Court File and Parties

COURT FILE NO.: CV-17-00074344-0000 DATE: 2023-05-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.B., Plaintiff AND: The Hospital for Sick Children and Eleazar Humberto Noriega, Defendants

BEFORE: Associate Justice A. Kaufman

COUNSEL: Patrick Snelling, for the Plaintiff Dena Oberman, for the Defendant, The Hospital for Sick Children Christine Wadsworth and David Hakim, for the Defendant, Eleazar Humberto Noriega

HEARD: February 9, 2023

Endorsement

[1] The plaintiff is seeking leave to amend her Statement of Claim in order to plead similar fact evidence. She alleges that she was sexually assaulted at the age of 12 by Dr. Eleazar Humberto Noriega (“Dr. Noriega”) while he was a pediatric doctor employed by The Hospital for Sick Children. The assault is alleged to have occurred on June 27, 1980, and the plaintiff cannot independently identify Dr. Noriega as the assailant.

[2] The plaintiff is seeking two amendments to the Statement of Claim. First, she is seeking to amend paragraph 8 of the claim to particularize her allegations by adding that Dr. Noriega sexually assaulted her by telling her to remove her shorts and underwear, by touching her genitals with his fingers, and by inserting his fingers into her vagina. The defendants do not oppose this amendment, and the plaintiff is granted leave to make this amendment.

[3] Second, the plaintiff is seeking to add five new paragraphs to the claim, alleging that Dr. Noriega sexually assaulted other patients in 1978-1979 and in 2002. The defendants oppose these amendments. The plaintiff's proposed new paragraphs are as follows:

20. The Defendant Noriega has sexually assaulted multiple young female patients on other occasions during the relevant time in a strikingly similar manner. He has a propensity to act in this manner and did so in his interaction with S.B.

21. One such incident occurred on or around 1978 and 1979, when the Defendant Noriega sexually assaulted a young female patient during a medical examination.

22. Specifically, the Defendant Noriega told the patient he needed to see if she was sexually active, told her to remove her clothes from the waist down and lie on a gurney, then proceeded to touch the patient’s genitals with his fingers. The patient said nothing at the time of or immediately after the assault.

23. Another such incident occurred in 2002, when the Defendant Noriega sexually assaulted a young female patient during a medical appointment.

24. Specifically, the Defendant Noriega told the patient he needed to examine her legs, told her to remove her pants and lie on a gurney, inserted his hand beneath the patient’s underwear, proceeded to touch the patient’s genitals with his fingers, and inserted them into her vagina. The patient said nothing at the time of or immediately after the assault.

25. The fact is that the Defendant Noriega has repeatedly used his position of authority as a doctor as a pretext to manipulate young female patients including S.B. into compromising and vulnerable situations where he would then sexually assault them by engaging in a pattern of strikingly similar behaviour. [1]

[4] The motion raises two issues. First, does Section 36(3) of the Regulated Health Professions Act, 1991 [2] (the “RHPA”) bar the proposed amendments to plead similar facts deriving from records of disciplinary proceedings? Second, is the plaintiff required to plead similar facts in the circumstances of this case?

Issue 1 – Section 36(3) of the Regulated Health Professions Act prohibits the amendments

[5] Regarding the first issue, pursuant to Rule 26 of the Rules of Civil Procedure [3], the Court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. However, amendments should not be permitted if they would have been struck had they been originally pleaded.

[6] In her affidavit of documents, the plaintiff listed documents from the College of Physicians and Surgeons of Ontario (the “CPSO”)’s discipline committees and newspaper articles reporting on these proceedings. The plaintiff admits that the paragraphs she wishes to add to her claim are based on documents derived from proceedings of the CPSO’s discipline committee.

[7] Section 36(3) of the RHPA provides that no report or document prepared for a proceeding under that Act or under a health profession Act is admissible in a civil proceeding. Section 36(3) states:

36 (3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulations Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. [4]

[8] In F. (M.) v. Sutherland [5], the plaintiff complained to the CPSO that the defendant doctor sexually abused her, and she commenced an action that settled before trial. After reaching a settlement, the plaintiff recanted her allegation of sexual abuse in the context of the CPSO proceedings. The defendant doctor then refused to make any more payments under the settlement. The plaintiff brought an action to enforce the settlement, and the doctor counterclaimed, claiming that the plaintiff's allegations of sexual abuse were made fraudulently and in bad faith, and that the settlement agreement was void. In his counterclaim, the doctor referred to the plaintiff's complaint to the CPSO and her recantation. The plaintiff moved to strike the paragraphs that referred to records of the CPSO proceedings because they pleaded inadmissible facts under s. 36(3) of the RHPA.

[9] The Court of Appeal upheld the motions judge's decision to strike these paragraphs, explaining that s. 36(3) of the RHPA aims to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without fear that documents prepared for these proceedings could be used in a civil action. Section 36(3) aims to keep College proceedings and civil proceedings separate, which is especially important in cases of alleged sexual abuse. [6]

[10] The majority of the Court of Appeal’s decision relied on Aylseworth J.A.'s decision in Roman Corp. v. Hudson’s Bay Oil & Gas Co. [7], to hold that paragraphs which plead facts that cannot be proved at trial, or documents that cannot be admitted at trial, may be struck out on a motion. [8]

[11] The plaintiff admits that disciplinary proceedings before the CPSO are proceedings under a health profession Act and are therefore subject to s. 36(3) of the RHPA. She also admits that she cannot prove the allegations contained in paragraphs 20 - 25 of her draft Amended Statement of Claim without records of the CPSO proceedings. Accordingly, the proposed amendments plead facts that cannot be proved at trial, and the plaintiff's motion to amend is dismissed.

Issue 2 – Were these amendments necessary?

[12] Whether paragraphs that plead similar facts should be allowed or struck, or whether the paragraphs belong in a pleading at all, depends on the purpose for which the allegations of similar fact evidence are pleaded.

[13] Pleadings aim to define and limit the issues in an action, and promote fairness, judicial economy, and exposition of the truth. This is accomplished by outlining the issues in dispute and giving the parties notice of the case to meet. Rule 25.06 mandates that pleadings should contain a concise statement of the material facts relied upon for the claim or defense, without evidence to prove those facts. [9]

[14] One exception to the exclusionary rule prohibiting the presentation of evidence of bad character is similar fact evidence. In limited circumstances, such evidence may be admissible if it is relevant to an issue in the case and if its probative value outweighs the potential prejudice from its admission. [10]

[15] In the case of Abdi Jama (Litigation Guardian of) v. McDonald’s Restaurants of Canada Ltd. [11], it was established that similar facts may be pleaded as long as their potential probative value outweighs the added complexity of their pleading. The authority for that proposition was Garwood Financial Ltd. v. Wallace [12], in which it was held that similar facts could be pleaded if they were material to the issue in dispute, provided the additional complexity did not outweigh the potential probative value.

[16] However, Master MacLeod (as he then was) correctly pointed out that the Jama and Garwood cases do not permit parties to disregard Rule 25.06(1). [13] Material facts must be pleaded, not evidence.

[17] In some cases, similar facts must be pleaded because they constitute material facts relating to a cause of action. For example, in Williams v. Wai-Ping [14], the plaintiffs alleged that the defendant doctor's surgical complication rate was significantly higher than the provincial average, and relied on several examples of the defendant's post-operative complications. The plaintiffs claimed that this pattern of repetitive negligence and poor judgment was material to their claim for breach of fiduciary duties and punitive damages. In other words, the doctor's knowledge of his previous experience and lack of skill were material facts supporting the plaintiffs' claim for breach of fiduciary duties and punitive damages.

[18] In this case, the plaintiff wishes to plead similar facts, at least in part, to establish the defendant's identity. As she was only 12 years old when the alleged assault occurred, she cannot independently identify Dr. Noriega as the person who assaulted her. However, she remembers the circumstances of the assault and would ask the Court to draw an inference that it was Dr. Noriega who assaulted her because he has sexually assaulted patients in similar circumstances. The plaintiff pleaded the material fact of Dr. Noriega's identity when she named him as a defendant. The similar facts that the plaintiff wishes to plead constitute evidence rather than material facts and are being used to prove Dr. Noriega's identity.

[19] As previously stated, the plaintiff cannot prove that Dr. Noriega assaulted other patients using records of CPSO proceedings, which are inadmissible. However, she may be able to prove these assaults through other means, such as the testimony of other complainants who may come forward, or through Dr. Noriega's testimony on discovery. The plaintiff is entitled to question Dr. Noriega about the past allegations of assault and the circumstances surrounding them, which are relevant to the question of identity.

Anonymization of the plaintiff

[20] The plaintiff initiated this action using only her initials. Court proceedings are generally open to the public and court openness, including the identity of the parties, is protected by the constitutional guarantee of freedom of expression. Therefore, the plaintiff must bring a motion to authorize her to proceed using her initials. She shall do so before setting the action down for trial: See A. v. Laurent Amyot and Conseil Scolaire Catholique Franco-Nord, 2019 ONSC 3459.

Costs

[21] The defendants were successful on this motion and are presumptively entitled to costs. Dr. Noriega filed a costs outline seeking $21,916.01 in costs on a partial indemnity scale. While the issue of pleading similar fact evidence was perhaps more complex than other amendment motions, in my view the hours claimed (68.20 hours) are excessive for a motion of this kind. I am fixing costs in the amount of $7,000.00 all-inclusive and exercise my discretion to make these costs payable by the plaintiff to Dr. Noriega in any event of the cause.

DISPOSITION

[22] The Court orders that:

1. The plaintiff’s motion to amend is allowed in part. The plaintiff may amend paragraph 8 of the Statement of Claim to read as follows:

   8. The statement was a ruse intended to placate S.B. and have her permit Noriega to carry out a sexual assault on her, which he did by telling her to remove her shorts and underwear, touching her genitals with his fingers, and inserting his fingers into her vagina (the “Sexual Assault”).

2. The plaintiff shall bring a motion to permit her to identify herself by her initials before setting the action down for trial.

3. Dr. Noriega is entitled to his costs, fixed in the amount of $7,000.00 in any event of the cause.

Alexandre Kaufman Associate Justice A. Kaufman Date: May 9, 2023