COURT FILE NO.: 1862/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SARA KELLESIS, Plaintiff
AND:
PARAMED INC., Defendant
BEFORE: TRANQUILLI J.
COUNSEL: Michael Peerless, Matthew Baer, Emily Assini, for the Plaintiff
Douglas Wallace, Sean Miller, Natasha Racco, for the Defendant
HEARD: July 12, 2021
ENDORSEMENT
Introduction
1The defendant Paramed Inc. moves for partial summary judgment dismissing certain claims in a negligence action brought against it pursuant to the Class Proceedings Act, 1992, S.O. 1992, c.6. The representative plaintiff raises an initial objection.
2At issue is whether the defendant should be granted leave pursuant to r. 39.02 to admit evidence of an expert opinion in support of its motion. The defendant obtained the opinion after cross-examination of the representative plaintiff on her affidavits and in non-compliance with the court-ordered timetable agreed to by the parties.
3The defendant submits the evidence ought to be admitted as the evidence from the plaintiff’s cross-examination was necessary for the expert’s opinion and is relevant to issues raised on the plaintiff’s examination.
4The plaintiff submits the court should not grant leave to admit this evidence. There was no need for the defendant to wait until after examination to retain an expert or to notify the plaintiff of this intention. The defendant also failed to seek an amendment of the court-ordered timetable. The plaintiff will suffer non-compensable prejudice if the opinion evidence is admitted.
Background
5In July 2018, the Middlesex-London Health Unit inspected a clinic operated by the Defendant Paramed Inc. The health unit determined the defendant’s sterilization practices did not meet infection prevention standards and posed a risk of communicable disease transmission to clinic patients. The health unit determined the risk of infection was low; however, the unit required the defendant to notify its clinic patients from between 2008 and 2018 of the risk and to recommend these patients consult with their healthcare providers to consider testing for communicable diseases.
6The representative plaintiff Ms. Kellesis was one such patient who was notified by the defendant. In September 2018 she commenced this action against Paramed pursuant to the Class Proceedings Act. She alleges Paramed owed her a duty of care. She claims the breach of that duty caused her and other class members to suffer loss including invasion of bodily integrity, the inconvenience of testing, fear for their health, severe mental and/or emotional distress, psychological trauma, and/or nervous shock.
7By consent order of September 22, 2020, I certified the action pursuant to the Class Proceedings Act, with Ms. Kellesis as the representative of the class members. Class members are divided into two subclasses: 1. Infected Persons; and 2. Uninfected Persons. The common issues are whether the class members are each entitled to damages, whether such damages can be determined on an aggregate basis and should punitive damages be awarded.
The Summary Judgment Motions
8Both parties immediately contemplated summary judgment motions following certification. At a case management conference on October 27, 2020, I endorsed the parties’ proposed timetable for the completion of the steps in advance of these motions: 1. To exchange summary judgment motions by December 15, 2021; 2. Responding materials to be exchanged by January 15, 2021; 3. Any reply materials by February 15, 2021; 4. Cross-examination on affidavits completed by March 15, 2021; 5. Undertakings satisfied by April 15, 2021; and 6. Factums exchanged in May and June 2021. The motions were scheduled to be argued before me as the case management judge on July 12, 2021.
9By consent order on July 12, 2021, I granted the plaintiff’s summary judgment motion, with findings on the duty of care, the applicable standard of care and the manner in which the defendant breached the standard of care.
10The merits of the defendant’s summary judgment motion have not been determined given the plaintiff’s preliminary objection.
11The defendant’s motion seeks partial summary judgment dismissing the claims of the Uninfected Persons subclass. The defendant contends the representative plaintiff Ms. Kellesis has not suffered injury that meets the threshold test for establishing a compensable mental injury at law. Her affidavits outline worry, frustration and anxiety about the exposure to improper sterilization practices. Cross-examination on her affidavits in March 2021 confirmed her blood test results were negative, that her anxiety diminished after receipt of the results, that she did not seek further medical treatment and was not prescribed medication. Finally, she continued to work full-time, socialize and care for her family.
12By supplementary motion record dated May 5, 2021, the defendant then served the plaintiff with the affidavit and opinion of psychiatrist Dr. Peter Williamson dated April 28, 2021. Based upon his review of the plaintiff’s affidavits and cross-examination, Dr. Williamson’s view was there was no indication the plaintiff suffered a mental disorder which was associated with clinically significant distress or impairment in social, occupational or other important areas of functioning.
13The plaintiff objected to the filing of this opinion in support of the defendant’s summary judgment motion as being in non-compliance with r. 39.02 and the court-ordered timetable. The plaintiff declined to cross-examine Dr. Williamson in light of its position that the evidence was not properly before the court.
14The defendant’s summary judgment motion therefore did not proceed as scheduled pending my determination of this threshold issue as to the admissibility of Dr. Williamson’s opinion.
Issues
15The parties agree the test for granting leave under r. 39.02 is set out in First Capital Realty Inc. v. Centrecorp Management Services Ltd., 2009 CarswellOnt 6914 (Div. Ct.) at para. 13, although they differ on its application. The criteria for consideration of this threshold issue to the defendant’s summary judgment motion are:
Is the evidence relevant?
Does the evidence respond to a matter raised on the cross-examination, not necessarily for the first time?
Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?
Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?
Analysis
16There has been some debate as to whether this test for leave is a very “high threshold” such that leave should be “granted sparingly”: see, for example Shah v. LG Chem Ltd., 2015 ONSC 776 at 23. In First Capital, supra at para. 14, the Divisional Court advised a flexible, contextual approach is to be taken in assessing the criteria relevant to r. 39.02, having regard to the overriding principle in r. 1.03 that the rules are to interpreted liberally to ensure a just, timely resolution of the dispute. The latter appears to be the prevailing approach, as noted in Johnson v. North American Palladium Ltd., 2018 ONSC 4496 at paras. 18-19.
17I now turn to a consideration of these criteria. I note these factors tend to invite some repetition of the evidence and applicable considerations.
- Is the evidence relevant?
18There seems to be no debate that Dr. Williamson’s opinion is relevant to the defendant’s contention the representative plaintiff, as an Uninfected Class member, does not have a mental health injury compensable at law. This was not the focus of the plaintiff’s objection to the proposed evidence.
19In Saadati v. Moorhead, 2017 SCC 28, the Supreme Court of Canada explained a finding of legally compensable mental injury need not rest, in whole or in part, on the plaintiff proving a recognized psychiatric illness. However, it is not proven by the existence of mere psychological upset. Claimants must show the disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society. That said, the plaintiff and defendant can each call expert evidence to assist in determining whether the requisite mental injury has been shown: Saadati, supra at paras. 2, 19, 37, 38.
20I therefore accept the defendant’s submission the opinion evidence is relevant.
- Does the evidence respond to a matter raised on the cross-examination, not necessarily for the first time?
21The defendant submits the plaintiff’s affidavits omitted evidence that would address the factors highlighted in Saadati, supra that are relevant to establishing a compensable mental injury. The defendant claims there was no information as to whether she was infected, whether she received any treatment, the duration of any psychological symptoms and how those symptoms affected her vocational and avocational activities. Cross-examination therefore focused on eliciting answers relevant to that assessment. This evidence did not exist until after cross-examination. Dr. Williamson’s opinion therefore responded to matters raised on the cross-examination.
22The plaintiff submits the defendant’s argument is fatal to its request for leave. The defendant’s argument is tantamount to admitting it did not have the evidence for summary judgment when it brought the motion and has improperly split its case. The rule about the delivery of subsequent affidavits should not be used as a mechanism for correcting deficiencies in the motion materials. A party cannot see how it makes out on cross-examination and then determine whether it needs to bolster its case by reply evidence: Johnson, supra at para. 17. It was open to the defendant to obtain expert evidence before the cross-examinations proceeded.
23The defendant responds that its use of the expert opinion is not an admission there was no evidence on which to initially bring the motion. It can put its best foot forward without the opinion. It is the plaintiff’s onus to prove a compensable mental injury. The opinion was proffered to enhance or compliment the evidence already on record.
24The defendant’s argument nevertheless overlooks the problem that it has split its case. This concern may have been somewhat attenuated had the intention to use expert opinion been raised during the timetabling discussion between counsel, or in the context of seeking leave to amend the timetable. I also accept the plaintiff’s submission it was open to the defendant to have obtained expert evidence in advance of the cross-examinations. The defendant’s theory well before cross-examinations was the representative plaintiff did not have any evidence of a compensable mental injury: Rescon Financial Corporation v. New Era Development (2011) Inc., 2017 ONSC 4081 at para. 32. I accordingly question whether it is correct to characterize this issue as a matter raised in the cross-examination.
- Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?
25The defendant submits that leave to file the opinion would not result in non-compensable prejudice. The defendant served the opinion in early May 2021 and offered the plaintiff an opportunity to cross-examine Dr. Williamson. The plaintiff declined the opportunity and did not propose any other possible remedy to late service of the report.
26The plaintiff contends it will suffer non-compensable prejudice if leave to file the opinion is granted. It is entitled to rely on the timetable and the Rules of Civil Procedure. The plaintiff had no advance notice of the defendant’s intention to rely on expert opinion and was not in a position to conduct a cross-examination and to respond to new evidence served well outside the timetable and only several weeks before the motion was to be argued. The Uninfected Members of the class risk non-compensable prejudice by dismissal of their claims if this opinion is admitted.
27I acknowledge the plaintiff was given an opportunity to cross-examine the expert. However, I accept it was unreasonable to expect the plaintiff would be in a position to conduct a cross-examination and file responding evidence, including possibly a responding expert opinion, with no advance notice and relatively little time in which to complete those steps in advance of the scheduled motion.
28In considering the presence of non-compensable prejudice, the court could of course consider whether adjournment, terms or costs would mitigate the issues. However, of chief concern is the effort that went into planning these summary judgment motions. The parties in this class proceeding agreed to a timetable, which became a court-ordered schedule by my endorsement in October 2020. The parties can be taken to have expected the rule against case-splitting to apply because they agreed to a formal timetable: Johnson, supra at 52.
- Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?
29At the risk of being repetitive, I cannot accept that the defendant has provided a reasonable or adequate explanation for not including the opinion evidence before cross-examinations. I do not find any bad faith on the part of the defendant. However, the lack of notice to the plaintiff and failure to contemplate expert opinion in the timetable or to seek leave to promptly amend the timetable render the defendant’s explanations inadequate.
30In particular, I note the defendant’s position that although relevant, the expert opinion is not necessary to its position on the summary judgment motion, given the principles enunciated in Sadaati, supra. The defendant advised it is prepared to proceed with the motion without the opinion since the onus is also on the plaintiff to put her best foot forward.
31In balancing all these circumstances, I am therefore not persuaded that a just and timely resolution of this issue means leave should be granted for the defendant to file the opinion of Dr. Williamson on its summary judgment motion.
32The defendant’s motion for leave to file the expert opinion of Dr. Williamson on its partial summary judgment motion is dismissed. Costs of this motion will be addressed following disposition of the summary judgment motion.
33I appreciate that the parties now need to revisit the balance of the court-ordered timetable as well as any other procedural issues that may have arisen since argument.
34I accordingly ask the counsel to contact the trial coordinator to request a case management conference be convened with me in order to review amendments to the timetable. I leave it to the parties’ preferences as to whether we will conduct this by conference call or Zoom.
Justice K. Tranquilli
Date: October 14, 2021