Court File and Parties

Court File No.: CV-21-92 Date: 2024-11-21 Superior Court of Justice – Ontario

Re: Kevin Batten, on his own behalf and as the executor of the Estate of Kelly Morgan-Batten, deceased, Douglas Mackenzie, Kendra Mackenzie, and Bryan Morgan, Plaintiffs And: J. Obomighie, S. Lalani and K. Al-Ali, Defendants

Before: Justice J.C. Corkery

Counsel: A. Zask for the Plaintiffs A. Nayerahmadi for the Defendants A. Lewis and H. Young for the proposed defendant, Dr. Sharon Koren

Heard: March 14, 2023

Endorsement

[1] On March 14, 2023, I dismissed the plaintiffs’ motion to amend their Statement of Claim to add Dr. Sharon Koren as a defendant pursuant to Rules 5.04 (2) and 26.01. I provide herein my reasons.

[2] This is a medical malpractice action. The plaintiffs allege that Kelly Morgan-Batten’s death was caused by the negligent care and treatment provided by the defendants.

[3] On February 16, 2018, Ms. Morgan-Batten asked her family doctor, Dr. Obomighie, to refer her to Dr. Koren, a rheumatologist.

[4] On February 25, 2018, Dr. Obomighie faxed to Dr. Koren’s office a consultation request, a copy of Ms. Morgan-Batten’s recent bloodwork and a letter from Ms. Morgan-Batten listing her various symptoms. The consultation request stated that the reason for the consultation was “concerns about Sjogrens syndrome.”

[5] On May 23, 2018, Ms. Morgan-Batten saw Dr. Koren. Dr. Koren dictated a consult note immediately after seeing Ms. Morgan-Batten. However, Dr. Koren pasted a consult note for another patient into the software she uses and sent that erroneous consult note to Dr. Obomighie on May 23, 2018. The erroneous consult note included Ms. Morgan-Batten’s name and the correct date of the consultation, but otherwise pertained to a follow-up appointment with a different patient. Neither consult note made any mention of cancer.

[6] On August 30, 2021, the Statement of Claim was issued.

[7] Ms. Morgan-Batten died on November 28, 2020.

[8] On November 16, 2022, the plaintiffs’ counsel wrote to Dr. Koren requesting her records. The same day Dr. Koren discovered that she had sent the erroneous consult note to Dr. Obomighie and the same day informed the plaintiffs of her error. The plaintiffs received a copy of Dr. Koren’s correct consult note on November 16, 2022.

[9] Section 38(3) of the Trustee Act states that an action brought on behalf of a deceased person “shall not be brought after the expiration of two years from the death of the deceased.”

[10] The discoverability principle does not apply to s. 38(3) (Waschkowski v. Hopkinson Estate, at para. 16) and s. 38(3) does not extend the limitation period that would otherwise apply had the deceased not died (Camarata v. Morgan, 2009 ONCA 38, at para. 8).

[11] The application of s. 38(1) is not restricted to torts alone. The determination of whether a claim falls within the scope of s. 38(1) focuses on the nature of the injury not the form of the action, in tort or contract or otherwise (Bonaparte v. Canada, [2003] O.J. No 1046 (ON CA), at para 54).

[12] In rare circumstances a party may be added after the two-year limitation found in s. 38(3). There are two common law exceptions: fraudulent concealment and special circumstances.

[13] Only in their reply factum did the plaintiffs raise fraudulent concealment and special circumstances, relying on the fact that Dr. Koren sent the erroneous consult letter. However, neither apply in this case.

[14] Fraudulent concealment requires that the defendant “hide, secret, cloak, camouflage, disguise, cover-up the conduct or identity of the wrongdoing” (Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47). There is no such evidence here. Dr. Koren made an error in good faith and corrected it immediately when she discovered her error.

[15] The doctrine of special circumstances was considered by this court in Omerod v. Strathroy Middlesex General Hospital 2013 ONSC 992. I have considered the general principles summarized at paragraph 41 of that case.

[16] In this case I note the following: a. The plaintiffs were aware of Dr. Koren’s consultation with Ms. Morgan-Batten by April 1, 2020, at the latest. b. Dr. Koren has been prejudiced by the delay. She remembers almost nothing about the consultation. This has not been refuted. c. The plaintiffs have produced no evidence that the correct consult letter reveals any more evidence of negligence than the erroneous consult letter. d. The plaintiffs received a copy of the correct consult letter on November 16, 2022, twelve days before the expiry of the s. 38(3) limitation period and there is no evidence as to why they did not act.

[17] There are no special circumstances in this case.

[18] I am also concerned with the evidence adduced by the plaintiffs in support of this motion. Mr. Syrtash provided an affidavit as a person associated with the plaintiffs’ lawyers. His evidence describes what his firm did, putting at issue the litigation decisions made by the plaintiffs’ lawyers. By relying on evidence of their lawyers’ decision not to name Dr. Koren in their claim, the plaintiffs have waived privilege over their entire solicitor’s file (Lawless v. Anderson, at para. 8 and 11; see also Jack v. Canada (Attorney General), at paras. 115-129). The plaintiffs refused to produce their solicitor’s file or to describe the contents. They have selectively disclosed evidence from their solicitor’s file, which is impermissible. Mr. Syrtash’s evidence also includes hearsay on important issues. For these reasons, I give little weight to the evidence of Mr. Syrtash.

[19] Dr. Koren is entitled to her costs. I have encouraged the parties to discuss and agree on an amount that the successful party would be entitled to. If the parties cannot agree on costs, I will receive submissions from Dr. Koren within two weeks and the plaintiffs within three weeks (maximum of three pages).

J.C. Corkery J. Date: November 21, 2024