r v. McManus, 2017 ONSC 3044

CITATION : Rayner v. McManus, 2017 ONSC 3044 COURT FILE NO.: 38/16 DATE: 2017-05-30 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HEENEY R.S.J., AITKEN, and FREGEAU JJ. B E T W E E N: ) ) MICHAEL RAYNER ) ) Ms. M. Cook, for Plaintiff/Respondent in Appeal ) ) Plaintiff/Respondent in Appeal ) ) ) - and - ) ) KERRY MCMANUS ) ) ) Defendant ) ) - and - ) ) DR. MARILYN MARSHALL ) ) Mr. P.E. Veel and Mr. S. Johansen for the Appellant ) ) Appellant ) ) Heard at London: April 5, 2017 DECISION J.S. Fregeau J.: [ 1 ] Dr. Marilyn Marshall (”Dr. Marshall”) appeals from the decision of Justice I.F.

Leach dated January 25, 2016, with reasons reported at 2016 ONSC 422 , in which he granted the Plaintiff’s motion for leave to amend the Statement of Claim to add Dr. Marshall as a party to the action and to add a claim in negligence against Dr. Marshall. [ 2 ] For the reasons that follow, I would grant the appeal, and set aside that portion of the decision of the motion judge which permitted the amendment of the Statement of Claim by adding a claim in negligence against Dr. Marshall. The order of the motion judge which added Dr.

Marshall as a defendant, and permitted the amendment of the Statement of Claim to claim damages from Dr. Marshall for intentional infliction of mental suffering, has not been appealed and will remain in force. Background Facts [ 3 ] In October 2011, the Plaintiff, Mr. Michael Rayner (“Mr. Rayner”) issued a Statement of Claim alleging that the defendant, Ms. Kerry McManus (“Ms. McManus”) had made defamatory remarks about him. [ 4 ] During the examination for discovery of Ms. McManus, an email exchange between Ms. McManus and Dr. Marshall, a practicing psychiatrist, was discussed. Within this email exchange, Ms.

McManus described unusual activity towards her by an unidentified male. Ms. McManus advised Dr. Marshall that her “understanding of (the unidentified male’

s) diagnosis is that he has avoidant personality disorder.” Ms. McManus asked Dr. Marshall whether having a police officer speak to this individual “would help or hinder the situation.”

[5] Dr. Marshall replied, advising Ms. McManus that “we are dealing with a sick, and possibly crazy person” who “may bepsychotic (delusional and or hallucinating) or have a paranoid or psychopathic personality.” Dr. Marshall told Ms. McManus that itwould be best to involve the police. [6] Subsequent to Ms. McManus’ examination, the Plaintiff sought leave to amend his Statement of Claim to add Dr. Marshallas a defendant in the action and to add negligence as a cause of action against Dr. Marshall. In the Amended Statement of Claim, it isalleged, among other things, that “Dr.

Marshall owed a duty of care to the Plaintiff when she elected to present a Medical Diagnosis ofthe specific if unidentified individual to Ms. McManus.” [7] The Plaintiff’s motion to amend the Statement of Claim was opposed by Dr. Marshall on the basis that the AmendedStatement of Claim did not disclose a tenable cause of action against Dr. Marshall in negligence. More particularly, Dr. Marshallsubmitted that the allegations of fact pleaded in support of the claim in negligence were incapable of establishing that a duty of care wasowed by Dr.

Marshall to the Plaintiff, and that there were policy considerations which should negate any prima facie duty of care whichmight otherwise exist in such circumstances. Jurisdiction [8] An appeal of an interlocutory order of a judge of the Superior Court of Justice lies to the Divisional Court, with leave,pursuant to s. 19(1)(

b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Leave to appeal was granted by Raikes J. on August 24, 2016. The Issue on the Appeal [9] Did the motion judge err in allowing the Plaintiff to amend the Statement of Claim to assert a negligence claim against Dr.Marshall? Standard of Review [10] The underlying issue of whether the Amended Statement of Claim discloses a reasonable cause of action is a question of lawreviewable on a correctness standard.

The Decision of the Motion Judge [11] The motion judge recognized that a court has a residual discretion to deny amendments to pleadings if such amendments donot disclose a reasonable or tenable cause of action. He reviewed the general principles, including the assumption that the facts pleadedin the proposed amendment are true and that the novelty of a cause of action is not a bar to the claim proceeding to trial.

The motionjudge found that the “courts must adopt a generous approach and err on the side of permitting a novel but arguable claim to proceed totrial.” [12] The motion judge expressly stated that he was reluctant to grant leave allowing the “negligence claim” amendments,recognizing the requirement to scrutinize a newly asserted duty of care at the pleading stage where the category of duty alleged had notbeen previously litigated.

He also recognized that a novel claim for negligence should be struck at the pleadings stage if it is clearlyunsustainable. [13] The motion judge found that the proposed pleading was “sparse when it comes to allegations of fact relied upon to support arelationship between Mr. Rayner and Dr. Marshall sufficiently proximate to create a duty of care.” Further, he found “perhaps mostimportantly…there is much to be said for the…policy concerns identified by counsel for Dr.

Marshall, that appear likely to flow fromthe creation of the alleged duty of care.” [14] Nevertheless, the motion judge held that the “novelty of a cause of action is not a concern, and our courts instead have beendirected by appellate authority to adopt a generous approach and err on the side of permitting a novel but arguable claim to proceed totrial.” He allowed the requested amendments, concluding that the categories of negligence in which a duty of care is owed are not closedand that a novel claim of negligence should be struck at the pleadings stage only where it is “clearly unsustainable.” Discussion [15] The general principles applicable to amending pleadings are well established and not in dispute on this appeal.

Leave toamend a pleading will not be granted where the proposed amendment fails to disclose a reasonable cause of action. Jourdain v. Ontario(2008), (ON SC), 91 O.R. (3d) 506 (Sup. Ct.), para. 12. [16] In considering whether a proposed claim discloses a tenable cause of action, a court is to apply the same test as under Rule21.01(1)(

b) on a motion to strike a claim. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true,that the pleading discloses no reasonable cause of action or if the claim has no reasonable prospect of success. R. v. Imperial TobaccoLtd., 2011 SCC 42, at para. 17. [17] It is incumbent on a Plaintiff to clearly plead the facts upon which he or she relies in making a claim. The facts pleaded arethe basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properlyconducted. R. v.

Imperial Tobacco Ltd., at para. 22. [18] For the Plaintiff to have pleaded a tenable cause of action in negligence against Dr. McManus, he was required to pleadsufficient facts to establish that Dr. Marshall owed him a duty of care. The first consideration is whether the duty asserted in theproposed amendments has already been recognized in law. In that regard, it is not in dispute that the duty of care asserted in this case –that of a physician to an unidentified, non-patient – has not previously been recognized in law. [19] In order to establish that Dr.

Marshall owed a duty of care to the Plaintiff, the Plaintiff was required to show:

1. That there was a sufficiently close relationship of proximity between Dr. Marshall and the Plaintiff to justify the imposition of a duty of care. If so, a prima facie duty of care arises; and, 2. If a prima facie duty of care is established, that there are no policy considerations which would negate or limit the prima facie duty of care: Cooper v. Hobart , 2001 SCC 79 , at para. 30 . [ 20 ] The Amended Statement of Claim does not allege that Dr. Marshall knew the Plaintiff. To the contrary, the Amended Statement of Claim alleges that Ms. McManus solicited Dr.

Marshall’s opinion about an unidentified person’s mental state. [ 21 ] The motion judge reviewed the factual allegations in the Amended Statement of Claim and found that “the proposed pleading is sparse when it comes to allegations of fact relied upon to support a relationship between Mr. Rayner and Dr. Marshall sufficiently proximate to create a duty of care”. He then concluded that these facts make the Plaintiff “capable of being identified”, and that this novel claim for negligence was not clearly unsustainable such that it should be struck at the pleadings stage.

In my opinion, the motion judge erred in this finding. [ 22 ] The issue of whether there is a sufficient relationship of proximity to ground a prima facie duty of care was discussed by the Supreme Court in Cooper v. Hobart , at paragraph 34 : Defining the relationship may involve looking at expectations, representations, reliance and the property or other interests involved.

Essentially, these are factors that allow us to evaluate the closeness of the relationship between the Plaintiff and the defendant and to determine whether it is just and fair having regard to the relationship to impose a duty of care in law upon the defendant. [ 23 ] A physician/patient relationship, which in virtually all cases will give rise to a relationship of sufficient proximity so as to support the finding of a duty of care, was not alleged as between the Plaintiff and Dr.

Marshall in the Amended Statement of Claim, nor were any material facts pleaded that could be found to establish such a relationship. [ 24 ] It is not in dispute that there are no cases where a common law duty of care has been found to be owed by a physician to an unidentified third party in circumstances similar to those in this case. Further, the factors to be considered by the court in evaluating the closeness of a relationship as set out by the Supreme Court in Cooper v. Hobart are completely absent in the facts alleged in the Amended Statement of Claim: 1.

Expectations – the Amended Statement of Claim did not plead any facts alleging that the Plaintiff had any expectation as to Dr. Marshall’s conduct, which is not surprising since they had no prior relationship; 2. Representations – the Amended Statement of Claim did not allege that Dr. Marshall made any representations to the Plaintiff; 3. Reliance – the Amended Statement of Claim did not allege that the Plaintiff relied in any way on Dr. Marshall; and 4.

Property Interests – No property interests were alleged to be in issue. [ 25 ] In my opinion, it is plain and obvious that a prima facie duty of care did not exist between Dr. Marshall and the Plaintiff. I accept the motion judge’s assertion that the novelty of a cause of action is not determinative and that a “generous approach” is appropriate at the pleading stage.

However, in this age of scarce judicial resources and systemic delay within the judicial system, it is not appropriate to place diminished emphasis on the required critical analysis and allow an untenable claim to proceed. [ 26 ] Assuming that a prima facie duty of care had been established, it was incumbent on the motion judge to next consider if there are residual policy considerations that may negative the imposition of a duty of care in this case.

The motion judge recognized the need to consider “policy concerns…that appear likely to flow from the creation of the alleged duty of care.” However, in my view he erred by failing to conduct any analysis of the policy concerns, or explain why such policy concerns did not negate a prima facie duty of care in the circumstances. [ 27 ] The Supreme Court explained the nature of this analysis in Cooper v.

Hobart , at paragraph 37 : Residual policy considerations… are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized? [ 28 ] The Court in Cooper v.

Hobart , at paragraph 39 , specifically addressed the second stage of the test where a duty of care is being alleged in a novel situation, as in the case at bar: However, where a duty of care in a novel situation is alleged, as here, we believe it is necessary to consider both steps of the Anns test as discussed above.

This ensures that before a duty of care is imposed in a new situation, not only are foreseeablity and relational proximity present, but there are no broader considerations that would make imposition of a duty of care unwise. [ 29 ] In my opinion, there are broad policy concerns present in the circumstances of this case that negate any prima facie duty of care. [ 30 ] First, imposing a duty of care on a physician in these circumstances gives rise to the possibility of conflicting duties. Ms. McManus approached Dr. Marshall, a psychiatrist, because Ms.

McManus was concerned about potentially dangerous behaviour being directed toward her by an unidentified third party. Ms. McManus sought the advice of Dr. Marshall. It is not alleged by either party that a physician/patient relationship existed between them. However, given that Dr. Marshall was providing professional advice to Ms. McManus with the expectation that she would rely upon it, it is reasonable to assume that Dr. Marshall owed a duty of care to Ms. McManus in these circumstances. If a physician in these circumstances is also potentially liable to the third party in respect of whom the

advice is sought and given, the physician’s duties are potentially in conflict. [ 31 ] Second, imposing a duty of care on Dr. Marshall in these circumstances would dissuade physicians from providing socially important advice or services by increasing the scope of potential liability facing physicians who do so. If a third party poses a risk of harm to a person, it is socially desirable that physicians, aided by their professional knowledge and experience, be able to provide full and frank advice without fear of liability.

If a duty of care toward an unidentified third party were imposed on the physician in these circumstances, the potential of liability would deter physicians from giving proper advice. [ 32 ] For example, suppose that a battered spouse sought advice from a physician concerning the potential risks posed by her abusive husband. To impose the duty of care advocated by the Plaintiff, the physician would have to decline to offer an opinion until the husband had been contacted, he had given his consent, and he had been fully evaluated as to whether he did, indeed, pose a danger to his wife.

To borrow the words of Feldman J.A. in Paxton v. Ramji , 2008 ONCA 697 , at paragraph 68 , “[t]hese conflicting duties could well have an undesirable chilling effect on doctors.” [ 33 ] Furthermore, imposing a duty of care carries with it the potential for indeterminate liability. In Whiteman v. Iamkhong , 2013 ONSC 2175 , the Court found that no prima facie duty of care was owed to the Plaintiff by a doctor who conducted an Immigration Medical Examination on the wife and former sexual partner of the Plaintiff. The wife was not a patient of the doctor. She was found to be HIV positive.

The Court went on to find, at paragraph 127, that even if a prima facie duty of care had been found, there were policy reasons to negate such a duty: Firstly, there is significant potential for indeterminate liability if a duty of care were found to be owing by a doctor to third parties who the doctor has never met or treated. [ 34 ] The facts alleged in the Amended Statement of Claim fail to meet the criteria for establishing that Dr. Marshall owed a duty of care to the Plaintiff. The proposed claim in negligence against Dr. Marshall is untenable in law.

With respect, I conclude that the motion judge erred in allowing those amendments to proceed. Disposition [ 35 ] I would allow the appeal, set aside the January 25, 2016 decision of the motion judge and deny the Plaintiff leave to amend the Statement of Claim by adding a claim in negligence against Dr. Marshall. [ 36 ] The appellant shall have her costs of this appeal, fixed at $5,000 as agreed upon by the parties. J. S. Fregeau J. I agree: Heeney R.S.J. I agree: Aitken J. Released : May 30, 2017 CITATION : Rayner v. McManus, 2017 ONSC 3044 COURT FILE NO.: 38/16 DATE: 2017-05-30

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HEENEY R.S.J., AITKEN and FREGEAU JJ. BETWEEN: MICHAEL RAYNER Plaintiff/Respondent in Appeal - and - KERRY MCMANUS Defendant - and – DR. MARILYN MARSHALL Appellant DECISION J.S. FREGEAU J. Released: May 30, 2017