Lyons Estate v. Dr. Freeman et al., 2017 ONSC 676

CITATION: Lyons Estate v. Dr. Freeman et al., 2017 ONSC 676

COURT FILE NO.: 10-48566

DATE: 2017/01/27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Laura Bond, Administrator for the Estate of Robert Lyons

Plaintiff

– and –

Dr. Joel B. Freeman, Dr. Robert John Fairfull-Smith, Dr. Jane Doe, Dr. John Doe, and The Ottawa Hospital – General Campus

Defendants

Thomas P. Connolly, Joseph Y. Obagi, and Christopher A. Obagi, for the Plaintiff

Heather J. Williams and Sarah Mahoney, for the Defendants, Drs. Freeman and Fairfull-Smith

HEARD AT OTTAWA: January 23, 2017

RULING

Motion No. 2 - Leave to Bring a Motion for Summary Judgment

CORTHORN J.

[1] The defendant, Dr. Robert John Fairfull-Smith, (“Dr. Fairfull-Smith”) seeks leave to bring a motion for summary judgment dismissing the plaintiff’s claim against him.

Background

[2] The plaintiff’s claim arises in the context of treatment provided to the late Robert Lyons (“Robert”) dating as far back as 1985. It is alleged that Dr. Joel B. Freeman (“Dr. Freeman”) recommended that Robert undergo complete removal of his colon and rectum. The surgery was performed by Dr. Freeman in January 1987. The allegations against Dr. Freeman include that he did not completely remove the rectum.

[3] The plaintiff alleges that during a surgical procedure in 2009, by a surgeon other than Dr. Freeman, a rectal remnant approximately seven (7) centimeters in length was discovered.

[4] With respect to Dr. Fairfull-Smith, it is alleged that he performed a surgical procedure in March 1987 and continued to be involved in Robert’s care for a number of years thereafter. The allegations of negligence against Dr. Fairfull-Smith include that he failed to identify the presence of the rectal remnant and to treat the same aggressively. The particulars of the negligence alleged against Dr. Fairfull-Smith are set out in sub-paragraphs (a) to (q) of paragraph 34 of the amended statement of claim.

[5] The statement of claim was issued in May 2010. The statement of defence on behalf of the defendant physicians (the “Defendants”) is dated September 2012.[^1] The Defendants each deny negligence on their respective parts.

[6] Robert was ultimately diagnosed with cancer. He died in December 2014. An order to continue was obtained in February 2015. The action is continued in the name of the Estate of Robert Lyons. The litigation administrator is Robert’s widow, Laura Bond.

[7] At a case conference held in March 2015, Master MacLeod (as he then was) made the following order:

a) The date of the pre-trial conference (November 2, 2016) would serve as the date from which the parties were to count back to the 90, 60, and 30-day deadlines for service of their respective experts reports (in place of the deadlines otherwise provided in the Rules of Civil Procedure)[^2]; and

b) January 16, 2017 was set as the trial date with the action to proceed to trial before a judge and jury for four weeks.[^3]

[8] In December 2016, a settlement of the plaintiff’s claim against The Ottawa Hospital – General Campus (the “Hospital”) was reached. The action against the Hospital and the crossclaims by and against it are to be dismissed without costs.

[9] The trial commenced on January 16, 2017. This motion for leave to bring a motion for summary judgment was heard on January 23, 2017 – at the beginning of the second week of the trial. The trial is scheduled to last at least four weeks.

The Issue

[10] The sole issue to be determined on this motion is whether Dr. Fairfull-Smith is entitled to leave, pursuant to rule 48.04(1) of the Rules of Civil Procedure, to bring a motion for summary judgment for an order dismissing the plaintiff’s claim against him.

Disposition

[11] The motion for leave to bring a motion for summary judgment is dismissed for the following reasons:

• Dr. Fairfull-Smith has not provided a satisfactory explanation for his delay in bringing the motion for leave;

• The timing of the motion for leave is such that it will unduly delay the trial; and

• There is insufficient evidence to support a finding that proceeding with a motion for summary judgment would be a cost-effective, efficient, and proportionate method by which to resolve the claim against Dr. Fairfull-Smith.

Motion Materials

[12] In support of the motion for leave to bring a motion for summary judgment, Dr. Fairfull-Smith relies on the pleadings; two affidavits sworn by Sarah Mahoney (“Ms. Mahoney”), an associate lawyer with Cavanagh Williams; and an affidavit sworn by Dr. Marcus Burnstein (the “Burnstein Affidavit”).

[13] The substantive portions of Ms. Mahoney’s evidence are set out in the first of the two affidavits sworn by her. That affidavit was sworn on December 29, 2016.

[14] The second affidavit sworn by Ms. Mahoney addresses the efforts being made, as of January 3, 2017, to secure a report from and an affidavit sworn by Dr. Burnstein in support of the motion for leave to bring the motion for summary judgment.[^4] Attached as exhibits to Ms. Mahoney’s second affidavit are copies of an unsigned report dated January 3, 2017 prepared by Dr. Burnstein and a draft unsworn affidavit in Dr. Burnstein’s name. Ms. Mahoney explained that a sworn version of Dr. Burnstein’s affidavit, with a signed copy of the report, would be served as soon as possible.

[15] The Burnstein Affidavit was sworn on January 9, 2017. It includes as an exhibit a signed copy of Dr. Burnstein’s January 3, 2017 report (the “January 2017 Report”). The Burnstein Affidavit was served on January 12, 2017. The January 2017 Report and the affidavit of Dr. Burnstein address the plaintiff’s claim against Dr. Fairfull-Smith.

[16] The plaintiff did not deliver any materials in response to the motion for leave to bring a motion for summary judgment.

[17] By way of agreement between the parties, an exhibit book was filed for the purpose of the motion for leave to bring a motion for summary judgment. The exhibit book contains copies of emails exchanged between counsel for the parties on November 11, 2014, and two reports prepared by Dr. Burnstein.[^5]

Positions of the Parties

a) Dr. Fairfull-Smith

[18] Dr. Fairfull-Smith’s position is that (a) there is no evidence to support a finding that the care provided by him to Robert fell below the standard of care, and (b) in the absence of an expert opinion to support such a finding, the plaintiff’s claim against Dr. Fairfull-Smith should be dismissed. Dr. Fairfull-Smith submits that the plaintiff’s claim against him “cannot succeed”.

[19] It is Dr. Fairfull-Smith’s position that in the absence of any evidence in support of a finding of negligence against him, he is not required to provide the Court with any evidence to disprove negligence on his part. Regardless, he has done so. He relies on the opinion expressed by Dr. Burnstein in the January 2017 Report. Dr. Burnstein’s opinion is that Dr. Fairfull-Smith’s treatment of Robert at the relevant time was consistent with the expected standard of care in the circumstances.

[20] Dr. Fairfull-Smith’s position is that the cost-effectiveness of a motion for summary judgment, in contrast to that of his participation in a trial that is anticipated to last four weeks is, in a word, “obvious”.[^6]

[21] Dr. Fairfull-Smith submits that a motion for summary judgment will not unduly delay the trial because the trial is already underway. He also submits that if the motion for summary judgment is heard and is successful (a) there will be one less party to the action, and (b) the issues to be determined at trial will be narrowed.

[22] Counsel for Dr. Fairfull-Smith acknowledged that, once faced with the motion for leave to bring the motion for summary judgment, counsel for the plaintiff arranged for Dr. Fairfull-Smith to be served with a subpoena. Counsel for the plaintiff intends to call Dr. Fairfull-Smith as a witness and seek to have him declared an adverse witness in the event summary judgment is granted dismissing the plaintiff’s claim against Dr. Fairfull-Smith.

b) The Plaintiff

[23] The plaintiff’s position is that Dr. Fairfull-Smith has not satisfied the criteria for leave to bring a motion for summary judgment. The plaintiff relies on the following:

• Dr. Fairfull-Smith has not provided the Court with any reasonable explanation as to why he delayed, until the commencement of a multi-week trial, in bringing the motion for summary judgment.

• There has been no change in circumstances since March 2015, when the trial date was set on the consent of the parties, to explain the delay in attempting to bring the motion for summary judgment.

• There is no evidence to support a finding that allowing Dr. Fairfull-Smith to proceed with a motion for summary judgment would, in all of the circumstances, be more cost-effective than having him remain as a defendant in this action.

• There is potential prejudice to the plaintiff if partial summary judgment is granted, releasing one of the defendants from the action.

[24] With respect to the final point listed above, the potential prejudice is said to be in the form of inconsistent findings and the potential for the remaining defendant (Dr. Freeman) to allege that the negligence, if any, that cause Robert’s injuries and losses, is that of Dr. Fairfull-Smith.

[25] In reply, the defendant, Dr. Freeman, undertakes that if he becomes the sole remaining defendant, then he will not allege that Robert’s injuries and losses arose from the negligence of any third party including Dr. Fairfull-Smith.

[26] The plaintiff requests that the motion for leave to bring a motion for summary judgment be dismissed. If, however, leave is granted to Dr. Fairfull-Smith to proceed with the motion for summary judgment, then the plaintiff requests time to deliver materials in response to the motion for summary judgment.

The Evidence

[27] As of November 2014, counsel for the plaintiff had served an expert’s report from Dr. Philip Gordon. The report addresses the issue of standard of care and is relied on in support of the claims against the Defendants. A copy of the report of Dr. Gordon is not included in the record before me.[^7]

[28] In November 2014, there was an exchange of emails between counsel for the parties, the end result of which was the following statement made by counsel for the plaintiff: “We will not be producing any further expert report until such time as we are in receipt of your expert report.”[^8]

[29] Based on the March 2015 case conference endorsement, the deadline by which the plaintiff was to serve its experts’ reports for the purpose of the November 2, 2016 pre-trial conference was early August 2016. The plaintiff did not serve any experts’ reports between November 2014 and August 2016. The first report served on behalf of the Defendants is the August 29, 2016 report of Dr. Burnstein.

[30] A copy of the endorsement from the March 2015 case conference is included as an exhibit to the Mahoney Affidavit. That endorsement does not include any mention of the potential for Dr. Fairfull-Smith to bring a motion for summary judgment dismissing the plaintiff’s claim against him. The timetable set at that case conference makes no reference to motions of any kind. At the March 2015 case conference the trial date of January 16, 2017 was set.

[31] I find that it was not until December 14, 2016 that the plaintiff was given notice of the intention of Dr. Fairfull-Smith to bring a motion for leave to bring a motion for summary judgment.[^9] Counsel for the plaintiff immediately responded stating: “We will oppose any Motion for leave to bring a Summary Judgment Motion, at this late stage of this Action.”[^10]

[32] The notice of motion in support of the request for leave to bring a motion for summary judgment is dated December 29, 2016. The first of Ms. Mahoney’s two affidavits was sworn on that date.

[33] The materials for the motion for leave to bring a motion for summary judgment identify three possible return dates. The fixed return date is February 16, 2017. The alternative return dates identified are at the outset of trial or at another later date. It was the intention of Dr. Fairfull-Smith to proceed with the motion for leave to bring a motion for summary judgment in February 2017 if, for some reason, the trial did not proceed in January as scheduled.

[34] On January 13, 2017, a trial management conference was conducted. During that conference, I was advised that Dr. Fairfull-Smith would at the outset of trial seek leave to bring a motion for summary judgment. The trial commenced on January 16, 2017.

Analysis

[35] In her decision in Hryniak v. Mauldin, Karakatsanis J. reflected on the consensus, developing as of 2014 when her decision was written, “that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted.”[^11] She called for a culture shift that would allow for an alternative model of adjudication that is no less legitimate than the trial of an action. The decision in Hryniak focuses on a motion for summary judgment as a fair and just alternative model of adjudication.

[36] In none of the authorities relied on by Dr. Fairfull-Smith was a motion for leave to bring a motion for summary judgment brought, let alone granted, at the outset of or during a trial. The lack of such an example is not surprising when the following passage from Hryniak is considered: “While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately.”[^12] [Emphasis added.]

[37] Dr. Fairfull-Smith relies on the following passage from Hryniak:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary finds of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.[^13]

[38] With respect to the third point identified in the passage above, I turn to the 2012 decision of Quinn J. in Fruitland Juices Inc. v. Custom Farm Service Inc.[^14] Dr. Fairfull-Smith relies on Fruitland as establishing the test for leave to bring a motion for summary judgment after an action has been set down for trial. In particular, he relies on the following passage:

A party is not obliged to bring a summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances. So long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing. In other motions (such as to add parties, raise new issue or amend pleadings), the explanation for a delay in so moving is relevant, as is the issue of prejudice to the opposing party. However, none of that is relevant or required in a motion for summary judgment, at least in the circumstances of this case. A summary judgment motion brought at any time is a potential blessing for the administration of justice.[^15]

[39] I note the following with respect to the timing in Fruitland of the motion for leave to bring a motion for summary judgment. Quinn J. identified that the motion for summary judgment, if heard, would result in a delay of one month of the date on which the parties would attend to fix a date for trial. There can be no doubt that in Fruitland, the motion for leave to bring the motion for summary judgment was brought well before the commencement of trial.

[40] The plaintiff does not agree that the decision in Fruitland sets out the test for leave to bring a motion for summary judgment. The plaintiff argues that the more stringent test set out in the 1993 decision of Then J. in Theodore Holdings Ltd. v. Anjay Ltd. is the appropriate test.[^16] After reviewing a number of historical decisions with respect to a motion for leave to bring a motion for summary judgment after an action has been set down for trial, Then J. concluded that one of the factors to be considered is whether there has been “a material change of circumstances” subsequent to the action being set down for trial.[^17]

[41] The decisions in Fruitland and Theodore Holdings were both considered by Thomas J. in his 2016 decision in Popovich v. Financial Investment Centre Inc.[^18] Thomas J. cited, but did not otherwise refer to, the decision in Theodore Holdings. He referred to the test for leave in Fruitland as a “low threshold”.[^19] Despite that description, Thomas J. acknowledged that the test set out in Fruitland “may function well in the vast majority of cases”.[^20] He concluded that it did not, in his view, capture the circumstances before him.

[42] In Popovich, Thomas J. denied leave to bring a motion for summary judgment when the start of the trial was some 13 months away from the date on which the motion for leave to bring a motion for summary judgment was argued.

[43] In argument, both written and oral, counsel for the parties made submissions as to the significance of the Popovich decision and the extent, if any at all, to which it undermines the test set out in Fruitland on a motion for leave to bring a motion for summary judgment after an action has been set down for trial. In my view, I am not required to resolve that issue in determining the motion for leave before me.

[44] The outcome of the motion for leave before me turns on the timing of the motion, the delay in bringing the motion, and the lack of evidence in support of the relief requested.

[45] As already noted, I have not been provided with any example of a party being granted leave at the outset of trial to bring a motion for summary judgment. In my view, a motion for summary judgment continues to be considered as a step to be taken prior to the commencement of trial. In the matter before me were such that the motion for leave to bring a motion for summary judgment was not heard until the second week of trial.

[46] Dr. Fairfull-Smith relies on the March 2015 case conference as a change in the ‘landscape’, if not the circumstances of the action, specifically because deadlines were set for the exchange of experts reports. Dr. Fairfull-Smith submits that with the deadlines set in that regard, it was cost-effective for him to wait until after the exchange of experts’ reports before deciding whether to pursue a motion for summary judgment. I find Dr. Fairfull-Smith’s submissions in that regard to be without merit.

[47] Evidence is required to support a finding that the proposed motion for summary judgment would be “proportionate, more expeditious and less expensive”[^21] than a trial of the claims made against Dr. Fairfull-Smith. In my October 2016 decision in Villeneuve v. Canada (Attorney General)[^22], I set forth guidelines with respect to the evidence required on a motion for leave to bring a motion for summary judgment after an action has been set down for trial.

[48] The defendant in Villeneuve brought a motion for leave to amend their statement of defence and, based on the proposed amended statement of defence, leave to bring a motion for summary judgment. The defendant was granted leave to amend their statement of defence, but not all of the proposed amendments were allowed. The amendments that were not allowed were the amendments that, if made, would have formed the basis for the motion for leave to bring a motion for summary judgment. There was otherwise no basis upon which the defendant relied in support of the proposed motion for summary judgment. As a result, the motion for leave to bring a motion for summary judgment was dismissed.

[49] The defendant in Villeneuve brought their motion for leave to bring a motion for summary judgment approximately three months prior to the date on which the matter was scheduled to proceed to trial. Given that timing, I considered it important for the parties to know that even if all of the proposed amendments to the defendant’s pleading had been allowed I would not have granted leave to bring a motion for summary judgment.

[50] One of the reasons why I would not have granted the defendant in Villeneuve leave to bring a motion for summary judgment was because of the lack of evidence to support a finding that the criteria for leave had been met. Counsel for the defendant had sworn an affidavit in which she stated her belief that a motion for summary judgment was the “most just, expeditious, and least expensive” manner in which to determine the action. However, counsel did not set out the grounds for her belief and there was no other evidence to support a conclusion to that effect.

[51] With respect to the evidentiary requirements on a motion for leave to bring a motion for summary judgment, I referred to the decision of Quinn J. in Fruitland. I highlighted his conclusion that the timing of a motion for summary judgment is not relevant “[s]o long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial.”[^23]

[52] I then discussed in detail the evidentiary requirements with respect to matters such as cost-effectiveness, etc.:

The cost-effectiveness of a motion for summary judgment versus the trial of an action may be more obvious in some cases than in others. Regardless, for a judge or master to determine a motion pursuant to rule 48.04 for leave to bring a motion for summary judgment, it is in my view incumbent upon the moving party to provide the court with evidence addressing the anticipated costs of the proposed motion for summary judgment and comparing those costs to the anticipated costs of the trial. The evidence with respect to costs may be qualitative or quantitative or both.

The costs associated with a motion for summary judgment are frequently in the tens of thousands of dollars. In large and complex litigation the costs of a summary judgment motion can reach six-figures. Over and above those amounts are the costs of an appeal, if pursued, from a decision on a motion for summary judgment.

How do the costs associated with the preparation of supporting affidavits, cross-examinations, transcripts, legal research, preparation of facta, preparation for the hearing, and attendance to argue the proposed motion for summary judgment compare to the costs associated with a trial of the action? In the absence of evidence in that regard, it is difficult to make a finding as to the cost-effectiveness of a motion for summary judgment over a trial of the action.[^24]

[53] On the motion before me, there is no evidence, qualitative or quantitative, on behalf of Dr. Fairfull-Smith to support a finding that granting leave to proceed with a motion for summary judgment, now more than a week into the trial, will be “proportionate, more expeditious and less expensive” than if he is to remain a defendant in the action for the balance of the trial.

[54] It is submitted on behalf of Dr. Fairfull-Smith that the cost-effectiveness and expeditiousness of granting leave to bring the motion for summary judgment is “obvious”. I disagree; it is anything but obvious.

[55] Dr. Fairfull-Smith submits that the motion for summary judgment, if argued, would take only a few hours of trial time and, as a result, would not result in a significant delay in the trial. That argument, however, fails to take into consideration the following:

• Only Dr. Fairfull-Smith has delivered materials for the proposed motion for summary judgment. The plaintiff has yet to deliver responding materials.

• Once the plaintiff’s responding materials, if any, are delivered, Dr. Fairfull-Smith will be required to determine whether to delivery any materials in reply.

• After the reply materials, again if any, are delivered, the parties must then determine whether cross-examination on the opposing party’s supporting affidavits is required.

• Cross-examination, if requested, must be allowed. Dr. Burnstein practices medicine in Toronto. Would counsel for the parties be required to travel to Toronto for the cross-examination of Dr. Burnstein? Or, would he be asked to travel to Ottawa? Regardless, he is a busy medical professional whose schedule likely makes scheduling cross-examination on short notice problematic.

• Transcripts of cross-examination(s) would have to be ordered on an expedited basis with the associated expense.

• The parties would be required to deliver facta and books of authorities.

[56] In my view, without allowing the time for those steps to be completed, the summary judgment process before me would not give me confidence in my conclusions. Allowing for those steps to be completed will result in a delay. The delay would not, however, be of the start of the trial. The delay would be of the trial now underway; a trial in which Dr. Fairfull-Smith will be called as a witness regardless of the outcome of this motion and of a motion for summary judgment, the latter if heard. I find that a summary judgment motion could not, in the circumstances, possibly be a proportionate way to resolve the plaintiff’s claim against Dr. Fairfull-Smith.[^25]

Summary

[57] The motion on behalf of Dr. Fairfull-Smith for leave to bring a motion for summary judgment is dismissed.

[58] In my view the motion for leave had no chance of success. As a result, Dr. Fairfull-Smith shall pay the plaintiff its costs, in any event of the cause, of the motion for leave to bring a motion for summary judgment. The scale and quantum of costs shall be determined at a later date.

Madam Justice Sylvia Corthorn

Date: January 27, 2017

CITATION: Lyons Estate v. Dr. Freeman et al., 2017 ONSC 676

COURT FILE NO.: 10-48566

DATE: 2017/01/27

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Laura Bond, Administrator for the Estate of Robert Lyons

Plaintiff

– and –

Dr. Joel B. Freeman, Dr. Robert John Fairfull-Smith, Dr. Jane Doe, Dr. John Doe, and The Ottawa Hospital – General Campus

Defendants

RULING ON MOTION AT TRIAL

Motion No. 2 – Leave to Bring a Motion for Summary Judgment

Madam Justice Sylvia Corthorn

Released: January 27, 2017

[^1]: In the affidavit of Sarah Mahoney, an associate lawyer with Cavanagh Williams, sworn on December 29, 2016, she states that the statement of defence and crossclaim of the defendant physicians is dated May 14, 2013. In this ruling, I rely on the date at the conclusion of the pleading – September 7, 2012. [^2]: R.R.O. 1990, Reg. 194. [^3]: A copy of the case conference endorsement is included as an exhibit to the Mahoney Affidavit. [^4]: Ms. Mahoney’s second affidavit was sworn on January 6, 2017. [^5]: The two reports of Dr. Burnstein are dated August 29, 2016 and January 9, 2017. The reports were served on behalf of the Defendants with respect to the issues of standard of care and causation. [^6]: Factum of Dr. Fairfull-Smith, para. 49. [^7]: It is anticipated that Dr. Gordon will begin testifying on Tuesday, January 24, 2017 (the day after this motion for leave to bring the motion for summary judgment was argued). [^8]: Tab 1 of Exhibit Book – November 11, 2014 email from Mr. Connolly to Ms. Williams (and to counsel for the defendant Hospital). [^9]: Mahoney Affidavit, exhibit ‘D’: December 14, 2016 letter from Cavanagh Williams to Connolly Obagi. [^10]: Mahoney Affidavit, exhibit ‘E’: December 14, 2016 letter from Connolly Obagi to Cavanagh Williams. [^11]: 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 27. [^12]: Hryniak, at para. 32. [^13]: Hryniak, at para. 49. [^14]: 2012 ONSC 4902, 112 O.R. (3d) 453. [^15]: Fruitland, at para. 28. [^16]: 1993 CarswellOnt 429, 18 C.P.C. (3d) 160 (S.C.J.). [^17]: Theodore Holdings, at paras. 11 − 13, quoting from Financial Trust Co. v. Royal Trust Corp. of Canada, Amodeo et al. (Third Parties) (1985), 5 C.P.C. (2d) 114 (Ont. Master). [^18]: 2016 ONSC 1888, 2016 CarswellOnt 5862. [^19]: Popovich, at para. 23. [^20]: Popovich, at para. 24. [^21]: Hryniak, at para. 49. [^22]: 2016 ONSC 6490, 2016 CarswellOnt 16493. [^23]: Fruitland, at para.28. [^24]: Villeneuve, at paras. 63−65. [^25]: Hryniak, at para. 50