Fridays With Rogers Partners

Our lawyers and students meet each Friday in our boardroom for a “muffin meeting”, wherein we discuss new developments in the law and practice management issues. Times are different now due to COVID-19, so we had our first ever muffin meeting by videoconference this morning, and it went very well!

We discussed strategies for practicing law remotely, including the best ways to use technology. We also went over two cases, in particular, a decision involving a motion to strike similar fact allegations in a claim, and a recent costs decision in an undertakings and refusals motion.

Striking Similar Fact Allegations

Matthew Umbrio addressed the case of Eichenger v. Vaidyanathan, 2020 ONSC 1669. The matter involved a motion to strike brought by the defendant, Dr. Vaidyanathan. The defence attempted to strike from the Statement of Claim similar fact allegations regarding a brachial plexus injury suffered by the plaintiff during her birth.

Normally, similar fact evidence is neither relevant nor admissible to prove subsequent negligence. This motion, however, did not concern admissibility of evidence, only whether the pleadings were sustainable.

There is no general rule prohibiting similar fact allegations in pleadings, provided the added complexity caused by the similar fact allegations does not exceed their probative value.

The plaintiffs had issued an amended Statement of Claim following a demand for particulars served by the defendants which identified a boy born one year before the plaintiff who had suffered an allegedly similar brachial plexus injury.

Counsel for the plaintiff also included an affidavit from the boy’s mother outlining the circumstances of his injury, which counsel for both sides agreed formed part of the pleadings as it was expressly referred to in the Response to the Demand for Particulars.

Justice Davies then reviewed the probative value of the similar fact allegations in the context of the amended pleadings themselves. The Statement of Claim included allegations that the brachial plexus injury suffered by the plaintiff was as a result of the negligence of Dr. Vaidyanathan.

The allegations included that he was impatient; that he used a vacuum and traction to accelerate the delivery, despite the plaintiff presenting with shoulder dystocia; that he breached his fiduciary duty to the plaintiff; and that he failed to advise the mother of prior adverse outcomes in similar circumstances.

Justice Davies recognized that the circumstances in the Statement of Claim as they relate to the plaintiff’s injury were very similar to the circumstances outlined in the affidavit as they related to the baby boy.

Justice Davies also recognized that the similar fact allegations were made to support not only the negligence claim, but also to show the doctor’s knowledge of the risks of these types of injuries and his experience in managing those risks. As a result, she held that the similar fact allegations had significant probative value.

The Court then examined whether the allegations would add complexity to the action. Despite these allegations clearly leading to a more complex evidentiary record, and therefore a more complex action, Justice Davies noted that Dr. Vaidyanathan’s knowledge, experience, and skill in relation to delivering babies who present with shoulder dystocia is highly relevant to several other claims made by the plaintiffs.

As a result, although these allegations may increase the complexity of the proceeding, the probative value outweighed these concerns. The motion was thus dismissed.

Costs from Undertakings and Refusals Motion

Micah Pirk O’Connell discussed the decision of Murphy v. Toronto and Region Conservation Authority, 2020 ONSC 1709. This was a costs decision following a motion to compel answers to undertakings given and questions refused during examinations for discovery of two parties to the litigation.

Both the plaintiff and defendants sought their costs of the motion, with the plaintiff seeking partial indemnity costs and the defendants seeking partial indemnity costs, or in the alternative, an order that each side bear their own costs.

The plaintiff argued the motion was necessary, the defendants having been examined in May of 2018 and the agreed upon timetable date of June 1, 2019 to answer all undertakings having passed. The defendants ultimately provided answers to both the outstanding undertakings and the questions which had been refused. The plaintiff contended that they were more successful however, as the answers were provided in response to the motion.

Counsel for the defendants disputed that the plaintiff was more successful, as the portion of the motion to compel answers to undertakings was never argued, but adjourned sine die as an accommodation to plaintiff’s counsel.

The court held that while the undertakings portion of the motion had been adjourned sine die, the costs should not be left to a subsequent disposition of the adjourned portion. The reasons were that:

1. It would be difficult and arbitrary to allocate costs as between the undertakings and refusals and adjourn the former to another disposition.
2. Should the plaintiff accept the answers given by the defendants in their responding materials, a further hearing would be necessary simply to address costs, which is neither cost effective nor an efficient use of judicial resources.
3. Working under the presumption that the answers given would be accepted, the court was in a position to properly assess costs to date. This was not a dispute over the sufficiency of the answers given, the answers were given in response to the motion.

Master Robinson found that the motion was necessary to compel the undertakings. 17 months had passed since the initial undertakings were given and there was no explanation proffered as to why the defendants allowed the consented timetable date to lapse.

While the defendants submitted that the plaintiff had failed to provide adequate refusals and undertakings charts, this is not a factor to consider with respect to costs. The obligation to provide undertakings is rooted in the moment the undertakings were given; it is not dependent on the adequacy or lack thereof of the refusals and undertakings chart.

Ultimately, the court held that the motion materials were primarily focused on the refusals rather than the undertakings. While a number of the refusals were to questions arising from documents which post-dated the loss (characterized by the defendants as “examination by ambush”), 15 months was more than adequate for the defendants to consider the documents and the refusals.

Costs were awarded to the plaintiff in the amount of $2,000, inclusive of HST and disbursements, with 30 days to pay.