Court File and Parties

COURT FILE NO.: CV-20-640812 DATE: 20230428

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Nikki-Nancy Kamateros, Plaintiff

• AND –

Women’s College Hospital, Dr. Dimitrois Giannoulias, Defendants

BEFORE: L. Merritt J.

COUNSEL: John David Ekpenyong, for the Plaintiff Parmis Goudarzi-Malayeri, for the Defendant Women’s College Hospital Leah Ostler and Eli Mogil, for the Defendant Dr. Dimitrois Giannoulias

HEARD: April 27, 2023

Endorsement

[1] This is an appeal from the order of Associate Justice R. Frank dated November 3, 2021 (the “Order”), and the Supplementary Order dated May 10, 2022 (the “Supplementary Order”), where he struck out certain paragraphs of the Statement of Claim (the “Claim”). The appeal relates to paragraphs of the Claim which The Associate Justice did not strike or only partially struck.

[2] This case concerns alleged medical negligence relating to a therapeutic abortion procedure performed by the Appellant, Dr. Dimitrois Giannoulias (“Dr. Giannoulias” or the “Appellant”), at Women’s College Hospital (the “Hospital”). The Plaintiff Nikki-Nancy Kamateros (“Ms. Kamateros”, or the “Plaintiff”) served the Claim on May 11, 2020.

[3] The Appellant moved to strike paragraphs of the Claim regarding prior incompetence or practice deficiencies and related allegations. The Appellant’s motion was heard on August 3, 2021. On November 3, 2021, Associate Justice Frank released reasons for decision striking certain paragraphs in their entirety and other paragraphs in part but did not address all of the challenged paragraphs (the “Reasons”). On May 10, 2022, the Associate Justice released further reasons striking additional paragraphs of the claim (the “Supplementary Reasons”). The Associate Justice did not strike paragraphs 22 (vii), 22(ix), 22(x), 22(xi), 23(viii), 24(1)(b), 24(2), 28(2), 28(3), 32‑41 and 48 of the Claim and these paragraphs are the subject of this Appeal.

[4] The Appellant submits that the Associate Justice erred in not striking pleadings of prior incompetence and practice deficiencies and pleadings related to his or the Hospital’s knowledge of same. The Appellant also submits that he erred in finding that pleadings related to the Respondent’s allegedly high surgical complication rates and criticism by experts in the field of gynecology, were material facts sufficient to support the allegation that the Respondent knew he was incompetent or had practice deficiencies.

[5] The Appellant says these are bald allegations and the claim is devoid of any material facts to support these allegations of knowledge and there are no material facts pled to support claims of breach of fiduciary duty and punitive damages. The Respondent says the Associate Judge’s decision contains no palpable and overriding errors, was not unreasonable and should be shown deference.

Standard of Review

[6] The standard of review on this statutory appeal is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 7 and 10. Errors of law are reviewed on a correctness standard. For errors of fact, there must be a palpable and overriding error. Errors of mixed fact and law also require a palpable and overriding error unless there is an extricable error of law or principle, which is reviewed on a correctness standard.

[7] Where an associate justice exercises discretion, the court on appeal must determine whether the correct principles were applied and whether the Associate Justice misapprehended the evidence such that there is a palpable and overriding error.

[8] In my view, the standard of review is correctness as the Associate Judge incorrectly interpreted the case law applicable to pleadings of prior incompetence, practice deficiencies and related matters.

Analysis

[9] Pleadings are important; they notify the defendant of the case to meet and they define the scope of discovery. The Associate Judge correctly stated that a pleading that demonstrates an absence of material facts will be struck. If a plaintiff does not have knowledge of the facts necessary to support the cause of action, it should not be pled. Defendants must know the case they are to meet. The Associate Judge correctly said that similar fact evidence is presumptively inadmissible because it carries both reasoning prejudice and moral prejudice. The prejudice of similar fact evidence almost always outweighs its probative value. Similar fact evidence is only admissible when there is a real and substantial nexus between it and the allegations in the case; for example, where there is a system of specific, repeated negligence or striking similarities between the two. The Associate Justice correctly applied these principles to the allegations of prior negligence and the vast majority of the allegations were struck on the basis that they did not contain sufficient material facts to establish their probative value.

[10] The Associate Judge did not strike allegations that the Appellant had “high surgical complication rates” and was the “subject of criticism by experts”. The Associate Judge also did not strike pleadings relating to the Appellant’s and the Hospital’s knowledge of his deficient skills. All of these pleadings would have to be predicated on prior acts and there were no material facts pleaded to support them. Without material facts of the prior errors, it is not possible to determine whether there is a sufficient connection between them and the Plaintiff’s case to show the probative value outweighs the prejudicial effect.

[11] Prior negligence may be relevant to a breach of fiduciary duty or the negligence of another party. There is no general duty to disclose past errors but a doctor does have a duty to disclose material risks relating to the procedure in issue. A plaintiff may plead acts of prior negligence and known incompetence to support an allegation of breach fiduciary duty to advise of a material risk relating to known deficient clinical skills and a failure to take remedial steps. A plaintiff may plead that a hospital was aware of a doctor’s prior negligence and was itself negligent in failing to take proper steps to address same. However, such allegations of known incompetence can only be maintained if they satisfy the requirements for the proper pleading of similar facts. (See Williams v. Wai Ping [2005] O.J. No 6186 (Div. Ct.) and J.O. v Dr. L., 2018 ONSC 4953). In J.O. the plaintiffs pled sufficient material facts and submitted evidence in response to a motion to strike, to demonstrate the allegations of prior negligence were probative to the claims in issue. In both of these cases, on the motions to strike, the plaintiffs provided evidence of the prior negligence to support the allegations in the pleadings.

[12] There are cases where bald allegations of similar acts were offered either as similar fact evidence, or to support claims for breach of fiduciary duty, breach of a duty to disclose or remedy deficiencies, known incompetence and punitive damages were struck because there were no material facts pled in support of same and no evidence was submitted on the motion to strike and therefore, it was not possible to demonstrate the required pattern or similarity. (See MacNeil v. Humber River Regional Hospital, 2011 ONSC 6691, Blunt v. Dr. Vaidyanathan, 2018 ONSC 3243, and Woods (Litigation Guardian of) v. Jackiewicz, 2013 ONSC 519).

[13] Here the only facts pled relate to statements made by hospital staff that the doctor had problems in the past and the case of another patient who sued. Neither of these pleadings are sufficient to form the basis for the challenged pleadings. There are no particulars of the past problems and the case involving the other patient has no similarity to the present case and is not relevant.

[14] In striking many of the Plaintiff’s allegations, the Associate Judge correctly found that the Plaintiff did not articulate a clear nexus between the medical procedure at issue and the similar fact evidence alleged. It was an error of law not to apply the same test to the allegations of known incompetence, high complication rates and expert criticism which was baldly pled. The Associate Judge incorrectly relied on the finding in J.O. when deciding that a pleading of a “high surgical complication rate” or being the “subject of expert criticism” were themselves sufficiently pleaded material facts to support allegations of known incompetence. In J.O., on the motion to strike, the plaintiff proffered evidence to support these allegations. Here, there were no particulars of these allegations and there was no evidence led on the motion to strike. The Associate Judge failed to apply the law correctly with respect to paragraph 22(vii), 22(ix), 22(x) and 23(vii) of the claim. These paragraphs were not supported by material facts or evidence on the motion and should be struck.

[15] The Associate Judge correctly stated that breach of fiduciary duty claims must be supported by pleadings of material facts. There must be sufficient material facts to link the prior errors to the known incompetence with respect to the procedure in issue. It is a two-part analysis: first the allegations of known incompetence must have sufficient material facts to establish they are sufficiently similar and second, those allegations must be sufficient to give rise to a fiduciary duty to either remedy or disclose the known incompetence. The Associate Judge correctly applied this test to some of the allegations in the claim but not to the allegations related to the Defendants’ knowledge of “high complication rates” and “expert criticism”. This was an error of law. Had the Associate Judge correctly applied the same test, he would have struck these allegations and the related allegations of breach of fiduciary duty and damages. Again, the Associate Judge incorrectly relied on J.O. where similar allegations were sufficient to support claims of breach of fiduciary duty because they were supported by evidence on the motion. The Associate Judge incorrectly relied on Woods, and stated that in Woods, pleadings of failure to disclose or remedy incompetence were permitted. In Woods the defendant did not ask that those paragraphs be struck and the issue was not before the court and not considered. The Associate Judge erred in not striking the allegations related to breach of fiduciary duty, and related damages in paragraphs 24(1)(b), 24(2), 28(2), 28(3), 32-41 and 48.

Order

[16] This appeal is allowed and paragraphs 22 (vii), 22(ix), 22(x), 22(xi), 23(viii), 24(1)(b), 24(2), 28(2), 28(3), 32-41 and 48 of the claim are struck.

Costs

[17] If there is no agreement on costs the parties may make submissions of not more than 3 pages plus Costs Outlines on or before May 5, 2023.

L. Merritt J. Released: April 28, 2023