PATIENT X PLAINTIFF - v. -, 2023 SKKB 69

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 69 Date: 202 3 04 03 Docket: QBG-RG-00344-2019 Judicial Centre : Regina BETWEEN: PATIENT X PLAINTIFF - and - DR. SYLVESTER UKABAM and DR. S. UKABAM MEDICAL PROFESSIONAL CORPORATION DEFENDANTS PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the plaintiff herein shall not be published in any document or broadcast or transmitted in any way. Counsel: Virgil A. Thomson for the plaintiff Allan J. Stonehouse for the defendants FIAT BERGBUSCH J.

April 3, 2023 introduction [ 1 ] The plaintiff, Patient X, has applied for an order requiring the defendants to attend for questioning, with such questioning to be scheduled for a date between April 1, 2023 and May 31, 2023. She relies on Rule 5-23(1)(

c) of The Queen’s Bench Rules . [ 2 ] The defendants, Dr. Sylvester Ukabam and Dr. S. Ukabam Medical Professional Corporation (in these reasons, I will refer to them together as the [defendant]), oppose the order because Dr. Ukabam is presently undergoing treatment for cancer. On the advice of his oncologist, Dr. Ukabam asserts that he is not able to participate in questioning until the course of treatment and a three-month recovery period have elapsed. Assuming the treatments and recovery go well, the defendant is prepared to attend

questioning by the Fall of 2023. [ 3 ] The medical evidence persuades me that Dr. Ukabam should not be compelled to attend questioning while he is completing chemotherapy and for a reasonable period of recovery thereafter. The application is dismissed, without prejudice to the plaintiff’s right to reapply if the parties cannot agree on the timing for questioning, which should begin as soon as Dr. Ukabam’s health allows. Background [ 4 ] To understand the context of the present application, it is necessary to refer briefly to the history of a criminal proceeding involving Dr. Ukabam. In November 2018, Dr.

Ukabam was charged with seven counts of sexual assault involving five complainants, including the plaintiff. The preliminary inquiry took place from January 13 to 15, 2020. Dr. Ukabam was tried by judge alone between January 10 and February 3, 2022. During the trial, Dr. Ukabam testified in chief in his own defence and was cross- examined by the Crown prosecutor. Dr. Ukabam was acquitted of the seven charges in a verdict rendered on May 18, 2022: R v Ukabam , 2022 SKQB 128 . The Crown appealed.

The appeal hearing has been tentatively scheduled for June 2023. [ 5 ] The plaintiff commenced the present action against the defendant on April 4, 2019, seeking damages for battery arising out of an alleged sexual assault. At the plaintiff’s request, this court made an order on April 4, 2019, permitting her to be identified by the pseudonym “Patient X” and banning media outlets from publishing her name. According to the statement of claim, at all material times Dr. Ukabam was a gastroenterologist and a hepatologist practicing out of a private clinic in Regina, Saskatchewan. The claim alleges that Dr.

Ukabam committed the wrongful acts during an appointment where the plaintiff attended at his clinic to review the results of some recent medical tests. [ 6 ] Mandatory mediation took place on July 10, 2019. On August 26, 2019, the plaintiff served her affidavit of documents on the defendant. In September and November 2019, the plaintiff’s counsel contacted the defendant’s counsel for the purpose of proposing questioning dates. Dr. Ukabam’s lawyer responded that she would be prepared to

schedule dates after completion of document production. On January 31, 2020, Dr. Ukabam served his affidavit of documents. [ 7 ] No further steps occurred in this proceeding for some time. Counsel for the plaintiff wrote to Dr. Ukabam’s lawyer on February 5, 2021, noting that they had not communicated in over a year and proposing that questioning be delayed until after a verdict in the criminal proceeding. Dr. Ukabam’s lawyer agreed. [ 8 ] Following the verdict on the criminal charges, the plaintiff directed her lawyer to attempt to

schedule questioning in the civil proceeding. On June 29, 2022, counsel proposed dates in October 2022; Dr. Ukabam’s lawyer advised that Dr. Ukabam would need more time before replying to the request. [ 9 ] A few weeks later, responding to a proposal for questioning dates in December, the defendant’s lawyer advised that Dr. Ukabam would undergo abdominal surgery in December 2022 and questioning would have to be postponed until the latter part of January 2023. (Dr.

Ukabam’s surgery was subsequently rescheduled to an earlier date because cancer was suspected.) [ 10 ] On August 5, 2022, on application by the plaintiff’s lawyer, the local registrar’s office issued an appointment for questioning, compelling the defendant to attend at the offices of Royal Reporting Services Ltd. on January 3 to 6, 2023. On August 25, 2022, counsel for both parties agreed to alternate questioning dates, January 30 to February 2, 2023. As a result, the plaintiff’s lawyer filed an amended appointment on August 26, 2022.

The evidence does not disclose whether the plaintiff served conduct money on the defendant at any time, but nothing will turn on this. [ 11 ] In September 2022, Dr. Ukabam underwent an exploratory laparoscopy, which revealed that a gallbladder mass was most likely cancerous. After a further procedure on October 14, 2022, Dr. Ukabam was diagnosed with locally advanced gallbladder adenocarcinoma, stage IIIA, which had also spread to his liver. [ 12 ] On November 14, 2022, Dr. Ukabam’s counsel advised the plaintiff’s lawyer that, following his surgery, Dr.

Ukabam had been diagnosed with metastatic cancer of the gall bladder and would require treatment, including chemotherapy. She further advised that Dr. Ukabam would not be able to proceed with questioning as scheduled and committed to follow up once she had more information. The plaintiff’s counsel communicated his client’s frustration at the delay and requested a letter from Dr. Ukabam’s physician concerning his diagnosis, treatment, and inability to proceed with questioning on January 30 and 31, 2023. [ 13 ] On December 14. 2022, Dr. Ukabam’s lawyer forwarded a letter from Dr.

Zarkovic, a medical oncologist/hematologist with the Allan Blair Cancer Centre, who summarized Dr. Ukabam’s diagnosis and treatment as follows: Mr. Ukabam was recently diagnosed with a locally advanced gallbladder adenocarcinoma and underwent a radical resection. In spite of this, he remains at very high risk of recurrence and was started 3 weeks ago on a course of postoperative chemotherapy for 6 months, with a goal to reduce the risk of recurrence.

Since the chemotherapy affects both the physical stamina and the mental function, I do not advise for him to undergo further litigation while on the chemotherapy and for additional 3 months after its end which is the usual recovery time . Furthermore, any stress would be detrimental for a patient battling the cancer. [Emphasis added] In light of this opinion, Dr. Ukabam’s counsel suggested delaying questioning until the Fall of 2023. [ 14 ] On January 19, 2023, Dr. Ukabam began the fourth of eight cycles of chemotherapy.

He has noted several side effects, including waking up at 2:00 a.m. and being unable to return to sleep. His oncologist informed him that chronic fatigue and loss of concentration are common symptoms as progressive chemotherapy becomes more toxic to the body. Dr. Ukabam attests that he has found the surgery and cancer treatment, particularly the chemotherapy, to have altered his functioning significantly.

[ 15 ] The plaintiff has now applied for an order requiring the defendant to attend for questioning on a date to be scheduled between April 1 and May 31, 2023. She expresses concern that her claim will be prejudiced if she is unable to proceed with questioning and, in the meantime, Dr. Ukabam’s health deteriorates or he dies. Dr. Ukabam responds that, if he is required to participate in questioning while undergoing treatment, he will be at a disadvantage as his cognitive abilities and memory will be impaired.

He also believes that the additional stress will be detrimental to his recovery. [ 16 ] The plaintiff has proposed to accommodate Dr. Ukabam’s condition by permitting him to attend his questioning virtually rather than in person. Discussion [ 17 ] The objectives of questioning in civil proceedings were concisely summarized by Gerein J. in Chatfield v Bell Mobility Inc. , 2013 SKQB 372 at para 2 , 429 Sask R 57 : [2] It is well to remember the two fold purpose of the examination for discovery.

First, it enables the litigants, and their counsel, to assess the validity of the claim and secondly, to secure relevant admissions. See Pelletier v. Uteck , 2013 SKQB 29 , 412 Sask.R. 150 and Branco v. American Home Assurance Co. , 2013 SKQB 98 , 416 Sask.R. 77 . If these two goals are to be realized, it follows that each litigant, including each defendant in this case, must submit to an examination. This is stipulated in Queen’s Bench Rule 5-18(1)… The starting point, then, is that Dr.

Ukabam is obliged to submit to questioning as part of the civil litigation process. [ 18 ] For the purposes of the present application, the applicable rules regarding the questioning process are Rules 5- 18, 5-22, and 5-23 of The Queen’s Bench Rules . Rule 5-18 is the rule of general application that identifies who is liable to be questioned in a civil proceeding: 5-18(1) Subject to

Part 15, any party to an action or issue may: (

a) without order, be questioned before the trial about information relevant to any matter in issue by any party adverse in interest; and (

b) be compelled to attend and testify in the same manner, on the same terms with respect to conduct money and otherwise and subject to the same rules of examination as a witness except as otherwise provided in this Division.

(2) A person for whose immediate benefit an action is brought or defended must be regarded as a party for the purpose of questioning.

(3) If an action is brought by an assignee of a chose in action, the assignor may, without order, be questioned. [ 19 ] Rule 5-22 specifies when questioning should normally occur: 5-22(1) Unless the parties otherwise agree, or the Court in exceptional circumstances otherwise orders, a party may not question a party or person pursuant to this Division unless the questioning party has served an affidavit of documents on the party adverse in interest.

(2) Subject to subrule (1), the questioning of a person is to take place as follows: (

a) in the case of questioning by the plaintiff, at any time after: (

i) the statement of defence of the party to be questioned has been served on the plaintiff; or (ii) the time for serving the statement of defence has expired; (

b) in the case of questioning by a defendant, at any time after the defendant has served a statement of defence. But for Dr. Ukabam’s illness and treatment, the plaintiff would clearly be entitled to proceed with his questioning at this time. [ 20 ] Rule 5-23 prescribes where questioning is to occur and establishes several procedures for arranging a party’s attendance for questioning – by agreement, by service of an appointment, or by court order. The latter two methods require payment of conduct money. The party to be questioned may also be served with a subpoena and conduct money: 5-23(1) If a party is entitled to question a person who resides in Saskatchewan: (

a) the questioning may be held by consent before an official court reporter; (

b) the party may procure an appointment for questioning from the local registrar of the judicial centre at which the proceeding is commenced or the judicial centre to which the proceeding has been transferred; or (

c) the Court may order the questioning to be held before any person and at any place.

(1.1) The appointment for questioning must: (

a) be in Form 5-23; and (

b) fix the time and place for the questioning.

(2) A party liable to questioning, or a person who is an officer or employee of a corporation and liable to questioning, who resides in Saskatchewan shall attend for questioning:

(

a) in accordance with the consent pursuant to clause (1)(a); or (

b) if: (

i) not less than 10 days before the day appointed for the questioning, service of a copy of the appointment for questioning pursuant to clause (1)(

b) or of the order for questioning pursuant to clause (1)(c), as the case may be, has been made on the party’s lawyer, if any, or on the corporation’s lawyer, as the case may be; and (ii) proper conduct money has been paid or tendered to the lawyer.

(3) The lawyer mentioned in clause (2)(

b) shall: (

a) immediately communicate the consent, appointment or order to the person required to attend for questioning; and (

b) not apply the conduct money mentioned in subclause (2)(b)(ii) towards any debt due to the lawyer, or any other person, or pay the money other than to the person required to attend for questioning for his or her conduct money.

(4) The conduct money mentioned in subclause (2)(b)(ii) is not subject to attachment, garnishment, seizure or other similar legal process.

(5) Notwithstanding anything in this rule, the person to be questioned may be served personally with a subpoena requiring his or her attendance at the time and place consented to, appointed or ordered for the questioning.

(6) If a subpoena is served pursuant to subrule (5): (

a) the conduct money mentioned in subclause (2)(b)(ii) must be paid to the person required to attend for questioning at the time of service; and (

b) a copy of the subpoena must be served on the person’s lawyer, if any, or on the lawyer of the corporation of which the person to be questioned is or has been an officer or employee, as the case may be, at least 48 hours before the time fixed for the questioning. [Emphasis added] [ 21 ] The usual practice in this province for arranging questioning where parties have counsel is reflected in Rules 5- 23(1)(

a) and (2)(a): opposing lawyers agree on a mutually convenient set of dates and a location to conduct questioning. Prior to the impact of the COVID-19 pandemic, questioning via videoconferencing was unusual, but it has now become commonplace. Even when parties and their counsel meet in the same boardroom, court reporters frequently participate by virtual means. Occasionally, where the parties are unable to agree on questioning dates, the lawyer for one of the parties will issue an appointment and serve it along with conduct money on opposing counsel.

This often prompts further communication between counsel which leads to agreement on the timing of questioning. Applications to court to settle the timing and/or the location of questioning are unusual. [ 22 ] In this case, the parties are at an impasse arising from Dr. Ukabam’s diagnosis with a serious illness and his focus on treatment. The plaintiff is frustrated by further delay and fears that her right to pin down Dr. Ukabam’s version of events and to seek admissions from him might be lost. Dr.

Ukabam resists having to answer questions while he is undergoing treatment that may limit his stamina and sharpness. [ 23 ] As a result of the impasse, the plaintiff seeks an order pursuant to Rule 5-23(1)(

c) of The Queen’s Bench Rules that the questioning is to take place between April 1 and May 31, 2023. In support of this request, the plaintiff has referred to three decisions involving situations where discovery was resisted because of ill-health. [ 24 ] In Sampson v Carpenter Estate , 1992 CarswellBC 1894 (WL) (BCSC) [ Sampson ] , the plaintiff repeatedly failed to attend examinations for discovery on dates ordered by the court. He had been diagnosed with a recurrent malignant melanoma and was likely to survive only six to twelve months. His oncologist’s recommendation was that “every reasonable effort be made to

schedule legal proceedings within the next two or three months when we know that his chances of being in relatively good health are high”: Sampson at 16. Despite missing his own examination for alleged ill-health, Mr. Sampson had attended the examination of one of the defendants for an entire day and given instructions to his counsel. His failure to attend, the court concluded, was not due to ill health but rather arose from his “wilful failure”: Sampson at 29.

Unlike the present case, the plaintiff had flouted several court orders and the medical evidence favoured his immediate oral discovery before his health declined. [ 25 ] In MacRae v Santa , 2003 ONSC 3937, 37 CPC (5th) 342 , the plaintiff had elected to examine the city clerk as the representative of the defendant City of Thunder Bay. The city moved to have an assistant clerk substituted as its representative, citing several grounds including the fact that the clerk was on medical leave. However, no medical evidence had been filed in support of the city’s motion, which was denied for this and other reasons.

At para. 17 the court described the burden on a litigant who seeks to be relieved from discovery for ill health as a “heavy one.” However, that burden can be met with clear medical evidence: see Yakub v Wal- Mart Canada Corp. and Wal-Mart Stores Inc ., 2018 ONSC 7045 at paras 5-7 . [ 26 ] Finally, the plaintiff cites Walsh v New Brunswick , 2008 NBQB 178 , 65 CPC (6th) 155 [ Walsh ], a case in which the plaintiff was suffering from terminal cancer and opposed further oral discovery, proposing instead to fulfil his duty through written answers to questions.

The judge noted at para. 10 that credibility of all witnesses would be a significant issue in the litigation and the defendants’ right to complete the plaintiff’s discovery should not be lightly interfered with. Defence counsel had undertaken to be respectful of the plaintiff’s condition and agree to any breaks or reasonable accommodations for his health.

Despite the plaintiff’s serious health condition and the stress that oral discovery could cause him, the judge concluded that the defendants should be allowed to complete their examination. [ 27 ] Walsh presents the most similar fact pattern to the present circumstance. The parties’ credibility will be a central

issue at trial. The plaintiff’s counsel has also offered to accommodate the defendant’s health condition, in this case by remotequestioning. However, the differences are significant. Dr. Ukabam is not asking to provide written responses to questions and is preparedto be questioned in time. Mr. Walsh’s diagnosis was terminal cancer, while the medical evidence before the court is that Dr. Ukabam’scondition is serious but treatable.

Any conclusions beyond that would be speculative. [28] None of the authorities cited by the plaintiff addresses a situation where one party seeks only to delay oraldiscoveries for ill-health, not to be relieved altogether from this obligation. [29] The defendant likens the present circumstances to a request for an adjournment and avers that the threshold forgranting an adjournment on medical grounds is low. He submits that granting an adjournment is a matter of discretion, citing Grosz vGuo, 2021 BCCA 135 at para 25, 65 CPC (8th) 1.

The same point was made by Mitchell J. in Yashcheshen v Canada (AttorneyGeneral), 2020 SKQB 188 at para 13, affirmed 2022 SKCA 140: [13] The decision as to whether to grant an adjournment is a discretionary one which must be made fairly, and in accordance with theprinciples of natural justice. See: Berger v Saskatchewan (Financial and Consumer Affairs Authority). 2019 SKCA 89 at paras 17-28,and Prassad v Canada (Minister of Employment and Immigration), (SCC), [1989] 1 SCR 560 at 568-9. Furthermore,there is no presumption that anyone who seeks an adjournment is entitled to it.

See: Wagg v Canada, 2003 FCA 303, at paras 19-20,308 NR 67 [Wagg]. [30] Dr. Ukabam refers to several court decisions involving adjournment requests made due to the unavailability ofCrown witnesses during criminal trials: R v Fahey, 2003 BCCA 548 at para 13 (physician’s note confirmed key police witness was ill),citing Darville v The Queen (1956), (SCC), 116 CCC 113 (SCC); R v Sauve, 2016 SKQB 39 at paras 17-18, affirmed2016 SKCA 85 (trial adjourned so that the Crown could locate and procure the complainant’s attendance). [31] Dr.

Ukabam also relies upon D.D. v H.G., 2019 ONSC 2899, which involved a high conflict trial riddled withdelays caused by a self-represented party, who missed very significant trial time for unverified health complaints. At para 93, the judgestated: 93 … a. Occasional or isolated adjournments for health reasons are almost always granted, no questions asked. b.

Sometimes – and there’s no specific formula – the amount of time being missed may come to be so problematic that medicalcorroboration will be required, even at the risk of appearing to be intrusive and insensitive. … This extract must be read in the context of a very difficult trial, where the judge’s focus was on the balance to be struck between fairnessto one party who fails to attend court, alleging ill-health, and the other who attends and is ready to proceed.

Ultimately, the judgesuspended the non-offending party’s obligation to pay spousal support to discourage further trial delays. [32] However, none of these decisions provides much guidance in the present scenario.

If anything, the bar foradjourning a trial should be higher, given scheduling challenges and scarce judicial resources, than the bar for delaying a step in thediscovery process. [33] Counsel for the defendant has quite fairly referred the court to two decisions where judges were not receptive tounsupported claims of illness by parties resisting discovery: Jazette Enterprises Ltd. v Gould, 2021 BCSC 216 at para 16, and Breberin vSantos, 2012 BCSC 999 at paras 15-16 and 35. Dr. Ukabam’s situation is not comparable. [34] Finally, Dr.

Ukabam’s lawyer submits that, if he were to die before he could be questioned, his testimony at thecriminal trial could “potentially be relied on,” as he was questioned under oath and cross-examined “in relation to the same subjectmatter.” The admissibility of evidence from criminal proceedings in a subsequent civil action has its own complexities (see, e.g., R vCaesar, 2016 ONCA 599 at para 46, 339 CCC (3d) 354; Thomas v Quinlan, 2020 SKCA 82 at paras 55-60, 64 MVR (7th) 175).

Dr.Ukabam’s prior court testimony is not in evidence in this action but – to state the obvious – questioning in a civil proceeding serves avery different purpose than an accused’s testimony in chief and cross-examination at a criminal trial. Here, the plaintiff’s lawyer has nothad the opportunity to question Dr. Ukabam on the subject-matter relevant to her action for battery.

Accordingly, I do not find thisargument convincing. [35] The plaintiff would ordinarily be entitled to question the defendant as of right at this stage in the proceeding.Although this is the plaintiff’s application, I conclude from the authorities I have reviewed that the defendant bears the onus ofpersuading me that his questioning should be postponed.

What is important is to strike a balance that achieves fairness for both parties.The plaintiff has a legitimate interest in prosecuting her claim within a reasonable time which must be weighed against the defendant’sconcern that he will be unable to defend himself with vigour during his treatments and recovery. [36] Further delay should be avoided without good reason. The events at the heart of this action took place in 2017.The plaintiff issued her statement of claim nearly two years later.

After the parties completed document disclosure, they concurred inletting the matter lie while the criminal proceeding was completed. This was perhaps a reasonable strategic choice, but the civil actionhas not progressed in consequence. Memories will have faded in the meantime. The plaintiff’s counsel did make an overture to move thisaction ahead shortly after the verdict was rendered in the criminal trial. Unfortunately, this coincided with Dr. Ukabam’s medicalprocedures and diagnosis. [37] The basis for this application is not that Dr. Ukabam has failed to comply with the appointment to attendquestioning.

After the plaintiff served the amended appointment, counsel corresponded to try to reach an agreement on questioningdates, and Dr. Ukabam’s counsel raised his cancer diagnosis. The parties were deadlocked, not unreasonably, and the plaintiff thensought the court’s assistance.

[ 38 ] The medical evidence filed in support of Dr. Ukabam’s position establishes that he has a serious cancer diagnosis and is undergoing treatment that is physically and mentally taxing and will undermine his ability to concentrate and to answer questions. This course of treatment will take six months and should, according to the information filed with the court, conclude by the end of May 2023. Nothing before the court indicates that Dr.

Ukabam is at imminent risk of dying. [ 39 ] Conducting the questioning by virtual means, as the plaintiff proposes, will not improve the reality that the defendant’s physical stamina and mental acuity have been diminished by his treatment. [ 40 ] I am not prepared to order Dr. Ukabam to attend questioning between April 1 and May 2023. This would occur while he is still in the middle of his chemotherapy treatments, according to the evidence of his oncologist. However, barring something unforeseen, the plaintiff is entitled to proceed with questioning as soon as Dr.

Ukabam has recovered sufficiently from his course of treatment. [ 41 ] I encourage counsel to communicate about setting dates, even tentatively, so that questioning can proceed in the late summer or early fall of 2023. Finally, counsel might consider requesting a case conference pursuant to Rule 4-4 of The Queen’s Bench Rules should they require the court’s assistance to set a timetable. Conclusion [ 42 ] For the foregoing reasons, the application is dismissed, without prejudice to the plaintiff’s ability to reapply for an order if the parties are unable to agree on dates for questioning once Dr.

Ukabam has completed his treatments and recovery period. [ 43 ] Cost will be in the cause. J. P.T. BERGBUSCH