Court File and Parties

COURT FILE NO.: 12-53831 DATE: 2016/09/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher Ryan Phillips, Plaintiff

AND

NSEM Management Inc., Presidential Suites Inc., Waterfront Developments Inc., Stacey Don McAlpine, Gerald Lloyd McAlpine also known as Gerald McAlpine and Eugenia Christine McAlpine, Defendants

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Peter N. Mantas for the plaintiff All defendants self-represented Stacey McAlpine not present

HEARD: September 23, 2016

Endorsement

[1] The trial of this action commenced on Wednesday, September 6, 2016. Cross-examination of Stacey McAlpine (“Stacey”) commenced on September 21, 2016. At the conclusion of that day, counsel for the plaintiff advised that he anticipated requiring approximately one further day to complete his cross-examination of Stacey. All dates referred to herein are in the calendar year 2016 unless otherwise noted.

[2] On September 22 Stacey did not attend court. The co-defendant Eugenia McAlpine (“Mrs. McAlpine”) informed the Court that Stacey had attended the emergency department of the Ottawa Hospital (General Campus) that morning for treatment of an exacerbation of a pain condition.

[3] In summary, the information provided by Mrs. McAlpine on the morning of the 22nd of September was as follows:

• Stacey had for a number of days been experiencing pain and had “pushed through” to the end of the day on Wednesday, September 21. He had done so by consuming pain medication. He was no longer able to manage his pain in that manner and attended at the emergency department of the Ottawa Hospital.
• During the week of September 12, Stacey had broken a tooth and did not obtain treatment for the broken tooth. As a result, as of September 22 he was also dealing with complications arising from the untreated broken tooth.
• Stacey has in the past been required to manage his pain by attending at the emergency department of a hospital. On those historical occasions, he was seen in the emergency department and released the same day.
• Based on these historical incidents, it was possible that Stacey would be able on the morning of September 23 to resume attending court.

[4] Recognizing that it was possible that Stacey would be able to attend court, but not be able to continue being cross-examined until the passage of further time, counsel for the plaintiff advised the Court that he would be prepared to: a) interrupt his cross-examination of Stacey; and b) have Gerald McAlpine (“Mr. McAlpine”, Stacey’s father) commence and complete his evidence before the cross-examination of Stacey continued. Both Mr. and Mrs. McAlpine consented to proceeding in that manner in an effort to ensure that the trial continued in as efficient a manner as possible in the circumstances.

[5] It was therefore anticipated that if Stacey attended in Court on the morning of September 23, one of two things would happen. Either he would return to the witness box and his cross-examination by counsel for the plaintiff would continue or Stacey would remain at the counsel table and return to the witness box after the completion of the evidence of Mr. McAlpine. It was recognized that the latter option was subject to Stacey making submissions and a ruling from me as to how the trial would proceed.

[6] Before Court was adjourned on September 22, I ordered that Stacey provide the Court with a letter (hand-written or otherwise) from a physician attesting to Stacey’s attendance at the emergency department of the Ottawa Hospital (General Campus) including as to the duration of that attendance. I indicated that I required such a letter specifically because Stacey is self-represented and did not have counsel to speak to the Court on his behalf.

[7] I also addressed the potential for the trial to continue into the week of October 3. I did so because Stacey had, within a matter of days after the trial commenced, informed the Court that he had received a call from the office of his surgeon to advise Stacey that the date for the first of two total hip replacements is October 6. The trial is scheduled for four weeks as a result of which it was originally anticipated that the trial would be completed by Friday, September 30. For a number of reasons, including Stacey’s absence on September 22, the possibility arose that it would be necessary to continue into the week of October 3 for the trial to be completed.

[8] I ordered that efforts be made by Stacey to communicate with his orthopaedic surgeon to re-schedule the surgery from October 6 to a later date if necessary to allow for the completion of this trial. I indicated that efforts would be made to allow me to continue to sit on the trial the week of October 3, if necessary, but that I could not guarantee that my schedule could be changed to provide for same.

[9] Stacey did not attend court on the morning of the 23rd of September. Speaking again on his behalf, Mrs. McAlpine provided the Court with a copy of an Emergency Report and a hand-written prescription form from the Ottawa Hospital (General Campus). Mrs. McAlpine informed the Court that Stacey arrived at the emergency department at 9:30 a.m. and was released from the hospital at approximately 3:30 p.m. The time of arrival is confirmed on the single-page Emergency Report. That page is identified as page two of four pages. The departure time from the hospital is not recorded on that page.

[10] The Emergency Report is hand-written and includes what appears to be a brief history as provided by Stacey to the staff at the hospital. It appears that Stacey reported “worsening of chronic back pain overnight. Unrelieved by Tylenol 4/Gabapentin 300 mg.” Stacey is described as appearing “acutely distressed”. The final diagnosis made is recorded as “Acute or Chronic Low Back Pain”. In the report it is indicated that Stacey was directed to return to the hospital if he experiences worsening of his pain/disability or if he experiences bowel/bladder dysfunction.

[11] The prescription form identifies that Stacey was prescribed three medications for pain management (Diclofenac, Gabapentin, and Hydromorphone) and Amoxicillin (an anti-biotic).

[12] Mrs. McAlpine advised that she had attempted to reach the office of the orthopaedic surgeon by telephone but had, as yet, been unsuccessful in connecting with that office.

[13] Mrs. McAlpine informed the Court that Stacey would not be able to return to Court on Monday, September 26 because of the hip replacement surgery scheduled for October 6 in Winnipeg. More specifically, Stacey is required to attend a pre-operative appointment in Winnipeg on Friday, the 30th of September. The return travel to Winnipeg for the pre-operative appointment on that date is expected to take several days because Stacey and, it appears, his parents are returning to Winnipeg by car. The trip will take several days because they are required to take frequent breaks to assist Stacey in the management of his pain condition.

[14] When advising the Court that the proposed date for surgery is October 6, Stacey did not make any mention of a date for a pre-operative appointment. It was not until the morning of the 23rd of September that the Court and counsel for the plaintiff were informed of a date for a pre-operative appointment.

[15] Speaking on behalf of Stacey, Mrs. McAlpine informed the Court that a request for an adjournment of the trial is being made. The length of the adjournment requested is at least six months (i.e. to April 2017 and beyond) because Stacey is scheduled to have hip replacement surgery in the next two weeks and again in January 2017. The recovery period anticipated from each operation is three to four months.

[16] Counsel for the plaintiff was not given notice of the request for an adjournment and did not have instructions.

[17] In all of the circumstances, I order as follows:

1. Stacey McAlpine shall attend Court on Monday, September 26, 2016 at 10:00 a.m. and present to the Court a letter from a physician attesting as to Stacey McAlpine’s condition and the reason for his absence from Court on Friday, September 23, 2016.
2. Stacey McAlpine or someone on his behalf shall make all reasonable efforts to re-schedule his surgical procedure from October 6, 2016 to another date.
3. In the event it is not possible to re-schedule the surgical procedure from October 6, 2016 to another date, Stacey McAlpine or someone on his behalf shall make all reasonable efforts to re-schedule his pre-operative appointment from September 30, 2016 to a date during the week of October 6, 2016 and as close to the latter date as is possible.
4. In the event Stacey McAlpine or any of the other defendants intend to pursue the motion for an adjournment of this trial: a) Evidence shall be provided to the Court including as to the following matters: i) Efforts made to re-schedule the pre-operative appointment; ii) Efforts made to re-schedule the surgery; iii) In the event the dates for either of the pre-operative appointment or the surgery cannot be changed, the date by which it is anticipated that Stacey McAlpine will be in a position to attend court in Ottawa and resume the trial of this action; b) Stacey McAlpine or someone on his behalf shall communicate with counsel for the plaintiff by telephone at 613-696-6886 no later than 5:00 p.m. on Sunday, September 25, 2016 to advise counsel as to whether the motion for an adjournment is to be pursued; and c) Stacey McAlpine or someone on his behalf shall provide to counsel for the plaintiff and to the Court no later than 5:00 p.m. on Sunday, September 25, 2016 copies of all documents and a written summary of the grounds upon which he is relying in support of his request for an adjournment of the trial. The documents and written summary shall be provided by e-mail to counsel for the plaintiff at pmantas@fasken.com and to the Court at scj.assistants@ontario.ca.
5. The motion for an adjournment of the trial is adjourned to 10:00 a.m. on Monday, September 26, 2016.

Madam Justice Sylvia Corthorn Date: September 23, 2016