Superior Court of Justice - Ontario

Re: SOPHIA KENESHIA HEMMINGS, by her Litigation Guardian, Rosalie Brown, ROSALIE BROWN, personally, SAMANTHA CAMILE GAYLE, MOSES HEMMINGS, minor by his Litigation Guardian, Rosalie Brown, and SAMANTHA HEMMINGS, Plaintiffs

And:

CAROL YUEN-MAN PENG, SHARON ROSE O’BRIEN, NINA ELIZABETH NALINI VENKATARANGAM, RITIKA GOEL, NEIL THOMAS JAMENSKY, ANDRES BARTOLOME UMOQUIT, JENNIFER LAIE-YEE TSANG, LLOYD GREGORY PADMORE, STEPHANIE SLADDEN, NORA DJIZMEDJIAN, YOUYI JIAN and THE SCARBOROUGH HOSPITAL, Defendants

Before: SANFILIPPO J.

Counsel: Ron Bohm, Amani Oakley and Neil Oakley, lawyers for the Plaintiffs Dorothy E. Charach, lawyers for the Defendants, Carol Yuen-Man Peng, Sharon Rose O’Brien, Nina Elizabeth Nalini Venkatarangam, Ritika Goel, Neil Thomas Jamensky, Andres Bartolome Umoquit, Jennifer Laie-Yee Tsang and Lloyd Gregory Padmore Daniel Girlando, lawyer for the Defendant, The Scarborough Hospital No one appearing, for the Defendants, Stephanie Sladden, Nora Djizmedjian and Youyi Jian

Heard: March 21, 2019

Endorsement

[1] The first case management conference (the “1st CM Conference”) in this action was initiated in person on February 15, 2019. This case management conference allowed for a discussion of the procedural history of this action and its current status, and for the framing of the issues that must be addressed to make this action trial-ready. The case management conference was not completed that day, due to insufficient time and also to allow the parties to consider and take instructions on the issues that were identified. The conference was continued by teleconference on March 21, 2019.

A. Procedural Status

[2] This action was initiated on April 19, 2011, and so was almost seven years and ten months old at the time of the 1st CM Conference. This action involves a claim by Sophia Keneshia Hemmings, by her Litigation Guardian, Rosalie Brown, for personal injuries sustained allegedly due to medical malpractice that occurred on April 20, 2009. Ms. Hemmings’ co-plaintiffs bring derivative claims for loss of past and future support, service, comfort, care, guidance and companionship.

[3] This action is brought against the following defendants:

(a) Physicians Carol Yuen-Man Peng, Sharon Rose O’Brien, Nina Elizabeth Nalini Venkatarangam, Ritika Goel, Neil Thomas Jamensky, Andres Bartolome Umoquit, Jennifer Laie-Yee Tsang and Lloyd Gregory Padmore (the “Physician Defendants”);

(b) The Scarborough Hospital (the “Hospital”);

(c) Nurses Stephanie Sladden, Nora Djizmedjian and Youyi Jian (the “Nurse Defendants”).

[4] After initiating this action with the assistance of counsel, the Plaintiffs acted in person during the period from June 26, 2012 to August 28, 2013, at which time they appointed their current counsel. A review of the procedural status of this action from inception to January 2017 discloses the following:

(a) The Statement of Defence and Crossclaim of the Hospital was delivered on January 22, 2013;

(b) The Plaintiffs amended their Statement of Claim on August 8, 2013;

(c) The Statement of Defence and Crossclaim of the Physician Defendants was delivered on August 18, 2014;

(d) The examinations for discovery of all of the Physician Defendants except Dr. Nina Venkatarangam, Dr. Ritika Goel and Dr. Andres Umoquit were conducted in December 2014 and July 2015;

(e) The examination for discovery of the Hospital was conducted in June 2016;

(f) The Nurse Defendants did not deliver a Statement of Defence.

The January 2017 Order

[5] On January 5, 2017, Akbarali J. issued an Order setting out a timetable for the orderly progression of this action, leading to its setting down for trial by June 30, 2018. That timetable was complied with as follows:

(a) The examination for discovery by the Defendants of the Plaintiffs was to be completed by March 1, 2017. These examinations were completed in February 2017;

(b) Any remaining examination by the Plaintiffs of any Physician Defendant not yet examined was to be completed by July 1, 2017. This step was not completed.

(c) Any motion by certain of the Physician Defendants for summary dismissal was to be filed by August 1, 2017. This step was not completed.

(d) Answers to undertakings were ordered to be completed by September 1, 2017. This step was completed, but not until August 24, 2018;

(e) Any motion for answers to questions refused or undertakings was to be filed by November 1, 2017. This was settled by consent Order of August 24, 2018.

(f) The Plaintiffs were to use their best efforts to deliver their expert reports by December 31, 2017. In July 2017, the Plaintiffs delivered an expert report authored by obstetrician Dr. Nicholas Braithwaite, addressing solely discharge of standard of care and causation relating to one of the Physician Defendants, Dr. Padmore (the “Braithwaite Report”).

(g) The Defendants were to use their best efforts to deliver any responding reports within three months of receiving the Plaintiffs’ expert reports. The Defendants have not delivered any responding expert report to the Braithwaite Report.

(h) The parties were to engage in mediation by May 31, 2018. On November 15, 2018, the parties engaged in a brief discussion with a mediator present by telephone.

(i) This action was ordered to be set down for trial by June 30, 2018. For reasons that will be discussed, this has not occurred.

[6] On January 16, 2018, the Plaintiffs attended at Civil Practice Court to seek the scheduling of a Summary Judgment Motion against only one of the eight Physician Defendants: Dr. Padmore. The Plaintiffs purported to rely on the Braithwaite Report. No responding expert report was delivered on behalf of Dr. Padmore.

[7] On January 16, 2018, Archibald J. denied the Plaintiff’s request for the scheduling of a motion seeking summary judgment against Dr. Padmore, alone.

[8] On August 24, 2018, Master McGraw issued an Order, on consent of the parties, ordering the Hospital to answer outstanding undertakings and granting an extension of time for the Plaintiffs to set this matter down for trial of 90 days from the date of his Order. As a result, the Plaintiffs were ordered to set this action down for trial by November 24, 2018.

[9] In January 2019, the parties filed a joint request for case management. By Order issued by Firestone J. on January 18, 2019, this action was directed into case management.

B. Position of the Parties - Issues Identified

[10] The discussions conducted at the 1st CM Conference identified the following issues:

(a) Renewed Request for Scheduling of Summary Judgment Motion

[11] The Plaintiffs renewed their request for the scheduling of a summary judgment motion, distinguishing this request from that advanced over a year earlier before Archibald J. at the Civil Practice Court of January 16, 2018 by stating their commitment to dismiss their action against all other defendants if they obtain summary judgment against Dr. Padmore. This submission was intended to re-characterize this proposed motion for summary judgment from being partial in nature to having the potential to resolve the entirety of the liability issue in the action: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438; Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561; Li v. Li, 2017 ONCA 942; Sirois v. Weston, 2017 ONCA 1002; Mason v. Perras Mongenais, 2018 ONCA 978. The Plaintiffs’ proposed motion would leave outstanding the issue of damages.

[12] Contrary to their submissions, the Plaintiffs do not have a right to bring a summary judgment motion at this time for the following reasons:

(i) The Plaintiffs’ request to schedule a summary judgment motion was dismissed by Archibald J. on January 16, 2018. The Plaintiffs’ motion remains partial in nature, notwithstanding their proposed re-characterization, as it leaves the issue of damages, and possibly causation, to be determined at trial. As such, the Plaintiffs are seeking a redetermination of their previously denied request to schedule a summary judgment motion;

(ii) The Plaintiffs are in breach of an Order to set their action down for trial by November 24, 2018. Had they complied with this Order, they would not be able to advance any motion without leave of the court, in accordance with Rule 48.04(1) of the Rules of Civil Procedure: “…[a]ny party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court.” The Plaintiffs cannot now seek to avoid the consequences of Rule 48.04(1) by reason of their breach of a court Order.

[13] In addition to these reasons, the Physician Defendants have represented that they intend to shortly deliver a responding expert report on the issues of Dr. Padmore’s discharge of his standard of care and causation. In such circumstances, the partial summary judgment motion would not achieve the goals of proportionality, timeliness and efficiency. The development of the motion and its argument would be lengthy and would parallel the steps in preparation for trial. The issues presented by competing expert reports would be complex and might not be capable of determination without viva voce testimony. The evidence on the motion would overlap with the evidence expected to be adduced at trial on the issue of damages.

[14] Rule 50.13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides a case conference judge with authority to make procedural orders and to give directions. In Hryniak, at paras. 60 and 72, the Supreme Court explained the court’s power to provide directions under Rules 1.05 and 50.13 and emphasized that this includes consideration of the impact of any proposed motion: “the interest of justice inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole”. The court’s ‘gatekeeping function’ requires that the court must assess and provide procedural orders and directions in relation to proposed motions to ensure that the principles of proportionality, timeliness and efficiency are satisfied: Griva v. Griva, 2016 ONSC 1820 at para. 18; Espresso Tax Credit Fund III Limited Partnership (c.o.b. Espresso Capital) v. Arc Stainless Inc., 2018 ONSC 415 at para. 40. The Court of Appeal stated in Baywood, at para. 33, that the motions judge must “assess the advisability of the summary judgment process in the context of the litigation as a whole.”

[15] I deny the Plaintiffs’ renewed request for the scheduling of a summary judgment motion to seek judgment against only Dr. Padmore on only the issue of liability.

(b) Breach of Order to Set this Action Down for Trial

[16] The Plaintiffs are subject to an Order to set this action down for trial by November 24, 2018 and failed to do so. They state that they were unable to deliver their Trial Record and set this action down for trial due to the Nurse Defendants’ failure to defend. As I will explain shortly, this issue has now been resolved, such that the Plaintiffs seek to advance a motion to extend the time to set this action down for trial. They may do so within the next 20 days.

(c) Status of this Action against the Nurse Defendants

[17] Counsel for the Hospital states that the Nurse Defendants were not served with the Statement of Claim or the Amended Statement of Claim and that the time for service has long-passed, such that the Nurse Defendants are not part of this action. The Plaintiffs contended that the Nurse Defendants have been served.

[18] In the period between the first session of this case management conference on February 15, 2019, and its resumption on March 21, 2019, the Plaintiffs served a Notice of Discontinuance of this action as against the Nurse Defendants. They have indicated that they are in the process of filing this Notice of Discontinuance such that any involvement of the Nurse Defendants will shortly be concluded.

(d) De bene esse Examination of Dr. Padmore

[19] The Plaintiffs seek to preserve the evidence of Dr. Padmore for trial, in accordance with Rule 36.01 of the Rules of Civil Procedure. The basis for this request is that Dr. Padmore is elderly and that his evidence is material, and thereby should be preserved for use in the long trial in this action, which has not yet been scheduled. This form of de bene esse examination is not contested by the Hospital. The Physician Defendants stated that they will take instructions concerning their position on such a motion. This issue may be brought forward at the next case management conference, but in the meantime, the counsel for the parties have agreed to hold available in their calendars the dates of July 22, 23 or 24, 2019 for the examination de bene esse of Dr. Padmore, should it be Ordered or agreed upon.

(e) Expert Report

[20] The Plaintiff delivered the expert report of Dr. Nicholas Braithwaite in July 2017. No responding defence report has been delivered since, fueling the Plaintiff’s renewed request to advance a summary judgment motion against Dr. Padmore on the issue of liability on the basis that the Plaintiffs’ expert evidence is unchallenged. The Physician Defendants’ objection to the scheduling of a summary judgment motion is based, in part, on the representation that they have arranged for a responding defence report on the issues of Dr. Padmore’s discharge of his standard of care and causation, and expect its delivery within the next 60-90 days.

[21] The Plaintiffs seek an Order to schedule a timetable deadline by which the Physician Defendants must deliver a responding report to the Braithwaite report, addressing the claims against Dr. Padmore. The Physician Defendants submit that no such deadline should currently be imposed. This issue will be addressed at the next case management conference, at which time an Order may be rendered imposing a timetable deadline for the delivery of the Physician Defendants’ responding report.

C. Specific Case Management Directions

[22] The events of April 20, 2009 that are at the core of this action occurred almost ten years ago. This fact alone gives rise to the necessity to advance this action to trial-readiness as efficiently as possible. The case management process is designed to make this happen.

[23] A succinct statement of the purpose of case management, and counsel’s role in relation to it, is set out by Justice Myers in Schenk v. Valeant Pharmaceuticals International, Inc., 2017 ONSC 5101 at paras. 5 and 6:

“The purpose of this case management process is to resolve the lawsuit as efficiently, affordably and proportionately as the interests of justice allow. The proceeding will be managed to move forward efficiently but not urgently. There should always be at least one process step scheduled and being actively pursued. Parallel scheduling of multiple steps should be expected.

Parties and counsel are required to cooperate on procedural and scheduling matters so as to ensure there is a fair process for all. (See the Commentary under Rule 5-1.1 of the Rules of Professional Conduct “[t]he lawyer must discharge this duty … in a way that promotes the parties’ right to a fair hearing in which justice can be done”) and also Bosworth v. Coleman, 2014 ONSC 6135).”

[24] Effective case management requires that the action be moved forward expeditiously, taking the steps necessary in the circumstances of each case while remaining mindful of the need for efficiency and proportionality, always with at least one process step scheduled and being actively implemented.

[25] I provide the following case management directions:

(a) The Plaintiffs may, within the next 20 days, file a motion, with supporting affidavit, to extend the time for setting this action down for trial, seeking an extension of 30 days from the date of any resultant Order. This motion may be brought to my attention. The defendants have stated that they will not oppose this extension of time.

(b) The Physician Defendants will consider the motion intended to be brought by the Plaintiffs to take the evidence of Dr. Padmore for purposes of its use at trial, under Rule 36.01 of the Rules of Civil Procedure. The Hospital has indicated that it will take no position on any such motion, but intends to participate in the examination. At the next case conference, the Physician Defendants shall indicate whether they oppose this examination, in which case a Motion will be scheduled, or whether they consent to or do not oppose the proposed examination, in which case it will be scheduled.

(c) At the next case management conference, I will hear further submissions from the Plaintiffs regarding their request that a deadline be imposed for the delivery by the Physician Defendants of a report responding to the report of Dr. Braithwaite. The Physician Defendants shall make submissions at that time as to why such a deadline ought not to be scheduled. As the Physician Defendants have submitted that such a responding report is in progress, and may be completed by the next case management conference, this issue might be rendered redundant. If not, I provide notice, under Rule 50.13 of the Rules of Civil Procedure, that an Order may be made at the next case management conference in relation to this issue.

(d) The next case management conference shall be conducted on May 7, 2019 at 4:30 pm, by teleconference. This second case management conference will be conducted using call-in co-ordinates that will be provided by my judicial assistant to the counsel for the parties as the date of the second case management conference approaches. Should the parties consider that this second case management conference would more efficiently be conducted in person, they may make a joint request to my judicial assistant, in this regard.

[26] The parties may bring forward, to the second case management conference, any issue that they have identified that affects the orderly progression of this action.

D. General Case Management Directions

[27] No motion may be brought in this action before being considered at a case conference.

[28] A broad application of Rule 50.13 of the Rules of Civil Procedure will be used to address and resolve matters raised at case conferences, where possible. Parties and their counsel ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6) of the Rules of Civil Procedure, on informal notice of the issue to be addressed.

[29] The requirement of preparation, issuance and entry of a formal order is hereby dispensed with in accordance with Rule 77.07(6) of the Rules of Civil Procedure.

Sanfilippo J.

Date: March 26, 2019