ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 86009/13
DATE: 20150921

BETWEEN:

Ava Grace Duggan, a minor by her Litigation Guardian, Alyson Michelle Duggan, Alyson Michelle Duggan personally, Brad Duggan and Mary Ann Duggan

Plaintiffs

– and –

Lakeridge Health Corporation, Dr. Padamjit Singh, Dr. Graham Finch, Dr. Wilma Whiting, Dr. Mahmud Almadani, Stella Rostamian, Marie Rollauer, H. Prenzell, G. Woodhouse, Lisa Gorski, John Doe and Jane Doe

Defendants

Joseph Colangelo, for the Plaintiffs

Anne E. Spafford, for the Defendant Dr. Padamjit Singh

HEARD: September 21, 2015

REASONS

edwards j.:

Overview

[1] This is a medical malpractice claim arising out of the management of the labour and delivery of the minor plaintiff, Ava Duggan (“Ava”), on January 25 and 26, 2009. I conducted a pre-trial on September 30, 2014, and have been case managing this action. At the pre-trial on September 30, 2014, the liability evidence was such that I offered an opinion as to what the most likely result would be as it relates to the potential liability of the defendant, Dr. Singh (“Singh”). I also offered suggestions with respect to the range of damages and the possibility of an advance payment being made by Singh.

[2] The issue before me now relates to the form of Judgment that would flow as a result of any potential admission of liability by the defendant, Singh.

Position of the Plaintiff

[3] Counsel for the plaintiff takes the position that Singh, through her counsel, has made an unequivocal admission of liability and, further, has agreed to make an advance payment of $300,000.00. Counsel for the plaintiffs take the position that the form of Judgment put forth by counsel for Singh refuses to acknowledge, in the operative part of the Judgment, that the Judgment is “against the defendant Singh”. It is further argued that the first draft of the Judgment proposed by counsel for Singh was entitled “Partial Summary Judgment”. Finally, it is argued that Singh is reserving her position on the issues of causation due to a concern, which it is suggested, is “trivial”.

Position of Counsel for Doctor Singh

[4] In her responding submissions Ms. Spafford, on behalf of Singh, states in paragraph two:

Dr. Singh has acknowledged liability in this case. Dr. Singh admits that she breached the standard of care and that the breach caused Ava Duggan to suffer neurological impairment. Dr. Singh is prepared to proceed to trial on damages only against her. Dr. Singh is also prepared to make an advance payment as ordered by the Court.

Dr. Singh’s issues with the draft Judgment as proposed by the plaintiffs are not “trivial”. Dr. Singh’s position is simple. The draft Judgment proposed by the plaintiff does not define the damages for which she will be liable. [My Emphasis]

Analysis

[5] Both counsel, during the course of a telephone case conference conducted on July 28, 2015, agreed that I could determine the form of the Judgment based on written submissions from counsel, which I have now received. Counsel should be commended for agreeing on such a means by which this issue can be resolved in a timely and expeditious fashion, without the need for lengthy written and oral submissions.

[6] Having had the opportunity to review the written submissions from both counsel, as well as the correspondence between counsel that led up to the disagreement concerning the form of Judgment, I can unequivocally state that both counsel have an honest disagreement with respect to the form of Judgment that should flow from the unequivocal admission of liability made by Singh through her counsel. That unequivocal admission of liability is reflected in the responding written submissions filed by Ms. Spafford on behalf of Singh.

[7] There are, essentially, two plaintiffs who assert claims for damages that flow from the negligence of Singh. The first, and by far the most significant, is a claim made by the infant plaintiff, Ava. The second claim arises out of injuries that were allegedly suffered by the birth mother, Alyson Duggan. What flows from the admission of liability will be an obligation on the part of Singh to respond to the damages that flow and are causally linked to the admission of liability as they relate to Ava and Alyson.

[8] Ms. Spafford, on behalf of Singh, in my view quite correctly points to the fact that the action against the Lakeridge Health Corporation will continue. No admission of liability has been made by Lakeridge Health Corporation. Ultimately, Lakeridge Health Corporation may be found liable, and like Singh will be found jointly and severally responsible for whatever damages ultimately flow from their respective negligence. Singh can only be held responsible for the damages caused by her negligence. With this is mind, I propose that the form of Judgment as it relates to the admission of liability by Singh, and also with respect to the issue of the advance payment, should be worded as follows:

This court orders and declares that the plaintiffs are hereby granted Summary Judgment as follows:

a) the defendant Singh has breached the expected standard of care in the delivery of the plaintiff, Ava Grace Duggan, born January 26, 2009;

b) the defendant Singh shall pay to the plaintiff, Ava Duggan, her damages as assessed at trial that were caused by the defendant Singh’s negligence;

It is further ordered the defendant Singh is liable to the plaintiff, Alyson Duggan, for damages caused by the defendant Singh’s breach of the expected standard of care in the delivery of the plaintiff, Ava Duggan.

The defendant Singh shall, forthwith, make an advance payment of $300,000.00 on terms which will require the aforesaid advance payment to be used solely for the following:

I. a special needs motor vehicle designed for Ava Duggan’s special needs, specifically, but not limited to, a motorized wheelchair;

II. the purchase of and/or renovation of Ava Duggan’s residential requirements to accommodate her need for a motorized wheelchair;

III. specialized therapy, which may include educational supports;

IV. physiotherapy and occupational therapy;

V. respite attendant care.

[9] All payments for the items listed in items I through V above are to be accounted for in a passing of accounts, to be approved by this Court, no later than December 1, 2016.

[10] The defendant Singh shall receive credit for the payment of the $300,000.00 advance payment against any damages awarded at trial, or by way of a Court approved settlement. No mention shall be made of the $300,000.00 advance payment to the trial judge.

[11] With the approval of the aforesaid draft terms of Judgment, I believe that not only the spirit, but also the import of the admission of liability of Singh, shall be incorporated. Whether there is, or there is no ultimate finding of negligence as against the Lakeridge Health Corporation, should have no bearing on the ability of the plaintiffs to recover Judgment for the damages that are assessed at trial, and that are found to be causally linked to the admission of liability by Singh.

[12] As to the question of costs of the motion before me I am satisfied, having reviewed the materials filed by counsel - including the correspondence that flowed between counsel, that what has occurred in this case was an honest disagreement between counsel that has now been resolved in an expeditious and timely fashion. I am, therefore, exercising my discretion to make no award of costs.

[13] As to the timing of the trial and potential for an overall resolution of this action, I am directing that counsel contact my office to arrange for a further pre-trial/trial management conference, which shall – subject to court availability and counsel’s timetable, take place no later than January 31, 2016.

Justice M.L. Edwards

Released: September 21, 2015