed Magdy Nashat, Medhat Ibrahim, Ramez Tawfik, Ragui Mesiha, 2232588 Ontario Inc.,

Robert Burns for The Executor and Trustee of the Estate of Dr. Joginder Singh Gill

RULING ON MOTION

P. R. SWEENY J.

Introduction

[1] This is a motion by the plaintiff Canamed (Morrison Street) Limited seeking relief from the deemed undertaking rule to use evidence obtained in these proceedings in support of a complaint to be made to the College of Physicians and Surgeons of Ontario (CPSO) and the College of Pharmacists. There are also two other issues. First, whether the consent given by the defendant Dr. Gill in February 2015 for the use of his discovery evidence in a prior complaint is still operative. Dr. Gill’s Estate clarifies that it does not consent to the use of the discovery evidence in any future complaint. Second, there is a preliminary issue raised by the defendants, Dr. Terence Chan and Dr. Azim Velji, on a cross-motion, as to whether certain evidence about prior complaints made through the CPSO is admissible in this proceeding.

The Preliminary Issue

[2] I will first deal with the preliminary issue. Dr. Chan and Dr. Velji seek to strike the impugned portion of the plaintiff's affidavit sworn in support of the motion under section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (RHPA). Notwithstanding this objection, the moving defendants agree and do not object to the admission and reference to the Health Professions Appeal and Review Board decision relating to a complaint made to the CPSO found at G.G. v. T.S.C., 2016 CanLII 60707 (ON HPARB). I heard arguments on this preliminary issue and reserved my decision.

[3] Section 36(3) of the RHPA provides:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

[4] The Ontario Court of Appeal addressed this broad prohibition in Forget v. Sutherland (2000), 2000 CanLII 5761 (ON CA), 188 D.L.R. (4th) 296 (Ont. C.A.), upholding the decision of the motion judge and the Divisional Court to strike out portions of a statement of claim that referred to a sworn statement recanting allegations of sexual abuse made to the CPSO by the plaintiff in a civil action. Laskin, J.A., at para. 45, commented that:

[S]ection 36(3) refers to a “report, document or thing,” suggesting a distinction between, for example, a written complaint and the fact of a complaint having been made. The document, the written complaint, is inadmissible, but the fact the complaint was made may be provable at trial.

[5] On this issue, I find that I do not need to rely on any evidence as to the complaint made other than the fact that a complaint was made and that no finding was made. Therefore, I need not determine to what extent the complaint findings may be admissible or inadmissible in this proceeding. I observe that the defendant’s agreement to allow reference to the reported decision would seem to be contrary to their submissions.

Relief from the Deemed Undertaking Rule

The relevant portions of Rule 30.1, the deemed undertaking rule, read as follows:

Deemed Undertaking

(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained. O. Reg. 61/96, s. 2; O. Reg. 575/07, s. 4.

Order that Undertaking does not Apply

(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just. O. Reg. 61/96, s. 2; O. Reg. 263/03, s. 3.

[6] The main issue for me to decide is whether I am satisfied that the interests of justice outweigh any prejudice that would result to the defendants who disclosed the evidence. If I am so satisfied, I may order the deemed undertaking does not apply to the evidence or to any information obtained from it and may impose such terms and give such directions as are just.

[7] There is a general prohibition against disclosure. In Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157, at para. 36 Binnie J. wrote:

[C]ourts have generally not favoured attempts to use the discovered material for an extraneous a purpose, or for an action wholly unrelated to the purposes of the proceeds being in which the discovery was obtained in the absence of some compelling public interest.

[8] In Juman, the court referred, with approval, to 755568 Ontario Ltd v. Linchris Homes Ltd. (1991), 1990 CanLII 6665 (ON SC), 1 O.R. (3d) 649, where the plaintiff sought leave to forward the defendant’s discovery transcript to the police. In that case, the court concluded the plaintiff’s strategy was to enlist the police’s aid to discover further evidence in support of the plaintiff’s claim and/or to pressure the defendant to settle. The relief was not granted. In this case, the plaintiff seeks to use the discovery evidence to pursue a complaint against some of the defendants. A complaint has already been made; it was not successful. In the present case, the plaintiff wishes to make a complaint to support its own private interest in its claim against the defendants.

[9] The plaintiff refers to the cases of Brown v. McNeilly (1999), 41 C.P.C (4th) 330 (Ont. S.C) and S.K. v. Lee, 2 C.P.C. (5th) 325 (Ont. S.C.). In those cases, the disclosure was for the purposes of defending proceedings. In this case, the information is not sought to defend a proceeding but to found a complaint. These cases that granted relief are ones where the plaintiff was also a complainant in a proceeding against the defendant. In my view, the fact that the plaintiffs in these cases have sought to pursue the action is relevant. It is the plaintiffs who object to the use of their evidence. The courts allowed relief to the defendants because there was a right to a full answer and defence in the context of serious disciplinary proceedings. This is clearly distinguished from the present case where the plaintiff is using the civil process to obtain evidence from the defendant to use for its purpose in a separate proceeding.

[10] The plaintiff also refers to Brome Financial Corporation Inc. v. Bank of Montreal, 2013 ONSC 6834, where the court held there was a breach of the undertaking rule when a new claim was issued arising out of information obtained in the context of a civil action. In that case, D. M. Brown J. (as he then was) observed that the separate action could have proceeded as a fourth party claim in the same proceeding. If that approach had been taken, there would not have been a violation of the deemed undertaking rule. While finding there was a breach of the deemed undertaking rule, D. M. Brown J. allowed the action to proceed and ordered that it be tried together with the other actions which gave rise to the claim. That case is distinguished from the present case as the proceeding for which the information is sought to be used is not a civil proceeding at all.

[11] Secure Energy Services Inc. v. CCS Corp., 2014 ABQB 107, 587 A.R. 1, is similar to the case before me. There, Secure sought leave from the court to disclose some 379 documents produced by CCS in the action to the Competition Bureau to support a complaint. The court noted the conflict between the important public interests in getting at the truth in a civil action and the weighing of privacy interests. Providing protection to a litigant that the documents produced in an action would not be used for a collateral ulterior proceeding is important. This must be balanced against other competing public interests. In that case, the public interest was found in the Competition Act, R.S.C. 1985, c. C-34, which maintains and encourages competition in Canada. Neil C. Wittmann C.J.Q.B.A. refused to allow the information to be disclosed. In doing so, he observed that to allow Secure to provide the documents to the Competition Bureau could apply pressure on the defendant in furtherance of the action. That result is precisely what Rule 5.33 of Alberta Rules of Court, Alta. Reg. 124/2010 (Alberta’s codification of the implied undertaking rule) intends to discourage.

[12] In this case, I am not persuaded that disclosing the information for the purposes of a complaint to the CPSO or the College of Pharmacists is of such importance so as to allow for the disclosure of the information obtained on discovery.

The Prior Consent to Disclose

[13] Finally, there is an issue with respect to consent previously provided by Dr. Gill for the disclosure of information. The Executor and Trustee of the Estate of Dr. Gill rescind the previously provided consent. It is also submitted that the consent was limited to that particular prior complaint. In the circumstances, I am satisfied that the plaintiff is not entitled to rely on the prior consent to disclose the information in the context of a subsequent complaint.

Conclusion

[14] The implied undertaking remains in place for all defendants. The motion is dismissed.

[15] The cross-motion is also dismissed.

[16] If the parties are unable to agree on costs, I will accept written submissions limited to 10 pages plus bills of costs, authorities, and any offers to settle. The defendants are to provide their submissions by September 27. The plaintiff shall respond by October 5. If there are no submissions by September 27, the issue of costs shall be deemed settled.

Sweeny J.

Released: September 18, 2018