Court File and Parties

COURT FILE NO.: 86009/13 DATE: 20160811 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AVA GRACE DUGGAN, a minor, by her Litigation Guardian, Alyson Michelle Duggan, ALYSON MICHELLE DUGGAN, personally, BRAD DUGGAN and MARYANN 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. WOODSIDE, LISA GORSKI and JANE DOE Defendants

Counsel: Mr. Joseph Colangelo, for the Plaintiff Mr. Mark Lerner, for the Defendant Dr. Padamjit Singh

HEARD: May 19, 2016

REASONS FOR DECISION

EDWARDS J.:

Overview

[1] A partial summary judgment versus a trial. Few would argue that where appropriate, summary judgment or partial summary judgment is the preferable outcome versus a full-blown trial. The recent Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, has required trial judges across the country to reconsider some of the fundamental principles that have guided the courts for generations. If nothing else, trial judges today must find a way to make civil actions less costly; to deliver justice in a cost efficient and timely manner; and to provide access to justice that is proportionate to the matters that are at issue between the parties.

[2] The case before me is one that I have been case managing for some considerable period of time. It involves the tragic circumstances of a young child who was born with significant disabilities. It is a medical malpractice action that is now ready for trial. The trial is scheduled to proceed in November of this year.

[3] The motions before me involve a number of issues. The defence seeks an order for further discovery, a further defence medical, and for what - in essence, amounts to production of an expert’s file. There is a cross-motion by the plaintiffs for partial summary judgment. The plaintiffs’ motion for summary judgment is based on the defendants’ expert’s evidence with respect to the plaintiffs’ claim for future care costs, housing costs and the OHIP subrogated claim. If partial summary judgment was granted based on the defendants evidence, the plaintiff would then proceed to trial seeking an assessment of damages on the basis of its own expert’s evidence with respect to future care costs and housing, as well as the plaintiffs’ claims for general damages and damages for past and future income loss.

The Facts

[4] The plaintiff, Ava Duggan (Ava), was born on January 26, 2009. Ava’s mother, Alyson Duggan (Alyson), went into labour on January 25, 2009. Ava was delivered by caesarean section. There is little dispute that Ava is significantly disabled and suffers from cerebral palsy.

[5] The Statement of Claim in this action was issued on December 6, 2010. Examinations for discovery were conducted in July 2012. An assessment was conducted by an occupational therapist, Angela Flemming, on behalf of the defence in March of 2014. The assessment was conducted by Ms. Flemming at the plaintiffs’ residence at 32 Regency Crescent in Whitby, Ontario, where the plaintiffs Brad and Maryann Duggan resided. Brad and Maryann Duggan are the parents of Alyson, and thus the grandparents of Ava. On all accounts, they have been actively involved in Ava’s care since her birth. Since the assessment by Ms. Flemming in 2014, the living arrangements for Ava have changed, as has her residence. It is in part because of this change of circumstance that the defence seeks further discovery and a further assessment by Ms. Flemming.

[6] Since I have been case managing this matter, to the credit of all the lawyers involved, the action has been significantly streamlined. The only remaining claim that will proceed to trial, if the motion for partial summary judgment is unsuccessful, is the claim as against Doctor Singh. The claim against Doctor Singh will be restricted to an assessment of damages, as Doctor Singh has recently admitted liability. The claim against the Lakeridge Health Corporation and the various nursing defendants was settled in late 2015.

[7] This court is not asked to grant summary judgment for the plaintiffs’ claims for general damages, nor the plaintiffs’ claims for past or future income loss. The court is, however, asked to grant partial summary judgment for the plaintiffs’ claims for future care costs, the cost of housing and the subrogated OHIP claim.

[8] As is quite common in almost every civil action, the parties have a different view with respect to the assessment of the plaintiffs’ damages. The plaintiffs have engaged experts to determine the cost of Ava’s future care needs. Similarly, the defence have engaged their own experts to address Ava’s future care needs. The plaintiffs have engaged experts to determine Ava’s housing needs. The defence have responded with their own expert evidence with respect to Ava’s housing needs.

[9] The plaintiffs argue that they should be entitled to partial summary judgment, on the basis of the defendants’ experts who have addressed Ava’s needs for future housing and future care costs. In essence, counsel for the plaintiffs argue that at this stage of the proceedings there is no dispute from the perspective of Doctor Singh that she will be exposed at a minimum to the costs as assessed by her own expert as it relates to Ava’s claim for housing needs and future care costs. Counsel for the plaintiffs argues that the cost of the annuity to fund what he describes as the minimum position of Doctor Singh to be approximately fifteen million dollars.

[10] As for the subrogated claim by OHIP, the amount claimed in this regard is approximately $300,000. If partial summary judgment was granted for the subrogated OHIP claim, there would still remain the portion of the OHIP claim from January 5, 2016 (the date at which the subrogated OHIP claim was valued for the purposes of the motion before this court), and OHIP’s claim for future services which will have to be determined at trial.

Position of the Plaintiff Regarding Partial Summary Judgment

[11] Mr. Colangelo, for the plaintiffs, vigorously asserts that the defendant Doctor Singh should have admitted liability long ago, taking into account the fact that as of June 3, 2013 she agreed with the College of Physicians and Surgeons of Ontario (CPSO) to restrict her licence by not engaging in any labour and delivery practice.

[12] Mr. Colangelo points to the substantial financial inequality between Doctor Singh and the plaintiffs, given that she is represented by counsel who is instructed by the Canadian Medical Protective Association (CMPA). Mr. Colangelo points to the substantial reserves of the CMPA, much of which he suggests has been funded with public money. Mr. Colangelo argues that the delay in making and paying settlements is to the advantage of the CMPA.

[13] Mr. Colangelo, in my view, quite properly points to the guidance provided by the Supreme Court of Canada in Hryniak, supra, and stresses that proportionality is the key principle which must guide the judiciary and everyone else associated with the civil justice system.

The Defence Position With Respect to the Plaintiffs’ Motion for Partial Summary Judgment

[14] The essence of the position asserted on behalf of Doctor Singh by Mr. Lerner, is that a trial will still be required to determine the plaintiff’s damages for her future housing needs, as well as her future care costs. As it relates to the question of the plaintiffs’ claim for the cost of her future housing needs, it is also argued that the defence has not had an opportunity to fully respond to a recently delivered report by plaintiffs’ counsel. As for the cost of future care needs that Ava will require, Mr. Lerner argues that it makes no practical sense to seek court approval and implement a care model by way of the plaintiffs’ motion for partial summary judgment, only to have this issue revisited at trial based on the evidence that will be presented through the plaintiffs’ experts.

[15] As for the OHIP claim, Mr. Lerner makes similar arguments and notes that the plaintiffs will still have to call a representative from OHIP to testify with respect to the updated cost of care, and to provide evidence with respect to the future care that will be provided and funded by OHIP. Even if the court accepts that as of January 5, 2016 the amount of the subrogated OHIP claim is approximately $300,000, none of those funds will actually make its way into the hands of Ava and, therefore, provide no measure of assistance to Ava in anticipation of the forthcoming trial.

Analysis Regarding Partial Summary Judgment Motion

[16] It is abundantly clear from the comments of the Supreme Court of Canada in Hryniak, that the current test which must be applied by a motions judge faced with a motion for summary judgment, is whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without the necessity for a formal trial. The motions judge must first determine whether there is a genuine issue which requires a trial, based on the evidence set forth in the motion record, without using the enhanced fact-finding powers enacted when Rule 20 came into place in 2010.

[17] In determining whether there is a genuine issue which requires a trial, the court must review the factual record and grant summary judgment where there is sufficient evidence to fairly and justly adjudicate the dispute, and summary judgment provides a timely, affordable and a proportionate procedure.

[18] Timeliness, affordability and proportionality, are fundamental to the outcome in this case. Justice Karakatsanis in Hryniak, at paragraph 24, was quite correct when she stated that undue process and protracted trials with unnecessary expense and delay can prevent the fair and just resolution of disputes. Justice Karakatsanis was equally correct in her comments, that the cost and delay associated with the traditional process associated with a trial makes the trial such that ordinary people do not have the opportunity to have their disputes properly adjudicated.

[19] If the plaintiffs were to have taken the position that they would not be seeking any damages over and above the damages as assessed through the experts retained on behalf of Doctor Singh, this court would have no hesitation in granting partial summary judgment with respect to Ava’s housing needs and her future care needs. The only damage claims then that would proceed to trial, subject to my comments with respect to the OHIP claim, would be the plaintiffs’ claim for general damages and the plaintiffs’ claims for past and future loss of income. Without in any way detracting from the importance of those damage claims, it would be fair to suggest that if those were the only claims to proceed to trial, the amount of trial time would be dramatically reduced.

[20] The fact remains, however, that the plaintiffs – as is their right, wish to proceed to have their damages assessed on the basis of the expert evidence that will be presented on behalf of the plaintiffs, through their own experts, and not the defendant’s experts. As such the damages assessment for future care needs, future housing needs and the future subrogated OHIP claim will still have to proceed to trial. The trial judge will inevitably hear that the court has granted partial summary judgment on the basis of the defendants’ experts. I find it impossible to believe that the trial judge would not have, as a point of comparison, the evidence of the defendants’ experts as it relates to the cost of future care and the future housing costs. There will be little, if any judicial time saved, as a result of this court granting partial summary judgment. The defence experts will inevitably still be called as witnesses at trial. There will be little if any saving of trial time, and thus little if any saving in the way of trial costs.

[21] As well, as I raised with counsel during the course of argument, I am fundamentally concerned with respect to the potential of derailing the trial date in November if this court was to grant partial summary judgment. Without in any way prejudging whether or not one side or the other might appeal my judgment, inevitably any appeal could potentially impact the timing of the trial. The trial, in my view, at this stage of the proceedings - given the timing of the plaintiffs’ motion for partial summary judgment, is paramount in terms of protecting and ensuring that the trial date proceeds as scheduled.

[22] I cannot leave this aspect of the plaintiffs’ motion without commenting on the approach taken by the CMPA and its instructions to its defence counsel with respect to the conduct of this action. As the case management judge I am well aware that counsel for Doctor Singh has made two advance payments, the most recent of which was the subject of some considerable discussion, both at the hearing of the motion and in subsequent written submissions.

[23] Doctor Singh has recently admitted liability. Where liability is admitted, and where it is beyond dispute – particularly in medical malpractice actions arising out of the birth of a child with resulting significant disabilities, insurers and the CMPA should be encouraged both now and in the future, to consider the funding of an advance payment that will minimize as much as possible, the suffering of the disabled child and the improvement of that child’s care.

[24] There will always be cases where liability in a medical malpractice action will be hotly contested. In some cases that is entirely appropriate. This is not that case. With the guidance of their more than competent counsel and the assistance of the various experts engaged by defence counsel, the lives of plaintiffs that have been detrimentally impacted as a result of the negligence of a doctor can be minimized. The CMPA has signaled its willingness to properly consider its liability position in this case, and has begun the process of equally considering the plaintiff’s damage claims. The not insubstantial advance payments now made by the CMPA will undoubtedly help to improve the lives of the plaintiffs, especially Ava’s life.

[25] This is not a case where there will be a fundamental change in the plaintiffs’ position if the court grants partial summary judgment. For the reasons set forth above, the plaintiffs’ motion seeking partial summary judgment is dismissed.

Further Discovery and Further Defence Medical and Expert’s File

[26] Counsel for the plaintiffs argues that there has been no real material change with respect to the plaintiffs’ evidence since the examinations for discovery were completed in July 2012. As it relates to the defendents’ motion seeking a further defence medical, counsel for the plaintiffs argues that the defence chose to have their assessment conducted by Ms. Flemming in 2014, and that the defence was not forced to conduct their assessment at that time.

[27] Mr. Lerner, on behalf of Doctor Singh, argues that there has been a fundamental change in circumstances since the examinations for discovery in 2012, particularly as it relates to Ava’s residence and the extent to which Alyson has been involved in Ava’s care. As well, it is suggested there is contradictory evidence with respect to the claims of Maryann Duggan and Brad Duggan in relation to their claims for pecuniary losses.

[28] As to the necessity for a second defence medical assessment with Ms. Flemming, it is argued that when the assessment was conducted in June 2014, Ava was at an age when she would not, with her cerebral palsy, have achieved her baseline level of skills, which is generally not achieved until the age of six. Ava is now seven years of age and within an age range during which, it is suggested, it is easier to assess her functional ability.

[29] During the course of argument I noted the various reasons asserted by Mr. Colangelo, as to why a further examination for discovery and why a further assessment with Ms. Flemming should not be allowed by this court. What was not argued, or certainly not strenuously argued by Mr. Colangelo, was that there would be any real prejudice to the plaintiffs if the defence was allowed a further discovery and a further defence medical assessment.

Analysis

[30] The defence agreed to the fixing of the trial date. The provisions of Rule 48.04 therefore apply and require the defendant, Doctor Singh, to obtain leave to bring this motion seeking further discovery and a further defence medical assessment.

[31] In determining whether leave should be granted there are various factors which the court should consider in exercising its discretion, which include the following:

i. Whether there has been a substantial or unexpected change in circumstances since the action was set down; ii. The purpose of the request for leave; and iii. Whether the relief sought would likely be granted if leave were given to bring the motion, notwithstanding the filing of the trial record.

See Vadivelu v. Sundaram, 2015 ONSC 331 at paragraph 29.

[32] In determining whether this court should grant leave to bring the motions for which relief is sought by the defendants, this court in exercising its discretion must consider the question of trial fairness. The claims asserted by the plaintiffs are substantial. The admitted negligence of Doctor Singh has caused the plaintiffs’ very significant damages - damages which they never asked for and could never have contemplated on January 25, 2009. Ultimately, the trial judge will have to determine what those damages are.

[33] In order to arrive at a fair and just determination of the plaintiffs’ damages, Doctor Singh is entitled to her day in court. Doctor Singh is entitled to a trial that will allow her to put her best foot forward based on all appropriate and admissible evidence. In my view, in a situation where the defence has been able to establish a change in circumstances (in this case Ava’s residence), the defence should be entitled to further discovery of the plaintiffs. That discovery, however, must be time limited and focused. I am therefore ordering that each of Alyson Duggan, Brad Duggan and Maryann Duggan, attend for a further discovery at a date, time and place to be organized by counsel. The examination for discovery of Alyson, Brad and Maryann, shall be limited to one hour in length each.

[34] As for the defendants’ motion seeking a further defence medical with Ms. Flemming, the same principles apply. While there has only been approximately two and a half years since Ms. Flemming’s initial assessment, I am satisfied that given Ava’s age differential it is appropriate for this court to exercise its discretion to allow a further assessment by Ms. Flemming. Again, that assessment must be strictly governed and I am ordering that the assessment shall take place at a date, time and place that is convenient for Ava and her caregivers, and should be limited in time to no more than three hours in total.

[35] As for the defendants’ motion, which in essence seeks the file contents of the plaintiffs’ expert, Professor Coyte, counsel for the plaintiff asserts that all of the research which underlies the report prepared by Professor Coyte has been produced. Mr. Colangelo notes that the material produced contains 51 articles and thousands of pages of data. In Mr. Colangelo’s factum he states that other material could not be found, as they were online references which had disappeared from the internet when a search was made for them. In essence then, it is argued by Mr. Colangelo that everything that had been requested from Professor Coyte has been produced to the defence.

[36] In order to give effect to the assertions made by plaintiff’s counsel, I am ordering that Professor Coyte prepare an affidavit that details everything in his file that is presently available and that he relied upon in preparing his report. To the extent that there are documents or material relied upon by Professor Coyte that are no longer available, I am ordering that Professor Coyte state in his affidavit the nature of the material relied upon, the efforts that he has made to obtain the information and the reasons why that information is no longer available. In ordering Professor Coyte to prepare this affidavit at this stage of the proceeding, the defendants should be more than adequately prepared to address Professor Coyte’s opinion at trial.

[37] As for the question of costs, I canvassed the question of costs at the completion of the hearing of the motion and Mr. Colangelo suggested that if he was successful in his motion he would be seeking $50,000 plus disbursements, and would expect to pay nothing in the event he was unsuccessful. With respect to the defendants’ motions, Mr. Colangelo suggested that if he was successful in resisting those motions he would be looking for costs in the range of $15,000 to $20,000, and that if he lost he would be expecting to pay $15,000.

[38] Mr. Lerner took the position that if he was successful in resisting the plaintiffs’ motion he would not be seeking any costs. If he was successful in his motion he would not be seeking any costs, and would expect to pay $10,000 if he was unsuccessful with respect to his motions.

[39] The plaintiffs were not successful on their motion for partial summary judgment. Mr. Lerner was not seeking costs and I make no order as to costs, as in my view the issue brought by Mr. Colangelo was very much a live issue and one which in the future, if brought well in advance of trial, might have a different outcome. As for the success of the defendants with respect to the orders made for further discovery and a further defence medical, I agree with the position of Mr. Lerner that it is not appropriate to make any order of costs, particularly given that the defence was – in essence, seeking an indulgence from the court given the fact that the defendant Singh had consented to the fixing of the trial date. In sum then, there will be no order of costs with respect to any of the motions before this court.

[40] I will continue to case manage this action. If counsel require the assistance of the court with respect to any further case management orders, or anything else that will assist in terms of streamlining this matter for trial, I can be spoken to by arranging an 8:30 a.m. telephone case conference call.

Justice M.L. Edwards

Released: August 11, 2016

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AVA GRACE DUGGAN, a minor, by her Litigation Guardian, Alyson Michelle Duggan, ALYSON MICHELLE DUGGAN, personally, BRAD DUGGAN and MARYANN 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. WOODSIDE, LISA GORSKI and JANE DOE Defendants

REASONS FOR decision Justice M.L. Edwards

Released: August 11, 2016