In Muslija, the court considered whether a party to a civil proceeding can be entitled to more than one Examination for Discovery (ED) of the opposing party. Potts J. found that that the Rules contemplate only one ED for each party. Consequentially, leave for further EDs, can only be granted in unusual circumstances.
The counsel for the Plaintiff discontinued an ED of the Defendant taking the position that counsel for the Defendant was frustrating the discovery process. A master’s decision granted the Plaintiff leave for a second ED. The Defendant appealed the decision. The court allowed the appeal.
In denying the plaintiff an opportunity to conduct a second ED, Potts J. reviewed the principles pertaining to EDs in general and the circumstances under which a second ED ought to be granted.
i. Principles which govern EDs
Potts J. found that the general rules of civil procedure are designed to encourage and promote complete disclosure. He reiterated the rationales for EDs as they were set out by Trainor J. in Ontario Bean Producers’ Marketing Board v. W.G. Thompson & Sons Ltd. These rationales (Trainor Rationales) were listed as follows
(a) to enable the examining party to know the case he has to meet;
(b) to procure admissions to enable one to dispense with formal proof;
(c) to procure admissions which may destroy an opponent’s case;
(d) to facilitate settlement, pre-trial procedures and trials;
(e) to eliminate or narrow issues;
(f) to avoid surprise at trial . . .
It follows that a motion to conduct a second ED under 31.03(1) has to be couched in one or more of the Trainor Rationales with the greater view to promoting complete disclosure.
ii. Allowing a second ED:
With respect to allowing leave for a second ED, Potts J. found that:
The proper procedure to be taken is based on the premise that there be only one examination for discovery. The court does have the authority to grant a further examination for discovery under rule 31.03, but leave is not usually granted. The court will require the applicant to demonstrate al legitimate reason why the court should cause the examining party to undergo a further examination for discovery.
Potts J. did not specify what constitutes a legitimate reason for allowing a second ED. However, he did offer three examples where a second ED had been allowed by the court. Chorney infra and April infra are discussed bellow. The master’s decision of Hill-Clark-Francis Ltd. v. Schneider is not available on Quicklaw.
Chorney v. Colwill (1986), 19 C.P.C. (2d) 195 (Ont. H.C.J.); April Investments Ltd. v. Menat Construction Ltd. (1975), 11 O.R. (2d) 364 (H.C.J.); Hill-Clark-Francis Ltd. v. Schneider,  O.W.N. 520 (Master).
Anand is a recent case which addressed the admissibility of statistical evidence to determine a projected retirement age. The statistical evidence was tendered as two expert reports. Anand remains a good indicator of whether statistical evidence can be excluded.
In Anand, the plaintiff suffered injuries as a result of an MVA. In the ensuing action, the plaintiff was seeking damages for future income loss. She submitted evidence to the effect that she was going to work at least until the age of 65. The defence tendered two expert reports. One of the reports was conducted by Mr. Pesando. It employed statistics to examine the retirement pattern of Canadian females and the relationship between disability and age (Pesando evidence). The Pesando evidence did not specifically address the plaintiff and offered no opinion on her retirement prospects.
The plaintiff took the position that she was the best instrument with which to judge the date of her projected retirement and the statistics were not sufficiently relevant to be admitted.
The trial judge found that the statistics should not be given much weight and that the jury should be instructed accordingly. However, he also found that the probative value of statistical evidence outweighed its prejudicial effect. Both reports had been accepted as evidence.
Draper is the leading case on the issue of judicial discretion to exclude real evidence in civil matters. The Supreme Court of Canada allowed photographs of the operative procedures performed on a plaintiff’s face where the issue was quantum of damages but not liability. The jury was instructed that they may take into account the plaintiff’s pain and discomfort as well as the unattractiveness of the plaintiff’s face during the period of recovery. Spence J. reasoned that:
The occasions are frequent upon which a judge trying a case with the assistance of a jury is called upon to determine whether or not a piece of evidence technically admissible may be prejudicial to the opposite side that any probative values overcome by the possible prejudice and that therefore he should exclude the production of the particular piece of evidence … The matter is always one which is difficult for the trial judge and in itself essentially a decision in which the trial judge must exercise his own carefully considered personal discretion.
Draper did not offer a framework in which to weigh the probative value and the prejudicial effect of the tendered evidence.
The Ontario Superior Court of Justice recently released a decision which highlights some of the cost considerations involved in medical malpractice cases. The parties in Manary v. Dr. Martin Strban, et al had agreed to a quantum of damages of $430,000 in the event of a finding of liability. At trial, the plaintiffs were successful against one of the physicians, Dr. Steven D. Halmo, but not against the other physicians, Dr. Nasr Hanna and Dr. Martin Strban.
The plaintiffs sought costs of $421,574.48 for fees and $108,074.75 for disbursements, but unsuccessful defendant claimed the appropriate costs should be closer to $170,000. The factors a court considers when assessing costs under the Rules of Civil Procedure include
58.06 (1) In assessing costs the assessment officer may consider,
(a) the amount involved in the proceeding;
(b) the complexity of the proceeding;
(c) the importance of the issues;
(d) the duration of the hearing;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted; and
(h) any other matter relevant to the assessment of costs.
Although the costs sought by the plaintiffs exceeded the damages at trial, and the trial length was 19 days, Justice Kent cited Dybongco-Rimando Est. v. Jackiewicz, , O.J. No. 534 and Hassen v. Anvari to indicate that costs in complicated medical malpractices can and do equal or exceed damages. The court noted that the defendants were represented by Sarit Batner and Eli Mogil, both of McCarthy Tetrault, and would have known through their work with the Canadian Medical Protective Association the amount of time and preparation would be requiremed by the plaintiffs for trial.
The defendants claimed that the trial could have been shorter if the plaintiffs agreed to a without-cost dismissal against the other defendants, but the court noted that no Rule 49 offer was made. The plaintiffs did offer five days before trial to dismiss the claim against the other defendants if the defendants agreed to concede a failure to meet the standard of care and try the causation issue alone. Consequently, they sought costs on a substial indemnity basis from this point on. Although Rule 49.13 provides judicial discretion for costs, Justice Kent held that the plaintiffs’ offer did not entitle them to substantial indemnity.
Justice Kent slightly reduced the plaintiffs’ cost submission and awarded $400,000 inclusive of disbursements and exclusive of appropriate taxes, noting that a party who is not successful against all defendants does not necessarily obtain a costs award against them all.
In Van Dyke v. Grey-Bruce Regional Health Centre,  O.J. No. 413;  O.T.C. 692, the court considered a global offer to settle up until 5 minutes before trial. When the plaintiff exceeded their offer at trial, Justice Van Melle stated,
16 The fact that the offer to settle was a global offer made to all the defendants does not affect my decision in this regard. The offer could have been accepted by any one defendant or the defendants could have apportioned liability amongst themselves. See Rooney (Litigation Guardian of) v. Graham, 53 O.R. (3d) 685 (C.A.) 699 and Waxman v. Waxman (Trustee of),  O.J. No. 87, (2003-01-10) ONSC 33234-88.
In Rooney, the Ontario Court of Appeal described Bulllock orders and Sanderson orders,
 A Bullock order directs an unsuccessful defendant to reimburse the plaintiff for the recovered costs of a successful defendant. A Sanderson order directs that the payment go directly to the successful defendant. The [rationale] behind both orders is the same. Where the allocation of responsibility is uncertain, usually because of interwoven facts, it is often reasonable to proceed through trial against more than one defendant. In these cases, a Bullock or Sanderson order provides a plaintiff with an appropriate form of relief.
The court also emphasized the important role of Rule 49 offers in litigation,
 Rule 49 has been, perhaps, the most successful innovation of the 1984 amendments. It is the one rule that clients are attuned to. Lawyers deal with the other rules regulating the progress of litigation largely on their own judgment. The offer to settle and its implications come straight home to the client for a decision. It should remain easy to understand and respond to without doubt as to its effect.
 I am not unmindful of the fact that the underlying purpose of Rule 49 is to encourage imaginative approaches to offers to settle and induce settlement. An escalating or declining offer is an effective means of attracting the serious attention of the opposite party. Arguably, these offers should be encouraged. However, the tactical purpose of such an offer can be accomplished without undermining the Rules, simply by withdrawing an offer and serving it afresh from time to time. A demand for additional amounts in each successive offer will compensate for any decrease in the ultimate recovery of solicitor and client costs, while maintaining the integrity of the offer to settle machinery.
Rooney was also considered in Waxman, where the court examined the plaintiffs’ several offers to settle, including two global offers and separate offers to settle seperate actions. Justice Sanderson cited Rooney and explained its significance for interpreting cost consequences of Rule 49 offers in global settlements,
80 A global offer may be capable of attracting the cost consequences of rule 49.10. In Rooney (Litigation Guardian of) v. Graham (2001), 53 O.R. (3d) 685 (C.A.), the plaintiff who was involved in two separate motor vehicle accidents and commenced five separate actions that were tried together, made a global offer to all the defendants in the various actions. The trial judge ordered the unsuccessful defendants to pay the plaintiff’s solicitor and client costs from the date of the offer. On appeal, the defendants submitted that the offer could not have been accepted by any one defendant. Laskin J.A. concurring in the result with Carthy J.A. but for different reasons, said at para. 53-54:
 … This contention is effectively answered by Justice Rutherford’s comments in Carleton Condominium Corp. No. 97 v. Costcan Development Corp.,  O.J. No. 4091 (Gen. Div.):
I think Rule 49 permits a plaintiff to make a global offer to multiple defendants putting the onus on them to come up with a method of sharing the burden of accepting the offer or risking the burden of solicitor-client costs if the offer is not accepted and, overall, the trial result is more favourable to the plaintiff.
This approach creates a considerable incentive for multiple defendants to try to find a formula for acceptance of an offer to settle. Such global offer does not prejudice individual defendants, all of whom can deal with such a global offer in concert with the other defendants or as individuals by offering an amount to settle just as against it. In this case, while the global offer by the plaintiff was not accepted by the defendants, each of them submitted a subsequent offer to the plaintiff, in an amount significantly less than each was adjudged liable to pay in the trial judgment.
I therefore conclude that Rooney’s offer to settle, which includes provisions for ongoing solicitor-and-client costs and prejudgment interest after the date of the offer is a Rule 49 offer, and attracts the cost consequences of rule 49.10.
The Ontario Superior Court of Justice recently released the decision in Cooper v. Valiulis, 2012 ONSC 664. The plaintiff, represented by Robert Durante of Oatley, Vigmond and Gayle Brock, claimed that the defendant, Dr. Algis Valiulis, was liable for determining that she was an appropriate candidate for revision bariatric surgery.
Between 1979-1988 the plaintiff had three sons and gained considerable weight, despite trying diets, weight loss clinics, exercise classes, medications, injection therapy and self-help videos. Due to joint pain, occasional stress incontinence and shortness of breath, she underwent vertical banded gastroplasty (VBG) or vertical gastric partitioning (VGP) on February 3, 1988. She dropped from 268 pounds to 130 pounds following the surgery, but then regained 70 lbs by 1991.
She was referred to the defendent on April 2, 2001, and carried out a gastroscopy on her on May 28, 2011. No sign of the VBG was noted, suggesting the staple line opened and her stomach was back to its previous size. During a consulation with the defendant on July 4, 2002, he decided she was a suitable candidate for Roux-en-Y gastric bypass surgery (RYGB).
The court referred to “Update: Surgery for the Morbidly Obese Patient” to identify factors that surgeons typically use to identify candidates for bariatric surgery:
- chronic back pain
- chronic neck pain
- chronic knee pain
- chronic hip pain
- cervical disk disease
- lumbar disk disease
- urinary stress incontinence
The defendant did not explicitly reference any of these criteria during his final consult, and instead invoked the plaintiff’s weight as interfering with her quality of life. Although the medical records did show that the plaintiff suffered some of these symptoms, the defendant did not ask the plaintiff if any of these symptoms interferred with her work, household activities, or recreational trips and family outings. The plaintiff alleged that her back pain was assumed to be due to obesity without a proper history that would include traumatic accidents, medication history, and consultation with other physicians. She indicated at trial that her back and hip pain did not interefere with any of this work or activities.
Following the surgery the plaintiff was readmitted to the hospital three times between December 29, 2002 and June 27, 2003, and underwent four surgeries.
The standard of care in medical malpractice cases is established in Crits v Sylvester,  O.J. No. 526,
 …The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.
Justice Shaughnessy summarized the principles of the standard of care in medical malpractice expressed by the Supreme Court of Canada in ter Neuzen v. Korn,  S.C.J. No. 79,
(a) A doctor has a duty to conduct his practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. That conduct must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence.
(b) Courts generally determine whether the conduct of a doctor breached the standard of care he/she owed to his/her patient by referring to the standard practice of the profession. If the doctor acted in accordance with a recognized and respectable practice of the profession, he/she will not be found negligent.
(c) Where common sense and prudence suggest the doctor’s conduct was negligent, no reference is needed to the standard practice of the profession. In such a case the trier of fact may find the doctor negligent for failing to adopt obvious and existing alternatives to avoid risk of injury to his/her patient.
The plaintiff referred to Webster v. Chapman and McArdle Estate v. Cox to suggest that negligence can be found from a failure to adopt obvious and existing alternatives, and that the standard of care of a physician increases with the degree of risk.
The defendent relied on Brics v Stroz,  O.J. No. 1089 and Gallant-Clough v. Anderson to claim that a physician must be judged by the knowledge they had at the time of treatment and they are not judged by hindsight.
Justice Shaughnessy referenced Schade v Chris and Baker v McBroom,  O.J. No. 2597 to point out that a complication after the fact does not indicate negligence. Gent and Gent v. Wilson,  O.J. No. 535 and Tacknyk v. Lake of the Woods Clinic and Brown,  O.J. No. 170 indicate that the standard of care is based on the particular circumstances of the case and is a matter for the court, not medical experts, whose views are only taken into consideration.
Clinical guidelines were referenced extensively in the trial, and Bafaro v Dowd held that they are not the equivalent of the legal standard of care,
Standard of Care vs. Clinical Guidelines
 In De Jong v. Owen Sound General,  O.J. No. 809 (Gen. Div.) the Court held that while: “practice guidelines” may be generally respected and therefore relevant considerations in the Court’s assessment of the standard of care, they are not intended to, and do not determine the legal standard of care that the Court will impose on a medical professional, especially where there is expert opinion evidence on the standard of care with reference to the facts of the particular case.
Physicians following a respectable opinion that may be in the minority will not be found negligent, because the courts lack the institutional competence to decide between reasonable medical models (Connell v. Tanner).
After reviewing the testimony of the medical experts Justice Shaughnessy rejected the strict use of guidelines as an approach that would lead to irrational clinical results, especially since the plaintiff underwent revision surgery, not primary surgery. Candidacy for bariatric surgery was largely dependent on the exercise of clinical judgment on by the surgeon, and there was considerable variation in the standard of practice.
The defendent utilized obesity-related comorbidity criteria that was in accordance with a respectable body of medical opinion, and could not be held liable.
The Rule in Browne v Dunn
Justice Shaughnessy also commented on the credibility of the plaintiff, who called into evidence information related to a Physical Demand Analysis (PDA) conducted on June 28, 2002 using an Arcon System, in connection with a Post-Offer Screen for a job offer. Although the physiotherapist administrering the test concluded she was within normal limits and physically fit for the job, she did not have the plaintiff’s medical records or proper history, and did not know she was on pain medications during the assessment.
The history that the plaintiff provided Ms. Sharon Gabison, the physiotherapist, included that she had no prior illnesses or surgeries and no prior WSIB claims. Justice Shaughnessy stated,
 I have noted that this history provided by the plaintiff seriously conflicts with other evidence given by the plaintiff at trial. She had a VBG in 1988; she had a long history of lower back pain; she had musculoskeletal injuries sustained in a motor vehicle accident, and at her workplace she had a WSIB claim. She also had numerous medical treatments related to her joint pains and injuries, as well as Xylocaine and Marcaine injections.
In response to this the plaintiff claimed that the information used to impeach her credibility violated the rule in Browne v. Dunn. Justice Shaughnessy responded,
 … the plaintiff testified in chief concerning her past health, accidents and WSIB claim. The plaintiff called as her witness Ms. Gabison, and introduced through this witness the history provided by the plaintiff. The defense did not call this evidence. No objection was made at trial. I find that the rule in Browne v. Dunn does not apply.
The Ontario Court of Appeal released the decision today in Placzek v. Green, 2012 ONCA 45, upholding the decision of Justice Helen Rady in dismissing a jury in a motor vehicle collision involving a plaintiff with fibromyalgia.
The plaintiff, represented at trial by Barbara Legate and Ryan Steiner, had two previous motor vehicle collisions, and suffered injuries when the vehicle driven by her husband was struck from behind on March 4, 2003. She claimed damages for pain in the head, neck and back; headaches; and numbness throughout the left side of her body. The plaintiff’s injuries were complicated by a history of fibromyalgia, diagnosed in 1991, which she claimed were aggravated by the collision. As a result, Justice Rady ruled,
 Given the complexity of Mrs. Placzek’s pre-motor vehicle accident health history and the accounting evidence, as well as certain tactical decisions taken by the defence, the jury was discharged for written reasons delivered earlier. Much of the expert evidence was filed on consent, thereby saving considerable trial time. In addition, Mr. Green was unable to attend court to testify because of impending cancer surgery. His examination for discovery transcript was admitted as his testimony at trial.
Justice Rady provided written reasons for her decision on April 7, 2010, after the trial,
10 Except where the matter comes within the list of exclusions prescribed by s. 108 of the Court of Justice Act or another statute, a party to an action may require that the issues of fact be tried or the damages be assessed, or both, by a jury. It has long been recognized that the right to a jury trial is a substantive one and a party may be deprived of that right for cogent and compelling reasons only. See, for example, Jackson et al v. Hautala (1983), 42 O.R. (2d) 153 (Div. Ct.), Sloan v. Toronto Stock Exchange,  O.J. No. 1808 (C.A.) and Landolfi v. Vargione,  O.J. No. 1226(C.A.).
11 However, the right to a civil trial by jury is not absolute. The Charter does not confer a right to a civil jury trial: Legroux v. Pitre,  O.J. No. 4505 (C.A.).
12 The onus is on the plaintiff in this case to demonstrate that justice will be better served by the discharge of the jury “…. when the facts, the law or both are such that a jury cannot reasonably be expected to be able to follow the evidence properly or to apply the judge’s charge properly … this must be determined on a case-by-case basis”: Campbell v. Singal (1989), 35 C.P.C. (2d) 283 (Ont. H.C.) as cited in DeBoer v. Bosweld,  O.J. No. 1721 (Gen. Div.).
13 In Ball v. Vincent,  O.J. No. 4340 (Gen. Div.) Abbey J. struck the jury where:
- * the plaintiff had a complex pre-collision medical history;
- * the plaintiff returned to work for a significant period between the time of the collision and the trial, necessitating several assessments of lost income;
- * the plaintiff had suffered two work related injuries between the time of the collision and the trial;
- * there was competing medical, actuarial, vocational and rehabilitation evidence;
- * the issue of the deductibility of collateral benefits had to be addressed.
14 Justice Abbey observed that “… the combination of these foreseeable complexities would present intolerable difficulties for a jury over the course of this trial and that as a result, the case is one which ought not to be tried by a jury.”
15 There are examples in the case law where a jury notice has been struck because the plaintiff was involved in multiple car accidents, creating complexity in assessing the damages attributable to each one See, for example, Wheater v. Walters,  O.J. No. 433 (Gen. Div.) and Gorman v. Falardeau,  O.J. No. 2213 (C.A.).
The Court of Appeal indicated that trial judges retain broad discretion to discharge a jury, which the court will not interfere with except in certain circumstances. In Hunt v. Sutton, Austin J.A. stated,
 The remaining issue in the appeal challenges the trial judge’s discharge of the jury upon the grounds of complexity and public commentary. The law in this regard is clear. The right to trial by jury is a statutory right and a substantial one. A judge, on the motion of a party, may strike out a jury notice or discharge a jury. The trial judge is in the best position to determine how to exercise that power. The decision of the trial judge to keep or to discharge a jury is an exercise of a discretionary power. An appellate court may not interfere with that exercise unless it has been carried out arbitrarily, capriciously or on wrong or inapplicable principles…
The analysis by the court of the trial judge’s decision is as follows,
 We had the benefit of a careful and critical review of the trial judge’s reasons for discharging the jury. As we read those reasons, paras. 16 through 20 speak to the anticipated complexity of the evidence relevant to the damage assessment. In the trial judge’s view, that complexity arose out of several aspects of the evidence. First, there was the respondent’s pre-existing medical condition and the need to determine the impact of that condition on the respondent’s post-accident medical condition (paras. 16-18). Second, there was competing expert evidence relating to the respondent’s loss of income and loss of future income claims. The respondent was a self-employed realtor and there were several factual variables relevant to her lost income claims. Those variables complicated the quantification of that claim (para. 19). Third, there was competing and somewhat complex medical, engineering and biomedical evidence (para. 20).
 Based on these evidentiary complexities, the trial judge concluded, at para. 21:
As a result, of all of the foregoing I am satisfied that this case is of sufficient complexity that it is in the interest of justice that the jury notice be struck.
 It was open to the trial judge to reach this conclusion. While counsel for the appellant mounted a powerful argument in support of his position that this was not really a complicated case at all, we cannot describe the trial judge’s characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. Other judges may have reached a different assessment of the complexity of the evidence and declined to strike the jury. The fact that other judges may have exercised their discretion differently is, of course, not a basis upon which this court can interfere with this trial judge’s exercise of her discretion.
Evelyn ten Cate of Foster, Townsend, Graham and Associates, LLP wrote about the trial decision in The Lawyers Weekly,
It is difficult to see how the facts in Placzek differ from those in most complex chronic pain cases decided by juries regularly. Pre-existing complaints, other car accidents and subsequent accidents are part of the fabric of everyday life and are well-known to juries. Likewise, juries are often called on to make decisions based on conflicting testimony of medical, engineering and accounting experts. Their expertise, or the admissibility of their testimony, typically form the subject of a voir dire in advance of their testimony, and take place in the absence of the jury.
It remains to be seen whether other trial judges will follow Justice Rady’s lead or distinguish Placzek on its facts.