Court File and Parties

COURT FILE NO.: CV-17-572998

DATE: 20220120

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helen Martindale, Plaintiff

AND:

Dr. Bharat Bahl, Bharat Bahl Medicine Professional Corporation, Dr. Benjamin King Bun Lee, Dr. Benjamin King Bun Lee Medicine Professional Corporation, Dr. Arthur Kwok-Kwong Chiu, Dr. Arthur Kwok-Kwong Chiu Medicine Professional Corporation and Scarborough and Rouge Hospital, Defendants

BEFORE: C. J. Brown J.

COUNSEL: Naphtali Silverman, Justin Linden, for the Plaintiff, responding party

Sam Rogers, Ljiljana Stanic, for the Defendants, moving parties

HEARD: January 18, 2022

ENDORSEMENT

[1] The defendants, Drs. Benjamin Lee and Arthur Chiu, bring this motion to exclude the late- served report of Dr. Gordon Cheung, diagnostic radiologist with subspecialty in neuroradiology and head and neck radiology, which was served on December 7, 2021. The trial was scheduled to commence January 17, 2022. They attempted to raise the issue at a previous trial management meeting and were advised by the judge presiding at that meeting that the motion should be brought before the trial judge.

[2] The defendants argue that the late-served report is in breach of the Rules of Civil Procedure, constitutes non-compensable prejudice to the defendants if admitted, and constitutes case splitting.

[3] On January 12, 2022, the defendants served an expert report in response to the report of Dr. Cheung, which was prepared by their expert oncologist, Dr. Vincent, who had previously provided his own expert report for the trial. I was advised at the outset of this motion that the plaintiff, on the weekend, served a report in response to that of Dr. Vincent, prepared by their own colorectal surgeon, Dr. Vasilevsky.

[4] A brief synopsis of the relevant facts follows. The plaintiff, Helen Martindale, attended at the Scarborough and Rouge Hospital emergency department on November 21, 2014 with a seven-day history of perianal pain, which was believed to be a hemorrhoid flareup. She consulted with Dr. Lee who treated her for a perianal abscess with an incision and drainage procedure. He sent her home, having arranged for home nursing care.

[5] The plaintiff again attended the emergency department on December 31, 2014, on the advice of her home care nurse, complaining of a five-week history of perianal pain. She consulted with Dr. Chiu who recommended sitz baths, stool softener and laxatives.

[6] On April 8, 2015, the plaintiff attended at the St. Michael’s Hospital emergency department, at which time a CT scan of the plaintiff’s abdomen and pelvis was performed. No cancer was reported at that time. She re-attended St. Michael’s on April 14, 2015, at which time an open loop ileostomy and rectal biopsy were performed. No cancer was detected.

[7] On May 12, 2015, biopsy reports were available and a third CT examination was performed at St. Michael’s, which diagnosed cancer. The plaintiff was referred to Princess Margaret Hospital.

[8] All experts agree that the plaintiff’s anal cancer was successfully treated, after being diagnosed, and it is highly unlikely that it will recur. The only issue for trial is whether a delay in diagnosis caused the plaintiff to require an ileostomy, and whether it could have been avoided or reversed with earlier diagnosis.

[9] Expert reports were served by both parties through August 20, 2021. The plaintiff’s late- served expert report from Dr. Cheung is indicated to be a reply to the report of the defendants’ expert, Dr. Hagan, an expert in general surgery. The report of Dr. Cheung is based on his own analysis of the actual CT images taken at St. Michael’s Hospital in April 2015, and he opines that the plaintiff’s cancer was visible by April 8, 2015, and then extrapolates on the basis of tumor growth to what it would have been in November and December 2014. It appears that other expert reports are based on the St. Michael’s radiology reports and not the actual images of the CT scans.

[10] The issue for determination is whether the late-served report of Dr. Gordon Cheung should be admitted as evidence in this trial.

[11] The defendants’ expert, Dr. Hagan, had opined in his report of August 7, 2020, that even had a CT scan been ordered in November or December 2014, no tumor would have been detected as none was detected in April 2015 at St. Michael’s Hospital. However, Dr. Cheung, after reviewing and measuring the masses that he saw on the CT scans as at April 8, 2015 disagrees and states that signs of cancer were visible at that time. He further extrapolates back to November and December and opines that signs would have been visible at that time. Thus, there is a difference of opinion. The defendants submit that, given the late service of the Cheung report, they have not been able to have a radiologist read and opine on the actual imaging scans. It appears that the experts prior to Dr. Cheung’s report have based their expert reports on the St. Michael’s imaging reports without having had a radiologist review the actual imaging scans until Dr. Cheung did so in the fall of 2021.

[12] Whether the second part of the Cheung report, in which he extrapolates from his measurements to the tumor growth rate from November 2014 to April 2015, is within a radiologist’s expertise will be determined in a voir dire at trial. I note that growth rate was also commented upon in the recent responding reports of the defendants’ expert oncologist, Doctor Vincent and the plaintiff’s expert colorectal surgeon, Dr. Vasilevsky.

[13] It is the position of the defendants that the Cheung report should be excluded due to its late service and the fact that it constitutes non-compensable prejudice to the defendants for it to be admitted, it constitutes case-splitting, and it is not necessary. If the Cheung report were to be admitted, the defendants request an adjournment to obtain a responding opinion.

[14] It is the position of the plaintiff that this court should grant leave pursuant to Rule 53 of the Rules of Civil Procedure to admit the Cheung report on the grounds that it is necessary, that the issues can only be determined fairly and on the merits if the Cheung report is admitted, that the report does not constitute a new issue and theory, and does not therefore constitute case-splitting. The plaintiff submits that it is important for a just adjudication and determination of the action that the court be taken through the imaging by a qualified radiologist rather than depending only on the pre-existing expert reports. It is further the position of the plaintiff that if the court is considering eliminating all of the late-served reports, they should instead be admitted and an adjournment to permit the defendants to obtain a radiologist report should be granted. The plaintiff submits that this would be more appropriate, as the case cannot be fully determined on its merits otherwise.

The Law

[15] Pursuant to Rule 53.03, a party who intends to call an expert witness at trial must serve an expert report not less than 90 days before the pretrial conference. A party who intends to call an expert witness at trial to respond to an expert witness of another party shall serve the expert report not less than 60 days before the pretrial conference. These time limits can be extended or abridged either at the pretrial conference or on a motion to the trial judge. The evidence is then admissible only with leave of the trial judge which shall be granted on such terms as are just and with an adjournment, if necessary, unless to do so will cause prejudice to the opposite party or undue delay in the conduct of the trial.

[16] In this case, the plaintiff served, on December 7, 2021, what was described as a responding report to that of the defendants’ expert, Dr. Hagan. This was not done within the requisite timeline. Thus, the motion came before me at commencement of trial.

[17] In making the determination of whether leave should be granted to use the late-served expert’s report of Dr. Cheung at trial, I have considered and am guided by the following jurisprudence.

[18] In Shaw-Vanderholst v Aggopardi, 2016 ONSC 6895, Mullins J., in reviewing the law regarding late-served expert reports, stated:

…In Gardner (Litigation guardian of) v Hann, 2011 ONSC 3350, 203 A.C.W.S. (3d) 84 at para 14, Wilson J stated:

The underlying considerations for the court when determining if it is appropriate to make an order extending or abridging the time are the same as they were prior to the amendments: whether in all of the circumstances and in order to ensure a fair adjudication of the matters before the court it is in the interest of justice to allow the evidence in.

[31] Relevant and probative evidence should be admitted

Any time a court excludes relevant evidence the court’s ability to reach a just verdict is compromised. Relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the court is satisfied that the prejudice to justice involved in receiving the evidence exceeds the prejudice to justice involved in excluding it: Hunter v Ellenberger (1998), 25 C.P.C. (2d) 14 (Ont. S.C. (H.C.)) at para 7.

[32] Moreover, “[t]he exclusion of apparently relevant and probative evidence is not a remedy for a possible breach of the rules that a court should hasten to accept, since the exclusion of such evidence could imperil the just determination of a case, contrary to a foundational principle of the rules”: Lee (Litigation guardian of )v Toronto District School Board, 2012 ONSC 3266, 218 A.C.W.S. (3d) 102 at para 22.

[33]… It is rare that late delivery of a report will cause prejudice to the opposing party in a case without a jury and if an adjournment can be granted without undue inconvenience: Hunter v Ellenberger (1998), 25 C.P.C. (2d) 14 (Ont. S.C. (H.C.)) at para 6.

See also Talluto v Marcus, 2016 ONSC 3340; Gardner v Hann, 2011 ONSC 3350.

[19] In Graham v Vandersloot, 2012 ONCA 60, Justice Blair, writing for the majority of the Court of Appeal, stated:

[12] Apart from the understandable frustrations experienced by presiding judicial officials and opposing parties over delays in the processing of civil cases, it is the overall interests of justice that, at the end of the day, must govern. Perell J. expressed the sentiment well in Ariston Realty Corp. at para 38:

In my opinion a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments and indulgences, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case [page 647].

[20] In contrast, the defendants submit that in considering whether to admit late-prepared expert reports, the trial judge must act as a gatekeeper of procedural fairness and ensure that a party is not unfairly taken by surprise by the expert evidence, citing Hearn v Maslak-McLeod Gallery Inc., 2018 ONSC 945 at para 10.

[21] Citing Gardner v Hann, supra, the defendants submit that the court must consider the reason for the non-compliance, the effects of it and what is fair in all of the circumstances. This will necessarily be a determination based on the facts of each particular case.

[22] The defendants further rely on the case of Peller v Ogilvie Harris, 2018 ONSC 725 at paras. 8, 18, as follows:

The amendments to Rule 53 were intended to, among other things, achieve fairness to all parties well in advance of the trial date so that each party knows the case it has to meet at trial and can accordingly prepare its case and marshall the evidence so that the issues are properly addressed. The changes were also intended to ensure that only properly qualified witnesses will be entitled to offer opinion evidence at trial and that the evidence will only be within the parameters of the witnesses particular expertise […]

In my view, cases of professional negligence which generally turn on the opinions of the experts retained by the parties, demand, perhaps more than other types of cases, compliance with the requirements of Rule 53.03. That is so because of the technical nature of the medical evidence which is not easily understood by someone untrained in the medical field.

Analysis

[23] In determining whether the Cheung report, which was late-served, should be admitted as evidence at trial, I must consider whether, in all of the circumstances and in order to ensure a fair and just determination of the issues, it is in the interest of justice to permit the Cheung report to be used.

[24] The plaintiff submits that it is important for a just adjudication and determination of the action that the court be taken through the imaging scans by its radiologist, Dr. Cheung, rather than depending only on the extrapolated expert reports, which were based on the St. Michael’s radiology reports of those scans. The plaintiff further submits that if the Cheung report does not go in and there is no radiological analysis of the plaintiff’s status, but the case is based only on reports of the status, the case will not be heard on its merits. The plaintiff submits that if the court were leaning toward excluding the Cheung report, granting an adjournment as sought by the defendants would be the only appropriate way in which this case could be heard on its merits.

[25] The plaintiff thereby acknowledged the importance of an analysis by a radiologist to a just determination of the action on the merits. It is only fair and just that the defendants be accorded the same opportunity to retain a radiologist in order to prepare a responding opinion.

[26] The defendants’ expert, Dr. Hagan, had opined in his report of August 7, 2020 that even had a CT scan been ordered in November or December 2014, no tumor would have been detected as none was detected in April of 2015 at St. Michael’s Hospital such that it would not have been detected earlier. Dr. Cheung opines that when he looks at the actual imaging of April 8, 2015, rather than just reading the radiological reports of St. Michael’s, the tumor was visible. Dr. Cheung opines that it was visible in April 2015 and extrapolates and calculates tumor growth back to November 2014 to opine that it would more likely than not have been visible in November and December.

[27] This is relevant to the issue of causation. I do not accept the defendants’ submission that this report raises a new issue or theory and constitutes case-splitting. Dr. Hagan’s report of August 7, 2020, to which Dr. Cheung responds, raised the issue when he opined that the cancer would not have been detected earlier even had a CT scan been done in November or December 2014. Dr. Hagan did not review the actual imaging but based his opinion only on the imaging reports. His report, to which Dr. Cheung replies, indicates that the diagnosis of cancer was not obvious based on the CT scan of April 8, 2015. The defendants intend to have Dr. Hagan rely on the imaging studies for his testimony on causation, although he did not base his opinion on the actual imaging.

[28] The plaintiff submits that the defendants served a report on January 12, 2022 from their oncologist, Dr. Vincent, in response to the Cheung report, which undermines the defendants’ argument of prejudice if they were not granted an adjournment. The defendants submit that they are prejudiced by the fact that they do not have a radiologist, who can review and read the actual imaging scans and interpret them as Dr. Cheung has done. They state that they were not able to retain a radiologist to review the scans, the medical reports and other opinions and prepare a report in time for the trial. They have apparently now retained a radiologist. While Dr. Vincent based his opinion on the measurements of the radiologist, Dr. Cheung, this does not, in my view, respond to the issue of whether or not each party should have a radiologist review the imaging scans and comment on the measurements seen. I am of the view that in the interest of justice, each party should have an expert radiologist to testify as to the growths or masses seen or not seen on the imaging scans.

[29] The plaintiff now argues, in the alternative, that if this court is contemplating eliminating all late-served reports, it should, in the alternative, grant the adjournment to permit the defendants to obtain a radiologist’s report. The plaintiff thereby appears to highlight the importance of having a radiologist’s view of the imaging scans relying on the tumor sizes viewed in determining causation, rather than relying only on the written reports extrapolated from the scans.

[30] I am satisfied that the radiologist’s evidence is relevant, probative and necessary. It satisfies the Mohan tests.

[31] I have considered the benefits to the parties if the evidence is admitted as well as the prejudice to the parties if the evidence is not admitted. The plaintiff has clearly outlined the benefit of admitting Dr. Cheung’s report, as well as the prejudice to her if that report is not admitted, namely the inability to have a just and fair determination of the case on its merits. While it could have been argued by the plaintiff that an adjournment would be prejudicial to her, the plaintiff took the position that rather than eliminating all late-served reports, in the alternative, an adjournment should be granted as sought by the defendants.

[32] In conclusion, I grant leave to admit the late-served plaintiff’s radiologist report authored by Dr. Gordon Cheung and grant the defendants an adjournment to retain a responding radiologist’s report. That report is to be served by on or before April 7, 2022. The Vincent and Vasilevsky reports are also admitted.

[33] This adjournment is only for that purpose. There should be no further expert reports produced in this matter.

[34] The costs of this motion are left to the trial judge.

[35] The 10 day trial will commence on November 14, 2022.

C. J. Brown J.

Date: January 20, 2022