Court File and Parties

COURT FILE NO.: 15-63434 DATE: 2020/05/25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL BOONE, by his litigation guardian LAURENCE BOONE ELIZABETH BOONE, ELIZABETH BOONE and LAURENCE BOONE Plaintiffs – and – DR. KWADWO KYEREMANTENG, DR. JOSE AQUINO JR., THE OTTAWA HOSPITAL, PAULE MARCHAND and COLLEEN ACHARYA Defendants

Counsel: Joseph Y. Obagi, for the Plaintiffs Wayne Brynaert, for the Defendants, Drs. Kyeremanteng and Aquino Kim Dullett, for the Defendants, The Ottawa Hospital, Paule Marchand, and Colleen Acharya

HEARD: In Writing

Endorsement

(Motion for Approval of Partial Settlement)

Corthorn J.

Introduction

[1] Paul Boone is in his late fifties. In his early childhood, Paul was diagnosed with developmental delays. He has been dependent on his parents for all of his life. Paul has never lived independently from his mother, Elizabeth, and father, Laurence. Paul is a “person under disability” within the meaning of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 (“Rules”).

[2] In October 2010, Paul experienced a fall that resulted in an injury to his head. Paul received treatment at the Ottawa Hospital (“the Hospital”). The treatment included the insertion of an inferior vena cava filter within two weeks of the date of the injury. The filter was removed on February 4, 2011.

[3] Paul’s post-surgical condition on February 4, 2011 was such that he was immediately transferred to the University of Ottawa Heart Institute. He underwent emergency surgery, and his condition stabilized. On February 6, 2011, members of the Hospital staff noted that Paul had no movement in his legs and feet. Prior to the removal of the filter on February 4, 2011, Paul was fully mobile. He is now a paraplegic and unable to walk independently.

[4] In February 2015, this action was commenced (“the Action”). Paul’s mother is his litigation guardian. Paul’s parents are also plaintiffs. The defendants are the Hospital, two nurses, and two physicians. The individual defendants were involved in the removal of the filter on February 4, 2011.

[5] A partial settlement was negotiated in January 2019. The “Settling Defendants” are the Hospital and nurses, Paule Marchand and Colleen Acharya. The “Non-Settling Defendants” are the two physicians. Minutes of settlement were executed by or on behalf of all of the parties. The terms of settlement include that (a) the claims against the Settling Defendants are to be dismissed without costs, and (b) the Settling Defendants agree to co-operate with the Plaintiffs in their pursuit of the action against the Non-Settling Defendants.

[6] Court approval is required of (a) the contingency fee retainer agreement pursuant to which Paul’s counsel are retained (“Agreement”), and (b) the Partial Settlement. The Agreement was approved in November 2018. On this motion, the Plaintiffs seek approval of the Partial Settlement.

[7] In anticipation that the Partial Settlement would be reached, Paul served a notice of constitutional question on the Attorney General for Ontario and the Attorney General for Canada. Paul submitted that the Rules infringe upon the right of persons under disability, pursuant to s. 15(1) of the Charter of Rights and Freedoms, to be free from discrimination. Paul sought a declaration that, because of their discriminatory effect, both r. 7.08(1) of the Rules (Court Approval of Settlements) and s. 5 of O. Reg. 195/04 (Contingency Fee Agreements and “the Regulation”) are of no force and effect: see s. 52 of the Constitution Act, 1982.

[8] The Charter challenge was heard subsequent to the date on which the Partial Settlement was reached. The motion for approval of the Partial Settlement was adjourned, pending the outcome of the Charter challenge. That challenge was dismissed: Boone v. Kyeremanteng, 2020 ONSC 198 (“the Ruling”).

[9] The evidence Paul relied on for the purpose of the Charter challenge did not include substantive evidence relevant to the motion for approval of the Partial Settlement. It was therefore incumbent upon the Plaintiffs to deliver a supplementary motion record: Ruling, at paras. 74 and 75.

[10] The Plaintiffs delivered a supplementary motion record (“the SMR”). The evidence Paul relies on is insufficient to permit the court to rule on the approval motion. The motion is adjourned to permit the Plaintiffs to deliver the requisite evidence.

The Evidence

a) Form

[11] The SMR includes an affidavit from each of the litigation guardian and Plaintiffs’ counsel. The exhibits attached to the former (“Exhibits”) are on a USB stick. Paper copies of the Exhibits are not provided.

[12] The Exhibits include copies of the following documents:

• The affidavit of documents of Sary Buchmayer, Paule Marchand, and Colleen Acharya;
• The Schedule A documents listed in the above-noted affidavit of documents;
• The “Patient Record Access Report / Audit Trail”;
• The transcripts of the examinations for discovery of Sary Buchmayer and Colleen Acharya;
• The expert report of Carolyn Sibbick dated June 25, 2018; and
• The report of Carol Bierbrier and Associates dated March 19, 2018.

[13] There are two aspects of the form of the SMR that merit mention. First, filing documents on a USB stick does not comply with either the Rules or the Notices to the Profession (the latter with respect to the period of suspension of usual court operations). Second, the pages of a motion record must be consecutively numbered: r. 37.10(2). With the Exhibits filed on a USB stick, the SMR does not comply with that subrule. The numbering of pages was helpful to the court prior to the suspension of usual court operations. Numbering of pages will be even more helpful given the reliance, indefinitely, on electronically filed materials.

b) Substance

[14] In the Ruling, the court reviewed the type of evidence required on an approval motion. The court referred to the decisions of Thorburn J. in Rivera v. Leblond (2007), 44 C.P.C. (6th) 180 (Ont. S.C.) and Melnick, J. in Makowsky (Guardian ad litem of) v. Jaron, 2004 BCSC 2, 26 B.C.L.R. (4th) 297. I shall not, in this endorsement, repeat the review of those decisions.

[15] In summary, counsel’s obligation is to provide “assurance to the court that he [or she] has taken the steps that would be expected of competent counsel to get the best result possible for his [or her] client”: Makowsky, at para. 4.

[16] Neither the litigation guardian nor Plaintiffs’ counsel provided the court with the evidence necessary to permit it to rule on the motion. The types of analyses required, specifically those described in Rivera, are not included in the supporting affidavits in either the original record or the SMR.

[17] The Plaintiffs and their counsel continue to rely on solicitor-client privilege as a basis for not providing those analyses. Yet, it is not necessary for the Plaintiffs or their counsel to disclose privileged matters when providing those analyses: Ruling, at para. 55.

[18] Alternatively, if there is a concern about the disclosure of information that is subject to solicitor-client privilege, then the Plaintiffs may wish to consider the two options discussed in the Ruling. The first option is to seek a temporary sealing order for the materials delivered on the court approval motion. The second option is to request that the court follow an approach analogous to the approach now required on a motion under Rule 15 for removal as lawyer of record. Those two approaches are discussed at paras. 78-82 of the Ruling.

[19] At para. 10 of his most recent affidavit, Plaintiff’s counsel says, “It is my position and belief that this Honorable Court now has access to all of the material evidence to determine whether or not to approve or disapprove [the Partial Settlement].” That statement is made in the absence of any analysis of the evidence, any meaningful description of the liability issues with respect to the Settling Defendants, and any analysis of the merits of the claims against the Settling Defendants. The court’s role on an approval motion is not to review all of the evidence and, in turn, carry out the analyses that counsel and the litigation guardian are to carry out and address in their respective affidavits.

[20] Plaintiff’s counsel states that for him to provide a complete summary of the evidence he would have “to include a full recap of the evidence secured through the entire discovery process”. Plaintiffs’ counsel expresses the view that the work required to prepare that complete summary would be disproportionate to the relief sought, including because the Settling Defendants are not making any contribution to the plaintiffs’ costs of the approval motion.

[21] What Thorburn J. called for in Rivera is not a summary of all of the evidence, but rather evidence to demonstrate that the appropriate investigations and analyses have been carried out.

[22] I agree that proportionality is a relevant consideration. Proportionality is, however, considered in the context of the overall action – in this case, a medical negligence action involving a claim for significant damages.

[23] I take judicial notice of the fact that in cases of this kind, plaintiffs frequently initially name multiple defendants and, with the benefit of the discovery process, then narrow their focus by pursuing the action against some of the named defendants only. The use of this strategy does not serve to reduce or diminish the evidentiary requirements on an approval motion related to the dismissal of claims against defendants who are eventually let out of the action.

[24] Lastly, the fact that Settling Defendants (in this or any other action) are not contributing to the costs of the approval motion does nothing to reduce or diminish the evidentiary requirements on an approval motion.

Summary

[25] For the reasons set out above, I order as follows:

1. The motion for approval of the settlement of the Plaintiffs’ action against the defendants, The Ottawa Hospital, Paule Marchand, and Colleen Acharya is adjourned.
2. The Plaintiffs shall deliver a further record which complies with the Rules of Civil Procedure and the Notices to the Profession with respect to filing materials electronically.

[26] I remain seized of this matter. The court continues to reserve the right to require that the motion proceed to a hearing.

[27] As a result of the suspension of usual court operations, this endorsement is being issued under my electronic signature. Once normal operations resume, a copy of this endorsement shall be added to the court file.

Madam Justice Sylvia Corthorn Released: May 25, 2020