Court File and Parties

COURT FILE NO.: 11-4CV- 25453 and 11-CV-425451

Heard: February 11, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dawson v. Wein

BEFORE: Master Joan Haberman

COUNSEL: Allen, T. (student) for the plaintiff Hughs, H. for the defendant

REASONS: OPPOSED STATUS HEARING

Master Haberman:

[1] These two actions were commenced by Notice of Action, issued on April 29, 2011, and served with corresponding statements of claim which were then filed on May 30, 2011. On April 28, 2014, the court issued a Status Notice in each. The plaintiffs were required to show cause at a contested Status Hearing, at which time they satisfied the test for allowing the action to proceed. My Reasons for having reached this conclusion follow.

BACKSTORY – the evidence of both sides

[2] The plaintiffs are husband and wife and they apparently acted on their, own without the aid of counsel, when these actions were commenced. Each plaintiff claims to have been the victim of dental malpractice at the hands of the defendant in March and April 2009.

[3] I point out that the materials filed by the plaintiffs for this proceeding were in somewhat of a shambles. Though there were separate records for each of the two actions – one initiated by Paul Dawson, the other by his wife, Cindy- it is only Cindy’s documents that appear in Paul’s record but the reverse is not true. I have therefore not seen Paul’s pleadings, but I am told nothing turns on this.

[4] Although the supporting affidavit indicates that the law firm of Levinter & Levinter (“the firm”) was retained by both plaintiffs on May 19, 2011, it does not appear they filed anything to alert the court to this change - there is no reference in the Case History to their having gone on record at that time. This appears to have been the initial source of delay.

[5] The evidence is at odds with the Case History in two places. At one point, the deponent states that the statements of claim were issued on May 30, 2011- in that Notices of Action had already been issued, these pleadings would not have been. In fact, the Case History notes that that Statements of Claim were filed on that date.

[6] A further problem in the plaintiffs’ evidence is the deponent’s indication that the pleadings were only served on September 24, 2011. As the statements of claim had already been filed with the court four months earlier, they would have had to have been served before this step. While nothing appears to turn on these evidentiary discrepancies, the fact that sworn evidence diverges from the court record is a concern, nonetheless. Deponents should take care before they swear that the contents of an affidavit are true to ensure that that is the case.

[7] The plaintiffs’ evidence is to the effect that a waiver of defence was provided during a telephone conversation of October 3, 2011. This is not disputed.

[8] The actions were dismissed as abandoned in December 2011. The plaintiffs’ evidence is to the effect that Notices of Impending Dismissal was sent to the plaintiffs directly as they had issued the Notices of Actions in their own names. The firm had also failed to file Notices of Appointment with the court. There is, however, no evidence explaining why the plaintiffs did not forward these Notices to their counsel. To compound this problem, the firm also neglected to diarise the Rule 48.15 six- month period, so, after having given a waiver of defence, they failed to seek delivery of statements of defences to ensure compliance with this rule in a timely fashion.

[9] The plaintiffs waited until receipt of the orders dismissing their actions, dated December 22, 2011, before notifying their counsel that anything was amiss. Notification to counsel was delayed until January 18, 2012, as the plaintiffs had been away when the orders, sent to their home, were delivered. The dismissal orders were set aside promptly, on consent, in March 2012, the firm having gone on the record in February 2012. Statements of defence were delivered in in April 2012.

[10] The defendant apparently changed counsel in March 2013 and again in October 2013.

[11] Not surprisingly in the context of the first dismissal and the changes of counsel by the defendant, the action did not proceed with dispatch and, on April 28, 2014, the court issued a Status Notice.

[12] Well before that, however, the firm requested relevant documents from various dental health care providers involved with assessing and performing remediation services as a result of what they claim to have been poor work by the defendant.

[13] For the most part, the documents sought by the firm on behalf of the plaintiffs were received and forwarded to defence counsel. The one exception involved some records from Dr. Goldstein, who it appears, was ultimately responsible for a large part of the delays that transpired.

[14] Again, the evidence here is less than clear but I have gleaned the following from it. On July 13, 2011, the firm wrote to Dr. Goldstein, asking for clinical notes and records for both plaintiffs. What they received from Dr. Goldstein was provided to defence counsel, who advised, on April 5, 2012, that the copies provided were of no diagnostic value. Defence counsel followed up with Dr. Goldstein in May and June 2012 for electronic versions.

[15] On November 28, 2012, the firm sought digital copies of Dr. Goldstein’s x-rays pertaining to Cindy. New defence counsel came on board in February 2013 and filed a Notice of Change on October 7, 2013. There is no explanation in the materials for new defence counsel’s delay in going on the record.

[16] The firm wrote again to Dr. Goldstein on April 19, 2013, this time asking for Cindy’s clinical notes and records (it is not clear why this request was repeated if the documents had already been received and forwarded to the defence) and for digital copies of Paul’s x-rays. This requests, as regards Paul. was made almost a year after these documents had been sought by defence, but in the interim, Dr. Goldstein had not responded to the firm’s earlier request for Cindy’s digital e-rays.

[17] On the same date, the firm wrote to advise the defence that these materials had been requested from Dr. Goldstein.

[18] The firm followed up with Dr. Goldstein yet again. A conference call was arranged on May 28, 2013 for June 3, 2013, to ascertain the reason for the delayed response but she did not respond to the call. The firm therefore wrote to her again that day. Apparently, something must have been received earlier, as the supporting affidavit notes that Dr. Goldstein’s treatment records for both Paul and Cindy were forwarded to the defence on May 29, 2013. However, by July 4, 2013, the firm had yet to receive the digital x-rays for either plaintiff from this dentist and the firm wrote to defence counsel to so advise.

[19] New defence counsel started to pursue the firm for the outstanding Goldstein records when they came on board, writing on September 16, 2013, and October 23, 2013 to inquire as to their whereabouts.

[20] Dr. Goldstein’s clinical records and x-rays for both Paul and Cindy were again provided to defence counsel on November 8, 2013, but as the x-rays were still not in digital form, defence counsel wrote again.

[21] On January 22, 2014, defence counsel wrote to threaten a motion to dismiss for delay if the digital x-rays, along with some other records and information sought, were not received by January 31, 2014 – about a week away. The firm again sought electronic copies of those x-rays from Dr. Goldstein by letter of January 23, 2014.

[22] On January 24, 2014, the firm sent defence counsel their clients’ unsworn affidavit of documents and copies of their request letters to Dr. Goldstein of April 13, 2013 and January 23, 2014. As a result, on or shortly after January 24, 2014, the defendant had all it needed to bring a motion for production of the digital x-rays from Dr. Goldstein pursuant to Rule 30.10.

[23] The electronic copies of these x-rays, long awaited from Dr. Goldstein, were finally received by the firm on February 3, 2014, and they were forwarded to defence counsel on February 5, 2014. Defence’s counsel’s evidence suggests that these were only “some” electronic radiographs, but there is no indication in her evidence to indicate in what manner that were deficient or incomplete. Though equipped with copies of two request letters, the defence brought no motion pursuant to 30.10.

[24] On April 28. 2014, the court issued a status notice, and about a month later defence counsel wrote to advise that they would be contesting the imposition of a timetable. The matter first appeared in Status Hearing court on September 16, 2014 and, at that time put over for a hearing, to February 11, 2015.

[25] The plaintiffs point out that there have been several changes of counsel on both sides and that this has contributed to delay. They started out on their own, then retained counsel after completing their pleadings. The defendant first appointed Ms. Scherman in February 2012, then Mr. Katirai in March, 2013 and, finally, Ms. Wise in September 2013. Plaintiff’s counsel left the firm, and their new counsel took over carriage of the file in April 2014. They also set out the difficulties they were having in getting copies of digital x-rays for both plaintiffs from Dr. Goldstein, adding that the defence has failed to bring a Rule 30.10 motion regarding these or any other outstanding documents, though e quipped to do so.

[26] In terms of prejudice, the plaintiffs assert, through counsel, that the defendant will not suffer any non-compensable prejudice and that the delay in getting the digital x-rays should have no impact of the defendant’s position at trial. All potential witnesses and documentary evidence required for trial and discoveries are said to be alive, easily located and available and all documentary evidence has been preserved. The dental records have been produced and are available. Neither a Rule 30.10 motion nor a defence medical examination of either plaintiff has been pursued.

[27] There is no evidence of actual prejudice on the defendant’s part.

THE LAW, ANALYSIS and CONCLUSION

[28] Although there have been considerable changes to the Rules 48.14 and 48.15 regime, Rule 48.14(12) states that if a status hearing was scheduled before January 2, 2015, as this one was, the old regime applies.

[29] Rule 48.15(13) discusses what transpires at a status hearing, stating that the plaintiff shall show cause why the action should not be dismissed for delay. Case law has interpreted this phrase to consist of two requisites for the plaintiff to demonstrate:

1. That there is an acceptable explanation for the delay; and

2. That, if allowed to proceed, the respondent would suffer no non-compensable prejudice.

[30] This approach has been upheld by the Court of Appeal in Khan v. Sun Life Co. of Canada 2011 ONCA 650, [2011] OJ No. 4590 and in 1196158 Ontario Inc. v. 6274013 Canada Ltd. 2012 ONCA 544, [2012] OJ No. 3877.

[31] Delay is assumed if the timelines established by these Rules have not been met, hence the onus is on the plaintiff with respect to providing an acceptable explanation for that delay. Prejudice is also assumed (see Wellwood v. OPP, 2010 ONCA 386) if the applicable limitation period has expired, inevitable in almost all of these cases, so again, the plaintiff has the onus of explaining why there will not be prejudice that cannot be compensated for. If the plaintiff accomplishes that, the onus shifts back to the defendant to provide evidence of actual perceived prejudice.

[32] Though the test is conjunctive, in applying any tests articulated or reiterated by the Court of Appeal that deal with timelines pertaining to looming or actual administrative dismissals, the court should refrain from adhering to a rigid set of rules. Instead, a more contextual approach is called for, such that all relevant factors are to be considered in the mix when the court assesses whether the explanation for the delay that is provided is acceptable. Unexpected or unusual contingencies must therefore inform that part of the test.

[33] Here, the difficulties that the firm had in getting Dr. Goldstein to deal with their repeated requests for digital x-rays amounts to an unexpected and unusual contingency, something beyond the plaintiffs’ control and a factor that created a significant part of the delay.

[34] It is also critical to note that an “acceptable” explanation needn’t necessarily be a “good” one but simply a passable one – in essence, one that is “good enough” in the context of the surrounding factual matrix (see 3 Dogs Real Estate Corp. v. XCG Consultants Ltd. [2014] OJ No. 1789). In that regard, each case must turn on its own facts, as that supports a contextual approach.

[35] Among the factors that court should consider when assessing whether the explanation for delay is acceptable is the conduct of the defendant. This is trite law. Here, defence counsel’s conduct was, initially, exemplary in terms of their pursuit of digital radiographs of both plaintiffs, which would allow them to see the alleged deficiencies with the defendant’s work that the plaintiffs complain of.

[36] However, at some point in late January or early February 2014, the defence was in possession of copies of two letters sent by the firm to the dilatory Dr. Goldstein, so they had it within their power to bring the necessary Rule 30.10 motion to seek a court order requiring this dentist’s compliance.

[37] A plaintiff in a personal injury or medical malpractice action satisfies her obligation to collect all documents within her power and control by sending request letters, in proper form, with enclosed authorizations, to third parties. This is considered “best efforts.” Once they have done that at least twice, and provided copies of their request letters to the defence, they have satisfied their obligation of using best efforts.

[38] They have also put the defence in a positon to obtain a court order mandating compliance. Only a defendant can do that – a plaintiff is not expected to obtain a court order against their potential trial witness, who may include on-going care providers.

[39] There is no explanation in the defendant’s evidence regarding their own failure to act once they had the two request letters in hand. This must also be considered as a relevant factor.

[40] When reviewing the totality of factors, it seems there was an early delay when the action was dismissed as abandoned, owing to the waiver of defence granted to the defendant. The period was not long and that dismissal was set aside on consent. It is standard practice in personal injury/medical malpractice actions to waive defences, to provide the defendant with an opportunity to investigate the claim, thereby allowing them to file a meaningful, rather than simply a perfunctory, defence or to settle an action at the adjuster level.

[41] It is this waiver that has resulted in a significant number of cases being dismissed as abandoned, the large majority resolved by consent ordered, some initiated by the defendant. This has long been a point of contention with the now former Rule 48.15 regime, such that the “6 months from first defence” timeline has been abolished.

[42] While I am required to deal with this matter on the basis of the law as it stood at the time of the status notice and the first appearance in Status Hearing court, it is appropriate, when exercising my discretion, to be informed by the fact that this regime has been changed since that time, largely in response to the fact that it was found not to function well.

[43] The plaintiffs’ counsel neglected to file Notices of Appointment with the court, so the notice of impending dismissal and the dismissal as abandoned order both went directly to the plaintiffs. Once their counsel became involved, repair operations began quickly.

[44] The rest of the delay is attributable to a largely unresponsive Dr. Goldstein and to shifting counsel on both sides. Before the Status Notice issued, the defence was in a position to deal with the missing Goldstein records, but they failed to do so and have not explained why.

[45] On the evidence before the court, I am satisfied that the explanation presented for the delay is acceptable.

[46] With respect to prejudice, I find that the delay has not been long so the presumption of prejudice is a slim one and easily rebutted. The plaintiffs have tendered evidence to suggest that the witnesses and evidence remain available. In my view, they have rebutted any prejudice that could be presumed so it remains the task of the defendants to now demonstrate non-compensable prejudice. They have tendered no evidence at all to that effect. I am therefore satisfied that the plaintiffs have also met the second part of the test, as well.

TIMETABLE and COSTS

[47] At the end of the day, I am hard pressed to understand why this status hearing was opposed. The action will proceed on the basis of the timetable contained at tab 6 of the motion record, with some adjustments, as follows:

1. Examination for discovery of all parties to be completed by June 15, 2015;

2. Answers to undertakings to be completed by all parties by September 30, 2015;

3. Motions for refusals to be completed by December 30, 2015 (I note that counsel proposed this deadline but it is not realistic in view of the current state of the lists. There will have to be some flexibility here);

4. Mediation must be completed before the action is set down for trial;

5. This action shall be set down for trial no later than February 10, 2016, failing which it will dismissed with costs.

[48] It is unusual, in a matter of this kind, to award costs to the plaintiffs but, in my view, the unusual is what is required here. Despite the evidence in her own record, responding counsel seemed oblivious to the fact that her firm had in hand two request letters that would have enabled them to obtain Dr. Goldstein’s digital x-rays and she was unprepared to address the issue, factually or practically. She also seemed unaware of what constitutes best efforts to comply.

[49] This action has been delayed by 11 months because of the show cause that was requested, in my view, without a factual basis. It is important for the court to step in when a defendant tries to use these Rules harshly and to gain unfair tactical advantages. This regime should not be used to “take a run” at an action. That is not what these Rules were intended to encourage, as this arbitrary approach only leads to further delay and added costs.

[50] I therefore order costs payable to the plaintiffs, fixed at $1972.92, within 30 days.

__(original signed) __

Master Joan M. Haberman

Release March 26, 2015