2023 ONSC 4956, 2023 ONSC 4956

CITATION : Beazley v. Johnston et al. , 2023 ONSC 4956 COURT FILE NO.: 17-74859 DATE: 2023/08/31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) CARY BEAZLEY Plaintiff – and – DR. MARY JOHNSTON, DR. JAMES GILL, DR. PRAVIN SHUKLE, DR KALPESH RAICHURA, DR. ROBERT GAUVREAU, DR. LAWRENCE NORMAN , DR. MARIKO HASHIMOTO, DR MARK TRECARTEN, DR BASKAR GOPALAN, DR. NATALIE KESES, DR DEAN HOLDEN , DR JAMES WARD, DR ELLEN HENRY , DR GUY HEBERT, DR MARTIN GREEN, DR. PABLO NERY , DR. ADAM NICHOLSON, DR ADAM COHN, DR DONALD HARRIS, DR KUAN CHIN CHEN , DR.

ELIZABETH SCOTT, DR GORDON KEE , DR HYMAN RABINOVITCH, DR DANIEL CHUKWU, DR KADAMBI SITARAM , DR KARI SAMPSEL, DR GETNET ASRAT, DR RICHARD MOXON, DR STEPHEN CHOI, DR PABLO NERY, DR. SAMUEL HETZ , DR. JACINDA WONG, DR ROBERT NICHOLS, DR. SUNIL VARGHESE, DR. DAVID DAVIDSON, DR.

NINA RAMIC, DR JANE DOE, DR JOHN DOE, THE ONTARIO MINISTRY OF HEALTH AND LONG TERM CARE , QUEENSWAY CARLETON HOSPITAL and PUBLIC HEALTH AGENCY OF CANADA Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) )) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff is self-represented Andrew McKenna and Justin McCarthy, for the Defendant Physicians Émilie Roy, for the Defendant, Queensway Carleton Hospital HEARD: March 2, 7, and 8, April 4, 11, 13, August 23-26, and October 24-28, 2022 (By videoconference) RULING ON MOTIONS

(T hree Motions for

Summary Judgment) Corthorn J. Introduction [ 1 ] From December 2015 to May 2018, the twenty-seven physicians named as defendants (“the Doctors”) were involved, at various times, in the care and treatment of the plaintiff, Cary Beazley. Several of the Doctors saw Mr. Beazley at the Emergency Department or another department of the defendant, Queensway Carleton Hospital (“the Hospital”). During the same period, Mr. Beazley communicated with one or more other physicians, who held privileges at the Hospital, but are not named as defendants in the action. [ 2 ] Mr.

Beazley’s primary allegation is that, as a result of the Doctors’ conduct, there was a delay in him being diagnosed with and treated for Lyme disease. Mr. Beazley alleges that, as a result of the delayed diagnosis of Lyme disease, he has suffered injuries and losses. [ 3 ] In the amended amended fresh as amended statement of claim (“the Pleading”), Mr. Beazley claims damages for past and future loss of income in an amount in excess of $200,000. Mr. Beazley also claims an unspecified quantum of damages under each of the following heads of damages: (

a) general non-pecuniary damages for pain, suffering, and loss of enjoyment of life and relationships; (

b) special damages for out-of-pocket expenses; (

c) punitive damages; (

d) aggravated damages; and (

e) damages for economic loss other than for past and future loss of income. [ 4 ] Three motions for

summary judgment are before the court: • The Doctors ask the court to dismiss Mr. Beazley’s action against them in its entirety; • The Hospital asks the court to dismiss Mr. Beazley’s action against it in its entirety; and • Mr. Beazley asks the court to determine all liability issues in his favour, leaving only the assessment of damages to be determined at trial. [ 5 ] The claims against the Doctors are based in negligence, negligent misrepresentation, and breach of fiduciary duty.

The Doctors rely on their respective affidavits and on the evidence of seven expert witnesses whose affidavits are included in the Doctors’ motion record. The Doctors submit the evidence supports a conclusion there is no genuine issue requiring a trial. [ 6 ] The Doctors submit that Mr. Beazley does not have expert opinion evidence to support a finding that any one of them breached the standard of care and that any alleged breaches of the standard of care caused or contributed to the injuries Mr. Beazley alleges he suffered. The Doctors submit that lack of a supportive expert opinion is fatal to Mr.

Beazley’s position on the Doctors’ motion and on Mr. Beazley’s motion. [ 7 ] The claims against the Hospital are based in negligence and vicarious liability. Mr. Beazley’s primary allegation against the hospital is that of vicarious liability for the acts and omissions of its employees and medical staff. [ 8 ] The Hospital submits that none of the Doctors who held privileges at the Hospital at the relevant time were Hospital employees; as a result, the Hospital cannot be held vicariously liable for any acts of or omissions by those physicians.

The Hospital relies, in any event, on the evidence of the seven expert witnesses whose affidavits are included in the Doctors’ motion record. [ 9 ] In addition, the Hospital highlights that Mr. Beazley failed to adduce any evidence which supports a finding the Hospital was in some way negligent regarding Mr. Beazley’s care. Like the Doctors, the Hospital submits Mr. Beazley’s lack of a supportive expert opinion is fatal on both the Hospital’s and Mr. Beazley’s motion. [ 10 ] In support of his position on the issue of liability, and regardless of the area of speciality of the Doctors, Mr.

Beazley relies on the evidence of a single witness. That witness is a retired general practitioner who, before retiring, practised family medicine in Nova Scotia. [ 11 ] Mr. Beazley asks the court to conclude the seven expert witnesses upon whose evidence the defendants rely, (

a) do not have expertise in the area of Lyme disease, (

b) express opinions that are outdated, and (

c) are biased. Mr. Beazley asks the court to disregard the evidence of the seven expert witnesses. [ 12 ] Last, Mr. Beazley submits that, if the court finds that the standard of care is as described by the seven expert witnesses, the standard of care is, in and of itself, negligent. Background [ 13 ] Mr. Beazley’s initial interaction with one or more of the defendants occurs on December 12, 2015. On that date, Mr. Beazley attends the Emergency Department of the Hospital. Mr. Beazley sees family medicine (emergency medicine) specialist, Dr. Mary Johnston. Mr. Beazley never sees Dr. Johnston again. [ 14 ] Mr.

Beazley’s interactions with the defendants conclude in May 2018, when Mr. Beazley personally serves family medicine specialist, Dr. Getnet Asrat with the original statement of claim in this action.

[ 15 ] From December 2015 to May 2018, Mr. Beazley sees some of the Doctors on more than one occasion and others only once. Two of the individual defendants never see Mr. Beazley; their involvement in Mr. Beazley’s care is limited to the

interpretation of echocardiograms. Some of the individual defendants are family medicine specialists; others are specialists in fields such as cardiology, emergency medicine, infectious diseases, internal medicine, neurology, and sports medicine. [ 16 ] In the same period (December 2015 forward), Mr. Beazley sees other physicians who are not named as defendants and attends at the Emergency Departments of other hospitals. [ 17 ] Central to Mr.

Beazley’s allegations of failure to diagnose or delayed diagnosis of Lyme disease are the results of three sets of bloodwork/tests carried out in 2016: • The first test is done in May 2016 at the request of Mr Beazley’s then family physician, Dr. James Gill. That test is the two-tier Lyme test available through the Ministry of Health (“MOH”). The results of that test are negative for Lyme disease; • By the fall of 2016, Mr. Beazley is consulting with and being treated a Toronto-based family medicine (emergency medicine) physician. That physician (Dr. Jacobson) is not a defendant in this action. After seeing Mr.

Beazley for an initial consultation, Dr. Jacobson arranges for bloodwork/test in October 2016; • The third test is carried out, at the request of Dr. Jacobson, in November 2016 at the IGeneX laboratory in California, USA. The test carried out at IGeneX (“the PCR Lyme test”) is different from the test available in Ontario through the MOH; the PCR Lyme test is not available through the MOH. [ 18 ] Based on the combination of Mr. Beazley’s clinical presentation and history, as reported by Mr. Beazley in October 2016, and the November 2016 IGeneX test results, Dr. Jacobson forms the opinion that Mr.

Beazley is likely experiencing symptoms of a tick-borne disease. Dr. Jacobson prescribes a long-term course of antibiotics. [ 19 ] Based on Dr. Jacobson’s opinion, Mr. Beazley believes he has Lyme disease that remained undiagnosed from late 2015 until the fall of 2016. [ 20 ] From October 2016 forward, and while under the care of Dr. Jacobson, Mr. Beazley continues to see or begins to see the Doctors. Mr. Beazley does not attend the Hospital after he begins to see Dr. Jacobson.

He does, however, attend at the Emergency Department of other hospitals in Ottawa and Smiths Falls. [ 21 ] Some of the Doctors are aware, when they interact with Mr. Beazley, of the results of one or more of the three tests carried out in 2016. The Doctors who are aware of the results of the two-tier Lyme disease test conducted through the MOH in May 2016, rely, at least in part, on that result to rule out Lyme disease as a potential cause of Mr.

Beazley’s symptoms. [ 22 ] The seven expert witnesses upon whose evidence the defendants collectively rely, express opinions which support the approaches taken by the Doctors. The seven expert witnesses support the reliance on the results of the two-tier test for Lyme disease available from the MOH. Mr. Beazley, on the other hand, is critical of the reliance on the two-tier test as a factor when considering Lyme disease as a potential cause of a patient’s symptoms. Mr.

Beazley’s position is that the approach to Lyme disease in Ontario, including reliance on the two-tier test is, in and of itself, negligent. [ 23 ] Before identifying the specific issues to be determined on the three motions, I will first review the law generally regarding motions for

summary judgment. Motions for

Summary Judgment [ 24 ] With the parties having completed the exchange of pleadings, they are each entitled to bring a motion for

summary judgment: Rules of Civil Procedure , R.R.O. 1990, Reg. 194 , rr. 20.01(1) and (3). The discretion available to and powers of the court on a motion for

summary judgment are set out in r. 20.04. [ 25 ] Of particular importance is the mandatory language in r. 20.04(2)(a): “The court shall grant

summary judgment if [ ] the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence”. If the court determines there is no genuine issue requiring a trial, it may, when considering the evidence submitted by the parties, exercise any one or more of the three powers listed in r. 20.04(2.1). That rule gives the court the power to (

a) weigh the evidence, (

b) evaluate the credibility of a deponent, and (

c) draw any reasonable inference from the evidence. [ 26 ] In Hryniak v. Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 , the Supreme Court of Canada sets out the key principles applicable to motions for

summary judgment. Those principles include the principles listed below: • “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment” (at para. 49); • For a determination on the merits to be fair, the motion judge must be confident that they “can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (at paras. 50, 57); • When determining whether there is a genuine issue requiring a trial, the motion must consider whether the

summary judgment procedure is timely, affordable, and proportionate (at para. 66). [ 27 ] The principles listed above and others set out in Hryniak are applied in the context of a two-step process. The first step requires the motion judge to determine “if there is a genuine issue requiring a trial based only on the evidence before [them], without using the new fact-finding powers”: Hryniak , at para. 66 .

[ 28 ] If there appears to be a genuine issue requiring a trial, the motion judge moves to the second step in the process.

At that step, the motion judge determines “if the need for a trial can be avoided by using the [ ] powers under [rr.] 20.04(2.1) and (2.2).” The use of those powers, “will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”: Hryniak , at para. 66 . [ 29 ] The moving party bears the onus of demonstrating there is no genuine issue requiring a trial: Toronto Dominion Bank v. Hylton , 2012 ONCA 614 , at para. 5 .

If the moving party succeeds in doing so, then the burden shifts to the responding party. Where the responding party is a plaintiff, that shift in the burden requires the plaintiff to demonstrate their claim has a real chance of success: Hylton , at para. 5 ; Dia v. Calypso Theme Waterpark , 2021 ONCA 273 , at para. 25 . [ 30 ] Each party is required to put their best foot forward to establish whether or not there is a genuine issue requiring a trial.

The court is entitled to assume the record includes all the evidence the parties would present at trial: Hylton , at para. 5 . [ 31 ] In a medical malpractice action, where a defendant has discharged its evidentiary burden, the absence of expert evidence in support of the plaintiff’s claim is fatal in all but “the clearest of cases.” As the Court of Appeal for Ontario stated in Liu v.

Wong , 2016 ONCA 366 , at para. 14 : Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert evidence [sic] in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital , 2014 ONCA 923 .

Overview of the Analysis [ 32 ] I will decide the three motions in the order in which they were addressed in oral submissions (and as listed in para. 4, above). For each of the causes of action upon which Mr. Beazley relies against the Doctors or the Hospital, I follow the two-step process set out in Hryniak . [ 33 ] Before turning to the Doctors’ motion, I will review the evidence before the court on the three motions. The Evidence

a) The Doctors [ 34 ] In support of their motion and in response to Mr. Beazley’s motion, the Doctors rely on a total of thirty-four affidavits. The record includes an affidavit from each of the twenty-seven physicians named as defendants and from seven physicians who were retained to provide expert opinion evidence. [ 35 ] The Doctors each practice in one of seven areas of specialty. The Doctors are listed below by their respective areas of specialty. Within their respective groups the Doctors are listed in alphabetical order.

In addition, the expert witnesses, upon whose opinion evidence the member or members of each group rely, are identified: Emergency medicine: Dr. Johnston, Dr. Choi, Dr. Gopalan, Dr. Harris, Dr. Hebert, Dr. Moxon, Dr. Nicholson, Dr. Sampsel, Dr. Ward and Dr. Trecarten Expert witness – Dr. Joseph Newbigging Family medicine: Dr. Gill, Dr. Hashimoto, Dr. Davidson, Dr. Scott, Dr. Raichura, Dr. Chukwu, Dr. Asrat, Dr. Ramic and Dr. Wong Expert witness – Dr. Richard Wiginton Cardiology: Dr. Green Expert witness – Dr. David H. Fitchett Sports medicine: Dr. Gauvreau Expert witness – Dr.

Gary Abraham Infectious diseases: Dr. Varghese Expert witness – Dr. Dick Zoutman Internal medicine: Dr. Shukle, Dr. Nichols, Dr. Keses and Dr. Cohn Expert witness – Dr. David Frost Neurology: Dr. Rabinovitch Expert witness – Dr. Edwin Klimek [ 36 ] Mr. Beazley did not cross-examine any of the Doctors. He cross-examined three of the expert witnesses: Drs. Newbigging, Wiginton, and Zoutman. The transcripts from those cross-examinations are before the court.

[ 37 ] The only sworn affidavit included in the Plaintiff’s Documents is the December 6, 2021 affidavit of Dr. Ben Boucher. The Doctors rely on the evidence of Dr. Ben Boucher from the cross-examination on that affidavit. The transcript from that January 2022 cross-examination is before the court (“the Transcript”). [ 38 ] In response to Mr. Beazley’s motion, the Doctors rely on an affidavit sworn by Phedely Ariste in October 2021 (“the Ariste affidavit”). The Ariste affidavit addresses the procedural history in the action; it also addresses the nature and content of Mr.

Beazley’s motion materials. [ 39 ] To assist the court, the Doctors filed a “Book of Procedural Documents.” That book includes nineteen documents, all of which are part of the record in this action.

For example, the procedural documents include the notice of action, the statement of claim, notices of discontinuance, three amended versions of the statement of claim, the statements of defence of the Doctors and the Hospital, and endorsements of Associate Justices Fortier and Kaufman (the latter, as he then was). [ 40 ] The Book of Documents also includes the September 2019 Reasons for Decision of Justice Gomery on a motion by the defendants to strike all or a portion of Mr. Beazley’s pleading, then titled the “Fresh as Amended Statement of Claim”: Beazley v. Dr. Mary Johnston et al. , 2019 ONSC 5756 .

Pursuant to that decision, Mr. Beazley’s claims against The Ontario Ministry of Health and Long-Term Care and against the Public Health Agency Canada were struck in their entirety. In addition, other paragraphs in the fresh as amended statement of claim were struck, with leave to amend. [ 41 ] The parties filed a four-volume “Joint Book of Medical Records” (“JBMR”). [1] The four volumes include a chronology of Mr. Beazley’s interactions with the Doctors, at the Hospital, with physicians not named as defendants, and at hospitals not named as defendants. The chronology and the records begin with Mr.

Beazley’s attendance at the Emergency Department of the Hospital on December 12, 2015. The chronology and records conclude with Mr. Beazley’s appointment on June 20, 2019 with a physician who is not a defendant in the action. The chronology spans nineteen pages; the four volumes include over 1,780 pages of records.

b) The Hospital [ 42 ] In support of its motion, the Hospital relies on two affidavits. One affidavit is from a law clerk employed by Borden Ladner Gervais, the lawyers of record for the Hospital. In her affidavit, the law clerk addresses the exchange of pleadings and the delivery of expert evidence for the purpose of the

summary judgment motions. [ 43 ] The second affidavit upon which the Hospital relies is from Colette Ouellet (“the First Ouellet affidavit”). Ms. Ouellet is the Director of Infection Prevention and Control, Quality, Patient Safety, Risk Management and Bed Flow at the Hospital. In her first affidavit, Ms. Ouellet, • lists the nine dates on which Mr.

Beazley attended the Emergency Department of the Hospital between December 12, 2015 and August 30, 2016; • identifies which of the Doctors were active members of the Hospital’s medical staff with privileges to practice medicine at the Hospital; and • identifies by name two individuals who are not named as defendants. Those individuals were medical residents at the relevant time (“the Residents”). The Residents saw Mr. Beazley during his attendances at the Emergency Department of the Hospital. [ 44 ] In response to Mr. Beazley’s motion, the Hospital relies on a second affidavit from Ms.

Ouellet (“the Second Ouellet affidavit”). In her second affidavit, Ms. Ouellet addresses Mr. Beazley’s requests for referrals to a neurologist and to an infectious disease specialist; Mr. Beazley’s requests for documents; and the alleged vicarious liability of the Hospital for the conduct of medical residents and physicians regarding a delay and/or failure to diagnose Lyme disease. [ 45 ] Mr. Beazley did not cross-examine the law clerk or Ms. Ouellet on any of their respective affidavits.

c) Mr. Beazley [ 46 ] In response to the defendants’ motions and in support of his motion, Mr. Beazley filed a three-volume set of documents titled “Plaintiff Caselines Documents” (“the Plaintiff’s Documents”). The Plaintiff’s Documents do not include a notice of motion. [ 47 ] Mr. Beazley relies on Dr. Boucher’s evidence in response to the defendants’ motions and in support of his motion. Dr. Boucher’s evidence is addressed in a later

section of this ruling. [ 48 ] The only affidavit from Mr. Beazley specifically in response to the defendants’ motions is included in Vol. 1, Tab 3 of the Plaintiff’s Documents. That affidavit is three pages long, includes six paragraphs, and is unsworn. There is no reference in the affidavit to any exhibits attached. Instead, Mr. Beazley refers in the affidavit to an “Exhibits Master List” and the “Expert – Rebuttal – report – Cary Beazley”. Both documents are found elsewhere in the Plaintiff’s Documents.

i) Reports Prepared by Mr. Beazley [ 49 ] Included in the Plaintiff’s Documents are two documents Mr. Beazley personally prepared. Each of those documents is titled “Expert – Report – Rebuttal – Cary Beazley” (“the Beazley Reports”). [ 50 ] The first of the Beazley Reports is thirty-eight pages. It includes references to numerous exhibits – none of which is appended to the report. The contents of the first report are a mix of information, which appears to be taken from the various

exhibits referenced; statements made by Mr. Beazley; and hyperlinks to additional documents. [ 51 ] The second Beazley Report is approximately one hundred and twenty-five pages. Its contents are similar to those of the first Beazley Report. In addition, the second report includes an introductory

section titled, “General Observations On Errors, Bias & Perjury ***”. Mr. Beazley therein lists what he describes as twenty-five “general, common and

summary observations in rebuttal of the [Doctors’] expert reports”. [ 52 ] Mr. Beazley sought to rely on the Beazley Reports in his oral submissions. Mr. Beazley requested that he be qualified as an expert and for the court to rely on his opinion evidence in the areas of the diagnosis and treatment of Lyme disease. [ 53 ] It was important for the parties to know, before Mr. Beazley began his oral submissions, whether he would be qualified by the court as an expert.

Following the conclusion of oral submissions by the Doctors’ counsel, the court heard submissions on the issue of a party as their own expert. [ 54 ] I dismissed Mr. Beazley’s request to be qualified as an expert witness to give opinion evidence in the areas of the diagnosis and treatment of Lyme disease: Beazley v. Johnston et al. , 2022 ONSC 1739 (“ Interim Ruling No. 1”), at para. 30. I also ruled that the Beazley Reports are not admissible as evidence either in response to the defendants’ motions or in support of Mr.

Beazley’s motion: Interim Ruling No. 1 , at para 30. ii) The Admissibility of Documents [ 55 ] The Exhibits Master List is eighty-two pages long and in chart form. The list identifies four hundred separate documents. A description of the documents is provided, with each document assigned a tab number. The list includes tens, if not hundreds of hyperlinks. Mr. Beazley did not file hard copies of the four hundred documents described or for which hyperlinks are provided in the Exhibits Master List. [ 56 ] At Vol. 2, Tabs 8 and 9 of the Plaintiff’s Documents are documents which Mr.

Beazley refers to as “Exhibit Highlights” (approximately three hundred pages in total). These documents include, for example, the following: • Materials said to be related to a conference held in Dearborn, Michigan in 1994 dealing with Lyme disease; • An undated extract from a letter sent by serologist, R.H. Notenboom, Ph.D., to then Member of Parliament, the Honourable Evelyn Gigantes; • Miscellaneous pages from materials prepared by Immunetics Inc. about “C6 Elisa Lyme”, with one of the documents copyrighted in 2006; and • Three pages from an

article published in a 2004 issue of the “Cent Eur J Publ Health”. [ 57 ] The number of documents filed by Mr. Beazley and the manner in which he attempted to put the documents before the court gave rise to admissibility issues. For the hearing of the motions to be procedurally fair to the parties, it was essential the issue of admissibility of documents be determined in a timely manner. [ 58 ] Following the conclusion of the oral submissions by the Doctors’ counsel, the court heard submissions regarding the admissibility of the documents upon which Mr. Beazley relies. Oral reasons were given on April 13, 2022.

Written reasons were released on May 10, 2022. The reasons were amended on August 30, 2022. The amendment addressed the admissibility of one of the eighty-three documents that are the subject of those reasons: see Beazley v. Johnston et al. , 2022 ONSC 2747 (“ Interim Ruling No. 2 ”). [ 59 ] The process followed to determine the admissibility of a limited number of the hundreds of documents filed or hyperlinked by Mr. Beazley is set out in Interim Ruling No. 2 . Attached as

Schedule ‘A’ to Interim Ruling No. 2 is a chart summarizing the court’s decision regarding the admissibility of the documents. The end result was the admission into evidence of twenty-six documents. [ 60 ] Mr. Beazley sought leave from the Divisional Court to appeal Interim Ruling No. 2 . His application for leave to appeal was dismissed in September 2022: Beazley v. Johnston , 2022 ONSC 5304 (Div. Ct.) .

d) Dr. Boucher’s April 2021 Report and December 2021 Affidavit [ 61 ] Dr. Boucher’s December 2021 affidavit (“the Boucher affidavit”) is two pages and includes seven numbered paragraphs. [ 62 ] In his affidavit, Dr. Boucher refers to “the expert report” he prepared. A copy of the report is not an exhibit to the Boucher affidavit. In para. 4 of his affidavit, Dr. Boucher refers to his “Acknowledgment of Expert’s Duty”.

A copy of that document, signed in May 2021, is Exhibit ‘B’ to the Boucher affidavit. [ 63 ] The Boucher affidavit does not include a reference to Exhibit ‘A’; there is no document identified as Exhibit ‘A’. It appears, however, that Dr. Boucher intended for a copy of his report to be identified as Exhibit ‘A’. In the final sentence of para. 5 of his affidavit, Dr. Boucher says: “A copy of my expert report dated April 27, 2021 with an acknowledgment of expert duty Form 53 signed May 5, 2021 attached to my affidavit.” I infer from the totality of the Boucher affidavit, Dr.

Boucher intended to say “… is attached to my affidavit.” [ 64 ] Regardless, merely attaching, without reference, a copy of Dr. Boucher’s April 2021 report to the Boucher affidavit does not result in the admission into evidence of the contents of the report. A copy of Dr. Boucher’s report is found elsewhere in

the Plaintiff’s Documents: see, for example, Vol. 1, Tab 4 of the Plaintiff’s Documents. To be clear, the inclusion of a copy of Dr. Boucher’s April 2021 report by any of the methods utilized by Mr. Beazley does not result in the admission of the contents of the report into evidence. [ 65 ] The Plaintiff’s Documents do not include a copy of Dr. Boucher’s curriculum vitae . A brief curriculum vitae appears in the bottom half of the first page of Dr. Boucher’s report. Once again, the inclusion of that information in Dr.

Boucher’s report does not automatically result in the admission of the information into evidence. [ 66 ] At para. 6 of the Boucher affidavit, Dr. Boucher expresses the following opinion on the issue of standard of care: It is my professional opinion that the Defendant Physicians and Queensway Carleton Hospital failed to provide appropriate care to Mr.

Beazley as noted with many of their clinical diagnoses, laboratory investigations, treatment and decisions fell below the standard of care expected of physicians and particular focus on the earlier physician encounters although the analysis also applies to the later physician encounters. [ 67 ] On January 20, 2022, Dr. Boucher was cross-examined on the contents of the Boucher affidavit. That cross- examination was the final cross-examination of the four cross-examinations conducted on these motions. Mr. Beazley cross- examined Drs. Newbigging and Zoutman in November 2021 and Dr. Wiginton on January 17, 2022.

e) The Second Affidavit from Dr. Boucher [ 68 ] During the hearing of the motions, Mr. Beazley requested leave to file a second affidavit sworn by Dr. Boucher. [ 69 ] The hearing was adjourned on April 13, 2022, upon the conclusion of oral submissions by counsel for the defendants in support of their respective clients’ motions. Some time after April 13, 2022 and prior to August 23, 2022, when the motions were scheduled to continue, Mr. Beazley obtained a second affidavit from Dr. Boucher and served it on the defendants.

The date on which this second affidavit was sworn is unclear – other than it was sworn on a date after April 13, 2022. For the purpose of these reasons, the second affidavit from Dr. Boucher is referred to as “the Second Boucher affidavit”. [ 70 ] When the hearing of the motions resumed on August 23, 2022, I heard submissions regarding Mr. Beazley’s request for leave to file the Second Boucher affidavit. I provided oral reasons as to why the request was denied, with reasons to follow in writing as part of an interim ruling or in this ruling.

An interim ruling was not released; what follows are my reasons for dismissing Mr. Beazley’s request for leave to file the Second Boucher affidavit. ▪ The Substance of the Second Boucher Affidavit [ 71 ] The Second Boucher affidavit is seven paragraphs and spans three pages. The first six paragraphs are identical to the first six paragraphs of the Boucher affidavit. A new para. 7 replaces the former para. 7 (the latter addressed that the affidavit was sworn remotely/electronically). [ 72 ] At para. 7 of his Second affidavit, Dr.

Boucher says he provides the affidavit, “with attached copies”, to clarify some of his previous statements. The “attached copies” are five hundred and twenty-six additional pages of documents. [ 73 ] Paragraph 7 of the Second Boucher affidavit reads as follows: I have provided this supplementary affidavit for the court with attached copies in support of the expert report footnotes and making up the references upon which my opinions are based and to clarify previous statements. The expert report noted breaches of standard of care as “failure”, “error”, “expected to” and “should have”.

As specifically noted and generally, all physicians and the Queensway Carleton Hospital involved in Mr. Beazley’s care fell below the expected standard of care of any reasonable physician in failing to address the worst first and precautionary principles as part of their differential diagnosis, and failures to make a Lyme clinical diagnosis and/or treat out of precaution.

I will further clarify that any adjectives such as “likely” or “probably” fell below the standard of care were used out of collegiality to my fellow physicians and issues with the guidelines and recommendations. [ 74 ] I turn next to the grounds upon which Mr. Beazley relied in support of his request for leave to file the Second Boucher affidavit. ▪ Grounds in Support of Request for Leave to File [ 75 ] In support of his request for leave to file the Second Boucher affidavit, Mr. Beazley asked the court to consider the following factors: • As a self-represented plaintiff, Mr.

Beazley asked for an indulgence from the court so that he could easily rectify what he described as procedural errors on his part; and • Based on exchanges between the Doctors’ counsel and the court during oral submissions, Mr. Beazley was concerned that without the additional affidavit from Dr. Boucher, it is possible the court will determine that Mr. Beazley does not have an expert opinion to support his position on the three substantive motions. [ 76 ] Mr.

Beazley was unable to provide a response to the court’s question about prejudice to the defendants arising from the timing of his request to file the Second Boucher affidavit. [ 77 ] For the following reasons, Mr. Beazley’s motion for leave to file the Second Boucher affidavit was dismissed. ▪ Analysis

- Not a “procedural error” [ 78 ] I disagree with Mr. Beazley’s description of waiting until part way through the hearing to attempt to file a further affidavit from Dr. Boucher as either a “procedural error” or an error that stems from his status as a self-represented litigant. [ 79 ] By no later than February 27, 2021, Mr. Beazley was aware that the defendants intended to bring a motion for

summary judgment. Counsel for the defendants informed the court and Mr. Beazley of their intention in that regard at a case conference held on that date: Beazley v. Dr. Mary Johnston et al . (February 17, 2021), Court File 17-4859 (Ont. S.C.), at p. 1. In her case conference endorsement, Master Fortier (as she then was) ordered Mr. Beazley and the Hospital to serve their respective expert reports by April 30, 2021. [ 80 ] In addition, Master Fortier ordered, “If the Plaintiff has not serve [sic] his expert report by April 30, 2021, the Defendants may request a case conference to be held before a master to determine whether a

summary judgment motion should be scheduled for hearing and, if so, to set a date and timetable.” [ 81 ] The parties returned for a case conference before Master Fortier on July 8, 2021. At that conference, Master Fortier determined the three motions for

summary judgment would proceed. She set a timetable for the exchange of motion materials and for cross-examinations: Beazley v. Dr. Mary Johnston et al . (July 8, 2021), Ottawa 17-74859 (Ont. S.C.). Deadlines were set for service of moving party, responding party, and reply materials – September 17, October 15, and October 29, 2021, respectively. Cross-examinations were to take place by November 19, 2021 and the exchange of facta was to be complete by December 31, 2021. [ 82 ] Dr. Boucher’s report is dated April 27, 2021. Yet, Mr.

Beazley did not serve a copy of the report on the defendants by April 30, 2021, as ordered at the February 2021 case conference. Dr. Boucher’s report was served on September 24, 2021, as part of Mr. Beazley’s moving party materials. Mr. Beazley was nine days late serving his moving party materials. [ 83 ] The defendants did not take issue with Mr. Beazley’s late service of his motion materials. The Doctors did, however, in a timely manner, alert Mr. Beazley to the deficiencies in his motion materials – specifically regarding the evidence of Dr. Boucher. In an email sent to Mr.

Beazley on October 5, 2021, counsel for the Doctors advised Mr. Beazley as follows: Unfortunately, I am not in a position to cross-examine Dr. Boucher as you have not included an affidavit from him in your motion materials. I will be sending you a letter this week with respect to my concerns with the form of your motion materials, but it is not permissible to simply include Dr. Boucher’s report in your materials as an attachment. It is my client’s position that if you intend on relying on Dr.

Boucher’s report on the motion, you will need to include an affidavit from him. [ 84 ] Counsel for the Doctors followed up with Mr. Beazley regarding the deficiencies in his motion materials. In a letter sent by email on October 14, 2021, counsel for the Doctors addressed in detail (

a) the requirement for affidavit evidence on a motion; and (

b) the expectations of counsel for the defendants regarding affidavit evidence from Mr. Beazley and from Dr. Boucher. Regarding the latter, counsel for the Doctors said, In addition, and as I have already advised, it is not appropriate or permissible for you to simply append Dr. Boucher’s report to your motion materials. If it is your intention to rely on Dr. Boucher’s opinion with respect to your claim, then in order to rely upon it at the motion, it is our position that Dr. Boucher needs to have sworn an affidavit which includes his report as an exhibit. [ 85 ] Despite the fact Mr.

Beazley missed deadlines set by the court, the defendants did not take a hard line with Mr. Beazley; to the contrary, through their counsel, the defendants attempted to assist Mr. Beazley in the conduct of the motions for

summary judgment. - Mr. Beazley failed to educate himself on the requirements for an affidavit from an expert witness [ 86 ] By December 2021, when the Boucher affidavit was sworn, Mr. Beazley had been served with the Doctors’ two-volume motion record. Mr. Beazley had that record in his possession for more than two months before the Boucher affidavit was sworn. From the Doctors’ motion record, Mr. Beazley had seven examples of an affidavit from an expert witness. If, before being served with the Doctors’ motion record, Mr.

Beazley did not know or understand how to present expert evidence to the court in affidavit form, there is no reasonable explanation for the failure on his part to know and understand how to do so, by December 2021, when the Boucher affidavit was sworn. [ 87 ] I leave aside, for the moment, that Mr. Beazley had guidance from counsel for the defendants and seven examples of an affidavit of an expert witness. I consider Mr.

Beazley’s obligations as a self-represented litigant. - The obligations of a self-represented litigant [ 88 ] In 2006, the Canadian Judicial Council adopted the “Statement of Principles on Self-represented Litigants and Accused Persons” (“the Statement”). The

Preamble to the Statement includes the following passage: “ Therefore , judges, court administrators, members of the Bar, legal aid organizations, and government funding agencies each have responsibility to ensure that self-represented persons are provided with fair access to and equal treatment by the court” [emphasis in original]. [ 89 ]

Section A of the Statement addresses the promotion of the rights of self-represented litigants to access to justice. The following principle is set out in

Section A: “Judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation”. [ 90 ] By the fall of 2021, the litigation had been continuing for almost four years. Mr. Beazley had appeared before Justice Gomery on the motion to strike his pleading and before Masters Fortier and Kaufman (as they then were) at least five times. By the latter half of 2021, when the parties were serving their respective motion materials, Mr. Beazley had been given meaningful opportunity

at the February and July 2021 case conferences before Master Fortier to navigate the

summary judgment motion process. The requirements of

Section A of the Statement were met. [ 91 ]

Section C of the Statement summarizes the “Responsibilities of the Participants in the Justice System”. The governing principle set out therein is, “All participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.”

Section C provides guidance for judges, court administrators, members of the bar, and self-represented litigants. [ 92 ] Members of the bar are “expected to be respectful of self-represented persons and to adjust their behaviour accordingly when dealing with self-represented persons”. Members of the bar are to avoid using complex legal language in their communication with self- represented persons. [ 93 ] The record demonstrates that counsel for the defendants are each well aware of the expectations summarized in the preceding paragraph. Counsel for the Doctors was respectful in his communication with Mr. Beazley regarding deficiencies in the latter’s motion materials. [ 94 ]

Section C of the Statement sets out three specific expectations of self-represented persons: 1. Self-represented persons are expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case. 2. Self-represented persons are expected to prepare their own case. 3. Self-represented persons are required to be respectful of the court process and the officials within it. Vexatious litigants will not be permitted to abuse the process. [ 95 ] It is now four and more years into this proceeding. Mr. Beazley has multiple court appearances under his belt.

A timetable was clearly set for the exchange of expert reports and the exchange of motion materials. Mr. Beazley had the benefit of seven examples of an affidavit from an expert witness. I find it unreasonable for Mr. Beazley to expect, simply because he is a self-represented litigant, to receive the requested indulgence from the court. [ 96 ] I find that Mr. Beazley failed to familiarize himself with the applicable practices and procedures relevant to the presentation of affidavit evidence from an expert witness. Mr.

Beazley’s handling of that aspect of his case falls short of the standard he was required to meet. - Non-compensable prejudice to the defendants [ 97 ] I also find the defendants would suffer insurmountable prejudice if Mr. Beazley were permitted to file the Second Boucher affidavit. Insurmountable prejudice would arise because of the steps taken by the defendants in response to what they understood would be the only affidavit from Dr. Boucher upon which Mr. Beazley intended to rely (i.e., the Boucher affidavit).

The defendants’ response included the following steps: • In their factum dated December 10, 2021, the Doctors address the deficiencies in and/or problems with the Boucher affidavit. For example, at paras. 41-49, the Doctors make submissions as to why the court should give no weight to the contents of Dr. Boucher’s report; • At para. 46 of their factum, the Doctors specifically highlight Dr.

Boucher’s use of the terms “possibly”, “may have”, or “likely”, as opposed to addressing matters in terms of a balance of probabilities; • The parties were before Roger J. on January 6, 2022 to address whether the three motions should be adjourned from the February 2022 dates for which they were then scheduled: Beazley v. Johnston (January 6, 2022), Ottawa 17-74859 (Ont. S.C.) There is nothing in the endorsement of Roger J. or in the evidence before this court to suggest Mr. Beazley raised before Roger J. the possibility of seeking leave to deliver a further affidavit from Dr. Boucher; • Mr.

Beazley took no steps between December 10, 2021 and January 20, 2022 (when Dr. Boucher was cross-examined) to respond to the defendants’ general or specific concerns about the contents of Dr. Boucher’s report; • The Transcript was served on Mr. Beazley several weeks prior to the date on which the hearing of the motion commenced. The cross-examination of Dr. Boucher served to highlight again the position the defendants would be taking in oral submissions regarding the report of Dr. Boucher, including the terms and phrases used therein; and • Mr. Beazley took no steps between the date on which Dr.

Boucher was cross-examined and the return date of the motions to respond to the general or specific points raised by the defendants about the contents of Dr. Boucher’s report. [ 98 ] Based on the evidence of Dr. Boucher, as they understood it on the return date of the motions, counsel for the defendants made their respective oral submissions. Counsel for the Doctors made his oral submissions on March 2, 7, and 11, 2022. Counsel for the Hospital made her oral submissions on April 13, 2022. [ 99 ] On August 23, 2022, when the hearing continued and Mr. Beazley was scheduled to commence his submissions, Mr.

Beazley requested leave to file the Second Boucher affidavit. Mr. Beazley has not provided a reasonable explanation as to why the evidence he wished to adduce through the Second Boucher affidavit was not provided at the outset – let alone during any of the intervals identified above. [ 100 ] It would not have been fair to the defendants to adjourn the motion to permit (

a) Mr. Beazley to file the Second Boucher

affidavit, (

b) the defendants to deliver responding affidavits, and (

c) the defendants to cross-examine Dr. Boucher on the Second Boucher affidavit. In colloquial terms, the cat was out of the bag. The defendants would be cross-examining a witness who had the benefit of knowing what the concerns were with his evidence. Dr. Boucher would have the opportunity to shore up his evidence in response to those concerns. An adjournment would have resulted in non-compensable prejudice to the defendants. [ 101 ] An award of costs thrown away to the defendants, payable by Mr. Beazley, would not address that prejudice. Adjourning the motions with costs thrown away would essentially allow Mr.

Beazley to purchase a ‘do-over’ of the motions. - The application of r. 1.04(1) of the Rules of Civil Procedure [ 102 ] I am also mindful of the general principle set out in r. 1.04(1) of the Rules : “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” To adjourn the motions after six hearing days, would not have been the “just, most expeditious, [or] lease expensive” response to Mr.

Beazley’s request for leave to file the Second Boucher affidavit. [ 103 ] I turn to the first the substance of the three motions before the court, starting with the Doctors’ Motion. The Doctors’ Motion [ 104 ] On their motion, the Doctors bear the onus of establishing there is no genuine issue requiring a trial. If they discharge that evidentiary burden, the onus shifts to Mr. Beazley to demonstrate that his claims against the doctors have a real chance of success. [ 105 ] The claims against the Doctors are based in negligence, negligent misrepresentation, and breach of fiduciary duty.

I will first address the claim in negligence and then each of the other two causes of action.

a) The Claim in Negligence

i) The Doctors Discharge Their Evidentiary Burden [ 106 ] I am satisfied that the Doctors have discharged the evidentiary burden of establishing that there is no genuine issue requiring a trial. ▪ The Doctors’ Evidence [ 107 ] I start with the evidence of the Doctors – the twenty-seven affidavits in which the Doctors describes in detail their involvement in Mr. Beazley’s care and treatment. In their respective affidavits the Doctors identify the date(

s) of their involvement, the nature of their involvement, their interaction (where applicable), and the outcome of their involvement with Mr. Beazley. Where required, the Doctors refer to a contemporaneously prepared record or report. [ 108 ] The evidence of each of the Doctors is uncontradicted. Mr. Beazley did not file any affidavits in response to the Doctors’ respective affidavits. The Doctors’ evidence is also unchallenged through cross-examination. Mr.

Beazley did not cross-examine any of the Doctors. ▪ The Evidence of the Seven Expert Witnesses [ 109 ] The Doctors rely on the evidence of seven expert witnesses. Each of the expert witnesses prepared one or more reports, with some of the experts preparing a report in response to Dr. Boucher’s April 2021 report. [ 110 ] Each of the seven expert witnesses attaches copies of their reports to their affidavit.

Each of the seven expert witnesses makes the following statement in their respective affidavit: “The contents of this affidavit and the attached reports accurately set out my opinions and anticipated testimony in this matter.” By making that specific statement, the seven expert witnesses incorporate by reference the contents of their reports as evidence on the motion. [ 111 ] Each of the seven expert witnesses was practising medicine in their stated field between December 2015 and May 2018 and when they provided their respective reports. Mr.

Beazley did not challenge the qualifications of any of the seven expert witnesses. For each expert witness, Mr. Beazley confirmed to the court his acceptance of the witness’ qualifications to opine on the subjects addressed in their report. I accept the qualifications of each of the seven expert witnesses to opine on the issues of standard of care and causation. [ 112 ] Mr. Beazley cross-examined three of the seven expert witnesses – Drs. Newbigging, Wiginton, and Zoutman. I find that the opinion evidence of Drs. Newbigging, Wiginton, and Zoutman were not negatively affected through cross-examination. [ 113 ] Mr.

Beazley asks the court to conclude that Drs. Newbigging, Wiginton, and Zoutman are biased and to disregard their respective opinions. Mr. Beazley’s request is based in part on the refusal of two of those experts to change their opinion under cross-examination. Mr. Beazley submits that such a dogmatic approach is evidence of bias. [ 114 ] More generally, Mr. Beazley submits that, to the extent each of the seven expert witnesses had the opportunity to look at materials cited by Dr.

Boucher, and failed to do so, that failure is evidence of a lack of objectivity, if not evidence of bias. [ 115 ] I am not convinced that any one of the seven expert witnesses is biased or lacks objectivity. Adherence to an opinion previously expressed is not evidence of bias. Reliance on source materials other than those cited by an opposing expert is not evidence of either a lack of objectivity or bias. The seven expert witnesses simply do not share the opinions expressed by Dr. Boucher.

[ 116 ] Mr. Beazley submits that the seven expert witnesses fail to address the issue of standard of care and, instead, make conclusory statements on that issue. I reject that submission. [ 117 ] As an example, I consider the evidence of family medicine specialist, Dr. Wiginton. At para. 8 of his affidavit, Dr. Wiginton expresses the opinion the defendant, family medicine physicians “met the standard of care of [a] family physician in the diagnosis and treatment of Mr. Beazley in all respects.” [ 118 ] In the paragraphs which follow that statement, Dr.

Wiginton sets out the basis for his opinion on the issue of standard of care. At paras. 9-12, Dr. Wiginton explains that the two-tier test for Lyme disease available from the MOH was the “standard for Lyme disease testing in Ontario at the material time”, including that the testing method was “in keeping with the recommendations of the Federal Government of Canada.” At para. 12, Dr. Wiginton says that even as of 2019, presenters at continuing education programs on Lyme disease, advised against testing in non-approved laboratories, including the California laboratory which Mr.

Beazley cites as the source of his positive test result. [ 119 ] At paras. 13-25 of his affidavit, Dr. Wiginton reviews the involvement of each of the defendant family physicians with Mr. Beazley and addresses how their involvement met the standard of care. The affidavits from the other six expert witnesses follow a similar format.

Where it is within their area of expertise to do so, some of the other expert witnesses also address the reliance on the two-tier test for Lyme disease available from the MOH and the recommendations against reliance on the type of test performed in the California laboratory. ▪ Conclusion – Evidentiary Burden Discharged [ 120 ] Based on the evidence from the Doctors, the opinion evidence of the seven expert witnesses, and the contents of the Joint Book of Medical Records, I find the Doctors have established there is no genuine issue requiring a trial of Mr.

Beazley’s claims against them based in negligence. [ 121 ] As a result of that finding, the burden shifts to Mr. Beazley to satisfy the court that his claims in negligence against the Doctors have a real chance of success. ii) The Claims in Negligence do not Have a Real Chance of Success [ 122 ] In support of his claims against the Doctors, whose practises include seven different fields of medicine, Mr. Beazley relies on the Boucher affidavit. [ 123 ] Mr. Beazley’s position is that because Dr.

Boucher treated more than two hundred patients with Lyme disease, he is uniquely qualified to address not only the standard of care in his area of practice (family medicine and emergency medicine), but he is also uniquely qualified to address the standard of care of physicians in other fields as it relates to the diagnosis of Lyme disease. Mr. Beazley submits Dr. Boucher’s unique position results in him being fair, objective, and non-partisan. [ 124 ] The Doctors’ primary position is that Dr. Boucher is not qualified to give any opinion evidence in this action. The Doctor’s alternative position is that if Dr.

Boucher is qualified to give opinion evidence, the court should give his evidence little or no weight. In support of their alternative position, the Doctors submit Dr. Boucher did not provide a report that is fair, objective, and non-partisan. The Doctors also submit that Dr. Boucher did not limit his opinion evidence to matters within his areas of expertise. ▪ Dr. Boucher’s Qualifications [ 125 ] Dr. Boucher practised medicine in Nova Scotia; he never practised medicine in Ontario. The Doctors do not, however, rely on geography regarding Dr.

Boucher’s evidence. [ 126 ] The Doctors submit the court must consider when Dr. Boucher retired from emergency medicine (2011) and family medicine (2013). Dr. Boucher retired from emergency medicine more than four years prior to Mr. Beazley’s first encounter with one of the defendant physicians at an emergency department (Dr. Johnston, in December 2015, at the Hospital’s Emergency Department). Dr. Boucher had been retired from the practice of emergency medicine for more than ten years when he prepared his April 2021 report and swore the Boucher affidavit. [ 127 ] Similarly, Dr.

Boucher retied from the practice of family medicine more than two years prior to Mr. Beazley’s first encounter with one of the defendant family physicians (Dr. Gill in January 2016). Dr. Boucher had been retired from the practice of family medicine for at least seven years when he prepared the April 2021 report and swore the Boucher affidavit. [ 128 ] There is no evidence to support a finding that, subsequent to his retirement from emergency medicine and from family medicine, Dr. Boucher remained informed and qualified to opine on the standard of care within either field of medicine. [ 129 ] Mr.

Beazley asks the court to conclude that Dr. Boucher is “uniquely qualified” to provide expert opinion evidence because of his work, study, and currency of knowledge regarding Lyme disease. I reject that submission. [ 130 ] The most recent continuing education on the subject of Lyme disease listed in Dr. Boucher’s curriculum vitae is from 2010 and 2011. Dr. Boucher describes attending “International Lyme and Associated Diseases” conferences in those years. The 2010 and 2011 conferences are remote in time to the subject events, to the date of Dr.

Boucher’s report, and to the date on which the Boucher affidavit was sworn. [ 131 ] Dr. Boucher also lists in his curriculum vitae a “2014 Corporate Research Associates study on Lyme/related treatment efficacy of practice patients”. There is no evidence regarding the particulars of that study or how the study might be relevant to the standard of care and causation issues to be determined in this action.

[ 132 ] There are five entries in Dr. Boucher’s curriculum vitae for the years 2017 to 2021 for committee membership, presentations made, studies done, and a single publication. There is no evidence as to the potential relevance of any one of those entries to the standard of care and causation issues to be determined in this action. [ 133 ] Last, in his curriculum vitae , Dr. Boucher identifies that, in the years 2006 to 2013, he treated over 200 patients with Lyme disease. Dr. Boucher does not provide an annual breakdown of the number of patients with Lyme disease treated in each of those years. Nor does Dr.

Boucher address the percentage of his overall patient population that patients with Lyme disease represent. [ 134 ] The evidence does not support a conclusion that Dr. Boucher is either “uniquely qualified” or current, so as to be in a position to provide any opinion evidence in this action. Even if Dr. Boucher were qualified to give opinion evidence in the fields of family medicine or emergency medicine – which I find he is not – I find that Dr.

Boucher’s experience in and knowledge about Lyme disease does not somehow elevate his status and position him to provide opinion evidence regarding the five fields of medicine in which he did not practice (cardiology, infectious diseases, internal medicine, neurology, and sports medicine). [ 135 ] In

summary, I find that Dr. Boucher is not qualified to give expert opinion evidence as to the standard of care in any one of the seven fields of medicine relevant to Mr. Beazley’s claims in negligence against the Doctors. As a result, Mr. Beazley has not provided expert opinion evidence upon which he is entitled to rely in response to the Doctors’ motion (or in support of his motion). ▪ The Substance of Dr. Boucher’s Report [ 136 ] In his April 2021 report, Dr. Boucher mentions only three of the Doctors by name – Dr. Johnston (family medicine and emergency medicine), Dr. Gill (family medicine), and Dr.

Shukle (internal medicine). [ 137 ] On cross-examination, Dr. Boucher acknowledged that he mentions only Drs. Johnston, Gill, and Shukle by name in his report. Regarding the other twenty-four defendant physicians, Dr. Boucher’s evidence on cross-examination was, “So it’s possible that the other physicians involved did not meet the standards of care, although I didn’t identify them.” [2] Also on cross- examination, Dr.

Boucher agreed that, in his report, he did not “specifically set out how it was that each of those [twenty-four] other doctors likely or possibly did not meet the standard of care”. [3] [ 138 ] Even if I were to conclude that Dr. Boucher is qualified to give expert opinion evidence – which I do not – he expressed an opinion regarding only three of the Doctors. There is a complete lack of any evidence from Dr. Boucher regarding the issues of standard of care and causation and the twenty-four defendant physicians who are not mentioned by name in Dr.

Boucher’s report. [ 139 ] What might the court make, in any event, of the opinions expressed regarding Drs. Johnston, Gill, and Shukle? [ 140 ] Regarding Dr. Johnston, Dr. Boucher’s opinion is that “Dr. Johnston possibly fell below the standard of care expected of a physician and that this may have contributed to the resulting chronic illness that Mr. Beazley subsequently experienced. Regarding family physician, Dr. Gill, Dr. Boucher opined, “Dr. Gill possibly fell below the standard of care expected of a physician which likely contributed to the resulting chronic illness that Mr.

Beazley endured.” [ 141 ] For the two physicians whose area of practice overlaps with Dr. Boucher’s areas of practice prior to his retirement, Dr. Boucher does not address the issues of standard of care and causation on a balance of probabilities; the opinions expressed, even if admitted – which they are not – fall short of the evidentiary burden to be met at this stage of the two-step process on a motion for

summary judgment. [ 142 ] The opinion expressed by Dr. Boucher regarding the standard of care that internal medicine specialist, Dr. Shukle was required to meet when he saw Mr. Beazley, first in August 2016 and again in September 2016, is outside Dr. Boucher’s areas of expertise. In any event, the substance of Dr. Boucher’s opinion regarding Dr. Shukle is that the care provided “likely fell below the level of care expected from an internal physician which likely contributed to the resulting chronic illness that Mr. Beazley endured.” Dr.

Boucher does not address the issues of standard of care and causation on a balance of probabilities; the opinion expressed, even if admitted – which it is not – falls short of the evidentiary burden to be met at this stage of the two-step process on a motion for

summary judgment. ▪ Dr. Boucher is not Fair, Objective or Non-partisan [ 143 ] To be fair and objective, it is important for an expert witness to consider all of the information and documentation relevant to the matters about which they have been asked to opine. I find that Dr. Boucher failed to review all of the relevant information and documentation: • Mr. Beazley did not provide Dr. Boucher with a copy of the Doctors’ statement of defence and Dr. Boucher did not ask for a copy of that document. [4] • Dr.

Boucher had available to him but did not review the entire 2,000 pages of medical records in the Joint Book of Medical Records. [5] [ 144 ] It is unclear whether Dr. Boucher was provided with reports prepared by the seven expert witnesses which pre-date Dr. Boucher’s April 2021 report. Some of the reports from those witnesses post-date, and were produced in response to, the April 2021 report. On cross-examination, Dr. Boucher’s evidence was that he was not aware of any of the reports from the seven expert witnesses. [6] During Dr. Boucher’s cross-examination, Mr.

Beazley asserted on the record that he provided Dr. Boucher with the reports from the seven experts which pre-date Dr. Boucher’s April 2021 report. [7]

[ 145 ] In the end, Dr. Boucher agreed that if he was provided with reports from the seven expert witnesses, he did not, as of the date of his cross-examination, recall reviewing any of those reports. [8] [ 146 ] Dr. Boucher’s lack of fairness and objectivity is also demonstrated by his decision to rely on information provided by Mr. Beazley, without reviewing the relevant medical record to ascertain whether the contents of the medical record accords with the information from Mr. Beazley. [9] A lack of fairness and objectivity is also demonstrated by Dr.

Boucher’s choice to include in his report contents “lifted” from the materials provided by Mr. Beazley. [10] Dr. Boucher acknowledged that the appendices to his April 2021 report were “copied and pasted” from materials provided by Mr. Beazley. [11] [ 147 ] The extent to which Dr. Boucher chose to rely on information and documentation from Mr. Beazley, without any question or due diligence on Dr. Boucher’s part, is made crystal clear by the following series of questions and answers from the cross-examination of Dr.

Boucher: Q. 118 And based on what you’ve told me in terms of your review of the medical records am I correct in assuming that for any of the statements that Mr. Beazley made with respect to what he was reporting, how he was feeling, you did not review the records to double-check or confirm that that was what was recorded? A. That’s correct. Q. 119 And as a physician who has practiced for as many years as you have, you know, 35 years you understand the importance of medical records and making good contemporaneous notes? A. Yes.

Q. 120 And so when you have a dispute or a disagreement between what a patient says happened and what a doctor says happened the first place you’re going to look is the contemporaneous notes say? A. Yes. Q. 121 Okay. And you didn’t engage in any scrutiny or due diligence to confirm Mr. Beazley’s story? A. No, I took his word for it. [ 148 ] Dr. Boucher denies that he approached his role in this action as an advocate for Mr. Beazley. [12] Dr. Boucher does, however, acknowledge both his perception of himself and his role as an advocate for patients with Lyme disease: Q. 197 Okay.

Fair to say Sir you see yourself as an advocate for change in Canada with respect to how patients are treated who may be at risk of developing Lyme Disease? A. Yes. Q. 198 And as we’ve already talked about you’ve assisted over 200 patients from across the country so people seek you out, don’t they? A. They did, yes. Q. 199 Yes because you’re seen as someone who questions the current approach and can advocate for them, right? A. Yes. [ 149 ] For the reasons given in this

section of the ruling, I find that Dr. Boucher is not fair, objective, or non-partisan. ▪ Conclusion – Dr. Boucher’s Evidence [ 150 ] Dr. Boucher is not qualified to give expert opinion evidence on the issues of standard of care and causation regarding the care and treatment of Mr. Beazley by any one of the Doctors. Even if Dr. Boucher were qualified to do so, he expressed opinions regarding only three of the Doctors – Drs. Johnston, Gill, and Shukle. The opinions expressed regarding those three physicians fall short of the evidentiary burden to be met at this second stage of the two-step process on a motion for

summary judgment. In any event, Dr. Boucher did not approach his role as an expert witness in a fair, objective, and non-partisan manner when providing his opinions in this action. [ 151 ] I give Dr. Boucher’s evidence no weight. Mr. Beazley does not have an expert opinion that is supportive of his claims against the Doctors in negligence. iii) The Lack of a Supportive Expert Opinion [ 152 ]

Summary judgment, dismissing a plaintiff’s claim in medical negligence, has been consistently granted where the plaintiff has not served an expert’s report to support the plaintiff’s theory on the issues of standard of care and causation: Latulippe v. Greenspon , 2017 ONSC 6579 , at para. 27 [citations omitted] . More to the point for the Doctors’ motion in this action, where the plaintiff in a medical negligence action has not “produced admissible expert opinion evidence” supportive of the plaintiff’s theory on the issues of standard of care and causation, there is no genuine issue requiring a trial and the motion for

summary judgment must be granted: Galalae v. Kingston (Police Services Board) , 2013 ONSC 5153 , at para. 49 . [ 153 ] Mr. Beazley has not produced admissible expert evidence supportive of his theory on the issues of standard of care and causation. I find there is no genuine issue requiring a trial of Mr. Beazley’s claims in negligence against the Doctors and, in

accordance with the case authorities, those claims must be dismissed. [154] I turn next to Mr. Beazley’s claims in negligent misrepresentation.

b) Negligent Misrepresentation [155] Mr. Beazley alleges that four of the Doctors (“the Four Doctors”) made negligent misrepresentations. Those allegationsare found in paras. 103, 110, 111, 152-153, and 155-158 of the Pleading. In

summary, the allegations are as follows: • Dr. Davidson made negligent misrepresentations about Mr. Beazley’s mental health and about the accuracy of the PCRLyme test; • Dr. Moxon made misrepresentations about the accuracy of the Lyme tests and that there was no evidence of chronic Lymedisease; and • Drs. Nichols and Varghese made negligent misrepresentations about the accuracy of the PCR Lyme test. [156] I will review the law regarding claims in negligent misrepresentation and the evidence before the court regarding thatclaim.

i) The Law [157] In Queen v. Cognos Inc., (SCC), [1993] 1 S.C.R. 87, the Supreme Court of Canada sets out theevidentiary burden to be met by a plaintiff making a claim for damages based in negligent misrepresentation. First, the plaintiffmust establish the defendant alleged to have made a misrepresentation, owed the plaintiff a duty of care.

If the plaintiff satisfiesthe court they were owed a duty of care, the plaintiff must then demonstrate, 1) the statements made by the defendant were untrue, inaccurate, or misleading; 2) the defendant acted negligently in making the statement; and 3) the plaintiff relief on the statement and, as a result of that reliance suffered damages. [158] The Four Doctors do not dispute that, as one of Mr. Beazley’s physicians, they owed him a duty of care.

Therefore, theoutcome on this portion of the Doctors’ motion turns on the shifting evidentiary burden between the Four Doctors and Mr.Beazley. ii) The Four Doctors Discharge Their Evidentiary Burden [159] The allegations of negligent misrepresentation range from a general allegation that misrepresentations were made abouta subject matter to a quote of a specific statement made by one of the Four Doctors. I leave aside whether claims in negligentmisrepresentation are properly framed in the Pleading.

I look past any deficiencies in the Pleading. [160] Have the Four Doctors established that there is no genuine issue requiring a trial of the claims in negligentmisrepresentation? The Four Doctors rely on their respective affidavits and on the evidence of the expert witnesses who addressthe relevant field of medicine (Drs. Newbigging, Wiginton, and Zoutman). [161] Based on my review of the relevant portions of the affidavits of the Four Doctors, Dr. Newbigging, Dr. Wiginton, and Dr.Zoutman, there is no genuine issue requiring a trial of Mr.

Beazley’s claims in negligent misrepresentation: • There is no evidence that the statements made by the Four Doctors regarding Lyme tests, including the PCR test, andLyme disease were untrue, inaccurate, or misleading; • The evidence supports a finding that when Dr. Davidson queried with Mr. Beazley whether he was suffering from a mentalhealth issue, Mr. Beazley declined the offer made of a referral for a mental health assessment; and • There is no evidence that Mr. Beazley relied, to his detriment, on any of the statements about Lyme tests, etc. which healleges were misrepresentations. For example, Mr.

Beazley was under the care of Toronto-based physician before he even sawDrs. Davidson, Nichols and Varghese. [162] As a result of my finding that the Four Doctors have demonstrated there is no genuine issue requiring a trial of theclaims in negligent misrepresentation, the burden shifts to Mr. Beazley to establish those claims have a real chance of success. iii) The Claims in Negligent Misrepresentation do not Have a Real Chance of Success [163] Mr. Beazley did not deliver an affidavit in response to the evidence of the Four Doctors regarding the allegedmisrepresentations. Dr.

Boucher’s affidavit does not address the alleged negligent misrepresentations Dr. Boucher does notaddress, in his April 2021 report, the care and treatment of Mr. Beazley by any one of the Four Doctors by name. [164] Mr. Beazley failed to meet the evidentiary burden of demonstrating that his claims in medical negligence have a realchance of success. iv) Conclusion – Claims in Negligent Misrepresentation [165] The claims in negligent misrepresentation against each of Drs. Davidson, Moxon, Nichols, and Varghese are dismissed. I

turn to the claims of breach of fiduciary duty.

c) Breach of Fiduciary Duty [166] At paras. 66 and 68 of the Pleading, Mr. Beazley alleges the Doctors owed him a fiduciary duty. In the allegationsagainst each of the Doctors by name, Mr. Beazley does not address their respective alleged breaches of fiduciary duty. [167] The alleged breaches of fiduciary duty are addressed at paras. 162-165 of the Pleading. I agree with the Doctors’submission that the allegations in paras. 162-165 speak of both a duty of care generally and a fiduciary duty without – in thoseparagraphs or elsewhere – any allegations to distinguish between the general and more specific duties.

I find that the breach offiduciary duty claims are not stand alone claims; they are inextricably linked to the claims in negligence. As a result, the claimsin breach of fiduciary duty do not require a different analysis from the claims in negligence: see Dale v. Frank, 2017 ONCA 32,136 O.R. (3d) 315, at para. 11. [168] For the reasons discussed above regarding the claims in negligence against the Doctors, the claims in breach of fiduciaryduty are dismissed.

d) Summary – Outcome on the Doctors’ Motion [169] The Doctors are successful on their motion and Mr. Beazley’s claims against them are dismissed in their entirety. The Hospital’s Motion [170] Mr. Beazley’s claims against the Hospital are based in negligence and vicarious liability, with the latter being theprimary claim. [171] The evidence upon which the Hospital relies in support of its motion and in response to Mr. Beazley’s motion is found ina law clerk affidavit (see para. 44, above) and two affidavits from Colette Ouellet (see paras. 45-46, above). Ms.

Ouellet is theDirector of Infection Prevention and Control, Quality, Patient Safety, Risk Management and Bed Flow for the Hospital. [172] Mr. Beazley did not deliver an affidavit in response to either the law clerk’s affidavit or the first of the two Ouelletaffidavits (the second of the Ouellet affidavits was delivered in response to Mr. Beazley’s motion). Ms.

Ouellet was not cross-examined on either of her affidavits. [173] The Hospital also relies on the evidence of the Doctors, the contents of the relevant medical records, and the evidence ofthe seven expert witnesses. [174] I will deal first with the claim in vicarious liability.

a) Vicarious Liability

i) The Hospital Discharges its Evidentiary Burden [175] Based on Ms. Ouellet’s uncontradicted and unchallenged evidence, I make the following findings: • Ten of the Doctors were active members of the Hospital’s medical staff and held privileges to practice medicine at theHospital between December 2015and August 2016 (i.e., the period during which Mr. Beazley attended at the EmergencyDepartment of the Hospital). Those ten physicians are Drs.

Johnston, Trecarten, Gopalan, Keses, Ward, Nicholson, Cohn,Harris, Rabinovitch, and Nichols (“the Privileged Physicians”); • As physicians, with privileges to practice medicine at the Hospital, each of the Privileged Physicians was an independentcontractor; none of the Privileged Physicians was an employee of the Hospital; • Two of the individuals involved in Mr. Beazley’s care at the Hospital between December 2015 and August 2016 weremedical residents (“the Residents”, as defined above).

Those two individuals are not named as defendants; and • Medical residents are duly licensed medical practitioners engaged in a program of post-graduate medical education. [176] For the reasons set out in the analysis of the Doctors’ motion, there is no admissible genuine issue requiring a trial of theclaims in negligence against the Privileged Physicians or the Residents.

As a result, there is no genuine issue requiring a trial ofthe claim against the Hospital in vicarious liability. [177] The law is, in any event, well-settled that vicarious liability is not imposed on a hospital for the actions and/or decisionsof a physician – even when the physician is negligent: Yepremian et al. v. Scarborough General Hospital et al. (1980), (ON CA), 28 O.R. (2d) 494 (C.A.). [178] I find there is no genuine issue requiring a trial of Mr.

Beazley’s claim against the Hospital based in vicarious liability. ii) The Claim in Vicarious Liability does not Have a Real Chance of Success [179] There is no affidavit from Mr. Beazley addressing his claim against the Hospital based in vicarious liability. Even if Dr.Boucher’s evidence were admissible – which it is not – he does not in any way address vicarious liability. There is no expertopinion evidence to support this component of Mr. Beazley’s claim against the Hospital. [180] There is no evidence to support a conclusion that Mr. Beazley’s claim in vicarious liability against the Hospital has a real

chance of success. iii) Conclusion – Claim in Vicarious Liability [ 181 ] The claim in vicarious liability against the Hospital is dismissed.

b) Negligence

i) The Hospital Discharges its Evidentiary Burden [ 182 ] Based on Ms.

Ouellet’s uncontradicted and unchallenged evidence, I make the following findings: • Hospitals in Ontario are not required to have policies protocols or guidelines regarding medical diagnoses; • Forming a medical diagnosis is part of the scope of practice of physicians with privileges to practice medicine at the Hospital; • Hospital policies, protocols and guidelines are not, in any event, intended to address, mandate or govern physician responsibilities; • The Hospital does not dictate which reference materials, resources, or guidelines – available to the physicians outside the Hospital – the physicians rely on in making a clinical diagnosis. [ 183 ] Based on the findings made in the preceding paragraph, I find that there is no genuine issue for trial regarding the alleged negligence of the Hospital. ii) The Claim in Negligence does not Have a Real Chance of Success [ 184 ] There is no affidavit from Mr.

Beazley addressing his claim against the Hospital based in negligence. [ 185 ] Mr. Beazley has not produced any expert evidence – let alone any admissible expert evidence – addressing the issues of standard of care and causation in relation to the Hospital. For ease of reference, I once again repeat the contents of para. 6 of the Boucher affidavit (i.e., the only substantive opinion expressed by Dr. Boucher on the issue of standard of care): It is my professional opinion that the Defendant Physicians and Queensway Carleton Hospital failed to provide appropriate care to Mr.

Beazley as noted with many of their clinical diagnoses, laboratory investigations, treatment and decisions fell below the standard of care expected of physicians and particular focus on the earlier physician encounters although the analysis also applies to the later physician encounters. [ 186 ] The opinion addresses “clinical diagnosis, laboratory investigations, treatment and decisions” with a “particular focus” on physician encounters (the earlier more so than the later encounters).

Nothing in para. 6 of the Boucher affidavit addresses the Hospital’s standard of care distinct from the physicians’ standard of care. [ 187 ] On cross-examination, Dr. Boucher made the following admissions: • He was provided by Mr. Beazley with the Hospital records but did not review them to determine whether the Hospital met the standard of care relevant to Mr.

Beazley’s claims against the Hospital (p. 85, q. 283); • In his April 2021 report, he does not express any opinion as to whether the Hospital met the relevant standard of care (p. 84, q. 279); and • As regards the Hospital, the contents of para. 6 of his affidavit are inconsistent with the contents of his report (pp. 85-86, q. 284). [ 188 ] Even if Dr.

Boucher’s evidence were admissible – which it is not – the acknowledged inconsistency between the contents of para. 6 of the Boucher affidavit and the contents of the April 2021 Boucher report is such that I would not rely on the affidavit evidence. [ 189 ] I find that Mr. Beazley has failed to demonstrate that his claim in negligence against the Hospital has a real chance of success. iii) Conclusion – Claim in Negligence [ 190 ] Mr. Beazley’s claim in negligence against the Hospital is dismissed.

c) Summary – Outcome on the Hospital’s Motion [ 191 ] The Hospital is successful on its motion and Mr. Beazley’s claims against the Hospital are dismissed in their entirety. Mr. Beazley’s Motion [ 192 ] On his motion, Mr. Beazley asks the court to grant partial

summary judgment, against all defendants, on the issue of liability. Mr. Beazley asks for other relief related to the pleadings, the discovery process, and what appears to be an evidentiary ruling. I will deal first with the motion for partial

summary judgment.

a) Partial

Summary Judgment [193] Before embarking on hearing a m

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