CITATION: Musselman v. Estate of Robert Carbin, 2016 ONSC 7745

COURT FILE NO.: 653/08

DATE: 2016-12-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DAVID MUSSELMAN, DOMINQUE MUSSELMAN, NICHOLAS MUSSELMAN, LAUREN MUSSELMAN, minors by their Litigation Guardian, ANGELIQUE MUSSELMAN, ANGELIQUE MUSSELMAN and DEVON MUSSELMAN, personally, Plaintiffs

AND:

THE ESTATE OF ROBERT CARBIN, deceased, by way of his Estate Trustee, BEVERLY ANNE CARBIN AND JOSEPH BRANT MEMORIAL HOSPITAL, Defendants

BEFORE: Woollcombe J.

COUNSEL: Diana Edmonds, Counsel for the Plaintiffs Sam Johansen, Counsel for the Defendant

HEARD: December 7, 2016

ENDORSEMENT

Introduction

[1] The defendant, The Estate of Robert Carbin, moves to dismiss the plaintiffs’ action on the basis of delay. The only issue to be determined is whether the defendant has met the test to have the action dismissed. For the reasons that follow, I conclude that it has and dismiss the action.

Summary of the Relevant Background to this Motion

[2] The plaintiff, David Musselman, was involved in a motor vehicle accident in October 2006. In about February 2005, Mr. Musselman’s family physician referred him to Dr. Robert Carbin in relation to a back injury that he suffered in the motor vehicle accident. Mr. Musselman was then treated by Dr. Carbin.

[3] The action began by way of a Statement of Claim issued on January 29, 2008. It alleged medical negligence, breach of contract and battery relating to treatment provided to David Musselman by Dr. Carbin at the Joseph Brant Hospital in February 2006. Claims for damages are made by David Musselman, his wife Angelique Musselman and their four children.

[4] A statement of defence and cross-claim against the hospital were served by Dr. Carbin. On January 6, 2010, an order was made, on consent of all parties, dismissing the action against Joseph Brant Hospital and releasing the hospital from the action and cross-claim.

[5] Examinations for discovery took place on May 2-4, 2011 and continued on November 9, 2011. There were a total of about twenty undertakings given by the plaintiffs during the discoveries. One of these was answered on November 10, 2011.

[6] The plaintiff also provided several updates of OHIP’s subrogated interest claims.

[7] However, other than that, very little to move the action along appears to have happened in the months that followed.

[8] On June 24, 2013, counsel for Dr. Carbin provided to counsel for the plaintiffs an expert report of Dr. Robert McBroom along with his CV and Acknowledgement of Expert’s Duty. Dr. Carbin’s counsel reminded the plaintiffs’ counsel that there were a large number of undertakings that remained outstanding and asked that they be answered.

[9] On September 20, 2013, counsel for the plaintiffs responded that there were only three outstanding undertakings from the May 2011 discoveries and that the answers to the undertakings from November 2011 would be provided “in due course”.

[10] On October 9, 2013, counsel for the plaintiffs provided an answer to one of the outstanding May 2011 undertakings. Counsel for the plaintiffs then failed to correspond with counsel for Dr. Carbin for almost two years, until October 1, 2015. This was despite numerous letters from counsel for Dr. Carbin, as set out below.

[11] On March 14, 2014, counsel for Dr. Carbin again asked counsel for the plaintiff when the answers to the outstanding undertakings would be provided. Counsel also noted that it had been nine months since Dr. McBroom’s report had been provided and asked when the plaintiffs’ expert reports would be received. Finally, counsel made clear that the delay was unacceptable and that if the plaintiffs did not take steps to advance their case, the defendant would move to have the action dismissed for delay. A follow-up letter repeating this content was sent on May 15, 2014. A further follow-up letter was sent on July 21, 2014, in which counsel again indicated that if nothing was done to advance the litigation, instructions would be sought to move to have it dismissed for delay. There was no response.

[12] On October 14, 2014, counsel for Dr. Carbin sent a letter to counsel for the plaintiffs attaching a chart with the outstanding undertakings. Again, counsel indicated that if the undertakings were not answered, the defendant “very likely will be bringing a motion to have this action dismissed for delay”. An affidavit filed on behalf of the plaintiffs in this motion accepts that this chart is accurate, but points out that the plaintiffs have not yet provided answers to counsel and that counsel has delayed setting the action down for trial until the plaintiffs complete their undertakings.

[13] On January 27, 2015, a further letter was sent by counsel for Dr. Carbin to counsel for the plaintiffs in which counsel noted that he had received no response to his numerous letters over the previous year. He advised that his client would consent to a dismissal of the action without costs. Again, there was no response.

[14] On September 28, 2015, counsel for Dr. Carbin wrote to advise that he had died in June 2015. While counsel advised that his client would consent to the dismissal of the action without costs, he also made clear that if he did not hear back from counsel for the plaintiffs by the end of October, a motion to have the action dismissed for delay would be brought.

[15] After close to two years of not responding to counsel for Dr. Carbin, counsel for the plaintiffs responded on October 1, 2015 that she was seeking instructions from the clients. A further letter was sent by counsel for the plaintiffs on October 29, 2015 seeking an extension of time before Dr. Carbin’s estate took further steps. On November 6, 2016, counsel for the plaintiffs wrote to counsel for Dr. Carbin’s estate that, “We expect to receive instructions shortly to agree to the dismissal of the action without costs”.

[16] Counsel for Dr. Carbin’s estate followed up with counsel for the plaintiff on January 13, 2016 requesting to know the plaintiffs’ position. On January 26, 2016, counsel for the plaintiffs wrote to counsel for Dr. Carbin’s estate indicating that her clients had provided instructions to pursue the action to trial if necessary. Counsel offered, by way of explanation for the delay, that David Musselman’s family had gone through considerable turmoil from his “disabling pain and consequent mental and psychological condition” over the previous several years and that pursuing the action had not been their priority.

[17] On February 2, 2016, counsel for the plaintiffs provided an answer to one of the undertakings from the November 2011 discovery.

[18] On May 26, 2016, counsel for the estate of Dr. Carbin obtained an order to continue the action in the name of Dr. Carbin’s estate.

[19] On September 2, 2016, counsel for Dr. Carbin’s estate provided a copy of the motion record for the motion to dismiss for delay and indicated that the motion was tentatively booked for September 29, 2016, but could be moved to accommodate counsel’s schedule. Counsel for the plaintiffs responded that she was not available on that date as she had a trial scheduled, but that she was available on November 10, 2016. The motion was scheduled for one hour that day. After a considerable subsequent correspondence between counsel, with counsel for the plaintiffs requesting a further adjournment, the motion was scheduled for one hour on December 7, 2016.

[20] On November 25, 2016, counsel for the plaintiffs served a medical report from Dr. Y. Raja Rampersaud, an orthopedic spine surgeon. That report is dated July 9, 2009. There is no evidence from the plaintiffs explaining why the report was first provided to the defendants more than seven years after it was written.

[21] On November 29, 2016, the plaintiffs delivered a trial record and had the matter set down for trial.

The Legal Test

[22] Rule 24.01(1) of the Rules of Civil Procedure provides that a defendant may move to have an action dismissed for delay where the plaintiff has failed (c) to set the action down for trial within six months after the close of pleadings. There is no question that dismissal of an action for delay is a severe remedy in that it puts an end to a plaintiff’s ability to have his or her claim adjudicated on its merits. Thus, the test for dismissing for delay is intended to protect the integrity of the civil justice process but also to prevent adjudication on the merits that is unfair to the defendant: Langenecker v. Sauvé, 2011 ONCA 803 at para. 4.

[23] An action may be dismissed for delay where the delay is (1) inordinate; (2) inexcusable; and (3) such that it gives rise to a substantial risk that a fair trial of the issues in the litigation would not be possible because of the delay: Langenecker at paras. 6-7.

[24] Very recently, the Court of Appeal summarised some guidelines for evaluating these three requirements in Sickinger v. Krek, 2016 ONCA 459 at para 30:

30 The jurisprudence provides guidelines for evaluating the three requirements:

Inordinate: A court will measure the length of time from the commencement of the proceeding to the motion to dismiss to determine if the delay is inordinate: Langenecker, at para. 8; Ali v. Fruci, 2014 ONCA 596, 122 O.R. (3d) 517, at para. 11. When considering the delay, the court should remember that some cases will move slower than others because of the issues raised, the parties involved, and/or the nature of the action: Langenecker, at para. 8.

Inexcusable: A court should consider the reasons offered for the delay and whether those reasons provide an adequate explanation, with regard to the credibility of the explanations, the explanations for individual parts of the delay, the overall delay, and the effect of the explanations considered as a whole: Langenecker, at paras. 9-10.

Prejudice: The third factor considers the prejudice caused by the delay to a defendant's ability to put forward its case for adjudication on the merits: Langenecker, at para. 11. An inordinate delay will give rise to a presumption of prejudice and, unless rebutted, that presumption may result in the action being dismissed: Armstrong v. McCall (2006), 2006 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 11. A defendant may also suffer, and demonstrate, case-specific prejudice: Langenecker, at para. 12.

The Positions of the Parties

[25] The defendant’s position is that the action should be dismissed for delay. The action was commenced almost nine years ago and the delay of the action has been inordinate. The defendant also submits that the plaintiffs have not provided a satisfactory explanation for the delay, suggesting that it is inexcusable. Finally, the defendant says that the delay has caused real prejudice to it in that Dr. Carbin has died and so there is a real risk that the defendant cannot receive a fair trial of the issues.

[26] The plaintiffs’ position is that the affidavits of David Musselman and Angelique Musselman set out legitimate reasons for the delay such that it is not “inexcusable”. Counsel submits that the defendant never put them on notice that Dr. Carbin might not be available for trial due to deteriorating health and did not notify them of the need to take further steps to preserve his testimony for trial. The plaintiffs suggest that there was a “failure to act” on the part of the defendant.

[27] The plaintiffs also submit that the evidence of Dr. Carbin from his discovery can be admitted at trial under Rule 31.11(7) of the Rules of Civil Procedure and that the existence of the transcript from the discovery means that the defendant has “not been substantially prejudiced by its inability to call oral evidence at trial from Dr. Carbin.”.

[28] Finally, the plaintiffs submit that the respondent has adduced no evidence about the circumstances leading to Dr. Carbin’s death. As I understand the plaintiffs’ position, it is that if the plaintiffs had set the matter down for trial in the fall of 2013, it might not have been reached for trial in November 2014. The plaintiffs say that there is no evidence as to whether, due to his illness, Dr. Carbin would have been able to testify had the trial taken place in the November 2014 or May 2015 sittings. I take the plaintiffs to suggest that he likely would not have been healthy enough to testify, although there is no evidence to support such an assertion. On the basis of this timing as to the trial, and the speculation as to Dr. Carbin’s likely health and availability to testify, the plaintiffs argue that the defendant is no worse off than had the matter been set down for trial in 2013.

Analysis

a) Is the delay inordinate?

[29] Delay is to be measured from the commencement of the proceeding to the motion to dismiss. In this case this delay is from January 28, 2008 to December 7, 2016, a period of eight years and ten months.

[30] In Langenecker at para. 8, Doherty J.A. noted that while most litigation does not move at a quick pace, medical malpractice cases are among those that move slowly. In my view, there is no issue that a period of almost nine years may amount to inordinate delay.

b) Is the delay inexcusable?

[31] The plaintiffs have provided affidavits from Angelique Musselman and David Musselman setting out their explanations for the delays in moving the action forward.

[32] Ms. Musselman says that Mr. Musselman has complained of pain and impairment since his surgery by Dr. Carbin on February 5, 2006 and that this has caused serious stress on their marriage and family relationships. She says that his mental and emotional condition appear to her to have made him incapable of managing the lawsuit and so the responsibility of communicating with counsel has fallen to her. Further, she says that because of his pain since the surgery, she and he communicate poorly and so have been unable to discuss the action against Dr. Carbin.

[33] Ms. Musselman explains that her husband’s depression has left her responsible for their four children, their household and her work, and that this has put her under too much stress for her to take steps to pursue the action. She says that she delayed responding to counsel and delayed answering the undertakings.

[34] Finally, Ms. Musselman says that she has been litigation guardian for their children, and had been hesitant to involve them in the lawsuit and three of them were minors. Only one of them is still a minor now and Ms. Musselman says that they are ready to pursue their claims.

[35] Mr. Musselman says in his affidavit that he has been in severe back pain and impairment since his surgery on February 5, 2006. He says that he is depressed, angry, unable to focus or concentrate and that he has difficulty dealing with anything controversial or demanding. He has isolated himself and not dealt with communications from counsel, leaving this to his wife.

[36] An associate of counsel for the plaintiffs has also filed an affidavit in support of its position that the delay has been explained. In that affidavit, counsel asserts that there were “communication problems” between the plaintiffs and counsel, Ms. Edmonds, in 2015 and 2016 because the plaintiffs moved and changed their home e-mail addresses. It is said that counsel had difficulty obtaining instructions due to the circumstances of the plaintiffs in dealing with the impact of Mr. Musselman’s condition.

[37] I accept that there has been an explanation offered for the delay. But, I find that it is not an acceptable explanation and that the delay is inexcusable.

[38] I acknowledge that the affidavits from the Musselmans suggest that their family has had considerable strife from what they say is the effect of Dr. Carbin’s treatment of Mr. Musselman. I accept that their family challenges have contributed to the delay in moving these proceedings along.

[39] That said, these family challenged do not excuse the delay. There remain a number of respects in which the progress of the proceedings is very troubling.

[40] After the conclusion of the discoveries on November 9, 2011, very little happened until June 24, 2013 when the defendant’s expert report was provided to counsel for the plaintiffs. This was more than nineteen months after the end of the discoveries and undertakings. It was at this point that counsel for the defendant began to pursue answers to the undertakings. Even if the defendant bears some responsibility for not pressing for answers in this time period, it seems to me that things changed beginning in October 2013.

[41] Counsel for the plaintiffs responded to counsel for Dr. Carbin that she would provide answers and then provided only one answer on October 9, 2013. She then stopped responding to communications from counsel for the defendants.

[42] I accept that counsel may have been having difficulty obtaining instructions. But, she was under a professional obligation to respond to letters from counsel for the defendant. As set out above, there were a significant number of letters. Counsel failed in responsibilities to her clients and to opposing counsel. She acknowledges that there is no explanation for counsel’s failure to respond for two years.

[43] In many of the letters sent by counsel for the defendants, it was made very clear that if the plaintiffs did not provide answers to the undertakings and counsel did not respond to letters, a motion would be brought seeking to dismiss the action for delay. There is no argument by the plaintiffs that they did not see this coming. The truth is that for many years, the litigation was just not their priority. It was not a priority for counsel and it was not a priority for the plaintiffs.

[44] It was only after counsel for the plaintiff was advised that Dr. Carbin had died that there was any response to the defendant. Initially, at that point, it seems like the plaintiffs were planning to agree to have the action dismissed without costs. However, by January 13, 2016, that position had changed and the plaintiffs had decided to continue the action.

[45] Even after advising counsel for the defendants that the plaintiffs intended to continue the action, the plaintiffs’ choices over 2016 have not demonstrated any real commitment to doing so and have compounded what had already been a lengthy delay. While a trial record has been filed, this case is far from being trial ready.

[46] There has been an answer to only one undertaking since February 2, 2016. As is set out in the motion materials, many of the undertakings remain unanswered. No plan or timetable was put before me as to when the plaintiffs will answer their undertakings. Despite the opportunity to do so, they declined to speak to this issue in a fulsome way in their affidavits.

[47] In fact, all Ms. Musselman did say was that she and Mr. Musselman had reviewed the transcripts of each other’s examinations for discovery, as they had undertaken to do, and that this had been completed several months ago. There is nothing said about any of the other outstanding undertakings. Despite this, counsel invited the court to set a timetable for the litigation.

[48] Further, counsel for the plaintiff provided no expert reports to the defendant until November 25, 2016, when Dr. Rampersaud’s report was received. It turns out that his report is dated July 2009. The defendant advises that it may need to retain someone to provide a responding report. This will further delay the action and is caused by the plaintiff’s unexplained decision to hold the report back for more than seven years. Counsel says that it was a legitimate litigation decision to hold back the report before Dr. Carbin’s discovery. Fair as that may be, no explanation has been offered for the delay in providing it since November 2011. I cannot see how this decision by counsel, which further lengthens the process, can be attributed to the family issues suffered by the Musselmans.

[49] When asked about the absence of evidence from the plaintiff on the issue of causation, counsel submitted that evidence on this issue would come from the treating physician. However, counsel subsequently acknowledged that she still needed to retain an expert to prepare a report on causation. She says that this could be done in 60 to 90 days. She has not retained anyone yet. Again, I do not see how the decision not to pursue an expert opinion on the critical issue of causation could be excused by the Musselmans.

[50] The defendant’s position is that Dr. Rampersaud’s report does not opine on whether there was negligence or a breach of a duty of care by Dr. Carbin. I note that Dr. Rampersaud did say that it is his opinion that “the procedure itself was performed to expected standards”. The plaintiffs’ position seems to be that Dr. Rampersaud’s opinion is sufficient on the standard of care. It was not clear to me whether the plaintiff had committed to not seeking a further expert opinion on this issue, or whether there might be an additional report. This would, of course, cause further delay.

[51] When I consider the total period since the action was started, and particularly the period since October 2013, it seems to me that the plaintiffs and their counsel have demonstrated disinterest in moving their action forward and not adequately justified the delay.

c) Prejudice: Is there a substantial risk that a fair trial of the issues will not be possible because of the delay?

[52] The issue of whether there is substantial risk that a fair trial will be impossible because of the delay is the most important factor in my decision. For me, it is dispositive. I conclude that the delay caused by the plaintiffs, during which time Dr. Carbin unfortunately died, means that the defendant will be unable to have a fair trial on the issues.

[53] An inordinate passage of time gives rise to a presumption of prejudice. It is then for the plaintiff to “persuade the court with convincing evidence that no prejudice will be suffered as a result of its delay, and that there is not a substantial risk that a fair trial will not be possible”: Wallace v. Crate’s Marine Sales Ltd. 2014 ONCA 671 at para. 11. In this case, there is prejudice not only from the passage of time, but also demonstrated, case-specific prejudice.

[54] The defendant asserts prejudice as a result of Dr. Carbin’s death. The plaintiffs’ response is that the transcript from the discovery can be admitted and that the court will have the benefit of Dr. Carbin’s notes.

[55] In Jacob v. Playa El Agua Development Limited Partnership, 2014 ONSC 6581; aff’d 2015 ONCA 372, Wilson J. considered whether the existence of discovery transcripts reduce the risk of an unfair trial when the defendants had died. She held at para. 59:

59 The Plaintiff asserts that no prejudice will result from the death of Church or Torcat because the documents have been preserved and there are "ample discovery transcripts" such that there is not a substantial risk that a fair trial will not be secured. This bald statement fails to address the fact that the discovery transcripts do not automatically go in as evidence at the trial; leave must be sought from the trial judge pursuant to rule 31.11. In addition, using a transcript from an examination for discovery is not the same as having a witness in the stand to give evidence and be subject to cross-examination. As Justice Swinton aptly noted on a motion to dismiss an action for delay where a defendant had died,

Even if leave were given by the trial judge to admit the discovery pursuant to Rule 31.11(6)(a) and 31.11(7), the defendants would be deprived of their ability to have Mr. Pasztor present his story in an organized fashion. I accept that the lack of viva voce evidence from Mr. Pasztor, in a case where his credibility is very important, is extremely prejudicial to the defendants. [Rubino v. Nesbitt Thomson Inc., [2001] O.J. No. 1306 at para. 36.]

[56] This case presents many of the concerns identified by Justice Wilson and Justice Swinton. Dr. Carbin is the defendant. He was the surgeon who is alleged to have breached his duty of care. I understand from the statement of claim that it is alleged that he operated on the plaintiff without first informing him of the nature of the proposed surgical procedure and the risks associated with it. As a result, it is alleged that Mr. Musselman did not provide his informed consent. Further, it is alleged that as a result of the surgery, Mr. Musselman sustained severe and intense back pain and that a pre-existing condition in his back was worsened such that he has been permanently injured.

[57] In my view, when there is an issue about consent to the surgery, the credibility of Dr. Carbin is important. Dr. Carbin’s absence from the trial will put the defendant in a compromised position when asserting that the court should accept Dr. Carbin’s evidence over that of the plaintiff. This problem exists even were the trial judge to admit the evidence of Dr. Carbin from the discovery. I do not accept the plaintiffs’ position that the court would have all of the evidence it needs from the transcript of the discovery and contemporaneous medical records to determine the issue of informed consent and negligence. I say this without having had the opportunity to review the transcript of the discovery as it was not filed by the plaintiffs on the motion before me.

[58] Furthermore, I see real prejudice in the respondent having to rely on Dr. Carbin’s answers at discovery rather than being able to tell his story about the treatment Mr. Musselman received in an organized manner as the defendant would want to. I cannot see the discovery transcript as an adequate proxy for his version of events.

[59] I conclude that the defendant will be substantially prejudiced by its inability to adduce oral evidence from Dr. Carbin at a trial.

[60] I do not accept the plaintiffs’ position that the defendant contributed to not having Dr. Carbin’s evidence by not informing the plaintiffs when he was unwell. Nor do I accept that the defendant would have likely had to have a trial without Dr. Carbin even if the matter had been set down for trial in 2013.

[61] While there is no affidavit evidence before me, counsel for the defendant advises that Dr. Carbin became sick early in 2015 and died in June 2015. There is, in my view, a reasonable prospect that had the plaintiffs answered their undertakings in a timely manner, and pursued this action with diligence, it would have been set for trial by late 2013. Certainly, there is no reason to doubt that it could have proceeded in 2014. I do not accept that the defendant is no worse off than had the trial proceeded in 2013.

Conclusion

[62] As a result of the inordinate inexcusable delay and the inability of the defendant to have a fair trial, the action will be dismissed.

[63] If the parties are unable to resolve the issue of costs, they may make written submissions to me. The defendant is to serve and file his submissions, of not more than two pages, in addition to any bill of costs and authorities, within two weeks of the release of this endorsement. The plaintiffs will have two weeks to respond.

Woollcombe J.

Date: December 12, 2016