2017 QCCA 127, 2017 QCCA 127

Gao c. Arsenault 2017 QCCA 127 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026544-171 (500-17-095200-161) MINUTES OF THE HEARING DATE: January 26, 2017 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONERS COUNSEL WILLIAM GAO (by his litigation guardians Wen Ying Jiang and Xiao Cheng Gao) WEN YING JIANG XIAO CHENG GAO ZI TENG JIANG MEI ZHEN GAO Mtre Ying Huang Mtre JEROME R.

MORSE (absent) (MORSE SHANNON LLP) RESPONDENT COUNSEL MARC-YVON ARSENAULT Mtre Emmanuelle Poupart ( absent ) Mtre Louis Fouquet ( absent ) (McCarthy Tétrault s.e.n.c.r.l., s.r.l.) DESCRIPTION: Application for leave to appeal from a judgment rendered on December 1, 2016 by the Honourable Benoît Emery of the Superior Court, District of Montreal

Clerk: Adam Scott Courtroom: RC.18 HEARING Continuation of January 24, 2017 hearing. 9:32 Commencement of the hearing. Counsel are advised that judgment will be rendered on the minutes of the hearing and their presence in Court is not required. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] Petitioners seek leave to appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Benoît Emery), rendered at a first case management conference on December 1, 2016. Among the orders he rendered, the judge rejected their request to call certain experts in support of their claim in civil liability against the respondent physician and refused to grant a postponement. [ 2 ] The action arises out of the birth on August 30, 2013 of boy with physical disabilities. The boy and other family members are plaintiffs in the case.

They allege that had the respondent conducted a proper prenatal examination of the mother, the frailties would have been identified and this would have prompted a decision to end the pregnancy. The judicial demand alleges specifically that the respondent, described as a “duly qualified physician and specialist in obstetrics and gynecology”, conducted an inadequate “obstetrical ultrasound examination” which led to the alleged harm. [ 3 ] The judge considered the requests by the petitioners and respondents for expert opinions as formulated by them in the first case protocol.

The petitioners asked for 14 experts, including an “obstetrician/gynecologist”, an “ultrasonographer/radiologist”; a labour economist re income loss”, an “economist re productivity re costs of raising a child”, and an “actuary re loss of income, cost of future care, future costs of raising a child”. The respondent asked to call 7 experts, including an obstetrician/gynecologist for evaluating fault, an actuary and an economist. [ 4 ] At the case management hearing, the judge authorized that an actuary and several medical specialists be called as joint experts.

Separately for the petitioners, he authorized an obstetrician for determining fault and a radiologist for fault and causation, along with several other specialists, but refused to allow an economist to be called. He also authorized the respondent to call an obstetrician as an expert, along with other specialists, but refused his request for an economist as well. [ 5 ] Both parties agreed that a postponement was appropriate.

The judge declined to order one and it would appear that the matter was not debated before him, although I did not have a transcript to verify the point. *** [ 6 ] In seeking leave, the petitioners rely principally on

article 31 C.C.P. , but at the hearing they made arguments under

article 32 C.C.P. as well. [ 7 ] They submit that the refusal by the judge to include an economist and an ultrasound sonographer causes them “irremediable

prejudice” pursuant to

article 31. That evidence is, they say, essential for establishing liability. [ 8 ] They argue, as well, that the decision is “unreasonable” within the meaning of

article 32 because it wrongly deprives them of the opportunity of making out their claim in service of concerns of efficiency. Moreover, it was unreasonable to deny the joint request for a postponement. The infant requires further medical procedures relevant to liability and that more time is needed to measure his evolving cognitive impairment. *** [ 9 ] The judgment must be properly characterized in order to determine whether

article 31 or 32 C.C.P. sets the standard for leave. Under

article 31, the petitioners must show that the judgment rendered during the course of proceedings causes them an irremediable prejudice as a threshold for obtaining leave. The standard is higher under

article 32 if the judgment is characterized as a case management measure. As a general rule, appeals do not lie from case management judgments. Exceptionally, leave may be granted in the petitioners show that the contested measure appears unreasonable in light of the guiding principles of procedure. The mere fact that a judgment is rendered in a case management setting does not mean that it is, in law, that it cannot be characterized as a judgment that causes irreparable prejudice and is subject to appeal pursuant to

article 31. *** [ 10 ] The refusal of the postponement was a case management measure. [ 11 ] The decision by the judge at this very early stage to refuse the postponement falls plainly within the purview of case management as partaking of his discretionary authority to oversee the temporal dimension of the orderly conduct of the proceeding (see articles 153 and 158(1) C.C.P. ). It caused no irremediable prejudice to the proceedings within the meaning of that idea. [1] As the case evolves, a new postponement could be requested. The higher standard of

article 32 C.C.P. applies to this aspect of the motion for leave. While the matter might have been debated, I disagree with the view that this suffices to justify leave given the early stage of the proceedings, the number of requests that the judge was called upon to decide and the limited time available to the parties to plead every point. Leave from the highly discretionary decision to refuse the postponement should be refused because the decision does not appear unreasonable in light of the guiding principles of procedure. *** [ 12 ] Is the decision to refuse the petitioners certain experts also a case management measure within the meaning of

article 32 C.C.P. ? Is it instead a judgment rendered during the course of proceedings that is subject to appeal under

article 31? [ 13 ] To my mind, whether the standard for leave in

article 31 or

article 32 applies, the motion for leave in respect of the refusal of experts should be dismissed. In either case, an appeal would have no reasonable prospect of success. [ 14 ] It is true that, under the former Code of Civil Procedure , interlocutory judgments refusing a party’s request for an expert were often treated as susceptible of appeal under

article 29 former C.C.P. in that they ordered something be done that “cannot be remedied by the final judgment / le jugement final ne pourra remédier”. [2] But in the particular circumstances of this first case management hearing here, I am not convinced that the judgment refusing these particular experts caused the petitioners a comparable “irremediable prejudice” under

article 31 C.C.P. [3] But I need not decide the matter. Even if it did, granting leave would not be in the best interests of justice given the discretionary character of the decision in question and the wholly adequate justification given by the judge (article 9, para. 3 C.C.P. ). [ 15 ] The judge justified his decision to allow the petitioners to call an obstetrician and not an ultrasound sonographer by reference to

article 232 C.C.P. which provides, in paragraph 2, that the parties cannot seek more than one expert per area or matter of expertise without special authorization. In connection with this action, where the defendant is himself an obstetrician who undertakes ultrasound examinations, this decision does not, on its face, jeopardize the petitioners’ right to assert their claim. It should be recalled that the petitioners themselves described the respondent’s professional qualification as an obstetrician/gynecologist and not an ultrasound sonographer.

Their expert should be able to bring evidence as to professional standards of obstetricians who do this kind of prenatal exam. Moreover the judge allowed the petitioners to call a radiologist, which will enable them to complete this proof. [ 16 ] Similarly, the refusal of an economist must be understood in light of the judge’s decision to allow the parties to call, as a joint expert, an actuary.

It is recognized that in matters of civil liability, an actuary can provide evidence of the kind of damage that the petitioners alleged in their motion to institute proceedings. [ 17 ] In sum, I see no serious argument that the judge misused his powers in limiting the petitioners’ experts. Another judge might have exercised the discretionary authority accorded to the judge by the Code differently, but challenging the exercise of this discretion successfully on appeal would not have a meaningful likelihood for success.

Granting leave is thus also not in the best interests of justice. [ 18 ] The motion for leave should also be denied if the judgment is considered to be a case management measure. [ 19 ] First it should be observed that a case management judge, under the new Code, has powers to allow or refuse requests for experts, to designate common experts, and to limit the number of experts to one per field, and to refuse is, pursuant to article 158(2) C.C.P.

The judge was charged with assessing the purpose and usefulness of the requested expert opinions and the usefulness of imposing joint expert evidence; he needed to do this in a manner that upheld the principle of proportionality and was conducive to the efficient resolution of the case. [ 20 ] His reasons suggest plainly he took proportionality into account and weighed the right of the petitioners to prove, through calling an expert obstetrician who undertakes prenatal exams as part of his or her practice, whether the respondent met the standard of the reasonable specialist imposed on his my law.

The same may be said of the income and cost projections that can be made by the actuary, as opposed to an economist.

[ 21 ] Insofar as the judgment is characterized as a case management measure, it does not appear to be not unreasonable in light of the guiding principles of procedure, indeed it seems wholly justified, on its face, on the basis of the proportionality principle. As is often said, this Court owes deference to discretionary decisions of this kind. [4] [ 22 ] No viable appeal lies from this judgment. THEREFORE, THE UNDERSIGNED: [ 23 ] DISMISSES the application for leave to appeal, with legal costs against the petitioners. NICHOLAS KASIRER, J.A.