CITATION: Baldwin v. Vaidyanathan, 2017 ONSC 6645
COURT FILE NO.: CV-13-473443
DATE: 20171103
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: PATRICIA BALDWIN, WANTEL BALDWIN, MICHELLE BALDWIN, MONIQUE JOSEPH AS LITIGATION GUARDIAN OF JAHLIL BALDWIN, TAFARA LOWE AS LITIGATION GARDIAN OF AKASHA LOWE-BALDWIN, ANDRE BALDWIN AND TENISHA WINT
Plaintiffs
AND:
DR. SAMMY VAIDYANATHAN, ROSAMMA MONICHAN, IRINA MYKHAYLOV, MARIA (RINA) CHERUBINO, SONIA VERDE, LISA CHANG, THE HUMBER RIVER REGIONAL HOSPITAL (FINCH SITE) AND SIMEON MINOTT
Defendants
BEFORE: JUSTICE FAVREAU
COUNSEL: Noam Uri H. Michael Rosenberg and Claire Seaborn
for the Plaintiffs for the Defendant Dr. Sammy Vaidyanathan
Ashley Richards
for the Defendant Lisa Chang
HEARD: October 30, 2017
ENDORSEMENT
[1] Dr. Vaidyanathan, one of the defendants in this action, brings a motion to dismiss the claims brought by Monique Joseph as Litigation Guardian for Jahlil Baldwin ("Jahlil") and Tafara Lowe as Litigation Guardian for Akasha Lowe-Baldwin ("Akasha"), on the basis that counsel for the plaintiffs was not authorized to act for these plaintiffs.
[2] At the hearing of the motion, I was advised that the other plaintiffs in the action do not oppose the motion and that counsel for the parties had agreed to the wording of a draft order. Subject to one small change described below, I advised counsel that am satisfied that the order is to go as requested but that, given the circumstances, I would prepare a brief endorsement setting out my reasons for granting the order dismissing the claims brought on behalf of Jahlil and Akasha. These are my reasons.
[3] The claim is based on allegations that the defendants, including, Dr. Vaidyanathan, were negligent in the medical care provided to Omar Baldwin ("Omar"). Omar suffered stabbing wounds on February 5, 2011, after which he was admitted to the Humber River Regional Hospital (Finch Site) (the "Hospital"). After receiving some medical care, he was released from the Hospital and died at home soon thereafter. The claim is based on allegations of negligence in the medical care provided to Omar.
[4] The following individuals were listed as plaintiffs when the action was commenced:
a. Patricia Baldwin, Omar's step-mother;
b. Wantel Baldwin, Omar's father;
c. Michelle Baldwin, Omar's adoptive sister;
d. Andre Baldwin, Omar's brother;
e. Tenisha Wint ("Ms. Wint"), Omar's girlfriend;
f. Jahlil Baldwin, the son of Omar and Monique Joseph ("Ms. Joseph"); and
g. Akasha Lowe-Baldwin, the daughter of Omar and Tafara Lowe ("Ms. Lowe").
[5] With respect to Jahlil and Akasha, the style of cause refers to their respective mothers as litigation guardians.
[6] Rule 15.02(1) of the Rules of Civil Procedure permits a party who has been served with a statement of claim to seek confirmation that the lawyer acting for the plaintiffs has authority from his or her clients to commence the proceedings.
[7] Rule 15.02(3) sets out the Court's powers in circumstances in which the proceeding was commenced without the client's authority:
(3) If the lawyer declares that he or she did not commence or authorize the commencement of the proceeding, the court may, on motion without notice, stay or dismiss the proceeding.
(4) If a lawyer has commenced a proceeding without the authority of his or her client, the court may, on motion, stay or dismiss the proceeding and order the lawyer to pay the costs of the proceeding.
[8] On March 12, 2015, Master Haberman made an order dismissing the claim against Ms. Wint on the basis that counsel for the plaintiffs commenced the action on her behalf without her authority to do so.
[9] The evidence put forward on Dr. Vaidyanathan's behalf on this motion is that the defendants only recently became aware that Ms. Lowe as Litigation Guardian for Akasha and Ms. Joseph as Litigation Guardian of Jahlil did not give authority to the plaintiff’s counsel, Austin Riley, to bring claims on their behalf.
[10] Mr. Riley swore an affidavit in response to the motion, describing the circumstances under which the action on behalf of these plaintiffs was commenced. His evidence includes the following:
a. Approximately two years following Mr. Baldwin's death, Mr. Riley was contacted by the Crown Attorney involved in the criminal prosecution related to the stabbing, who indicated that Omar's mother was interested in commencing a civil action in relation to the medical care provided to Mr. Baldwin at the Hospital.
b. Mr. Riley met with Ms. Baldwin a few days before the expiry of the limitation period, and she provided a list of family members who she believed wanted to proceed with a claim.
c. Given the upcoming expiration of the limitation period, out of an abundance of caution, Mr. Riley commenced an action naming as plaintiffs all of the people identified by Ms. Baldwin, including Ashaka and Jahlil as presented by their respective mothers as litigation guardians. Following the issuance of the claim, he was able to get confirmation to proceed by all plaintiffs with the exception of Ms. Witt, Ms. Lowe and Ms. Joseph.
d. With respect to Ms. Lowe, Mr. Riley's evidence is that he was finally able to reach her in 2016, and that he made a plan to meet with her and Akasha to prepare for examinations for discovery. However, Ms. Lowe never attended the meeting nor did she attend discoveries. In addition, since that time, he has been unable to contact Ms. Lowe.
e. With respect to Ms. Joseph, Mr. Riley has never been able to reach her and, on discoveries, Omar's mother stated that she believed that Ms. Joseph and Jihlal now live outside of Canada.
[11] The Office of the Children's Lawyer (the "OCL") has been contacted at least twice about this matter. In 2014, Mr. Riley contacted the OCL to find out what he should do given that he was unable to locate the minor plaintiffs. The OCL responded that it would not act for minors whose whereabouts are unknown. The OCL was also given notice of this motion but did not appear in response.
[12] While Ms. Lowe may have had a very brief period of communication with counsel for the plaintiffs, it is evident that the litigation was commenced without instructions from Ms. Lowe on Akasha's behalf or by Ms. Joseph on Jahlil's behalf, nor have these named parties participated in any way in the litigation. In fact, neither Ms. Lowe nor Ms. Joseph have formally been appointed as Litigation Guardians for their respective children nor have they filed the affidavit required under Rule 7.02(2) of the Rules of Civil Procedure. Accordingly, I am satisfied that it is appropriate to dismiss the claims brought by the parties referred to in the style of cause as "Monique Joseph as Litigation Guardian of Jahlil Baldwin" and "Tafara Lowe-Baldwin as Litigation Guardian of Akasha Lowe-Baldwin" as they did not authorize the action to be brought on their behalf.
[13] At the hearing of the motion, counsel for the parties confirmed that Akasha and Jahlil are still minors. Accordingly, it may still be open to them to commence their own actions when they turn 18 in accordance with the provisions of the Limitations Act, 2002, S.O. 2002, c.24. I therefore want to make it clear that the order dismissing their claims is in no way determinative of whether or not they may be entitled to commence fresh actions at a later date. This issue will have to be decided if and when it arises.
[14] For the reasons set out above, the motion is granted in accordance with the order prepared by and approved by counsel for the parties, with the exception of the following edit to paragraph 1, which is made to ensure that it is clear that this order is not meant to determine whether or not Akasha and Jahlil can proceed with a claim at a later date:
- THIS COURT ORDERS that the claims by the Plaintiffs Jahlil Baldwin (a minor, by his Litigation Guardian Monique Joseph) and Akasha Lowe Baldwin (a minor, by his litigation Guardian Tafara Lowe) are hereby dismissed~~, without leave to amend~~.
FAVREAU J.
Date: November 3, 2017