COURT FILE NO.: CV-08-03207-00 DATE: 20170421 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MADDALENA SIMS, JEREMY SIMS, ELIZABETH DEPINTO, JOHN DEPINTO, and TOBIAS DEPINTO and EMILY SIMS, minors, by their Litigation Guardian, Jeremy Sims, Plaintiffs
AND:
MARSHALL ZAITLEN, ANITA AGGARWAL, C. GRENIER, GERALD TULLIO, BALBHADAR SOOD, TABIN BANIK and WILLIAM OSLER HEALTH CENTRE-BRAMPTON CIVIC HOSPITAL, Defendants
BEFORE: Regional Senior Justice Peter A. Daley
COUNSEL: Aleks Mladenovic, for the Plaintiffs Julie K. Parla and Michael J.P. O’Brien, for the Defendants, Marshall Zaitlen, Anita Aggarwal, C. Grenier, Gerald Tullio, Balbhadar Sood and Tabin Banik
HEARD: March 16, 2017
ENDORSEMENT
Case Management Order Regarding Proposed Summary Judgment Motion
Procedural History
[1] The question that was to be determined on this case conference was whether it was advisable, and in the interests of justice, for a proposed summary judgment motion to proceed in the context of the litigation as a whole, and if so what form that motion should take.
[2] At the request of counsel for both the plaintiffs and the defendants this matter came before me following a joint request for the appointment of a case management judge to oversee and provide directions with respect to a proposed motion by the defendants.
[3] In accordance with Rule 37.15, I was appointed a case management judge in this matter.
[4] On March 16, 2017, counsel appeared on a case conference and made submissions with respect to the defendants’ proposed summary judgment motion and in particular as to how it could be best framed in terms of its focus and also with respect to the nature of the evidentiary record to be presented on the motion.
[5] During those submissions the question as to whether a case management judge had jurisdiction to order that a summary judgment motion not proceed was raised. Initially counsel for the plaintiffs advised that they knew of no such authority and as such the focus of the submissions by both counsel remained on the case management matters mentioned above.
[6] At the close of counsel’s submissions I requested that they both provide supplementary written submissions on several matters including considerations relating to the use of the viva voce evidence and the appropriateness of the mini-trial format.
[7] In his supplementary submissions counsel for the plaintiff provided case authority considering the jurisdiction of case management judge, as a gatekeeper, to order that a proposed summary judgment motion not proceed at all. This will be considered below.
[8] This action was commenced in 2008 and arises from alleged negligent medical treatment received by the primary plaintiff in 2006. The hospital is no longer a defendant in this action.
[9] A pretrial conference was held in 2014 and at that time it was estimated that the trial of this action would take between 5 and 6 weeks, however with additional expert evidence developed since that time, it is now likely that the trial will take longer.
[10] Included in the jointly filed Case Conference Brief is the proposed Notice of Motion without the referenced supporting affidavit material, but along with certain medical expert opinions relied upon by both counsel.
Nature of the Action
[11] The plaintiff Maddalena Sims alleges that she was negligently treated by the defendant doctors following her attendance at the William Osler Health Center in Brampton, on October 1, 2006.
[12] At that time she presented at the hospital with a complaint of a sudden onset of headache pain.
[13] The plaintiff was neurologically examined and she underwent a CT scan and a lumbar puncture examination, and following that she had a consultation with the defendant Dr. Gerald Tullio, a neurologist. An MRI and MR venogram were ordered by this doctor.
[14] According to the proposed motion, it is the defendants’ evidence that these investigations did not reveal any abnormalities and the plaintiff was discharged from the hospital on October 3, 2006 with a diagnosis of migraine headaches.
[15] The plaintiff again attended at the hospital on October 8 with complaints of headaches and at that time was seen by an emergency department physician. As she had a follow-up neurological appointment scheduled with Dr. Tullio, she was provided with some additional pain medication and advised to proceed with her follow-up appointment.
[16] On October 10 the plaintiff attended upon Dr. Tullio, on the direction of her family physician, for an urgent medical consultation and at that time she complained of having severe headaches and visual loss. She was thereafter admitted to the hospital for a series of consultations with an ophthalmologist, a neurologist (the defendant Dr. Zaitlen) and a psychiatrist (the defendant Dr. Sood).
[17] In the period from October 16 – 18 inclusive, the plaintiff was seen by doctors Zaitlen and Sood with reported headaches, vision problems, agitated behavior, disorientation and difficulties with memory. She was also considered by the defendant Dr. Banik following admission to the psychiatric facility within the hospital.
[18] Although the plaintiff reported improved memory and vision, along with a reduction in her pain, the visual problems recurred and upon examination by a neurologist at the end of November, 2006 neurocognitive defects consistent with some form of encephalopathy were identified.
[19] Following a further MRI assessment on December 12, 2006 the plaintiff was ultimately diagnosed with varicella zoster encephalitis (VZV) and vasculitis. VZV is described as an infectious process that can cause inflammation of the brain tissue, resulting in strokes. The plaintiff was commenced on intravenous therapy with an antiviral medication, namely acyclovir on December 19, 2006.
[20] A further MRI conducted on December 29, 2006 demonstrated multiple old cortical infarcts, involving the left occipital lobes and lesions about the right occipital lobe in both frontal lobes. On January 4, 2007 following an assessment by an infectious disease physician the plaintiff elected to discontinue the antiviral medication treatment.
[21] The plaintiffs assert that the defendant doctors were negligent in the delayed diagnosis of VZV, which resulted in the delayed treatment with the antiviral medication, all of which resulted in a worse outcome than would have otherwise occurred with an earlier diagnosis and treatment.
Legal Framework
[22] I will state at the outset that I have not come to any conclusion as to the chances of success of the defendants’ motion and have only relied upon what I will refer to as the informational record and the medical reports submitted as part of the jointly filed Case Conference Brief in considering the viability of the proposed motion.
[23] It must be noted that counsel for the defendants readily acknowledged that the paper evidentiary record alone would not be adequate for the purposes of the motion and that the appropriate manner of presentation of the motion would be by way of a combination of affidavit and viva voce evidence. Counsel for the defendants urged that a full mini-trial in which evidence is provided only by viva voce testimony would not be appropriate, as it would not be proportional when considered within the context of Hryniak v. Mauldin, 2014 SCC 7.
[24] Counsel for the defendants further submit that utilizing this method of presentation the motion would take 5 to 6 days. On the other hand, counsel for the plaintiffs estimate that if the motion were allowed to proceed it would take 7 to 8 days.
[25] In Hryniak, Karakakatsanis J. called for proportionate, timely and affordable access to justice for the purpose of resolving civil disputes and in particular by way of summary judgment motions.
[26] In ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910 at para 40, Myers J. very succinctly summarized the roadmap outlined in Hryniak governing the fact-finding powers of the court on a summary judgment motion as follows:
Under the roadmap provided starting at para. 66 of Hryniak the Court is to consider first whether the motion provides sufficient evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If not, the Court should consider if it can reach the required result (to fairly and justly adjudicate the dispute in a timely, affordable and proportionate procedure) by exercising the discretion to weigh evidence, evaluate credibility of witnesses and drawing reasonable inferences from the evidence now rather than at trial (Hryniak, at para. 67). If that does not provide the requisite degree of assurance, the Court should consider exercising the discretion to order presentation of some limited oral evidence (Hryniak, at para 68). If even a mini-trial will not provide a fair and just adjudication of the dispute in a timely, affordable and proportionate procedure, then the motion should be dismissed but the judge is required to craft a trial process to do so while remaining seized of the matter (Hryniak, at para 77). The last fallback is to simply dismiss the motion in exceptional cases where it is clearly inappropriate either to grant summary judgment (Hryniak, at para. 68) or to remain seized (Hryniak, at para. 78).
[27] As to the jurisdiction of a case management judge, Rule 37.15 (1.1) allows for the appointment of a judge to hear all motions in the proceeding and under sub rule (1.2) directs that the judge so appointed “may, give such directions and make such procedural orders as are necessary to promote the most expeditious and least expensive determination of the proceeding.”
[28] Rule 37.15 (2) provides that a judge who hears motions under this rule shall not preside at the trial of the action except with the written consent of all parties.
[29] In Hryniak, Karakatsanis J. clearly contemplated the gatekeeping role of case management judges in determining whether or not it was in the interests of justice that a proposed summary judgment motion, when examined in the context of the litigation as a whole, should proceed when she stated at para 72:
I agree with the Court of Appeal (at paras. 58 and 258) that a motion for directions also provides the responding party with the opportunity to seek an order to stay or dismiss a premature or improper motion for summary judgment. This may be appropriate to challenge lengthy, complex motions, particularly on the basis that they would not sufficiently advance the litigation, or serve the principles of proportionality, timeliness and affordability.
[30] As a case management judge under Rule 37.15 I am satisfied that it is open to me to “make such procedural orders as are necessary to promote the most expeditious and least expensive determination of the proceeding” including a preliminary determination as to whether or not it would be in the interests of justice to allow a summary judgment motion to proceed: Girva v. Girva, 2016 ONSC 1820.
[31] Turning to the issue as to what is the appropriate format for the presentation of the motion, Rule 20.04 (2.2) allows a motion judge to order “that oral evidence be presented by one or more parties” in what is referred to in the heading of this sub rule as a mini-trial. In Baywood Homes Partnership V. Haditaghi, 2014 ONCA 450, Lauwers JA stated as follows with respect to the availability of a mini-trial at para 32:
The summary judgment rules, as interpreted in Hryniak, do permit the fact-finding process to be staged, but only where, as noted by Karakatsanis J., at para 66, that: “will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.” She stated, at para 63, that the “power to order a “mini-trial” should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action.
Analysis
[32] The Notice of Motion included in the jointly filed Case Conference Brief seeks an order pursuant to Rule 20.04 for summary judgment dismissing the action on the basis that there is no genuine issue requiring a trial.
[33] In the submissions made during the Case Conference and in their supplementary submissions following the conference, counsel for the defendants stated that the proposed motion was for two purposes namely to determine the question of causation based largely on the expert medical opinion evidence offered by both sides and secondly to determine whether the emergency physicians and psychiatrists involved in the plaintiff’s care met the appropriate standard of care.
[34] Thus, although the Notice of Motion calls for the dismissal of the action in its entirety, on considering the submissions of counsel for the defendants that is not actually the position that would be argued before the presiding motions judge, although that could arguably be the outcome of the motion, if the defendants were successful.
[35] As noted above, it was readily acknowledged by counsel for the defendants that viva voce evidence would be required if the summary judgment motion were to proceed and as such this proposed motion must be examined within the context of rule 20.04 (2.2) in terms of whether or not a mini-trial would be proportionate and make the resolution of the overall case more efficient, affordable and timely or whether it would add an additional layer of time and expense to the proceedings.
[36] It was urged on behalf of counsel for the defendants that although the summary judgment motion on the question of causation may involve complex medical and scientific evidence, that alone does not make it any less amenable to a summary judgment motion. Similarly it was urged that the standard of care question with respect to the emergency physicians and psychiatrists can be determined based on the existing record of medical expert opinions and as such this aspect of the summary judgment motion can appropriately be argued on this record.
[37] It was also submitted on behalf of the defendants that they are prepared to explore the filing of an agreed statement of facts which would supposedly streamline the fact-finding exercise of the motions judge and shorten the time required for the motion. No agreed statement of facts was introduced during this case conference or subsequent to it.
[38] Counsel for the plaintiff takes the position that the summary judgment motion is not in the interests of justice and that as the case management judge I should deny the defendants the right to proceed with such a motion. Further, it is submitted on behalf of the plaintiffs that the defence proposal as to how the evidentiary record would be presented is truly in the nature of a mini-trial. Defence counsel proposed that affidavit evidence be filed by the medical experts and that they simply be cross-examined on their affidavits. Counsel for the plaintiffs opposed such a format and urged that the only fair way to introduce the complex medical evidence would be by way of a full mini-trial with viva voce evidence both in examination in chief and cross examination.
[39] Regardless of the label applied to the approach proposed by counsel for the defence, I have concluded that it would in reality be a mini-trial, even if the evidence was presented partly by affidavit with cross examination on that evidence.
[40] Having reached the conclusion that viva voce evidence would be required, it must next be determined whether or not such a mini-trial would provide a fair and just adjudication of the dispute in a timely, affordable and proportionate procedure.
[41] Counsel for these parties have very different views on how a mini-trial would proceed and how long it would take. Having considered the submissions from counsel and the limited record available to me, it is my view that the motion, whether argued entirely based on viva voce evidence or partly on viva voce evidence and affidavits, would take in the order of 7 to 10 days.
[42] There is no doubt that the medical opinion evidence would be complex and challenging for the presiding judge. Thus, the time required for the motion may in fact be longer than I have estimated.
[43] Counsel for the defendants submits that there are two causation issues, namely whether there was in fact a delayed diagnosis of the VZV condition and secondly the question of how effective acyclovir, the anti-viral medication is. It is submitted that this question will involve the threshold issue of general causation.
[44] The evidence required to deal with the issue of causation in terms of the alleged delayed diagnosis and the effectiveness of the anti-viral medication, had it been prescribed sooner, will involve extensive medical opinion evidence in the context of several clinical studies as to the effectiveness of the medication. It is submitted on behalf of the plaintiffs, with the aid of the medical opinion of Dr. Michel P Rathbone, a specialist in neurology and neuropharmacology, that earlier diagnosis and earlier initiation of treatment with the antiviral medication would have avoided serious neurologic injury.
[45] On behalf of the defendants Dr. Dick Zoutman, a specialist in Infectious Diseases Medicine, opines that although all patients with VZV are typically treated with acyclovir, the clinical evidence upon which that approach is based is the weakest form of medical evidence in terms of clinical studies carried out.
[46] As to specific causation, it has been held in several decisions that findings of breaches of the applicable standard of care should be made first and factual causation analyzed later in light of those findings: Bafaro v. Dowd, 2010 ONCA 188; Randall V. Lake Ridge Health Oshawa, 2010 ONCA 537.
[47] Thus, before considering the issue of specific causation, namely whether the defendant doctors’ failure to diagnose the plaintiff’s condition in a timely way, caused the injuries and damages sustained by the plaintiffs, it must first be determined whether there were any breaches of the applicable standard of care.
[48] Even if one were to accept the opinion of Dr. Zoutman as to the uncertainty of the effectiveness of acyclovir, I cannot conclude that this evidence would give rise to a question of general causation in that it is the defendants who are asserting that this antiviral medication would not have been as effective as stated by the plaintiffs.
[49] Applying the principles and considerations established in Hryniak I have concluded that given that it must first be determined whether the applicable standard of care was breached before considering the question of causation, and taking into account the complexity of the competing medical views, the uncertainty as to the effectiveness of the antiviral medication and the clinical evidence relating to that and the anticipated length of the hearing of the mini-trial summary judgment motion, and the likelihood that all triable issues would not be resolved, I must order that the defendants’ proposed summary judgment motion shall not proceed. I have reached this conclusion after considering whether the motion would sever the principles of proportionality, timeliness and affordability within the context of the whole action. In my view the motion, as contemplated, would not meet any of those goals.
[50] The defendants proposed that in addition to the question of causation the summary judgment motion should also proceed to determine whether or not the standard of care was met with respect to emergency physicians and psychiatrists involved in the plaintiff’s care. I have concluded that on the informational record provided at this Case Conference, I am not satisfied that it would be in the interests of justice that this sole issue proceed to summary judgment motion on its own.
[51] The scheduled motion dates of June 12 – 14, 2017 shall thus be vacated.
[52] As the case management judge under Rule 37.15 and in my capacity as the Regional Senior Judge I will remain seized of this matter for the purpose of scheduling an early trial date. This matter has been on the civil trial list for some time following the pretrial conference in 2014, and in view of its age and history, this case should have a trial date as soon as possible.
[53] Counsel shall contact my administrative assistant to arrange a further Case Conference and pretrial conference.
[54] As to costs, if counsel are unable to agree on the disposition of costs with respect to this Case Conference decision, counsel shall file submissions of no longer than 2 pages plus a Costs Outline within 15 days from the date of release of this decision.
Daley RSJ. Date: April 21, 2017