Court File and Parties

COURT FILE NO.: CV-20-00638037-0000 DATE: 2023-11-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ELENA PLAXIY, SERGEY PLAXIY, EKATERINA PLAXIY and ELIZABETH PLAXIY, by her Litigation Guardian SERGEY PLAXIY, Plaintiffs – and – PETRO FEDUN, ALEXANDRU OPINCA and CERAMIC ART DENTAL LABORATORY INC, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Howard Wolch, for the Plaintiffs Andrew Lundy, for the Defendant, Petro Fedun Joseph Lin, for the Defendant, Alexandru Opinca Francis Bertucci, for the Defendant, Ceramic Art Dental Laboratory Inc.

HEARD: November 15, 2023

ENDORSEMENT

[1] This is a dental malpractice action. Plaintiff’s counsel has arranged a case conference in an effort to reschedule a motion to permit him to be accompanied by two experts at the upcoming examination for discovery of the Defendant, Dr. Petro Fedun. The two experts are a dentist in general practice, Dr. Richard Rayman, and a University of Toronto dentistry professor and maxillofacial prosthodontist, Dr. Eszter Somogyi-Ganss.

[2] In conjunction with the discovery motion, Plaintiffs also seek an order permitting their two experts to testify as experts at trial following their participation with Plaintiff’s counsel at discoveries.

[3] The Plaintiff’s motion was already scheduled once. Unfortunately, Plaintiff’s counsel inadvertently missed the deadlines for serving various materials that had been established by the court. The Defendants are therefore left with little time to respond. The motion that had been set for this coming December 8, 2023 is no longer realistic.

[4] Plaintiff’s counsel acknowledges his error in missing the deadlines and does not argue against the Defendant’s complaint that time is now too short for them to adequately respond to the motion. Instead, he requests that a new date be set. Given how the motions list currently stands, that will put the hearing of the motion off another 14 or 15 months.

[5] The courts have recently begun to call for practical solutions to the problem of delay in the civil justice system. My colleague Justice Koehnen has recently written that, “Case conferences that offer relief on a much more limited set of materials are, in the words of the Supreme Court of Canada in Hryniak, a more proportional procedure that is tailored to the needs of the particular case that is nevertheless fair and just”: Miller v. Ledra, 2023 ONSC 4656, at para. 30.

[6] Under Rule 50.13(6) of the Rules of Civil Procedure, a judge has the power at a case conference to: (a) make a procedural order; (b) convene a pretrial conference; (c) give directions; (d) make an order for interlocutory relief; or (e) convene a hearing. Since the Plaintiff’s proposed motion is the kind of procedural matter that falls within the scope of these powers, I asked counsel to address the merits of the motion. The goal of exercising these powers at a case conference is to prevent, if at all possible within the confines of due process, an action from languishing unnecessarily for the many months it takes to schedule a procedural motion.

[7] In seeking to have assistance of experts at discovery, Plaintiff’s counsel relies on the decision in Telemax Communications Inc. v. Canquest Communications (Canada) Inc., 2006 CanLII 7033. Associate Justice Dash explained that, “a party may be permitted to have the assistance of an expert witness during an examination for discovery ‘to advise and assist examining counsel when the technical complexity of the evidence is of such a nature that the party attempting to justify his or her presence could not proceed or could proceed only with difficulty to a satisfactory examination’”: Ibid., at para. 28, quoting Al’s Steak House & Tavern v. Deloitte & Touche, [1998] O.J. No. 6545, at para. 4 (Gen Div).

[8] Counsel for Dr. Fedun argues that the medical issues here are rather straightforward and not in need of expert elucidation. He states that in his lengthy career practicing in the medical malpractice area, he has never seen a lawyer need to bring their expert into the discovery process. He submits that lawyers often have to come up to speed on the various subject matters of their cases, and dental cases present no exception.

[9] Counsel for the Plaintiff says that he is not able to conduct discovery in a technical field like this without expert assistance. He submits that maxillofacial prosthodontia is a highly complex subject and that, although he has studied the report produced by Dr. Somogyi-Ganss, he needs her to attend with him so that his questioning of the deponent will be on point and effective.

[10] As set out above, Plaintiff’s counsel would also like to be accompanied by Dr. Rayman during discoveries. However, he has not made an argument as to why a dentist in general practice is a necessary person to have with him in the examination room.

[11] I am not in a position to second guess Plaintiff’s counsel’s needs. If he wants to bring Dr. Somogyi-Ganss to the examination for discovery of Dr. Fedun, he is at liberty to do so. She is a specialist whose advanced knowledge of the field might well be of assistance to Plaintiff’s counsel.

[12] Dr. Somogyi-Ganss’ participation in the discovery is to be discrete and her interventions made only where necessary. The presence of an expert assisting counsel should not be a reason for the examination to become prolonged and bogged down in detail, or oppressive and/or intimidating to the witness.

[13] I see no rationale for having Dr. Rayman attend at the discovery as well. He is not a specialist, and insofar as the examination will cover matters of general dental practice, I am sure Plaintiff’s counsel can come up to speed by preparing well beforehand. In any case, experience tells us that the more crowded the room is on one side of the table, the more prejudicial the effect will be on the party being deposed.

[14] As indicated at the outset, Plaintiff’s counsel also seeks a ruling that Dr. Somogyi-Ganss will still be able to testify as an expert at trial. I am not prepared to make such a ruling.

[15] Once Dr. Somogyi-Ganss participates in the discovery process in the way suggested by Plaintiff’s counsel, she will have effectively become part of the Plaintiff’s advocacy team. In Wu v. Di Iorio, 2023 ONSC 3352, at para. 84, Myers J. found, as I have here, that counsel is permitted to have an expert assist him during discoveries with a highly technical subject matter. He then went on to suggest, in admirable understatement, that the presence of an expert at counsel’s side in discoveries “might even aid [opposing counsel’s] challenge to [the expert’s] independence when he appears as an expert witness.”

[16] In my view, there is little doubt that the effect of assisting counsel at discoveries is that an expert will not be in a position to testify as an expert witness at trial. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at para. 46, the Supreme Court of Canada stated pointedly that “the expert must be fair, objective and non-partisan.” An expert who has become part of one side’s advocacy team, assisting, as Plaintiff’s counsel described it to me, in the cross-examination of the opposing party, is not likely to be objective and is certainly not non-partisan.

[17] Of course, it is the trial judge who will ultimately determine all questions of expert witness qualification and admissibility of evidence at trial. That judge will have their own view of what the White Burgess case requires of an expert.

[18] But from my point of view, Plaintiff’s counsel must decide how to use Dr. Somogyi-Ganss. That is, he can make use of her expertise as a resource at discovery and thereby bring her onto his partisan advocacy team, or he can leave her off the discovery team and thereby preserve her chance of qualifying as an appropriately objective, non-partisan expert at trial.

[19] There is no need to schedule a further hearing for Plaintiff’s proposed motion.

Date: November 16, 2023 Morgan J.