BARRIE COURT FILE NO.: CV-18-983

DATE: 20210429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LARISSA ABBOTT

Plaintiff

– and –

JACEK KOLENDA and JACEK KOLENDA MEDICINE PROFESSIONAL CORPORATION

Defendant

W.J. Leslie, for the Plaintiff

K. Kalogiros, for the Defendant

HEARD: January 29, 2021

REASONS ON MOTION TO AMEND STATEMENT OF CLAIM

CASULLO J.

Overview

[1] On June 22, 2018, the plaintiff commenced an action against the defendants, alleging Dr. Kolenda fell below the standard of care of a reasonably competent otolaryngologist when he performed a surgery on her on June 24, 2016.

[2] By way of this motion, the plaintiff seeks leave to amend a number of paragraphs, as set out in her amended statement of claim.

[3] The defendants take no issue with the proposed amendments to paragraphs 1, 10, and 15-17. The defendants oppose the balance of the proposed amendments [paragraphs 9, 14, and 22(a)-(e), (g), (j), (k), and (n)-(q)], on the basis that the plaintiff is attempting to add statute-barred causes of action, as well as withdraw an admission, all of which prejudice Dr. Kolenda.

Background

[4] The plaintiff was referred to Dr. Kolenda to address pain in her head, face and sinuses.

[5] On October 5, 2015, Dr. Kolenda performed an endoscopic sinus surgery (the “Sinus Surgery”). At a follow up appointment on April 28, 2016, Dr. Kolenda determined the plaintiff had recurrent frontal sinusitis and recommended the surgery be repeated.

[6] On June 24, 2016, Dr. Kolenda performed the revision endoscopic sinus surgery (the “Revision Surgery”). Owing to complications arising therefrom, the plaintiff underwent three additional procedures on June 24, 2016:

a) an endoscopic exploration of the nasal cavity performed by Dr. Kolenda (the “Endoscopic Exploration”);

b) a lateral canthal release performed by a different ophthalmologist; and

c) a decompression of the orbital wall performed by Dr. Kolenda (the “Decompression”).

[7] It appears the surgeries did not alleviate the plaintiff’s medical concerns. The vision in her left eye became so compromised her eyeball was removed in 2019.

[8] Examinations for discovery of the defendants took place on May 25, 2020, following which the plaintiff commenced this motion. The plaintiff submits that as a result of the discovery evidence, and to make sure all of the issues are fairly before the court, the proposed amendments to the pleading are necessary.

[9] For example, the plaintiff submits that because her family physician’s records reflect Dr. Kolenda’s surgical care for the sinus surgery on October 2, 2015 at St. Joseph’s Heath Centre, and also sinus revision surgery at the same hospital on June 24, 2016, the amendments are necessary “to focus on the care provided by the Defendant during the revision surgical events on June 24, 2016."

[10] The plaintiff also submits that her hospital records were confusing until Dr. Kolenda clarified, at his discovery, that the surgical note concerning nasal polyps was inadvertently included in the plaintiff’s chart; the note actually reflected surgery Dr. Kolenda performed on an entirely different patient that same day. The plaintiff submits that in owing to this error, the statement of claim should be amended to “clearly reflect that the Defendant provided surgical care to the plaintiff on three separate events on June 24, 2016.”

[11] The plaintiff does not suggest that she discovered new facts during Dr. Kolenda’s discovery.

[12] The plaintiff has not yet been examined for discovery.

Procedural Issues

[13] Pursuant to r. 26.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, all amendments to a pleading must be underlined. This is to ensure that the proposed amendments are distinguishable from the original. Paragraphs 1-14 comply with this requirement. Because paragraph 15 is a new paragraph, all subsequent paragraphs should have been underlined. This did not occur.

[14] Paragraph 16 expands upon what was the previous paragraph 15. Paragraph 17 is also a new paragraph. Paragraph 22 (previously paragraph 20), contains the revised allegations of negligence, all of which are appropriately underlined.

[15] Confusion arises when trying to distinguish between the surgeries in the two pleadings. In the original pleading, four surgeries were described, although not defined, as follows:

• the initial surgery on October 2, 2015 – described as the first surgery
• the first surgery on June 24, 2016 – described as the second surgery
• the second surgery on June 24, 2016 – described as a visualization
• the third surgery on June 24, 2016 – described as a decompression

[16] The surgery performed by the ophthalmologist (which happened between the second and third surgeries conducted by Dr. Kolenda on June 24, 2016) was not included in the original pleading.

[17] In the proposed amended pleading, the surgeries are described as follows:

• the initial surgery on October 2, 2015 – described as the first surgery
• the first surgery on June 24, 2016 – although still referenced as the second surgery in paragraph 9, it is described as the revision surgery in paragraph 10
• the second surgery on June 24, 2016 – now defined as the second surgery
• the third surgery on June 24, 2016 – performed by the ophthalmic surgeon
• the fourth surgery on June 24, 2016 – now described as the third surgery

[18] In light of this confusion, I have adopted the definitions prescribed by the defendants, as set out in paragraph 6 above.

[19] I point this out not to unduly criticize the drafter, but because the surgeries themselves are inextricably bound with the plaintiff’s request for leave to amend.

Substantive Issues

[20] There are two substantive issues before the court on this motion. The first is whether the proposed amendments plead new causes of action after the expiry of the limitation period. The second is whether the plaintiff should be permitted to withdraw an admission she made in the statement of claim.

[21] Before exploring the substantive issues, it bears noting that the principle of discovery, often a key consideration in motions to amend, is not engaged here. The plaintiff all but conceded that she is aware of the material facts necessary to advance claims in respect of the Endoscopic Exploration and the Decompression no later than December 6, 2016, when she was provided with a copy of Dr. Kolenda’s clinical notes and records. There is no dispute that the surgeries at issue are clearly and separately documented.

Proposed Amendments

[22] Pursuant to r. 26.01,

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[23] Rule 26.01 is mandatory, and relatively straightforward in its application when the proposed amendments seek to add information, clarify inconsistencies, or correct errors in the original claim. If, however, the proposed amendments seek to add new causes of action, the onus is on the moving party to demonstrate that the limitation period has not expired – in other words, that the new claims were not discovered, or capable of being discovered, earlier, even with reasonable diligence.

[24] Any residual discretion the court had to permit amendments adding a new cause of action beyond the limitation period has been decisively laid to rest. In Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, the Court of Appeal held that the doctrine of “special circumstances,” which had previously permitted a party to add a cause of action after the expiry of a limitation period, no longer applied following the enactment of the Limitations Act, 2002, S.O., 2002, c. 24, Sched. B.

[25] In the case at bar, the two-year limitation period began to run on either June 24, 2016 (the date of the surgeries), or December 9, 2016 (the date the plaintiff received Dr. Kolenda’s clinical notes and records). Because discovery is not a consideration, the plaintiff can only succeed if the proposed amendments do not add new claims.

[26] Paragraph 20 (a)–(m) of the original pleading sets out the allegations of negligence. The following excerpts demonstrate that the target surgery was the Revision Surgery:[^1]

(a) The Defendant failed in his duty to give sufficient and accurate information to the Plaintiff in order to allow her to give informed consent to proceed with the surgery that was performed on June 24, 2016 (hereinafter referred to as “the second surgery”);

(b) The Defendant acted negligently in proceeding with the second surgery given that the first surgery was not successful;

(c) The Defendant failed to do proper pre-surgery work-up of the Plaintiff prior to the second surgery;

(d) The Defendant acted negligently in failing to appropriately document the risks and benefits of the second surgery;

[27] The proposed amendments to paragraph 20 are set out in paragraph 22 (a)-(q) of the amended pleading. The sub-paragraphs excerpted above now read as follows:

(a) The Defendant failed in his duty to give sufficient and accurate information to the Plaintiff in order to allow her to give informed consent to proceed with the surgeries that he was performed on June 24, 2016 (hereinafter referred to as the “second surgery”);

(b) The Defendant acted negligently in proceeding with the second and third surgeries given that the first surgery was not successful due to the Defendant’s negligence;

(c) The Defendant failed to do proper pre-surgery work-up of the Plaintiff prior to the second and third surgeries;

(d) The Defendant acted negligently in failing to appropriately document the risks and benefits of the second all three surgeries;

[28] The following proposed sub-paragraphs are new to the action:

(n) The Defendant failed to obtain proper consent from the Plaintiff before proceeding with the second and third surgeries that he performed on June 24, 2016

(o) The Defendant lacked the necessary training, skill and expertise to perform any of the three surgeries that he performed on June 24, 2016

(p) The Defendant should have referred the Plaintiff to another otolaryngologist that had the proper expertise to perform the surgeries competently

(q) The Defendant failed to act with any sense of urgency or emergency when performing the third surgery

[29] When determining whether the proposed amendments constitute new causes of action, the court must look to whether substantially all of the material facts giving rise to the new causes of action have been previously pleaded, and whether the new facts are being added to support the new causes of action. If the facts as originally pleaded could not support the new allegations, or the original pleading could not have reasonably put the defendant on notice of the new allegations, then the proposed amendments are new causes of action: see Goodship v. Hergott, 2009 CanLII 43647, at para. 12.

[30] As the Court of Appeal held in Burns, when advancing a claim for negligence, the plaintiff must “set out the material facts specific to each defendant that support a claim against the defendant that it owed a duty of care to the plaintiff, and by reason of specified conduct, breached that duty and caused injury or harm to the plaintiff”: Burns v. RBC Life Insurance Company, 2020 ONCA 347, at para. 19.

[31] In my view, the proposed amendments are not simply clarifications, or corrections to existing facts. In a similar vein, they cannot be described as pleading an alterative claim for relief arising from facts previously pleaded, or drawing a different legal conclusion from the same set of facts: see, generally, Thompson v. Zeldin, [2008] O.J. No. 3591 (S.C.J.).

[32] The hurdle the plaintiff cannot overcome is that she was fully aware she underwent three additional surgeries on June 24, 2016 following the Revision Surgery: the Endoscopic Exploration, the lateral canthal release, and the Decompression. Despite its confusing nomenclature, the statement of claim does establish that in addition to the Revision Surgery, Dr. Kolenda performed two other procedures on June 24, 2016.

[33] In my view, the proposed amendments with which the defendants take issue add new tort claims of negligence and informed consent, in respect of both the Endoscopic Exploration and the Decompression. The facts as pleaded in the original statement of claim could not support these new claims. Further, the original statement of claim could not have reasonably put Dr. Kolenda on notice of the new claims.

[34] It is abundantly clear on a review of the original pleading that the only causes of action advanced are in respect of the Revision Surgery. The proposed amendments are not clarifications. They seek to widen the net and claim against Dr. Kolenda for all three surgeries he performed on June 24, 2016, not solely the first one.

[35] No amendment is necessary to clarify that Dr. Kolenda provided surgical care to the plaintiff three times on June 24, 2016. Likewise, no amendment is necessary to clear up the mistaken entry in the hospital chart. The nasal polyps procedure was neither pleaded, nor referenced, in the original pleading.

[36] For good or for bad, the plaintiff must live with the litigation choices made by her lawyer. A strategic decision was made not to advance claims in negligence against Dr. Kolenda for the second and third surgeries he performed on June 24, 2016, or against the ophthalmologist who performed the lateral canthal release, for that matter.

[37] The facts pleaded in the proposed amendments were within the knowledge of the plaintiff from the outset. The new causes of action are statute-barred, full stop. Hence, any argument that the amendments would not prejudice the defendants need not be considered in respect of this first issue.

Withdrawal of Admission

[38] Rule 51.05 provides that an admission in a pleading may be withdrawn on consent or with leave of the court. In The Law of Evidence, Sopinka, Lederman and Bryant have the following to say about admissions:

A formal admission in civil proceedings is a concession made by a party to the proceedings that a certain fact or issue is not in dispute. Formal admissions made for the purpose of dispensing with proof at trial are conclusive as to the matters admitted. As to these matters, other evidence is precluded as being irrelevant but, if such evidence is adduced, the court is bound to act on the admission even if the evidence contradicts it.

The Law of Evidence in Canada, 2^nd ed. (Toronto: Butterworths, 1999)

[39] Admissions are not cast in stone, and the ability to withdraw them is determined on a sliding scale. Formal admissions of fact can only be withdrawn on consent or with leave. Admissions relating to a question of law can be withdrawn at any time, and admissions of mixed fact and law fall somewhere between the two.

[40] As Gray J. held in Kostruba & Sons Inc. v. Pervez, 2011 ONSC 4894, at para. 41:

There can be little dispute that an admission contained in a pleading is of a different order than other allegations in a pleading. An admission is something on which the other party is entitled to rely. An admission means the other party is not required to prepare its case on a particular issue, or preserve evidence on that issue. The other party will structure its case, in part, on the assumption that an admission can be relied upon.

[41] Caselaw has established that a party seeking to withdraw an admission in his or her pleadings must satisfy the court of three things:

1. The proposed amendment raises a triable issue;
2. There is a reasonable explanation for the change in position; and
3. The withdrawal would not result in any prejudice that cannot be compensated for in costs.

Antipas v. Coroneos, 1988 CanLII 10348 (ON SC), 1988 CarswellOnt 358 (H.C.), at para. 14

[42] Complicating the analysis is the fact that until the request to withdraw the admission, the parties were ad idem that Dr. Kolenda and the plaintiff had discussed the risks of the Revision Surgery in April 2016. Dr. Kolenda deposed to this at his discovery. The plaintiff now wants to assert that the risk discussion happened in October 2015, prior to the Sinus Surgery.

[43] A review of the impugned paragraph would be of assistance. At paragraph 9 of the original pleading, the plaintiff admitted that the risk discussion took place prior to the Revision Surgery:

The Plaintiff was referred back to the Defendant to discuss her ongoing difficulties. The Defendant suggested to the Plaintiff that the surgery be performed again. The Defendant discussed the risks of the procedure with the Plaintiff, one of which was blindness. The Plaintiff questioned the Defendant about the risks of blindness however the Defendant was dismissive of the Plaintiff’s concerns and indicated that the risk of blindness was very low and that “it would never happen under his watch”. The Plaintiff relied on the Defendant’s confidence and reassurance of the risk of blindness being low that she consented to proceed with the second surgery.

[44] This is to be contrasted with the proposed amendment to paragraph 9:

The Plaintiff was referred back to the Defendant to discuss her ongoing difficulties. The Defendant suggested to the Plaintiff that the surgery be performed again. The Defendant discussed the risks of the October 2, 2015 procedure with the Plaintiff, one of which was blindness. The Plaintiff questioned the Defendant about the risk of blindness however the Defendant was dismissive of the

Plaintiff’s concerns and indicated that the risk of blindness was very low and that “it would never happen under his watch”. The Plaintiff relied on the Defendant’s confidence and reassurance of the risk of blindness being low that she consented to proceed with the second surgery. However, the Defendant never discussed the risks of revision surgery with the Plaintiff.

Triable Issue

[45] For the limited purpose of this motion, I am satisfied that there may be a triable issue with respect to consent to the Revision Surgery. Satisfying this test is a low threshold: Suncor Energy Inc. v. B Osmond Scrap Metals Ltd., 2014 ONSC 5404, at para. 35. However, the moving party must go on to satisfy the remaining parts of the test.

Explanation for Change in Position

[46] The party withdrawing an admission is required to advance a reasonable explanation for withdrawing the admission, considering the “circumstances that led to the withdrawal”: Metro Ontario Real Estate Ltd. v. Hillmond Investments Ltd., 2017 ONSC 3518, at para. 16.

[47] The plaintiff was an active participant in the events leading up to this action. In light of her admission that the risk discussion with Dr. Kolenda happened before the Revision Surgery, a clear and compelling explanation for the change in position should be forthcoming.

[48] However, the plaintiff has proffered no explanation for the change in her position. The change does not appear to be based on newly obtained information or facts – the consult note has been in the plaintiff’s possession since late 2016, prior to the original claim being drafted. Moreover, there is no affidavit from the plaintiff suggesting that the admission was a drafting error, or was based on erroneous instructions to counsel.

[49] The best I can discern, from oral submissions, is that Dr. Kolenda’s consultation note of July 25, 2015 (prior to the Sinus Surgery), contains a notation that blindness was discussed, whereas Dr. Kolenda’s consultation note of April 28, 2016 (prior to the Revision Surgery) makes no mention of any such discussion.

[50] The transcript of Dr. Kolenda’s discovery shows this aspect of consent was hotly contested, with Dr. Kolenda’s objecting to the question of whether the 2016 note included a reference to inherent risk. However, Dr. Kolenda’s refusal to answer the question cannot ground a basis for withdrawing the admission.

Prejudice

[51] The plaintiff submits the defendants would suffer no prejudice if the admission were withdrawn because the plaintiff has not yet been examined.

[52] Until receiving the plaintiff’s motion record, the defendants had no reason to doubt that the plaintiff had a risk discussion with Dr. Kolenda before the Revision Surgery. I accept the defendants’ submission that the admission was a material fact admission, which in turn informed their defence on the issue of informed consent.

[53] I am not satisfied, however, that the defendants would suffer non-compensable prejudice if the withdrawal were permitted. The matter remains in the early stages, and has not yet been set down for trial. Defences to the new plea of non-informed consent may still be raised. Dr. Kolenda can reattend at discoveries, and any costs thrown away can be compensated for by an award of costs.

[54] Antipas sets out a three-part test. A failure on the moving party to satisfy all three will result in the motion being dismissed. The plaintiff has demonstrated there is a serious issue to be tried, and that the withdrawal of the admission would not result in any non-compensable prejudice to the defendants. However, the plaintiff has failed to provide a reasonable explanation for her change in position, and thus has not met her burden.

Conclusion

[55] The plaintiff’s motion for leave to amend paragraphs 1, 10, and 15-17 is granted.

[56] The plaintiff’s motion for leave to amend paragraphs 9, 14, and 22(a)-(e), (g), (j), (k), and (n)-(q) is dismissed.

[57] The plaintiff’s motion for leave to withdraw an admission is dismissed.

Costs

[58] Costs of the motion are reserved to the trial judge.

CASULLO J.

Released: April 29, 2021

[^1]: Recall, the references in the original pleading to the second surgery depict the Revision Surgery. References to the first surgery signify the Sinus Surgery.