Court File and Parties

COURT FILE NO.: 01-CV-218824 CM

DATE: 20140930

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OMAWATIE (ASHLEY) PRASAD, ANTHONY SURESH PRASAD, by his litigation guardian OMAWATIE (Ashley) Prasad, JASON JEEDESH PRASAD, by his litigation guardian Omawatie (Ashley) Prasad and RAMDAI PRASAD, Plaintiffs

AND:

YORK CENTRAL HOSPITAL, DR. ANIL CHOPRA, DR. DAVID SASLOV, DR. ROY KWEE, DR. MORRIS TUSHINSKI, DR. DAVID WORTZMAN, DR. PATRICK BARNES, DR. MARK H, LEE, DR. HARRY HONG, DR. ALI FITURE, ANNE DOE, BARB DOE, CATHY DOE, EVEN DOE, FRANK DOE, UNIVERSITY HEALTH NETWORK – TORONTO GENERAL HOSPITAL, DR. SHAF KESHAVJEE, DR.J.T. GRANTON, GAIL JONES, HOLLY JONES, IDA JONES, JOHN JONES and DR. LAUREN ZEILIG, Defendants

BEFORE: STEWART J.

COUNSEL: Eli Pullan, for the Plaintiffs Trevor S. Fisher, for the Defendant Physicians Lee Lenkinski, for the Defendant Hospitals

HEARD: June 24, 2014

ENDORSEMENT

[1] The Defendant Physicians move pursuant to Rule 24.01(1) to dismiss this action for delay. The Defendant Hospitals support that motion and seek the same relief.

[2] The Plaintiffs resist the motion. They deny that they have deliberately delayed the prosecution of this action. They further assert that the Defendants have not been prejudiced by any delay such that a fair trial may not be possible.

Chronology

[3] This is an action for damages for alleged medical negligence. It arises out of care and treatment provided to 36-year-old Jagdeo Prasad (“Prasad”) between October 11 and 16, 2000. Prasad died on October 16, 2000 as a result of a fistula between his esophagus and aorta which had developed following ingestion of a fishbone several days earlier.

[4] This action brought by Prasad’s widow and on behalf of his minor children was commenced by way of a Notice of Action issued on October 15, 2001.

[5] A Statement of Claim filed on November 15, 2001 alleges that Prasad’s death was caused by the negligence of the Defendants in their treatment of him. In it, the Plaintiffs claim damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3, as amended.

[6] A Statement of Defence and Crossclaim of the Defendants, York Central Hospital and University Health Network – Toronto General Hospital (the “Hospital Defendants”) was delivered on December 17, 2001. Statements of Defence were later delivered on behalf of the Defendant Physicians.

[7] The Defendants have set out the details of the rather glacial pace at which the action has proceeded since its commencement.

[8] A case conference was held on March 13, 2002. At that time, the Plaintiffs had yet to serve all of the Defendant Physicians with the Statement of Claim. Plaintiffs’ counsel indicated that he would attend to having the four remaining Defendants (Drs. Saslove, Wortzman, Keshavjee and Granton) served with the Statement of Claim and would so confirm by March 15, 2002. The Case Management Master provided a timetable which required that Affidavits of Documents be exchanged by June 7, 2002 and the first series of examinations for discovery take place by July 19, 2002.

[9] The deadline of March 15, 2002 passed but Plaintiffs’ counsel had not confirmed whether the remaining Defendants had been served.

[10] The deadline of June 7, 2002 for documentary production also passed. Despite several requests from the Defendants, the Affidavit of Documents of the Plaintiffs was not delivered.

[11] On June 13, 2002, Counsel for the Defendant Physicians stated that he was in a position to file a Statement of Defence on behalf of the Defendant Physicians with the exception of Dr. Wortzman and Dr. Saslove who had not been served. A Statement of Defence and Cross-claim of those Defendant Physicians was delivered on July 5, 2002.

[12] On July 10, 2002, Plaintiffs’ counsel provided an Affidavit of Documents and advised that the Plaintiffs had been unable to effect personal service upon Dr. Wortzman and Dr. Saslove but indicated that efforts continued in that regard.

[13] Between July 11, 2002 and July 29, 2002, examinations for discovery were held of Omawatie (Ashley) Prasad, Dr. Mark Lee, Dr. Morris Tushinski, Dr. Ali Fiture, Dr. Shaf Keshavjee, Dr. Patrick Barnes and a representative of York Central Hospital.

[14] A second case conference was held on September 3, 2002. Plaintiffs’ counsel advised that he would seek an Order for substituted service on Dr. Wortzman. The Case Management Master made an Order setting out a timetable for the next steps in this action. All undertakings from the examinations for discovery were to be answered by November 1, 2002. The second series of examinations for discovery, including that of a representative of University Health Network, Dr. Hong, Dr. Granton and a continued examination for discovery of York Central Hospital were to be completed by December 20, 2002.

[15] The deadline of November 1, 2002 passed. Answers to the undertakings given by the Plaintiffs were not received. No motion seeking an order for substitutional service on Dr. Wortzman had been brought. Counsel for the Defendant Physicians continued to write to Plaintiffs’ counsel with respect to both issues.

[16] Examinations for discovery of a representative of University Health Network, Dr. Hong, Dr. Granton and a continued examination for discovery of York Central Hospital were held on December 16 and 17, 2002.

[17] A third case conference was held on January 7, 2003. Plaintiffs’ counsel indicated that he intended to add three more defendants and perhaps would also serve Dr. Wortzman. The Case Management Master ordered that any remaining examinations for discovery were to be completed on June 12 and 13, 2003 and that the matter was to be listed for trial with a Trial Scheduling Court date of October 8, 2003.

[18] No motions were brought seeking to add any new parties or obtain an order for substitutional service on Dr. Wortzman. The June 2003 dates set aside for further examinations for discovery passed with no communication from Plaintiffs’ counsel.

[19] On October 4, 2003, the action was set for trial on January 9, 2006 with a pre-trial conference scheduled for February 14, 2005.

[20] On February 11, 2005, Plaintiffs’ counsel requested an adjournment of the Pre-Trial Conference. The Plaintiffs were awaiting two expert reports: an economic report and an opinion from a thoracic surgeon. The pre-trial conference was postponed.

[21] On December 16, 2005, the action was struck from the trial list. The Plaintiffs were instructed to produce all expert reports by no later than February 15, 2006.

[22] The deadline of February 15, 2006 passed. No expert reports were received from the Plaintiffs.

[23] The Hospital Defendants served an expert medical report in June 2006. A motion for summary judgment returnable in October 2006 was brought by the Hospital Defendants which was adjourned at the Plaintiffs’ request to February 9, 2007.

[24] On February 7, 2007, Plaintiffs’ counsel indicated that he had requested a report from a vascular surgeon, Dr. Barry Rubin. He requested a further adjournment of the Hospital Defendants’ summary judgment motion in order to cross-examine on the affidavits filed in support of their motion. The motion was adjourned to March 27, 2007, and then again to April 23, 2007.

[25] On April 18, 2007, the Plaintiffs served Dr. Rubin’s report, and indicated that a further expert report from a gastroenterologist was anticipated. The summary judgment motion was adjourned to July 9, 2007 and then further adjourned sine die.

[26] No expert opinion of any gastroenterologist was received from the Plaintiffs following these adjournments.

[27] Between September 2002 and October 20, 2008, counsel for the Defendants wrote and called Plaintiffs’ counsel to obtain outstanding undertakings. A motion seeking compliance with undertakings was made returnable on March 12, 2009. It resulted in the granting of a consent Order requiring satisfaction of the specified undertakings within 45 days, production of an expert report by an economist within 90 days and, production of any additional expert reports on the issue of liability within 45 days.

[28] No answers to undertakings or expert reports were received from the Plaintiffs by these deadlines.

[29] On April 29, 2009, Plaintiffs’ counsel requested an extension of the deadline to May 30, 2009. This deadline also passed with no undertakings or expert reports being received.

[30] On June 12, 2009, Plaintiffs’ counsel provided answers to undertakings. In respect of the economic loss report, he advised that consultation with an economist had been deferred pending receipt of the further medical opinions. Plaintiffs’ counsel had asked an economist to prepare a report solely on the loss of homemaking, child care and home maintenance services. Plaintiffs’ counsel was also still awaiting reports from a gastroenterologist and a family physician and indicated that these reports should be available by June 15, 2009. He advised that he expected to be in a position to entertain settlement discussions or to restore the action to the trial list by the end of June 2009.

[31] Over the course of the next month, Plaintiffs’ counsel served an expert report from a family physician and an economic loss report. Plaintiffs’ counsel also stated that the gastroenterology expert had referred them back to Dr. Rubin to clarify a causation issue. Dr. Rubin would not be able to deal with the issue until July 2009 but his further report would be provided when that had been done.

[32] On March 30, 2010, counsel for the Defendant Physicians indicated that a motion would be brought to have the action dismissed for delay unless there was compliance by April 9, 2010 with the March 12, 2009 Order.

[33] On April 7, 2010, Plaintiffs’ counsel responded that he had determined that pending receipt of Dr. Rubin’s supplementary report, reports from a gastroenterologist and thoracic radiologist were not indicated.

[34] On April 16, 2010, Plaintiffs’ counsel advised that he hoped to have the supplemental report of Dr. Rubin and a report of a gastroenterologist shortly. In the interim, he indicated that the matter would be restored to the trial list. A further update was provided by Plaintiffs’ counsel on April 26, 2010 with a repeated stated intention to restore this action to the trial list.

[35] In early May 2010, the Plaintiffs provided the supplemental report of Dr. Rubin. On May 7, 2010, Plaintiffs’ counsel confirmed that he would provide the gastroenterologist’s report once it became available.

[36] Since then, no correspondence or additional medical expert opinion has been received from Plaintiffs’ counsel nor has the action been restored to the trial list.

[37] Counsel for the Plaintiffs has sworn two affidavits attesting to an apparent contact with the lawyer formerly acting for the Defendant Physicians. In it, he suggests that the possibility of settlement had been discussed and was continuing to be considered. Therefore, the action was not restored to the trial list pending his expectation of further discussions.

[38] In particular, Plaintiffs’ counsel swears that the lawyer who previously had carriage of the file on behalf of the Defendant Physicians advised him in a telephone conversation during the week of May 7, 2010 that he and his client were considering the additional productions received in response to Master Brott’s order, including the further report from Dr. Rubin. In subsequent informal conversations with him, he says that counsel for the Defendant Physicians had indicated a willingness to discuss possible settlement.

[39] Former defence counsel retired in the fall of 2013 without settlement having been achieved.

[40] Although other counsel from his firm has provided sworn evidence based on information and belief attesting to the absence of any such discussion after May 7, 2010, no affidavit sworn by the former counsel involved has been filed.

Issue

[41] Should this action be dismissed for delay?

Law and Discussion

[42] Rule 24.01(1) of the Rules of Civil Procedure provides that a Defendant who is not in default under the Rules or an Order of the Court may move to have an action dismissed for delay where the Plaintiff has failed to restore to a trial list an action that has been struck off the trial list, within 30 days after the action was struck.

[43] The approach to be taken on a motion of this nature is well-established. An action should not be dismissed unless the default is intentional and contumelious or the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible (see: Armstrong v. McCall, [2006] O.J. No. 2055).

[44] It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of the limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, a defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. This presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and 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. Even if the presumption is rebutted, the action may still be dismissed if the defendant leads convincing evidence of actual prejudice (Armstrong v. McCall, supra).

[45] It is the position of the Plaintiffs that this test has not been met in this case. They say that despite the passage of time they have always indicated an intention to proceed with the action and that the delay was neither intentional nor contumelious. They also contend that the presumption of prejudice that might otherwise attach has been rebutted. There is no evidence of actual prejudice, nor has it been shown that there is a substantial risk that a fair trial may not be possible.

[46] The Plaintiffs also claim that what initially appeared to be a very complex action against multiple physicians and hospitals has ultimately distilled to a narrow claim against Dr. Zeilig for alleged failure to arrange appropriate investigation and treatment on October 13, 2000, and allegations of negligence against Dr. Kwee and Dr. Tushinski arising out of their emergency treatment of Prasad on October 15, 2000. They say that this delay is due, at least in part, to the time required to be spent consulting experts to determine the proper issues and their scope. This seems to have been extended by a hope, based on fairly casual contacts with former counsel for the Defendant Physicians, that the action might be settled.

[47] It is therefore now maintained by the Plaintiffs on this motion that they intend to pursue the action as against Dr. Zeilig, Dr. Kwee and Dr. Tushinski only.

[48] The Plaintiffs deny that they have deliberately delayed the prosecution of this action. Rather, they say they have used best efforts to obtain opinion from specialists to document the cause of Prasad’s death, which has proven to be difficult and complex to determine and have always demonstrated their intent to proceed. Although Plaintiffs acknowledge that they ought to have moved much more expeditiously to restore the action to the trial list after they obtained Dr. Rubin’s report in April 2010, they deny that the Defendants have suffered any actual prejudice by the delay.

[49] The Plaintiffs say they now are ready and willing to undertake to immediately restore the action to the trial list in a considerably streamlined state as aforementioned, and to arrange an early date for trial.

[50] Although the delay in moving this case to trial has been very lengthy indeed, I am of the view that such delay was not intentional and contumelious. It may have extended beyond what was reasonably necessary, but is not of such a nature that the Plaintiffs’ action should be brought to a halt.

[51] I also am of the view that the general presumption of prejudice to the Defendants has been adequately rebutted. Further, the Defendants have not demonstrated that any actual prejudice has been suffered by them as a result of this very lengthy delay.

[52] No affidavit was filed by any Defendant to attest to any actual prejudice. Most of the Defendant Physicians have been examined for discovery and transcripts of their evidence are available. To the extent that certain other Defendants (Zeilig, Chopra, Kwee, Wortzman and Saslove) have not been examined for discovery, their involvement in the assessment and treatment of Prasad and all details thereof are memorialized in the preserved hospital records and clinical notes relating to this patient. Dr. Zeilig was not examined for discovery, but was served with the Statement of Claim fairly soon after the action was commenced and would have reviewed his involvement at that time to permit a Statement of Defence to be delivered on his behalf.

[53] This case is distinguishable from that determined in Langenecker et al. v. Sauvé et al. 2011 ONC 803 in which there was evidence tendered to demonstrate actual prejudice in that specific and relevant discussions concerning the plaintiff’s care had not been recorded or memorialized. It was argued before the motions judge in that case that some of the individuals involved in these discussions, including the physician primarily responsible for the plaintiff’s care, had not been sued and, therefore their recollections had not been memorialized in a discovery transcript.

[54] It is most likely that this case will be decided based upon a review of the investigation of Prasad’s symptoms and the treatment given to him by the Defendants as set out in the hospital and clinical records, when measured against medical expert opinion as to the cause of his death and the applicable standard of practice to be applied to the adequacy of the treatment provided. I do not consider on the evidence before me that any substantial risk that a fair trial may not be possible exists in these circumstances.

Conclusion

[55] For these reasons, the motions are dismissed.

[56] I note in passing that this determination should not be read as sanctioning the lengthy delay for which the Plaintiffs are wholly responsible.

[57] The action is hereby restored to the trial list with a direction that the pre-trial conference and trial be expedited to the greatest extent possible. Representations made by counsel for the Plaintiffs with regard to proceeding only as against those Defendants as were indicated are to be acted upon promptly.

Costs

[58] In the unlikely event that the subject of costs cannot be agreed upon by the parties, written submissions may be delivered to me for consideration within 30 days of the date of release of this decision. Any such submissions should address (a) whether costs should be awarded to any party, (b) in what amount, and (c) by whom they should be paid.

STEWART J.

Date: September 30, 2014