COURT FILE NO.: CV-15-0871
DATE: 20210511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA ZIMMERMAN and MARK ZIMMERMAN
Plaintiffs
– and –
DR. BENJAMIN MCNAULL, DR. LEA BABCOCK, DR WILLIAM TILLMANN, DR. MARK SWANSON, DR. JULIE GALLAGHER, DR. MICHAEL ODLOZINSKI, DR. WENDY MCCOMB and SOLDIERS’ MEMORIAL HOSPITAL
Defendants
Anthony S. Windwar for the Plaintiffs
Matthew P. Salmon and Derek Knoke, counsel for the proposed Defendants/Moving Parties, Dr. Alastair Legge and Dr. D’Arcy Little
HEARD: March 26, 2021 (by video-conference)
RULING ON PRIVILEGE MOTION
boswell j.
I. OVERVIEW
THE MOTION
[1] The plaintiffs want to add two additional physician defendants to this medical malpractice action. They have initiated a motion for leave to do so (the “Leave Motion”). The proposed defendants object. They say the claim against them is out of time; that it is statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[2] The plaintiffs’ position on the Leave Motion is that they only recently discovered their potential claim against the proposed defendants. They say that the claim was discovered when their lawyer received expert advice about it in June 2018. They contend that they initiated their motion to add the proposed defendants within the applicable limitation period.
[3] The proposed defendants do not accept the plaintiffs’ position. They contend that the plaintiffs discovered their potential claim against them earlier than June 2018, or alternatively, that they reasonably ought to have discovered their claim prior to then.
[4] The motion now before the court is interlocutory to the Leave Motion. It is a dispute about disclosure. The proposed defendants want to investigate the plaintiffs’ assertion about when they discovered (or ought to have discovered) the potential claim against them. Amongst other things they want the names and contact information of the experts who advised the plaintiffs’ lawyer that there was a cause of action against the moving parties. And they want access to all of the communications passing between the experts and the plaintiffs’ counsel.
[5] The plaintiffs resist. They argue that production of the communications and other documentation sought by the proposed defendants ought not to be compelled because it is irrelevant or shielded by litigation privilege or both.
[6] I will take a moment to place the dispute into context, after which I will outline the statutory framework that drives the limitations issue. I will then review the evidentiary record with respect to the Leave Motion, as it is presently constituted. That review will lead into an overview of the documents requested by the proposed defendants and the plaintiffs’ response to their requests. Finally, I will set out the parties’ positions with respect to this motion and my analysis of those positions.
CONTEXT
The Aneurysm
[7] An aneurysm is a weakening in an arterial wall, typically manifesting as a bulge. Mrs. Zimmerman had one in her brain. It burst, probably in the middle of the summer of 2013. She attended at her family physician’s office as well as the emergency department of her local hospital on a number of occasions in late July and early August 2013 complaining of severe headaches and other symptoms.
[8] Mrs. Zimmerman received varying diagnoses including musculoskeletal neck pain, vertigo and migraine headaches. She had a CT scan at the hospital on July 29, 2013 which was reviewed by a radiologist and found to be unremarkable. A second CT scan was conducted on August 3, 2015 and it revealed a subarachnoid hemorrhage, due to the burst aneurysm.
[9] Despite undergoing surgery on August 4, 2013, Mrs. Zimmerman continues to experience cognitive and physical disabilities including difficulty with her short-term memory, confusion, headaches, fatigue, depression and gait instability.
The Action
[10] As I noted, this is a medical malpractice action. Each of the named defendants played a role in assessing or treating Mrs. Zimmerman in the summer of 2013. She alleges that each defendant failed to meet the standard of care required in the circumstances and that their negligence caused her injuries. Substantial damages are sought: $4 million for Mrs. Zimmerman and an additional $1 million for Mr. Zimmerman.
[11] The claim was commenced by Notice of Action issued July 24, 2015. A Statement of Claim followed on August 21, 2015. The action has progressed through discoveries, which were conducted in November 2017 and February 2018.
The Proposed Defendants
[12] The focus of the lawsuit has, to date, been on medical care Mrs. Zimmerman received for complaints of severe headaches in the summer of 2013. But she had experienced severe headaches before. She attended at Soldier’s Memorial Hospital (“SMH”) in late 2009 and early 2010 with arguably similar symptoms to those presenting in mid-2013. She underwent a CT angiogram in December 2009 and an MRI in March 2010 which were both determined to be unremarkable.
[13] Now, more than a decade after the fact, Mrs. Zimmerman has concluded that the imaging taken in 2009/10 was not unremarkable after all. Indeed, it is her position – informed by expert advice – that her aneurysm was apparent on the 2009 CT angiogram and should have been identified by the radiologist who reviewed it (Dr. Legge) as well as the radiologist who reviewed the 2010 MRI (Dr. Little). Though the aneurysm may not have been apparent on the MRI, Dr. Little, it is suggested, should have compared the MRI to the CT angiogram and, by that means, identified it.
II. THE LIMITATIONS ISSUE
THE STATUTORY FRAMEWORK
[14] Civil actions in Ontario are governed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Rules are very permissive when it comes to amending claims, even when the amendments involve the addition of a new party. Provided the plaintiffs can demonstrate a legally tenable claim against the proposed defendants, there is a strong likelihood that their motion to amend will succeed.
[15] In this case, whether the plaintiffs have a legally tenable claim against the proposed defendants depends on whether their claim was commenced within the applicable limitation period. The “clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing action”. See Arcari v. Dawson, 2016 ONCA 715 at para. 7, leave to appeal to SCC refused, [2016] S.C.C.A. No. 522.
[16] Most civil claims commenced in this province are subject to a two-year limitation period. When exactly the clock starts ticking on that two-year period can be contentious.
[17] The general limitation period is set out in ss. 4 and 5 of the Limitations Act, 2002, which provide as follows:
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[18] The judge hearing the Leave Motion will have to make a number of factual determinations in relation to the application of s. 5(1), including the following:
(i) the date the plaintiff is presumed to know the matters listed in s. 5(1)(a)(i)-(iv) -- namely, the day on which the act or omission on which the claim is based occurred;
(ii) the date of actual knowledge under s. 5(1)(a), in the event the evidence proves the contrary of the presumptive date;
(iii) the s. 5(1)(b) objective knowledge date, based on the reasonable person with similar abilities and circumstances analysis; and
(iv) finally, which of the actual knowledge and objective knowledge dates is earlier, for that will be the day on which the plaintiff discovered the claim for purposes of applying the basic limitation period of two years.
See Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725 at para. 35.
THE EVIDENTIARY RECORD (LEAVE MOTION)
[19] The plaintiffs will bear an evidentiary burden to establish two things on the Leave Motion. First, when they acquired subjective knowledge of their claim against the proposed defendants. Second, that the date they acquired their subjective knowledge was objectively reasonable.
[20] In Morrison v. Barzo, 2018 ONCA 979, at paras. 31 and 32, the Court of Appeal described the plaintiffs’ evidentiary burden as follows:
The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court’s finding as to when the plaintiff subjectively knew he had a claim against the defendants…To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2)…
Second, the plaintiff must offer a “reasonable explanation on proper evidence” as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff’s explanation should be given a “generous reading”, and considered in the context of the claim… (Internal citations omitted).
[21] The plaintiffs insist that they did not discover their claim against Drs. Legge and Little until June 2018.[^1] They further insist that a reasonable person with similar abilities to their own, and in similar circumstances to theirs, would not have discovered the claim against the proposed defendants any sooner than they did.
[22] To address the factors identified in Nasr and to meet their evidentiary burden on the Leave Motion, the plaintiffs filed the affidavit of their counsel, Ms. Brock, sworn December 3, 2020.
[23] Ms. Brock deposed that she was retained by the plaintiffs in late September 2013. She described the steps she initially took to investigate the plaintiffs’ claim and how she came to identify the parties involved in Mrs. Zimmerman’s care in 2013. Those parties, plus SMH, were named as defendants in the action as initially constituted.
[24] The proposed defendants are radiologists. They were not involved in Mrs. Zimmerman’s care in 2013. Their interactions with Mrs. Zimmerman were limited to the review and interpretation of the imaging done on her head in 2009/10. The plaintiffs assert that each of them breached the standard of care applicable to those reviews.
[25] Though I have a limited vantage point on this motion, it appears to me that rebutting the presumptive start dates of the limitation periods applicable to both proposed defendants will not be difficult. There would have been no immediate reason for Mrs. Zimmerman to suspect that she received negligent care in 2009 or 2010. Again, the more controversial questions for the court hearing the Leave Motion will be (1) when did the plaintiffs subjectively discover their claims against the proposed defendants and (2) when ought they reasonably to have done so?
[26] On these controversial issues, Ms. Brock provided evidence as to what she knew at the time she commenced the claim in 2015, as well as when and how she first learned that the plaintiffs may have a claim against each of the proposed defendants.
[27] Though Mrs. Zimmerman’s 2009/10 brain images were included in the documentation she received from SMH in the early stages of her investigation, Ms. Brock concluded that there was no basis for a claim against anyone involved in Mrs. Zimmerman’s care at that time. Her conclusion was based on a number of factors including that: (1) Drs. Legge and Little each found the brain images to be unremarkable; (2) other specialists consulted in that time frame – a neurologist, an otolaryngologist and an ophthalmologist – could not find a cause for Mrs. Zimmerman’s headaches; and, (3) significantly, with medications, Mrs. Zimmerman’s symptoms went away and she was able to continue to work full-time and attend to her day-to-day family functions. A three-year gap followed before Mrs. Zimmerman was again experiencing headaches that landed her in the emergency department. Nothing in this factual matrix suggested that the aneurysm existed in 2009/10 and went undetected.
[28] Ms. Brock consulted with a neuroradiologist and a neurosurgeon (the “Neuro-consultants”), as well as an emergency physician, an emergency nurse and a family physician in relation to the plaintiffs’ claims against the current defendants prior to commencing the action. She did not seek out any opinions regarding the care received by Mrs. Zimmerman in 2009/10, for the reasons I just expressed. Consequently, she did not receive any indication from any of the experts she consulted that there may have been a breach of a standard of care applicable to Mrs. Zimmerman’s care in 2009/10.
[29] In terms of her initial consultations with consulting experts, Ms. Brock specifically deposed as follows:
(a) She wrote to her consulting neuroradiologist on April 30, 2014, enclosing the CT scans taken of Mrs. Zimmerman’s head in July and August 2013. She asked if the standard of care was met with respect to the interpretation of these scans. She said she spoke to the neuroradiologist on May 26, 2014 and he expressed the opinion that the standard of care was met when these images were reviewed and interpreted. There was no discussion about the 2009/10 images;
(b) She wrote to her consulting emergency physician on June 13, 2014 and asked if the standard of care was met by the emergency physicians who cared for Mrs. Zimmerman in July and August 2013. She said she spoke to this expert on October 7, 2014 and he described several breaches of the applicable standard of care. There was no discussion about Mrs. Zimmerman’s care in 2009/10;
(c) She wrote to her consulting neurosurgeon on April 27, 2015 and provided him with the imaging from 2013. She asked him to opine on the issue of causation. She said she spoke to him on July 13, 2015 and he expressed a positive opinion on causation. While there was some discussion of Mrs. Zimmerman’s pre-2013 health history, the neurosurgeon did not review the brain images from 2009/10;
(d) She wrote to her consulting family physician on July 13, 2016 and asked for an opinion about whether Drs. Gallagher and Babcock met the applicable standard of care with respect to the care and treatment they provided Mrs. Zimmerman in 2013. She said she spoke to this consultant on September 7, 2016 and was told that it was difficult to assess the standard of care issue without having these physicians’ discovery evidence. Mrs. Zimmerman’s pre-2013 health history was not discussed; and,
(e) She wrote her consulting emergency room nurse on November 29, 2016 and asked if the emergency department nurses at SMH met the applicable standard of care in relation to their treatment of Mrs. Zimmerman in 2013. She said she spoke to this consultant on January 20, 2017 and was told that while there were some minor breaches, they would not likely have changed Mrs. Zimmerman’s outcome. There was no discussion of Mrs. Zimmerman’s pre-2013 care.
[30] Ms. Brock said she subsequently reached out again to her consulting neurosurgeon as part of her preparation for examinations for discovery in the fall of 2017. They discussed Mrs. Zimmerman’s health history generally and the neurosurgeon asked to review the 2009/10 images of Mrs. Zimmerman’s brain. Ms. Brock delivered those to him in early November 2017.
[31] For reasons that are not clear to me, the consulting neurosurgeon did not discuss his review of the 2009/10 images with Ms. Brock until April 11, 2018. At that time, the neurosurgeon indicated that the aneurysm was, in his opinion, evident on the 2009 CT angiogram. If he was right, he thought Mrs. Zimmeran’s outcome would likely have been different, had the aneurysm been detected.
[32] According to Ms. Brock, April 11, 2018 was the first time anyone had indicated to her that the aneurysm existed in 2009 and that it was visible in imaging taken at that time. The neurosurgeon suggested that a neuroradiologist be consulted to confirm his opinion. Ms. Brock wrote to her consulting neuroradiologist on that same date. She subsequently sent him the 2009/10 images on April 23, 2018, asking that he review them.
[33] Ms. Brock said she spoke with the neuroradiologist on June 20, 2018. At that time, he expressed agreement that the aneurysm was apparent on the 2009 CT angiogram. He opined that Dr. Legge’s interpretation of the 2009 CT angiogram as unremarkable fell below the applicable standard of care. The neuroradiologist further opined that while Dr. Little correctly interpreted the MRI taken in March 2010 (which apparently did not reveal the aneurysm), he should have compared it to the 2009 CT scan and, had he done so, he would have detected the aneurysm.
[34] Based on Ms. Brock’s evidence, the plaintiffs advance the position that June 20, 2018 was the first they knew – and indeed could only reasonably have known – that they had a claim against the proposed defendants. They contend that the limitations clock began to tick on that date.
III. THE DISCLOSURE REQUEST
[35] The Leave Motion was served on December 9, 2020. Lenczner Slaght were retained to act for the proposed defendants. Those proposed defendants are obviously keen to test the plaintiffs’ evidence about the two central issues on the Leave Motion. Mr. Knoke, of the Lenczner firm, wrote to Ms. Brock on December 18, 2020 and asked for, amongst other things:
• The names of all of the experts consulted by Ms. Brock and their contact information;
• All correspondence passing between Ms. Brock and the experts she consulted;
• All calendar appointments with respect to discussions between Ms. Brock and the experts;
• All internal memos, correspondence or documents of any kind with respect to discussions with the experts; and,
• Any draft reports prepared by the experts.
[36] Mr. Knoke also asked that Ms. Brock make the Neuro-consultants available for examination prior to the hearing of the Leave Motion.
[37] Ms. Brock’s colleague, Mr. Windwar, responded to Mr. Knoke on December 23, 2020. He declined to make the Neuro-consultants available for examination. He made no mention of the numerous documents relating to the Neuro-consultants that were enumerated in Mr. Knoke’s December 18th letter.
[38] Undaunted, Mr. Knoke served the plaintiffs’ lawyers with a Request to Inspect Documents pursuant to r. 30.04 on January 15, 2021. The documents sought largely reflect those described in Mr. Knoke’s December 18th letter.
[39] The plaintiffs’ counsel delivered a Reply to the Request to Inspect Documents on January 22, 2021. The plaintiffs claimed privilege over the experts’ names and contact information. They further claimed privilege over certain other communications with the experts. Some communications were withheld in their entirety. Others were redacted, apparently on the basis of both relevance and privilege.[^2]
[40] More particularly, Ms. Brock produced the following:
(a) A copy of her retainer letter with the Zimmermans, with all fee arrangements redacted;
(b) A copy of a letter to the Zimmermans confirming her retainer and providing directions and authorizations which would facilitate counsel obtaining her medical records. Again, any reference to fee arrangements was redacted;
(c) Her correspondence with the consulting neuroradiologist with his name and address redacted. An email exchange between Ms. Brock’s assistant and the consulting neuroradiologist on April 23, 2018 was further redacted to shield a reference to an unrelated file;
(d) Her correspondence with her consulting emergency physician, with any identifying information redacted;
(e) Her correspondence with her consulting neurosurgeon, with any identifying information redacted;
(f) Her notes of a phone consultation on July 13, 2015 with her consulting neurosurgeon which were heavily redacted. The redactions relate to discussions about Mrs. Zimmerman’s 2013 care. What was produced (unredacted) were some limited notes about a brief discussion of Mrs. Zimmerman’s pre-2013 medical history;
(g) Her correspondence with her consulting family doctor with all identifying information redacted; and,
(h) Her correspondence with her consulting emergency room nurse, with all identifying information redacted.
[41] Ms. Brock refused to produce the following:
(a) Her notes of a phone consultation with the neuroradiologist on May 26, 2014. I have reviewed these notes. They refer only to the care provided to Mrs. Zimmerman in 2013;
(b) Her notes of a phone conversation with her consulting emergency physician on October 7, 2014. The notes reflect that the conversation was limited to Mrs. Zimmerman’s care in 2013;
(c) Her notes of a phone conversation with her consulting family doctor on September 7, 2016. The conversation appears to have been limited to Mrs. Zimmerman’s care in 2013;
(d) Her notes of a phone conversation with her consulting emergency room nurse on January 20, 2017. Again, the conversation appears to have been limited to Mrs. Zimmerman’s care in July and August 2013;
(e) Her notes of her phone consultation with her consulting neurosurgeon on October 30, 2017. These notes, with one minor exception, relate to the care received by Mrs. Zimmerman in 2013. The one exception is a note reflecting that the consultant asked to see Mrs. Zimmerman’s 2009/10 imaging. This was an odd redaction, given that Ms. Brock disclosed, in her December 3, 2020 affidavit, that her consulting neurosurgeon had asked her, during this October 30, 2017 conversation, to see the 2009/10 imaging;
(f) Her notes of a phone conversation with her consulting neurosurgeon on April 11, 2018 during which he told her he thought the aneurysm was visible in the 2009 imaging;
(g) Her notes of her phone consultation with the neuroradiologist on June 20, 2018 and an inter office email from Ms. Brock to an assistant. These relate directly to discussions with the consulting neuroradiologist about the 2009/10 images;
(h) A preliminary report from her consulting neurosurgeon dated July 20, 2015, which is limited to the care received by Mrs. Zimmerman in 2013;
(i) A preliminary report from her consulting emergency physician dated October 22, 2018, also limited to the care received by Mrs. Zimmerman in 2013; and,
(j) A preliminary report from her consulting neuroradiologist dated February 21, 2020 which references the imaging of Mrs. Zimmerman’s head in 2009, 2010 and 2013.
[42] The proposed defendants were not satisfied with the response received to their Request to Inspect and they launched the motion now before the court. The relief sought is an order that:
(a) The plaintiffs produce for inspection all redacted documents in their unredacted form;
(b) The plaintiffs produce for inspection all documents refused on the basis of privilege; and,
(c) In the alternative, the plaintiffs disclose the names and contact information of the Neuro-consultants.
IV. THE PARTIES’ POSITIONS
THE PROPOSED DEFENDANTS
[43] In the submission of the proposed defendants, there is no question that the documents sought are relevant to the live issues on the Leave Motion. They say the content of Ms. Brock’s affidavit makes it clear that the plaintiffs’ position on the discovery issue is grounded in the communications between Ms. Brock and the experts. Ergo, they say, the entire scope of those communications must be relevant.
[44] The proposed defendants accept that at times relevant documents may be shielded from disclosure by litigation privilege. They further accept that all of the communications and other documents in dispute prima facie fall within the margins of litigation privilege. They take the broad position, however, that privilege has been waived over each and every document in issue.
[45] The proposed defendants assert that privilege has been waived voluntarily by virtue of (1) numerous references in Ms. Brock’s affidavit to privileged discussions with the experts; and (2) the voluntary disclosure of dozens of pages of otherwise privileged communications between Ms. Brock and the experts.
[46] In the alternative, they assert that privilege has been impliedly waived. Implied waiver arose, in their submission, in three ways.
[47] First, the plaintiffs say that they discovered the grounds for their claim against the proposed defendants only when they received opinions from the Neuro-consultants in the spring of 2018. Their reliance on the Neuro-consultants’ opinions is sufficient, in and of itself, to constitute an implied waiver of litigation privilege over all communications, internal notes and draft reports of those experts.
[48] Second, as a general matter of fairness. They argue that the plaintiffs cannot rely on the opinions of experts in support of their motion and yet at the same time withhold the identity of those experts and suppress communications with them. The time at which the claims against the proposed defendants were reasonably discoverable may turn, they say, on what was said, considered and requested by the experts prior to June 20, 2018. The proposed defendants submit that it is unfair that they not be able to investigate exactly what the experts told counsel and when. The plaintiffs cannot disclose what they wanted from the communications with the Neuro-consultants, then conceal the balance of those communications, the contents of which might contradict or put into context what had been discussed.
[49] Finally, they say that the plaintiffs have disclosed to them documents containing privileged information which have been only partially redacted. They assert that where some information in a privileged document is voluntarily disclosed, the privilege over the entire document is waived.
THE PLAINTIFFS
[50] The plaintiffs disagree with every submission made by the moving parties.
[51] The plaintiffs assert that they have legitimate and sustainable reasons for not producing certain documents sought by the moving parties and for redacting others. Their reasons fall into two categories: relevance and privilege. In some instances, those categories overlap.
[52] As I understand the plaintiffs’ submissions, at least some of the redactions on documents otherwise produced reflect discussions between counsel and the experts that have nothing to do with the potential claim against the proposed defendants. Those discussions have been redacted on the basis that they are not only privileged, but they are irrelevant to the live issues now before the court.
[53] In terms of the issue of privilege, the plaintiffs disagree that they have voluntarily waived litigation privilege in a broad way. They accept that there has been some modest waiver of privilege based on fairness concerns. But they have been careful to limit it to what should fairly be disclosed and no more. In some instances, they have redacted privileged communications with respect to Mrs. Zimmerman’s care in 2013 while disclosing, in the same document, communications relating to her 2009/10 care. They say there is nothing unusual about doing so and deny the assertion that privilege either applies or does not apply to a document as a whole.
[54] The plaintiffs submit that the limits they put on any waiver of litigation privilege were proper and justified and should be respected. Moreover, they argue that what they have suppressed is, for the most part, irrelevant. An opponent has no cause to complain about unfairness if what is suppressed is irrelevant.
[55] In the plaintiffs’ submission, none of the documents over which litigation privilege is claimed will assist with the determination of whether the plaintiffs’ claim was or ought to have been discovered before June 20, 2018.
[56] In terms of the identities and contact details of the Neuro-consultants, the plaintiffs submit that the proposed defendants have failed to articulate a reasonable basis upon which to conclude that these experts may have relevant information or evidence in the nature sought by them. In the result, they are engaged in nothing more than a classic “fishing expedition”.
[57] Having set out the general overview of the case and the motion in particular, and having reviewed counsel’s respective positions, I will turn to my assessment of the live issues.
V. DISCUSSION
THE GOVERNING PRINCIPLES
[58] The plaintiffs’ limited responses to the Request to Inspect are informed by the application of two factors: relevance and litigation privilege. I will take a moment to reflect on the principles that govern both.
Relevance
[59] Relevance exists as a relationship between an item of evidence and a proposition sought to be established. It does not exist in the abstract. A piece of evidence is relevant to a proposition in issue if, as a matter of common sense and human experience, the evidence makes the proposition slightly more or less probable than it would be without the evidence. See R. v. Luciano, 2011 ONCA 89 at para. 204. This is not a high threshold.
[60] In the context of disclosure in civil proceedings, the term “relevance” is often used as a proxy for both relevance and materiality. Evidence is material if it relates to a fact in issue in the proceedings. What is in issue is a function of the pleadings, the substantive and procedural law and the positions taken by the parties. Luciano, para. 207.
[61] The concepts of relevance and materiality serve to control the limits of disclosure. A party is not required to disclose documents that are not relevant and material.
Litigation Privilege
[62] This motion revisits a long-standing tension inherent in the adversarial model of litigation.
[63] Our civil justice system is rooted in the adversarial system. The adversarial model is premised on the belief that the best way to get at the truth is to allow the parties to independently investigate and zealously present their cases in a self-interested way – and to challenge the opponent’s case with equal zeal – before an independent and impartial decision-maker.
[64] A self-interested litigant is inevitably focused on winning. He or she may well have an incentive to suppress evidence until trial, springing it on an unprepared opponent at the last minute, or suppressing it indefinitely should it be unfavourable to the party’s position.
[65] The adversarial system, however, aspires to get at the truth. And undoubtedly the suppression of relevant and material evidence tends to hinder or distort the truth-seeking function of the trial process.
[66] The inherent tension between self-interested suppression and process-enhancing disclosure has, by and large, been resolved “in the direction of complete discovery”. See General Accident Assurance Co. v. Chrusz, 1999 CanLII 7320 (ON CA), [1999] O.J. No. 3291 (C.A.) at para. 25.
[67] Nevertheless, our law recognizes that for the adversary system to function optimally, counsel need to have a “protected area to facilitate investigation and preparation of a case”. See R. J. Sharpe, Claiming Privilege in the Discovery Process in Law in Transition: Evidence, L.S.U.C. Special Lectures (Toronto: De Boo, 1984) at page 163, as cited in Chrusz, as above, at para. 23.
[68] Litigation privilege defines that protected zone that allows counsel to “prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.” See Blank v. Canada, 2006 SCC 39 at para. 27. It protects against the compulsory disclosure of communications and documents whose dominant purpose is preparation for litigation. See Blank, as above, at para. 60, Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 1 and Ontario (Liquor Control Board) v. Lifford Wine Agencies Ltd., 2005 CanLII 25179 (ON CA), [2005] O.J. No. 3042 (C.A.), at para. 74
[69] Litigation privilege is a “class” privilege. Class privileges arise presumptively whenever documents or communications fall within its scope. The classic examples of items to which this privilege applies are the lawyer's file and oral or written communications between a lawyer and third parties, such as witnesses or experts. See Lizotte, at para. 19.
[70] The onus is on the party asserting the privilege to establish, with respect to each document in issue, that the dominant purpose for its creation was existing or contemplated litigation. See Bartucci v. Lindsay, 2010 ONSC 3942, at para. 11.
[71] In this case counsel to the proposed defendants concede that the communications and documents in issue fall within the class of documents prima facie protected by litigation privilege. They accept that the documents in issue are properly subject to litigation privilege. That privilege will be sustained unless and until it has been lost in some way.
[72] A sustainable claim to litigation privilege may be lost in a number of different ways. It will, for instance, expire when the litigation it relates to comes to an end. See Blank, as above, at para. 9. It may be abrogated by the misconduct or abuse of process of the party claiming it. See Blank, para. 45. It may also be waived. Waiver is the means by which the proposed defendants say the plaintiffs’ claim to litigation privilege has been lost in this case.
[73] Waiver may be express or, where fairness requires it, implied. The Court of Appeal explained the distinction in R. v. Youvarajah, 2011 ONCA 654 at paras. 146-147:
An express waiver of privilege will occur where the holder of the privilege (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive it: S & K Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 CanLII 407 (BC SC), [1983] B.C.J. No. 1499, [1983] 4 W.W.R. 762 (S.C.), per McLachlin J.
Despite these requirements, an implied waiver of solicitor-client privilege may occur where fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it…
[74] Implied waiver arises, in other words, where the holder of the privilege takes some action or position inconsistent with the maintenance of the privilege. See Huang v. Silvercorp Metals Inc., 2017 BCSC 795 at para. 92.
[75] The “shield and sword” analogy is sometimes invoked to explain the circumstances in which implied waiver will arise. A privilege holder may not at once attempt to use privileged documents to her benefit and at the same time shelter behind the privilege to prevent an opposing party from testing the evidence. See Huang, as above, at para. 143.
[76] Both sides spent considerable effort in written and oral argument on the issue of whether disclosure of part of a privileged document impliedly waives privilege over the whole of the document. While this is an interesting, and I think not entirely settled issue in the law, it is of no consequence to this motion. None of my determinations turn on this issue.
THE PRINCIPLES APPLIED
Relevance
[77] Earlier in these reasons I set out the factual findings that the judge hearing the Leave Motion is going to have to make regarding the limitations issue. They include:
(a) The date the act or omission giving rise to the claim occurred;
(b) The date when the plaintiffs acquired subjective knowledge of their claim; and,
(c) The date when the plaintiffs objectively ought to have acquired knowledge of their claim.
[78] None of the documentation sought by the proposed defendants will assist with the first issue. In any event, when the acts or omissions giving rise to the claim occurred is not a controversial issue. Those dates are obviously in late 2009 and early 2010.
[79] Very little of the documentation in issue is capable of assisting with the question of subjective knowledge. I have reviewed all of the documents in their native form and nothing prior to October 30, 2017 provides direct or indirect evidence relevant to the plaintiffs’ subjective knowledge of their claim against the proposed defendants.
[80] Similarly, very little of the documentation in issue is capable of assisting with the question of when the plaintiffs ought to have discovered their claim against the proposed defendants. Counsel to the proposed defendants did not articulate in argument how any of the sought-after communications, apart from those with the Neuro-consultants, might support the proposition that a reasonable person with the abilities and in the circumstances of the plaintiffs would have discovered the claim against the proposed defendants prior to June 20, 2018.
[81] In my view, production of a significant number of the documents in issue ought not to be compelled on the simple basis that they are not relevant to the live issues on the Leave Motion. More particularly:
(a) The fee arrangements between the plaintiffs and Ms. Brock’s firm have nothing to do with any of the live issues on the Leave Motion. The retainer agreement and its associated schedules are prima facie shielded by solicitor-client privilege. Privilege was voluntarily waived over that part of the agreement that confirmed when and why the Brock firm was retained. Whether that selective voluntary waiver might result in the implied waiver of privilege over other parts of this documentation is neither here nor there. The redacted portions are not relevant. A party is not entitled to compel disclosure of irrelevant material;
(b) I am satisfied that Ms. Brock’s initial communications with her consulting experts are relevant insofar as they disclose the subject-matter she sought expert input on. Those communications have been disclosed, save for any information that might reveal the identity of the experts. Leaving aside for the moment the identities of the Neuro-consultants, in my view, the identities of the other experts is not relevant to any of the material issues on the Leave Motion. So again, whether production of the substantive content of these initial communications impliedly waived litigation privilege over the names of the experts is of no concern. The names of those experts are not relevant. Similarly, any references to unrelated files in correspondences with the experts are not relevant and need not be disclosed;
(c) Any communications relating strictly to the care Mrs. Zimmerman received in 2013 are similarly not relevant. Again, I have reviewed all documents in issue in their native forms and prior to October 30, 2017 there was only one communication between Ms. Brock and an expert regarding the care Mrs. Zimmerman received in 2009 and 2010. That one communication was with the neurosurgeon on July 13, 2015 and related solely to a narrative about what imaging was done in 2009/10. Ms. Brock’s notes of that discussion are arguably relevant to the discovery issue and they have been produced;
(d) The notes that Ms. Brock took of a phone consultation she had with the neuroradiologist on May 26, 2014 and which she has not produced contain no information relevant to the Leave Motion;
(e) The notes Ms. Brock took of a phone consultation with the neurosurgeon on October 30, 2017 and which she has not produced contain almost no information relevant to the Leave Motion. The one exception, which I noted above, is a note reflecting that, during the conversation, the neurosurgeon asked to see Mrs. Zimmerman’s 2009/10 imaging. I will come back to this note momentarily;
(f) Similarly, the notes Ms. Brock made of phone conversations with her consulting emergency doctor on October 7, 2014, her consulting family doctor on September 7, 2016 and her consulting emergency room nurse on January 20, 2017, all of which she has refused to produce, contain no information relevant to the Leave Motion; and,
(g) Preliminary reports received from the consulting neurosurgeon dated July 20, 2015 and from the consulting emergency physician dated October 22, 2018, contain no information relevant to the Leave Motion.
[82] What the foregoing review demonstrates is that most of the communications and documentation sought by the proposed defendants is not relevant to the Leave Motion and need not be disclosed.
[83] There remains relatively little material to assess on privilege grounds. Still in issue are the following (the “Remaining Documents”):
(a) The names and contact information of the Neuro-consultants;
(b) Ms. Brock’s October 30, 2017 note reflecting the request by the neurosurgeon for the 2009/10 imaging;
(c) Ms. Brock’s notes of her phone conversation with her consulting neurosurgeon on April 11, 2018 during which he told her he thought the aneurysm was visible in the 2009 imaging;
(d) Ms. Brock’s notes of the phone consultation she had with the neuroradiologist on June 20, 2018 and a subsequent inter office email from Ms. Brock to an assistant regarding that call. These documents relate directly to discussions with the consulting neuroradiologist about the 2009/10 images; and,
(e) A preliminary report Ms. Brock received from her consulting neuroradiologist dated February 21, 2020 which references the imaging of Mrs. Zimmerman’s head taken in 2009, 2010 and 2013.
[84] Again, it is conceded that litigation privilege prima facie applies to each of the Remaining Documents. Whether any of them must be disclosed depends on whether that privilege has been expressly or impliedly waived.
Privilege
[85] I am not satisfied that the plaintiffs have expressly waived litigation privilege over any of the Remaining Documents, save one. In particular, at para. 26 of her December 3, 2020 affidavit, Ms. Brock said the following:
During the preparation for the examinations with the consulting neurosurgeon on October 30, 2017, Ms. Zimmerman's health history prior to 2013 was briefly discussed. The neurosurgeon asked that I send him Ms. Zimmerman's earlier imaging studies from 2009 and 2010.
[86] The content of para. 26 was taken from Ms. Brock’s October 30, 2017 notes. It appears clear to me that any assertion of litigation privilege over that reference in her notes has been expressly waived and it must be produced. The balance of the notes are, as I said, irrelevant, so the only reference from the notes that must be disclosed is the following:
Wants other pre-2013. He will review and call me. Films and reports? Both 2009 and 2010.
[87] My dispositions in terms of the balance of the Remaining Documents turn on the application of the doctrine of implied waiver and of the principle of fairness as an overarching concern within that doctrine.
The Neuro-consultants’ Identification
[88] The plaintiffs’ opposition to disclosing the names of their Neuro-consultants was grounded in both relevance and privilege.
[89] Mr. Windwar urged me to conclude that the proposed defendants are engaged in nothing more than a fishing expedition in their pursuit of the Neuro-consultants’ identities. He argued that the proposed defendants have failed to articulate any basis for believing that the Neuro-consultants are a source of relevant evidence. I disagree.
[90] Recall that the central issues on the Leave Motion are the time when the plaintiffs’ acquired subjective knowledge of their claim against the proposed defendants and the objective reasonableness of that timing. Based on the evidentiary record advanced by the plaintiffs, three witnesses have been identified who, as a result of the roles they have played in these proceedings to date, render them in possession of evidence particularly germane to those two central issues: the neurosurgeon, the neuroradiologist and Ms. Brock.
[91] In my view, it is axiomatic, in the circumstances of this case, that the Neuro-consultants are a source of relevant evidence.
[92] It is also my view that any privilege over their identities has been impliedly waived. I reach that conclusion as a matter of fairness.
[93] Ms. Brock filed a detailed affidavit outlining when and how she received information from the Neuro-consultants that led to the discovery of the plaintiffs’ claim against the proposed defendants. That the proposed defendants are entitled to challenge her evidence cannot seriously be disputed. Their right to do so is a core element of the adversarial process.
[94] What the plaintiffs are attempting to do by shielding the identity of their experts, however, is to limit the means by which the proposed defendants can mount that challenge.
[95] Ms. Brock is prepared to present herself for cross-examination on her affidavit. That cross-examination is one method by which the proposed defendants can challenge the plaintiffs’ position. But it is not the only method.
[96] Ms. Brock has essentially deposed that the plaintiffs could not reasonably, or even possibly, have discovered that they had a potential negligence claim against the proposed defendants without an expert’s opinion about the presence of the aneurysm on the 2009/10 imaging. She has explained why she did not initially seek out such an opinion. And she has detailed the organic pathway by which the Neuro-consultants came to review those images. In the course of doing all of that, she made it abundantly clear that the discovery issue rests largely on what was said by the Neuro-consultants and when. She has squarely put their evidence in issue.
[97] The proposed defendants will understandably be anxious to investigate and possibly test the evidence of the Neuro-consultants, particularly with respect to the issue of reasonable discoverability. But they will not be able to do so if they do not know who those key witnesses are.
[98] In my view, the plaintiffs cannot, in fairness, take the position that they did not and could not have discovered their claim against the proposed defendants until they received definitive opinions from their Neuro-consultants, then shield those consultants from any challenge or even inquiry by the opposing parties.
[99] I direct that the plaintiffs disclose the identity of the Neuro-consultants to the proposed defendants.
The April 11, 2018 Notes
[100] According to Ms. Brock, she was told by her consulting neurosurgeon on April 11, 2018 that he thought the aneurysm was visible in the 2009 imaging. She made notes of the call. This is one of what appear to me to be the two most critically important communications in the context of the Leave Motion.
[101] By filing the affidavit that she did, Ms. Brock made herself the principal witness for the plaintiffs on this motion. Like it or not, the proposed defendants are entitled to challenge her credibility and reliability as a witness. Whether a witness has kept notes of a conversation is one factor for a trier of fact to consider when assessing the witness’s reliability. Whether Ms. Brock’s affidavit is consistent with those notes is another significant factor.
[102] In my view, the needs of the adversarial system strongly point in favour of disclosure of the April 11, 2018 notes. Any claim to litigation privilege over these notes is not sustainable.
The June 20, 2018 Notes
[103] I reach a similar conclusion with respect to Ms. Brock’s notes of her June 20, 2018 phone call with the neuroradiologist. This is the second of two critical communications in the context of the Leave Motion. Ms. Brock has detailed her recollection of the phone call in her affidavit. And again, she has placed her credibility and reliability in issue. Doing so impliedly waived any litigation privilege over her notes of the conversation.
[104] Following her phone conversation with the neuroradiologist on June 20, 2018, Ms. Brock sent a one-line email to her assistant regarding the outcome of the call. In my view, the plaintiffs have a sustainable claim to litigation privilege over this document. There is no basis to find that privilege has been waived in any way with respect to this email.
The Preliminary Report of the Neuroradiologist
[105] The proposed defendants are not, in my view, entitled to disclosure of the neuroradiologist’s preliminary report. I reach this conclusion on grounds of both relevance and privilege.
[106] Though the report contains opinions relevant to the proposed claims against the proposed defendants, those opinions are not relevant to the live issues on the Leave Motion. The report is dated February 21, 2020, some 20 months after the latest date on which the plaintiffs could be found to have obtained subjective knowledge of their claim against the proposed defendants. The report could only be relevant to the Leave Motion, therefore, if it contains information that might support an assertion that the plaintiffs actually obtained, or ought to have obtained, knowledge of their claim earlier than they say. It does not.
[107] I am, moreover, not satisfied that the plaintiffs, or their counsel, have said or done anything that would impliedly waive litigation privilege over the report. The report was not referred to in Ms. Brock’s affidavit and no reliance has been placed on it in relation to the Leave Motion. I am not persuaded that there are any fairness concerns that would support a finding of waiver with respect to this report. I am satisfied that the plaintiffs continue to have a sustainable claim to privilege over the report.
CONCLUSIONS
[108] In summary, I find that much of the documentation sought by the proposed defendants is simply not relevant to the live issues on the Leave Motion.
[109] That said, there are a number of instances where I conclude that litigation privilege has been impliedly waived over relevant and material documents in whole or in part. I direct that the following be disclosed to the proposed defendants:
(a) The names and contact information of the Neuro-consultants;
(b) The brief references to the 2009/10 imaging of Mrs. Zimmerman’s head referred to in Ms. Brock’s notes of her October 30, 2017 phone conversation with her consulting neurosurgeon;
(c) Ms. Brock’s notes of her phone call with her consulting neurosurgeon on April 11, 2018; and,
(d) Ms. Brock’s notes of her phone call with her consulting neuroradiologist on June 20, 2018.
[110] The parties are encouraged to reach a consensus on the issue of costs. If they are unable to do so, they may make brief written submissions to me on the issue, not to exceed two pages. The submissions should be provided on a fourteen-day turnaround. The plaintiffs shall serve and file their submissions by May 25, 2021 and the proposed defendants shall serve and file their submissions by June 8, 2021.
Boswell J.
Released: May 11, 2021
APPENDIX “A”
Request to Inspect Document with Responses
| No. | Request | Response |
|---|---|---|
| Investigations and Evidence | ||
| 1 | A retainer letter dated September 27, 2013 and any other documents or correspondence referred to in para. 4 of Ms. Brock’s affidavit, regarding investigations she made to determine if there was merit to a med-mal action. | A redacted copy of the retainer agreement was provided along with other “accompanying documents” redacted. |
| 2 | The internal memos, correspondence and documents of any kind, prepared by plaintiffs’ counsel referred to at para. 9 of Ms. Brock’s affidavit. In that para. Ms. Brock indicated that she reviewed records received from SMH and the Zimmermans’ family doctor and identified potential defendants. | None available. |
| 3 | Transcripts from the examinations for discovery. | Provided. |
| Medical Records and Related Correspondence | ||
| 4 | All correspondence sent to SMH | Provided. |
| 5 | Correspondence received from SMH dated November 6, 2013 | Provided. |
| 6 | Correspondence sent to Dr. Julie Gallagher dated October 11, 2013 and April 4, 2014 | Provided. |
| 7 | Correspondence and records received from Dr. Gallagher | Produced in the motion record dated December 3, 2020. |
| 8 | All correspondence sent or received to and from St. Michael’s Hospital, Criticall and OHIP | Provided. |
| The Consulting Neuroradiologist | ||
| 9 | The correspondence sent to the neuroradiologist, dated April 8, 2014, which is referenced at para 18 of Ms. Brock’s Affidavit. | A copy of Ms. Brock’s letter dated April 18, 2014 was provided, with the name and address of the consulting neuroradiologist redacted. Ms. Brock noted that she does not sign retainer agreements with medical consultants. |
| 10 | The neuroradiologist’s response to the April 8, 2014 correspondence (including the signed retainer agreement), which are referenced at para 18 of Ms. Brock’s Affidavit. | A copy of an email dated April 15, 2014 from the neuroradiologist to Ms. Brock was disclosed, with the name and email address of the consultant redacted. There is no signed retainer agreement. |
| 11 | The correspondence, documents, and the medical brief (including all records and images) sent to the neuroradiologist on April 30, 2014, which are referenced at para 18 of Ms. Brock’s Affidavit. | A copy of Ms. Brock’s letter to the consultant dated April 30, 2014 was produced, again with the name and address of the consultant redacted. The records and images provided to the consultant are referenced in the letter and were delivered to the proposed defendants separately. |
| 12 | The internal memos, correspondence, and documents of any kind with respect to the neuroradiologist’s preliminary opinion, which are referenced at para 18 of Ms. Brock’s Affidavit. | Privilege was claimed over this documentation. None was produced. |
| 13 | The correspondence, documents, and medical brief (including all records and images) sent to the neuroradiologist on April 11, 2018, which are referenced at para 28 of Ms. Brock’s Affidavit. | A copy of an email exchange between Ms. Brock and the consultant was disclosed, again with the consultant’s name redacted. In addition, a copy of a letter to the consultant dated April 11, 2018 was disclosed, which enclosed Mrs. Zimmerman’s brain images from 2009 and 2010. |
| 14 | The correspondence sent to the neuroradiologist on April 23, 2018 and all correspondence exchanged with the neuroradiologist thereafter, which are referenced at para 29 of Ms. Brock’s Affidavit. | A copy of an email exchange between Ms. Brock’s assistant and the consultant, dated April 23, 2018, was produced, again with identifying details redacted. |
| 15 | The internal memos, correspondence, opinions, and documents of any kind with respect to the discussions with the neuroradiologist on June 20, 2018, which are referenced at para 29 of Ms. Brock’s Affidavit. | Privilege was claimed over this documentation and none was produced. |
| The Emergency Physician | ||
| 16 | Correspondence sent to the Emergency Physician dated June 4, 2014 | Provided, with the physician’s name and contact information redacted. |
| 17 | The Emergency Physician’s response to the June 4, 2014 letter | Provided, with identifying information redacted. |
| 18 | The correspondence and medical brief sent to the Emergency Physician on June 13, 2014 | Produced, with identifying information redacted. |
| 19 | Any documents relating to the Emergency Physician’s preliminary opinion | Privilege maintained over these documents, with an indication that none of the discussions with the Emergency Physician involved Mrs. Zimmerman’s pre-2013 care. |
| The Consulting Neurosurgeon | ||
| 20 | The correspondence sent to the neurosurgeon, dated April 13, 2015 and June 25, 2015, which are referenced at para 20 of Ms. Brock’s Affidavit | A copy of Ms. Brock’s letter dated April 13, 2015 to the consulting neurosurgeon was disclosed with the consultant’s name and address redacted. A copy of an email from Ms. Brock to the consultant was disclosed, again with identifying information redacted. |
| 21 | The neurosurgeon’s response to the April 13, 2015 correspondence (including the signed retainer agreement), which are referenced at para 20 of Ms. Brock’s Affidavit. | No response exists was the reply. Ms. Brock also noted, again, that she does not sign retainer agreements with medical consultants. |
| 22 | The correspondence, documents, and medical brief sent to the neurosurgeon on April 27, 2015, which are referenced at para 20 of Ms. Brock’s Affidavit. | A copy of Ms. Brock’s letter to the consultant dated April 27, 2015 was disclosed, with identifying information redacted. The letter referenced a medical brief, which was disclosed separately. |
| 23 | The internal memos, correspondence, and documents of any kind with respect to the neurosurgeon’s preliminary opinion, which are referenced at para 20 of Ms. Brock’s Affidavit. | A single page of notes relating to a telephone conversation between Ms. Brock and the consultant on July 13, 2015 was produced. It is almost entirely redacted. The only non-redacted sections are the date and time and some very brief references to images taken December 29, 2009 and March 22, 2010 |
| 24 | The internal memos, correspondence, and documents of any kind with respect to preparation for examinations with the neurosurgeon on Oct. 30, 2017, which are referenced at para 26 of Ms. Brock’s Affidavit. | The response is that there are no such documents available. [To be clear, there are notes of the discussions between the neurosurgeon and Ms. Brock. Those notes have not been produced on the basis of an assertion of litigation privilege.] |
| 25 | The correspondence, images, and documents of any kind that were sent to the neurosurgeon on November 9, 2017, which are referenced at para 26 of Ms. Brock’s Affidavit. | Ms. Brock’s letter to the consultant dated November 9, 2017 was disclosed, with identifying information redacted. The letter enclosed a number of images, copies of which have been separately produced. |
| 26 | The internal memos, correspondence, opinions, and documents of any kind with respect to the discussions with the neurosurgeon on April 11, 2018, which are referenced at para 27 of Ms. Brock’s Affidavit. | A brief exchange of emails between Ms. Brock and the consultant dated April 11, 2015 were produced (identifying information redacted) along with a copy of a letter from Ms. Brock to the consultant dated April 11, 2015 which enclosed some images that have otherwise been produced separately. |
| Family Physician | ||
| 27 | Correspondence sent to the Family Physician dated June 29, 2016. | Provided, with the physician’s name and contact information redacted. |
| 28 | The Family Physician’s response to the June 29, 2016 letter. | Provided, with all identifying information redacted. |
| 29 | Correspondence and documentation sent to the Family Physician on July 13, 2016, including the medical brief. | Provided, with all identifying information redacted. |
| 30 | Any documents relating to the Family Physician’s preliminary opinion. | Privilege maintained. No discussions with the Family Physician involved Mrs. Zimmerman’s pre-2013 care. |
| Emergency Room Nurse | ||
| 31 | Correspondence sent to the ER Nurse on November 18, 2016. | Provided, with the nurse’s name and contact information redacted. |
| 32 | The ER Nurse’s response to the November 18, 2016 letter. | Provided, with all identifying information redacted. |
| 33 | The correspondence and other documents sent to the ER Nurse on November 29, 2016, including the medical brief. | Provided, with all identifying information redacted. |
| 34 | Any documents relating to the ER Nurse’s preliminary opinion. | Privilege maintained. No discussions with the ER Nurse involved Mrs. Zimmerman’s pre-2013 care. |
| 35 | Each and every draft report from every consulting expert or contacted expert referred to in Ms. Brock’s affidavit. | Privilege Maintained. |
[^1]: The plaintiffs’ motion to add the proposed defendants to the claim was served on December 9, 2020. For those doing the math, it is readily apparent that December 9, 2020 is more than two years after they say they discovered their claim. The plaintiffs, however, have the benefit of an extension related to the COVID-19 pandemic. On March 20, 2020 the Ontario government made an order under s. 7.1(2) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, specifically Reg. 73/20, which suspended all limitation periods under any statute, regulation, rule, by-law or order of the Government of Ontario, retroactive to March 16, 2020. The regulation was in force until September 14, 2020, which means all limitation periods subject to the regulation were extended by roughly six months. Two years and six months from June 20, 2018 is December 20, 2020.
[^2]: For ease of reference, I have prepared a chart setting out, in one column, the disclosure requests of the proposed defendants. A second column sets out the plaintiffs’ responses to each request. The chart is attached as Appendix “A” to this ruling.