Court File and Parties

Court File No.: 13-2488 Date: 20160825 Superior Court of Justice - Ontario

Re: Richard Sydney Martin, Plaintiff And: St. Thomas Elgin General Hospital and Doctor Amit Shah and London Health Sciences Centre, Defendants

Before: The Honourable Justice R. Raikes

Counsel: Ronald P. Bohm and Amani Oakley, Counsel for the Plaintiff Mark Lerner, Counsel for the Defendant, Doctor Amit Shah

Heard: August 24, 2016 in Stratford

Endorsement

[1] The plaintiff moves for directions pursuant to r. 1.04 and 1.05 to pre-emptively dismiss or stay the motion for summary judgment brought by the defendant, Dr. Shah, before that motion is argued on the merits. The plaintiff also seeks direction to prevent cross-examination by the defendant of two expert witnesses engaged by the plaintiff to opine on standard of care and causation.

[2] The summary judgment motion is scheduled to be heard by me on October 24, 2016, together with a companion summary judgment motion by the defendant, St. Thomas Elgin hospital.

[3] Although examinations for discovery are complete, the action has not been set down for trial. Accordingly, no pre-trial conference date or trial date has been set.

[4] This is an action for medical negligence. The plaintiff suffered a broken leg in November 2011. Dr. Shah treated the plaintiff at the hospital in the Emergency unit. It is alleged that Dr. Shah was negligent and, as a consequence, the plaintiff developed compartment syndrome. I am advised by counsel at this motion that the plaintiff’s leg was amputated two days ago as part of the sequelae of the negligent treatment by Dr. Shah.

[5] The defendant, Dr. Shah, brought a motion for summary judgment in October, 2015. The motion was brought after demands were made that the plaintiff deliver any expert opinions he had to demonstrate the existence of a genuine issue for trial. No such reports were provided before the motion was served.

[6] The parties agreed to a timetable for the summary judgment motions which was formalized into an endorsement by Donohue J. on February 8, 2016. By that endorsement, the plaintiff was to deliver his responding material by May 31. The timetable does not contemplate reply materials by Dr. Shah.

[7] In late May, 2016, the plaintiff through counsel delivered his responding material which includes two expert reports: one by Dr. Brankston, an emergency medicine doctor, and the other by Dr. Karabatsos, an orthopaedic surgeon.

[8] I pause at this point to observe that the Notice of Motion for summary judgment by Dr. Shah is quite specific that the ground for the motion lay in the failure of the plaintiff to provide any expert medical opinion evidence to establish a genuine issue for trial.

[9] Following delivery of the expert opinions by Drs. Brankston and Karabatsos, plaintiff’s counsel wrote to counsel for Dr. Shah to ascertain whether, in light of the opinions provided, the motion for summary judgment would be withdrawn.

[10] The plaintiff’s motion record contains an affidavit by Ms. Oakley, counsel for the plaintiff, in which she details communications with Mr. Lerner and his office including particulars of positions each took with respect to costs if the motion were withdrawn. Those negotiations, albeit very limited, were unsuccessful. In my view, those communications amount to without prejudice settlement negotiations to resolve a step in this action and, as such, they are not proper evidence for me to consider.

[11] Upon receipt of the plaintiff’s expert reports, counsel for Dr. Shah sought and retained experts to consider those reports and to respond. He delivered one responding report two days before return of this motion and advises that a second responding expert report will be served within the next seven days. There is a third expert report that may be available and served but he is prepared to proceed with the summary judgment motion on the two responding expert reports.

[12] Mr. Lerner explained that he received the plaintiff’s expert reports in late May. He had to find and retain these experts. It is the summer which made it more difficult to get the reports any earlier. He has not delivered an Amended Notice of Motion, but will do so as soon as his expert reports are in hand and served. He likewise undertook to deliver a revised Factum for the motion once all of the evidence for the motion is amassed.

[13] Counsel for Dr. Shah wrote to plaintiff’s counsel seeking dates for cross-examination of Drs. Brankston and Karabatsos soon after their discussions to resolve the motion proved unsuccessful. The plaintiff objects to these proposed cross-examinations and has brought this motion seeking to dismiss or stay the summary judgment motion and, in the alternative, to deny the defendant cross-examination of these doctors.

[14] Simply put, the plaintiff argues that:

1. This is a complex medical malpractice case with competing expert opinion evidence;
2. The further report(s) to be delivered by Dr. Shah’s counsel will only add another layer of complexity;
3. The expert reports delivered by the plaintiff are comprehensive as to breach of the standard of care and causation;
4. The defendant has no realistic prospect of success on the motion for summary judgment given these expert reports;
5. Allowing cross-examination of the plaintiff’s experts will inevitably require the plaintiff’s counsel to do the same of the defendant’s experts;
6. These cross-examinations and, indeed, argument of the motion for summary judgment itself are an unnecessary and inappropriately burdensome layer of expense;
7. The defendant has virtually unlimited defence resources where the plaintiff does not – this inequality coupled with the lack of any prospect of success on the motion is abusive and raises an access to justice concern;
8. The court has the authority to control its own process; in fact, the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 at paras 69-72 endorsed the use of that power to effect a culture shift in civil litigation – to restrict or limit unnecessary and abusive procedural steps that undermine access to justice by adding delay and cost. That is what r. 1.05 is intended to be used to prevent.

[15] Mr. Bohm conceded that there is no case directly on point under r. 1.04 and 1.05. He referred to the decision of Ferguson J. in Ghaffari v. Asiyaban, 2012 ONSC 2724. In that case, the plaintiff moved to stay a summary judgment motion brought by the defendants in an action dealing with beneficial ownership of land. The motion was brought before examinations for discovery were held. The argument was that the summary judgment motion was premature because the evidentiary record was incomplete at that stage.

[16] As here, the plaintiff moved for directions relying upon the dicta at para 258 of the decision of the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764. The court in that decision indicated that a party faced with “an inappropriate motion for summary judgment” may move for directions under r. 1.04 and 1.05 to request that the motion be stayed or dismissed. That dicta was referred to with approval in Hryniak v. Mauldin, supra at para 72.

[17] In Ghaffari, Justice Ferguson wrote at paras 13 and 14:

“13. However, the test to stay a motion for summary judgment was not enunciated by the court in Combined Air Mechanical Services Inc. v. Flesch.

The court did have the following about a stay at para 58

“A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.”

14. I agree with the defence submissions as to the test a party must meet in order to obtain a stay (I was told that there is no case law yet on the point) which is as follows:

(i) the court should look at the motion for summary judgment and the reasonable chances of success in determining whether a stay is appropriate. The party seeking the stay should put their best foot forward as they would on a motion for summary judgment to say there is a genuine wine issue requiring a trial or why the matter is too complicated for the motion judge to ascertain the full appreciation of the case; (ii) the court then ought to determine whether the matter is complicated; what are the issues; the nature of the evidence and law to determine the issues; and whether the case can be determined without the necessity of a full trial; and (iii) only in the clearest of cases should the Court impose a stay.”

[18] The case before me is not in the context of a motion for summary judgment brought before examinations for discovery have been held, where examination for discovery is needed to obtain the evidentiary record necessary to determine if a matter can be resolved at this stage or must proceed to trial.

[19] In the present case, the examinations for discovery are complete. Expert opinions have finally been provided by the plaintiff. The defendant argues that he wishes to file responding expert reports and to cross-examine the plaintiff’s experts so that he can put his best foot forward on the motion, and so that the court will have a complete evidentiary record from which I may, if appropriate to do so, exercise the powers permitted a motion judge on a summary judgment motion under r. 20.04(2.1). It is premature and unfair to the defendant to preclude the opportunity to complete the evidentiary record for the motion and conclude at this stage that the action must go to trial.

[20] I agree with the defendant. It is not obvious on the material filed on the motion that this summary judgment motion is an abuse of process or one which is so obviously bound to fail that a court might stay the motion. The rules permit a motion for summary judgment and cross-examination of affiants. Those rights should be circumscribed in only the clearest of cases where necessary to meet the goals of justice and efficacy.

[21] I am not privy to the information known to counsel for the defendant. Perhaps there is some fatal flaw to the opinions rendered by the plaintiff’s expert that will be exposed on cross-examination and through the defendant’s experts. If so, the defendant may well persuade the court on return of the summary judgment motion that the expert reports filed by the plaintiff do not raise a genuine issue for trial. Likewise, the plaintiff’s expert reports together with defence reports and cross-examinations may narrow the issues such that a determination can be made on the motion or at a trial of an issue that would avoid the necessity of a full trial on the merits.

[22] At this point, I have only the plaintiff’s expert reports. Surely the defendant must have the opportunity to test and refute those reports. As in Micallef v. The Credit Valley Hospital, 2016 ONSC 2631 at paras 71-72, the mere fact that the plaintiff has provided expert evidence does not preclude a consideration of all of the evidence and the application of the powers permitted by r. 20.04(2.1) if appropriate. I cannot presume the outcome of the summary judgment motion based solely on the plaintiff’s evidence.

[23] Further, I find that the evidence filed for the motion for directions is wholly inadequate to demonstrate an access to justice issue. The plaintiff’s claim would appear to be a substantial one where significant damages may follow if successful. He is represented by counsel and there is no suggestion that counsel will be unable to continue. If the result of the summary judgment motion reveals that, indeed, the summary judgment motion ought never to have continued, that can be addressed through a costs award.

[24] Finally, I note that this is not a case where the motion for summary judgment is brought on the precipice of trial. The evidence does not support a finding that an imminent trial would be equally cost effective and/or timely as the motion for summary judgment.

[25] Nevertheless, I am prepared to impose terms on the parties with a view to ensuring that the summary judgment motion is able to proceed as scheduled on October 24. Counsel for Dr. Shah expressed optimism that no delay would be occasioned by the expert reports and cross-examinations. The directions that follow are aimed at that result:

1. The defendant, Dr. Shah, shall deliver any and all reply materials, including expert reports, within 7 days of release of this decision;
2. The defendant, Dr. Shah, shall deliver an Amended Notice of Motion detailing the grounds relied upon for the motion. The Amended Notice of Motion shall be served within 7 days of the release of this decision;
3. Cross-examinations of the doctors, if any, shall be completed by September 30, 2016;
4. The examining party shall order and, if necessary, expedite the production of the transcripts of that cross-examination so that the transcript is available not later than October 7, 2016;
5. The parties will file their respective Facta together with Books of Authority (highlighted) not later than 4 p.m. on October 16, 2016.

[25] The costs of this motion shall be reserved to the judge hearing the motion for summary judgment.

“ Original signed by Justice R. Raikes” The Honourable Mr. Justice R. Raikes Date: August 25, 2016