Superior Court of Justice - Ontario

Court File No.: CV-17-271 Date: 2026-02-23

RE: MICHAEL WAYNE MILLER, deceased by his Estate Trustee Cathy Machan, CATHY MACHAN, BETTY MILLER, deceased by her Estate Trustee Kimberly Miller, AVARD MILLER, deceased by his Estate Trustee Kimberly Miller, KIMBERLEY MILLER, JACK MILLER and MELISSA MACHAN, Plaintiffs

AND:

DANIEL NOEL, Defendant

BEFORE: Associate Justice S.A. Kettle

COUNSEL: Luke Kilroy, for the Plaintiffs John Petrella, for the Defendant

HEARD: February 13, 2026

ENDORSEMENT

A. OVERVIEW

[1] This is a motion by the plaintiffs for (a) leave to bring a motion after the action has been set down for trial; and (b) an order compelling the defendant, Dr. Daniel Noel ("Dr. Noel"), to serve a further and better Affidavit of Documents disclosing and producing his letter dated November 9, 2015 (the "CPSO Response Letter") to the College of Physicians and Surgeons of Ontario ("CPSO") in which he responded to a complaint regarding his care and treatment of Michael Miller ("Mr. Miller").

B. FACTS

[2] In this action, the plaintiffs allege that Dr. Noel was negligent in the care and treatment of Mr. Miller in the Emergency Department of a hospital in Goderich, Ontario on January 24, 2015. After being discharged, Mr. Miller was found dead at his home on February 3, 2015.

[3] The litigation steps and timing are as follows:

Date	Event
February 2, 2017	Notice of Action issued.
May 13, 2019	Plaintiffs' unsworn supplementary affidavit of documents served.
May 24, 2019	Defendant's sworn affidavit of documents served.
May 2019	Examinations for discovery conducted.
February 2, 2022	Plaintiffs set action down for trial.
August 15, 2023	First pre-trial conference conducted during which the parties agreed to a four-week non-jury trial during the November 2023 trial sittings.
November 2023	First trial date. Matter not reached for trial.
December 15, 2023	On consent, at assignment court, this matter was scheduled for trial on the September 2025 trial sittings.
June 10, 2025	Second pre-trial conference conducted.
August 2025	Second trial date. Trial adjourned by Justice Mitchell on motion by the plaintiffs, due to a departure of counsel with carriage of this matter.
September 2025	Legate Injury Lawyers retained as co-counsel for the plaintiffs.
December 2, 2025	First request to the defendant by the plaintiffs for the CPSO Response Letter
December 4, 2025	Lawyers for the defendant refused to produce the CPSO Response Letter
March 30, 2026	Upcoming third trial date, on the long trial sittings list.

C. ISSUES AND ANALYSIS

[4] The following issues will be addressed:

a. Is leave required to bring this motion for a further and better affidavit of documents?

b. If leave is required, should the plaintiffs be granted leave to bring this motion for a further and better affidavit of documents?

c. If leave is granted, should the defendant be required to produce the CPSO Response Letter in a further and better affidavit of documents?

Is Leave Required for a Further and Better Affidavit of Documents?

[5] The plaintiffs note that Rules 30.02 through 30.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("Rules") provide that the parties have a continuing obligation to disclose all documents relevant to a matter in issue and that is in their possession, control or power. Under Rules 30.06 and 48.04(2)(b), the plaintiff states that they may bring a motion, without leave, for a further and better affidavit of documents after they set the matter down for trial.

[6] The consequences of setting a matter down for trial are set out in Rule 48.04(1) of the Rules:

48.04 (1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

(2) Subrule (1) does not,

(a) relieve a party from complying with undertakings given by the party on an examination for discovery;

(b) relieve a party from any obligation imposed by,

(0.i) rule 29.1.03 (requirement for discovery plan),

(i) rule 30.07 (disclosure of documents or errors subsequently discovered),

(ii) rule 30.09 (abandonment of claim of privilege),

(iii) rule 31.07 (failure to answer on discovery),

(iv) rule 31.09 (disclosure of information subsequently obtained),

(v) rule 51.03 (duty to respond to request to admit),

(vi) rule 53.03 (service of report of expert witness); or

(vii) Revoked:

(c) preclude a party from resorting to rule 51.02 (request to admit facts or documents).

(3) Leave of the court is not required for,

(a) a motion to compel compliance with any obligation imposed by a rule listed in clause (2) (b); or

(b) a motion under rule 6.1.01 for a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.

[7] The plaintiff states that they do not require leave because their request for a further and better affidavit of documents falls under Rule 48.04(2)(b)(i) of the Rules.

[8] However, the document the plaintiffs seek has been in the defendant's possession and could have been discovered. By challenging the sufficiency of the defendant's affidavit of documents on the basis that a relevant document has been omitted, the plaintiffs are engaging in a form of discovery. The motion should have been brought before the action was set down for trial. See Horani v. Manulife Financial Corporation, 2022 ONSC 2350 at paras. 25-26; White v. Winfair Management Ltd. at paras. 20-21.

[9] As such, I find that the plaintiffs' motion for a further and better affidavit of documents requires leave of the court as it is not one of the exceptions listed in Rule 48.04.

Should Leave be Granted to Bring this Motion?

[10] The leading case on the test for leave is Horani v. Manulife Financial Corporation, 2023 ONCA 51. In that case at paras. 17 to 19, the Court of Appeal set out three approaches that have been applied:

a. The moving party must show "a substantial or unexpected change in circumstances such that a refusal to make an order under Section 48.04(1) would be manifestly unjust";

b. The moving party must "demonstrate that "the interlocutory step is necessary in the interests of justice" even in the absence of a substantial or unexpected change in circumstances";

c. Courts have considered the above tests and held that they did not need to weigh in on the appropriate approach because the moving party could not satisfy a "broader "interest of justice" test".

[11] I find that this case fits into the third approach above because the plaintiffs:

a. have not provided evidence of a substantial or unexpected change in circumstances; and

b. have not established that it is necessary in the broader interests of justice.

[12] The plaintiffs have known about the existence of the CPSO Response Letter since the spring of 2016. The plaintiffs first requested a copy of the CPSO Response Letter from the CPSO on May 15, 2019. That request was refused by CPSO on the basis that the letter was inadmissible pursuant to section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("RHPA").

[13] Counsel for the defendants noted in correspondence with plaintiff's counsel in May 2019 that documents from CPSO proceedings were inadmissible in a civil proceeding pursuant to section 36(3) of the RHPA and should not be listed in an affidavit of documents. Counsel for the defendants referred to the Middleton v. Sun Media Corp. ("Middleton") decision that stated that "not admissible" means "not capable of use".

[14] The plaintiffs did not seek production of the CPSO Response Letter from Dr. Noel and did not bring a motion for production of the CPSO Response Letter before setting the action down for trial on February 2, 2022. At that time, the plaintiffs had been aware of the CPSO Response Letter for almost six years and had requested a copy from the CPSO, which was denied, almost two-and-a-half years prior to setting the action down for trial.

[15] Almost two years after setting the action down for trial, in November 2023, counsel for the plaintiffs made a second request for the letter from the CPSO. That request was refused again.

[16] Almost two years after the second request, on October 16, 2025, counsel for the plaintiffs made a third request for the letter from the CPSO. That request was also refused. The CPSO's position has not changed since May 2019, almost 3 years before the action was set down for trial.

[17] The plaintiffs only requested the CPSO Response Letter from Dr. Noel on December 2, 2025, on the eve of the third trial date, almost four years after setting the action down for trial and nine years after commencing the action. The defendant's response mirrored that of the CPSO; that the letter was inadmissible pursuant to section 36(3) of the RHPA.

[18] I find that there is no evidence of a substantial or unexpected change in circumstances.

[19] I also find that there is no evidence to explain the delay in failing to bring the motion earlier. While the lawyer with carriage of the file for the plaintiffs' changed, another lawyer for the plaintiff has been and continues to be involved in this litigation since the CPSO Response Letter was first requested from the CPSO in May 2019.

[20] Further, the evidence does not demonstrate that the plaintiffs considered the CPSO Response Letter to be a "document of central importance" or a "potentially critical document to test the Defendant's credibility" as submitted by the plaintiffs in their factum on this motion. The plaintiffs were prepared to go to trial without the CPSO Response Letter. The action was set down for trial despite the CPSO refusing to provide the letter. The parties were ready to proceed to trial in November 2023, but the matter was not reached. The first request for the document from the defendant came less than four months before the third scheduled trial in March 2026.

[21] Even under the broader test noted above, I find that it is not in the interests of justice to grant leave to bring this motion for a further and better affidavit of documents as there is no plausible explanation for the delay other than a change in co-counsel for the plaintiffs. See George v. Alemu, 2023 ONSC 3644 at para. 13; Byard v. Reid, 2023 ONSC 5146 at paras. 22-23; and Alofs v. Blake, Cassels & Graydon LLP, 2017 ONSC 950 at paras. 27-29.

Should the CPSO Response Letter be Produced by the Defendant?

[22] Since leave is not granted, it is not necessary for me to deal with the plaintiffs' request for a further and better affidavit of documents disclosing and producing the CPSO Response Letter. However, even if leave was granted, I would have found that the CPSO Response Letter is inadmissible in this civil proceeding.

[23] Section 36(3) of the RHPA provides as follows:

Evidence in civil proceedings

(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. [emphasis added]

[24] The plaintiffs acknowledge that the CPSO Response Letter is a "report, document or thing" under section 36(3) of the RHPA. However, they take the position that section 36(3) was not intended to shield parties from cross-examination on prior inconsistent statements made during disciplinary hearings.

[25] The plaintiffs take the position that the CPSO Response Letter is relevant because it is a prior statement by Dr. Noel written soon after the events in issue and which the plaintiffs think may contain information about the assessments performed by Dr. Noel.

[26] The plaintiffs state that the CPSO Response Letter should be produced so that it is available during cross-examination at trial, for impeachment purposes if an inconsistency arises.

[27] The defendant takes the position that the CPSO Response Letter is inadmissible in civil proceedings.

[28] In the leading case, F.(M.) v. Sutherland, also referred to as Forget v. Sutherland ("Sutherland"), Laskin J.A., writing for the majority, described the purpose of section 36(3) of the RHPA as follows:

[29] I find no relevant indicators of legislative meaning to displace the presumption in favour of the ordinary meaning of s.36(3). The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings -- a health professional, a patient, a complainant, a witness or a College employee -- fearing that a document prepared for College proceedings can be used in a civil action.

[36] ...In my view, the purpose of s. 36(3) is to prevent not just patients but all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate. [emphasis added]

[29] In Sutherland at para. 44, the Ontario Court of Appeal held that "s. 36(3) of the RHPA is an absolute bar to the admissibility of the complaint and the sworn recantation in the civil action."

[30] In Middleton, the Ontario Divisional Court was asked whether a CPSO document was admissible in a civil proceeding and whether it must be included in an affidavit of documents. The Divisional Court noted the purpose of s. 36(3) as described in Sutherland and held as follows:

[18] While the Court of Appeal was dealing with a pleadings motion and considering the ultimate admissibility of material at trial. Laskin J.A.'s statement of the purpose of the legislation was framed in broad terms. Requiring the inclusion of College documents in an Affidavit of Documents is contrary to the legislation's purpose as he stated it -- namely, to keep civil proceedings and College proceedings separate.

[19] In construing a statute, the words are to be considered in their entire context and in light of the purpose of the legislation. In this case, the words "not admissible" must mean "not capable of use" in a civil proceeding, as the Court of Appeal stated in Forget. If not, the confidentiality which the Legislature seeks to protect in College proceedings will be undermined through disclosure of the documents in civil proceedings. Even if there is protection from further disclosure to the public through the deemed undertaking rule, there will still be disclosure of information to those who have not been involved in the College process -- an event that the Legislature sought to prevent through the provisions of s. 36.

[20] Therefore, there is no obligation to include the College documents in the Affidavit of Documents, for that would be inconsistent with the wording of s. 36(3), when read in light of the purpose of the subsection, as articulated in Forget. [emphasis added]

[31] In Mereweather v. Austin, 2011 ONSC 2154, the defendant brought a motion to strike CPSO documents from the plaintiff's affidavit of documents. In that case, Justice Perell noted that Middleton, which applied Sutherland, governed the outcome of the motion and stated the following:

[12] I appreciate that the current motion is not for a further and better affidavit but rather is, in effect, for a further and lesser affidavit, but the operative ingredient of the Divisional Court's decision is that "not admissible" means "not capable of use," and thus the s. 36 (3) documents should not be used for disclosure and production for inspection.

[32] In Meuwissen v. Perkin, 2012 ONSC 136 ("Meuwissen"), the Court followed Middleton, stating:

[40] In my view, the law is well-established that section 36(6) of the RHPA is an absolute bar to the admissibility of complaints made to the CPS in a civil action. Further, the Divisional Court in Middleton v. Sun Media Corp. (2006), 27 C.P.C. (6th) 253, at para. 20, held that there is no obligation to include documents that were the subject of a proceeding before the CPS in an affidavit of documents as that would be inconsistent with the meaning of s. 36(3) when read in light of the purpose of the subsection (Forget v. Sutherland, at para. 44).

[41] For the foregoing reasons, I find that the defendants have no obligation to disclose or produce documents that were the subject of a proceeding before the CPS, nor are those documents, if any exist, to be included in the defendants' affidavits of documents. As such, the relief sought in this respect is hereby dismissed.

[33] The plaintiffs rely on the decision in Clarke v. Labelle, 2013 ONSC 7204 ("Clarke") as the relevant authority to compel disclosure of the CPSO Response Letter. However, Clarke is distinguishable. In that case, the plaintiffs brought a motion to strike a CPSO document in the defendants' possession from the defendants' affidavit of documents. The judge refused to do so, leaving it to the trial judge to determine whether to permit a party to use the document already in their possession in cross-examination. No other case law was cited for the interpretation applied in Clarke.

[34] If I had granted leave, I would have found that the decision in Sutherland, as applied by Middleton and Meuwissen, to be determinative of this issue. As such, if leave had been granted, I would have dismissed the motion for a further and better affidavit of documents disclosing and producing the CSPO Response Letter.

[35] As the defendant pointed out, the affidavit on this motion included a number of CPSO documents. I find that those documents are inadmissible in this civil proceeding as s. 36(3) RHPA documents. See Abdul-Hussein v. Zabel, 2024 ONSC 4035 at para. 37.

D. CONCLUSION & COSTS OF THE MOTION

[36] The plaintiff's request for leave to bring this motion is denied.

[37] If the parties cannot agree as to costs, the defendant shall provide written costs submissions of no more than three pages (not including a costs outline) by March 2, 2026. The plaintiffs shall deliver responding written costs submissions of no more than three pages (not including a costs outline) by March 9, 2026. If necessary, the defendant may deliver reply costs submissions of no more than one page by March 12, 2026.

"Associate Justice S.A. Kettle"

Associate Justice S.A. Kettle

Date: February 23, 2026