Court File and Parties

COURT FILE NO.: CV-03-CV255463 DATE: 20161006 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Calogero Castronovo, Liberata Castronovo and Pasquale Castronovo, Plaintiffs -and- Sunnybrook & Women’s College Health Sciences Centre, Defendant

BEFORE: F.L. Myers, J.

COUNSEL: Brian A. Pickard, for the Plaintiffs William G. Scott, for the Moving Party Defendants Mikhail Krylov a.k.a. Michael Krylov and Venus Chiodo a.k.a. Venus Cariati

HEARD: October 6, 2016

Endorsement

[1] The moving parties do not need leave to bring this motion under rule 48.04. They did not consent to listing for trial. Mere attendance at trial scheduling court is not enough.

[2] The moving parties do need leave to extend the time for bringing a motion for leave to amend their pleading set by Archibald J. on consent at the pre-trial. Counsel specifically signed the judge’s endorsement signifying their consent. A consent order is a contract and is only undermined by contractual defenses. None exists here. More important, under Rule 3.02 of the Rules of Civil Procedure, the moving defendants have not explained their two-month delay in moving. Mr. Murray says he thought he needed instructions after a full report to his client. But he does not say when or if he made a full report, or when, or if, the client responded, or why he did not bring the motion until after the plaintiffs’ counsel reminded him that it was too late to do so. Justice Archibald’s order specifically contemplated counsel’s need for instructions. He directed the moving defendants to serve the motion by June 17, 2016 “if advised”. Mr. Murray gives no hint then of why his need to report, get instructions, and bring the motion was not done by the date to which he agreed and Archibald J. ordered.

[3] Archibald J. was plainly concerned with the risk of losing the trial date. This action commenced in 2003. The moving defendants were added in 2009. There is no hint of why they waited seven years from being added or two months after the deadline set at the pre-trial, until ten days before trial, to move. It is common ground that if leave to amend is granted, the trial date will be lost. The moving defendants say c’est la guerre. Too bad, so sad. They have a right to amend they say. They ignore that they agreed to limit the right to move to amend before Archibald J. Case management deadlines are not written in stone. They can be extended for good cause in the interests of justice. Here, the moving defendants show no cause to do so. Moreover, I do not see how it can be in the interests of justice to do so now. Archibald J. took active steps to protect the trial date. The defendants ignored their agreement and his order, and are now imperiling the trial date. And they give no hint of what changed since 2009 or discoveries in 2011 or since the pre-trial. All they say is that Mr. Murray thought he needed instructions after a full report. As noted above - so what? He should have obtained instructions if his clients wanted to proceed as agreed and ordered. He does not say why he did not do so. Rather than evidence, there is silence.

[4] As to the interests of justice, I disagree with Mr. Scott, who argues that only prejudice to legal rights count. That loses the forest for the trees. The goal of the civil justice system is to do justice; efficient, affordable justice. Making the action unaffordable or delayed without end is not delivering justice. How do you tell a person who was injured in 2001, that a defendant sued in 2009 gets to adjourn a trial date set long ago to raise a new defense seven years into the piece and two months after the agreed and ordered deadline passed? Endure another six months at least until trial? Why? Because efficiency does not matter; because agreements do not matter; because court orders do not matter. All that matters is that the defendants get to advance every defense they want, whenever they want - even one that alleges that the plaintiffs be denied compensation because they sued too late! Isn’t that ironic? How can plaintiffs have faith in the justness of a system that produces that result?

[5] People matter. The parties matter. The fairness of a result includes the parties’ subjective sense that justice has been done. The culture shift of Hryniak is that we have to do better to deliver civil justice. Everyone - judges, lawyers, and court administrators - must strive to deliver timely, affordable civil justice. Delay matters. Family Delicatessen Ltd. v. London, [2006] O.J. No. 669 (C.A.) at para. 7. See also Letang v. Hertz Canada, 2015 ONSC 72.

[6] Finally, Mr. Levin has been counsel for the plaintiffs throughout this proceeding. If the moving defendants now assert that the plaintiffs should have discovered that they could sue the moving defendants in 2007 (before the court actually dismissed the claims for which they are sued), then Mr. Levin is necessarily a key witness. Moreover, the plaintiffs may have causes of action against him. If the moving defendants wanted to raise a defense implicating counsel’s knowledge, they had to do so on a timely basis and not a week before trial in a 13-year-old case. There is no amount of money that can compensate the plaintiffs if they are sent back to the drawing board needing to find new counsel at this late date.

[7] I cannot find on the evidence that the moving defendants have satisfied even the relatively low threshold to extend the time limit agreed to by counsel and ordered by Archibald J. They have not explained the delay in a satisfactory manner. They have not shown why it is in the interests of justice to grant the extension of time. And I find that a six-month delay of this trial to allow the moving defendants to plead a limitation defense now, for these plaintiffs, in this case, is unconscionable and amounts to prejudice sufficient to exercise my discretion to decline the indulgence sought.

[8] Motion dismissed.

[9] The parties agreed that there would be no costs.

F. L. Myers, J. Date: October 6, 2016