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Civil Procedure - Pleadings - Particularity

Khan v Lee (Ont CA, 2014)

In this case the Court of Appeal commented as follows on the degree of particularity required in Claims, an issue of importance to motions to strike brought under R21.01(1) and R25.11:
[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 Sacha’s 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 judge’s 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 (CanLII), 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 (CanLII), [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.

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