2017 ONSC 534, 2017 ONSC 534

CITATION : Lyons Estate v. Dr. Freeman et al. , 2017 ONSC 534 COURT FILE NO.: 10-48566 DATE: 2017/01/27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: )) Laura Bond, Administrator for the Estate of Robert Lyons Plaintiff – and – Dr. Joel B. Freeman, Dr. Robert John Fairfull- Smith, Dr. Jane Doe, Dr. John Doe, and The Ottawa Hospital – General Campus Defendants )))))))) ) ) ) ) Thomas P. Connolly and Joseph Y. Obagi, for the Plaintiff Heather J. Williams and Sarah Mahoney, for the Defendants, Drs.

Freeman and Fairfull- Smith HEARD AT OTTAWA: January 23, 2017 RULING Motion No. 1 – Objection to Defendants’ Opening Ruling No. 2 – Plaintiff’s Motion and Defendants’ Cross-motion CORTHORN J. Background [ 1 ] The plaintiff’s claim arises in the context of treatment provided to the late Robert Lyons (“Robert”) dating back to the late 1980s. It is alleged that in 1987 Dr. Joel Freeman (“Dr. Freeman”) recommended that Robert undergo complete removal of his colon and rectum. The surgery was performed by Dr. Freeman in January 1987. The allegations against Dr.

Freeman include that he did not completely remove the rectum. It is alleged that during a surgical procedure in 2009, by a surgeon other than Dr. Freeman, a rectal remnant approximately seven (7) centimeters in length was discovered. [ 2 ] It is alleged that Dr. Robert Fairfull-Smith (“Dr. Fairfull-Smith”) performed a surgical procedure in March 1987 and continued to be involved in Robert’s care for a number of years thereafter. The allegations of negligence against Dr. Fairfull-Smith include that he failed to identify the presence of the rectal remnant and to treat same aggressively.

The particulars of the negligence alleged against Dr. Fairfull-Smith are particularized in sub-paragraphs (

a) to (

q) of paragraph 34 of the amended statement of claim. [ 3 ] The statement of claim was issued in May 2010. It is alleged that as a result of the rectal remnant remaining inside Robert’s body for 22 years, he developed cancer. Robert died in December 2014. [ 4 ] The statement of defence on behalf of the defendant physicians is dated September 2012. [1] The defendant physicians each deny that they were negligent.

They also rely on defences of failure to mitigate and a break in the chain of causation. [ 5 ] In February 2015, an order to continue was obtained such that the action is continued in the name of the Estate of Robert Lyons. The litigation administrator is Robert’s widow, Laura Bond (“Laura”). Objection to the Defendants’ Opening [ 6 ] Following the opening on behalf of the defendant physicians (the “Opening”), the plaintiff raised an objection to the inclusion in the Opening of defence theories of which the plaintiff said it had no notice prior to trial.

The defence theories to which the plaintiff objects (the “Defence Theories”) are that, by failing to proceed with one or more surgical treatment options available to him, as of 1993 and in the years thereafter, Robert failed to mitigate his damages and/or there was a break in the chain of causation. [ 7 ] The plaintiff submits that it had notice prior to trial of only one defence theory with respect to failure to mitigate. The plaintiff received notice of that theory in December 2014. Notice was received in the form of an answer to an undertaking given at the examination for discovery of Dr. Freeman.

That examination was conducted in July 2013. [ 8 ] Question 600 on the examination for discovery of Dr. Freeman was, “Is there any theory that you are advancing that [Robert’s] damages should be reduced for something he failed to do in terms of mitigating his loss?” In response, counsel for the defendant physicians (the “Defendants”) characterized the question as “more of a legal question … than a question for Dr. Freeman.” [2] An undertaking was given that the question would be answered after counsel for the Defendants had examined Robert for discovery.

[ 9 ] Robert was examined for discovery on July 11, 2013 – two days after Dr. Freeman was examined for discovery. [ 10 ] On December 15, 2014, the answer to the undertaking in response to Question 600 was provided to counsel for the plaintiff. The undertaking given and answer were set out as follows: To advise of any theory being advanced that Mr. Lyons’ damages should be reduced for something he failed to do in terms of mitigating his loss. ANSWER: Dr. Freeman’s views with respect to Mr. Lyons’ ability to work were canvassed at Dr. Freeman’s examination for discovery. Dr.

Freeman was of the view that working to the extent that he was able to do so would have been beneficial for Mr. Lyons’ overall well-being. [3] [ 11 ] The plaintiff’s position is that the answer to the undertaking was never amended and that the Defendants require leave of the Court to amend the answer to the undertaking.

The plaintiff argues that the answer to Question 600 relates to both failure to mitigate and break in the chain of causation. [ 12 ] The break in the causal link theory to which reference was made in the Opening and to which the plaintiff objects is as follows: [A]ny causal link between the defendant physicians’ January 13, 1987 surgery and post-surgical care and the damages claimed by Robert Lyons was broken by “his own acts or omissions or events unrelated to any care or treatment on the part of” the defendant physicians because at least by February 1994, Mr.

Lyons was aware that surgeons believed that rectal mucosa left after his 1987 surgery caused his pelvic fluid collections and that surgery was an option. If the plaintiff’s physicians did not recommend surgery at the time or if the plaintiff opted not to have it, the fact is that Mr.

Lyons was aware of the problem and of at least one treatment option and the defendants physician [ sic ] cannot be held responsible for damages after that time (“the break in the causal link argument”). [4] [ 13 ] The plaintiff submits that: • The Defendants should be denied leave to amend the answer to the undertaking; • The Defendants should not be permitted to lead evidence and make submissions with respect to the Defence Theories other than on the basis of the answer to Question 600 by way of undertaking; and • If the Defendants are granted leave as requested, the plaintiff will suffer prejudice for which it cannot be compensated in costs or an adjournment.

The plaintiff submits that it will suffer prejudice by reason of the following: ▪ A question was never put by the Defendants to Robert with respect to the subject of surgical treatment options in the context of failure to mitigate; ▪ Robert died on December 12, 2014 (after his evidence for the purpose of trial was taken); and ▪ Counsel for the plaintiff is unable to review the Defence Theories with Robert in an effort to meet that aspect of the Defendants’ case at trial. [ 14 ] In response, the Defendants’ position is that the plaintiff had notice prior to the commencement of trial that the Defence Theories.

The Defendants submit that having provided notice of the Defence Theories, they fulfilled their disclosure obligations pursuant to the Rules of Civil Procedure [5] and are entitled to rely on the Defence Theories at trial. The Defendants’ position is that they do not require leave of the Court to do so. In any event, they bring a cross-motion for leave, if necessary, pursuant to rule 53.08 of the Rules of Civil Procedure to rely on the Defence Theories at trial. Analysis

a) Notice of the Defence Theories [ 15 ] The cases upon which the plaintiff relies in support of its position are, in my view, distinguishable from the matter before me. [6] In those cases, issues arose at trial because of the late disclosure of evidence upon which a party intended to rely at trial. By ‘late disclosure’, I mean disclosure after the trial had commenced.

In the matter before me, there is no suggestion that the Defendants failed to disclose evidence upon which they intend to rely at trial. [ 16 ] The issue to be determined is whether the Defendants failed to give the plaintiff notice of the Defence Theories and therefore notice of the case the plaintiff must meet. For the reasons which follow, I find that (

a) the Defendants gave the plaintiff notice of the Defence Theories prior to the trial, and (

b) the plaintiff will not be prejudiced in terms of fairness of the trial if the Defendants are permitted to lead evidence and make submissions at trial with respect to the Defence Theories

i) The Defendants’ Pleading [ 17 ] I turn first to the Defendants’ pleading, dated September 7, 2012. The defences of break in the causal link and failure to mitigate are clearly plead in paragraphs 31 and 32, respectively, of the statement of defence: 31. If the plaintiff has suffered any damage, which is denied, then the damage was caused by the plaintiff’s pre-existing conditions and natural progression thereof, by his own acts or omissions or by acts or events unrelated to any care or treatment on the part of these physicians. 32.

If the plaintiff has suffered any damage, which is denied, the damages claimed are excessive and too remote and the plaintiff has failed to mitigate his alleged damages.

ii) Expert’s Reports [ 18 ] I turn next to the report of one of the experts upon whose evidence the Defendants intend to rely at trial − the August 2016 report of Dr. Burnstein (the “Burnstein Report”). A copy of the Burnstein Report was provided to counsel for the plaintiff on August 31, 2016. [ 19 ] In that report, Dr. Burnstein responds to a number of questions posed with respect to the issues of standard of care and causation.

One such question, related to the timing of the removal of the rectal remnant, was as follows: “When it was recognized that there was retained rectum, should removal of the rectal remnant have been recommended?” Dr. Burnstein’s response to that question includes that it was not “a black and white issue”. [ 20 ] Dr. Burnstein was also asked, “If the rectal remnant had been removed, would [Robert] have been protected against the development of rectal cancer?” Dr. Burnstein’s answer to that question includes the following: Yes. The cancer arose from the rectal remnant and had the entire rectum been removed (by Dr.

Freeman or subsequently by Dr. Freidlich) the cancer would not have developed. . . . In view of (1) the very significant risks associated with an effort to remove the rectal remnant, (2) the risks of incomplete removal and a persistent cancer risk, (3) the risk of persistent symptoms, and (4) the relatively low cancer risk, a patient might reasonably decide to avoid further surgery and accept the symptoms and cancer risk. [7] [ 21 ] After responding to the questions posed with respect to the issues of standard of care and causation, Dr. Burnstein responded to what he describes as two “additional” questions.

The second such question was as follows: Based on your review of the medical records, in your opinion, when does it appear that retained rectum was first identified by one of the plaintiff’s physicians? In your opinion, when does it appear that a link was first made between the rectal remnant or rectal mucosa and the plaintiff’s symptoms? What options appear to have been considered? [8] [ 22 ] Dr. Burnstein responded to that question by identifying a number of entries from the “extensive” material he was provided for review. The entries to which Dr. Burnstein referred include: • The first entry (identified by Dr.

Burnstein) that makes reference to the possibility of retained rectum is the May 25, 1993 note of general surgeon, Dr. Wells. • In June 1993, a note by Mr. Nobrega [9] makes reference to the possibility of Robert travelling to Toronto for further surgery. Dr. Burnstein’s understanding is that the surgery would have been to address Robert’s pelvic pathology. • A July 1993 note by Dr. P.

Gaulin identifies that Robert was being followed for a possible re-excision and a possible inter- position procedure (i.e. including excision of the rectal remnant). • A February 1994 document prepared by Nurse Hutton based on information provided to her by Robert makes reference to the possibility that Dr. Wells would refer Robert to a surgeon in Toronto. • A report of a CT scan done in April 2995 includes a statement that “there is a rectal stump”. iii) Defendants’ Pre-trial Conference Memorandum [ 23 ] Lastly, I turn to the contents of the Defendants’ pre-trial conference memorandum (the “Memorandum”).

In a previous Ruling on this motion and cross-motion, I granted leave to the parties, collectively, to refer to a three-page excerpt (the “Excerpt”) from the Memorandum. [10] ▪ Preliminary Issue [ 24 ] The plaintiff takes the position that, for three reasons, the Defendants are not entitled to rely on the contents of the Excerpt as support for their position that the plaintiff had notice of the Defence Theories prior to the commencement of the trial:

a) A pre-trial conference memorandum is nothing more than a party’s attempt to persuade a pre-trial judge of the merits of its position for the purposes of seeking an early settlement;

b) Nothing contained in a pre-trial memorandum is expected to change “with prejudice” positions taken by parties throughout the litigation; and

c) Concessions made (if any) and positions taken in a pre-trial conference memorandum are made explicitly “without prejudice” unless subsequently set out in a pre-trial order or a pre-trial conference report. [ 25 ] The plaintiff did not provide any authorities in support of the three reasons listed above. I highlight, in particular, that no authority was provided with respect to the “expectations” of a party as discussed in item (

b) above. [ 26 ] The plaintiff submits that it would be unfair to permit the Defendants to rely on the Excerpt when the Defendants failed to put forth the Defence Theories in a “with prejudice” document that would entitle the plaintiff to seek further clarification and/or trigger further rights of discovery. [ 27 ] The Defendants rely on the decision of the Ontario Court of Appeal in Marshall v. Watson Wyatt & Co. [11] in support of their

reliance on the contents of the Memorandum as notice of the Defence Theories. [ 28 ] The plaintiff in Marshall sought damages for wrongful dismissal. The plaintiff’s calculation of damages included compensation based on revenue generated at two of the defendant’s offices (Toronto and Montreal). At trial, the defendant attempted to lead evidence that the assessment of the plaintiff’s damages should be based on revenue generated at the Toronto office only. The trial judge ruled that the defendant could not lead evidence in support of that contention.

That ruling was based on an answer given at the examination for discovery of a representative of the defendant. [ 29 ] The defendant’s representative was asked on discovery as to whether there was any dispute that the plaintiff’s compensable revenue should include revenue from both the Montreal and Toronto offices. The representative’s answer was that they could not comment on that. Counsel for the defendant stated, “I’ll advise you if we disagree.” [ 30 ] The answer to that question was never qualified.

However, in its pre-trial conference memorandum, the defendant clearly stated that it took the position that the plaintiff’s compensable revenue did not include the Montreal office.

Approximately one month after the pre-trial conference memorandum was delivered, counsel for the defendant provided to counsel for the plaintiff a witness statement in which the witness re-affirmed the defendant employer’s position with respect to the exclusion of revenue generated at the Montreal office from the plaintiff’s compensable revenue. [ 31 ] At the beginning of trial, counsel for the plaintiff identified to the court, both on a motion to strike the jury and in the opening to the jury, that the defendant disputed the inclusion of revenue from the Montreal office as forming part of the plaintiff’s compensable revenue.

In examination-in-chief, the plaintiff’s evidence was that her compensation was based on revenue from both the Toronto and Montreal offices. When counsel for the defendant attempted to cross-examine the plaintiff on whether the Montreal revenues were included, an objection was made on the basis of the answer given at the examination for discovery of the defendant’s representative. [ 32 ] The trial judge upheld the objection, ruling that the defendant could not lead evidence that was contradictory to the position that it took on examination for discovery.

The trial judge considered the different purposes served by pre-trial conferences and examinations for discovery. She found that “[n]otice within the format of a pre-trial memorandum is not notice in satisfaction of an undertaking.” [12] [ 33 ] The ruling of the trial judge on that issue was one of a number of grounds on which the defendant relied in support of its appeal from the judgment in favour of the plaintiff.

The Court of Appeal concluded that the trial judge took an “overly technical position” and failed to take into account that counsel for the plaintiff had two sources of knowledge of the defendant’s position with respect to compensable revenue.

The Court of Appeal highlighted that the trial judge was made aware only of the contents of the pre- trial conference memorandum and was not aware, when the ruling was made, of the contents of the witness statement. [ 34 ] The Court of Appeal also considered the substance of the argument made by counsel for the plaintiff on a motion to strike the jury and of the plaintiff’s opening; it was clear that counsel for the plaintiff was aware of the defendant’s position with respect to compensable revenue. [13] [ 35 ] The Court of Appeal concluded that, in light of what counsel for the plaintiff clearly knew, the ruling of the trial judge was “fundamentally unfair” to the defendant. [14] Any claim of prejudice advanced by the plaintiff was answered by the failure of the plaintiff to request further discovery of the defendant even after the pre-trial conference and after receipt of the witness statement.

Ultimately, the Court of Appeal ordered a new trial on the issue of the scope of the plaintiff’s compensable revenue. [ 36 ] The plaintiff argues that the facts in Marshall are distinguishable from those in the matter before me. In Marshall , the witness statement provided notice, independent of the pre-trial conference memorandum, of the defendant employer’s position. The plaintiff submits that there is nothing independent of the Memorandum that in any way provided notice of the Defence Theories. [ 37 ] I disagree.

As set out above, I find that the Burnstein Report provided notice of the Defence Theories. [ 38 ] In addition and in my view, the Court of Appeal in Marshall did not rely exclusively on the contents of the witness statement as the source of plaintiff counsel’s knowledge of the defendant employer’s position with respect to compensable revenue. At paragraph 25 of the decision in Marshall , reference is made to both sources of knowledge − the witness statement and the pre-trial conference memorandum.

In my view, there is nothing in the decision in Marshall which stands as authority for an absolute prohibition, in the circumstances before me, of reliance on the contents of a pre-trial conference memorandum. ▪ Contents of the Memorandum [ 39 ] As a “second source” of notice, what did the Memorandum tell the plaintiff? In paragraph 31 of the Memorandum, the Defendants take the position that Robert was aware as early as 1993 that a portion of his rectum remained in his body. Paragraph 31 is approximately two pages in length. Listed in paragraph 31 are some of the entries quoted above from the Burnstein Report.

Also listed in paragraph 31 are references to the January 1995 and June 1995 notes of Robert’s gasteroenterologist, Dr. Denault, regarding the presence of rectal mucosa. [ 40 ] Paragraph 32 of the Memorandum reads as follows: The residual rectal tissue having been identified at least by May, 1993, Dr. Freeman cannot be blamed if either the plaintiff’s doctors did not recommend the excision surgery at the time or if the plaintiff opted not to have it earlier. (In his report, Dr.

Burnstein notes that there are good reasons why a patient might have reasonably decided not to undergo further excision surgery.) Therefore any causal link is broken, at least by May 1993. [ 41 ] The bracketed portion of the paragraph quoted above is taken from the Burnstein Report. I draw an inference and find that the inclusion of the bracketed portion of paragraph 32, was so as to be fair and balanced in the presentation of the theories the Defendants intend to advance at trial.

iv)

Summary [ 42 ] Taking into consideration the contents of the Defendants’ pleading, the Burnstein Report, and the Excerpt, I find that:

a) The plaintiff had notice in advance of the trial that the Defence Theories would be advanced and form part of the case that the plaintiff is required to meet at trial;

b) The Opening did not change the Defence Theories or the case that the plaintiff has to meet at trial;

c) It would be fundamentally unfair to the Defendants to preclude them from relying on the Defence Theories at trial; and

d) In all of the circumstances, the trial remains fundamentally fair to the plaintiff. [15] [ 43 ] The plaintiff and the Defendants are each prejudiced at trial by reason of Robert’s death in December 2014. The prejudice suffered falls to be addressed in the context of evidentiary issues that arise as the parties present their respective cases. The plaintiff identified the potential for the rule in Browne v. Dunn to be raised. [16] It is in part because of the potential for evidentiary rulings to be made, including with respect to evidence lead in support of the Defence Theories, that the trial remains fundamentally fair to the plaintiff.

b) Notes and Records of Dr. MacTavish [ 44 ] As noted above, Robert was examined for discovery on July 11, 2013. At that examination, an undertaking was given to produce Dr. MacTavish’s notes “if they’re available”. [17] That undertaking was preceded by the comment by counsel for the Defendants that she had not seen Dr. MacTavish’s records. It is clear that from the outset of this litigation, the Defendants have been seeking production of the clinical notes and records of Dr.

MacTavish (identified to the Court as one of Robert’s family physicians). [ 45 ] Included in the record on the motion and cross-motion are correspondence and emails exchanged between counsel for the parties in which the subject of Dr. MacTavish’s notes and records is addressed. There is no doubt that the Defendants continued, even as of the fall of 2016, to press the plaintiff to leave no stone unturned with respect to securing copies of Dr. MacTavish’s notes and records.

In response, counsel for the plaintiff made requests over time of Robert’s other family physicians, medical clinics, and other healthcare institutions in an effort to obtain and produce all of Dr. MacTavish’s notes and records. [ 46 ] It was not until Thursday, January 12, 2017 that the clinical notes and records of Dr. MacTavish for the period from April 2, 1993 to August 4, 1994 (the “CNRs”) were produced to the Defendants. The CNRs came to the attention of counsel for the plaintiff during a trial-preparation interview with Dr. Lockman, one of Robert’s family physicians. The CNRs were found in Dr.

Lockman’s file during the course of the interview. Counsel for the plaintiff immediately produced the CNRs to the Defendants. [ 47 ] I do not in any way fault the plaintiff, or its counsel, for the timing of the production of the CNRs. The trial of this action requires the parties and this Court to consider medical and health-care records dating back to the early 1980’s.

It is not surprising that some of the records over a 30-year period might not be easily located and obtained. [ 48 ] Reference was made in the Opening to the CNRs and entries therein with respect to the potential that Robert was, as early as 1993, offered a surgical treatment option and that he may have chosen not to pursue that option. Reference was also made in the Opening to entries in records which (

a) had long been available from other healthcare professionals involved in Robert’s care and treatment and institutions (such as the Montfort Hospital) at which Robert had been treated, and (

b) include entries with respect to surgery, a referral for surgery, and surgery pending (the “Surgical Treatment Option”). [ 49 ] When the Opening was made, counsel for the Defendants had not had an opportunity to review the records previously produced with a fine-tooth comb to determine the extent, if any at all, to which the references in the CNRs relate to or are different from the references in the other records to the Surgical Treatment Option. [ 50 ] In reply, the plaintiff provides a comparison of the contents of the CNRs with the contents of the records previously produced.

The comparison is summarized in the following statement: “Nothing in the [CNRs] informs the parties any further regarding the alleged knowledge of the rectal remnant and the surgeons involved in Mr. Lyons care at the time. If anything, the MacTavish records corroborate what was already contained in the medical records.” [18] [ 51 ] In my view, and regardless of whether the statement quoted immediately above is correct, the timing of the production of the CNRs and their contents are not relevant to the issues to be determined on this motion and cross-motion.

c) Updating Answer to Discovery Question [ 52 ] The plaintiff relies on rule 31.09 of the Rules of Civil Procedure , which sets out the obligation of a party to correct an answer given on an examination for discovery where “the party subsequently discovers that the answer to a question (

a) was incorrect or incomplete when made; or (

b) is no longer correct and complete”. The sanction for failing to fulfill that obligation is that if the information subsequently discovered is favourable to the party’s case, the information may only be introduced at trial with leave of the trial judge. [19] The plaintiff is critical of the Defendants for failing to update the answer to Question 600 from the examination for discovery of Dr. Freeman. [ 53 ] I agree with the characterization by counsel for the Defendants of Question 600 from the examination for discovery of Dr. Freeman as a “legal question”.

I also agree with counsel for the Defendants that the question was appropriately one that was to be answered by counsel and not by the party. [20] The question was answered by way of answer to an undertaking provided in December 2014. [ 54 ] In my view the question was further answered by the contents of the Burnstein Report. The revised answer to Question 600

may not have been in neon letters, highlighted in particular way, or presented under the titles “Failure to Mitigate” and “Break in Causal Link”. However, from the date of their pleading forward, it was clear that the Defendants were advancing both failure to mitigate and break in the chain of causation defences. If, in considering the contents of the Burnstein Report, the plaintiff and its counsel did not draw the appropriate inferences with respect to one or both of those defences, then their failure to do so does not fall on the Defendants. [21] Disposition [ 55 ] I order as follows: 1.

The plaintiff’s motion for an order prohibiting the Defendants from leading evidence or making submissions to the Court that Robert failed to mitigate his damages and/or to argue a break in the chain of causation, save and except in respect to Robert’s ability to work and Dr.

Freemans’ view that working to the extent that he was able to do so would have been beneficial to Robert’s overall well- being, is dismissed. [ 56 ] Given that the plaintiff’s motion is dismissed, I do not need to determine the issues raised on the Defendants’ cross-motion. ____________________________________ Madam Justice Sylvia Corthorn Date: January 27, 2017 CITATION : Lyons Estate v. Dr. Freeman et al. , 2017 ONSC 534 COURT FILE NO.: 10-48566 DATE: 2017/01/27

ONTARIO SUPERIOR COURT OF JUSTICE RE: Laura Bond, Administrator for the Estate of Robert Lyons Plaintiff – and – Dr. Joel B. Freeman, Dr. Robert John Fairfull- Smith, Dr. Jane Doe, Dr. John Doe, and The Ottawa Hospital – General Campus Defendants RULING ON MOTION AT TRIAL Motion No. 1 – Objection to Defendants’ Opening Ruling – Plaintiff’s Motion and Defendants’ Cross-motion Madam Justice Sylvia Corthorn Released: January 27, 2017