COURT OF APPEAL FOR ONTARIO
LASKIN, BORINS and JURIANSZ JJ.A.
B E T W E E N :
TERRY B. ARMSTRONG
Jesse T. Glass, Q. C. for the appellant
Plaintiff (Appellant)
- and -
JOHN MCCALL, ROB WHALEY, R. WHALEY, MEAFORD GENERAL HOSPITAL, “THE NURSES JANE DOE” OF THE MEAFORD GENERAL HOSPITAL and the CENTRE GREY GENERAL HOSPITAL
Tanya Pagliaroli for the respondents
Defendants (Respondents)
Heard: April 27, 2006
On appeal from the order of Justice Katherine E. Swinton of the Superior Court of Justice dated August 9, 2005, reasons reported at [2005] O.J. No. 3360.
BORINS J.A.:
I
1This is an appeal by Terry B. Armstrong from the dismissal of his claim for damages for medical malpractice against Dr. John McCall and Dr. Rob Whaley on the ground of delay pursuant to rule 24.01(1)(c) of the Rules of Civil Procedure. Although the motion judge did not find the plaintiff’s delay in prosecuting the action intentional or contumelious, she concluded that “the plaintiff has failed to rebut the presumption that there is a substantial risk that the defendant physicians will not have a fair trial, given the length of the delay and the impact on witnesses’ memories”. In addition, she found that the defendants had “given evidence” of actual prejudice emanating from the delay. For the reasons that follow, I would allow the appeal.
II
2This is a medical malpractice action arising from the care and treatment the appellant received from the respondents, Dr. McCall and Dr. Whaley, after he fell from a ladder and injured his left foot on August 20, 1997. On the same day, he was seen in the emergency room of the Centre Grey General Hospital by Dr. Whaley, who was his family doctor. X‑rays revealed a severe fracture to the appellant’s left heel. As there was no orthopaedic surgeon on staff, Dr. Whaley transferred the appellant to Meaford General Hospital where Dr. McCall treated him for his fracture. On August 23, 1997, he performed surgery to reconstruct the appellant’s heal. The plaintiff contends that the surgery was unsuccessful. Shortly thereafter the appellant contracted an infection and was returned to Centre Grey General Hospital on August 28, 1997. On August 31, 1997 and September 5, 1997, it is alleged that Dr. McCall performed two procedures to treat the infection. Thereafter, the appellant was transferred to the care of an orthopaedic surgeon at St. Michael’s Hospital in Toronto for further surgery to treat the fracture and the infection.
3On August 24, 1998, the appellant issued a statement of claim alleging negligence on the part of Dr. Whaley, Dr. McCall, Centre Grey General Hospital, Meaford General Hospital and “The Nurses Jane Doe”, who were the treating nurses employed by the Meaford General Hospital. On April 8, 2005, the action against “The Nurses Jane Doe” was discontinued.
III
4There is no doubt that the procedural history of this action has been protracted. It is helpful to outline the history:
(1) August 24, 1998 – statement of claim was issued.
(2) January 6, 1999 – statement of defence and crossclaim of physicians was delivered.
(3) January 7, 1999 – statement of defence and crossclaim of hospitals was delivered.
(4) April 20, 1999 – plaintiff served an affidavit of documents on all defendants.
(5) June 21, 1999 – physicians served an affidavit of documents on the plaintiff.
(6) August 18, 1999 – examinations for discovery of the physicians were completed.
(7) August 19, 1999 – examination for discovery of plaintiff was completed.
(8) February 13, 2001 – examinations for discovery of the representatives of the hospitals were commenced, but not completed.
(9) June 13, 2002 – examinations for discovery of the hospitals scheduled to be completed in Owen Sound; due to a misunderstanding, plaintiff’s counsel did not attend, resulting in the hospitals taking the position that the plaintiff had waived his right to complete the examinations for discovery. As a result, plaintiff moved to compel hospital representatives to attend to complete their examinations for discovery.
(10) March 7, 2003 – Sachs J. denied the physicians’ first motion to dismiss the action for delay; although she did not appear to rule on the plaintiff’s motion requiring the hospitals to attend for the completion of their examinations for discovery, Sachs J. set a timetable for the completion of the examinations and to set the action down for trial.
(11) June 6, 2003 – examinations for discovery of the hospitals continued in Owen Sound but were not completed when counsel for the hospital took the position that the plaintiff was entitled to only a half day examination. As a result of the dispute about the time allotted to complete the examinations, the action was not set down for trial within Sachs J.’s timetable.
(12) September 23, 2003 – B. Wright J. dismissed the physicians’ second motion to dismiss the action for delay and ordered that the continued examinations for discovery of the hospitals’ representatives be completed by October 31, 2003. He ordered that the action be set down for trial by December 30, 2003.
(13) September 30, 2003 – hospitals moved for leave to appeal the decision of B. Wright J. to the Divisional Court.
(14) February 20,2004 – O’Driscoll J. dismissed the motion for leave to appeal, and varied the timetable set by B. Wright J. by requiring that the examinations for discovery of the hospital representatives be completed by April 30, 2004 and that the action be set down for trial by June 30, 2004.
(15) April 26, 2004 – examinations for discovery of the hospital representatives were completed.
(16) July 8, 2004 – plaintiff served the trial record on the defendants.
(17) July 8, 2004 – court office refused to permit the plaintiff to file the trial record to set the action down for trial on the ground that “The Nurses Jane Doe” in the title of the action were not properly identified and named.
(18) January or February 2005 – contrary to the court’s Practice Direction requiring consultation with the plaintiff’s counsel, counsel for the physicians booked April 25, 2005 with the motion court to argue a third motion to dismiss the plaintiff’s action for delay.
(19) March 31, 2005 –plaintiff served a further trial record on the physicians.
(20) April 8, 2005 – as a result of settlement discussions, plaintiff discontinued his action against “The Nurses Jane Doe”; plaintiff filed the trial record and a notice of discontinuance with the court office and set the action down for trial.
(21) April 11, 2005 – Ms. Batner, counsel for the physicians, notified plaintiff’s counsel that the motion for delay had been scheduled to be heard on April 25, 2005.
(22) Because of Ms. Batner’s failure to consult with plaintiff’s counsel prior to booking the motion and her subsequent failure to give counsel adequate notice of the date scheduled for the hearing of the motion, on April 25, 2005 counsel for the plaintiff was unavailable to represent him in responding to the motion to dismiss his action for delay. The motion was adjourned to August 2, 2005.
(23) July 22, 2005 – the trial co‑ordinator e‑mailed all counsel to set a trial date, with the earliest date for a seven day trial being November 6, 2006. Although counsel for the other parties provided their available dates for trial, Ms. Batner refused to do so because of her client’s pending motion to dismiss the action for delay.
(24) August 2, 2005 – the third motion to dismiss the plaintiff’s action for delay was argued.
(25) August 9, 2005 – the motion judge released her reasons for dismissing the plaintiff’s action.
IV
5Because Sachs J. and B. Wright J. found that the defendant physicians had not satisfied the test for dismissing the action for delay, the appellant argued before the motion judge that the proper starting point for assessing whether there had been delay in prosecuting the action that had resulted in irreparable prejudice to the defendants was the dates when these motions were decided. Without stating why, the motion judge rejected the appellant’s position. She held that it was appropriate to consider “the whole course of [the] action” in determining whether it should be dismissed.
6She then proceeded to find that there had been “inordinate delay in this case” and that the appellant was primarily responsible for the delay in having “failed to diligently prosecute this action for years”. In reaching this finding, she recognized that the defendant hospitals were responsible for part of the delay arising from their motion for leave to appeal from the order of B. Wright J. that was brought on September 30, 2003 and decided on February 20, 2004. Focusing on what occurred subsequent to the order of O’Driscoll J., she also rejected the appellant’s position that the delay was excusable. In this regard, at paragraph 16 the motion judge reiterated her earlier position:
Moreover, it is not just the delay since the order of O’Driscoll J. that must be explained, but the whole period of delay, other than that attributable to the defendant hospitals. The plaintiff has failed to provide a reasonable explanation for the overall delay [emphasis added].
7As well, in paragraph 17, although the motion judge declined to characterize the appellant’s failure to comply with the order of O’Driscoll J. as “intentional or contumelious” based on her acceptance of the appellant’s explanation, she again returned to her earlier position: “However, the plaintiff has failed to provide a reasonable excuse for the overall delay in this action, including the period from June 30, 2004” [emphasis added].
8The motion judge then turned to the issue of prejudice, noting that inordinate delay “since the cause of action arose” gave rise to a presumption of prejudice on the part of the defendant. This presumption placed a burden on the dilatory plaintiff to show that, despite the delay, there was no substantial risk that the defendant would be deprived of a fair trial. The motion judge found that the appellant had not satisfied the burden for the following reasons in paragraphs 20 and 21:
In this case, the presumption of prejudice is a strong one, given the length of the delay. The limitation period expired in August, 1998, and a trial date is not likely before November, 2006, at the earliest. The memories of witnesses are bound to have suffered over a period which will be over nine years from the first treatment to the time of trial.
The plaintiff has not put forward evidence which would rebut the presumption of prejudice. This is not a document case, and the memories of the witnesses will have been affected by the lengthy passage of time [emphasis added].
9The motion judge next considered actual prejudice sustained by the respondent physicians. At paragraphs 22 and 23 she concluded that they had proved that they had sustained actual prejudice:
Moreover, there is evidence from the defendant physicians of actual prejudice. In Saikaley, supra, Hollingworth J., quoting from Denning J. in Bliss v. Lambeth, Southwark & Lewisham Health Authority, recognized that a defendant can be prejudiced because of the ongoing effect of an unresolved action on his or her life (at p. 636). Both physicians are of the belief that their memory of events has faded. As well, they have given evidence of prejudice in the form of damage to reputation, because of the annual need to report notice of this malpractice action on their hospital privilege applications, as well as stress and anxiety.
The plaintiff argued that this type of prejudice should be ignored, as many defendants suffer stress and damage to their reputation as a result of litigation. However, the prejudice suffered here is not just the prejudice experienced because of the litigation, but the added damage to reputation and stress caused by the prolonged nature of this particular action [emphasis added].
10As I understand her analysis and reasons, it appears that the motion judge dismissed the appellant’s claim against the physicians because:
the overall delay since the commencement of the action was inordinate;
the appellant did not provide a reasonable explanation or excuse for the delay;
because of the length of the delay there is a presumption that there is a substantial risk that the physicians will not have a fair trial;
the appellant failed to rebut the presumption; and
the physicians proved actual prejudice.
V
11The test for dismissal of an action for delay is not in dispute. In my view, it is correctly stated at paragraph 4 of the reasons of the Divisional Court in an appeal from the master in Woodheath Developments Ltd. v. Goldman (2003), 66 O.R. (3d) 731 at 732:
Specifically, I accept as correct the principles applicable to motions to dismiss for delay derived by the learned Master from the case law and accurately summarized in the headnote at (2001), 56 O.R. (3d) 658 as follows:
The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless: (1) the default is intentional and contumelious; or (2) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible. It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice.
12In Belanger v. Southwestern Insulation Contractors Ltd. (1993), 16 O.R. (3d) 457 (Gen. Div.), which was approved by this court in Christie Corp. v. Lee (1999), 29 C.P.C. (4th) 181 (Ont. C.A.), I had occasion to consider the factors to be taken into account by the court on a Rule 24 motion for the dismissal of an action for delay at pp. 471-472:
It is unnecessary to review the many cases which have discussed the factors to be considered by the court on a motion to dismiss an action for delay or for want of prosecution. Nor is it necessary to consider the relatively rare case where the plaintiff’s delay was intentional and contumelious. In order to succeed on a motion to dismiss a plaintiff’s claim for delay the defendant must establish that the delay has been unreasonable in the sense that it is inordinate and inexcusable and that there is a substantial risk that a fair trial will not be possible for the defendant at the time the action is tried if it is allowed to continue. The second part of this proposition is often expressed as the likelihood of prejudice to the defendant giving rise to a substantial risk that a fair trial will not be possible when the case is actually tried. Examples of prejudice are the death of a witness, the inability to locate a witness, the inability of a witness to recall important facts or the loss of important evidence. In determining whether the delay has been unreasonable the court should consider the issues raised by the case, the complexity of the issues, the explanation for the delay and all relevant surrounding circumstances. In considering whether the defendant has sustained prejudice the court should consider the availability of its witnesses, whether the evidence is largely documentary or based on the recollection of individuals, the efforts made by the defendant to preserve its evidence and any other relevant consideration. Prejudice to the defendant is to be considered relative to the time the case will likely be reached for trial if permitted to proceed. The court will then balance the right of the plaintiff to proceed to trial with the defendant’s right to a fair trial and make its decision: see, e.g., Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 1 All E.R. 543, [1968] 2 Q.B. 229 (C.A.); Clairmonte v. Canadian Imperial Bank of Commerce , [1970] 3 O.R. 97, 12 D.L.R. (3d) 425 (C.A.); Farrar v. McMullen, [1971] 1 O.R. 709 (C.A.); Saikaley v. Commonwealth Insurance Co. (1978), 21 O.R. (2d) 629, 91 D.L.R. (3d) 298 (H.C.J.); Albrecht v. Meridian Building Group Ltd. (1988), 27 C.P.C. (2d) 213, 29 O.A.C. 399 (Div. Ct.); Hansen v. Manitoba (1993), 103 D.L.R. (4th) 277, 85 Man. R. (2d) 261 (C.A.)
VI
13Counsel for the appellant submitted that the motion judge erred as follows:
(1) In taking into consideration the entire history of the action.
(2) In failing to find that the appellant had rebutted the presumption of prejudice arising from the length of the delay.
(3) In relying on the affidavit of Sarit Batner in finding that the physicians had proved actual prejudice.
14Thus, broadly speaking, the question is whether the motion judge was right in concluding that there was a substantial risk that the respondent physicians would not have a fair trial, and in further concluding that the physicians had proved that they could not obtain a fair trial.
VII
15I now turn to the appellant’s first ground of appeal.
16Three judges of the Superior Court of Justice concluded that the respondents had not satisfied the test for dismissing an action for delay. On March 7, 2003 Sachs J. found that “the threshold necessary for such an order [had] not been met”. However, in setting a timetable for the prosecution of the action she said that the defendants could renew their motion for delay if the plaintiff failed to comply with the timetable that she set. On September 23, 2003 B. Wright J. dismissed a further motion to dismiss the plaintiff’s action for delay. Although the plaintiff’s counsel had not fully complied with the timetable of Sachs J., Wright J. was reluctant to dismiss the action due to the failure of his counsel to move the action forward. He ordered that the examinations for discovery of the hospital representatives be completed by October 31, 2003, and that the action be set down for trial by December 30, 2003. In my view, Sachs J. and B. Wright J. must be taken as having accepted the appellant’s explanation for his delay.
17The defendant hospitals moved for leave to appeal to the Divisional Court from the order of B. Wright J. On February 20, 2004, in reasons reported at [2004] O.J. No. 686, O’Driscoll J. dismissed the motion. Nothing caused him “to have any doubt, let alone ‘good reason to doubt’, the correctness of the…order of B. Wright J.” O’Driscoll J. added at paragraph 10 of his reasons:
In my view, with respect, the order of B. Wright J. is steeped in wisdom and common sense. He was well aware that a medical malpractice lawsuit is not a forum for counsel and/or their staff to play “chicken” and/or “closest to the line”. Whatever antipathy that may exist between and amongst counsels must not be allowed to cloud counsels’ duty to the court and to his/her client.
As the timetable set by the order of B. Wright J. had not been met as a result of the hospitals’ motion for leave to appeal, O’Driscoll J. varied the timetable by requiring the plaintiff to set the action down for trial by June 30, 2004.
18As two judges are to be taken as having found that the test for dismissal for delay had not been met, and as O’Driscoll J. did not doubt the correctness of the order of B. Wright J., one issue is whether the motion judge in her analysis placed too much emphasis on the period from the commencement of the action until the date of the motion before her. This raises the question: what happened in the 17 months from the release of O’Driscoll J.’s reasons on February 20, 2004 until the hearing before the motion judge that tipped the scales in favour of the defendants? If the delay was taken by O’Driscoll J. to be excusable on February 20, 2004, what was it that worsened the defendants’ position thereafter? In my view, there is nothing in the record that shows that the subsequent delay worsened the situation so far as the defendants were concerned. Indeed, when the motion was argued before Swinton J. the action had already been set down for trial and the trial co‑ordinator was awaiting the co‑operation of counsel for the physicians to provide available dates for trial.
19On the first two motions, the defendants did not introduce evidence that they had sustained actual prejudice. It was first introduced on the third motion in an affidavit sworn on April 8, 2005 by Sarit Batner, a lawyer employed by the law firm that represents the physicians. This is an affidavit on information and belief, as permitted by rule 39.01(4). The sources of the information were Dr. McCall and Dr. Whaley who advised Ms. Batner of how they had been affected by the delay, including the effect on their memories. As I will discuss, in the circumstances of this case, the motion judge should not have relied on this portion of the affidavit. Thus, on a proper consideration of the record, I cannot see how the lapse of time between the release of O’Driscoll J.’s reasons on February 20, 2004 and the affidavit of Sarit Batner of April 8, 2005 worsened the respondents’ position and put them at a disadvantage in obtaining a fair trial of the issues. While they may have informed Ms. Batner that they were prejudiced in the sense of having had the action “hanging over their heads” for a lengthy period to time, assuming the admissibility of this portion of her affidavit, in my view this was not relevant to their ability to obtain a fair trial.
20While it was not wrong for the motion judge to consider “the whole course” of the action in determining whether it should have been dismissed, as the appellant contended, given that the respondents had failed to establish a fatal delay before Sachs J. and B. Wright J, she should have focused on the delay subsequent to the decision of O’Driscoll J. The question which the court must address is whether delay that is properly described as inordinate and inexcusable has given rise to a substantial risk that a fair trial for the defendant will not be possible. In the unusual circumstances of this case there were two concurrent findings – on March 7, 2003 and September 23, 2003 – that the plaintiff had not engaged in inordinate and inexcusable delay. In the absence of a finding of grounds on which the delay subsequently became inordinate and inexcusable, not to mention the absence of direct evidence concerning the fairness of the trial, it cannot be right, in my judgment, for the court to dismiss the action for delay.
21In my view, the motion judge’s error was the same as that of the motion judge in Christie Corp. v. Lee, supra. I would adopt and apply what this court said at paragraph 4 to the circumstances of this case:
In some cases, under Rule 24, it will be appropriate to consider the time elapsed from the time an action was commenced in considering the reasonableness of the delay relied on by the defendant. In the circumstances of this case, however, it is our view that the motions judge erred in principle in placing undue weight on this factor.
In that case, as the delay was the result of the plaintiff’s failure to set the action down for trial within the required six months, the court was of the view that the proper starting time for measuring the delay was the date on which the action should have been set down for trial. At paragraph 7 the court added that it was significant that the evidence in respect to the claim and the defence was largely documentary.
22I would also refer to Saikaley v. Commonwealth Insurance Co. (1978), 21 O.R. (2d) 629 (H.C.J.) at 635 where the circumstances were similar to those in this case. The master had granted the defendants’ motion to dismiss the action for delay, but on appeal was reversed by Van Camp J. On a subsequent motion to dismiss the action, the same master denied the motion. On appeal from that decision of the master, Hollingworth J. was of the opinion that the starting point for considering the delay was the date of Van Camp J.’s decision because “she properly dealt with the matter then, or must have taken the matter into consideration”. Similarly, in this case, there were two judges, each of whom found that the factors necessary to dismiss the action for delay were absent.
23I would, therefore, give effect to this ground of appeal.
VIII
24I agree with the appellant that the motion judge erred in finding that the appellant had not rebutted the presumption of prejudice. Noting that this is not a document case and assuming that the memories of the witnesses would have been affected by the lengthy passage of time, she found that the appellant had not put up any evidence which would rebut the presumption of prejudice.
25With respect, in making this finding the motion judge overlooked very significant evidence. As in a commercial case where documents may be reviewed by a witness to refresh his or her memory, in this case the actual testimony of the physicians taken on their examinations for discovery in August, 1999 was available if they required assistance in recalling what had occurred. In addition, there is in fact a considerable body of relevant documentary evidence consisting of x‑rays, CT scan reports, hospital admission records, clinical notes and records made by each physician, as well as the reports of the experts. It follows that as there are numerous documents in this case in addition to the respondents’ examinations for discovery that took place at an early stage in the proceedings, the physicians could easily refresh their memories if necessary from these materials. See, e.g., Starr v. Canadian Medical Laboratories Ltd., [2003] O.J. No. 2817 (Ont. C.A.) at para. 4. Tiesmaki v. Wilson (1971), 1971 ALTASCAD 79, 23 D.L.R. (3d) 179 (Alta. S.C. (A.D.)) is an example of a want of prosecution case in which the hospital records and witness statements of the defendants were considered adequate to enable the defendants to refresh their memories.
26In addition to failing to accord the appropriate weight to these factors, the motion judge also failed to do so with respect to the delay that was attributable to the defendants. For example, it took from February 13, 2001 to April 26, 2004 for the appellant to complete the examinations for discovery of the representatives of the hospitals, largely because of the lack of co‑operation of counsel for the hospitals. In addition, while it is arguable that there was a duty on the defendant physicians to move the case forward, I cannot leave this issue without observing that in my view it would been better had counsel for the physicians been less obsessed with the bringing of motions seeking to dismiss the action for delay, and more co‑operative in such matters as providing dates when she was available for trial. In this regard, it is significant that the action had been set down for trial when counsel argued her third motion to dismiss the action for delay. At that time the parties had done everything necessary for the trial of the case on its merits. The only thing that remained was for the trial co‑ordinator to fix the trial date. That the action had been set down for trial was a factor that this court took into consideration in Clairmonte v. Canadian Imperial Bank of Commerce, [1970] 3 O.R. 97 (C.A.) in dismissing an appeal from a motion judge who had allowed an appeal from the master who had dismissed an action for delay.
27In addition, the motion judge was troubled by the fact that the earliest trial date appeared to be November 2006, which was about 16 months after the hearing of the motion. In my view, this systemic delay should not have been used against the appellant. As an ameliorative measure to reduce further delay, and bearing in mind that the action had been set down for trial, it was open to the motion judge to order an expedited trial.
28Therefore, I would give effect to this ground of appeal.
IX
29The third ground of appeal is that the motion judge erred in finding that the respondents had proved actual prejudice. In regard to this ground of appeal, it is important to note that in paragraphs 22 and 23 of her reasons for judgment, which I have reproduced at paragraph 9, the motion judge stated that the physicians had “given evidence” of prejudice. The appellant’s position, with which I agree, is that there was no direct evidence of prejudice given by the physicians.
30In finding that the respondents had “given evidence” of prejudice, it would appear that the motion judge relied on paragraphs 67 to 74 of the affidavit of April 8, 2005 sworn by Ms. Batner, who was their counsel. In her affidavit, Ms. Batner makes reference to information which she had received from the physicians and states her belief in that information. In addition to the stress and anxiety that they were experiencing as a result of the ongoing litigation, each physician informed Ms. Batner that his ability to recollect the facts of the case had been hindered by the passage of time.
31In my view, what is contained in Ms. Batner’s affidavit does not constitute evidence “given” by the physicians on the motion heard by the motion judge. With respect, she was wrong in characterizing it as such and in relying on it as if it were the physicians’ direct evidence. In this regard, I would adopt the observations of Master Dash in Woodheath Developments Ltd. v. Goldman (2001), 56 O.R. (3d) 658 (S.C.J.), aff’d (2003), 66 O.R. (3d) 731 (Div. Ct), which was a motion to dismiss an action for delay on the ground, inter alia, that the memories of two witnesses had deteriorated. At paragraph 44 the master stated:
Unfortunately, the evidence before me respecting the memories of Mr. Gangbar and Mr. Libfeld comes from the affidavit of Theodore Rotenberg, the plaintiff’s solicitor in this action, who avers that each of Gangbar and Libfeld advised him that their recollections remain clear. It would have been preferable if Mr. Gangbar and Mr. Libfield provided their own affidavits so that their memories could be tested by cross‑examination.
32What is contained in Ms. Batner’s affidavit is hearsay. Although rule 4.06(2) of the Rules of Civil Procedure restricts the contents of an affidavit to be used in a proceeding “to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court”, rule 39.01(4) creates an exception. It permits an affidavit “for use on a motion [to] contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit”. However, I would note that in respect to affidavits for use on an application, rule 39.01(5) restricts statements of the deponent’s information and belief to facts that are not contentious. In addition, while rule 20.02 permits an affidavit for use on a motion for summary judgment to be made on information and belief, the court is permitted to draw an adverse inference “from the failure of a party to provide the evidence of persons having personal knowledge of contested facts”.
33The problem with an affidavit on information and belief is that the person who provided the information to the deponent is shielded from cross‑examination. No doubt that is why rules 39.01(5) and 20.02 effectively preclude affidavits on information and belief in respect to contested facts. In my view, a significant issue on the motion was the state of the physicians’ memories. Yet they did not present an affidavit setting forth their personal knowledge. This is why during argument the panel expressed its scepticism of the value of the “evidence” of the physicians’ prejudice in Ms. Batner’s affidavit. With respect, in my view the motion judge should also have been sceptical and should not have found that the defendant physicians had established actual prejudice on the basis of Ms. Batner’s affidavit. They should have provided their own affidavit so that their memories could be tested by cross‑examination. I would note that in Tiesmaki, supra, the defendants’ filed affidavits about their failing memories.
34Thus, in the end, there was no convincing evidence adduced by the physicians that the delay had caused them demonstrable prejudice. In the absence of direct evidence by the physicians concerning their ability to recall significant events, there was no evidence in respect to:
when the appellant’s injuries first came to the respondents’ notice;
whether the respondents’ ability to investigate the circumstances of the appellant’s claim was compromised;
whether there was any lack of timely inquiry by the respondents as a result of the delay;
whether there was any witness of material fact who is unavailable; and
whether there is any witness of material fact whose memory was not preserved in statement or documentary form during all relevant times.
In my respectful view, in the absence of such evidence, a finding of actual prejudice based on untested hearsay evidence is not enough to justify the Draconian measure of depriving the appellant of an opportunity to attempt to prove his case on the merits.
35Therefore, I would give effect to this ground of appeal.
X
36There is no doubt that a considerable period of time has elapsed since the appellant commenced his action. As well, his counsel could have been more active in prosecuting his case. However, this is not a case where the plaintiff sat idle after issuing his statement of claim. When this motion was argued, everything had been completed by the parties and they were ready for trial. Indeed, the plaintiff had set the action down for trial and all that remained was for the lawyer for the physicians to respond to the trial co‑ordinator’s request for her available dates for trial. Apparently counsel for the hospitals did not feel that there had been unwarranted delay as they never moved to dismiss the action for delay. Indeed, were the action to be dismissed for delay, all the very considerable costs that have been incurred would be thrown away, and I think that would be most unfortunate. In the final analysis, although there was considerable delay, in my view, the appellant has rebutted any presumption of prejudice, and the respondents have failed to provide convincing evidence of actual prejudice that they will be unable to have a fair trial.
37For all of the foregoing reasons, I would allow the appeal and set aside the order of the motion judge dismissing his action, with costs of the motion and the appeal. I would fix the costs of the appeal on a partial indemnity basis in the amount of $20,000, including disbursements and GST. If counsel are unable to agree on the costs of the motion, they are to be assessed.
RELEASED: May 25, 2006 (“JL”)
“S. Borins J.A.”
“I agree John Laskin J.A.”
“I agree R. G. Juriansz J.A.”
