



COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Lee,
    2014 ONCA 889


DATE: 20141211

DOCKET: C58662

Laskin, Gillese and Pardu JJ.A.

BETWEEN

Rahim
    Khan, a minor by his Litigation Guardian, Bibi Khan, and Zameer

Khan and Bibi Khan
    personally

Plaintiffs (Appellants)

and

Dr. Joseph Lee

Defendant (Respondent)

Gavin MacKenzie and Jennifer A. Whincup, for the
    appellants

Kirk F. Stevens and Jennifer Z. Hunter, for the respondent

Heard: October 15, 2014

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated March 6, 2014, with reasons reported at
    2014 ONSC 1497.

Pardu J.A.:

[1]

This appeal involves an assessment of the level of detail required by rule
    25.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, in a
    pleading alleging negligent medical care.

[2]

Rule 25.06(1) provides:

Every pleading shall contain a concise statement of the
    material facts on which the party relies for the claim or defence, but not the
    evidence by which those facts are to be proved.

Background

[3]

According to the statement of claim, Dr. Lee cared for Bibi Khan during
    her pregnancy, hospitalization and the delivery of her son Rahim Khan, who was
    born on May 15, 1991 following an emergency caesarean section. The claim
    alleged that, because of Dr. Lees conduct, Rahim Khan suffered permanent brain
    damage, resulting in serious mental and physical impairments.

[4]

This matter has a lengthy procedural history. The statement of claim was
    issued on April 5, 2011. Shortly after service of the statement of claim, Dr.
    Lee served a demand for particulars as to exactly how it was alleged that he
    failed to meet the standard of care. He also asked for various hospital and
    clinical records. The plaintiffs undertook to provide him with the relevant
    records, but indicated that they did not have any further particulars to
    provide.

[5]

Dr. Lee then brought a motion to strike the statement of claim on the
    ground that it did not disclose material facts or particulars relating to any
    act or omission on the part of Dr. Lee. He did not swear an affidavit in
    support of his motion stating that he was unable to plead a defence.

[6]

The plaintiffs then obtained a Masters order to examine Dr. Lee under
    oath on his inability to respond to the claim. Dr. Lees appeal from that order
    was dismissed. Dr. Lee admitted during the examination that, while he did not
    specifically remember Ms. Khan, he provided obstetric care to her during her
    pregnancy, hospitalization, and the delivery of her baby. He had also reviewed
    the hospital records and his clinical notes.

[7]

The statement of claim includes the following allegations of negligence:

The plaintiffs allege that their injuries, loss and damage were
    caused or contributed to by the negligence of the defendant, particulars of
    which include the following:

a. He did not use reasonable and proper skill or care in his
    efforts to treat the plaintiff, Bibi Khan, and [Rahim Khan];

b. He failed to exercise the degree of knowledge, skill and
    diligence, which he ought to have possessed and exercised on behalf of the
    plaintiff, Bibi Khan and [Rahim Khan];

c. He failed to follow accepted medical practices in the
    diagnosis and treatment of the plaintiff, Bibi Khan, and [Rahim Khan];

d. He did not carry out any diagnostic tests and procedures
    available to determine the condition of the plaintiff, Bibi Khan, and [Rahim
    Khan] including tests and procedures available to assess fetal growth and
    well-being;

e. He failed to diagnose the condition of the plaintiff, Bibi
    Khan, and [Rahim Khan];

f. He failed to recommend that tests and procedures available
    to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] be
    carried out, including tests and procedures available to assess fetal growth
    and fetal well-being;

g. He failed to check and monitor the condition of the
    plaintiff, Bibi Khan, and [Rahim Khan] and failed to respond to same;

h. He failed to prescribe medication and therapeutic procedures
    required to prevent complications from arising;

i. He failed to observe the damage occurring to [Rahim Khan]
    and failed to take any steps to prevent injury or damage;

j. In the treatment he provided, he created and/or increased
    the risk that [Rahim Khan] would sustain injury and damage, and in particular,
    permanent brain damage;

k. He failed to admit the plaintiff, Bibi Khan, to the hospital
    when indicated;

l. He failed to provide for the availability of an immediate [caesarean]
    section when same was indicated;

m. In failing to provide for the availability of an immediate [caesarean]
    section when indicated, he created and/or increased the risk that [Rahim Khan] would
    sustain injury and damage, and in particular, permanent brain damage;

n. He failed to obtain the informed consent of the plaintiffs
    to the treatment and procedures carried out.

Decision of the motion judge

[8]

The motion judge was confronted with conflicting authorities dealing
    with similar pleadings. He adopted the views expressed in
Basdeo
    (Litigation Guardian of)

v.

University Health Network
, [2002]
    O.T.C. 54 (S.C.), leave to appeal to Div. Ct. refused, [2002] O.J. No. 3046, at
    para. 17: Surely the defendants are entitled to have some indication of how
    they failed to exercise reasonable skill and care, what diagnostic steps were
    not taken, what tests were not administered, what medications should have been
    prescribed but were not, and so on. The motion judge observed that the Rules
    do not differentiate between different causes of action in respect of the
    requirements for pleadings, and agreed with the view expressed in
Basdeo
,
    at para. 19: If a plaintiff in a conspiracy claim is required to plead with
    specificity the facts giving rise to the conspiracy, I see no reason why the
    plaintiff in a medical malpractice claim ought not to be required to plead with
    specificity the facts which constitute the malpractice. The motion judge found
    that:

[T]he Plaintiff still cannot say what tests the Defendant
    omitted, what procedures and treatments he should have pursued but did not,
    what indications he overlooked for hospitalizing or preparing Bibi Khan for a [caesarean]
    section, what steps he took or did not take that added to Rahim Khans risk of
    injuries, and what it is that was done without obtaining the Plaintiffs
    consent.

[9]

On this basis, the motion judge found that the pleadings, including the
    following pleadings in paras. 8(d) and 8(f) of the statement of claim, were
    insufficient:

d. [Dr. Lee] did not carry out any diagnostic tests and
    procedures available to determine the condition of the plaintiff, Bibi Khan,
    and [Rahim Khan] including tests and procedures available to assess fetal
    growth and well-being;



f. He failed to recommend that tests and procedures available
    to determine the condition of the plaintiff, Bibi Khan, and [Rahim Khan] be
    carried out, including tests and procedures available to assess fetal growth
    and fetal well-being....

[10]

The
    motion judge accepted the point raised by the appellants counsel that the plaintiffs
    were not required to retain an expert at the pleadings stage of the action, but
    indicated nonetheless that the Defendant must be in a position to know what
    alleged wrongdoing he is required to defend. The motion judge struck the statement
    of claim without leave to amend, given that the plaintiffs acknowledged that
    they had no further particulars to provide.

Analysis

[11]

Each
    of the parties relies on a Superior Court decision. These decisions, dealing
    with similar pleadings, are conflicting. The respondent submits that the motion
    judge was correct to rely on
Basdeo
. The appellants argue that the
    motion judge ought to have applied
Chenier v. Hôpital Général de Hawkesbury
,
    [2006] O.J. No. 1679 (S.C.), which held that similar pleadings were sufficient.

[12]

I
    do not agree with
Basdeo,
and prefer the reasoning in
Chenier
.

[13]

I
    agree with the observation of Aitken J. in
Chenier
,

at para.
    21:

At this early stage in the litigation process, it would be
    placing an unduly onerous burden on the Plaintiffs to describe in detail what
    transpired or did not transpire at all of these points in time. The Defendants
    are in the position of knowing with great particularity what was done or not
    done by way of treatment and intervention. The Plaintiffs will only be able to
    further particularize their allegations once any records that have been
    disclosed to them by the Defendants are further supplemented with responses
    given on discovery. The Plaintiffs cannot be expected to have retained their
    own medical experts to assist in particularizing their allegations regarding a
    breach of a standard of care by the Defendant Physicians before those experts
    would have access to all available information as to what actually happened at
    the time of Sachas birth.

[14]

It
    is noteworthy that the defendant physician did not at any stage swear in an
    affidavit that he was unable to plead a defence.

[15]

Presumably,
    the defendant would be aware of the standard of care at the relevant time. He
    has his office chart and the hospital records, so he would know what he did or
    did not do. His interactions with the patient over the period of the pregnancy
    are discrete and identifiable, over a relatively short period.

[16]

As
    acknowledged by the respondent in oral argument, the effect of the motion
    judges order is to require a plaintiff in a case like this one to obtain an
    expert opinion before pleading, in the absence of full information about the
    case. While getting an early opinion might be useful and prudent, it should not
    be required as a condition of starting an action. Many plaintiffs will not have
    the expertise required to plead with precision the exact tests a defendant
    should have ordered.

[17]

Furthermore,
    a limitation period will begin to run when a plaintiff has sufficient facts
    upon which she could allege negligence, and, in some cases, before the
    plaintiff has expert opinion evidence or knows the precise cause of the injury:
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75, at para. 36.

[18]

In
Lawless
, at para. 36, the court approvingly cited the following
    passage from
McSween v. Louis
(2000), 132 O.R. 304 (C.A.), at para.
    51: the production and discovery process and obtaining expert reports after acquiring
    knowledge through that process, are litigation procedures commonly used by a
    plaintiff to learn the details of how the injury was caused, or even about the
    existence of other possible causes and other potential defendants.

[19]

Rule
    1.04(1) provides that [t]hese rules shall be liberally construed to secure the
    just, most expeditious and least expensive determination of every civil
    proceeding on its merits. To strike a statement of claim in the circumstances
    of this case would significantly impede rather than facilitate access to
    justice, an important value emphasized in
Hryniak v. Mauldin
, 2014 SCC
    7, [2014] 1 S.C.R. 87.

[20]

Further,
    I also observe that, contrary to the views expressed by the motion judge, at
    para. 18, and in
Basdeo
, at para. 19, the
Rules of Civil Procedure
do differentiate between causes of action in respect of the requirements for
    pleadings. Rule 25.06(8) provides: Where fraud, misrepresentation, breach of
    trust, malice or intent is alleged, the pleading shall contain full
    particulars.

[21]

In
    my view, the motion judge erred in striking the statement of claim. In the
    circumstances of this case, the pleading contains a sufficient statement of the
    material facts to enable the respondent to deliver a statement of defence.

[22]

Accordingly,
    I would allow the appeal.

[23]

For
    these reasons, the appeal is allowed and the order of March 6, 2014 is set
    aside. The plaintiff is awarded costs of the motion in the sum of $8357.41 all
    inclusive, and costs on the appeal fixed at $15,000 all inclusive.

Released: DEC 11 2014

(JL)                                                                                    
    G. Pardu J.A.

I agree John Laskin J.A.

I agree E.E. Gillese J.A.


