Dawson v. Bell, 2015 BCSC 2579

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dawson v. Bell, 2015 BCSC 2579 Date: 20150626 Docket: S47313 Registry: Vernon Between: David Reid Dawson Plaintiff And Dr. Roderick Warren Bell Defendant Before: The Honourable Mr. Justice Skolrood (Appearance via teleconference) Oral Reasons for Judgment In Chambers Appearing on his own behalf by teleconference: D. Dawson Counsel for the Defendant appearing by teleconference: A.D. Brine Place and Date of Trial/Hearing: Kelowna, B.C. June 18 and 19, 2015 Place and Date of Judgment: Vernon, B.C.

June 26, 2015 [ 1 ] THE COURT: These are my reasons for judgment on Mr. Dawson's application. [ 2 ] This is a medical negligence action in which the plaintiff, Mr. Dawson, alleges that the defendant, Dr. Bell, was negligent in his medical treatment and care of Mr. Dawson in the period of 2001 to 2008. Specifically, Mr. Dawson alleges that Dr. Bell mismanaged the treatment of gastrointestinal problems he experienced from 1999 to 2004, including failing to conduct a proper examination, failing to refer Mr.

Dawson for a colonoscopy in a timely way, and failing to determine and prescribe appropriate medications. [ 3 ] Mr. Dawson also alleges that Dr. Bell was negligent in his diagnosis and treatment of mental health problems that Mr. Dawson experienced beginning in 2004. In particular, Mr. Dawson alleges that Dr. Bell was negligent in prescribing him the drug, Oxazepam, in failing to inform Mr. Dawson of the risks associated with that drug and in failing to properly monitor and respond to Mr. Dawson's condition. [ 4 ] Mr.

Dawson's mental health deteriorated over the course of 2007 to the point that, on November 25, 2007, he viciously attacked his then wife causing her significant physical and emotional injuries. Mr. Dawson was processed through the criminal justice system for this attack and was convicted of assault. On June 2, 2009, he was given a conditional sentence of 12 months followed by two years of probation. Mr. Dawson and his wife divorced in March of 2009. Mr. Dawson submits that Dr. Bell's negligence caused or contributed to his mental health condition which in turn led to the attack on his wife. [ 5 ] Dr.

Bell denies that he breached the applicable standard of care and, further, he submits that Mr. Dawson has not established that his actions caused the losses claimed by Mr. Dawson. He submits further that Mr. Dawson's claims are statute-barred by reason of the operation of the former Limitation Act , R.S.B.C. 1996, c. 266. Procedural History [ 6 ] Mr. Dawson commenced this action by way of a notice of civil claim filed on November 25, 2010, subsequently amended April 9, 2015. The matter was originally set for trial for eight days commencing September 29, 2014.

It was subsequently adjourned to April 20, 2015. [ 7 ] On January 28, 2015, Dr. Bell filed a

summary trial application seeking to dismiss Mr. Dawson's claim. One of the principal

bases for the application was that Mr. Dawson had not produced an expert report supporting his claims. [8] On February 12, 2015, Mr. Justice Rogers adjourned the trial to August 4, 2015, in order to permit Mr. Dawson to obtain anexpert report. Mr. Dawson then obtained and served the report of a Dr. Mohamed Khaled. Upon receiving that report, counsel for Dr.Bell advised Mr. Dawson that he would no longer be proceeding with Dr. Bell's

summary trial application because the matter was notsuitable for

summary determination given the conflicting expert reports. [9] Mr. Dawson then filed his own

summary trial application which is the application currently before the court. In his application,Mr. Dawson seeks judgment in his favour for the relief sought in his amended notice of civil claim. In the alternative, he seeks thefollowing relief: (

a) a determination that the action is not barred by the Limitation Act; (

b) an order that the expert reports of Dr. Boronowski and Dr. Goumeniouk relied on by the defendant are inadmissible; (

c) an order that the factual assumptions presented to the defendant's experts are “null”; (

d) an order that the defendant be required to respond properly to the plaintiff's notice to admit and to respond properly in the event ofany future examinations for discovery; and (

e) an order requiring the defendant to produce certain documents and diaries. [10] I am told that the documents and diaries have been produced as Mr. Dawson did not pursue this final ground of relief. Evidentiary Issues [11] A large volume of material has been compiled and presented on this application, much of it by Mr. Dawson. The applicationrecord comprises seven binders of material. It is apparent that Mr. Dawson has done a very thorough job of compiling the information onwhich he seeks to rely in support of this claim. [12] However, Dr. Bell submits that much of the material produced by Mr. Dawson is inadmissible on a

summary trial application.He cites, among other authorities, American Pyramid Resources Inc. v. Royal Bank of Canada, Keating and Squires (1986), (BC SC), 2 B.C.L.R. (2d) 99, for the well-established proposition that affidavits on

summary trials must be restricted to facts andmust be based on personal knowledge rather than on information and belief. Dr. Bell also makes the point that simply attachingdocuments as exhibits to an affidavit does not convert them into admissible evidence, particularly where they are tendered for the truth oftheir contents, citing L.M.U. v. R.L.U., 2004 BCSC 95, at paragraphs 40 to 41. [13] I agree with Dr. Bell that there are significant problems with much of the evidence relied on by Mr.

Dawson on this application.His Affidavit #7, which is the principal affidavit in which he sets out the chronology of key events, is replete with inadmissible hearsay,opinion, and argument. [14] Moreover, as pointed out by Dr. Bell, there are numerous medical records and reports that are simply attached as exhibits to theaffidavit that are not properly before the court. Without going into great detail, the records and reports of Mr. Ypma, Dr. Baker, Dr.Myers, and Dr. Skubiak are examples of the type of inadmissible evidence put forward by Mr. Dawson.

The courts have held onnumerous occasions that purported expert evidence cannot be admitted through the back door, for example, by simply attaching reportsto affidavits or including them as part of other admissible expert reports, rather than complying with the Rules governing experts. I willreturn to what this means for the purposes of Mr. Dawson's present application shortly. The

Summary Trial Rule [15]

Summary trials are governed by Rule 9-7 of the Supreme Court Civil Rules. Subrule 9-7(11) and (15) provide as follows:

(11) On an application heard before or at the same time as the hearing of a

summary trial application, the court may (

a) adjourn the

summary trial application, or (

b) dismiss the

summary trial application on the ground that (

i) the issues raised by the

summary trial application are not suitable for disposition under this rule, or (ii) the

summary trial application will not assist the efficient resolution of the proceeding. …

(15) On the hearing of a

summary trial application, the court may (

a) grant judgment in favour of any party, either on an issue or generally, unless (

i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide theissues of fact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application … [16] The principles governing

summary trials in B.C. are well known and date back to the still leading case of Inspiration

Management Ltd. v. McDermid St. Lawrence Ltd. (1989), (BC CA), 36 B.C.L.R. (2d) 202 at 211. More recently,Madam Justice Griffin of this court summarized the key principles emanating from Inspiration Management in Greater Vancouver WaterDistrict v. Bilfinger Berger AG, 2015 BCSC 485, at paragraph 59 as follows: 1. The intention with the

summary trial rule is to shortcut some of the normal processes involved in a trial in order to expedite theadministration of justice. The rule substitutes other safeguards: a. first, a lengthy notice period for the application; b. second, a chambers judge cannot give judgment unless she can find the facts necessary to decide the issues of fact or law; and c. third, a chambers judge who can decide the issues may decline to give judgment if she thinks it would be unjust to do so … 2.

In determining whether the judge can find the necessary facts, a judge should not decide an issue of fact or law solely on the basisof conflicting affidavits. However, there may be other admissible evidence which will make it possible to find the necessary facts, suchas evidence which corroborates one side’s affidavit and contradicts the other side, or, there may be other procedures which allow thejudge to find the necessary facts, such as cross-examination of the persons who gave the affidavits ... 3.

In deciding whether it would be unjust to decide the issues, the chambers judge can consider amongst other things: a. the amount involved; b. the complexity of the matter, although use of the rule is not limited to simple or straightforward cases; c. its urgency; d. any prejudice likely to arise by reason of delay; e. the cost of a conventional trial in relation to the amount involved; and f. the course of the proceedings … [17] As can be seen from these principles, in order for the court to grant judgment on a

summary trial application, the judge must besatisfied that he or she can find the necessary facts and it must be just in all the circumstances to determine the summarily. Discussion [18] Having reviewed the extensive record before me and having heard the submissions of the parties, I have come to the conclusionthat this matter is not suitable for determination by way of

summary trial. I base this conclusion on the following factors. [19] First, as noted, there is a great deal of inadmissible evidence included in the record. Given the vast amounts of material, it issimply not possible to separate the inadmissible evidence from the admissible evidence in order to make clear findings of fact.Accordingly, I find that I am not able to make the necessary findings of fact within the meaning of Rule 9-7(15)(a)(i). [20] Second, there is conflicting expert medical evidence as to whether Dr. Bell met the applicable standard of care. While conflictsin the evidence do not automatically disqualify a matter from determination by way of a

summary trial, in this case, the conflict goes tothe heart of Mr. Dawson's claims and, as such, it is essential, in my view, that the opinions of the experts be tested by cross-examinationat a trial. [21] Third, the central issue of whether Dr. Bell met the required standard of care will turn in large part on the interactions betweenMr. Dawson and Dr. Bell, including what Mr. Dawson told Dr. Bell about his various conditions and what Dr. Bell understood about thestate of Mr. Dawson's health. There are numerous conflicts in the evidence of Mr. Dawson and Dr. Bell on these issues that cannot beresolved on a

summary trial, but require that each party's evidence be tested in court through examination and cross-examination. [22] Fourth, Mr. Dawson, in his evidence and submissions, confined himself to addressing the issue of liability and did not addressdamages. This despite there being no order severing liability and damages. This is not a case, in any event, where severance likely wouldhave been ordered given that the evidence going to both issues is inextricably intertwined.

In the circumstances, it would beinappropriate for the court to make findings of fact on liability which would inevitably impact on the damages analysis without theparties having properly addressed the damages issues. [23] For these reasons, I dismiss Mr. Dawson's application for judgment. [24] Dr. Bell submits that it is open to the court to dismiss Mr. Dawson's claim in its entirety on the basis that he has failed to meethis burden of proving the essential elements of the claim. [25] In my view, however, it would not be appropriate to do so. In his

summary trial materials, Mr. Dawson has raised serious issuesabout the standard and quality of the medical care that he received from Dr. Bell. While I think that Mr. Dawson will be challenged attrial to prove his case using proper admissible evidence, particularly on the issue of causation, he should nonetheless be permitted tobring his case forward. That is the very purpose of a trial, to test sometimes difficult and novel claims. I would not, therefore, dismiss hisclaim at this preliminary stage. Balance of Relief in Mr. Dawson’s Application

[ 26 ] I turn now to the balance of relief sought in Mr. Dawson's notice of application. The first point to be addressed is the limitation issue. As noted, Dr. Bell submits that Mr. Dawson's claims are statute-barred. He notes that Mr. Dawson's complaints about the medical care concerning his gastrointestinal issues dates back to 2004. With respect to Mr. Dawson's mental health issues, his complaints centre around his treatment in 2007. Mr. Dawson, however, did not commence this action until November 25, 2010, meaning that Mr.

Dawson must establish that the applicable two-year limitation period under the Limitation Act did not commence to run or was postponed to at least November 25, 2008. [ 27 ] Mr. Dawson submits that his claims are not, in fact, statute-barred.

As I understand his position, he relies on s. 6(4) of the former Limitation Act , which applies to this action, and which provides as follows (paraphrasing somewhat): Time does not begin to run against a plaintiff … until the identity of the … defendant … is known to the plaintiff … and those facts within the plaintiff's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that: (

a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (

b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action. [ 28 ] Mr. Dawson relies on the reference in s. 6(4)(

b) to the person's own circumstances and submits that his circumstances in the period leading up to and following the assault on his wife in November of 2007 were such that he was not capable of bringing an action. He notes that he was incarcerated for a period of time, that he continued to be under considerable emotional and psychological stress, and that he lacked the resources to properly consider and mount a claim, all of which were related to the inadequate care provided by Dr. Bell. [ 29 ] In many cases, it is common practice to determine limitation issues on a preliminary basis by way of a

summary trial, particularly where the facts going to that issue can be clearly established. This, however, is not one of those cases. Much of the evidence relied on by Mr. Dawson in support of his claim that the commencement of the limitation period was postponed suffers from the same flaws that I have referred to with respect to the evidence going to the merits of his claim. As such, I cannot on the record before me find the facts that would support a postponement of the limitation period. [ 30 ] However, given the nature of the circumstances relied on by Mr.

Dawson in support of his position on the limitation issue, I think it only fair that he be permitted to make his case at trial. [ 31 ] I would note, as well, that much of the evidence on which he seeks to rely for this purpose is also evidence that goes to the standard-of-care issue and to the damages issue. In other words, evidence about Mr. Dawson's state of mind and the impacts on him of his mental health condition will be relevant to all aspects of the claim presented at trial and, as such, this is not a case where it is appropriate to hive off the limitation issue.

It is also useful to note that while the defendant sought dismissal of Mr. Dawson's claim in its

summary trial application, it decided not to proceed with that application, but now simply raises the limitation issue in response to Mr. Dawson's

summary trial application. [ 32 ] In the circumstances, I decline to rule on the limitation issue on this application. However, I would caution Mr. Dawson to take particular note of my conclusion that I am unable on the evidence presented here to find a postponement of the limitation period. I think that this issue will present a significant hurdle for Mr. Dawson to overcome at trial, particularly, although not necessarily limited to, the gastrointestinal claim. [ 33 ] The next two points of Mr. Dawson's notice of application deal with the defendant's expert reports. Again, Mr.

Dawson seeks a finding that the reports are inadmissible and that the factual assumptions presented to the defendant's experts are null. [ 34 ] Dealing with the second point first, as I understand his position, Mr. Dawson is of the view that many of the facts and assumptions presented to the defendant's experts are inaccurate. [ 35 ] With respect, I think that Mr. Dawson's position represents a misapprehension of the purpose of the facts and assumptions presented to expert witnesses.

They are presented in order to give the expert a factual foundation on which to base his or her opinion given that the expert has no personal knowledge of the underlying facts. However, the fact that they are presented as facts and assumptions does not mean that the court accepts them as proven facts. The facts are what are proven at trial by way of admissible evidence and are not merely what counsel might put to an expert.

Indeed, one of the pitfalls in presenting lengthy and detailed facts and assumptions to an expert is that if those facts are then not proven at trial, the weight or force of the expert opinion may be diminished. [ 36 ] It will be open to Mr. Dawson to argue at trial that some or many of the facts and assumptions presented to the defendant’s experts were not, in fact, proven and that, accordingly, little or no weight should be attached to their expert reports. However, there is no basis at this stage for me to declare the facts and assumptions null and I, therefore, dismiss this aspect of Mr.

Dawson's application. [ 37 ] In terms of the application for an order that the defendant's reports are inadmissible, again, as I understand Mr. Dawson's main complaint, it is that the experts are not impartial. He submits that, based on a review of Dr. Boronowski's CV , it is apparent that he is a longstanding colleague of Dr. Bell. He notes with respect to Dr. Goumeniouk that he lists in his CV a position of consultant to the CMPA, the medical insurance provider. [ 38 ] In my view, these are matters properly addressed on a voir dire at trial into the expert's qualifications. Mr.

Dawson has not presented anything on this application that would cause me to find the defendant's expert reports inadmissible. I would, therefore, dismiss this aspect of Mr. Dawson's application, but without prejudice to his right to raise his objections at trial. [ 39 ] The last order sought by Mr. Dawson is that Dr. Bell be required to respond properly to Mr. Dawson's notice to admit and to

respond properly on any further examinations for discovery. However, apart from a vague description of what he says is Dr. Bell's failure to answer questions put to him, Mr. Dawson has not put before the court any specific examples of questions or requests for admissions that he says have not been properly answered. [ 40 ] Each party has an obligation under the Rules of Court to properly engage in the processes contemplated by those Rules, including responding to questions properly put to them on discovery or through other mechanisms like interrogatories or notices to admit.

Similarly, parties have the right to object to questions they consider improper and there are processes under the Rules for resolving those disputes. Absent some evidence to indicate specific failures on the part of Dr. Bell to comply with the Rules of Court, there is no basis for me to make the order sought and I would dismiss this aspect of Mr. Dawson's application. [ 41 ] I think that deals with all the items addressed in Mr. Dawson's application. [ 42 ] In terms of costs, I would order that costs of this application be in the cause. “Skolrood J.”