SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-401690
DATE: 20151019

RE: Jordan Sacks, Lisa Sacks, Ryan Sacks, by his Litigation Guardian Lisa Sacks, Alexis Sacks, by her Litigation Guardian Lisa Sacks, Emma Sacks, by her Litigation Guardian Lisa Sacks, Michael Sacks and Annette Sacks, Plaintiffs

AND:

Theodore Ross, Aliyah Kanji, Anna Maureen Bendzsak, Jeffrey Singer, John Doe I, John Doe II, Pamela Raye-Ilogu, X. Li, T. Hollowitch, Jane Doe I, Jane Doe II and Sunnybrook Health Sciences Centre, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Duncan Embury & Daniela M. Pacheco, Counsel for the Plaintiffs

Frank J. McLaughlin & Dorothy E. Charach, Counsel for the Defendants

HEARD: October 15, 2015

ENDORSEMENT

[1] The Plaintiff, Jordan Sacks, brings this action in negligence against the Defendants arising from his treatment while at the defendant hospital in May, 2008. It is alleged that the Plaintiff underwent a routine abdominal surgery by Dr. Ross and in the post-operative period, he developed an anastomotic leak which was not diagnosed in a timely fashion. As a result, it is alleged, he developed severe septic shock, resulting in organ failure and gangrene which led to amputation of his legs and fingers and dozens of skin grafts. Liability is denied by the defendants; but it is not disputed that Mr. Sacks suffered very serious, life threatening injuries.

[2] This action is set to proceed to trial with a jury before me on October 26 with an estimated trial time of 8 weeks. Damages have recently been agreed upon although I am not privy to the quantum of the damage assessment.

[3] The Defendant physicians bring this motion for an order permitting Dr. Kanji to provide her trial evidence by video-conference. At the time of the events giving rise to this claim, Dr. Kanji was a first year resident at Sunnybrook in the surgery rotation. Her involvement with the Plaintiff’s care occurred on one occasion, May 16, 2008, at approximately 4:40 in the afternoon. It is not disputed that she assessed the Plaintiff and ordered blood work. She went off shift somewhere around 6:00 that evening. She did not make a note in the chart of her assessment of Mr. Sacks on May 16, 2008.

[4] There is an issue about the timing of the blood work ordered by Dr. Kanji. She ordered it “now” and it was entered into the computer as “stat” which is a more urgent order. The timing of the order is important because the Plaintiff argues that the results of the blood work, specifically the elevated white blood cell count, were indicative of a leak, which ought to have been recognized by the various health care providers as a leak and the failure to do so constitutes negligence.

[5] Dr. Kanji is now practicing in Edmonton, Alberta and is on maternity leave with her son, who was born in August, 2015. She has filed a letter dated October 8, 2015 [tab A of motion record] which states that she is nursing her son and he would have to accompany her to Toronto for her testimony. She states, “Attending in person in Toronto to testify would cause me considerable expense, inconvenience and would be quite disruptive to my family. I would be very grateful if my personal circumstances could be accommodated by permitting me to testify by videoconferencing.”

[6] Counsel for the Defendants submits that the role of Dr. Kanji in the larger scheme of things is minor; she assessed Mr. Sacks on one occasion only and was not working when the blood work results were available so it cannot be argued that she should have followed up on them. None of the experts retained by the Plaintiffs opine that Dr. Kanji fell below the standard of care so her evidence is more akin to that of a fact witness as opposed to a party. Mr. McLaughlin relies on the principles expressed in Hryniak v.Maudlin, 2014 SCC 7, arguing there has been a culture shift and the court must look at what is the most efficient, economical way to proceed and in this case, it is not necessary that Dr. Kanji attend court to give her evidence as there is no prejudice to the Plaintiff if she is permitted to do so by video conferencing.

[7] The Plaintiff objects to Dr. Kanji providing her evidence by video, submitting that she is a defendant in this lawsuit, her credibility is in issue and her evidence is important. Further, it is argued, the Plaintiff has the right to have Dr. Kanji present in court to answer for her actions; this is a fundamental right of the Plaintiff and he is entitled to a fair trial.

Analysis

[8] Rule 1.08 of the Rules of Civil Procedure is the applicable rule for the relief sought on this motion. It provides a list of factors for the court to consider when making the determination. They include the importance of the evidence, the effect of video on the ability to make determinations about credibility and demeanour of the person, the balance of convenience and whether the party is unable to attend because of illness or any other reason. The rule notes that there is a general principle that evidence should be presented orally in open court.

[9] I agree with the submission of the defence that, pursuant to Hryniak, supra, “the legal system is now working within a new paradigm: the conventional trial is no longer the default procedure for resolving litigation disputes.” Whether the use of videoconferencing ought to be used is an exercise of discretion of the court based on the facts of a particular case.

[10] In the case before me, I accept that Dr. Kanji plays a minor role in the overall scheme of things. I also accept that her evidence will be brief in all likelihood and that her present circumstances make it inconvenient for her to attend trial in Toronto.

[11] I found the case of Chandra v. Canadian Broadcasting Corp. [2015] O.J. No. 4541 to be helpful in articulating the considerations of the court when making such an order. In that case, the defence sought to have the evidence of 5 witnesses, one of whom was an expert witness, taken by videoconference at trial because 4 of them resided in the United Kingdom and it would be costly and difficult for them to attend court in Toronto. Justice Mew stated, “While each request will necessarily turn on its own facts and circumstances, provided that there is a reasonable explanation for a witness not being able to attend in court to give evidence, and provided also that the technology is available and can readily be deployed, a court should be reluctant to deprive itself and the parties of the opportunity to receive the testimony of a non-party witness through video conferencing.” I agree with this view; further, it is often more efficient and cost effective to have evidence of certain witnesses done by videoconferencing and counsel should direct their minds to this option in the appropriate cases. I also take note of the fact that in the cases where the court permitted a witness’s evidence to be done by videoconferencing, the results were entirely satisfactory and the concerns about the quality of the evidence or ability to scrutinize the witness were unfounded.

[12] In the case before me, Dr. Kanji is not simply a witness; she is a defendant and this is an important distinction, in my view. She has been sued by the Plaintiff and he intends to argue at trial that she is, in part, responsible for his injuries. While her role in the events at issue may be small, the Plaintiff asserts it was with the assessment of Dr. Kanji on May 16 that the negligence of Mr. Sacks’s treating health care practitioners commenced. The Plaintiff has a right to have the parties he has sued attend in court as part of the process by which the adjudication of this dispute will be effected. It is part of due process to which a litigant is entitled as a fundamental right. Such a right could be abrogated in an appropriate case, but these are fact dependent. None of the cases relied on by counsel are cases where a party to the litigation requested that his or her evidence be done by videoconferencing. I am unaware that such an order has been made in a civil proceeding.

[13] I am also mindful of the reason behind the request of Dr. Kanji to have her evidence taken by video. Her reasons are not particularly compelling; it is not a case where she cannot attend because she herself is infirm or a close family member is ill or even where the demands of her job make it close to impossible for her to get away. I am sympathetic to the fact that she is a mother with 2 young children; but taking a flight to Toronto to testify in a trial where she is a defendant is not what I would describe as a hardship; an inconvenience perhaps, but not a hardship. In my opinion, fairness and the right to due process dictates that Dr. Kanji must attend in court to give her evidence.

Conclusion

[14] The motion by the Defendants is dismissed.

D.A. Wilson J.

Date: October 19, 2015