2015 ONSC 3818
COURT FILE NO.: C-11267/08
DATE: 2015-06-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anne Marie Szarko
Plaintiff
– and –
Dr. Guillaume Racicot Dentistry Professional Corporation
Defendants
Michael A. Gauthier, for the Plaintiff
Eric S. Baum, for the Defendants
HEARD: June 10, 2015
RULING ON MOTION
GAUTHIER J.
The Issue:
[1] Whether the summary judgment motion brought by the defendants should be adjourned to a date following the examination of one of the defendants’ expert witnesses, Dr. Tam, and whether the litigation timetable dated January 30, 2015, should be amended accordingly.
[2] The action involves certain dental treatment the plaintiff received from the office of the defendants on December 8, 2006.
[3] The plaintiff alleges having sustained injury as described in the statement of claim which was issued on November 14, 2008. The plaintiff’s claim is for general and special damages in the amount of $250,000. The statement of claim alleges, among other things, that the defendant doctor of dental medicine failed to adequately advise the plaintiff of the risks, dangers, and hazards involved in the treatment, that he failed to obtain the plaintiff’s informed consent, that he failed to adequately train or supervise his employees in applying the treatment, and that he failed to provide appropriate post-treatment care to the plaintiff.
[4] The plaintiff obtained two expert reports from Dr. Jacques Thibault: one dated March 31, 2010, and a second dated July 22, 2013.
[5] A statement of defence was delivered on November 22, 2011.
[6] On September 16, 2013, the Local Registrar issued a status notice. A status hearing was set to be heard on November 29, 2013. That hearing did not proceed as a result of the defendants bringing a summary judgment motion, returnable on March 7, 2014.
[7] That motion was withdrawn on February 19, 2014.
[8] On May 2, 2014, a litigation timetable was established on the agreement of counsel. The matter was to be set down for trial on or before January 31, 2015.
[9] On January 30, 2015, the May 2, 2014 timetable was varied to provide as follows:
STEP
PARTY
DATE OF COMPLETION
File Motion Record and Affidavits for Summary Judgment Motion of Moving Party
Defendant (Moving Party)
March 6, 2015
Affidavit/Responding Motion Record of Responding Party
Plaintiff (Responding Party)
March 18, 2015
Reply Affidavit (if any)
Defendant (Moving Party)
March 25, 2015
Examinations for Discovery on Examinations on Affidavits to be completed together
Plaintiff and Defendant
March 27, 2015
Undertakings
Plaintiff and Defendant
April 24, 2015
Motion re Refusals from Examinations on Affidavits/Examinations for Discovery - to be heard by this date
Plaintiff and Defendant
May 15, 2015
Factum and Authorities of Moving Party
Defendant (Moving Party)
May 29,2015
Factum and Authorities of Responding Party
Plaintiff (Responding Party)
June 5, 2015
Summary Judgment Motion
June 10, 2015
Exchange of Expert Reports
Plaintiff Defendants (Responding Report) Plaintiff Reply Report (If Any)
completed completed completed
Set Down for Trial
Any Party
September 11, 2015
[10] On March 6, 2015, defendants’ counsel sent to plaintiff’s counsel, by email, a fresh as amended notice of motion, (motion for summary judgment), returnable June 10, 2015, and supporting affidavits, including the affidavit of Laura Tam, sworn on March 2, 2015.
[11] On March 11, 2015, plaintiff’s counsel corresponded with defendants’ counsel, requesting originals of the material sent electronically on March 6, 2015, advising that “upon review of the further report of Dr. Tam, and upon review of her Affidavit, including the last paragraph thereof, I do believe it essential in order for my client to put its [sic] best foot forward at the forthcoming Summary Judgment Motion, that Dr. Tam be examined orally and in person.”
[12] Plaintiff’s counsel also requested information about Dr. Tam’s availability to be examined.
[13] On March 16, 2015, plaintiff’s counsel requested the defendants’ original affidavits with exhibits, again inquired about Dr. Tam’s availability for examination, asked whether defendants’ counsel wished to examine Dr. Thibault on his affidavit, and confirmed examinations of the defendant dentist, and of the hygienist.
[14] Also on March 16, 2015, defendants’ counsel provided the original motion materials and expressed surprise at plaintiff’s counsel wanting to examine Dr. Tam, in view of the fact that he had earlier indicated that such examination was not necessary.
[15] On March 17, 2015, plaintiff’s counsel served the responding motion record, inquired about Dr. Tam’s availability, and suggested that accommodating Dr. Tam’s schedule may necessitate amending the litigation timetable.
[16] On March 23, 2015, plaintiff’s counsel again asked about Dr. Tam’s availability.
[17] The same inquiry was made by correspondence from plaintiff’s counsel to defendants’ counsel on March 25, 2015. That correspondence also repeated the request for advice on the examination of Dr. Thibault, and inquired about the defendants bringing a motion to amend the litigation timetable. Finally, the letter referred to the upcoming hearing date for the summary judgment motion and said this:
“We will only be able to make a determination as to when to reschedule the Summary Judgment Motion, if necessary, once we have confirmed Dr. Tam’s availability for Examination and her Examination date.”
[18] On April 24, 2015, plaintiff’s counsel once again requested confirmation of whether or not defendants’ counsel wished to examine Dr. Thibault, and inquired about Dr. Tam’s availability for examination. Plaintiff’s counsel once again suggested the possible need to amend the litigation timetable.
[19] On the same date, defendants’ counsel advised that they had contacted Dr. Tam about her availability, and were hopeful that they would hear from her shortly.
[20] Counsel had a telephone conversation on May 11, 2015, during which they determined that Dr. Tam’s availability in May did not match that of plaintiff’s counsel. Plaintiff’s counsel proposed some June dates for the examination of Dr. Tam.
[21] On May 27, 2015, the plaintiff once again raised with defendants’ counsel the question about the possible examination of Dr. Thibault, and about Dr. Tam’s availability. Plaintiff’s counsel pointed out, on that date, that “at this point we will not be able to maintain” the June 10, 2015 hearing date, and requested that defendants’ counsel confirm having informed the Trial Co-Ordinator of the need to vacate the date, in advance. The May 27, 2015, correspondence went on to say:
“We can deal with a motion to amend the Litigation Timetable in the meantime, which as I have indicated for reasons previously stated, should be brought by your client.”
[22] The May 27, 2015, correspondence underscored the fact that plaintiff’s counsel had not had the opportunity to examine Dr. Tam, and that he still did not know if defendants’ counsel required the examination of Dr. Thibault.
[23] Again, on June 1, 2015, plaintiff’s counsel corresponded with defendants’ counsel about the issues raised in the May 27, 2015, correspondence.
[24] On June 5, 2015, a number of events occurred.
[25] Defendants’ counsel sent his factum and book of authorities to plaintiff’s counsel. He also advised that there would not be any examination of Dr. Thibault. Finally, defendants’ counsel corresponded with the office of the Trial Co-Ordinator requesting that the court permit the defendants’ motion material to be filed on Monday, June 8, 2015, for the June 10, 2015, motion.
[26] Plaintiff’s counsel corresponded with the office of the Trial Co-Ordinator, objecting to any late filing of the defendants’ motion materials. Plaintiff’s counsel also corresponded with defendants’ counsel confirming that he would be requesting (a) that the judge deny any request for an extension for the motion to be heard, and (b) that any request to amend the litigation timetable be denied.
Defendant’s Position:
[27] The Defendants submit that there should be an adjournment of the summary judgment motion. All that remains to be done is the examination of Dr. Tam. There should also be an amendment to the litigation timetable to reflect the adjournment of the summary judgment motion.
[28] Defendants’ counsel estimates that, even if the plaintiff is successful on liability, her damages would not exceed $25,000. That being the case, it is in the interest of proportionality that there be a half-day summary judgment motion, as opposed to what he estimates will be a six day trial.
[29] Defendants’ counsel submits that all of plaintiff counsel’s letters suggest that an adjournment of the summary judgment motion would be required, given the need for Dr. Tam to be examined.
Plaintiff’s Position:
[30] The plaintiff vigorously opposes both requests. This is the second time that a summary judgment motion was brought: the former was abandoned, and the current motion is not properly before the court. It was not filed with the court in accordance with the litigation timetable, despite service on the plaintiff in March, 2015.
[31] The defendants should not be permitted to reschedule the motion, therefore delaying the proceedings and jeopardizing the feasibility of compliance with the September 11, 2015, deadline for setting the matter down for trial, especially in the face of the repeated requests for Dr. Tam’s availability, which largely went unanswered.
[32] The plaintiff submits that the appropriate order for me to make is to deny the defendants’ request and to disentitle the defendants from bringing a summary judgment motion without leave of the court, and, not before a pre-trial is held.
[33] The plaintiff estimates her damages to be closer to $100,000 than to the $25,000 put forward by the defendants.
Analysis:
[34] The defendants have been contemplating a summary judgment motion for a considerable period of time (since late 2013), and yet did not take all of the proper steps to have such motion heard. And this, despite the amended litigation timetable which specifically addressed the steps to be taken in connection with the motion.
[35] A party has a duty to diligently pursue a matter that it has raised. The defendants did not do so in this case.
[36] There has been delay in attempting to arrange the examination of Dr. Tam, and that delay was caused by the defendants. The numerous requests, (between March 11, 2015, and mid-May, 2015) for her availability were largely ignored. By the date set for the hearing of the motion, a date had still not been agreed upon.
[37] There is the further delay in confirming the need to examine Dr. Thibault. It was not until June 5, 2015, that defendants’ counsel confirmed that it did not require such examination. That was five days before the date set for the hearing of the motion.
[38] The defendants did not comply with the litigation timetable with regard to delivery of the factum and book of authorities.
[39] The defendants’ summary judgment motion is not properly before the court. Rule 37.08(1) provides for the filing of a notice of motion at the court office where the motion is to be heard, seven days before the hearing date. The litigation timetable deviated from this requirement by indicating March 6, 2015, as the date on which filing of the defendants’ motion record was to be filed. The defendants’ notice of motion was not filed in accordance with Rule 37.08(1), or at all. To have permitted the late filing requested on June 5, 2015, would not have been appropriate in the circumstances.
[40] There is nothing before the court to adjourn.
[41] In the circumstances, and given the failure of the defendants to pursue the matter of summary judgment, it is also appropriate, as part of the court’s function in controlling its process, to require the defendants to obtain leave to bring any summary judgment motion between now and the trial of the action, and I will make such order. The same will apply to any motion by the defendants to amend the litigation timetable.
Order:
The defendants shall not be at liberty to bring a motion for summary judgment, or a motion to amend the litigation timetable dated January 30, 2015, without leave of the court.
In the event that the parties cannot agree on costs, the plaintiff may make written submissions as to costs within 25 days of the release of this Ruling. The defendants shall have 10 days after receipt of the plaintiff’s submissions to respond. If no submissions are received 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: June 15, 2015
2015 ONSC 3818
COURT FILE NO.: C-11267/08
DATE: 2015-06-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anne Marie Szarko
Plaintiff
– and –
Dr. Guillaume Racicot Dentistry Professional Corporation
Defendants
RULING ON MOTION
Gauthier, J.
Released: June 15, 2015