RULING ON MOTION

KINGSTON COURT FILE NO.: CV-11-408-00
DATE: 20121017
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTOPHER STEVEN EMBERLEY, Plaintiff

AND:
KINGSTON GENERAL HOSPITAL, THE RELIGIOUS HOSPITALLERS OF SAINT JOSEPH OF THE HOTEL DIEU OF KINGSTON, SOUTH EAST COMMUNITY ACCESS CENTRE, MARY-ANNE HILLS-LEACH, HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, DR. ROCCO VINCENT GERACE, FRONTENAC MEDICAL ASSOCIATES, DRS. JOHN MARC RAPIN, JEFFERY DAVID YACH, LUIGI ANTHONY BATTEL and VERONICA MARIE GIOVINA LEGNINI, Defendants

BEFORE: QUIGLEY J.

COUNSEL:
Christopher Steven Emberley, self-represented

Anika Clark, Counsel for the individual defendants Dr. John Marc Rapin, Dr. Jeffery David Yach, Dr. Luigi Anthony Battel and Dr. Veronica Marie Giovina Legnini

Kirsten Crain, Counsel for Kingston General Hospital, the Religious Hospitallers of Saint Joseph of the Hotel Dieu of Kingston, South East Community Access Centre and Mary-Anne Hills-Leach

Carina Lentsch, Counsel for the College of Physicians and Surgeons and for Dr. Rocco Victor Gerace

Shama Ansari, Counsel for the Province of Ontario

HEARD: June 28, 2012

RULING ON MOTION

[ 1 ] This is a motion brought by the plaintiff for an Order:

(a) granting leave to amend the Notice of Action;

(b) granting leave to extend the time to file the Statement of Claim to 30 days from the day this motion is heard; and

(c) granting leave to extend the time to serve all parties the Notice of Action and Statement of Claim to 180 days from the day this motion is heard.

Background

[ 2 ] Anika Clark was the only counsel who opposed this motion. All other counsel took no position on this motion.

[ 3 ] However, prior to this decision being released, the Court received representations from Rita Bambers, counsel for Her Majesty the Queen in Right of the Province of Ontario, submitting that counsel for the Crown should have opposed the plaintiff’s motion on the basis that it had never been served with a Notice of Action in accordance with Section 7(1) of the Proceedings Against the Crown Act, RSO 1990, c. P.27.

[ 4 ] This action purportedly involves allegations of medical negligence relating to the injuries the plaintiff sustained in a bicycle accident on August 12, 2009. The Notice of Action was issued August 12, 2011. The plaintiff did not take any steps to serve and file a Statement of Claim until he received an Administrative Dismissal Order from the court in early 2012. In response to that Dismissal Order, the plaintiff commenced his Notice of Motion on March 29, 2012.

[ 5 ] I note that although seeking leave to serve and file a Statement of Claim, the plaintiff on the hearing of this motion still did not have a draft Statement of Claim with him to inform the defendants of his claim against them.

Issues

[ 6 ] The issues arising in this motion are:

1. Should the plaintiff be granted leave to extend the time to file his Statement of Claim;

and

2. Should the plaintiff be granted leave to extend the time to serve the Statement of Claim.

Plaintiff's Position

[ 7 ] The plaintiff relied on his own affidavit dated March 29, 2012. The plaintiff's basic position on this motion is that because of:

(a) his lack of sophistication in matters involving law suits,

(b) his misinterpretation of the phrase “leave of the court”, and

(c) because of his emotional instability at the time in which the Rules of Civil Procedure required him to file his Statement of Claim,

he misinterpreted his obligation to file a Statement of Claim within the time stipulated in the Rules .

[ 8 ] In the plaintiff's submissions to the court on this motion, he added further that he was evicted from his Arnold Street residence in Kingston, Ontario in the spring of 2012, which caused him to lose his documentation supporting this motion.

The Law

[ 9 ] Rule 14.03(3) provides that the plaintiff must file a Statement of Claim within 30 days after the Notice of Action is issued. It provides further that no Statement of Claim shall be filed thereafter except with the written consent of the defendant(s) or with leave of the court obtained on notice to the defendant(s).

[ 10 ] Rule 3.02(1) allows for the extension or abridgement of any time prescribed by these Rules, on such terms as are just.

[ 11 ] In deciding whether to grant such an extension, the court must consider whether the extension would advance the just resolution of the dispute, without prejudice or unfairness to either party.

[ 12 ] The plaintiff bears the onus to demonstrate that the defendant(s) will not be prejudiced by the requested extension. Such prejudice must be caused by the delay itself. However, the defendant(s) may rely upon a presumption of prejudice created by the expiry of the limitation period to oppose a plaintiff's request for a time extension. It appears that the limitation period against the individual doctors may have expired, if not at the time of Notice of Action being filed, certainly by the date of this hearing.

Decision

[ 13 ] I find in these unique circumstances that the plaintiff has satisfied the court that an extension would advance the just resolution of the dispute, without prejudice or unfairness to either party, and, accordingly, I am extending the time for the plaintiff to file the Statement of Claim for 30 days after the date of this decision.

[ 14 ] A further extension for serving the Statement of Claim is granted for a period of 90 days from the date of filing the Statement of Claim.

[ 15 ] I am not making any determination as to the validity of the individual doctor defendants' claim that the limitation period may have expired. Of course, the defendants are open to advance that defence in response to any Statement of Claim the plaintiff may file.

[ 16 ] Again, I am not making any determination of whether the plaintiff has complied with Section 7 (1) of the Proceedings Against the Crown Act , RSO 1990, and, accordingly, the defendants may advance that defence in response to any Statement of Claim the plaintiff may file.

Costs

[ 17 ] The costs of this motion will be reserved to the trial judge.

MR. JUSTICE MICHAEL J. QUIGLEY

Date: October 17, 2012

Emberley v. KGH et al, 2012 ONSC Number 3899

COURT FILE NO.: CV-11-408-00

DATE: October 17, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Christopher Steven Emberley Plaintiff - and – Kingston General Hospital, The Religious Hospitallers of Saint Joseph of the Hotel Dieu of Kingston, South East Community Access Centre, Mary-Anne Hills-Leach, Her Majesty the Queen in Right of the Province of Ontario, Her Majesty the Queen in Right of Canada, The College of Physicians and Surgeons of Ontario, Dr. Rocco Vincent Gerace, Frontenac Medical Associates, Drs. John Marc Rapin, Jeffery David Yach, Luigi Anthony Battel and Veronica Marie Giovina Legnini Defendants RULING ON MOTION Quigley, J.

Released: October 17, 2012