Court File and Parties

COURT FILE NO.: CV-14-509361 MOTION HEARD: 20230803 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Scott Graham and Barbara Graham, Plaintiffs AND: Bridgepoint Health, Dr. Sheldon Berger, Nurse Linda Pede, and Nurse Rhea Yang, Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Scott Graham, counsel representing himself and Barbara Graham Katharine Byrick, counsel for the responding party Bridgepoint Health Renee Zatzman Stein, counsel for the defendant Dr. Berger, observing

HEARD: 3 August 2023

Reasons for Decision

[1] The plaintiff brings this motion for numerous discovery-related relief as against the defendant Bridgepoint Hospital (“Bridgepoint”) including an order that he be permitted to examine Bridgepoint’s representative for discovery in person, given its failure to provide answers to written interrogatories in the timeframe ordered by Wiebe, A.J. or even before he brought this motion.

[2] This matter is set for a five day trial for the week of 13 May 2024. There was also an order made at the April 2023 pretrial conference that any supplementary expert’s affidavit be delivered by 1 October 2023, so time is of the essence on many of these issues.

[3] As I advised the parties at the outset of this motion, this is not a refusals motion. The parties agreed that the focus needs to be on determining an expeditious path forward so they can meet the May 2024 trial date.

[4] The key issues for this motion are productions of hospital policies and delivery of follow up questions and answers and the format in which those answers will be provided.

(a) Policies

(i) Infection Control Policies

[5] Bridgepoint has provided an index of its infection control policies at Caselines A1752 but not the policies themselves. The plaintiff provided a list of the infection control policies he asked be produced at Caselines A1700, paragraph 13(f). After discussion, Bridgepoint has agreed to produce all of those policies listed in paragraph 13(f) at A1700 without any admission of their relevance or admissibility. It will provide them, along with its position on both relevance and admissibility, by 10 August 2023. Relevance and admissibility will be left to the trial judge.

[6] The delivery of these policies will permit the plaintiff to meet the 1 October 2023 deadline for the delivery of any supplementary expert affidavit.

(ii) Other Non-Infection Control Policies

[7] In his appendix to his supplementary motion record, the plaintiff has requested additional policies other than those he referenced in A1700. In addition to the appendix requests, he also requests a copy of Bridgepoint’s digital/records retention policy and any other policy dealing with data or data storage. Bridgepoint will produce those policies that it views as relevant and will provide its position on why any policies not produced are not relevant. It will provide these documents or position by 23 August 2023.

(iii) Policies that cannot be located

[8] Bridgepoint advised that there is no master index of all the hospital policies that were in place in July or August 2012, outside the infection control policies. It has produced the policies it has and views as relevant. It has advised of any policies that it no longer has. It agrees that it will list in Schedule C of its affidavit of documents all policies that it once had but no longer has, and all other particulars required by schedule C. It will include in that list the Consent Policy Guidelines, which it has advised the plaintiff cannot be located. It has provided the plaintiff with the subsequent guidelines to the legislation even though they may not be relevant.

(b) X-rays and Imaging

[9] The plaintiff has requested copies of the imaging done when he was in hospital, as his expert has advised that he cannot provide a comprehensive report without this information. The report of the radiologist on those x-rays has been produced but the x-rays themselves have not. Bridgepoint has advised that it does not have the x-rays. Further, it has checked with St. Michael’s Hospital, where the x-rays were sent for review and St. Michael’s confirmed that it does not have the x-rays either. Bridgepoint will list the x-rays in its Schedule C.

(c) Affidavit of Documents

[10] The plaintiff requests production of Bridgepoint’s additional documents but objects to it being able to produce a supplementary affidavit of documents. The plaintiff argues that Bridgepoint did not comply with rule 76.10(4)(a) which required it to provide a copy of its affidavit of documents and copies of the documents it relies on for its defence no later than five days before the pre-trial conference. The plaintiff argues that he was entitled to know at that point the case he had to meet and that it would be unfair to permit the defendant to continue to add documents to its productions and be allowed to rely on them at trial.

[11] A supplementary of affidavit of documents is required by the rules. Bridgepoint is not precluded from providing one but, to the contrary, is obliged to do so.

[12] If Bridgepoint has not provided a sworn affidavit of documents with the schedules attached, (which it advises me it has done more than once), it shall do so by August 23 and shall also upload the sworn complete affidavit to CaseLines. It shall also upload its Schedule A productions. It shall similarly upload its supplementary affidavit of documents, and productions as soon as the affidavit has been provided to the plaintiff.

(d) Form of Continued Examination

[13] I do not find that an in-person examination of Bridgepoint’s representative would be appropriate or would assist the parties moving forward. The parties all agreed, and Wiebe, A.J. ordered that the plaintiff would submit his questions by way of written interrogatory. While Bridgepoint did not provide its answers by the deadline ordered (and I understand its position that the written interrogatories were more extensive than it could have anticipated and could not be answered in the month provided), permitting the plaintiff to examine the defendant both in writing and then orally would not be an appropriate remedy.

[14] Further, given my order, below, on the timing for delivery of follow up questions and answers to those questions, an in-person discovery would not provide a more expedient process than written interrogatories.

[15] Lastly, given the likely nature of the plaintiff’s follow up questions, based on my review of his annotations to the answers Bridgepoint has provided, it is unlikely that the proposed Bridgepoint representative, Ms. Eli, could answer the follow up questions on the spot in any event without the need to give an undertaking to check with other hospital representatives.

[16] Follow up questions will be by written interrogatory.

(e) Answers to follow up Questions

[17] The plaintiff will provide a list of follow up questions concerning Bridgepoint’s answers to written interrogatories by 7 August 2023, as he agreed. Bridgepoint will provide answers to appropriate follow up questions by 23 August 2023. I agree that it is difficult to commit to that timeframe unconditionally without knowing the breadth of questions that the plaintiff will deliver, but Bridgepoint is to provide all possible answers by then and advise of an expeditious timeframe in which it will answer any remaining questions.

(f) Format of Bridgepoint Answers

[18] Bridgepoint provided answers to written interrogatories on 31 July 2023. They were not in the form of a sworn affidavit. Bridgepoint has agreed to provide those answers by way of a sworn affidavit when it delivers its answers to the plaintiff’s follow up questions that will encompass both sets of answers.

(g) Costs

[19] As I advised the parties, given the timelines in issue, I did not wish to hold up this decision in order to deal with costs and I encourage the parties to come to an agreement on costs. If they are unable to do so by 8 September 2023, they are to advise my assistant trial coordinator by email to Christine.Meditskos@ontario.ca . If required, I will make a determination on costs based on (a) the submissions that the parties uploaded for this motion and (b) their positions on the motion, including any positions concerning the binding nature of the pre-trial order of my colleague, Wiebe, A.J.

Associate Justice Jolley Date: 8 August 2023