Court File and Parties

COURT FILE NO.: CV-17-00567355

MOTION HEARD: 20211125

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Terhas Birhane v Suzanne Toni Wong et al

BEFORE: Associate Justice L. La Horey

COUNSEL: Andrew Porter, Counsel for the Moving Parties Defendants Suzanne Toni Wong, Elize Gershater, Josef Hrdina, Richard Hamilton Sims, Nirit Bernhard and Pashdad Navabi

Adrian Lomaga, Counsel for the Responding Party Plaintiff

HEARD: November 25, 2021 via videoconference

REASONS FOR DECISION

OVERVIEW

[1] The defendant physicians in this medical malpractice lawsuit bring this motion to examine the plaintiff’s husband for discovery as a non-party.

[2] On March 2, 2015, the plaintiff gave birth to her third daughter by a caesarean section immediately followed by tubal ligation procedure. A key issue in the action is whether the plaintiff consented to the tubal ligation. It is not disputed that the plaintiff’s husband has crucial evidence on the issue of consent. The defendant physicians contend that they should be permitted to examine the plaintiff’s husband at an oral discovery. The plaintiff opposes the motion.

[3] For the reasons that follow, I dismiss the motion.

BACKGROUND

[4] The plaintiff, Terhas Birhane, attended the defendant St. Joseph’s Health Centre for a scheduled caesarean section delivery of her third child. A tubal ligation was performed immediately following the birth as an unscheduled add-on procedure. In her statement of claim, the plaintiff states that she believed that she was expecting a boy and that she wished to proceed with a tubal litigation because she already had two girls. She alleges that she was not advised that the baby was female until after the tubal ligation was complete. The plaintiff alleges that she would not have consented to the tubal ligation procedure if she had known she was giving birth to a girl.

[5] The plaintiff commenced this action against the defendant physicians as well as against St. Joseph’s Health Centre and nurses employed by the hospital (the “hospital defendants”). The hospital defendants do not oppose the motion and did not appear. Examinations for discovery of the plaintiff and defendants have taken place but the action has not been set down for trial.

[6] The defendant physicians seek to examine the plaintiff’s husband, Tedros Birhane, about the issue of consent. In particular, they are interested in his evidence at two points in time: (1) a discussion about the tubal ligation procedure prior to the plaintiff being taken into the operating room amongst Mr. and Ms. Berhane and nurses; and (2) the execution of the consent form by Mr. Berhane on behalf of Ms. Berhane in the operating theatre.

[7] Ms. Birhane’s facility with the English language is an issue in the litigation. She was examined for discovery with a Tigrinya[^1] interpreter. During her discovery, she gave evidence about the discussion with the nurses before she went into the operating room. She said that her husband interpreted during this discussion.

[8] Ms. Birhane was questioned about a consent discussion for the tubal ligation procedure that took place while she was in the operating room. At times she said that she could not recall any such discussion, at other times she appeared to suggest that there was not any discussion.

[9] The defendant Suzanne Toni Wong performed the caesarean section and the tubal ligation assisted by one of the other defendant physicians. Dr. Wong’s evidence at discovery was that she was able to communicate orally in English with the plaintiff. Dr. Wong testified that she obtained the plaintiff’s consent for the caesarean section at a prenatal appointment. She said that she obtained consent for the tubal ligation from Ms. Birhane in the operating room, prior to surgery. She said that there was a discussion with Ms. and Mr. Birhane during which consent was given by Ms. Birhane. Mr. Birhane then signed the consent form on behalf of Ms. Birhane who was on the operating table. Ms. Birhane was conscious throughout the surgery.

[10] The defendant nurses were examined for discovery and were asked about the discussions concerning the tubal ligation procedure and consent, both pre-operatively and in the operating room. They did not have a good recollection of the discussions.

[11] During Ms. Birhane’s discovery, counsel asked for an undertaking to produce a witness statement from Mr. Birhane with respect to his recollections of the events of March 2, 2015 including the discussions with the nurses about the tubal ligation, whether he recognized the consent form (for the tubal ligation), to confirm that it is his initials or signature on the form and his recollection of events inside the operation room. The question was taken under advisement.

[12] Following the discovery, there was protracted correspondence amongst counsel for the plaintiff, the defendant physicians and the hospital defendants about Mr. Birhane’s anticipated evidence, his recollection of events and this motion. One of the productions in this action is the Patient Feedback form completed by hospital staff based on a discussion with Mr. Birhane and others about the concerns of the plaintiff and her husband. Subsequent to delivery of the motion record, the plaintiff’s counsel sent an email that included excerpts from this form with Mr. Birhane’s signature and the words, “I have reviewed this e-mail and it is accurate” at the bottom. The plaintiff has provided information about Mr. Birhane’s evidence by way of answers to undertakings given by Ms. Birhane and the plaintiff has provided written answers to questions of Mr. Birhane from the hospital defendants.

PRELIMINARY ISSUE

[13] In response to the motion, the plaintiff filed an affidavit from Ateesh Alvares, a legal assistant who, in paragraph 26 of her affidavit, makes statements based on information and belief from Mr. Lomaga, plaintiff’s counsel arguing the motion, on a contentious issue. The defendant physicians objected to this as improper in their factum. At the hearing, Mr. Lomaga agreed that I should not consider the statements in that paragraph of the affidavit. An expert standard of care report obtained by the plaintiff was also attached to Ms. Alvares’ affidavit. The parties agreed that I may view the report as it sets out the consent issues and further agreed that it is not being tendered for the truth of its contents.

LAW AND ANALYSIS

[14] Rule 31.10 of the Rules of Civil Procedure provides in part as follows:

31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

Test for Granting Leave

(2) An order under subrule (1) shall not be made unless the court is satisfied that,

(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine.

[15] The parties agree that Associate Justice Frank correctly summarized the applicable principles to be considered in determining whether to grant leave to examine a non-party in Merritt Estate v London Health Sciences Centre[^2] as follows:

(i) the requirements of Rule 31.10 are cumulative and a party seeking such relief must satisfy both Rule 31.10(1) as well as each of the requirements in Rule 31.10(2);

(ii) there must be good reason to believe that the non-party has information relevant to a material issue;

(iii) before being entitled to an examination of non-parties, the moving party must establish that he or she has been unable to obtain the information sought from the other parties to the action as well as from the non-parties they wish to examine;

(iv) there must be a refusal, actual or constructive, to obtain the information from the other parties to the action, and the non-parties, before the moving party will be able to meet the onus under Rule 31.10(2)(a); and,

(v) if that onus is met the court may then look to Rule 1.04 to decide whether the court's discretion, as set out in Rule 31.10(1), should be exercised on the facts of each particular case.

(See: Din v. Melady, 2010 CarswellOnt 6852, 2010 ONSC 4865 (Ont. S.C.J.) at para. 14; Famous Players Development Corp. v. Central Capital Corp, 1991 7202 (ON SC), 1991 CarswellOnt 405, [1991] O.J. No. 2127 (Div. Ct.) at paras. 26-35, 40, 41; and Rothwell v. Raes, 1986 CarswellOnt 985, [1986] O.J. No. 2495 (Div. Ct.) at paras. 5, 8, Hopkins v. Green Equipment, 2018 CarswellOnt 1902, 2018 ONSC 998, (Ont. SCJ.) at para. 6).

[16] It is not disputed that Mr. Birhane has information relevant to a material issue such that the condition in Rule 31.10(1) is satisfied.

[17] What is hotly disputed is whether or not the defendant physicians have satisfied the requirements in Rule 31.10(2). In particular, the plaintiff denies that the requirement in Rule 31.10(2)(a) is met, i.e. that the defendant physicians have been unable to obtain the information from Ms. Birhane or the other defendants examined for discovery (i.e. the nurses) or from Mr. Birhane.

Whether the moving parties have been unable to obtain the information

[18] The defendant physicians contend that the plaintiff’s inability to recall discussions about the tubal ligation procedure “amounts to a constructive refusal to answer questions about discussions with Dr. Wong and nurses regarding the tubal ligation procedure.”

[19] The defendant physicians argue that the email with the excerpts of the Patient Feedback form signed by Mr. Birhane and provided to defence counsel following the discoveries does not provide a full response. In particular, these excerpts do not address Mr. Birhane’s recollection regarding discussions with Dr. Wong about the tubal litigation or his recollection of events inside the operating room. They submit that the written answers to the hospital defendants’ list of questions of Mr. Birhane provided by plaintiffs’ counsel are insufficient, “given the centrality of Mr. Birhane’s evidence to the events in issue, the volume of questions which result from the gaps in Ms. Birhane’s recollection and the lack of procedural protections in how the answers were obtained or could be used at trial.”

[20] The defendants physicians emphasize that neither the ‘statement’ nor the written answers were provided under oath or in affidavit form. They also say that the answers are in material respects inconsistent with the Patient Feedback form.

[21] The plaintiff says that Ms. Birhane answered all the questions put to her and that Mr. Birhane’s evidence has been disclosed in the form of his confirmation of details in the Patient Feedback form and in the answers to questions posed by the hospital defendant. In those answers Mr. Birhane said that there was no discussion with Dr. Wong about tubal ligation. The plaintiff also points to the fact that the nurses who were present in the pre-operative discussion about tubal ligation and were present in the operating room were examined for discovery and that this is another source of information about the consent issues.

[22] Mr. Lomaga advised that he does not represent Mr. Birhane. However, during the hearing he confirmed on behalf of the plaintiff that she will ask her husband to answer any additional questions the defendant physicians have of her husband, in writing, through Mr. Lomaga. He also confirmed that the plaintiff will ask her husband to swear an affidavit attesting to the truth of the written answers.

[23] I do not accept the argument of the defendant physicians that the plaintiff’s gaps in recollection amount to a refusal to answer questions.

[24] The defendants physicians rely on Ghanim v Ali,[^3] a case where the defendant sought an order that the plaintiff’s wife be examined as a non-party. The plaintiff sued for injuries suffered during a motor vehicle accident, including a traumatic brain injury. On discovery, the plaintiff was unable to answer questions in key areas. As in this case, the plaintiff’s wife was prepared to answer specific questions in writing. Nonetheless, the court granted the defendant’s motion for an oral discovery of the plaintiff’s wife.

[25] Ghanim is distinguishable. In that case, the court found that the plaintiff was “incapable” of giving direct evidence on key areas, having sustained a brain injury. Ms. Birhane was not incapable of providing direct evidence on discovery, rather there were some gaps in her memory, which is not uncommon. Moreover, the magnitude of questions the plaintiff was unable to answer in Ghanim is significantly greater than the case at bar. The court described the plaintiff’s discovery as follows:[^4]

At the plaintiff's examination for discovery … he was incapable of giving any direct evidence or information regarding his pre-accident life or regarding the fall in which he struck his head three days after the accident. His answers to questions were mostly prefaced by "they told me" or "she told me". In addition, in response to questions he answered that he "didn't know" more than fifty times. In answers to six questions about his fall three days after the accident, he directed the examiner to "ask my wife". The plaintiff also frequently said he didn't understand the questions in instances where the question was plain and obvious. He appeared confused. … Notably, the plaintiff frequently answered questions with a question, requiring the initial question to be asked again.

[26] Master Champagne (as she then was) in Ghanim was careful to note the unusual situation before her, stating:[^5]

I stress that this decision turns on the volume of information that would be the subject of questions and undertakings given the plaintiff's memory impairment, I am mindful that the framers of Rule 31.10 drafted the rule the way they did to avoid the needless time, expense and inefficiency of American-style depositions. That system is antithetical to Ontario's. Our framers drafted conditions to balance cost-effectiveness and efficiency with fairness to accommodate a situation which calls for departure from the Rules. In my view, this particular and unique set of circumstances is one such instance and should in no way be taken to be an erosion of the Rules or an opening for the broadening of the discovery of non-parties.

[27] There is no suggestion at all that the plaintiff suffers from any cognitive deficit and, as noted, Dr. Wong’s evidence is that she was conscious throughout the procedure. The times she answered “I don’t recall” are far, far fewer than in Ghanim.

[28] The defendant physicians also rely on Kissoon v Aviva Insurance Company of Canada[^6] which is a case where the court permitted examinations for discovery of non-parties. However, this case too is based on unique facts. The non-parties sought to be examined in Kissoon were all occupants of the same motor vehicle as the plaintiff who had each brought a separate action seeking damages arising as a result of the same motor vehicle accident. The plaintiff and non-parties were represented by the same lawyer. The actions were later consolidated. The judge concluded that the non-parties were “actually parties to the broader action”.[^7]

[29] The defendant physicians submit that the case at bar is similar to Kus v AXA Insurance (Canada)[^8] where Justice Turnbull ordered a non-party to attend an examination for discovery despite the plaintiff’s willingness to provide a will-say statement in advance of trial. Noting that the examination of a non-party was a right to be granted rarely and only in exceptional cases, Justice Turnbull nonetheless permitted the examination of the son of the plaintiffs who sued their insurer under a policy of fire insurance. The son had been charged with arson in respect of the fire, but the charges were dismissed following the exclusion of evidence. The court noted that the plaintiff’s offer to provide a will-say statement and a related document was not to provide the information immediately, but only “at least 90 days prior to trial”. Justice Turnbull said that if there were questions arising from the documents provided, the process would continue and to the extent that the defendants needed to consult experts on the information provided, the expert report would be out of time and the trial might have to adjourned. In such circumstances, the court concluded that there had been a constructive refusal to provide the information. In this case however, the plaintiff has provided some information from Mr. Birhane and is willing to provide further responses to questions from the defendant physicians now, not at some point in the future. This action is not yet set down for trial and a further round of questions and answers will not affect a trial date.

[30] The defendant physicians are not satisfied with the plaintiff’s answers on discovery that she is unable to recall discussions which they believe took place and are central to their defence. However, an inability to recall does not amount to constructive refusal. As Justice Perell stated in Fischer v IG Investment Management Inc., “That the examining party is disappointed or does not believe the examined party's answers does not make them unsatisfactory answers that would justify further examinations.”[^9] Further, there were other persons present at those discussions who have been examined for discovery, namely Dr. Wong and the nurses. It cannot be said that “the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine.”[^10]

[31] The defendant physicians have rejected written responses to questions of Mr. Birhane as being sufficient. In so doing, they note that the written answers provided do not follow the procedure for written discovery in Rule 35.02 which is that the answers must be provided in affidavit form.[^11] However, that procedure is for written discovery in lieu of oral discovery. It is not applicable to answers given by way of undertaking. The plaintiff has already been discovered under oath.

[32] The crux of the defendant physicians’ concern is that the evidence from Mr. Birhane is not a form that they can cross-examine upon. The defendant physicians argue, “The information provided by the Plaintiff purportedly on behalf of Mr. Birhane in response to this motion, remains an inadequate substitute for an examination under oath of a witness whose evidence and credibility is centrally relevant to the material issues in this action” where the plaintiff’s inability to recall amounts to a constructive refusal. However, the discovery regime in Ontario is premised upon a discovery witness providing information and belief about the evidence of others in the form of hearsay and undertakings to provide information.[^12] It is significant that Rule 31.10(2)(a) refers to “information” rather than “evidence”.[^13]

[33] In L’Abbé v Allen-Vanguard, Master MacLeod (as he then was) refused to order an examination of a non-party where the moving party had rejected information provided in writing. In that case he wrote:[^14]

This situation is almost identical that found in Kerr v. McLeod [2002] O.J. No. 788 (Div. Ct.) In that case, as here, the non party was prepared to answer questions in writing so there had been no refusal to provide the relevant information. In the words of Farley J. who was presiding at the time, "while the plaintiff may wish to grill [the non party] in an oral discovery and consider this the more expeditious and efficient and effective procedure, that is not the criteria for R. 31.10(2)". To the same effect is the direction given by the Divisional Court in Famous Players Development Corp. v. Central Capital Corp, (1991) 1991 7202 (ON SC), 6 O.R. (3d) 765 (Div. Ct.)

[34] Given my finding that the defendant physicians have not met the requirement in Rule 31.10(2)(a), I do not need to address the other two parts of the test, i.e. Rule 31.10(2)(b) and (c). However, in the event that I am wrong in my conclusion in the first part of the test, I will briefly go on to consider the other two parts.

Whether it would be unfair for the defendant physicians to proceed to trial without an oral discovery of Mr. Birhane

[35] It cannot be said to be unfair to the defendant physicians to require them to proceed to trial without an examination for discovery of Mr. Birhane under oath. As noted, the plaintiff has already provided information from her husband, has agreed to provided answers to further questions and she has undertaken to ask him to provide an affidavit attesting to the truth of the written information. The Rules specifically provide for information being provided by the discovery witness on information and belief.

Whether the proposed examination will unduly delay the commencement of trial, entail unreasonable expense for the other parties, or result in unfairness to Mr. Birhane

[36] The proposed half-day oral examination will not unduly delay the commencement of trial. The action has not yet been set down for trial.

[37] However, it cannot be said that the proposed examination will not result in unfairness to Mr. Birhane. He is a taxi driver and the sole income earner in his household. The plaintiff ceased her work as a cleaner after the birth of her first daughter, and has not worked outside the home since. To require Mr. Birhane to take time off work to prepare for and attend a discovery is unfair, given his co-operation thus far.

DISPOSITION AND COSTS

[38] The motion is dismissed.

[39] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed three pages (double-spaced) excluding costs outlines. The plaintiff shall deliver her costs submissions by January 6, 2022, and the defendant physicians shall deliver their costs submissions within two weeks thereafter.

L. La Horey, A.J.

Date: 20211206

[^1]: Tigrinya is a language spoken in Eritrea. [^2]: 2021 ONSC 4351 at para 23. I have used my numbering as there appears to be a numbering error in the reported decision. [^3]: 2018 ONSC 407 (Master) [^4]: Ibid at para 5 [^5]: Ibid at para 22 [^6]: 2018 ONSC 2167 [^7]: Ibid at para 19 [^8]: Kus v AXA Insurance (Canada), 2007 59520 (ON SC) [^9]: Fischer v IG Investment Management Ltd., 2016 ONSC 4405 at para 37. [^10]: Rule 31.10(2)(a) [^11]: As noted above, during the hearing, the plaintiff, through counsel, confirmed that she will ask her husband to provide an affidavit attesting to the truth of the written answers. [^12]: Fischer at para 24 - 27 [^13]: L’Abbé v Allen-Vanguard Corp., 2011 ONSC 7331 (Master) at para 9 [^14]: Ibid at para 12