Court File and Parties
COURT FILE NO.: 16-0517
DATE: 20201013
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amanda Jane Andrews and Keri Ann Baker, personally and as Estate Trustees of the Estate of Linda Gordon, Willow May Baker, Tobin Bryon Baker and Violet Grace Baker, all by their Litigation Guardian Jeffrey Robert Baker, Sara Nicole Andrews and Emily Lyn Andrews, Plaintiffs
AND:
Dr. Leslie Pattison, Defendant
BEFORE: Justice C. Boswell
COUNSEL: Andrea H. Plumb and John A. Petrella for the Defendant/Moving Party
Unopposed
HEARD: In Writing
ENDORSEMENT
[1] The defendant moves for an order compelling the plaintiffs, Amanda Jane Andrews and Keri Ann Baker, to re-attend their examinations for discovery and answer questions they refused to answer when first examined.
[2] The motion came before me in writing in early August 2020. I asked that the defendant’s counsel provide a supplemental affidavit addressing the circumstances by which this action came to be set down for trial. My concern was the potential impact of Rule 48.04(1) of the Rules of Civil Procedure. That rule provides that “any party who has set an action down for trial and any party 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.”
[3] A supplemental affidavit was filed by defence counsel in response to my request. Although the material was apparently filed electronically with the court within several days of my endorsement, it was not forwarded to me until just a few days ago, evidently due to some confusion in the filing office.
[4] At any rate, I am satisfied on the basis of the supplemental materials filed that defence counsel did not set this action down for trial, nor consent to it being set down. At most, defence counsel agreed to a date for a judicial pre-trial conference. Such an agreement does not trigger any consequences under Rule 48.04(1). See Kechnie v. MacAllister, [2016] O.J. No. 742 at para. 24. This motion may proceed without leave.
[5] Attached as Appendix “A” to this endorsement is a copy of the defendant’s list of outstanding undertakings, refusals and questions taken “under advisement” given over the following three separate examination dates:
(a) The examination for discovery of Keri Ann Baker taken June 4, 2018;
(b) The examination for discovery of Amanda Jane Andrews taken September 6, 2018; and,
(c) The April 26, 2019 cross-examination of Amanda Jane Andrews on an affidavit sworn February 15, 2019 and filed in support of a motion for leave to late-file a Reply.
[6] I understand that the outstanding undertakings have been answered. The defendant moves for an order that Ms. Andrews and Ms. Baker answer questions previously refused or taken under advisement over the course of the three examinations. I will consider each in turn, beginning with Ms. Andrews’ cross-examination.
The Cross-Examination of Amanda Jane Andrews
[7] I do not have a copy of the trial record filed by the plaintiffs. But I presume that they either obtained leave to late-file their Reply or they elected to file the trial record without it. Either way the motion for leave to late-file the Reply is spent. I do not intend to make any order about outstanding refusals in relation to the cross-examination on an affidavit filed in support of a spent motion.
[8] I will focus, in the result, on the questions refused or taken under advisement by Ms. Baker and Ms. Andrews during their examinations for discovery.
The Examinations for Discovery
[9] The defendant’s Notice of Motion asks that an order be made requiring Ms. Andrews and Ms. Baker to re-attend to answer the questions set out in Schedule “A” to the Notice. There was no Schedule “A” attached. A chart of undertakings, refusals and under advisements was provided as a separate attachment. It gives no indication that any of the outstanding questions have been answered.
[10] The defendant set out some 41 grounds in support of the motion. Though there was an indication in those grounds that the outstanding undertakings had been answered, the precise status of the refusals and under-advisements was left somewhat murky.
[11] It was necessary to cross-reference the defendant’s chart against several paragraphs of defence counsel’s affidavit sworn July 16, 2020 and against correspondence provided by the plaintiffs’ counsel on June 22, 2020, which was attached as an exhibit to counsel’s affidavit.
[12] The whole exercise of pinning down the status of the outstanding questions was made even more difficult by virtue of the fact that the plaintiffs did not file any responding materials to the motion.
[13] I have done my best to pin down what questions have been answered and what questions remain outstanding. It appears to me that there are two questions in issue arising from Ms. Baker’s discovery and three arising from Ms. Andrews’ discovery. I am treating them all as refusals, even though some were taken “under advisement”.
[14] The questions in issue relate to the defendant’s limitation defence. He pleads that the plaintiffs’ claim was issued out of time and is statute-barred by the Limitations Act, 2002.
[15] The plaintiffs are all relatives of Linda Gordon. Ms. Gordon was a patient in the defendant’s practice of family medicine. She was diagnosed with lung cancer in late May 2013 and died on April 18, 2014. The plaintiffs commenced this action, alleging professional negligence against the defendant, on April 11, 2016. The defendant understandably wants to know as much as possible about when the plaintiffs became aware, or ought to have become aware, of their potential claim against him.
[16] During her examination for discovery on June 4, 2018, Ms. Baker indicated that her mother had started the process of making a claim against the defendant prior to her death. When asked to explain what she meant, she advised that her mother had retained counsel prior to her death. The plaintiffs’ counsel, Ms. MacFarlane, confirmed on the record that she was the lawyer retained by Ms. Gordon. She took under advisement the question of when she was first retained.
[17] The defendant contends that he is entitled to ask questions about when counsel was retained because that fact may be significant to the determination of when the plaintiffs knew or ought to have known that they had a potential claim against Dr. Pattison.
[18] I agree with the defendant’s submission. A party has an obligation, on examination for discovery, to answer all questions properly put to her. A proper question is one that is relevant, material and not subject to a claim of privilege.
[19] In this case it is clear that the limitations issue is a significant piece of the defence. The plaintiffs have raised discoverability issues. In doing so, they have made relevant all of the facts touching on when they knew or ought to have known about their potential claim against the defendant. Solicitor-client privilege will not extend so far as to shelter those facts from disclosure. As Master Short put it in Tomasone v. Capo, Sgro, Dilena, Hemsworth, Mendicino LLP, [2014] O.J. No. 2223 at para. 51:
Not all lawyer/client communication is privileged. Questions about the date a cause of action arises, the date of discovery of that cause of action, and questions relating to the existence of documents in a lawyer's file (including the existence of handwritten notes, and the number of times a solicitor and client met) are matters of fact not covered by privilege. As a result, those facts should be disclosed for the purposes of assessing the discoverability of a claim.
[20] With those general observations in place, I will turn to the specific questions in issue.
The Discovery of Keri Ann Baker
[21] There are two questions that Ms. Baker refused to answer on discovery, both part of a series of questions transcribed as Question 43:
To advise when Ms. McFarlane was retained by Linda Gordon prior to her passing; and,
To advise as to when medical records were requested and obtained.
[22] On June 22, 2020, Ms. MacFarlane provided Ms. Baker’s answers to these two questions. As to the first, she said Ms. Gordon did not retain Ms. MacFarlane. As to the second, she said that medical records were obtained by the plaintiffs between the dates of September 26, 2013 and January 9, 2014.
[23] I am content that the second question has been satisfactorily answered. Nevertheless, the defendant may have proper follow-up questions to ask which his counsel was preventing from asking at the original examination.
[24] I am perplexed by the answer to the first question. As I noted above, Ms. Baker clearly deposed that her mother had retained counsel prior to her death. Moreover, Ms. MacFarlane confirmed, on the record, that she was that counsel. While this question has technically been answered, that answer, in all the circumstances, obviously raises additional questions that the defendant is entitled to pursue.
[25] In my view, both questions were improperly refused at the original examination. They are relevant, material and not protected by privilege. Defence counsel are entitled to ask follow-up and clarifying questions in response to the answers provided in June 2020.
The Discovery of Amanda Jane Andrews
[26] Ms. Andrews’ outstanding refusals, insofar as I have been able to determine them, are:
Question 80: To advise when Ms. Gordon first retained counsel in regard to Dr. Pattison’s management of her care;
Questions 81 and 84: To advise if Ms. Andrews knew why her mother sought legal assistance with respect to Dr. Pattison’s care; and,
Question 86: To advise when experts were first retained.
[27] There is nothing in the materials filed on the motion that indicates that there was any effort made to answer these three questions. As far as I can determine it, they remain outstanding and refused.
[28] In my view, for the reasons expressed, these three outstanding questions were improperly refused. They are relevant to the live issue of discoverability. And they are not shielded by privilege. The defendant is entitled to answers to all three and to ask any further questions reasonably arising from the answers.
Conclusion
[29] I have identified three questions that Ms. Andrews improperly refused to answer. I have further identified two questions initially improperly refused by Ms. Baker. Though subsequently answered, I find that the defendant is entitled to pursue any questions that reasonably arise from those answers.
[30] In the result, the defendant’s motion is granted, insofar as it relates to the identified questions. Ms. Andrews and Ms. Baker are to re-attend, at their expense, to answer the improperly refused questions and any further questions arising therefrom. Given the impact of the Covid-19 pandemic, the plaintiffs may satisfy this order by attending virtually, on Zoom or another similar platform.
[31] The defendant has been successful on this motion. By convention, costs are awarded to a successful party and are generally measured on a partial indemnity basis: Bell Canada v. Olympia & York Developments Limited et. al. (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.).
[32] The defendant has sought partial indemnity costs of $4,600.87, inclusive of $844.30 in disbursements. The fees portion of that amount is $3,324.40. The balance is HST.
[33] It is well-settled that the overarching principles to be observed in the exercise of the court’s discretion to fix costs are fairness, proportionality and reasonableness: see Beaver v. Hill, 2018 ONCA 840; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); and Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440 (C.A.).
[34] This was not a particularly complicated motion, though the defendant was compelled to produce a factum which had to address a number of legal issues. I am satisfied that the time spent and the costs incurred were reasonable, fair and proportionate. In the result, costs are awarded in favour of the defendants in the amount of $4,600 payable within 30 days.
Boswell J.
Date: October 13, 2020