ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-10,645-08
DATE: 20141007
BETWEEN:
Ben Hayes
Plaintiff
– and –
Ian Symington, Sudbury Regional Hospital, Suzanne Quevillion-Stanley, Joanna Kalviainen, Dave Alle and Mary Doe
Defendants
Patrick J. Poupore, for the Plaintiff
Andrew McKenna, for the Defendant Ian Symington
HEARD: October 3, 2014
RULING ON MOTION
Gauthier j.:
the motion:
[1] The plaintiff seeks an order adjourning the trial set to commence November 10, 2014. The defendant Symington adamantly opposes the request, and is supported in his position by the other defendants who did not appear on the motion.
FACTS AND HISTORY OF THE LITIGATION:
[2] The plaintiff has brought an action alleging medical malpractice against the defendants, claiming damages from a wound infection and the care he received at the Sudbury Regional Hospital, on July 23, 2006. This is a jury case.
[3] The matter is set for trial during the November jury sittings, commencing November 10, 2014.
[4] I have borrowed liberally from the plaintiff’s motion record in outlining the history of the proceedings, as follows.
[5] The statement of claim was issued on January 17, 2008.
[6] The statement of defence and crossclaim on behalf of the defendant Sudbury Regional Hospital was served on November 25, 2008.
[7] The statement of defence and crossclaim on behalf of the defendant Dr. Ian Symington was served on September 9, 2008.
[8] The examinations for discovery of the defendant, Dr. Ian Symington took place on July 22, 2009.
[9] The examinations for discovery for the plaintiff, Ben Hayes took place on July 22, 2009.
[10] The examinations for discovery of a representative of the defendant Hospital, Louis Andrighetti, took place on June 3, 2010.
[11] Following these discoveries the plaintiff moved to add the defendant nurses to his action, David Alle, Suzanne Quevillion-Stanley and Joanna Kalvainen on June 21, 2012.
[12] Examinations for discovery of the defendants David Allen and Suzanne Quevillon-Stanley took place on October 31, 2013.
[13] The examinations for discovery of the defendant Joanne Kalvainen took place on July 3, 2014.
[14] The trial record was filed with the court on June 7, 2010.
[15] Two pre-trial conferences were held April 21, 2011 and December 5, 2011.
[16] Counsel agreed, in November 2013, that the matter be set for trial in November 2014.
[17] This matter was set down for trial on the November 10, 2014, jury trial sittings following completion of the examinations for discoveries.
[18] Plaintiff’s counsel’s office communicated with the expert witnesses to verify their availability for trial during the November 10, 2014 sittings, on September 17, 2014.
[19] On that same day, September 17, 2014, Dr. Christopher Fernandes, a medical expert witness for the plaintiff, advised that he was not available for trial on November 10, 2014.
[20] Plaintiff’s counsel advised the defendants’ counsel of the unavailability of Dr. Fernandes for the scheduled trial.
[21] On September 19, 2014, plaintiff’s counsel inquired of Dr. Fernandez the reason for his unavailability. Dr. Fernandez will be in the United States for the entire month of November, 2014.
[22] By way of letter dated September 23, 2014, defendant’s counsel proposed that Dr. Fernandez testify by videoconference. He also inquired about Dr. Fernandez’s itinerary for the month of November. He has received no response to this inquiry.
PLAINTIFF’S POSITION:
[23] Dr. Fernandez is a critical witness for the plaintiff. He will be testifying regarding the standard of care of the defendant Symington. It would be prejudicial to the plaintiff to have to proceed without the live testimony of this expert witness.
[24] It is an overriding goal of the Rules of Civil Procedure to ensure that, as far as possible, cases are determined on their merits. The personal attendance of Dr. Fernandez is necessary for a just determination of the matters in dispute between the parties.
[25] The court should exercise its discretion in favour of the plaintiff and grant the adjournment as there is no prejudice to the defendants in doing so. There would, however, be prejudice to the plaintiff if he was forced to proceed without Dr. Fernandez, or, if he was forced to present the expert’s evidence, by way of video as opposed to in person testimony before the jury.
THE DEFENDANTS’POSITION:
[26]
It is the Respondent’s position that this Court should not exercise its discretion in awarding an adjournment to the Applicant, which would further delay the resolution of this matter. In light of the circumstances outlined in Ms. Julie Gagnon’s (Ms. Gagnon) affidavit dated September 23, 2014, the conduct of the Applicant’s solicitors in not informing their witness of the trial date in a timely matter [sic] and in not making any attempts to further investigate their expert’s alleged unavailability and alternative arrangements is not something that this Court should condone by granting an adjournment for which the Respondent should suffer the consequences. (Defendant’s Factum, paragraph 3).
THE RULE:
[27] Rule 52.02 provides that a judge may postpone or adjourn a trial to such time and place, and on such terms as are just.
THE LAW:
[28] Both parties relied on Khimji v. Dhanani, 2004 Carswell 525 (Ont.C.A.), in which Laskin J.A. observed that, in exercising his or her discretion in considering requests for adjournment, a trial judge must balance the interests of all the parties and the interests of the public in the proper administration of justice.
[29] At paragraphs 14 and 18, he said the following:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening.
I begin with the overriding goal of our modern Rules of Civil Procedure: to ensure as far as possible that cases are resolved on their merits. This goal is expressly set out in Rule 2.01(1)(a), which gives a judge power to grant any relief necessary “to secure the just determination of the real matters in dispute”. Courts should not be too quick to deprive litigants of a decision on the merits. The trial judge does not appear to have sufficiently taken into account that his order deprived the parties, especially the appellant, of a determination of “the real matters in dispute.”
[30] Finally, at paragraph 19, Laskin J.A. said this: “Non-compensable prejudice plays a pivotal role in deciding whether to grant an amendment or an adjournment.”
[31] Firstly, it bears repeating that the overriding goal of our Rules of Civil Procedure is to ensure, as far as possible, that cases are resolved on their merits.
[32] It also bears repeating that the court must control its own process and ensure that matters proceed to trial in a timely manner. This can only occur if “litigants take scheduling commitments seriously and make genuine efforts to comply with court orders relating to adjournments and related matters.” Khimji at para. 35.
[33] In order to effectively control the court’s business, it must “be able to rely on agreements between counsel and parties with regard to trial dates.” Oz Optics Ltd. v. American Home Assurance Co., 2009 CarswellOnt 2080 (Ont.S.C.), para. 27.
[34] The defendants quite properly criticize plaintiff’s counsel for failing to inform Dr. Fernandez of the trial date until September 17, 2014, less than two months before the trial, when the date had been set, on the agreement of counsel, ten months earlier, in November, 2013, a full year before the date agreed upon.
[35] I find no fault in the defendants’ characterization of the conduct of plaintiff’s counsel as “inexcusable”.
[36] Having said that, and bearing in mind that the principle, “the sins of the lawyer should not be visited upon the client”, is applicable here, I conclude that I should exercise my discretion and grant the adjournment, notwithstanding the age of this case, and the neglect of plaintiff’s counsel.
[37] This is a jury case. The plaintiff would be prejudiced if prevented from presenting Dr. Fernandez’s testimony in person. On the other hand, other than delay itself, there is no evidence of any non-compensable prejudice to the defendants. Although counsel in his submissions referred to fading memories, the motion material provides no evidence of any issue of fading memories or other delay which would cause me to not exercise my discretion in favour of the plaintiff.
[38] The request for adjournment is granted. The matter will go to the November assignment court to set a new date for trial, peremptory on the plaintiff.
[39] If the parties are unable to agree on costs, the plaintiff may make written submissions on costs within 30 days of today’s date. The defendant shall have ten days after receipt of the plaintiff’s submissions to respond. If no submissions are delivered within this time frame, the parties will be deemed to have settled the issue of costs as between themselves.
The Honourable Madam Justice Louise L. Gauthier
Released: October 7, 2014
COURT FILE NO.: C-10,645-08
DATE: 20141007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ben Hayes
Plaintiff
– and –
Ian Symington, Sudbury Regional Hospital, Suzanne Quevillion-Stanley, Joanna Kalviainen, Dave Alle and Mary Doe
Defendants
ruling on motion
Gauthier J.
Released: October 7, 2014