Leave to file opinion evidence denied in class action relating to clinic's sterilization practices

Representative plaintiff brought negligence action alleging that defendant breached duty it owed

Leave to file opinion evidence denied in class action relating to clinic's sterilization practices

An Ontario court has denied leave to file opinion evidence on a partial summary judgment motion, which the operator requested of a clinic facing a class action because its sterilization practices allegedly fell short of the applicable standards.

In Kellesis v. Paramed Inc., 2021 ONSC 6842, a July 2018 inspection of a clinic operated by the defendant, a health care services provider, found that the defendant’s sterilization practices failed to meet infection prevention standards and presented a risk of communicable disease transmission. The defendant was required to notify its clinic patients from 2008 and 2018 of this risk of infection.

In September 2018, the plaintiff, who was one of the patients, brought a negligence action under the Class Proceedings Act, 1992, S.O. 1992, c.6., alleging that the defendant breached a duty of care owed to her and caused the proposed class members to suffer loss including the invasion of bodily integrity, the inconvenience of testing, fear for their health, severe mental or emotional distress, psychological trauma and nervous shock.

In September 2020, the Superior Court of Justice of Ontario certified the class action and designated the plaintiff as the representative of the class, which had infected persons and uninfected persons as subclasses.

In advance of summary judgment motions that both parties intended to file, the court endorsed the parties’ proposed timetable for the proceedings. Last July, the court granted the plaintiff’s summary judgment motion, with findings relating to the duty of care, the applicable standard of care and the way the defendant breached the standard of care.

The defendant sought partial summary judgment to dismiss the claims of the uninfected persons subclass based on a psychiatrist’s expert opinion that found, upon reviewing the representative plaintiff’s affidavits and cross-examination, no signs that the plaintiff had suffered a mental disorder associated with clinically significant distress or impairment in important areas of functioning.

In the present matter, the representative plaintiff, who refused to cross-examine the psychiatrist, asked the court not to grant leave to admit this opinion evidence. She contended that the filing of such evidence could cause her non-compensable prejudice if admitted and violated r. 39.02 of the Rules of Civil Procedure, RRO 1990, Reg 194, as well as the court-ordered timetable.

The Superior Court dismissed the defendant’s motion for leave to file the psychiatrist’s opinion on its partial summary judgment motion. First, the court ruled that the opinion evidence was relevant to the defendant’s argument that the representative plaintiff, as an uninfected class member, had no mental health injury compensable under the law.

Second, the court had doubts whether it could characterize the opinion evidence as responding to a matter raised in the cross-examination. The court held that the defendant had improperly split its case, a problem which could have been somewhat mitigated if the defendant had raised its intention to use the opinion during the timetabling discussion or through an attempt to seek leave to amend the timetable. The court also agreed with the plaintiff’s submission that the defendant had the opportunity to acquire expert evidence before the cross-examination.

Third, on the issue of non-compensable prejudice, the court accepted that, while the plaintiff had the chance to cross-examine the psychiatrist, it was unreasonable to expect her to be ready to do so and to file responding evidence without prior notice and without having much time left. The court also accepted that the parties expected the rule against case-splitting to apply, given that they both agreed to the timetable.

Fourth, the court said that the defendant failed to provide a reasonable or adequate explanation for failing to include the opinion evidence before the cross-examination. The defendant also failed to notify the plaintiff, consider the opinion evidence during the discussion for the timetable, and seek leave to amend the timetable. The court, balancing the circumstances, disagreed that the need for a just and timely resolution of the issue means granting leave for the defendant to file the opinion.

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