Executive Summary: Key Legal and Evidentiary Issues

• Motions were brought by all defendants to strike out portions of the claim, primarily those pleading similar fact evidence and certain reporting allegations.

• The court assessed whether similar fact evidence was properly pleaded and if it established a real and substantial connection to the plaintiffs’ claims.

• Statutory privilege under The Manitoba Evidence Act and The Health System Governance and Accountability Act was invoked to challenge claims regarding “critical incident” records.

• Allegations deemed scandalous, frivolous, vexatious, or irrelevant to the causes of action were reviewed for potential striking.

• The court required further particulars from one plaintiff regarding allegations of stalking by Dr. Bissonnette.

• The admissibility of similar fact evidence was deferred to the pre-trial stage, with the option for amendment if appropriate.

Facts of the case

The plaintiffs, Sarah Bond, Angéle Choquette, Natalie Giesbrecht, Cyndal Kiesman, and Shelley Shier Stenberg, filed a statement of claim against Arcel Bissonnette, Centre Medical Seine Inc., Shared Health/Soins Communs, Southern Health-Santé Sud (operating as Hôpital Ste. Anne Hospital), and the said Hôpital Ste. Anne Hospital. The claim sought damages for sexual assault and battery. Each set of defendants brought motions to strike out portions of the claim, particularly those under the heading “Similar Fact Evidence,” as well as other paragraphs related to reporting and statutory duties.

Similar fact evidence and legal analysis

The claim included paragraphs (15–19) under “Similar Fact Evidence,” referencing obligations to post notices about Dr. Bissonnette requiring a chaperone, his registration status, investigations and charges of sexual assault, and the plaintiffs’ intention to rely on facts and convictions from criminal proceedings. Defendants argued these paragraphs were prejudicial, would complicate discovery, and could require disclosure of confidential information about non-party patients. The court noted that pleadings should contain material facts, not evidence, and that similar fact evidence is presumptively inadmissible unless specific exceptions apply. The court applied the “Prism factors” and found that paragraph 18, which referenced charges involving other patients, did not establish a real and substantial connection to the plaintiffs’ claims and would result in protracted proceedings and potential prejudice to non-parties. Paragraph 18 was struck. Paragraph 19, being a notice of intention to rely on similar fact evidence, was also struck. The court found that paragraphs 15, 16, and 17 did not constitute similar fact evidence as defined in the case law, but addressed their relevance separately.

Scandalous, frivolous, vexatious, and irrelevant allegations

Dr. Bissonnette sought to strike paragraphs 15–19, 22, 27, 31, 32, 35, and 41 as scandalous, frivolous, vexatious, or not material to the causes of action. These paragraphs included allegations about reporting incidents to police, the College of Physicians and Surgeons of Manitoba, or a school guidance counsellor, and the timing of such reports. The court found these allegations were not relevant to the causes of action for sexual assault and were unnecessary to plead. They were deemed to lack a legal nexus to the remedy sought and were struck for being scandalous, frivolous, or vexatious.

Statutory privilege and critical incident records

Shared Health argued that paragraph 52 of the claim attempted to circumvent Section 9 of The Manitoba Evidence Act and Part 4.1 of The Health System Governance and Accountability Act by raising issues about “critical incidents” and related procedures. The court found that the records and information referenced were privileged and inadmissible in civil proceedings, and that allowing discovery on these matters would be an abuse of process. Paragraph 52 was struck.

Further particulars required

Dr. Bissonnette requested particulars regarding paragraph 40 of the claim, which alleged stalking behaviors by Dr. Bissonnette toward Shelley Shier Stenberg. The court held that serious allegations, especially those involving intentional torts, must be pleaded with clarity and precision. The plaintiff was ordered to provide particulars as to when, where, and in what manner the alleged stalking occurred within 20 days of the order.

Ruling and outcome

The court struck paragraphs 15 to 19 (including the “Similar Fact Evidence” heading), 22, 27, 31, 32, 35, 41, and 52 of the statement of claim. The plaintiffs were ordered to provide particulars of the stalking allegations in paragraph 40 within 20 days of the order. The issue of costs was left open for the parties to address if necessary. No specific monetary amount was determined in this decision, as it addressed only the pleadings and procedural matters. The successful parties in this decision were the defendants, who obtained the orders to strike the challenged portions of the claim.