Court of Appeal for Ontario

CITATION: Kendall v. Sirard, 2007 ONCA 468

DATE: 20070626

DOCKET: C46188

GILLESE, BLAIR AND MACFARLAND JJ.A.

BETWEEN:

SARA EARLEY-KENDALL and PETER KENDALL

Plaintiffs (Appellants)

And

JOEL SIRARD

Defendant (Respondent)

Kirk F. Stevens for the plaintiffs Sara Earley-Kendall and Peter Kendall

Daniel J. Rosenkrantz for the defendant Joel Sirard

Heard: March 23, 2007

On appeal from the order of the Divisional Court (Justice James C. Kent, Justice George T. Valin and Justice Charles T. Hackland) dated April 24, 2006.

MACFARLAND J.A.:

[1] This is an appeal from an order of the Divisional Court, which allowed an appeal from an interlocutory order by a motion judge. The Divisional Court's decision required the plaintiff-appellant, Sara Earley-Kendall, to attend two defence medical examinations, relief which the motion judge had refused. For the following reasons, I would allow the appeal.

THE FACTS

[2] On April 13, 2002, the appellant-plaintiff, Sara Earley-Kendall, (“the plaintiff”) was injured in a motor vehicle collision between the car she was operating and the defendant’s car. Her co-plaintiff’s claim is derivative in nature pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

[3] In this appeal, the procedural history of the within action is significant and highly relevant to my disposition of this case. Therefore, I will review this history in some detail.

[4] The trial record in this case was filed in December 2004 and the case was called for Assignment Court on February 18, 2005. However, the defence – who had inadvertently misplaced the Assignment Court list faxed to their office on February 15, 2005 – did not become aware of the Assignment Court date until February 18, 2005, presumably sometime after the Assignment Court had been held. At that time an “assistant” in the office of defence counsel telephoned plaintiffs’ counsel and was informed that a representative of that office had attended the Assignment Court earlier that day and obtained a pretrial date for June 10, 2005 and a trial date for October 17, 2005. These dates had not been canvassed with counsel for the defence before the Assignment Court. However, plaintiffs’ counsel confirmed the dates obtained in correspondence to defence counsel dated February 25, 2005, and no objection was taken with respect to the dates at that time.

[5] In early March 2005, the parties agreed to a private mediation, which proceeded as scheduled on April 25, 2005. Thereafter the pre-trial proceeded as scheduled on June 10, 2005. No concerns were raised by the defence at either of these events about the date or timing of the scheduled trial.

[6] The plaintiffs served on the defence an expert medical report and a follow-up report from Dr. Delaney on February 13, 2004 and April 12, 2005, respectively. Both reports were served prior to the mediation and pretrial.

[7] It would appear that the defence did not raise the subject of having a defence medical examination of the plaintiff until a letter to plaintiffs’ counsel dated July 19, 2005, which letter is not in the record before this court. Counsel for the plaintiff responded by correspondence dated July 22, 2005 stating:

… I have received instructions from my clients to oppose any motion that you may bring with respect to a request for an adjournment of the October 17, 2005 trial date. My clients want this trial to go ahead as scheduled.

You have had ample time to conduct defence medicals as you have been involved in this file since September of 2003. Furthermore, our expert report of Dr. Delaney was served on you on February 13, 2004 as well as a follow-up report of hers which was served on April 12, 2005.

[8] Ms. Fraser, an associate with the plaintiffs’ law firm, swore an affidavit on October 4, 2005 stating that the defence did nothing further in relation to conducting defence medical examinations until the defence brought a motion returnable August 30, 2005 – less than two months before trial – requesting that the trial in this matter be adjourned in order to permit the defence to conduct defence medical examinations (“the first defence motion”). The first defence motion was heard by Little J. on September 6, 2005 and was dismissed.

[9] The endorsement of the court reads:

There is no substantial reason given for the adjournment. The request for defence medicals is late and apparently not necessary to continue settlement talks. I see no prejudice to the defence to proceed. Steps were taken too late to object about the trial date being fixed without consent of defence counsel. Motion dismissed.

[10] The defence sought leave to appeal the order of Little J. before Browne J. on September 21, 2005. That motion was also dismissed. The court’s endorsement reads:

I do not find the issues raised go beyond the interest of the parties and there is not such importance that in my opinion leave should be granted.

The motion judge exercised discretion. The endorsement indicates the discretion was judicially exercised and entitled to deference. I do not doubt the correctness of the order made. Leave to appeal refused.

[11] The next step in these proceedings was a letter dated September 28, 2005 from defence counsel to plaintiffs’ counsel reading, in part:

I have now arranged two defence medicals for your client to take place prior to the trial currently scheduled for October 17th. I have cancelled the two other examinations which were set for November 1st with Dr. Cividino and January 18th with Dr. Upton.

The two appointments currently scheduled are with Dr. Frank Lipson, a rheumatologist and Dr. Geoffrey French, an orthopaedic surgeon.

I have been assured that I will have reports from both doctors before the start of trial and will supply them to you immediately on receipt.

[12] Plaintiffs’ counsel responded by letter dated September 29, 2005 stating in part:

Please be advised that my client is not going to be attending these medicals as you are out of time in regards to same.

You brought your motion unsuccessfully to adjourn the trial and appealed same again unsuccessfully. The Judge specifically commented on there not being any prejudice to proceed with this matter because you had not done medicals and that essentially you were out of time.

I also note that you are making efforts to have my client see an orthopaedic surgeon and a rheumatologist neither of which were doctors seen by my client.[^1]

You know full well that should such reports be provided to me at the doorstep of the trial, I would not be in a position to proceed with the trial of this matter as I would have to get responding reports and may in fact have to send my clients to see a doctor as she is not seeing a doctor within those particular disciplines.

It appears that this is simply an attempt to get through the back door what you could not get through the front door and I will not agree to have my clients attend.

[13] By letter dated October 3, 2005, Mr. Rosenkrantz, on behalf of the defence, responded, in part, as follows:

I am unaware of any Rule, Statute or case law which permits your client to escape attending defence medicals as arranged.

You may rightly object to my ability to file the report or call the doctor to testify at trial given what will obviously be late service of the report.

I will therefore expect your client to be in attendance as scheduled [.]

[14] Plaintiffs’ counsel responded that his client would not attend the defence medical appointments scheduled and that a motion would be necessary to compel her attendance. The same day defence counsel served a Notice of Motion returnable the following day, October 5, 2005 (“the second defence motion”). The relief sought included orders compelling the plaintiff to attend the defence medical examinations scheduled with Drs. Lipson and French.

[15] The stated grounds for the second defence motion included:

• The defendant is entitled to have a medical examination conducted of the plaintiff where the plaintiff’s physical condition is in question in the proceeding;
• Rules 2, 33 and 37.05 of the Rules of Civil Procedure; and
• Section 105 of the Courts of Justice Act.

[16] In support of the second defence motion Ms. Pool – an associate with the defendant’s law firm – filed an affidavit dated October 4, 2005. It is of note that in her affidavit Ms. Pool omitted any reference to the interaction between plaintiffs’ counsel and defence counsel beginning with defence counsel’s letter to plaintiff’s counsel dated July 19, 2005 and ending with the order of Browne J. dated September 21, 2005 refusing the defence request for leave to appeal the order of Little J. with respect to the first defence motion. That necessary history was supplied to the court in Ms. Fraser’s responding affidavit, referenced above.

[17] The second defence motion was heard by Rady J. on October 5, 2005. The motion judge dismissed the motion. She stated:

… an adjournment request has already been entertained by the court and turned down. One of the reasons for the adjournment request was to permit defence medical examinations. I view this motion as very much the same thing although dressed up a little bit differently.

The defence has recently been able to arrange medical examinations now on an expedited basis, but there is no explanation as to why that could not have been done at some earlier stage. In my view, the defence has had ample time to arrange and conduct defence examinations. Any reports that would be generated, if I were inclined to grant the relief sought, would clearly run afoul of Rule 53. Those reports, in my view, would have the potential to derail the trial scheduled for October 17, 2005.

[18] The defendant next moved for leave to appeal the interlocutory discretionary order of Rady J. From the record it appears that this motion for leave to appeal originally came on before Leitch R.S.J. on October 20, 2005, but, seemingly because the transcripts from the second defence motion were not yet available, she postponed the hearing of the motion to October 24, 2005.

[19] Meanwhile, the trial in this matter had begun on October 17, 2005 with the selection of a jury but the calling of evidence was postponed to await the call of the trial co-ordinator.

[20] On Saturday, October 22, 2004 Ms. Pool emailed plaintiffs’ counsel, Mr. Murray, and requested an adjournment of the motion for leave to appeal scheduled to be heard that coming Monday the 24th to permit her time to deliver materials.

[21] Mr. Murray refused to consent to any adjournment. He said that the motion should proceed, that defence counsel could bring the materials to court on Monday the 24th, and that he, plaintiffs’ counsel, would review them at that time. Mr. Murray’s response was emailed to Ms. Pool and a voice message to the same effect was left for her.

[22] Prior to the Monday motion, Mr. Murray also had a telephone conversation with Mr. Rosenkrantz for the defence. In this conversation, which I discuss in further detail below, Mr. Rosenkrantz again voiced the defendant’s request for an adjournment.

[23] On Monday, October 24, 2005 the motion for leave to appeal from the order of Rady J. came on for hearing before Kennedy J. Only Mr. Murray, on behalf of the plaintiffs, appeared. Kennedy J. dismissed the defence motion for leave to appeal and awarded costs to the plaintiffs.

[24] This case was called for trial before Jenkins J. on Tuesday, October 25, 2005 and in submissions to the trial judge on opening, Mr. Rosenkrantz for the defence renewed his motion for adjournment of the trial to permit defence medical examinations of the plaintiff.

[25] It was in the course of submissions to the trial judge that counsel for the defence for the first time, without notice to the plaintiffs, moved pursuant to rule 37.14(1)(b) to set aside the order of Kennedy J. made the day before.

[26] At issue was whether Mr. Murray had agreed to an adjournment of the Monday motion when counsel had spoken by telephone in the conversation referenced above.

[27] Counsel disagreed over the substance of this conversation.[^2] Mr. Murray says he maintained his position as set out in his email to Ms. Pool and the voicemail he left for her that he would not consent to adjourn the motion to October 25. He says Mr. Rosenkrantz responded that it was “crazy” to proceed with the motion when he had not had sufficient time to properly prepare materials nor to review Mr. Murray’s materials and that he (Rosenkrantz) was not coming to London to argue the motion. Mr. Murray responded that he would convey Mr. Rosenkrantz’s position to the presiding judge and says that he did.

[28] Mr. Rosenkrantz on the other hand says:

I mistakenly understood that [Mr. Murray] would be attending Monday morning which was the return date after the motion had been adjourned at least once. I had mistakenly understood that he would appear in front of whomever the judge was and consent to an adjournment to today to hear that motion.

Let me go back to what I said at the beginning. On Monday morning, I come into the office and am apprised of all of this including the email saying [that Mr. Murray does not want to adjourn the motion]. I phone Mr. Murray. I say this is crazy. I can’t get the material into a factum. I can’t prepare my factum without the endorsement. The last time we attended the motion in front of Justice Rady Mr. Gilby served me with his responding materials at 5:00 p.m. the day before. I didn’t even know there were any materials until the end of the motion in front of Justice Rady. I said I don’t wish to be caught in the same situation that you are going to hand me materials ten seconds before the motion begins. I thought that Mr. Murray agreed with me and was consenting to adjourning the motion one day. At that point, we didn’t know this trial was going to start today and that is the mistake that I made. I thought we were having a consent adjournment.

I obviously totally misunderstood what Mr. Murray and I discussed on the phone because he has indicated that’s not what he understood our conversation to be. I accept that [.] …

[29] It is significant that both lawyers’ versions of the disputed telephone conversation were not in affidavit form. They were merely relayed to the trial judge through the submissions of counsel.

[30] The trial judge, Jenkins J., accepted the defence’s contention that its failure to appear on the Monday motion had been due to an accident or mistake. Consequently, he set aside Kennedy J.’s order denying leave to appeal pursuant to Rule 37.14.

[31] The trial judge then dealt with the merits of the defence motion for leave to appeal the decision of Rady J. He held that the defendant had not “been able to obtain a defence medical prior to the case being reached for trial in spite of reasonable efforts on the part of his counsel.” Therefore, “it would be unjust and prejudicial to the defendant to force him to go to trial without a defence medical”. Further, there would be “no significant prejudice to the plaintiff by a delay in this matter”. Accordingly, the trial judge granted leave to appeal the order of Rady J.

[32] The Divisional Court heard the defendant’s appeal on April 24, 2006. The court allowed the appeal on the basis that Rady J. had failed to address the issue of prejudice to the parties in her reasons. Given that a trial in this matter “may not occur until 2008”, the Divisional Court held that there was no additional prejudice to either party in granting some relief to the defendant. Accordingly, the Divisional Court ordered the plaintiff to attend for a defence medical examination. The Divisional Court, however, awarded costs to the plaintiffs on the view that the defendant had to be penalized for the delay as a result of counsel not moving more expeditiously to obtain a defence medical.

[33] As I have said, the plaintiffs now appeal the Divisional Court’s decision to this court.

ANALYSIS

[34] In my view, at the heart of this appeal is the question of whether the motion before Rady J. on October 5, 2005 was, in substance, the same motion previously brought before Little J. on September 6, 2005. Stated another way, was the first defence motion substantially the same as the second defence motion?

[35] If the answer to that question is “yes” then, in my view, the motion before Rady J. was improper in that the substance of that motion had been finally and conclusively determined by the order of Browne J. made September 21, 2005 when he denied leave to appeal the order of Little J.

SUBSTANCE OF THE DEFENCE MOTIONS

[36] It is clear from the endorsement of Little J. that the motion before him sought an adjournment of the trial to permit defence medical examinations which had been scheduled for November 2005 and January 2006 – both after the date on which the trial had been fixed to commence.

[37] The motion before Rady J. sought an order compelling the plaintiff to attend defence medical examinations now arranged for October 6 and October 11, 2006 – both dates before commencement of trial. The expert physicians conducting those examinations had promised that their reports would be delivered before trial. The only difference was the timing of the appointments.

[38] At the outset of her reasons, Rady J. noted that an adjournment request had already been entertained by the court and refused. I agree with her observation that the motion before her was “very much the same thing although dressed up a little bit differently”. I also agree with the plaintiffs’ position that the motion before Rady J. was an attempt to get through the back door what the defence was unable to get through the front door.

[39] In my view, there is no substantial difference between requesting the adjournment of a trial where the basis of that request is to permit the defence to conduct pre-arranged defence medical examinations of the plaintiff and a subsequent motion to compel the same plaintiff in the same proceeding to attend such examinations (albeit at different times) where the trial would most likely be necessarily adjourned as a result.

[40] The ultimate issue was the timeliness of the defence request for medical examination of the plaintiff.

[41] No effort was made for such medical examination until mid-July, 2005. When that request was promptly denied by plaintiffs’ counsel it was incumbent on the defence to immediately seek an order pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. The trial was scheduled to proceed on October 17, 2005 and so the defence would have needed to serve any responding report on the plaintiffs no later than August 17, 2005. In this case, however, the defence did nothing until its motion returnable August 30, 2005 and heard by Little J. on September 6, 2005.

ISSUE ESTOPPEL

[42] In my view, once the motion for leave to appeal the order of Little J. was dismissed on September 21, 2005, the defence was thereafter precluded from seeking the relief under s.105 of the Courts of Justice Act, supra give that the issue had been finally determined.

[43] In Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211 (Gen. Div.) at 218, aff’d . [1994] O.J. No. 2792 (C.A.) E. Macdonald J. noted:

A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See Diamond v. Western Realty Co., 1924 2 (SCC), [1924] S.C.R. 308.

[Counsel for the plaintiff] cites Fidelitas Shipping Co. v. V/O Exportchleb, [1966] 1 Q.B. 630 (C.A.) (hereinafter “Fidelitas”) in support of the proposition that, once an issue has been raised and determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again in the same or subsequent proceedings. I refer, in particular, to Lord Denning’s comments which appear at p. 640 of the judgment in Fidelitas:

The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam: see King v. Hoare, [(1844), 13 M. & W. 494, 504]. But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances, see Badar Bee v. Habib Merican Noordin, [(1909) A.C. 615], per Lord Macnaghten. And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self same issue arises in the same or subsequent proceedings. But this again is not an inflexible rule. It can be departed from in special circumstances. (Emphasis added.)

And at page 219 she continued:

In my view, the courts should depart from the principles expressed by Lords Denning and Diplock in extremely rare circumstances. The reasons for this are obvious. A party to a proceeding, if granted a second chance to raise what was already before the court, undermines the integrity of the rules which guide the conduct of litigation. There has to be certainty and finality of the disposition of matters by the courts. Otherwise, the results would be chaotic.

[44] Similarly, as Laskin J.A., on behalf of this court, observed in Minott v. O’Shanter Development Co. (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321 at 329:

Res judicata itself is a form of estoppel and embraces both cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party from relitigating a claim that was decided or could have been raised in an earlier proceeding. [Emphasis added.]

[45] Were it otherwise, a party who was unsuccessful the first time and where there has been no change in circumstance, could bring the same motion before any number of judges in an effort to find one who would grant the relief sought. Such multiplicity of proceedings is to be discouraged.

[46] Although a trial judge enjoys an overarching discretion to consider a motion for an adjournment of a trial, that discretion must be exercised judiciously and in accordance with the law. It is not open to a trial judge to grant an adjournment on the basis of the same facts put to another judge of concurrent jurisdiction earlier in the proceedings in the absence of a change of circumstance, where the first judge refused the adjournment request. To do otherwise would fly in the face of the well-settled law of issue estoppel.

[47] As I noted above, the first and second defence motions were substantially the same. In my view, therefore, the issue raised before Rady J. and thereafter in related leave applications before Kennedy J. and Jenkins J. was finally determined by the order of Browne J. on September 21, 2005. At that point in time the defence was estopped from raising the issue again. For this reason I conclude that the Divisional Court erred when it granted the defendant’s motion to compel the plaintiff to attend a defence medical. Further, in my view, Rady J. correctly declined to exercise her discretion to grant the defendant the relief he sought.

[48] On the facts of this case it is clear that the only difference between the motion heard by Little J. and that heard by Rady J. was in the timing of the defence medical examinations. Those examinations were originally scheduled after the set trial date (the motion before Little J.) and subsequently before the set trial date (the motion before Rady J.). The defence could, and more importantly should, have raised all matters of relevance in relation to the timing of the defence medical examinations when he was before Little J. on September 6, 2005.

[49] In coming to this conclusion, I am aware that, from the factums filed at the Divisional Court, it would appear that the argument of issue estoppel was not argued before that court or before Jenkins J. other than indirectly. Instead, the argument there was more focused on the merits of the decision of Rady J.

[50] However, in these particular circumstances, where the appellant has argued that this issue had “earlier been determined” and that the defendant was “attempting to get through the back door what he couldn’t get through the front” it is nonetheless appropriate that this court deal with the issue estoppel argument which is before this court. I say this for two reasons: one, there is a full record before this court in relation to the issue; and two, the issue raised is one of law and the respondent has had a full opportunity to address the issue both in its factum and in oral argument.

DISPOSITION

[51] For these reasons, that portion of the Divisional Court’s order compelling the plaintiff to attend a defence medical is set aside.

[52] I would not disturb the Divisional Court’s decision to award the plaintiffs their costs of that appeal. Although the plaintiffs were not successful in that court, the Divisional Court nevertheless awarded costs to them because in that court’s view the defendant’s conduct called for a costs penalty. I agree with the Divisional Court and accordingly will not interfere with its costs ruling.

[53] Costs of the appeal and of the application for leave to appeal to the appellant fixed in the sum of $12,238.44, inclusive of disbursements and GST.

RELEASED: June 26, 2007 “EEG”

“J. MacFarland J.A.”

“I agree E.E. Gillese J.A.”

“I agree R.A. Blair J.A.”

[^1]: The specialty issue was clarified in later correspondence between the parties and was not an issue on this appeal.

[^2]: Their respective versions of their conversation are set out in the transcript of the proceedings before Jenkins J., October 25, 2002.