BARRIE COURT FILE NO.: CV-15-871
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA ZIMMERMAN and MARK ZIMMERMAN
Plaintiffs
– and –
DR. BENJAMIN MCNAULL, DR. LEA BABCOCK, DR. WILLIAM TILLMANN, DR. MARK SWANSON, DR. JULIE GALLAGHER, DR. MICHAEL ODLOZINSKI, DR. WENDY MCCOMB, and ORILLIA SOLDIERS’ MEMORIAL HOSPITAL
Defendants
Tanya A. Pagliaroli, for the Plaintiffs
Greer Hope, for the Defendants, Dr. Benjamin McNaull, Dr. Lea Babcock, Dr. William Tillmann, Dr. Mark Swanson, Dr. Julie Gallagher, Dr. Michael Odlozinski and Dr. Wendy McComb
Derek Knoke, Counsel for the Proposed Defendants/Moving Parties, Alastair Legge and D'Arcy Little
HEARD: June 11, 2024
REASONS FOR DECISION
1This is a motion brought by the Proposed Defendants, Dr. Alastair Legge and Dr. D’Arcy Little (the “Proposed Defendants), to strike, in whole or in part, an affidavit sworn by the Plaintiffs’ lawyer, Gayle Brock, on January 27, 2023.
Factual Background
2The Proposed Defendants are physicians who held privileges at Orillia Soldiers’ Memorial Hospital (the Hospital) in 2009 and 2010.
3The Plaintiff, Dana Zimmerman, was a patient at the Orillia Soldiers’ Memorial Hospital on various dates in 2009, 2010 and 2013. The Plaintiff Mark Zimmerman, is her husband.
4The Proposed Defendants treated Dana Zimmerman in 2009 and 2010.
5The Plaintiffs commenced a medical malpractice claim against the Orillia Soldiers’ Memorial Hospital and the seven named defendant doctors on July 24, 2015. This medical malpractice action arises as a result of the treatment Dana Zimmerman sustained from medical treatment at the Hospital in July and Augst 2013.
6The Plaintiffs did not name the Proposed Defendants as defendants to the July 24, 2015 action.
7On December 3, 2020, the Plaintiffs brought a motion for leave to add the Proposed Defendants as defendants to the Action for the care they provided to Dana Zimmerman in 2009 and 2010 (the Leave Motion).
8The Proposed Defendants opposed the Leave Motion on the basis that the Plaintiffs’ claim was statute barred by the two year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
9In support of its motion for leave to add the Proposed Defendants to the action, the Plaintiffs filed the affidavit of Gayle Brock, sworn on December 3, 2020 (the first Brock Affidavit).
10The purpose of the first Brock Affidavit was to address the issue of discoverability in s. 5 of the Limitations Act. The first Brock Affidavit was provided as evidence of when and how the Plaintiffs were able to discover their claims against the Proposed Defendants. The Brock Affidavit outlines communications with and the opinions of consulting experts to support the Plaintiffs’ assertion that they “did not know and could not with reasonable diligence have discovered” the claims against the Proposed Defendants until June 20, 2018. Ms. Brock provided evidence as to what she knew at the time she commenced the claim in 2015, as well as when and how she first learned that the Plaintiffs may have a claim against each of the Proposed Defendants.
11The first Brock Affidavit resulted in a motion by the Proposed Defendants for production arising from the assertions in the first Brock Affidavit. The motion was heard by Boswell J. on March 26, 2021: Zimmerman v. McNaull, 2021 ONSC 3436. He summarized the nature of the motion at para. 4 of his decision:
The motion now before the court is interlocutory to the Leave Motion. It is a dispute about disclosure. The proposed defendants want to investigate the plaintiffs’ assertion about when they discovered (or ought to have discovered) the potential claim against them. Amongst other things they want the names and contact information of the experts who advised the plaintiffs’ lawyer that there was a cause of action against the moving parties. And they want access to all of the communications passing between the experts and the plaintiffs’ counsel.
12Boswell J. held, at para. 108, that “much of the documentation sought by the proposed defendants is simply not relevant to the live issues on the Leave Motion”. He did, however, find, at para. 109, that the first Brock Affidavit resulted in “a number of instances where I conclude that litigation privilege has been impliedly waived over relevant and material documents in whole or in part” and directed that the following be disclosed to the Proposed Defendants:
a. The names and contact information of the Neuro-consultants;
b. The brief references to the 2009/10 imaging of Mrs. Zimmerman’s head referred to in Ms. Brock’s notes of her October 30, 2017 phone conversation with her consulting neurosurgeon;
c. Ms. Brock’s notes of her phone call with her consulting neurosurgeon on April 11, 2018; and,
d. Ms. Brock’s notes of her phone call with her consulting neuroradiologist on June 20, 2018.
13Ms. Brock was cross-examined by the Proposed Defendants on her First Affidavit on October 13, 2021.
14On January 27, 2023, Ms. Brock swore a “Supplementary Affidavit”.
15This Supplementary Affidavit is the subject of the Proposed Defendants’ motion to strike.
Analysis
16The Proposed Defendants argue that the Supplementary Affidavit is an abuse of process because it attempts to:
a. Change and improve evidence in Ms. Brock’s original affidavit;
b. Revise evidence given by Ms. Brock during cross-examination on her original affidavit; and
c. Introduce improper reply evidence, thus splitting the Plaintiffs’ case on the motion.
17The Proposed Defendants also argue that the Supplementary Affidavit violates the Rule of Professional Conduct that prohibits a lawyer from acting as both counsel and witness on contentious issues.
Timing of Motion to Strike Affidavits
18In Holder v. Wray, 2018 ONSC 6133, Emery J. reviewed a number of cases dealing with the question of whether a court should hear a motion to strike inadmissible paragraphs from an affidavit in advance of the main application or whether the admissibility of affidavit evidence is a question best left to the court that hears the application. He concluded, at para. 40:
An advance ruling on striking all or parts of an affidavit can save the court the time of hearing and deciding evidentiary issues. A motion to strike can screen out evidence that is ultimately extraneous to the real issues between the parties, and that only increase the high cost of litigation. The motion to strike, used judiciously, provides the means by which to weed out frivolous or vexatious evidence that could require reply evidence, and might otherwise widen the scope of any cross-examination that is later found unnecessary. Although there are arguments for and against striking an affidavit in whole or in part prior to the main event, it is a discretionary order to make in the right circumstances. One “special reason” to make such an order in advance of the main hearing would be where the affidavit at issue is “clearly improper and it would inevitably give rise to extraordinary cost or difficulty for the other party.” See Allianz Global Risks at paragraphs 18 and 19, and Neighborhoods of Windfields Ltd. Partnership v. Death, 2007 CanLII 31756.
19Emery J. adopted a hybrid approach and struck some offending paragraphs from the affidavits but deferred a decision about other impugned paragraphs to the judge hearing the motion.
20In previous cases, I have followed this hybrid approach. In Hunt v. Stassen, 2019 ONSC 4466, I stated at paras. 10, 11 and 13:
Where the motion to strike is based on the relevance of the affidavit evidence it is often preferable to leave the question to the court hearing the application because relevance can often only be assessed in the context of the application as a whole. The judge who hears the application on its merits is usually best situated to make that determination.
There are other cases, such as those described by Emery J., where screening inadmissible evidence at a preliminary stage will result in a more efficient use of parties’ and the court’s time and resources. For example, affidavits often contain inadmissible legal argument, opinions or comments on the legal position of the opposing party. “Legal argument and legal submissions belong in a factum and not an affidavit and may be struck out”: Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069, at para. 27. Permitting such inadmissible argument, opinions or comments to remain in the affidavit until the application is heard presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs. None of these options is ideal. A pre-emptive motion to strike the offending paragraphs may be the more appropriate route because it permits the parties to limit their response or cross-examination to those parts of the affidavits that contain admissible evidence.
If the inadmissible evidence accounts for one or two isolated paragraphs in an affidavit, it may be more efficient to wait and have the issue of admissibility determined by the court hearing the case on its merits. In cases in which the affidavit is replete with inadmissible paragraphs, it may be fairer and more efficient to have the questions of admissibility determined in advance.
21This hybrid approach has been followed in more recent cases: Humberplex Developments v. Attorney General for Ontario, 2023 ONSC 2962, at paras. 10-14.
22Finally, as I did in Hunt, I adopt the following summary by Perell J. in Gutierrezat para. 35:
By way of my own summary, in the majority of cases, rather than a pre-emptive motion to strike affidavits in whole or in part for non-compliance with the Rules of Civil Procedure, it is preferable that the judge or master hearing the substantive motion rule on the admissibility of the evidence. However, there is no absolute rule, and a pre-emptive motion may be appropriate where either efficiency or fairness require that disputes about the factual record be determined before the substantive motion. On a case-by-case basis, it will be for the judge or master hearing the pre-emptive motion to decide whether to strike the impugned material or to defer the issues of admissibility to the judge or master hearing the substantive motion.
Rules of Professional Conduct
23Rule 5.2-1 of the Law Society of Ontario’s Rules of Professional Conduct addresses the professional responsibilities when the lawyer or lawyers of a law firm act in the dual role of advocate and witness in a client’s proceedings. Rule 5.2-1 imposes constraints on a lawyer or law firm acting in a dual capacity. Rule 5.2-1 states:
Submission of Evidence
5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless
(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or
(b) the matter is purely formal or uncontroverted.
24Perell J. summarized the law in relation to this Rule at paras. 37 and 38 of Gutierrez:
The case law reveals that it is improper for the deponent of an affidavit to act as counsel and rely on his or her affidavit. An advocate cannot avoid the rule that he or she cannot be a witness and advocate through the device of having someone else swear the affidavit based on information and belief from the lawyer. It is improper for a lawyer to appear as advocate on a matter where the lawyer is the source of the information concerning an important and contentious matter before the court, even where the lawyer is not the deponent of the affidavit.
If it is clear from the outset of a proceeding or if it becomes clear during the proceeding that the advocate will be a material witness, he or she should be disqualified and removed as lawyer of record. The disqualification arises even if counsel does not intend to testify because his or her involvement in the matter based on participation and actual knowledge of the events rather than based on just taking instructions from his client creates a conflict between his or her duty to the court and his or her duty to the client. [Citations omitted.]
25See also Ferreira v. Cardenas, 2014 ONSC 7119, at paras. 13 to 20.
26Ms. Brock has sworn two affidavits in relation to the limitation period issue in this case. The Proposed Defendants did not try to strike out her First Affidavit. Indeed, the Proposed Defendants acknowledge that Ms. Brock’s knowledge of the facts is critical to the limitation period issue in the Leave Motion. Paragraphs 16 and 18 of the Factum of the Proposed Defendants states:
The fundamental issue on the Limitation Period Motion1 is when the Plaintiffs had knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendants’ part can be drawn. In this case, the issue depends on what Plaintiffs’ counsel knew (or should have known) and when.
Ms. Brock’s evidence regarding her consultation with the experts is fundamental to the Limitation Period Motion, because if the Plaintiffs were aware of the claim against the Moving Parties as of April 11, 2018 (through Ms. Brock), then the claim would have become statute-barred on October 8, 2020 (taking into account the tolling of limitation periods during the COVID-19 pandemic).
27The Plaintiffs acknowledge that Ms. Brock, having sworn the affidavits, cannot argue the Leave Motion or the present motion.
28Clearly Ms. Brock cannot act as counsel for the Plaintiffs on the Leave Motion. She is a witness in that motion, and it will have to be argued by someone else. Whether she must also be disqualified as lawyer of record when the action is heard on its merits will be a question for the judge who tries the action. The answer to that question may depend on the result on the Leave Motion.
29The question is not whether Ms. Brock can swear an affidavit in this case – that ship sailed with the swearing of her First Affidavit on December 3, 2020 – the question is whether, having sworn an affidavit, Ms. Brock can continue to act as counsel of record, even after the leave motion is decided. That is not a question before me. The answer to that question will be the same, however, whether she swore the Supplementary Affidavit or not.
30The Proposed Defendants also rely on the commentary with respect to Rule 5.2-1 of the Law Society of Ontario Rules of Professional Conduct. The commentary states: “A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge”. A commentary to rule 5.1-1 reiterates that a lawyer “should refrain from expressing the lawyer’s personal opinions on the merits of a client’s case to a court or tribunal”.
31Ms. Brock’s Supplementary Affidavit contains 8 substantive paragraphs. In these paragraphs she states the scope of her instructions from her client when she was first retained in 2013, the information provided to her by her client, her request for her client’s medical records, her knowledge and understanding of the medical condition of her client based on her review of those medical records and her understanding of her client’s medical condition following her consultation with medical experts. While she briefly sets out her knowledge and understanding at specific periods of time, she does not express her personal opinions or beliefs on the merits of her clients’ case.
Abuse of Process
32Rule 25.11 of the Rules of Civil Procedure permits a court to strike out an affidavit, with or without leave to amend, on the grounds that it: (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous, or vexatious; or (c) is an abuse of process of the court.
33In Holder, Emery J. held, at para. 48:
It is therefore appropriate to strike all or any parts of an affidavit that are clearly irrelevant to the issues on the application where the facts given in evidence are intended to impugn the character of the other party or a fundamental witness, or to create prejudice with the result the evidence given is scandalous, frivolous or vexatious. Evidence that is irrelevant is not enough. Evidence given in an affidavit that is not relevant but seeks to embarrass, scandalize or prejudice a person or a position taken in the litigation is too much, and should be taken out.
34Nothing in the Supplementary Affidavit can be described as irrelevant or intended to impugn the character of, embarrass or scandalize the other party.
35The Proposed Defendants argue that the Supplementary Affidavit is “scandalous, frivolous or vexatious” within the meaning of Rule 25.11 because it is an “attempt to change or repudiate evidence” and is therefore not credible. The Proposed Defendants have provided a chart comparing the First Affidavit and the Supplementary Affidavit to show where Ms. Brock “attempts to change evidence…and to repudiate evidence given during Ms. Brock’s impeachment at cross-examination”.
36The Plaintiffs reject this assertion and deny that Ms. Brock’s Supplementary Affidavit attempts to change or repudiate her earlier evidence or is intended to confirm evidence that was shaken at cross-examination. The Plaintiffs have provided their own chart with “the addition of important contextual information”.
37In my view, this is precisely the kind of dispute that must wait until the Leave Motion is heard on its merits and should not be considered in an advance motion to strike the affidavit.
38It will be for the judge who hears the Leave Motion on its merits to assess whether Ms. Brock’s Supplementary Affidavit “attempts to change evidence…and to repudiate evidence given during Ms. Brock’s impeachment at cross-examination”. If it does, that will go to the credibility and reliability of Ms. Brock’s evidence on the Leave Motion. If Ms. Brock has attempted to change or repudiate her earlier evidence, that will be a fruitful area of cross-examination for the Proposed Defendants, who will have the opportunity to cross-examine her on the Supplementary Affidavit before the Leave Motion is heard.
39The Proposed Defendants argue that the Supplementary Affidavit should be treated like fresh evidence on an appeal and rejected if it is not “reasonably capable of belief”: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, at p. 775. Even if this analogy were apt (and I do not believe it is), I note that motions for fresh evidence are heard by the panel hearing the appeal pursuant to Rule 61.16(2).
Improper Reply Evidence
40The Proposed Defendants argue that Ms. Brock’s Supplementary Affidavit amounts to improper reply evidence. They argue that the Plaintiffs cannot tender new evidence in reply that is intended to rectify a cross-examination that has gone poorly. Reply evidence cannot be used to correct deficiencies in a plaintiff’s case.
41Rule 39.02(2) of the Rules of Civil Procedure establishes when a party to a motion may deliver affidavits for use on the motion. It provides:
(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent…
42Reply evidence in a motion is a very different thing then reply evidence at a trial. The issue of reply evidence in a motion was canvassed by Perell J. in Johnson v. North American Palladium Ltd., 2018 ONSC 4496, at paras. 11-15. His discussion is helpful context to this issue in this case:
Although there is no specific rule of civil procedure that orders or organizes the presentation of the evidence for a motion or application, typically on a motion or application, the moving party or the applicant delivers his or her notice of motion or notice of application along with supporting affidavit material, and then the responding party or the respondent delivers his or her responding affidavit to oppose the motion or application. Sometimes, there is reply evidence from the moving party or applicant. When the exchange of affidavits is completed, then the motion or application may proceed to cross-examinations. The modern practice is for the court to set a timetable or schedule or the parties to agree to a timetable for the motion or application covering the exchange of affidavits, the cross-examinations, and the exchange of factums.
Although there is no specific rule of civil procedure that applies, with some modifications, the law against case-splitting regulates the delivery of the reply affidavit and the rule against case-splitting also regulates the argument at the hearing of the motion or the application. Where the parties or the court set a timetable for the exchange of affidavits for a motion or application, the reply evidence should generally be limited to proper reply; i.e., with evidence that complies with the rule against case splitting
The rule against case-splitting that applies at hearings and trials restricts reply evidence and reply submissions to matters raised by the defendant or responding party and does not permit the plaintiff or applicant to deliver new evidence. The rationale is that the defendant or respondent is entitled to know and to respond to the case being made against him or her, and, therefore, the plaintiff or applicant should not split his or her case and take the opponent by surprise and without an opportunity to respond. It is intrinsically unfair for a plaintiff, applicant, or moving party to add new evidence or new argument after the defendant, respondent, or responding party has completed his or her evidence and argument. Reply evidence is admissible only when defendant, respondent, or responding party has raised a new matter that could not be reasonably anticipated by the plaintiff, applicant, or moving party or where the reply evidence is in response to an issue enlarged by the opponent in a manner that could not have been reasonably foreseen.
The standard for permissible reply evidence, however, is less strict for motion and application procedure than the standard applied at trial. When the reply evidence for a motion or application is introduced before the cross-examination and the hearing on the merits, a less rigorous standard applies. Once cross-examinations begin, the admission of reply evidence is governed by rule 39.02 (2) of the Rules of Civil Procedure, discussed below, and the standard for admitting reply evidence is higher, but still not as strict as the standard at trial.
On motions and applications, in appropriate circumstances, the court has a discretion to admit the improper reply evidence and to allow the opponent to respond with a sur-reply affidavit. Ultimately, it is a balancing exercise, with the goal of ensuring that each party has a fair opportunity to present its case and to respond to the case put forward by the other party.
43There was no suggestion in the motion record before me that the court had ordered, or that the parties had agreed to, a timetable for the exchange of affidavits and cross-examination. The delivery of affidavits is therefore governed by Rule 39.02(2).
44The Proposed Defendants relied on the following statement by Perell J. in the Johnston case, at para. 17: “As set out above, the rules of procedure require that all the affidavits be delivered before the commencement of cross-examinations and the examination of witnesses in aid of the motion or application”. There are numerous cases in which Rule 39.02(2) is loosely summarized in this fashion.
45The Proposed Defendants argue that Rule 39.02(2) applies, and that the Plaintiffs were obliged to file all of their affidavits before any cross-examinations began. Once Ms. Brock was cross-examined, the Plaintiffs cannot subsequently deliver an affidavit without consent or leave of the court.
46Rule 39.02(2) does not, however, preclude every party from delivering subsequent affidavits once cross-examination has commenced. Rule 39.02(2) is a limit imposed only on the party “who has cross-examined on an affidavit delivered by an adverse party”. There is no such restriction on the party whose affiant has been cross-examined if that party has not cross-examined on an affidavit delivered by an adverse party.
47In the present case, the Plaintiffs have not cross-examined on an affidavit delivered by an adverse party, so the restriction in Rule 32.09(2) does not apply to them.
Conclusion
48The Proposed Defendants’ motion to strike the Supplementary Affidavit of Gayle Brock is dismissed.
49If the parties cannot agree on costs, the Plaintiffs may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of this decision, and the Proposed Defendants may serve and file responding submissions on the same terms within a further 15 days.
Justice R.E. Charney
Released: June 18, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANA ZIMMERMAN and MARK ZIMMERMAN
Plaintiffs
– and –
DR. BENJAMIN MCNAULL, DR. LEA BABCOCK, DR. WILLIAM TILLMANN, DR. MARK SWANSON, DR. JULIE GALLAGHER, DR. MICHAEL ODLOZINSKI, DR. WENDY MCCOMB, and ORILLIA SOLDIERS’ MEMORIAL HOSPITAL
Defendants
REASONS FOR DECISION
Justice R.E. Charney
Released: June 18, 2024