Court File and Parties

COURT FILE NO.: CV-12-448192 MOTION HEARD: 20160928 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KANDAVANAM MARIA-ANTONY, ALAIN MARIA-ANTONY, by his litigation guardian, BRIDGET MARIA-ANTONY, and the said BRIDGET MARIA-ANTONY, Plaintiffs

AND:

KIM KATANIK KURIS, RICHARD M. KURIS and LATRICIA ASIRBATHAM, Defendants

BEFORE: Master Lou Ann M. Pope

COUNSEL: Counsel, for the plaintiffs: David S. Wilson Fax: 416-943-1049

Counsel, for the defendants, Kim Katanik Kuris and Richard M. Kuris: L. Lawson, Lawson LLP Fax: 416-868-1801

HEARD: September 28, 2016

Endorsement on Costs

[1] This motion was brought by the defendants for an order that the plaintiff attend three defence medical examinations. The motion was heard, in part, on June 22, 2016. The balance of the motion was adjourned to today to complete the defendants’ submissions and to hear the plaintiffs’ submissions.

[2] This action and, it appears, the companion action (CV-12-447176), are scheduled for trial in mid-January 2017. The pre-trial conference was scheduled for October 28, 2016.

[3] Yesterday, September 27, 2016, counsel appeared before Justice D. Wilson, as the leader of the list of long trials in Toronto. The defendant in the companion action wished to bring a motion for a defence medical and for a determination of the proper law as the accident occurred in the USA. Justice Wilson ordered that this motion and the defendant’s motion in the companion action were to be heard by a judge on October 28, 2016. Thus, this motion did not proceed before me today but counsel made submissions on costs.

Background

[4] This action was commenced in 2003 in Newmarket as a result of two motor vehicle accidents that occurred in 2000 and 2001 in which the plaintiff claims to have sustained serious and permanent injuries as a result of each accident. The action was transferred to Toronto in 2012.

[5] The plaintiffs set this action down for trial on November 26, 2013. The action was scheduled for a pre-trial conference on October 28, 2016 and a jury trial commencing on January 16, 2017 for 25 days. (I learned yesterday from Justice Wilson’s endorsement that there is a companion action which is also scheduled for trial at the same time as this action.)

[6] It is the defendants in the second accident who bring this motion. Causation for the plaintiff’s alleged injuries are in issue in this action. There does not appear to be any dispute that the plaintiff’s injuries from the first accident were more severe than the second accident. In the first accident, the plaintiff was a passenger asleep in the sleeping bunk of a transport truck that rolled over as a result of the driver allegedly losing control of the truck. In the second accident, some eight months later, it is alleged that the vehicle in which the plaintiff was a passenger was rear-ended by defendant, Kuris’, vehicle.

[7] Prior to this motion, the plaintiffs delivered numerous expert medical reports from a neurologist, physiatrist, neuropsychologist, and a psychiatrist.

[8] The plaintiffs allowed the defendants to have the plaintiff assessed by a physiatrist which took place on April 14, 2016. However, the defendants also sought three more assessments by a neuropsychologist, orthopedic surgeon and a psychiatrist. The plaintiffs consented to a psychiatric assessment; however, the dispute involves whether the assessment should be one or two days as proposed by Dr. Notkin. The plaintiffs also oppose neurology and neuropsychological assessments.

June 22, 2016 Motion Hearing

[9] The defendants served the notice of motion on May 5, 2016 returnable on June 22, 2016. They served the motion record, factum and brief of authorities on June 13, 2016, exactly seven days before the hearing. The plaintiffs served a responding motion record within the timelines under the rules.

[10] At the hearing, both parties sought leave to late file material. The plaintiffs wished to file a brief of authorities and the defendants wished to file a supplementary affidavit, supplementary factum and supplementary brief of authorities. The supplementary material filed by the defendants addressed procedural and evidentiary issues raised by the plaintiffs in their material.

[11] As the pre-trial and trial were imminent, I agreed to take a break to read the material in the hopes that the motion would proceed.

[12] The plaintiffs raised three procedural and evidentiary issues with respect to Mr. Gluek’s affidavit. I agreed with Mr. Wilson’s submission that the exhibits thereto were not properly marked as required by the rules. I heard submissions but did not rule on the evidentiary issues regarding the inadmissibility of certain evidence contained in the affidavit.

[13] The two main issues on this motion are whether the defendants require leave to bring the motion under Rule 48.04(1) of the Rules of Civil Procedure and whether they are entitled to three more defence medical assessments. These issues are set out in the notice of motion.

[14] The motion was called at 11:30 a.m. and including an approximate 30 minute break for me to read the new material, it went for 2 ½ hours to 2 p.m. It was scheduled for 1 ¾ hours. By that time, I had heard submissions from defence counsel except for her submissions on the law. I had not heard submissions from plaintiffs’ counsel. The motion was adjourned to today.

Costs Thrown Away

[15] The defendants submit that I should not make any order regarding costs. They state that costs should follow the event and that the motions judge ought to make the costs order.

[16] The plaintiffs seek costs thrown away for the June 22, 2016 hearing and for today’s appearance on a substantial indemnity basis of between $9,000 and $12,660.

[17] The plaintiffs submit that the defendants are the cause of this motion being adjourned on June 22, 2016 and, ultimately being adjourned again by Justice Wilson to October 28, 2016 when the parties will have to repeat their submissions that were made before me on June 22, 2016. The plaintiffs submit that this motion was brought late in the action and essentially on the eve of the deadline for the defendants to deliver responding expert reports in advance of the pre-trial. (Responding reports were due by August 28, 2016, 60 days before the pre-trial. Any orthopedic report was due by July 28, 2016, being 90 days before the pre-trial as, arguably, an orthopedic report is not a responding report given that the plaintiffs had not delivered an orthopedic report).

[18] The plaintiffs also submit that the defendants did not consult with plaintiffs’ counsel regarding the date for this motion as required under the consolidated practice directions. Furthermore, they served their motion material exactly seven days before the hearing which required plaintiffs’ counsel to rush to prepare and deliver responding material to meet the deadline under the rules. In addition they submit that plaintiffs’ counsel was unable to deliver his brief of authorities within the timelines which necessitated him having to seek leave to file it at the hearing.

[19] The plaintiffs submit further that this motion ought to have been scheduled as a long motion for more than two hours rather than on a regular motions day where they are limited to two hours maximum. They argue that it is likely defence counsel elected not to schedule a long motion as the date would likely have been much later than June 22, 2016.

Conclusion

[20] I agree with the plaintiffs that this motion was brought late in the action and essentially on the eve of the deadline for the defendants to deliver their expert reports prior to the pre-trial. The hearing of the motion took place on June 22, 2016 and the three examinations were scheduled for July 20, July 25 and August 17, 2016. An orthopedic report was due by July 28, 2016, yet the assessment was not scheduled until August 17, 2016. Responding reports were due by August 28, 2016, yet one of the assessments was scheduled for August 17, 2016.

[21] I am cognizant of the defendants’ position that they waited to bring this motion until after the re-examination of the plaintiff which took place in early April 2016 so that they could provide their medical experts with copies of the transcripts of the examination prior to assessing the plaintiff. However, there are numerous facts which convince me that it was not reasonable to delay addressing the issue of expert reports. Firstly, this action was commenced 13 years ago in 2003. Examinations for discovery of the plaintiff were held in 2006 and mid-2007. The defendants waited over five years to bring a motion to compel the plaintiff to re-attend examinations for discovery. That order was made on consent on October 22, 2012, yet the re-examinations did not take place until April 4 and 8, 2016. The plaintiffs have served numerous medical/legal reports. The action was set down for trial in November 2013 and the pre-trial conference and trial were scheduled in September 2014. Therefore, the defendants have known the pre-trial and trial dates for two years.

[22] I concur with the plaintiffs’ position that had the defendants not waited so late to bring this motion, the hearing on June 22, 2016 would likely have been adjourned to another date, undoubtedly as a long motion for more than two hours, with the result that they would not have made oral submissions on June 22, 2016.

[23] Therefore, for the above reasons, I conclude that the costs thrown away by the plaintiffs for the June 22, 2016 hearing and the hearing today were as a result of the conduct of the defendants in bringing this motion late in this action and on the eve of their deadline to deliver expert reports prior to the pre-trial conference.

[24] Given my finding above, in my view, it is appropriate to make a costs order notwithstanding that the relief sought on the motion has not been determined. In making such order, I rely on the discretion granted to me under section 131(1) of the Courts of Justice Act, R.S.O. 1990, c.C.43, which provides that the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. I consider the hearings on June 22, 2016 and today to be a “step in a proceeding” for the purposes of my costs order.

[25] I decline to order substantial indemnity costs as requested by the plaintiffs. Rule 57.01(4) of the Rules of Civil Procedure allows for elevated levels of costs; however, the plaintiffs relied on no authorities to support their request. Further, in my view, delay in bringing a motion does not warrant elevated costs.

[26] The plaintiffs’ costs thrown away for the hearing on June 22, 2016 and for the hearing today are hereby fixed in the amount of $3,800, inclusive, payable within 30 days. In arriving at that amount, I have not included the time to review the defendants’ motion materials, review the supplementary material, preparation of responding material and disbursements as those items are not related to the hearing on June 22, 2016 or the hearing today.

[27] A final issue involves the defendants’ Supplementary Supplementary Affidavit of Charles Gluek which was filed recently on September 15, 2016. The defendants did not seek leave from me to file additional material, particularly given that it was filed during the time when submissions were pending, nor did they seek consent of the plaintiffs. The plaintiffs wish to respond to the affidavit if the affidavit is admissible by the motion’s judge. In my view, this is an issue for the motions judge as it involves the merits of the motion which have been directed by Justice Wilson to be heard by a judge.

[28] Defence counsel requested that I provide her with all of the material filed on this motion in order to direct it to the motions judge. This is not proper procedure on a motion; therefore, I brought to her attention that it is the moving party’s responsibility to ensure that all material to be relied on for a motion are placed before the motions judge which, from a practical standpoint, involves someone attending at the motions office to requisition all of the motion material.

_(original signed) Master Lou Ann M. Pope Date: September 28, 2016