Sara Megan Kushner

The plaintiffs in a long-standing medical malpractice action sought an adjournment of an 8-week jury trial, scheduled to commence April 15, 2019, due to a recent breakdown in counsel-client relationship and subsequent change of solicitors.

The defendants opposed the adjournment, emphasizing the age of the action, extensive trial preparation, and the significant delay a new trial date would entail.

The court, while expressing reluctance and noting that the change of counsel at the eleventh hour did not constitute an "exceptional circumstance" under the Toronto practice direction, ultimately granted the adjournment on terms.

This decision was influenced by the complexity of the medical negligence case and the involvement of a party under disability, necessitating new counsel sufficient time to review the file and address critical issues like Medicare and Medicaid.

The defendant physicians brought a motion for summary judgment arguing that a medical negligence claim arising from treatment that preceded a patient’s death from necrotizing fasciitis was statute-barred under the one‑year limitation period in s. 89 of the Regulated Health Professions Act.

The estate argued that the limitation period did not begin to run until a medical expert later reviewed the records and identified specific errors in treatment.

The court held that discoverability required knowledge of material facts establishing potential negligence, which in complex medical cases may require expert interpretation of medical records.

Because the plaintiff only obtained those material facts after receiving an expert analysis of the records, the action was commenced within the applicable limitation period.

The motion for summary judgment was dismissed.