Court File and Parties

Court File No.: C-486-15 Date: 2021/04/22 Superior Court of Justice - Ontario

Re: Muhammed Rafique Shafique, Plaintiff And: Timothy Cowie and Alex Jordan Pereira, Defendants

Before: Turnbull, J.

Counsel: Jason Brown, Counsel, for the Plaintiff Nolan Kiddie, Counsel, for the Defendant Cowie James Prior: Counsel for the defendant Pereira.

Heard: March 18, 2021

Endorsement

[1] The defendant Timothy Cowie has brought a motion pursuant to Rule 26.02(c) for an order granting both defendants leave to amend their statement of defence to plead the legal doctrine of spoliation.

[2] This action arises out of a motor vehicle collision which occurred May 7, 2014. The plaintiff was designated to be catastrophically injured in the accident.

[3] The plaintiff was examined for discovery on October 11, 2016 at which time he or his counsel gave various undertakings to produce documents. One of those undertakings was to produce the clinical file of Bayshore HomeCare (Bayshore) which was an organization which provided attendant care to the plaintiff at his home after the accident.

[4] The defendants contend that the file contains medical records of the plaintiff and possibly provides evidence of the alleged injuries he suffered. On his examination for discovery[^1], the plaintiff acknowledged that his accident benefit insurer (Aviva) provided funding for the Bayshore services from November 2015 to May 2016 when they were terminated because Aviva declined to pay ongoing attendant care benefits.

[5] Counsel for the plaintiff wrote to Bayshore and Bayshore forwarded the contents of its file to counsel. In her responding affidavit filed in support of the plaintiff, Judi Denesi, a senior law clerk at the office of plaintiff’s counsel swore that documentation was received from Bayshore by letter dated September 17, 2018. She acknowledges that upon review of the file, it appears the documentation that Bayshore provided to her office was only information with respect to attendances and billing and did not include the clinical notes and records. The plaintiff was unable to produce the clinical file.

[6] The defendant Cowie had earlier brought a motion under Rule 30.10 (a third party production order) and obtained an order dated April 18, 2018 compelling Bayshore to produce the clinical file.

[7] Bayshore then advised counsel for the defendant in writing that the clinical file was stored at the plaintiff’s residence and its employees were unable to retrieve it when services for the plaintiff ended. The letter from Bayshore is dated May 22, 2018 and is found at exhibit F to the affidavit of Ms. McVittie. It reads as follows:

I understand that you are seeking a copy of client’s clinical file. Unfortunately, we were not successful in retrieving our clinical file from clients home when services ended.

If you have any questions, please feel free to reach out to myself.

Sincerely,

Claudia Tomiszek,

Manager, Auto Insurance Program.

[8] Based on that double hearsay, the defendant wishes to plead that the plaintiff has lost or destroyed medical records which are of central importance to this matter given it is an action for personal injuries.

[9] The defendants contend it would be unfair to require them to proceed to trial without this amendment as medical records are relevant to the determination of damages in this matter. The unavailability of the clinical notes and records was not discovered until pleadings had been closed and discoveries held.

Position of the Plaintiff:

[10] Mr. Brown, counsel for the plaintiff, opposes the motion largely on the basis that the supporting affidavit is based on double hearsay. Ms. McVittie has relied on the unsworn letter/evidence of Ms. Tomiczek who was a manager and not the case worker(s) who had control of the Bayshore file while delivering services to the plaintiff. He notes that Mr. Shafique has filed a sworn affidavit in which he vigorously denies:

a. that he was ever provided with a clinical file from Bayshore.

b. that Bayshore ever left his file at his residence nor did they ever advise him that they were going to do so. He swears that if the clinical file was left at his home, it was done so entirely without his involvement, knowledge, or consent; and

c. that he was ever advised by Bayshore or its employees that Bayshore was leaving its only copy of his file at his residence.

[11] Mr. Shafique swore that he has formal education and training in nursing and pharmacy and has been certified as both a registered nurse and pharmacy assistant in Pakistan before emigrating to Canada. As a result, he states that he has the knowledge and ability to identify a medical file and he recognizes the importance of preserving medical files, particularly during litigation arising out of personal injuries. He swore that he has conducted a search of his files at his residence and has not found such a file. He expressed surprise that a company such as Bayshore would lose their file and not maintain a back up file either in paper or digital form.

[12] Counsel for the plaintiff submits that none of these sworn assertions by Mr. Shafique have been refuted by the defendant. He argued that the defendant ought to have sought an order to examine Ms. Tomiszek or the employee of Bayshore who had primary management of the case. He noted that Rule 39.02 and Rule 39.03 provide for the right to examine a witness on a motion.

[13] Mr. Brown further also drew the court’s attention to the public policies issued by Bayshore with respect to its clinical files. They are found at exhibit C to the affidavit of Judi Denesi. They are summarized in Ms. Denesi’s affidavit paragraph 11. In particular, she refers to Bayshore’s website where it says:

We retain all discontinued client records for a minimum of ten years or longer if required by provincial regulation…….These records, whether at our offices or off-site, are stored in a manner that ensures ongoing security.

Analysis

[14] The threshold is low to amend a pleading. The wording of Rule 26.01 is mandatory in nature to permit the amendment at any stage of a proceeding on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[15] The essence of the amendment sought is that the plaintiff has done something intentionally or negligently disposed of a file which he ought to have known was relevant. The inference the defendant will want the trial court to draw is that the plaintiff hid evidence which was not helpful to his case. In my view, such an unfounded assertion based on double hearsay can possibly cause irreparable damage to the plaintiff’s case. It will cause the plaintiff time and costs to attempt to investigate this matter and possibly lead evidence on an issue which is arguably collateral to the principal issues in the lawsuit. It may cause uncertainty in the mind of the plaintiff after so many years have passed and may influence a decision to settle or to try the case.

[16] There are a number of questions which should have been posed to Bayshore in support of this motion. Some, but not all of them, are as follow:

a. Who was the case worker (s) who left the file at the plaintiff’s residence?

b. Are they still employed by Bayshore? If not, are their whereabouts known?

c. Has anyone from Bayshore spoken directly to the caseworker who allegedly left the clinical file at the plaintiff’s residence. If so, what will be the evidence of that caseworker?

d. What efforts were made by who, when and how often to obtain the file from the Plaintiff’s residence?

e. What documentation is in the file supporting Bayshore’s claims it tried to obtain its file from the plaintiff?

f. Was a contemporaneous note or memo put in the Bayshore file at the time the plaintiff allegedly refused to return the file? What was the source of that information? Who wrote it? When was it written? Is the author still employed at Bayshore or available to swear an affidavit?

g. What was the policy of Bayshore about keeping a copy of a client’s file either in paper or digital form? Was that policy followed in this case? If not, why?

[17] I fully recognize that in the very great majority of cases, amendments to pleadings shall be granted. I have serious concern that absent at least a basic evidentiary basis, the prejudice to the plaintiff so far exceeds any prejudice to the defendant that the amendment should not be granted. The defendant was aware of Bayshore’s position from May, 2018 and waited over two years to bring this motion. The availability of a pertinent witness from Bayshore could have been lost in the interim. To grant this amendment would allow the defendant at trial to suggest dishonest conduct or bring into question the credibility of the plaintiff with no other evidence than confronting the plaintiff with the letter from Bayshore. The plaintiff, if the amendment is granted, would then be required to spend time and money to attempt to obtain the relevant information from Bayshore when that ought to have been done by the defendant in support of this motion.

[18] In the circumstances, the motion to amend is adjourned, but without prejudice to the right of the defendant to bring the motion back on based on proper evidence, which I suggest should be the sworn affidavit of a Bayshore employee. The matter can be decided by another judge if and when the motion is brought back before the court. The defendant is granted leave to bring the motion back for argument provided proper affidavit evidence is led and the plaintiff is given an opportunity to cross-examine on the affidavit if he so desires. If the motion is not made returnable within 90 days of the date this ruling is released, the motion shall be deemed to be dismissed.

[19] I assess the costs of today at $3,500 plus HST payable in the cause on the motion if it is returned to be argued or payable in the cause if the motion is not returned and the matter goes to trial.

Turnbull, J. (signed electronically)

Turnbull, J.

Date: April 22, 2021.

[^1]: Exhibit D to the affidavit of Tracey McVittie.