Court File and Parties
MOTION HEARD: 20210908
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Craig Leask, Plaintiff
AND:
Homewood Health Centre Inc., Homewood Health Inc., Paul Obermeyer and Dr. Carlos Lalonde, Defendants
BEFORE: Associate Justice Jolley
COUNSEL: Valerie Wise, Counsel for the moving party defendants Homewood Health Centre Inc., Homewood Health Inc. and Paul Obermeyer
Cale Sutherland, Counsel for the defendant Dr. Carlos Lalonde
Michael Rotondo, Counsel for the responding party plaintiff
HEARD: 8 September 2021
REASONS FOR DECISION
1The defendants Homewood Health Centre Inc., Homewood Health Inc. and Paul Obermeyer bring this motion for an order under rules 31.10, 76, 1.04, 1.05 and 2.03 for an extension of the allotted discovery time and for an order compelling the plaintiff’s husband Alan Hurst and the plaintiff’s father Don Leask to be examined for discovery for up to 60 minutes each. The defendant Dr. Lalonde has agreed to be bound by the outcome of this motion rather than bring on his own motion, which was served and filed but was not before me.
2The plaintiff objects to the motion on the basis that the defendants have used all their allotted time for discovery under the simplified procedure regime. Alternatively, even if time were available, the plaintiff argues that non-parties do not have relevant evidence to give.
Simplified Procedure
3Rule 76 was enacted to reduce the cost of litigating claims of modest amounts by reducing the amount of procedure available in those cases. When first enacted, the initial limit was $25,000 and was recently increased to its present limit of $200,000.
4Part of that trade-off was the forfeiture of the right to conduct lengthy examinations for discovery. Originally the rule provided for no oral discovery. It was then amended to provide for a maximum of two hours for oral examinations for discovery and was raised to three hours effective 1 January 2020. The time limit includes not only a party’s examination but “other parties or persons” as well.
5Rule 76.04(2) provides as follows:
(2) Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of three hours of examinations, regardless of the number of parties or other persons to be examined.
6Rule 31.05.1 sets the time limit for examinations for discovery at seven hours “except with the consent of the parties or with leave of the court”. That discretionary language is absent from Rule 76.
Application of Rule 76.04 to this Action
7The plaintiff’s examination for discovery of the defendants proceeded on 23 November 2020. Plaintiff’s counsel examined the defendants for over five hours, without objection from the defendants.
8However, when the defendants examined the plaintiff for discovery on 5 February 2021, the plaintiff ended the examination for discovery just shy of the three hour mark on the basis that time had expired. The plaintiff did not take this position at any time before February 5 or even at the commencement of the discovery that morning so that counsel could plan their questioning accordingly. Nor did he take into account that defendants’ counsel extended him the courtesy of well exceeding his time for the examination of the defendants. While he noted at the conclusion of his client’s examination that the defendants had been “very very nice” in allowing him to examine their clients beyond what was strictly allowed, he was not prepared to extend the same courtesy.
9The plaintiff has provided no explanation for his conduct other than his strict reliance on rule 76.04(2) and his indication that his client was not prepared to voluntarily continue longer three hours once he was advised that he did not have to. Conducting litigation in this way seems sharp, to say the least.
10Unfortunately, I find that the court does not have the discretion to extend the simplified procedure time limits even when counsel have behaved in his manner. While the rules are to be construed to secure the just determination of the matters in dispute and compliance may be waived in the interest of justice, rule 76.04(2) does not provide the court with leave to extend the time limits, in direct contrast with rule 31.05.1. The court in Gibbons v. York Fire & Casualty Insurance Co. (1997) 47 O.T.C. 200 dealt with a similar issue. At that time, rule 76 permitted no discovery and the defendant brought a motion under rule 2.03 to permit an examination. The court held:
“I do not see that justice is compromised by the streamlined procedures of R.76 … If so, then many parties in many cases under R.76 would want discovery. Neither do I see this as amenable to inherent jurisdiction since the Rules here are quite specific as to this present case coming under the Simplified Procedure and thus there is no gap to be filled by inherent jurisdiction.”
11This is in accord with the policy behind simplified procedure that these matters are to be expediently and cost efficiently determined. As noted in Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 at paragraph 254:
“… the rule is designed to get the parties to trial with a minimum of delay and costs. Thus, one of the key objective of the simplified procedure rule is to limit the extent of pre-trial proceedings and to bring the parties to an early trial conducted pursuant to tailored rules.”
12As a result there remains no time for the defendants to examine the non-parties.
13However, this is not the end of the story. The court cannot sanction the unfairness that will result to the defendants, who were courteous in their treatment of the plaintiff, as one would hope counsel would be.
14The defendants have made every effort to obtain the requested information from the plaintiff and from the non-parties. On issues where the plaintiff said his memory was “a blur”, he was asked to ask his husband for his recollection. While he agreed to do so, his counsel refused the undertaking. When the defendants twice wrote to Don Leask and Alan Hurst to ask if they would be willing to schedule a convenient time to speak to them about the plaintiff’s claim, Mr. Hurst advised that “I received your request to schedule a time to speak about Craig Leask’s claim. We were advised by our lawyer that we are not obligated to do this, so I’d prefer to not schedule a meeting”. Don Leask did not respond.
15Don Leask has provided a three paragraph witness statement. Alan Hurst’s statement is one paragraph long. The statements deal with the alleged misrepresentations concerning the aftercare programme but no other issues raised in the pleadings. The statements do not address the issues of concern that the defendants have raised on this motion.
16But for the expiry of the available time, I would have granted the defendants leave to examine the non-parties under rule 31.10. The information sought is relevant, the defendants have been unable to obtain it from the plaintiff, despite their best efforts to do so, and it would be unfair for them to proceed to trial without having the opportunity to examine the non-parties.
The Information is Not Otherwise Available
17By way of example, when the plaintiff was asked about his emergency room visit on 12 July 2019, he testified that was “a mess” and “not thinking straight”, that his parents and Alan Hurst were helping him with decisions and that Mr. Hurst made the call concerning offered follow up care. Below is the partial exchange about that day from the plaintiff’s examination:
441 Q. … we had a bathroom in the basement with the shower and the basement was carpeted, but under the carpet was concrete and as I came out of the bathroom was heading across the rec room to the staircase, I just fainted and hit my head on the floor.
443 Q. And sorry, and then what do you remember next happening?
A. Basically, being at the hospital ---
444 Q. Sorry, after you faint, what do you remember next happening?
A. It was kind of blurry, because Alan was there, paramedics there and then the next thing I remember was being at the hospital, my parents had come in from Burlington, Alan was there, it was now dark.
455 Q. And according to this [the hospital records of the emergency room visit], you walked in, so you were not brought by ambulance?
A. I guess Alan dropped me then.
456 Q. When you mentioned before waking up and Alan and the paramedics were there, that is not true?
A. It must have been at the hospital then.
457 Q. Well, let me back up. So, I thought you said that you remembered coming to and Alan and the paramedics were there?
A. I do, but now I’m not sure if it was at the house or at the hospital.
458 Q. Are you saying that you were unconscious when Alan took you to the hospital?
A. I think so, there was -- like I was a mess at that point in my life, everything was falling apart, and it was a long time ago. I do remember all these people standing over me.
463 Q. [After review of the hospital note that says the plaintiff slipped getting out of the pool]
A. No, I know I was in the basement, I don’t think I slipped getting out of the pool, I thought I slipped like I thought I fell after I was in the shower, but again it was a long time ago and I know I wasn’t making a lot of sense then. I was, as Alan kept saying was spiraling downward. I thought I was coming out of the shower, but sorry maybe I was coming out of the pool.
466 A. … Again, a lot of that, that day like after falling, I don’t remember a lot.
467 Q. This is completely a different time of day too, this says that Alan got home around noon and found you and thought it was just a shaving wound.
A. Yeah, I do apologize, again a lot of that day is a blur. I could ask Alan.
469 Q. Do you recall telling anybody at the hospital during that emergency room visit that ---
A. -- a lot of people standing over me and seeing my parents and Alan. And I’m not trying to hide anything, I’m just being very honest I don’t -- I know there was a lot going on that day and that period of my life and a lot of it, a lot of it I don’t remember right now. Alan is not here right now, but I can ask him if you want.
470 Q. Well, I would like an undertaking for Alan’s recollections of what happened that day. So, I’m going to ask for that as a formal undertaking.
Mr. Rotondo: I am not going to give an undertaking on a – for a non-party’s information so …
Ms. Wise: You [sic] client is having trouble recalling what happened that day and he’s offering it. So, I’m taking him up on his offer, that’s my request.
Mr. Rotondo: Well, we’re not going to give it to you because it’s a third-party request, he’s not a party to this action.
18This pattern continued for questions in relation to aftercare offered during the emergency visit.
485 Q. The next point in her plan is he is agreeable to a referral to the day hospital program as he strives better in structure, this will encourage him to get back into a routine, increase his socialization and allow him access to psychiatry to adjust medications. Do you recall having a conversation with her about a referral to the day hospital program?
A. Yes, because I did go into the day hospital program.
486 Q. In July of 2019?
A. I thought it was around there, I don’t have the dates.
Ms. Wise: I don’t know Counsel, if you can assist us at all, but I have no record of any day hospital until much, much later into the early part of 2020.
492 Q. Would you understand that a day hospital program, you could go there during the day and that would occupy your day similarly to what you had at the residence?
A. I guess so, again there was so much going on that day and I was a mess to be quite honest, I wasn’t thinking straight I was working with Alan and my parents to help me with decisions. I don’t remember who I talked to or a lot of those details right now to be quite honest.
496 Q. … Did you take any steps to contact the day hospital after you left the emergency department?
A. From what I recall, I think Alan did but there was actually a waiting list to get in from what I recall.
501 Q. … Counsel, I’m going to ask for an undertaking for you to confirm with Alan whether or not he made efforts to get Mr. Leask on a wait list for the day hospital program?
Mr. Rotondo: Yes, I’m not going – it’s a third party so I don’t, I don’t believe I’m required to ask information of a third party, so I’m going to decline.
502 Q. Reference in Mark’ Freedman’s notes from July 17, that Alan and your parents had recommended a day program at Toronto General, but that the suggestion left you felling [sic] humiliated, do you recall that, so this is not North York General as I’m understanding it at least Mark Freedmans’ talking about it as Toronto General and he writes that the suggestion left you feeling humiliated. So, did Alan and your parents encourage you to go to a day program?
A. I don’t know for sure, but I did end up in a day program, but as you said it was later. As I said at that point, I was having Alan make a lot of my decisions, because I was just – I wasn’t capable I was -- literally as I mentioned I was in a worse state at that point than I was before I had gone to Homewood.
The Information Sought is Relevant to the Claim
19The claim concerns the aftercare the plaintiff says he was promised by Homewood, including care by a psychiatrist, and that he alleges was not provided. When asked about these representations that he alleges were made to him by phone, the plaintiff testified that Alan Hurst was usually on those calls with him because he had to make sure he was hearing the right things. The plaintiff further stated that Mr. Obermeyer of Homewood specifically used the word “psychiatrist” when discussing aftercare and did so in the presence of Alan Hurst and Don Leask.
20The plaintiff alleges that the lack of appropriate aftercare caused him anxiety to the point he fell on July 12. Paragraph 17 of the claim details the fall, Alan Hurst’s discovery of the plaintiff and his treatment in hospital that day. By his own admission, the plaintiff has little and then conflicting recollections of the events of that day and comments that Alan Hurst would have better information. This includes a notation that he could have access to a psychiatrist from the day programme offered to him that day and that he thought Alan Hurst may have called to put him on the wait list. This conversation goes not only to the availability of a psychiatrist through another source but also to mitigation by attending recommended after care programmes.
21These questions touch on relevant issues – the representations that the plaintiff says the defendants made in the presence of his father, his husband and himself when they were considering his admission; details around the plaintiff’s hospital attendance on 12 July 2019, at which both Alan Hurst and Don Leask were present; subsequent aftercare offered to the plaintiff and the efforts made to access that care.
It would be Unfair for the Defendants to Proceed to Trial without this Information
22The defendants asked for the information by way of undertaking and were refused by counsel, despite the plaintiff’s willingness to provide it, on the basis that the plaintiff was not required to ask non-parties for any information.
23While there are good policy reasons behind rule 76, it should not be used to permit trial by ambush. The defendants may move on all refusals. They may bring the motion before me unless they are advised by the motions scheduling office that to do so would cause unnecessary delay in having the motion heard. If there are scheduling issues, they may reach out to my assistant trial co-ordinator at Christine.Meditskos@ontario.ca.
24They may also move for particulars of the witness statements of Alan Hurst and Don Leask, including information on the representations, the hospital attendance and the aftercare suggested. Alternatively, as counsel for the plaintiff notes, the defendants may request that judicial officer presiding at the pre-trial conference deal with the timing of delivery and content of any witness’ written evidence in chief so that the defendants are not surprised at trial. (See Davies v. Corporation of the Municipality of Clarington 2010 ONSC 6103 at paragraph 26).
Costs
25While the defendants did not entirely succeed on their motion, I find they are entitled to some costs. The unfortunate situation was entirely due to the plaintiff’s omission to state at the outset of his client’s examination that, despite having been permitted to examine the defendants for over five hours several weeks prior, he was not prepared to extend the same professional courtesy to the defendants. Had he done so, the defendants would have constructed their examination differently and, no doubt, would have spent less time assisting the plaintiff in accessing documents through screen sharing, etc.
26If the parties cannot agree on the quantum of costs by 22 October 2021, they may file a costs outline and a three page costs submissions to Ms. Meditskos.
27There will be no costs either for or against Dr. Lalonde as his motion was not before me.
Associate Justice Jolley
Date: 22 September 2021