2017 NLCA 32, 2017 NLCA 32

Mark Rubens (appellant) v. Garry Brian Sansome (respondent) (15/48) Indexed As: Rubens v. Sansome 2017 NLCA 32 1 C.A.N.L.R. 727 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., White and Hoegg JJ.A. May 18, 2017

Summary: The appellant doctor was hired by an assurance company to conduct an independent medical assessment (“IME”) to assist the assurance company in evaluating the respondent’s, Mr. Sansome’s, claim for disability benefits. Dr. Rubens concluded that Mr. Sansome suffered from alcoholism, a finding not based on accepted and current medical knowledge and explainable by Mr. Sansome’s other documented conditions, which led to the denial of Mr. Sansome’s claim for benefits. Mr. Sansome sued Dr. Rubens, raising a number of causes of action. After a

summary trial, the trial judge found Dr. Rubens liable in negligence. While he had admitted the issue at trial, Dr. Rubens appealed on the grounds that he owed no legal duty of care to Mr. Sansome. He also argued that he had not breached the standard of care, and, in any event, the standard of care was not established because no expert evidence was led to establish it. He argued no negligence was established on the evidence. Two issues arose during the hearing, which were dealt with in further submissions. They relate to the fact that Mr. Sansome did not expressly allege negligence in his suit against Dr. Rubens and the Judge’s application of the

summary trial rule to determine that Dr. Rubens was negligent while at the same time stating there was no genuine issue for trial. Held: Appeal allowed in part (Green C.J.N.L. concurring). Hoegg J.A. (White J.A. concurring): The two additional issues were addressed first. A statement of claim is meant to allege facts to support a cause of action. When the cause of action is not specifically named, the question becomes whether the facts alleged support a cause of action known to law despite it not being named in the pleading.

Together, the pleadings, evidence, and submissions of both parties formed the basis for the Judge’s determination that Mr. Sansome had pleaded a cause of action in negligence, and the Judge did not err in accepting that negligence had been alleged. The wording of rule 17A.03(2) provides for judgment in certain cases either upon an issue or generally after

summary trial even if there is a genuine issue for trial. In saying “there is no issue for trial” and that “it would not be unjust” for him to decide the issue, the judge was effectively saying that on the basis of the evidence tendered at the

summary trial and the law, he could make the necessary findings of fact and legal determinations to decide the negligence issue fairly and justly without the necessity of a full trial. The Judge’s application of the

summary trial rule was entirely consistent with the

interpretation of the phrase “no genuine issue for trial” set out in the case law. As to the issue of whether Dr. Rubens owed Mr. Sansome a duty of care, the test for determining the existence of a duty of care has two parts: (1) is there a sufficiently close relationship between the parties or “proximity” to justify imposition of a duty and, if so, (2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed or the damages to which breach may give rise?

Reasonable foreseeability is an aspect of “proximity” which goes to whether a prima facie duty of care exists. Something more than simple foreseeability is required to establish proximity in cases of nonfeasance. Once a plaintiff establishes a prima facie duty of care, the evidentiary burden of showing countervailing policy considerations shifts to the defendant.

English cases on which Dr. Rubens relies, acknowledge that an IME doctor and an examinee have a close and direct relationship and that a doctor could harm an examinee in the course of conducting an IME, and that such a situation gives rise to a duty of care not to harm an examinee in the course of conducting an examination. There is no principled distinction between physically harming and otherwise harming an examinee in the course of carrying out an examination. Whether Dr. Rubens owed a duty of care to Mr. Sansome depends on proximity being established.

Whether proximity was established involves considering the nature of the relationship between Dr. Rubens and Mr. Sansome, including whether it was reasonably foreseeable that Dr. Rubens could injure Mr. Sansome. Just because Mr. Sansome was not under Dr. Rubens’ care or treatment does not mean that Dr. Rubens did not owe Mr. Sansome a duty of care. Dr. Rubens’ duty of care to Mr. Sansome may simply involve different responsibilities than what would be involved if Dr. Rubens were his treating physician. In this case, Dr. Rubens’ actions had the potential to so closely and directly affect Mr.

Sansome and his personal interests that Mr. Sansome could well suffer injury or loss if the doctor’s reviewing and reporting actions were negligently carried out. Dr. Rubens knew this and ought reasonably to have had Mr. Sansome in his contemplation as being so affected when he was carrying out his work, as the Judge found. There was a sufficiently proximate relationship between Dr. Rubens and Mr. Sansome. Dr. Rubens did not argue that there were policy reasons which ought to negate a finding that he owed a duty of care to Mr. Sansome.

Out of an abundance of caution, the policy arguments raised in the authorities ought to be considered. Although some cases suggest that that the relationship between an insured person and an IME doctor does not give rise to a duty of care because it is not based on trust or support, and that an IME doctor cannot be an advocate for an examinee in the same way that a treating doctor can be for a patient, trust, support, or the ability to advocate for an examinee are not requirements of a prima facie duty of care.

Those in a position to directly affect others do not have a carte blanche to treat those others in a negligent fashion. Overlapping damages were not a concern. If an insured claimant is made whole, he or she will have no claim for insurance benefits against an IME doctor. A negligently performed IME may also cause distinct damages. Furthermore, an IME doctor owing a duty of care to his or her retainer (and also likely a contractual duty) does not preclude him or her from owing a duty of care to others affected by his or her actions.

It would be highly troubling, if IME contracts contained conditions that conflicted with an IME doctor’s duty to give objective and accurate medical advice and opinion consistent with the standard of care. Another internal policy concern is that an IME doctor has no duty of care to a claimant because an expert witness is immune from suit. This reasoning confuses privilege, a positive defence, with duty of care, an element of a cause of action. Dr. Rubens did not argue any residual policy reasons that would negate his owing a duty of care. However, they ought to be considered.

Given that insurance companies require expert medical advice in order to fairly and properly adjust claims, it is important that reviewing and IME doctors conform to a standard of practice so as to ensure that IME doctors are not incentivized to reach conclusions that favor their retainers. Not imposing a duty of care would effectively endorse substandard performance of IME work. It has also been suggested that recognizing a cause of action in negligence against an IME doctor will somehow interfere with other principles of law.

However, it is common for different legal rules to apply to the same factual situation. In sum, there are no policy concerns that would negate Dr. Rubens owing a duty of care to Mr. Sansome. Dr. Rubens’ standard of care was that he was expected to conduct his review and

interpretation of Mr. Sansome’s records with the reasonable level of knowledge, competence, and skill and the prudence and diligence expected of psychiatrists like him. While Dr. Rubens’ duty to Mr. Sansome is different than the one owed by a treating physician to a patient, it is not a reduced or limited duty and ought not to be characterized as such.

The trial judge’s decision, effectively a finding that Dr. Rubens breached the standard of care expected of him in the preparation of hisreport and forming his conclusions, is well supported by the evidence and cannot be said to contain any palpable and overriding error. Expert evidence is generally required to establish breach of standard of care in medical malpractice cases. That said, there is noinviolable rule that expert evidence is always required, or that it must be tendered by the plaintiff in order for the plaintiff’s case toprevail.

Standard of care and breach of the applicable standard of care can sometimes be reasonably inferred from the evidence. It is open to a court to infer that a supportive expert could not be found when a plaintiff does not tender expert evidence in a medicalmalpractice case. However, such an inference is not an imperative. No expert evidence from Mr. Sansome was required in thesecircumstances. Mr. Sansome did not tender any evidence of injury or loss caused by Dr. Rubens. In the result, proof of injury to Mr. Sansome caused byDr. Rubens not being established, the Judge’s finding of negligence cannot stand.

Accordingly, this issue, as well as an overalldetermination as to whether all elements of a cause of action in negligence have been established, must be remitted for trial in accordancewith the provisions of rule 17A.03. Such a continued trial would not entail any review or reconsideration of the existing findings of theexistence and breach of duty of care. Green C.J.N.L., concurring: The reasoning and the result stated in the reasons of Hoegg J.A. was agreed with, with the exception of herdiscussion of internal and residual policy concerns for finding a duty of care.

It was not appropriate or necessary to enter into adiscussion of policy concerns in order to arrive at the result in this case. The parties did not raise the matter of policy considerationsaffecting or negating an otherwise existing duty of care, and it can be safely assumed that they were conceding, for the purposes of thespecific case at bar, that those considerations could not affect the existence of a duty. If the Court were to decide these issues, the parties ought to be given the opportunity to make submissions on the point.

This is not only amatter of fairness to the parties but is fundamental to a balanced and proper analysis of the issue. The analysis of the existence of a duty of care ought to be conducted on the basis argued. Cases cited: Hoegg J.A.: Popular Shoe Store Ltd. v. Simoni (1998), (NL CA), 163 Nfld. & P.E.I.R. 100 (Nfld. C.A.) Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld.T.D.) Marine Atlantic Inc. v. Topsail Shipping, 2014 NLCA 41, 357 Nfld. & P.E.I.R. 240 Resurfice Corp. v.

Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 Donoghue v. Stevenson, (FOREP), [1932] UKHL 100 Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 Anns v. Merton London Borough Council, [1978] A.C. 728 Kamloops (City Of) v. Nielson, (SCC), [1984] 2 S.C.R. 2 Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 Hill v. Hamilton Wentworth Police Services, 2007 SCC 41, [2007] 3 S.C.R. 129 M (a minor) v. Newham London Borough Council and Others, [1994] 4 AU E.R. 602 (CA) X and Others (Minors) v. Bedfordshire County Council), [1995] 3 AU E.R. 353 (HL) Fabian v.

Marguiles (1985), (ON CA), 53 O.R. (2d) 380 (C.A.) Johnson v. State Farm Mutual Automobile Insurance Co. (1998), 72 O.T.C. 206 (C.J.)

Branco v. Sunnybrook & Women’s College Health Sciences Centre (2003), 38 C.P.C. (5th) 155 (Ont. S.C.), Lowe v. The Guarantee Company of North America (2005), (ON CA), 80 O.R. (3d) 222 (C.A.) Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 236 N.S.R. (2d) 104 Hill v. Chief Constable of West Yorkshire, [1988] 2 All ER 238 Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 Correia v. Canac Kitchens, 2008 ONCA 506 Haskett v. Equifax Canada Inc. (2003), (ON CA), 63 O.R. (3d) 577 (C.A.) ter Neuzen v. Korn, (SCC), [1995] 3 S.C.R. 674 Bryars Estate v.

Toronto General Hospital (1997), (ON CA), 152 D.L.R. (4th) 243 (Ont. C.A.) Therrien v. Launay, [2005] R.R.A. 349, 34 C.C.L.T. (3d) 6 aff’d 2005 QCCA 665, 2005 Q.C.C.A. 665, leave to appeal to the SCCdenied February 16, 2006 Crits v. Sylvester, (ON CA), [1956] O.R. 132 (Ont. C.A.) Webster v. Chapman (1997), (MB CA), 155 D.L.R. (4th) 82 (Man. C.A.) Hiscott v. Hall, 2016 NLCA 1, 248 A.C.W.S. (3rd) 849 Green C.J.N.L.: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 R. v. Mian, 2004 SCC 54, [2014] 2 S.C.R. 689 Counsel: Irene S. Muzychka Q.C. and Peter N.

Browne Q.C., for the appellant; Trevor A. Stagg, for the respondent. This appeal was heard on May 20 and June 23, 2016 before Green C.J.N.L, White and Hoegg JJ.A. The following judgment was delivered on May 18, 2017 by Hoegg J.A. with separate concurring reasons by Green C.J.N.L. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] Garry Brian Sansome made a claim for disability benefits based on a group contract with Desjardins Financial Security LifeAssurance Company. Desjardins retained Dr. Mark Rubens to provide his opinions about and

interpretation of Mr. Sansome’s medicalrecords, which the doctor did in a report dated April 1, 2011. Mr. Sansome took issue with the report, and filed suit against Dr. Rubensalleging several causes of action. Dr. Rubens applied for a

summary trial under rule 17A of the Rules of the Supreme Court, 1986,seeking dismissal of Mr. Sansome’s suit. [2] The Judge considered the matter appropriate for

summary trial. He dismissed Mr. Sansome’s defamation and consent-relatedclaims, but went on to find Dr. Rubens liable in negligence to Mr. Sansome with damages to be assessed. Dr. Rubens appeals theJudge’s negligence determination. Background History Leading to Litigation [3] Dr. Rubens is a psychiatrist. He was initially asked by Desjardins to conduct an independent medical assessment (“IME”) ofMr. Sansome so as to assist Desjardins in evaluating Mr. Sansome’s claim. The assessment was scheduled to take place out of theprovince, but Mr. Sansome declined to travel for the appointment, so Desjardins requested Dr. Rubens to conduct a paper review of Mr.

Sansome’s medical records and provide a report. [ 4 ] In brief, Mr. Sansome’s medical records disclosed that he had been diagnosed with major depressive disorder for which he was being treated, that he was obese, and that he suffered from Type II diabetes. [ 5 ] In his report, Dr.

Rubens made the following statements: (1) “I am not aware of any commonly encountered medical condition that could produce this liver function profile other than the ingestion of some type of large quantities of alcohol”; (2) “I would say that there must be a very high level of suspicion that alcohol abuse has been a further complicating factor in this patient’s condition during the time described in the documentation I reviewed[;] alcohol abuse, of course, would have a negative impact on the patient’s coping and on his general emotional state (prolonged heavy alcohol use is both depressogenic and aniogenic)”; and (3) “I would also draw attention to the possibility, I would say in fact the high likelihood, that alcohol abuse would be a probable aggravating factor.” [ 6 ] After receipt of Dr.

Rubens’ report, Desjardins denied Mr. Sansome’s claim. Mr. Sansome then sued Dr. Rubens, alleging unfairness, lack of consent to review and malicious handling of his medical records, misdiagnosis and defamation. [ 7 ] In addition to his suit against Dr. Rubens, Mr. Sansome sued Desjardins for disability benefits. At the appeal hearing the Court was given to understand that the suit against Desjardins has been resolved. The

Summary Trial [ 8 ] At the hearing of his application for

summary trial, Dr. Rubens argued that he had Mr. Sansome’s consent to report on his medical records, and that Mr. Sansome’s defamation claim could not succeed because the report was protected by qualified privilege. Dr. Rubens acknowledged through his counsel he owed a duty of care to Mr. Sansome but maintained that he had not been negligent in the preparation of his report. The doctor testified that he was knowledgeable to the standard of a reasonable psychiatrist practicing in Canada, and he called expert psychiatric evidence, given by Dr. David Craig, in support of his position. [ 9 ] Mr.

Sansome did not tender expert psychiatric evidence. His family physician, Dr. R. P. O’Driscoll, testified that he had been the doctor for Mr. Sansome and his family for over 25 years during which time Mr. Sansome had never had a problem with alcohol abuse. Dr. O’Driscoll also gave evidence respecting various known causes for elevated Gamma GT levels in liver function profiles. [ 10 ] The Judge found that Dr. Rubens had Mr. Sansome’s consent to review his medical documentation and that the doctor’s report was protected by qualified privilege and therefore not defamatory.

No appeal arises from those decisions. [ 11 ] The Judge went on to find Dr. Rubens negligent in the preparation of his report. The Judge found as a fact that Dr. Rubens’ conclusion — that ingestion of large quantities of alcohol was the cause of Mr. Sansome’s elevated Gamma GT levels (and therefore the cause of his depression) — was incorrect (paragraphs 19 and 20 of the Judge’s decision) in that it was not based on accepted and current medical knowledge. The Judge found that the doctor had had a duty to review and opine on Mr.

Sansome’s medical records in accordance with accepted and current medical knowledge, and further found that Dr. Rubens ought to have realized that his diagnosis of alcohol ingestion being responsible for Mr. Sansome’s condition was questionable in light of information in Mr. Sansome’s records from his treating specialists (paragraphs 21-23 and 26-29). ISSUES [ 12 ] On appeal, Dr. Rubens submits that he mistakenly acknowledged at trial that he owed a duty of care to Mr. Sansome, and now argues that he cannot be found negligent because he owed no duty of care to Mr. Sansome. Dr.

Rubens also maintains that even if he did owe Mr. Sansome a duty of care, he did not breach that duty. He further argues that negligence was not established on the evidence. [ 13 ] The central issues are (1) whether Dr. Rubens owed a duty of care to Mr. Sansome, (2) if so, whether Dr. Rubens breached that duty of care, and (3) whether negligence was established on the evidence. [ 14 ] Breach of duty of care in medical negligence cases is determined by deciding whether the doctor’s work was below the standard of care expected of him or her in the circumstances.

Courts do not ordinarily know what such standards of care are, so the applicable standard of care is usually determined by the court with the assistance of expert evidence. Because Mr. Sansome did not tender expert evidence in this regard, it must also be determined whether his failure to do so is fatal to his claim. [ 15 ] The appeal was heard on May 20 and June 23, 2016. At the hearing on May 20, 2016, two additional issues emerged.

These issues were addressed by the parties in subsequent filings and at the continuation of the appeal hearing on June 23, 2016. [ 16 ] The first additional issue relates to the fact that Mr. Sansome did not expressly allege negligence in his suit against Dr. Rubens. The second additional issue involves the Judge’s application of the

summary trial rule to determine that Dr. Rubens was negligent while at the same time stating there was no genuine issue for trial. ANALYSIS [ 17 ] I will address the additional issues first. Must negligence be specifically pleaded? [ 18 ] In his Amended Statement of Claim dated November 29, 2013, Mr. Sansome alleges, at paragraph 8, that Dr. Rubens’ report contained “a very incorrect statement” [made by Dr. Rubens about Mr. Sansome’s liver function profile] “when any medical doctor can

quickly state that there are a number of commonly encountered medical conditions and medications that could produce [Mr. Sansome’s]liver function profile”. He also states, at paragraph 12, that he is making a “Monetary Claim … for the tort of unfairness, breaching ThePersonal Health Information Act by the malicious handling of [his] medical information and the resulting misdiagnosis in the report,”and further alleges, at paragraph 14, that Dr. Rubens did not follow “protocol in the medical field” in handling Mr. Sansome’s medicalinformation and providing his report. Mr. Sansome did not state that Dr.

Rubens was negligent nor did he use the word negligence in hisstatement of claim. [19] In his Amended Defence to the Amended Statement of Claim, Dr. Rubens pleaded that the statements in his report were “made ingood faith and constitute reasonable conclusions based on current psychiatric knowledge” (paragraph 7) and that his “report on Mr.Sansome’s medical records was conducted in an appropriate manner, with Mr. Sansome’s written consent and in accordance with thestandard of care, skill and attention required of a psychiatrist” (paragraph 8). [20] At the

summary trial, Dr. Rubens defended by maintaining that his report on Mr. Sansome contained reasonable conclusionsbased on current psychiatric knowledge, and that his work was carried out in good faith. The doctor called expert psychiatric evidence insupport of his position that he did not breach the standard of care in reviewing and interpreting Mr. Sansome’s medical information andpreparing his report. [21] Much evidence and argument at the trial focused on Dr. Rubens’ defence of Mr. Sansome’s suit on the basis that negligence wasin effect being alleged. Dr. Rubens’ counsel submitted that Mr.

Sansome’s suit was essentially a negligence claim which alleged that“Dr. Rubens wasn’t keeping up to date, that he wrote things that he should not have written, that [what he wrote] was incorrect or wrong,[which demonstrated] essentially what looks like features of a negligence claim” (Transcript, page 149). [22] A statement of claim is meant to allege facts to support a cause of action. The cause of action is usually specifically named,although that is not a requirement of pleading.

In this case, facts were alleged, and some causes of action were specifically named, butnegligence as a cause of action was not specifically named or pleaded. In such a situation, the question becomes whether the factsalleged support a cause of action known to law despite it not being named in the pleading (Popular Shoe Store Ltd. v. Simoni (1998), (NL CA), 163 Nfld. & P.E.I.R. 100 (Nfld. C.A.)). [23] In Popular, the self-represented plaintiff’s statement of claim alleged certain facts but did not name a specific cause of action.

Inruling that a trial judge has a duty to determine whether the facts alleged in a statement of claim constitute a cause of action known to lawregardless of whether the particular cause of action has been named or pleaded, Green J.A., writing for the Court, made the followingcomments at paragraph 23: … Even in superior court, the basic rule of pleading is that a party must plead material facts and is not required, as a condition of relief,to be correct in fitting those facts, as a matter of pleading, into a particular legal pigeon-hole.

If a claimant by his or her pleading orevidence states facts which, if accepted by the trier of fact, constitute a cause of action known to the law, the claimant should prima faciebe entitled to the remedy claimed if that is appropriate to vindicate that cause of action.

The only limitation would be the obvious onethat if the case takes a turn completely different from that disclosed or inferentially referenced in the statement of claim, thereby causingprejudice to the other side in being able properly to prepare for or respond thereto, the court may either decline to give relief or allowfurther time to the other side to make a proper response. [24] In this case, Dr. Rubens’ Amended Defence shows that he identified negligence as an issue from Mr.

Sansome’s pleading andthat he responded to it by stating his “review and report on Sansome’s medical records were conducted in an appropriate manner, … andin accordance with the standard of care, skill and attention required of a psychiatrist”. Dr. Rubens’ counsel, correctly in my view,identified the facts in Mr. Sansome’s pleading as alleging negligence and defended the claim against her client on that basis. Theevidence and submissions of Dr. Rubens at trial demonstrate that he fully defended himself respecting the alleged breach of standard ofcare. Consequently, Dr.

Rubens was not prejudiced by the manner in which Mr. Sansome asserted his claim in his pleading. Together,the pleadings, evidence, and submissions of both parties formed the basis for the Judge’s determination that Mr. Sansome had pleaded acause of action in negligence, and the Judge did not err in accepting that negligence had been alleged by Mr. Sansome and dealing withhis suit on that basis. [25] I add that Mr. Sansome filed his pleadings and appeared at trial without the benefit of legal representation.

While his pleadingsleave something to be desired in terms of specifics, the fact remains that he was “expressing himself in his own words” (Popular atparagraph 24) while representing himself in a complicated area of the law. Can a Judge make a finding of negligence while concurrently finding “no genuine issue for trial”? [26] Rule 17A.03 reads:

(1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summaryjudgment accordingly.

(2) Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgmentin favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide thequestions of fact or law; or (

b) it would be unjust to decide the issues on the application.

(3) Where the Court is satisfied that the only genuine issue is the amount to which a party is entitled, the Court may order a trial of thatissue or grant judgment with a reference to determine the amount.

(4) Where the Court is satisfied that the only genuine issue is a question of law, the Court may determine the question and grant

judgment accordingly. … (Emphasis added.) [27] The wording of rule 17A.03(2) provides for judgment in certain cases (paragraphs (

a) and (b)) “either upon an issue or generally”after

summary trial even if there is a genuine issue for trial. Put another way, the appropriateness of deciding an issue of fact or law orthe matter generally by way of

summary trial depends on there being no necessity for a trial in order to fairly and justly decide the issueor matter. [28] At paragraph 30 of his decision, the Judge stated, with regard to the negligence issue: Therefore, there is no issue for trial and it would not be unjust to decide the issue summarily. [29] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 the Supreme Court strongly encouraged the use of

summary proceedingsto resolve claims “when the judge is able to reach a fair and just determination on the merits of a motion for

summary judgment”. TheCourt explained that this will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows thejudge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result(paragraph 49). [30] In this case the Judge decided that the tendered evidence and the law enabled him to decide whether Dr. Rubens had Mr.Sansome’s consent to review his medical records and that it would not be unjust to do so. He consequently dismissed Mr. Sansome’slack of consent claim (paragraph 15).

The Judge reached the same conclusion respecting Mr. Sansome’s defamation claim (paragraph38), because he was able to justly decide that Dr. Rubens’ report was protected by qualified privilege on the basis of the tenderedevidence and the law. [31] As noted above, the Judge stated in regard to the negligence issue “there is no issue for trial and it would not be unjust to decidethe issue summarily”. In saying “there is no issue for trial” and that “it would not be unjust” for him to decide the issue, he waseffectively saying that on the basis of the evidence tendered at the

summary trial and the law, he could make the necessary findings offact and legal determinations to decide the negligence issue fairly and justly without the necessity of a full trial. This is exactly the samebasis on which the Judge decided Mr. Sansome’s consent and defamation claims. The Judge’s use of the phrase “no issue for trial” inparagraph 36 of his judgment was to signal that there was no need to proceed to a full trial because it was not unjust in all thecircumstances to deal with the matter summarily.

Clearly, there was an issue of negligence to be determined (in the sense of there being“a genuine issue” within rule 17A.03(2)), but the Judge concluded that he could nonetheless proceed to deal with it summarily. Thephrase “no genuine issue for trial” in rule 17A.03(1) refers to the different concept of there being no need for a trial of any sort (i.e. a fulltrial or a

summary trial). [32] In the result, the Judge’s application of the

summary trial rule was entirely consistent with the Supreme Court’s

interpretation of“no genuine issue for trial” set out in Hyrniak. Accordingly, he did not err in his characterization of how the

summary trial rule appliesor in his approach to its use. Whether the Judge had the evidence and law before him to determine that Dr. Rubens was negligent is adifferent question and will be examined below. [33] Something more must be said about application of the

summary trial rule. When a party applies for dismissal of a suit onsummary trial, that party bears the burden of proving his or her position. In response to the applicant’s position, the respondent must puthis best foot – in other words his case – forward. The Judge then decides. [34] When deciding whether to apply for

summary trial, an applicant must realize that there is a risk that the judge may decide thecase in favor of the respondent as provided for by rule 17A.03(2) (Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld.T.D.) at paragraph 76, subparagraph 17). In this regard, see also Marine Atlantic Inc. v.Topsail Shipping, 2014 NLCA 41, 357 Nfld. & P.E.I.R. 240, where a defendant’s application for dismissal of a plaintiff’s claim onsummary trial resulted in the defendant being found liable to the plaintiff. [35] In this case, the Judge decided that

summary trial was appropriate, and then decided some claims in favor of the applicant andthe negligence claim in favor of the respondent Mr. Sansome in accordance with the rule. It was open to the Judge to do so, although asnoted above, whether negligence was able to be determined on the evidence is a separate question. The Negligence Claim [36] The tort of negligence comprises three essential elements: (1) the existence of a duty of care, (2) breach of that duty of care, and (3) injury to the claimant caused by the breach (Resurfice Corp. v.

Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 at para. 6). [37] In Resurfice, McLachlin C.J. summarized the how and why of negligence law: Liability for negligence requires breach of a duty of care arising from a reasonably foreseeable risk of harm to one person, created by theact or omission of another: Jordan House Ltd. v. Menow, (SCC), [1974] S.C.R. 239, at p. 247, per Laskin J. (as he thenwas). By enforcing reasonable standards of conduct, so as to prevent the creation of reasonably foreseeable risks of harm, tort law serves

as a disincentive to risk-creating behaviour: Stewart v. Pettie, (SCC), [1995] 1 S.C.R. 131, at para. 50, per Major J. Themajor elements of a tort action — duty, breach causing injury and cause — reflect “the principle of moral wrongdoing which is the basisof the negligence law”: L. Klar, “Downsizing Torts”, in N. J. Mullany and A. M. Linden, eds., Torts Tomorrow: A Tribute to JohnFleming (1998), 305, at p. 307. Duty of Care [38] In Canadian negligence law, whether a defendant owes a duty of care to a plaintiff begins with the good neighbor principle,articulated by Lord Atkin in Donoghue v.

Stevenson, (FOREP), [1932] UKHL 100: … The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa”, is no doubt based upon ageneral public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code wouldcensure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules oflaw arise which limit the range of complaints and the extent of their remedy.

The rule that you are to love your neighbour; and thelawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions whichyou can reasonably foresee would be likely to injure your neighbour. Who, then in law, is my neighbour?

The answer seems to be –persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affectedwhen I am directing my mind to the acts or omissions which are called in question. [39] It is not always easy to determine the “persons so closely and directly affected” by the actions of others, as McLachlin C.J.observed in Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, wherein the plaintiff sought compensation for injury caused byan intoxicated driver who had been a party guest of the defendants.

In Childs, Chief Justice McLachlin reviewed the evolution ofCanadian negligence law since Donoghue v. Stevenson, referenced the two-part test for determining the existence of a duty of care whichhad been set out in Anns v. Merton London Borough Council, [1978] A.C. 728 and which the Supreme Court of Canada accepted inKamloops (City Of) v. Nielson, (SCC), [1984] 2 S.C.R. 2, pp. 10-11 and affirmed in Odhavji Estate v.

Woodhouse, 2003SCC 69, [2003] 3 S.C.R. 263, and recast it as follows: (1) is there “a sufficiently close relationship between the parties” or “proximity” to justify imposition of a duty and, if so, (2) are there policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed orthe damages to which breach may give rise? [40] Chief Justice McLachlin explained that reasonable foreseeability is an aspect of “proximity” which goes to whether a prima facieduty of care exists (paragraphs 27-30).

She further explained that once a plaintiff establishes a prima facie duty of care, “the evidentiaryburden of showing countervailing policy considerations shifts to the defendant” (paragraph 13). [41] In Childs, the Court concluded that social hosts had no duty of care to people who might be injured as a result of the hosts’failure to intervene when a guest left their premises intoxicated where there was no evidence that the hosts were aware of the guest’slevel of intoxication when he or she left the premises.

The Court stated that something more than simple foreseeability is required toestablish proximity in cases of nonfeasance like in Childs. [42] The principles from the above-referenced cases were applied by the Court in Hill v. Hamilton Wentworth Police Services, 2007SCC 41, [2007] 3 S.C.R. 129, where the issue was whether investigating police have a duty of care to suspects. Such a duty of care hadnot been previously recognized in Canadian jurisprudence. In Hill, Chief Justice McLachlin explained that “categories of relationshipscharacterized by sufficient proximity to attract legal liability are not closed … .

From time to time, claims are made that relationshipshitherto unconsidered by courts support a duty of care giving rise to legal liability” (paragraph 25).

The Court ruled that investigatingpolice are not immune from liability in negligence because the nature of the relationship between the police and a suspect createsproximity sufficient to support a prima facie duty of care, and went on to say that there were no compelling policy reasons to negate sucha duty of care, reasoning that “[r]equiring police officers to take reasonable care toward suspects in the investigation of crimes may havepositive policy ramifications” (paragraph 43). [43] At trial, Dr.

Rubens’ counsel expressed a reviewing doctor’s duty this way: … I think that it’s a reasonable position to say that when one does undertake an exercise such as doing a review for an insurer on anindividual, that they must bring to that task their professional obligations in terms of providing a well-reasoned, thoughtful, and accuratereport that’s consistent with the psychiatric knowledge or the expertise that the individual possesses, and not to be …, reckless ornegligent in the exercise of that duty because, … , if you look at the neighbour principle in terms of who do I owe my duty of care to,there is a potential for harm if the report is done badly or negligently, just as if he were treating him and misdiagnosed or, you know,acted inappropriately.

Which is why my focus has been on reviewing this, is this is really a negligence case, a medical negligence case because what Dr.Rubens was doing was exercising his medical expertise. He wasn’t treating the patient but he was still carrying out a function that’sconsistent with his professional knowledge and expertise and he’s under a duty to, … , adhere to a code of ethics, and if he didn’t knowanything about depression, let’s say, or let’s make it easier and we’ll do it as if the issue for consideration was back problems, and thereports were given to Dr.

Rubens as a psychiatrist and he proceeded to make opinions or offer comments on the back issues, well thenmaybe that would be considered to be a breach of the standard of care because he doesn’t possess the necessary expertise to dischargethat obligation without potentially causing harm. And I’m not sure if that’s probably the best analogy but essentially there is a duty and there is an obligation to conduct the reviewproperly … (Transcript, pages 173-175.) [44] Dr. Rubens resiles from his trial position that he owed Mr. Sansome a duty to conduct his review of Mr. Sansome’s records

properly and in accordance with the professional standards of a reasonable psychiatrist, now arguing that he did not owe Mr. Sansome aduty of care because he was not treating Mr. Sansome as a patient. He maintains that the only duty an IME doctor has is not to causeharm to an examinee in the course of an IME, and because he was doing a paper review and not an in-person IME, he did not owe anyduty of care to Mr. Sansome.

He argues that the only duty of care he owed was to Desjardins, and he relies on English jurisprudence andsome decisions from Canadian courts which followed the English cases to support his position. [45] The English cases on which the doctor relies are M (a minor) v. Newham London Borough Council and Others [1994] 4 AU E.R.602 (CA) affirmed by the House of Lords in X and Others (Minors) v. Bedfordshire County Council), [1995] 3 AU E.R. 353 (HL). [46] M (a Minor) involved a psychiatrist who had examined a child for a local health authority in a case of child abuse.

Thepsychiatrist had identified the child’s mother’s partner as the abuser when he was not the abuser. The mother sued the psychiatrist onbehalf of the child and in her own right. In finding that the doctor owed no duty of care to the mother or child, Straughton L.J., in theEnglish Court of Appeal, said the following: 24. …The child was no more the patient than an applicant for life insurance who is examined by the company’s doctor, or the errantmotorist who is deprived of a small quantity of blood by the police surgeon.

In all those cases the medical person without doubt owessome duty to the person being examined or treated. We have been asking the wrong question, whether any duty is owed. The rightquestion is, what duty: it is a duty to use reasonable skill and care so as not to cause harm in the course of examination or treatment. Butthe general duty to perform the task allocated with reasonable skill and care – whether it be “diagnosing” the name of an abuser, orassessing the expectation of life, or producing a blood sample for analysis – is in my opinion owed to the person who engages the doctorto perform that task.

That is the health authority or the local council in the first case, the insurance company in the second, and thepolice authority in the third. Gibson L.J. agreed saying: … I cannot see that the psychiatrist owed the child or her mother a duty of care in relation to the advice that the psychiatrist gave tothe local authority, as it was never intended that the psychiatrist should give that advice to the child or her mother.

Similarly if I proposeto effect a policy on my life with insurers who require me to be medically examined by a doctor who will advise them, that doctor owesme no duty of care in the advice he gives the insurers. Even though for the purposes of confidentiality he will treat me as his patient. [47] The House of Lords upheld the Court of Appeal decision M (a minor) in its X minor decision, per Lord Browne-Wilkinson,reasoning as follows: The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs.

The subjectmatter of the advice and activities of the professionals is the child. Moreover, the tendering of any advice will in many cases involveinterviewing, and in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with andrelationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority. TheCourt of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for life insurance.

The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not todamage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not theapplicant. (Page 383.) [48] The following Canadian cases have also considered the issue:

(1) Fabian v. Marguiles (1985), (ON CA), 53 O.R. (2d) 380 (C.A.), wherein an expert witness was held to beimmune to a malpractice suit because his evidence was protected by privilege;

(2) Johnson v. State Farm Mutual Automobile Insurance Co, (1998), 72 O.T.C. 206 (C.J.), wherein an IME physician was found notliable to a claimant who had alleged the doctor deliberately or negligently misrepresented his true injuries to the insurer;

(3) Branco v. Sunnybrook & Women’s College Health Sciences Centre (2003), 38 C.P.C. (5th) 155 (Ont. S.C.), where IME doctorsretained by insurance companies were held to have no duty of care to the claimants on whose cases they were opining;

(4) Lowe v. The Guarantee Company of North America (2005), (ON CA), 80 O.R. (3d) 222 (C.A.), where doctorswho opined on insurance claimants’ cases under a statutory scheme were found to have a duty of neutrality but not a duty of competence;and

(5) Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 236 N.S.R. (2d) 104, where the Court found for policy reasonsthat arson investigators owed no duty of care to the insured persons they were investigating. [49] The English cases acknowledge that an IME doctor and an examinee have a close and direct relationship and that a doctor couldharm an examinee in the course of conducting an IME, and that such a situation gives rise to a duty of care not to harm an examinee inthe course of conducting an examination.

Although the words used in M (a minor) do not confine the duty to one arising only in thecourse of an IME involving a physical examination, Lord Bingham’s dissent made this clear. Lord Bingham would have allowed themother’s and child’s claims for non-physical loss. Like Lord Bingham, I am unable to see any principled distinction between physicallyharming and otherwise harming an examinee in the course of carrying out an examination.

Harm can arise in both situations if thephysician’s work is performed negligently. [50] In M (a minor), the English Court of Appeal addressed the imposition of a duty of care in the police/suspect and IME doctorinsurance claimant scenarios and stated that no general duty to perform the task allocated with reasonable skill and care arose in suchsituations (page 629). As well, in Hill v. Chief Constable of West Yorkshire [1988] 2 All ER 238, the court found for policy reasons thatno duty of care should be imposed on police investigating crimes. By contrast, our Supreme Court in Hill (Hill v. Hamilton Wentworth),

after doing both a proximity and policy analysis, found that investigating police do have a duty of care to suspects. At paragraph 35 of Hill, Chief Justice McLachlin remarked: … As the Court of Appeal pointed out, an important category of police conduct with the potential to seriously affect the lives of suspects will go unremedied if a duty of care is not recognized. This category includes “very poor performance of important police duties” and other “non-malicious category of police misconduct” (paras. 77-78). To deny a remedy in tort is, quite literally, to deny justice.

This supports recognition of the tort of negligent police investigation, in order to complete the arsenal of already existing common law and statutory remedies. Moreover, at paragraph 38 she states: Finally, it is worth noting that a duty of care by police officers to suspects under investigation is consistent with the values and spirit underlying the Charter , with its emphasis on liberty and fair process. The tort duty asserted here would enhance those values, which supports the appropriateness of its recognition.

In my view, the Supreme Court’s decision in Hill shows that Canadian law has taken a different direction from the English cases respecting the imposition of a duty of care. [ 51 ] The Fabian, Johnson and Branco cases, all decided before Childs and Hill , do not perform an explicit proximity analysis. Fabian did not require a proximity analysis because it was a privilege case.

Johnson and Branco focus on the fact that the doctors in those cases were IME doctors retained by insurance companies and say that the relationships between those IME doctors and the examinees did not support the doctors owing a duty of care to the examinees or related claimants. In so deciding, they relied on the reasoning in the English cases M (a minor) and X minor . Johnson and Branco did not perform the duty of care analysis born in Donaghue v. Stevenson and which lives on in Childs , Hill and Resurfice .

In any event, I find the statement in Johnson that an IME doctor could not be found liable to an examinee for an intentionally inaccurate IME rather discrediting of the case. [ 52 ] By contrast, Elliott and Lowe do perform an explicit proximity analysis, and both cases find sufficient proximity to support a prima facie duty of care. I agree with the proximity reasoning in Elliott and Lowe , as it is consistent with the direction from our Supreme Court. [ 53 ] Whether Dr. Rubens owed a duty of care to Mr. Sansome depends, as a first analytical step, on proximity being established.

Whether proximity was established involves considering the nature of the relationship between Dr. Rubens and Mr. Sansome, including whether it was reasonably foreseeable that Dr. Rubens could injure Mr. Sansome. [ 54 ] In analyzing proximity in this case, I would first observe that Desjardins, as a disability insurer, relies on medical advice to evaluate claims made by its insureds. It is not only possible, but probable, that Desjardins would rely on Dr. Rubens’ report in handling Mr. Sansome’s claim, making it reasonably foreseeable that if Dr. Rubens carried out his task in a below standard manner, Mr.

Sansome could be harmed, at least economically, by rejection of an otherwise valid claim by Desjardins or otherwise. [ 55 ] Dr. Rubens and Mr. Sansome did not have a doctor-patient relationship. They had not even met. Mr. Sansome was not a patient of Dr. Rubens, and Mr. Sansome was not otherwise under Dr. Ruben’s care or treatment. Dr. Rubens was retained by Mr. Sansome’s insurer for the purpose of advising the insurer on matters respecting Mr. Sansome’s health-related claim for benefits. Dr. Rubens therefore had no duty of care to treat Mr.

Sansome in accordance with the standard of care expected of a treating physician. [ 56 ] However, just because Mr. Sansome was not under Dr. Rubens’ care or treatment does not mean that Dr. Rubens did not owe Mr. Sansome a duty of care. Dr. Rubens’ duty of care to Mr. Sansome may simply involve different responsibilities than what would be involved if Dr. Rubens were his treating physician. How a duty of care owed by one person to another manifests, or what exactly it involves, depends on the particular facts and circumstance of the situation.

The facts and circumstances of any alleged breach of duty of care always depend on the case, as the Chief Justice explained in Hill (paragraph 24 ), because the nature of the relationship between any litigating parties and the foreseeability of injury in any particular situation differ from case to case. Moreover, while a relationship between the parties must be “close and direct” in order to sustain a cause of action in negligence, it does not have to be personal. “It may also exist where there is no personal relationship between the victim and the wrongdoer” ( Hill at paragraph 29 ).

In this regard it is just as possible for a doctor who is doing a paper examination of a claimant’s records to harm the claimant if the doctor carries out the examination negligently as it is for a doctor to harm a claimant in a physical examination. [ 57 ] Even though they had not met, Dr. Rubens and Mr. Sansome had a relationship. Dr. Rubens’ task for Desjardins directly involved Mr. Sansome and his medical condition which was being relied on in support of his claim to Desjardins. Dr. Rubens’ review and report could (if not would) “so closely and directly affect” Mr.

Sansome ( Childs , paragraph 10 ), or put another way, Dr. Rubens’ “actions” had the potential to so closely and directly affect Mr. Sansome ( Hill at paragraph 29 ) and his personal interests ( Hill at paragraphs 34 and 36 ) that Mr. Sansome could well suffer injury or loss if the doctor’s reviewing and reporting actions were negligently carried out. Dr. Rubens knew this and ought reasonably to have had Mr. Sansome in his contemplation as being so affected when he was carrying out his work, as the Judge found. Policy Reasons Internal to the Relationship [ 58 ] In Hill , and in Cooper v.

Hobart , 2001 SCC 79 , [2001] 3 S.C.R. 537 before Hill , the Supreme Court’s analysis of duty of care included consideration of policy reasons internal to the relationship between the parties as well as residual policy considerations that could negate a duty of care. In this appeal Dr. Rubens did not argue that there were policy reasons which ought to negate a finding that he owed a duty of care to Mr. Sansome. While I agree with the Chief Justice that it is reasonable to assume that Dr.

Rubens was conceding that policy considerations did not affect the existence of a duty in his case, I note Chief Justice McLachlin’s comments at paragraph 31 of Hill : … there may be overlap between internal and residual policy considerations but that we should not forget that stage one and stage two of the Anns test are merely a means to facilitate considering what is at stake. The important thing is that in deciding whether a duty of care

lies, all relevant concerns should be considered. Consequently, out of an abundance of caution, and despite not hearing arguments from the parties in this regard, I will consider thepolicy arguments raised in the authorities submitted by Dr. Rubens and in other relevant jurisprudence on the theory that by being soraised they ought to be considered.

Internal Policy Concerns [59] Much of the jurisprudence considers the relationship between an insured person and an IME doctor to be more skeptical anddistant and less supportive than that of a treating doctor and patient, therefore not calling for the imposition of a duty of care. It is so thatthe relationship between an insured person and an IME doctor is not based on trust or support, and that an IME doctor cannot be anadvocate for an examinee in the same way that a treating doctor can be for a patient.

But trust, support, or the ability to advocate for anexaminee are not requirements of a prima facie duty of care. The duty of care motorists owe to each other is not based on trust, supportor the ability to advocate. Neither are the duties of care found to be owed by investigating police to suspects (Hill), private investigatorsto the people they investigate (Correia v. Canac Kitchens, 2008 ONCA 506), or credit reporters to the people on whose credit they report(Haskett v. Equifax Canada Inc. (2003), (ON CA), 63 O.R. (3d) 577 (C.A.)) based on trust or support.

The point ofthe rulings in these cases is that those in a position to directly affect others do not have a carte blanche to treat those others in a negligentfashion. The parties in these cases are “neighbours” within the meaning of Donaghue v. Stevenson. [60] Overlapping damages was a concern expressed in Elliott (paragraphs 80, 86, and 87) and Lowe (paragraph 54). I do not sharethis concern. Insurance benefits are a matter of coverage pursuant to contract. If an insured claimant is made whole, he or she will haveno claim for insurance benefits against an IME doctor.

If the claimant is not made whole, a claim for the loss of benefits as damageswould be subject to proof of causation, which could be difficult. However, if causation were to be proved, there is no reason why thevalue of the benefits ought not to be paid. [61] A negligently performed IME may also cause distinct damages. In this case, for example, Mr. Sansome suggested that theincorrect conclusions in Dr. Rubens’ report would make it difficult and/or expensive for him to buy new insurance.

Although a tall orderto prove, it is a separate loss than insurance benefits due under an insurance contract. [62] It has been posited that there is a conflict between an IME doctor’s duty to his retainer, in this case the insurer, and to an IMEexaminee. In X minor, per Lord Browne Wilkinson and M (a minor) per Straughton L.J and Gibson L.J., the “principal” duty was said tobe oweable to only one party and a second lesser duty to another party.

In Hill, it was argued that there was conflict between the duty ofcare that a police officer owes to a suspect and the police officer’s duty to the public to prevent crime. The Hill Court rejected theconflict notion as a reason to negate a duty of care, saying the duties are not in conflict because the police duty to the public is toinvestigate in accordance with the law and not in an unconstrained manner. By analogy, an IME doctor’s duty is not to opine for hisretainer in an unconstrained manner.

Rather, his or her duty is to carry out the medical task diligently and in accordance with the ethicsand standards of his or her discipline. An IME doctor owing a duty of care to his or her retainer (and also likely a contractual duty) doesnot preclude him or her from owing a duty of care to others affected by his or her actions.

A motor vehicle driver owes a duty of care notjust to other drivers, but to other categories of people like his or her passengers, pedestrians, and so on. [63] There is no evidence that IME contracts contain conditions that conflict with an IME doctor’s duty to give objective and accuratemedical advice and opinion consistent with the standard of care expected of like physicians. It would be highly troubling, if notimproper, if they did.

In this regard, I agree with Lord Bingham’s words in his dissenting reasons in M (a Minor) at p. 618: A doctor’s duty in this as in every other professional situation is to ascertain the facts as best he can, to form the best judgment he canand to give the soundest advice he can, couching his advice in terms appropriate to the judgment he has formed.

I do not see why adoctor’s performance of this duty in the present context would be inhibited by knowledge that he might be held liable …. (Emphasis added.) [64] While in many contexts professionals, including IME physicians, must be free to advance interests zealously to the detriment ofother parties, an IME doctor is expected to opine in accordance with the standard of care expected of like physicians.

Insuranceclaimants and policy holders, let alone courts, ought not to have to worry about whether imposing a duty of care on IME or reviewingdoctors might have a chilling effect on an IME doctor’s ability to opine on a claimant’s condition or to give expert evidence on behalf ofa client. An IME doctor can be an advocate for his or her opinion, but advocacy has no place in the formulation of his or her opinion.

Achilling effect on such advocacy in the formulation of medical opinion is good policy. [65] Another internal policy concern apparent from the reasoning in Johnson and Branco (relying on Fabian), is that an IME doctorhas no duty of care to a claimant because an expert witness is immune from suit. This reasoning confuses privilege, a positive defence,with duty of care, an element of a cause of action. The positive defence of privilege has no place in the within situation, nor was it raisedby Dr. Rubens. [66] In conclusion on proximity, in my view the relationship between Dr. Rubens and Mr.

Sansome was sufficiently proximate to giverise to a duty of care and there are no characteristics or policy considerations pertaining to their relationship that would make recognizingit inappropriate. Dr. Rubens therefore owed Mr. Sansome a prima facie duty of care. Residual Policy Considerations [67] The onus now shifts to Dr. Rubens to show any residual policy reasons why a duty of care should not be recognized (Childs atparagraph 13 and Hill at paragraph 43). [68] Again, because Dr. Rubens did not argue any residual policy reasons that would negate his owing a duty of care to Mr.

Sansome,he can be taken to have acknowledged that there are none. Again though, for the same reason I stated in paragraph 58 above, I willconsider residual policy considerations raised in the jurisprudence.

[69] I begin by observing that a claim for insurance benefits must fit into the coverage criteria set out in the governing insurancecontract. The fair and proper adjusting of claims is a matter of legitimate concern not only for claimants, but also for all policy holdersand company owners. [70] Insurance companies, not themselves expert in medicine, require expert medical advice in order to fairly and properly adjustclaims made.

It must therefore be recognized that insurance companies may be in a weak position to question medical reports theyreceive, or even that they may be motivated not to question reports that favor their position. Given this situation, it is important thatreviewing and IME doctors conform to a standard of practice so as to ensure that IME doctors are not incentivized to reach conclusionsthat favor their retainers. The imposition of a duty of care in the context of IME work would require responsibility and accountability forsuch work.

Not imposing a duty of care would effectively endorse substandard performance of IME work and give IME doctors a carteblanche to reach conclusions based on obviously wrong medicine, engage in “very poor performance of important duties” (Hill,paragraph 35) and perform their work with “lack of care and diligence” (ter Neugen), or even engage in “deliberate misconduct”(Johnson, paragraph 13). [71] The argument has been made that the imposition of such a duty of care is bad policy because it would not contribute to goodpractice.

Lord Bingham addressed this argument in his dissenting reasons at page 618 of M (a Minor), observing that though liabilitymight make a doctor “anxious to be as sure as possible before expressing any opinion” and “careful to express no opinion stronger thanthe facts in his judgment warranted”, “both these results are to be encouraged”. He added at page 619: I cannot accept, as a general proposition, that the imposition of a duty of care makes no contribution to the maintenance of highstandards.

The common belief that the imposition of such a duty may lead to overkill is not easily reconciled with the suggestion that ithas no effect. [72] Similarly in Hill, the Supreme Court rejected the claim that imposing a duty of care on police officers towards suspects would bebad policy because it would have a chilling effect on police investigations.

McLachlin C.J. said the “lack of evidence” to support such aclaim made the argument “speculative” (paragraphs 58 and 57), but in any event, she concluded that if a duty of care caused police to“become more careful”, that “is not necessarily a bad thing” (paragraph 56).

In my view, the reasoning of Lord Bingham in M (a Minor)and the Chief Justice in Hill apply with equal force to an IME or reviewing doctor’s work involving examinees, and to the currentsituation. [73] It has also been suggested that recognizing a cause of action in negligence against an IME doctor will somehow interfere withother principles of law (Elliott at paragraph 89). It is common for different legal rules to apply to the same factual situation; differentcauses of action have different purposes and standards, and on the same facts some may succeed and others may fail. That is nottroubling.

There is nothing incoherent about Dr. Rubens being found liable in negligence but not in defamation or breach of confidence. [74] Finally, the Elliott Court was concerned that insurance claimants might attempt to use an action against an IME doctor as a meansto avoid determination of the real issue between the insured and the insurer – that being “what caused the loss” (paragraph 88).

As notedin paragraph 60 above, an IME doctor can only be held liable to pay damages equivalent to insurance benefits when a negligent IMEreport results in the failure of the plaintiff to recover insurance benefits and the negligence causes the loss. The laws of causation,necessary parties, and collateral attack provide tools to prevent suits against IME doctors to be used to avoid “the real issue”.

While Iwould not follow Elliott in any event, it is my view that it has been effectively overruled by the Supreme Court’s decision in Hill. [75] In the result, I am not persuaded that there are any policy concerns that would negate Dr. Rubens owing a duty of care to Mr.Sansome. Standard of Care [76] The duty of care owed by a physician working in his capacity as a physician is to not fall below the standard expected of him orher. That standard was described by Sopinka J. in ter Neuzen v.

Korn, (SCC), [1995] 3 S.C.R. 674, at paragraph 33: It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor inthe same circumstances. In the case of a specialist … the doctor's behaviour must be assessed in light of the conduct of other ordinaryspecialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field.

Aspecialist … who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an averagespecialist in his field: see Wilson v. Swanson, (SCC), [1956] S.C.R. 804, at p. 817, Lapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351, at p. 361, and McCormick v. Marcotte, (SCC), [1972] S.C.R. 18. The standard has also been described as the “degree of skill, care, and learning ordinarily possessed and exercised by other physicians insimilar circumstances” (Bryars Estate v.

Toronto General Hospital (1997), (ON CA), 152 D.L.R. (4th) 243 (Ont.C.A.) at paragraph 19. [77] It can thus be said that Dr. Rubens would have been expected to conduct his review and

interpretation of Mr. Sansome’s recordswith the “reasonable level of knowledge, competence, and skill” and the “prudence and diligence” expected of psychiatrists like him. [78] While Dr. Rubens’ duty to Mr. Sansome is different than the one owed by a treating physician to a patient, it is not a reduced orlimited duty and ought not to be characterized as such.

Such a characterization invites a physician to be less diligent or prudent, or toemploy a lesser level of “knowledge, competence and skill” – in short a lower standard - when performing an IME or a records reviewthan he or she would be expected to employ as a treating physician. Physicians must carry out their professional work to a certainstandard regardless of the particular task at hand or who retains the doctor. Different tasks do not result in higher or lower standards. The standard is the same, although what is required to meet the standard may differ from case to case (Hill at paragraph 24).

The natureof the task at hand defines how the duty is met; the duty does not change, it is simply carried out differently depending on the facts andcircumstances. Accordingly, a reviewing doctor who prepares a report in a manner below the standard expected of him or her can be inbreach of his or her duty of care to the subject of the report.

[79] This is the conclusion that was reached in Therrien v. Launay, [2005] R.R.A. 349, 34 C.C.L.T. (3d) 6 aff’d 2005 QCCA 665, 2005 Q.C.C.A. 665 (leave to appeal to the SCC denied February 16, 2006). In Therrien, the trial judge found that whiledoctors who are retained by insurance companies do not have the same duty of care to “patients” as doctors in a doctor-patientrelationship do, “they have an obligation to act with diligence, good sense and good faith” and they cannot harm or mislead the “patient”or give him or her erroneous advice.

The “patient” in that case was an insurance claimant who was the subject of an IME. AlthoughTherrien was decided in the context of Quebec civil law, the reasoning applies with equal force to the issue of standard of care incommon law cases. [80] I am not suggesting that a reviewing doctor cannot reach conclusions adverse to a claimant’s interests, or that his or herconclusions must always be right, or that they must always be found to prevail in litigation. Expert or consulting physicians have theright to their opinions, and the right to be wrong.

However, their opinions, right or wrong, accepted or not, must be arrived at in amanner consistent with the standard of care expected of like physicians, which means that they must be prudently and diligently formedand based on the degree of knowledge, competence, and skill expected of professionals in Canada in that field (ter Neugen). Application to this Case Did Dr. Rubens fall below the standard of care expected of him in this case? [81] In his decision, the Judge reviewed the medical evidence given at trial in light of the conclusions Dr. Rubens stated in his report.

The Judge’s findings are summarized as follows in paragraphs 21-23 of his decision: Dr. David Craig, a psychiatrist who gave expert evidence on behalf of Rubens, admitted that the probability of alcoholism in an adult male with a raised Gamma-GT level can be as low as 21 percent. Headmitted that there are other causes for a raised Gamma-GT level. Dr. R. P. O’Driscoll, Sansome’s family physician, gave evidence at the hearing and confirmed that an elevated GT level can have many causes. In medical literature referred to by Dr.

O’Driscoll, the followingclinical conditions may give rise to a raised Gamma-GT level: o Pancreatic disease; o Myocardial infarction; o Chronic obstruction pulmonary disease; o Renal failure; o Diabetes; o Obesity; o Alcoholism. The medical reports reviewed by Rubens indicated that Sansome suffers from Type 2 Diabetes and that he is obese. Dr. O’Driscoll, inhis evidence, disputes Sansome’s use of alcohol. This physician has been treating Sansome, his spouse, his parents, his children and hissiblings for about 25 years. The use of alcohol by Sansome has never been an issue.

As well, in the medical reports reviewed by Rubensuse of alcohol is not considered to be relevant in the diagnosis by the two specialists. Rubens states at page 12, paragraph 11: “The onlynote made by Dr. van Wijk about alcohol is a note to the effect ‘alcohol, nil’ in a discharge

summary written by Dr. van Wijk inNovember, 2009. Dr. Maritz recorded simply ‘denies alcohol’ in his initial assessment report of March 1, 2010.” It is therefore obviousthat these specialists did not associate the elevated Gamma-GT level with Sansome’s use of alcohol. In his unsworn submission at thehearing, Sansome denied the use of alcohol. [82] The Judge found that the evidence established that Dr. Rubens’ conclusion that ingestion of large quantities of alcohol wasresponsible for the elevation in Mr.

Sansome’s Gamma GT levels and therefore his depressive condition was incorrect, and that this errorled to the doctor’s conclusion that Mr. Sansome was not suffering from major depression of sufficient gravity to occupationally disablehim. [83] In so finding, the Judge rejected Dr. Rubens’ position that his report did not contain diagnostic conclusions (paragraph 26),saying at paragraph 29 that: Rubens owed a duty to Sansome to prepare a report based on current, up-to-date and accepted medical knowledge.

Rubens ought to haverealized his diagnosis as to alcohol use was questionable in light of the reports of the two specialist who had treated Sansome over a longperiod of time. The Judge’s determination that Dr. Rubens was negligent in the

interpretation of Mr. Sansome’s elevated Gamma GT levels and in the

preparation of his report was effectively a finding that Dr. Rubens breached the standard of care expected of him in the preparation of hisreport and forming his conclusions. [84] The Judge’s decision is well supported by the evidence. Dr. Craig’s report (admitted into evidence and adopted by Dr. Craig inhis testimony) states that there are several causes of elevated Gamma GT levels and at trial Dr. Craig confirmed that “most psychiatristsare aware that alcohol consumption is not the only cause of elevated Gamma GT levels (transcript p. 219). Dr.

Craig’s evidence alsoshows that he did not adopt or otherwise support Dr. Rubens’ strongly worded conclusion about alcohol ingestion being the cause of Mr.Sansome’s condition. Dr. Craig did not defend Dr. Rubens’ reasoning or conclusion. Rather, Dr. Craig justified Dr. Rubens’unwarranted confidence that Mr. Sansome was alcoholic by resorting to probability percentages which never exceed 50%. [85] The Judge also relied on Dr. O’Driscoll’s unrefuted evidence that there were many causes for elevated Gamma GT levels in apatient and that alcohol use had never been an issue during his lengthy care of Mr.

Sansome as a patient, a fact that was given short shriftby both Dr. Rubens and Dr. Craig. [86] Despite Dr. Craig’s qualified evidence, he testified that in his opinion Dr. Rubens did not fall below standard in reviewing andreporting on Mr. Sansome’s records. Dr. Craig is, of course, entitled to his opinion, and the Judge was bound to consider it. However,determining breach of standard of care is the Judge’s call, not Dr. Craig’s. Just because Dr. Craig opined that Dr. Rubens did not fallbelow standard does not make it so.

While a judge is bound to base his findings on admissible evidence, he or she is not bound to acceptany expert’s opinion. [87] In the result, the Judge’s conclusion that Dr. Rubens breached the standard of care in the preparation of his report is wellsupported by the evidence and cannot be said to be subject to palpable and overriding error. His conclusions are entitled to appellatedeference. Again, while the Judge characterized Dr. Rubens’ breach as negligence, in reality, the Judge found that Dr. Rubens breachedthe duty of care he owed to Mr.

Sansome by falling below the standard of care expected of him in the circumstances. The Judge did noterr in so finding. Mr. Sansome’s Failure to Tender Expert Evidence [88] Dr. Rubens maintains that breaches of standard of care in medical negligence cases cannot be established in the absence of expertevidence tendered by a plaintiff that the defendant physician failed to apply the degree of skill, care and learning ordinarily possessedand exercised by other physicians in similar circumstances.

And, his argument continues, because such information is not within theordinary knowledge and experience of triers of fact, it must come from expert medical witnesses who support the plaintiff’s claim. Dr.Rubens maintains that because Mr. Sansome did not tender such expert evidence, his claim cannot succeed. [89] Dr. Rubens also maintains that if a plaintiff does not call expert evidence, the Court “will draw an inference that the plaintiff hasnot been able to obtain an expert opinion supportive of his or her position”. He therefore argues that because Mr.

Sansome did not callexpert evidence, the Court is to infer that he could not find a supportive expert. [90] The reason expert evidence is generally required to establish breach of standard of care in medical malpractice cases is becausecourts are not generally knowledgeable as to the degree of skill, care and learning ordinarily possessed and exercised by physicians in theposition of a defendant physician.

That said, there is no inviolable rule that expert evidence is always required, or that it must betendered by the plaintiff in order for the plaintiff’s case to prevail. [91] Standard of care and breach of the applicable standard of care can sometimes be reasonably inferred from the evidence, as wasstated by Sopinka J. in ter Neuzen at pp. 696-697: While conformity with common practice will generally exonerate physicians of any complaint of negligence, there are certain situationswhere the standard practice itself may be found to be negligent.

However, this will only be where the standard practice is fraught withobvious risks such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinicalexpertise. This was the case in Crits v. Sylvester, (ON CA), [1956] O.R. 132 (Ont.C.A.) where the Court found that an expert wasnot required to establish the obvious breach of standard of care, and in Webster v. Chapman (1997), (MB CA), 155D.L.R. (4th) 82 (Man.

C.A.), wherein the court stated that sometimes a trier of fact is well positioned to find a breach “in the absence ofproof of a general standard, and despite expert evidence which is asserted to exonerate the doctor”. [92] I agree with Dr. Rubens’ argument that it is open to a court to infer that a supportive expert could not be found when a plaintiffdoes not tender expert evidence in a medical malpractice case. However, I do not agree that such an inference is an imperative.

There isno obligation on a trial judge to draw such an inference, and a trial judge may decline to do so for several reasons, among which is thatexpert evidence may not be required to decide the case because of the nature of the issue involved. [93] In this case, Dr. Craig’s and Dr. O’Driscoll’s evidence established that most physicians are aware or ought to be aware of theelementary medical knowledge that alcoholism is only one of several causes of elevated Gamma GT levels. Standard of care wastherefore established and the evidence supported the Judge’s decision that Dr.

Rubens fell below it in preparing his unambiguous report,written for a lay person, and reaching his conclusions. No expert evidence from Mr. Sansome was required in these circumstances. Causation and Injury [94] There remains the issue of damages caused by Dr. Rubens’ breach of his duty to Mr. Sansome. Injury or loss caused by thebreach of a duty of care is an essential element of a negligence determination, including in cases of medical negligence. In this case, thatwould involve whether Mr. Sansome established at the

summary trial that he suffered some type of compensable injury or loss (notnecessarily the extent of the loss) as a result of Dr. Rubens’ breach of duty. Unless Mr. Sansome established at trial that he sufferedinjury caused by Dr. Rubens’ breach, the Judge’s negligence finding cannot stand.

[ 95 ] Mr. Sansome did not tender any evidence of injury or loss caused by Dr. Rubens. Neither was such injury evidenced by any other witness. Mr. Sansome argued in this Court that he did suffer injury which was different than the loss of his disability benefits, but he could not point to anything to support that he proved such injury at trial. While it could be argued that injury to Mr. Sansome’s sensibilities has been established, this is not, without more, a compensable loss. [ 96 ] In the result, proof of injury to Mr. Sansome caused by Dr. Rubens not being established, the Judge’s finding of negligence cannot stand. Where do we go from here? [ 97 ] Rule 17.03(2) of the

summary trial rule provides that “issues” as well as “a general claim made” can be decided by

summary trial. In this case, two of the three elements (or issues) required to establish a claim of negligence have been established. The third issue, that being proof of injury or loss caused to Mr. Sansome by Dr. Rubens’ breach of duty of care, along with assessment, if any, remains. It could not be decided at the

summary trial, so it is a genuine issue for trial. Accordingly, this third issue, as well as an overall determination as to whether all elements of a cause of action in negligence have been established, must be remitted for trial in accordance with the provisions of rule 17A.03. DISPOSITION [ 98 ] In the result, I would allow Dr. Rubens’ appeal in part. The Judge’s findings that Dr. Rubens owed a duty of care to Mr. Sansome and that Dr. Rubens breached that duty of care stand, but the Judge’s determination that Dr.

Rubens was negligent should be vacated because the third essential element of negligence was not determined. Accordingly, I would remit the matter to the Trial Division for continuation of the trial (either a full trial or a

summary trial, as circumstances dictate) with respect to causation and assessment of damages if causation is established. Such a continued trial would not entail any review or reconsideration of the existing findings of the existence and breach of duty of care. COSTS [ 99 ] Mr. Sansome’s position has prevailed on the two substantive issues –duty of care and breach. While Dr. Rubens has succeeded in having the Judge’s negligence determination vacated, the substantive issues consumed by far most of the time and effort at trial and on appeal.

In these circumstances, there is no reason for the mixed success, such as it is, to influence an otherwise straightforward costs award ( see Hiscott v. Hall , 2016 NLCA 1 , 248 A.C.W.S. (3rd) 849 para

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