Court of Appeal for Ontario

Date: 2023-11-09 Docket: M54634 (COA-23-CV-0114)

Before: Fairburn A.C.J.O. (Motion Judge)

Between:

Sean Omar Henry, personally and as Estate Trustee for the Estate of Sandy Robinson Plaintiffs (Appellants)

And:

Dr. Marshall Zaitlen, Dr. Edgar Jan, Dr. Joseph Fairbrother, Dr. Hilarie Louise Sheehan, Dr. Vera Bril, Dr. Robert Kurtz, Dr. John Doe, Jane Doe, Joan Doe, William Osler Health Centre, Brampton Civic Hospital and University Health Network, Toronto General Hospital Defendant (Respondent)

Counsel: Brandyn Di Domenico and Stacy Bailey, for the moving party (Ontario Trial Lawyers Association) Barbara MacFarlane, for the plaintiffs (appellants) Stephanie Sugar and Christine Windsor, for the defendant (respondent)

Heard: November 2, 2023

Reasons for Decision

Overview

[1] The Ontario Trial Lawyers Association (“OTLA”) brings a motion for leave to intervene as a friend of the court pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The underlying appeal relates to a medical malpractice jury trial in which the plaintiffs were successful. The trial judge decided a number of post-judgment issues, including the appropriate prejudgment interest (“PJI”) rate for non-pecuniary damages.

[3] The plaintiffs appeal on the basis that the trial judge erred by departing from the presumptive PJI rate on damages for non-pecuniary loss in an action for personal injury. The statutory scheme for the calculation of PJI in Ontario is governed by ss. 127, 128, and 130 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 53.10.

[4] This appeal is perfected and scheduled to be heard on January 18, 2024. The appeal is being heard along with the appeal of the liability decision brought by the defendant, Dr. Zaitlen (C70442). The appeals are scheduled for a total of 3.5 hours. OTLA seeks leave to intervene only in the plaintiffs’ appeal relating to the issue involving PJI.

[5] The plaintiffs consent to OTLA’s intervention and Dr. Zaitlen opposes. For the reasons that follow, I grant intervention to OTLA, but on a more limited basis than what was requested by the proposed intervener.

Discussion

[6] In order to determine whether OTLA should be granted intervention, I must consider the general nature of the case, the issues that arise in the case and the contribution that the intervener can make to those issues without doing injustice to the parties: Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 22; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167.

Nature of the Case and Issues on Appeal

[7] Although interventions in appeals involving a private dispute must generally meet a more stringent standard, this standard is somewhat softened where issues of public importance arise: Tsige, at para. 23.

[8] While this case involves a private dispute, I am satisfied that the issue on appeal involves broader considerations that transcend the dispute between the parties and engage with the wider public interest. This appeal raises how trial judges should exercise their discretion when changing the statutory PJI rate for non-pecuniary loss. One of the main issues to be resolved is the extent to which this court’s decision in MacLeod v. Marshall, 2019 ONCA 842, 148 O.R. (3d) 727, applies in the non-pecuniary loss context. This will have potentially broad implications beyond the immediate parties, making it an appropriate appeal for intervention.

Will the Proposed Joint Interveners Make a Useful Contribution Without Doing an Injustice to the Parties?

[9] OTLA is a province-wide association of lawyers who practice personal injury and medical malpractice litigation throughout the Province of Ontario. There is no dispute that OTLA is a well-recognized group with expertise in representing injured Ontarians. Indeed, OTLA is often granted intervention status. I have no hesitation in finding that OTLA is an appropriate intervener with an expertise to contribute to this issue. The real question is whether their proposed position will contribute usefully to the appeal without causing an injustice to the parties.

[10] In their motion materials, OTLA has helpfully and appropriately prepared and filed the draft factum that they propose to file on appeal. This gives a clear view into the position that OTLA wishes to advance on appeal. OTLA seeks to make two main submissions:

a. The party seeking to displace the presumptive five percent PJI rate in the Act must meet a high evidentiary threshold. This threshold is said to take into account a number of factors, including an understanding of compound versus simple interest and the legislative intent of the statutory scheme. OTLA contends that this court’s decision in MacLeod did not replace this high evidentiary threshold. b. Adequate notice must be provided by a party seeking a rate other than the presumptive five percent PJI rate.

[11] Dr. Zaitlen makes a few objections to OTLA’s intervention.

[12] Dr. Zaitlen says that OTLA’s proposed submissions raise new issues on appeal. The appropriate “evidentiary threshold” for a judge to apply a PJI rate other than the statutory one, and the “appropriate notice” for a party seeking to depart from the statutory rate, are said to be new issues that were not before the Superior Court. When pressed in oral argument, it became clear that Dr. Zaitlen’s more significant concern is in relation to the latter issue, the one involving the mechanics around notice. Dr. Zaitlen maintains that if the intervener is permitted to raise these issues, there may well be the need to supplement the record with further evidence, specifically as it relates to the notice issue. He argues that this would require an adjournment of the appeal, which is scheduled to be heard on January 18, 2024.

[13] Dr. Zaitlen maintains that the only proposed submission by OTLA which is properly within the scope of the appeal is the application of this court’s decision in MacLeod, which he says is entirely duplicative of the plaintiffs’ submissions.

[14] Finally, Dr. Zaitlen argues that the duplication concern is magnified because of the close relationship between the plaintiffs and the proposed intervener. Specifically, Dr. Zaitlen highlights that the plaintiffs’ lead counsel sits on the Executive Committee of OTLA.

[15] As it relates to the issue of notice, I agree with Dr. Zaitlen that allowing OTLA to make submissions on this point would improperly expand the scope of appeal. The plaintiffs have not raised a ground of procedural unfairness in their Notice of Appeal. Nor does the factum make arguments on this issue. There is no factual foundation to support a complaint about notice in this case. Nor has one been made. Nor do the trial judge’s reasons opine on the subject of notice. Quite simply, it was not an issue in the court below and has not been made one by the parties to the appeal. Consequently, submissions on the subject of adequate notice, even if OTLA made them at the most general level, would improperly expand the scope of the appeal, would not be useful to the court and would cause prejudice to the parties.

[16] In contrast, OTLA’s proposed submissions on the analytical framework for trial judges when exercising their discretion to change the PJI rate for non-pecuniary losses would provide a useful contribution without causing prejudice to the parties.

[17] This does not expand the scope of the appeal. The proper application of s. 130(2) the Courts of Justice Act is squarely before the court on this appeal. OTLA makes general submissions on the evidentiary threshold required for a judge to depart from the five percent PJI rate. OTLA does not inappropriately seek to introduce new evidence or to weigh in on the evidence raised on appeal. It will not take a position on the correct application of s. 130(2) in this case. Allowing submissions from OTLA on the general operation of s. 130(2) will not require new evidence by Dr. Zaitlen to respond.

[18] Nor are OTLA’s proposed submissions unduly duplicative of the appellant’s submissions. Having reviewed OTLA’s draft factum, I am satisfied that OTLA’s submissions on the evidentiary threshold provide a fresh perspective by focussing on the analytical framework for departing from the five percent PJI rate. This is in contrast to the plaintiffs’ factum, which focusses upon the fact-specific aspects of the appeal.

[19] Nor am I persuaded by Dr. Zaitlen’s argument that the concern over duplication is “magnified” as a result of the plaintiffs’ counsel being associated with OTLA. To be clear, there is no suggestion of actual conflict. Rather, the suggestion seems to be that the fact that the plaintiffs’ counsel is involved with OTLA increases the chances of duplication between the plaintiffs and OTLA. I reject this argument.

[20] The simple fact that counsel to a party is also involved in a legal organization that intervenes in an appeal runs no increased risk of duplication. It is not unusual and, indeed, expected that counsel will engage with legal organizations within their areas of legal expertise. Counsel should be applauded for contributing to legal organizations on a pro bono basis and the law should not develop in a way that would place a chill upon this type of laudable activity. This is not an unusual situation and it is one where we fall back on the strong presumption of professionalism. I have no doubt that the plaintiffs’ counsel’s involvement in OTLA will not interfere with the professional responsibilities of all counsel as they represent their independent clients at the hearing of this appeal.

Conclusion

[21] Bearing in mind the discrete single issue upon which OTLA is granted leave to intervene, they may file an eight-page factum and will be granted a maximum of ten minutes for oral argument. I am satisfied that this will not cause prejudice to Dr. Zaitlen. As OTLA has helpfully provided a draft factum, they will be able to file their finalized factum complying with the terms of intervention in short order.

[22] As OTLA is not expanding the scope or record of the appeal, there is no need for further evidence for the appeal. There is ample time for Dr. Zaitlen to provide a responding factum to OTLA’s submissions should he wish to do so. There is no need for an adjournment of the hearing as there is ample time to accomplish all that must be accomplished well in advance of the hearing.

Disposition

[23] For these reasons, OTLA’s intervention is granted on the following terms:

a. OTLA is granted leave to intervene on the issue of the analytical framework, including the evidentiary threshold, for departure from the five percent statutory PJI rate. For greater certainty, OTLA is not granted leave to make submissions on adequate notice for parties seeking a PJI rate different than five percent. b. OTLA will take the record as it is and will not supplement the record; c. OTLA will make reasonable efforts to avoid duplicating the submissions of the parties; d. OTLA may file a factum of no more than eight pages in length, no later than November 14, 2023; e. The respondent, Dr. Zaitlen, may file a factum of no more than five pages in length, no later than December 11, 2023; f. OTLA is granted a maximum of ten minutes to make oral argument at the hearing of the appeal; and g. OTLA will not be entitled to, nor subject to, any costs of this motion or of the appeal.

“Fairburn A.C.J.O.”