CITATION: Gupta v. Dr. Venka, 2022 ONSC 754
COURT FILE NO. CV-16-545282
DIVISIONAL COURT FILE NO.: 369/21
DATE: 20220210
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MANJU GUPTA, Appellant (Plaintiff)
AND:
DR. N.E. VENKA, also known as DR. NINA VENKATARANGAM, DR. CATHERINE OWEN, DR. SHAWN J. SOON, THE SCARBOROUGH HOSPITAL, NURSE GYDA TALAVERA, NURSE NARMIN MALIK-ABBASOVA, AND NURSE MARY ALCANCE, Respondents (Defendants)
BEFORE: Copeland J.
COUNSEL: Davies Bagambiire and Robert Perron, for the Appellant
Dorothy E. Charach and Natalie V. Kolos, for the Respondents, Dr. Venkatarangam, Dr. Owen, and Dr. Soon
Victoria Cistrone, for the Respondents, The Scarborough Hospital (Scarborough Health Network), Nurse Gyda Talavera, Nurse Narmin Malik-Abbasova, and Nurse Mary Alcance
HEARD at Toronto (by videoconference): February 8, 2022
ENDORSEMENT
[1] The appellant (plaintiff), Ms Gupta, appeals from a decision of Master McAfee (now Associate Justice McAfee) dated January 6, 2020, dismissing her motion for leave to extend time to file a statement of claim, and for an order extending the time within which to serve an amended notice of action and statement of claim.
[2] The underlying action is a claim of medical negligence. I will not summarize the background, as it is fully summarized in the Associate Judge’s reasons for decision.
[3] The appellant raises three grounds of appeal, which I list in the order I address them in this endorsement:
(i) Did the Associate Judge err in finding that there was not a reasonable explanation for the appellant’s delay?
(ii) Did the Associate Judge err in finding that the respondents would suffer prejudice if the extension were granted?
(iii) Did the Associate Judge err in holding that fact that the appellant intentionally instructed her lawyer in or about February 2016 to stop working on her case until sometime in November 2017 was determinative of the motion?
Standard of Review
[4] The standard of review on appeals from a decision of an associate judge is the same as the standard applicable to appeals from a decision of a judge of this court. On questions of law, the standard of review is correctness. On questions of fact and mixed fact and law, the standard of review is palpable and overriding error, unless there is an extricable question of law: Zeitoun v. Economical Insurance Group (ONSCDC), affirmed 2009 ONCA 415 at para. 1; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-18; 26-37.
[5] The issues raised by the appellant are issues of fact and mixed fact and law, with two exceptions. First, part of the error the appellant alleges in relation to the Associate Judge’s consideration of the issue of prejudice to the respondents is the submission that the Associate Judge set the legal test in relation to prejudice too low. That is a question of law, and reviewable on the correctness standard.
[6] Second, the appellant alleges errors of law in the holding by the Associate Judge that intentional delay by the appellant was determinative of the motion. In particular, the issues of whether intentional delay by a plaintiff is determinative, or simply a factor to be considered in all of the circumstances, and whether the delaying conduct by a plaintiff must be more than just intentional to be “contumelious” are questions of law and reviewable on the correctness standard.
Did the Associate Judge err in finding that there was not a reasonable explanation for the appellant’s delay?
[7] The appellant submits that the Associate Judge misapprehended evidence regarding the appellant’s explanation for the delay, failed to put sufficient weight on the appellant’s reasons for the delay, and committed palpable and overriding error in finding that the appellant did not have a reasonable explanation for the delay. In particular, the appellant submits that the Associate Judge misapprehended the evidence in relation to the appellant’s health during the relevant time periods, the financial constraints on her, the impact of her immigration status, and erred in holding that her inability to obtain an expert opinion did not justify her delay.
[8] I reject this submission. I am not persuaded that the Associate Judge misapprehended the evidence. The Associate Judge considered all of the proposed explanations for the delay that the appellant raises in her appeal. The Associate Judge made factual findings that were reasonably open to her on the record (see Reasons for Decision at paras 17-27). The appellant’s complaints about the Associate Judge’s assessment of the evidence are a request for this court to reweigh the evidence. That is not this court’s role on appeal. I find no palpable and overriding error in the Associate Judge’s conclusion that the appellant did not provide a reasonable explanation for the delay.
Did the Associate Judge err in finding that the respondents would suffer prejudice if the extension were granted?
[9] The appellant submits that the Associate Judge erred in law by applying too low a test in relation to the risk of prejudice to the defendants. Relying on the decision of Armstrong v. McCall (ONCA) at paras. 11-12, the appellant submits that the level of prejudice required is a “substantial risk that a fair trial will not be possible for the defendant”. I note that the context in Armstrong was a defence motion to dismiss for delay. As a result, the onus in that case was on the defendants with respect to showing prejudice. The appellant in this case does not take issue with the proposition that in the context of seeking to extend time, she bore the onus to show lack of prejudice. The issue she raises is about how high or low the threshold for prejudice is. The appellant submits that the Associate Judge used a threshold of whether it would be unfair to the respondents to allow the plaintiff to proceed with the claim, and submits that this is a different threshold than the one enunciated in Armstrong.
[10] I reject this submission. The Associate Judge was not required to use specific words, like a magic incantation, in describing the concept of prejudice. In one of the leading Court of Appeal authorities on the approach to extensions of time to serve a statement of claim, Chiarelli v. Wiens at para. 12, Laskin J.A. adopted a formulation from an earlier Court of Appeal decision that used the language of “prejudice or unfairness” and “will not prejudice the defence”. Chiarelli is also clear that the assessment of prejudice is a very fact-specific exercise: Chiarelli at para. 17.
[11] I find that the Associate Judge applied the correct legal test. At paragraph 17 of her reasons, she described that standard as whether the respondents would “suffer prejudice or unfairness”, and cited relevant case law, including Chiarelli. At paragraph 31 she found that the appellant’s delay had “put the defendants’ ability to defend this action at risk”. And at paragraph 42, in summarizing her conclusions, she held that it would be “unfair to the defendants” to allow the claim to proceed.
[12] I find that these statements show that the Associate Judge applied the correct legal standard to assessing prejudice. The language she used to describe the test for prejudice is essentially the same as the language used in Chiarelli. Further, the types of prejudice that the Associate Judge referred to in her analysis at paragraphs 29-40, are well within the types of prejudice discussed in the caselaw, including loss of memory over time, and inability to investigate the circumstances alleged in the claim in a timely way compounding issues of loss of memory: Armstrong at para. 12; Chiarelli at para. 10.
[13] The appellant further submits that the Associate Judge committed palpable and overriding error in finding that the respondents would suffer prejudice if the extensions of time were granted.
[14] I disagree. This is ultimately a factual finding by the Associate Judge. The Associate Judge considered the relevant evidence, and concluded that the respondents would suffer prejudice if the extensions of time were granted. The finding of prejudice by the Associate Judge was based on considering all of the circumstances, including the length of the delay, the evidence of the respondents detailing the nature of the prejudice, the nature of the issues raised in the claim, and potential evidentiary issues linked to the delay considered in the context of the nature of the claims advanced.
[15] With respect to the length of the delay, the Associate Judge found as a fact that the physician respondents first received notice of the claim in January 2019, and that hospital and nurse respondents first received notice of the claim in December 2018 (Reasons for Decision at paras. 29-30). These time frames were more than two years after the expiration of the limitation period and in the range of four years since the events at issue in the claim.
[16] Further, the Associate Judge considered the evidence of the respondents about the nature of the prejudice caused by the delay. This was not a case where there was a bare assertion of prejudice by the respondents with no evidentiary basis (as discussed in Chiarelli at para. 14, and Lyman v. Chan, 2018 ONSC 4037 at para. 26). In this case, the respondents provided detailed evidence of the prejudice caused by the delay. The Associate Judge considered that evidence in the context of the record as a whole, and found as a fact that there would be prejudice if the extension were granted. The Associate Judge explained her reasons for making these findings with respect to each set of respondents (Reasons for Decision at paras. 31-40).
[17] The appellant’s arguments on appeal are an invitation for this court sitting on appeal to reweigh the evidence and reassess the factual findings by the Associate Judge. I find no palpable and overriding error in her findings on this issue.
[18] My findings that the Associate Judge did not err in finding that the appellant had not shown either a reasonable explanation for the delay, or that the requested extensions would not cause prejudice or unfairness to the respondents are sufficient to dispose of this appeal. These grounds, in particular the finding of prejudice to the respondents if the extension were granted, were sufficient for the Associate Justice to dismiss the motion: Chiarelli at paras. 10, 12. Thus, it is not necessary for me to consider the third ground of appeal raised by the appellant to decide this appeal.
[19] For reasons that I will explain, I find that this is not an appropriate case for the court to consider the legal principles in relation to intentional delay by a plaintiff, where considering that issue is not necessary to dispose of this appeal.
Did the Associate Judge err in holding that the fact that the appellant intentionally instructed her lawyer to stop working on the case in February 2016 until November 2017 was determinative of the motion?
[20] The appellant submits that the Associate Judge made two errors of law in finding that the appellant’s intentional delay of the action was alone determinative of the motion. First, the appellant submits that that the case law relied on by the Associate Judge in relation to intentional delay by a plaintiff being determinative requires a finding that a plaintiff’s conduct is both intentional and contumelious. The appellant submits that the Associate Judge erred by failing to consider whether the appellant’s conduct was contumelious. Second, the appellant submits that even where delay by a plaintiff is intentional, this is only a factor to be considered in all of the circumstances, and not determinative.
[21] I have reviewed the authorities put before the court by the appellant and the respondents on both of these issues. There is some conflict in the caselaw regarding how the test is expressed and whether intentional delay by a plaintiff is determinative, standing alone.
[22] On the first issue (whether contumeliousness is an added requirement), some decisions addressing the issue of intentional delay by a plaintiff speak to the concept of “intentional and contumelious” delay by a plaintiff as requiring not only a deliberate decision by a plaintiff, but also a decision that is “offensive to the administration of justice” or displaying an “insulting display of contempt”, as the appellant contends.
[23] However, there are also decisions supporting the respondents’ contention that the concept of intentional delay by a plaintiff focuses on drawing a distinction between cases where delay is caused by an intentional decision of the plaintiff themself not to proceed for a period of time, and cases where delay is caused by actions of counsel or some other cause besides a deliberate choice by the plaintiff (often actions or causes which a plaintiff is unaware of). In the latter case, where the cause of the delay is not a deliberate decision by a plaintiff, a court must balance the equities of the explanation for the delay and whether there is prejudice to a defendant. But where a plaintiff deliberately chooses to delay, they take the risk that they will not get discretionary relief from the court, and have to live with the consequences.
[24] Cases which reflect one or the other of these approaches include: Armstrong at para. 11; Saikaley v. Commonwealth Insurance co. et al (ONHCJ); Gheslaghi v. Kassis (ONSC) at paras. 11-14; Pagliuso v. Primerica Financial Services Ltd., 2019 ONSC 460 at paras. 17-24, affirmed 2019 ONCA 778; Elltoft v. Mann, [2001] O.J. No. 1521 at paras. 21-22 (S.C.J.).
[25] On the second issue, although trial level decisions support the proposition that intentional delay by a plaintiff, standing alone, can be determinative of a motion to extend time to serve a statement of claim, recent Court of Appeal authority is less categorical. The trial level decisions of Pagliuso (at paras. 19 and 24) and Elltoft (at paras. 19-22) treat it as determinative. But in the brief decision of Pagliuso upholding the refusal of the extension of time, the Court of Appeal used less categorial language, describing intentional delay by a plaintiff as “a relevant factor” (at para. 2). See also McGroarty v. CIBC Mellon Trust Company, 2012 ONCA 241 at para. 14.
[26] In light of these conflicting currents within the caselaw on this issue, as it is not necessary to resolve the legal issues of the correct approach to the meaning of “intentional and contumelious” delay by a plaintiff and whether such delay is determinative of a motion to extend time to serve a statement of claim in order to decide this appeal, I find that the question is better left to a case where the issue could affect the result.
Conclusion
[27] The appeal is dismissed. The parties have reached an agreement on costs.
Copeland J.
Date: February 10, 2022