Inability to recall not constructive refusal to answer, court denied motion to examine non-party

The Superior Court for Ontario dismissed a defendant physician’s motion to have the plaintiff’s husband examined and ruled that inability to recall discussions does not constitute constructive refusal to answer questions.

In Birhane v Wong, 2021 ONSC 8024, the plaintiff Terhas Birhane, having believed that she was having a boy, opted for a tubal ligation as an unscheduled add-on procedure for the scheduled caesarean section delivery of her third child. She was not advised, however, that the baby was female until after the tubal ligation was complete. Birhane sued the physicians for medical malpractice, claiming that had she known the sex of the child, she would not have consented to the tubal ligation procedure.

When questioned, Birhane claimed that she could not recall any discussion about consent while she was in the operating room. Correspondence amongst counsel had also produced a Patient Feedback form completed by hospital staff and signed by Birhane’s husband, Tedros Birhane, where he claimed that no such discussion took place.

Unsatisfied, the defendant physicians bought a motion to examine the husband under Rule 31.10 of the Rules of Civil Procedure. They claimed that they were unable to obtain information from the plaintiffs or from Tedros Birhane, and that his inability recall discussions about the tubal ligation procedure “amounts to constructive refusal to answer questions.”

The motion was dismissed.

“[An] inability to recall does not amount to constructive refusal,” said Justice Lisa La Horey, the author of the decision. Further, “[that] the examining party is disappointed or does not believe the examined party's answers does not make them unsatisfactory answers that would justify further examinations,” she said, quoting Justice Paul Perell in Fischer v IG Investment Management Ltd., 2016 ONSC 4405.

The defendant physicians are concerned that the evidence from Tedros is not in a form they can cross-examine and claimed that it “remains an inadequate substitute for an examination under oath of a witness whose evidence and credibility is centrally relevant to the material issues in this action.” In response, La Horey said that Rule 31.10 speaks of “information” and not “evidence,” and that “the discovery regime in Ontario is premised upon a discovery witness providing information and belief about the evidence of others in the form of hearsay and undertakings to provide information.”

Delving into the other requirements for the discovery of non-parties, La Horey ruled that should her conclusion be erroneous, the motion would still be dismissed, nonetheless. It was not unfair for the defendant physicians to proceed to trial without examining Tedros, since Terhas had already provided information from her husband and agreed to provide answers to further questions. The granting of the motion would also result to unfairness to Tedros, said La Horey, since he is the sole income earner of the household who Terhas relies on for support. To require him to take time off to prepare for the discovery considering his cooperation so far is unfair, she said.