The court used a 'hybrid approach' to assess the supplementary affidavit's relevance
The Ontario Superior Court dismissed a motion by two doctors to strike an affidavit by the plaintiffs' lawyer in a medical malpractice lawsuit, ruling that the issues should be addressed in the main hearing.
The proposed defendants, physicians who held privileges at Orillia Soldiers' Memorial Hospital in 2009 and 2010, treated the plaintiff, Dana Zimmerman, during that period. The plaintiffs, Dana Zimmerman and her husband, Mark Zimmerman, filed a medical malpractice lawsuit against the hospital and seven other doctors in 2015 for alleged negligence during her treatment in 2013. The proposed defendants were not initially included in the lawsuit.
The plaintiffs later sought to add the proposed defendants to the lawsuit, citing new evidence that suggested their involvement. The proposed defendants opposed the motion, arguing that the claim was barred by the two-year limitation period under the Limitations Act.
To support their motion, the plaintiffs submitted an affidavit from their lawyer, Gayle Brock, detailing the discovery timeline regarding the proposed defendants' involvement. The proposed defendants subsequently filed a motion for disclosure based on this affidavit, which led to a partial disclosure order by the court.
The proposed defendants later moved to strike a supplementary affidavit submitted by Brock in January 2023, arguing that it was an abuse of process and violated professional conduct rules by attempting to change and improve upon her earlier evidence and cross-examination.
The court reviewed the arguments and determined that the supplementary affidavit did not constitute an abuse of process. The court emphasized that the issues raised by the proposed defendants regarding the supplementary affidavit should be addressed during the hearing on the motion's merits to add the proposed defendants to the lawsuit.
The Superior Court applied a hybrid approach, considering whether the supplementary affidavit was relevant and whether it introduced improper reply evidence. The court found that the affidavit did not contain irrelevant or scandalous information and that any discrepancies between the initial and supplementary affidavits could be addressed through cross-examination during the main hearing.
The court also addressed the professional conduct rules, noting that Brock's dual role as counsel and witness had already been established with her initial affidavit, and her supplementary affidavit did not exacerbate this issue. The court found that the supplementary affidavit did not present personal opinions or beliefs but factual information necessary for the case.
Ultimately, the Ontario Superior Court dismissed the motion to strike Brock's supplementary affidavit, allowing the evidence to stand for the upcoming motion hearing.
