COURT FILE NO.: CV-12-00469541 DATE: 2020-06-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yasmeen Mukhtiar, Mukhtiar Shah, Urooj Mukhtiar, and the minors, Muskaan Mukhtiar and Omer Ahmed Shah, by their Litigation Guardian, Yasmeen Mukhtiar, Plaintiffs

AND:

The Credit Valley Hospital (now operating as The Credit Valley Hospital and Trillium Health Centre – Credit Valley Hospital Site), Dr. Sylvie Leone (Leone-Tomaschoff), Dr. John Peter MacNeil, Dr. Scott Tigert, Dr. John Charal, Dr. Alexandros Tsiaprailis, Jennifer Johnston, Maria Villalobos, and John and Jane Doe (representing a number of health care professionals and hospital employees involved in the Pre-operative care, care in the Operating Room, and the Immediate Post-operative care up to and including December 21, 2010, of Yasmeen Mukhtiar at the defendant Hospital) and Dr. Kerry Myckan, Defendants

BEFORE: Master B. McAfee

COUNSEL: A. Oakley, Counsel, for the Plaintiffs Yasmeen Mukhtiar, Mukhtiar Shah, Urooj Mukhtiar, and the minors, Muskaan Mukhtiar and Omer Ahmed Shah, by their Litigation Guardian, Yasmeen Mukhtiar J. Hunter, Counsel, and Z. Vaid, Student, for the Defendants Dr. Sylvie Leone (Leone-Tomaschoff), Dr. John Peter MacNeil, Dr. Scott Tigert, Dr. John Charal, Dr. Alexandros Tsiaprailis and Dr. Kerry Myckan

HEARD: December 8 and 11, 2020, February 26 and March 15, 2021

REASONS FOR DECISION

The Motion

[1] This is a motion for an order compelling answers to undertakings and refusals given on examinations for discovery.

[2] The plaintiffs Yasmeen Mukhtiar (Yasmeen), Mukhtiar Shah (Mukhtiar), Urooj Mukhtiar (Urooj), Muskaan Mukhtiar (Muskaan) and Omer Ahmed Shah (Omer) (collectively the plaintiffs) move for an order compelling answers to undertakings and questions refused on the examinations for discovery of the defendants Dr. Sylvie Leone (Leone-Tomaschoff) (Dr. Leone), Dr. John Peter MacNeil (Dr. MacNeil), Dr. Scott Tigert (Dr. Tigert), Dr. Alexandros Tsiaprailis (Dr. Tsiaprailis) and Dr. Kerry Myckan (Dr. Myckan) (collectively the responding defendant physicians). No relief was sought on this motion as against the defendant physician Dr. John Charal (Dr. Charal) who has not been examined for discovery (the responding defendant physicians and Dr. Charal collectively the defendant physicians).

The Parties and the Action

[3] This action arises as a result of alleged negligent treatment of Yasmeen by the defendant physicians, the defendant the Credit Valley Hospital (now operating as the Credit Valley Hospital and Trillium Health Centre – Credit Valley Hospital Site) (the hospital) and the defendants Jennifer Johnston and Maria Villalobos (the defendant nurses) in or about December 2010.

[4] On December 7, 2010, Yasmeen underwent a repeat Caesarean section (C-section) at the hospital. Immediately following the C-section Yasmeen developed paralysis and numbness in her lower extremities.

[5] On December 24, 2010, Yasmeen was discharged and transferred to a rehabilitation unit in the hospital. The discharge summary notes Yasmeen’s inability to move her legs. The diagnosis on the discharge summary is conversion disorder. Yasmeen pleads that she is unable to feel anything below a point just above her belly button.

[6] Mukhtiar is Yasmeen’s spouse. Urooj, Muskaan, and Omer are the children of Yasmeen and Mukhtiar.

[7] Drs. Leone, Tigert and Myckan are obstetricians and gynecologists. They are part of an obstetrical and gynaecology team known as the Credit Valley Obstetrics and Gynaecology Associates that provides prenatal care to patients at the hospital. Dr. Tigert was the on-call obstetrician/gynaecologist when Yasmeen arrived at the hospital on December 6, 2010. Dr. Leone performed the C-section and was the most responsible physician (MRP). Dr. MacNeil is an anaesthesiologist. Dr. Tsiaprailis is a neurologist who assessed Yasmeen after the surgery. Dr. Charal was the surgical assistant.

[8] The statement of claim was issued on December 7, 2012. Yasmeen claims compensatory damages in the amount of $5,000,000.00. Mukhtiar claims damages in the amount of $500,000.00 pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (FLA). Urooj, Muskaan and Omer each claim damages in the amount of $100,000.00 pursuant to the FLA.

[9] The plaintiffs allege that Yasmeen’s pain and suffering and resultant injuries were caused in whole or part due to the joint and several negligence, breach of fiduciary duty and breach of warranty/implied contract of the defendants.

[10] The statement of defence and crossclaim of Drs. Leone, MacNeil, Tigert, Charal and Tsiaprailis is dated November 29, 2013.

[11] The defendant physicians deny any negligence, breach of any duty or breach of any contract.

[12] The statement of defence of the hospital and the defendant nurses is dated February 14, 2014.

[13] On or about October 21, 2016, the statement of claim was amended pursuant to leave granted on October 17, 2016. Dr. Myckan was substituted as one of the John and Jane Does.

[14] The amended statement of defence and crossclaim of the physician defendants is dated February 13, 2017.

[15] The examination for discovery of Dr Leone took place on January 8, 2015. The examination for discovery of Dr. Tigert took place on January 9, 2015. The examinations for discovery of Drs. Tsiaprailis and MacNeil took place on January 29, 2016. The examination for discovery of Dr. Myckan took place on June 25, 2018. The examinations for discovery of the nurse defendants took place on June 26, 2018. The examination for discovery of Yasmeen and Mukhtiar took place on June 27 and 28, 2018. The examination for discovery of the hospital took place on August 14, 2019.

[16] The within long motion was requisitioned in or about August 2019.

Applicable Rules, Guiding Principles and the Law

[17] Rule 31.06 of the Rules of Civil Procedure provides:

31.06(1) A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action or to any matter made discoverable by subrules (2) to (4) and no question may be objected to on the ground that, (a) the information sought is evidence; (b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or (c) the question constitutes cross-examination on the affidavit of documents of the party being examined.

[18] Rule 1.04 provides in part:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. (1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[19] Rule 29.2.03(1) provides:

29.2.03(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether, (a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be justified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source.

[20] In Ontario (Bean Producers’ Marketing Board) v. W.G. Thompson & Sons Ltd., [1981] O.J. No. 2919 (Ont. H.C.J.); affirmed, [1982] O.J. No. 3173 (Ont. Div.Ct.), Justice Trainor summarizes the purposes of discovery at para. 9:

(a) to enable the examining party to know the case he has to meet; (b) to procure admissions to enable one to dispense with formal proof; (c) to procure admissions which may destroy an opponent’s case; (d) to facilitate settlement, pre-trial procedure and trials; (e) to eliminate or narrow issues; (f) to avoid surprise at trial.

[21] In Ontario v. Rothmans Inc., 2011 ONSC 2505 (Ont. S.C.J.) Justice Perell summarizes the principles concerning the scope of questioning on examinations for discovery at para. 129:

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings: Playfair v. Cormack (1913), 1913 599 (ON SC), 4 O.W.N. 817 (H.C.J.).
• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded. Overbroad or speculative discovery known colloquially as a “fishing expedition” and it is not permitted. See Cominco Ltd. v. Westinghouse Can. Ltd. (1979), 1979 489 (BC CA), 11 B.C.L.R. 142 (C.A.); Allarco Broadcasting Ltd. v. Duke (1981), 1981 723 (BC SC), 26 C.P.C. 13 (B.C.S.C.).
• Under the former case law, where the rules provided for questions “relating to any matter in issue,” the scope of discovery was defined with wide latitude and a question would be proper if there is a semblance of relevancy: Kay v. Posluns (1989), 1989 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.); Air Canada v. McConnell Douglas Corp. (1995), 1995 7147 (ON SC), 22 O.R. (3d) 140 (Master), aff’d (1995), 1995 7189 (ON SC), 23 O.R. (3d) 156 (Gen. Div.). The recently amended rule changes “relating to any matter in issue” to “relevant to any matter in issue,” which suggests a modest narrowing of the scope of examinations for discovery.
• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds: Graydon v. Graydon (1921), 1921 444 (ON SC), 67 D.L.R. 116 (Ont. S.C.) at pp. 118 and 119 per Justice Middleton (“Discovery is intended to be an engine to be prudently used for the extraction of truth, but it must not be made an instrument of torture …”); Kay v. Posluns (1989), 1989 4297 (ON SC) at p. 246; Ontario (Attorney General) v. Ballard Estate (1995), 1995 3509 (ON CA), 26 O.R. (3d) 39 (C.A.) at p. 48 (“The discovery process must also be kept within reasonable bounds.”); 671122 Ontario Ltd. v. Canadian Tire Corp., [1996] O.J. No. 2539 (Gen. Div.) at paras. 8-9; Caputo v. Imperial Tobacco Ltd., [2003] O.J. No. 2269 (S.C.J.). The court has the power to restrict an examination for discovery that is onerous or abusive: Andersen v. St. Jude Medical Inc., [2007] O.J. No. 5383 (Master).
• The witness on an examination for discovery may be questioned for hearsay evidence because an examination for discovery requires the witness to give not only his or her knowledge but his or her information and belief about the matters in issue: Van Horn v. Verrall (1911), 3 O.W.N. 439 (H.C.J.); Rubinoff v. Newton, 1966 198 (ON SC), [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns (1989), 1989 4297 (ON SC).
• The witness on an examination for discovery may be questioned about the party’s position on questions of law: Six Nations of the Grand River Indian Band v. Canada (Attorney General) (2000), 2000 26988 (ON SCDC), 48 O.R. (3d) 377 (S.C.J.)

[22] The responding defendant physicians argue that the impugned refused questions must be considered in context. They argue that nothing is pleaded regarding the plaintiff having received a different diagnosis or an opinion that conversion disorder was a misdiagnosis. They argue that discovery is not a “free for all” and the plaintiffs cannot use the discovery process to “learn as they go.”

[23] In their amended statement of claim the plaintiffs do plead a failure to properly investigate (paragraph 28b), failure to properly diagnose (paragraph 28f), improperly diagnosed (paragraph 47a), and missed or incorrect diagnoses (paragraphs 47d, 47g). At this stage, prior to and during the discovery process, the plaintiffs are not required to provide an alternative diagnosis.

[24] In Khan v. Lee, 2014 ONCA 889 (Ont. C.A.) an appeal was allowed from a decision striking a statement of claim in a medical malpractice action, without leave to amend. While the underlying motion in Khan sought different relief to the relief before me on this motion, in my view the statements of the Court of Appeal are applicable on this motion. Justice Pardu states at paras. 13, 15, 16, 18 and 19:

[13] I agree with the observation of Aitken J. in Chenier [Chenier v. Hôpital Général de Hawkesbury, [2006] O.J. No. 1679 (S.C.)] at para. 21:

At this early stage in the litigation process, it would be placing an unduly onerous burden on the Plaintiffs to describe in detail what transpired or did not transpire at all of these points in time. The Defendants are in the position of knowing with great particularity what was done or not done by way of treatment and intervention. The Plaintiffs will only be able to further particularize their allegations once any records that have been disclosed to them by the Defendants are further supplemented with responses given on discovery. The Plaintiffs cannot be expected to have retained their own medical experts to assist in particularizing their allegations regarding a breach of a standard of care by the Defendant Physicians before those experts would have access to all available information as to what actually happened at the time of Sacha’s birth.

[15] Presumably, the defendant would be aware of the standard of care at the relevant time. He has his office chart and the hospital records, so he would know what he did or did not do. His interactions with the patient over the period of the pregnancy are discrete and identifiable, over a relatively short period.

[16] …the effect of the motion judge’s order is to require a plaintiff in a case like this one to obtain an expert opinion before pleading, in the absence of full information about the case. While getting an early opinion might be useful and prudent, it should not be required as a condition of starting an action. Many plaintiffs will not have the expertise to plead with precision the exact tests a defendant should have ordered.

[18] In Lawless [Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75], at para. 36, the court approvingly cited the following passage from McSween v. Louis (2000), 2000 5744 (ON CA), 132 O.R. 304 (C.A.), at para. 51: “the production and discovery process and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even the existence of other possible causes and other potential defendants.”

[19] Rule 1.04(1) provides that “[t]hese rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” To strike a statement of claim in the circumstances of this case would significantly impede rather than facilitate access to justice, an important value emphasized in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[25] It is proper to ask questions on an examination for discovery that might call for a conclusion on subjects within the witness’ everyday expertise, or to expertise to which the witness has ready access (Air Canada v. McDonnell Douglas Corp., 1995 7147 (ON SC), [1995] O.J. No. 195 (Ont. Gen.Div.) at para. 81).

[26] Questions of a defendant in a medical malpractice action that elicit opinions regarding matters directly in issue in the litigation, where the party being examined is defending his or her conduct and where the conduct is squarely in issue in the pleadings are proper questions (Hilder v. East General Hospital, [1971] O.J. No. 1711 (S.C.O.) at paras. 12-14).

[27] The understanding of a party regarding the appropriate standard of care is a relevant line of inquiry (Stryland (Litigation guardian of) v. Yazadanfar, 2011 ONSC 3842 (Ont. S.C.J.) at para. 45).

[28] In Asharzadeh Estate v. Amin, 2019 ONSC 1024 (Ont. S.C.J.), a medical malpractice action, Master McGraw reviews the decision of Master Short in Stryland and other applicable case law and states at paras. 17-22:

17 The Defendants submit that Stryland stands for the general proposition that defendant physicians in medical malpractice actions are not required to answer hypothetical questions regarding the standard of care. In my view, this misstates the law and is inconsistent with specific rulings made by Master Short in Stryland. In particular, Master Short concluded as follows at paragraph 45 regarding a refusal by a defendant physician:

“I also continue to be of the view that the understanding of the witness as to the appropriate standard of care is relevant. On this basis, I did not uphold refusal 19 made in response to a request to advise whether 90 minutes is an appropriate amount of time to leave a patient unattended or not examined by a physician. This did not go to any particular co-defendant’s conduct and I believe ought to fall within the examinable expertise of the witness.”

18 In my view, Stryland highlights an important distinction with respect to hypothetical questions related to the standard of care. Questions which require a witness to “opine” on the standard of care or the ultimate issue such as whether the witness’ conduct fell below the standard of care are in the purview of the trier of fact or the subject of expert evidence and therefore outside the expertise of the witness. These are distinguishable from questions which are probative of the standard of care, including questions which elicit answers regarding the witness’ understanding of the standard of care and acts or omissions which may inform or provide evidence regarding the standard of care, as long as the questions are within the expertise of the witness.

19 Further, at paragraph 32(l) of Stryland, Master Short ordered the defendant physician to advise whether he “was supposed to chart the oxygen saturation. –To be answered goes to duty of care to patient.”

20 In Stryand, Master Short also considered the distinction between questions which elicit answers with respect to what “could have” caused a particular outcome and those which ask what “would have” caused a particular outcome:

“37 However, with respect to Refusal 33 as to what “could” have caused hypovolemic shock, I determined to rely upon the observation in Motaharian (supra) [Motaharian (Litigation Guardian of) v. Reid, [1989] O.J. No. 1947 (H.C.J.)] that hypothetical questions “should be permitted where the witness has expertise, when relevant to some issue in the case, provided they are not overly broad or vague.”

38 On a similar question in Redman [Redman v. Hospital for Sick Children, 2010 ONSC 3769 (Ont. S.C.J.)] my colleague looked at this issue:

“[18] Item 2 raises different issues, as a definite result is not built into the response. All that is sought is an indication as to whether the witness believes that the use of a huddle would have given the team the opportunity to question the use of this drug. The only possible response to this question is “certainly”, as the purpose of the huddle is to accomplish just that – create opportunities for the exchange of information about the patient so as to maximize a positive outcome for him. This is a “could it have” rather than a “would it have” question and it shall therefore be answered within 30 days.

39 While his counsel asserts that asking what “could” have caused Ms. Stryland’s death is also a speculative question and that such a hypothetical is irrelevant, based on the above test and analysis, I disagreed and ordered this question to be answered.”

21 By contrast, Master Short held that it was unnecessary for a defendant physician to answer questions regarding a hypothetical blood pressure where he did not agree that the plaintiff had the blood pressure reading in question (Stryland at para. 36). Similarly, in Cheesman v. Credit Valley Hospital, 2018 ONSC 1881 at para. 21, Master Pope declined to compel a physician to answer a hypothetical question regarding the standard of care when a patient complains of a fever where the plaintiff in that case did not complain of a fever stating, “his standard of care in different circumstances is not relevant”.

22 In my view, the principles regarding hypothetical questions which emerge from the case law can be summarized as follows:

i.) hypothetical questions necessarily elicit opinions and are not per se improper (Motaharian at para. 3; Stryland at paras. 26-27); ii.) a hypothetical question must be within the knowledge and expertise of the witness (Motaharian at para. 3; Stryland at paras. 26-27); iii.) a hypothetical question must be relevant and proportionate (Motaharian at para. 3; Stryland at paras. 26-27 and 30; Rothmans at paras. 129 and 154-157); iv) a hypothetical question cannot be so vague or overbroad as to be unanswerable (Motaharian at para. 3; Stryland at paras. 26-27); v.) a hypothetical question must have some factual foundation in the evidence (Stryland at para. 36; Cheesman at para. 21); vi.) a hypothetical question must not elicit a response regarding the acts or omissions of others or require the witness to defend the actions of others (Motaharian at para. 3; Stryland at paras. 26-27); vii.) a hypothetical question which requires the witness to opine on the standard of care or the ultimate issue is a legal opinion which is outside the expertise of the witness. This would include whether the witness’ conduct met or fell below the standard of care. These are questions for the trier of fact and the subject of expert reports and opinions. However, this is distinguishable from questions which are relevant to the standard of care, including the witness’ understanding of the standard of care, acts or omissions which are probative of the standard of care of those which otherwise inform or provide evidence relevant to the standard of care on the condition that the questions are within the witness’ expertise (Stryland at paras. 28 and 45; Redman at para. 8); viii.) hypothetical questions which elicit answers regarding what “could” have caused certain outcomes are proper as opposed to what “would” have caused certain outcomes (Redman, at para. 8; Stryland at paras. 37-39).

[29] In the case before me it is pleaded that Yasmeen’s care and alleged investigation into the cause of her paralysis was delivered by doctors from multiple disciplines: obstetrics, anaesthesiology and neurology. Medical care is delivered via medical healthcare teams, and questions must also be considered within that realty. Justice Koehnen addressed this issue in Cheesman v. Credit Valley Hospital, 2019 ONSC 1907 (Ont. S.C.J.) at paras. 36-37:

36 A physician on a multidisciplinary team cannot be restricted to knowledge strictly limited to his or her area of specialization. Physicians need to be able to identify issues beyond their strict area of specialization (like sepsis) in order to appreciate where their expertise ends and where the expertise of another specialist begins. Competent physicians need to know what to communicate and what to ask about areas beyond their strict specialty to ensure that patients do not fall between the cracks.

37 To restrict expert medical evidence to narrow areas of specialization risks duplicating at trial what Ms. Reinoso says was deficient in her medical care in 2007: the creation of isolated silos of medical expertise that do not communicate effectively with each other.

[30] Issues concerning the responsibilities of various doctors involved in a patient’s care must also be considered in light of the hospital’s policies including a policy for Most Responsible Physician (MRP) (Manary v. Strban, 2013 ONCA 319 (C.A.) at para. 85). Dr. Leone was the MRP.

[31] The hospital policy for MRP states:

The Most Responsible Physician is the physician who has the primary responsibility for the co-ordination and delivery of the patient’s care.

[32] The Court of Appeal in Manary upheld the trial judge’s view that the MRP has duties and responsibilities to the patient which are broader than their specific specialty. The Court of Appeal rejected the defence’s argument that the MRP was not required to question the diagnosis and treatment plan of the other doctors treating the patient:

[89] The trial judge emphatically rejected this view of Dr. Halmo’s role and responsibilities as the MRP. He said that the defence position on the division of physicians’ responsibilities was counterintuitive. It would defeat the purpose of designating an MRP and mean that Dr. Halmo served no function beyond that of an obstetrician. He went on to find that:

The standard of care of an MRP is not limited to delegating tasks and responsibilities to experts. An MRP is not absolved of responsibility with respect to a medical condition simply because that medical problem is beyond the expertise of the MRP. As stated in Exhibit 4 [the MRP policy], the MRP is responsible for a plan of care. That plan should address the totality of care, not only obstetric issues. [Emphasis added.]

[91] The trial judge found that Dr. Halmo did not exercise critical judgment or provide an appropriate plan of care for Ms. Manary, and accordingly failed to fulfill his responsibilities as the MRP.

[92] Before reviewing the basis for that finding, we state our agreement with he trial judge’s observation that “a failure to exercise objective and critical judgment can constitute negligence.” The trial judge surmised that perhaps Dr. Halmo had been “lulled into a belief that any responsibility beyond obstetrical care was not his”. Dr. Halmo’s position at trial supports that supposition. As stated, Dr. Halmo’s position at trial was not that he had fulfilled his broad responsibilities as MRP, but that according to the narrow “implied and undocumented understanding” of the MRP position, those responsibilities had been largely transferred to other physicians. However, as the trial judge stated, “The standard of care required of an MRP cannot be met by an implied and undocumented understanding or by merely delegating responsibility.”

[96] While the trial judge found that Dr. Strban met the standard of care required of a respirologist, he found that Dr. Halmo fell short. He concluded that “as an obstetrician and MRP, [Dr. Halmo] did not exercise that degree of care and skill which could reasonably be expected of a normal prudent practitioner of the same experience and standing as an obstetrical specialist acting as an MRP in August 2003” (Emphasis added). Dr. Halmo was required to participate in a fuller manner by exercising independent critical judgment.

[98] The trial judge accepted the evidence of Dr. Davies that the enlarged aorta warranted attention and that an MRP had a duty to consult if he did not understand the cardiac findings. The trial judge concluded, as we read his reasons, that Dr. Halmo, who bore ultimate responsibility for the patient, should have exercised independent critical judgment and concluded that immediate, expert cardiac consultation, beyond what the “chest team” at the Hospital could provide, was required and should have arranged a transfer to a tertiary care center where an evaluation of her enlarged aorta and immediate management of her condition could be carried out.

[102] …we are satisfied the trial judge’s reasons adequately explain to Dr. Halmo why he was found negligent. His implied and undocumented understanding that he had limited responsibilities as MRP was rejected. He failed in his actual MRP responsibilities to exercise judgment and provide a plan of care for Ms. Manary.

[33] An undertaking to use best efforts is not a guarantee that the relevant information/document(s) will be produced. If the subject of the undertaking cannot be provided, the court must be satisfied that a real and substantial effort has been made to seek out the information/document(s) (Gheslaghi v. Kassis, 2003 7532 (Ont. S.C.J.) at para. 7, Linamar Transportation Ltd. v. Johnson, 2014 ONSC 4415 (Ont. S.C.J.) at paras. 14-16).

[34] I will now turn to the impugned questions. What follows are my rulings. The questions and reference numbers are taken from the version of the Form 37C charts found at schedule “A” in the third supplementary motion record of the plaintiffs.

Examination for discovery of Dr. Leone (January 8, 2015)

Undertakings

[35] Undertaking No. 4: The issue is whether an undertaking was given to provide a copy of the list of privileges for clinical activity. The transcript does not capture some of what may have been stated at Q. 90 and Q. 91. The transcript indicates that counsel for the defendant physicians states at Q. 91: “Well, why don’t we do that, if you don’t have any luck with the hospital, then we’ll …” Plaintiff’s counsel then states: “I don’t have a problem with that, it’s just since Dr. Leone is going to be checking her documents in any event, that’s why I would have asked that she would double check that as well.”

[36] In argument, there was no dispute regarding the question. However, Dr. Leone does not agree that an undertaking was given in response. As set out in the Form 37C chart, notwithstanding that there is no agreement that an undertaking was given, counsel for the defendant physicians states that “Dr. Leone would review if the information could not be obtained from the hospital, which has not been exhausted to our knowledge.”

[37] As the transcript does not reflect a clear undertaking to provide the document, I will treat the question as a refusal. The question is relevant based on the pleadings and in particular based on paragraphs 28a, m-p and 43d of the amended statement of claim. With respect to Rule 29.2.03(e), plaintiff’s counsel confirms that the hospital has not provided the document. Documents within a party’s power include those documents that it is reasonable to expect that the party could obtain for the asking (Brain v. Mador, [1982] O.J. No. 2330 (S.C.O.) at paras. 6, 8). The question shall be answered.

Refusals

[38] Refusal No. 1: The question seeks a copy of Dr. Leone’s on-call and/or shift schedule from 2010 that would include December 6 to 7. The question is refused on the basis of relevance. A shift schedule is relevant to who was responsible for Yasmeen’s care at specific points in time. I am satisfied that the question is relevant based on the pleadings and in particular based on paragraphs 6, 13 and 28f of the amended statement of claim. The question shall be answered.

[39] Refusal No. 2: The question seeks the names of the committees Dr. Leone sat on in 2010. The question is refused on the basis of relevance. Dr. Leone testified at Q. 105 that some of the committees she sat on included the Quality of Care and OB/GYN departmental meetings, both very likely deal with issues relevant in this action. I am satisfied that the question is relevant based on the pleadings and in particular based on paragraphs 28a, m-o of the amended statement of claim. The question shall be answered.

[40] Refusal No. 3: The question seeks a list of topics of the continuing medical education courses Dr. Leone attended for 5 years prior to the events of 2010 to determine if there are any relevant topics. The question is refused on the basis that it is overly broad. The question is not overly broad. A list is sought. I am satisfied that the 5-year period is reasonable. The question is relevant based on the pleadings and in particular based on paragraphs 28a, m-o of the amended statement of claim. The question shall be answered.

[41] Refusal No. 4: The question seeks confirmation if Dr. Leone’s practice is guided by the advice and recommendations from either the Canadian or Ontario Medical Association. The question is objected to on the basis that it is vague and overly broad. Although Dr. Leone testified that she does “not usually” read the newsletters from the CMA or OMA (Q. 151), I am satisfied that the question is relevant based on the pleadings and in particular based on paragraph 28m of the amended statement of claim. The question is not vague or overly broad. Dr. Leone was able to answer a similar question with respect to the Canadian Medical Protective Association (Q. 147). The question shall be answered.

[42] Refusal No. 5: Dr. Leone is asked if she agrees that there should be a valid evidence-based reason to intervene in the natural process when labour and birth are progressing normally. The question is objected to on the basis that it seeks to elicit opinion evidence from the defendant relevant to the standard of care and that the question is hypothetical.

[43] The understanding of a party regarding the appropriate standard of care is a relevant line of inquiry (Asharzadeh Estate at para. 18, Stryland para. 45). Issues of the adequacy of the consent are raised in the pleadings. It is alleged that Yasmeen was not provided with sufficient information to be able to decline a trial of labour. The question is relevant based on the pleadings and in particular based on paragraphs 28j and k of the amended statement of claim. The question shall be answered.

[44] Refusal Nos. 6, 7, 8, 9 and 10: This group of questions is objected to on the basis that the questions are more appropriately directed to the hospital because the documents are not within the control of the Dr. Leone. With respect to refusal no. 10, the question is also objected to on the basis of relevance. Dr. Leone sits on the committees. Even if Dr. Leone needed to ask permission of the hospital, there is nothing before me to satisfy me that she could not seek any necessary permission of the hospital. To the extent that defendant physicians rely on Rule 29.2.03(1)(e), the hospital has not produced the documents. See Brain at para. 8. With respect to refusal no. 10, the question is relevant based on the pleadings and in particular based on paragraphs 28a and m-o of the amended statement of claim. The questions shall be answered.

[45] Refusal No. 12: In argument the responding physician defendants took the position that the question was answered at Q. 625. The plaintiffs agree that the question was answered at Q. 625.

[46] Refusal No. 13: The question seeks confirmation that if a patient is being asked to sign the informed consent form for a C-section before speaking to an anaesthetist, the signing of the consent is not reflective of the actual procedure undertaken at the hospital. The question is refused on the basis that it seeks to elicit and opinion relevant to the issue of informed consent or the standard care.

[47] Dr. Leone would have relied on the consent to perform the C-section. The lack of informed consent is an issue raised in the pleadings. The lack of consent is pleaded at paragraph 28k and 43e of the amended statement of claim. The understanding of a party regarding the appropriate standard of care within her everyday expertise is a proper question (Asharzadeh Estate at para. 18, Stryland at para. 45). The question shall be answered.

[48] Refusal Nos. 14, 15, 16, 17 and 21: These questions explore whether the needle for the spinal anaesthetic may have been inserted in the wrong level. Dr. Leone is the MRP (see Manary). This is not a fishing expedition. Dr. Leone states that at one point she had thought there was a complication from the spinal (Q. 1037-1038). The questions are relevant based on the pleadings and in particular based on paragraphs 28b, d, f, h, i, k, l of the amended statement of claim. The question shall be answered.

[49] Refusal Nos. 18, 19, 20 and 22: These questions explore whether a wrong drug/foreign substance may have been used for the spinal anaesthetic. Question 22 asks where in the records are all of the physical explanations ruled out before accepting a psychiatric diagnosis of conversion disorder. Dr. Leone is the MRP responsible for coordinating the investigation into Yasmeen’s paralysis. Dr. Leone confirms that conversion disorder is a diagnosis of exclusion (Q. 1066). Dr. Leone listed conversion disorder under the diagnosis in the discharge summary (Q. 1069), although she denies that she made the diagnosis. The questions are relevant based on the pleadings and in particular based on paragraphs 28b, d, f, h, i, j, k, m, p and 30e of the amended statement of claim. A defendant must answer questions which elicit opinions directly in issue in the litigation where the party being examined is defending her conduct and where her conduct is in issue in the pleadings. The questions do not seek to elicit an opinion. The question seeks to have Dr. Leone answer questions about the process she followed as MRP to rule out other diagnoses before accepting the conversion order diagnosis and listing it on the discharge summary. The questions shall be answered.

[50] Refusal Nos. 23, 24, 25, 26, 27, 28, 29, 30, 39, 40, 41, 42, 43, and 44: These questions concern the diagnosis of conversion disorder. If Dr. Leone cannot answer the questions because she did not make the diagnosis, then that can be dealt with in follow up questions. None of the doctors have confirmed that they made the diagnosis that Dr. Leone, the MRP, listed on the discharge summary. The questions are relevant based on the pleadings and in particular based on paragraphs 28b-e, h-j, m, p, 30e, 40, 42, 43f-h, k, l, q, 47, 48 and 54 of the amended statement of claim. The questions shall be answered.

[51] Refusal Nos. 34, 35 and 36: These questions are relevant to the allegations of a failure to investigate as pleaded at paragraphs 28b, f, n, 47d and f of the amended statement of claim. The questions shall be answered.

[52] Refusal No. 31: The documents are within Dr. Leone’s power and shall be requested (Brain at para. 8). The question shall be answered.

[53] Refusal Nos. 32 and 33: The position of Dr. Leone is that the questions have been answered. On the motion Dr. Leone’s counsel confirmed that nothing further has come to her attention. The questions have been answered.

[54] Refusal No. 37: I am not satisfied that the question was answered. The plaintiffs are entitled to explore the identity of persons who might reasonably be expected to have knowledge of the matters in issue (Rule 31.06(2)). The plaintiffs are entitled to ask about specific groups of persons. The questions shall be answered.

[55] Refusal No. 38: The question asks if Dr. Leone obtained Yasmeen’s permission to access her records. I am not satisfied that the question is relevant based on the pleadings. There is no allegation that Dr. Leone improperly accessed Yasmeen’s records without consent. The lack of consent pleaded is with respect to the C-section (paragraph 28k of the amended statement of claim). The question need not be answered.

Examination of Dr. Tigert (January 9, 2015)

Undertakings

[56] Undertaking No. 7: The parties agree that this undertaking is no longer outstanding as per the answer provided on September 15, 2020.

Refusals

[57] Refusal No. 1: A copy of the Credit Valley Obstetrics and Gynaecology Associates Group practice agreement is requested. Drs. Leone, Tigert and Myckan are members of this Group. The question was refused on the basis that the agreement only deals with financial issues. I am not satisfied of the relevance of the agreement dealing only financial issues based on the pleadings. The question need not be answered.

[58] Refusal Nos. 2, 3, 4, 5 and 6: These questions deal with missing information in Yasmeen’s chart. Dr. Tigert testified that he believes he discussed the option of a vaginal birth with Yasmeen (Q. 236) and that he remembers typing that encounter in the computer (Q. 238) but he cannot account for why it is not in the charts (Q. 238). Plaintiff’s counsel only learned of this missing information at this examination for discovery. The missing document is not referenced at schedule C to Dr. Tigert’s affidavit of documents. The questions are relevant based on the pleadings and in particular based on paragraph 28d of the amended statement of claim. The questions are also relevant based on Rule 31.06(1)(c). The questions shall be answered.

[59] Refusal No. 7: On consent, this question, reworded to read “To confirm whether…” (replacing “To confirm that…”), shall be answered. If the answer to the question is “yes,” no further answer need be provided. If the answer to the question is “no,” to the best of Dr. Tigert’s recollection, Dr. Tigert shall confirm when he so advised Mr. Lerner.

[60] Refusal No. 9: The question is refused on the basis that it is irrelevant and answered at P. 150. A key aspect of the claim is that the defendants misdiagnosed Yasmeen with a psychiatric condition. Dr. Tigert’s assessment of Yasmeen’s mental state is a relevant inquiry and part of that is whether he had concerns about her ability to look after her children. I am satisfied that the question is relevant based on the pleadings and in particular based on paras. 28b, f, i, 47c and 54 of the amended statement of claim. I am not satisfied that the question has already been answered. The question shall be answered.

[61] Refusal No. 10: The question requests Dr. Tigert’s hospital terminal login credentials. On the motion, Dr. Tigert’s counsel confirmed that if the hospital advises that they need the login in information to provide the metadata, in coordination with the hospital this will be provided. I am not satisfied that there is an entitlement to Dr. Tigert’s password (his login code was provided Q. 1038). Based on the confirmation of Dr. Tigert’s counsel, the question need not be answered further.

Examination for discovery of Dr. MacNeil (January 29, 2016)

Undertakings

[62] Undertaking No. 1: I am not satisfied that the undertaking has been fully answered. Although Dr. Tigert has provided some publications, he has provided some not listed on his CV but not all of the publications listed on his CV. In answering the question, there is no statement that Dr. Tigert has now provided all of his publications. The question remains outstanding.

[63] Undertaking No. 3: I am not satisfied that best efforts have been made to answer this undertaking. A genuine and substantial search for the requested documentation is required (Linamar at para. 14 citing Gheslaghi at paras. 6 and 7). Sufficient detail of the steps taken in an effort to produce a copy of the policy manual have not been provided. The question remains outstanding.

Refusals

[64] Refusal No. 1: The parties agree that this refusal has now been answered during the course of this motion.

[65] Refusal No. 2: The question asks Dr. MacNeil to confirm that his position regarding the consent form is opposite to that of the doctors already examined including Dr. Tigert. The question is refused on the basis that Dr. MacNeil could not testify as to the position of Dr. Tigert and could only speak to his understanding as to what he is required to do regarding the anaesthesia. I am not satisfied that it is proper to ask Dr. MacNeil to comment on the evidence of the other doctors already examined including Dr. Tigert regarding the consent form and confirm whether that evidence/position is opposite to Dr. MacNeil’s evidence/position. The question need not be answered.

[66] Refusal No. 3: The question asks Dr. MacNeil to confirm that he agrees there was no urgency to perform the surgery on December 7, 2010. The question is refused on the basis that a determination of urgency was not his specialty or responsibility and that the decision was made by an obstetrician. Dr. MacNeil testified that the surgery could have been delayed if needed (Q. 288). The question does not ask whether he decides if there is urgency, only if he agrees that there was no urgency. The question shall be answered.

[67] Refusal No. 4: The question asks that if Dr. MacNeil is in a facility that is not meeting the guidelines as set by the Canadian Anaesthesiologists’ Society (CAS) how he fulfills his obligations to the CAS. The question is objected to on the basis that it is vague and overly broad. The question seeks determination of Dr, MacNeil’s obligations to the CAS. The question is not vague and overly broad. The question is relevant based on the pleadings and in particular based on paragraphs 30a, j, l-o, 41, 42, 43e, i, k-o, r-t of the amended statement of claim. The question shall be answered.

[68] Refusal No. 7: The question asks about Dr. MacNeil’s training regarding C-sections being reserved for pregnancies in which there is a threat to the health of the mother and/or baby. The question is objected to on the basis of relevance because Dr. MacNeil is not an obstetrician. The question asks about Dr. MacNeil’s training in this regard. I am satisfied that the question is relevant based on the pleadings and in particular based on paras. 30a, k-o of the amended statement of claim. The question shall be answered.

[69] Refusal No. 9: The question as phrased is not appropriate. The question need not be answered.

[70] Refusal No. 10: The question asks Dr. MacNeil to advise if he has ever made a mistake in his practice. The question is refused on the basis that it is argumentative, vague and overly broad and the answer would be irrelevant in any event. The question is vague and overly broad. The question need not be answered.

[71] Refusal No. 11: The question asks whether Dr. MacNeil considers follow up with a manufacturer a reasonable step in the circumstances to rule out the anaesthetic as the culprit. The question is refused on the grounds that Dr. MacNeil was not responsible for the investigation and there is no theory of liability that would make the question relevant. The diagnosis of conversion disorder is a diagnosis of exclusion. The theory of liability that there might be something wrong with the medication administered is pleaded in the amended statement of claim and in particular at paragraphs 30e, 41 and 47d. The fact that Dr. MacNeil was not responsible for the investigation is not determinative. The question shall be answered.

[72] Refusal Nos. 13 and 14: The questions concern Yasmeen’s previous unusual reaction to anaesthetic. The questions are refused on the basis that they are argumentative, vague, overly broad, irrelevant and hypothetical. Yasmeen had a previous procedure at the hospital a year before the C-section where she experienced significant leg heaviness and an inability to walk without assistance, which lasted for several days. Yasmeen’s position is that she advised Dr. MacNeil of the foregoing when providing her pertinent history prior to the C-section. Yasmeen’s previous unusual reaction to anaesthetic is relevant to the allegations concerning the investigation. The questions are proper and relevant based on the pleadings and in particular based on paragraphs 30a, e, f, j, l, 40, 41, 42, 43g, j, k and q of the amended statement of claim. The questions shall be answered.

[73] Refusal No. 15: This question has now been withdrawn.

[74] Refusal No. 16: The question asks Dr. MacNeil to comment on the non-psychiatric diagnosis, a number of things that should have been explored to determine if that might be the answer to what is going on. The plaintiffs allege that Dr. MacNeil, as the anaesthesiologist and part of the care team who treated Yasmeen, was responsible for investigating the cause of the sudden paralysis. As part of the care team the plaintiffs allege it was necessary to consider and explore a number of possible diagnoses. The question is relevant based on the pleadings and in particular based on paragraphs 30a, e, f, j, l, 40, 41, 42, 43g, j, k, q and 47. The question shall be answered.

[75] Refusal Nos. 17, 18 and 19: After the C-section Dr. MacNeil called in Dr. Tsiaprailis, a neurologist, to investigate. These questions ask how a neurologist would identify a wrong concentration, identify a contamination, and gather that the stenosis of the spine exacerbates the effect of the analgesia/anaesthetic. The plaintiffs are asking how a neurologist would be able to address these issues. It is the plaintiffs’ position that a neurologist would not be the appropriate speciality to address these issues. Given that Dr. MacNeil called in the neurologist, the questions are relevant to the allegations concerning the investigation and why such a specialty was selected. The questions are proper and relevant based on paras. 30a, j, l, 40, 41, 42, 43g, j, k, and q of the amended statement of claim. The questions shall be answered.

[76] Refusal No. 20: For the reasons given for refusal no. 9 of Dr. Tigert’s examination, the question shall be answered. The pleadings regarding Dr. MacNeil are 30a, e, f, j, l, m, 47(c) and 54 of the amended statement of claim.

Examination for Discovery of Dr. Tsiaprailis (January 26, 2016)

Refusals

[77] Refusal No. 1: The question asks if Dr. Nabil Phillips’ note of December 14, 2010 was ever made known to Dr. Tsiaprailis. Dr. Tsiaprailis recommended to Dr. Leone that psychiatry be called in to assess Yasmeen (Q. 849). Dr. Nabil Phillips’ note of December 14, 2010 does not list conversion disorder under provisional diagnosis. I am satisfied that the question is relevant bases on the pleadings and in particular based on paragraphs 34f, g, k, 42, 43g, j, k, q and 47 of the amended statement of claim. The question shall be answered.

[78] Refusal Nos. 2, 3 and 4: These questions concern an email exchange listed in a document in Dr. Tsiaprailis’ affidavit of documents. The questions are refused on the basis that Dr. Tsiaprailis did not participate in the email exchange. The reason for the refusal is not a sufficient basis to refuse a relevant question. The document was listed by Dr. Tsiaprailis as a relevant document. The questions shall be answered.

Examination for Discovery of Dr. Myckan (June 25, 2018)

Undertakings

[79] Undertaking Nos. 3, 9 and 16: I am not satisfied that best efforts have been made to answer the undertakings. Sufficient details of the steps taken to produce the documents have not been provided (see ruling for undertaking no. 3 from the examination for discovery of Dr. MacNeil). The question remains outstanding and shall be answered.

[80] Undertaking No. 15: The contact information has not been provided for the one nurse who is still the same as in 2010. Details of steps taken to ascertain the last known addresses of the nurses referred to in the answer to undertaking no. 13 have not been provided. The question has not been fully answered. The question remains outstanding and shall be answered.

[81] Undertaking No. 18: This is an undertaking to provide a summary of proposed testimony of any witnesses that Dr. Myckan proposes to call at trial provided that the plaintiffs also agree to provide summaries of their anticipated witnesses. The responding defendant physicians take the position that the plaintiffs have not provided their summaries to date and the request is premature. The question remains outstanding and shall be answered on a date to be agreed upon. The plaintiffs and defendant physicians shall agree to a date for the mutual exchange of the undertaken summaries.

Refusals

[82] Refusal No. 1: The parties agree that this refusal is no longer at issue.

[83] Refusal No. 2: The question seeks applications for reappointment to professional staff with respect to hospital privileges from 2010 and subsequent years. The question is refused on the basis that it is not relevant because Dr. Myckan only treated Yasmeen in 2010 and 2011. Subsequent reappointment applications are relevant because they are backward-looking and in determining whether or not to grant privileges take into consideration problems, concerns and issues from previous years. The question shall be answered.

[84] Refusal No. 3: The question is refused on the basis that the Clinic Practice Guidelines section of the website is under construction, otherwise the guidelines are publicly available. The standards and recommendations being sought are from the Society of Obstetricians and Gynaecologists of Canada, a professional organization of which Dr. Myckan is a member. The subject matter of the items being sought is relevant to the pleadings at paragraphs 43Ag and h of the amended statement of claim. If the documents are not within Dr. Myckan’s possession, they are within Dr. Myckan’s control. The question shall be answered.

[85] Refusal No. 4: The question is refused on the basis that the question was asked and answered at Q. 177-184. The question was not already asked and answered. The question shall be answered.

[86] Refusal No. 5: The question is refused on the basis that the question was asked and answered at Q. 192. The question was not answered with respect to an increase in importance. The question is also objected to on the basis of relevance. The question is relevant based on the issue of continuity of care and the pleadings and in particular based on paragraphs 42, 43a-e, i, l-o, r, s, 43Aa, c-e, g-j of the amended statement of claim. The question shall be answered.

[87] Refusal Nos. 9, 10 and 11: Refusal Nos. 9 and 10 are refused on the basis that they are broad and vague. Refusals nos. 9 and 10 are relevant based on the pleadings and in particular based on paragraphs 42, 43Ad-e, j, r, s of the amended statement of claim. The questions are not broad and vague. Refusal no. 11 is refused on the basis that the question was asked and answered at Q. 566-576. The answers at Q. 566-576 are not responsive. The questions shall be answered.

[88] Refusal No. 12: The question was refused on the basis that it was asked and answered at Q. 669-674. I agree that the question was asked and answered at Q.669-674. The question need not be answered further.

[89] Refusal Nos. 13 and 14: The questions concern conversion disorder. The questions are refused on the basis that the allegations against Dr. Myckan are limited to pre-natal care as set out at paragraph 43A of the amended statement of claim. Dr. Myckan continued to treat Yasmeen after the C-section. The allegations against Dr. Myckan are not limited to paragraph 43A. Paragraph 47a, c, d, g-i of the amended statement of claim are allegations of breach of fiduciary duty against all defendants. Paragraph 54 of the amended statement of claim pleads “…significant psychological stress and harm as a result of the continued accusation that [Yasmeen’s] paralysis is a self-induced mental condition… . The questions shall be answered.

[90] Refusal No. 15: This question seeks case law or other information in support of the pleading regarding double recovery at paragraph 22 of the amended statement of defence and crossclaim of the defendant physicians. In the Form 37C chart for Dr. Myckan it is stated that counsel was not prepared to commit to a timeline to provide the case law, however a position on the topic would be taken well before trial. In addition, providing the information was premature because Yasmeen’s examination for discovery had not yet taken place. On the motion counsel for Dr. Myckan argued that the question was refused on the basis that there is no obligation to provide case law in support of a pleading. There was no notice of this change in position. In any event, the question is not limited to caselaw. Yasmeen’s examination for discovery has taken place. See Six Nations of the Grand River Band at paras. 9 and 14. The question shall be answered.

Costs

[91] At the conclusion of argument, the parties agreed to serve costs outlines on a date(s) to be agreed upon.

[92] The parties shall make reasonable efforts to agree on the issue of costs. After making reasonable attempts to do so, if the parties are unable to agree on the issue of costs, any party seeking costs shall serve written submissions on costs of three pages or less in length within 45 days of today’s date. The requesting party’s written submissions, together with the requesting party’s previously served costs outline, shall be filed within 45 days of today’s date by email to Assistant Trial Coordinator Teanna.Charlebois@ontario.ca. The responding submissions shall also be three pages or less in length and shall be served within 75 days of today’s date. The responding written submissions, together with that party’s previously served costs outline, shall be filed within 75 days of today’s date by email to Assistant Trial Coordinator Charlebois as set out above. Any reply submissions shall be no more than one page in length and shall be served and filed by email as set out above within 85 days of today’s date.

[93] Alternatively, and only if both parties agree, the parties may re-attend before me to speak to the issue of costs. Arrangements for the re-attendance to speak to costs may be made by contacting Assistant Trial Coordinator Charlebois by email.

[94] Order accordingly.

Master B. McAfee Date: June 14, 2020