Reasons For Endorsement

I. Introduction

[1] The Plaintiff brings the following motions: i.) to strike the Defendant’s Statement of Defence for his failure to answer questions on written examinations for discovery and produce relevant documents; ii.) alternatively, to compel the Defendant answer to the Plaintiff’s third list of approximately 162 written discovery questions and produce documents; iii.) leave to examine 7 non-party witnesses; and iv.) summary judgment. The Defendant brings a cross-motion under Rule 2.1.02 to dismiss the Plaintiff’s motions as frivolous, vexatious and/or an abuse of the court’s process.

II. Background

[2] From 2013-2015 the Plaintiff Songfu Liu was a patient of the Defendant, Dr. Jonathan Chan, a urologist. This action arises from Dr. Chan’s treatment of the Plaintiff for prostate cancer which included a prostatectomy and cystoscopy. The Plaintiff alleges that he did not consent to the prostatectomy, experienced life-threatening post-operative complications and required 2 subsequent hernia operations.. Mr. Liu commenced this action by Statement of Claim issued on July 21, 2017 claiming damages of $500,000.

[3] The Plaintiff has amended his Statement of Claim seven times, 5 times from August 2017-May 2018. By Order dated November 20, 2018, Glustein J. struck the Plaintiff’s Amended Amended Amended as Fresh Statement of Claim with leave to amend. The Plaintiff amended his Statement Claim for a seventh time in January 2020 apparently without leave or the Defendant’s consent.

[4] Affidavits of Documents were exchanged in 2019. Mr. Liu scheduled a motion for January 29, 2020 to compel further productions but he did not proceed. The matter was delayed due to the pandemic and Mr. Liu’s insistence that examinations for discovery and his productions motion proceed in person. The matter was assigned to Chalmers J. for judicial case management and the production motion proceeded on June 29, 2021. Chalmers J. denied the Plaintiff’s request to amend his Statement of Claim for an eighth time finding that it was an abuse of process. Chalmers J. also dismissed the Plaintiff’s motion for leave to examine 6 non-party witnesses and the production motion on the basis that the Defendant had satisfied his production obligations by producing the Plaintiff’s medical chart.

[5] Chalmers J. also ordered examinations for discovery to be completed by August 31, 2021. On August 10, 2021, Mr. Liu requested that oral examinations for discovery proceed in writing. The parties agreed to proceed with examinations for discovery by written questions under Rule 35. Mr. Liu delivered his first set of 108 questions on August 27, 2021 which Dr. Chan answered by affidavit dated September 13, 2021. Eight days later, Mr. Liu delivered an additional 175 questions. Although Dr. Chan took the position that many of these questions were repetitive, irrelevant and/or improper, he answered them and/or provided his positions by affidavit dated October 7, 2021. Nine days later, Mr. Liu then delivered a third list of approximately 300 questions, many of them the same as the first and second lists. This matter first came before me at a case conference on February 25, 2022 to speak to these motions

III. The Law and Analysis

Motion to Strike Defence, Leave to Deliver Additional Questions, Productions and Rule 2.1.02 Motion

[6] The Plaintiff’s motions to strike the Defence, leave to deliver his third set of written questions and to compel productions and the Defendant’s Rule 2.1.02 motion are linked and overlapping. Therefore, I will address them together.

[7] The Plaintiff requests an order striking Dr. Chan’s Statement of Defence under Rules 30.08, 31.07, 34.15 and/or 35.04. Rule 30.08(2) provides that where a party fails to serve an affidavit of documents or produce a document for inspection the court may strike out a defendant’s statement of defence. Rule 31.07 sets out sanctions for a party’s failure to answer questions on discovery which includes striking a defence under Rule 34.15(1) for failure to answer any proper question or produce a document or thing that he or she is required to produce. Pursuant to Rule 35.04(4), where a person refuses or fails to answer a proper question on a written examination or to produce a document that he or she is required to produce, the court may strike out the party’s defence. The Plaintiff has not referred me to any case law in support of this relief.

[8] Rule 31.06(1) provides that a person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action. Discovery questions must be relevant to the issues as defined by the pleadings such that they have probative value and adequately contribute to the determination of the truth or falsity of a material fact (Ontario v. Rothmans Inc., 2011 ONSC 2504; Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917). Overbroad and speculative discovery and “fishing expeditions” are not permitted (Rothmans at paras. 129 and 154-157). Questions are relevant if they could elicit a response that the trial judge could rely on to resolve a matter in issue (Business Development Bank of Canada, v. IMEX Systems Inc., 2021 ONSC 6171 at para. 26).

[9] Rules 1.04(1) and Rule 1.04(1.1) are also primary considerations. Rule 1.04(1) provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved. Rule 29.2.03 sets out the proportionality factors which apply to oral and documentary discovery.

[10] In my view, the Plaintiff has not established any basis to strike Dr. Chan’s Defence. The Plaintiff has not referred me to any case law in support of this relief and I reject the Plaintiff’s blanket submissions and characterizations of Dr. Chan’s responses as incomplete, insufficient or elusive. Dr. Chan has reviewed and answered and/or provided his position on almost 300 questions to the best of his knowledge, information and belief. The fact that the Plaintiff does not accept the Defendant’s answers or alleges that he is not being truthful are immaterial to my conclusions on the motion. As set out below, with limited exceptions, I am satisfied that no further efforts are required by the Defendant.

[11] I also conclude that the Plaintiff should not be granted leave to deliver his third set of written questions. Mr. Liu delivered and Dr. Chan answered the second set of written questions under Rule 35.04(1) which provides that where the examining party is not satisfied with an answer or where an answer suggests a new line of questioning, the examining party may serve a further list of written questions. He now seeks an order compelling Dr. Chan to answer approximately 162 more questions set out in the Amended Third Questions which he has filed. Rule 35.04(2) provides that where the person being examined refuses or fails to answer a proper question or where the answer to a question is insufficient, the court may order the person to answer or give a further answer to the question or to answer any other question either by affidavit or on oral examination.

[12] I was not referred to any case law with respect to orders under Rule 35.04 to compel a party to answer a third set of written discovery questions. However, I am satisfied that the principles with respect to re-examination on oral discovery set out by Master MacLeod (as she then was) in Senechal v. Muskoka (Municipality), 2005 CanLII 11575 (ON SC), [2005] O.J. No. 1406, are applicable to an examination in writing. In particular, follow-up discovery is not an absolute right and will not be ordered where it would serve no useful purpose (Senechal at paras. 5-6).

[13] Based on my review of the Amended Third Questions, I cannot conclude that any useful purpose would be served by requiring the Defendant to answer them. As set out in my conclusions below, many of the questions are repetitive, have already been sufficiently answered, are irrelevant and/or or there are no further documents to produce. Requiring the Defendant to review and answer another 162 questions in these circumstances would also be disproportionate, onerous and contrary to Rule 1.04(1). In my view, the most reasonable, appropriate and proportionate approach is for the Defendant to answer the limited questions I have identified below as provided for in Rule 35.04 (2).

[14] With respect to the Defendant’s cross-motion under Rule 2.1.02(1), the court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. I am satisfied that the Plaintiff’s motion seeking leave to deliver the third set of written questions bears some of the characteristics of a frivolous or vexatious proceeding or abuse of process including rambling discourse characterized by repetition and pedantic failure to clarify, multiple proceedings and motions involving the same issues, inappropriately ingratiating statements, repeated misuse of legal and technical terms and ultimatums (Van Sluytman v. Canada (Department of Justice), 2017 ONSC 481 (“Van Sluytman-Canada”) at para. 6; Van Sluytman v. Orillia Soldiers’ Memorial Hospital, 2017 ONSC 692 (“Orillia”) at paras. 9-11; M.E. et al. v. HMTQ et al., 2015 ONSC 2862 at paras. 31-32). However, given my decision to dispose of this motion by having the Defendant answer some questions and adjourn others, I decline to dismiss the motion outright under Rule 2.1.02.

[15] During the case conference, I invited the Plaintiff to deliver a more narrow, specific set of questions that might resolve and/or narrow the motion or assist the court and the Defendant in considering his requests. The Plaintiff filed a revised list of questions on the morning of the motion. Given the significant number of questions, many repeated multiple times and unclear and the multiple lists, it was not always possible or practical to consider every question and request individually and difficult to cross-reference by question number. With the assistance of the parties, I have considered some requests by group and a smaller number individually below which also reflects the questions and issues the parties highlighted in their submissions.

[16] Additional Productions – The Plaintiff alleges that Dr. Chan is in possession of additional relevant documents which he has not produced. In addition to his sworn Affidavit of Documents, Dr. Chan has advised the Plaintiff and the court numerous times that he has no further relevant documents to produce at this time. For the most part, the Plaintiff has not provided any basis other than his assertion that certain documents “should” exist. Specifically, the Plaintiff requests the Defendant’s “Booking Record”, “scheduler” “day sheets” and Electronic Medical Record listing (“EMR”) (complete clinical notes and records). There are approximately 27 questions related to additional document requests.

[17] Dr. Chan has produced the Plaintiff’s entire patient chart including all of his consult reports, handwritten and electronic progress notes, the PSA tests requisitioned by his office, biopsy and ultrasound results, hospital charts and the operative reports for the Plaintiff’s radical prostatectomy performed on August 7, 2015 and the cystoscopy on December 9, 2015. Dr. Chan has also produced Mr. Liu’s Appointment History and provided links to the requested publicly accessible prostate cancer surveillance documents.

[18] Mr. Liu submits that College of Physicians and Surgeons of Ontario (“CPSO”) guidelines require all doctors to have a “Booking Record”. Dr. Chan has confirmed multiple times that he does not have a “Booking Record”, is unsure what this is and that the Appointment History which he has already produced documents each of the Plaintiff’s appointments and corresponds with Mr. Liu’s appointment dates. Similarly, Dr. Chan states in his October 21, 2021 affidavit that he does not have a “scheduler” and that he has produced all relevant documents from his EMR listing, including all electronic notes and clinical notes and records generally. He further deposes and takes the position that he has complied with all CPSO record keeping requirements.

[19] With respect to the day sheets, it is not entirely clear what the Plaintiff is requesting. Based on Mr. Liu’s description, these are documents which should show when Dr. Chan saw other patients for numerous days in 2015. To the extent to which these documents exist, when Dr. Chan saw other patients is not probative of any issues and information with respect to other patients is irrelevant and protected by patient confidentiality and privacy provisions. The Canadian Urological Association guidelines which Mr. Liu seeks are available publicly on the internet.

[20] I am satisfied that there are no further relevant documents to produce and that Dr. Chan has provided sufficient responses to the Plaintiff’s requests for additional documents and has fulfilled his production obligations. Mr. Liu is free to argue at trial that the Defendant did not follow proper record keeping guidelines, that there are missing documents or that the court should draw negative inferences. However, there is no basis to order the production of documents which do not exist or the Defendant does not have, or to make further inquiries or best efforts, subject to his ongoing obligation of production under Rule 30.07.

[21] Questions Where Dr. Chan Does Not Recall– There are approximately 63 questions where Dr. Chan has deposed that he cannot recall details of the Plaintiff’s appointments or other discussions, in many cases advising that he relies on his notes. While Mr. Liu does not accept this as an answer, the fact that a witness and/or a party deposes under oath that they do not recall is a proper and sufficient response. As Perell J. held in Fischer v. IG Investment Management Ltd., 2016 ONSC 8024:

“…recognizing that the examined party is expected to provide answers based on his or her personal knowledge, information and belief, that the examining party is disappointed by those answers or believes that better answers might be available if another person with personal knowledge was examined is not a basis for a second representative of the party to be examined or a reason for a non-party to be examined. 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.” (Fischer at para. 37).

[22] As Perell J. further noted, there is utility and value in discovering what a party does not know or does not recall (Fischer at para. 36). Pursuant to Rule 31.09, the Defendant has an obligation to correct answers subsequently discovered to be incorrect or incomplete and Mr. Liu will have an opportunity to cross-examine Dr. Chan at trial. The events giving rise to this action occurred in 2013-2015 and it is understandable that Dr. Chan might not remember the details of every appointment and entirely appropriate that he relies on his notes. This is particularly so given the substantial number of questions asked by the Plaintiff. Witnesses are not to guess, they are required to answer questions based on their knowledge, information and belief. Dr. Chan has done so and no further efforts with respect to these questions are required at this time.

[23] Dr. Chan’s Absence (Questions 10 and 41)– At paragraph 18 of the Amended Second Fresh As Amended Statement of Claim, the Plaintiff alleges that Dr. Chan’s failure to take any action regarding pain he presented at an appointment on October 5, 2015 was due to the fact that Dr. Chan was going on vacation on October 10, 2015. Dr. Chan scheduled a “camera check” for one month later. The Plaintiff alleges that he was subsequently advised by Dr. Chan’s assistant in December 2015 that Dr. Chan was on vacation between October 10 and October 26, 2015. It was during this time that Mr. Liu experienced complications for which he sought emergency treatment. Dr. Chan refuses to advise if he was on vacation during this time period submitting that it is not relevant. Based on the specific pleading and the Plaintiff’s allegations regarding his condition at that time, the October 5 appointment and subsequent complications, whether the Defendant was on vacation is probative of issues related to the Plaintiff’s allegations. No other information is relevant. Dr. Chan shall advise only whether he was on vacation between October 10-26, 2015 within 30 days.

[24] Other Patient’s Surgery Date (Question 22) – The Plaintiff alleges at paragraph 12 of the Amended Second Fresh As Amended Statement of Claim that on July 30, 2015 he received a call from Dr. Chan’s office to attend an urgent appointment that day (2 weeks earlier than a scheduled appointment). The Plaintiff alleges that at the appointment Dr. Chan advised him that his last biopsy showed that he needed a prostatectomy. Mr. Liu further claims that Dr. Chan advised him that another patient with surgery scheduled for August 7, 2015 could no longer have surgery and that if the Plaintiff decided quickly the surgery date could be transferred to him. The Plaintiff also alleges that Dr. Chan did not discuss options, second opinions, benefits or why surgery was the only choice and “threatened” that there would be no follow-ups if he did not take the surgery date before telling him to sign the Consent To Treatment. The Plaintiff alleges that he relied on the Defendant, was scared that there would be no follow-ups and that if he did not take the surgery date that he would be in the same position as the other patient. The Defendant refuses to answer whether the surgery date was transferred from another patient and has stated that he would not have discussed another patient’s situation due to patient confidentiality. Based on the allegations in the pleadings, whether the Plaintiff’s surgery date was transferred from another patient is relevant. It is specifically pleaded and probative of the circumstances surrounding the signing of the Consent and the Plaintiff’s claim that he did not consent. The Defendant shall advise only if the August 7, 2015 surgery date was transferred from another patient within 30 days.

[25] Legal Questions - There are approximately 41 questions which the Defendant refuses to answer on the basis that they improperly seek legal opinions or require him to opine on the care of other physicians, professionals and staff. The parties did not provide any legal submissions on these questions nor did they address them at all during oral argument. Without proper legal submissions, I am unable to consider them. To the extent to which the Plaintiff still seeks answers to any of these questions, they are adjourned sine die and may be spoken to at a future attendance, or, if the parties agree, in writing.

[26] Other Questions – There are approximately 17 additional questions which I am satisfied that the Defendant is not required to answer for various reasons. Some have already been answered (Questions 8, 23, 81 38 (all), 56, 98-99 and 107); and the balance are not relevant as they are not probative of any issues in the litigation: (Questions 14-16 (surgical bookings); 11 (price list); 18 (Gleason 8); and 43 (diet)).

Motion to Examine Non-Party Witnesses Non-Party Records and Non-Party Witness Motion

[27] The Plaintiff seeks leave to examine 7 non-party witnesses: 2 secretaries employed by Dr. Chan; the Manager of the Cystoscopy Department; and two patients, a “green clothed male staff” member and “primary nurse” named Michelle who were allegedly present in the waiting room with the Plaintiff on December 9, 2015.

[28] Rule 31.10 provides that 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. The Plaintiff has not properly identified the or served the proposed non-party witnesses. The proposed witnesses are entitled to notice so that it can be determined if they even have any relevant information, what position they take and if they wish to retain counsel. Further, the court cannot properly consider the motion without knowing the identity of the proposed witnesses and their positions.

[29] The Defendant also seeks to dismiss the Rule 31.10 motion under Rule 2.1.02(1). Although this motion was previously brought by the Plaintiff and dismissed by Chalmers J., I decline to dismiss the motion under Rule 2.1.02(1) given the service issues. The motion is adjourned sine die to permit proper service of the non-parties. Any issues regarding contact information and service may be spoken to before me.

Summary Judgment Motion

[30] The Plaintiff indicates in his materials that he is seeking “mandatory judgment” on the basis that his consent for the prostatectomy was not valid. The Plaintiff has confirmed that he is seeking summary judgment. Pursuant to the Consolidated Practice Direction, the Plaintiff must schedule an attendance at Civil Practice Court to schedule a summary judgment motion before a Judge.

III. Disposition and Costs

[31] Order to go on the terms set out above. The parties may schedule a telephone case conference for further case management and directions if necessary.

[32] Given the adjournment of the legal questions and the Rule 31.10 motion, a process for costs submissions may be spoken.to after all issues before me have been finally disposed of if the parties cannot otherwise agree.

Released: September 6, 2022

Associate Justice McGraw

Liu v. Chan, 2022 ONSC 5069

Case Summary

Reasons For Endorsement

I. Introduction

II. Background

III. The Law and Analysis

Motion to Strike Defence, Leave to Deliver Additional Questions, Productions and Rule 2.1.02 Motion

Motion to Examine Non-Party Witnesses Non-Party Records and Non-Party Witness Motion

Summary Judgment Motion

III. Disposition and Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 5

Legal Tests 2