The judge feels that this fiat does not warrant publication. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 35 Date: 20060126 Docket: Q.B.G. No. 574/99 Judicial Centre: Battleford BETWEEN: MARK RONALD BAERT, LISA MARIE DAWSON by her Litigation Guardian Mark Ronald Baert, JAMESON JACK BAERT by his Litigation Guardian Mark Ronald Baert and DEVIN FRANK BAERT by his Litigation Guardian Mark Ronald Baert and KENNETH GRAHAM, LLOYDMINSTER DISTRICT HEALTH BOARD, MARILYN MANN, ANN LEER, NURSE JANE DOE, STAFF SALLY ROE #1, STAFF SALLY ROE #2 and RUTH WOOD Counsel: Sandra J. Weber and David D. Risling for the plaintiffs Christine J. Glazer, Q.C. and Michelle J. Ouellette for the defendant Kenneth Graham Gary A. Zabos and Heather J. Laing for the Defendants Lloydminster District Health Board, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood FIAT KRUEGER J. January 26, 2006 [1] There are number of chamber applications brought on behalf of both the plaintiffs and the defendants. They may be summarized as follows: (A) The plaintiffs apply pursuant to Rules 222 and 232 of The Queen’s Bench Rules for:(i) An order compelling the defendant, Kenneth Graham, to respond to written interrogatories;(ii) an order permitting further oral examination for discovery of Kenneth Graham on issues arising from his responses to the written interrogatories;(iii) an order directing Kenneth Graham to provide a copy of the report of neurologist Dr. Vrbancic to counsel for the plaintiffs. Application (A)(iii) has been adjourned sine die. It and all other applications that have been adjourned are to be brought back by the parties contacting the Local Registrar and arranging for chamber date before Krueger J. (B) The plaintiffs also apply pursuant to Rules 215, 222 and 232 of The Queen’s Bench Rules for: (i) An order requiring the Lloydminster District Health Board to provide the investigations, communications, documents, information or reports claimed as privileged under s. 35.1 of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16; At the hearing this application was limited to the review conducted by Lois Sonnega and the formal review initiated by Saskatchewan Health. It too was adjourned sine die. (ii) an order compelling the said defendant Board to provide the plaintiffs with the identity of the roommate of the plaintiff, Lisa Dawson, in her hospital room on July 14, 1999, after undergoing tubal ligation surgery; Due to confidentiality requirements the Board could not provide this information without court order. During the hearing the requested order was granted. (iii) an order compelling the said defendant Board to respond to undertaking number 32 of Gayle Ann Almond, an officer of the defendant Board, during an examination for discovery of March 8, 2001. This application was withdrawn at the hearing. (C) The defendant, Kenneth Graham, applies for: (i) An order pursuant to Rule 173 of The Queen’s Bench Rules striking out para. 33(b) of the plaintiffs’ Amended Amended Statement of Claim; This application was adjourned sine die. (ii) an order pursuant to Rule 173 of The Queen’s Bench Rules that paras. 21, 31(f) and (g), 32(i) and (j) and 33(e) and (f) of the plaintiffs’ Amended Amended Statement of Claim be struck [These paras. deal with a claim for aggravated and punitive or exemplary damages.]; (iii) in the alternative, an order pursuant to Rule 164(4)of The Queen’s Bench Rules requiring the plaintiffs to provide particulars of their claim for aggravated and punitive damages as set out in the Demand for Particulars dated November 25, 2005; (iv) an order pursuant to Rule 231 of The Queen’s Bench Rules requiring the plaintiffs to respond to undertakings number 37, 42, 43, 46 and 52 given at the examination for discovery of the plaintiff, Mark Baert; (v) an order entitling the defendant, Kenneth Graham, to further examine the plaintiff, Mark Baert, on responses given to the undertakings; (vi) an order that failing the providing of responses the plaintiffs’ action be dismissed without further application. (D) The defendants, Lloydminster District Health Board, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood, apply for: (i) An order pursuant to Rule 164 of The Queen’s Bench Rules requiring the plaintiffs to provide further and better particulars of their claim as set out in the Demand for Particulars dated November 28, 2005; This is the same application as is made by Kenneth Graham pursuant to (C)(iii). (ii) an order pursuant to Rule 231 of The Queen’s Bench Rules requiring the plaintiffs to provide better responses to undertakings number 13, 14, 16, 17 and 76; For the most part these responses have been provided. (iii) an order entitling the defendant applicants to further examine the plaintiff, Mark Baert, on particulars and undertaking responses given; No longer applicable. (iv) an order that failing the providing of better particulars and responses the plaintiffs’ action is to be dismissed with costs; No longer applicable. (v) an order pursuant to Rule 173 of The Queen’s Bench Rules striking the claims of the infant plaintiffs, Jameson Jack Baert and Devin Frank Baert; This application was adjourned sine die. (vi) separate application pursuant to Rule 173 of The Queen’s Bench Rules that paras. 21, 31(f) and (g), 32(i) and (j) and 33(e) and (f) of the plaintiffs’ Amended Amended Statement of Claim be struck. These paragraphs relate to aggravated and punitive or exemplary damages and is the same application as has been made by Kenneth Graham pursuant to para. (C)(ii). FACTUAL BACKGROUND [2] The plaintiff, Lisa Dawson, underwent tubal ligation operation at the Saskatchewan Lloydminster Hospital performed by the defendant, Dr. Kenneth Graham, on July 14, 1999. She was discharged from the hospital later the same day. Early on July 16, 1999, Lisa Dawson was taken back to the Lloydminster Hospital where she underwent emergency surgery to repair two millimeter bowel perforation. During the partial bowel resection operation she suffered cardiac arrest. The second surgery was also performed by Dr. Graham. [3] Upon revival, Lisa Dawson was airlifted to the Royal Alexandra Hospital in Edmonton. Surgical procedures there included the amputation of all four of her limbs. She also suffered brain and organ damage and is currently living in long-term care facility in Saskatoon. [4] Mark Baert and Lisa Dawson, together with their two children, Jameson Jack Baert and Devin Frank Baert, are the plaintiffs in this action. They allege failure by the defendants to meet the required standard of care in conducting the laparoscopic tubal ligation surgery on the plaintiff, Lisa Dawson, and during subsequent care and treatment to repair puncture to the bowel. Their allegations of negligence or breach of duty are set out primarily in paras. 25(a) to 25(uu) of their Amended Amended Statement of Claim. In addition to claim by each plaintiff for pecuniary and non-pecuniary damages resulting from negligence and/or breach of duty, each claims aggravated damages and punitive or exemplary damages. pretrial settlement conference has been scheduled for April 28, 2006. [5] The applications shall be dealt with in the order raised herein, starting with the application by the plaintiffs relating to the defendant, Dr. Graham. Where any application has been adjourned sine die it will not be further commented on and where more than one of the defendants raised the same issues in separate applications those applications will be dealt with only once. Should Dr. Graham be compelled to provide full and complete responses to written interrogatories and, if necessary, be orally examined on his responses? [6] On May 6, 2005, counsel for the plaintiff forwarded to counsel for Dr. Graham the following interrogatory questions: 1. Since the surgery on Lisa Baert (Dawson) in July 1999, has your performance, including your skills or technique, of laparoscopic gynecological surgery been reviewed by: a. Quality of Medical Performance Committee of any College of Physicians and Surgeons? b. By some other Committee, or other method, by any College of Physicians and Surgeons? c. Any other body, such as Health Authority, for example. 2. If your performance of laparoscopic gynecological surgery has been reviewed by any of the bodies listed above, advise whether the review related to the puncture of bowel in the performance of the laparoscopic gynecological surgery? If it did relate to the puncture of bowel, advise whether you have had other occasions (excluding the case of Lisa Baert) where you have punctured bowel during the course of laparoscopic gynecological surgery. If so, provide particulars of those occasions including the patient name, type of surgery and date. 3. From any reviews that have been undertaken of your performance of laparoscopic gynecological surgeries, advise if there have been any criticisms of your performance of laparoscopic gynecological surgeries or criticism of your judgment in proceeding with surgeries. If so, provide particulars of those criticisms. 4. Confirm at what level you are qualified to perform laparoscopic gynecological surgery. Explain the difference between Level 1, Level and Level laparoscopic skills. 5. Since the surgery performed on Lisa Baert (Dawson) on July 14, 1999, have you voluntarily or otherwise discontinued performance of laparoscopic gynecological surgery? 6. If you have voluntarily or otherwise discontinued performance of laparoscopic gynecological surgery since July 14, 1999, provide the reasons for the discontinuance as well as the time period for which you discontinued the performance of laparoscopic gynecological surgery. 7. Since the surgery performed on Lisa Baert (Dawson) on July 14, 1999, have you voluntarily or otherwise taken retraining or upgrading with respect to your performance of laparoscopic gynecological surgery? 8. If you have voluntarily or otherwise taken retraining or upgrading with respect to your performance of laparoscopic gynecological surgery, provide particulars of the retraining or upgrading, the time period for the retraining or upgrading and provide the results of the retraining or upgrading. If there are any written documents related to the retraining or upgrading, provide copies. [7] In response dated July 18, 2005, counsel for Dr. Graham advised that Dr. Graham, who by then had moved to British Columbia, continues to be licenced as an obstetrician and gynecologist in good standing and is qualified to perform Level laparoscopy without restrictions. He suffered heart attack and has been on medical leave from his practice since May, 2003. The response went on to indicate that Dr. Graham’s skills or technique of laparoscopic surgery have not been reviewed by any professional body as result of the surgery performed on Lisa Dawson. Counsel would not agree to reopening the examination for discovery of Dr. Graham. [8] It is the position of the plaintiffs that review of the skills, technique, judgment and competency of the defendant, Dr. Graham, in performing laparoscopic gynecological surgery is relevant, whether in relation to the plaintiff, Lisa Dawson, or anyone else. The examination for discovery of Dr. Graham took place on December 1, 2000. The Amended Amended Statement of Claim issued on February 28, 2001. Undertaking surgical procedures which Dr. Graham did not have adequate knowledge, skill and experience to perform (para. 25(k)) was alleged in the Amended Amended Statement of Claim. The “broad relevance” test was urged by counsel for the plaintiffs. [9] The position of the defendant, Dr. Graham, is that except in special circumstances party to an action is not entitled to re-examine for discovery an adverse party. See Kelly v. Burns Estate (1999), 1999 CanLII 3141 (NS SC), 176 N.S.R. (2d) 398 (N.S.S.C.); Hosie v. Hosie, 1974 CanLII 904 (SK QB), [1975] W.W.R. 597 (Sask. Q.B.). Further the defendant, Dr. Graham, argues that the quality assurance reviews where complications occurred are all subsequent to the events of this case and irrelevant. In any event, Dr. Graham has already been extensively examined relating to his training, experience, techniques and procedures. [10] Further, if any of the interrogatories on which the plaintiffs wish to re-examine are relevant, it was argued, both British Columbia and Saskatchewan legislation prohibit the use of information derived from investigations/reviews conducted by hospital board or the College of Physicians and Surgeons. The privilege, it was suggested, is absolute and cannot be waived. Further it was argued that the information sought falls within the Wigmore principle of common law privilege. [11] In the response dated July 18, 2005, to the plaintiffs’ list of interrogatories, the following information was provided or can be surmised: (a) There has been no review of Dr. Graham’s skills or techniques of laparoscopic gynecological surgery by any professional body relating to Lisa Dawson’s surgery. There may have been reviews relating to other patients. (b) There have been no competency or disciplinary proceedings taken against Dr. Graham. (c) Dr. Graham remains qualified to perform laparoscopic gynecological surgery at Level 1. What Level qualification entails is easily ascertainable from any physician who performs laparoscopic surgery. (d) Since July 14, 1999, Dr. Graham has discontinued performing laparoscopic gynecological surgery due to heart attack. (e) Dr. Graham had been on medical leave of absence for over two years at the time of responding on July 18, 2005. At that time he remained qualified at Level 1. Any training or upgrading could possibly relate solely to prolonged period of absence from the medical practice. In those circumstances, the answer to questions and may not be particularly relevant to these proceedings. [12] Rule 222 of The Queen’s Bench Rules allows party to proceeding, without order, to examine for discovery, before trial, an adverse party touching matters in issue. Generally broad scope of relevance as to matters in issue is granted on examinations for discovery. See Cominco Ltd. v. Phillips Cables Ltd. [1987] S.J. No. 143 (Sask. C.A.). [13] It is the position of the plaintiffs that they require particulars of reviews and inquiries in order to determine the level of skill of Dr. Graham in performing laparoscopic gynecological surgery. His performances both before and after the surgery performed on the plaintiff, Lisa Dawson, they claim, are relevant to that issue. The plaintiffs maintain that they are not seeking documents relating to the inquiries or reviews, only factual information. agree that the skills, technique, judgment and competency of Dr. Graham are relevant to the issues in this action, but only to the extent that they relate to breach of duty or standard of care in performing the laparoscopic surgery on the plaintiff, Lisa Dawson. [14] Counsel for Dr. Graham argue that, although “blind” procedure, laparoscopic tubal ligation surgery is common and uncomplicated procedure. Evidence of experts in the field will be called at the trial to testify as to the competency of Dr. Graham in meeting the required standard of care when performing the operation on the plaintiff, Lisa Dawson. The plaintiffs are, it is suggested, seeking particulars of quality assurance review in case not involving the plaintiff, Lisa Dawson. There is no authority for permitting that line of inquiry, either as similar fact evidence or as an exception to privilege. [15] am satisfied that if the plaintiffs are in effect seeking to obtain particulars of similar fact circumstances, the prejudicial effect of such evidence far outweighs any probative value. See Williams v. Wai-Ping, [2005] O.J. No. 1940 (Ont. S.C.). At the same time s. 60(2) of The Medical Profession Act, 1981, R.S.S. 1980-81, c. M-10.1, protects against disclosure of information or evidence given during proceedings conducted by the College of Physicians and Surgeons for Saskatchewan. Likewise, s. 35.1 of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, grants similar privilege relating to quality assurance committees that have evaluated care given to patients in hospitals. Kerr v. Saskatchewan (Minister of Health), 1994 CanLII 4586 (SK CA), [1994] W.W.R. 153 (Sask. C.A.), appears to make that privilege absolute. Other jurisdictions have similar legislation. [16] Insofar as the interrogatories relate to patients, surgical procedures or proceedings not related to the subject litigation, they are either not relevant or privileged. Since the Statement of Claim has twice been amended I am satisfied that special circumstances exist permitting further examination for discovery and/or interrogatories. Wide latitude is permitted at this stage of the proceedings. The trial judge will be in the best position to determine the admissibility of information obtained in relation to Dr. Graham’s skills, technique, judgment and competency. [17] The plaintiffs are entitled to responses, if not already provided, from Dr. Graham in relation to, but limited to, the following: (a) The approximate number of occasions that Dr. Graham performed laparoscopic tubal ligation or similar gynecological laparoscopic procedures on patients prior to that performed on the plaintiff, Lisa Dawson; (b) whether bowel puncture occurred during any of those procedures, and if so, on how many occasions; (c) whether punctured bowel during those laparoscopic gynecological procedures prompted quality assurance review by the College of Physicians and Surgeons of the province where the procedure was conducted or by any other body; (d) when Dr. Graham obtained his Level qualification to perform laparoscopic gynecological procedures; (e) whether Dr. Graham has taken any retraining or upgrading since obtaining his Level qualification and, if so, the dates of such retraining or upgrading and the nature of the courses attended. [18] The defendant, Dr. Graham, should be able to provide these responses in writing. If elaboration is required, the plaintiffs may at their own initial expense re-examine Dr. Graham. Such re-examination should, however, not include or involve inquiries as to other patient names, hospitals involved or details of the surgical procedures or surgeries performed. Counsel may return to the Court for further clarification if required. Should paragraphs 21, 31(f) and (g), 32(i) and (j) and 33 (e) and (f) be struck as failing to disclose reasonable cause of action or because they are scandalous, frivolous or vexatious? [19] The above paragraphs of the Amended Amended Statement of Claim seek aggravated and punitive or exemplary damages from the defendants by all of the plaintiffs. Punitive and exemplary damages are the same and will be referred to herein as “punitive” damages. It is the position of the defendants that even with particulars of aggravated and punitive damages as provided by the plaintiffs there is no basis for claim for either of those forms of damage. The plaintiffs point in particular to para. 25 of the Amended Amended Statement of Claim to support their argument that it is open to the court to find aggravated and punitive damages particularly in the case of Dr. Graham. [20] The parties are in agreement that for the impugned paragraphs to be struck as offending Rule 173(a) of The Queen’s Bench Rules it must be “plain and obvious” that those paragraphs disclose no reasonable cause of action. The court is limited to looking at the claim and particulars provided, if any, when deciding whether to strike paragraphs pursuant to Rule 173(a). The test for striking paragraphs pursuant to Rule 173(c) on the basis that they are scandalous, frivolous or vexatious is different. There the court embarks upon an assessment of the merits of the claim and the motives of the plaintiff in making the claim. See Sagon v. Royal Bank of Canada et al (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 at para. [21] In Turner v. Bederman, (1996) Carswell Ont. 1766 (Ont. Ct. of Justice), aggravated damages was described as “the mental aspect of damages caused by defendant granted to compensate for additional mental suffering caused by the defendant’s objectionable conduct.” In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130, the Supreme Court of Canada described aggravated damages as those awarded in circumstances where the defendant’s conduct has been particularly high-handed or oppressive; conduct that increases the plaintiff’s humiliation and anxiety. In order to award aggravated damages there must be finding of conduct motivated by malice. At para. 183 of Hill, supra, Cory J. wrote: There will of necessity be some overlapping of the factors to be considered when aggravated damages are assessed. This can be seen from further reference to the Gatley [on Libel and Slander, 8th Ed.] text at pp. 593-94 where this appears: 1452. Aggravated damages. The conduct of the defendant, his conduct of the case, and his state of mind are thus all matters which the plaintiff may rely on as aggravating the damages. “Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff’s proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation.” “In awarding ‘aggravated damages’ the natural indignation of the court at the injury inflicted on the plaintiff is perfectly legitimate motive in making generous, rather than more moderate award to provide an adequate solatium...that is because the injury to the plaintiff is actually greater, and, as the result of the conduct exciting the indignation, demands more generous solatium.” Aggravated damages conduct as described by Cory J. is not limited to libel and slander situations. Such conduct may apply to any tort situation. [23] Punitive damages are awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. Such damages are only awarded where the combined award of general and aggravated damages are insufficient to achieve punishment and deterrence. Such damages are likened to fine. See Hill, supra, at para. 196. The defendant’s misconduct does not have to be an independent actionable wrong to attract punitive damages. The breach of duty owed that is flagrant and deliberate misconduct will attract an award of punitive damages: See Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085 at para. 25. [24] The defendants take the position that “mere” negligence is not enough to justify an award of aggravated or punitive damages. am unable to subscribe to that criteria. It is not the degree of negligence, i.e. gross, but the mental element that accompanies the negligence that gives rise to claim for aggravated or punitive damages. [25] The plaintiffs point to paras. 25(a) and 25(b) of the Amended Amended Statement of Claim where it is alleged that Dr. Graham failed to fully or reasonably inform Lisa Dawson of the risks associated with the proposed laparoscopic surgery, leading her to believe that there were no risks involved. Such negligence, if proven, could lead trier of fact to conclude that both aggravated and punitive damages are warranted as against Dr. Graham. [26] It would be somewhat presumptuous at this stage of the proceedings to conclude that it is plain and obvious pursuant to Rule 173(a) of The Queen’s Bench Rules that the plaintiffs do not have a cause of action for aggravated or punitive damages against Dr. Graham. Nor can it be said when assessing the merits of the considerable allegations that have been made that claim for aggravated or punitive damages is scandalous, frivolous or vexatious pursuant to Rule 173(c). In my view, humiliation, indignity, degradation or shame could be the consequence of the wrongful behaviour pleaded. However, if those emotions must be specifically pleaded, the plaintiffs can apply for further amendment of their claim. [27] The defendant, Lloydminster District Health Board, likely cannot be held vicariously liable for any aggravated or punitive damages assessed against Dr. Graham as result of assault and battery by him. The Board may be held vicariously liable for acts of negligence by its employees. It is alleged that the defendants, Marilyn Mann, Ann Leer, Nurse Jane Doe, Staff Sally Roe #1, Staff Sally Roe #2 and Ruth Wood, negligently advised the plaintiff, Lisa Dawson, regarding her care both before and after her discharge from the hospital (paras. 25(mm) to (uu) of the Amended Amended Statement of Claim). Such advice could be found by trier of fact to be “malicious behaviour”(McBeth v. Boldt (1998), 1998 CanLII 7051 (BC CA), 164 D.L.R. (4th) 247 para. 21 (B.C.C.A.)) or reprehensible conduct that attracts punitive damages. See Wilcott v. Ellis (2001), 2001 SKQB 219 (CanLII), 206 Sask. R. 219 (Q.B.). [28] Similar to the situation with Dr. Graham, am unable to conclude that it is clear and obvious that the aggravated and punitive damage claims will fail as against the remaining defendants. Further the allegations that could lead to such damages are not scandalous, frivolous or vexatious. [29] All of the defendants in this case are health care givers. It will be difficult to prove that any of them acted in bad faith, with deliberate or reckless disregard for the plaintiff, Lisa Dawson, or with extreme or malicious behaviour causing additional suffering or deserving of punishment. also agree that the jurisprudence in medical malpractice cases does not favour granting aggravated and punitive damages. That having been said, it is the evidence presented at trial and not the allegations contained in the pleadings that will determine the mental elements that give rise to claim of both aggravated and punitive damages. The result is that paras. 21, 31(f) and (g), 32 (i) and (j) and 33(e) and (f) will not be struck at this time. Should the plaintiffs be required to respond to undertakings number 37, 42, 43, 46 and 52 given during the examination for discovery of Mark Baert? [30] The obligation of party to comply with undertakings given at an examination for discovery is contained in Rule 231 of The Queen’s Bench Rules: Anyone refusing or neglecting to attend at the time and place appointed for his examination or refusing to be sworn or to answer any lawful question put to him by any party entitled to do so or his counsel or solicitor or having undertaken at the examination to answer at later date any lawful question put to him fails to do so within reasonable time after the examination shall be deemed guilty of contempt of court and proceedings may be taken forthwith to commit him for contempt. He shall be liable if plaintiff to have his action dismissed, and if defendant to have his defence, if any, struck out and to be placed in the same position as if he had not defended. [Emphasis added] [31] Undertaking number 37 is to advise of any facts on which the plaintiffs may rely in the future to establish claim of incompetency against Dr. Graham (taken under advisement). In Cominco Ltd., supra, Cameron J.A. of the Saskatchewan Court of Appeal, writing for the court, stated at para. 12: As has been said time and again, the purpose of the rule [222] is twofold: (i) to allow the parties to ascertain if the plaintiff has good cause of action or the defendant such defence as would render further litigation useless [Citations omitted]; and (ii) to enable the parties to secure from one another such admissions as will advance one’s own cause or weaken that of one’s opponent [Citations omitted]. [32] To the extent that the defendant, Dr. Graham, has been required to respond to interrogatories relating to his skill and training and to the extent that any further cross-examination may show defects in his competency, undertaking number 37 must be answered. If the plaintiffs have further or other facts, those facts must be provided. Failure to provide further facts may prevent the defendants at trial from relying on any facts not disclosed. [33] Undertaking number 42 is to produce particulars of the first trust fund which started with the ICU doctors at the Royal Alexandra Hospital (taken under advisement). Undertaking number 52 is related. It is an undertaking to produce bank records relating to Lisa Dawson’s account and any accounting provided to the public trustee or the court in relation to the plaintiff Mark Baert’s position as trustee for Lisa Dawson (taken under advisement). The defendants are of the view that if trust funds were created and used for medical or rehabilitative equipment and services, double recovery may result. It is the position of the plaintiffs that trust funds that are gifts from the public cannot be brought into account in determining damages. See Herbert v.Misuga, [1994] S.J. No. 35 (Sask. C.A.); Dawson v. Sawatzky 1945 CanLII 185 (SK CA), [1946], D.L.R. 476 (Sask. C.A.); Myers and the City of Guelph v. Hoffman, 1955 CanLII 161 (ON SC), [1955] O.R. 965-976 (Ont. H.C.). [34] Clearly the defendants are not entitled to know or to take advantage of or receive any credit for or accounting relating to trust funds gratuitously set up for the plaintiff, Lisa Dawson. No response to undertaking number 42 need be made. Undertaking number 52 is in somewhat different position. To the extent that funds contained in trust account administered by the plaintiff, Mark Baert, for Lisa Dawson to which there is claim of subrogation on behalf of the Minister of Health for Saskatchewan or the Minister of Health for Alberta (para. 31(e) of the Amended Amended Statement of Claim) an accounting is required. An accounting of funds held in trust by the plaintiff, Mark Baert, for the plaintiff, Lisa Dawson, may also impact on the claim by him of loss of income as a result of being required to be in attendance to provide care for Lisa Dawson (para. 27(c) of the Amended Amended Statement of Claim). In the final analysis such an accounting may not provide any usable information, but at this stage of the proceedings is justified. An accounting by the defendant, Mark Baert, pursuant to undertaking number 52 must be provided. [35] Undertaking number 43 is to provide details of the allegations made against the plaintiff, Mark Baert, by Kathy (taken under advisement). This undertaking is related to undertaking number 46, which is to produce copies of the information, summons, and disclosure documents in relation to the assault charge against the plaintiff, Mark Baert. The defendants argue that the nature of the assault may have been at least partially responsible for counselling required by the infant plaintiffs. The plaintiff, Mark Baert, advised through counsel that the children were not present during the assault and that as result of the charge he was granted conditional discharge. The children were not, it was suggested, affected by this incident. [36] The information (summons) filed is public document and can be obtained by the defendants from the relevant court house. Further responses to undertakings number 43 and 46 would, in my view, serve no useful purpose and are not ordered. All of the defendants are entitled, at their initial expense, to further examine for discovery the plaintiff, Mark Baert, on the responses ordered to be given to his undertakings. [37] Where responses are required by party in these applications, the responses shall be provided within 30 days of the date of this fiat. Further examinations for discovery arising out of those responses shall be conducted within 30 days of receipt of the responses unless otherwise agreed to by the parties. number of applications have been adjourned. Those applications may be brought back; if so, the matter of costs can then be spoken to. If no further matters are brought back to the court, costs may be spoken to at the request of any party. J. D. K. KRUEGER
FIAT: The plaintiffs apply for an order requiring the defendant doctor to answer the interrogatories and attend a further examination for discovery. The defendants seek an order striking portions of the statement of claim, and requiring the plaintiff to provide answers to undertakings given at his examination for discovery. HELD: 1) Rule 222 of The Queen's Bench Rules allows a party to a proceeding without order to examine for discovery, before trial, an adverse party touching matters at issue. If the plaintiffs are in effect seeking to obtain particulars of similar fact circumstances, the prejudicial effect of such evidence far outweighs any prohibitive value. At the same time, s. 60(2) of The Medical Profession Act, 1981 protects against disclosure of information or evidence given during proceedings conducted by the College of Physicians and Surgeons. Likewise, s. 35.1 of The Saskatchewan Medical Evidence Act grants a similar privilege relating to quality assurance committees that have evaluated care given to patients in hospitals. Insofar as the interrogatories relate to patients, surgical procedures or proceedings not related to the subject litigation, they are either not relevant or privileged. Since the statement of claim has twice been amended, the court was satisfied that special circumstances exist permitting further examination for discovery and/or interrogatories. Wide latitude is permitted at this stage of the proceedings. The trial judge will be in the best position to determine the admissibility of information obtained in relation to the doctor's skills, techniques, judgment and competency. The plaintiffs are entitled to responses to specific interrogatories. If further elaboration is required, the plaintiffs may at their own expense re-examine the doctor. Such examination should not include inquiries as to other patient names, hospitals involved or details of the surgical procedures or surgeries performed.  2) Pursuant to Rule 173(a) of the Rules of Court it must be plain and obvious that the paragraphs of the statement of claim disclose no reasonable cause of action. Punitive damages are awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Such damages are only awarded where the combined award of general and aggravated damages are insufficient to achieve punishment and deterrence. The defendant's misconduct does not have to be an independent actionable wrong to attract punitive damages. The breach of a duty that is owed will attract an award of punitive damages. It is not the degree of negligence but the mental element that accompanies the negligence that give rise to a claim for aggravated or punitive damages. The amended statement of claim alleges the doctor failed to inform one of the plaintiff of the risks associated with the surgery leading her to believe there were no risks involved. Such negligence, if proven, could lead a trier of fact to conclude that both aggravated and punitive damages are warranted against this doctor. It would be somewhat presumptuous at this stage to conclude that it is plain and obvious that the plaintiffs do not have a cause of action for aggravated or punitive damages against the doctor. In the courts view humiliation, indignity, degradation or shame could be the consequences of the wrongful behaviour pleaded. If those emotions must be specifically pleaded, the plaintiffs can apply for a further amendment of their claim. 3) The obligations of a party to comply with undertakings given at an examination for discovery are contained in Rule 231 of The Queen's Bench Rules. To the extent that the doctor has been required to respond to interrogatories relating to his skill and training and to the extent that any further cross-examination may show defects in his competency, the plaintiff's undertaking must be answered. If the plaintiffs have further or other facts, those facts must be provided. 4) The defendants are not entitled to know or to take advantage of or receive any credit for or accounting relating to trust funds gratuitously set up for the plaintiff. However, an accounting regarding the bank records and the records produced for the Public Trustee by the Trustee for the trust fund will be complied with as it may impact on the claim by him for loss of income as a result of being required to be in attendance to provide care for the plaintiff.