Recent refusals motion offers important takeaways for plaintiff-side lawyers

Decision an 'excellent summary of the law' for each category of refusal: Bogoroch's Alexandra Roman

Recent refusals motion offers important takeaways for plaintiff-side lawyers

This article was produced in partnership with Bogoroch & Associates LLP.

A recent decision arising out of a refusals motion “outlines the various bases on which questions are refused and provides an excellent summary of the law with regard to each category of refusal,” says Alexandra Roman, associate at Bogoroch & Associates LLP.

The motion stemmed from a medical malpractice action arising out of the treatment and care received by the plaintiff, Basdeo Gurprasad, in connection with a 2014 elective kidney transplant and post-operative care. In Gurprasad v. Kim, the plaintiff sought to compel the defendant doctors to answer questions allegedly improperly refused at their discoveries.

One of the first takeaways Roman noted was on the question of proportionality. The court reiterated that litigation is not to be too expensive: consideration ought to be given to the time and expense associated with answering questions or producing documents. But “the more complex and interesting aspect of the decision was the court’s discussion with respect to refusals that elicit opinion evidence and hypothetical questions, and questions that may require one defendant to comment on the conduct of a co-defendant,” she notes.

On the category of questions that elicit opinion evidence and hypothetical questions the court referred to the Maryam decision, which cited the Stryland decision. The latter stands for the general proposition that a defendant physician in a medical malpractice action is not required to answer hypothetical questions regarding the standard of care – but there is an interesting distinction that the court reiterated in this case that stands as an important takeaway.

“Although a witness is not required to give evidence on whether or not their conduct fell below the standard of care – as that is within the scope of the court or the trier of fact – these are distinguishable from questions that are probative of the standard of care,” Roman says. “For example, questions that elicit the witness’ answer as to his or her understanding of what the standard of care was at the relevant time are proper.”

Another category of questions the court contended with on the motion are those that request the defendant physician to opine on the conduct of a co-defendant. Defendants are not to be asked questions that go to the conduct of any other defendant, and that principle dates back to the 1989 decision Motaharian (Litigation guardian of) v. Reid.

However, Roman says that these types of questions are distinguishable from questions that seek to elicit a defendant’s understanding, knowledge, and belief at the time that he or she was treating the plaintiff in circumstances where the plaintiff had been previously treated by a co-defendant.

Roman has argued a motion on this issue and was successful on this basis. In that case, the defendant physician assessed the plaintiff after a co-defendant had performed surgery on her. Questions about his findings were refused on the basis that the doctor was being asked to comment on the conduct of the co-defendant surgeon who previously performed the surgery. Roman argued that the improperly refused questions were not eliciting the defendant’s opinion on the conduct of a co-defendant but rather merely seeking his findings, observations, information, knowledge and belief at the time that he assessed the plaintiff.

“It wasn’t something addressed within the context of this decision, but there are exceptions based on the unique factual circumstances of a case,” Roman says.

Ultimately, though the Gurprasad decision was mostly in favour of the defendant – 22 refusals were argued and 16 of those were sustained – “this decision is important as it touched on various legal issue that arise at discoveries with respect to refusals,” says Roman.

“The decision is significant because it summarizes the relevant caselaw law regarding refusals.

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