Cameron v. Louden and Rabinovitch, (1998) 62 O.T.C. 310 (GDM)

• Court: Ontario Court of Justice General Division (Canada)
• Case Date: April 20, 1998
• Jurisdiction: Ontario
• Citations: (1998), 62 O.T.C. 310 (GDM)

Cameron v. Louden (1998), 62 O.T.C. 310 (GDM)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. MY.098

Lianne Cameron (plaintiff) v. Dr. C. Gordon Louden and Dr. H. Rabinovitch (defendants)

(Court File No. 5797/97)

Indexed As: Cameron v. Louden and Rabinovitch

Ontario Court of Justice

General Division

Beaudoin, Master

April 20, 1998.

Summary:

The defendants in a medical malpractice action sought leave to examine Dr. Nelson as a nonparty pursuant to rule 31.10(1) of the Rules of Civil Procedure. Dr. Nelson was a neurologist who had been treating the plaintiff since her stroke. The defendants also sought the production of the medical records of two family physicians who had treated the plaintiff and the production of certain pamphlets which the plaintiff's mother had collected with respect to stroke and its causes.

A Master of the Ontario Court (General Division) granted the defendants leave to examine Dr. Nelson with respect to his treatment of the plaintiff where there was both an actual and a constructive refusal on the part of the party that they were entitled to examine to provide the information that they were seeking. The finding of a constructive refusal was based on the fact that the defendants did not have Dr. Nelson's reports until just before the hearing of the motion and were therefore not in a position at discovery to ask the questions that they needed to ask. The court ordered production of the records of the family physicians, but refused to order production with respect to the pamphlets collected by the plaintiff's mother.

Practice - Topic 4230

Discovery - Examination - Persons who may be examined - Nonparties - See paragraphs 1 to 8.

Cases Noticed:

Cook v. Washuta (1985), 11 O.A.C. 171; 52 O.R.(2d) 289 (C.A.), refd to. [para. 3].

Wells v. Paramsothy (1996), 98 O.A.C. 233; 32 O.R.(3d) 452 (Div. Ct.), refd to. [para. 3].

Rothwell and Fraser v. Raes and Connaught Laboratories Ltd. (1986), 13 O.A.C. 60 (Div. Ct.), refd to. [para. 4].

Famous Players Development Corp. et al. v. Central Capital Corp. et al. (1991), 53 O.A.C. 185; 6 O.R.(3d) 765 (Div. Ct.), refd to. [para. 4].

Duguay et al. v. Devoe et al. (1988), 63 O.R.(2d) 499 (S.C.), refd to. [para. 7].

W.-V. v. W. et al. (1984), 111 D.L.R.(4th) 703 (Ont. Gen. Div.), refd to. [para. 9].

Counsel:

Richard Marks, for the plaintiff;

Marc Somerville, for the defendants.

This motion was heard before Beaudoin, Master, of the Ontario Court (General Division), who released the following decision on April 20, 1998.