SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 00-1344
DATE: December 3, 2012

RE: Richard Robbs et. al., Plaintiffs

AND:
James Lee, Hotel Dieu Hospital, et. al., Defendants

BEFORE: The Honourable Robert B. Reid

COUNSEL:
G. McKenna, Counsel, for the Plaintiffs

T. Fisher, Counsel, for the Defendant James Lee

T. Maurer, Counsel, for the Defendants Hotel Dieu Hospital, et. al.

HEARD: September 17, 2012

ENDORSEMENT

[ 1 ] In two separate motions heard together, the defendant Dr. Lee and the other defendants as a group seek orders dismissing the action against them for delay.

[ 2 ] This lawsuit arises from the death of Pamela Robbs on June 13, 1999 and alleges negligence by the defendants in their failure to properly monitor her postoperative condition following a ureteroscopy procedure.

[ 3 ] The plaintiffs are the surviving family members of Ms. Robbs.

[ 4 ] The defendant, Dr. James Lee, was the doctor primarily responsible for Ms. Robbs’ care prior to her death. The defendant Hospital employed the other defendants who were attending nurses.

[ 5 ] A defendant who is not in default under the Rules of Civil Procedure may move to have an action dismissed for delay if the plaintiff has failed to restore the action to the trial list within 30 days of it being struck. [^1]

[ 6 ] In August 2008 this action was struck from the trial list and to date it has not been restored.

Issues:

[ 7 ] The issues in these motions are as follows:

a. Are either or both defendants in default such that they are prohibited from bringing the motion(s)?

b. Has there been a delay which is inordinate?

c. Has there been a delay which is inexcusable?

d. Is there a prejudice to the defendants such that there is a substantial risk that a fair trial might not be possible because of the delay?

Conclusion:

[ 8 ] For the reasons set out below, and despite what I consider to be inordinate and inexcusable delay on the part of the plaintiffs, the evidence does not establish a substantial risk that a fair trial might not be possible because the delay and as a result, the motion is dismissed.

Chronology:

[ 9 ] Assessing delay requires a review of the action’s procedural history, which can be summarized as follows:

• June 12, 2000 -- Notice of Action issued.

• February 7, 2002 -- Hospital amends Statement of Defence and Cross-Claim.

• April 22 to July 25, 2003 -- Examinations for Discovery of all parties are conducted.

• July 23, 2005 -- Defendants serve motion for summary judgment, which is initially returnable February 20, 2006, adjourned to July 2006 and ultimately adjourned without a date.

• July 20, 2006 -- Action is listed for trial by the plaintiffs.

• April 17, 2007 -- Judicial pretrial conference is held, and matter is transferred to long trial list.

• August 6, 2008 -- Second judicial pretrial conference is held, and matter is struck from trial list.

• December 9, 2008 -- Defendant Dr. Lee amends Statement of Defence and Cross-Claim.

• March 5, 2009 -- further Examination for Discovery of main plaintiff is conducted.

• December 22, 2011 -- Motion to dismiss for delay by the Hospital et. al . is served, returnable February 14, 2012.

• February 2, 2012 -- Motion to dismiss for delay by Dr. Lee is served, returnable February 14, 2012.

The legal framework

[ 10 ] The general principle of interpretation governing the Rules of Civil Procedure set out in rule 1.04(1) is that the rules should be liberally construed in order to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. As a result, whenever an order is granted dismissing an action for delay, it is obvious that the unsuccessful party is unable to have the action adjudicated in accordance with that principle. As such, dismissal is a severe remedy but is one that is necessary on occasions when it is required to protect the integrity of the civil justice process and to prevent an adjudication on the merits that is unfair to defendant. [^2]

[ 11 ] The basis for exercising discretion to order dismissal under rule 24.01 was recently restated by the Ontario Court of Appeal, endorsing the language of Lord Diplock in House of Lords as follows:

It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. [^3]

[ 12 ] The first type of case described by the Court of Appeal is not applicable here. As to the second type, there must be three characteristics of the delay to justify the dismissal order: it must be inordinate, inexcusable, and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay. [^4]

Are either or both defendants in default such that they are prohibited from bringing the motion?

[ 13 ] The plaintiffs allege that the defendants are in default, and therefore that the defendants are precluded, according to rule 24.01(1), from bringing the motions for dismissal. In support of their position, the plaintiffs allege a default by the Hospital in non-compliance with rule 30.07 which requires that where a party, after serving an Affidavit of Documents, discovers that the affidavit is inaccurate or incomplete, it shall forthwith serve a supplementary affidavit specifying the extent to which the Affidavit of Documents requires modification.

[ 14 ] There is no allegation that the defendant Dr. Lee is in default under rule 30.07 and therefore he faces no impediment bringing this motion.

[ 15 ] During her Examination for Discovery on July 5, 2002, one of the defendant nurses, Ann Fougere described additional medical records compiled in the course of Ms. Robbs’ hospitalization which were not disclosed in the Hospital’s Affidavit of Documents. At various times in her examination Ms. Fougere referred to a “vital signs book” and a “doctor call book”. The Hospital was unable to locate those books.

[ 16 ] No additional request for disclosure was made by the plaintiffs. No undertakings as to the missing documents were provided.

[ 17 ] Since the identity and particulars of the missing books were disclosed under oath in the Examination for Discovery over 10 years ago, I do not consider it reasonable that the technical failure to provide an amended Affidavit of Documents to the same effect constitutes a default which should bar the Hospital and the nurse defendants from bringing this motion.

Has there been a delay which is inordinate?

[ 18 ] In any action, the plaintiff has the obligation to prosecute the claim with reasonable diligence. It is not the defendant’s responsibility to move the case forward. [^5]

[ 19 ] The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the dismissal motion. [^6]

[ 20 ] I have no difficulty in finding that it is inordinate for a negligence action to have continued for over 11 years to the date the motions were served and for over 12 years to the date the motions were heard, particularly where no time was required to clarify the extent of personal injuries. More than four years have passed since the action was struck from the trial list.

Has there been a delay which is inexcusable?

[ 21 ] In order to determine whether the delay was inexcusable, the reasons for the delay must be determined and an assessment made of whether those reasons provide an adequate explanation for the delay. That assessment must include a review of explanations offered for individual parts of the delay as well as the overall delay and the effect of the explanations considered as a whole. [^7]

[ 22 ] The defendants did not suggest that there was an inexcusable delay prior to the examinations for discovery. The six plaintiffs were examined between April and July 2002 as were four defendants. I note that there is no explanation by the plaintiffs for the gap of one year to July 2003 when two more defendants were examined, but to that point it may be assumed that time passed due to the usual hurdles encountered in litigation.

[ 23 ] In the following two years, virtually nothing happened to move the action forward. A summary judgment motion was brought by the defendants in July 2005, initially returnable in February 2006. The motion was required because the plaintiffs had failed to provide an expert report as to the alleged breach by the defendants of the applicable standard of care. Presumably the defendants were attempting to force the plaintiffs to move forward with the case. It was adjourned to July 2006 and eventually was adjourned without a date. The plaintiffs set the action down for trial in July 2006.

[ 24 ] The plaintiffs provided a partial explanation for the delay leading to the summary judgment motion. In February 2005, the plaintiffs’ lawyer having carriage of the matter was appointed to the bench and there was some delay as the file was transferred to new counsel in the same firm. Then the main plaintiff, Richard Robbs, took ill, required surgery and was unable to give instructions as to the handling of the matter until December 2005. In March 2006, the plaintiffs provided an expert report as to the conduct of the Hospital’s nursing staff. Accepting the plaintiffs’ explanation for the delay during that timeframe reduces the unexplained delay to about 18 months from July 2003 to February 2005.

[ 25 ] In due course after the action was set down for trial, the parties were provided with a pretrial conference date of April 17, 2007. The plaintiffs sought an adjournment claiming the need to provide further expert reports. The defendants objected and the pretrial conference proceeded. As a result of representations made by the parties, the pretrial judge assigned the case to the long trial list to be heard in September 2008.

[ 26 ] It does not appear that the plaintiffs took timely steps to secure the anticipated additional expert reports so as to allow for a trial in September 2008. An expert report was served on counsel for the defendants on July 28, 2008. Obviously the defendants had not had an opportunity to secure responding reports prior to the second pretrial conference held on August 6, 2008. At that pretrial conference the case was struck from the trial list since it was not ready to proceed. The regional senior justice directed that the matter could not be relisted for trial until all parties certified that they were ready. There is no explanation for the delay in providing the expert reports and it appears that the plaintiffs did not take reasonable steps to advance the case in the 15 months between the pretrial conferences. Eventually in October 2008 the plaintiffs provided two economic loss reports.

[ 27 ] A continuation of the discovery of the main plaintiff occurred in March 2009. That discovery, originally scheduled for August 6, 2008 was delayed because the defendants were awaiting a further expert report from the plaintiffs.

[ 28 ] In August 2009, counsel for Dr. Lee served a motion to compel the plaintiffs to answer undertakings given in March 2009. The motion was adjourned and by September 2009 undertakings were answered.

[ 29 ] Defendants’ response to the economic loss report was provided in October 2009. At that time the plaintiffs were was not able to certify that they were ready for trial, given the possible need for a responding report. By February 2010 all defendants indicated their willingness to relist the matter for trial making the earliest possible trial date October 2010. Counsel for the plaintiffs indicated that he overlooked that correspondence and, partly as a result of his assistant being away on a leave from October 2010 to October 2011, he gave the matter no further attention. As result, a further 20 months passed. I note that in August 2011, counsel for the Hospital gave notice of his intention to proceed with a motion to dismiss for delay to which the plaintiff made no response.

[ 30 ] In January, 2012, while these motions were pending, the defendant Dr. Lee served a further expert report as to the applicable standard of care. Remarkably, the plaintiffs have taken no steps to secure a response to that report, preferring instead to await the outcome of this motion. As a result, when this motion was argued in September 2012, the parties were still unable to certify that the action was ready for trial. This lack of current readiness, by the way, makes this case quite different from the fact situation in Armstrong v. McCall [^8] where the action had been listed for trial while a third delay motion was pending. In that case, the defendants were criticized for directing their repeated efforts at having the matter dismissed by summary judgment, rather than attempting to expedite litigation process. In this case, the defendants have made every effort to encourage the plaintiffs to proceed, using motions as a last resort.

[ 31 ] In reviewing the detailed history of this litigation, it appears that, except perhaps for the first two or three years following commencement of the claim, the plaintiffs have lacked diligence in pursuing the matter.

[ 32 ] A delay of over 12 years from the Notice of Action to the hearing of the motions is on its face inexcusable and requires an explanation from the plaintiffs that is both reasonable and persuasive.

[ 33 ] The review of the individual components of this case indicates that at best, the plaintiffs have made sporadic efforts to advance the action, most of which have been the result of pressure by the defendants.

[ 34 ] From July 2003 to February 2005, the claim seemed to languish. I accept that the delay over the next 18 months involved a change of counsel, the illness of the main plaintiff and efforts by the plaintiffs to secure a medical report.

[ 35 ] Nothing seems to have happened between the action being set down for trial in July 2006 and the first pretrial conference in April 2007. This was despite the fact that the plaintiffs were aware of the need for further medical reports. Then, faced with an anticipated trial date of September 2008, the plaintiffs appeared to take no steps to secure the necessary reports in a timely way. In effect, there was an unexplained delay between July 2006 and the second pretrial conference of August 2008.

[ 36 ] The plaintiffs did not answer undertakings promptly following the continuation of the examination of the main plaintiff in March 2009, requiring the defendants to bring a motion compelling answers. Although that delay was relatively minor in the context of the overall expanse of the action, it is an example of the pattern of inattention and delay on the part of the plaintiffs that permeates the lawsuit.

[ 37 ] The defendants indicated a readiness for trial in February 2010. In the 20 months that followed, no action was taken by the plaintiffs who simply claim inadvertence of counsel as an excuse. In my view, inadvertence during such a lengthy period is not a convincing explanation, especially given the plaintiffs’ continued inaction following the correspondence from counsel for Dr. Lee in August 2011 giving notice that he intended to bring a motion for dismissal due to delay. The fact that the matter is still not ready for trial because of the plaintiffs’ failure to secure responding expert reports in a timely way adds to the problem.

[ 38 ] The plaintiffs point to the February 2010 date when the defendants were prepared to consent to a listing of the case for trial. They argue that the defendants were apparently not concerned about the delay at that point and therefore that the relevant time period for considering the significance of the delay should be from that point forward. They analogize to the situation in Armstrong v. McCall [^9] where the Court of Appeal noted that on each of two prior summary judgment motions, circumstances justifying a dismissal for delay were not found and therefore the most relevant period for examination as to inordinate and inexcusable delay was the time between the second and third motion. Here it is obvious that the defendants have attempted, over the course of years, to encourage the expeditious prosecution of the claim by the plaintiffs. Numerous letters were sent requesting that appropriate steps be taken to bring the matter trial. Various motions were brought. Unlike the situation in Armstrong , there has never been a judicial determination of the delay issue prior to this motion. The fact that the defendants were prepared, almost three years ago, to have set the matter down for trial does not preclude them from relying on the delay over the entire period of the litigation.

[ 39 ] As a result, I find that there have been unexplained delays totaling at least five years which are inexcusable.

Is there a prejudice to the defendants such that there is a substantial risk that a fair trial might not be possible because of the delay?

[ 40 ] Prejudice can be actual or presumed. The presumption of prejudice occurs when there is inordinate delay after the cause of action arose, coupled with the assumption that memories fade over time. The longer the delay, the stronger the presumption of prejudice. [^10] In the situation of inordinate delay, a defendant does not need to show actual or case specific prejudice to be successful unless the plaintiff rebuts the presumption. The plaintiff can do so by showing that all documentary evidence has been preserved and that the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. [^11]

[ 41 ] The defendant may also demonstrate actual prejudice to show a substantial risk that a fair trial might not be possible.

[ 42 ] In this case, the cause of action arose almost 13 1/2 years ago. The presumption or inference of prejudice is triggered by that inordinate delay. In addition, since the action is not yet ready for trial, a trial could not be conducted before the fall of 2013 at the earliest, assuming the availability of counsel and prompt steps to make the claim trial ready. While it is true that the plaintiff should not be penalized for institutional delay, it is only common sense to consider prejudice to the defendant relative to the time the case will likely take to be reached at trial if permitted to proceed, [^12] in this case almost 14 years after the cause of action arose.

[ 43 ] Two of the defendant nurses are now dead. However, one of the deaths occurred prior to February 5, 2001 and the other occurred on September 11, 2006. Those deaths would have occurred before the action came to trial even absent any inordinate delay in the plaintiffs’ prosecution of the action, although the pool of relevant witnesses is shrinking.

[ 44 ] Medical records are available and have been preserved with the exception of the lost “vital signs book” and “doctor call book”. The loss of those documents, which occurred sometime before the July 5, 2002 Examination for Discovery of Ms. Fougere, is unrelated to the subsequent delay.

[ 45 ] The Hospital led evidence that one of the defendant nurses is currently on a medical leave of absence from work which may affect her ability to give evidence at trial. However, no particulars were provided to support that assertion and therefore I cannot give it any substantial weight.

[ 46 ] Since there is no evidence of actual or case specific prejudice, the main issue becomes whether the plaintiffs have rebutted the presumption of prejudice that arises from the delay.

[ 47 ] The plaintiffs argue that fading memories should not be a basis of prejudice since examinations for discovery occurred for the most part many years ago in 2002 and 2003. Since the parties’ memories were fresher then, the discovery transcript can be used to refresh those memories at trial.

[ 48 ] I have already made reference to Armstrong [^13] and Langenecker [^14] , two recent authorities from the Ontario Court of Appeal on dismissal for delay. Both involved medical malpractice actions and substantial periods of delay. Each resulted in a different conclusion based on the facts: the Court of Appeal upheld the dismissal of the Langenecker action and reversed the dismissal in Armstrong . A key factual distinction relates to the issue of presumed prejudice. In Armstrong , the discovery testimony of the defendant doctors was available to assist in their recollection of events, supported by other written records. The same situation applied in Langenecker , although there the defendants identified potential non-party witnesses whose recollections had not been recorded in contemporaneous notes or examinations for discovery and which could well have been lost through the passage of time.

[ 49 ] Here, the defendants have relied entirely on the presumed prejudice arising from fading memories. The plaintiffs have responded by referring to the availability of contemporaneous notes and the discovery transcripts to assist in refreshing the parties’ memories. No additional evidence has been provided by the defendants about the need to call other witnesses and as noted, there is no case specific prejudice.

[ 50 ] As a result, and somewhat reluctantly, I must dismiss the defendants’ motions. However, this decision should not be taken to preclude a further motion by the defendants if there is more delay by the plaintiffs, especially if there is specific evidence of testimony that might well be lost owing to the passage of time. I do not have sufficient information to impose a timetable on the parties, but expect that the plaintiffs will do whatever is necessary to expedite the preparation and service of any further expert report(s) so that the parties can certify readiness for trial and have the matter returned to the long trial list without further delay. As well, in the event that the plaintiffs are successful at trial, I expect that the case chronology and these reasons may assist the defendants in arguing for a suspension or reduction of any claim for prejudgment interest.

Costs:

[ 51 ] If the parties are unable to resolve the issue of costs of this motion consensually, I am prepared to receive written submissions according to the following timetable which I have extended given the upcoming holiday season: the plaintiffs are to provide to the defendants their bill of costs together with brief written submissions within two weeks of this date. The defendants are to deliver their response to the plaintiffs within a further two weeks. The submissions by both parties and any reply submissions by the plaintiffs are then to be filed with the court by no later than six weeks of this date.

Reid J.

Date: December 3, 2012

[^1]: Rule 24.01(1) (e), R.R.O. 1990, Reg. 194 as amended
[^2]: Langenecker v. Sauvé , 2011 ONCA 803 at para. 3
[^3]: Ibid ., at para 5 citing Allen v. Sir Alfred McAlpine & Sons Ltd. , [1968] 1 All E.R. 543 (Eng. C.A.) at 556
[^4]: Ibid., at para. 7
[^5]: Wellwood v. Ontario Provincial Police , 2010 ONCA 386 , [2010] O.J. No. 2225 (C.A.) at para. 48
[^6]: Langenecker, supra ., at para. 8
[^7]: Ibid. , at paras. 9-10
[^8]: (2006) 2006 17248 (ON CA) , 213 O.A.C. 229 (Ont. C.A.) at paras. 26 & 36
[^9]: Ibid. ., at para. 20
[^10]: Tanguay v. Brouse , 2010 ONCA 73 , at para. 2
[^11]: Armstrong v. McCall , supra , at para. 11
[^12]: Ibid ., at para. 12
[^13]: Ibid.
[^14]: Supra.