COURT FILE NO.: CV-14-117930

DATE: 2019-10-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Estate of Millicent Agola Owala, by her Estate Administrator Vivian Awuor Owala, Vivian Awuor Owala, Andy Ochieng Owala, Prisca Akelo Ogweno, by her Litigation Guardian Vivian Awuor Owala, Lawrence Otila Agweno, by his Litigation Guardian, Vivian Awuor Owala, James Odero Ogwendo, by his Litigation Guardian, Vivian Awuor Owala and Felix Ogweno Ogweno, by his Litigation Guardian, Vivian Awuor Owala

Plaintiffs

– and –

Southlake Regional Health Centre, Dr. David Makary, Dr. Parham Davoudpour, Dr. Lorne Goldman, Dr. Philip Buckler, Lisa Laramee, Nicole (Nikki) Watss, Abigael (Abby) Boakye, Christine Miltenburg, Laura Rimmey or Laura Rimmer, Timothy Lawrie, Dr. John Doe, Dr. Jane Doe, John Doe (RN), Jane Doe (RN), John Doe, Jane Doe, Regional Municipality of York, Stephen Pallett, Dr. Florence Moriello, Dr. Babak Kachoei and Dr. Moshen Kouchakan

Defendants

Counsel: Miguna Miguna for the Plaintiffs Paul-Erik Veel and Chloe Boubalos for the defendants, Dr. David Makary, Dr. Parham Davoudpour and Dr. Philip Buckler Gordon Slemko for Southlake Regional Health Centre, Lisa Laramee, Nicole Watts, Abigael Boakye and Chistine Miltenburg

HEARD: September 12, 2019

Ruling on Motions for Summary Judgment, Consolidation and Disclosure

Boswell J.

INTRODUCTION

[1] Millicent Owala died in the emergency room at Southlake Regional Health Centre on October 17, 2013. She was forty years old. The cause of her death was an acute aortic dissection. Blood from her torn aorta filled the pericardial sac around her heart, compressing it. Eventually her heart became so compressed that it could no longer pump enough blood to sustain her life.

[2] The plaintiffs are Ms. Owala’s estate and the surviving members of her extended family. They assert that her death was preventable and would not have occurred but for the negligence of a variety of health care providers.

[3] The plaintiffs advanced negligence claims against some 74 named defendants across three separate actions, including this one and the two set out on Appendix “A”. Most of the defendants have been released from the claims by agreement between the parties. Southlake remains, as do nine physicians, three nurses and a lab technician.

[4] Seven of the nine remaining physicians move for summary judgment on the claims against them, arguing that the plaintiffs have failed to produce expert evidence capable of establishing the standard of care they were required to meet and of establishing that they failed to meet such a standard.

[5] The seven moving defendants are:

• Dr. Sood - Ms. Owala’s family doctor (2003-2009)
• Dr. Pike - A consulting endocrinologist
• Dr. Levinson - A consulting cardiologist
• Dr. Joshi - A Southlake emergency room physician
• Dr. Lam - Ms. Owala’s family doctor (post 2011)
• Dr. Otto - walk-in clinic physician
• Dr. Buckler - radiologist on October 17, 2013

[6] The plaintiffs ask the court to dismiss the physicians’ motions, asserting that they have produced ample evidence to support findings of negligence against each of them. The plaintiffs served a counter motion to consolidate their three claims and to obtain a production order against a number of the defendants.

THE LIVE ISSUES

[7] The plaintiffs’ claims have been outstanding for some time. The discovery process is complete – both oral and documentary (subject to the relief claimed in the plaintiffs’ counter-motion). Experts’ reports have been exchanged. All three actions have been set down for trial. Two pre-trial conferences have been conducted.

[8] The moving defendants assert that the plaintiffs are not now, and will not at trial be, in a position to lay a sufficient evidentiary foundation to establish the standards of care against which their conduct is to be measured, much less to establish any breaches of those standards.

[9] It will be necessary, therefore, to determine what the essential elements of a medical negligence claim are and to determine whether the plaintiffs have tendered evidence capable of establishing each of those essential elements. If so, then there will be genuine issues that will require a trial to resolve. If not, then there will be no genuine issue requiring a trial to resolve.

[10] The moving plaintiffs take the position that the summary judgment motions should be dismissed. They seek consolidation of the outstanding claims. There is no serious opposition to that relief. They also seek leave to serve a jury notice in relation to the consolidated claims. Again, there is no serious opposition to that relief. Finally, they seek an order that the defendants produce original documentation for inspection. Two issues arise from this final request. First, whether the defendants are precluded from seeking such relief by reason of having set the actions down for trial. Second, as a factual matter, whether there are any original records that have not been made available for inspection already.

OVERVIEW

[11] To understand the motions, it is necessary that I review the substance and progression of the plaintiffs’ three claims. I intend to provide the necessary overview in three parts.

[12] In the first part, I will set out a basic history of the medical care Ms. Owala received in the years leading up to her attendance in the Southlake emergency room on October 17, 2013. The record filed with the court is factually dense. Ms. Owala consulted a very significant number of physicians over the course of a decade. Not all of that record is germane. I will focus on her consultations with Drs. Sood, Pike and Levinson.

[13] In the second part I will describe the events surrounding Ms. Owala’s attendance at the Southlake emergency department on October 17, 2013.

[14] Finally, I will provide a brief history of the litigation.

Medical Care Prior to October 2013

[15] Millicent Owala came to Canada in December 2002, along with her husband and their three young children. They came as refugees from Kenya. They settled in York Region. Ms. Owala obtained a job as a teacher at an elementary school in Richmond Hill.

[16] Shortly after their arrival in Canada, Ms. Owala and her children became patients of Dr. Alok Pal Sood, who had offices in Toronto at the Albany Medical Clinic. Dr. Sood remained Ms. Owala’s family physician until about 2009. Dr. Michael Andrew Chi-Lun Lam took over that role in about 2011. In addition, Ms. Owala saw Dr. George Otto at a local, walk-in clinic on a sporadic basis.

[17] In April 2003 Dr. Sood referred Ms. Owala to an endocrinologist, Dr. Malcolm Pike, for assessment and evaluation of a thyroid mass. He suspected that she had hyperthyroidism. Dr. Pike saw Ms. Owala on April 7, 2003 and wrote a report to Dr. Sood that same date. He noted that Ms. Owala had a history of hypertension. She complained as well of intermittent sharp chest pains lasting for a few minutes, occasional numbness and discomfort in her arms, generalized sweating and occasional palpitations while at rest.

[18] Dr. Pike indicated to Dr. Sood that the cause of Ms. Owala’s hypertension was unclear. He said that she had aortic valve disease and he scheduled an echocardiogram for April 15, 2003. He also suggested that she be referred for a cardiac assessment. He asked Ms. Owala to return to see him in three to four weeks.

[19] The echocardiogram conducted on April 15, 2003 disclosed the presence of aortic regurgitation.

[20] Dr. Sood referred Ms. Owala to a cardiologist for further assessment, specifically Dr. Ari David Levinson, a staff cardiologist at Toronto East General Hospital, who also ran a practice at the Albany Medical Clinic in Toronto.

[21] Dr. Levinson saw Ms. Owala for the first time on June 12, 2003. He ordered a trans-thoracic echocardiogram (“TTE”), a transesophageal echocardiogram (“TEE”) and a treadmill test. Dr. Levinson conducted the TEE on June 19, 2003. It revealed central aortic valve regurgitation due to mild aortic root dilatation and dilatation of the proximal ascending aorta. Dr. Levinson prepared a report to this effect on June 19, 2003 and sent a copy of it to Dr. Sood and Dr. Pike. He noted that clinical follow-up would be through his office.

[22] Ms. Owala saw Dr. Pike again on June 17, 2003 regarding her thyroid issues. She had made and cancelled an earlier appointment. On June 17, she advised Dr. Pike of ongoing chest pains during the night. Her status appears to have otherwise been, by and large, unchanged.

[23] On June 25, 2003 Dr. Levinson conducted the treadmill test. He prepared a report for Dr. Sood and Dr. Pike that reflected his opinion that Ms. Owala had uncontrolled hypertension along with aortic root dilatation and aortic insufficiency. He suggested that they initiate a beta blocker and he prescribed Atenolol and Dyazide in an effort to reduce her blood pressure. He thought it important to keep her blood pressure below 130/80 to inhibit further expansion of the aortic root. He noted, “We will need to keep a very close eye on this lady and the aortic root and ascending aorta dimensions in the future.”

[24] Dr. Levinson saw Ms. Owala again on July 7, 2003. He discussed the results of the TEE with her. He wrote a report to Dr. Sood indicating that Ms. Owala should be seen annually and that her blood pressure should be kept below 130/80.

[25] Dr. Levinson saw Ms. Owala again on October 18, 2004 for follow-up. He noted that her blood pressure was not being adequately controlled. He performed a TTE which showed that the dimension of the ascending aorta had not changed. The severity of aortic regurgitation also remained unchanged. Dr. Levinson noted in a report to Dr. Sood that he would see Ms. Owala again in another year, or earlier if the need arose.

[26] Dr. Levinson in fact never saw Ms. Owala again. His office notes reflect that an appointment was scheduled for Ms. Owala on October 20, 2005 but that she did not show up. There is no way to know how or when that appointment was scheduled or by whom, or even if Ms. Owala knew about it.

[27] Ms. Owala was re-referred to Dr. Pike in late 2004 for evaluation of suppressed TSH (thyroid-stimulating hormone). Dr. Pike saw her on November 8, 2004. He noted she had lost about twelve pounds over the prior 18 months. She remained hypertensive. After examination, he concluded that she had a mild case of hyperthyroidism. He scheduled her for a thyroid scan and scheduled a follow-up appointment for December 16, 2004.

[28] Dr. Pike’s report to Dr. Sood dated December 16, 2004 indicated that her thyroid tests were normal. He reported that her blood pressure was 130/80, which was within the target range. She had a persistent left thyroid nodule which he suspected was benign. Nevertheless, he scheduled a fine needle aspiration biopsy for February 9, 2005. It is unclear whether she ever had the biopsy. A follow-up appointment was scheduled for February 28, 2005, which Ms. Owala rescheduled to April 14, 2005. She failed to attend the April appointment.

[29] In December 2009, Ms. Owala met with Dr. Sood. Dr. Sood’s notes reflect that she was interested in pregnancy and reported having no chest pains. She remained hypertensive. Dr. Sood re-referred Ms. Owala to both Dr. Pike and Dr. Levinson for follow-up. It does not appear that she saw Dr. Pike again. Dr. Levinson’s records reflect that an appointment was scheduled for Ms. Owala for February 12, 2010 but that she was again a no-show. The circumstances surrounding this “no-show” are again unknown.

[30] Undoubtedly, a major question left largely unanswered by the evidentiary record, is why Ms. Owala did not have any further cardiac follow-up after October 2004.

[31] Ms. Owala did attend Southlake’s emergency department on August 9, 2009 at about 11:30 a.m. complaining of sharp, midsternal chest pain that radiated to her left arm. She disclosed her history of hypertension, but said nothing of her dilatated aorta. On examination, her blood pressure readings were 167/85 in her right arm and 177/98 in her left arm. She was given aspirin, had blood work done, had an EKG and a chest x-ray.

[32] Ms. Owala’s EKG readings were normal and the chest x-ray did not disclose any abnormalities. She was assessed by Dr. Joshi, who prescribed medication for hypertension and discharged Ms. Owala at about 6:30 p.m. when her blood pressure readings fell within the normal range and her pain had largely subsided. Dr. Joshi thought her chest pain to have a musculo-skeletal origin.

[33] Ms. Owala re-attended at Southlake’s emergency department on June 8, 2012 complaining of a cough and with one episode of blood in her sputum. A chest x-ray was taken and the results were unremarkable.

[34] Dr. Lam’s first involvement with Ms. Owala appears to have been in 2011 when she saw him several times for minor issues. They had a more involved meeting in January 2012 when Dr. Lam took a full medical history from her. Ms. Owala made note of a “leaky valve”. On March 24, 2012 Dr. Lam referred Ms. Owala for cardiac testing and an echocardiogram. She apparently did not follow up with those tests.

[35] In late August 2013, Dr. Lam received a copy of the TEE performed on Ms. Owala in June 2003, which revealed the presence of central aortic valve regurgitation due to mild aortic root dilatation and dilatation of the proximal ascending aorta. Dr. Lam did not see Ms. Owala between this time and her death on October 17, 2013.

October 17, 2013

[36] At about 10:00 a.m. on October 17, 2013, Ms. Owala felt an onset of severe pain in the left side of her chest while teaching a lesson to her class. She drove home and eventually called for an ambulance at about 11:20 a.m.. For unknown reasons, the ambulance did not arrive until about 1 p.m. The attending paramedics performed an electrocardiogram, which did not demonstrate any remarkable findings. Ms. Owala was given chewable aspirin and was conveyed to Southlake’s emergency room, arriving at about 1:34 p.m.

[37] At triage, Ms. Owala described chest pain radiating into her neck and a feeling of “tightness”. She reported a history of hypertension, but apparently did not mention any issues with aortic dilatation. Her blood pressure was initially measured at 161/82, though it was measured at consistently higher levels than that throughout the afternoon.

[38] According to Southlake’s records, Ms. Owala was seen by Dr. David Makary and his student at 2:00 p.m. She described the onset of chest pain beginning at about 11:00 a.m. Curiously, she stated that she had not had previous episodes of chest pain, but did have a history of anxiety and multiple recent stressors. She also mentioned her history of hypertension, but made no mention of any specific cardiac issues.

[39] Dr. Makary ordered a cardiac “work up” which included blood tests, a “D-Dimer” test to rule out the presence of a blood clot, an EKG and a chest x-ray. He prescribed morphine, gravol and nitroglycerine for symptom control.

[40] The EKG revealed non-specific abnormalities. Dr. Makary suspected these were due to ischemic changes. Ms. Owala’s blood tests were otherwise normal.

[41] I am not entirely clear about when exactly Ms. Owala had her chest x-ray. Dr. Buckler was the radiologist who reviewed the x-ray. His brief report of October 17, 2013 indicates that she arrived in the imaging department at 1:57 p.m., which would be three minutes before she was initially assessed by Dr. Makary. The x-ray itself is apparently time-stamped 2:25:31 p.m. Dr. Buckler’s report was prepared at the same time as that time stamp and released at 5:35 p.m. It was placed into what is called the “ER discrepancy queue”. The report was available to be reviewed by Dr. Makary once it was placed in that queue. It is not clear to me, however, whether the actual x-ray image was available to be reviewed by Dr. Makary prior to 5:35 p.m.

[42] Dr. Buckler’s report said as follows:

There is enlargement of the cardiopericardial silhouette with cardiothoracic ratio of 17/28. This is increased compared to the previous examination and this patient should be further investigated for cardiomegaly or pericardial effusion. The lungs and pleura appear clear.

[43] At about 4:15 p.m., Dr. Makary re-assessed Ms. Owala. She reported that she continued to be in pain, but that it had significantly improved. A further EKG was ordered.

[44] Dr. Makary apparently reviewed Dr. Buckler’s report at 6:15 p.m., just shortly before Ms. Owala died. Dr. Makary assessed Ms. Owala once again at that time. He was concerned about the x-ray and was of the view that Ms. Owala needed further tests and possibly admission. He wanted her to consult with a cardiologist, but direct referral to cardiology from an ER doctor is not available at Southlake for reasons not explained to me. Dr. Makary therefore referred Ms. Owala for consultation with the internist on call and ordered further blood tests.

[45] It was all for naught, as Ms. Owala went into cardiac arrest at 6:26 p.m.. A code blue was called. It was responded to by a number of medical staff, including Dr. Parham Davoudpour, who performed CPR in an unsuccessful attempt to resuscitate Ms. Owala. This interaction was Dr. Davoudpour’s only contact with Ms. Owala.

[46] The plaintiffs initiated a claim on February 24, 2014 by way of a Notice of Action. The plaintiffs sought $4,000,000 in general damages, $11,000,000 in special damages, $1,000,000 in exemplary damages, and damages under the Family Law Act totaling $6,295,000.

[47] There were 24 named defendants in the first claim including Southlake, Drs. Makary, Davoudpour and Buckler, nurses Lisa Laramee, Nicole Watts and Abigael Boakye and a lab technician, Christine Miltenberg. Over time the balance of the defendants, apart from these eight, were released from the proceedings, on consent.

[48] The second claim – seeking identical damages to the first – was initiated on May 2, 2014 against sixteen named defendants, including Dr. Sood, Dr. Pike, Dr. Levinson, Dr. Lam and Dr. Moloo. These five defendants remain in the action, while the balance have since been released on consent. Dr. Moloo is a pathologist who allegedly conducted diagnostic and laboratory tests for Drs. Sood, Pike, Levinson and others. Dr. Moloo moved to Kenya. He was served with the claim but never defended it.

[49] The third claim was initiated on September 18, 2014, seeking identical damages to the first two claims. There were 34 named defendants including Dr. Joshi and Dr. Otto. They remain the only defendants in the third action going forward. All other defendants were released at one time or another, on consent.

[50] A jury notice was delivered by the plaintiffs in relation to the second action but not the first or the third. The Regional Municipality of York was a named defendant in the first action, which precluded the possibility of a trial of that action before a jury. York Region has subsequently been let out of the action. I am not clear as to why a jury notice was not served in relation to the third action.

[51] Examinations for discovery were conducted in all three actions together in 2015. The plaintiffs filed trial records in all actions on July 15, 2016. A pre-trial conference was conducted on October 5, 2018 and a second on January 31, 2019. The matter was traversed to trial scheduling court on July 25, 2019. A trial date was not set at that time, given the impending motions. A second trial scheduling court is set for October 30, 2019.

THE EXPERT EVIDENCE

[52] The evidentiary record before the court includes the reports of ten medical experts. Three were produced by the plaintiffs and seven by the moving defendants. I will briefly review their substance, beginning with the defendants’ experts.

Dr. Ian Preyra

[53] Dr. Preyra is the Chief of Emergency Medicine at St. Joseph’s Healthcare, Hamilton, Ontario. He has prepared a report regarding the standard of care to be provided by emergency room physicians when a patient attends with chest pain. He ultimately opined that Dr. Makary met the standard of care expected of a skilled and prudent emergency room physician. He has also prepared a supplementary report that opined that Dr. Davoudpour met or exceeded the applicable standard of care in his emergency room treatment of Ms. Owala.

[54] I note that Dr. Makary is not one of the defendants moving for summary judgment. He accepts, as I understand, that there are genuine issues for trial with respect to the standard of his care.

[55] With respect to Dr. Davoudpour, the plaintiffs have elected to release him from these proceedings.

Dr. Paul Marrocco

[56] Dr. Marrocco is a radiologist at Northumberland Hills Hospital in Cobourg, Ontario. He has prepared a report focusing on Dr. Buckler’s conduct in reading and reporting on Ms. Owala’s chest x-ray on October 17, 2013. In his opinion, “the great majority of competent radiologists would have conducted themselves just as Dr. Buckler did”. His view is that Dr. Buckler met the standard of care expected of a reasonably competent radiologist in his treatment of Ms. Owala.

Dr. Peter Walker

[57] Dr. Walker is a specialist in endocrinology. He was retained by defence counsel to provide an opinion with respect to the care provided to Ms. Owala by Dr. Pike. He reviewed the history of Dr. Pike’s involvement with Ms. Owala. He then opined that Dr. Pike clearly met the accepted standards of practice at the time in both his assessment and interventions related to Ms. Owala’s hyperthyroidism and also his assessment of her thyroid nodules.

Dr. Gregory Morris

[58] Dr. Morris is a specialist in family medicine, retained by the defence to opine about the care provided to Ms. Owala by Dr. Sood and Dr. Lam. In his report, Dr. Morris reviewed the interactions that Drs. Sood and Lam had with Ms. Owala. He offered the opinion that both doctors met the expected standard of care of a reasonable and competent physician. He attributed the fact that Ms. Owala’s cardiac condition was not carefully monitored to Ms. Owala’s failure to follow through on necessary appointments and investigations.

Dr. Christopher Buller

[59] Dr. Buller is a cardiologist at St. Michael’s Hospital in Toronto. He was asked by defence counsel to provide an opinion about the care provided by Dr. Levinson to Ms. Owala. He opined that the care provided by Dr. Levinson was “careful, appropriate and very well aligned with the standard of care of the day”. He attributed the failure to follow-up with further cardiac care to factors outside of Dr. Levinson’s control.

Dr. William Thomas Stanton

[60] Dr. Stanton is another specialist in family medicine retained by defence counsel. He was asked to provide an opinion about the level of care provided to Ms. Owala by Dr. George Otto. Recall that Dr. Otto’s involvement with Ms. Owala was limited to periodic consultations in a walk-in clinic setting. In total he saw her 13 times between February 2006 and March 2010. The majority of these visits were to check her blood pressure and renew her hypertension medication. Other visits were for miscellaneous, non-cardiac, concerns.

[61] Dr. Stanton opined that Dr. Otto met the standard of care expected of a family doctor in his evaluation and management of Ms. Owala.

Dr. Brian Steinhart

[62] Dr. Steinhart is a specialist in emergency medicine. He works as an emergency room doctor at St. Michael’s Hospital in Toronto. He was retained by the defence to provide an opinion regarding the standard of care provided by Dr. Joshi to Ms. Owala on August 9, 2009. He reviewed Dr. Joshi’s interactions with Ms. Owala and concluded that his diagnosis of chest pain due to musculo-skeletal cause was appropriate. He also dutifully addressed Ms. Owala’s mild hypertension. Dr. Steinhart ultimately opined that Dr. Joshi’s care met, if not surpassed, the standard expected of him.

[63] Having briefly summarized the defendants’ experts’ reports, I will move on to those filed by the plaintiffs on these motions.

Dr. David Fitchett

[64] Dr. Fitchett is an attending cardiologist at St. Michael’s Hospital in Toronto. He was retained by the plaintiffs to opine on (1) the cause of Ms. Owala’s death and how it was related to the care she received at Southlake; (2) the standard of care of the emergency room physicians on October 17, 2013 and how it contributed to Ms. Owala’s death; and (3) the failure to obtain consultation.

[65] Dr. Fitchett reviewed Ms. Owala’s clinical history, including the referrals to Drs. Pike and Levinson and her visit to the Southlake emergency department in August 2009 when she was attended to by Dr. Joshi.

[66] Dr. Fitchett expressed the opinion that it is likely that Ms. Owala’s aortic dilatation progressed in the nine years prior between 2004 (when she last saw Dr. Levinson) and 2013. He thinks it likely that, had further dilatation been detected, Ms. Owala would have elected to have surgery to repair the aorta. He was unable, however, to apportion blame for the failure of follow-up between Drs. Sood, Lam and Levinson and Ms. Owala.

[67] He commented on Ms. Owala’s visit to the Southlake emergency room in August 2009 and the care she received from Dr. Joshi while there. In his opinion, Dr. Joshi should have considered aortic dissection as a differential diagnosis and he criticized the lack of any instruction to follow up with Dr. Sood or Dr. Lam. He thought it possible that Ms. Owala’s prolonged experience of chest pain was due to a small aortic dissection. He did not go so far as to opine that Dr. Joshi’s care fell below that expected of a prudent and careful emergency room doctor.

[68] He expressed a different view with respect to the care provided by Dr. Makary on October 17, 2013. He opined, with respect to that care, that Dr. Makary fell below the acceptable standard of a physician responsible for the evaluation of patients with chest pain. I will not drill down into the reasons for Dr. Fitchett’s opinions about Dr. Makary given that Dr. Makary is not seeking summary judgment at this time.

Dr. Eric Fonberg

[69] Dr. Fonberg is a specialist in emergency medicine and an active member of the emergency room staff at Scarborough Rouge Hospital. He was retained by the plaintiffs to provide an opinion about the care received by Ms. Owala in the Southlake emergency room on October 17, 2013.

[70] In Dr. Fonberg’s opinion, Dr. Makary failed to meet the standard of care expected of an emergency physician in Ontario in 2013. His failure to recognize the diagnosis of aortic dissection and manage Ms. Owala appropriately directly contributed to her death, in Dr. Fonberg’s view.

RN Rhonda Seidman-Carlson

[71] Ms. Seidman-Carlson is a registered nurse. She worked full-time in that occupation between 1973 and 2015, when she retired. Post-retirement she has operated a consulting firm specializing in assisting with the application of best practices.

[72] Ms. Seidman-Carlson provided a brief case review, then provided an opinion on the clinical management of Ms. Owala in the Southlake emergency room on October 17, 2013. While acknowledging that she is not a physician, nor a cardiologist specifically, given some of the irregularities on Ms. Owala’s EKGs, she would have asked if something more was happening with the patient. In her view, an echocardiogram should have been ordered, as well as an urgent cardiology consultation. She also offered the opinion that radiology (i.e. Dr. Buckler) should have called Ms. Owala’s abnormal heart x-ray results directly into the emergency department.

[73] Ms. Seidman-Carlson did not go so far as to offer a bottom-line opinion as to whether Drs. Makary and/or Buckler failed to meet an applicable standard of care. Not being an expert in cardiology, emergency room medicine or radiology, I think it highly unlikely that she would be in a position to offer such an opinion. It is similarly unlikely that she would be qualified by the court to give opinions in areas she is not an expert in.

[74] Ms. Seidman-Carlson did offer a bottom-line opinion regarding the nursing care received by Ms. Owala in the emergency room on October 17, 2013. In her view, the nursing care fell below standards relating to the sharing of concerns with the attending physician and of requesting consultation with further specialists.

[75] I note that none of the nurses named as defendants in this proceeding are presently seeking summary judgment.

[76] Having provided a somewhat detailed overview of Ms. Owala’s clinical history and the expert reports filed on this motion, I will move now to a review of the legal principles that control the disposition of these motions, then on to my analysis of the live issues.

THE LEGAL FRAMEWORK

Adjudication of Summary Judgment Motions

[77] In the ordinary course, litigants can expect civil claims to progress through four broad stages: pleadings, discoveries, a pre-trial conference and a trial. In some cases, however, it is unnecessary to proceed through all four stages before a claim can be fairly and finally disposed of.

[78] The Rules of Civil Procedure expressly contemplate a variety of circumstances in which actions might be disposed of without a trial: see specifically rules 19 through 24. A proceeding might, for instance, be dealt with by default against a party who fails to file a pleading. Alternatively, it may be that a case turns on a specific legal issue that can be resolved on a focused motion.

[79] Sometimes a party may be of the view that the facts and circumstances of a case are so clear that they do not require the “full machinery” of a trial. If that party is able to satisfy the court, on motion, that there is no genuine issue requiring a trial, then the court is directed, by Rule 20.04, to grant that party summary judgment.

[80] Rule 20 has been around, in various iterations, for decades. Prior to 2010 its utility was more or less understood to be for weeding out unmeritorious claims or defences. In 2010, however, the rule was amended to provide courts with greater flexibility to grant summary judgments where it is just and appropriate to do so. The amendments were introduced as one means of tackling the undeniably pressing issue of access to justice.

[81] While the basic threshold requirement for summary judgment was not altered, the 2010 revisions enhanced the powers of the motion judge to make findings of fact on contested evidence. Prior to the 2010 amendments, appellate jurisprudence had prevented motions judges from weighing evidence or making credibility findings on summary judgment motions. The amended rule altered the landscape significantly.

[82] Rule 20.04(2.1) now provides as follows:

In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[83] The controlling appellate authority on the scope and application of rule 20.04 is the Supreme Court’s decision in Hryniak v. Mauldin, 2014 SCC 7. Justice Karakatsanis described the philosophical approach to the rule in the following terms:

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just…Summary judgment motions provide one such opportunity. (Paras. 2-3).

[84] Hryniak confirms that rule 20 is no longer simply a mechanism to weed out clearly unmeritorious claims and defences. It now represents what the court described as a “significant alternative model of adjudication”. (Para. 45). The court’s new powers of adjudication are available unless it would be unjust to utilize them.

[85] Although the rule does not, on its face, appear to require a staged analysis, Hryniak instructs that rule 20.04(2) should, in fact, be applied in two stages.

[86] First, the motions judge must determine if there is a genuine issue requiring a trial based only on the evidence filed on the motion, without resort to the enhanced fact-finding powers described in rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner. If no genuine issue requiring a trial exists, judgment should be rendered accordingly.

[87] If the motions judge concludes at the first stage that a genuine issue for trial exists, then stage two is triggered. At stage two, the motions judge is directed to consider whether the need for a trial may be avoided by resort to the enhanced fact-finding powers set out in rule 20.04(2.1). The motions judge may utilize those powers, in his or her discretion, unless doing so would be contrary to the interests of justice.

[88] Though the 2010 amendments to rule 20 may have ushered in an alternative form of adjudication, not all of the jurisprudence developed under the former iteration of the rule became obsolete. To the contrary, a great deal of that jurisprudence remains as, or more, vital than it ever was.

[89] It remains the case, for instance, that the moving party has a legal and persuasive burden to establish that there is no genuine issue requiring a trial to resolve. It further remains the case that the responding party has an evidentiary burden to establish that there is a genuine issue requiring a trial. Each party must, in the circumstances “put their best foot forward”. Neither may rest on the allegations in their pleadings. The court is entitled, in the circumstances, to assume that the record before it on a summary judgment motion contains the core substance of the evidence that the parties will present at trial. See Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.) at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26 and 32; and Penretail Management Ltd. v. 2380462 Ontario Inc. (o/a Bolton Health Centre), 2016 ONSC 600, at para. 10.

The Essential Elements of a Medical Negligence Claim

[90] The tort of negligence provides a mechanism of recovery for parties who suffer injuries caused by someone else’s failure to meet a reasonable standard of behaviour recognized by the law as owing to the injured party.

[91] To succeed with a negligence claim, a plaintiff must be able to establish “that: (1) the defendant owed him or her a duty of care; (2) the defendant's conduct breached the applicable standard of care; (3) the plaintiff sustained compensable damage; and (4) the damage was caused, in fact and in law, by the defendant's breach”. See Turcotte v. Lewis, 2018 ONCA 359 at para. 43.

[92] This is a medical negligence claim. The plaintiffs allege that Ms. Owala was owed a duty of care by the defendant doctors who assessed and treated her. They further allege that her death was caused by numerous breaches of the standard of care owed to Ms. Owala by those doctors. And they claim that they have sustained compensable damages.

[93] There is no question that physicians owe a duty of care to their patients. Physicians must conduct themselves in accordance with the conduct of a prudent and diligent doctor in the circumstances. In the case of specialists, in other words where a physician is held out as possessing a special degree of skill and expertise, he or she must exercise the degree of skill of an average specialist in his or her field. See ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at para. 46.

[94] Accepting that the defendant physicians owed a duty of care to Ms. Owala, and assuming that the plaintiffs are capable of making out at least some compensable loss, the plaintiffs in this case must still establish the following essential elements, on a balance of probabilities:

(a) The applicable standard of care;

(b) A breach of that standard of care; and,

(c) Causation, in fact and in law.

See Drougov v. Apotex Inc., 2015 ONSC 2896 at para. 21.

[95] On a summary judgment motion, the plaintiff must, at a minimum, offer evidence capable of establishing each of these essential elements, failing which there can be no genuine issue requiring a trial.

[96] It appears well-settled that expert evidence is required to establish the essential elements of a medical negligence case. See, for instance, Rill v. Adams, 2018 ONCA 443 at para. 9; Liu v. Wong, 2016 ONCA 366 at para. 14; Larman v. Mount Sinai Hospital, 2014 ONCA 923, paras. 3-4; and Hirchberg v. Branson Drug Store, 2016 ONSC 4853 at paras. 41-42.

[97] The Court of Appeal succinctly described the requirement at para. 14 of Liu v. Wong, as above, as follows:

Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of expert evidence in support of the plaintiff’s medical malpractice claim is fatal. (Internal citation omitted).

DISCUSSION

The Requests for Summary Judgment

[98] As I noted, the evidentiary record filed on the motions was quite dense. In the decade or so before her death, Ms. Owala interacted with a huge number of health care providers. Most, if not all of them, appear to have been named defendants at one time or another by the plaintiffs. While most have been released from the actions, there are still a significant number of defendants remaining. Obviously it took some considerable time to set out the background to the claims and the pertinent expert evidence before the court. Applying the governing principles to this dense body of evidence is, however, relatively straightforward.

[99] As a starting point, the court is called upon to determine whether there is any evidence in the record capable of establishing the essential elements of a medical negligence claim. If not, then there can be no genuine issue requiring a trial.

[100] Except in the clearest of cases, evidence capable of establishing the essential elements of standard of care, breach and causation, means expert evidence.

[101] Each of the moving defendants has filed an expert report supporting the conclusion that he met the standard of care applicable in the circumstances relating to him.

[102] To the contrary, with respect to Drs. Sood, Lam, Otto, Pike and Levinson, the plaintiffs have not produced expert evidence establishing what standard of care they were required to meet in the circumstances in which they interacted with Ms. Owala. Similarly, the plaintiffs have not produced any expert evidence supporting the assertion that any of these physicians breached the applicable standard of care or that any such breach caused Ms. Owala’s death.

[103] With respect to Dr. Joshi, the plaintiff has produced the report of Dr. Fitchett. He offered the opinion that Ms. Owala’s prolonged experience of chest pain in August 2009 was possibly due to a small aortic dissection. He said that when a patient presents with severe hypertension and chest pain, aortic dissection has to be in the differential diagnosis. He noted that there did not appear to be any instruction given by Dr. Joshi to Ms. Owala to follow up with Dr. Otto or Dr. Lam.

[104] Dr. Fitchett acknowledged in his report that he is not an emergency room physician. Although he criticized Dr. Joshi, he did not go so far as to opine that Dr. Joshi’s care fell below that expected of a prudent and careful emergency room doctor. He did not articulate a standard of care applicable to Dr. Joshi in the circumstances, nor go so far as to say that anything Dr. Joshi did or did not do caused Ms. Owala’s death.

[105] Mr. Miguna argued that the language utilized by Dr. Fitchett in his report imports a standard of care and a breach of that standard. I disagree.

[106] I make the following observations about Dr. Fitchett’s remarks with respect to Dr. Joshi:

(a) Dr. Fitchett did not opine that Dr. Joshi’s care fell below an acceptable standard of care. By contrast, just five paragraphs after commenting on Ms. Owala’s care in the emergency room in August 2009, he opined that Dr. Makary’s care of Ms. Owala on October 17, 2013 fell below the acceptable standard of a physician responsible for the evaluation of patients with chest pain, because he did not consider or exclude aortic dissection as a differential diagnosis and he did not request consultation with an internist or cardiologist until it was too late;

(b) Dr. Fitchett produced two supplemental reports responding to expert reports filed by defence counsel relating to the care provided to Ms. Owala by Dr. Makary. He did not respond to the report of Dr. Steinhart with respect to the care provided by Dr. Joshi;

(c) Standards of care must be articulated with some precision. In Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, the Supreme Court provided the following guidance to trial courts on the process to be followed when articulating an applicable standard of care:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. (Para. 28);

(d) Dr. Steinhart set out, in his report, all of the factors that Dr. Joshi considered with respect to the possibility of aortic dissection. He considered the likelihood of aortic dissection and observed that it rarely occurs. He concluded that Dr. Joshi appropriately screened for it. He said Dr. Joshi’s care met or exceeded the standard expected of him in the circumstances. Contrast these statements with the minimal, arguably critical, comments that Dr. Fitchett made regarding Dr. Joshi’s interactions with Ms. Owala and it is obvious that Dr. Fitchett was not attempting to articulate a standard of care with respect to Dr. Joshi’s care, nor any breach of such a standard;

(e) Even if I had interpreted Dr. Fitchett’s report in the way urged upon me by Mr. Miguna, the plaintiffs would still have a significant problem in establishing causation in the claim against Dr. Joshi. To do so, the plaintiffs must establish that he either failed to diagnose the presence of an aortic dissection, or he failed to adequately follow up on a differential diagnosis of aortic dissection. Further, that had he properly diagnosed Ms. Owala, or otherwise ensured that she was properly followed up with, that the dissection would have been discovered and corrected surgically. The problem with this chain of reasoning, however, is that it is based on speculation. Dr. Fitchett’s suggestion that Ms. Owala may possibly have experienced a small aortic dissection in August 2009 is entirely speculative. It is perhaps one of many possible explanations for her chest pain, but as Dr. Steinhart’s report notes, it is an explanation that was screened for and ruled out by Dr. Joshi.

[107] Dr. Fitchett’s report does not, in my view, come close to establishing the standard of care that Dr. Joshi ought to have adhered to. Nor does Dr. Fitchett opine that Dr. Joshi failed to meet the standard of care applicable to him. Nor does he suggest that anything Dr. Joshi did or failed to do caused or contributed to Ms. Owala’s death. To be fair to Dr. Fitchett, I do not believe he was intending to suggest that Dr. Joshi was negligent. The focus of his report was Dr. Makary.

[108] With respect to Dr. Buckler, the only expert report to address his interaction with Ms. Owala was that of Ms. Seidman-Carlson. As I observed above, there is virtually no chance that Ms. Seidman-Carlson will be qualified as a specialist in radiology, capable of offering an opinion as to the standard of care applicable to Dr. Buckler. Moreover, while she expressed some concern about the delay in communicating the results of Ms. Owala’s chest x-ray to Dr. Makary, her report in no way purports to describe the standard of care against which Dr. Buckler’s actions are to be measured.

[109] In the result, I find that the plaintiffs have produced no expert evidence capable of establishing the core essential elements of their medical negligence claims against the moving defendants. This conclusion is fatal to the plaintiffs’ claims against these defendants, unless I conclude that this is one of those rare, “clearest of cases” where expert evidence is not required to establish standard of care, breach and causation.

[110] Mr. Miguna argued that, when all the circumstantial evidence is considered, this is a case where it is clear that a number of physicians were negligent and that their negligence caused or contributed to Ms. Owala’s death.

[111] Mr. Miguna’s submissions focused largely, though not entirely, on the gap in Ms. Owala’s cardiac care between 2004 and 2013. He noted that Dr. Levinson had indicated, in 2003, that a close eye was to be kept on Ms. Owala. But that is not what happened. Though she was followed into late 2004, an unexplained gap in cardiac follow-up occurred between that time and the date of her death. It is this gap in care, he says, that caused Ms. Owala to die from an otherwise treatable condition. The clear negligence on the part of the defendant physicians who treated Ms. Owala prior to October 17, 2013, according to Mr. Miguna, is their failure to monitor Ms. Owala’s condition – closely or at all – and/or their failure to impress upon her the need for regular monitoring.

[112] Mr. Miguna pointed to the following factors as cumulatively establishing the plaintiffs’ case against the defendant physicians with clarity:

(a) Mr. Miguna lays the blame for the absence of follow-up on Ms. Owala’s primary care physicians: Dr. Sood, Dr. Lam and Dr. Levinson principally. He suggests that wherever there are gaps in the evidentiary record regarding what Ms. Owala was told, when and by whom, a negative inference should be drawn against the defendants;

(b) There is an absence of evidence that Ms. Owala was copied on correspondence between physicians. In other words, she was not kept “in the loop”;

(c) No long-term plan of care was ever drawn up;

(d) There is a readily available inference that nothing was done that, had it been done, would have prevented Ms. Owala’s death;

(e) Doctors entrusted with Ms. Owala’s care were supposed to keep her blood pressure below 130/80 and they failed to do it. They were supposed to prescribe beta blockers to her and did not do so. They were to follow her closely, but did not do so. The gaps in Ms. Owala’s care are obvious and palpable; and,

(f) The authenticity of some of the notes and records of the defendant physicians is in issue. For instance, Dr Otto’s notes reflect numerous visits where Ms. Owala’s blood pressure was read at 120/80. In other words, optimal. But Ms. Owala was a patient with chronic hypertension. In Ms. Owala’s medical history, Dr. Otto appears to be the only one who obtained optimal readings at all, much less consistently. Mr. Miguna submitted that, in his view, Dr. Otto contrived his readings and changed his notes once he learned of Dr. Levinson’s directive that Ms. Owala’s blood pressure be kept below 130/80.

[113] I am, with respect, unable to agree that, in all the circumstances, this is one of those clear cases where expert evidence is not required to establish standards of care, breach and causation. If there was evidence capable of supporting the conclusion that Ms. Owala was not told that she had a dilatated aorta and/or that no efforts at all had been made by any of the defendant physicians to follow up on that diagnosis, I might well be persuaded by Mr. Miguna’s submissions. But that evidence is not present here.

[114] In fact, there is direct evidence in the record that Ms. Owala was indeed made aware of her cardiac condition and that efforts were made for follow up care in relation to that condition. Against that, the plaintiffs can offer only circumstantial evidence that, at its highest and best, is equivocal.

[115] There is clearly a gap in Ms. Owala’s cardiac care between 2004 and 2013, save for her attendance in the Southlake emergency room in August 2009. But it is unclear where the blame lies for that gap.

[116] There is direct evidence from Dr. Levinson that he discussed Ms. Owala’s cardiac issues with her. He saw Ms. Owala on June 12, June 19, June 25 and July 7, 2003. He conducted a transesophageal echocardiogram during the June 19, 2003 consultation. It is what revealed Ms. Owala’s aortic dilatation. Dr. Levinson had a follow-up appointment with Ms. Owala on October 18, 2004 where he checked for any progression of the dilatation.

[117] Dr. Levinson deposed that he discussed the result of Ms. Owala’s TEE with her on July 7, 2003. There is no direct evidence to the contrary. It seems incredibly unlikely to me that Dr. Levinson would not have discussed with Ms. Owala the results of the tests he conducted. And equally unlikely that she would not have asked about the results of an examination that required the transiting of a transducer down her throat far enough that it could take an image of her heart.

[118] All of this is to say that, on this record, one could not reasonably conclude that Ms. Owala was not told about her cardiac condition.

[119] Similarly, one could not reasonably conclude that attempts were not made to follow up with Ms. Owala regarding her cardiac condition. Both Dr. Levinson and Dr. Pike report that Ms. Owala made follow-up appointments with them, but failed to keep those appointments. She had an appointment scheduled for April 14, 2005 with Dr. Pike that she failed to attend. She similarly appears to have failed to attend appointments scheduled with Dr. Levinson for October 20, 2005 and February 12, 2010, though the circumstances surrounding the scheduling of the appointments and the no-shows are not entirely clear.

[120] Ms. Owala’s medical history demonstrates that she had no hesitation in attending doctors’ offices as and when she considered it necessary. The fact that she did not attend follow-up appointments with Drs. Pike and Levinson could arguably be explained by one or more of the following possibilities:

(a) She was perhaps unaware of her cardiac condition and/or that it required regular monitoring;

(b) She was unaware of the purportedly scheduled visits with Drs. Pike and Levinson;

(c) She was not experiencing any significant symptoms between 2004 and 2013, save for her visit to the emergency room in August 2009 (which was diagnosed as musculo-skeletal pain) and accordingly elected not to make or follow up with scheduled appointments; or,

(d) She failed to make or follow up with appointments for some other, unknown reasons.

[121] Obviously, Ms. Owala will not be able to tell her side of the story. In the circumstances, one is left to speculate about which possible explanation is accurate.

[122] Although ultimately it is up to the trier of fact to determine what, if any, inferences should be drawn from the evidence, in the circumstances of this case there is simply insufficient evidence upon which a trier of fact could reasonably conclude that Ms. Owala was not told about her medical condition and/or that attempts were not made to follow up with her.

[123] I am also of the view that while Dr. Otto’s consistent recordings of optimal blood pressure readings may be consistent with an alteration of Ms. Owala’s records, without more to go on, it is nothing more than speculation to suggest that he fabricated or altered those records.

[124] I appreciate the concerns of the plaintiffs. They have suffered the loss of someone dear to them in circumstances that may well have been preventable. In 2003 their loved one was diagnosed with what appears to have been a serious cardiac condition. It appears to have been a condition that certainly merited monitoring on a close basis. That did not happen. It is natural to look for someone to blame.

[125] In this case, the net of blame was initially cast particularly wide. It has been significantly narrowed, but in my view, not sufficiently.

[126] Before the court are expert reports filed by the moving defendants opining that each of them met the standard of care applicable in the circumstances. Against that evidence, I am asked to conclude that the circumstances are sufficiently clear that it would be obvious to any non-expert trier of fact what standards of care needed to be met and equally clear that those standards were not met. I am not able to reach that conclusion.

[127] It has been, in my view, unnecessary for me to resort to the enhanced fact-finding powers set out in rule 20.04(2.1). It was unnecessary for me to make credibility findings, weigh evidence, or draw inferences. I have concluded that the moving physicians’ summary judgment motions succeed because the plaintiffs simply have not adduced evidence capable of supporting their assertions of negligence against these parties.

[128] Reasonable people may disagree about whether I have engaged in at least some minimal weighing of the circumstantial evidence highlighted by the plaintiffs. I have concluded that the evidence tendered by the plaintiffs is not capable of supporting the inferences they urge upon it. Whether that is a result of a conclusion reached at stage one of the Hryniak inquiry, or stage two matters not in my view. It is not contrary to the interests of justice for me to engage in the very limited weighing of circumstantial evidence that I have done in this instance.

[129] I will accordingly move on to address the issues raised in the counter-motion.

The Consolidation Request

[130] The plaintiffs seek to consolidate this action (CV-14-117930) with actions CV-14-118590 and CV-14-120057. The proposed means of proceeding is for the plaintiff to file an amended pleading in the second action (CV-14-118590) consolidating all parties and claims.

[131] No significant opposition was voiced to the plaintiffs’ request to join the three actions, except to the proposal for new, amended pleadings to be delivered and responded to.

[132] In view of the numerous parties already released from the three proceedings and the results of the physician’s summary judgment motions, the remaining defendants in action CV-14-117930 are Southlake, Dr. Makary, the three nurses (Ms. Laramee, Ms. Watts and Ms. Boakye) and the lab technician (Ms. Miltenburg). The only remaining defendant in action CV-14-118590 is Dr. Moloo and he has been noted in default. In the third proceeding, CV-14-120057, there are no remaining defendants.

[133] Rule 6.01(1) of the Rules of Civil Procedure provides that the court may, on motion, join two or more proceedings where there are questions of law or fact in common or where the relief claimed arises from the same transaction or series of transactions. The basis for such an order exists here, but as I have noted, there is very little left to join up with action CV-14-117930.

[134] Out of an abundance of caution, I order that this action be heard together with the claim against Dr. Moloo, if it proceeds, in action CV-14-118590.

[135] Recall that the plaintiffs delivered a jury notice in relation to the second action (CV-14-118590) but not in relation to the first or third actions. The plaintiffs seek leave to deliver a jury notice now, in CV-14-117930. There is no opposition to the granting of leave as requested and accordingly, I grant the plaintiffs leave to serve a jury notice with respect to action CV-14-117930 should they choose to do so. To avoid prejudice to the defendants, I order that any such jury notice shall be served no later than December 1, 2019.

The Disclosure Request

[136] By way of counter-motion, the plaintiffs seek an order compelling further productions from many, if not all, of the defendants. The Notice of Motion does not make it clear precisely what documents were being sought. In oral argument, Mr. Miguna clarified that what he was looking for was an opportunity to inspect the original records of each of the defendants. He was particularly concerned about the original records of Southlake and its employees – Drs. Makary, Joshi and Buckler, as well as the three nurses and one lab technician named as defendants. He has some concern that there have been alterations to the original documents. He expressed the same concern with respect to the notes and records of Dr. Otto.

[137] According to Mr. Miguna, he has been asking for the opportunity to inspect original documents on an ongoing basis, dating back to December 2014.

[138] Counsel for the defendants submitted that there are no original documents in existence that Mr. Miguna has not been given access to for inspection purposes. Moreover, they argue that the plaintiffs’ production/inspection motion is presumptively prohibited by rule 48.04(1). That rule provides that no motion may be brought without leave of the court by a party who sets an action down for trial or who consents to the setting of the action down for trial. There are certain defined exceptions to that general prohibition, which do not apply here.

[139] The court’s discretion to grant leave to a moving party was historically limited to instances where a moving party could show a substantial and unexpected change occurring since the action was set down for trial. That restrictive approach appears to have given way to a more flexible one. Leave is now generally exercised where it is in the interests of justice to do so, all things considered. See BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737.

[140] I am prepared to grant leave to the plaintiffs to pursue their motion, essentially because it can be dealt with on its merits quickly and briefly.

[141] Given that I have granted summary judgment today dismissing the action against all of the remaining physician defendants, save for Dr. Makary and Dr. Moloo, any claims to inspect the records of Drs. Sood, Lam, Otto, Joshi, Buckler, Pike and Levinson are now moot.

[142] The remaining defendants, apart from Dr. Moloo, are all employees of Southlake Hospital and all of the records generated by each of them are maintained by the hospital. I am satisfied that the hospital scanned those records into digital format about two days after Ms. Owala’s death. The originals were then shredded, in accordance with the hospital’s record-keeping policy. Counsel to the hospital has extended an offer to Mr. Miguna to attend and view the scanned documents on the hospital’s software.

[143] Mr. Miguna argued passionately that it was highly irregular for the hospital to shred its original documentation so quickly after Ms. Owala’s death. In his submission, this case cannot be decided on its merits without access to original documentation.

[144] Section 20(1) of the Hospital Management Regulation, being R.R.O. 1990, Regulation 965, made under the Public Hospitals Act, R.S.O. 1990 c. P-40, permits hospitals governed by that Act, including Southlake, to “photograph records of personal health information for the purpose of retaining the contents thereof in lieu of the original documents”, provided the photographing is carried out in accordance with established procedures. I understand that that was the case here.

[145] I am satisfied that the original documents Mr. Miguna seeks to inspect no longer exist. He will be free, of course, to take Southlake to task at trial for their decision to shred the originals of records relating to Ms. Owala. He will be free to advocate that an adverse inference should be drawn from the fact that original documents were shredded so quickly after Ms. Owala’s death. Whether any such inference reasonably arises or is indeed drawn will be up to the trier(s) of fact at trial.

CONCLUSION

[146] In conclusion, the following orders are made:

(a) The defendant physicians’ motions for summary judgment are granted and the following claims of the plaintiffs are dismissed:

(i) all claims against Dr. Buckler in action CV-14-117930;

(ii) all claims against Drs. Sood, Pike, Levinson and Lam in action CV-14-118590; and,

(iii) all claims against Drs. Joshi and Otto in action CV-14-120057;

(b) The plaintiffs’ action against Dr. Davoudpour is dismissed, on consent;

(c) The plaintiffs’ motion to join actions CV-14-117930 and CV-14-118590 is granted. Those actions are ordered heard together;

(d) The plaintiffs’ motion for leave to extend the time for delivering a jury notice in action CV-14-117930 is granted. That time is extended to December 1, 2019.

(e) The plaintiffs’ motion for further disclosure and inspection of original documentation is dismissed.

Costs

[147] The parties may make written submissions on costs, not to exceed 3 pages in length, not including Costs Outlines. Submissions will be due on a two-week turnaround. The submissions of the moving defendants’ and those of Southlake are to be served and filed by November 6, 2019. The submissions of the plaintiffs are to be served and filed by November 20, 2019. Any reply submissions are to be served and filed by December 4, 2019. All submissions should be filed with the judicial secretaries’ office at Barrie.

Boswell J.

Released: October 23, 2019

Appendix A

Court File No. CV-14-118590-00

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ESTATE OF MILLICENT AGOLA OWALA, by the Estate Administrator, VIVIAN AWUOR OWALA, VIVIAN AWUOR OWALA, ANDY OCHIENG’ OWALA, a minor by his Litigation Guardian, Vivian Awuor Owala, MICHELLE ATIENO OWALA~~, a minor by her Litigation Guardian, Vivian Awuor Owala~~, PRISCA AKELO OGWENO, by her Litigation Guardian, Vivian Awuor Owala, LAWRENCE OTILA OGWENO, by his Litigation Guardian, Vivian Awuor Owala, JAMES ODERO OGWENO, by his Litigation Guardian, Vivian Awuor Owala and FELIX OGWENO OGWENO, a minor by his Litigation Guardian, Vivian Awuor Owala

Plaintiffs

and

DR. ALOK PAL SOOD, DR. MICHELLE SIMA LITNER, DR. MALCOLM JOHN PIKE, DR. ARI DAVID LEVINSON, DR. MICHAEL ANDREW CHI-LUN LAM, DR. A. HERMAN, DR. S. SPIEGEL, DR. A. VOURLAS, DR. D. RIDEOUT, DR. M. WALJI, DR. K. NEUFELD, J. MCELLIGON, DR. J. JARVIS, Z. MOLOO, DR. C. WANG AND CENTRAL TORONTO DIAGNOSTIC IMAGING OR INSIGHT DIAGNOSTIC IMAGING CORP.

Defendants

AND

Court File No. CV-14-120057-00

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ESTATE OF MILLICENT AGOLA OWALA, by the Estate Administrator, VIVIAN AWUOR OWALA, VIVIAN AWUOR OWALA, ANDY OCHIENG’ OWALA, a minor by his Litigation Guardian, Vivian Awuor Owala, MICHELLE ATIENO OWALA~~, a minor by her Litigation Guardian, Vivian Awuor Owala~~, PRISCA AKELO OGWENO, by her Litigation Guardian, Vivian Awuor Owala, LAWRENCE OTILA OGWENO, by his Litigation Guardian, Vivian Awuor Owala, JAMES ODERO OGWENO, by his Litigation Guardian, Vivian Awuor Owala and FELIX OGWENO OGWENO, a minor by his Litigation Guardian, Vivian Awuor Owala

Plaintiffs

and

DR. BRUCE ANDREW HERMAN, DR. J. MCELLIGOTT, DR. ZAHIR ABDULRAHEMAN FAZAL MOLOO, DR. ANDRZEJ TOMASZ WOJCICKI, DR. YIN-HUI SIOW, DR. RONALD DEAN CURTIS, DR. NOEL BURTON LANGHORNE, DR. HWAYUE LIU, DR. DAVID MATHEW KIRSH OR DAVID KIRSH MEDICINE PROFESSIONAL CORPORATION, DR. GEOFFREY MICHAEL LITNER, DR. VINCE ANAND PARTAP, DR. KAREN WONG #78070, DR. VIRAT JOSHI, DR. PETER KAROL SWITAKOWSKI, DR. SAMAR SAMAHA, DR. KENNEITH KACHU LIANG, DR. EUKELEJDA TELI BOLLANO, DR. VASSELINA IANKOVA, DR. GEORGE WILLIAMS OTTO, DR. HARSHADRAI MANIBHAI PATEL, DR. PHILIP FRAZER STUART, DR. PATRICK KIN-YING SHIU, DR. KAI KOK LAI, DR. MARKO DUIC, DR. VIRGINIA MARGARET WALLEY, DR. JAMES JOSEPH LIMACHER, DR. KUNNIPARAMPI NINAN ALEXANDER, DR. STEPHEN JOHN CLUFF, DR. DAVID ART WONG, TORONTO EAST GENERAL HOSPITAL, CANADIAN MEDICAL LABORATORIES LIMITED, CML HEALTHCARE INC., YORK MEDICAL NEWMARKET, ALL MED HEALTH CLINIC OR ALL HEALTH FAMILY MEDICINE AND WALK-IN CLINIC, LIFELABS LP #05407 – MISSISSAUGA AND LIFELABS #05637 – ETOBICOKE

Defendants