Holland v. Marshall

2010 BCCA 164 Holland v. Marshall COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Holland v. Marshall, 2010 BCCA 164 Date: 20100420 Docket: CA036649; CA036884 Between: Jonathon David Holland, by his custodial parent and guardian ad litem, Zsuzsanna Holland, and the said Zsuzsanna Holland Appellants (Plaintiffs) And Dr. Linda Maureen Marshall, Cariboo Memorial Hospital and Health Centre ‒ Interior Health Authority, the College of Physicians and Surgeons of British Columbia, Dr. Glenn A. Fedor, Dr. Roger A. G. Hicks, Dr. Suzanne Judy Bannerman, Dr. Paul R. Sobkin, Dr. Noel J. Donnelly and Dr. Albert S. Kelly Respondents (Defendants) Before: The Honourable Madam Justice Prowse The Honourable Mr. Justice Mackenzie The Honourable Mr. Justice Lowry On appeal from: Supreme Court of British Columbia, November 4, 2008 and February 11, 2009 (Holland v. Marshall, Penticton Docket 26039) Appellant, appearing in person: J. D. Holland Counsel for the Physician Respondents: K. F. Douglas Counsel for the Attorney General of British Columbia: B. A. Mackey Place and Date of Hearing: Vancouver, British Columbia March 11, 2010 Place and Date of Judgment: Vancouver, British Columbia April 20, 2010 Written Reasons of the Court Reasons for Judgment of the Court: [1] Five years ago Zsuzsanna Holland commenced this medical malpractice action on behalf of her son, Jonathon Holland, who was then 17 years of age. It is alleged he has suffered psychological disorders as a result of a brain injury attributable to the negligence of the defendant physicians in relation to his birth and the lack of proper treatment over a period of years thereafter. Ms. Holland also sued on her own behalf claiming damages for, inter alia, psychological trauma, but, in October 2006, her action was summarily dismissed as statute barred: 2006 BCSC 1588, aff'd 2008 BCCA 468. The defendant Hospital and College are no longer parties to the action. Jonathon Holland's action was dismissed by Madam Justice Ross following a summary trial, (4 November 2008) Penticton No. 26039 (B.C.S.C.), and subsequent applications for various forms of relief were dismissed in February 2009 by Madam Justice Adair as an abuse of process. Both of those dismissals are now appealed. [2] Jonathon Holland (the "plaintiff"), who is now 22, is not represented. He seeks to have his mother and his stepfather, Charles Bryfogle, appear on his behalf or to be afforded state-funded representation. Before the appeals can be considered, an ancillary application relating primarily to his obtaining representation is raised and must be addressed. [3] At the outset of the hearing of the appeals, in keeping with s. 26 of the Court of Appeal Act, R.S.B.C. 1996, c. 77, it was proposed and accepted no oral argument would be heard and judgment in the appeals and on the application would be based on our consideration of the extensive written material filed. The Plaintiff's Representation on these Appeals [4] The nature of the claims made against each of the physicians and the course the litigation has taken are well set out in the various reasons for judgment that have been given in disposing of the many applications Ms. Holland has pursued for her son and the appeal she pursued for herself. See, in particular, the reasons given by this Court for dismissing the appeal from the dismissal of Ms. Holland's action: 2008 BCCA 468, and the detailed appendix annexed to this Court's reasons for dismissing two applications for review of orders made in chambers, indexed as 2009 BCCA 582. While it is not necessary for a detailed review here, an understanding of the history of the plaintiff's representation is needed to put the application that is now made in that regard in context. [5] The defendants indicated their intention to apply for a summary trial pursuant to Rule 18A soon after the action was commenced. Their application was formally initiated by notice of motion dated 4 December 2006 but, because of ongoing interlocutory proceedings in both the trial court and this Court, they were not able to have it heard until November 2008. [6] In the interim, once the plaintiff had reached the age of majority, the defendants applied to have him take conduct of his action unrepresented by his mother. She conceded he was under no legal disability but, in a cross-application, sought to continue to represent him as a "trustee". In March 2008, Mr. Justice Brooke, for reasons indexed as 2008 BCSC 333, allowed the defendants' application, dismissed the cross-application, and ordered that the plaintiff was to advance his claim himself or through a solicitor. Leave to appeal was refused, for reasons indexed as 2008 BCCA 456, as was an application to extend time to apply for a review of that refusal (7 January 2009), Docket CA035990 (B.C.C.A.). [7] On the day the summary trial was to be conducted, the plaintiff applied for an adjournment. He was represented by counsel for that limited purpose only. The adjournment was sought to permit the plaintiff to retain counsel to respond to the Rule 18A application and to obtain expert evidence. The application had already been adjourned once specifically to permit the plaintiff to retain counsel. The plaintiff could say no more than a solicitor had been consulted the preceding month (October 2008) and, if an adjournment was obtained, the solicitor would consider representing him. The defendants had, in 2006, provided the plaintiff (i.e., his mother) with the affidavit evidence of several physicians they intended to rely on in conducting the summary trial, but even though solicitors had apparently advised Ms. Holland in 2002 of the need for expert evidence on causation and the standard of care, it had not been obtained. On balancing the considerations, for reasons given orally on 3 November 2008, Ross J. dismissed the application for an adjournment. She proceeded with the summary trial the next day and dismissed the plaintiff's action. Neither the plaintiff, nor anyone on his behalf, appeared. Leave to appeal the dismissal of the plaintiff's adjournment application was refused by Madam Justice Smith for reasons indexed as 2009 BCCA 199, and an application for review was dismissed for reasons indexed as 2009 BCCA 582. [8] In March 2009, Ms. Holland and Mr. Bryfogle obtained a report of a psychologist expressing the opinion the plaintiff has significant cognitive impairment when compared to others his age. Application was then made in chambers, under Rule 6(10) of the Rules of Court, for leave to have Ms. Holland represent the plaintiff as his litigation guardian for the appeal of the dismissal of his action on the basis he has a legal disability, or for leave permitting Ms. Holland and Mr. Bryfogle to represent him as his agents. The defendants met the application with a report obtained from a neuropsychologist who was highly critical of the opinion expressed concerning the plaintiff's cognitive limitations. On hearing the application, for reasons indexed as 2009 BCCA 311, Madam Justice Neilson found the plaintiff was not a person under a disability within the meaning of the rule and declined to afford the applicants audience to represent him at the hearing of the appeal. Application was made for a review of her decision, which was dismissed at the same time as the application to review the refusal of leave to appeal the dismissal of the plaintiff's application to adjourn the summary trial, for the reasons indexed as 2009 BCCA 582. [9] The plaintiff continues to maintain he is disabled. Despite the concession made before Brooke J. and the determination of Neilson J.A. upheld, as it was, by a division of this Court, he seeks to re-litigate the question. He now relies on an application form apparently submitted to the Ministry of Employment and Income Assistance containing the report of a physician completed in January 2008. Based on psychological testing undertaken five years earlier, the report records the plaintiff suffers from Attention Deficit Hyperactivity Disorder but adds nothing of consequence to the evidence considered by Neilson J.A. Further, where the plaintiff sought an adjournment before Ross J., in part to permit him to retain counsel, it is now said he cannot afford professional representation, although there does not appear to be any evidence before us of his or his family's financial circumstances. [10] The matter of the plaintiff's representation is said to give rise to a constitutional question, for which notice has been given on behalf of the plaintiff, and to which the Attorney General appears in response. The notice is coupled with what is a threefold application, which together seek a broad range of relief that give rise to essentially three contentions: i) despite the order of Brooke J., as well as the order of Neilson J.A. and the order made dismissing the application to review her order, Ms. Holland and Mr. Bryfogle should be permitted to represent the plaintiff on these appeals; ii) the appeals should be stayed until a complaint made for the plaintiff to the Chief Justice (who has no statutory authority to entertain the complaint) and the Canadian Judicial Council about the three members of the Court who heard the application for review has been addressed; or iii) the Court should order the Province to provide counsel for the plaintiff entirely at public expense. The notice of the application references a rule governing the procedure to be followed in making application for intervenor status, but no proper application is made and there is no basis on which Ms. Holland or Mr. Bryfogle could be granted intervenor status. i) Ms. Holland and Mr. Bryfogle [11] The plaintiff specifically seeks an order that would "discharge or void" the order made by the division of this Court before which a review of the order made by Neilson J.A. was sought, with Ms. Holland and Mr. Bryfogle then being granted leave to appear for him. The relief sought is, however, not relief which we have jurisdiction to grant. What the plaintiff seeks is to have us determine that provisions of the Charter render the division's decision to uphold the order of Neilson J.A. to be in error. There is no appeal from one division of this Court to another. [12] It has been decided by this Court the plaintiff has no legal right to have his mother or his stepfather represent him. It has further been determined that they should not be afforded the privilege of audience before the Court to appear for him on the appeals. While we consider there may be a question whether a justice in chambers can grant or refuse the privilege of audience before a division of the Court, Ms. Holland and Mr. Bryfogle sought a determination before Neilson J.A. and the question of her jurisdiction was not raised. Her determination was upheld on the application for a review and, on our consideration of the history of this litigation evident in the reasons for the several judgments pronounced in both the trial court and this Court, we agree with what she said: [39] In R. v. Dick, 2002 BCCA 27, 163 B.C.A.C. 62, this Court observed that granting a privilege of audience to a person who is not a lawyer is a matter that lies within the court's discretion, and should be exercised rarely and with caution. Considerations should include ensuring that litigants are competently and ethically represented, that the integrity and fairness of the court process is maintained, and that the proceedings are conducted in a manner that will command the respect of the community. [40] Consideration of those factors in this case clearly militates against granting an order giving Mr. Bryfogle privilege of audience. Mr. Bryfogle has a substantial history of litigation in this province. A review of the cases in which he has appeared, both on his own behalf and as a representative of others, demonstrates that Mr. Bryfogle's presence has been problematic. * * * [45] With respect to Ms. Holland, I have no doubt that her persistent attempts to assist her son by representing him in this litigation are well-intentioned. However, the many motions and appeals she has taken on his behalf have met with a singular lack of success. [46] Moreover, I cannot find that she has conducted the litigation in a manner that served Mr. Holland's best interests. First, she has failed to obtain supportive expert evidence to prosecute his medical malpractice action. She was advised to do so at the outset, when she retained counsel in 2002. The importance of this must have again been clear to her when the respondents delivered their experts' affidavits in conjunction with their R. 18A motion. As well, a lawyer she consulted in October 2008 advised her that expert opinion would be required. Without expert assistance it is highly unlikely Mr. Holland's claim could succeed. [47] Second, Ms. Holland has pursued the litigation without regard to the orders for costs made periodically against Mr. Holland, for which he will ultimately be responsible if he does not succeed on this appeal. [48] I conclude that Mr. Holland's interests will not be well served by granting Ms. Holland the privilege of audience to represent him on this appeal. [13] We would not grant either Ms. Holland or Mr. Bryfogle the privilege of audience to represent the plaintiff on these appeals. ii) A stay of the appeal proceedings [14] The plaintiff seeks in the alternative to have the appeal proceedings stayed or to have the hearing of the appeals deferred until the complaint made on his behalf has been addressed. But the complaint constitutes no basis for interfering with the hearing of the appeals because it could not serve to alter the order the division made, regardless of how the Canadian Judicial Council may see fit to address it. The complaint process is not an appeal process. [15] The plaintiff (by letter to the registry) seeks leave to cross-examine a physician before us in connection with his complaint. No explanation is given and we can see no possible purpose to be served by our granting leave. It is refused. iii) State-funded representation [16] The plaintiff's contention in the further alternative that the court should require counsel to be appointed for him at public expense is predicated on his being disabled and unable to afford counsel. He maintains his s. 7 Charter right to life, liberty, and security of person requires the appointment of counsel for the preservation of what is said to be his right to "psychological integrity". He relies on New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124, where it was determined that state-funded legal representation may be ordered when by virtue of the action of the state an individual's s. 7 rights may be compromised. But there is no state involvement in this case. The litigation is between private parties. There is nothing about it which engages the Charter. In Pavlis v. HSBC Bank Canada, 2009 BCCA 450, [2010] 1 W.W.R. 208, on the question of state-funded legal representation being considered by this Court in the context of a lawsuit between private interests, the following was said: [11] ... Although it has been said that the right to security of the person extends to both the "physical and psychological integrity of the individual," recent authorities have made it clear that there must be state interference having a profound effect on a person's "psychological integrity", such as occurred in New Brunswick (Min. of Health and Community Services) v. G.(J.) [1999] 3 S.C.R. 46, before such a deprivation may be found. (See especially paras. 58-60.) None of these elements exists here. [17] Thus, quite apart from the absence of any evidence of financial hardship being adduced before us, the absence of any state involvement in this action is determinative of any entitlement to state-funded representation. The Dismissal of the Plaintiff's Action [18] The plaintiff bore the onus of proving the case alleged against the defendant physicians on a balance of probabilities. He had to prove that one or more of them had breached the duty they owed to him to meet the requisite standard of care and that the failure to do so caused him to suffer injury. It was then incumbent on the plaintiff to adduce evidence to discharge the onus he bore in respect of each of the standard of care, causation, and injury suffered. But the plaintiff chose not to appear at the summary trial or to retain counsel to appear for him despite the defendants having initiated their application and delivered their evidence two years before the summary trial was heard. Madam Justice Ross did consider two opinions that had been tendered for the plaintiff in the course of the proceedings but found they fell far short of constituting any evidence that would prove the allegations the plaintiff made. [19] Madam Justice Ross began by recognizing that, on the evidence before her, the plaintiff has been diagnosed as having symptoms consistent with Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, and Oppositional Defiance Disorder. She then reviewed the opinions of several physicians adduced by the defendants which negated any breach in the standard of care that could have caused the psychological disorders from which the plaintiff suffers. With respect to the two opinions that had been tendered for the plaintiff, she said: [18] With respect to the balance of expert evidence, there is no evidence filed by the plaintiff from a qualified obstetrician or GP or family physician on the standard of care and, accordingly, no evidence that contradicts or qualifies the expert opinion provided by the defence. There is expert opinion of a Dr. Todd Kettner, who is a registered psychologist, and a Grant Bogyo, a psychologist, that was filed by the plaintiff. I have reviewed these reports. In the first place, neither expert would be qualified to give evidence with respect to the standard of care of physicians. In any event, they do not offer such opinions, so there is nothing in those reports that goes to the issue of standard of care and, in addition, nothing that goes to the issue of causation in the sense of linking any of the conditions that Jonathon manifests to the circumstances of his birth or any of the treatment provided by any of the defendants since that time. [20] Madam Justice Ross then concluded: [21] In the result, I conclude that, first, it is possible to find the facts necessary to resolve matters on this 18A application and that it would be just to do so. I find that on the evidence, the standard of care of all of the physicians was that of a prudent and reasonable practitioner and that there is no evidence to suggest that any of these physicians breached the standard of care with respect to the plaintiff Jonathon Holland and, second, that there is no evidence that would establish the element of causation. [21] There was, on the evidence before her, no other conclusion that could be reached. The plaintiff does not appear to contend otherwise. His case on this appeal is essentially procedural in the sense that he maintains the judge should have declined to proceed with the summary trial and reached no conclusion. It is difficult to see the whole of his appeal as other than an appeal of the dismissal of his application for an adjournment which we would have no jurisdiction to entertain. He does say Ross J. erred in drawing conclusions based only on the evidence adduced by the defendants when, according to him, it was challenged by documentation to be found in the court file. He is, however, not specific and cannot establish she failed to consider any evidence that was properly before her on the summary trial. [22] The plaintiff then argues four grounds of appeal. i) Representation at the summary trial [23] The plaintiff contends Ross J. deprived him of his right to representation. Clearly she did nothing of the kind. There was ample opportunity for counsel to be retained following the order of Brooke J. in March 2008 to the effect the plaintiff, having reached the age of majority, was no longer to be represented by his mother. The summary trial was not heard until November 2008 and it appears efforts to retain counsel were not made until the preceding month. In any event, leave to appeal the order of Ross J. dismissing the plaintiff's application for an adjournment to retain counsel and obtain evidence was refused and the refusal was upheld on the application for review. We clearly have no jurisdiction to entertain this ground of appeal. ii) Spoliation [24] The plaintiff contends Ross J. failed to properly address an outstanding issue of spoliation which the plaintiff says he had not been permitted to fully explore. Ms. Holland has maintained throughout the course of much of the proceedings that the defendant physicians or the named defendant hospital deliberately destroyed relevant medical records pertaining to the plaintiff's birth. The issue is one counsel representing the plaintiff in seeking an adjournment of the summary trial might have been expected to raise in support of that application, but that does not seem to have happened. However, Ross J. was aware of the issue and addressed it on the evidence before her in dismissing the action. After citing Dyk v. Protec Automotive Repairs (1997), 151 D.L.R. (4th) 374, 41 B.C.L.R. (3d) 197 (S.C.), as the governing authority, she considered the evidence that was before her and said: [26] Accordingly, with respect to the physician defendants, there is no evidence that that evidence has been destroyed. In relation to the hospital defendants who are no longer a part of this litigation, there is evidence that documents have been destroyed that would be relevant to an issue; however, there is no evidence and in fact it is clear that the documents were destroyed before legal proceedings were pending. There is no evidence that the destruction was an intentional act indicative of fraud or with any intention to suppress the truth. [25] It appears clear Ross J. accepted the evidence adduced by the defendants and, in particular, the evidence of the Professional Practice Leader in the Health Records and Patient Registration Department for the Authority operating the defendant hospital. The judge's conclusion is consistent with her evidence. [26] The plaintiff references an affidavit sworn by Mr. Bryfogle in October 2008 concerning a statement he attributes to defence counsel's submission at the hearing of the appeal of the dismissal of Ms. Holland's action. The statement is said to establish a conflict as to whether certain of the records sought had actually been made, although the significance of any conflict is not immediately clear. In dismissing Ms. Holland's appeal, this Court gave extensive consideration to the subject of spoliation and concluded: [81] As stated earlier in these reasons, the Hospital had a policy in place at the time Ms. Holland's records were destroyed. The policy was to destroy adult records after the lapse of 11 years and infant records, after 26 years. Justice Brooke found that before Ms. Holland's records were destroyed, litigation was neither threatened nor reasonably apprehended by the Hospital or any of the other defendants. In this case, the circumstances surrounding the destruction of the records would not support an inference that they were destroyed fraudulently or with the intent of defeating a claim. [27] No evidentiary conflict was recognized in the analysis undertaken and there appears to be little room for such in that conclusion. [28] Madam Justice Ross made no mention of Mr. Bryfogle's affidavit and it is not clear whether it was before her. Because counsel had not been retained to represent the plaintiff, the judge did not have the benefit of submissions on the issue from the plaintiff's perspective. In any event, there was evidence before the judge on which she was entitled to conclude, as she did, there had in fact been no wrongful destruction of medical records. It has not been established there was any significant evidence properly adduced before her that she overlooked or misunderstood. There is accordingly no basis on which we could now intervene and accede to this ground of appeal. iii) Discovery costs [29] The plaintiff contends one of the defendant physicians failed to attend an examination for discovery, but that defendant was subsequently examined by Ms. Holland in October 2007 so the point is moot. On an application before Brooke J., the question of costs of the defendant's failure to attend was deferred for consideration after judgment. The matter was not drawn to the attention of Ross J. and is not now properly before this Court. iv) Further Discovery [30] The plaintiff also contends he was entitled to further discovery of three of the physicians Ms. Holland examined. Application was made before Brooke J. It was dismissed for reasons indexed as 2008 BCSC 243, [2008] 8 W.W.R. 536, leave to appeal refused (2 April 2008), CA035819 (B.C.C.A.). The plaintiff is seeking to re-litigate an issue that was not before Ross J. and is not properly before us. Again, we have no jurisdiction to entertain this ground of appeal. The Subsequent Applications [31] This Court's judgment in the appeal of the dismissal of Ms. Holland's action was rendered shortly after Ross J. dismissed the plaintiff's action. In the reasons given, it was noted that nothing said in dismissing Ms. Holland's action was to "be taken as precluding or restricting any argument on spoliation that might be advanced" with respect to the plaintiff's action. This statement appears to have prompted Ms. Holland to apply before Adair J., for both her son and herself, for the relief she then sought. She sought an order that the dismissal of the plaintiff's action by Ross J. be "disregarded" and that a variety of pleading amendments and discovery of the defendant physicians with respect to the spoliation issue in particular be granted. [32] The plaintiff appeals Madam Justice Adair's dismissal of the applications arguing essentially the same grounds as argued on the appeal of the order made by Ross J. dismissing the plaintiff's action: representation, spoliation, and discovery. Little purpose would be served now in saying more than the applications could not be entertained by Adair J. on any basis. The plaintiff's action had been dismissed and an order was entered before the applications were initiated. Ms. Holland's action had also been dismissed. An order had been entered (and the pending appeal was subsequently dismissed). The trial court had no jurisdiction to alter its order much less order that it be ignored or effectively set aside, nor could it then grant any of the interlocutory relief sought. If authority is required, it can be found in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186 at 188, [1934] 2 D.L.R. 239: The question really is therefore whether there is power in the Court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in England is, we think, ‒ and we see no reason why it should not also be the rule followed by this Court ‒ that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court .... Disposition [33] It follows both appeals and the ancillary application are dismissed. "The Honourable Madam Justice Prowse" "The Honourable Mr. Justice Mackenzie" "The Honourable Mr. Justice Lowry"