Court File and Parties

Court File No.: 04-CV-280157 Date: 2018-10-15 Superior Court of Justice - Ontario

Re: Gurbaksh Kaur Dhaliwal, Devinder Kaur Dhaliwal, Harcharan Singh Dhaliwal, Gurmeet Singh Dhaliwal, and Jagtar Singh Dhaliwal, Plaintiffs And: Dr. R. Sims, Dr. R. Lang, Dr. A. McLean and St. Joseph’s Health Centre, Defendants

Before: D.A. Wilson J.

Counsel: Joseph J. Colangelo and Chris Dockrill, Counsel for the Plaintiffs Risa M. Kirshblum, Paul-Erik Veel and Chloe Boubalos, Counsel for the Defendant, Dr. R. Sims; Anna Marrison and Logan Crowell, Counsel for the Defendant, St. Joseph’s Health Centre

Heard: October 11, 2018

Endorsement

[1] This is a medical negligence action, the trial of which will commence before me without a jury in the next few days. During a trial management meeting, counsel identified certain motions that needed to be brought prior to the evidence being called at trial. I heard argument and advised counsel I would release my rulings prior to hearing evidence.

[2] By way of background the Plaintiff, Gurbaksh Dhaliwal, brings this action for damages arising out of surgery performed by the Defendant Dr. Sims on December 5, 2003 at the Defendant hospital, St. Joseph’s Health Centre. Dr. Sims is an obstetrician and gynecologist. The Plaintiff underwent a total abdominal hysterectomy and bilateral oophorectomy. Following the operation, it was subsequently discovered that the Plaintiff had perforations in her rectum, which required surgical repair. Her post-operative course has been difficult and protracted. In this action, the Plaintiff claims non-pecuniary general damages, as well as damages for future care costs, and past and future loss of income. Her parents, the Plaintiffs Devinder and Harcharan Dhaliwal, claim damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 for loss of care, guidance and companionship and for the services provided to their daughter after the surgery.

[3] The Plaintiffs’ motion is for an order granting leave for two things: to admit into evidence the affidavit of Dr. Nicholas Colapinto sworn September 27, 2009; and for an order granting leave to the Plaintiffs to read into evidence the discovery evidence of Harcharan and Devinder Dhaliwal. The reason for this motion is that Dr. Colapinto has Parkinson’s Disease and cannot attend at trial to give evidence. Harcharan died on January 17, 2015 and Devinder’s health does not permit her to attend trial and give evidence. The Defendants object.

The Affidavit of Dr. Colapinto

[4] Prior counsel for the Plaintiffs commenced a second malpractice action against the general surgery team at St. Joseph’s Health Centre alleging negligence in the post-operative care provided to the Plaintiff. The defendants in that action brought a summary judgment motion and the Plaintiffs filed the affidavit of Dr. Colapinto sworn September 27, 2009. The motion was successful and the action was dismissed.

[5] The action that is currently before me proceeded in the usual fashion through examinations for discovery, pretrial and is now about to commence trial. In July 2018, the Plaintiffs learned that Dr. Colapinto would be unable to attend trial to give evidence as a result of his Parkinson’s disease.

[6] Mr. Colangelo argues that the affidavit ought to be admitted because Dr. Colapinto’s evidence is necessary to determine causation in this action. Further, the other experts have reviewed the affidavit and some have commented on it in their reports so it ought to form part of the evidentiary record. Because the evidence of Dr. Colapinto is necessary to understand the continuum of events on the causation issue, and the doctor cannot testify, the affidavit ought to be admitted under the principled approach to hearsay. Counsel submits that no prejudice will result to the Defendants by the admission of Dr. Colapinto’s affidavit because they have been aware of it for years, they had the opportunity to cross examine the doctor and chose not to.

[7] The Defendants object for three main reasons: they cannot cross examine Dr. Colapinto on his affidavit; his evidence is not necessary and is duplicative; and it was served in a different action as part of a summary judgment motion.

Analysis

[8] Dr. Colapinto is a general surgeon who was asked by the former counsel for the Plaintiffs to review the medical records and provide his expert opinion on the standard of care of the doctors and nurses who treated the Plaintiff in December 2003. Dr. Colapinto states that after surgery, Ms. Dhaliwal was presenting with symptoms indicative of a bowel perforation and aggressive measures should have been taken to prevent the ultimate complications that she encountered. He is critical of the charting that was done and of the care provided not only by the surgeon, Dr. Sims, in the post-operative period but also of the defendant surgeons in the companion lawsuit, Drs. Lindsay, Hart, Smith, Harmantas and Cyriac.

[9] In cases where an affiant or an expert who has prepared a report for use at trial becomes unable to testify, the court may be asked to permit the evidence to be filed. This request is usually opposed on the basis that it is unfair to allow that evidence to go in without the opportunity to test its reliability through cross-examination. It is within the discretion of the court to permit the receipt of the evidence but it is a fact driven analysis which must weigh the potential value of the evidence against the prejudice which might be occasioned to the adverse party.

[10] I turn to an examination of the facts giving rise to the current dilemma. This action was commenced by former counsel for the Plaintiffs in 2004. The claim as pleaded against Dr. Sims was that he perforated the Plaintiff’s rectum during the surgery of December 5, 2003 and that he failed to properly inspect the surgical area before closing the surgical field. It is further pleaded that over the course of the next five days, the health care providers did not heed the Plaintiff’s pain complaints and instead allowed her condition to deteriorate to the point where she suffered severe septic shock and was required to undergo emergency surgery.

[11] The Statement of Defence and Crossclaim delivered by Dr. Sims in January 2006 denied any negligence in the care provided to the Plaintiff and further denied that any damages suffered by the Plaintiff were causally related to care provided by Dr. Sims. Thus, from the outset of this lawsuit, the Plaintiffs were aware that both negligence and causation were issues in dispute.

[12] As I have noted, when the Plaintiffs retained new counsel, a second statement of claim was issued against other surgeons who provided care to Gurbaksh post-operatively. Dr. Sims was not named in the second lawsuit. The affidavit of Dr. Colapinto that the Plaintiffs wish to admit into evidence at the trial was secured to respond to a summary judgment motion brought by different parties in another lawsuit on a different point of law—not on the issue of alleged negligence, but for the determination of a limitation period defence. That motion was successful both at the initial stage and on appeal. The claims against the other surgeons were dismissed.

[13] In argument, Mr. Colangelo submitted that the Defendants could have cross-examined Dr. Colapinto and they chose not to, so they cannot be heard to argue prejudice now. I reject that argument for two reasons. First, counsel who currently acts for Dr. Sims was not counsel on the motion. More importantly, whether or not counsel chooses to cross-examine a deponent of an affidavit is a judgment call that depends to a large extent on the nature of the relief sought in the motion and the contents of the affidavit. It is a tactical decision that lies in the hands of counsel.

[14] Since the summary judgment motion was based on a legal argument, a limitations defence, counsel may have thought the contents of Dr. Colapinto’s affidavit were of no moment to the argument on the motion. To put it another way, counsel may have been of the view that whether or not the Plaintiffs had a strong case on liability was irrelevant to the issues the motion judge had to determine on the summary judgment motion and thus, a cross-examination was unnecessary in those circumstances. I do not accept that by not conducting a cross-examination of Dr. Colapinto on his affidavit in the context of a summary judgment motion the Defendants can somehow be said to have “waived” that opportunity.

[15] I note as well that at the time of the summary judgment motion, an affidavit from an infectious disease specialist, Dr. Hammerberg, was secured by the solicitor for the Plaintiffs. On August 23, 2018, an expert report dated August 18, 2018 from Dr. Hammerberg together with a Form 53 was served by counsel for the Plaintiffs. In addition, the expert report of a general surgeon Dr. Burnstein together with a Form 53 was served on July 31, 2018. It was not until service of the Evidence Act, R.S.O. 1990, c. E.23 notice from the Plaintiffs on September 7, 2018 that the defence was advised that the Plaintiffs intended to use the affidavit evidence of Dr. Colapinto at trial. Counsel for the Defendants state that the affidavit was never treated as an expert report or opinion in this action.

[16] In determining if the affidavit of Dr. Colapinto should be admitted into evidence, I am mindful of the presumptive right of a party to cross-examine an expert on his or her opinion. In cases alleging professional negligence, the importance of the expert opinions cannot be overstated.

[17] I turn now to a consideration of whether it is necessary to admit the affidavit evidence on the grounds of fairness. I accept that it was only recently, in July, that the solicitor for the Plaintiffs became aware that Dr. Colapinto would not be able to testify at the trial due to health reasons. However, what is not clear to me is on what basis counsel believed the affidavit would be admitted into evidence, as if he had prepared a report that complied with the requirements of Rule 53.

[18] The issue about the affidavit evidence as opposed to a proper expert report was made clear to the solicitor for the Plaintiffs in early May 2018 when counsel for Dr. Sims inquired whether the Plaintiffs were relying on the affidavits that had been filed in the other action. The response from Mr. Colangelo was that this issue should be left to the pretrial or trial judge.

[19] Rule 53.03 of the Rules of Civil Procedure sets out the requirements of the contents of an expert report as well as the time limits for service of such reports. A party who intends to rely on an expert report must serve it 90 days before the pretrial. In this action, the pretrial was held June 1, 2018, a date that I fixed on May 11, 2016. Thus, expert reports were due March 1, 2018. The Plaintiffs had the expert report of Dr. Baskett, an obstetrician and gynaecologist, but they did not have an opinion from a general surgeon at the pretrial. They had the affidavit of Dr. Colapinto only, and did not know at that time that he could not testify due to health issues. The Defendants had the report of the general surgeon Dr. Davison and the report of the obstetrician and gynecologist, Dr. Thomas.

[20] At the pretrial, Gans J. made an order dealing with various expert reports. He directed that the Plaintiffs “shall deliver all reply reports to Dr. Davison (general surgeon) and/or Dr. Thomas (obstetrician/gynecologist) or any new reports concerning ‘general surgery issues’ by July 16, 2018.” Clearly, the pretrial judge was attempting to ensure that all of the outstanding expert reports would be delivered as quickly as possible.

[21] Following the pretrial, the Plaintiffs served the expert report of the general surgeon Dr. Burnstein dated July 30, 2018. He was asked to opine on whether the delay in treating the rectal perforations contributed significantly to her outcome and he expressed the view that it did.

[22] A further report from Dr. Burnstein dated September 28, 2018 was served. In his second report, Dr. Burnstein comments on the opinions expressed by experts retained by the defence. He is critical of the care provided by Dr. Sims, as well as by the team of surgeons who provided care after the surgery, particularly on December 9, 2003 and thereafter.

[23] The solicitor for the Plaintiffs argues that while Dr. Colapinto and Dr. Burnstein are both general surgeons, there is no duplication between their opinions and that the affidavit evidence is necessary for a determination of the causation issues in this lawsuit. I do not accept this submission. As I have noted, the issues of negligence and causation have been live issues from the outset. It was necessary for the Plaintiffs to secure expert opinions on these issues in reports that comply with Rule 53 in order for the experts to testify at trial. Counsel for the Plaintiffs could not possibly have thought he could rely on the opinions of Dr. Colapinto on causation as set out in his affidavit even if Dr. Colapinto could attend court for cross-examination. The Rules are specific about how expert evidence is received in this court and it is not by way of an affidavit.

[24] It appears that the expert reports from all parties in this action were served late, and not in accordance with the time limits set out in the Rules; I do not know why this is the case. However, Gans J. was alive to this problem and he ordered that Plaintiff expert reports from general surgeons were to be served by July 16, 2018. The report of Dr. Burnstein came shortly after that and if counsel felt the evidence of Dr. Colapinto in his affidavit was necessary to enable the court to decide the causation issue, it was incumbent on counsel to ask Dr. Burnstein to opine on the causation issues in his report. That was not done, and no explanation was offered for this irregularity.

[25] Even if counsel believed the affidavit of Dr. Colapinto was sufficient to enable him to testify, after learning of his inability to testify in July 2018, counsel could have asked Dr. Burnstein to provide his opinion on the issues that are contained in the Colapinto affidavit. Even if the report was late, it would have afforded the defence an opportunity to cross-examine an expert on his opinion. I am not satisfied that it was not possible for the Plaintiffs to get this expert evidence from another source, namely their own general surgeon expert. A Rule 53 report was commissioned by the other expert who filed an affidavit for use on the summary judgment motion, Dr. Hammerberg. It is not clear to my why this was not done with Dr. Colapinto long before his inability to testify was known.

[26] The case law does not assist the Plaintiffs. In Tulshi v. Ioannou (1994), 27 C.P.C. (3d) 153 (Ont. C.J. (Gen. Div.)), it is important to note that while Epstein J. allowed the report of the engineer to be filed at trial since the expert had died, she ordered that another engineer at the same firm provide oral evidence to support the original opinion as set out in the report. She did so to ameliorate the possible prejudice to the opposing party. Furthermore, Tulshi can be distinguished from the one at hand because in the case before me, what is sought to be admitted from the expert is not an expert report, but rather an affidavit. The Tulshi case was decided in 1994, many years before the rules governing expert opinions were amended.

[27] This case can be distinguished from Cormack Animal Clinic Ltd. v. Potter (2009), , 306 D.L.R. (4th) 548 (Ont. S.C.), where the Plaintiff sought to admit into evidence affidavits sworn by the Plaintiff who had gone on to suffer from dementia and an inability to testify. It is also different than Williams v. Vogel, 2016 ONSC 342, 28 C.C.E.L. (4th) 231, relied on by the Plaintiffs. In that case, the court admitted discovery evidence of a plaintiff who had died prior to trial. None of the cases relied on by the Plaintiffs deal with the admission of an affidavit that in realty is being tendered in the same manner as a Rule 53 expert report, which is a different type of evidence to which different rules and considerations apply. This is a critical distinction, in my view.

[28] The affidavit of Dr. Colapinto is clearly hearsay evidence. While evidence may be admitted under the principled approach to hearsay evidence, an affidavit sworn in a different action that was commissioned for a different purpose is not the same as a Rule 53 compliant expert report. It is a very different consideration than simply determining whether discovery transcripts or an affidavit of a party ought to be admitted if the person cannot testify. Simply put, what the Plaintiffs seek to do is to have an affidavit of an expert admitted without compliance with Rule 53 and without affording the defence an opportunity to test the reliability of those opinions. In my view, that is unfair and unnecessary in the circumstances of the case before me.

[29] Furthermore, the fact that other experts reviewed the affidavit of Dr. Colapinto is not a reason that justifies its admission into evidence as an expert opinion. Experts review many documents in arriving at their opinions; that does not mean these documents are necessarily admitted into the record. The amendments to Rule 53.03 in 2010 required experts to set out a list of every document relied on in forming the opinion; one of the reasons for this was to foster a better and earlier understanding of how and why an expert arrived at an opinion. Reviewing a document does not lead to a judge admitting the document into evidence. That is particularly so in this case where a party seeks to file an affidavit on a critical issue in the litigation without affording the opposing party an opportunity to cross-examine the expert and by doing so, the chance to test the reliability of that opinion.

The Examination for Discovery Transcripts of Harcharan and Devinder Dhaliwal

[30] Both of these Plaintiffs were examined for discovery on September 8, 2006. Harcharan died unexpectedly in July 2015. Devinder is unwell and her family doctor, Dr. Ravi sent a note dated September 6, 2018 stating that

Her health has deteriorated in the past couple of years, largely due to chronic respiratory condition necessitating multiple repeat hospitalizations. In summary, she is a frail weak elder who is virtually home bound and is not medically fit to stand trial in a court setting.

[31] Counsel for the Plaintiffs submits that their evidence is important because the parents had the opportunity to observe these events and the effects upon their daughter. The Defendants object and argue that the evidence surrounding the health of Devinder is not clear. At her continued examination for discovery in 2017, Gurbaksh testified that her mother was in good health while other productions indicate that she has been hospitalized on numerous occasions. Counsel for the Defendants note that a claim for services rendered is being advanced and the defence is entitled to know what the ability of these two Plaintiffs was and what it is now to provide care to Gurbaksh. They require the records of the family doctor in order to assess these claims.

Analysis

[32] Rule 31.11 of the Rules of Civil Procedure deals with the use of an examination for discovery transcript at trial. Rule 31.11(6) provides that

Where a person examined for discovery, (a) has died); [or] (b) is unable to testify because of infirmity or illness … any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court.

[33] Rule 31.11(7) reads

In deciding whether to grant leave under subrule (6), the trial judge shall consider, (a) the extent to which the person was cross-examined on the examination for discovery; (b) the importance of the evidence in the proceeding; (c) the general principle that evidence should be presented orally in court; and (d) any other relevant factor.

[34] I have read the discovery transcripts that the Plaintiffs seek to admit into evidence. Harcharan described the changes in the family since Gurbaksh’s surgeries. There was an undertaking by counsel to provide a schedule of any special damages being claimed. Harcharan testified that he and his wife had to do things for their daughter that they did not do before, such as groceries and laundry—see question 117. Devinder confirmed that evidence and stated that she assisted her daughter with cooking, cleaning and laundry—see question 99. Both of them testified about their recollection of events in the hospital.

[35] Harcharan and Devinder have claims pursuant to the Family Law Act for loss of care, guidance and companionship as a result of their daughter’s surgeries and restrictions on her activities and abilities. These claims are commonly advanced by relatives following injuries to family members. Harcharan has passed away and clearly the only way his evidence will be before the court is if an order is granted allowing the examination for discovery evidence to be admitted. With respect to Devinder, she is eighty years old and the medical note from her family doctor indicates she is frail and unable to withstand testifying in court. The evidence from Gurbaksh in at her continued discovery in 2017 contradicts that of Dr. Ravi.

[36] I am mindful of the fact that an order permitting the discovery transcripts to go into evidence deprives the defendants of their ability to cross-examine and test the validity of the claims being advanced. However, the claims of the parents are asserted pursuant to the Family Law Act and are conventional claims. Harcharan is deceased and Devinder is elderly and unwell. Unless the discovery evidence is permitted into evidence, the Plaintiffs will be unable to advance these claims at trial. I am of the view that fairness requires an order be made pursuant to Rule 31.11(7) in these circumstances.

[37] However, I agree that the health of these Plaintiffs has a direct impact on the nature of their claims. To put it another way, if Harcharan and Devinder suffered medical issues that affected their ability to provide services to their daughter, that affects their claims and the defence is entitled to investigate this issue, particularly given the disparate evidence on the health of Devinder.

[38] In a letter dated September 10, 2018, the solicitor for the Plaintiffs advised that the FLA claimants will be claiming “a reasonable allowance for nursing, housekeeping or other services which they provided to the main plaintiff as permitted by s. 61(2)(d) of the FLA.” Defence counsel requested the records of the family doctor from 2003 onwards in order to evaluate these claims; that request was refused by the solicitor for the Plaintiffs as being excessive and unreasonable.

[39] I am unaware if the out of pocket expenses of Harcharan and Devinder have been provided in accordance with the undertaking made at their examinations for discovery. Similarly, I do not know whether the claims for services being advanced on their behalf have been quantified. It appears that it was only recently that the defence were advised that claims for services were being advanced by the parents; there was no mention of such claims at the examinations for discovery.

[40] In the normal course, I would agree that a request for eighteen years of notes of a family doctor for an FLA claimant would be excessive and unnecessary. However, in this case, where the solicitor for the Plaintiffs is asking the court for an order that the discovery evidence be read into the record at trial without the Plaintiffs testifying, there is no opportunity to test the evidence offered by the Plaintiffs. By what other means can the defence assess the veracity of these claims for services provided, particularly given the contradictory evidence concerning the health of Devinder? In my view, fairness dictates that medical evidence be produced concerning the health of Harcharan and Devinder forthwith.

Conclusion

[41] I make the following orders:

1. The Plaintiffs are to immediately quantify the out of pocket claims and any claims for services rendered that are being advanced on behalf of Harcharan and Devinder Dhaliwal;
2. The Plaintiffs are to immediately request and provide copies of the family doctor’s notes for Harcharan and Devinder Dhaliwal from January 1, 2007 onwards to the solicitors for the Defendants;
3. The Plaintiffs are granted leave to read the transcripts of the examinations for discovery of these Plaintiffs done September 8, 2006 into evidence pursuant to Rule 31.11(6) of the Rules of Civil Procedure.
4. The motion by the Plaintiffs for leave to admit into evidence the affidavit of Dr. Colapinto sworn September 27, 2009 is dismissed.

D. A. Wilson J. Date: October 15, 2018