R. v. Handy, 2011 ONSC 4220

Ornstein, a minor by her Litigation Guardian, Ornstein v. Starr et al. [Indexed as: Ornstein (Litigation Guardian of) v.

Starr] 108 O.R. (3d) 380 2011 ONSC 4220 Ontario Superior Court of Justice, Master Short November 29, 2011 Civil procedure -- Discovery -- Defendants in medical malpractice action admitting liability shortly before doctor's examination fordiscovery but not admitting damages -- Doctor refusing to answer questions going to causation and damages on examination fordiscovery on basis that they were not relevant as he had admitted liability -- Questions relevant -- Refusal to answer thwarting plaintiffs'right to essential discovery and part of apparent strategy of delay -- Doctor ordered to attend to answer all proper questions -- Plaintiffsawarded costs on substantial indemnity basis, payable forthwith.

The infant plaintiff underwent surgery at the defendant hospital to correct trigger finger in her little finger. The defendant surgeon, S,mistakenly operated on her thumb instead.

About ten days before his scheduled examination for discovery, S admitted breaching thestandard of care and admitted causation to a limited extent, but denied that the plaintiff had suffered any damages. (The hospital alsodenied damages.) At the examination for discovery, S stated his name and admitted that he was a doctor and that his specialty wasplastic surgery but, [page381] on the advice of counsel, refused to answer any other questions. The defendants took the position that thequestions were not relevant in light of S's admissions.

The hospital refused to produce a representative for examination for discovery.The plaintiffs brought a motion for an order requiring the hospital to produce a representative for discovery and an order requiring S tore-attend the examination for discovery and answer all proper questions. Held, the motion should be granted. The refused questions were relevant to the outstanding issues of causation and damages. Fairness and justice dictate the need for timelyresolution of medico-legal matters. The defendants had apparently adopted a strategy of delay.

To allow the defendants to hide behindtheir admissions would be disproportionate to the plaintiffs' right to know the case against them and the positions being taken by thedefendants. The plaintiffs' right to essential discovery was completely thwarted. The apparent intentional strategy of delay, combined with nosemblance of any fair or proper purpose for the defence tactics employed, required sanction under rule 57.01(

e) of the Rules of CivilProcedure, R.R.O. 1990, Reg. 194. MOTION for an order compelling the defendant hospital to produce a representative for examination for discovery and for an ordercompelling the defendant doctor to re-attend to answer all proper questions. Cases referred toLecompte Electric Inc. v. Doran (Residential) Contractors Ltd., [2010] O.J. No. 4949, 2010 ONSC 6290, 100 C.L.R.(3d) 228, distd Other cases referred to Abrams v. Abrams (2010), 102 O.R. (3d) 645, [2010] O.J. No. 1928, 2010 ONSC 2703, 91 C.P.C.(6th) 337; Air Canada v. WestJet Airlines Ltd., [2006] O.J.

No. 1797, 149 A.C.W.S. (3d) 574 (S.C.J.); Blenkhorn v. Mazzawi, [2010]O.J. No. 348, 2010 ONSC 699, 88 C.P.C. (6th) 122; Christie Corp. v. Alvarez, [1994] O.J. No. 4161, 34 C.P.C. (3d) 92 (Gen. Div.);Couperthwaite v. Damboise (c.o.b. Norm's Home Heating), (ON SC), [2003] O.J. No. 1641, 122 A.C.W.S. (3d) 839(S.C.J.); Fortunato v. Toronto Sun (2001), (ON SC), 55 O.R. (3d) 371, [2001] O.J. No. 3383, 14 C.P.C. (5th) 77,107 A.C.W.S. (3d) 572 (S.C.J.); Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), (ON SC), 83 O.R. (3d)438, [2006] O.J.

No. 4222, 32 C.P.C. (6th) 127, 152 A.C.W.S. (3d) 53, 2006 CarswellOnt 6532 (S.C.J.); Marcotte v. Longueuil (City),[2009] 3 S.C.R. 65, [2009] S.C.J. No. 43, 2009 SCC 43, 62 M.P.L.R. (4th) 1, 311 D.L.R. (4th) 1, EYB 2009-164625, J.E. 2009-1852,394 N.R. 1; Noble v. York University Foundation, [2010] O.J. No. 794, 2010 ONSC 399; R. v. Handy (2002), 61 O.R. (3d) 414, [2002]2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, J.E. 2002-1226, 160 O.A.C. 201, 164 C.C.C. (3d)481, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286; Ratana-Rueangsri v. Shorrock, [2009] O.J.

No. 900 (S.C.J.); Ravenda Homes Ltd. v.1372708 Ontario Inc., [2011] O.J. No. 3181, 2011 ONSC 4277; Scott v. McKnight, [2010] O.J. No. 797, 2010 ONSC 1278; Tanner v.McIlveen Estate, [2009] O.J. No. 1648, 176 A.C.W.S. (3d) 975 (S.C.J.); Union Gas Ltd. v. A.F. Hall Co., [2002] O.J. No. 2475, [2002]O.T.C. 429 (S.C.J.); Warman v. National Post Co. (2010), 103 O.R. (3d) 174, [2010] O.J. No. 3455, 2010 ONSC 3670, 77 C.C.L.T. (3d)122 Statutes referred to Construction Lien Act, R.S.O. 1990, c.

C.30, s. 67(2) Rules and regulations referred to Rules of Civil Procedure,R.R.O. 1990, Reg. 194, rules 1.04(1), (1.1), 7.02(2)(h), 29.1.03, 31.06(1), 57.01, (d), (e), (f) (i) [page382] Authorities referred toOsborne, Coulter A., Civil Justice Reform Project:

Summary of Findings and Recommendations (Toronto: Ontario Ministry of theAttorney General, 2007) Woolf, Harry, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in Englandand Wales (London: HSMO, 1995) T. McKinlay, for plaintiff (moving party). G. Wilkins, for defendant North York General Hospital. K. Findlay, for defendant Dr. Starr. MASTER SHORT: -- Seven Words of Discovery 1. Q. Please state your full name for the record A. Joseph Auby Starr. 2. Q. And you are a doctor A. I am. 3.

Q. And do you have a specialty? A. Plastic surgery. 4. Q. And how long have you been carrying on as a plastic surgeon? Counsel: Don't answer that. I.

Motion [ 1 ] While the transcript of the above examination continues for eight pages, the witness, defendant doctor, is not recorded as uttering another word on his examination for discovery. [ 2 ] The examination was held in January of 2011 with respect to a medical malpractice action, which arose out of an incident that occurred on July 13, 2006. [ 3 ] Unfortunately, on that date the defendant surgeon mistakenly operated on the plaintiff's thumb instead of her right fifth finger in an operation performed at North York General Hospital. [ 4 ] The defendant hospital in turn refused to even produce a witness for discovery in this case. [page383] [ 5 ] The resulting notice of motion seeks (

a) an order requiring the representative of the defendant North York General Hospital to an examination for discovery on a date to be set by this court; (

b) an order requiring Dr. Starr to re-attend at examination for discovery to answer all proper questions including but not limited to all questions dealing with his medical qualifications, his observations of Sophie Ornstein, her pre-surgery function, his surgery on Ms. Ornstein and her post-surgery function, and any other matters going to the issue of damages; (

c) an order requiring Dr. Starr to re-attend at examination for discovery to answer questions improperly refused at his examination for discovery on January 24, 2011; (

d) an order providing such further and other directions as may be required; and (

e) costs of this motion and of the examination for discovery of January 24, 2011. II. To Err is Human [ 6 ] The plaintiff suffered from a condition referred to as trigger finger in her fifth (i.e., little) finger. The Mayoclinic.com website defines the condition: In trigger finger, also known as stenosing tenosynovitis (stuh-NO-sing ten-o-sin-o-VIE-tis), one of your fingers or your thumb gets stuck in a bent position and then straightens with a snap -- like a trigger being pulled and released. If trigger finger is severe, your finger may become locked in a bent position.

Often painful, trigger finger is caused by a narrowing of the sheath that surrounds the tendon in the affected finger. [ 7 ] The defendant surgeon was scheduled to perform corrective surgery at the defendant hospital on July 13, 2006.

An operation was performed that day. [ 8 ] The day surgery report dictated by the physician reads as follows: PREOPERATIVE DIAGNOSIS: Right small trigger finger POSTOPERATIVE DIAGNOSIS: Right small trigger finger OPERATIVE PROCEDURE: Partial excision flexor tendon sheath right thumb [page384] [ 9 ] In his operative note, the surgeon candidly and professionally describes what happened that day: The patient was anaesthetized and the right hand was prepped and draped in a sterile manner. A tourniquet was inflated on the arm.

A preoperatively marked incision across the basal flexion crease of the right thumb was made and dissection deepened to expose the flexor tendon sheath which was opened along it's [sic] extent and a piece of sheath was excised, decompressing the underlying flexor tendon. The sheath appeared moderately thick but otherwise unremarkable. Digital nerves were carefully identified and preserved. The skin was repaired using 5-0 Vicryl Rapide, a dry dressing was applied and the tourniquet was removed.

No exploration of the right small finger was done. (Emphasis added) [ 10 ] The plaintiff, Sophie Ornstein, was born on November 8, 2004. Thus, at the time of the surgery she was about 20 months of age. [ 11 ] Her Statement of Claim was issued May 7, 2009. [ 12 ] The hospital's defence and cross-claim is dated October 30, 2009. The doctor's pleading is dated November 3, 2010. [ 13 ] That pleading, filed on behalf of the doctor, reads in part: 10. Dr. Starr denies the allegations of negligence contained in the Statement of Claim and puts the Plaintiff to the strict proof thereof. 11. Dr.

Starr pleads that he exercised a reasonable and competent degree of professional skill, care and attention in the treatment and care he provided at all material times. [ 14 ] As liability and causation were disputed by both defendants, the plaintiff's counsel endeavoured to

schedule examinations for discovery of the defendants. Those discoveries of the defendants were ultimately scheduled to be held on January 24, 2011. [ 15 ] However, Dr. Starr changed his position about ten days before his scheduled examination. He now admitted to breaching the standard of care in correspondence from his counsel dated January 13 and 19, 2011. He further admitted causation to the limited extent that the error required a second surgery to correct the problem. [ 16 ] The factum of the plaintiff on this motion notes, however, that [t]hey did not admit damages at all.

They did not make any admissions about the condition of Sophie's hand and/or psychological/emotional state prior to the surgery.

[ 17 ] A defence medical examination of the plaintiff was scheduled for June of this year. [page385] [ 18 ] In his affidavit in support of this motion, Mr. Linden, the examining counsel, outlines his intended areas of discovery questioning. For example: 11. I had intended to examine the Defendant on the condition of Sophie's hands including their function, before the surgery when she was initially examined, and after the surgery. Relevant to this inquiry and other lines of inquiry on the issue of damages, is Dr.

Starr's qualifications to make those observations as they would inform his observations and ability to comment on that issue. III. Damages Claim [ 19 ] The Statement of Claim asserts these consequences flowed from the surgery: 14. The Plaintiff pleads that as a result of the subject events described herein, she has sustained scarring to her right thumb, great pain and suffering, internal damage to her right thumb, a loss of function in her right thumb, psychological and emotional trauma and suffering and an inability to properly use her right hand. 15. Sophie's thumb was slow to heal.

Owing to the initial erroneous surgery and further to correct the proper finger, Sophie was restricted in using her dominant hand for a protracted period of time. As a result of the need to protect her right hand, the development of Sophie's motor skills was delayed and compromised. Sophie now favors her left hand. [ 20 ] On the subject of damages, the doctor's defence, in part, asserts: 12. Dr. Starr denies that the Plaintiff has suffered damages as alleged in the Statement of Claim and puts the Plaintiff to the strict proof thereof. In the alternative, if such damages were suffered, which is denied, Dr.

Starr pleads that he did not cause or contribute to the damages, and in any event, such damages are exaggerated and too remote to be recoverable in law. 13. If the Plaintiff has suffered damages, which is denied, Dr. Starr states that those damages were caused or contributed to by the Plaintiff. Among other things, any delay in Miss Ornstein's development of motor skills and favouring of her left hand can be attributed to the deformity of Miss Ornstein's hand prior to surgery, or a condition that has arisen independently, and cannot be attributed to any negligence on the part of Dr.

Starr. [ 21 ] The hospital's pleading addresses damages in these terms: 12. The Hospital pleads that if any damages were sustained, which are not admitted but expressly denied, they were not caused or contributed to by the negligence of the Hospital or by anyone for whom the Hospital is responsible at law. 13. The Hospital denies that the plaintiff has suffered damages as set out in the Statement of Claim.

In the alternative, if the plaintiff has sustained such damages, which is not admitted but expressly denied, then the amounts claimed are excessive and too remote and the plaintiff is put to the strict proof thereof. Furthermore, the damages, if any, were caused by [page386] Miss Ornstein's pre-existing health conditions. Moreover, the plaintiff has failed to mitigate her damages. [ 22 ] Clearly, both defendants have put the entitlement to any amount of damages in issue. IV.

Hospital's Refusal to Attend Discovery [ 23 ] In my years in practice, I do not believe I ever encountered an outright refusal to produce any witness for discovery. In this case, counsel for North York sent a letter by facsimile on January 20, 2011 in response to an e-mail confirming that he intended to proceed with the scheduled discovery of a representative of the hospital: Given the admissions contained in Ms. Findlay's letter dated January 19, we are unable to conceive any questions relevant to the remaining issues in this action that necessitate the discovery of the Hospital Representative.

Unless you are able to provide us specific, relevant issues that the Hospital Representative can reasonably be expected to have knowledge of, we will not be producing the Hospital Representative for discovery on January 24, 2011. [ 24 ] In response, by e-mail sent at 4:54 p.m. the same afternoon, Mr. Linden advised that the plaintiffs required questions to be answered with respect to causation and damages alone. In the plaintiff's factum, the following position is asserted: 6.

The Plaintiffs are under no obligation to provide the defendants with a list of questions to be asked at discovery nor is the Plaintiff required to convince the Defendant of the relevance of any line of questioning prior to an examination for discovery. Simply because counsel for the Defendant could not "conceive any questions relevant to the remaining issues in this action" does not mean that such questions do not exist. [ 25 ] This seems a reasonable position in the circumstances of this case.

I see no reason to refuse discovery while elements of causation and damages remain at large. [ 26 ] Later that afternoon, it is alleged that counsel for Dr. Starr "served the parties with a proposed discovery plan at 5:44 pm on January 20, 2011, four days prior to the scheduled examination". [ 27 ] While no plan was agreed upon prior to the discovery, the defendants did not seek to adjourn the examinations for discovery of either of the parties owing to the fact that there was no agreement respecting a discovery plan.

The plaintiffs had further agreed that certain questions would not be relevant given the admissions of the defendant. [ 28 ] In this regard, counsel for the doctor relied upon a decision of my colleague Master MacLeod in a construction lien [page387] action, Lecompte Electric Inc. v. Doran (Residential) Contractors Ltd., [2010] O.J. No. 4949, 2010 ONSC 6290 . There he discussed the appropriate approach to the discovery plan concept, keeping in mind that leave for any form of discovery must first be obtained pursuant to s. 67(2) of the Construction Lien Act, R.S.O. 1990, c.

C.30 , where discoveries are not necessarily required. I have italicized below the

portion stressed by counsel [at para. 19]: If the parties are convinced that affidavits of documents and discoveries are necessary then they are directed to use their best efforts to agree on a plan. If they have legitimate issues that require court direction then they may seek a case conference or if there are factual issues in dispute, they may bring the matter back by motion for directions. It is not appropriate to proceed without a plan and then to launch a motion that implies the other party is in breach of the rules or is doing its production wrong.

That is the purpose of the limitation in Rule 29.1.05. (Emphasis added) [ 29 ] I interpret this direction to be framed by the particular statutory environment. Master MacLeod in the next paragraph points to what I believe should be the paramount approach in every case [at para. 20]: The motion is dismissed but without costs. The parties are directed to confer and to consider how the action may be focused, streamlined and resolved and in particular how production and discovery can be most cost effective and efficient.

If they cannot reach agreement they may return for direction but to the extent possible this should be a collaborative rather than an adversarial exercise. (Emphasis added) [ 30 ] As a consequence, particularly in light of the delays in providing admissions of liability until the eve of the scheduled discoveries, I do not feel that the absence of a rule 29.1.03 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ] discovery plan should have any impact on my decision in the circumstances of this case. V.

Intended Discovery [ 31 ] Even if the parties did not establish a plan as contemplated by the rules, plaintiff's counsel asserts he did have a plan of attack. [ 32 ] He argues that given that damages and to some extent causation remain at issue, "the Plaintiffs must be entitled to ask relevant questions relating to those issues". [ 33 ] In her factum, the plaintiff submits: 14. The condition of Sophie's hands before and after the surgery goes directly to the issue of damages. As does Dr. Starr's ability to comment on it. [page388] 15.

The observations made by the doctor and the nurse at the hospital will shed light on the functionality of her hand before and after, her psychological state before and after, the appearance of scarring (or lack thereof) before and after the first surgery, the nature of the surgical error as well as other facts which will go to the Plaintiffs' damages case. [ 34 ] It seems to me that these areas of enquiry were clearly relevant to the remaining live issues.

I find the requirement that all further questions be submitted in writing or placed on the record during the aborted discovery to be disingenuous in the circumstances of this case. [ 35 ] I accept the view of plaintiff's counsel set out in the written submissions before me: 16. It would be prejudicial to the Plaintiffs' [sic] to be forced to put all of their questions on the record when it is clear that they would all be objected to as the Defendant could then prepare answers to those questions with counsel in advance of the discovery. 17.

The Plaintiffs' [sic] should not be barred from asking questions relating to the issue of damages simply because that same question could be interpreted to also go to the issue of liability/the standard of care. 18. In this case, Dr. Starr's observations and the observations of the attendant nurse relating to the condition of Sophie's hand might simultaneously go to damages and liability but this does not mean the Defendants can refuse to answer the questions.

Some overlap is unavoidable and the same overlap will not prejudice the Defendants as they have already admitted a breach in the standard of care. [ 36 ] It is difficult to understand why both defendants have taken such a resistant position in a case where there appears to be no cogent reason for not admitting the liability apparently already acknowledged ab initio in the physician's dictated day surgery report. [ 37 ] Perhaps the correspondence sent in the weeks before the scheduled examinations provides some insight. The first letter sent on January 13, by Dr.

Starr's counsel, apparently sought to confirm an arrangement, which I understand had not been accepted by plaintiff's counsel: The defendants in this action, Dr. Starr and the North York General Hospital, together hereby acknowledge a breach of the standard of care. As a result, I write to confirm that all parties have agreed that the examinations for discovery of Dr. Starr and a representative of North York General Hospital are no longer required.

The defendants reserve their right to assert at trial that the plaintiffs have not suffered the damages asserted in the Statement of Claim and that the damages asserted in the Statement of Claim have not been caused (or contributed to) by the defendants' failure to meet the standard of care. [ 38 ] A second letter was sent dated January 19 containing a further admission but again denying an entitlement to any [page389] discovery by the plaintiff. An admission of causation on the second surgery is now made: The defendants this action, Dr.

Starr and the North York General Hospital, together hereby admit that Sophie Ornstein ("Miss Ornstein") was admitted, to North York General Hospital under the care of Dr. Starr on, July 13th 2006 for surgery to relieve the digital tenovaginitis stenosans ("trigger finger") affecting her right fifth finger ("The Procedure"). The defendants admit that the standard of care was breached as the surgery was performed on Miss Ornstein's right thumb, rather than her right fifth finger. The defendants admit causation to the limited: extent that due to the breach of the standard of care which took place on July 13, 2006.

Miss Ornstein required a second surgery on her

right fifth finger. [ 39 ] The letter continues: Given the admissions made by Dr. Starr and the North York General Hospital above, an examination of Dr. Starr is not required as he has no relevant evidence on the issues that remain in dispute in the litigation. As a defendant in this action, Dr. Starr cannot reasonably be expected to comment on the plaintiff's damages. If you insist on examining Dr. Starr in these circumstances, we will rely upon the defendants' formal admissions contained herein for determining issues of relevance at Dr.

Starr's examination for discovery when speaking to the issue of costs if this matter ultimately proceeds to trial on damages[.] We will be forwarding to you a proposed discovery plan enshrining these points shortly. (Emphasis added) [ 40 ] If the defendant, as witness on discovery, can not reasonably be expected to provide evidence that can be relied upon, on the issue of the plaintiff's claimed damages and the matters in dispute in that regard, who can? VI. A Protective Approach? [ 41 ] When an error by a physician is alleged, the Canadian Medical Protection Association ("CMPA") normally becomes involved.

The organization's current strategic plan is available online: . [ 42 ] The CMPA was incorporated by a special Act of Parliament. The Act of Incorporation for The Canadian Medical Protective Association was passed by the House of Commons on February 27, 1913 and assented to on May 16, 1913. [ 43 ] The strategic plan notes that the CMPA "is owned and governed by physicians in the collective interests of the profession". The association's core values guide its actions and fall within three broad commitments.

In addition to a "Commitment To Responsible Governance And Management", the other two identified commitments are relevant, in my view, to the correct [page390] approach to the resolution of this motion. In part, the "Commitments" read: COMMITMENT TO MEMBERS . . . - An ethical defence. The integrity and professional reputation of physician members are two of their most valued assets. The CMPA provides members with an ethical defence and, in keeping with its approach of "defending the defensible," does not settle unsubstantiated claims for expediency or economic reasons.

COMMITMENT TO PATIENTS . . . - Financial compensation. If patients are proven to have been harmed as a result of negligent medical care provided by a CMPA member, assistance will be available to compensate those patients in an appropriate and timely manner. (Emphasis and underlining added) [ 44 ] The CMPA's strategic plan identifies five desired strategic outcomes. The first of these is entitled "Strategic outcome #1 -- Protecting members' integrity". One of the five identified objectives in this regard reads: 1.2 To promote appropriate measures that encourage the timely resolution of medico-legal matters.

Regardless of the circumstances, medico-legal matters are stressful for all involved: physicians, other health care providers, patients and their families. The CMPA will actively promote measures that respect the right to procedural fairness and encourage the timely resolution of such matters. This will reduce system costs, improve accessibility to justice and reduce the stress experienced by physicians and their patients. (Emphasis added) [ 45 ] I am troubled that the approach taken in this case does not strike me as being in accord with the objectives described above.

I would hope those responsible for the approach in this case would re-evaluate whether the strategy used in this case to date accords with the requirements of procedural fairness in the administration of justice in present day Ontario. VII. Proportionality [ 46 ] Counsel for the hospital argues in their factum that as a result of the amendment to rule 31.06(1), the scope of oral discovery has been restricted. It is asserted that Honourable Coulter A. Osborne's comments, as found in the Civil Justice Reform Project:

Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007), articulate the reasoning behind the change. [ 47 ] The portion of Justice Osborne's report to which I was directed reads: [page391] During consultations, the vast majority of those consulted agreed that the scope of discovery ought to be restricted and replaced with a simple test of "relevance." Indeed, this was the recommendation of the Discovery Task Force. The task force recognized that this change may lead to further motion activity and judicial

interpretations of "relevant," and that any change is unlikely to end the debate over the proper scope of discovery. Nevertheless, it said a narrower test is required to help curb discovery abuse. I agree with these views.

The "semblance of relevance" test ought to be replaced with a stricter test of "relevance." This step is needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and, as the Discovery Task Force put it, to "strengthen the objective that discovery be conducted with due regard to cost and efficiency." In keeping with the principle of proportionality, the time has come for this change to be made, which I hope in turn will inform the culture of litigation in the province, particularly in larger cities.

This reform is not targeted at lawyers who make reasonable discovery requests, but rather at those who make excessive requests or otherwise abuse the discovery process. Therefore, a change from "relating to" to "relevant" would likely have little or no impact on those lawyers who already act reasonably during the discovery process. Its effects will be felt by those who abuse discovery or engage in areas of inquiry that could not reasonably be considered necessary, even though they currently survive "semblance of relevance" analysis. (Emphasis added)

[ 48 ] In order to address this concept properly, a brief historical review to establish the intent of the requirement for "proportionality" is appropriate. [ 49 ] The Right Honourable the Lord Woolf delivered an interim report entitled Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HSMO, 1995) in June of 1995. [ 50 ] One of the hallmarks of his work was the importance given to the concept of "Proportionality". In the

chapter entitled The Importance of Civil Justice, he observes: 3. In considering the problems of the civil justice system I have had in mind the basic principles which should be met by a civil justice system so that it ensures access to justice: (

a) It should be just in the results it delivers. (

b) It should be fair and be seen to be so by: -- ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights; -- providing every litigant with an adequate opportunity to state his own case and answer his opponent's; -- treating like cases alike. (

c) Procedures and cost should be proportionate to the nature of the issues involved. [page392] (

d) It should deal with cases with reasonable speed. . . . . . (

h) It should be effective: adequately resourced and organised so as to give effect to the previous principles. [ 51 ] Lord Woolf further noted: 1. The overall aim of my Inquiry is to improve access to justice by reducing the inequalities, cost, delay and complexity of civil litigation and to introduce greater certainty as to timescales and costs. My specific objectives are: (

a) to provide appropriate and proportionate means of resolving disputes; (

b) to establish "equality of arms" between the parties involved in civil cases; (

c) to assist the parties to resolve their disputes by agreement at the earliest possible date; and (

d) to ensure that the limited resources available to the courts can be deployed in the most effective manner for the benefit of everyone involved in civil litigation. (Emphasis added) [ 52 ] When a case such as this arises, I believe it is incumbent on the court to encourage a reconsideration of previously employed tactics with a meaningful reflection on how all parties can strive to achieve the goals of improved access to justice. VIII. What Does Proportionality Require? [ 53 ] The hospital's counsel referred me to Abrams v. Abrams (2010), 102 O.R. (3d) 645, [2010] O.J.

No. 1928, 2010 ONSC 2703 , a decision of Justice D.M. Brown. The passage to which I was directed included a discussion of the decision of the Supreme Court of Canada in Marcotte v. Longueuil (City), [2009] 3 S.C.R. 65, [2009] S.C.J. No. 43, 2009 SCC 43 and the developing concept of proportionality [at para. 70]: The debate in the Marcotte case about the operative function of proportionality in civil litigation took place in the realm of obiter.

However, I have strong concerns that the narrower view set out in the minority reasons could see the work of the principle of proportionality frustrated before it even had a chance to start. I think that Justice Colin Campbell of this court accurately captured the dynamic and reach of the introduction of an express principle of proportionality into the Rules of Civil Procedure by describing it as a step which signals a shift in the practice and culture of civil litigation.

While the Rules of Civil Procedure are not often compared to the Little Red Book of Chairman Mao popularized during China's Great Proletarian Cultural Revolution, I do not think it an exaggeration to characterize the recognition of proportionality in our own Little Blue (or White) Book as a "cultural revolution" in the realm of civil litigation. Proportionality signals that the old ways of litigating must give way to new [page393] ways which better achieve the general principle of securing the "just, most expeditious and least expensive determination of every proceeding on its merits".

These new ways need be followed by the bar which litigates and by the Bench, both in its adjudication of contested matters and in its management of litigation up to the point of adjudication. [Emphasis added] [ 54 ] While the beauty of proportionality may be in the eye of the beholder, I agree with the approach and goal of the concept as adopted by Justice Brown. A cultural revolution may well be needed if the overarching principles of rule 1.04(1.1) are to be achieved. [ 55 ] In the hospital's factum, reference is made to my decision in Warman v. National Post Company (2010), 103 O.R. (3d) 174, [2010] O.J.

No. 3455, 2010 ONSC 3670 , at paras. 84-86 . The emphasis below is counsel's: 22. Master Short recently conducted an extensive review of the principles of proportionality in discovery. Proportionality is now an essential component in assessing the limits of discovery and there is a recognition that not all conceivably relevant facts are discoverable in every case. 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. (Emphasis added by counsel) [ 56 ] It seems to me that the more appropriate portion to stress may well be the last paragraph quoted above. The goal in my view ought to be to help this infant citizen to secure a "just, speedy and inexpensive determination" of her case.

[57] The admission strategy and discovery approach adopted by these defendants would seem contrary to achieving that goal. [58] The introduction of proportionality lead to the implementation of new rule 1.04(1.1) with respect to

interpretation of [the] Rules ofCivil Procedure, which reads:[page394] General Principle 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civilproceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity ofthe issues, and to the amount involved, in the proceeding. [59] That is the principle I am endeavouring to uphold and implement in this case. IX. Case Law [60] The plaintiff relies on Scott v. McKnight, [2010] O.J. No. 797, 2010 ONSC 1278, where Master M. Sproat dealt, much moresuccinctly than I, with a motion to compel the defendant's examination.

She had to deal there with an alleged last-minute agreement toadmit liability on the eve of discovery in exchange for a waiver of any discovery of the defendant. [61] Her reasons included the following findings [at para. 18]: (

a) The examination was ordered by way of a case conference order . . . . The defendant took steps to agree to specific dates for thediscovery and did not balk at producing the defendant until the eve of the discovery. (

b) I find that there was no agreement between the parties whereby the plaintiffs' waived their rights of discovery. The evidence putforward by the defendant in this regard does not support such an agreement. There was an agreement to admit liability if the plaintiffsagreed to limit their damages to the policy limits. Neither the letter dated February 20, 2006 nor the comments made on the record at theplaintiff's discovery referred to any waiver of discovery rights on the part of the plaintiffs. (

c) There is no evidence confirming any such agreement either emanating from the plaintiffs or from the defendants. The record wassilent as to waiver of discovery rights. I would be astonished that such an important concession would not be memorialized in somefashion. . . . . . (

f) The agreement alleged by the defendant makes no sense in the context of the litigation. It does make sense that the parties agreed toadmit liability in the days prior to the plaintiff's examination for discovery, since otherwise, the defendant would have been obliged toput many questions to the plaintiff on the issue of liability. By virtue of the agreement, the time needed for the plaintiff's discovery wassignificantly reduced. It would make no sense for the plaintiffs to waive discovery rights.

Plaintiffs often desire and need to have theknowledge, information and belief of the defendant as to damages issues and commonly, whether any surveillance or other investigationshave been conducted. [Emphasis added] [62] In the case before me, it seems the defendants are taking the position that by virtue of their admission of liability, more [page395]than four years after the mishap, the plaintiff implicitly agreed to waive or at least restrict her discovery rights. [63] I agree with my colleague that plaintiffs often desire and need to have the knowledge, information and belief of the defendant as todamages issues and commonly, whether any surveillance or other investigations have been conducted.

Here, the pre-existing condition ofthe plaintiff has also been put in issue. Discovery in that regard also would seem reasonable to me. [64] Somewhat surprisingly, the second case relied upon by the plaintiff is Couperthwaite v. Damboise (c.o.b. Norm's Home Heating), (ON SC), [2003] O.J. No. 1641, 122 A.C.W.S. (3d) 839 (S.C.J.). In 2003, the plaintiff's examining counsel in thematter before me acted for the defendant Damboise in that action, where he appears to have employed a similar approach to counsel forthe defendants in the present case.

I found the lessons in the reasons of Master MacLeod, in which he chastised counsel's tactics,instructive. The headnote indicates in part: Damboise's counsel refused to allow answers or gave undertakings on hundreds of questions. The objections began at the sixth question,when counsel objected to Damboise being asked to confirm he was married and had children.

The examination was constantlyinterrupted by counsel who insisted on taking questions under advisement and answering questions on his client's behalf. . . .Couperthwaite sought an order for a new examination for discovery, arguing that the transcript of the original examination was of novalue due to Damboise's counsel's interference and the substantial number of questions previously refused that were now to be answered. [65] Master MacLeod specifically observed [at para. 21]: The transcript is replete with similar examples. That is not how a discovery should be conducted.

Counsel -- intentionally or not -- cannot"run interference" for the client[.] [66] In contrast, the defendants rely on a number of cases which I regard as dealing with various quite different situations where furtherattendances on examination were not required. [67] These cases which I considered include R. v. Handy (2002), 2002 SCC 56 , 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002]S.C.J. No. 57; Fortunato v. Toronto Sun (2001), (ON SC), 55 O.R. (3d) 371, [2001] O.J. No. 3383 (S.C.J.); AirCanada v. WestJet Airlines Ltd., [2006] O.J. No. 1797, 149 A.C.W.S. (3d) 574 (S.C.J.); Noble v.

York University Foundation, [2010]O.J. No. 794, 2010 ONSC 399; Christie Corp. v. Alvarez, [1994] O.J. No. 4161, 34 C.P.C. (3d) 92 (Gen. Div.); Ratana-Rueangsri v.Shorrock, [2009] O.J. No. 900 (S.C.J.); [page396] Union Gas Ltd v. A.F. Hall Co., [2002] O.J. No. 2475, [2002] O.T.C. 429 (S.C.J.);and Blenkhorn v. Mazzawi, [2010] O.J. No. 348, 2010 ONSC 699.

[68] For example, in support of a familiar argument, Dr. Starr's counsel referred me to this portion of the decision on Justice D.A. Wilsonin Tanner v. McIlveen Estate, [2009] O.J. No. 1648, 176 A.C.W.S. (3d) 975 (S.C.J.) [at para. 22]: The case of Kay v. Posluns, supra, is often quoted as standing for the proposition that an examination for discovery is not a fishingexpedition.

The purpose of discovery is not to permit counsel to search out evidence which might be helpful at trial nor is it permissiblefor counsel to ask any and all questions in the hopes of discovering something that will be of assistance to the case. [69] It seems to me difficult to refer to the proposed questions as a "fishing expedition" when the boat seems to still be firmly tied up tothe dock. X. Disposition [70] When all is said and done, my goal is to promote a fair and just system.

If patients are proven to have been harmed as a result ofnegligent medical care (or it is admitted that this is the case), fairness must dictate that timely arrangements be made to compensatethose patients in an appropriate and timely manner. I cannot imagine that any defendant would attempt to rag the puck in an attempt toexhaust the injured party's finances or spirit. Certainly, such an approach would not accord in any way with my view of fairness. [71] Fairness and justice dictate the clear need for timely resolution of medico-legal matters.

Regardless of the circumstances, medico-legal matters are stressful for all involved: physicians, other health care providers, patients and their families.

I fail to see how theapparent tactics and strategy adopted in this case "actively promote measures that respect the right to procedural fairness and encouragethe timely resolution of such matters". [72] It has not been demonstrated to me that this approach could possibly "improve accessibility to justice and reduce the stressexperienced by physicians and their patients". [73] After warning the defendant that the examination would be aborted and resort to a motion if the doctor did not answer properquestions, his counsel continued to refuse to allow him to answer proper questions.

The following exchange occurred between questions14 and 19: 14. Q. In any event, Dr. Starr, when did you first meet the plaintiff, Sophie Ornstein? [page397] Mr. Sutton: Don't answer that. Anything relating to care has been admitted. 15. Mr. Linden: Well, I haven't asked about care yet. I am going to ask about his observations of the condition of her hand before heperformed the surgery. Mr. Sutton: Don't answer that. 16. Okay. Let's just go off the record. 17. Mr.

Linden: I am going to ask three more if you object to all of them, we are just going to stop, just go to court, and we will have acourt order your client to answer questions he is supposed to. Mr. Sutton: No. You can put the questions on the record and establish the relevance . . . 18. Mr. Linden: No. I am going to ask three more questions. Mr. Sutton: No. You can establish the relevance of your questions. If your question is relevant, I will allow him to answer. You haven'testablished the relevance of your question. 19. Mr. Linden: we are going to try three more and then we will call it a day. Mr.

Sutton: That is your choice. 20. Q. Sir, when did you first meet Sophie Ornstein? Mr. Sutton: Don't answer that. 21. Q. Did you examine her hands at the time when you met her? Mr. Sutton: Don't answer that 22. Q. Did you made any observations of the condition of her fingers when you first examined her? Mr. Sutton: Don't answer that Mr. Linden: Okay. That is enough. [74] In my view, it is indeed enough. Enough to justify making the order sought with costs on a substantial indemnity basis, payableforthwith. [75] In a recent decision in Ravenda Homes Ltd. v. 1372708 Ontario Inc., [2011] O.J.

No. 3181, 2011 ONSC 4277, Justice R.A. Locococited [at para. 54], with approval, my decision in Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), (ON SC),83 O.R. (3d) 438, [2006] O.J. No. 4222, 2006 CarswellOnt 6532 (S.C.J.). There I expressed my view on inappropriate approaches toexaminations for discovery:

Improper interference by counsel in the other party's discovery undermines the purposes of discovery, prolongs it, fosters professional mistrust and generally offends the overall purpose of the Rules to "secure the just, most expeditious and least expensive determination of every proceeding on its merits". [page398] [ 76 ] The differing approaches of both defendants to these discoveries lead to the same result.

In a case where the contemporaneous surgical note candidly and succinctly recognizes that the intended surgery was not performed, to deny liability for four years and then force the plaintiff to incur the costs of preparing for and conducting aborted discoveries and then to incur the costs of this motion would suggest an intentional strategy of delay. Plaintiffs don't have the war chest and endurance of professional defendants. Our system is now to be guided by the goals of proportionality [ 77 ] The plaintiff's factum concludes: 20.

It would be highly prejudicial for the Plaintiffs' [sic] not to be allowed to ask questions relating to damages; questions relating to the Defendants' pleadings; questions relating to surveillance and other investigations, solely because they have admitted a breach in the standard[.] 21. There is nothing preventing the Plaintiff from calling Dr. Starr and a representative of the hospital at the Trial of this Action to provide evidence on the issue of damages. 22.

To allow the Defendants to hide behind their admissions would be disproportionate to the Plaintiffs' right to know the case against them and the positions being taken by Dr. Starr and the hospital in this litigation. [ 78 ] I agree with, and adopt, these observations. [ 79 ] The relief sought in the motion of the plaintiff is granted. XI.

Costs [ 80 ] As the plaintiffs enjoyed complete success on the motion, they ought normally to be entitled to costs of the motion and to costs thrown away on the first discovery. [ 81 ] I must consider and apply the costs rules codified in rule 57.01. [ 82 ] As described above, the plaintiff's right to essential discovery was of course completely thwarted. Fundamental procedural fairness is at issue. This is an important issue.

This was an essential motion within the meaning of rule 57.01 (d). [ 83 ] The apparent intentional strategy of delay described above combined with no semblance of any fair or proper purpose for the defence tactics employed requires sanction under rule 57.01(e). In the regrettable circumstances [of] this case, I must find the complete denial of real discovery to have been improper and unnecessary. Rule 57.01 (f)(

i) applies. [ 84 ] Here, the hospital's cost outline calculated costs of $8,892.49 on a substantial indemnity basis and partial indemnity costs claimed of $5,644.37. The doctor's counsel indicated actual costs roughly double their partial indemnity submission of $4,934.82. Thus, had the plaintiff's litigation guardian lost [page399] this motion, his potential personal exposure for partial indemnity costs could have been in excess of $11,000. [ 85 ] Notwithstanding that the general rule in equity is that a trustee, acting in good faith and for a proper purpose, is not liable beyond the trust, rule 7.02(2)(

h) would seem to expose a litigation guardian to personal liability for costs awarded against him or her or against the person under disability. Resolution of that conflict in principle is not required in this case. [ 86 ] Nevertheless, taking into account all the circumstances of this case, I believe that additional factor supports and justifies the fairness of my determination of an appropriate award. The plaintiff advises the total actual costs incurred including the aborted discovery is $9,828.18.

I believe in all the circumstances of this case justice would best be done by an award to the plaintiff of substantial indemnity costs of $9,000, on an all-in basis, to be payable equally by both defendants, forthwith. Motion granted.