NEWMARKET COURT FILE NO.: CV-09-093436-00

DATE: 20130905

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MARY ELIZABETH TARSITANO and LAURA TARSITANO and EMMA TARSITANO, a minor by her Litigation Guardian, Mary Elizabeth Tarsitano

Plaintiffs

– and –

DR. HAROLD PAUL DRUTZ and MOUNT SINAI HOSPITAL

Defendants

H. Cox-Kikkajoon, for the Plaintiffs

M.J. Graham, for the Defendant, Dr. Harold Paul Drutz

HEARD: August 27, 2013

Reasons for Decision

DITOMASO J.

[1] The plaintiffs move for an order extending the time for service of the Statement of Claim nunc pro tunc The Defendant, Harold Paul Drutz (“Dr. Drutz”) opposes this motion and requests that it be dismissed.

OVERVIEW

[2] Dr. Drutz is a physician and urologist. In June of 2002, he performed a surgical procedure on Mary Elizabeth Tarsitano (“Ms. Tarsitano”). Five years following the surgery, in March of 2007, Ms. Tarsitano saw another urologist, Dr. Victor Mak. Dr. Mak allegedly discovered that some tape from the previous surgery was loose inside Ms. Tarsitano’s bladder and “stones” had formed on it. Ms. Tarsitano had discovered a potential claim against Dr. Drutz in relation to the surgery in March 2007.

[3] On August 12, 2008, Dr. Drutz received a letter from the plaintiffs’ lawyer, Mr. Howe. The letter contained the following information:

(a) The lawyer had been retained by Ms. Tarsitano “with respect to a litigation matter”; and

(b) A copy of Dr. Drutz’s complete chart for Ms. Tarsitano was being requested, pursuant to an authorization for release signed by her.

[4] The letter did not advise Dr. Drutz that the “litigation matter” in question was a claim by Ms. Tarsitano against him. The letter made reference to “an incident”. It did not specify what the incident was. The letter did not advise Dr. Drutz that Ms. Tarsitano would commence an action against him. He was not put on notice of the plaintiffs’ claim against him at that time.

[5] Rather, on the eve of the expiry of the applicable limitation period in relation to the plaintiffs’ claim against Dr. Drutz, the Statement of Claim was issued on February 27, 2009.

[6] On or about May 5, 2010, eight months after the expiry of the six month period for service of the Statement of Claim prescribed by Rule 14.08(1) of the Rules of Civil Procedure, the plaintiffs served Dr. Drutz with the Statement of Claim. According to the plaintiffs, they failed to serve Dr. Drutz within the time prescribed by the rules because they were waiting to obtain an expert medical opinion as to the viability of the plaintiffs’ claim against Dr. Drutz.[^1]

[7] At the time that Dr. Drutz reviewed the Statement of Claim in May 2010, he suspected that any complications and damages allegedly experienced by Ms. Tarsitano were attributable to problems with the tape.

[8] On or about May 12, 2010 a law clerk on behalf of Dr. Drutz’s lawyer, Mr. Paul Craze, promptly sent the plaintiffs’ lawyer a letter to advise that the deadline for service of the Statement of Claim had expired and that an order of the court extending the time for service would be required. No response was received.

[9] Dr. Drutz’s lawyer, Mr. Bryn Gray, followed up with the plaintiffs’ lawyers by telephone on September 13, 2010 and September 17, 2010 to inquire as to whether the plaintiffs intended to obtain an order to extend the time for service and pursue this action. No response was received.

[10] On or about September 29, 2010, Dr. Drutz’s lawyer sent the plaintiffs’ lawyer another letter to advise that since he had received no response to his correspondence, he would continue to treat service of the Statement of Claim as invalid. He also asked the plaintiffs’ lawyer to contact him if the plaintiffs intended to bring a motion seeking to extend the time for service of the Statement of Claim. Again, there was no response.

[11] On or about January 13, 2011, Dr. Drutz’s lawyers contacted the Newmarket court by telephone to inquire about the status of this action. The court advised that the only two documents in the Court file were the Statement of Claim and a litigation guardian’s affidavit. It had been nearly 23 months since the Statement of Claim had been issued and the requisite order extending the time for service of the Statement of Claim had not been obtained by the plaintiffs. Consequently, Dr. Drutz and his lawyers concluded that the plaintiffs did not intend to pursue this action. Instructions were obtained and Dr. Drutz’s lawyers closed their file for this matter on or about May 3, 2011 more than two years after the Statement of Claim had been issued and a year after Dr. Drutz had been served.

[12] Thereafter, Dr. Drutz and his lawyers did not receive any further correspondence or any communications from the plaintiffs or the plaintiffs’ lawyer until February 20, 2013 when the motion record with respect to this motion was served. The plaintiffs’ had failed to commence a motion for an order extending the time for service until nearly four years after the Statement of Claim was issued and more than ten years after the surgery performed by Dr. Drutz.

[13] The plaintiffs had filed an affidavit from their lawyer advising that the reason for the significant delay in bringing this motion after having served the Statement of Claim beyond the deadline was on account of “inadvertence” by the plaintiffs’ lawyers.

THE ISSUE

[14] The issue on this motion is whether the court should grant the plaintiffs an order extending the time for the service of the Statement of Claim nunc pro tunc and validating service of the Statement of Claim on Dr. Drutz, four years after the Statement of Claim was issued.

POSITIONS OF PARTIES

Position of the Plaintiffs

[15] The plaintiffs submit that Dr. Drutz was served personally with the Statement of Claim and has not been prejudiced in any manner as a result of the intervening time between the date of service of the Statement of Claim on May 12, 2010 and of this motion dated February 19, 2013. The Statement of Claim was not served in time through inadvertence. However the Statement of Claim was issued on February 27, 2009 within the limitation period to do so. It is acknowledged by counsel for the plaintiff that nothing happened in respect to this matter for a period of two years and nine months from the time of service until the time the motion was brought. Although the plaintiffs’ motion was not brought without delay, the key issue is whether or not Dr. Drutz suffered prejudice and it is submitted that he did not. It is submitted that the inadvertence in this case was not so egregious as to attract the dismissal of their action.

Position of Dr. Drutz

[16] On behalf of Dr. Drutz it is submitted that the plaintiffs failed to serve him with their Statement of Claim within six months as required by the Rules of Civil Procedure. He was served on May 5, 2010 – eight months late. This deficiency was promptly brought to the attention of the plaintiffs’ lawyers. The plaintiffs failed to address the deficiency, take any steps in this action, or contact Dr. Drutz’s lawyers at all, until this motion was commenced in February of 2013 – four years after the Statement of Claim was issued and nearly six years after the claim was discovered.

[17] Although the reason proffered for this delay is inadvertence by the plaintiffs’ lawyers, the plaintiffs have not adduced any evidence of their continued intention to pursue the action throughout the period of delay. In these circumstances, mere solicitor inadvertence is an unacceptable explanation of a delay of several years.

[18] It is also submitted that Dr. Drutz would suffer real prejudice and unfairness if the motion was granted and if the action against him was permitted to proceed. In this context of presumptive prejudice that arises in the context of this type of delay, his right to commence a third party claim is also in jeopardy. The plaintiffs have not diligently prosecuted their action and complied with the Rules of Civil Procedure. If this case were the subject of a status hearing, it would have been dismissed for delay.

[19] Further, on behalf of Dr. Drutz, it is submitted that it would be manifestly unfair to permit the plaintiffs to benefit from the degree to which they have failed to prosecute this motion by granting their motion and reviving this action at this late stage.

ANALYSIS

[20] The leading case on extension for time for service of statements of claim is Chiarelli v. Weins, 2000 3904 (ON CA), [2000] O.J. No. 296. This is acknowledged by both counsel for the plaintiffs and Dr. Drutz.

[21] In Chiarelli, the Court of Appeal confirmed that the basic consideration on a motion for an extension of the time for service of the Statement of Claim is whether granting the extension will advance the just resolution of the dispute without prejudice or unfairness to the parties.[^2]

[22] In considering whether to grant the plaintiffs an extension of time, the jurisprudence provides that the court may consider the following factors:

(a) Whether the defendant had notice before the expiry of the limitation period that the plaintiff was asserting a claim against him;

(b) whether or not the plaintiff moved promptly for an extension of time after the period expired;

(c) whether or not it was reasonable for a defendant to infer from all the circumstances that the plaintiff had abandoned his claim;

(d) whether or not the delay in serving the claim resulted from the direction, participation or involvement of the plaintiff personally in the service of the claim; and,

(e) prejudice to the defendant.[^3]

[23] Firstly, I find that granting the extension in this case will not advance the just resolution of the dispute without prejudice or unfairness to the parties especially, Dr. Drutz. For reasons to follow an extension of the time for service of the Statement of Claim would result in unfairness and prejudice to him.

[24] Further, I find a consideration of the above factors in turn militates against the plaintiffs for the following reasons, dealing with each factor (A) to (E).

A. The Limitation Period had Expired When Dr. Drutz First Received Notice of the Claim

[25] The plaintiffs discovered their claim against Dr. Drutz in March of 2007 when Dr. Mak determined that Ms. Tarsitano’s symptoms were caused by loose tape from the surgery. As such, the limitation period associated with Ms. Tarsitano’s claim against Dr. Drutz expired in March of 2009. However, the Statement of Claim was issued on February 27, 2009 just within the limitation period.

[26] Dr. Drutz did not receive notice of the plaintiffs’ claim on or about August 12, 2008 as deposed at paragraph 12 of Mr. Howe’s affidavit. That letter does not mention any claim against Dr. Drutz. It does not mention any concern about Dr. Drutz’s care for Ms. Tarsitano. It does not reference the surgery at all. It merely advises that Mr. Howe had been retained by Ms. Tarsitano in relation to an unspecified “litigation matter”, mentions and unspecified “incident” and requests a complete copy of Ms. Tarsitano’s medical records.

[27] As set out at paragraph three of the plaintiffs Notice of Motion, Dr. Drutz did not receive notice of the claim until the attempt at service of the Statement of Claim on May 5, 2010, well after the expiry of the limitation period in March 2009.

[28] I find that the expiry of the limitation period for service gives rise to a presumption of prejudice.[^4] The longer the delay, the stronger the presumption of prejudice to Dr. Drutz flowing from that delay.[^5] In the circumstances of this case, not only is there presumption of prejudice created by the expiry of the limitation period and more than ten years that have elapsed between the surgery and the timing of this motion, there is also real prejudice to Dr. Drutz for reasons to follow.

B. The Plaintiffs have no Reasonable Explanation for the Initial Delay in Service and did not Move Promptly to Seek an Extension

[29] In consideration of this factor, rule 14.08(1) requires service within 6 months after issuance of a Statement of Claim. The plaintiffs waited more than a year to serve Dr. Drutz which they did on or about May 5, 2010. There was not even an attempt to serve the Statement of Claim until after the six month deadline had expired. The plaintiffs’ counsel’s explanation for the failure to serve the Statement of Claim was that they were waiting to obtain a medical opinion as to the viability of their claim against Dr. Drutz. I do not accept this as a valid explanation. There was no reason to obtain an expert opinion before commencing a claim.[^6] Further, there is no need to wait to serve a claim until an expert opinion is obtained. It is interesting to note that the plaintiffs have not served an expert report in this action.[^7]

[30] There is no evidence that Dr. Drutz was difficult to find or was attempting to evade service. Plaintiffs’ counsel simply chose not to do so while they pursued an expert opinion. They could have and they should have served Dr. Drutz within the 6 month period provided by the rules for service. Their explanation for not doing so is not justifiable.

[31] Rather, when plaintiffs’ counsel did serve their Statement of Claim out of time, immediately within a week of service, Mr. Craze wrote to the plaintiffs’ lawyer on behalf of Dr. Drutz to advise that an order extending the time for service of the Statement of Claim was required. Even further, there were follow ups from Dr. Drutz’s lawyer without any response from plaintiffs’ counsel. I find that neither the plaintiffs nor their lawyers took any action to address the deficiency until February 2013. By that time, it had been four years since the Statement of Claim had been issued and nearly three years since they were put on notice that an order was required.

[32] Sometimes, the courts have found that solicitor’s inadvertence is a reasonable explanation for the delay in service. However, the courts have also held that when the inadvertence goes beyond “a mere slip” and amounts to a “steadied neglect of the rules” it is not a reasonable excuse for the delay.[^8]

[33] I find in this case the inadvertence does go beyond a “mere slip”. Rather, if not a case of steadied neglect, the deposed transferral from one law clerk to another in the office of plaintiffs’ counsel resulted in this case falling into a black hole. There is no explanation whatsoever as to how, when and by whom this case found the light of day, was dusted off and acted upon. I accept the submission made by counsel for Dr. Drutz that this is case of a claim languishing in a filing cabinet or some other unidentified receptacle where cases such as this hibernate without anything more to explain the delay.

C. Dr. Drutz Reasonably Concluded that the Plaintiffs did not Intend to Proceed with the Claim

[34] Dr. Drutz was not evading service or was in any way a person difficult to serve. After he was served, he retained lawyers who repeatedly contacted the plaintiffs’ lawyers to find out whether the plaintiffs intended to proceed with their claim. Following up with the plaintiffs’ lawyers did not produce any response. Dr. Drutz’s lawyers concluded that it was reasonable that the plaintiffs did not intend to proceed with the action. I find this was not an unreasonable conclusion in all of the circumstances. Dr. Drutz’s lawyers closed their file for the matter and Dr. Drutz considered the matter to be concluded. This was also not unreasonable in the circumstances.

D. The Court Should Infer that the Plaintiffs Did Not Intend to Pursue the Action and Participated in the Delay

[35] There is no evidence on this motion to suggest that the plaintiffs maintained an intention to pursue this claim. There is no evidence that the plaintiffs contacted their lawyers to attempt to advance their claim. In the absence of evidence to the contrary, I draw an adverse inference that the plaintiffs did not contact their lawyers or instruct them to pursue their claim against Dr. Drutz over the intervening years – that they did not maintain an intention to pursue the action. There is no accompanying affidavit on the part of any the plaintiffs to support this motion. There is only Mr. Howe’s two page affidavit which in the end really only deposes that as a result of inadvertence the motion was not brought until February 19, 2013. This begs the question as to what was happening with this matter from the time of service in May of 2010 until February 19, 2013 – some two years and nine months. Counsel for the plaintiff on the motion conceded that nothing happened. Obviously, that is true.

[36] By failing to take any steps to advance their claim, or to cause their lawyers to advance their claim for almost three years between May 2010 and February 2013, I find the plaintiffs participated in the delay and are not merely the victims of their lawyer’s inadvertence. We do not know what they were doing during that period because we have no affidavit evidence to support that they intended to pursue this litigation against Dr. Drutz and that they were not simply sitting on their hands.

E. Dr. Drutz will Suffer Real Prejudice and Unfairness if This Motion is Granted

[37] Regarding prejudice, Dr. Drutz’s position relating to the plaintiffs” substantive claims is that any post-surgical complications and damages Ms. Tarsitano may have suffered are attributable solely to problems with the tape used in the procedure. This court is given to understand that the strength of this argument is underscored by the class action lawsuit commenced against Johnson & Johnson referenced at page 49 of Dr. Drutz’s factum.

[38] It is submitted on behalf of Dr. Drutz the plaintiffs delay in commencing this motion has put his ability to commence a viable third party claim against Johnson & Johnson at risk. Section 18 of the Limitations Act deems the commencement of the limitation period in a claim of contribution and indemnity to be the date the defendant was served in the main action by the injured party.[^9] In response to a third party claim against it, there is a significant risk that Johnson & Johnson will argue that having been served with the Statement of Claim in May 2010, Dr. Drutz is out of time to commence a third party claim.

[39] While it is argued on behalf of the plaintiffs that Dr. Drutz could always have commenced third party proceedings, this court is advised on behalf of Dr. Drutz that the question of whether the limitation period under section 18 of the Limitations Act begins to run against the defendant when a Statement of Claim is served outside the time prescribed by rule 14.08(1) has yet to be judicially considered. It is argued on behalf of Dr. Drutz that a court might reasonably find that it does and that at the time Dr. Drutz was served with the Statement of Claim in May 2010, his claim for contribution and indemnity against Johnson & Johnson was discoverable.

[40] It is further argued that Dr. Drutz allowed more than two years to pass without issuing a third party claim against Johnson & Johnson in reliance on the plaintiffs’ apparent intention not to pursue their claim. Closing the file was not unreasonable in all of the circumstances. Now, there is good reason to believe that Dr. Drutz’s third party claim has become problematic as a direct result of the plaintiffs failure to bring this motion promptly. This may be so.

[41] Whether the limitation period applicable to Dr. Drutz’s third party claim has or has not expired is for another court to decide. However, Dr. Drutz’s right to pursue a third party claim is associated with risk and, in this regard, he has suffered prejudice. He should not be at risk in these circumstances.

[42] Regarding unfairness, this court has been urged to consider the application of rule 48 to the present case. It is argued that if this matter would have been dealt with at a status hearing, the plaintiffs would not be in a position to resist this action being dismissed. The only reason there has not been a status hearing is that the plaintiffs have failed to serve their Statement of Claim within the requisite time and have failed to correct the deficiency.

[43] I find it unnecessary to speculate whether or not this case would have been the subject of a dismissal order on a status hearing. That having been said, it is unfair to Dr. Drutz that the plaintiffs be permitted to ask for such an extension after the passage of so much time, explained only on a bald assertion of inadvertence in the handling of this file. Such an explanation is insufficient to cure either the prejudice or the unfairness to Dr. Drutz in the circumstances of this case.

DISPOSITION

[44] For the reasons stated, the plaintiffs’ motion is dismissed.

[45] As for costs, counsel for Dr. Drutz seeks costs in the amount of $4000. A Bill of Costs was presented in this regard. I have reviewed said Bill of Costs which has been calculated on a substantial indemnity scale. Counsel for the plaintiffs submits that the costs are disproportionate, should be less than $4000 and has left the fixing of costs on this motion to the discretion of this court.

[46] Dr. Drutz is the successful party on this motion. Costs follow the event. I exercise my discretion in fixing costs in the amount of $3500 all inclusive of fees, disbursements and HST. Those costs are fair, reasonable and proportional in all the circumstances. The plaintiffs shall pay costs in the amount of $3500 to Dr. Drutz within 30 days.

DiTOMASO J.

Released: September 5, 2013

[^1]: Affidavit of Russell J. Howe (the “Howe affidavit”) at para. 6, Motion Record, Tab 2
[^2]: Chiarelli v. Weins, supra at para. 12.
[^3]: Beg v. Sedore, [2009] O.J. No 3117 (Sup Ct) at para. 17; Holmstead and Watson, Ontario Civil Procedure, Vol.2, (Toronto: Carswell, 1993) at 3-9.1, 9.2.
[^4]: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, [2008] OJ No 17 (CA).
[^5]: Langenecker v. Sauve, 2011 ONCA 803, [2011] O.J. No 5777 (CA).
[^6]: Lawless v. Anderson, 2011 ONCA 102, [2011] OJ No 519 (CA).
[^7]: Affidavit of Jacqueline Cole sworn August 20, 2013 at para. 12 Respondent Motion Record Tab. 1.
[^8]: Noori v. Grewal, 2011 ONSC 5213, [2011] O.J. No 4190 (Sup Ct) at para. 26, citing Nugent v. Crook (1969), 1969 389 (ON CA), 40 OR (2d) 110 (CA) at para.111; Purkis v. 736007 Ontario Ltd., [2001] OJ No 324 (Div Ct) at para. 32, citing Nugent v. Crook (1969), 40 OR (2d) 110 (CA) at para. 111.
[^9]: Placzek v. Green, 2009 ONCA 83, [2009] OJ No 326 (CA) at para. 24; Lopez v. A&P Food Stores, [2009] OJ No 2472 (Sup Ct).