Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Estate of Kenneth Douglas Tait, deceased, by his Executrix Trustee Anne G. Beldman and Anne G. Beldman, Plaintiffs
AND:
Rajiva Ranjan Singh, M.D., Panduranaga Y. Shetty, M.D., Bluewater Health, Kathleen (Katie) Lavers, R.N., Sandy Shuart, R.N., Carol Crombeen, R.N., Tracey Rintoul, R.N., and Deanna Van Grinsven, R.N.
BEFORE: Justice P. B. Hockin
COUNSEL: John W. Makins, for the plaintiff Sarah E. Martens, for the defendants Dr. Rajiva Singh and Dr. Panduranga Shetty Nicolas Dicastri, for the defendant Bluewater Health
HEARD: October 3, 2016
ENDORSEMENT
[1]
Introduction
This is a motion for summary judgment by the defendants Rajiva Singh and Panduranaga Shetty to dismiss part of the claim of the plaintiff Anne G. Beldman. Ms. Beldman sues in her capacity as the executrix of the estate of Mr. Kenneth Tait under the Trustee Act and for herself, as his “spouse” under s. 61(1) of the Family Law Act, for the loss of his care, guidance and companionship.
2This is a medical malpractice action. Ms. Beldman and Mr. Tait were not married but she alleges that at the time of his death she had cohabited continuously in a conjugal relationship with him for a period of not less than three years. The defence says this is not the case and her claim under the Family Law Act should be dismissed.
[3]
Procedural History
The action was commenced by statement of claim issued January 23, 2013. The statements of defence were delivered by year’s end. The examination for discovery of the plaintiff was completed May 27, 2015. The trial record was filed August 19, 2015 and the court’s notice of assignment court was delivered to counsel September 16, 2015. The assignment court was on November 20, 2015. Counsel were present before the Local Administrative Justice, Justice Grace, when a trial date of November 7, 2016 was set and a pre-trail date of July 29, 2016 was set.
4The notice of motion is dated July 6, 2016 and was returnable July 19, 2016. On July 19, 2016, the motion was adjourned to October 3, 3016 or a month before the trial date. The motion proceeded before me on October 3, 2016.
[5]
Analysis
During the course of argument, I expressed my concern that it was too late and too close to the trial for the motion. Nothing would be gained which could not be accomplished at the trial. As it turns out, counsel on November 20, 2015 advised Justice Grace that the defence would move under Rule 20, but the instruction of the Local Administrative Justice and the agreement of counsel was that this would be done well before the pre-trial date in July.
6If Rule 20 does not itself impose a time limit within which a motion for summary judgment may be brought, the instructions of Justice Grace in the circumstances of this case, in my view, did. Beyond that, if the motion was allowed to proceed, the following would be the state of the litigation:
- The Family Law Act claim of Ms. Beldman would be dismissed.
- This would be a final order. The appeal would be to the Court of Appeal claim.
- The Trustee Act would survive but reasonably the trial would have to be adjourned.
7This result is not “in the interest of justice”. I am instructed by the following cautionary note sounded by Justice Karakatsaris in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at p. 109, para. 60 as follows:
[60] The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.
See also the case of Popovich v. Financial Investment Centre Inc., 2016 ONSC 1888.
8The defendants can litigate at trial, I think without adding appreciably or at all trial time, the issue of Ms. Beldman’s capacity to sue under the Family Law Act.
9I add this. The defence argument was based on inconsistencies in the evidence of Ms. Beldman. At this stage, determination of the “spouse” issue is better left to a trial judge.
[10]
Disposition
The motion is dismissed. I will hear from counsel on costs, in court, October 20, 2016 at 9:30 am.
“Justice P. B. Hockin”
Justice P. B. Hockin
Date: October 17, 2016