Plaintiff Given Leave to Examine Defendant Under Rule 39.03 On Rule 25.11 Motion to Strike Statement of Claim

Khan v. Lee is an interesting decision of Master Joan Haberman. In this medical malpractice action, the defendant doctor had moved, under Rules 21.01 and 25.11, to strike the statement of claim. He filed no evidence on the motion. Counsel for the plaintiff served the defendant with notice of examination under Rule 39.03 (10) in order to obtain responding evidence on the defendant’s motion. The defendant did not attend for his examination and, as a result, the plaintiff brought this motion before the master, seeking an order compelling the defendant to attend to be examined. The motion was granted.

Although no evidence is permitted on a motion to strike, brought under Rule 21.01, the plaintiff argued that this was, in substance, a motion under Rule 25.11, on which the court is permitted to receive evidence.

Master Haberman noted that the defendant doctor had not filed a factum on this motion but had filed one on his own motion to strike. In that factum, the defendant had said, “the statement of claim, as it is currently pleaded, fails to allow the defendant or the court to ascertain precisely the issues in dispute, nor does it permit the defendant to respond to the allegations” [emphasis added by court]. The master found the highlighted portion significant:

Despite having asserted in his factum that he is unable to respond to the allegations raised by the plaintiffs in their statement of claim, Lee has filed no evidence to support his position and now asserts that the issue is not relevant. This leaves the plaintiffs with no ability to refute the statement. Though, at the end of the day, the court may well give it little weight, this is not a risk the plaintiffs wish or should have to take.

On that basis, she granted leave to the plaintiff to examine the defendant with respect to issues raised by his motion to strike the claim, including his contention that the form of the statement of claim made it impossible for him to respond to it.

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