Court File and Parties

COURT FILE NO.: CV-13-476648 DATE: 20220317 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Said Musllam, Plaintiff (Respondent) AND: Hamilton General Hospital, Dr. John Dennison Wells, Dr. Shameela Karmali-Rawji, and Dr. Jayesh Mistry, Defendants (Appellant)

BEFORE: Pollak J.

COUNSEL: Tanya A. Pagliaroli, for the Plaintiff (Respondent) Alexi N. Wood & Lillianne Cadieux-Shaw, for the Appellant Dr. Mistry

HEARD: October 18, 2021

Endorsement

[1] The Appellant, Dr. Mistry, appeals from the order of an Associate Justice (formerly Master) dated January 8, 2021, granting a motion to add Dr. Mistry and Dr. Karmali-Rawji as defendants to this medical malpractice action. Dr. Karmali-Rawji does not appeal this order.

[2] The motion to add Dr. Karmali-Rawji, the plaintiff’s family doctor, and Dr. Mistry, the plaintiff’s chiropractor was heard, (with other related motions) for four days. The record was voluminous with many cross-examination transcripts and documents.

[3] The court held that the Plaintiff discovered the claim against Dr. Mistry for delayed diagnosis and failure to refer in May of 2017 when counsel reviewed the chart of Dr. Karmali-Rawji and Dr. Mistry, and further, that the claim was discoverable in May of 2017. The limitation period had therefore not expired permitting the addition of Dr. Mistry as a Defendant.

[4] The Respondent’s position is that the court properly and carefully reviewed, weighed and assessed the extensive evidentiary record. The law applicable to discoverability, was applied to the facts, which resulted in a finding that the limitation period had not expired before May of 2017.

[5] Briefly, on March 23, 2011, Dr. Wells performed spinal surgery on Mr. Musllam. Sadly, the surgery was not successful and he was left paralyzed from the waist down. Mr. Musllam commenced a claim against Dr. Wells and the Hamilton Health Sciences Corporation on March 20, 2013. In January of 2019, Mr. Musllam moved to add Dr. Mistry and Dr. Karmali-Rawji, as parties to the action.

[6] Dr. Mistry’s position was that the proposed claim is statute-barred pursuant to ss. 4 and 5 of the Limitations Act, 2002, SO 2002, c. 24, Sched. B. (the “Act”) as Mr. Musllam had constructive knowledge of all material facts to bring a claim against him between March 2011 and February 2015 and that he had actual knowledge of the potential claim by February 2015. The limitations period therefore expired in February 2017.

[7] Dr. Mistry submits that the Master conflated his evidence with that of Dr. Karmali-Rawji, as the Master found that the claims against them were both discoverable when Mr. Musllam’s counsel reviewed Dr. Karmali-Rawji’s records. Dr. Mistry submits that this finding is a palpable and overriding error unsupported by the evidence. It is argued that the Master did not refer to any of the evidence (that could be known and was known) to support the material facts to draw a plausible inference of liability against Dr. Mistry. Further, it is submitted that the Master did not apply the proper test for discoverability of the Claim against Dr. Mistry.

[8] The Master properly considered Subrule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides for the addition of parties during a proceeding:

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[9] Section 21(1) of the Act prohibits the addition of a party to a proceeding where the limitation period has expired:

21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

[10] Sections 4 and 5 of the Limitations Act provide as follows:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[11] The Appellant acknowledges that the Master properly referred to the test to be applied.

[12] Mr. Musllam had the burden of proving:

i. “when he knew the facts which would give rise to a claim – not a perfect or viable or even a good claim, but only when he knew he had a potential or possible claim against these potential defendants; and

ii. pursuant to section 5(1)(b) of the Act, when he ought to have known, as a “reasonable person”, that his injuries were caused or contributed to by the alleged acts or omissions of Dr. Mistry.”

[13] In May 2010, Mr. Musllam told his family doctor, Dr. Karmali-Rawji that his right leg could not move. The Doctor ordered an MRI of his lumbar spine and right shoulder. The MRIs were normal, and the Doctor referred Mr. Musllam to Dr. Carleton, a neurologist.

[14] On 20 May 2010, Dr. Karmali-Rawji got a report from Dr. Carleton, concluding the Plaintiff likely had a spinal cord lesion and that he needed an immediate MRI of his cervical and thoracic spine, which Dr. Carleton would arrange. Dr. Karmali-Rawji received and initialled Dr. Carleton’s report.

[15] On June 9, 2009, at a follow-up appointment with Dr. Karmali-Rawji, there was no discussion about a lesion or tumour nor any recommendations for further investigation or treatment. Rather, Dr. Karmali-Rawji diagnosed the Plaintiff with shoulder strain and lower back pain, recommending physiotherapy and swimming.

[16] Unfortunately, Mr. Musllam did not attend the scheduled thoracic and cervical MRI or follow-up appointment with Dr. Carleton who wrote to Dr. Karmali-Rawji on 14 July 2010 advising of this and stating that Dr. Karmali-Rawji should follow up on the spinal lesion. Dr. Karmali-Rawji suffered a heart attack and was likely in hospital when Dr. Carleton’s follow-up letter was received. Mr. Musllam’s evidence is that he had no knowledge of Dr. Carleton’s findings and did not know that Dr. Karmali-Rawji was supposed to follow up on the thoracic imaging until his counsel received Dr. Karmali-Rawji’s records in May of 2017.

[17] Mr. Musllam’s symptoms were getting worse and because he was not able to contact Dr. Karmali-Rawji, he consulted Dr. Mistry on December 22, 2010.

[18] Mr. Musllam’s evidence is that he told Dr. Mistry he was having difficulty with his legs and feet. Dr. Mistry noted that Mr. Musllam was unable to jog and could not roll or flex his right ankle. Dr. Mistry suspected a nerve root problem in Mr. Musllam’s lower lumbar spine. He gave Mr. Musllam some strengthening exercises for his lower body.

[19] Mr. Musllam’s condition got worse. On February 16, 2011, as a result of an MRI, a spinal lesion on Mr. Musllam’s thoracic spine was diagnosed.

[20] On March 23, 2011, Dr. Wells performed spinal surgery on Mr. Musllam. Sadly, the surgery was not successful.

[21] The issue on this Appeal is whether the Master made an overriding and palpable error in finding that the limitation period had not expired prior to January 2019.

[22] The parties agree that the Master’s decision is entitled to a high level of deference, absent a palpable and overriding error.

[23] This Court should not substitute its assessment of the findings as the Master had the best opportunity to review and evaluate the evidence.

[24] It is important to recognize that the record before the Master was voluminous. In the Reasons, the Master referred to the evidence and submissions in their totality as it was not possible to refer and is it not necessary to refer to all the evidence. In this regard, the Master stated:

[T]he record before me is “comprehensive”. Additionally, I have my notes from the four hearing days. All points of fact and law which could have been covered were covered thoroughly by all counsel involved in their informative written and oral submissions. Yet to not further elongate these reasons, I shall not refer to all the evidence in all the many volumes of documents; nor will I refer to all the submissions or to all the case-law upon which counsel relied. Rather, I will address what I found most compelling and persuasive, and what I believe most applied to the facts of this case so counsel, and any reviewing Court, can hopefully understand why I came to my herein decisions. [Emphasis added]

Did the motions Master err in finding that the limitation period had not expired prior to January 2019?

[25] Our Supreme Court of Canada has held that the limitations period starts to run when the plaintiff has actual or constructive knowledge of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. The case of Grant Thornton LLP v New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613 at para. 3, was released after the Reasons of the Master.

[26] The Master correctly stated that the plaintiff must “establish when he knew the facts which would give rise to a claim—not a perfect or viable, or even a good claim, but only when he knew he had a potential or possible claim against these potential defendants.”

[27] The Court of Appeal in Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, referred to the test to be applied to decide whether a limitation period has expired. The court must determine when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the claim is within the limitation period, the court then decides if “a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a),” (s. 5(1)(b)).

[28] When did the Plaintiff discover the facts relating to Dr. Mistry’s negligence. Specifically, when, pursuant to s. 5(1)(a)(ii) and (iii) of the Act, did the plaintiff know or ought reasonably to have known that an act or omission of Dr. Mistry caused or contributed to his injury.

[29] The Master found that it was only when Mr. Musllam and his counsel reviewed Dr. Karmali-Rawji’s records that they could draw even a prima facie or plausible inference that Dr. Mistry acted negligently. The Master held that:

Again, the family doctors’ records changed everything. The prior assumptions, which were reasonably held, were by this new information completely upended. In my view, the fundamentally important information finally revealed from the family doctors’ records are inextricably linked to any possible negligence of the chiropractor, for the reasons expressed by Ms. Oakley in the above-referenced January 11, 2017 docket entry: again, earlier symptoms alone, absent corroboration, would not be of use. Such would not ground a claim at all, let alone a good or viable one. Yet now the plaintiff had the chart, including the report from Dr. Carleton. The issues pertaining to the chiropractor are, I find, closely connected to the possible negligence of the family doctor. Thus, I find that the claims against the chiropractor were also discovered on May 16, 2017.

[30] The appellant challenges such analysis submitting that the Master should have found that there was already a potential claim against him for his alleged failure to diagnose or refer in December of 2010. This is the main ground of this Appeal, which is characterized as a palpable and overriding error.

[31] The Appellant submits that the Master erred when he found that the claim against him crystallized at the same time as the claim against Dr. Karmali-Rawji. He submits that a claim against him was known by February 2015. He relies on the supporting evidence and argument:

(a) the January 13, 2015 Docket, in which Mr. Musllam “kept talking about Dr. Jay”, specifically telling counsel that he had told Dr. “Jay” about the problems in his legs and feet, but that Dr. “Jay” had not done anything;

(b) the January 29, 2015 Email, in which Mr. Musllam reiterated to counsel that “Dr. Jay” suspected something was wrong but failed to refer or diagnose;

(c) the January 30, 2015 Dockets, revealed that counsel was actively investigating the possibility of a missed diagnosis in the period of June 2010 to February 2011 and knew that Dr. Mistry’s care occurred within this period;

(d) the February 19, 2015 Docket, in which counsel clarified the identity of “Dr. Jay”;

(e) the Success of Claim Dockets, reveal that counsel did not commence a claim against Dr. Mistry because they were concerned about its success.

[32] Further, it is submitted that by February 19, 2015, Mr. Musllam and counsel were in possession of all the material facts needed to draw an inference of liability against Dr. Mistry as:

(a) Mr. Musllam saw Dr. Mistry in December 2010;

(b) This appointment was six months after he had seen his family doctor and she had told him everything was fine, an amount of time that could have led to changes in his condition such that previous normal imaging would no longer be relevant;

(c) Mr. Musllam allegedly told Dr. Mistry about his concerning symptoms;

(d) Dr. Mistry allegedly did not diagnose the spinal lesion, nor did he refer Mr. Musllam out for further care or imaging;

(e) Two months later, Mr. Musllam was diagnosed with a spinal lesion and underwent surgery one month later.

[33] The Appellant argues that these facts represent the “core of the claim of substandard medical treatment.” By at least February 2015, the Plaintiff was aware of what was wrong (an unsuccessful spinal lesion surgery), why it might be wrong (the spinal lesion had not been detected in time), and who might be responsible (Dr. Mistry for failing to diagnose or refer two months earlier). Plaintiff’s counsel agreed that there was a possible claim of missed diagnosis or failure to refer against Dr. Mistry, though, in their view, not a particularly good claim. Therefore, it is argued that Mr. Musllam had actual knowledge of the material facts necessary to draw a plausible inference of liability against Dr. Mistry by at least February 2015, when the Plaintiff and his counsel had discussed all the facts that formed the core of a claim against the Chiropractor. The Appellant submits that when a plaintiff can draw a plausible inference of liability, regardless of the possible success of that claim, when the claim is “discovered”. At a minimum, it is the Appellant’s position that the claim against Dr. Mistry was discovered three years prior to when he was added as a Defendant.

[34] In a medical malpractice action, a claim is discovered when the Plaintiff knows the facts that form the "core of the claim of substandard treatment, the material facts which constitute negligence and the causation give rise to a cause of action.

[35] The Master correctly noted that the criteria in ss. 5(1)(a)(i) to (iv) of the Act are conjunctive and Mr. Mistry had to know (or ought to have known) of all four of the criteria for his claim to be discovered.

[36] The Plaintiff’s claim against Dr Mistry is that he did not or that he delayed the diagnosis of the spinal tumour and/or failed to refer the plaintiff for appropriate care and treatment.

[37] The Master held that until counsel had reviewed Dr. Karmali-Rawji’s medical records and Dr. Mistry’s records, the plaintiff was not aware that he should have been diagnosed with a spinal tumour before his diagnosis in February of 2011, or that his delayed diagnosis resulted or contributed to his failed surgery.

[38] The evidence, with respect to the Plaintiff’s lack of actual knowledge of the matters in s. 5(1)(a) was sufficient to rebut the presumption in s. 5(2) of the Limitations Act that he knew of the matters referred to in 5(1)(a) on the date the act or omission on which the claim is based took place.

[39] The Appellant argues that by February of 2015, counsel, in fact, were aware of a possible claim against Dr. Mistry, arising out of the December 2010 visit and did nothing about it. I disagree. The Master found that before reviewing Dr. Mistry’s chart, there could not have been knowledge of a possible claim against Dr. Mistry arising out of the December 2010 and that counsel properly concluded that the Plaintiff could not establish causation pursuant to s.5(1)(a)(iii) of the Act from the December 2010 visit.

[40] Before reviewing Dr. Mistry’s chart in 2017, the only information of Dr. Mistry’s care of the plaintiff was what the plaintiff recalled of his last visit with Dr. Mistry. The plaintiff needed to access his medical records and an experienced assessment to realize that there had been negligence with respect to the delay in his diagnosis.

[41] Without Dr. Mistry’s chart, counsel could not confirm the Plaintiff saw Dr. Mistry in December of 2010, what symptoms the plaintiff had complained of, or what his diagnosis, assessment, his investigations or tests, or any proposed follow up plan.

[42] The review of Dr. Mistry’s December 22, 2010 note confirmed that the plaintiff was evaluated by Dr. Mistry in December 2010, and Dr. Mistry’s assessment (unable to dorsiflex foot at ankle, S1 and L5 difficulty, unable to roll ankle), his diagnosis (L5 nerve root involvement), and his failure to order any appropriate follow up. This was new relevant information.

[43] I agree with the Master that it was only on the basis of the new information that counsel discovered Dr. Mistry’s acts or omissions. Before that, there was no causation evidence. The visit with Dr. Mistry was on December 22, 2010, before the Plaintiff was properly diagnosed on February 16, 2011 (as a result of an MRI ordered on February 3, 2011) and he did not have surgery until March 23, 2011. Even if Dr. Mistry had taken appropriate steps on December 22, 2010, this would have only moved up the diagnoses date by 4-6 weeks. It was counsel’s opinion that this was unlikely to make a difference in the outcome in a case involving a slow growing tumour. The Master’s finding that the information in Dr. Karmali’s chart was necessary to ground a claim against Dr. Mistry was, in my view, properly based on the evidence. When counsel discovered that the lesion was diagnosed and diagnosable as early as May of 2010, they realized that there was a possible claim against Dr. Mistry for failing to diagnose the lesion.

[44] The Plaintiff’s position, however, is that before May of 2017, he and his counsel believed the defendant, Dr. Wells, was solely responsible for this paralysis and had no reason to think Dr. Mistry had done anything wrong. Until that time, the Plaintiff and all of his previous lawyers believed his claim was one of surgical misadventure or lack of informed consent.

[45] Counsel instructed staff to get a complete set of medical records for the Plaintiff’s health care practitioners consulted between June of 2010 and February of 2011, as the medical records of Dr. Karmali-Rawji and Dr. Mistry had been previously requested but had not been provided.

[46] Dr. Mistry advised Mr. Musllam that the chart was ready to be picked up in September 2016 and he did so. I find that the Master reasonably found on the balance of evidence that: “It is also clear to me that the plaintiff was diligent in trying to obtain Dr. Mistry’s records.

[47] The first opportunity counsel had to review the complete package of medical records after they were received was in May 2017.

[48] Two letters were discovered in Dr. Karmali-Rawji’s chart, both from Dr. Carleton, the neurologist. The letter dated May 20, 2010, revealed for the first time that Dr. Carleton had diagnosed Mr. Musllam’s spinal lesion and the letter dated July 2010 advised that he had not attended for his MRI or his follow up appointment and stating that: “He really needs to have that study done looking for a cord lesion. I’ll leave that with you.”

[49] The review of the medical records also confirmed that the only MRIs performed in June 2010 were of the shoulder and low back and not the thoracic spine where the tumour was located.

[50] The review of the records provided new information: “(i) there were abnormal findings for a significant period of time before the June 2010 MRI and, (ii) the symptoms recorded by Dr. Mistry in December of 2010 were abnormal and appeared to be an extension of the earlier symptoms noted by the chiropractor and, (ii) there was no indication of any follow up or referrals”.

[51] The Master also found that the period of approximately three months from when the chart of the family doctor was received until it was reviewed by counsel was reasonable as counsel’s firm was small and very busy. Further, the Firm had to wait for the entire package of records (both Dr. Karmali-Rawji’s and Dr. Mistry’s) to be received and then reviewed. Also, counsel did not expect the records to be particularly relevant and did not expect the surprising information contained therein. Finally, the medical records were complex.

[52] Most notably, it was not until counsel reviewed Dr. Karmali-Rawji’s records that they had any basis for concerns about whether the Plaintiff’s tumour could have been diagnosed earlier. Dr. Karmali-Rawji records changed this and provided the possible basis for a claim against both Dr. Karmali-Rawji and Dr. Mistry for delay in diagnosis. All previous evaluations were based on a mistaken belief that the spinal lesion was not and could not have been diagnosed earlier than June 2010. The Plaintiff’s claims against Dr. Mistry and Dr. Karmali-Rawji could not have been discovered until that belief was changed. The Plaintiff, therefore, submits that there was no claim for missed diagnosis or failure to refer against until that mistaken belief was corrected. I accept this submission.

[53] Following their review of Dr. Karmali-Rawji and Dr. Mistry’s records, counsel retained a neurosurgeon in Toronto, in October 2017. Dr. Mueller’s preliminary opinion was provided on May 2, 2008:

“i) the type of tumour Mr. Musllam had was slow growing and is associated with a better outcome than with other forms of tumours;

i) if there are no clinical symptoms, one continues to monitor with imaging;

ii) Dr. Karmali-Rawji fell below the standard of care by not ordering full spinal imaging and not following up after receiving Dr. Carleton’s letter was a serious failure and her responsibility to do so;

iii) there was no question that the tumour would have been seen earlier if the MRI had been done in May 2010;

iv) there were symptoms recorded earlier in the chart that should have been investigated and were not and Dr. Karmali-Rawji should have recognized Mr. Musllam’s marked abnormal gait.

v) by February 2009, there were clear indications of a lesion which were not consistent with a lower spine problems and Dr. Mistry should have known that.”

[54] The Master found as a fact that having regard to the abilities and circumstances of the plaintiff, both the plaintiff and counsel acted diligently in discovering the claim against Dr. Mistry and that Dr. Mistry would suffer no non compensable prejudice as a result of being added as a defendant. I agree that such findings are entitled to deference.

[55] The Appellant’s submissions are also supported by an argument on the interpretation of counsel dockets, an email and excerpts of the cross examination transcripts, upon which it is submitted establish that the plaintiff was “clearly or seriously” concerned with the care provided by Dr. Mistry as early as 2011. Therefore, counsel knew there was a possible claim against Dr. Mistry by February 2015, but simply chose to do nothing. I do not accept this conclusion. The evidence referred to above does not support this submission.

[56] With respect to the dockets referred to by the Appellant, counsel’s belief was that, if the plaintiff was correct (which had to be verified by the records), then even if Dr. Mistry had acted quickly in 2010 it was unlikely to affect the outcome. I agree that the evidence confirms that counsel were not concerned about how strong the claim against Dr. Mistry would be but were concerned that there was no claim against Dr. Mistry without proof of any causation. The Master made such a finding.

[57] The January 13, 2015 docket relied on by the Appellant refers to a conversation between an articling student and the Plaintiff. The Plaintiff was answering questions of the student and not volunteering his “concerns” about Dr. Mistry. The Plaintiff did not say he was concerned about Dr. Mistry’s care. The student asked the Plaintiff about who saw him after the negative MRI and neurology testing. The plaintiff told the student that he had seen a chiropractor “who seemed concerned that his legs were so hard to move and that “he told Dr. Jay that he was having numbness in his legs and feet and pain in his left leg. Dr. Jay said that it was worrying but he hadn’t really done more”.

[58] The Plaintiff is an unsophisticated litigant, who does not have the medical knowledge necessary to be able to draw inferences necessary to establish causation.

[59] I agree with the Masters’ finding that there was insufficient evidence to find that a reasonable person with the abilities and circumstances of this plaintiff could have discovered the claim against Dr. Mistry sooner than May 2017.

[60] I agree that the Master reasonably found as a fact that the plaintiff had no reason to think that there was a claim against Dr. Mistry prior to May 2017. The Plaintiff thought he was okay in June of 2010 and in December of 2010. Dr. Mistry did not give him any reason to believe otherwise.

[61] Dr. Mistry also argues that the Master erred in his analysis of discoverability by failing to consider the “wondering” evidence. It is submitted that this evidence establishes that as early in 2011, when he was in the hospital, Mr. Musllam was “clearly concerned” about Dr. Mistry’s care.

[62] This evidence is from the cross examination of the Plaintiff by counsel for Dr. Karmali-Rawji. The Plaintiff was asked if he “wondered” about certain things.

[63] Further, reliance is placed on the evidence of the January 29, 2015 email, in which the question the Plaintiff was asked “What were your regular exercises with him” (Dr. Jay)? The Plaintiff responded “last time I saw Dr. Jay He was surprised. I had problems with my left legs it wasn’t flexible and he compared that with himself. He was suspecting something. I couldn’t run quick I was walking with no problems, but there was problem with rotating my left ankle. I had a problems also moving my toes.” I note that the Plaintiff did not say he was concerned about Dr. Mistry’s care.

[64] Although the Master does not expressly refer to all of the evidence relied on by Dr. Mistry in this appeal, it is apparent from his Reasons that he reviewed all of the dockets and that evidence. Further, I agree with the Master’s conclusion about the Plaintiff’s knowledge and do not find that the Appellant’s reliance on the evidence I have referred to is persuasive.

[65] Finally, Dr. Mistry submits that he is prejudiced as a result of an incomplete chart. There was no evidence that his chart was destroyed. Dr. Mistry’s evidence was that he “presumed” that the chart was destroyed.

[66] There must be a causal connection between the non-compensable prejudice and the proposed amendment to the claim adding the defendant.

[67] The Master did however, find that the chart was complete.

[68] As well, Dr. Mistry did not provide evidence that missing items would have been included in the chart if they had been requested earlier.

[69] Further, there were no submissions on why such documents would have been relevant to his care or how their absence prejudiced his ability to defend the case against him.

[70] On this basis, I do not find that the Master erred in finding there was no prejudice to Dr. Mistry as a result of the Claim.

[71] For the above noted reasons, I do not find that the Master erred, as alleged, and dismiss the Appeal.

Costs

[72] As the Responding Party, Plaintiff, was successful in this Appeal, he is entitled to his costs on a partial indemnity basis inclusive of HST and disbursements. Having regard to the factors set out in the Boucher case and in the Rules, I find these costs to be reasonable and appropriate in the circumstances. Should the parties wish to make submissions that costs should be awarded on a substantial indemnity basis as a result of the operation of the Rules, the parties may deliver cost submissions no longer than 2 pages double spaced with the Responding Party’s submissions delivered to the Appellant and uploaded to caselines by 12 p.m. on March 24, 2022 and the Appellant delivering responding cost submissions to the Respondent and uploading them to caselines by 12 p.m. on March 31, 2022. No reply submissions will be accepted.

Pollak J. Date: March 17, 2022