COURT FILE NO.: CV-20-00640812-0000
MOTION HEARD: 20210803
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NIKKI-NANCY KAMATEROS, Plaintiff
AND:
WOMEN’S COLLEGE HOSPITAL, DR. DIMITROIS GIANNOULIAS, Defendants
BEFORE: ASSOCIATE JUSTICE R. FRANK
COUNSEL: L. Ostler and L. Chitapain (student-at-law), Counsel for the Defendant/Moving Party, Dr. Dimitrois Giannoulias
J.D. Ekpenyong, Counsel for the Plaintiff/Responding Party
E. Sanderson, Counsel for the Defendant, Women's College Hospital
HEARD: 03 AUGUST 2021
REASONS FOR DECISION
[1] This is a motion by the Defendant, Dr. Dimitrois Giannoulias (“Dr. Giannoulias” or “the Defendant”) to strike certain paragraphs from the Statement of Claim in this medical negligence action. Specifically, Dr. Giannoulias, takes issues with three categories of pleadings: (i) allegations regarding discipline proceedings before the College of Physicians and Surgeons of Ontario (the “CPSO”), (ii) allegations of prior negligence, and (iii) allegations of breach of fiduciary duty.
[2] For the reasons that follow, the motion is granted in part.
FACTS
[3] This is a medical negligence action with respect to a dilation and curettage abortion performed on the Plaintiff by Dr. Giannoulias at Women’s College Hospital (the “Hospital”), which is also a defendant.
[4] The pleadings in the Statement of Claim include the following:
a) Dr. Giannoulias has a track record of problems in surgeries involving other patients including allegations that:
(1) Dr. Giannoulias has caused numerous surgical mishaps and complications in many of the surgeries he performed on his other patients;
(2) Dr. Giannoulias performs unnecessary surgeries on patients; and
(3) Many of the patients who undergo surgery with Dr. Giannoulias require further surgical procedures to repair the damage and injury inflicted during the surgeries performed by Dr. Giannoulias.
b) Dr. Giannoulias breached his fiduciary duties by:
(1) Failing to advise the Plaintiff of his clinical deficiencies and surgical complication rates (including a history of surgical complications arising from haemorrhages, punctures, or improper incisions to nearby anatomical structures);
(2) Failing to seek a second opinion or to make a referral; and
(3) Failing to advise of his past history of discipline proceedings before the CPSO and complaints to the Hospital.
[5] The Plaintiff has served on the Defendants, but has not yet filed, a proposed amended Statement of Claim (the “Proposed Amended Statement of Claim”). The Proposed Amended Statement of Claim maintains the impugned paragraphs from the Statement of Claim and includes additional allegations with respect to prior negligence, complaints, and legal proceedings, including that Dr. Giannoulias:
a) Has a history of negligent treatment of his patients;
b) Is extremely prone to making mistakes during surgery;
c) Has been the subject of many complaints to the Hospital; and
d) Has faced many medical malpractice proceedings stemming from his incompetence, which were settled outside of court.
POSITION OF THE PARTIES
[6] Dr. Giannoulias, takes the position that the allegations regarding CPSO discipline proceedings are unspecified and are incapable of proof pursuant to section 36(3) of the Regulated Health Professions Act. Dr. Giannoulias argues that these allegations are impermissible and ought to be struck pursuant to Rule 25.11 because any evidence to support them is prohibited by statute. Although the Plaintiff initially disputed the Defendant’s position with respect to the discipline allegations, at the hearing of the motion the Plaintiff agreed to the removal of the pleadings with respect to discipline proceedings before the CPSO. As a result, those pleadings are no longer in issue on this motion and are to be struck out.
[7] With respect to the pleadings of prior negligence, Dr. Giannoulias asserts that the allegations are unspecified and/or unrelated such that they have no probative value and may prejudice his right to a fair trial of the action. On this basis, Dr. Giannoulias submits that those allegations ought to be struck pursuant to Rule 25.11.
[8] Dr. Giannoulias also seeks an order striking the impugned allegations of breach of fiduciary duty, namely the allegations that he had a track record of incompetence that ought to have been disclosed. Dr. Giannoulias asserts that because the Plaintiff’s pleading is devoid of any material facts to support the existence of a track record of incompetence, there are no material facts to support the allegations of breach of fiduciary duty or the related exemplary and punitive damages claimed. On this basis, Dr. Giannoulias submits that the paragraphs relating to allegations of breach of fiduciary duty ought to be struck pursuant to Rule 25.11.
[9] The Plaintiff’s position is that the allegations of prior negligence meet the applicable test for the admission as similar fact evidence. The Plaintiff also asserts that certain of the impugned pleadings are permissible because they relate to Dr. Giannoulias’ knowledge of his own deficiencies. The Plaintiff argues that she does not seek to prove in the instant action that Dr. Giannoulias’ care was negligent through any evidence of specific prior negligence, but rather that the allegations of his specific past negligence are pled to support allegations of breach of fiduciary duty and the punitive damages that are claimed. The Plaintiff alleges that those fiduciary duties included a duty for Dr. Giannoulias to disclose his deficiencies in surgical skill, among other duties. The Plaintiff also argues that there is a real and substantial nexus between the Plaintiff’s case and the pleadings relating to one of Dr. Giannoulias’ prior patients, Ms. Benedetto, which allegations have been included in a Proposed Amended Statement of Claim.
THE LAW
[10] In assessing the adequacy of pleadings, the court must bear in mind that the purposes of pleadings are as follows:
To define clearly and precisely the questions and controversy between the litigants;
To give fair notice of the precise case which is required to be met and precise remedies sought; and
To assist the court in its investigation of the truth of the allegations made.
(See Blunt v Vaidyanathan, 2018 ONSC 3243, at para. 32)
[11] Rule 25.06(1) provides that every pleading is required to contain a concise statement of the material facts on which the party relies, but not the evidence by which those facts are to be proven. Rule 25.06(1) requires the disclosure of material facts that establish the constituent elements of the claim or defence. Rule 25.06 mandates a minimum level of material fact disclosure. If the level is not reached, the remedy is a motion to strike. (See Blunt, at paras. 40, 42)
[12] Rule 25.11 allows the Court to strike out any part of a pleading that may prejudice or delay the fair trial of an action, with or without leave to amend. A pleading that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations, should be struck out as scandalous. If the plaintiff does not, at the time of pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim. (See Blunt, at paras. 43-44, 47)
[13] A party ought not to frame a pleading broadly to allow for an overbroad examination for discovery. Allowing improper pleadings to stand will lead to fishing expeditions and prolonged discovery. (See Woods (Litigation guardian of) v. Jackiewicz, 2013 ONSC, at para. 18)
[14] As noted in Blunt: “The essence of a properly drawn pleading is clarity and disclosure. With respect to a statement of claim in particular, the defendant must know from the face of the record precisely what case is to be met. The defendant must not be left to speculate or to guess the particulars of the case alleged against it and the remedy sought. Material facts must be pleaded with sufficient certainty to enable the defendant and the court at trial to identify the issues to be decided. The degree of detail and precision required can be determined only on a case-by-case basis.” (See Blunt, at para. 35)
Pleading of Prior Negligence
[15] Similar fact evidence is presumptively inadmissible at trial because it carries two types of unfair prejudice: (i) reasoning prejudice (the concern that the trier of fact will be confused by the multiplicity of incidents and diverted from the real task of determining liability and damages on the pleaded incidents); and (ii) moral prejudice (the danger that the trier of fact may find a defendant liable not for what he did on this occasion but because he is a bad person). (See R. v Handy, 2002 SCC 56)
[16] In Handy, the Supreme Court outlined the following factors that are to be considered when deciding whether to admit similar fact evidence:
Proximity in time of the similar acts;
Extent to which the other acts are similar in detail to the charged conduct;
Number of occurrences of the similar acts;
Circumstances surrounding or relating to the similar acts;
Any distinctive features unifying the incidents;
Intervening events;
Any other factor which would tend to support or rebut the underlying unity of the similar acts.
(See Handy, at para. 82)
[17] In the context of a civil action, the relevant principles to apply when a party seeks to plead allegations of similar facts are as follows:
Such allegations are proper as long as the added complexity resulting therefrom does not outweigh the probative value;
Similar acts are not probative if there is not a sufficient degree of similarity;
The similarity must be provable without prolonged inquiry, although inevitably, the litigation process will be lengthened to some extent as a result of proper similar fact allegations;
The added complexity should not lead to undue oppression or unfairness;
If a system or scheme of conduct is alleged, the past similar acts must have sufficient common features to constitute the system or scheme.
(See Woods, at para. 10, citing Prism Data Services Lid. v. Neopost Inc. 2003 CarswellOnt 2814)
[18] Parties may only reference similar fact evidence in their pleadings where there is a “real and substantial nexus or connection” between the allegations and the facts relating to previous matters which are sought to be relied on in evidence. Evidence of similar results which do not have sufficient common features to constitute a system will not pass the probity versus prejudice test. (See Williams v Wai-Ping, [2005] O.J. No 1940 (S.C.J.), at para. 15; aff’d [2005] O.J. No. 6186 (Div. Ct.))
[19] In Woods, the Court held that “prior acts of negligence are not probative in the absence of a high degree of similarity and cannot be used to prove negligence in the claim before the court.” (See Woods, at para. 11)
Pleading Breach of Fiduciary Duty
[20] A party may allege breach of fiduciary duty (and may seek punitive damages) based on pleadings of prior acts of negligence, failure to disclose prior errors or complaints, failure to disclose deficiency in medical skills, or failure to refrain from performing surgical procedures or doing so only when supervised. However, such allegations will be struck under Rule 25.11 in the absence of sufficient material facts pleaded in support of the alleged breach of fiduciary duty. (See Blunt, at paras. 50-58; J.O. v Dr. L, 2018 ONSC 4953, at paras 90-95)
[21] In Woods, Murray J. noted as follows with respect to allegations of breach of fiduciary duty against physicians:
The defendant concedes that a pleading for breach of fiduciary duty can succeed and not merely be a dressed-up negligence claim in some circumstances. For example, the defendant says that a breach of fiduciary duty could arise in circumstances where a physician had knowledge of the inadequacies of his skill to perform the procedures and to provide care for his patient and failed to take steps to remediate his skills. This is consistent with the finding of the Divisional Court in Williams v. Wai-Ping, [2005] O.J. No. 6186. In commenting on the alleged claim for breach of fiduciary against the doctor, the Divisional Court in Williams held that:
We agree with MacKinnon J. that the impugned allegations are not "dressed up negligence claims". There is a difference, although perhaps a subtle and novel one. It is not alleged that Wai-Ping failed to inform the plaintiffs of the material medical risks of the procedures he performed. See, Reibl v. Hughes, [1980] 2 S.C.R. 880 (S.C.C.). Rather, it is alleged that he had knowledge of the inadequacies of his skills to perform the procedures and to provide medical care for his patients, but failed to disclose this, failed to take any steps to remediate his skills and failed to obtain second opinions or supervision for his surgical procedures. These allegations seek to expand the physician's obligations with respect to informed consent, but it is not plain and obvious that they cannot succeed as claims for breach of fiduciary duty rather than as claims based on contractual obligations or negligence. This is a matter for the trial judge. See, McDonald-Wright (Litigation Guardian of) v. O'Herlihy (2005), 75 O.R. (3d) 261 (Ont. S.C.J.) at 280.
(See Woods, at para. 22)
[22] However, as noted above, the breach of fiduciary claims must be supported by sufficient pleadings of the material fact. For example, there must be sufficient material facts to link the prior complaints or claims to the physician’s knowledge of lack of competence with respect to the procedure in issue. In Wai Ping, the plaintiff pleaded past negligence that was “strikingly similar” to the conduct at issue. As a result, the claim for breach of fiduciary duty based on prior negligence was founded on a sufficient pleading of material facts. (See Mackinnon J.’s decision in Wai-Ping, at paras. 7‑9, 15, 17 and 19(d) and J.O. v. Dr. L. at 67, 70 and 82-94)
Principles with respect to motions to strike under Rule 21
[23] Dr. Giannoulias’ materials and certain of the cases he relies on refer to Rule 21.01(1)(b) and the applicable principles thereunder. This includes analysis as to whether there is a duty on a doctor to disclose previous medical errors, complaints and lawsuits. For example, in Woods, at paragraph 26 and J.O. v Dr. L., at paragraphs 57-60, the Court held that a physician has no duty to disclose past medical errors or complaints and that a claim that the failure to make such disclosure is a breach of the doctor’s fiduciary obligation is not tenable in law and can be struck out under Rule 21.01(1)(b). However, motions under Rule 21.01(1)(b) are not within my jurisdiction as an Associate Judge, and the motion to strike before me relies on Rule 25.06 and Rule 25.11. In view of my limited jurisdiction, my analysis below of whether to strike the impugned paragraphs of the Statement of Claim and whether to allow the impugned paragraphs of the Proposed Amended Statement of Claim is based on the applicable principles under Rule 25.06 and Rule 25.11 and not the applicable principles under Rule 21.01(1)(b).
APPLICATION OF THE LAW TO THE FACTS
[24] Dr. Giannoulias submits that the Plaintiff’s allegations relating to his alleged history of negligent treatment of prior patients, surgical errors, complaints to the Hospital and medical negligence lawsuits violate the prohibition against pleading similar fact evidence and do not rise to a level of exceptionality that would justify saving them from being struck. In his notice of motion, Dr. Giannoulias seeks an order striking the following paragraphs from the Statement of Claim: Paragraph 22(vii); Paragraph 22(ix); Paragraph 23(viii); Paragraph 24(1)(b); Paragraph 24(2)(ii); Paragraph 24(3); Paragraph 28(2); and Paragraph 28(3)(ii).
[25] Dr. Giannoulias also submits that the allegations in paragraphs 22, 23 and 24 of the Proposed Amended Statement of Claim are improper and should not be allowed.
[26] As noted above, the Plaintiff has agreed that Paragraph 24(2)(ii) and Paragraph 28(3)(ii) shall be struck out.
[27] The Plaintiff submits that the impugned allegations of prior errors, negligence and complaints meet the applicable test for the admission of similar fact evidence. As noted above, the Plaintiff also asserts that the impugned pleadings are permissible because they relate to Dr. Giannoulias’ knowledge of his own deficiencies and are permissible pleadings in support of allegations of breach of fiduciary duty (including Dr. Giannoulias’ duty to disclose his deficiencies in surgical skill) as well as the Plaintiff’s claim for punitive damages.
[28] My analysis below considers each of the impugned paragraphs. Given the applicable tests, certain paragraphs are dealt with in connection with the Plaintiff’s negligence claims, certain are considered in connection with the Plaintiff’s claims that Dr. Giannoulias breached his fiduciary duties, and certain are considered in connection with both claims of negligence and claims of breach of fiduciary duty.
Paragraph 22(vii)
[29] Paragraph 22(vii) reads as follows:
(vii) He provided care to Ms. Kamateros when he knew or ought to have known that the volume of cases which he accepted was beyond his capabilities, resulting in frequent error;
[30] In this paragraph, the phrase “resulting in frequent error” is a bald allegation related to past conduct and it should be struck. This portion of the paragraph references unidentified and unspecified prior conduct. There is no pleading of any similarity or other basis to connect the alleged frequent errors to the current case. As a result, there would be no probative value and the pleading does not overcome the general principle that similar fact evidence is inadmissible. Further reasons are outlined below for striking this portion of paragraph 22(vii), as well as the parts of paragraphs 22(ix), 24(3), 28(2) that I identify below as ordered to be struck out.
[31] The balance of paragraph 22(vii) is not an allegation about prior negligence/similar facts, and I decline to strike it on that or any other basis.
Paragraph 22(ix)
[32] Paragraph 22(ix) reads as follows:
(ix) He failed to inform Ms. Kamateros that his relevant clinical and surgical skills were deficient, and that he had caused numerous surgical mishaps and complications in many of the surgeries he had performed on his other patients;
[33] For this paragraph, I only strike the phrase “and that he had caused numerous surgical mishaps and complications in many of the surgeries he had performed on his other patients”. The reasons for doing so are the same as those outlined with respect to the portions of paragraph 22(vii) that I have ordered to be struck out.
[34] The first portion of paragraph 22(ix), that Dr. Giannoulias “failed to inform Ms. Kamateros that his relevant clinical and surgical skills were deficient”, is not a pleading of prior negligence and ought not to be struck on that basis. In this regard, I note that the Statement of Claim contains numerous other references to deficient clinical and surgical skills (see, for example, 22(i), (x) and (xi), 23(ii) and (v), 24(2) and 28(3)), and Dr. Giannoulias does not seek to have those struck out. I return below to various pleadings in the Statement of Claim regarding alleged deficiencies in skill and incompetence when I consider whether the impugned paragraphs relating to breach of fiduciary duty should be struck out.
Paragraph 24(3)
[35] Paragraph 24(3) reads as follows:
(3) Dr. Giannoulias failed to disclose that he had made errors in his clinical and surgical management of her care, including, and without limitation, he failed to advise Ms. Kamateros that:
(i) many of his surgical cases involve complications including but not limited to haemorrhages and/or punctures and/or improper incisions to nearby anatomical structures such as the bowel, uterus, bladder, vaginal wall, etc;
(ii) many of his surgical cases are unnecessary since options other than surgery have not been adequately considered and/or explored;
(iii) many of his surgical cases result in post-operative infections, haemorrhages, and other complications;
(iv) many of his surgical cases involve serious injuries and damage to his patients; and,
(v) many of the patients who undergo surgery with Dr. Giannoulias require further surgical procedures to repair the damage and injury inflicted during the surgeries performed by Dr. Giannoulias.
The entire paragraph 24(3) is struck out other than the opening part alleging that “Dr. Giannoulias failed to disclose that he had made errors in his clinical and surgical management of her care”. This is a direct allegation of errors made with respect to the care of the Plaintiff and not an allegation of prior negligence.
Paragraph 28(2)
[36] With respect to paragraph 28(2) of the Statement of Claim, the following is a mark-up of the parts of the paragraph that I order to be struck out as improper pleadings of prior negligence/similar facts (i.e. those portions that refer to lawsuits and patient and other complaints). Paragraph 28(2) reads as follows, with my mark-up of the portions to be struck out:
(2) at all material times, they knew or ought to have known of Dr. Giannoulias’ lack o knowledge and deficiencies, high complication rates, multiple lawsuits and patient and other complaints. Ms. Kamateros did not know and had no way of knowing about Giannoulias’s deficiencies, high complication rates, lawsuits and patient and other complaints. Notwithstanding their knowledge of the deficiencies, complication rates, lawsuits and complaints, the Hospital and the Administrators failed to:
(i) warn Ms. Kamateros of Giannoulias’s deficiencies and/or his complication rates and/ or the fact that the Hospital was in receipt of numerous patients and other complaints;
(ii) take any or sufficient steps to ensure that Dr. Giannoulias remediated his deficiencies and complication rates prior to treating Ms. Kamateros;
(iii) ensure Ms . Kamateros was provided with the opportunity to obtain a second opinion with respect to Dr. Giannoulias’s treatment plan; and/or
(iv) ensure that Dr. Giannoulias referred Ms. Kamateros to another gynaecologist.
The reasons for striking these portions of paragraph 28(2) are the same as those outlined above with respect to the portions of paragraph 22(vii) that I have ordered to be struck out. However, for the reasons set out below in my reasons dealing with pleadings tied to claims for breach of fiduciary duty, I decline to strike the balance of paragraph 28(2).
Paragraphs 22, 23 and 24 of the Proposed Amended Statement of Claim
[37] Paragraphs 22, 23 and 24 of the Proposed Amended Statement of Claim are all improper pleadings of prior negligence/similar facts. The proposed pleadings are disallowed for the same reasons as those outlined above with respect to the portions of paragraph 22(vii) that I have ordered to be struck out.
Further reasons for striking the portions of the impugned pleadings identified above
[38] With respect to the pleadings referenced above that I have ordered to be struck out, I accept Dr. Giannoulias’ submission that those impugned allegations lack the required specificity to stand. I also accept Dr. Giannoulias’ submission that like the plaintiff in Woods, and quite unlike the plaintiff in Wai-Ping, the Plaintiff here does not articulate a clear nexus between the medical procedure at issue (a therapeutic abortion) and the impugned similar fact evidence I have ordered to be struck out (which relates only to surgical procedures generally). There is no basis to conclude that allegations of past negligence for “any” surgical procedure are similar to the matters at issue in this claim. Simply put, the similar fact allegations made by the plaintiffs are entirely lacking in the particulars needed to demonstrate the necessary similarity of the allegations of prior conduct to the subject matter of this action. As a result, they provide little or no basis to assess their probative value and “I cannot be satisfied that the prejudice resulting from the complexity created by the similar fact allegations does not outweigh their probative value”; see MacNeil, at para. 53, 55-57.
[39] In Woods, the Court held that broadly framed pleadings that reference similar fact evidence can “lead to fishing expeditions and extensive prolongation of discovery” and should be discouraged. I accept Dr. Giannoulias’ submission that, in their current state, the impugned pleadings that I have ordered to be struck out would give the Plaintiff a license to carry out an overly broad review of Dr. Giannoulias’ prior practice while adding to the length, cost, and complexity of both the discovery process and trial.
[40] The Plaintiff argues that the similar fact pleadings are saved by the pleadings included in the Proposed Amended Statement of Claim, including those relating to one of Dr. Giannoulias’ prior patients, Ms. Benedetto. The Plaintiff submits that the proposed amended pleading establishes the necessary real and substantial nexus between the Plaintiff’s case and Dr. Giannoulias’ prior negligence. I do not accept this argument for several reasons. First, the procedure in this action (a therapeutic abortion) is different than the one alleged in the pleading with respect to Ms. Benedetto (a hysterectomy). I also note that the two patients, Ms Benedetto and the Plaintiff, were treated by Dr. Giannoulias many years apart, i.e. in 2003 for Ms. Benedetto versus 2020 for the Plaintiff. Further, the evidence indicates that the Ms. Benedetto’s claim did not even relate to the hysterectomy procedure itself but rather was a claim relating to alleged negligence that led to a fall by Ms. Benedetto during a post-operative follow-up examination in Dr. Giannoulias’ office. In addition, the evidence indicates that the allegations with respect to Ms. Benedetto are unproven, as the matter never went to trial. In summary, the proposed added pleadings including the pleading relating to Ms. Benedetto does not demonstrate sufficient similarity and common features to pass the probity versus prejudice test; see Wai-Ping (Mackinnon J.’s decision), at para. 15; Woods, at para.11.
[41] As noted above, the Plaintiff also asserts that the impugned pleadings are permissible because they are not asserted to prove that Dr. Giannoulias’ care of the Plaintiff was negligent through evidence of specific prior negligence, but rather to support allegations of breach of fiduciary duty and the claims for punitive damages. Specifically, the Plaintiff asserts that they are permissible pleadings because they relate to Dr. Giannoulias’ knowledge of his own deficiencies.
[42] For the reasons outlined below, I do not accept this argument as it relates to the impugned pleadings noted above that I have ordered to be struck out. The unparticularized allegations of prior complaints, lawsuits, surgical mishaps and frequent errors are not proper pleadings in support of fiduciary duty claims because they are not supported by the necessary material facts; see, for example, MacNeil, at paras. 50-51; J.O. v Dr. L., at para. 92. However, as explained below, I find that certain of the other impugned pleadings (which are not identified above as pleadings to be struck out), including some of those pled in connection with the negligence claims, are proper pleadings because they are tied to the fiduciary duty claims of the Plaintiff and supported by sufficient pleadings of material fact. These are dealt with in the next section of my reasons.
Allegations in support of claims for breach of fiduciary Duty
[43] In Williams v. Wai-Ping, the Divisional Court upheld Mackinnon J.’s finding that the general rule prohibiting the pleading of prior similar facts did not apply because the purpose of the pleading was not to prove the negligent acts giving rise to the claim, but to support the claims of breach of fiduciary duty and punitive damages. However, such pleadings can only be maintained if they include the pleading of sufficient material facts to support the specific fiduciary duty claim, and fiduciary duty claims that are not supported by sufficient material facts will be struck out. (See, for example, Blunt and MacNeil)
[44] Dr. Giannoulias cites Wai-Ping as an example of what is required for a proper pleading of past conduct connected to a claim for breach of fiduciary duty, and notes that in Wai‑Ping the Court accepted the pleading because the past negligence was “strikingly similar” to the conduct at issue. Dr. Giannoulias submits that it was in this unique and limited situation that the claim for breach of fiduciary duty based on prior negligence was founded on a sufficient pleading of material facts. Dr. Giannoulias also submits that, unlike Wai-Ping and J.O. v. Dr. L., the Plaintiff has not pleaded any material facts of specific, pervasive problems in Dr. Giannoulias’ prior conduct that would cause him to have had knowledge of relevant deficiencies that he needed to disclose or remedy.
[45] I do not read Wai-Ping or J.O. v Dr. L. as restrictively as the Defendant. As I interpret J.O. v Dr. L., the question to be determined with respect to each of the impugned pleadings is whether sufficient material facts are pleaded in support of the fiduciary duty claim to which they are connected. In this regard, Ellies J. made a distinction between: (1) allegations of prior complaints against a defendant doctor alleged in support of the fiduciary duty claims (which were struck out); and (2) claims about complication rates resulting from poor surgical skills (which were not struck out). The necessary analysis requires a determination as to whether, taken in combination, the allegations in support of the fiduciary duty claim meet the minimum pleading threshold.
[46] The distinction between fiduciary claims that are sufficient and those that will be struck out is well described in the following summary by Ellies J. in J.O. v Dr. L:
In Blunt, the motion judge struck out a number of paragraphs in the statement of claim against the defendant physician. In one, the plaintiffs alleged that the defendant physician had been the subject of complaints “concerning his conduct and practice” that involved 26 patients in a period of two years leading up to and following the infant plaintiff’s birth. In another, the plaintiffs alleged that the defendant had breached his fiduciary duties by continuing to treat patients like the infant plaintiff in light of the complaints and the defendant’s “prior failures to recognize and appropriately manage obstetrical emergencies.
The motion judge in Blunt struck the paragraphs referred to above on the basis that they failed to state how the alleged concerns and complaints of the 26 patients related to the plaintiffs’ claims and how the defendant was supposed to know from those concerns and complaints that he was incompetent. In impugned paragraph 80 of the statement of claim at issue in this case, the plaintiffs have pleaded that Dr. L. “had a high surgical complication rate and was the subject of several complaints". As it presently reads, paragraph 80 goes on to refer specifically to complaints being made to the College of Physicians and Surgeons of Ontario, which the plaintiffs propose to remove. I agree with the doctors' submission that, even without the reference to the College, the words "and was the subject of several complaints" in paragraph 80 should be struck because the plaintiffs have failed to plead how those complaints relate to the present case in a way that would make them material.
However, the same is not true with respect to the pleading that Dr. L. had a high surgical complication rate. As I read the statement of claim, the plea in paragraph 80 is tied to the plea in paragraph 81C. In paragraph 80, the plaintiffs have alleged a material fact, namely Dr. L.'s high complication rate, that supports the allegation in paragraph 87C that Dr. L. knew or should have known that she was incompetent.
As I have pointed out, the plaintiffs have not pleaded as a material fact that Dr. L. had her hospital privileges denied. Nonetheless, in combination with the pleading in paragraph 80 that she had a high complication rate resulting from poor surgical techniques and deficient clinical abilities, the pleading in paragraph 81C is sufficient, if only just barely, to permit the plaintiffs to introduce evidence about the events leading to the denial of her privileges as it relates to her knowledge of her own deficiencies. [Emphasis added]
(See J.O v Dr. L., at paras. 91-94)
[47] In Wai-Ping, Mackinnon J. held that the pleadings met the necessary threshold because of the “striking similarity” in the negligence alleged. In J.O. v Dr. L., Ellies J. held that the pleadings met the necessary threshold through a combination of certain allegations and evidence that was before the Court. The pleadings in J.O. v Dr. L. included allegations of high complication rates and deficient clinical abilities which was combined with evidence (that is permitted on a Rule 25.11 motion and that was held to be admissible) with respect to the denial of the defendant doctor’s hospital privileges. Ellies J. noted that “…the essence of the plaintiffs’ case here is that Dr. L. knew or ought to have known of her deficiencies based on the opinions of senior medical staff members, the independent medical reviewer and the Medical Advisory Committee”, and relied on this evidence even though it was not included in the pleading. Although there is no similar evidence in this case regarding hospital privileges, there is (as there was in J.O. v Dr. L.) a pleading of high complication rates, and there is a pleading of criticism of Dr. Giannoulias by recognized experts in the field of gynaecology, which is similar to part of the evidence in J.O. v Dr. L. about opinions of senior medical staff members.
[48] Further similarities between the Statement of Claim in the present action and the pleadings at issue in J.O. v Dr. L. include the following:
a) In the present case, just as in J.O. v Dr. L., the impugned pleadings regarding the breach of fiduciary duty claims include allegations of high complication rates and deficient surgical skills and clinical ability (see, for example, paragraphs 22(i), (x), (xi), 23(ii) and (v) of the Statement of Claim) which are tied to the pleading in paras 24(1) and (2) and 28(2) and (3) that Dr. Giannoulias breached his fiduciary duty by, among other things, failing to advise the Plaintiff of these deficiencies and remediate them. I adopt the reasoning of Ellies J. that the pleading of the high complication is a material fact alleged by the Plaintiff. (See J.O. v Dr. L., at para. 93)
b) AS noted above, in the present case, the Plaintiff also pleads that Dr. Giannoulias and the defendant Hospital had knowledge of Dr. Giannoulias’ deficient skills because of criticism by recognized experts in the field of gynaecology. In my view, this is a further material fact alleged by the Plaintiff in support of the fiduciary duty claims.
c) As in J.O. v Dr. L (see para. 82), although some of the impugned paragraphs are pleaded in connection with the Plaintiff’s negligence claim, they are incorporated by reference into the claims for breach of fiduciary duty; see paragraphs 24(1)(a) and 28(1) of the Statement of Claim.
[49] There are also certain similarities between the pleading in this action to the one that was in issue in Woods. I note (as did Ellies J. in J.O. v Dr. L., at para. 66) that, “…the defendant in Woods did not seek to strike paragraphs in the pleadings in which it was alleged that he breached his fiduciary duties by failing to advise the plaintiffs of his deficient clinical skills and his high complication rate, failing to obtain a second opinion, and failing to refer the plaintiffs to another obstetrician (para. 5).”
[50] The paragraph in issue in Woods was as follows:
- The plaintiffs further plead that the relationship between the defendant Dr. Jackiewicz, and the plaintiffs was one of trust and confidence. This defendant had a position of superior knowledge and power relative to the plaintiffs and he owed the plaintiffs a fiduciary jury duty to act with utmost good faith and loyalty. He was obliged to advise and act for the good of and in the best interest of the plaintiffs without regard for his own personal interests. He failed to discharge his fiduciary duties. The particulars of his failures are as hereinafter set out:
a) at all material times, Dr. Jackiewicz knew or ought to have known that he had deficient clinical skills and abilities relevant to the care and treatment of the plaintiffs. The plaintiffs did not know and had no way of knowing about his clinical skills. Notwithstanding his deficient clinical skills, Dr. Jackiewicz failed to:
i. take any steps to remediate his deficient clinical skills prior to treating the plaintiffs;
ii. advise the plaintiffs of his clinical skills and his alarmingly high rate of gynaecological and obstetrical complications;
iii. advise the plaintiffs of the numerous complaints made against him to hospitals and The College of Physicians and Surgeons of Ontario;
iv. advise the plaintiffs of the numerous lawsuits commenced against him for complications arising from gynaecological and obstetrical services provided by him;
v. obtain a second opinion with respect to his treatment of the plaintiff; and/or
vi. refer the plaintiffs to another obstetrician.
Further particulars of the breach of Dr. Jackiewicz's fiduciary duties are within the knowledge of Dr. Jackiewicz.
[51] The only pleadings in this paragraph that the defendant in Woods sought to strike (and the only pleadings in that paragraph that were struck) were those in paragraphs 19(a)(iii) and (iv), which contained allegations about prior complaints and lawsuits against the defendant doctor. The balance of the pleadings in that paragraph stood. Thus, in neither J.O. v Dr. L. nor in Woods were pleadings of the alleged failure to advise of deficiency in skill, failure to remediate, failure to obtain a second opinion or failure to refer the patient to another physician held to be an impermissible attempt to explore the defendant’s past performance and conduct.
[52] I note that Dr. Giannoulias only seeks to strike from the Statement of Claim certain pleadings regarding his alleged deficiencies in clinical and surgical skills and incompetence. In my view, given the pleadings in paras 22(i), (viii), (x) and (xi), 23(ii) and (v), 24(2) and 28(3) which Dr. Giannoulias does not seek to have struck out, it would be inconsistent to strike very similar or identical pleadings in 22(ix), 23(viii), 24(1)(b) and 28(2). The same is the case regarding complication rates, which are part of the pleadings in paragraphs 23(vi), 24(2), and 28(3) which Dr. Giannoulias does not seek to strike. I also note that the numerous other pleadings with respect to alleged complication rates and deficiencies in clinical skills decreases the concern that allowing the impugned pleadings to stand will lead to overly broad discovery.
[53] In summary, reading the Statement of Claim as a whole, I find that, in combination, the pleadings are sufficient to support the allegation that Dr. Giannoulias knew or should have known that he was incompetent. As a result, I decline to strike any of the impugned pleadings in paragraphs 22(vii), 22(ix), 23(viii), 24(1)(b) and 28(2), other than those portions identified above. The result is a pleading that contains claims of breach of fiduciary duty similar to those in J.O. v Dr. L. and Woods.
Damages Claims
[54] In his notice of motion, Dr. Giannoulias did not list any paragraphs in the Statement of Claim dealing with damages as pleadings that he is seeking to strike. However, in his factum, Dr. Giannoulias seeks an order striking paragraphs 32-41 and 48, all of which relate to damages. Essentially, Dr. Giannoulias argues that because the fiduciary duty claims should be struck, so too should the impugned pleadings of claims to exemplary and punitive damages that are alleged to arise from the fiduciary duty allegations. Given my conclusion that the impugned fiduciary duty allegations should not be struck out, I do not accept Dr. Giannoulias’ submission on the damages pleadings and decline to strike the impugned paragraphs relating to damages.
CONCLUSION
[55] For the reasons set out above, and as outlined above, the pleadings identified as improper are struck out pursuant to Rule 25.11. Further, I find that paragraphs 22, 23 and 24 of the Proposed Amended Statement of Claim are improper and are disallowed. The balance of the impugned pleadings shall remain.
[56] The parties may make written submissions with respect to the issue of costs, limited to five pages, exclusive of attachments, as follows:
(1) by the Moving Party, within 20 days of the release of these reasons; and
(2) by the Plaintiff, within 20 days of the receipt of the Moving Party’s submissions.
DATE: November 3, 2021