1

File No. C53461

COURT OF APPEAL FOR ONTARIO

BETWEEN

HEATHER JACK

Plaintiff

(Appellant)

-and-

GOWLING STRATHY HENDERSON, HARRY DAHME,

RHONDA JANSEN, GLUCKSTEIN, NEINSTEIN, MICHAEL HUCLACK,

NEINSTEIN & ASSOCIATES, ZAK A. MUSCOVITCH

Defendants

(Respondents)

FACTUM OF THE APPELLANT

PART I – THE APPEAL/OVERVIEW STATEMENT

1.This appeal arises out of the judgment of the Honourable Justice Lauwers dated March 4, 2011 dismissing the Plaintiff’s action for failure to comply with an order to answer undertakings. The learned motions judge found that in respect of one physician, Dr. Marian Zazula, whose records had been destroyed, counsel for the Plaintiff failed to request clinical notes and records on a timely basis, causing prejudice to the Respondents. The learned motions judge erred in law in dismissing the action, as there was no evidence as to the date on which Dr. Zazula’s records were destroyed and the motions judge relied on assertions made by counsel for the Respondents without any evidentiary basis. The learned motions judge further erred in making a finding of prejudice in light of the substantial documentary evidence provided to the Respondents, and in failing to properly balance the interests of the parties. The result of the learned motions judge’s decision is an order that is disproportionate, inequitable and unjust.

PART II – THE FACTS

2.This action arises out of the Appellant’s tenancy in residential premises owned by the Federal Government. In 1988, the Appellant moved into a residence referred to as the Henderson House which was infected with pesticides,causing injury to the Appellant. In 1991, she moved into another residence known as the Fagiani House where she encountered mould problems. The Appellant retained the Defendant solicitors to represent her in proceedings against the Crown. By order dated October 21, 2005, the action was dismissed on consent against the Defendants Gowling Strathy Henderson, Harry Dahme and Rhonda Jansen. The other Defendants assumed control of the matter in 1994, well within the limitation period for issuing a claim, however no claim was ever issued. When the Appellant subsequently brought an action with new solicitors for the injuries she sustained in the Henderson House, the action was dismissed as statute barred. The Appellant has brought this action against the Defendant solicitors for their negligent handling of the claim. A second claim against the Crown relating to the Fagiani House is ongoing.

Reference: Appeal Book and Compendium, Vol. 1, Tab 5, pp. 25-38.

3.The Statement of Claim herein was issued on April 28, 2004. The Appellant was examined for discovery on August 2, 2006. A large number of undertakings were given on her examination. Many of them sought medical records of physicians seen by the Appellant. The Appellant has a complicated medical history and fully disclosed on her examination and in medical reports, her pre-existing gastrointestinal difficulties. By order dated August 30, 2007, the Appellant was ordered to answer undertakings within 60 days. At a status hearing held on April 10, 2008, the Appellant was ordered to provide copies of requests for information by May 15, 2008.

Reference: Appeal Book and Compendium, Vol. 1, Tab 11, pp. 114-118.

4.The Appellant sought outthe information requested to answer the undertakings. Letters dated June 18, 2007, July 24, 2007, August 1, 22, 23, 2007, October 30, 2007, April 2, 9, 22, 2008 and June 2, 4, 2008 were sent to the Respondents either answering undertakings or making best efforts to do so. Some of the physicians seen by the Appellant moved or had been seen only a few times many years before, such that their records no longer existed. Regulations require that physicians keep medical records for a period of ten years, following which they can be destroyed. Reference: Appeal Book and Compendium, Vol. 2, Tabs 12, 13, 16, pp. 144-148, 208-209,

259-282.

5.As discussed below, the decision of the learned motions judge dismissing the action turned on the missing records of Dr. Marian Zazula, an allergist who had seen the Appellant twice in 1993. While a consultation report of Dr. Zazula is available in the clinical notes and records of the Appellant’s family physician, the notes and test results of Dr. Zazula no longer exist. Given the prominence assumed of the missing notes, it is instructive to look at the exchange concerning Dr. Zazula’s records at the Appellant’s examination for discovery. The exchange is as follows:

“Ms. Fotopoulos:

Q. How about Dr. Zazula (ph)? Do you remember that doctor?

A. Yes.

Q. Did you see that person more than once?

A. I saw him once for sure. I’m not sure if I saw him twice.

Q. We’ll check that and if she saw them more than once then I’m going to ask for his records.

Mr. Howe: You’ll want Dr. Zazula’s records. I’m confident, so why don’t we just get them for you.

Ms. Fotopoulos: Why is that?

Mr. Howe: Dr. Zazula is I think a fairly well known allergist who probably would have – since it’s the field of allergies – data or comments you might find interesting.

Ms. Fotopoulos: Maybe I don’t want them.

Mr. Howe: If you’d like I won’t get them then.”

Reference: Appeal Book and Compendium, Vol. 1, Tab 11, pp.112-113.

6.While the transcript indicates an undertaking was given, the exchange between counsel does not support this. At a minimum, the exchange belies the submission made by Respondent’s counsel at the hearing before the learned motions judge of the alleged critical importance of the missing information of Dr. Zazula. The affidavit in support of the motion was similarly devoid of suchdetails. In respect of Dr. Zazula, the affidavit stated: “The Defendants have been prejudiced by the delay because the records are no longer available.” There was no indication of the date on which Dr. Zazula’s records were no longer available, and no indication of the nature of any prejudice.

Reference: Appeal Book and Compendium, Vol. 1, Tab 11, p. 102.

7.The evidence filed on the motion disclosed that the Appellant’s solicitor requested Dr. Zazula’s records by letters dated May 23, 2007 and October 30, 2007. The letters stated: “It is important that we obtain copies of your complete clinical notes and records as they relate to our client as far back as possible. Would you kindly copy these records and forward them to our office no later than June 15, 2007.” When no response was received, a law clerk in the Appellant’s solicitors office called Dr. Zazula’s office on May 29, 2008. It was confirmed that the Appellant was seen by Dr. Zazula only twice and the clinical notes and records were no longer available. In a note handwritten on the solicitor’s confirming letter of May 29, 2008, Dr. Zazula wrote: “Records not available last seen in 1993.” There was no indication from Dr. Zazula’s office, and no evidence was filed on the motion, indicating when the records were no longer available.

Reference: Appeal Book and Compendium, Vol. 2, Tab 12, pp. 178-180.

8.The motion brought by the Respondents was returnable on October 14, 2008, and was heard on June 18 and 29, 2009. On the initial hearing date, the learned motions judge ordered that further efforts be made to obtain information. The Appellant was ordered to pay costs to the Respondents in the amount of $16,294.00. The costs were paid, and the motion was adjourned to July 16, 2009.

Reference: Appeal Book and Compendium, Vol. 1, Tab 4, pp. 22-24.

9.In response to the motion, the Appellant filed three affidavits from solicitors in the office of her legal counsel. One of the affidavits was from John Lea dated June 16, 2009, and two affidavits were from solicitor of recordRussell Howe, dated June 26, 2009 and July 13, 2009. The affidavits contained the following evidence: (a) despite having carriage of the matter for over five years, “virtually no medical records of any consequence were ever requested by any of the defendants”; (b) the clinical notes and records of central treating physicians of the Appellant, Dr. Sampson and Dr. Krop, were produced; (c) the Appellant’s pre-existing bowel condition “is well documented throughout the clinical notes of various physicians and she has been forthright in discussing this issue throughout the action”; (d) an OHIP decoded summary indicated that the Appellant saw Dr. Zazula on April 29, 1993 and May 12, 1993. A consultation report of Dr. Zazula dated August 25, 1993 is in the clinical notes and records of Dr. Sampson; (e) all undertakings were answered, in that information sought was provided or requests were made to obtain the information.

Reference: Appeal Book and Compendium, Vol. 2, Tabs 12, 13, 16, pp.144-148, 208-209,

259-282.

10.A transcript was taken of the July 16, 2009 hearing. As the learned motions judge had previously heard the motion, he had a strong grasp of the factual issues and participated actively in the hearing during the submissions of counsel. Pertinent portions of the hearing will be set out below. It is important to note that, at the same time as the Respondent’s motion, the Appellant had brought a cross-motion to consolidate the proceeding with the existing claim against the Crown in respect of the Fagiani House. Substantial productions had been made by the parties in that case which the Respondents were seeking by way of undertaking, and which the Appellant was unable to provide because of the deemed undertaking rule. As a result, the Appellant brought the cross-motion to consolidate that proceeding with the action herein, so as to provide the Respondents,without any impediment, the documentary productions and transcripts of the examinations for discovery held in the other proceeding. All parties to both actions consented to the order.

Reference: Appeal Book and Compendium, Vol. 1, Tab 10, p. 66.

11.At the outset of the July 16, 2009 hearing, the learned motions judge commented on the cross-motion and the six volumes of production in the other action, and stated that counsel would have to see those productions in order to assess any claim of prejudice. The judge did not return to this point in his reasons for judgment. At several points during the hearing, Respondent’s counsel Mr. Pickard stated, without any evidentiary basis, that Dr. Zazula’s records had been destroyed in 2007, “more than a year after the [Appellant’s] discovery.” Mr. Pickard complained that, while the consultation report of Dr. Zazula was available, test results he administered were not. In response to this, the learned motions judge stated:“One would assume that if tests revealed anything unusual it would have been referred to in the report.” Mr. Pickard stated “It’s possible, we don’t know because we don’t have them and we can’t give them to an expert.” Given the learned motions judge’s decision dismissing the action on the basis of the missing records of Dr. Zazula, his response to Mr. Pickard’s submission on this point is set out in full: “But you are asking me to dismiss an action based on – we are now at the point of surmise about results that are referred to where necessary in a medical report. I mean for Zazula I’m just not persuaded that carries much weight. I think Zazula is done, Dr. Dean and Dr. Mildon cause me more pause.” Later on in the hearing, when Mr. Pickard returned to the alleged prejudice caused by the missing test results of Dr. Zazula, the learned motions judge stated: “Yeah, yeah, yeah, we’ve been over him already.”

Reference: Appeal Book and Compendium, Vol. 1, Tab 10, pp.66-75.

12.Despite his comments made during the hearing, the learned motions judge dismissed the action on the basis of Dr. Zazula’s missing records. He relied on Mr. Pickard’s statement that the records had been destroyed in 2007, stating at para. 59 of the reasons: “Mr. Pickard asserts: ‘We do know that they were destroyed in 2007, more than a year after the discovery.’ He does not specify where that information came from, but Mr. Cox-Kikkajoon did not contest it. Mr. Pickard argues that the test results are the important missing information. It seems quite clear that the loss of Dr. Zazula’s clinical notes and records including the test results is the fault of the plaintiff and her counsel in failing to answer the undertaking on a timely basis.” The learned motions judge was satisfied that no blame could be put on the Appellant for the missing records of Dr. Dean or Dr. Mildon. He proceeded to dismiss the action on the basis of the missing records of Dr. Zazula, stating at para. 72 of the reasons: “I agree with the defendants that the absence of the evidence is actually prejudicial, not just potentially prejudicial, to the defence on the merits. I am especially concerned about the missing evidence underlying the consultation report of Dr. Zazula which appears to be the most pertinent to the issues. I am less concerned about the missing evidence underlying the reports of Dr. McHugh; the combination does make things marginally worse. I have considered how the prejudice could be mitigated in the trial context but do not see how the defendants’ rights to make a full answer in defence can be adequately protected.”

Reference: Appeal Book and Compendium, Vol. 1, Tab 3, pp. 18-20.

13.As indicated above, there was no evidence that the records of Dr. Zazula were destroyed in 2007 as asserted by Mr. Pickard. Furthermore, even if the records were destroyed in 2007, Mr. Pickard did not say when in 2007 they had been destroyed. The Appellant’s counsel wrote to Dr. Zazula and requested complete copies of his clinical notes and records on May 23, 2007 and October 30, 2007. If the records were somehow discarded after the letters were sent, of which there is no evidence, the blame could hardly be put on the Appellant or her counsel. Furthermore, the Court order allegedly breached by the Appellant, which was the foundation for the motion, was dated August 30, 2007. As regards the production of clinical notes and records, the Appellant could only make a request for the records, which was done before the order was issued. Therefore, as regards Dr. Zazula, the order was complied with and there was accordingly no basis for claiming a breach of the order. Similarly, there was no evidentiary basis for the assertions of prejudice made by Mr. Pickard and the consequent finding of actual prejudice made by the learned motions judge, who had correctly referred to these assertions as “surmise” at the hearing of the motion. In short, it can be seen that the pillars on which the order dismissing the action was based have no foundation. Reference: Appeal Book and Compendium, Vol. 2, Tab 12, pp. 179-180, Vol. 1, Tabs 10,

11, pp. 73, 114-115.

14.Following the hearing, and while the matter was under reserve, the learned motions judge advised counsel that the file had been misplaced. The motion materials were reconstructed and sent to the Court. This was done in or about January, 2010. The reasons for judgment were released on March 4, 2011, more than 19 months after the motion was heard.

Reference: Appeal Book and Compendium, Vol. 2, Tab 20, p. 303, Vol. 1, Tab 3, pp. 8-21.

15.In his reasons, the learned motions judge was highly critical of the approach taken by the Appellant’s counsel to answering the undertakings. However, he found that there was no intention to breach the Court order, and during the course of the hearing Mr Pickard admitted that “We’ve got a lot of material” and “They’ve [Appellant’s counsel] done a lot of work.” In his reasons, the learned motions judge alsostated, at para. 36: “The question of prejudice was closely argued. As the undertakings were answered over the days of the motion, the moving parties found themselves relying on a declining number of outstanding issues on which to ground the argument.” As indicated above, the learned motions judge dismissed the action on the basis of the missing clinical notes and records of Dr. Zazula, however during the hearing he had stated that the Respondents could argue spoliation at trial and appropriate inferences could be drawn by the trial judge.

Reference: Appeal Book and Compendium, Vol. 1, Tabs 3, 10, pp. 14, 20, 80.

16.The learned motions judge relied ondecisions in which actions had been dismissed for failure to comply with a Court order, however those cases involved egregious circumstances or findings of misconduct. Those were not the findings made by the learned motions judge in respect of the conduct of the Appellant or her counsel, and accordingly the learned motions judge applied an improper test in dismissing the action. In a subsequent endorsement, the learned motions judge awarded costs of the action to the Respondents in the amounts of $78,500.95 and $24,706.37.

Reference: Appeal Book and Compendium, Vol. 1, Tab 3, pp. 8-21, Vol. 2, Tab 19, pp. 299-302.

PART III – ISSUES AND ARGUMENT

17.In a series of recent decisions, this Honourable Court has considered the circumstances in which a Registrar’s order dismissing an action should be set aside. Before reviewing the decisions, it should be noted that the cases are distinguishable from the circumstances here, as in those cases there was an existing order terminating the proceeding. Here, the proceeding is ongoing, steps have been taken, examinations have been held and substantial documentary production has been made. But for the order under appeal, the action would have been ready to be set down for trial.

18.In Scaini v. Prochnicki, the Registrar dismissed an action for delay as a result of the failure of the Plaintiff to respond to a status notice. The motions judge refused to set aside the order, holding that the Plaintiff had not adequately explained the delay in proceeding with the action. In allowing the appeal, the Court emphasized that a balancing of the interests of the parties was required to ensure that a just result was achieved. Goudge J.A. stated: “In particular, the motion to set aside the registrar’s order dismissing the action for delay engages rule 37.14(1)(c) and (2). The latter invites the court to make the order that is just in the circumstances. A fixed formula like that applied by the motion judge is simply too inflexible to allow the court in each case to reach the just result contemplated by the rules.” By a similar process of reasoning, in focusing on one piece of missing evidence to the exclusion of the totality of the information provided, the learned motions judge failed to balance the interests of the parties and reached a result that was unjust.