Court File and Parties

Court File No.: CV-13-56698 and 15-63434

Superior Court of Justice – Ontario

Re: Paul Boone by his litigation guardian Elizabeth Boone, Plaintiff And: Dr. Kevin O’Kelly and Dr. Karl R. Smyth, Defendants

And

Re: Paul Boone by his litigation guardian Elizabeth Boone and Laurence Boone, Plaintiff And: Dr. Kwadwo Kyeremanteng, Dr. Jose Aquino Jr., the Ottawa Hospital, Paule Marchand and Colleen Acharya, Defendants

Before: Master Kaufman

Counsel: Thomas P. Connolly / Sarah E. Russel, for the Plaintiff Erin Page, for the Defendants

Heard: August 27, 2020

Reasons for Decision

[1] The defendants bring this motion to compel the plaintiff to attend a defence medical assessment by Dr. Alan Giachino, a senior orthopedic surgeon. The plaintiff also brings a cross-motion to have certain parts of the defendant’s motion record struck on the basis that it contains without prejudice settlement discussions.

[2] These motions are brought in the context of two medical negligence actions. The plaintiff underwent a surgical procedure on February 4, 2011 and suffered a puncture to his pericardium during the removal of an inferior vena cava filter. Following that procedure, he became paralyzed in his lower extremities and has been reliant on a wheelchair. The plaintiff was disabled before the operation as he was born with congenital hydrocephalus with accompanying cognitive delay and suffers from severe kyphoscoliosis. He is now 57 years old. A significant issue at trial will be causation, and whether the plaintiff would have required the level of support claimed in any event.

[3] The parties attended a pre-trial before me on July 28, 2020. At that time, the defendants confirmed that the only pre-trial steps to be completed were “receipt of updated medical documentation and costs assessment from the plaintiffs” and that “[o]nce received, the defendants will determine whether it is necessary to have Mr. Boone undergo a defence medical examination.” The plaintiff did not consent to undergoing a defence medical examination at this late stage. In my pre-trial endorsement form, I directed the plaintiff to request clinical notes and records from his service providers and to provide them to the defendants upon receipt. I also directed the defendants to bring a motion to compel the plaintiff’s attendance at a defence medical examination by August 7, 2020. This motion was heard on an urgent basis because the parties’ trial is scheduled to commence on October 5, 2020, for a duration of 6 weeks.

[4] The motion raises three issues:

1. Do the defendants require leave to bring this motion pursuant to Rule 48.04?
2. If leave is granted or not required, should Mr. Boone undergo a defence medical examination with Dr. Giachino? and
3. Should certain portions of the defendants’ motion record be struck?

ISSUE 1 – Is leave required under Rule 48.04?

[5] Rule 48.04(1)[^1] provides that any party who has set an action down for trial or who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.

[6] The defendants argue that they do not require leave because they did not consent to the action being placed on a trial list. They rely on Arunasalam v. State Farm Mutual Automobile Insurance Company[^2] (“Arunasalam”) where Master Muir held that agreeing to a fixed trial date was not synonymous with agreeing to an action being placed on a trial list. Master Muir relied on Ananthamoorthy (Litigation Guardian of) v. Ellison, 2013 ONSC 340, and Fromm v. Rajani, [2009] O.J. No. 3671 (S.C.), two Superior Court decisions which interpreted the word “consent” in Rule 48.04(1) as referring to consent under Rule 48.06(1). Pursuant to Rule 48.06(1), a defended action shall be placed on the appropriate trial list by the registrar 60 days after it is set down unless all parties consent to an earlier listing for trial.

[7] The plaintiff argues that Arunasalam and the cases upon which Master Muir relied are Toronto specific cases and should not be followed. That was Thomas R.S.J.’s conclusion in 2116656 Ontario Inc. v. Grant and LLF Lawyers LLP,[^3] which was out of London. In that jurisdiction, after a matter is set down, the parties are convened to the next civil assignment court where the presiding judge will determine if the parties are trial ready. If they are, a trial date will be assigned. Regional Senior Judge Thomas was of the view that if a party is not ready and wishes to protect its rights to initiate further steps, the action would not be placed on a trial list.

[8] In this case, the parties attended before Master Fortier on January 29, 2018 for a case conference. At that time, the parties had not completed all pre-trial steps. In particular, there was a motion arising from discoveries scheduled in March 2018 and counsel had amended on consent the prior timetable established on December 2016. Nonetheless, Master Fortier noted that “[t]he parties wish to attend trial management court to set a trial date”. On April 4, 2018, at trial management court, Beaudoin J. set the trial for October 5, 2020. He noted that there were special circumstances that required a date to be set, namely that the plaintiff was developmentally challenged and that the plaintiff’s elderly parents had their own health problems. Justice Beaudoin’s endorsement also directed the parties to attend a case conference in April 2019 to confirm that they were ready to proceed as planned and to complete pre-trial conference forms. There is no mention in the parties’ materials that this occurred.

[9] The purpose of Rule 48.04 is to ensure, insofar as possible, that parties are ready for trial when they set matters down.[^4] This is a very sensible rule. Setting matters down when they are not trial ready has deleterious effects on the civil justice system. These cases have a high probability of being adjourned and, by occupying space on trial lists, they delay the trials of other litigants who are ready for trial.

[10] However, in this case, neither party was ready for trial when the trial date was set. There were outstanding motions, including a motion in August 2018 for an order that Elizabeth and Laurence Boone’s evidence for trial be taken de bene esse under Rule 36. These examinations were completed in January 2019. The plaintiff also served an expert report from Dr. Ricci (psychology) which was dated in March 2020, without objection from the defendants. On the facts of this case, I am satisfied that the defendants agreed to fix a trial date to accommodate the plaintiff and his parents. It would be unfair to the defendants to equate their agreement to schedule a trial with confirmation of their readiness for trial. On the specific facts of this case, I find that the defendants do not require leave.

ISSUE 2 – Should the plaintiff be required to attend a defence medical examination?

[11] On the one hand, defence medical assessments are provided for by section 105 of the Courts of Justice Act[^5] and Rule 33, and they form an integral part of the discovery process where a party’s mental or physical condition is in issue.[^6] On the other hand, delay in requesting a medical examination and resulting prejudice is a basis for refusing such relief.[^7] The court must balance the prejudice that would be caused to each party should the order sought be granted or refused.[^8]

[12] I am not persuaded that the defendants’ defence medical examination is necessary to ensure a fair trial. However, I am satisfied that the plaintiff would be prejudiced by the order sought. There is no evidence before me that the plaintiff’s condition has changed since the plaintiff provided his expert reports and when his parents were examined in January 2019. Moreover, the plaintiff is delivering updated medical records as I directed in my pre-trial endorsement.

[13] The defendants argue that a defence medical assessment is necessary for trial fairness. They say that their proposed expert is ready to examine the plaintiff on short notice and would be able to deliver a report by the end of next week. They request the medical examination because they allege that they have not been provided with recent medical records. They argue that without updated records they are unable to properly assess the plaintiff’s damages. In addition, they argue that they provided the plaintiff with an advance payment for the purpose of obtaining a customized wheelchair, but the plaintiff has not obtained one to date. They say that they do not know if there has been an improvement in his condition.

[14] The plaintiff responds that he is still paralyzed, that he still requires a wheelchair and that neither his mobility nor overall condition have changed in any meaningful way. The plaintiff says that he asked defendant’s counsel to list what documentation he required on April 28, 2020 but received no response. Further to my pre-trial endorsement, the plaintiff requested the clinical notes and records from his service providers on an urgent basis. The plaintiff has received a number of these records and has already delivered them to the defendants. On August 18, 2020, the plaintiff provided a supplementary affidavit of documents containing updated records. The defendants’ counsel confirmed that she had very recently received records from the plaintiff but did not have time to review them in their entirety prior to the motion. It is therefore possible that the updated records the plaintiff is delivering will provide the defendants with the information they require.

[15] The trial in this matter commences in 39 days. Even if the defendants were able to obtain a report by the end of next week (September 4), this would only give the plaintiff one month to obtain a responding report. This is a challenging endeavour in the best of times and is even more challenging during a pandemic. The plaintiff would be put in the unenviable position of either proceeding to trial facing a potentially unfavourable report with no means to rebut it or requesting an adjournment of his trial. Because of the plaintiff’s and his parents’ health conditions, and because these actions have been ongoing for seven years, the prospect of an adjournment would be very prejudicial. The plaintiff depends on his elderly parents and may not have the luxury of waiting additional months or years without a resolution.

[16] In Nguyen v. Kojo,[^9] the defence, as in this case, requested a medical examination shortly before the pre-trial. The defendant’s motion was heard 45 days before the trial was expected to commence. Master Muir denied the motion, finding that there was a real risk that the plaintiff would be unable to respond to the defence report before the scheduled trial date.[^10] Justice Boswell denied a request for a defence medical in similar circumstances in Lawrence v. Primmum Insurance Company, where as here, there did not appear to be any compelling additional evidence supporting the need for an additional report.[^11]

[17] I would have granted the defendants’ motion had it not been for the pending trial.

ISSUE 3 – Should portions of the defendants’ motion record be struck?

[18] The plaintiff ask that paragraphs 7, 8, 14, 15 and 17 of the affidavit of Wayne Bryneart as well as exhibits E and F thereof, and paragraphs 6, 14, 15, 20, 47 and 51 of the defendants’ factum should be struck on the ground that they breach settlement privilege.

[19] The impugned paragraphs make reference to the defendants’ unilateral offer to make an advance payment to the plaintiff for the purpose of purchasing a customized wheelchair, a request by the defendants that the plaintiff make them an offer, a response by the plaintiff that the defendants should make him an offer, and the statement that the plaintiff had not yet acquired the customized wheelchair.

[20] Settlement privilege is a class privilege that applies to communications made with a view to negotiating a resolution of a litigious dispute. It promotes settlement because parties will be more likely to engage in frank and honest discussion with a view of settling if they have confidence from the outset that their negotiations will not be disclosed.[^12] As the Court of Appeal of Alberta has noted, “communications covered by the settlement privilege require at least a hint of potential compromise or negotiation”.[^13]

[21] In my view, nothing in the impugned paragraphs discloses the content of any negotiations between the parties. There are no offers made, no compromises, no admissions, nor recognition of any weaknesses. At most, they refer to invitations to negotiate, and to a unilateral decision by the defendant to provide an advance payment to the plaintiff. These communications are not covered by settlement privilege.

Conclusion

[22] The defendants’ motion and the plaintiff’s cross-motion are dismissed. If the parties cannot reach an agreement on costs, the plaintiff may send submissions not exceeding three pages together with a costs outline within 10 days of receiving these reasons. The defendants may send responding submissions, also not exceeding three pages together with a costs outline, within 10 days of receiving the plaintiff’s submissions.

Master Kaufman

Date: August 28, 2020

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[^2]: Arunasalam v. State Farm Mutual Automobile Insurance Company, 2015 ONSC 5235.

[^3]: 2116656 Ontario Inc. v. Grant and LLF Lawyers LLP, 2018 ONSC 1080.

[^4]: Roy v. Primmum Insurance Company, 2019 ONSC 6361.

[^5]: Courts of Justice Act, R.S.O. 1990, c. C.43.

[^6]: Bellamy v. Johnson (1992), 1992 CanLII 7491 (ON CA), 8 O.R. (3d) 591 (C.A.), at p. 595, per Doherty J.A. (concurring).

[^7]: Nguyen v. Kojo, 2017 ONSC 2014 at para. 6.

[^8]: Lawrence v. Primmum Insurance Company, 2009 CanLII 6837 (Ont. S.C.), at para. 11.

[^9]: Nguyen v. Kojo, 2017 ONSC 2014.

[^10]: Nguyen v. Kojo, 2017 ONSC 2014, at para. 12.

[^11]: Lawrence v. Primmum Insurance Company, 2009 CanLII 6837, at para. 12.

[^12]: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, at para. 13.

[^13]: Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10, 542 A.R. 83, at para. 24.