COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and
DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
Margaret Waddell, Tina Q. Yang, Kate Mazzucco, Josh Nisker, Paul Miller and Valérie Lord for the Plaintiffs
Nina Bombier, Paul-Erik Veel and Brianne Westland for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: April 12, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is a preliminary motion at the outset of a certification motion.
[2] The Defendants seek:
a. an Order striking evidence in the affidavit of S.S. dated August 28, 2020;
b. an Order striking evidence in the affidavits of Paul Miller that provides details of an investigation of the College of Physicians and Surgeons of Ontario contrary to the Regulated Health Professions Act;[^1] and
c. an Order striking evidence in the affidavit of J.L. dated August 27, 2020.
[3] The case at bar is a breach of privacy action pursuant to the Class Proceedings Act, 1992.[^2] The Plaintiffs, A.C, G.C., and J.C. sue Martin Jugenburg, who is a plastic surgeon, and his corporation, Dr. Martin Jugenburg Medicine Professional Corporation. Dr. Jugenburg carries on an entrepreneurial medical practice through his professional corporation that operates a clinic known as the Toronto Cosmetic Surgery Institute.
[4] In support of their motion for certification, the Plaintiffs delivered, along with other evidence:
a. The affidavits of S.S. dated July 14, 2020 and August 28, 2020. S.S. is a putative Class Member who received surgery at the clinic.
b. The affidavits of Paul Miller dated March 12, 2020, August 28, 2020, October 1, 2020, March 25, 2021, March 26, 2021. Mr. Miller is a partner of the law firm Howie, Sacks & Henry LLP, which is part of the counsel group seeking to be Class Counsel. Mr. Miller was cross-examined.
c. The affidavit of J.L. dated August 27, 2020. J.L. is a putative Class Member and a former employee of the Defendants. J.L. was cross-examined.
[5] For the reasons that follow, I grant the Defendants’ motion to strike save with respect to Mr. Miller’s affidavit dated October 1, 2020, where Mr. Miller refers to Dr. Jugenburg’s College disciplinary proceedings. He says that the matter was a result of “[a]llegations of non-consensual disclosure of patient images”. The Defendants have withdrawn their request that this reference be struck from Mr. Miller’s affidavit.
B. Law
1. Evidence for a Motion for Certification
[6] A motion for certification has a peculiar onus or standard of proof. On a motion for certification, the proposed representative plaintiff must come forward with sufficient evidence to support certification, and the opposing party may respond with evidence of its own to challenge certification.[^3] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[^4]
[7] The some basis in fact standard does not require evidence on a balance of probabilities. It does not require that the court resolve conflicting facts and evidence at the certification stage, but the standard rather reflects the situation that at the certification stage, the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight. The certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[^5]
[8] A certification motion is an interlocutory motion, and pursuant to rule 39.01 (4) of the Rules of Civil Procedure[^6] hearsay evidence is admissible on a motion. Rule 39.01 (4) states:
39.01 (4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[9] Rule 39.01 (4) provides a limited exception to the general rule that hearsay evidence is not admissible and hearsay about contentious matters about which there is serious dispute between the parties, or hearsay evidence submitted to avoid cross-examination on a material issue, should be struck from the offending affidavit or disregarded by the court as inadmissible evidence.[^7]
[10] While a certification motion has a unique standard of proof, it remains a normal interlocutory motion with respect to the admissibility of evidence, including hearsay evidence.[^8]
[11] While the evidentiary burden on a certification motion is the low, some basis in fact test, that burden must be discharged by admissible evidence; the evidence tendered on a certification motion must meet the usual criteria for admissibility.[^9] On a certification motion, the court has an important gate-keeping role with respect to the admissibility of evidence, and it is not appropriate or fair to shirk that responsibility by saying “let it in, and the objections will go to weight rather than admissibility.”[^10]
[12] Evidence may be excluded if its probative value is overborne by its prejudicial effect, including the tendencies: to yield irrational conclusions; to confuse, mislead, or distract the trier of fact's attention from the main issues; to unduly occupy the trier of fact's time; and to surprise the opponent unfairly and to impair a fair hearing.[^11]
[13] Rule 25.11 of the Rules of Civil Procedure provides a means to strike evidence from an affidavit proffered for a motion. Rule 25.11 states:
25.11. The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of process of the court.
2. Regulated Health Professions Act
[14] Section 36 of the Regulated Health Professions Act, 1991 protects the confidentiality of disciplinary proceedings against health professionals and has been interpreted to prohibit any evidence related to a proceeding by a regulated health college, including the College of Physicians and Surgeons of Ontario, being admitted in civil proceedings. Section 36 states:
Confidentiality
36 (1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act and every member of a Council or committee of a College shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except, [enumerated list of exceptions] […]
Not compellable
(2) No person or member described in subsection (1) shall be compelled to give testimony in a civil proceeding with regard to matters that come to his or her knowledge in the course of his or her duties.
Evidence in civil proceedings
(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
[15] Section 36 (3) has been strictly interpreted and applied to exclude detailed references in affidavits of documents, affidavits, and pleadings to proceedings against health professionals, including inspections, assessments, complaints, investigations, and hearings.[^12] The only reference that is permissible is the fact that there was a complaint and an investigation without disclosing the subject matter of the complaint and investigation.[^13]
C. The Evidence of S.S.
[16] S.S. was a patient at the Clinic in 2013 and again in 2017. S.S. deposes that the document entitled “Allergan Product Claim Form and Confident Plus Warranty Release” dated April 26, 2017, which is part of S.S.’s medical record, is a forged document.
[17] The Plaintiffs conditionally conceded that S.S.’s impugned evidence should be struck. This concession was conditional on the success of the Plaintiffs’ motion to have S.S.’s medical record struck from the evidentiary record for the certification motion.
[18] As it happens, in another motion, I have struck S.S.’s medical record, and I therefore accept the Plaintiffs’ consent or absence of opposition to having S.S.’s impugned evidence struck.
[19] That said, I would have struck out S.S.’s impugned evidence in any event. It is not material or relevant to the certification motion.
D. The Evidence of Paul Miller
[20] In his affidavit dated March 12, 2020, Mr. Miller states that the College of Physicians and Surgeons of Ontario investigated Dr. Jugenburg and there was a disciplinary hearing. He describes the investigation and the allegations of professional misconduct. He includes a summary of the allegations taken from the College’s website. He attaches the College’s Notice of Hearing to his affidavit.
[21] In his affidavit dated March 12, 2020, Mr. Miller reports that Dr. Jugenburg made an undertaking to the College. Mr. Miller includes an excerpt from the undertaking from the College’s website. He attaches a copy of the undertaking as an exhibit to his affidavit.
[22] In his affidavit dated October 1, 2020, Mr. Miller refers to Dr. Jugenburg’s College disciplinary proceedings. He says that the matter was a result of “[a]llegations of non-consensual disclosure of patient images”. As noted above, the Defendants have withdrawn their objection to this evidence.
[23] With respect to the balance of Mr. Miller’s affidavit, the Plaintiffs do not contest that there should be an Order striking the evidence in the affidavits of Paul Miller that provides details of an investigation of the College of Physicians and Surgeons of Ontario contrary to the Regulated Health Professions Act.
[24] I agree that the impugned paragraphs and exhibits should be struck for the purposes of the certification motion.
E. The Evidence of J.L.
[25] J.L. is a former employee of the Defendants, who was employed at the time of the College’s investigation and was also a patient at the clinic for a breast augmentation and revision and a non-surgical abdominal procedure.
[26] J.L. deposes that one of J.L.’s colleagues at the clinic told J.L. that Dr. Jugenburg showed the colleague video of a patient falling that had been recorded on the Clinic’s security cameras that Dr. Jugenburg considered humorous.
[27] J.L. deposes that J.L. met with Dr. Jugenburg’s lawyer in preparation for being interviewed by the College which was investigating Dr. Jugenburg. J.L. deposes that Dr. Jugenburg instructed J.L. and a colleague not to volunteer any information to the investigators beyond the scope of the question that they were posed.
[28] In my opinion, J.L.’s evidence should be struck on a variety of grounds, the foremost of which is that J.L.’s impugned evidence is irrelevant to the certification motion. For that reason alone, the impugned evidence should be struck.
[29] Further, the impugned evidence, if it has any probative value to the issues to be decided on the certification motion, it should be excluded because its probative value is overborne by its prejudicial effect, including the tendencies: to yield irrational conclusions; to confuse, mislead, or distract the trier of fact's attention from the main issues; to unduly occupy the trier of fact's time; and to surprise the opponent unfairly and to impair a fair hearing.
[30] Moreover, portions of J.L.’s impugned evidence also should be struck insofar as the evidence refers to the proceedings before the College of Physicians and Surgeons of Ontario.
[31] Further still, portions of J.L.’s impugned evidence should be struck as hearsay and as hearsay about matters that are not relevant to the certification motion.
[32] With these multitude of reasons to strike the impugned portions of J.L.’s evidence, I need not comment about whether the evidence should be struck because of solicitor and client or litigation privilege.
F. Conclusion
[33] For the above reasons, I grant the Defendants’ motion with costs to the Defendants in any event of the certification motion.
Perell, J.
Date of Judgment: April 12, 2021.
Released: April 27, 2021.
COURT FILE NO.: CV-19-00631903-00CP
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C.
Plaintiffs
- and -
MARTIN JUGENBURG and
DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION
Defendants
REASONS FOR DECISION
PERELL J.
Released: April 27, 2021.
[^1]: S.O. 1991, c 18.
[^2]: S.O. 1992, c. 6.
[^3]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 22.
[^4]: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 at paras. 99-105; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25; Taub v. Manufacturers Life Insurance Co., (1998) 1998 CanLII 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 CanLII 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.).
[^5]: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 at para. 102.
[^6]: R.R.O. 1990, Reg. 194.
[^7]: Nacierio v. McLarty, 2020 ONSC 6803 at paras. 43-46; Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4 at paras. 27-40; Belsito v. 2220742 Ontario Ltd., 2013 ONSC 7207 at para. 17; Aker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897 at para. 10.
[^8]: Harris v. Bayerische Motoren Werke Aktiengesellschaft, 2019 ONSC 5967; Pollack v Advanced Medical Optics, Inc, 2011 ONSC 850 at para 40.
[^9]: Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744 (S.C.J.); Williams v. Canon Canada Inc., 2011 ONSC 6571, aff’d 2012 ONSC 3692 (Div. Ct.); Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63 at para.13.
[^10]: Williams v. Canon Canada Inc., 2011 ONSC 6571 at para. 68, aff’d 2012 ONSC 3692 (Div. Ct.).
[^11]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525.
[^12]: College of Physicians and Surgeons v. S.J.O., 2020 ONSC 1047; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461; Lipsitz v. Ontario, 2011 ONCA 466, leave to appeal to S.C.C. refd. [2011] S.C.C.A 407; Middleton v. Sun Media Corp. (2006) 2006 CanLII 84666 (ON SCDC), 268 D.L.R. (4th) 347 (Ont. Div. Ct.); F.(M.) v. Dr. Sutherland 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522 (C.A.)
[^13]: Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461.