COURT FILE NO.: CV-10-00404678-0000

MOTION HEARD: 2012-01-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jessie Kay, Robert Kay, Kimberley Perrault-Ramsey,
personally and as a Litigation Guardian for
Brianne Ramsey and Tyler Ramsey, Leigh Recker,
personally and as a Litigation Guardian for Jacob Recker,
Shauna McAlpine personally and as a Litigation Guardian
for Alexis McAlpine and Kayla Recker, Plaintiffs

And

Dr. Andrea Bezjak, Dr. Sayad Behzad Banihashemi,
Dr. Marilyn Anne Keller and the University Health Network
operating as Princess Margaret Hospital, Defendants

BEFORE: Master Joan Haberman

COUNSEL:
MacFarlane, B. For the moving parties, the plaintiffs
Baron, E.J. for doctors Bezjak and Banihashemi
Spotswood, J. for Dr. Keller
Naido, K. for the University Health Network

REASONS FOR DECISION

Master Haberman :

[ 1 ] The primary relief sought by way of this motion is an order, setting aside the registrar’s order of August 30, 2011, whereby this action was administratively dismissed for delay.

[ 2 ] Having reviewed the materials and heard the submissions of counsel, I am of the view that the dismissal order should be set aside.

[ 3 ] The plaintiffs also sought an extension of the time for service of the statement of claim. In view of my having set aside the dismissal order, this, too, is now appropriate.

[ 4 ] Finally, the plaintiffs seek the appointment of a litigation administrator for Kay, on the basis that the events that gave rise to this litigation have rendered her incapable of instructing counsel. Based on the poor evidentiary record filed for that aspect of the motion, I held that I am unable to grant that aspect of the relief sought. I therefore dismiss this aspect of the motion without prejudice.

THE ACTION

[ 5 ] The motion arises in the context of a motion for medical malpractice. It is alleged that the plaintiff, Jessie Kay, was admitted to the Princess Margaret Hospital on June 5, 2008 for management of lung and brain lesions. She was placed under the care of doctors Bezjak and Banhashemi, who concluded that the lesions had been caused either by infectious-related abscesses or by cancerous tumours.

[ 6 ] Kay underwent a number of investigative tests to assess which diagnosis was the more likely, including to an MRI of her brain, on June 6, 2008. The results of the MRI were interpreted by Dr. Keller. Dr. Keller reported that the MRI revealed four metastatic lesions in the brain.

[ 7 ] In view of Dr. Keller’s report, it is alleged that Dr. Bezjak and/or Dr. Banihashemin administered or directed the administration of a whole brain radiation treatment to Kay’s brain on June 10, 2008.

[ 8 ] The following day, the MRI results were reviewed again, this time by Dr. Yu who is not a defendant in this action. Dr. Yu concluded that the MRI revealed multiple brain abscesses, not cancerous tumours, and Drs. Bezjak and Banihashsemi arranged a consultation for Kay with an infectious decease specialist later that day. She was transferred out of the defendant hospital; to another facility where she was treated for her abscess on June 11.

[ 9 ] It is alleged that the incorrect diagnosis of Kay’s brain lesions and the subsequent inappropriate use radiation resulted in profound brain damage secondary to necrosis of brain tissue. It is further alleged that this damage has changed Kay from a previously active, healthy and energetic woman to one with the intelligence of a child.

HOW WE GOT HERE

Boghosian’s evidence

[ 10 ] The action was started by statement of claim, issued on June 10, 2010. Kay’s counsel at the time was David Boghosian, who she retained in January 2009.

[ 11 ] In his supporting affidavit, Boghosian states that upon being retained, he undertook a medico-legal investigation into what he referred to as the complex issues of liability, causation and damages in the case .

[ 12 ] Boghosian states that in June 2010, even before he issued the claim, (which he did on the two- year anniversary of the events leading to the suit), he was advised that his clients were already contemplating a change of counsel. As a result, he took no steps to serve the claim, pending further notice from the clients as to who would act for them going forward.

[ 13 ] Bohghosian does not state that he informed Kay and her family that this was how he had decided to approach the matter or that her claim had to be served within 6 months of it having been issued. There is also no evidence that he advised them he had to know their position by a firm date. There is therefore no evidence to suggest that they were aware that they had limited time within which decide whether to retain new counsel and, if so, to arrange for a new retainer.

[ 14 ] In August 2010, around two months after the claim was issued, Boghosian was contacted by Duncan Embury of Torkin Makes LLP. Embury was calling to say he would be meeting with Kay’s daughter, Ms. Recker.

[ 15 ] Mr. Boghosian states in his affidavit that it was through inadvertence that he never had a confirmatory conversation with Embury regarding who would take responsibility for serving the claim or for ensuring compliance with the timelines prescribed by the Rules. It seems Boghosian also failed to enter the deadline for service in his bring forward system.

[ 16 ] Once the clients advised that they were contemplating retaining new counsel, Boghosian appears to have done little. He simply assumed that new counsel would serve the claim, though it seems he never told Embury or the clients that the claim had not been served.

[ 17 ] Negotiations ensued in the fall of 2010 around issues surrounding the release of the Kay file.

[ 18 ] Boghosian states that in mid-December, he received a notice from the court indicating that the action would be “dismissed for delay”, as no defence had been filed or action taken by him to bring the proceeding forward. In fact, the action was not dismissed for delay – it was dismissed as abandoned, under Rule 48.15 as no defence had been filed and the action had not otherwise been disposed of.

[ 19 ] Even then, Boghosian did not phone Embury. Rather, he sent him the notice on December 16, 2010. He indicates in his evidence that he did not send it to the clients because he sent it to Embury. Having dropped the ball, one would have expected Boghosian to own up to his omission and to inform the plaintiffs directly and immediately. They were, at that time, still his clients, regardless of their efforts to retain new counsel, as he had taken no steps to end the retainer. This is something that Boghosian appears to have lost sight of.

[ 20 ] Once again, Boghosian made assumptions without foundation or confirmation, which he attributes, again, to inadvertence. He says in his affidavit that he presumed Embury would:

resolve any irregularity relating to the service of the claim, or the Notice of Action Dismissal by the Registrar. As such I did not diarize the dismissal date set out in the notice of the Registrar.

[ 21 ] There is no evidence to suggest that Boghosian provided Embury with a copy of the pleading so that the latter could take steps to have it served. There is therefore no apparent basis for his assumption that Embury would deal with service and the notice of action dismissal.

[ 22 ] Boghosian was cross-examined on his affidavit and his responses provided at that time became the focus of the defence theory that there was actual solicitor’s negligence rather than merely inadvertence at play here.

[ 23 ] In large part, it was the following passage that they relied on:

Q: but you told me you had sent previous aspects of the file prior to that. And I’m asking you what your expectation was. You’re taking the position that the notice of change of solicitors didn’t happen until January 26 th ...

A: Okay. But you’re attributing...you have a mistaken assumption, which is that I was constantly turning my mind to who’s going to serve the Statement of Claim, and who’s going to deal with this, when in fact I was not turning my mind to that at the time, certainly not service of the claim.

So it’s just something that was lost in the shuffle. And so it’s not like I’m calculating who’s going to do this, because it wasn’t quite frankly on my mind.

Q: you appreciated when you got the notice that this was a potentially fatal event for the piece of litigation that was the subject of this client, right? Being dismissed?

A: Well, they can be set aside. It’s not the end of the world. It’s not like missing a limitation period, and neither is late service of the claim . They’re routinely set aside .

[ 24 ] While Boghosian is correct, in that orders dismissing actions as abandoned are regularly set aside when they proceed on consent, an order to set aside the dismissal order does not always proceed in that manner. Both defence counsel and this court find Boghosian’s somewhat cavalier attitude troubling and it appears it was that attitude that led to the doctors maintaining their opposition to the relief sought. On the basis of this passage, they urged me to find that he was negligent and that the dismissal order should therefore not be set aside.

... (continues exactly as provided through paragraph [119]) ...

Master Haberman

Date: 2012-02-22