ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: Baghbanbashi et al. v. Hassle Free Clinic et al., 2015 ONSC 1281
COURT FILE NO.: 04-CV-278654CM3
DATE: 20150226

B E T W E E N:

MANIJEH BAGHBANBASHI, MARJAN AGHAZAHEDI

and YALDA AGHAZAHEDI, by her Litigation Guardian,

MANIJEH BAGHBANBASHI

Plaintiffs

• and -

HASSLE FREE CLINIC,

DR. MIRZA R. VIRANI and

SCARBOROUGH GRACE HOSPITAL

Defendants

BEFORE: F.L. Myers J.

COUNSEL: D. Hamer and K. Szilagyi for Dr. Virani, moving party

H. Kohn for Hassle Free Clinic

T. Danson for the plaintiffs/respondents

HEARD: February 25, 2015

endorsement

[1] For the reasons set out below, Mr. Danson’s request for an extension of time to deliver the plaintiffs’ motion material in response to the defendants’ motion for summary judgment was improperly made and is denied.

Background

[2] On July 28, 2014, Himel J., as delegate of the Regional Senior Justice, assigned to me the task of case managing the defendants’ summary judgment motion which seeks to dismiss this action. The motion is scheduled to be heard on June 24 and 25, 2015 pursuant to a consent order made by Stinson J. on July 22, 2014. The schedule as ordered includes a motion for directions on March 30, 2015 to consider procedural issues, such as, whether there ought to be oral evidence tendered at the hearing of the motion.

[3] The principal plaintiff has MS. She says that she contracted the disease from two hepatitis B vaccinations given to her at the Hassle Free Clinic. The issue on the motion for summary judgment is whether the plaintiff can prove general causation; that is, the defendant say they can establish that there is no serious issue requiring a trial as to whether the hepatitis B vaccine causes MS. This is a discrete issue that is separate from the question of whether the plaintiff’s illness was caused by the particular vaccinations that she received. That is a question of specific causation. The defendants seek to establish that the hepatitis B vaccine does not cause MS. If they succeed, they say that no matter how close in time to her vaccinations the plaintiff came down with her MS, it cannot have been caused by the vaccinations and therefore the action must be dismissed.

[4] This action was commenced in 2004. The defendants say that they raised the issue of general causation expressly in 2009. On the summary judgment motion they have served affidavits from professors detailing epidemiological studies of the hepatitis B vaccine. The plaintiffs, by contrast, have not been able to locate an expert of their own on the issue of general causation. Their motion materials are due on February 27, 2015 under the schedule established by the consent order made by Stinson J.

Case Conference February 24, 2015

[5] At a Case Conference on February 24, 2015 the parties asked me to schedule for hearing the plaintiffs’ motion seeking various relief including amendment of the schedule ordered on consent by Stinson J.

[6] At the Case Conference, Mr. Danson also raised a concern as to a possible conflict of interest that he wanted to air “on the record” although no relief was sought in relation to that matter.

[7] Mr. Danson raised the issue of an adjournment of the summary judgment motion in late December, 2014. Yet the parties only approached me to hold a Case Conference to schedule the adjournment motion last week after the defendants had delivered their responding material and a cross-motion. The cross-motion seeks to strike out from the plaintiffs’ adjournment motion materials, evidence that they have included about the plaintiff’s personal medical condition which I have previously ruled irrelevant to the main summary judgment motion. The defendants want to argue that it is not relevant to the adjournment motion either and it should not be before the court.

[8] The evidence adduced by each of the parties on the motion for an adjournment and the cross-motion make allegations concerning the conduct or misconduct of counsel opposite. The plaintiffs’ evidence, sworn by a lawyer at Mr. Danson’s firm, is unusual in that it also raises issues about the conduct of Mr. Danson in consenting to the schedule set by Stinson J. The affidavit evidence from each of the parties expressly includes information and belief provided by the principal counsel for that party. Moreover, many of the issues raised implicitly or explicitly deal with the conduct of principal counsel and the issues that have arisen among them. The significance of these issues remains to be seen. It would be most unfortunate if counsel were raising issues alleging misconduct of counsel opposite (and their own counsel in the plaintiffs’ case) as a tactic to try to improve the chances of obtaining or resisting an adjournment just due to the difficulties caused by the mere making of the allegations rather than their substance (if any).

[9] At the Case Conference, I advised all counsel that they should not appear on the adjournment motion and cross-motion. Mr. Danson confirmed that the plaintiffs expect to cross-examine Mr. Hamer’s colleague who swore his defendant’s affidavit. Mr. Hamer thinks that his defendant may not need to cross-examine Mr. Danson’s colleague or that the examination may be quite brief. Both Messrs. Danson and Hamer asked for the opportunity to review their affidavit material to see if they can re-draft it to remove the information and belief from themselves. I am dubious as to the propriety and, perhaps more important, the advisability, of counsel arguing a motion which one way or the other will be about things said and done by them including allegations of misconduct. I gave leave to the parties to try to re-craft their material. Whether the principal counsel are entitled to argue the motions and, in any event, whether they should do so, will remain to be seen.

[10] As the parties need time to revise their material, possibly to retain outside counsel, and to conduct cross-examinations, I scheduled the motion for an adjournment and the cross-motion to be returnable on March 30, 2105 at the same time as the motion for directions previously scheduled by Stinson J. on consent. In my handwritten endorsement at the Case Conference, I repeated the sentence that I have repeated many times since I was first contacted about the possibility of a motion being brought for adjournment/amendment to the consent scheduling order - that the consent order of Stinson J. remains in full force and effect unless or until it is amended.

Further Contact by Mr. Danson

[11] On February 25, 2015, the day after the Case Conference, I received a letter from Mr. Danson. He asks me to change my endorsement regarding the subsistence of the consent order of Stinson J. and to extend the time for delivery of the plaintiffs’ motion record from the date ordered by Stinson J. on consent until the return of the motion for adjournment. He says that if the order remains in effect, then his motion is rendered “moot”. Mr. Danson has previously asked me to change a ruling by a letter delivered shortly after I released a decision. I responded at that time that while from time to time requests for clarification arise, it is not proper to use such a request as an opportunity to re-argue the matter. As I noted the last time, so too this time, the terms of my endorsement are clear and require no clarification. As noted above, Mr. Danson’s letter was improper and although he complied with Rule 1.9 in form, he should not have sent the letter to me.

[12] The subsistence of the order of Stinson J. does not make the plaintiffs’ motion to amend the ordered schedule moot. The plaintiff is seeking many heads of relief including asking for an adjournment and yet again asking me to re-consider the decision I made last fall to allow the defendants to limit their motion for summary judgment to the issue of general causation alone. These remain live issues whether the plaintiffs choose to file any evidence for the motion for summary judgment by the scheduled deadline or not.

[13] Mr. Danson says that his colleague, who is the principal contact with his clients, is out of the office on urgent family matters. He does not suggest that this is the cause of the plaintiffs’ inability to deliver their motion materials by the deadline. He is not just asking for a day or two to let his colleague return to the office to finish collating the stacks of material that are ready to go. They do not have an expert witness on general causation. The plaintiffs claim that Mr. Danson was misled at the time of the scheduling motion before Stinson J. They also claim that Mr. Danson’s firm cannot possibly respond in time to the motion material delivered by the plaintiffs under the consent order of Stinson J. That will all be the subject of the hearing of the adjournment motion on March 30, 2015.

[14] Mr. Danson says that he cannot speak to his clients because the main plaintiff does not speak adequate English. Mr. Hamer refers to the examination for discovery of that plaintiff in which she says she manages on a daily basis in English and has taken a Grade 10 English course among other things.

[15] The issues that Mr. Danson raises in his letter were before me at the Case Conference. I note that Mr. Danson sent my office an email last week advising that he could not possibly argue the adjournment motion itself at the Case Conference. As noted above, he wants to cross-examine and to revise his material in any event. The motion is not ready to go although it has been discussed for two months and the approaching deadline was agreed to and ordered last summer.

[16] The grounds that the plaintiffs raise to seek an adjournment/amendment of the agreed upon schedule and for the other relief claimed will be considered at the hearing in the ordinary course. The motion is scheduled and the facts will resolve as they will. The order of Stinson J. remains in effect unless or until it is amended by the court.

________________________________ F.L. Myers J.

Date: February 26, 2015