Court File and Parties

COURT FILE NO.: 10-23137 DATE: 2017-03-08 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Robert Josef Biegerl as Trustee of the Estate of Louise Biegerl, Robert Josef Biegerl, Lindsey Anne Parkin, Jennifer Lee Parkin, Danielle Louise Biegerl, Tyler Louis George Biegerl and Hunter Bowman Pileggi, by his litigation guardian, Robert Josef Biegerl Plaintiffs

Laura Hillyer, for the Plaintiffs

• and -

Oakville-Trafalgar Memorial Hospital, Dr. Peter Incze, Dr. Richard Casey, Dr. Manoj Sayal, Dr. Gerald White, Dr. Sonny Kohli, Nimfa Nato, Laurie Tilley, Elizabeth Pulchinski and Nancy Morton Defendants

Trevor A. Courtis, for the Defendants Dr. Peter Incze, Dr. Richard Casey, Dr. Manoj Sayal, Dr. Gerald White and Dr. Sonny Kohli Barbara Walker-Renshaw, for the Defendants Halton Healthcare Services – Oakville Trafalgar Memorial Hospital Site, Nimfa Nato, Laurie Tilley, Elizabeth Pulchinski and Nancy Morton

HEARD: February 9, 2017

RULING ON STATUS HEARING

P.R. SWEENY J.:

INTRODUCTION

[1] This is a status hearing brought as a result of a motion made by the plaintiffs to prevent the registrar from dismissing this action for delay under Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At a status hearing under Rule 48.14, the plaintiffs are required to show cause as to why their action should not be dismissed.

[2] I am satisfied the appropriate test to be applied is the test as set out in Kara v. Arnold, 2014 ONCA 871, at para. 8, as follows:

The test is two-fold and conjunctive: the plaintiff has the onus of demonstrating both that there was an acceptable explanation for the delay and that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice [citations omitted].

[3] In considering the reasonableness of any explanation for the delay in question, status hearing judge “will almost invariably engage in a weighing of all relevant factors in order to reach a just result” (Kara, supra, at para. 13).

[4] In addressing the issue of prejudice, the plaintiff has the onus of demonstrating that the defendants would suffer no non-compensable prejudice if the action were to proceed. The prejudice to consider is the prejudice to the defendants’ ability to defend the action that would arise if the action were permitted to continue.

[5] I shall briefly set out the factual history and then apply the test.

[6] The history of the action follows.

• October 2008: The plaintiff undergoes surgery and dies.
• October 13, 2010: Statement of claim is issued.
• April 18, 2011: The defendant hospital delivers its defence.
• May - June 2011: The plaintiffs produce an unsworn draft affidavit of documents and provide productions to the defendant physicians at their request.
• May 18, 2012: The defendant physicians file their statement of defence.
• August 2013: Plaintiffs’ counsel confirms that the plaintiffs intend to proceed with the action in response to correspondence from counsel for the defendant hospital.
• January 2014: Plaintiffs’ counsel requests that defendants’ counsel provide available dates for discoveries.
• May 2014: Defendant physicians’ counsel writes to plaintiffs’ counsel, advising the file was being transferred to another lawyer in the firm.
• June 26, 2014: Defendant physicians’ new counsel writes to plaintiffs’ counsel enquiring as to the plaintiffs’ intentions.
• June 27, 2014: Plaintiffs’ counsel responds confirming that discoveries are to be scheduled and an entire week would be required. Dates are given in the next six to nine months.
• July 7, 2014: Defendant physicians’ counsel writes to plaintiffs’ counsel enclosing a draft of discovery plan and confirming availability for discoveries March 23 - 31, 2015.
• July 23, 2014: The dates proposed are not acceptable to defendant hospital’s counsel but new dates are proposed for May to June 2015. There is no immediate response from defendant physicians’ counsel or plaintiffs’ counsel.
• December 29, 2014: Plaintiffs’ counsel advises he is not available for the dates proposed by defendant hospital’s counsel.
• June 23, 2015: Defendant physicians’ counsel acknowledges communications to schedule discoveries and attaches the Discovery Plan for response.
• July 8, 2015: Discoveries are tentatively scheduled for the week of June 20, 2016.
• September 18, 2015: New defendant physicians’ counsel assumes carriage of the case.
• September 22, 2015: Plaintiff’s counsel responds to the discovery plan and confirms the examinations for discovery are tentatively scheduled for the week of June 20, 2016.
• October 1, 2015: Physicians’ counsel responds to the comments on the discovery plan. The final two paragraphs of letter read as follows:

  We do not consent to this change at this time [to the discoveries being held in Hamilton]. We are canvassing locations with the defendant physicians and will get back to you. With respect to examination for discovery dates, Ms. Batner is not available the week of June 20, 2016. We are canvassing July dates with the defendant physicians.

• May 12, 2016: Phone call placed by plaintiffs’ counsel to arrange for discoveries.
• July 2016: Physicians’ counsel for the hospital refuses to schedule discoveries until the discovery plan is settled.
• October 24, 2016: Plaintiffs’ counsel proposes a timetable and comments on the discovery plan.
• November 7, 2016: Defence counsel refuses to consent to the timetable.
• December 8, 2016: This motion is brought.

EXPLANATION FOR THE DELAY

[7] As the Court of Appeal noted in Langenecker v. Sauvé, 2011 ONCA 803, at para. 8:

Most litigation does not move at a quick pace. Some litigation, because of the issues raised and/or the parties involved, will move even more slowly than the average case. It is fair to say that many medical malpractice actions are among those cases that move slowly.

[8] In this case, the action proceeded at a leisurely pace. The significant one-and-one-half-year delay in delivery of the statement of defence on behalf of the physicians to some extent is responsible for that leisurely pace.

[9] Following the delivery of the doctors’ statement of defence, there was no action on the case for some one-and-a-half years. The plaintiffs must provide some explanation for that delay. The plaintiffs provide this explanation: the plaintiff, husband of the deceased, was experiencing financial difficulty. As a result of the death of his wife, the family suffered significant financial problems. Mr. Biegerl lost his job in January or February of 2009. He was doing commission-based work and earning just enough to make ends meet. He deposes that, because of his financial difficulties, there have been times when he was not able to pay legal retainers. He has struggled to obtain a doctor’s opinion in a timely manner. He confirms that he now has received an expert report from Dr. Shah.

[10] The defendants suggest that the affidavit of Mr. Biegerl is not sufficient evidence of financial difficulty. The defendants point to 1051841 Ontario Ltd. v. Toronto (City), 2014 ONSC 4327, a decision of Master Dash. In that decision, the master was critical of the plaintiff’s assertion that it was impecunious. The plaintiff was a numbered company. Master Dash expected a summary of assets, income, liabilities and expenses throughout the period of the litigation delay with supporting documents. The master also noted that the plaintiff had failed to provide an affidavit and evidence of the ability of its shareholders to fund the litigation. In this case, the affidavit of Mr. Biegerl explains the financial situation. I am satisfied, on the evidence, that he has had financial difficulty which has contributed to the delay in the proceedings. He has now been able to secure a loan from a friend to ensure funds are available to prosecute the action.

[11] Counsel for the physicians and hospital were writing to the plaintiff enquiring as to the plaintiff’s intention with respect to the action. In August 2013, plaintiffs’ counsel confirmed that the plaintiffs were intent on proceeding with the action. In January 2014, plaintiffs’ counsel requested available dates for discoveries.

[12] I am satisfied that the plaintiffs have provided a reasonable explanation for the delay up until that time. The plaintiffs were then required to take steps to prosecute the action.

[13] In June 2014, counsel for the physicians again inquired as to the plaintiffs’ intentions. In response to that letter, plaintiffs’ counsel sent correspondence on June 27, 2014, confirming that discoveries were to be scheduled. Steps were taken to arrange the examinations for discovery. The process of scheduling discoveries in a multi-party litigation is not an easy task. Dates must be reserved, parties’ availability confirmed, counsel’s availability confirmed, and they must all then be reaffirmed. The process can take a significant period of time. It is necessary that the parties cooperate. With busy counsel, discoveries are often scheduled one year into the future.

[14] Tentative dates in March 2015 were provided. The physicians’ counsel appeared to be taking a technical position that the discovery plan had to be settled before discovery dates could be confirmed. However, the March dates proved to be unacceptable to the hospital’s counsel. The hospital’s counsel proposed new dates. These dates were not acceptable to plaintiffs’ counsel.

[15] In July 2015, the parties were proceeding on the basis that the discoveries would be held in June 2016. The letter from physicians’ counsel to plaintiffs’ counsel dated October 1, 2015, advised that there was a problem with the availability of co-counsel at his firm for the scheduled June 2016 dates. He said he would be canvassing July dates with the defendant physicians. He also said with respect to the location of the discoveries, he would be canvassing locations with the defendant physicians and “will get back to [the plaintiffs’ counsel].” He did not.

[16] While the plaintiffs’ counsel should have followed up in a more timely fashion, there was clearly some responsibility on the defendants to follow up. It was the defendant physicians’ counsel’s unavailability, and particularly the unavailability of co-counsel, that made the dates not acceptable.

[17] In May 2016, plaintiffs’ counsel sought to schedule discoveries again but was rebuffed on the basis that the discovery plan had not been agreed to and that there had now been too significant a delay.

[18] I must examine all the factors in determining whether there has been a reasonable explanation for the delay. In doing so, I consider the nature of the action itself, the cooperation or lack of cooperation between the parties in scheduling examinations, and the explanation that the plaintiff was in some financial difficulty. I am satisfied that the plaintiff has provided a reasonable explanation for delay in scheduling the examinations for discovery.

[19] The defendants point to the failure of the plaintiffs to include any communication between plaintiffs’ counsel and the plaintiffs with respect to the prosecution of the action. In my view, it is not necessary to include that correspondence. There is no issue that there was some delay. The action has been prosecuted. Given the plaintiffs’ counsel’s clear communication in August 2013, that the plaintiffs intended to continue with the action, it would not be necessary to establish the plaintiffs’ intention. In addition, I have the affidavit of Mr. Biegerl which confirms his intention to prosecute the action.

[20] In all the circumstances, I am satisfied that the plaintiffs have provided a reasonable explanation for the delay in the prosecution of the action.

PREJUDICE

[21] In this case, the plaintiffs provided an affidavit of documents with Schedule A productions on a DVD and the hospital records on a DVD, prior to the defendant physicians’ delivery of their statement of defence. There is no issue raised that any documents are not available. The defendants had a full opportunity to interview all necessary witnesses and preserve any evidence necessary in this matter.

[22] This is a medical malpractice action. The doctors’ evidence will depend to a great extent on their review of the clinical notes and records that they have made. There is no evidence that any witnesses are not available. The physicians were aware of this claim and given time, one and one-half years, to review the evidence and prepare their defence.

[23] This case differs significantly from The Estate of Ebla Ahmed v. Hotel-Dieu Grace Hospital, 2013 ONSC 5049. In that case, the action did not advance past the pleadings stage despite the passage of over five years’ time. No affidavits of documents had been exchanged. The plaintiffs were not actively involved in the prosecution of the action. Many of the plaintiffs had no idea that the action was progressing.

[24] I am satisfied that the plaintiffs have established that there is no non-compensable prejudice suffered by the defendants.

CONCLUSION

[25] The action should proceed. The plaintiffs have proposed a timetable. I am satisfied that the timetable will appropriately move this action forward. The parties are always entitled to proceed in a more timely fashion than set out in the timetable. The timetable is as follows:

Remaining step to be completed	By which party	Date to be completed by
Sworn Affidavits of Documents	All	June 30, 2017
Examinations for Discovery of the Plaintiffs	Defendants	December 31, 2017
Examinations for Discovery of the Defendants	Plaintiffs	December 31, 2017
Undertakings	All	April 30, 2018
Motions on Undertakings	All	May 31, 2018
Mediation	All	September 30, 2018
Set Down for Trial	All	July 31, 2018

COSTS

[26] If the parties are unable to agree on costs, I will accept written submissions limited to three pages plus a bill of costs and any offers to settle addressed to me in my chambers in Hamilton. The plaintiffs have seven days to provide their submissions; the defendants each have seven days after delivery of the plaintiffs’ submissions. The plaintiffs have five days for reply. Any extension of time due to vacation schedules may be sought in writing, addressed to me, copied to all counsel.

Sweeny J.

Released: March 8, 2017