Court File and Parties

COURT FILE NO.: CV-17-00581496

DATE: 20210706

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SONGFU LIU Plaintiff

AND:

JONATHAN CHAN Defendant

BEFORE: Mr. Justice Chalmers

COUNSEL: S. Liu self-represented

J. Martin, for the Defendant

HEARD: June 30, 2021, by videoconference

ENDORSEMENT

[1] Songfu Liu brings this motion seeking the following relief:

a. leave to amend the Statement of Claim, pursuant to R. 26;

b. leave to examine several non-parties pursuant to R. 31.10; and

c. to compel the inspection and/or production of documents that he claims are relevant and in the possession of the Defendant.

Leave to Amend the Statement of Claim

[2] Mr. Liu claims damages for personal injury arising out of medical treatment provided by Dr. Chan between 2013-15. The action was commenced by Statement of Claim issued on August 24, 2017. Mr. Liu has amended his claim seven times. On November 20, 2018, Justice Glustein struck the Amended Amended Amended Fresh as Amended Statement of Claim. Mr. Liu filed a Second Fresh as Amended Statement of Claim. There was another amendment of the Claim on January 21, 2020, which was made without court order or the consent of the Defendant. Mr. Lui seeks leave to issue a Third Fresh as Amended Statement of Claim.

[3] Rule 26.01 provides that on motion at any stage of the proceedings a court shall grant leave to amend a pleading on such terms as are just. The right to amend a pleading is not absolute. Leave will not be granted if the responding party will suffer non-compensable prejudice, the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process. Leave will also not be granted if the proposed pleading discloses no reasonable cause of action: Iroquois Falls Power Cord. v. Jacob Canada Inc. 2009 ONCA 517, at paras. 15-16.

[4] Here, the Plaintiff moves to amend the Claim for an eight time. The material facts relied on by the Plaintiff have been known to him for several years. Mr. Liu did not set out in his affidavit the new information he received since the last amendment. In argument Mr. Liu states that since the last amendment, he learned that Dr. Chan had committed fraud. Mr. Liu made similar allegations in the Amended Second Fresh as Amended Statement of Claim at paragraphs 9- 13. Mr. Liu also states that after the Second Fresh as Amended Statement of Claim he learned that his PSA levels were reversing before the surgery. There is reference to reversing PSA levels at paragraph 33 of the Second Fresh as Amended Statement of Claim.

[5] Two new claims are advanced in the draft Third Fresh as Amended Statement of Claim. There is a claim that the Defendant committed a fraud on OHIP and that the Defendant breached s. 29 and 37(1) of the Personal Health Information Protection Act, 2004 (PHIPA). It is my view that the new claims have no chance of success. The alleged OHIP fraud involves allegations of overbilling. This would be a claim that could be advanced by OHIP and not Mr. Liu. With respect to the PHIPA claim, Mr. Liu alleges that Dr. Chan shared medical information with a medical colleague without Mr. Liu’s consent. Section 20(2) of the PHIPA provides that doctors have an implied consent to disclose personal health information for the purpose of providing heath care. In any event, the claims with respect to OHIP and PHIPA are now being advanced following the expiry of the limitation period. As such, there is a presumption of prejudice on the Defendant. Mr. Liu did not put forward any evidence or advance any arguments to rebut the prejudice.

[6] I am also of the view that the proposed draft pleading does not conform to the rules of pleadings set out in R. 25. The proposed draft includes detailed evidence and inflammatory language.

[7] Finally, there is the issue of delay. The action was commenced four years ago. Although Mr. Liu knew or ought to have been aware of all material facts at the time the claim was first issued, he continues to attempt to amend the claim. I am of the view that a four-year delay in finalizing the Claim creates a presumption of prejudice on the Defendant. Mr. Liu did not submit any evidence to rebut the presumed prejudice. If a further amendment were permitted, the Defendant may be required to proceed with a motion to strike the Claim pursuant to R. 25.11 and may require an amendment of the Statement of Defence. The Examinations for Discovery which are scheduled to be completed by August 31, 2021, may have to be adjourned, resulting in further delay.

[8] I am of the view that the ongoing cycle of amendments is an abuse of process. I deny Mr. Liu leave to amend the Statement of Claim.

Leave to Examine Non-Parties

[9] Rule 31.10 (2) sets out the test for leave to examine a non-party for discovery. The moving party must establish that the information could not be obtained from other persons whom the moving party is entitled to examine for discovery and that it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the non-party. The moving party must also establish that there is a good reason to believe that the non-party has information relevant to the material issue.: Hopkins v. Robert Green Equipment Sales Ltd., 2018 ONSC 998, at para. 6.

[10] Here, Mr. Liu seeks leave to examine the following persons:

a. Two assistants who were employed by Dr. Chan between 2013 – 2015;

b. Pathologist, Dr. Syed, Dr. Diane Smith and Dr. Andrea Anton of the Scarborough Hospital; and

c. The pathologist who prepared the Plaintiff’s biopsy.

[11] Mr. Liu, in argument stated that he wishes to examine Dr. Chan’s assistants because one of the assistants called him and told him he is to see the doctor immediately. This caused him some worry. With respect to Ms. Anton, Mr. Liu wants to ask her where Dr. Chan was on a particular day. He wants to examine Dr. Syed, to ask if the pathology report was contaminated.

[12] Mr. Liu has not conducted a discovery of Dr. Chan. There is no evidence in his affidavit that satisfies the strict test for leave to examine non-parties.

[13] I am not prepared to grant leave to allow Mr. Liu to examine non-parties at this time. This is without prejudice to Mr. Liu moving for this relief, following the discovery of Dr. Chan.

Production of Documents

[14] In argument, Mr. Liu requested production of the professional protocol which sets out the recommended timeframe for follow up of PSA tests. Mr. Liu states that the Defendants have claimed privilege over the protocol document.

[15] The Defendant denies that privilege has been claimed. It is the Defendant’s position that he has produced the complete medical chart. Dr. Chan is not aware of a protocol document that sets out a standard of care with respect to PSA testing. Dr. Chan has produced an expert report which sets out the standard of care. There is no reference in the report to a standard of care protocol document. The Defendant also states that if such a protocol document exists it would be a publicly accessible document and would not be in the power, possession or control of Dr. Chan.

[16] I deny Mr. Liu’s request for an order to compel the Defendant to produce the protocol document. I am satisfied that the Defendant has complied with its documentary discovery obligation by producing the complete medical chart. If through the oral discovery of Dr. Chan there is evidence of a protocol document, and the Defendant refuses to produce such a document, Mr. Liu may renew his request at that time.

Summary

[17] It is time for this action to proceed to Examinations for Discoveries. I do not grant leave to the Plaintiff to amend the Statement of Claim for an eighth time. The discoveries must be conducted based on the current state of the pleadings . The Plaintiff has had all the material facts he requires to plead for some time, and I am not satisfied that anything new has developed that requires an amendment.

[18] I am also of the view that the Plaintiff does not require the evidence from the non-parties or further documentation from the Defendants to conduct a meaningful Examination for Discovery of Dr. Chan. He has received the complete medical brief along with a standard of care expert report from the Defendants. If in the course of the discovery of Dr. Chan, the Plaintiff is unable to obtain relevant information that is in the possession of non-parties, Mr. Liu may renew his motion to examine non-parties. Similarly, if during the examination of Dr. Chan, it becomes apparent there are relevant documents not yet produced to Mr. Liu, and the Defendant refuses to produce the relevant documents, he can renew his motion for production of documents.

Disposition

[19] I dismiss the Plaintiff’s motion.

[20] The Defendant is successful on the motion and is entitled to his costs. I award costs of the motion to the Defendants fixed in the amount of $1,500 inclusive of counsel fee, disbursements and HST. The costs are payable within 30 days of the date of this endorsement.

[21] As the case management judge, I remain seized with respect to all issues involved in managing the proceeding and moving it expeditiously to trial.

DATE: JULY 6, 2021