CITATION: Khagram et al. v. The Ontario Conference of Mennonite Brethren Churches et al., 2016 ONSC 7088

COURT FILE NO.: 15-56232

DATE: 2016-11-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hasit Khagram, by His Litigation Guardian Suniti Hansa Shah, Suniti Hansa Shah, Dr. Vinod Hemraj Shah and Sureshchandra D. Khagram, Plaintiffs

A N D:

The Ontario Conference of Mennonite Brethren Churches, Bethesda Home Foundation Inc., and Bethesda Home for the Mentally Handicapped Inc., Defendants

BEFORE: The Honourable Mr. Justice P.R. Sweeny

COUNSEL: Shawn Knights, for the Plaintiffs

Kristi J. Collins, for the Defendants

HEARD: November 10, 2016

E N D O R S E M E N T

Introduction

[1] This is a motion made by the plaintiffs to vary the timetable set out in the order of Master Short, dated July 31, 2015. The timetable required, among other things, that the action be set down for trial on or before October 31, 2016, failing which the action shall be dismissed. The defendants oppose this motion on the basis that it is the fourth extension of the timetable sought by the plaintiffs; the plaintiffs are not taking adequate steps to advance their case; the plaintiffs did not explain the delay; and the defendants have suffered non-compensable prejudice.

The Claim

[2] The plaintiff Hasit Khagram (“Hasit”) is 46 years old and is severely disabled. The Office of the Public Guardian and Trustee (“PGT”) was appointed guardian of the person of Hasit by the order of the Honourable Justice Lofchik on July 28, 2000. Hasit was made a resident of the Bethesda Home for the Mentally Handicapped (“Bethesda”) in December 2000. The plaintiff Suniti Hansa Shah (“Mrs. Shah”) is the mother of Hasit. Mrs. Shaw commenced a claim and was granted the right to replace the PGT as guardian of the person for Hasit by order of Mdm. Justice Carpenter-Gunn dated August 26^th, 2010. The plaintiff Dr. Vinod Hemraj Shah (“Dr. Shah”) is the stepfather of Hasit. The plaintiff Sureshchandra D. Khagram was Hasit’s father; he is now deceased and the claim by him has been discontinued without costs.

[3] The plaintiffs claim neglect, abuse, and maltreatment of Hasit while he was a resident of Bethesda from December 2000 to August 26, 2010. The defendants deny all the allegations.

Procedural History

[4] The action was commenced in Toronto by notice of action issued May 21, 2009. A statement of claim was filed June 19, 2009. A statement of defence was filed December 18, 2009. The plaintiff took no real steps to prosecute the action. A status notice was issued. On June 4, 2012, Master Hawkins made an order, on consent, with a timetable to advance the claim. The timetable contemplated that the action would be set down for trial by May 31, 2013. The plaintiffs retained counsel, Brian Banfield, on April 26, 2013. After retaining counsel, the plaintiffs requested an extension of the timetable. On June 5, 2013, Justice Low made an order, on consent, with a new timetable which provided the action be set down for trial by February 15, 2014. On January 3, 2014, Mr. Banfield was removed as lawyer of record for the plaintiffs. The action was not set down for trial by February 15, 2014. In February 2014, the plaintiffs brought a motion to vary the timetable as set out in the order of Justice Low. There was some significant delay in that motion being heard. Ultimately, the motion was heard by Master Short. On July 31, 2015, Master Short ordered a new timetable. In his endorsement, Master Short wrote that he felt a “last chance discovery plan and timetable was justified.” He provided no analysis of prejudice or any explanation for the delay. He indicated he was sympathetic to the plaintiffs.

The Order of Master Short

[5] The operative provisions of Master Short’s order are as follows:

1. That each party shall complete a list of outstanding documents required and shall deliver to the other party by August 31, 2015;

2. That any photocopies shall be charged at 0.10 cents a page. Videos shall be copied at a market rate. The Defendants shall provide the Plaintiffs with a quotation from a third party regarding the cost of copying the video tapes and shall provide it to the Plaintiffs for their approval. If there is no agreement as to a supplier to provide the video tapes, the Assistant Trial Coordinator in Toronto may be contacted if there are problems. All copies shall be provided by September 30, 2015;

3. That Discoveries shall be limited to five (5), seven (7) hour days per side to be scheduled by August 31, 2015. The Discovery dates shall take place between January 5, 2016 and March 31, 2016;

4. That, if desired, a Motion to move the case to St. Catharines court shall be brought by either side within 180 days, on notice to both Regional Judges;

5. That as the Plaintiff, Sureshschandra D. Khagram has died, the action by him is discontinued, without costs, on an unopposed basis;

6. That Motions on Refusals and Undertakings shall be scheduled in January 2016 and shall be heard in May or June 2016 if the matter is still in Toronto;

7. That the matter shall be set down for trial on or before October 31, 2016, failing which the Action shall be dismissed; and

8. That costs of the day shall be in the cause.

Conduct of the Action Since the Order of Master Short

[6] It is useful to articulate the plaintiffs’ obligation in this case. The plaintiffs’ claim will depend upon them establishing that the actions of Bethesda were tortious. Hasit was a resident of Bethesda for almost 10 years. Bethesda has surveillance of Hasit for much of those 10 years. Bethesda points out there is no statutory obligation to have surveillance and there is not surveillance for every moment, but there is significant surveillance. In addition, Bethesda has log books which record events concerning Hasit. The video is recorded in two ways. For the first seven years, the video is on VHS. For the following three years, the video was digitally recorded. Viewing the video has been a challenge for the plaintiffs. Since the order of Master Short, the parties have provided a list of outstanding documents required. The plaintiffs have asserted that not all of the video has been provided. The defendants have responded that they have provided all the video in their possession. There are three issues of production which have been contentious. These are:

1. The review of the VHS tapes;

2. The review of the digital; and

3. The review of the log books.

[7] I shall address each of these.

The VHS Tapes

[8] There are seven years of videotapes. Although the videos were to be copied at the market rate, there is some dispute with respect to the market rate. With respect to the videos, the defendants did not want to reproduce all the video. The plaintiffs did not want to pick and choose from dates and times. Ultimately, in October 2015, all videos were delivered to a neutral third party. The plaintiffs have reviewed the videos with a neutral third party and requested copies of certain dates. As of February 2016, there was still some additional work to be done by the plaintiffs. The third party was awaiting instructions with respect to copying. In March 2016, the plaintiffs asserted that not all videos were provided. Counsel for the defendants responded that they had provided all the video in their possession. It appears the issue of VHS tapes has now been resolved as of February 2016.

Digital Recordings

[9] There are approximately two and-a-half years of digital recordings. In October 2015, counsel for the defendants advised the plaintiffs that the three years of digital video surveillance had been transferred onto hard drives and they were prepared to deliver them upon the payment of $1,346.38. The defendants considered this to be fair market rate in accordance with the order of Master Short. The plaintiffs took exception to the amount claimed. The order of Master Short specifically provided that if there was no agreement with respect to the videotape, the parties could contact the assistant trial coordinator in Toronto and presumably the matter could come back before the Master to be dealt with. Unfortunately, this matter was transferred from Toronto to Hamilton to St. Catharines in October 2015. Therefore, the plaintiffs were not at liberty to attend before the Master to resolve this issue. The dispute with respect to the cost of the digital recordings has continued to the present. This issue was not resolved before this motion was brought. The plaintiffs assert that the fair market rate for reproduction is significantly less than the amount claimed. The plaintiffs object to payment of the internal cost for Bethesda to supervise the digital reproduction. The plaintiffs assert it is only about $250.00. The parties have agreed that I may make a determination with respect to the appropriate value for the reproduction of digital recordings.

Log Books

[10] On March 6, 2016, the plaintiffs requested the log book entries by caregivers of Hasit to be reviewed and inspected. On March 8, 2016, defence counsel responded that he would inquire with respect to any “log books”. On March 14, 2016, defence counsel advised that he had thought the log books had been previously disclosed. There then followed correspondence addressing the most appropriate manner in which to review the log books. The plaintiffs attended at the office of counsel for the defendants on two occasions to review the log books. They did not have time to come in and inspect the log books and did not want to spend the money to have them copied. Ultimately, the defendants had the documents scanned and, in October 2016, counsel for the defendants agreed to provide scanned copies of the log books free of charge. It appears this issue has now been resolved.

[11] Since the order of Master Short, Mrs. Shah has been examined for discovery on two half-days. A number of undertakings were given and counsel for the defendants wishes to have the undertakings fulfilled before the examination for discovery is reconvened. Mrs. Shah has requested her discovery be completed by the defendants before the undertakings are fulfilled. Then there can be a further attendance, if necessary, to answer questions arising out of the undertakings.

[12] In my view, it would be appropriate for the undertakings to be fulfilled and further questioning to be conducted after the undertakings have been fulfilled in order to more efficiently use time. Counsel for the defendants indicated there were only a few more questions to be asked apart questions arising out of the undertakings.

[13] The defendants have not been examined. The plaintiffs assert that they wish to have an opportunity to review all recordings and log books before examination of the defendants. While this is a reasonable position to take, the plaintiffs are required to move this action forward in a timely manner. The prosecution of this action must be a priority for the plaintiffs.

Analysis

[14] The defendants assert the plaintiffs are not entitled to a further extension of the timetable. They assert that the plaintiffs have not provided an adequate explanation for the delay and the defendants have suffered non-compensable prejudice.

[15] In my view, the delay since the order of Master Short arises as a result of a variety of factors. There is voluminous video disclosure to be reviewed. There are log books which the plaintiffs are entitled to review. The plaintiffs complain of the difficulty they have in reviewing the documents given Mrs. Shah’s obligation to care for Hasit. I am satisfied that there is an explanation for the delay since the order of Master Short.

[16] The plaintiffs’ correspondence consistently challenges the integrity of the defendants and defence counsel. This is not productive. The plaintiffs’ continual recitation of failures to disclose documents since December 2000 is unwarranted. It appears the defendants have consistently sought to produce all of the relevant documents including videotapes in their possession. The plaintiffs must cease this extensive correspondence about past issues and move forward with their task of preparing this action for trial.

[17] In 1196158 Ontario Inc. v. 6274013 Canada Limited et al., (2012) 112 O.R. (3d) 67, 2012 ONCA 544, the Court of Appeal, in addressing delay and fairness in litigation, wrote at paragraphs 17 to 20 as follows:

[17] The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be "liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits": rule 1.04(1).

[18] Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.

[19] Timelines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, at para. 14, "the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute".

[20] The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.

Non-Compensable Prejudice

[18] Based on the evidence, I am not satisfied that the defendants have suffered non-compensable prejudice such that the action cannot proceed. The plaintiffs’ claim will rest upon the plaintiffs establishing the tortious conduct of the defendant through review of videotapes, log books, and other records. It appears those records have been maintained by the defendants and there is no evidence that any significant records have been lost as a result of delay.

Conclusion

[19] In all the circumstances, in my view it is appropriate that this action proceed and the timelines set out in the order of Master Short be extended. The plaintiffs must focus their energy on the prosecution of this action. The defendants are entitled to have this action heard and the claim be determined on the appropriate evidence.

Disposition

[20] The plaintiffs shall pay the sum of $750.00 for the reproduction of the digital video. This is taking into consideration the cost of the hard drives and that some time was necessary in order to copy the tapes. The defendants of course are at liberty to claim the full amount of their reproduction as a disbursement if they are successful at the end of the trial.

[21] The parties have agreed that this is an appropriate case for case management. Therefore, a request should be made to Regional Senior Justice Arrell that a case management judge be appointed with respect to this action. Defence counsel should write to Regional Senior Justice Arrell and request a case management judge be appointed. A copy of this endorsement should be included.

[22] There shall be a new timetable with respect to the important steps in this action. This timetable is the timetable which was proposed by the plaintiffs. I am accepting the plaintiffs’ timetable because the plaintiffs are now obligated to comply with this timetable. I wish to stress the plaintiffs must take appropriate steps to have this action proceed. They must examine the defendants for discovery by the deadlines set out or they will not be entitled to examine the defendants for discovery. The defendants, to a large extent, have cooperated with the plaintiffs in the prosecution of this action and I anticipate that cooperation will continue. The plaintiffs should refrain from correspondence which recites past allegations of non-disclosure. The communication should focus on moving forward on the issues that are outstanding with respect to the prosecution of the action. The timetable is as follows:

1. The plaintiffs will provide answers to the undertakings by December 23, 2016.

2. The examination of the defendants and the plaintiffs shall be completed by March 31, 2017.

3. Answers to undertakings are to be completed by May 31, 2017.

4. Any motions on refusal of undertakings are to be heard by July 31, 2017.

5. The matter must be set down for trial by October 31, 2017.

[23] The costs of this motion shall be in the cause. That is, whichever party is successful at the end of the case is entitled to have their costs of this motion. Those costs are not payable at the present time.

Sweeny J.

DATE: November 23, 2016