Ontario Superior Court of Justice

Court File No.: CV-19-334
Date: 2025/01/27

Between

William Stoddart (Plaintiff / Responding Party)
and
His Majesty the King in Right of Canada, the Assistant Commissioner Health Services, the Commissioner of Corrections, Dr. Diana Silver Wyatt, and Correctional Services of Canada Ontario Regional Pharmacists (Defendants / Moving Parties)

Appearances:

• J. Todd Sloan, for the Plaintiff (Responding Party)
• Corey Willard and Francois Guay-Racine, for the Defendant, Dr. Diana Silver Wyatt (Moving Party)
• Mathew Johnson and Amanda McGarry, for the Crown Defendants (Moving Parties)

Heard: August 25, 2023 and March 22, 2024 (by videoconference)

Ruling on Motions

Introduction

[1] Mr. Stoddart was an offender incarcerated at Bath Institution, a medium security correctional facility in Bath, Ontario. During the years 2015, 2016, and 2017, Mr. Stoddart was under the care of the defendant, Dr. Diana Silver Wyatt. At the time, Dr. Wyatt was a licensed family medicine physician, practicing family medicine exclusively within the Correctional Service of Canada (“CSC”) health care system. The Bath Institution is one of several correctional facilities at which Dr. Wyatt carried out her practice. She did so in her capacity as a self-employed contractor.

[2] The CSC operates its own healthcare system. The CSC has a drug formulary (“the Formulary”), which consists of a list of drugs the CSC will fund when providing essential medical care to federal inmates, the circumstances in which each drug can be prescribed to an inmate, and the purpose for which each drug can be used. The Formulary is amended regularly to reflect current information and evidence about the efficacy and use of existing and new drugs.

[3] In 2015, an amendment regarding gabapentin was made to the Formulary. As a result of that amendment, effective April 1, 2016, it was no longer possible for Dr. Wyatt to prescribe gabapentin to Mr. Stoddart for his chronic pain condition. Dr. Wyatt began to gradually reduce Mr. Stoddart’s dosage of gabapentin and, on April 1, 2016, ceased prescribing that medication for him. Dr. Wyatt continued to care for Mr. Stoddart with alternative courses of treatment, including a different prescription medication.

[4] In addition, Dr. Wyatt made three requests, to the requisite pharmacist authority, for Mr. Stoddart to receive gabapentin on a non-formulary basis. The first two requests, made in 2016, were denied; the third request, made in 2017, was granted. Mr. Stoddart was again prescribed gabapentin in late June 2017. Dr. Wyatt has not seen Mr. Stoddart since June 2017.

[5] Mr. Stoddart’s claims against Dr. Wyatt are based in assault and professional negligence. The claims against all other defendants (“the Crown defendants”) are based in negligence, in assault, and on breach of Mr. Stoddart’s rights pursuant to s. 7 (life, liberty, and security of the person) of the Canadian Charter of Rights and Freedoms (“Charter”).

[6] Mr. Stoddart seeks (a) damages in the amount of $300,000 for “pain and suffering, inconvenience, emotional distress, and harm”; (b) punitive and exemplary damages in the amount of $200,000; and (c) damages, in an unspecified amount, pursuant to s. 24(1) of the Charter for breach of his s. 7 rights.

[7] Following the completion of the exchange of pleadings, examinations for discovery of all parties were conducted in October 2020. In April 2022, the defendants were served with a report, prepared on Mr. Stoddart’s behalf, by a neurologist (“the neurologist’s report”). A Form 53 from the neurologist has never been served.

[8] In the spring of 2023, Dr. Wyatt served a motion record for one of the motions for summary judgment now before the court. Dr. Wyatt relies on an affidavit sworn by family physician Dr. Carolyn Rogers in March 2023 (“the Rogers affidavit”). Dr. Rogers’ report dated January 2023, and the related Form 53, are exhibits to the Rogers affidavit. Dr. Wyatt also relies on her own affidavit and an affidavit from a lawyer with Gowling WLG (Canada) LLP (“the Corbeil affidavit”).

[9] In the summer of 2023, the Crown defendants served a motion record for the other motion for summary judgment now before the court. The Crown defendants rely on an affidavit sworn by Harold Boudreau in March 2023 (“the Boudreau affidavit”). When he swore his affidavit, Mr. Boudreau (a) was a licensed pharmacist; (b) had been an employee of CSC for nine years; and (c) held the position of Director of Pharmacy and Health Technology.

[10] Mr. Stoddart did not serve a record in response to either of the motion records with which he was served. Mr. Stoddart’s counsel cross-examined individuals whose affidavits are before the court in support of the motions for summary judgment.

[11] The defendants submit that the absence of any evidence supporting Mr. Stoddart’s claims is sufficient to dispose of the motions in their entirety. The defendants also submit that the evidence before the court supports a conclusion that Mr. Stoddart’s claims are fundamentally unmeritorious and should therefore be dismissed.

[12] Before identifying the specific issues to be determined on the two motions, I will first review the law generally regarding motions for summary judgment.

Motions for Summary Judgment

[13] With the parties having completed the exchange of pleadings, the defendants are each entitled to bring a motion for summary judgment: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 20.01(1) and (3) (“the Rules”). The discretion available to the court and its powers on a motion for summary judgment are set out in r. 20.04.

[14] Of particular importance is the mandatory language in r. 20.04(2)(a): “The court shall grant summary judgment if […] the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence”. If the court determines there is no genuine issue requiring a trial, it may, when considering the evidence submitted by the parties, exercise any one or more of the three powers listed in r. 20.04(2.1). Pursuant to that subrule, the court has the power to (a) weigh the evidence; (b) evaluate the credibility of a deponent; and (c) draw any reasonable inference from the evidence.

[15] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada sets out the key principles applicable to motions for summary judgment. Those principles include the principles listed below:

• “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment” (at para. 49);
• For a determination on the merits to be fair, the motion judge must be confident that they “can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (at paras. 50, 57); and
• When determining whether there is a genuine issue requiring a trial, the motion judge must consider whether the summary judgment procedure is timely, affordable, and proportionate (at para. 66).

[16] The principles listed above and others set out in Hryniak are applied in the context of a two-step process. The first step requires the motion judge to determine “if there is a genuine issue requiring a trial based only on evidence before [them], without using the new fact-finding powers” (emphasis in original): Hryniak, at para. 66.

[17] If there appears to be a genuine issue requiring a trial, the motion judge moves to the second step in the process. At that step, the motion judge determines “if the need for a trial can be avoided by using the [ ] powers under [rr.] 20.04(2.1) and (2.2).” The use of those powers, “will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak, at para. 66.

[18] The moving party bears the onus of demonstrating there is no genuine issue requiring a trial: Toronto Dominion Bank v. Hylton, 2012 ONCA 614, at para. 5. If the moving party succeeds in doing so, then the burden shifts to the responding party. Where the responding party is a plaintiff, that shift in the burden requires the plaintiff to demonstrate their claim has a real chance of success: Hylton, at para. 5; Dia v. Calypso Theme Waterpark, 2021 ONCA 273, at para. 25.

[19] Each party is required to put their best foot forward to establish whether or not there is a genuine issue requiring a trial. The court is entitled to assume the record includes all the evidence the parties would present at trial: Hylton, at para. 5.

[20] Before determining the substantive issues on the defendants’ motions, I first provide reasons in follow up to oral reasons given for refusing to grant Mr. Stoddart’s request for an adjournment of the motions.

Request for an Adjournment of the Motions is Denied

[21] The motions in this action were returnable on the same date in August 2023 as similar motions in an action commenced by another inmate whose access to gabapentin was affected by the amendment to the Formulary discussed in para. 3, above (“the related action”). The plaintiff in the related action and Mr. Stoddart, (a) are represented by the same counsel, and (b) each requested an adjournment of the motions.

[22] In support of the adjournment requested on Mr. Stoddart’s behalf, plaintiff’s counsel did not identify a specific purpose that would be served if the court were to grant the request for an adjournment. For example, plaintiff’s counsel did not have instructions from Mr. Stoddart to deliver an affidavit in his name if his motion was adjourned. Plaintiff’s counsel did not intend to deliver an affidavit from anyone other than, possibly, Mr. Stoddart.

[23] Plaintiff’s counsel acknowledged that the request for an adjournment stemmed in part from his misunderstanding of the procedure on a motion for summary judgment. Plaintiff’s counsel made the following submissions regarding his understanding of the procedure:

• He erroneously understood that his client would need to deliver responding materials only if the defendants satisfied the court that there is no genuine issue requiring a trial.
• It was not until after plaintiff’s counsel reviewed the defendants’ materials, including their respective facta, that he became concerned about the lack of evidence in response to the motions.

[24] I reject plaintiff’s counsel’s submissions regarding his understanding of the procedure. Plaintiff’s counsel represented Andrew Walker in Walker v. Canada, 2019 ONSC 4578. Mr. Walker brought an action against Her Majesty the Queen in the Right of Canada for an event that occurred while he was incarcerated at Frontenac Institution, a federal penitentiary.

[25] Mr. Walker alleged that the Crown defendants in that action were negligent in the maintenance and supervision of a worksite at which he was injured. Mr. Walker also alleged that he received inadequate medical treatment for his injuries from two physicians, one of whom was Dr. Wyatt (i.e., the defendant in the matter now before the court). The defendants in Walker were successful on their respective motions for summary judgment.

[26] In support of their motion, the defendant physicians relied on the evidence of expert witnesses. Mr. Walker did not file an affidavit from an expert witness regarding either aspect of his claims (i.e., workplace supervision and medical negligence). At para. 22 of her decision, Ryan Bell J. concludes that, “In the absence of any evidence supportive of Mr. Walker’s medical malpractice claims, Mr. Walker has not raised a genuine issue requiring a trial in relation to the defendant physicians.”

[27] At para. 24 of the decision, Ryan Bell J. addresses an assertion made by plaintiff’s counsel that he was in the process of consulting an expert. Justice Ryan Bell highlights that such an assertion does not constitute evidence and, further, where the plaintiff fails to obtain an expert report, for use in responding to a motion for summary judgment, the court is entitled to infer that the plaintiff was unsuccessful in obtaining the requisite expert opinion. In support of the inference drawn, Ryan Bell J. relies on the decision in Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208, at para. 28.

[28] The Walker decision pre-dates the motions in the matter now before the court by approximately four years. Justice Ryan Bell clearly spelled out the procedure on a motion for summary judgment including the fate that may befall a responding party who chooses not to file any evidence.

[29] There is simply no basis for plaintiff’s counsel’s purported misunderstanding on the point. That misunderstanding, if it exists, is, in any event, of no assistance to Mr. Stoddart on the motions now before the court.

[30] In support of the requested adjournment, plaintiff’s counsel made the following submissions:

• If the motions were adjourned, the resultant delay in the hearing of the motions would not be significant.
• The only prejudice to the defendants would be a slight delay until the new hearing date.
• Costs incurred by the defendants for preparation of materials delivered to date and oral submissions could, at a later date, be included by the defendants in their respective costs outlines or bills of costs.

[31] For the following reasons, the request for an adjournment was not granted. First, Mr. Stoddart did not intend to deliver an affidavit from a physician capable of expressing an opinion on the requisite standard of care (i.e., regarding the claims against Dr. Wyatt). Mr. Stoddart had no intention of remedying the lack of evidence on that issue.

[32] Plaintiff’s counsel made no submissions as to the nature or substance of the evidence William Stoddart would provide if he were given the opportunity and chose to deliver an affidavit in his name. There was no suggestion that an affidavit from Mr. Stoddart was required to address a matter that arose, for the first time, during cross-examination of Dr. Wyatt, Dr. Rogers, Mr. Boudreau, or Ms. Corbeil.

[33] Based on the affidavit evidence before the court, I find that the defendants gave Mr. Stoddart numerous opportunities to deliver responding materials before cross-examinations were conducted. Ultimately, Mr. Stoddart chose not to deliver responding materials; that choice was confirmed in writing by plaintiff’s counsel.

[34] The parties made their respective strategic decisions as the motions progressed from the service of the motion records, through cross-examinations, and ultimately, through the completion of the exchange of materials prior to the hearing date. Granting Mr. Stoddart an adjournment of the motion, after cross-examinations were conducted and facta were exchanged, would amount to giving William Stoddart a ‘do over’ in terms of his strategy and response (or lack of response) to the motions.

[35] In summary, granting an adjournment of the motions would result in prejudice to the defendants that could not be compensated for in costs.

[36] When the motions continued in March 2024, plaintiff’s counsel again requested an adjournment of the motions, relying on the same grounds upon which Mr. Stoddart had relied in August 2023. Plaintiff’s counsel thereafter clarified that Mr. Stoddart was not requesting an adjournment; plaintiff’s counsel would, instead, address the relief sought in the context of submissions as to why, for example, proceeding to a mini-trial would be reasonable (i.e., as opposed to granting the motions for summary judgment).

[37] Turning to the substantive issues, I first determine Dr. Wyatt’s motion and then the Crown defendants’ motion. In doing so, I follow the two-step process set out in Hryniak.

Dr. Wyatt’s Motion

Step One – Is there a genuine issue requiring a trial with respect to the claim or a defence?

a) The Positions of the Parties

[38] The only evidence before the court describing the care and treatment provided by Dr. Wyatt to Mr. Stoddart is from Dr. Wyatt. The only evidence before the court on the issue of the standard of care is from Dr. Rogers. Dr. Rogers’ opinion is that Dr. Wyatt provided Mr. Stoddart with appropriate care and met the standard of care expected of a family physician working in a correctional institution in Ontario. Dr. Wyatt asks the court to dismiss the claims against her in their entirety.

[39] Mr. Stoddart filed no evidence in response to Dr. Wyatt’s motion. There is no affidavit from Mr. Stoddart; nor is there an affidavit from the neurologist whose report was served on the defendants in 2022.

[40] Mr. Stoddart acknowledges that one of the purposes served by a motion for summary judgment is avoidance of a costly trial. He submits that a moving party should not be granted summary judgment where the result of doing so would be to circumvent the valuable procedure at trial for ascertaining the truth.

[41] Mr. Stoddart’s position is that he should be permitted to pursue his claims against Dr. Wyatt to trial because there is evidence, which is not before the court on the motion, that is “worthy of consideration”. Mr. Stoddart relies on the inclusion of a copy of the neurologist’s report as an exhibit to the Corbeil affidavit. He submits that it is open to the court to rely on the contents of that report, draw an inference from those contents, and find in his favour at step one of the summary judgment process.

b) Analysis

[42] Dr. Wyatt bears the onus of establishing there is no genuine issue requiring a trial. If she discharges that evidentiary burden, the onus shifts to Mr. Stoddart to demonstrate that his claims against Dr. Wyatt have a real chance of success.

i) Dr. Wyatt Discharges Her Evidentiary Burden

[43] I am satisfied that Dr. Wyatt has discharged the evidentiary burden of establishing that there is no genuine issue requiring a trial. Applying the principles summarized in para. 15, above, I am satisfied that,

• I am able to reach a just and fair determination on the merits of Mr. Stoddart’s claims against Dr. Wyatt;
• the evidence permits me to make the necessary findings of fact and to apply the relevant legal principles to resolve the dispute; and
• the summary judgment procedure is a timely, proportionate, and affordable method by which to resolve Mr. Stoddart’s claims against Dr. Wyatt.

[44] In her 31-paragraph affidavit, Dr. Wyatt reviews her care and treatment of Mr. Stoddart in the years 2015, 2016, and 2017. She addresses the amendment to the Formulary; the requirement to cease prescribing gabapentin as of April 1, 2016; and the steps taken to support Mr. Stoddart receiving gabapentin on a non-formulary basis. Dr. Wyatt explains her complete lack of control over the contents of the Formulary and over when or how non-formulary use of medication is approved by the authorizing body.

[45] Dr. Wyatt provides an overview of prescribing medication for inmates in a correctional facility. At para. 16 of her affidavit, Dr. Wyatt explains that “[i]nmate patients do not have the right to choose or dictate their own treatment or medication, especially in cases of medications that represent a threat to the safety or security of the correctional institution.” At para. 17, Dr. Wyatt clarifies that the Formulary sets “out restrictions on a number of drugs known to have high potential for abuse, meaning that they may be used or diverted by offenders for personal use or for trafficking within correctional institutions.”

[46] Prior to preparing her report and swearing her affidavit, expert witness Dr. Rogers reviewed the pleadings in this action; Mr. Stoddart’s medical records; documents produced by the CSC; and the transcripts from the examinations for discovery of Mr. Stoddart and Dr. Wyatt. Dr. Rogers’ opinion is summarized at paras. 9-11 of her affidavit:

9. Based on my review of the available records and information, it is my opinion that the care provided to Mr. Stoddart by Dr. Wyatt met the standard of care of a diligent and prudent family physician. This includes completing non-formulary requests on his behalf, referring him to specialists and attempting to provide him with alternatives to Gabapentin for his pain.

10. Dr. Wyatt does not determine the content of the CSC Formulary. She does not determine what exceptions are to be made, or the basis for those exceptions. As a physician working in correctional services, she is expected to practice within the framework provided. This includes what medications are available for her to use.

11. Mr. Stoddart’s unhappiness with the limitations imposed by CSC do not translate to Dr. Wyatt having provided inadequate care to him.

[47] The evidence of both Dr. Wyatt and Dr. Rogers is uncontradicted. Both physicians were cross-examined on their respective affidavits. The cross-examinations did not give rise to any evidence which detracts from the substance of the physicians’ respective affidavit evidence.

The Claim in Assault

[48] The allegations in support of Mr. Stoddart’s claim in assault against Dr. Wyatt are summarized in para. 10(a)(i) of the amended statement of claim (“Pleading”). Mr. Stoddart alleges that Dr. Wyatt “intentionally deprived [him] of a medication that she knew would provide him with safe, effective treatment of their pain and other conditions […] and thereby cause him harm, including inter alia ongoing pain, emotional distress, and potential addiction” (emphasis in original).

[49] The focus of the allegations made in support of the claim in assault appears to be “intentional” conduct on Dr. Wyatt’s part. Yet, in the balance of the Pleading, and in support of the claims in negligence, Mr. Stoddart also makes allegations of intentional or deliberate conduct on Dr. Wyatt’s part. Collectively, the manner in which the Pleading is organized and in which the particulars of the causes of action are set out make it challenging to parse out the particulars of the claim in assault against Dr. Wyatt.

[50] Importantly, the Pleading does not include allegations specific to the elements of the tort of assault that must be established on a balance of probabilities in order to succeed with that cause of action. In their respective facta, neither Dr. Wyatt nor Mr. Stoddart addresses the elements of the tort of assault. For those elements, I rely on paras. 85-88 of the Crown defendants’ factum.

[51] While no overt physical act is required to establish that an assault occurred, a plaintiff pursuing a claim based in assault is required to establish, on a balance of probabilities, that there existed a threat to the security of their person, which created an apprehension of imminent harmful or offensive conduct: see Barker v. Barker, 2022 ONCA 567, at para. 182.

[52] There is no evidence that could support a finding that Dr. Wyatt assaulted Mr. Stoddart; nor do the allegations in the Pleading support a conclusion that there is any basis in law that an assault could be found.

[53] Based on the Pleading, Dr. Wyatt’s statement of defence, and the evidence before the court, I find that Dr. Wyatt has established that there is no genuine issue requiring a trial of the claim against her in assault.

The Claim in Negligence

[54] The allegations in support of Mr. Stoddart’s claim against Dr. Wyatt in negligence are summarized at para. 10(a)(ii) of the Pleading. Mr. Stoddart alleges that Dr. Wyatt, “took foreseeably harmful decisions for reasons not related to, and at odds with, effective treatment of [Mr. Stoddart], namely purported adherence to the flawed and harmful policy with respect to inmate access to Gabapentin.”

[55] In the balance of the Pleading, Mr. Stoddart provides particulars of the claim in negligence. Those particulars relate to (a) Dr. Wyatt’s decisions about medication prescribed to Mr. Stoddart over time, and (b) the quality of materials Dr. Wyatt prepared in support of requests for Mr. Stoddart to receive gabapentin on a non-formulary basis.

[56] The only evidence before the court on the issue of standard of care is from Dr. Rogers. As set out in paras. 38 and 46, above, Dr. Rogers’ opinion is that Dr. Wyatt met the standard of care of a diligent and prudent family physician working in a correctional institution in Ontario.

[57] The submission by plaintiff’s counsel that there is evidence, which is not before the court on the motion, that is “worthy of consideration” is analogous to the assertion made by plaintiff’s counsel in Walker that he was in the process of consulting an expert. Yet, there is no expert report in response to Dr. Wyatt’s motion for summary judgment. Based on the lack of such a report, I draw the same inference as did Ryan Bell J. in Walker: I infer that Mr. Stoddart was unsuccessful in obtaining the requisite expert opinion: see Ferroni, at para. 128.

[58] Based on the Pleading, Dr. Wyatt’s statement of defence, the evidence of Dr. Wyatt, the opinion evidence of Dr. Rogers, and the inference drawn in the preceding paragraph, I find that Dr. Wyatt has established there is no genuine issue requiring a trial of William Stoddart’s claim against her in negligence.

ii) The Claims Against Dr. Wyatt Have No Real Chance of Success

[59] Dr. Wyatt has discharged her evidentiary burden at step one of the process. The burden shifts to Mr. Stoddart to satisfy the court that his claims against Dr. Wyatt have a real chance of success.

[60] For several reasons, the claim in assault stands no real chance of success. For the moment, I leave aside the deficiencies in the Pleading. There is no evidence before the court that would, if accepted, support a conclusion that Mr. Stoddart has established, on a balance of probabilities, the elements of the tort of assault.

[61] I recognize that Dr. Wyatt’s motion is not a ‘pleadings’ motion. The tort of assault, however, is not properly plead. Mr. Stoddart does not request leave to further amend the Pleading. Regardless, there is no evidence before the court to support a finding that the deficiencies in the manner in which the tort of assault is plead can be remedied by further amendments to the Pleading.

[62] I turn next to the claim in negligence against Dr. Wyatt. A plaintiff in a medical negligence action is required to provide expert evidence to prove that (a) the treatment by the defendant physician fell below the standard of care the plaintiff was entitled to expect, and (b) the substandard care is causally connected to the injury the plaintiff alleges they suffered: Da Silva v. Wong, 2010 ONSC 6428, at para. 4, aff’d 2011 ONCA 505.

[63] In a medical malpractice action, where a defendant has discharged its evidentiary burden, the absence of expert evidence in support of the plaintiff’s claim is fatal in all but “the clearest of cases.” As the Court of Appeal for Ontario stated in Liu v. Wong, 2016 ONCA 366, at para. 14:

Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert evidence [sic] in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

[64] In Comer v. Mount Sinai Hospital, 2022 ONSC 1321, at para. 13, R.S.J. Edwards relies on the above-quoted passage. At para. 14, R.S.J. Edwards expands on the passage, stating, “In the context of a motion for summary judgment, the requirement for expert evidence is no different. If the Plaintiff does not present expert evidence to respond to a motion for summary judgment brought by a hospital or a doctor, the law is clear that the absence of such expert evidence will be fatal to the Plaintiff’s claim [citation omitted]”.

[65] Mr. Stoddart’s failure to put before the court expert evidence in support of his claim against Dr. Wyatt in negligence is fatal to that cause of action.

[66] The inclusion of a copy of the neurologist’s report as an exhibit to the Corbeil affidavit is of no assistance to Mr. Stoddart. First, attaching a copy of the neurologist’s report as an exhibit to the Corbeil affidavit amounts to nothing more than evidence of the existence of the report.

[67] Second, even if the contents of the neurologist’s report were admissible as evidence (which they are not), the contents of that report are of no assistance to Mr. Stoddart in support of his claim in negligence against Dr. Wyatt. The standard of care the court must consider when assessing the merits of the claim in negligence against Dr. Wyatt is that of a physician practising family medicine in a correctional facility. Mr. Stoddart is required to put before the court expert opinion evidence addressing that standard of care: see Kurdina v. Dief, 2010 ONCA 288, at paras. 2-4. The author of the neurologist’s report is not qualified to give expert opinion evidence regarding the standard of care relevant to Mr. Stoddart’s claim in negligence against Dr. Wyatt.

[68] Although it is not necessary to do so, I take the analysis of Mr. Stoddart’s reliance on the contents of the neurologist’s report one step further. I highlight the following points regarding the contents of that report:

• A Form 53, signed by the neurologist, has never been served.
• There is no evidence that the neurologist reviewed either Mr. Stoddart’s medical records or the transcripts from the examinations for discovery of the parties.
• The neurologist relies on documents from another proceeding that are irrelevant to the merits of Mr. Stoddart’s claims against Dr. Wyatt.

[69] In any event, the contents of the neurologist’s report do not include an opinion that the care provided by Dr. Wyatt fell below the standard of care Mr. Stoddart was entitled to expect of a physician practising family medicine in a correctional facility.

[70] In summary, Mr. Stoddart has not provided the court with expert opinion evidence upon which he is entitled to rely in response to Dr. Wyatt’s motion for summary judgment. His claim in negligence against Dr. Wyatt has no real chance of success.

c) Conclusion

[71] There is no genuine issue requiring a trial of Mr. Stoddart’s claims in assault or in negligence against Dr. Wyatt. Neither of those claims stands a real chance of success. In accordance with the case authorities, the Dr. Wyatt’s motion for summary judgment is granted and Mr. Stoddart’s claims against Dr. Wyatt must be dismissed in their entirety.

[72] Given the outcome at step one, it is not necessary to proceed to step two of the process for Dr. Wyatt’s for summary judgment. I move on to Mr. Stoddart’s claims against the Crown defendants.

The Crown Defendants’ Motion

[73] Before determining the substantive issues on the Crown defendants’ motion, I will first address the manner in which the Crown defendants are named in the title of proceeding. At paras. 98-99 of their factum, the Crown defendants make the following submissions regarding errors made by Mr. Stoddart in naming the defendants:

• Proceedings against the Crown may be taken in the name of the Attorney General of Canada (“AGC”). (Note: The motion record and other materials filed in support of the motion for summary judgment by the Crown defendants, are in the name of the AGC.)
• His Majesty the King is not a proper defendant.
• None of the Commissioner of Corrections (“the Commissioner”), the Assistant Commissioner Health Services (“ACHS”), or the CSC Ontario Regional Pharmacists are proper defendants.

[74] The AGC asserts that if the claims against the Crown defendants are not struck in their entirety, then it will be necessary for Mr. Stoddart to seek leave to amend the title of proceeding and the substance of the Pleading—replacing the Crown defendants with the AGC as the sole defendant. The originating process has already been amended at least once.

[75] For the purpose of the motions now before the court, I collectively refer to the defendants other than Dr. Wyatt as “the Crown defendants”.

Step One – Is there a genuine issue requiring a trial with respect to the claim or a defence?

a) Summary of the Claims Against the Crown Defendants

[76] The claim against the CSC Ontario Regional Pharmacists is based in negligence. That claim is summarized at para. 10(b) of the Pleading, as follows:

The Regional Pharmacists had a duty of care toward [Mr. Stoddart] to provide him with access, through his physician, to appropriate medications to combat their pain and suffering at material times. They failed in this duty by not proving [sic] [Mr. Stoddart] with Gabapentin when they knew or ought to have known that this would cause [Mr. Stoddart] harm. Herein they applied the flawed, inappropriate policy of CSC regarding Gabapentin, ignoring the measure that they should have taken notwithstanding the policy.

[77] At para. 98 of their factum, the AGC submits that the CSC Ontario Regional Pharmacists are not a legal entity or person that can be made a party to litigation.

[78] The claims against the ACHS and the Commissioner (collectively, “the Commissioners”) based in assault are summarized in para. 10(c)(i) of the Pleading. Mr. Stoddart alleges that the Commissioners, “intentionally or recklessly caused [Mr. Stoddart] harm, including but not limited to pain, emotional harm and potential addiction by requiring their servants or agents to administer the Gabapentin policy in a way that unduly restricted access to the medication”. Mr. Stoddart further alleges that the Commissioners “did so ignoring the harmful effects that would be caused to [Mr. Stoddart] and other inmates by unreasonable adherence to the Gabapentin policy.”

[79] The claims in negligence against the Commissioners are summarized at para. 10(c) of the Pleading. The allegations in negligence relate to both the development of the relevant policy and its implementation. That distinction is important in the context of the Anns/Cooper test.

[80] The Commissioners’ alleged duty of care is broadly described as having “to develop, implement, monitor and otherwise manage policies related to health services in a way that meets the health service needs of offender patients, including [Mr. Stoddart], and protects them from harm.” Turning specifically to implementation of the subject policy, at para. 10(c)(i) of the Pleading, Mr. Stoddart alleges the Commissioners “are liable in negligence for the foreseeable harm caused to [Mr. Stoddart] by their failure to carry out their duties of care to reasonably monitor and manage the Gabapentin policy in a way that prevented the harm caused to [Mr. Stoddart].”

[81] At para. 98 of their factum, the AGC submits that the Pleading does not include any allegations against either the Commissioner or the ACHS which, if established, would support a conclusion that either individual was, in the circumstances of this case, involved in a manner that could attract personal liability.

[82] At para. 54 of the Pleading, Mr. Stoddart alleges that the Crown defendants breached his s. 7 Charter rights “by subjecting him, under the policy as implemented, to ongoing and unnecessary pain and suffering and other harm. Herein they failed to show that the policy was demonstrably justified under s. 1 of the Charter in order to meet safety and security needs.”

b) The Positions of the Parties

[83] At the heart of Mr. Stoddart’s claims against the Crown defendants are (a) the decision made in 2015 to amend the Formulary regarding the availability of gabapentin, and (b) the application of the Formulary, as amended, to Mr. Stoddart.

[84] The Crown defendants are in no way critical of the care and treatment provided by Dr. Wyatt. They highlight, however, that they do not have oversight of the independent medical judgment exercised by physicians, like Dr. Wyatt, who, in the capacity of an independent contractor, practice medicine within a correctional facility.

[85] The Crown defendants submit that CSC does not owe a duty of care to inmates with respect to Formulary decisions. The Crown defendants’ position is that, not only does no prima facie duty of care exist, managing the Formulary clearly engages decisions that fall within the meaning of “core policy decisions” under the second branch of the Anns/Cooper analysis. Anns v. Merton London Borough Council, [1978] A.C. 28 (H.L.) and Cooper v. Hobart, 2001 SCC 79. In addition, the Crown defendants submit that residual policy considerations negate the existence of any potential duty of care related to the development of and amendments to the Formulary.

[86] Regarding the implementation of the Formulary, the Crown defendants submit that a decision in response to a request for non-formulary use of prescription medication is the responsibility of the individual pharmacist to whom the request is submitted. Mr. Stoddart has not identified the pharmacists who are responsible for declining the two non-formulary requests made on his behalf in 2016.

[87] Importantly, Mr. Stoddart led no expert evidence about the standard of care to be applied by a reasonable pharmacist or as to how that standard of care was not met in the circumstances of his case. The Crown defendants submit that the failure to provide the requisite expert evidence is fatal to the claim in negligence based on the refusal of the two 2016 non-formulary requests.

[88] In addition, the Crown defendants submit that, in the circumstances of this case, there is no legal basis to ground the tort of assault or a breach of Mr. Stoddart’s s. 7 Charter rights.

[89] The only evidence before the court on the Crown defendants’ motion is the Boudreau affidavit and two excerpts from the cross-examination of Mr. Boudreau. The excerpts are included in the Crown defendants’ motion record.

[90] The evidence of Mr. Boudreau is uncontradicted. The cross-examination of Mr. Boudreau on his affidavit did not give rise to any evidence which detracts from the substance of Mr. Boudreau’s affidavit evidence.

[91] Mr. Stoddart filed no evidence in response to the Crown defendants’ motion. There is no affidavit from Mr. Stoddart; nor did Mr. Stoddart file affidavit evidence from an expert witness addressing the Formulary or its application to him.

[92] Mr. Stoddart’s position is that the issues material to his claims against the Crown defendants can only be determined at trial or by one of the processes available pursuant to Rule 20 (e.g., a mini-trial). Mr. Stoddart submits that such issues include the following matters:

• Whether the Formulary amendment regarding gabapentin was a core policy decision or an operational one;
• Whether undue influence regarding security concerns led to the subject amendment (i.e., as opposed to the amendment being based on medical standards);
• Proximity and foreseeability at stage one of the Anns/Cooper analysis; and
• The validity of the process followed by the requisite authority in denying the first two requests made for Mr. Stoddart to receive gabapentin on a non-formulary basis.

[93] In summary, Mr. Stoddart submits that decisions regarding the Formulary and its implementation are operational in nature. As a result, the individuals and entities responsible for the modification and implementation of the Formulary owed a duty of care towards Mr. Stoddart.

[94] As he did in response to Dr. Wyatt’s motion, Mr. Stoddart acknowledges that one of the purposes served by a motion for summary judgment is avoidance of a costly trial. He submits that a moving party should not be granted summary judgment where the result of doing so would be to circumvent the valuable procedure at trial for ascertaining the truth. Mr. Stoddart submits, for example, that evidence from individuals involved in the two decisions rejecting his request for gabapentin on a non-formulary basis must be before the court.

[95] Mr. Stoddart asks the court to dismiss the Crown defendants’ motion in its entirety and, make an order, pursuant to Rule 20, for his claims against the Crown defendants to be determined by a method other than a trial.

c) Analysis

[96] The Crown defendants bear the onus of establishing there is no genuine issue requiring a trial. If they discharge that evidentiary burden, the onus shifts to Mr. Stoddart to demonstrate that his claims against the Crown defendants have a real chance of success.

i) The Crown defendants Discharge Their Evidentiary Burden

[97] I am satisfied that the Crown defendants have discharged the evidentiary burden of establishing that there is no genuine issue requiring a trial of the claims against them. Applying the principles summarized in para. 15, above, I am satisfied that,

• I am able to reach a just and fair determination on the merits of Mr. Stoddart’s claims against the Crown defendants;
• the evidence permits me to make the necessary findings of fact and to apply the relevant legal principles to resolve the dispute; and
• the summary judgment procedure is a timely, proportionate, and affordable method by which to resolve Mr. Stoddart’s claims against the Crown defendants.

[98] I will first deal with the claim in negligence, then the claim in assault, and, last, the alleged breach of s. 7 Charter rights.

The remainder of the decision continues with detailed analysis of the claims in negligence, assault, and Charter breach, the application of the Anns/Cooper test, and the court’s findings on each issue, as well as the disposition and costs.

Disposition

[155] I make the following order:

1. Dr. Wyatt’s motion for summary judgment is granted and Mr. Stoddart’s claims against Dr. Wyatt are dismissed in their entirety.
2. The Crown defendants’ motion for summary judgment is granted and Mr. Stoddart’s claims against the Crown defendants are dismissed in their entirety.

Costs

[157] Given the defendants’ collective success on the motions and the dismissal of the action, the court intends to address costs of the motions and of the action. As they were requested to do, the parties submitted costs outlines related to the motions. The costs outlines do not address (and would not have been expected to address) costs of the action. The court requires additional materials to determine costs of the motions and of the action.

[158] In addition, on its own initiative, the court intends to consider whether to award costs against plaintiff’s counsel personally: see r. 57.07(1)(c).

[159] As already identified, the release of the substantive decision in Walker pre-dates by four years the year in which the defendants in the matter before this court served their respective motion records. The release of the costs decision in Walker pre-dates, by several years, service of the defendants’ respective motion records in the matter before this court.

[160] After granting the defendants’ motions for summary judgment in Walker, Ryan Bell J. determined costs of the motions and of the action. At para. 17 of her costs decision, Ryan Bell J. describes that action as “not pursued diligently”. In Walker, Ryan Bell J. received submissions on behalf of the plaintiff regarding his impecuniosity, his age (early eighties), his then recent release from incarceration, and his disability (left leg above-the-knee amputation).

[161] When balancing the approach taken to the litigation with the “hardship considerations” identified, at para. 9, Ryan Bell said the following:

A situation where litigants without means can ignore the rules with impunity can be avoided if hardship considerations are used to reduce, but not eliminate, liability for costs where appropriate. Such an approach balances the policy reasons for ordering an unsuccessful plaintiff to pay costs against access to justice and hardship considerations (Baldwin v. Daubney (2006), at paras. 48-49).

[162] In Walker, the successful parties sought costs of the motion and the action in the amounts of $17,000 (Crown defendants) and $34,250 (physician defendants). Justice Ryan Bell awarded $10,000 and $15,000, both all-inclusive, respectively, in costs. At para. 18, Ryan Bell J. concludes the costs decision, stating: “In my view, these awards recognize the principles and objectives of costs awards, including proportionality and deterrence, and appropriately balance access to justice and hardship considerations.”

[163] I anticipate that the costs submissions on behalf of Mr. Stoddart will include a review of his circumstances and financial position. There is no evidence before the court as to whether Mr. Stoddart remains incarcerated or as to his financial position.

[164] In light of both the substantive decision and costs decision in Walker, I am concerned that, in the proceeding now before the court, plaintiff’s counsel “caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default”: see r. 57.07(1) of the Rules of Civil Procedure.

[165] Procedurally, before an award of costs may be made against a lawyer personally, the lawyer must be given a “reasonable opportunity to make representations to the court”: r. 57.07(2).

[166] Counsel for the parties shall schedule a case conference before me. The purpose of the case conference is to determine the logistics for and timing of the hearing regarding costs of the action and of the motions for summary judgment.

Released: January 27, 2025

Madam Justice Sylvia Corthorn

Note

[1] Anns v. Merton London Borough Council, [1978] A.C. 28 (H.L.) and Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.