Court File and Parties

Court File No.: 17-00072696

Superior Court of Justice

Between:

JEANNE D'ARC CHAMOUN AND MAHROUS CHAMOUN AND GLORIA SEMAAN Plaintiffs

• and -

ETHIOPIA GEBRU AND YARED MESFIN Defendants

Proceedings

Before: THE HONOURABLE JUSTICE P. ROGER On: April 5, 2024, at OTTAWA, Ontario

Appearances:

J. Obagi/A. Aldersley/C. Colangelo Counsel for the Plaintiff A.C. Gluek/E. Scott Counsel for the Defendant

Table of Contents

Witnesses

Witnesses	In-Chief	Cross-Ex	Re-Ex
None

Exhibits

Exhibit Number	Entered on Page
None

Ruling 1

Transcript Ordered: April 5, 2024 Transcript Completed: April 17, 2024 Ordering Party Notified:

Ruling

FRIDAY, APRIL 5, 2024

...EXCERPT AS REQUESTED BEGINS

ROGER, J. (Orally):

The defendants bring a motion seeking a ruling that serving a subpoena or a summons on Dr. O'Connell will allow them to receive the doctor's entire clinical notes and records without the doctor having to be sworn or be called as a witness and be subject to cross-examination by the plaintiffs.

Dr. O'Connell is the plaintiffs' family doctor since 2008. The plaintiffs initially produced Dr. O'Connell's notes and records for the three-year period prior to the accident, and at the request of the defendants agreed to produce his records for the period five years before the accident, or from May 25, 2010.

The plaintiff’s examination for discovery was completed by October 2018. There apparently is evidence that the plaintiff suffered from depression starting about 2008, and that she stopped working at about that time for reasons that could include low back pain and other health-related reasons. The defendants did not request more of the clinical notes and records of Dr. O'Connell until December 2023.

This trial was originally scheduled to start on November 14, 2023, but on the Friday before the scheduled start date, the parties were advised that the trial could not proceed because of a lack of judicial resources. As indicated above, it is only thereafter that the defendants first requested all the clinical notes and records of Dr. O'Connell; their request was made on or about December 5, 2023.

Shortly before the scheduled start of this trial, in November 2023, plaintiffs' counsel served a notice under sections 35 and 52 of the Evidence Act that included some of the notes and records of Dr. O'Connell. The defendants' sections 35 and 52 notices then also included some of Dr. O'Connell's clinical notes and records. However, after the November 2023 trial was cancelled, both parties pulled the notes and records of Dr. O'Connell from their respective Evidence Act notices. It is after this that the defendants first requested Dr. O'Connell's missing clinical notes records from 2008 to 2010. The defendants say that this came about when the plaintiffs decided not to include the notes and records of Dr. O'Connell in their sections 35 and 52 notices. More recently, plaintiffs' counsel confirmed that the plaintiffs would not call Dr. O'Connell as a witness at this trial.

I am not convinced that having to call as a witness at trial a person upon whom a party serves a summons is unfair when that party only wishes to obtain documentary disclosure from that person.

Here are my reasons.

The authorities relied upon by the defendants are either not helpful to their arguments or are dated and not relevant to the current civil litigation circumstances existing in this province.

The Ontario Rules of Civil Procedure were modified in 1985. Since, the concept of trial by ambush has hopefully been eradicated from our civil litigation environment. The focus now, as reflected by our rules of civil procedure, is to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. This incorporates principles of early disclosure of relevant documents and of discovery. Our discovery process is extensive and includes required disclosure from non parties and, as well, the availability of motions to rule on contested disclosure and discovery issues. The eve of trial is rarely the best time to deal with discovery issues, and allowing the defendants' motion would point us in the wrong direction.

The language of rule 53.04(1) of the Rules of Civil Procedure is clear in its reference to the person's attendance at a trial requiring the person to attend the trial. It is also clear in that it may also require the person to produce at the trial the documents or other things requested. This is the interpretation of Fuerst, Sanderson, and Firestone in their text, Ontario Courtroom Procedure 5th edition, at page 848. It is also the interpretation of the court in Sanson v. Paterson, (2020) ONSC 7773 at paragraphs 28 and 29, and of the divisional court in Reflexion Productions v. Ontario Media Dev. Corp., (2022) ONSC 64, at paragraph 72.

As indicated by the divisional court in Reflexion, a subpoena requires the witness to bring requested documents connected with his or her testimony, and it should not be used, "To avoid the scrutiny associated with other methods of acquisition."

Here, the defendants could have brought the required motion at an earlier date and could have sought to obtain these notes and records by meeting the applicable tests. Encouraging parties to avoid applicable discovery avenues and applicable tests by serving a summons on a witness is not the desired solution. Imagine if this became the norm and parties served summons on witnesses prior to trial to obtain required disclosure. Such a process would cause delays and difficulties as it would require trials to be adjourned while this is dealt with, and newly disclosed documents are reviewed by the parties. This would lead to trial by ambush and would also discourage early settlement. This would point us in the wrong direction.

Consequently, if the defendants wish to obtain and review the notes and records of Dr. O'Connell from the start of consultations by the plaintiff in about 2008 until what has already been disclosed starting in May 2010, then they shall serve a summons on this doctor as per rule 53.04 with the attending consequences of Dr. O'Connell attending at the trial as their witness and thereby be subject to cross-examination by counsel for the plaintiffs.

The plaintiffs were successful on this motion and unless the parties wish to make submissions, I would think that the costs of this motion should be payable to the plaintiffs in any event of the outcome of this trial, but to be determined after trial should the parties not be able to reach an agreement on this issue.

...END OF EXCERPT AS REQUESTED

Electronic Certificate of Transcript

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Jennifer Baird-Norman, certify that this document is a true and accurate transcript of the recording of CHAMOUN ET AL V. GEBRU ET AL in the Superior Court of Justice held at 151 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR32_20240405_095748 10_ROGERP.dcr, which has been certified in Form 1.

April 17, 2024 (Date) (Electronic Signature of Authorized Person) _2869957139 (Authorized Court Transcriptionist's Identification Number)

Ontario, Canada. (Province of Signing)

*This certification does not apply to the Ruling which was judicially edited.

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.