Syrodoyev v. Ramandi et al., 2015 ONSC 1125

COURT FILE NO.: CV-13-486918

DATE: 20150220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Syrodoyev, a minor by his litigation guardian Mariya Subbatina, Plaintiff

AND:

Hamed Ghamooshi Ramandi, Rama Ideal Construction Inc. and

State Farm Automobile Insurance Company, Defendants

BEFORE: F. L. Myers, J.

COUNSEL: Roman Baber, for the Plaintiff

Ryan Traux, for the Defendants Ramandi and Rama Ideal Construction

Darryl P. March for the Defendant State Farm Insurance

HEARD: February 19, 2015

CASE CONFERENCE ENDORSEMENT

[1] This matter came before me originally for scheduling of a summary judgment motion at Civil Practice Court. Only counsel for the defendant State Farm attended. Counsel for the plaintiff misapprehended the purpose of the attendance. Counsel for the other defendants was not involved in the issues.

[2] It was apparent to me that the action was not proceeding efficiently towards the most affordable and proportionate resolution. I therefore invited all counsel to attend a case conference that was held today.

[3] The action involves a motor vehicle accident in which the minor plaintiff was injured in August, 2011. The plaintiff was 8 years old at the time. He is 11 years old today. The plaintiff returned to school in September, 2011. The plaintiff’s counsel advises that the plaintiff still walks with a limp and that he suffers sleep disorders from the accident. State Farm is the accidents’ benefits insurer. The other defendants were the driver and owner of the truck that hit the plaintiff.

[4] The non-insurer defendants advise that they are “considering” whether to add as a third party the occupant of the premises where the accident occurred. The accident occurred nearly four years ago and this action has been outstanding for two years. The time to decide is nigh.

[5] State Farm takes umbrage at being sued for punitive damages and aggravated damages on what it says are bald pleadings. The plaintiff’s counsel says the he provided particulars of the claims and that since the defendant State Farm has already pleaded, it is too late to strike his claim. The plaintiff has produced no documents in his draft affidavit of documents concerning communication between the plaintiff and State Farm that might give rise to a bad faith or other extra-contractual claim. State Farm therefore wants to move for summary judgment to dismiss those claims. Counsel for the plaintiff advises that he wishes to amend the claim to add a claim for “bad faith damages” too – assuming they are different than punitive and aggravated damages. He wants to go to discovery to try to find a bad faith claim out of the defendants’ documents and mouths.

[6] I note that the plaintiff’s counsel also takes the position that the 11 year old plaintiff cannot be examined for discovery in this action. He has no medical report to support this somewhat unusual position. A motion is scheduled before the Master on June 29, 2015 on that issue.

[7] At the case conference today, counsel for the plaintiff advised that the basis for the claims for aggravated and punitive damages and the putative claim for bad faith damages, is that the defendant State Farm insists on applying the Minor Injury Guidelines (“MIG”) to this claim despite its own psychological assessor reporting that the minor plaintiff’s nightmares and other sleep disorders allegedly arising from the accident may not or do not fall within the MIG. The plaintiff’s counsel was clear. When pushed to state all of the grounds relied upon for the extra-contractual claims, that it was only the claim relating to the defendant’s insistence on applying the MIG in face of its own assessor’s psychological or psychiatric assessment that forms the basis of the extra-contractual claims. This statement was made as a judicial admission and should bind the plaintiff.

[8] The plaintiff wishes to bring a summary judgment cross-motion of his own on this issue. He will argue that it is entitled to judgment that the MIG do not apply to limit the accident benefits to which the plaintiff is entitled in this action. There are other issues between State Farm and the plaintiff such as whether the plaintiff is entitled to non-earner benefits although he is not yet 16 years old and whether the plaintiff is entitled to compensation for loss of housekeeping services that he has not been able to provide as an 8 year old to date. These issues are not encompassed in the proposed motions for judgment.

[9] The defendant State Farm also says that while there have been mediations on the plaintiff’s two proposed treatment plans, those mediations faltered on grounds other than the MIG issue. It says there has been no mediation on the applicability of the MIG so the matter is not properly before the court. The plaintiff will argue that the mediation of the treatment plans suffices.

[10] This action has gone nowhere on the merits. The plaintiff has produced no medical reports beyond contemporaneous treating and hospital records. Discoveries have been deferred due to the plaintiff’s refusal to produce the minor and due to the inability of counsel to communicate effectively. They write emails at each other. They do not listen to each other and then cooperate on resolution of issues between them in an efficient, affordable and proportionate way. Counsel do not have to capitulate. But they do have to cooperate on scheduling matters in issue so as to move contested matters forward toward a resolution. If counsel insist on taking difficult and tactical positions, then a court will resolve the issues and hopefully will award appropriate costs. But, rather than sending lengthy, repetitive, positional emails and/or ignoring the other sides’ requests, counsel should talk and find a way to bring the issues to resolution either consensually or, if necessary, by coming to court. Perhaps direction may be more readily available in Civil Practice Court than was previously the case as well.

[11] When the matter came on before me at CPC, I initially scheduled the return date for State Farm’s proposed motion quickly - for March 12, 2015. Now that the plaintiff wants to bring its cross-motion, Mr. March is not available for cross-examinations so quickly. The first available motion date for counsel and the court is June 22, 2015. I find this unfortunate. If I had my druthers, I would have had the motions heard quickly, resolved the discovery issue summarily, and ordered discoveries to proceed so the matter could get to trial this year or early next year.

[12] One way or the other this is not a huge lawsuit. If the plaintiff is over-reaching, then State Farm is entitled to cut him back before coming to the negotiating table. If the plaintiff has a bad faith claim that survives summary judgment, a very different settlement dynamic may appertain. I note however that a plaintiff who claims bad faith type of relief tactically is playing a high-stakes game of chicken. One would expect a significant costs award if a claim of serous misconduct is found to have been brought without grounds. I do not blame a defendant for moving to test the case especially if a plaintiff has been coy about its claims or evidence. This is not to say that a plaintiff should hesitate making such a claim if it has a tenable basis grounded in evidence to do so. It is tactical claims designed for strategic purposes that are to be avoided as they unfairly interfere with all parties’ ability to obtain the most efficient, affordable and proportionate outcome. We will see where this case pans out in the fullness of time.

[13] As counsel are busy, there is no ability to speed this case up. With the advent of Hryniak, 2014 SCC 7, and anticipated efforts to improve trial management processes to speed up trials, one questions whether the bar may not have to consider adjusting how they staff and schedule cases internally. Cases need to be handled more quickly and efficiently through all stages to control costs. Counsel are going to have to start building time into their schedules to meet counsel opposite to discuss trial management issues for example. What reason is there for this case to be two years old with no sworn affidavits of documents, a defendant still considering adding a third party, and no discoveries booked? If you are at discovery every day for the next several months, how can you get a case on or deal with matters that come up on the sudden? While the courts have recognized that they must improve handling of civil cases and have started to implement processes designed to do so, the goal of providing affordable, speedy civil justice is shared by the bar, the judiciary and administrators alike. This case is not a good example of implementation of current thinking. I reluctantly accept the following schedule for this proceeding:

(a) State Farm to deliver its motion record for summary judgment by February 25, 2015;

(b) The plaintiff to deliver its cross-motion record by March 6, 2014 – including its motion to amend its statement of claim to add claim for “bad faith damages” on top of the claims for punitive and aggravated damages;

(c) State Farm to deliver any responding material by March 20, 2105;

(d) Cross-examinations to be held before the end of April. I may be contacted to break any logjams that arise in cross-examinations in real time. All undertakings are to be answered within two weeks of being given. If the parties leave the examinations to the last moment, they may find their ability to resolve issues and meet the scheduled motion date prejudiced;

(e) State Farm’s factum to be delivered May 15, 2015;

(f) Plaintiff’s factum to be delivered May 22, 2015;

(g) Motions scheduled for June 22, 2015 for 3 hours;

(h) Motion to compel the minor plaintiff to attend discovery is already scheduled for June 29, 2015 before the Master;

[14] I am not seized of the motions or the action. I will make myself available to assist with ensuring that the motion preparation does not get bogged down. The court will be available by email in real time to assist if any issues arise which threaten the completion of any examinations that are scheduled. Moreover any issues concerning refusals and undertakings (including questions taken under advisement) will be resolved summarily by the court.

[15] My office may be contacted by email to schedule a hearing – informal or formal; by telephone or in-person - to assist with motion preparation issues as they arise. Counsel should have communicated in advance to discuss dates and process. Requests should include a proposed timetable and a minimal description of the matter in issue or relief sought without argument. Email communication should follow rule 1.09 and should generally be treated as if the content were being filed with the court. Although circumstances may call for some back-and-forth, all participants are cautioned to resist the temptation to be too familiar in emails.

[16] Subject to any specified exceptions, all documents to be delivered to me in this matter should be sent to the court as attachments to emails or on memory keys/sticks. The documents should be in searchable pdf format. Reference to case law should be by hyperlinks to or another online source if necessary. If counsel need assistance with format, resort may be had to http://www.ontariocourts.ca/scj/practice/practice-directions/edelivery-scj/

[17] If hard copies or memory keys are being delivered to the court, they should not be filed with the registrar, but should be delivered to my attention in care of Judges’ Administration, Room 170, 361 University Avenue.

[18] Finally, counsel are to contact my office in June, 2015 to book a case conference under rule 50.13 for some time in July at which I will assist the parties schedule the remainder of the

action. The parties may well be able to do so by communicating among themselves. So much the better.

________________________________ F.L. Myers J.

Date: February 20, 2015