Court File and Parties

COURT FILE NO.: CV-17-578803

MOTION HEARD: 2023-01-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sandra Salamaszynski, As Estate Trustee without a Will, of the Estate of Anthony McDonnell and Sandra Salamaszynski, Plaintiffs

AND:

Michael Garron Hospital (Formerly known as Toronto East General) and Dr. Cristina Pastia, Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Jeffrey Strype, counsel for the moving party plaintiffs Stephen Ronan, counsel for the responding party defendant Dr Pastia

HEARD: 26 January 2023

Reasons for Decision

[1] In June 2022, the defendants in this medical malpractice action delivered an expert report from Dr. Karbi in which he was asked to make certain assumptions. One of those assumptions was that, when the deceased Anthony McDonnell saw the defendant Dr. Pastia in the emergency room on 14 July 2015, he told her that "the onset of his chest pain was at 0500 hours on the day in question".

[2] Defendants' counsel advised when they delivered the expert report that "it will be Dr. Pastia's evidence at trial that Mr McDonnell reported to her that the onset of his constant chest pain was at 5:00 am on July 14, 2015." In a later exchange, defence counsel advised that "Dr. Pastia's anticipated evidence is based on her own independent recollection of the encounter with Mr. McDonnell and is not based on any note or record".

[3] The plaintiffs argue that this has never been Dr. Pastia's evidence and is, in fact, contrary to the evidence she gave on her examination for discovery. They seek production of the instructing letter from defence counsel to Dr. Karbi, along with all emails between them and any memo detailing any conversations about that assumption.

[4] The parties agree that in order for the plaintiffs to succeed in obtaining disclosure of what is otherwise privileged information, there must be evidence that "might support a reasonable suspicion that counsel improperly influenced the expert" (Moore v Getahun, 2015 ONCA 55 at paragraph 78, as followed in Edwards v McCarthy 2019 ONSC 3925 at paragraph 16).

[5] While the bar is low, I find the plaintiffs have not met it in this case. First, there is no evidence that might suggest that counsel was involved in improperly influencing the expert. Second, in considering the real substance of the dispute, it is apparent that the complaint is not that the expert was interfered with, but that the assumption he was asked to make is incorrect and that Dr. Pastia's "new" information is implausible. It is suggested that the change in her evidence, as the plaintiffs see it, must have come about as a result of some improper coaching or interference.

[6] The expert does not make any findings or draw any conclusions about the truth of the assumption he was asked to make. If the assumption is not proven at trial, then plaintiffs' counsel will make his argument about the weight to be given to the expert's report at that time.

[7] Plaintiffs' counsel suggests that the new information from Dr. Pastia is so implausible that the defendants should be required to disclose what they told the expert about it. There are two responses to this. First, the expert has disclosed the foundational information, including "a description of the factual assumptions on which the opinion is based", as required by rule 53.03(2.1)(6)(i). Unless and until the expert is called at trial, this is the information to which the plaintiff is entitled (see Edwards v McCarthy, supra).

[8] Second, the plaintiff can put to Dr. Pastia on cross examination that there was no evidence in her notes of a discussion of the time of the onset of chest pain, that she indicated she had no independent recollection apart from her notes and that her recent recollection of a conversation now seven years old is not credible. But this is an issue for trial.

[9] The plaintiffs argue that this information should be provided now to assist in "a just determination of the action or an early and fair settlement". This same position was advanced in the first instance in Edwards v McCarthy and rejected on appeal. Stinson, J. held at paragraph 13 that:

At this stage of the proceeding, the defendant has complied with rule 53.03 in order to satisfy the procedural pre-conditions to be permitted to call the expert as a trial witness. It does not follow automatically that the defence expert will testify at trial; that it is a decision that can only be made by defence counsel once the plaintiff's case is closed and the defendant can properly assess the case that must be met. At the pre-trial stage, the plaintiff's right to disclosure is set out in rules 31.06(3) and 53.03(2.1).

[10] I find that the defendants have disclosed the information prescribed by rule 53.03(2.1) and have not waived privilege by serving the expert report. There is no evidence that might support a reasonable suspicion that counsel improperly influenced the expert and litigation privilege continues to attach to communications between defence counsel and the expert.

[11] The motion is dismissed with costs to the defendants in the amount of $6,500, fixed on a partial indemnity basis and payable within 30 days.

Associate Justice Jolley

Date: 27 January 2023