COURT FILE NO.: 14-61157
DATE: 20201005
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: STEVEN BURGESS, NATASHA BURGESS, CLARA BURGESS by her Litigation Guardian STEVEN BURGESS and ELLA BURGESS by her Litigation Guardian STEVEN BURGESS, Plaintiffs/Responding Parties
AND
UNIVERSITY HEALTH NETWORK, ALTUM HEALTH, DR. LINDA DVALI,
DR. AMER AL-KUDMANI and JANE DOE, Defendant/Moving Parties
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Martin Forget for the Plaintiffs
Andrew Kalamut and Kishan Lakhani for the Defendants, Dr. Linda Dvali and Dr. Amer al-Kudmani
Daniel Girlando for the Defendant, University Health Network
HEARD: July 17, 2020
ENDORSEMENT
H. J. williams, J.
OVERVIEW
[1] The defendants in this medical malpractice action have moved, jointly, for an order for production of certain documents from the file of the plaintiffs’ lawyer.[^1] The defendants’ motion relates to an upcoming motion by the plaintiffs to extend time to set the action down for trial.
[2] The defendants intend to cross-examine the plaintiff Steven Burgess and the lawyer on affidavits sworn in support of the motion to extend time.
[3] The defendants are seeking production of the documents before the cross-examinations take place.
[4] The plaintiffs resist the motion on the basis that they have no obligation to produce any documents before a cross-examination takes place, the requested documents are protected by privilege and the documents are not relevant to the issues on the motion to extend time.
BACKGROUND
[5] Mr. Burgess was injured in a workplace accident in June 2011. He received benefits under the Workplace Safety and Insurance Act, 1977, S.O. 1997, c. 16, Sched. A. (“WSIA”)
[6] The plaintiffs’ action relates to surgery Ms. Burgess underwent in connection with the workplace accident.
[7] The statement of claim was issued in June of 2014.
[8] After the plaintiffs started the action, their lawyer learned that, under s. 30(11) of the WSIA, the action could not proceed without the consent of Mr. Burgess’s employer, the City of Ottawa.
[9] The plaintiffs’ lawyer communicated with the City of Ottawa and attempted to negotiate terms of a consent. The plaintiffs’ lawyer made a proposal to the City of Ottawa in March 2017. In his affidavit, the lawyer said that to date, the terms of a consent have not been agreed upon.
[10] The defendants have not filed statements of defence, affidavits of documents have not been exchanged and examinations for discovery have not taken place.
[11] The notice in support of the plaintiffs’ motion to extend time was served on June 17, 2019.
THE POSITION OF THE MOVING PARTIES (THE DEFENDANTS)
[12] The defendants argue that, by filing affidavits in support of the motion to extend time in which both Mr. Burgess and the lawyer referred to the consent issue and the lawyer referred to the steps he has taken to move the action forward, the plaintiffs have waived privilege over the related documents in the lawyer’s file.
[13] The defendants request an order for production of the following documents, listed in Schedule A to their notice of motion:
All notes, correspondence, memoranda and other documents relating to the independent research conducted to ascertain what, if any, actions were required to continue this action following receipt of [WSIB employee] Mr. Jean-Denis Belec’s January 16, 2015 letter, and as referred to in paragraph 17 of the Affidavit of Frank McNally [the plaintiffs’ lawyer], sworn November 28, 2019.
All documentation of any steps taken to further the litigation after March 17, 2017, including notes, correspondence, memoranda, or other documents relating to the investigations referred to in paragraphs 28 and 29 of the Affidavit of Frank McNally, sworn November 28, 2019.
[14] Although paragraph 1 of the defendants’ Schedule A, above, refers only to paragraph 17 of the lawyer’s affidavit, paragraphs 15 and 16 provide necessary context. The three paragraphs follow:
On or about January 16, 2015, I received a correspondence from Jean-Denis Belec, counsel for the Workplace Safety & Insurance Board (hereinafter the "WSIB"). Mr. Belec advised that the WSIB had learned of the within action, and took the position that, because Mr. Burgess's allegedly negligent Surgery (sic) was treatment for a workplace injury, his employer was subrogated to the within medical negligence claim. Mr. Belec further advised that Mr. Burgess would require the consent of the City of Ottawa to continue the within action. Attached hereto and marked as Exhibit "E" is the correspondence from Mr. Belec.
After receiving Mr. Belec's letter, and as a result of the position expressed therein, I undertook my own independent research to ascertain what, if any, actions were required to continue the within action.
Following the conclusion of my research I undertook to obtain the consent of the City of Ottawa to continue the within action.
[15] Paragraphs 28 and 29 of the lawyer’s affidavit, referred to in paragraph 2 of the defendants’ Schedule A, are reproduced below:
Despite the fact that I had received no response from the City of Ottawa to my March 17, 2017 letter, I began taking steps to further the litigation in the months that followed.
These efforts consisted of contacting medical experts to ascertain their availability to provide their expert opinion pursuant to Rule 53.03 of the Rules of Civil Procedure. These investigations were made in or around:
a. April 2017;
b. February 2018;
c. November 2018; and
d. February 2019.
[16] The following paragraphs of Mr. Burgess’s affidavit refer to the consent issue, communications with his lawyer or both:
I retained the law firm of McNally Gervan to represent me and instructed Mr. Frank McNally to issue the Statement of Claim in this action.
After the Statement of Claim was issued, I was advised by my lawyer, Mr. McNally, that I would need to get consent from the City of Ottawa to continue the lawsuit because the surgery that caused my current injuries was intended to treat my original workplace injuries.
I was advised by Mr. McNally, and it remains my understanding today, that I am unable to move forward with this action without the consent of the City of Ottawa.
In response to this advice, and at all times before and since, I instructed Mr. McNally to pursue this action and I cooperated with him in its prosecution.
I have always intended to pursue this action and at no time have I ever advised Mr. McNally or any else at his firm to delay or cease pursuing it.
Since the Statement of Claim was issued, I have had numerous conversations with my lawyer and the staff in his office about the status of this action. It was always my clear intention to have the claim pursued to a conclusion.
During the course of this litigation, I have assisted my counsel in obtaining whatever he requires to pursue my claim, including documentation required to support my claim such as medical records, employment records, and WSIB records.
It remains my understanding and belief, that the delays in pursuing this action are entirely as a result of an inability to move the action forward without the consent of the City of Ottawa.
[17] The defendants argue that the plaintiffs “have put the conduct of their lawyer in issue, on a matter germane to the ultimate disposition of their motion” [to extend time to set the action down for trial] and, in doing so, have waived any privilege that may apply to the documents the defendants are seeking. The defendants argue that the plaintiffs cannot “cherry-pick” in respect of privileged communications and documents by producing some but not all of them. The defendants also argue that they are entitled to test the plaintiffs’ lawyer’s statements that go to the core of the issues to be decided on the extension of time motion.
THE ISSUES
[18] The issues on the motion are whether: (1) through the affidavits of their lawyer and Mr. Burgess, the plaintiffs have waived privilege over portions of the lawyer’s file; (2) if there has been a waiver, the documents should be produced; and (3) any production order should be made before the cross-examinations.
ANALYSIS
Privilege and relevance
[19] Although the defendants in their written and oral submissions focused on lawyer-client privilege, there are two types of privilege relevant to this motion: (1) lawyer-client privilege, which protects communications in respect of legal advice and related communications; and (2) litigation privilege which creates what has been described as a “zone of privacy” to shield a party’s litigation preparation from disclosure. The Supreme Court of Canada has recognized that lawyer-client privilege has the status of a principle of fundament justice within the meaning of s. 7 of the Canadian Charter of Rights and Freedoms. (Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, at para. 21.) The Supreme Court of Canada has described litigation privilege as “a fundamental principle of the administration of justice that is central to the justice system.” (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, at para. 4.)
[20] Before finding that a party has waived privilege and ordering that evidence, in this case, documents from a lawyer’s file, be disclosed, the court must balance fairness with the importance of privilege and must be satisfied that the evidence is not only relevant but highly relevant: “Deemed waiver and disclosure will be limited to circumstances where the relevance of the evidence in question is high [emphasis added], and the principles of fairness and consistency require disclosure to allow a party to adequately defend.” Roynat Capital Inc. v Repeatseat Ltd., 2015 ONSC 1108 (Div. Ct.), at para 84, per J. Wilson J.)
[21] As I noted at the outset of this endorsement, the defendants’ motion is in the context of a pending plaintiffs’ motion to extend time to set their action down for trial. The court hearing the plaintiffs’ motion will be required to decide two issues: (1) whether there is an acceptable explanation for the delay in setting down the action; and (2) whether allowing the action to proceed will cause the defendants to suffer non-compensable prejudice. (Erland v. Ontario, 2019 ONCA 689, at para. 4.)
[22] If there has been a waiver of privilege in this case, with the exception of one category of documents, which I will identify below, I am not persuaded that the documents sought by the defendants would assist the court hearing the extension of time motion to assess either of the issues in the preceding paragraph.
The documents requested in para. 1 of Schedule A to the notice of motion
[23] In para. 1 of Schedule A, the defendants seek production of documents relating to the research the lawyer referred to in para. 17 of his affidavit, which he said caused him to decide to seek the City of Ottawa’s consent to the plaintiff’s action. That the City of Ottawa’s consent to the action is required is not in dispute. The timing of the research is evident from the lawyer’s affidavit. The lawyer received Mr. Belec’s letter on January 16, 2015 and discussed the consent with the City of Ottawa’s legal services department on June 19, 2015; the research was, therefore, conducted on or after January 16, 2015 and on or before June 19, 2015. The conclusion the lawyer drew from the research, the timing of the research and the step taken by the lawyer as a result of the research are all evident from the lawyer’s affidavit. The documents relating to the research itself will not assist the court to decide the issues on the motion to extend time. Consequently, these documents are not relevant.
The documents sought in para. 2 of Schedule A to the notice of motion
[24] In para. 2 of Schedule A, the defendants seek production of documents relating to the steps taken by the lawyer to further the litigation after March 17, 2017, referred to in paras. 28 and 29 of the lawyer’s affidavit. The steps taken by the lawyer and the associated dates are relevant to the issue of whether there has been an explanation for the delay in setting the plaintiffs’ action down for trial.
[25] In his affidavit, the lawyer said that the steps he took involved contacting medical experts to determine if they would be available to provide expert’s opinions. The lawyer also provided the approximate dates he took these steps. As the steps the lawyer took and when he took them were both set out in the lawyer’s affidavit, I am not persuaded, based on the material before me, that many of the documents requested by the defendants would assist the court to decide issues on the motion.
[26] I agree with the defendants, however, that they should be entitled to test the lawyer’s assertion that he did what he said he did when he said he did it, in other words, that he did in fact communicate with medical experts and that he did so on or around the approximate dates set out in his affidavit. I find that there has been a waiver of litigation privilege in respect of the fact and the timing of the lawyer’s communications with medical experts. I also find that documents that confirm that communications with medical experts took place and when they took place are relevant. Based on the material before me, I am not satisfied that any additional information, such as the identity of the medical experts or the substance of the lawyer’s communications with them, would be relevant to the issues on the motion to extend time.
Timing of production
[27] I agree with the plaintiffs’ argument that the Rules of Civil Procedure do not require the deponent of an affidavit to produce documents before being cross-examined. The notice of examination (Form 34A) allows the party serving the notice to demand that certain documents be brought to and produced at the examination but does not require the examinee to produce any documents prior to the examination. Further, the plaintiffs in this case have no obligation to disclose or produce any documents under Rule 30 of the Rules of Civil Procedure at this time. The documents a party to an action must disclose are determined by their relevance to the issues pleaded. (Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310 at para. 42.) The defendants have not yet delivered statements of defence and have no right to request an affidavit of documents from the plaintiffs.
[28] The defendants argued expediency. They said it would make no sense not to order production of documents prior to the cross-examinations. In practice, documents are frequently produced before cross-examinations take place because to do so is practical and may avoid multiple examinations. The Rules of Civil Procedure are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. (Rule 1.04.)
[29] In this case, I am not persuaded that it would be more expeditious or less expensive for the documents I have found relevant to be produced before the cross-examination of the lawyer. The lawyer said he communicated with an undisclosed number of medical experts on or around four dates. Documents corroborating this statement will likely be few in number. Further, I am not in a position to order production of any specific document or type of document at this time. I do not know, for example, whether the experts were contacted by telephone or by email or whether correspondence was sent to them by regular mail or by courier. I do not know, therefore, whether corroborating documents would be in the form of a hand-written or electronic note, a docket entry, an email or a letter. Moreover, the relevance of any document in this category is that it would confirm the truth and accuracy of the lawyer’s statement that he communicated with experts on or around certain dates. The defendants will be entitled to ask for documents that corroborate the lawyer’s statement but not necessarily for all documents that corroborate the statement; for example, if an email clearly shows that the lawyer contacted a certain expert on a certain day, an associated docket entry or a letter to the same expert the following day may be redundant and not relevant. The lawyer’s answers on cross-examination will reveal the mode and nature of any communication with an expert, the corroborative documents that may exist and whether all documents that may exist are relevant to the issues on the motion. An order for production at this time of any and all documents corroborating the lawyer’s statement in respect of the experts would be overly broad; an overly broad production order in respect of documents over which privilege has been claimed should be avoided.
DISPOSITION
[30] To summarize, I find that the plaintiffs have no obligation to produce any documents prior to the cross-examinations.
[31] I order the plaintiffs to have available at the cross-examination of the lawyer, documents corroborating the lawyer’s assertion in para. 29 of his affidavit that he communicated with medical experts and the dates of the communications. The facts to be corroborated are: (1) that the lawyer communicated with medical experts (that is to say, more than one); and (2) that communications took place on or around each of the four dates in para. 29. At the cross-examination, if asked to do so, the plaintiffs shall produce at least one document to prove each fact (i.e. that the lawyer communication with more than one expert and that there were communications on or around each of the four dates.)
[32] The plaintiffs shall not be required to identify any expert. The identity of any expert and any other information in a document over which the plaintiffs claim privilege may be redacted before any document is produced.
[33] Documents which may be produced shall be redacted before the cross-examination so that they will be available to be produced at the cross-examination.
[34] In the expectation that the cross-examination will be conducted via video-conference, the lawyers for the parties shall make arrangements for production of the documents electronically during the cross-examination.
[35] The defendants’ motion is otherwise dismissed.
COSTS
[36] I encourage the parties to settle the costs issue. If they are unable to do so, they may deliver written costs submissions of no more than five pages in length within 14 days. They may then deliver reply costs submissions of no more than three pages in length within seven days of the date of receipt of the opposite parties’ initial submissions. These submissions shall be filed by sending them to my attention, by email, to the following email address: SCJ.Assistants@ontario.ca
Released: October 5, 2020
COURT FILE NO.: 14-61157
DATE: 20201005
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: STEVEN BURGESS, NATASHA BURGESS, CLARA BURGESS by her Litigation Guardian STEVEN BURGESS and ELLA BURGESS by her Litigation Guardian STEVEN BURGESS, Plaintiffs/Responding Parties
AND
UNIVERSITY HEALTH NETWORK, ALTUM HEALTH, DR. LINDA DVALI,
DR. AMER AL-KUDMANI and JANE DOE, Defendant/Moving Parties
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Marc E. Smith for the Plaintiffs
Andrew Kalamut and Kishan Lakhani for the Defendants, Dr. Linda Dvali and Dr. Amer al-Kudmani
Daniel Girlando for the Defendant, University Health Network
ENDORSEMENT
Madam Justice H.J. Williams
Released: October 5, 2020
[^1]: The lawyer who argued the motion on behalf of the plaintiffs represents the lawyer whose documents are being sought.