





CITATION:
Jack v. Gowling, Strathy &
          Henderson, 2011 ONCA 736



DATE: 20111125



DOCKET: C53461



COURT OF APPEAL FOR ONTARIO



Feldman, Sharpe and Epstein JJ.A.



BETWEEN



Heather Jack



Plaintiff (Appellant)



and



Gowling,
          Strathy & Henderson, Harry Dahme, Rhonda Jansen,
Gluckstein,

Neinstein, Michael Huclack, Neinstein &
          Associates, Zak A. Muscovitch




Defendants (Respondents)



Allan Rouben, for the appellant



Brian A. Pickard, for the respondent
          Zak. A. Muscovitch

Robin Squires, for the respondent
          Michael Huclack



Heard:
November 21, 2011



On appeal from the order of Justice P.D. Lauwers of the
          Superior Court of Justice dated March 4, 2011.



ENDORSEMENT



[1]

The motion judge dismissed the appellants action on the ground that she
    had failed to comply with undertakings given on discovery despite two court
    orders that she do so.

[2]

The motion judge declined to dismiss the action on non-compliance alone
    and held that the action could only be dismissed if the respondents were able
    to demonstrate that non-compliance had given rise to potential or actual prejudice.
    The motion judge reviewed the various undertakings that had not been complied
    with and concluded that the crucial issue could be narrowed to this: were the
    respondents prejudiced or exposed to the risk of prejudice by the appellants
    failure to comply with an undertaking to provide copies of reports and test
    results from Dr. Zazula, an allergist?

[3]

The appellant had seen Dr. Zazula twice: once in April and once in May,
    1993. A letter from Dr. Zazula, dated August 25, 1993, written to the
    appellants general practitioner, indicated that the appellant had agreed to a plan
    involving investigation and treatment. In response to the appellants May 29,
    2008 request for further records (the lawyer had previously made the same
    request in May and October 2007), Dr. Zazula indicated that his records were no
    longer available.

[4]

The motion judge noted in his reasons that the respondents counsel
    indicated in oral argument that we do know that [Dr. Zazulas records] were
    destroyed in 2007. The motion judge concluded that prejudice to the
    respondents was made out on the basis that Dr. Zazulas records had been
    destroyed after the discovery in 2006 and before the appellant requested their
    production.

[5]

Unfortunately, there is no evidence to support the assertion that Dr. Zazulas
    records were destroyed in that time period. The basis for counsels assertion
    appears to have been regulations that required Dr. Zazula to retain his
    records. The appellant asserts that period to be 10 years while the respondents
    say it is 12 years. Even if the respondents are correct, Dr. Zazula would have
    been free to destroy his records in 2005, before the examination for discovery.

[6]

Moreover, it is not at all clear to us from this record that Dr. Zazula actually
    did any tests, further investigation or treatment.

[7]

Accordingly, there was no basis on the evidence for the motion judge to
    have concluded that the respondents did suffer actual or potential prejudice
    from the appellants failure to comply with her obligations to comply with the
    undertakings given on discovery pertaining to the production of materials
    relating to her consultation with Dr. Zazula or with the order. As this finding
    was crucial to his disposition of the motion the error is fatal to the order
    dismissing the action.

[8]

The appeal is allowed and the order dismissing the action is set aside.
    The appellant is entitled to costs of the appeal fixed at $25,000 inclusive of disbursements
    and H.S.T.

K. Feldman J.A.

Robert J. Sharpe J.A.

G.J.
    Epstein J.A.


