Veran et al. v. Derbyshire et al., 2024 ONSC 2312
COURT FILE NO.: CV-19-367-00 DATE: 2024-04-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jeremy Veran, Shawn Veran and Renee Veran Plaintiffs
Counsel for the Plaintiffs: Paul Harte, Maria Damiano and Ron Bohm
- and -
George Derbyshire, John McPherson, Russell Clark, Uday Chadha, Susan Graham, Theresa Clinton, Francis Denson, Ralph Suke and Thunder Bay Regional Health Sciences Centre Defendants
Counsel for the Defendants: Brendan Morrison, Eli Lederman, Madison Robins and Alexa Jarvis
HEARD: April 16, 2024, at Thunder Bay, Ontario
Mr. Justice S.J. Wojciechowski
Reasons On Motion
Introduction
[1] The plaintiffs bring a motion seeking to address a number of issues before trial commences on Monday, April 22, 2024, and seek the following:
- An order dismissing the action without costs as against the defendants, Russell Clark, Uday Chadha, Susan Graham, Theresa Clinton, Francis Denson and Ralph Suke (the “Released Defendants”);
- An order granting leave to amend the Statement of Claim to reflect the dismissal of all claims against the Released Defendants;
- An order for the preliminary determination of the jury questions; and
- An order excluding the expert evidence disclosed in two recently served defence expert reports for the purpose of trial.
[2] It was agreed between the parties that the relief sought regarding the two defence expert reports will be argued on Friday, April 19, 2024, and that issue is adjourned to the motion hearing set to commence at 11:00 a.m. on that date.
[3] In these reasons, I will deal with the request for an order dismissing the action of the plaintiffs against the Released Defendants.
[4] With respect to the second and third requests for relief – amended pleading and jury questions – given the timeliness of these issues which need to be decided before trial commences on Monday, April 22, 2024, I will provide my decision in an abbreviated fashion with full reasons to follow.
1. Dismissal of Action against the Released Defendants
[5] At the outset of this litigation, claims were made against a number of defendants, including the Released Defendants.
[6] The plaintiffs and the defendants agreed to a dismissal without costs’ as against the Released Defendants on February 4, 2022, but no order has yet been obtained.
[7] I hereby order that the plaintiffs’ action as against the defendants, Russell Clark, Uday Chadha, Susan Graham, Theresa Clinton, Francis Denson and Ralph Suke be dismissed without costs.
2. Amendments to the Statement of Claim
[8] The statement of claim in this matter was issued on August 16, 2013 in which the defendants were George Derbyshire (Dr. Derbyshire) and the Thunder Bay Regional Health Sciences Centre (“the Hospital”). It was subsequently amended on January 17, 2015 to add John McPherson (“Dr. McPherson”) and the Released Defendants.
[9] The claims of the plaintiffs have now been dismissed as against the Released Defendants, as well as the Hospital. As such, the plaintiffs are seeking to amend their pleading and remove the parties and the related allegations which are no longer relevant to the issues proceeding to trial.
[10] In other words, the plaintiffs are seeking leave to amend their pleading pursuant to Rule 26.01 of the Rules of Civil Procedure so that the alleged facts and acts of negligence which remain are specifically relevant to the claims against Dr. Derbyshire and Dr. McPherson. In order to do so, the plaintiffs are proposing to file a Fresh as Amended Statement of Claim instead of making the amendments on the face of the Amended Statement of Claim which was issued on January 17, 2015.
[11] The defendants do not object to the Amended Statement of Claim being amended, but take issue with some of the proposed amendments and submit that any changes should be reflected within an Amended Amended Statement of Claim instead of a Fresh as Amended Statement of Claim.
Decision
[12] Rule 26.01 requires a court to grant leave to amend a pleading, at any stage of an action, on such terms which are just except where prejudice would result that could not be properly addressed through a costs’ order or an adjournment.
[13] How amendments are made is addressed in r. 26.03(1):
An amendment to a pleading shall be made on the face of the copy filed in the court office, except that where the amendment is so extensive as to make the amended pleading difficult or inconvenient to read the party shall file a fresh copy of the original pleading as amended ….
[14] I am therefore basing my decision on the application of r. 26.03 and whether the proposed amendments are so extensive that they make the pleading in support of the plaintiffs’ claim difficult or inconvenient to read.
[15] In applying r. 26.03(1), I find that the proposed amendments are too extensive and would make the plaintiffs’ pleading difficult and inconvenient to read. On that basis, the filing of a Fresh as Amended Statement of Claim is preferable to an Amended Amended Statement of Claim.
[16] With respect to further submissions of the defendants that some of the proposed amendments remove admissions made by the plaintiffs invoking r. 51.05, I must consider the application of this rule.
[17] Admissions are deliberate statements acknowledging the truth of a particular fact. An opposing party should be entitled to rely upon admissions in order to support its case. As such, if the proposed amendments impact admissions made by the plaintiffs, then careful consideration has to go into whether such amendments can be permitted.
[18] After hearing submissions from counsel, I agree with the plaintiffs that the excerpts referenced by the defendants are merely allegations, not admissions.
[19] Since these are not admissions, a consideration of the three part test applicable to r. 51.05 is not necessary.
[20] But in case I am wrong in my determination that these are not admissions, r. 51.05 requires a consideration of three factors before an admission can be withdrawn by amendments to a pleading.
[21] The first two – the amendment gives rise to a triable issue and the admission was inadvertent – clearly do not apply in the present fact scenario. I also find that the third factor, giving rise to a consideration of prejudice upon the party opposing the amendments, does not arise.
[22] There is no prejudice to the defendants in the amendments proposed by the plaintiffs.
[23] Accordingly, the plaintiffs are granted leave to file a Fresh as Amended Statement of Claim as found at Tab 3 of the Plaintiffs’ Motion Record and uploaded to Caselines at pages A1070 to A1085.
3. Jury Questions
[24] Both the plaintiffs and the defendants drafted and filed a set of jury questions. Each were markedly different. The parties urged me to accept one version over the other.
[25] I am persuaded, based upon submissions and my review of the relevant case law, that in this case which involves allegations that damages were caused by a delay in diagnosis by two distinctly different physicians over a period of time, questions which include reference to a standard of care and the “but for” test are more appropriate.
[26] The jury will also be asked to provide a brief explanation to its answers. This will require the jury to disclose reasoning to support its answers. Reasons which are provided will supply confidence to the parties that the jury did its job and understood what it was asked to do. Reasons will test the jury’s understanding of instructions which they are provided before deliberations begin. Reasons ensure that the applicable legal principles were not disregarded in favour of a decision motivated by an emotional reaction to either side’s position. Reasons will also ensure the jury follows through with a thorough analysis of the issues, linking the duty of care and causation decisions with the evidence led during the trial.
[27] Insofar as the format for the questions on damages, I adopt the form of the questions drafted by the plaintiffs which do not require the jurors to provide a line by line assessment of the losses of the plaintiffs. Committing to a particularized set of categories at this time, before the evidence is adduced, could result in questions being amended, deleted or added in order to adapt to the evidence led during the trial. Categories of damages which are more generic will more readily accept tailor made instructions.
[28] While the jury will have to make a decision on the life expectancy of Jeremy Veran in order to assess damages, this is not a specific question which requires a specific answer from the jury.
[29] Accordingly, subject to developments during the course of the trial which may require amendments to the questions before the jury is charged, the jurors will be asked to answer the questions set out in Schedule “A” in order to address the issues in this action.
“Originally signed by”
The Hon. Mr. Justice S.J. Wojciechowski
Released: April 19, 2024
SCHEDULE “A”
PART I – LIABILITY
DR. GEORGE DERBYSHIRE
Standard of Care
- (a) – Have the plaintiffs proven on a balance of probabilities that Dr. Derbyshire breached the standard of care expected of a physician in similar circumstances practicing in the Province of Ontario? (b) – If your answer to question 1(a) is “yes”, please state the particulars of the breach or breaches of the standard of care.
Causation
(a) – If your answer to question 1(a) is “yes”, have the plaintiffs proven on a balance of probabilities that, but for the breach or breaches of the standard of care identified in 1(b), Jeremy Veran would not have any physical or cognitive disabilities? (b) – If your answer to question 2(a) is “no”, have the plaintiffs proven on a balance of probabilities that, but for the breach or breaches of the standard of care identified in 1(b), some of Jeremy Veran’s disabilities would not have occurred?
If your answer to question 2(a) or 2(b) is “yes”, please state the particulars of how the breach or breaches of the standard of care caused the specific disabilities that otherwise would not have occurred?
DR. JOHN MCPHERSON
Standard of Care
- (a) – Have the plaintiffs proven on a balance of probabilities that Dr. McPherson breached the standard of care expected of a physician in similar circumstances practicing in the in the Province of Manitoba? (b) – If your answer to question 3(a) is “yes”, please state the particulars of the breach or breaches of the standard of care.
Causation
(a) – If your answer to question 3(a) is “yes”, have the plaintiffs proven on a balance of probabilities that, but for the breach or breaches of the standard of care identified in 3(b), Jeremy Veran would not have any physical or cognitive disabilities? (b) – If your answer to question 4(a) is “no”, have the plaintiffs proven on a balance of probabilities that, but for the breach or breaches of the standard of care identified in 3(b), some of Jeremy Veran’s disabilities would not have occurred?
If your answer to question 4(a) or 4(b) is “yes”, please state the particulars of how the breach or breaches of the standard of care caused the specific disabilities that otherwise would not have occurred?
PART II - DAMAGES
DAMAGES
- What amount, if any, do you assess the damages sustained by the Plaintiffs? Please provide your answers with respect to each category of damages claimed.
Non-Pecuniary Damages
| Plaintiff | Amount |
|---|---|
| Jeremy Veran – General Damages | |
| Rene Veran – FLA Damages | |
| Shawn Veran – FLA Damages |
Past Loss of Income
| Plaintiff | Amount |
|---|---|
| Jeremy Veran | |
| Rene Veran | |
| Shawn Veran |
Past Goods and Services
| Item | Amount |
|---|---|
| Rene Veran (Care Services) | |
| Shawn Veran (Care Services) | |
| Out of Pocket Expenses |
Future Loss of Income
| Plaintiff | Amount |
|---|---|
| Jeremy Veran |
Loss of Benefit of Marriage/Cohabitation
| Plaintiff | Amount |
|---|---|
| Jeremy Veran (Past) | |
| Jeremy Veran (Future) |
One Time Costs for Jeremy
| Item | Amount |
|---|---|
| Home Modifications | |
| Cottage Modifications | |
| Therapies | |
| Equipment and Supplies |
Future Care for Jeremy
| Item | Amount Per Year |
|---|---|
| Attendant Care | |
| Therapies | |
| Equipment and Supplies | |
| Vehicle Conversion and Maintenance | |
| Travel to Medical Appointments |
OHIP Subrogation
| Category | Amount |
|---|---|
| Past OHIP | |
| Future OHIP |