) ) Jacob Michael Meuwissen, Jennifer Meuwissen, both by their Litigation Guardian, Deborah Marie Meuwissen v. the, 2013 ONSC 2732

CITATION : Meuwissen v. Perkin, 2013 ONSC 2732 COURT FILE NO.: 07-CV-9581CM DATE: 20130521 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Jacob Michael Meuwissen, Jennifer Meuwissen, both by their Litigation Guardian, Deborah Marie Meuwissen and the said Deborah Marie Meuwissen and Michael Meuwissen Plaintiffs (Respondents/Cross-Appellants) – and – Dr. Gary W. Perkin, Dr. Nicholaas Buma, a.k.a. Nick Buma, Dr. Nicolae Molotiu, Dr. Val Pusey, Dr. Ian K. Ferguson, Barbara Fonger, Sara Hinton, Tessa Tjoelker, Nancy Switzer, Deborah Feasey, Colleen Rolston- Payne, Dawn Wolfs, Julie Reid, Frances Pfeifer, D.

Pray and Strathroy Middlesex General Hospital Defendants (Appellants/Cross-Respondents) ) ) ) ) ) ) ) ) ))))))))))))))))) Donald W. Leschied, for the Plaintiffs/Respondents/Cross-Appellants Dara M. Lambe, for the Defendants/Appellants/Cross-Respondents, Dr. Gary Perkin, Dr. Nicholaas Buma, Dr. Nicolae Molotiu, Dr. Val Pusey and Dr.

Ian Ferguson Elizabeth Bowker, for the Defendants/Appellants/Cross-Respondents, Strathroy Middlesex General Hospital, Barbara Fonger, Sara Hinton, Colleen Rolston-Payne, Dawn Wolfs, Nancy Switzer, Tessa Tjoelker, Deborah Feasey, Frances Pfeifer, Julie Reid and Donna Pray ) ) ) HEARD: January 10 and 11, 2013 DECISION ON APPEALS and cross-appeal Nolan J.: INTRODUCTION [ 1 ] There were two appeals and one cross-appeal to be determined by the court. Dr. Gary W. Perkin and four other physicians (“Dr.

Perkin”) and Strathroy Middlesex General Hospital along with 10 nurses who are employees of hospital who were named as defendants in the proceeding ("the Hospital") appealed from an order of Master Lou Ann Pope dated January 6, 2012. The order was the result of a motion brought by the plaintiffs for pre-discovery production of numerous documents in the control of the defendants related to other lawsuits involving Dr.

Perkin and the Hospital. [ 2 ] In the cross-appeal, the plaintiffs seek an order overturning the Master’s refusal to order the production of certain Hospital records or medical records as counsel referred to them during argument, as well as an order overturning the cost order of the Master in which she ordered costs to be paid by the plaintiffs to the defendants. [ 3 ] For reasons that follow, the two appeals are allowed and the cross-appeal is dismissed with costs to the defendants. BACKGROUND [ 4 ] The proceeding out of which these appeals and cross-appeal arise was commenced in 2007.

The plaintiffs, Jacob Meuwissen, his mother and other members of his family have alleged that all the named doctors, nurses, and the Hospital itself were negligent with respect to Jacob’s birth which occurred on December 30, 2000, and which they allege left him permanently brain-damaged. All the allegations have been denied by all of the defendants.

[ 5 ] Although an order was made in 2008, coincidentally by me, that the Master case manage the proceeding, the proceeding has become bogged down in procedural wrangling with the result that discoveries have not even been commenced. I will have more to say about this delay later in this decision. [ 6 ] The original statement of claim was the subject of a partially successful motion made by the defendant doctors to strike certain parts of that initial claim.

In particular, the physicians asserted that certain portions of the claim violated s. 36 (3) of the Regulated Health Professions Act, 1991 , S.O. 1991, c 18, or, in the alternative, Rule 25 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194. In December 2008, the Master made an order with respect to what parts of the original claim could remain and which were struck. The Master ordered that the plaintiffs were permitted to leave in the amended statement of claim references to an alleged pattern of repetitive negligent medical care on the part of Dr. Perkin.

They were also permitted to plead that the Hospital and/or Dr. Perkin breached their fiduciary duties to the plaintiffs in permitting Dr. Perkin's to have ongoing privileges at the Hospital and/or in failing to advise the plaintiffs of Dr. Perkin’s alleged history of negligent conduct. [ 7 ] Specifically, the lengthy amended statement of claim includes certain references beginning at paragraph 34(c)(vii), to Dr.

Perkin treating Jacob and his mother “when his skill and competence was challenged by former patients of the hospital in the form of lawsuits and complaints that were and are strikingly similar to the claims raised in this proceeding.” [ 8 ] Beginning at paragraph 39 of the amended statement of claim, there is a heading entitled “Prior Similar Facts” in which there is reference to five other actions that involved Dr. Perkin and others.

It is undisputed that that particular portion of the claim was in the original statement of claim and was allowed to remain in the claim by way of the previous order of the Master which was the result of the motion to strike brought by the physician defendants in 2008. [ 9 ] One of the arguments raised by the defendants at that time was that by permitting that portion of the statement of claim to remain, there would be subsequent issues raised in the discovery process with respect to proportionality, what documents would be producible and whether that portion of the pleadings would increase the complexity of the proceeding itself.

Counsel for the appellants/defendants acknowledged that Master Pope, in spite of her decision to leave in that portion, found those arguments to be speculative. The Master held that those allegations were related to knowledge that the Hospital had of prior complaints against Dr. Perkins and that they provided some foundation for the claim for damages for breach of fiduciary duty and for punitive damages. At para. 35 of the Master’s reasons for her decision found at Meuwissen v. Perkin [2008] O.J.

No. 5243 she said this: The defendant has adduced no evidence of added complexity or unfairness arising if the impugned pleading is permitted. The submissions are based on assumptions. No doubt, the discovery process will be somewhat more involved; however, given that two of the five other lawsuits were dismissed without any findings of fact regarding liability, it is likely that the scope of discovery will be limited regarding these cases. Additionally, at trial it is very likely that the plaintiff will only be permitted to adduce evidence of the facts of these two lawsuits as pled, and no more.

That leaves the other three lawsuits, which, at this stage are still ongoing. It will be left to the trial judge to determine the relevancy and admissibility of any further facts of those cases as they unfold.

Therefore, to strike paragraph 35 without evidence that the effect of the striking would be unduly oppressive or unfair would not only deprive the trier of fact of a full understanding of the case the plaintiffs propose to a advance, but it would deprive the trier of fact of a full understanding of the case that the defendant proposes to advance in his cross-claim, especially given that the defendant pled and relies on the allegations as set out in the statement of defence, and may deprive the plaintiffs of an opportunity to prepare for this aspect of the defendant's case. [ 10 ] By the time that the plaintiffs’ motion for production of documents was brought in 2010, heard in 2011 and the decision was released in January 2012 giving rise to these appeals, all five of the other lawsuits had been dismissed without costs and without any findings of liability.

At the hearing of the motion, the Master found that there had not been adequate attempts to serve the parties in two of the five "similar fact cases" with the result that the orders for production of documents relate only to the Carruthers, Carreiro and Langford cases. These cases will be referred to throughout this decision as the similar fact cases. GROUNDS FOR THE APPEALS AND CROSS–APPEAL [ 11 ] There were numerous grounds of appeal alleged in the Notice of Appeal filed on behalf of the defendant physicians, and the Notice of Appeal of the Hospital.

In their cross-appeal, the plaintiffs allege that the Master erred in failing to order the defendants to produce the medical records that were requested and they seek an order from this court that "both Dr.

Perkin (and all Physicians named herein; where applicable) and the Hospital (and all the nurses represented by the said "Hospital") deliver further and better Affidavits of Documents and to produce all hospital records found by Master Pope to have been served with the motion and not appearing thereto; and for which the Lower Court found relevant to this proceeding, as sought by the Plaintiffs in their Notice of Motion herein;" The plaintiffs also sought that "the costs of the motion before Master Pope and pursuant to the Order made on January 6, 2012 be reversed and, as varied, that costs be to the plaintiffs as applicants in the within motion who were successful in their motion and that costs be to the Plaintiffs as fixed by this Court." In addition, both the appellants and the cross-appellants sought costs of their appeals fixed on a substantial indemnity basis and payable forthwith. [ 12 ] All of the grounds of appeal and cross-appeal and the issues of costs on the appeals and cross-appeal can be summarized in the following questions: 1.

What is the standard of review of a decision of a Master? 2. Did the Master use the proper test for production of documents pursuant to rule 30.02 of the Rules of Civil Procedure ? 3. If the proper test was used, did the Master err in finding to be relevant all documented complaints, the medical reports and the transcripts of the examinations for discovery produced in the similar fact actions? 4. If the Master did use the proper test, did she err in failing to order the defendants to produce the medical records with respect to the similar fact cases? 5.

Did the Master fail to properly address the principles of proportionality?

6. Did the Master fail to properly apply the deemed undertaking rule? 7. Did the Master err in the manner in which she awarded costs to the defendants by failing to take into account the divided successon the motion? 8. Which of the parties are entitled to costs on these appeals and cross-appeal, on what scale and what should be the terms for thepayment of costs? My decision will be structured in relation to these questions. 1.

What is the standard of review? [13] Counsel for the respondent/cross-appellants argued that the applicable standard of review of the decision of a Master is set outin Roche Palo Alto LLC v. Apotex Inc., [2006] O.J.

No. 3092 (S.C.), at para. 3: 1) The decisions of Case Management Masters on matters involving the production of documents and the appropriateness of questionson examinations for discovery ought to be entitled to a measure of deference resulting from their unique and “front-line” role in the civillitigation process; 2) If the matter being appealed is one of discretion, the Court should not interfere unless the Master was clearly wrong; [14] In spite of advancing that argument, it was not seriously in dispute between the parties that the standard of review of thedecision of a Master is correctly set out in the later decision of Zeitoun v.

Economical Insurance Group (2008), (ONSCDC), 292 D.L.R. (4th) 313 (Ont. Div. Ct.) at paras. 40 and 41. The standard applicable on appeals from Masters is the same standardof review on appeals from judges. On questions of law, the correctness standard applies.

On questions of fact and mixed questions of factand law or if the Master exercised discretion on incorrect principles the appellate court must determine whether the Master made apalpable and overriding error. [15] Although Master Pope case managed this case and her order related to the pre-discovery production of documents, I accept ascorrect the standard of review as set out in Zeitoun above. 2. Did the Master use the proper test for production of documents pursuant to rule 30.02? [16] The appellants assert that the Master erred in law in finding that the onus was on Dr.

Perkin to prove the existence, or lackthereof, of a number of the documents requested by the plaintiffs in the context of a motion under Rule 30 of the Rules of CivilProcedure, R.R.O. 1990, Reg. 194. [17] Further, they assert that the Master erred in law by finding that the records of Dr.

Perkin regarding any complaints against himexcept those made to the College of Physicians and Surgeons are relevant to this action and in so doing, failed to properly apply the testof relevance as set out in rule 30.02 of the Rules of Civil Procedure. [18] It was further asserted that the Master erred in law in finding that the medical reports and discovery transcripts produced andgenerated in the similar fact actions are relevant to this action and in so doing failed to properly apply the test of relevance as set out inrule 30.02 of the Rules of Civil Procedure. [19] The scope of documentary discovery is set out in rule 30.02: Disclosure 30.02

(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party tothe action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. R.R.O.1990, Reg. 194, r. 30.02 (1); O. Reg. 438/08, s. 26. Production for Inspection

(2) Every document relevant to any matter in issue in an action that is in the possession, control or power of a party to the action shall beproduced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document. R.R.O.1990, Reg. 194, r. 30.02 (2); O. Reg. 438/08, s. 26. Relevance [20] The test for disclosure and production as set out in the above passages is “every document relevant to any matter in issue in anaction” [Emphasis added]. This test has replaced the old “semblance of relevancy” test. El Dali v. Panjalingam, 2011 ONSC 3418,[2011] O.J.

No. 3324 is a case not referred to by any party but one which contains a succinct and helpful explanation of the test forrelevance. At para. 21 of that case, McLean J. discussed the amendment to the Rules, and attempts to define the meaning of “relevance”: The Court notes that on January 1, 2010 this Rule was amended to its current state by changing the test from the prior Rule of"semblance of relevancy" to relevancy itself. Relevancy is not defined in this Rule. Indeed, there have been many attempts to definerelevancy in various contexts.

For our purposes, it would seemed that an appropriate definition is found in paragraph 2.35 of Sopinka,Lederman & Bryant, The Law of Evidence in Canada, 3d ed (Toronto: Lexis Nexis, 2009):

2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen's A Digest of the Law ofEvidence, where it is defined to mean: ... any two facts to which it is applied are so related to each other that according to the commoncourse of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or futureexistence or non-existence of the other. Pratte J. in R. v.

Cloutier, (SCC), [1979] 2 S.C.R. 709, accepted a definition from an earlyedition of Cross on Evidence: For one fact to be relevant to another, there must be a connection or nexus between the two whichmakes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have realprobative value with respect to the latter. Although the question of relevance and admissibility generally, is for the trial judge, whether a fact bears therequired relationship to another fact is not usually determined by the application of a legal test.

It is an exercised in the application ofexperience and common sense. Thayer believed that logic (not the logic of deductive reasoning, but of knowledge and experience)provided the best guide to the application of this fundamental principle of evidence law. Doherty J.A. in R. v. Watson, (ON CA), [1996] O.J. No. 2695, stated that "relevance": ... requires a determination of whether as a matter of human experience and logic the existence of"Fact A" makes the existence or non-existence of "Fact B" more probable than it would be without the existence of "Fact A". If it doesthen "Fact A" is relevant to "Fact B".

As long as "Fact B" is in itself a material fact in issue or is relevant to a material fact in issue in thelitigation, the "Fact A" is relevant and prima facie admissible. [21] In Beazley v. Suzuki Motor Corp., 2008 BCSC 850, [2008] B.C.J. No. 1243, the case relied on by the Master, Goepel J. statesat para. 13: Rule 26 governs the production of documents. Pursuant to Rule 26(1), a party must produce documents that are or have been in theparty's possession or control relating to every matter in question in the action. Relevance in connection with the discovery of documentshas been broadly defined.

Any document which directly or indirectly may enable a party to advance his own case or destroy that of hisadversary, or which may fairly lead to a train of enquiry or disclose evidence which may have either of those consequences, must bedisclosed: The Compagnie Financiere et Commerciale du Pacifique v.

The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.)(“Peruvian Guano”). [22] With respect to the Peruvian Guano case, a footnote to the Civil Justice Reform Project states: Interestingly, the broad “semblance of relevance” test appears to have originated from the British Peruvian Guano case, where the courtrules that one must discover every document that contains information that may, directly or indirectly, enable a party to advance his orher own case or to damage the opposing party’s case.

This includes documents that may fairly lead to a train of inquiry that wouldadvance a party’s own case or damage the case of the opposing party. See The Compagnie Financiere et Commericale du Pacifique v.Peruvian Guano (1882), 11 Q.B.D. 55 (C.A.) at 63.

However, the Peruvian Guano approach in England and Wales has been replacedwith a more restrictive test for the disclosure of documents: See UK Civil Procedure Rules, r. 31.6. [23] Although the Master made reference to the proper test and to the change in rule 30.02 from disclosure of documents that havea semblance of relevancy to relevancy, it appears from her reasons and from her ultimate decision that she, in fact, applied the old test. Iam supported in that view by her reference to the case of Beazley.

Specifically the Master said at para. 28 of her decision: Relevance in connection with the discovery of documents was broadly defined by the British Columbia Supreme Court in Beazley v.Suzuki Motor Corp., 2008 BCSC 850, 58 C.P.C. (6th) 240, at para. 13 as:

Any document which directly or indirectly may enable a party to advance his own case or destroy that of his adversary, or which may fairly lead to a train of enquiry to disclose evidence which may have either of those consequences, must be disclosed. [ 24 ] The test as set out in the Beazley case is closer to the old semblance of relevance test which used to be the law in Ontario. Specifically, the Master noted that relevance in connection with discovery is “broadly defined”. With respect, that

interpretation of the test for relevancy differs from the new test in Ontario. The new test requires that a party establish that a document is relevant, not that it may be relevant to some line of inquiry. The previous broad and liberal default rule of discovery is now gone. [ 25 ] I am further supported in my view that the Master did not use the proper relevancy test for the production of documents in the release of the documents related to the Carruthers case. Although the plaintiffs in their motion had asked to produce “all documentation of prior serious errors in judgment by Dr.

Perkin in the management of obstetrical cases brought to his attention and that of the said Hospital and the College of Physicians and Surgeons”, the Carruthers case does not involve obstetrics but rather the alleged failure to diagnose a case of viral meningitis in an adult brought to the emergency room of the Hospital. 3. If the proper test was used, did the Master err in finding relevancy in the documents ordered produced? [ 26 ] The Master appears to have applied the correct test for relevancy in relation to the Hospital records related to the similar fact cases.

She found they were not relevant and, in addition, that production of those records would offend the principle of proportionality. Those records form the foundation for the medical reports, including expert reports that the Master ordered produced.

The same reasoning should apply to the transcripts of the examinations for discovery. [ 27 ] In support of my finding that the test of relevancy applied by the Master was incorrect was the overly broad approach in ordering production of all medical reports whether or not they were plaintiff or defence reports, whether or not they related to the issues of liability or damages, whether or not they related to Dr. Perkin’s alleged negligence or that of other defendants and whether or not they were served in the similar fact actions.

The Master’s ruling is also overly broad in that it orders production of all examination for discovery transcripts of all parties in the similar fact actions including those parties who are not parties to this proceeding. [ 28 ] In the event that the Master stated the correct test for relevance, the question becomes whether she erred in determining the relevance/non-relevance of the records, opinions/reports and transcripts. Both the appellants and the respondents/appellants by cross- appeal assert that the Master incorrectly applied the relevancy test in one way or another.

All the parties agree that the medical reports/opinions and transcripts derive from the Hospital records. As counsel for the respondents/cross-appellants argued in his factum at para. 64, “in order to understand the medical reports/opinions, they must be read in the context of the source documents from which they were generated”. Similarly, the appellants agree that the Hospital records are the foundation for the medical reports/opinions and transcripts.

Therefore, it was not logical to order production of the medical reports and transcripts, but refuse the production of the Hospital records when these three kinds of documents are interrelated. The Master’s orders in relation to those documents are irreconcilable. [ 29 ] With respect to the medical records that were requested by the plaintiffs and for which disclosure was refused by the Master, it is my view that the Master applied the proper test for relevancy.

Beginning at para. 64 and 65 the Master began her analysis with respect to whether all the Hospital records and the medical reports which were requested to be produced by the plaintiffs should be produced. At para. 68, the Master specifically deals with the issue of the Hospital records and made the following finding: For the following reasons, I have not been persuaded that the hospital records are relevant. I fail to see how these records have any probative value to the issue of a pattern of repetitive negligence.

I concur with the Hospital’s contention that there is no basis for concluding that the records requested contain any information that is relevant to the plaintiffs’ case given that all of the allegations of negligence in all five lawsuits are unproven.

Further, there have been no findings of negligence in the other five actions. [ 30 ] At para. 69 the Master went on to say the following: In arriving at my decision, I have also considered the issue of proportionality and that production of the hospital records will unduly increase the volume of productions and likely prolong examinations for discovery for no justifiable reason.

Therefore, the hospital records are not producible. [ 31 ] In my view, had the Master applied the same reasoning to the requests for medical reports and for transcripts of examinations for discovery, she would have come to the same conclusion. Reports and transcripts that were ordered produced by her are based on the underlying medical records.

To find that the subsequent opinions and the subsequent transcripts of examinations for discovery are relevant when the records themselves were not relevant and offended the principles of proportionality is incongruous. [ 32 ] The Master went on to say at para. 78: Moreover, the allegations of negligence against the defendants in the other actions are similar to if not the same as the allegations of negligence in this action. For example, the facts in both the Carreiro and Langford actions are the same as in this action. They all involve the birth of a child.

In my view, the plaintiffs are entitled to know of any expert opinion regarding the defendants’ actions in the same or similar proceedings. Knowledge of these opinions may lead to a line of inquiry in the within action that may enhance the plaintiffs’ case. Conversely, it may bolster the defence. [ 33 ] It is not at all clear that the facts in the Carreiro and the Langford cases are the same as in this action. The only similarity appears to be that they involve a birth.

Carruthers which deals with a viral meningitis case is not the same and the relevancy of any of the documents ordered produced is unestablished. [ 34 ] The Master’s reasoning in para. 78 is closer to “the semblance of relevance test” since she found that the knowledge of these opinions may lead to a line of inquiry that can enhance one side’s or the other’s case. With respect, that is not the law in Ontario and goes far beyond the current rule of relevancy.

For the same reasons that the Hospital records were deemed not relevant, that is, that the allegations in the other actions have not been pleaded, the documents generated in those actions, being the expert reports and the

transcripts, should similarly have been found to not be relevant. The other actions were pleaded in the amended statement of claim forthe purpose of establishing a pattern of repetitive negligence that flows into the allegations related to breach of fiduciary duty. [35] The respondents/cross-appellants relied on the decision of Williams v. Wai-Ping, [2005] O.J. No. 1940 at para. 1, aff’d at[2005] O.J. No. 6186 (Div. Ct.).

That case supports the proposition that similar fact pleadings can be used in medical negligence casesand it was the decision upon which the Master relied in allowing the pleadings to stand in the motion brought by the defendant doctors in2008. The Williams decision, however, is of no assistance with respect to the scope of production and disclosure that flows from that kindof pleading.

In the Williams case, there is no ruling with respect to production of documents in the other cases, only the nature of thepleadings. [36] It is important to remember that there are limited circumstances in which evidence of prior similar fact is admissible, relevantand reliable. The leading authority on the circumstances in which similar fact evidence can be permitted is R. v. Handy, 2002 SCC 56,[2002] 2 S.C.R. 908. The Supreme Court of Canada made it clear that the rules limiting the use of similar fact evidence apply equally tocivil as well as criminal cases.

At para. 36 of Handy, the court said: “The exclusion of evidence of general propensity or disposition hasbeen repeatedly affirmed by this court and is not controversial.” [37] The court continued at para. 37: The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capturethe attention of the trier of fact to an unwarranted degree. Its potential for prejudice, distraction and time consumption is very great andthese disadvantages will almost always outweigh its probative value.

It ought, in general, to form no part of the case which the accused iscalled on to answer. It is excluded, notwithstanding the general rule that all relevant evidence is admissible. [38] At para. 49 the court continues: The present rule is succinctly formulated by McIntyre J. in Sweitzer v.

The Queen, (SCC), [1982] 1 S.C.R. 949, at p.953: The general principle described by Lord Herschell may and should be applied in all cases where similar fact evidence is tendered and itsadmissibility will depend upon the probative effect or of the evidence balanced against the prejudice caused to the accused by itsadmission whatever the purpose of its admission. [39] It is my view that this is the context within which the Master ought to have considered the request for production of thedocuments from the similar fact actions.

In the context of the test set out in Handy, the documents ordered produced by the Master aresimply not relevant to the issues as they are pleaded in this case. Further, production of this kind of evidence is inherently prejudicial tothe defendants and moreover is a significant intrusion on the privacy rights of the non-parties. [40] In her earlier decision dated December 17, 2008, the Master was aware of the limitations that are placed on similar factevidence.

In the decision under appeal, the Master recognized that while similar fact evidence was allowed to be pleaded as beingrelevant to allegations of breach of fiduciary duty, actions that were dismissed without any findings of negligence would result in alimited scope of discovery regarding those cases.

At para. 61 the Master said this: In my view, the fact that the plaintiffs were permitted to plead allegations involving similar fact evidence relating to the five otherlawsuits, does not, in and of itself, lead to the conclusion that they are entitled to production of any and all medical records, opinions andtranscripts that may exist in those other proceedings. However, at a minimum, the facts as pled regarding the other proceedings aremerely evidence of other complaints against Dr. Perkin and the Hospital.

I find however that the allegation of a pattern of repetitivenegligence is a matter in issue in this action that, after a trial, may support a finding of negligence against Dr. Perkin or the Hospital. [41] While counsel for the respondents/cross-appellants argued that the statement of the Master is not relevant to the appeal beforeme and that any comment made by her with respect to that evidence is, at best, obiter, I disagree. While the first part of the Master’scomments are correct, the final sentence in the excerpt is not correct in law.

The risk of similar fact evidence, as set out in Handy, relatesto the use that the trier of fact may make of it in coming to a conclusion with respect to guilt or liability. The fact that the Masterindicated that the pleading of the similar fact actions could support a finding of negligence demonstrates the problem. The statementillustrates exactly the danger of prejudice that is inherent in this evidence being pleaded and in ordering the production of the documentsrelated to the similar fact cases.

The pleadings with respect to the other complaints were allowed to remain in the amended statement ofclaim as some support for the allegations regarding a breach of fiduciary duty, not as support for the allegation of negligence. [42] In

summary, I find that the Master erred in applying the principles of relevancy set out in Beazley at para. 13. The test in thatcase is closer to the old “semblance of relevance” test. By relying on non-Ontario rule that reflects the old “semblance of relevance” testrather than the new relevancy test in effect in Ontario since January 2010, the Master erred in ordering production of documents forwhich relevancy was not established by the plaintiffs. 4.

If the Master did use the proper test for relevancy, did she err in failing to order the defendants to produce the medicalrecords regarding that similar fact cases? [43] It was the position of counsel for the respondents/cross-appellants that the Master did not properly apply the test of relevancyto the medical records and that she erred in failing to order the defendants to produce the medical records for the similar fact cases.

In theprevious section, I dealt with the issue of the correctness of the Master’s analysis and application of the principle of relevancy withrespect to the production of the medical records. I find that her analysis was correct, that she applied the correct test and that she wascorrect in refusing to order the production of the medical records. Accordingly, that ground of appeal of the respondents/cross-appellantsis dismissed. 5. Did the Master err in failing to properly address the principles of proportionality?

[ 44 ] The appellants argued that the Master erred in law in failing to apply or to properly apply the principles of proportionality in discovery as set out in rules 1.04 and 29.2 of the Rules of Civil Procedure when she ordered production of the medical reports and transcripts from the similar fact actions. [ 45 ] It is also asserted that the Master erred in ordering all the medical reports including expert opinions with respect to the delivery of health care services by Dr.

Perkin and all transcripts from examinations for discovery conducted in that litigation while finding that the medical records which were related to the same cases were irrelevant and that their production would offend the proportionality principle. [ 46 ] The principles of proportionality are set out in rules 1.04 and 29.2 of the Rules: 1.04

(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194 , r. 1.04 (1). Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2. Matters Not Provided For

(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them. R.R.O. 1990, Reg. 194 , r. 1.04 (2). ... 29.2.01 In this Rule, “document” has the same meaning as in clause 30.01 (1) (a). O. Reg. 438/08, s. 25. APPLICATION 29.2.02 This Rule applies to any determination by the court under any of the following Rules as to whether a party or other person must answer a question or produce a document: 1. Rule 30 (Discovery of Documents). 2. Rule 31 (Examination for Discovery). 3. Rule 34 (Procedure on Oral Examinations). 4. Rule 35 (Examination for Discovery by Written Questions). O. Reg. 438/08, s. 25. CONSIDERATIONS General 29.2.03

(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether, (

a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (

b) the expense associated with answering the question or producing the document would be unjustified; (

c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (

d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (

e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s. 25. Overall Volume of Documents

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person. O. Reg. 438/08, s. 25. [ 47 ] In her analysis of the principles of proportionality with respect to production of the medical records, I find the Master applied the proper test.

I find however that she failed to do so when dealing with the production of the medical reports including expert opinions as well as the transcripts. [ 48 ] The test for proportionality in discovery requires a recognition that the time and expense related to any civil proceeding must be proportionate both to the amount in dispute as well as the importance of the issues at stake in the proceeding. In Warman v. The National Post Company et al. , 2010 ONSC 3670 , 103 O.R. (3d) 174, Master Short dealt extensively with the concept of proportionality in discovery.

I accept and endorse his view that the default rule for discovery should start with proportionality. At paras. 65, 67 and 68,

Master Short said this: I agree with the view of Netzorg and Kern that the default rule for discovery should start with proportionality and “a recognition that not all conceivably-relevant facts are discoverable in every case”. Proportionality factors are already a part of our discovery rules. However, to date our profession has been provided with limited guidance in this area. ... Reversing the default rule means proportionality would replace relevancy as the most important principle guiding discovery.

Relevancy would remain a threshold requirement, but would not be a licence to obtain discovery regardless of the burden or expense imposed on the opponent if the costs of discovery outweigh the likely benefit. Until proportionality becomes the accepted guiding principle, virtually unlimited discovery may well continue unless and until the responding parties convince the court to actually apply the proportionality factors. [ 49 ] Later, at paras. 84 to 86, Master Short said this: The time has come to recognize that the “broad and liberal” default rule of discovery has outlived its useful life.

It has increasingly led to unacceptable delay and abuse. Proportionality by virtue of the recent revisions has become the governing rule. To the extent that there remains any doubt of the intention of the present rules I see no alternative but to be explicit. Proportionality must be seen to be the norm, not the exception – the starting point, rather than an afterthought. Proportionality guidelines are not simply “available”. The “broad and liberal” standard should be abandoned in place of proportionality rules that make “relevancy” part of the test for permissible discovery, but not the starting point.

If embraced by the courts, parties and their counsel, such proportionality guidelines offer hope that the system can actually live up to the goal of securing for the average citizen “a just, speedy and inexpensive determination” of his or her case. [ 50 ] Master Short’s reference in para. 84 to “unacceptable delay” is particularly poignant in relation to the case before me. Jacob was not quite seven years old when this lawsuit began. On December 30, 2013, he will become a teenager. Discoveries have not even begun. The costs of the litigation to date must be significant.

In my view, this kind of delay in this kind of case should shock the conscience of the court. It is the kind of delay that is at risk of bringing the administration of justice into disrepute. It was this kind of delay that brought about the Civil Justice Review in the 1990s and the more recent Osbourne Report which sparked the changes to the discovery rules in January 2010. [ 51 ] Words like “relevancy” and “proportionality” are, however, meaningless unless they are given effect when issues related to discovery are to be determined by the court. This case is about what transpired at Jacob’s birth by caesarean

section for which extensive disclosure was ordered. None of the other similar fact cases involved such an event. Indeed, one of the cases involved the misdiagnosis of an adult at the emergency department of the Hospital. The order for production and all the medical reports, including expert reports as well as the transcripts of examinations for discovery in those similar fact cases stretches any reasonable understanding of proportionality.

Even if the plaintiffs had been able to establish the relevancy of those documents, which I have already found they did not, and thus the Master erred in law in ordering their production, I find the issue of proportionality was not correctly analysed in relation to the productions she ordered. She correctly applied the principle in relation to the Hospital records but failed to apply the same analysis to the medical reports and the discovery transcripts. 6.

In ordering the production of the expert reports and transcripts, did the Master err in failing to properly apply the deemed undertaking rule? [ 52 ] The appellants argued that the Master erred in law in finding that the records received by the defendants in the similar fact actions are not subject to the deemed undertaking rule outlined in rule 30.1 of the Rules of Civil Procedure . As well, they asserted that the Master erred in law by failing to apply the principles enunciated in rule 30.1(8) of the Rules of Civil Procedure with respect to when the relief from the deemed undertaking rule is available.

It was also argued that the Master further erred in law when she concluded that the transcripts from the examinations for discovery and the reports were not protected by the deemed undertaking rule. [ 53 ] The deemed undertaking rule is set out in rule 30.1.01 of the Rules of Civil Procedure : 30.1.01

(1) This Rule applies to, (

a) evidence obtained under, (

i) Rule 30 (documentary discovery), (ii) Rule 31 (examination for discovery), (iii) Rule 32 (inspection of property), (iv) Rule 33 (medical examination), (

v) Rule 35 (examination for discovery by written questions); and (

b) information obtained from evidence referred to in clause (a). O. Reg. 61/96, s. 2; O. Reg. 627/98, s. 3.

(2) This Rule does not apply to evidence or information obtained otherwise than under the rules referred to in subrule (1). O. Reg. 61/96, s. 2.

Deemed Undertaking

(3) All parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposesother than those of the proceeding in which the evidence was obtained. O. Reg. 61/96, s. 2; O. Reg. 575/07, s. 4. Exceptions

(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents. O. Reg. 61/96, s. 2.

(5) Subrule (3) does not prohibit the use, for any purpose, of, (

a) evidence that is filed with the court; (

b) evidence that is given or referred to during a hearing; (

c) information obtained from evidence referred to in clause (

a) or (b). O. Reg. 61/96, s. 2.

(6) Subrule (3) does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, toimpeach the testimony of a witness in another proceeding. O. Reg. 61/96, s. 2.

(7) Subrule (3) does not prohibit the use of evidence or information in accordance with subrule 31.11 (8) (subsequent action). O. Reg.61/96, s. 2. Order that Undertaking does not Apply

(8) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court mayorder that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give suchdirections as are just. O. Reg. 61/96, s. 2; O. Reg. 263/03, s. 3. [54] In Kitchenham v. AXA Insurance Canada, 2008 ONCA 877, [2008] O.J. No. 5413 the Court of Appeal dealt extensively withthe deemed undertaking rule.

At para. 10, Doherty J.A. said: In my view, the Rule exists to protect the privacy interest of the party compelled by the rules of disclosure to provide that information toanother party to the litigation.

The Rule provides that protection by prohibiting the party who obtained the information throughcompelled disclosure from using that information outside of the litigation, except where certain exceptions apply or the court makes anorder permitting its use. [55] Further, at para. 26 he said: An undertaking is a promise given by one party to another party to the lawsuit in exchange for obtaining something from that party.Thus, in the discovery process, one party receives information from another party, and in exchange promises the other party that theinformation will not be used for any purpose other than the litigation at hand.

The disclosed information flows in one direction, from thediscovered party to the discovering party. The undertaking flows in the opposite direction, from the party obtaining the disclosure to theparty giving the disclosure. [56] Again, at para. 29 Doherty J.A. said: The common law implied undertaking, as developed in Canada and England, limits the use that the recipient of the compelled disclosurecould make of information obtained by that disclosure. The implied undertaking did not bind either the party who provided thedisclosure or strangers to the litigation in which the disclosure was made: see Juman v.

Doucette, 2008 SCC 8 , [2008] 1 S.C.R.157, at paras. 4 and 55; Tanner v. Clark at paras. 5-7, aff'g (2002), (ON SCDC), 60 O.R. (3d) 304 (Div. Ct.), atparas. 39 and 48-55; Home Office v. Harman, [1983] 1 A.C. 280 (H.L.), per Lord Keith at p. 308; John B.

Laskin, "The ImpliedUndertaking" (a paper presented to the CBA-Ontario, CLE Conference on Privilege and Confidential Information in Litigation - CurrentDevelopments and Future Trends, October 19, 1991), at p. 2. [57] At paras. 30-32, Justice Doherty explained the rationale of the implied undertaking rule: The implied undertaking promotes the due administration of justice in the conduct of civil litigation in two ways. First, it encourages fulland frank disclosure on discovery by the parties.

It does so by interdicting, except with the court's permission, the subsequent use of thedisclosed material by the party obtaining that disclosure for any purpose outside of the litigation in which the disclosure was made.Second, the implied undertaking accepts that the privacy interests of litigants must, subject to legitimate privilege claims, yield to thedisclosure obligation within the litigation, but that those interests should be protected in respect of matters other than the litigation:Juman v. Doucette, at paras. 23-27; Richard B.

Swan, "The Deemed Undertaking: A Fixture of Civil Litigation in Ontario" (Winter

2008) 27 Advocates' Soc. J., No. 3, p. 16. The promotion of full and frank disclosure, and the protection of the privacy interests of those who are compelled to make disclosureduring discovery are both served by restricting the use that the party obtaining the information can make of that information. Neitherrationale for the implied undertaking justifies any restriction on the subsequent use of the information by the party who produced thatinformation.

To the contrary, wrapping all information produced in the discovery process in one action in a cloak of non-disclosure forany subsequent purpose, and requiring a court order to remove that cloak of secrecy would inevitably interfere with the effectiveoperation of the discovery process. [58] Within the context of the deemed undertaking rule, the only privacy interests are those of the discovered party.

The deemedundertaking rule has no application if the information was not obtained in the discovery process. [59] The issue here is whether the Hospital records, medical opinions/reports, and transcripts and any exhibits were obtained bythe appellants from non-parties, the plaintiffs in the other actions that have settled. Only those documents are subject to the deemedundertaking rule, and cannot be “used” – either “produced” or “disclosed”. [60] Any documents that the appellants did not obtain from the plaintiffs in the similar fact actions during the course of discoveryare not subject to the rule.

In that case, if there are any Hospital records, medical opinions/reports, and transcripts that were not obtainedin the discovery process, the Appellants must produce them, and cannot attempt to use the deemed undertaking rule to refuse to producethose documents if properly ordered produced. [61] On this point, Doherty J.A. in Kitchenham states the following at para. 32: The promotion of full and frank disclosure, and the protection of the privacy interests of those who are compelled to make disclosureduring discovery are both served by restricting the use that the party obtaining the information can make of that information.

Neitherrationale for the implied undertaking justifies any restriction on the subsequent use of the information by the party who produced thatinformation. To the contrary, wrapping all information produced in the discovery process in one action in a cloak of non-disclosure forany subsequent purpose, and requiring a court order to remove that cloak of secrecy would inevitably interfere with the effectiveoperation of the discovery process.

Relief from the Deemed Undertaking Rule [62] On the issue of relief from the deemed undertaking rule, Doherty J.A. stated at para. 38 of Kitchenham: Subrule (8) also assists in identifying the nature of the deemed undertaking rule. It provides that the court may order that the deemedundertaking in subrule (3) does not apply to evidence, or information obtained from it, "if satisfied that the interest of justice outweighsany prejudice that would result to a party who disclosed evidence".

Subrule (8) makes it clear that the party who disclosed the evidencethrough the compelled discovery process is the exclusive beneficiary of the protection afforded by the deemed undertaking. It is thatparty's privacy interests that can justify restriction on the use of information obtained through discovery outside of the litigation in whichthat information was obtained: see B.E. Chandler Co. v. Mor-Flo Industries Inc. (1996), (ON SC), 30 O.R. (3d) 139(Gen.

Div.), at p. 142. [63] While the plaintiffs in the similar fact actions who were properly served did not oppose the current motion for production, Ifind that their non-participation does not equate to consent and, thus, does not meet the exception pursuant to rule 30.1.01(4):

(4) Subrule (3) does not prohibit a use to which the person who disclosed the evidence consents. O. Reg. 61/96, s. 2. [64] The breadth of the Master’s order for disclosure of the medical reports and the discovery transcripts is indicative of her failureto properly apply the deemed undertaking. In her decision of June 6, 2011, of the motion for disclosure, the Master considered whetherthere had been proper service on all the plaintiffs in the five similar fact cases. She determined that the plaintiffs in two of them had nothad proper service and thus, those cases would not be subject to any order for production.

In coming to that conclusion, she cited theexpectation of privacy of those non-parties in relation to the records that were being requested. In her decision under appeal, however,the Master erred in finding that the evidence of the parties in the similar fact actions, other than that of the defendants was not subject tothe deemed undertaking rule. At para. 75 of that decision, she said “the defendants are simply being asked to produce the documentsthey received in the other actions.

As such, production of same would not, in my view, violate the deemed undertaking rule.” The error oflaw is clear: the production of documents that had been received through the discovery process by the defendants from the plaintiffs inthe similar fact actions is exactly what the deemed undertaking rule is designed to prevent. [65] Further, the Master failed to consider that in seeking the broad disclosure sought by the plaintiffs, the plaintiffs did not seekrelief from the deemed undertaking rule.

As well, even in the absence of such a request, she failed to engage in an analysis of whethersuch relief from the rule should be granted on the basis that the interests of justice outweigh any resulting prejudice. In Livent v.Drabinsky (2001), (ON SC), 53 O.R. (3d) 126 at para. 16, the court articulated the presumption that the deemed

undertaking remains in place unless the party seeking relief from the rule demonstrates that the interests of justice will be served bydisclosure. No such evidence presented by the plaintiffs was referred to by the Master.

Evidence that “may lead to a line of inquiry ...that may enhance the plaintiffs’ case” falls short of the compelling public interest to justify a waiver of the deemed undertaking rule. [66] Applying those principles to the facts before me, I find that the Master erred in law by failing to properly consider and applythe deemed undertaking rule in ordering the production of all the medical reports and the transcripts of the examinations for discovery inall the similar fact cases. 7.

Did the Master err when she awarded costs to the defendants on the motion to be paid by the plaintiffs, given the dividedsuccess? [67] The respondents/cross-appellants argue that the Master erred in the manner in which she awarded costs of the motion beforeher in 2011 with respect to production. While acknowledging that the plaintiffs were not wholly successful on their request forproductions, they were partially successful in that the Master ordered the medical reports including expert reports to be produced alongwith the transcripts from the examinations for discovery in the three similar fact cases.

Nevertheless, the Master ordered the plaintiffs topay the costs of the motion. Counsel for the cross-appellants argued that there should have been some attention paid to their partialsuccess but that the Master failed to take that into account with respect to costs. While acknowledging that the Master was entitled to takethe divided success into account which she did, counsel argued that the Master did not give that fact sufficient weight. [68] In my view, the Master was not in error with respect to the cost awards.

The standard of review with respect to costs wasclearly defined by the Court of Appeal in McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA 597, 298D.L.R. (4th) 86. That case made it clear that cost awards should only be set aside where there is an error in principle or if the award isplainly wrong. In my view, the Master made no error in principle and the award is clearly not wrong. She mentioned several times in herdecision that there was divided success and she took that fact into account.

In addition, the quantum of the costs awarded to thedefendants and to be paid by the plaintiffs was in an amount that recognized the divided success. The Master made specific reference andgave examples of “the conduct of the plaintiffs that lengthened unnecessarily the duration of the motion” among them the lack ofspecificity of the relief sought, delays, and excessive oral argument. The Master found that the plaintiffs’ conduct “caused defendants toincur unnecessary costs” for which the plaintiffs should be responsible. That ground of appeal must also fail.

CONCLUSION [69] For all these reasons, the two appeals are granted and the cross-appeal is dismissed. 8. Costs of the appeals and cross-appeal [70] The defendants have been successful in their appeals. The plaintiffs have been unsuccessful in their cross-appeal. Both sidesare seeking costs fixed and payable forthwith. I have reviewed the Cost Outlines provided to me by all parties.

They all agree that theissues before the Master and before me on the appeal were complex and of significant importance to all parties. [71] As to whether there was any conduct on the part of any party which tended to shorten or to lengthen unnecessarily theduration of the proceeding, the appellant/defendant doctors asserted that one of the positions put forth by the plaintiffs/cross-appellantswas that the appeal of Dr. Perkin should be stayed because he had not paid the costs he was required to pay in an earlier step in theproceeding. Dr.

Perkin subsequently paid the costs and his counsel wrote to plaintiffs’ counsel on several occasions to inquire whetherthat request for relief was being abandoned. He received no reply. As a result, Dr. Perkin’s counsel prepared responding materials inrelation to that issue. On the morning the appeal was to be heard, counsel for the plaintiffs/cross-appellants withdrew that claim forrelief.

The work done in preparing materials in response was wasted time. [72] Counsel for the Hospital alleged that unnecessary work was required because counsel for the plaintiffs/cross-appellantsinsisted that two days be set aside for the hearing when only 40 minutes of the second day was used and counsel for both the doctors andthe Hospital had to come from out of town. [73] As for the quantum of costs, counsel for the doctors are seeking a total for fees and disbursements plus HST on a partialindemnity basis of $20,524.72. Counsel for the Hospital are seeking $13,850.58 on the same basis.

Counsel for the plaintiffs/cross-appellants was seeking $12,062.95, if successful. The appellants were entirely successful on the appeals. They are entitled to costs. [74] In assessing the appropriateness of the hours claimed by all parties, it is notable that counsel for the plaintiffs/cross-appellantsdid not prepare an appeal book. In comparing the time spent by counsel for preparation, this accounts for the lower amount claimed forfees by counsel for the plaintiffs/cross-appellants as compared to the amount claimed by the appellants/defendants’ counsel.

As well, Ihave not allowed the time claimed by counsel for the doctors for May 23 and 24, 2012. All of the disbursements claimed are reasonable. [75] Applying the principles of reasonableness set out in the leading cases dealing with costs, such as Boucher v. PublicAccountants Council for the Province of Ontario (2004), (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.)and Moon v. Sher, (ON CA), [2004] 246 D.L.R. (4th) 440 (Ont.

C.A.), and exercising my discretion, having regardto the principles informing rule 57.01, and especially to what is fair, reasonable, and proportionate in the circumstances, I award costs tothe doctors in the amount of $15,000, all inclusive, and $11,500 to the Hospital, all inclusive, payable by the plaintiffs within 120 days.

Original signed by “Mary Jo M. Nolan” Mary Jo M. Nolan Justice Released: May 21, 2013 CITATION : Meuwissen v. Perkin, 2013 ONSC 2732 COURT FILE NO.: 07-CV-9581CM DATE: 20130521 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jacob Michael Meuwissen, Jennifer Meuwissen, both by their Litigation Guardian, Deborah Marie Meuwissen and the said Deborah Marie Meuwissen and Michael Meuwissen Plaintiffs (Respondents/Cross-Appellants) – and – Dr. Gary W. Perkin, Dr. Nicholaas Buma, a.k.a. Nick Buma, Dr. Nicolae Molotiu, Dr. Val Pusey, Dr. Ian K.

Ferguson, Barbara Fonger, Sara Hinton, Tessa Joelker, Nancy Switzer, Deborah Feasey, Colleen Rolston-Payne, Dawn Wolfs, Julie Reid, Frances Pfeifer, D. Pray and Strathroy Middlesex General Hospital Defendants (Appellants/Cross-Respondents) decision on appealS AND CROSS-APPEAL Nolan J. Released: May 21, 2013