COURT FILE NO.: 5703/14 DATE: 20190321
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PENNY-LEE CHAMPOUX Plaintiff/Responding Party – and – LJUDMILLA JEFREMOVA and MOHAMMED KHODABANDEHLOO Defendants/Moving Party
P. Denton, for the Plaintiff/Responding Party D. Dow, for the Defendants/Moving Party
HEARD: February 15, 2019
decision on motion
WILCOX J.
Introduction
[1] This is a motion by the defendant, Ljudmilla Jefremova, to clarify or withdraw an admission contained in a Reply to Request to Admit, pursuant to Rule 51.05 of the Rules of Civil Procedure.
[2] The plaintiff brought a medical negligence action against Dr. Ljudmilla Jefremova (the defendant). The action was dismissed against the second defendant, Dr. Mohammed Khodabandehloo. The plaintiff alleges that Dr. Jefremova’s treatment did not meet the standard of care and that this breach resulted in harm to her, for which damages are payable.
[3] The plaintiff presented to the emergency room at the Kirkland and District Hospital on two dates in particular. On June 29th, 2012, she presented with complaints of an abscess on her left buttock and high blood sugars. She was seen by the defendant. On July 2, 2012, she presented again and was seen by other physicians, including a surgeon who drained an ischiorectal abscess the next day and provided subsequent treatment in the following months.
[4] The plaintiff issued a Statement of Claim on June 5, 2014 alleging that the defendant was negligent in her treatment of the abscess, among other things. It locates the abscess in the perianal area. The Statement of Defence denies the allegations. It states that the plaintiff was diagnosed on June 29th, 2012 with an early abscess on the left buttock, for which treatment was prescribed. That admission is the subject of this motion.
[5] Central to the case is the location of the abscess when the defendant saw the plaintiff on June 29th, 2012. This is because there is a distinction between buttock abscesses and perianal abscesses and the respective standards of care for their treatment.
[6] Unfortunately, even despite the court’s direction in this regard at the outset of the trial, little was done in a timely fashion to clarify and assist with the medical terminology around the distinction among the types and location of abscesses. Furthermore, terms used were used loosely and interchangeably, sowing confusion. Dr. Christopher Fernandez, testifying for the plaintiff, provide some definitions, including:
a. An anorectal abscess is an abscess in the area around the anus or rectum. b. A perianal abscess is an abscess that is around the anus. c. A ischiorectal abscess is a deeper type of abscess than is the perianal. d. Perianal and ischiorectal abscesses are types of anorectal abscesses. e. Anorectal abscesses differ from regular abscesses in their location, being around the anus or rectum.
[7] The matter went to trial commencing December 10, and continuing on December 11 through 14 and 17, 2018.
[8] There were frequent references in the evidence at trial to the abscess in question being on the plaintiff’s buttock. The plaintiff’s evidence was that it was on her buttock cheek, as was the defence evidence. Indeed, there were references to the abscess being on the buttock in the Statement of Claim, the Statement of Defence, the nurse’s and defendant’s records from June 29th, 2012, the examinations for discovery of the plaintiff and defendant, and the plaintiff’s opening statement at trial.
[9] On September 19, 2018, plaintiff’s counsel served a Request to Admit. Among other things, the plaintiff requested the defendant to admit that, “on June 29, 2012 Penny-Lee Champoux had a perianal abscess”.
[10] On October 9, 2018, the defence delivered a response to the Request to Admit refusing to admit that the plaintiff had a perianal abscess. The response stated that, “(o)n June 29th, 2012, Penny-Lee Champoux presented with a buttock abscess/swollen nodule in the general perianal area”.
[11] Dr. Steven McMurray, testifying for the defendant, also provided some further definitions with the assistance of anatomical diagram:
a. An abscess is a soft tissue infection. b. The rectum would be above the anal verge, and connects with the anus. c. The perianal skin begins at the anal verge. d. Ischiorectal abscesses and perianal abscesses are both pararectal abscesses. e. The buttocks cheeks are “quite a distance” away from the anus. The buttocks region is also referred to as the “gluteal region”. f. Perianal abscesses are right beside the anus where the buttocks cheeks meet at the anus. “Peri” means “beside” whereas “para” means “in the vicinity of” or “next to” or “beside”. g. Ischiorectal abscesses are higher up into deeper tissues, closer to the rectum, and are much less likely to show up at the skin than perianal abscesses. h. “Perineal” refers to the area between the thighs from the pubic bone to the tail bone.
[12] Dr. McMurray distinguished between buttock abscesses and perianal abscesses. Although both are just under the surface of the skin, perianal ones are much less common. Dr. McMurray acknowledged that Dr. Hunt, who examined the plaintiff on July 2, talked of the plaintiff having perianal abscess, and said that the surgeon that operated on the plaintiff for the abscess, Dr. Visbal, described on examination of the plaintiff on July 2, an abscess in the left gluteal region and left pararectal area, and in surgery an ischiorectal abscess. Dr. McMurray confirmed that the gluteal region would be the buttock region, and pararectal would be in the vicinity of the rectal area.
[13] In examination-in-chief, Dr. McMurray spoke of two abscesses, a buttocks one that the defendant dealt with on June 29th, 2012, and the ischiorectal abscess that Dr. Visbal found in the surgery on July 3, 2012.
[14] As Dr. McMurray understood the records and the information that he had received, there was not a noticeable perirectal symptomatology on June 29. He understood that the abscess that the defendant dealt with on June 29, was out on the buttocks cheek. Also, he opined that it would be very unusual for a buttocks abscess to be associated with any sort of perineal abscess.
[15] He approved of the approach that the defendant had taken to the buttocks abscess and believed that she had met the standard of care.
[16] In cross-examination, Dr. McMurray confirmed that he understood that the abscess was on the middle of the plaintiff’s buttocks cheek.
[17] His attention was then drawn to the Response to Request to Admit, specifically that on June 29th, the abscess was in the general perianal area. It was the first that he had heard of that. If the abscess was in that area, as opposed to being on the buttocks cheek, and the plaintiff had the other symptoms that had been noted on June 29th, that is, it was swollen, red, tender and painful to sit on, his opinion as to what kind of abscess it was would change. He agreed that it was suggestive of an ischiorectal abscess, in which case the treatment would be promptly to operate on and drain the abscess, not send the plaintiff home as was done.
[18] However, Dr. McMurray added that he was not clear on the location of the plaintiff’s abscess, to which plaintiff’s counsel responded that it is admitted to be in the perianal region.
[19] It was at that point that defence counsel realised that there was a difference between what the defendant’s testimony was at trial and what was in the Response to Request to Admit regarding the location of the abscess. Both counsel agreed that the two scenarios had been put to Dr. McMurray, the buttocks abscess one by the defence, and the perianal abscess one by the plaintiff. However, the plaintiff’s counsel submitted that only the one in the Response to Request to Admit mattered.
[20] The defence therefore brought this motion seeking to clarify or withdraw the admission in the Response to Request to Admit, pursuant to Rule 51.05 of the Rules of Civil Procedure. The motion was supported by the affidavit of Laura B. Stewart, sworn January 23, 2019. Ms. Stewart was the primary defence counsel at the trial. The plaintiff’s position was that the motion should be dismissed. The plaintiff filed the affidavit of James Wallbridge, sworn February 5th, 2019. Mr. Wallbridge was a lawyer in the firm of plaintiff’s counsel, but had not been involved in the trial.
[21] Admissions are governed by Rule 51 of the Rules of Civil Procedure. It provides for the serving of a request to admit that the truth of a fact. A party shall be deemed to admit the truth of a fact unless it’s specifically denies or refuses to admit the truth of the fact. Under Rule 51.05, an admission may be withdrawn on consent or with leave of the court.
[22] The defendant submitted that the main issue is one of the interpretation of the response and that only if I agree with the plaintiff’s interpretation would the question of whether leave should be granted to withdraw the admission have to be dealt with.
[23] The defendant further submitted that the response was imprecise, not incorrect, and that the case should be decided upon the evidence, not on the imprecise or disputed response. Plaintiff’s counsel, it was said, either misinterpreted the response or sought to take advantage of an interpretation of the admission that the defence had never intended. It was pointed out that, in cross-examination of Dr. McMurray, plaintiff’s counsel said that the defendants evidence was that, “on June 29th, the abscess was in the general perianal area” whereas, in fact, the defendant’s response had been that the plaintiff “presented with a buttock abscess/swollen nodule in the general perianal area”. Although various terms were defined in the presentation of the evidence, “general perianal area” had not been.
[24] It should be noted that the evidence was that there is a distinction to be made between a buttock abscess and a perianal abscess. For example, Dr. Feinberg, a witness for the plaintiff, indicated the possibility of pure buttocks abscesses, which would be skin abscesses on the buttocks which do not communicate with the rectum, whereas the terms perianal abscess and ischiorectal abscess are with respect to ones that originate within the anal canal, and also that a pure buttocks abscess could occur in the perianal area. He also suggested that there could be some imprecision in the language used in such matters. This imprecision was noted at other points in the proceedings as well.
[25] Plaintiff’s counsel opposed the defence’s request to clarify the admission. The admission is what is what it states, he submitted, and what flows from that is for argument in trial submissions. Furthermore, he added, I cannot impose terms on that now.
[26] I am not persuaded that it is appropriate at this point in the proceeding to rule on the interpretation to be given to the Response to Request to Admit. Rather, that evidence would be left for consideration after the trial submissions have been heard, if the admission still existed then. Consequently, it is necessary in the circumstances to consider the request to withdraw the admission. For this, I turn to the applicable test.
[27] The test to be applied was set out by the Ontario Court of Appeal in Liu v. The Personal Insurance Company, 2019 ONCA 104 at paragraph 13:
The motion judge applied a test drawn from Antipiis v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.) and Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (3d) 102 (Ont. C.A.):
(a) is the admission one of purely fact, law, or mixed fact [and] law? A court would be more likely to exercise its discretion if the admission is a pure question of law that is incorrect than an admission which is only factual or of mixed fact and law; (b) does the proposed amendment raise a triable issue in respect to the truth of the admission?; (c) is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions?; and, (d) has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated for in costs?
[28] On the first branch of the test, there is no dispute that the admission is one of pure fact.
[29] On the second branch, this is a medical malpractice case. The result depends on the standard of care that applies in the circumstances. Insofar as an abscess is concerned, what the standard is depends on its location and its type. The interpretation of the Response to Request to Admit is integral to determining these. The defence submitted that the admission is not incorrect, but is being misinterpreted. As I stated above, the interpretation of the admission is to be left to follow trial submissions. Therefore, I find no triable issue with respect to the truth of the admission, as contrasted with its interpretation.
[30] As the test is conjunctive, that is sufficient to decide the matter against granting leave to withdraw the admission. I will refrain from commenting on the other branches of the test so as not to inadvertently trespass into matters that are better left for the trial.
[31] The motion is dismissed.
[32] Costs are left to be determined after trial.
The Honourable Justice James A. S. Wilcox
Released: March 21st, 2019