v. St. Joseph’s General Hospital 2021 ONSC 2523
Court File Numbers: CV-97-0701-00; CV-14-0209-00
DATE: 2021-04-06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
Plaintiffs
Court File Number
Endean et al
CV-97-0701-00
Lind et al
CV-14-0209-00
Plaintiffs
And
St. Joseph’s General Hospital Defendant
HEARD: March 10, 2021 via Zoom
BEFORE: F.B. Fitzpatrick J.
COUNSEL: J. Legge, for the Plaintiffs (responding parties)
S. J. Wojciechowski for the Defendant (moving party)
JUDGMENT ON MOTION FOR SECURITY FOR COSTS
[1] The defendant St. Joseph’s General Hospital (the “Hospital”) moves for an order for security for costs. The Hospital relies on Rule 56.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order against two sets of plaintiffs: Paulette Endean, Frank William Endean and Debbie Endean (the “Endeans”), and Sherry Lind, Gino Deamicis, Lorraine Lind by her litigation administrator, Crystal Lind, Lauri Lind, Crystal Lind, Donald Deamicis and Daniel Deamicis (the “Linds”). I will refer to all these plaintiffs hereafter as the “TMJ Plaintiffs”. The Hospital brings the motion because the TMJ Plaintiffs have filed a Rule 59.06 motion seeking to stay a trial judgment on liability against the TMJ Plaintiffs (Endean et al v. St. Joseph’s General Hospital, 2017 ONSC 2632 [“Endean I”]), reopen the trial on the issue of liability, introduce new evidence and re-apportion the liability of the Hospital.
[2] The TMJ Plaintiffs respond to motion for security for costs by submitting that they are impecunious and have insufficient assets to satisfy the $175,680.00 requested by the Hospital for security for costs on this motion. The TMJ Plaintiffs assert their Rule 59.06 motion has a good chance for success. The Hospital disputes the assertion of impecuniosity. The Hospital also contends the newly discovered evidence is not new at all and that the Rule 59.06 motion has no merit.
Background
[3] These matters have a long history. The TMJ Plaintiffs tried their case before me in a four-month trial that ran from September to December 2016. I dismissed their claim. The reasons for judgment ran over 100 pages. I awarded costs against the TMJ Plaintiffs. I dismissed their claim on the basis that they had commenced their actions beyond the two year limitation period applicable to claims against the Hospital under the Public Hospitals Act, R.S.O. 1980, c. 410, s. 28, and R.S.O. 1990, c. P.40, s. 31 (the “PHA”). The TMJ Plaintiffs appealed. Their appeals were dismissed by the Ontario Court of Appeal in March 2019: see Endean v. St. Joseph’s General Hospital, 2019 ONCA 181, 54 C.C.L.T. (4th) 183 [“Endean II”]. The decision of the Court of Appeal contained a concise history of the matter at paragraphs 1 through 7 of the judgment. In addition to my involvement with the file over the past five years, I rely on that summary as an accurate depiction of the background of this matter.
The Test on a Motion for Security for Costs
[4] An order for security for costs is a discretionary remedy. The court is directed by Rule 56.01 to make, or not make, an order as is just. It is not disputed that the Hospital satisfies the threshold test for an order for security for costs against the TMJ Plaintiffs under Rule 56.01(1)(c). The Hospital was awarded costs against the Endeans in the amount of $186,440.93 and $179,359.44 against the Linds at trial in December 2017. These judgments remain largely unpaid. The Hospital has collected $43.00 from the Endeans and $5,093.81 from the Linds.
[5] The onus on this motion then shifts to the TMJ Plaintiffs to demonstrate that the making of the order for security from costs would be unjust: see Chachula v. Baillie (2004), 2004 27934 (ON SC), 69 O.R. (3d) 175 (Sup. Ct.), at paras. 12-14. This inquiry involves consideration of factors including the merits of the claim, any delay in bringing the motion, access to justice concerns and the public importance of the litigation.
[6] The TMJ Plaintiffs do not assert they have appropriate or sufficient assets to satisfy any future order for costs. The court is then left to consider the motion through the lens of two additional tests;
a) The TMJ Plaintiffs are impecunious and the Rule 59.06 motion is not devoid of merit; (Pitkeathly v. 1059288 Ontario Inc., 2004 33018 (Ont. Sup. Ct.), at para. 10); or
b) The Rule 59.06 motion of the TMJ Plaintiffs has a good chance of success and while the TMJ Plaintiffs cannot establish their impecuniosity, they can demonstrate they do not have sufficient assets in Ontario to satisfy a court order.
[7] With respect to establishing impecuniosity and sufficiency of assets, a party resisting a motion for security for costs must provide evidence of their own financial circumstances with robust particularity such that there are no unanswered material questions. The threshold for establishing impecuniosity is high. Bald statements unsupported by detail are insufficient. Evidence such as a list of all income, liabilities and significant expenses, as well as an indication of the extent of the ability of the party to borrow funds, will assist the court in assessing the claim of a party’s impecuniosity: see Morton v. Canada (Attorney General (2005), 2005 6052 (ON SC), 75 O.R. (3d) 63 (Sup. Ct.), at para. 32.
The Financial Situation of the Endean Plaintiffs
[8] The Hospital seeks an order for security for costs against Paulette Endean, Frank William Endean (“Frank”) and Debbie Endean (“Debbie”). Frank and Debbie have not filed any evidence on this motion about their particular financial situation. There is one hearsay paragraph in the affidavit of Paulette Endean referencing the fact that Frank was contacted by a law firm representing the Hospital seeking to enforce its existing order. Otherwise, the court has no evidence about Frank or Debbie’s financial situation. Counsel for these plaintiffs explains this failure to file any evidence as being caused by the circumstance that their claim is under the Family Law Act, R.S.O. 1990, c. F.3, and requires first a finding of liability to the “main plaintiff”.
[9] The court cannot ignore Frank and Debbie’s failure to file any evidence in response to this motion. Frank and Debbie have an outstanding costs award against them. They have not paid the court ordered costs. The Hospital seeks an order for security from them. The settled case law holds that in order to resist an award of security for costs in the face of failure to pay an outstanding costs order, a party is to demonstrate how they are impecunious or do not possess sufficient assets to satisfy an award of costs.
[10] In my view, this failure to file evidence is an admission that Frank and Debbie are not impecunious and that they have sufficient assets to satisfy an award of costs by the Court. An order for security for costs against those two plaintiffs will issue on terms set out at the end of this judgment.
[11] Paulette Endean provided affidavit evidence on this motion. Her evidence provided details of her financial situation. Despite her assertion in her affidavit that she is impecunious, I find the evidence provided on this motion demonstrates otherwise.
[12] Ms. Endean is in receipt of over $5,000.00 per month in after tax income. She has no dependents. She had CRA line 150 taxable income of $33,191.00 in 2019. She receives $2,791.75 tax free per month from her structured settlement. I agree with Ms. Endean’s counsel that the structured settlement that generates this income is not an “asset” that can be considered on this motion as available by itself to satisfy a future costs award as it is not attachable by a creditor. However, it does not follow that the existence of the structured settlement is irrelevant to the question of whether Ms. Endean is impecunious as she alleges.
[13] Ms. Endean cites the decision of the Court of Appeal in Hunks v. Hunks, 2017 ONCA 247, 136 O.R. (3d) 641. The single issue on that appeal was whether structured settlement payments are to be treated as “property” or “income” for the purposes of the Family Law Act. Gillese J.A. found the payments to be “income”. I treat the amounts received by Ms. Endean as “income” for the purposes of assessing an assertion that Ms. Endean is impecunious.
[14] In June 2019, an Audi dealer in London was confident enough in Ms. Endean’s financial situation that it leased her a new 2019 A3 2.0T “Technik quattro”. The MSRP on the leasing document provided in Ms. Endean’s affidavit noted the price of the car as $61,428.00. She pays $359.76 per month for full Bell internet, TV and mobile services. In October 2017, TD Canada trust assessed her as sufficiently credit worthy to loan her $37,000.00 for an 84-month term. She identified this as a consolidation loan. No other particulars were provided concerning the loan.
[15] Ms. Endean deposes she has monthly expenses of $5,315.74. She has listed those expenses. It includes $100 per month for a transponder and tolls for the 407 ETR highway.
[16] Ms. Endean has made financial choices in her life given the means that are available to her. She gives no evidence why she has paid only $43.00 towards an outstanding costs order of this court. She gives no evidence as to why in July 2019, after the Court of Appeal had dismissed her appeal in March of 2019, she decided to lease a $61,000.00 car with a $1,000.00 per month payment, but made no attempts thereafter to pay a court ordered award of costs against her. It may well be that having to post security for costs is going to cause her to make other financial choices. However, the evidence does not establish that Ms. Endean is impecunious in the sense required by the jurisprudence concerning security for costs.
[17] I note that nothing in the jurisprudence directs a court to accept without question an assertion of the amount of costs to be posted by a moving party. While I agree with counsel for the Hospital that working up a reply to the Rule 59.06 motion as presently constituted will represent significant effort, I do not think the costs number sought is realistic when contrasted with the amount I awarded against Ms. Endean for a four month trial in an action that took about 20 years to get to trial.
[18] The exercise of my discretion with respect to Ms. Endean is influenced by the context of this litigation. Security for costs motions are fact driven. Counsel advised they could not find any cases dealing with a motion for security for costs in a circumstance where a party had completed their trial, lost, appealed, lost again, and then sought to reopen the trial on the basis of newly found evidence.
[19] As noted above, I do not find Ms. Endean to be impecunious. I agree she does not have assets in hand to immediately satisfy the amounts sought by the Hospital. This is not the end of the inquiry. In my view, what financial disclosure she has made indicates an ability to borrow funds against a large asset of a structured settlement. While this asset may not itself be seized, it produces income that can be attached. The fact that she is possessed of a unique asset does not create a situation where I see it as just to allow Ms. Endean not to have to put up some amount for security for costs in the face of her failure to pay a significant cost award outstanding in this matter. Also, I am influenced by the context of the litigation to consider how I should exercise my discretion in this matter.
[20] This litigation started a long time ago. It was a complex medical malpractice litigation. It was admitted at the trial by the Hospital that the plaintiffs, Ms. Endean being one, suffered damages as the result of the failure of the Vitek device that was implanted in them: Endean I, at para. 23. The issue at trial was the liability of the Hospital for those damages. I found the Hospital partially liable for the damages for one of the plaintiffs who brought their case to trial before me. It was not Ms. Endean. As noted previously, I found Ms. Endean was out of time when she launched her action. Ms. Endean disagreed with that the finding at trial. The Court of Appeal disagreed with her.
[21] Counsel for Ms. Endean represented many other plaintiffs in Thunder Bay who have suffered as she did. The cases went on for twenty years. The Endeans together with three other plaintiff groups got to try their cases first, before the other plaintiff groups went ahead. There was a great deal of judicial resources directed at attempting to resolve all these actions, including Ms. Endean’s action, since the middle of the 1990’s. The case is coming on to be 30 years old.
[22] Ms. Endean settled with one group of defendants, the oral surgeons who actually recommended the Vitek implant to her, did the surgery to put it in her jaw and then took it out once they realized it was not working as advertised by the manufacturer. The settlement with the oral surgeons was net to her of over $500,000.00.
[23] The trial of the action before me took over four months. Parties involved in this kind of high stakes civil litigation must be alive to the possibility that first, they might lose and second, if they do, they will face a large costs consequence.
[24] This is what happened to Ms. Endean. Yet, in my view, the tenor of her affidavit evidence is directed mostly at why she should get to “try it again”, while completely ignoring a basic tenet of civil litigation in this province of “loser pays”. I appreciate an important aspect of the jurisprudence concerning security for costs focuses on the merits of a party’s position who resists such an order. In my view Rule 56 is directed largely at circumstances where “trial at first instance” is still pending. Counsel for Ms. Endean concedes a favourable ruling on allowing a Rule 59.06 motion to direct the reopening of a trial is an exceptional remedy. I agree. I also see it as an important context in determining whether to exercise discretion to allow a party to continue to be shielded from consequences a court has ordered against them when the court has found them not to be impecunious.
[25] In oral submissions, counsel for Ms. Endean referred to the inequity of this motion “driving the plaintiff from the judgment seat”. With respect, Ms. Endean has had her day in court. Twice. Once at trial and again at the Court of Appeal. She is now seeking to have the court exercise an extraordinary remedy without her having to deal in any way with the reality of how the matter has proceeded to date. In my view, there is nothing unjust in requiring her to post security for costs.
[26] I will return to the matter of security for costs against Ms. Endean after I discuss the circumstances of the Lind Plaintiffs.
The Financial Situation of the Lind Plaintiffs
[27] The Hospital seeks an order for security for costs against Sherry Lind (“Sherry”), Gino Deamicis (“Gino”), Lorraine Lind (“Lorraine”) by her litigation administrator, Crystal Lind, Lauri Lind (“Lauri”), Crystal Lind (“Crystal”), Donald Deamicis (“Donald”) and Daniel Deamicis (“Daniel”). The situation for Gino, Lorraine, Lauri, Crystal, Donald and Daniel is exactly the same as that of Frank and Debbie as I have discussed above. I am going to say the same thing about Gino, Lorraine, Lauri, Crystal, Donald and Daniel as I did about Frank and Debbie. This is because their situations are the same insofar as the context of this motion goes. They are Family Law Act claimants. They too have not filed any evidence on this motion about their particular financial situation. There is one hearsay paragraph in the affidavit of Sherry referencing the fact that Gino is suffering from significant health issues that do not permit him to work. Sherry also says her two adult sons live with her. I had to assume this meant Donald and Daniel. Otherwise, the court has no evidence about Gino, Lorraine, Lauri, Crystal, Donald and Daniel’s financial situation. Counsel for the plaintiff answers this failure to file any evidence as being caused by the fact that their claim is under the Family Law Act and requires first a finding of liability to the “main plaintiff”.
[28] Once again, the court cannot ignore Gino, Lorraine, Lauri, Crystal, Donald and Daniel’s failure to file any evidence in response to this motion. Gino, Lorraine, Lauri, Crystal, Donald and Daniel have an outstanding costs award against them. They have not paid the court ordered costs. The Hospital seeks an order for security from them. The settled case law holds that in order to resist an award of security for costs in the face of failure to pay an outstanding costs order, a party is to demonstrate how they are impecunious or do not possess sufficient assets to satisfy an award of costs.
[29] In my view, this failure to file evidence is an admission that Gino, Lorraine, Lauri, Crystal, Donald and Daniel are not impecunious and that they have sufficient assets to satisfy an award of costs by the court. An order for security for costs against those six plaintiffs will issue on terms set out at the end of this judgment.
[30] Sherry has filed an affidavit as to her financial situation. She deposes she settled with the oral surgeons in 2013 and netted just over $600,000.00. She deposes none of these funds remain. She says she spent them on personal debt she had accumulated during years of acute disability and inability to earn income, and on her expenses thereafter. She does not particularize when she became acutely disabled and lost the ability to earn an income. She does not further particularize her situation regarding how she spent $600,000.00 in seven years. She does own two cars with a lot of kilometres on them.
[31] She is presently in receipt of Ontario Disability Support Payments. This pays her $2,135.25. She also has an outstanding debt of $7,856.83 owing to CRA. She does not explain how a person with no income other than one from the government can owe CRA an income tax debt of $7,856.83.
[32] I agree with the suggestion of Sherry’s counsel that she has demonstrated she does not have assets necessary to satisfy a costs award of the magnitude sought by the Hospital on this motion. However, I do not agree her affidavit material reaches the degree of fulsome and complete disclosure that is required on motions such as this. I appreciate how it would make sense that a person who has experienced chronic disease, cannot work and is in receipt of government assistance could also be found to be impecunious. In a case involving a claim for personal injury damages where a party is seeking further damages, having settled with other parties in the action for a significant amount, I think it incumbent on a party to say more than “the money is gone” to convince a court to exercise a discretion in their favour. Sherry is in the same position as Paulette as a litigant in a serious complicated personal injury claim. She was not successful, both at trial and at the Court of Appeal.
[33] I would say on a balance of probabilities as of the Spring of 2021, Sherry has not proven to my satisfaction that she is impecunious. This is because she has failed to make fulsome disclosure of her financial situation in a circumstance where she bears a high burden in doing so.
[34] I turn now from the matter of the plaintiffs’ financial situations and move to a consideration of whether their Rule 59.06 motion has a good chance for success.
[35] In this regard, I find that the TMJ Plaintiffs’ motion to reopen the trial does not have a good chance for success. Here is why.
The Rule 59.01 Motion does not have a good chance for success
[36] In considering this issue, I am guided by the well-known principles which would ultimately be considered on a Rule 59.06 motion, namely:
Would the evidence if presented to the court at first instance probably have changed the result?
Could the evidence have been obtained before the hearing and disposition by the exercise of reasonable diligence?
[37] If the evidence could have been placed before the Court at the original hearing, the court has a discretion to reopen a hearing to prevent a miscarriage of justice, which includes but is not limited to, a fraud or deliberate misleading of the court, or to prevent an abuse of the courts process: see Sturgarova v. Air France (2009), 2009 40552 (ON SC), 82 C.P.C. (6th) 298, at paras. 4 and 6.
[38] In my view, in the immediate case, the material before me on this motion fails to demonstrate that the Plaintiffs’ motion has a good chance for success. The motion materials put forward by these plaintiffs has the tone of an attempt at a “do over” of a type that is not to be encouraged under the Rules of Civil Procedure. A “do over” is different than a reopening of a trial with fresh evidence. It is an attempt to re-argue the same points under the guise of something new which in fact is not new at all.
[39] The evidence put forward on the motion is not “new” within the meaning of Rule. 59.06. The plaintiffs’ position on the issue of why their claim should be allowed to go ahead despite the fact they commenced it more than two years after the last treatment in the Hospital is not new. The plaintiffs have not demonstrated they exercised reasonable diligence in seeking out these documents in the past. Had this alleged new evidence been introduced at trial, it would probably not have changed my decision that these plaintiffs were out of time when they commenced their actions.
[40] In my view, having reviewed these documents, they do not give rise to a reasonable argument that the Hospital engaged in fraudulent concealment. None of these documents were created by the Hospital at first instance. A large number of documents were exhibited at the liability portion of the trial I conducted. Many documents were of a similar type to the “new ones” now allegedly recently found by the TMJ Plaintiffs. This does not mean that because 20 years after a lot of these documents were created, and were available to the public, they can become relevant or new after the fact because a plaintiff simply wants to argue that they do.
[41] At trial, these plaintiffs asserted the Hospital had a” look back” obligation which required the Hospital, independent of the duty of care owed to them by the oral surgeons who performed their treatment, to recall the plaintiffs to the hospital to be treated for the problems they may or could have been having with their Vitek implant. At trial, these plaintiffs asserted that the Hospital had withheld relevant documents from them, destroyed documents and not complied with court orders. I rejected the submissions on those two major areas of argument by the TMJ Plaintiffs. As I read it, these findings were accepted by the Court of Appeal: see Endean II, at paras. 37-42.]
[42] In my view, the TMJ Plaintiffs are now seeking to place a large mountain of paper before the court, all of which has no relevant connection to the matters that were at issue at trial, to try and reargue points that have already been dismissed.
[43] The plaintiffs identify three sources from which their counsel discovered alleged new evidence:
a) Independent investigations by counsel for the Plaintiffs at the Library and Archives of Canada;
b) Receipt of documents from non parties, and primarily Dr. Pierre Blais;
c) Late disclosure by the Attorney General of Canada in the class action Taylor v. Canada (Attorney General), 2020 ONSC 1192.
[44] I will discuss each area of new discovery in turn. However, I start with comments about the nature of the affidavit evidence before me on this motion. Counsel for the Hospital did not take exception to the nature of the affidavits before the court on this motion. I did not take their silence on this issue to represent acquiescence to the sufficiency of the assertions made by the affiants. I see it as tactical move designed to more efficiently make the point that the TMJ Plaintiffs’ Rule 59.06 motion does not have a good chance of success.
[45] The main evidence concerning the “new” documents came from the affidavit of Paulette Endean and from an affidavit of Dr. Pierre Blais. The affidavit of Dr. Blais was exhibited to an affidavit of a support staff member from counsel for the plaintiff’s office. I have some concerns that this “evidence” was not proper. In any event, it ultimately did not persuade me that the Rule 59.06 motion had a good chance for success.
The Archival Documents
[46] I deal first with the alleged “new” evidence concerning the discovery of documents at the Library and Archives of Canada. This “evidence” came from Ms. Endean’s affidavit. Ms. Endean’s affidavit on the issue of the new evidence was all from information and belief of her counsel. It also contained a great deal of conclusory and argumentative statements.
[47] I observe that Ms. Endean’s affidavit disclosed nothing from which I could conclude she had anything firsthand to say about the new evidence. Ms. Endean did not go to the archives herself. Her affidavit does not say about when the archives were made open to the public. I assume it was open to the public for research at least as of 2015. To the extent it was, I do not find persuasive any argument that any document found by counsel in a public archive can be said to be new for the purposes of this case.
[48] During the trial of the Taylor matter, where Ms. Endean was part of the plaintiff class, “counsel for the plaintiff” (not identified by Ms. Endean) discovered documents of four distinct types which were included in the material on the motion. It seems to me the best evidence for this case would have come from the actual lawyer who did this work and “discovered” these documents. Counsel for the plaintiff noted that the Hospital did not cross-examine Ms. Endean. The failure to cross-examine vague and insufficient hearsay evidence does not elevate its value.
[49] In any event, Ms. Endean’s “evidence” on the point gives no answer to the question of why a visit to the archives was not undertaken earlier, for example, a few years before the case went to trial before me. This is important because all the “new” documents found in the archives came from the 1980’s and 1990’s. I find that the plaintiffs have not persuaded me that these particular documents could not have been found by reasonable diligence earlier than 2015, the year I began to trial manage the trial that began before me in the fall of 2016.
[50] Further, I accept the arguments made by counsel for the Hospital that these documents are not relevant to the issues at trial and probably would not have changed the results. I find that these documents do not touch the issue of whether these plaintiffs could have tolled the limitation period of the PHA such that I would not have dismissed their claims for being out of time.
[51] The letter between Health Canada and Dr. H.M.S. Corrigan of July 10, 1987, is a good example of the irrelevance of the documents that the plaintiffs now urge upon me to find their motion has a good chance of success. Dr. Corrigan appears to be a dentist in British Columbia. The letter was written a year after the Thunder Bay oral surgeons, whose actions were relevant to the trial, stopped using the Vitek implant. The letter does not deal with Vitek implants. This document is prima facie not something the Hospital would have been expected to produce in the litigation.
[52] The Health Canada Memo dated October 23, 1984, is an internal government document. It has no specific reference to the Vitek implant. It does not contain tracking information relevant to the Hospital.
[53] The Medical Device bulletins of 1996 and spring 1997 were more than 10 years after the last use of the Vitek implant by the oral surgeons at the Hospital. The Medical Device Safety brochure of 1985 encourages people like the public to make complaints. This “suggestion” does not create a legal obligation on the Hospital.
[54] In my view, these documents are demonstrably irrelevant to the proposition that the liability portion of the case should be reopened on the basis that the Hospital had a duty beyond a scope that was found in the trial decision and upheld by the Court of Appeal. They also are demonstrably irrelevant to a proposition that the Hospital engaged in an act of fraudulent concealment that would allow a reconsideration of the decision that the TMJ Plaintiffs commenced their actions beyond the limitation period provided in the PHA.
[55] I am also not prepared to accept the “concerns” Ms. Endean’s affidavit contains in respect of what she perceives to be “conflicts” from the documents found at the archives and oral evidence given by other witnesses at the trial before me. With respect, her concerns about these “new” documents and the evidence of Carl White and Jack Tallon do not make any sense. It is simply re-argument of a proposition that the TMJ Plaintiffs’ counsel put forward at trial. The proposition was the Vitek implant was a “medical device” about which the Hospital had a duty of care to exercise independent of what was owed by the oral surgeons and in excess of the duty of care as found in the trial decision. This proposition was contrary to expert evidence that was accepted at trial.
[56] In my view, the alleged “new” evidence from Robert Scales is also re-argument of propositions that were not found to be persuasive at trial. Mr. Scales did not have any employment function that related to the Hospital for any period relevant to the trial. He was based out of Manitoba. He did not have responsibility for Ontario at any time relevant to trial. Also, there was no explanation how he would have anything to say about why the limitation in the PHA could have possibly been tolled as the result of what he has to say.
[57] Overall, I find the portions of Ms. Endean’s affidavit concerning the new evidence to be speculation, argument and of no assistance in support of a proposition that the Rule 59.06 motion has a good chance of success. In my view, the content of her evidence on this point is re-argument of matters previously put before me at the trial. I am not persuaded that this new evidence would have probably changed the result at trial for her and Ms. Lind.
[58] Moreover, the Plaintiffs are silent on this issue of why these documents were not found earlier upon a search at a public library or archive. At trial, there was evidence that Health Canada was issuing written documents to the Hospital in the 1980’s when the implants were being done. Why a visit to the archives was not undertaken earlier is not explained by Ms. Endean’s affidavit.
The evidence of Dr. Pierre Blais
[59] I will now turn to the evidence of Dr. Pierre Blais as it bears on the matter of whether there is merit to the TMJ Plaintiffs’ motion to re-open the trial for new evidence.
[60] In my view, there is nothing “new” about anything the TMJ Plaintiffs say they just acquired from the box of documents that Dr. Blais provided to counsel in February 2020. The fact that a collection of public documents were stored away in Dr. Blais’ office, attic and dry basement, and allegedly just “newly discovered” by him, does not make this “fresh evidence”. In my view, the evidence was there all the time. The documents in the box were largely public documents. They were documents of a nature that one would have reasonably expected to be available in a public archive.
[61] I was also not persuaded that the reasons Dr. Blais puts forward in his affidavit about how he just came to give these documents to counsel makes any sense. Dr. Blais was no stranger to this litigation. Counsel for the TMJ Plaintiffs submit that he was not “retained” by them at any time in the litigation. I accept that argument. He was just a witness. However, he admits he was retained or consulted by many lawyers in respect of TMJ implant litigation. Witnesses with special expertise often point out relevant documents to counsel in the course of being prepared to give evidence once they become aware of the topics about which counsel wishes to explore during their examination in chief. Dr. Blais does not explain in his affidavit why the so-called critical documents to the TMJ Plaintiffs case went unnoticed or unmentioned.
[62] In April 2000, Dr. Blais had two affidavits commissioned by counsel, Mr. Orr, who appeared before me at the trial on behalf of the TMJ Plaintiffs. Dr. Blais testified before me at trial as a witness for the Hospital. I made findings about his evidence. He repeats my findings in paragraphs 154 to 159 in his affidavit filed on this motion. He gave a will say statement in September 2002. It was given to counsel for the TMJ Plaintiffs sometime before 2011. I know now from the material before me on this motion Dr. Blais was also a witness at trial in the Taylor matter. All of this indicates to me that Dr. Blais was a known source of information about the Vitek implant since at least the year 2000.
[63] In light of all this, I do not understand how it is plausible for Dr. Blais to assert he just “found” these documents in February 2020. It is significant to note that the so-called finding of these documents occurs: (a) four years after the TMJ Plaintiffs had their claim dismissed; and (b) eleven months after the Court of Appeal dismissed the TMJ Plaintiffs’ appeal; and (c) two months after the plaintiffs were not successful in a class action against the Federal Government. This is all another attempt to “do over” what had been tried and rejected.
[64] In the context of Dr. Blais’ involvement with these matters, I do not accept his assertion that he was “surprised to find these documents” in February 2020. Dr. Blais deposes he has over 250 bankers boxes of documents in three places. For the purposes of this motion, he points to 15 documents among what must be thousands in 250 bankers boxes. Some degree of focus must have led Dr. Blais to comb through all these pieces of paper to come up with the group that have now been placed before the court in his affidavit. There is no explanation about how a person who had testified in two separate proceedings just picked February 2020 to come up with these particular documents at a time when the TMJ Plaintiffs’ efforts had been largely unsuccessful at the trial level.
[65] Dr. Blais says he participated in Health Canada’s hospital outreach program. He does not testify that he visited the Hospital as part of those duties. Dr. Blais provides a copy of something called the Barnard Report of 1983. It canvassed 43 hospitals throughout Canada. The Ontario hospitals canvassed were all in southern Ontario. Hospitals in Thunder Bay were not canvassed. I agree with the submissions of counsel for the Hospital that the Barnard Report relate to responses in hospitals related to one specific alert issued by Health Canada and not all alerts in general.
[66] Dr. Blais testifies about his involvement with production of the “Biocompatibility Booklet”. He was the author. It appears to have been produced in 1984 based on the “84-EHD-109” number I see on the document. It is 59 pages long. From the affidavit, I take the TMJ Plaintiffs to be suggesting this evidence meant the Hospital should have been doing its own testing on the Vitek devices or sending it out to some other facility. There is no explanation about why Dr. Blais did not think to bring this document or theory to the attention of anyone during his apparent longstanding involvement with TMJ litigation lawyers. There is no explanation why this theory was not argued at trial. In any event, this document does not go to the issue of how the limitation period would have been extended to benefit the TMJ Plaintiffs.
[67] I make the same observation for the 1985 document of Heath Canada titled “Canadian Regulatory Requirements Questions and Answers” and the various documents he refers to that apparently were produced by counsel for the Attorney General during the Taylor litigation. Dr. Blais testifies about his involvement with the preparation of these documents at first instance. Why the TMJ Plaintiffs are referring to them now to me indicates an attempt to re-argue issues that have been already considered and rejected. Which is all to say, the Rule 59.06 motion on behalf of the TMJ Plaintiffs does not have a good chance of success.
[68] In my view, all of what is contained in the affidavit of Dr. Blais is not new evidence. There is no explanation as to why this information could not have been obtained before trial by the TMJ Plaintiffs. It also does nothing to prove that the Hospital should have had a “look back” program, or that the limitation period against the TMJ Plaintiffs should have been tolled in the first place.
[69] I also recall a key piece of evidence I found after the hearing all of that evidence at the trial. It was that Dr. Blais was involved in responding to inquiries to Health Canada about the Vitek implant. He testified that no one ever inquired. Ever. Despite seeking to comment on other aspects of his testimony given at trial, Dr. Blais’ affidavit does not give any elucidation about what he said about this one very significant part of the evidence about which he testified at trial.
[70] Dr. Blais makes an attempt at “clarifying” his trial evidence in the affidavit filed with the court on this motion. Counsel in argument suggests “Dr. Blais attested to the fact that his evidence at trial was misapprehended”. I found this argument to be novel. I am not familiar with a circumstance where a witness is called upon after the fact to clarify for a trial judge the findings of fact made during a trial. In my experience, our system leaves that task exclusively to appellate courts. Accordingly, I find this aspect of Dr. Blais’ evidence to be neither relevant nor persuasive.
[71] The TMJ Plaintiffs argue this “new evidence” demonstrates the Hospital was under a duty to investigate, report and remedy adverse events arising from the Vitek implant. I do not agree that conclusion is reasonably possible on information and documents I have now in support of the Rule 59.06 motion. I find overall with respect to any of the “new” documents put forward by Dr. Blais or commented upon him in his affidavit that this is just a “re-bundling” of submissions made and rejected at trial.
[72] Overall, Dr. Blais’ affidavit in my view is an attempt to “testify” in a manner which I find to be argument as to why these documents demonstrate the Hospital had a legal duty to the TMJ Plaintiffs in excess of what I found to be the case at trial. The suggestion that the Hospital had a “look back” obligation to the TMJ Plaintiffs was tried and rejected. I do not accept that anything in Dr. Blais’ affidavit or the arguments made by counsel for the TMJ Plaintiffs relying on the documents or statements contained in the affidavit demonstrate the Rule 59.06 motion has a good chance for success.
The new evidence from Taylor class action
[73] In support of their motion to re-open, the TMJ Plaintiffs assert there is new evidence from the Taylor class action. This evidence is referred to in both the affidavits of Ms. Endean and Dr. Blais. The TMJ Plaintiffs argue the Attorney General in that action produced 2,000 documents after the trial before me that would have changed my trial findings on liability.
[74] The evidence about when these documents were found is vague. Both Ms. Endean and Dr. Blais depose their source of information about this alleged late production comes from TMJ Plaintiffs’ counsel. This is unhelpful. It does not allow any meaningful assessment of an important criteria for a “fresh evidence” motion because it does not allow the court to assess when exactly the documents came to the attention of counsel. While the affiants assert the documents came to the attention of counsel after the trial, there is nothing in the material, even hearsay, to connect when these documents may have come to the attention of the TMJ Plaintiffs relative to their hearing at the Court of Appeal which occurred on January 9, 2019. I note the Taylor trial commenced on April 1, 2019.
[75] When a party is seeking an exceptional remedy from a court, it seems to me incumbent on them to be as accurate and fulsome as possible.
[76] Of the “newly produced” documents, at least one already had been placed before me at trial. It was Information Letter 638. This is a document that Ms. Endean deposes the Hospital failed to produce prior to her trial. Yet it showed up as Exhibit 31.2 at her trial. Information Letter 608 was part of a series leading to Information 638. Perhaps all these documents were available in the public archives as well.
[77] This is just one example. However, Information Letter 638 was not a “one off”. It was part of a series. Since it was available to place before me during the trial, I am concerned as to why now the other Information Letters (numbered 529, 557, 608 and 721) referenced in Ms. Endean’s affidavit as newly produced were not “found” until after the trial. Counsel answers in oral argument that his client never had these documents. Dr. Blais apparently did have the documents, but just did not mention it to anyone. The Hospital might have had these documents. They might not have had these documents. How long they would have reasonably been required to keep them around is not addressed. Information Letter 529 is dated June 14, 1978, for example. It deals with clinical trials. It was written five years before the oral surgeons asked the Hospital to buy the Vitek implant so they could implant it in persons like Ms. Endean and Ms. Lind. There was no evidence at the trial these procedures were part of a clinical trial.
[78] There is also a concern about criticizing a party like the Hospital for non-production of documents produced by the Federal Government in a case where hundreds of documents were already produced at trial. It seems to me aggressive to argue the Hospital was hiding anything or being fraudulent about anything at any time during this very long litigation. I say this also in the context of the fact the TMJ Plaintiffs made “non-production” an issue at the trial. I did not accept their arguments at trial about non-production or spoliation.
[79] The TMJ Plaintiffs again raise the argument that the “new documents” would have impacted an assessment of the effect of the CCHA Accreditation program. The TMJ Plaintiffs argue this process extended the legal duty of the Hospital to the patients of the oral surgeons concerning the Vitek implant. This was argued at trial. It did not impact the decision that the TMJ Plaintiffs missed a limitation period.
[80] Reviewing all these documents put forward by the TMJ Plaintiffs on this motion, individually or collectively, they do not persuade me that they would lead me to change the essential finding that these TMJ Plaintiffs missed the limitation period provided in the PHA.
[81] I find that the new evidence apparently acquired post trial does not show a good chance of demonstrating the Hospital took any false, fraudulent, or misleading position before this court at the trial. I find it is not reasonable to say that production of these documents, and the evidence of Dr. Blais about what they mean, would have changed the outcome of the trial.
[82] It is not plain and obvious that a miscarriage of justice will occur if this trial is not reopened. The TMJ Plaintiffs have not demonstrated with this large volume of documents that this has any possibility of reaching the exceptional conclusion necessary for this court to reopen a matter that has been tried and upheld by the Court of Appeal.
[83] In my view, a granting of an order for security for costs does not offend against any principles about access to justice. The TMJ Plaintiffs have had their day in court. They seek another one without honouring previous orders made against them. This case has no particular aspect which would be of broader interest to the public or the administration of justice. It is a dispute over allegations of negligence and damages for a product that long ago has been withdrawn from the market. Making an order for security for costs is just in all the circumstances.
[84] For all the above reasons, the Hospital’s motion for security for costs is allowed.
Amount of Security to be posted
[85] I was not convinced the amount sought by the Hospital on this motion for security for costs is reasonable. I say this because counsel has now done a great deal of work setting out why the motion by the TMJ Plaintiffs does not have a good chance for success. As noted above, I agree with that submission. It seems to me if security is posted and the matter proceeds, counsel for the Hospital has already set out, in great detail in not one but two facta (over 61 pages) as to why the motion has no merit. This has a bearing on my assessment of the amount of security that should be posted. I am awarding costs for this motion to the Hospital. This also influences the amount of additional security required.
[86] Further, I assess the amount required for security now against the amount of costs ordered in the trial. The amount of $176,000 sought on this motion for security is excessive when viewed against how much is owing for trial costs regarding what was a much more involved process than the TMJ Plaintiffs’ pending motion.
[87] In my view, an amount of $30,000.00 each, from the Linds and the Endeans respectively, shall be posted to provide adequate security for costs for the Rule 59.06 motion given what has transpired on this file to date. The form of the security may be addressed by counsel at a future case conference. In any event, it shall be posted to the credit of this matter on or before July 10, 2021. If either of the group declines to post security as ordered, the Hospital shall be at liberty to move that the Rule 59.06 motion shall be at an end for those particular plaintiffs. If both go forward, total security of $60,000.00 will be posted in court in some form before July 10, 2021.
[88] I assess the amount of $30,000.00 to be reasonable for each group given the lack of disclosure by the majority of them and particularly given the means demonstrated by Ms. Endean to borrow money to finance her life choices. This is a serious case. There was no legitimate reason given why the existing orders for costs of the courts have been ignored. It seems fair and just to me that having been in the “judgment seat” both at the trial level and the Court of Appeal level, these plaintiffs who I assess as not having a good chance of succeeding on their motion to reopen the liability portion of the trial, should be required to put up a significant amount of money if they insist on still trying to move forward with their Rule 59.06 motion.
[89] At the beginning of the matter I asked counsel for an estimate of costs they would be seeking if they were successful on this motion. While they had not discussed the matter, they both asked for $18,000.00 on a partial indemnity basis if they were successful.
[90] This matter has taken up a great deal of time. In light of these submissions, which I view as a reasonable assessment of the amount of costs for this motion, I am going to make an order for costs now.
[91] I order that the TMJ Plaintiffs jointly and severally pay the Hospital $18,000.00 costs inclusive of HST and disbursements for this motion forthwith.
[92] The next step in this matter will be a case conference to schedule matters related to the Rule 59.06 motion, and if it is not proceeding, then to deal with the other cases awaiting adjudication and in particular the matter related to the Hearsey plaintiffs.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
v. St. Joseph’s General Hospital 2021 ONSC 2523
Court File Numbers: CV-97-0701-00; CV-14-0209-00
DATE: 2021-04-06
SUPERIOR COURT OF JUSTICE-ONTARIO
Plaintiffs
Court File No.
Endean et al.
CV-97-0701-00
Lind et al.
CV-14- 209-00
Plaintiffs
and
St. Joseph’s General Hospital Defendant
HEARD: March 10, 2021 via Zoom
BEFORE: F.B. Fitzpatrick J.
COUNSEL: J. Legge, for the Plaintiffs (responding parties)
S. J. Wojciechowski for the Defendant (moving party)
JUDGMENT ON MOTION FOR SECURITY FOR COSTS
Fitzpatrick J.
Released April 6, 2021