Court File and Parties
COURT FILE NO.: 2196/10 DATE: 2016-07-15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Katherine Jenny Smith and Dan Smith, Plaintiffs AND: Dr. Rajni Saraf-Dhar, Dr. Boulos Gharzarian, Bluewater Health, Donna Nisbet R.N., Kathy Kolotylo R.N., Steve Grant R.N., Elise McLean R.N. and Dianne McKillican R.N., Defendants
BEFORE: Heeney R.S.J.
COUNSEL: J. Dobson, for the Plaintiffs Mark D. Lerner and Lidiya Yermakova, for the Defendants Dr. Rajni Saraf-Dhar and Dr. Boulos Gharzarian Logan Crowell for the Defendants Bluewater Health, Donna Nisbet R.N., Kathy Kolotylo R.N., Steve Grant R.N., Elise McLean R.N. and Dianne McKillican R.N.
HEARD: June 21, 2016 at London
Endorsement
[1] This is a motion by the plaintiffs to strike the jury notices filed by the defendants. They were filed following the amendment of the plaintiffs’ Statement of Claim on April 4, 2016 to increase the claim for damages from $750,000 to $1.5 million. This amendment reopened pleadings, and the jury notices were filed on a timely basis while pleadings were open.
[2] The plaintiffs’ claim relates to the removal of a portion of a surgical blade from the abdomen of the plaintiff Katherine Smith on May 27, 2009 (“the plaintiff”). It was allegedly left behind during abdominal surgery performed by the defendant doctors on June 20, 2007.
[3] In the report of Dr. Thomas Miller dated November 14, 2012, he offered the opinion that the plaintiff has no trouble with her personal activities of daily living. There was, however, a significant impact on her hobbies, recreational activities and enjoyment of life. He did not feel that there are any restrictions on her daily living activities, but there would be limitations.
[4] Examinations for discovery were completed in September, 2013. In April, 2015, Ms. Dobson took over carriage of the file on behalf of the plaintiffs. A trial date was initially set for December 7, 2015, with a trial estimate of two weeks. However, the trial was adjourned because both parties filed their own motions for summary judgment, which were later abandoned. A new trial date of June 13, 2016 was obtained, with an estimated trial duration of two weeks.
[5] On October 14, 2015, the plaintiff served an occupational therapy assessment authored by Cheryl Heard dated October 5, 2015, which concluded that the plaintiff was severely limited in her ability to perform daily activities such as walking and standing. She calculated the plaintiff’s future care costs at approximately $22,000 per year for life.
[6] This was followed by an occupational therapy assessment authored by Margie Van Hook dated January 13, 2016. It assessed the plaintiff’s future needs for professional and personal care services, housekeeping and home maintenance services at $39,870 per year. A physiotherapy consultation report authored by Denise Vandermeulen dated January 4, 2016 opined that the plaintiff “day to day is quite limited in her functional tasks.”
[7] A report prepared by Phil Thorpe dated February 4, 2016 calculated the present value of the cost of future care outlined in Ms. Van Hook’s report to be between $1,146,239 and $1,359,270.
[8] It is conceded that the plaintiff’s motion to amend the Statement of Claim to double the damages claim from $750,000 to $1.5 million was in large part prompted by the future care costs assessment. The motion to amend was heard by Garson J. on February 23, 2016. He granted the motion, on terms that permitted a further discovery of the plaintiff, limited to the alleged limitations on her activities of daily living, which were listed in Appendix “A” to Justice Garson’s endorsement. Timelines were imposed regarding the exchange of further reports. He indicated that counsel must take all steps to ensure that the June 13, 2016 trial date is preserved.
[9] The Amended Fresh as Amended Statement of Claim was served on April 4, 2016. The defendants served jury notices on April 13, 2016. Amended Statements of Defence were also filed, but added nothing substantive to the defence.
[10] On April 7, 2016, the plaintiff served a report from Dr. Joel Finkelstein dated March 23, 2016, which opined that the plaintiff’s current back pain is causally connected to the retained scalpel fragment. This contradicted the earlier report of the plaintiff’s family physician, Dr. Gibbs, dated March 5, 2010, who did not consider that the plaintiff’s back and hip pain were causally connected.
[11] A pre-trial conference was held on April 15, 2016. The plaintiffs’ Pre-Trial Memorandum indicated that the trial would take 3 weeks or more, and more than three days would be devoted to the recently-served opinions regarding the cost of future care. Justice Rady vacated the June 13 trial date, since it had been set on the basis that the trial would last two weeks only. No new trial date has yet been set.
[12] Counsel agree that the law that applies to this motion is accurately set out by Master Beaudoin (now Beaudoin J.) in Dow v. Ottawa Hospital-Civic Campus, 2005 ONSC 6375. At paras. 6 – 7, he outlines the following general principles:
There are two basic principles that are at play in this motion. The first is set out in Freeman v. Parker, [1956] O.W.N. 561. There, Justice Gale (as he then was) held that the amendment of a pleading reopened the pleadings for all purposes, including the delivery of a jury notice, unless some limitation in purpose was otherwise indicated. That principle has been followed and cited with approval by subsequent courts, including those decisions referred to by the Plaintiffs; namely, Nardo v. Fluet, 1993 ONSC 8628, 13 O.R. (3d) 220 (Gen Div.) and Ampadu v. Novopharm Ltd. (1998) 27 C.P.C. (4th) 64. In Graham v. Smith, 1982 ONSC 2101, 38 O.R. (2d) 404, Master Sandler modified the statement of Justice Gale but in Iona Corp. v. Rooney, 1987 ONSC 4227, 62 O.R. (2d) 179 (Ont. H.C.J.), Justice Henry reviewed the case law and the Graham decision and held at p.188:
In my opinion, this case (Graham) stands for the proposition that a party ought not to be permitted to obtain leave to make a perfunctory or pro forma amendment to pleadings in order to have them reopened for the purpose of enabling him to serve a jury notice that would be otherwise out of time; this is to be regarded as an improper purpose of the rule; that purpose ought, in such circumstances, to be accomplished by applying for an extension of time.
Justice Henry reaffirmed the basic principle in Freeman v. Parker; that amendments to a pleading reopen them for all purposes unless some limitation in purpose is otherwise indicated.
The second principle in issue is that the right to a jury trial as a statutory and substantial right cannot be taken away without substantial reasons (See Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc., 2002 ONCA 45019, 60 O.R. (3d) 665 (C.A.) and Macdonald v. Zurich Insurance Co. of Canada (2003), 37 C.P.C. (5th) 338 (Ont. S.C.J.).
[13] Whether pleadings have been reopened for a limited purpose may be express or implied. Here, it is conceded that there is no express limitation. The question, therefore, is whether such a limitation may be implied.
[14] In considering this question, Master Beaudoin indicates, at paras. 9 to 13 of Dow, that four questions should be considered by the court:
- Are the amendments necessary?
- Do the amendments contain new allegations?
- Do the amendments change the nature of the action?
- Will further discoveries be necessary?
[15] At para. 13, Master Beaudoin stated that where these four questions can be answered affirmatively, it is likely that pleadings will be considered reopened for all purposes, subject to the following two qualifying questions:
- When was the intention to deliver a jury notice made known?
- Is the party seeking to amend the pleadings the same party who intends to deliver a jury notice?
[16] With respect to the first question, the amendments are clearly necessary in order to enable the plaintiff to recover damages for the cost of future care that the recently-obtained expert reports claim she is entitled to.
[17] As to the second, the amendments merely increased the quantum of damages claimed, and do not contain fresh allegations. However, it is clear that the basis for the amendments was the emergence of evidence in late 2015 and early 2016 that the plaintiff is now severely limited in her activities of daily living, and will require substantial compensation to cover her cost of future care. That amounts to a new allegation that is implicit in the amendments. This is not, as Ms. Dobson characterizes it, merely a case where “a big claim became even bigger”. Rather, it involves the assertion of a new head of damages that, on its own, is larger than the entire claim as it previously stood.
[18] Do the amendments change the nature of the action? The caselaw is clear that an amendment made to increase damages claimed may not, on its own, necessarily change the nature of an action, but the degree to which damages are increased is certainly a factor to be considered. Here, the claim for damages has been doubled from what it was before the amendments, and in gross terms amounts to an additional $750,000. This is undoubtedly a significant increase. The estimated time for trial has increased by 50%, which will result in significant additional costs. When those factors are combined with the fact that the case has changed from one where the plaintiff had no limitations on her activities of daily living to one where she is significantly limited and requires daily assistance at substantial cost, it can fairly be said that the nature of the action has changed.
[19] As to whether further discoveries will be necessary, that question has already been answered, since Garson J. ordered that the plaintiff submit to further discovery, dealing with the limitations on her activities of daily living. As Master Beaudoin noted at para. 13 of Dow, “[w]here further discoveries are required, this is strong indication of new claims or of change in the nature of the action.”
[20] All four questions having been answered in the affirmative, I am disposed to find that pleadings have been reopened for all purposes, subject to a consideration of the final two questions.
[21] When was the intention to deliver a jury notice made known? At para. 14 of Dow, Master Beaudoin said this:
Where it becomes apparent that amendments to the pleadings may be necessary, whether at discovery or later, it is important to signal one’s intentions as to the possibility of a jury notice as soon as possible.
[22] This factor addresses a situation such as that found in Nardo v. Fluet, 1993 ONSC 8628, 13 O.R. (3d) 220 (Gen. Div.) at para. 8, where counsel for the party seeking a jury trial admitted that they had received instructions to issue a jury notice nine months prior to the amendment, but laid in wait to use the reopening of pleadings by the other party as a means of avoiding a motion for leave to late-file their jury notice. The court saw this as a blatant attempt to take advantage of the amendment, and struck out the jury notice.
[23] There is no such delay in the present case. The jury notices were served only two months after plaintiffs’ counsel indicated their intention to seek an amendment, and within days of service of the Fresh As Amended Statement of Claim. They were clearly driven by the wave of reports concerning future care costs that immediately preceded the amendments. There is no evidence as to when instructions were given to counsel to file jury notices, so it cannot be concluded that they laid in wait to take advantage of the amendment of the plaintiffs’ pleadings.
[24] While it would have been preferable for defence counsel to have sought a term from Garson J., at the time leave was given to amend the plaintiffs’ pleadings, which would have given the defence the option of filing a jury notice, I accept counsel’s explanation that it was not necessary to do so. The right to file a jury notice is a statutory right that accrues to the defence once pleadings are open. As such, it would be redundant to seek a court order to permit something that is already permitted by statute.
[25] This brings us to the final question: is the party seeking to amend the pleadings the same party who intends to deliver a jury notice? This addresses the concern identified by Henry J. as quoted in para. 12 above, where he held that a party ought not to be permitted to obtain leave to make a perfunctory or pro forma amendment to his pleadings in order to have them reopened for the true purpose of enabling him to serve a jury notice which would otherwise be out of time.
[26] That concern does not arise here. The amendments were sought by the plaintiffs while the jury notices were filed by the defendants.
[27] I conclude that once the plaintiffs obtained leave to amend their pleadings, pleadings were reopened for all purposes. Accordingly, the defendants had a statutory right to file their jury notices, and there is no basis upon which to strike them out.
[28] The plaintiffs rely upon a series of cases, of which Ampadu v. Novopharm Ltd., [1998] O.J. No. 4699 (Ont. Gen. Div.) is a representative example, which hold that the right to a jury trial does not extend to the courtroom door. The conduct of a jury action is significantly different from the conduct of a non-jury action, and the other party may suffer prejudice if the action were changed to a jury trial at a late stage.
[29] However, these cases all involve a situation where the jury notice was served late, and leave was required from the court in order to file it. That is an entirely different situation from the one before this court. Where leave must be sought, it is entirely appropriate for the court to consider whether the opposing party might be prejudiced if leave were granted. Here, the defendants have a statutory right to file the jury notices, so the question of prejudice does not arise.
[30] As support for that conclusion, see Pena v. U-Pak Disposals Limited, 2015 ONSC 5175 at para. 46, where Master Short said this:
I am satisfied that the authorities on the refusal of an extension of time to deliver a late jury notice deal with a separate issue and thus are distinguishable and distinct from the authorities which indicate that a jury notice may be delivered after the amendment of pleadings. Where the pleadings are amended, and the rights of all parties to plead, and conduct further discoveries, are reopened, arguably there is no need for an extension of time because the close of pleadings deadline in Rule 47.01 has been reopened.
[31] I should note that no new trial date has yet been set, so the trial will be well into 2017 once a date is set. This will provide counsel for the plaintiffs with ample time to prepare their case appropriately for presentation to a jury.
[32] Finally, Ms. Dobson argued in the alternative that, if I found that pleadings had been reopened for all purposes and that the defendants had a right to file their jury notices, I should nevertheless strike the jury notices pursuant to s. 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which reads as follows:
(3) On motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.
[33] Ms. Dobson cited only two cases to support this proposition: Ampadu v. Novopharm Ltd., [1998] O.J. No. 4699 (S.C.J.), and Rodic v. Centre for Addiction and Mental Health, [2001] O.J. No. 2000 (S.C.J.Master). However, both cases involved late service of the jury notice, and are distinguishable for that reason.
[34] The defendants have met the test of establishing that pleadings were reopened for all purposes. According to well-established principles of law dating back to Freeman v. Parker (supra), this means that they have a right to file a jury notice while pleadings are open. To deny them that right based upon the general terms of s. 108(3) would, in my view, amount to a change in the law which I am not about to embark upon.
[35] The Supreme Court of Canada has held that “the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons”: King v. Colonial Homes Ltd., 1956 SCC 13, [1956] S.C.R. 528. No such cogent reasons are apparent in this case.
[36] The plaintiffs’ motion is dismissed.
[37] In the plaintiffs’ Factum, they ask, if the court declines to strike the jury notices, that the defendants be ordered to pay to the plaintiffs all costs thrown away related to the conduct of this action from the outset as a non-jury trial; that there be an order for discoveries of all defendants previously examined; and, an order compelling Dr. Gharzarian to attend for examination for discovery. While Ms. Dobson referred to these requests at the conclusion of her submissions, she offered no argument in support of them. I see no basis for compelling the defendants to pay costs for exercising a statutory right. Furthermore, there is no evidentiary basis to conclude that further discovery of the defendants is now necessary. This relief is denied as well.
[38] Given the experience of counsel, I am hopeful that costs can be agreed upon. If not, I will accept brief written submissions from the defendants within 30 days, with responding submissions form the plaintiffs within 20 days thereafter and any reply within 10 days thereafter. Failing that, the parties will be deemed to have settled the issue of costs as between themselves.