Court File and Parties

COURT FILE NO.: 312/16 (London) DATE: 20190417 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diane Smith and Richard Boothroyd, Plaintiffs AND: Brian Muir, Defendant

BEFORE: Justice R. Raikes

COUNSEL: B. Legate Counsel, for the Plaintiffs N. Searles and J. Dunlop Counsel, for the Defendant

HEARD: March 18, 2019

Endorsement

[1] This is a motion brought by the plaintiffs to remove Zuber & Company LLP as lawyers of record for the defendant and for related ancillary orders. The action arises from a motor vehicle collision in which the plaintiff, Diane Smith, was injured. This motion concerns the appropriateness of pre-trial correspondence and direct communication by the Zuber firm with the plaintiff’s treating doctors, and the consequences of same.

Facts

[2] The defendant was represented by another firm until October 22, 2018 when a Notice of Change of Representation was served by Mr. Zuber.

[3] On July 23, 2018, previous defence counsel wrote to counsel for the plaintiffs to request Dr. Beletsky’s complete file. On September 7, 2018, Ms. Legate wrote to Dr. Beletsky enclosing a signed authorization and requested a copy of his complete file. On September 10, 2018, Dr. Beletsky provided Ms. Legate with his file. Ms. Legate provided that file to defence counsel under cover of letter dated September 27, 2018.

[4] It is undisputed that previous defence counsel acted appropriately in accordance with established protocols for obtaining plaintiff medical provider records. Those records were obtained properly through use of a duly signed authorization and were provided to defence counsel in a timely manner. The records were in hand before the transfer of carriage of the action to new defence counsel.

[5] On October 4, 2018, a pre-trial conference was conducted. The defendant was then still represented by previous counsel. The trial was already assigned to the running list in London for the January 7, 2019 sittings.

[6] On October 11, previous defence counsel notified Ms. Legate that he would no longer be acting and that Mr. Zuber would be handling the matter. As mentioned, Mr. Zuber got on record on October 22, 2018.

[7] With the trial date looming, Ms. Legate wrote to Mr. Zuber on November 27, 30 and December 7, 2018 requesting a witness list, his advice as to which treating health practitioners were required at trial and provided a reminder that any records to be served under s. 52 had to be served by December 20, 2018. The only response was an email from Mr. Zuber’s law clerk on December 4, 2018 that Mr. Zuber was then in a trial. The trial was in Ottawa.

[8] On December 13, 2018, letters were sent together with a summons to witnesses by Zuber & Co. to each of Dr. Patricia Baass, the plaintiff’s family doctor, and Dr. Beletsky, a neuropsychiatrist who did a consultation of the plaintiff. Save for the addressee, the letters are identical in content.

[9] These letters are at the root of the objection taken by the plaintiffs. The content of the letters is reproduced in its entirety below:

Dear Dr. Baass [or Beletsky]

Re: Muir ats Smith Date of Loss: April 30, 2015 Court File No.: 312/16 Our File No.: 1801562

We are the solicitors for the Defendant Brian John Muir with respect to an action brought by Diane Smith and Richard Boothroyd relating to injuries sustained by Ms. Smith in an accident that occurred on April 30, 2015.

The trial of this matter is scheduled to commence on Monday, January 7, 2019, at 10:00 a.m. or as soon after that time as the matter can be heard at the Court House, 80 Dundas Street, London, Ontario N6A 6A3. The duration is expected to be approximately 3 to 4 weeks. It appears that your testimony will be required at the trial of this matter. Enclosed is a Summons to Witness which is being served upon you.

Although the Court has set January 7, 2019 as the commencement date for this trial, it is unclear at this time whether the trial will proceed on that day. As a result of scheduling difficulties and the availability of courtrooms and judges, the Court will be unable to confirm the commencement date until the week prior to trial. We will, of course, keep you advised as this matter progresses.

We will require an entire copy of your file for preparation of this matter for trial. Would you please forward to us a complete copy of the entire contents of your file, including test results, consultation notes, electronic medical records, lab results, correspondence, hand-written notes or any other material contained therein. Should you be unable to provide us with this documentation, please ensure that you bring your original complete records with you upon your scheduled attendance at trial.

Upon receipt of this letter, would you kindly contact my Law Clerk, Coleen Skynner, in order that we can discuss scheduling and your availability. We will attempt to make the scheduling of your evidence as convenient as possible, although our efforts are somewhat restricted by the Court scheduling. Do not attend at the court house prior to speaking with me. We do not want to cause any unnecessary attendance or inconvenience.

Thank you in advance for your assistance here in. The writer looks forward to hearing from you at your very earliest convenience.

Yours very truly, [Bold and italics in original]

[10] The letter was signed by Ms. Skynner for Mr. Zuber.

[11] On December 18, 2018, a further pre-trial conference was held. No settlement was reached.

[12] Also on December 18, 2018, Ms. Legate met with Dr. Baass where she learned of the summons and letter requesting that Dr. Baass forward a copy of her chart to Mr. Zuber. That same day, Ms. Legate wrote to Mr. Zuber to express her concerns with the letter. In that letter, she wrote:

The second relates to Dr. Baass advising that you asked her to “send the entire chart” to you so that you could “prepare for trial”. You have asked Dr. Baass to do something she is unable to do, legally and ethically. She requires consent from my client to do this.

You have no outstanding requests of me for production of her records. Given legal and ethical requirements, and the Rules of Court, you are required to make those requests through me.

We will be writing to all healthcare providers to ask them not to accede to that request and to apologize to the extent that such a request is made. If you have not written to others in the same fashion, please let me know.”

Ms. Legate attached a copy of her letter to Dr. Baass which was an exhibit to an affidavit on the motion.

[13] Mr. Zuber did not respond to Ms. Legate’s letter before this motion was brought.

[14] It is undisputed that Dr. Beletsky called Mr. Zuber’s office upon receipt of his letter and summons. The exact content of that call is disputed.

[15] According to Dr. Beltesky’s affidavit on this motion, he was told by the man who served the summons that he needed to follow the instructions in the letter from Mr. Zuber. He interpreted the letter to mean that he was obliged to send his complete chart to Mr. Zuber’s office. He consulted some unnamed colleagues who advised that since the letter was worded as it was, he should send his file which he did.

[16] Dr. Beletsky deposed that he also called Mr. Zuber’s office and spoke to a woman sometime between December 19 and 21 as directed. He believes it was Colleen Skynner. Ms. Skynner told him that “they required my full chart, meaning all documentation, every single related page.” Dr. Beletsky felt that he was misled by Mr. Zuber’s letter into sending his patient’s records to defence counsel even though he knew that he was not supposed to disclose those records without the patient’s consent.

[17] Ms. Skynner acknowledged in her affidavit that she spoke with Dr. Beletsky. According to Ms. Skynner, she confirmed that they acted for the defendant, Mr. Muir, not the plaintiff, Ms. Smith, and they did not have written consent from the plaintiff. She denies that she ever told Dr. Beletsky that he was required to provide any documents to her.

[18] Ms. Skynner indicated that Dr. Beletsky told her that he had only prepared a consultation note. She asked him if he had hand-written notes from which his consultation note was prepared or if he had other documentation in his file. Dr. Beletsky indicated that he would look in his file to see if there was anything further. She asked him to bring his entire file when he came to testify. They discussed his availability to testify.

[19] On December 24, 2018, Dr. Beletsky sent his entire file to Zuber & Co.. He did not receive a letter concerning the summons from Ms. Legate until January 2, 2019. It is agreed that the documents provided to defence counsel are the same as those previously obtained and provided through plaintiff’s counsel to Mr. Zuber’s predecessor. No new documents were provided.

[20] This motion was brought on January 3, 2019. The trial did not proceed during the sittings commencing January 7 for reasons unrelated to this motion.

[21] In response to this motion, Mr. Zuber deposed that:

• He is a specialist in civil litigation.
• It is his practice to serve a summons on witnesses as the trial approaches. Most such summons are served with a view to obtaining documents.
• The cover letter that accompanies the summons expressly states that they act for the defendant, not plaintiff.
• The letter contains a statement to the effect that if the person is unable to provide the documentation, they should bring their original file to trial. This contemplates the prospect of a witness conferring with their patient or plaintiff’s counsel to obtain consent if they wish to release the file before trial.
• Through the years, he has been contacted by many doctors who received the summons. The doctors were told explicitly that they are acting for the defence and there is no consent from the plaintiff. They may simply deposit their file at the court.
• They routinely advise doctors to contact the Canadian Medical Protective Association (“CMPA”) to obtain legal advice.
• He has never received a complaint from the court or opposing counsel that he has followed an improper course of conduct until now.
• He did not speak directly with Dr. Beletsky.
• He was in a trial in Ottawa until mid-December. He was in Florida after Christmas and was preparing for trial while there.
• He spoke with Ms. Legate while in Florida and the issue of his letters to the doctors never came up.

Plaintiffs’ Position

[22] The plaintiffs assert the following positions:

1. Removal of defence counsel is necessary to protect and promote public confidence in the legal profession and the justice system;
2. The letters written to Drs. Baass and Beletsky invite professional misconduct by these doctors;
3. The request/demand made by defence counsel circumvents the Rules of Civil Procedure and offends the Rules of Professional Conduct for lawyers; and
4. The letters reflect a long-standing deliberate practice by Mr. Zuber for which no contrition is shown.

Defendant’s Position

[23] The defendant asserts the following positions:

1. Removal of counsel should not be ordered. The test for same is not met on the facts in this case;
2. Service of the summons was appropriate and in compliance with applicable law; and
3. While the wording of the letter, particularly the paragraph saying “We will require a copy of your entire file…”, could have been better stated, it does not warrant removal of counsel.

Law and Analysis

[24] The test for removal of counsel is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice: Kaiser (Re), 2011 ONCA 829 at para. 21; Best v. Cox, 2013 ONCA 800 at para. 8; Milicevic v. Smith Engineering Inc., 2016 ONSC 2166 at para. 31.

[25] Canadian courts exercise the highest level of restraint before interfering in a party’s choice of counsel: Kaiser, para. 21. A court will only grant a removal motion in the rarest of cases: Cox, para. 8. The court must balance a party’s right to select counsel of choice with the public’s interest in the administration of justice and basic principles of fundamental fairness. A removal order will not be made absent compelling reasons: Milicevic, paras. 32 and 78.

[26] The means by which a defendant may obtain access to confidential medical information before trial is well-settled. In Burgess (Litigation Guardian of) v. Wu, Ferguson J. traced the development of the law and the appropriate protocol to follow. Where there is a dispute over production of or access to confidential medical information before trial, that information/documentation can be obtained only through two routes: by invoking a discovery provisions of the rules of court such as rule 31.1.0 or by seeking a special disclosure order from a judge exercising inherent jurisdiction: Burgess, para. 69.

[27] A plaintiff’s health care professional has a duty to refuse to disclose information about his or her patient unless required to do so by law: Burgess, paras. 70-72. The underlying rationale for the strict prohibition is the protection of confidentiality. Access to information from a person under a duty of confidentiality is regulated by judicial supervision; otherwise, the confidentiality is at risk: Burgess, paras. 73-74.

[28] It is undisputed that defence counsel was entitled to serve the summons on Drs. Baass and Beletsky. He cannot be criticized for exercising a degree of prudence by doing so. The issue raised by plaintiffs’ counsel is, however, focused on the demand/request for the doctors’ files made directly to the doctors and not through plaintiffs’ counsel or the court.

[29] In my view, the letter which accompanied the summons to the doctors inappropriately seeks production of medical practitioners’ files directly from the treating doctors of the plaintiff without her consent and/or the consent of her counsel. On a plain reading, it is a demand of the doctor to produce the documents in advance of trial. It invites the unwitting health practitioner to breach his or her duty of confidentiality and the privacy of the patient, which is the very risk that Ferguson J. noted and guarded against in his decision in Burgess.

[30] Although the letter indicates that it is written by counsel for the defendant, not plaintiff, and allows that the doctor may not be able to provide the documentation, it is not saved by those references. It is notable that there is no indication in the letter that defence counsel does not have the plaintiff’s consent for the documents to be turned over to him. There is equally no caution to the doctor that he or she may wish to seek advice from plaintiff’s counsel or the CMPA. A doctor reading this letter might well infer that he or she has an obligation to turn over the documents – the use of the word “require” suggests same. Certainly that is the conclusion that Dr. Beletsky drew.

[31] Further, it is clear from the affidavit of Ms. Skynner that when contacted by Dr. Beletsky in response to the letter and summons, she went beyond merely discussing his availability as a witness for trial. She asked him about the content of his file, i.e. whether there were hand-written notes from which his consultation note was produced. Moreover, there is a conflict in the evidence of Dr. Beletsky and that of Ms. Skynner as to what he was told when he contacted defence counsel’s office and spoke to someone about the letter and summons. Such conflicts are entirely avoided by adherence to the rules in Burgess.

[32] The adage that “there is no property in a witness” is not universal. There are well-established limits which, for policy reasons, exist to protect confidentiality and privilege interests. It is not open to opposing counsel to pick up the phone and call a treating physician of the party opposite to find out whether she attended her appointment, what she revealed or what the doctor concluded. Patient privacy trumps and restricts the ability of counsel to do so. There is a process to be followed to obtain that information.

[33] I am satisfied that the covering letter which accompanied the summons served on Drs. Baass and Beletsky went too far and breached the limits reflected in Burgess.

[34] I turn now to the application of the test for removal of counsel.

[35] Mr. Zuber is an experienced, senior personal injury lawyer. The letters that accompanied the summons to witness are standard form letters that he has used for years. This is not a case where a law clerk inadvertently sent out a letter under his name. Rather, the content of the letter reflects a standard operating procedure that he has used for many years without any apparent complaint until now.

[36] The letter, summons and follow-up telephone call with Dr. Beletsky caused Dr. Beletsky to deliver the content of his file to Mr. Zuber’s office. In this case, the documentation produced is exactly the same as that previously provided. One can well imagine that there may be circumstances where some redaction would be appropriate or irrelevant but embarrassing confidential information could have been inadvertently disclosed. It is a matter of chance that that did not occur in this case.

[37] I find that a fair-minded and reasonably informed member of the public would be troubled by defence counsel’s conduct but would not remove him as counsel of record on the facts in this case. Frankly, it is a close call. The result may well have been different if the circumstances in preceding paragraph had occurred or if the discussions between Ms. Skinner and Dr. Beletsky had strayed further into confidential matters. I am mindful of the Court of Appeal’s admonition that removal of counsel should occur in only the rarest of cases. In this case, removal is not necessary in the interests of justice.

Costs

[38] Counsel provided Costs Outlines at the conclusion of argument. The defendant seeks costs on a partial indemnity basis of $13,017.68 inclusive of disbursements and HST. The plaintiffs seek costs of $37,781.44 on a substantial indemnity basis and $24,142.32 on a partial indemnity basis, both likewise inclusive of disbursements and HST.

[39] The ordinary rule is that the successful party should have its costs. However, in the circumstances here, I find that the ordinary rule should not apply. The underlying cause of the motion was defence counsel’s conduct which I have found was inappropriate. Costs of the motion should be made in favour of the plaintiff even though the unsuccessful party. To do otherwise would reward the defendant and/or punish the plaintiffs.

[40] I find that the plaintiffs should have their costs of the motion on a partial indemnity basis which I fix at $20,000 inclusive of disbursements and HST.

[41] In arriving at that figure, I have concluded that the motion was of moderate complexity, important to the parties, and was argued by experienced counsel who prepared affidavits and facta. The time spent and hourly rates strike me as reasonable.

Justice R. Raikes Date: April 17, 2019