2023 QCCQ 3754, 2023 QCCQ 3754

Dulla c. El-Sherbiny 2023 QCCQ 3754 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-717249-223 DATE: June 13, 2023 ______________________________________________________________________ BY THE HONOURABLE VÉRONIQUE MORIN, J.C.Q. ______________________________________________________________________ ELNORA DULLA, IN HER CAPACITY AS TUTOR OF X -and- ELNORA DULLA Plaintiffs v.

MOHAMED EL-SHERBINY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Dr Mohamed El-Sherbiny is a urologist who receives Mrs. Elnora Dulla and her daughter X (then aged 11) in consultation at his clinic. The child suffers from urinary incontinence. During the consultation, in the presence of the mother, Dr El-Sherbiny examines the child's privates without wearing gloves. [ 2 ] Based on the injury resulting from handling the child's private parts without wearing gloves, Mrs.

Dulla, for herself and her daughter, is claiming $15,000 in moral damages, while Dr. El-Sherbiny submits that the examination, performed as part of a consultation for urinary incontinence, follows the rules of practice and that none of the manipulations required the use of gloves in such circumstances. [ 3 ] On April 11, 2023, the Court ruled on the authorizations needed in the circumstances for Dr. El-Sherbiny to obtain extracts from the relevant medical files concerning Mrs. Dulla and her daughter. [ 4 ] In his request, Dr.

El-Sherbiny also asked the Court to exclude Exhibit P-5, a letter issued by the Assistant Syndic of the Collège des médecins du Québec, on the grounds that this letter described the Syndic's steps and conclusions with regard to the complaint of Mrs. Dulla and her daughter, and would therefore be irrelevant for the purposes of civil liability litigation. ISSUES [ 5 ] At this stage of the proceedings, should the Court exclude Exhibit P-5 or refer the decision on the admissibility and relevance of this exhibit to the judge on the merits, depending on the evidence then provided by the parties?

ANALYSIS [ 6 ] During the hearing of Dr El-Sherbiny’s motions, the Court held a management conference to plan the steps to get the file ready for the hearing, in particular by the parties filing their exhibits and expert reports (the Court refers to the minutes of the hearing of April 11, 2023). [ 7 ] On this occasion, the Court pointed out to the parties that their respective burdens of proof, and including the need for the Plaintiffs to prove by a preponderance of the evidence that the practician committed professional misconduct and the alleged prejudice resulting from this misconduct. [ 8 ] The Court informed the parties that Exhibit P-5 alone could not constitute proof of the existence or absence of such professional misconduct considering the rules generally recognized by the courts, and that it was up to the parties to provide for the presentation of expert evidence for assessment by the judge hearing the case on its merits. [ 9 ] Exhibit P-5 describes the steps taken by the Assistant Syndic of the Collège des médecins du Québec, her respective meetings with Mrs.

Dulla and Dr. El-Sherbiny, and the events that occurred after the examination in February 2019. [ 10 ] According to Exhibit P-5, the Assistant Syndic decided not to submit a complaint to the Disciplinary Council of the Collège des médecins du Québec.

[ 11 ] On the one hand, the Court explained to the parties that, in the absence of the Assistant Syndic's testimony, proof of the contents of Exhibit P-5 would not be validly completed and would constitute "hearsay", subject to Dr. El-Sherbiny's admission. [ 12 ] On the other hand, Exhibit P-5 refers to the events, meetings and discussions involving the Assistant Syndic, all as part of the chronology of facts and, in particular, as to the reasons for Dr. El-Sherbiny's absence of follow-up or response to the questions forwarded by Mrs. Dulla. [ 13 ] In support of his request for exclusion, Dr.

El-Sherbiny refers to a decision rendered by the Honourable Chantale Gosselin, J.C.Q., excluding allegations and exhibits related to a disciplinary process completed in accordance with the relevant provisions of the Health Services and Social Services Act, on the grounds that their content constituted hearsay and did not give rise to any rights for the benefit of the plaintiff on the merits of the dispute [1] . [ 14 ] The Court notes, however, that our colleague's conclusions were formulated while she was acting in the context of a management conference formally convened to prepare for the hearing on the merits [2] . [ 15 ] At the present stage of the proceedings, the parties will have to complete the evidence they intend to file and identify their witnesses, both factual and expert. [ 16 ] Consequently, the Tribunal concludes that Dr El-Sherbiny’s request to exclude Exhibit P-5 is premature and needs to be assessed by the judge hearing the merits of the case, in light of the entire file and the evidence to be submitted by the parties.

FOR THESE REASONS, THE COURT: DISMISSES Mohamed El-Sherbiny's request for exclusion of Exhibit P-5; REFERS the matter to the judge to be seized of the merits of the case; THE WHOLE, with costs to follow. __________________________________ VÉRONIQUE MORIN, J.C.Q. Date of hearing: April 11, 2023