Court File and Parties
COURT FILE NO.: CV-18-77690 (Ottawa) DATE: 20220222 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GENEVIÈVE BONENFANT and JEAN-FRANÇOIS LOZIER, Plaintiffs AND: DR. JONATHAN PONESSE, DR. ANNE GRAVELLE, DR. LISA WHITE and DR. KAREN PALAYEW, Defendants
BEFORE: Mr. Justice Graeme Mew
COUNSEL: Jaan E. Lilles, Andrea Wheeler and Sarah Bittman, for the defendant, Dr. Jonathan Ponesse Tara Sweeney and Ryan Garrett, for the plaintiffs
HEARD: In writing
Endorsement
[1] On 31 December 2021, I granted leave to the plaintiffs to amend their statement of claim (reasons reported at 2021 ONSC 8544).
[2] Through inadvertence, the text of the draft amendments, which were included at paragraph 19 of my reasons, were taken from a draft order which, while provided to the court, were different to the draft amendments set out as an exhibit to the affidavit of Sandra LeBrun, filed by the plaintiffs in support of their motion. The plaintiffs confirm that it is the amendments attached to the LeBrun affidavit which they seek leave to make.
[3] The defendant Dr. Ponesse says that the differences between the two versions are material and warrant reconsideration of the decision to grant leave to amend. The plaintiff argues that the differences between the two versions would not have yielded different outcomes and suggest that a corrigendum to paragraph 19 of my reasons is all that is required in the circumstances.
[4] The parties do not dispute the principle that a decision maker who is not yet functus officio can reopen a motion and, in appropriate circumstances, admit and consider new evidence. They part company on whether it is appropriate to do so in this case.
[5] The defendant argues that the form of the proposed amendments that were attached to the draft order which the plaintiffs included in their motion record betray the true nature of the proposed amendments, which, he alleges, is to introduce a claim of negligent misrepresentation after the expiry of the limitation period within which such a claim could have been overtly made. He submits that either my previous decision should be replaced by a decision refusing to grant leave to amend their statement of claim, or if leave is still granted, he seeks what amounts to a declaration specifying that the plaintiffs are precluded from advancing a claim of negligent misrepresentation at trial.
[6] The plaintiffs deny the subterfuge alleged, and point out that the draft order, and its attachment, were not part of the evidentiary record filed on the motion. As a result, the effect of the defendant’s argument is to ask the court to take into account new evidence which was not properly before the court when the motion was originally argued and determined. They also object to a request for reconsideration being used as a vehicle for what they say would amount to summary judgment on a particular cause of action – negligent misrepresentation – or injunctive relief enjoining such a claim from being advanced.
[7] I do not regard this as a situation where there is an attempt to introduce new evidence and, having done so, to reargue the merits of the motion that was previously decided. Rather, the request for reconsideration requires me to consider whether the motion would have been decided differently if I had based it on the draft amendments which the plaintiffs actually wanted to implement, rather than those recited in my reasons.
[8] The two draft paragraphs are set out below. The underlined words are not included in the draft attached to Ms. LeBrun’s affidavit (and thus are not part of the amendments which the plaintiffs say they want the court to permit), but they were included in the version which was attached to the draft order.
The Plaintiffs state that the Defendant, Dr. Jonathan Ponesse, was, at all material times, aware that Genevieve wanted bloodwork and/or genetic testing to be done to determine whether or not there was genetic explanation for Augustin’s delays and/or his other medical issues. As a direct consequence of Genevieve’s request for bloodwork and/or genetic testing, Dr. Ponesse requisitioned a genetic test but did not disclose to Genevieve that he was not requesting a second genetic test that he knew or ought to have known was required to rule our [sic] Fragile X Syndrome in a child with developmental delays.
Dr. Ponesse either negligently failed to order genetic testing for Fragile X Syndrome, or he negligently led Genevieve to believe that all genetic testing recommended for a child with developmental delays was being done, when only one test was being done, and this test, unknown to Genevieve, was being done to relieve Genevieve’s anxiety rather than to rule out a genetic cause for Augustin’s developmental delays and/or his other medical issues. Genevieve relied on Dr. Ponesse’s indication to her that genetic testing was being done and consequently did not further pursue the issue of genetic testing to her detriment.
[9] It will readily be seen that the last, underlined, sentence in draft paragraph 37 contains the word “relied”, which the defendant says is indicative of the true character of the plaintiffs’ proposed amendments, reliance being an essential element of a claim of negligent misrepresentation.
[10] For the reasons given in my previous decision, I gave leave to the plaintiffs to amend their statement of claim, without prejudice to any limitation defence that the defendant might elect to plead in response, based on a draft pleading which included the underlined sentence referred to above. As was manifest from my reasons, the plaintiffs expressly disavowed the accusation that they were attempting to plead a negligent misrepresentation claim by a backdoor method. They have not resiled from that position in their response to the defendant’s reconsideration request.
[11] Given the foregoing, it would make little sense for me to revise my decision because the impugned sentence was not, in fact, intended to be part of the amended text. The proposed amendment is more benign (in terms of the defendant’s negligent misrepresentation concerns) than the amendment that I was originally prepared to permit.
[12] Accordingly, my previous decision stands. However, a revised version of my previous decision will issue, replacing the quoted amendments in paragraph 19 with the correct text.
[13] There will be no order as to costs associated with the request for reconsideration.
Mew J Date: 22 February 2022