Court File and Parties
COURT FILE NO.: CV-08-0512-00
DATE: 20180516
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IBRAHIM NASIR, a minor, by his litigation guardian Tahir Nasir and TAHIR NASIR, personally
Plaintiffs
V.
AGGIE KOCHMANSKI
Defendant
BEFORE: Regional Senior Justice Peter A. Daley
COUNSEL: H. Fancy, for the Plaintiffs
K. Hirani and J. Koifman, for the Defendant
HEARD: May 9 and 11, 2018
ENDORSEMENT ON MOTION FOR ADJOURNMENT OF TRIAL
Factual Background:
[1] This action arises from a motor vehicle accident which is alleged to have occurred on April 16, 2006, where the defendant is alleged to have reversed her vehicle on a residential driveway and then struck and injured the then 28 month old minor plaintiff.
[2] This case is scheduled to proceed to trial at the May, 2018 Brampton Blitz Civil Trial Sittings, which commenced on May 7, 2018.
[3] Counsel for the plaintiffs brought a motion before the judge conducting the exit pretrial seeking various relief, but primarily an order adjourning the trial because of what he referred to as “exceptional circumstances”. The motion also was brought seeking production of approximately 20 documents as outlined in Schedule “A” appended to the notice of motion.
[4] This motion and the adjournment request was adjourned by the exit pretrial judge to me, as the Regional Senior Judge, returnable on May 9, 2018. At that time, the only material filed in respect of this motion was the notice of motion without any supporting affidavit material.
[5] On the return of the adjournment motion before me on May 9, submissions were made by counsel for the plaintiffs seeking an adjournment of the trial on 5 principal grounds as outlined below, without any affidavit evidence in support. No responding material was filed by counsel for the defendant.
[6] Having heard preliminary submissions from counsel, I determined that in order to properly consider the adjournment request affidavit evidence was required. Counsel were each granted the opportunity to file material, including affidavit evidence.
[7] The motion was adjourned to May 11 in order to give the parties an opportunity to file evidence, facta and case authorities.
[8] Having considered the evidence filed and the submissions of counsel, I concluded that the motion for the adjournment must be dismissed with detailed reasons to follow. These are my reasons.
[9] Counsel for the plaintiffs filed an affidavit of Tariq Muinuddin sworn May 10, 2018, along with various exhibits attached thereto. Further, the plaintiffs filed a factum and book of authorities. Also, on the return of the motion counsel filed “A Book of Documents” in the form of a compendium, including case authorities.
[10] The defendants filed a responding motion record, factum and book of authorities.
[11] The plaintiff’s notice of motion contains the 5 grounds for adjournment which can be summarized as follows:
(a) It was alleged that there is a long judicial history involving the defendant and her counsel acting in abuse of process and that two “materially fallacious” medical reports were served by counsel for the defendants;
(b) It was further alleged that on April 3, 2018, the defendant’s counsel served a “purported second medical-legal report of Dr. Upton fallaciously opining upon matters outside his alleged expertise”;
(c) As a result of the “second false report by Dr. Upton” an investigation was being undertaken on behalf of the plaintiffs which revealed a “pattern of false reporting by Dr. Upton on insured accident victims after retention by the same firm as defendant’s law firm (the “Scheme”)”;
(d) It was alleged that there is documentary evidence of the “Scheme” including the decisions of judges of this court, the findings of the Health Professions Appeal and Review Board, submissions of FAIR to the Civil Rules Committee of the Law Society of Ontario, all allegedly resulting in a conflict of interest on the part of the defendant’s lawyers in this action; and
(e) It was further submitted that there existed a “good evidentiary foundation on the Scheme” to allow an adjournment of the trial in order “so the investigation can be completed and appropriate relief is obtained”, including adding defendants, obtaining expert evidence on the “Scheme” or in response to the two new medical reports. Notably, this ground asserted that the “Scheme” was not limited to this action but other cases before the court.
[12] In addition to these five primary grounds upon which the plaintiffs’ counsel argued that an adjournment should be granted, he also stated during his submissions that he has three essential purposes in seeking the adjournment of this trial namely:
(1) to exclude the medical legal opinions provided by Dr. Upton, the defence retained medical expert;
(2) to thereafter proceed to strike the defendant’s statement of defence pursuant to Rule 33.07 of the Rules of Civil Procedure; and
(3) to thereafter seek an order adding Dr. Upton and the defendant’s counsel at trial and their law firm as party defendants in this action.
[13] Counsel for the defendant opposes the adjournment request on the basis that there has been no evidence adduced of any material change in circumstances that would reasonably form the basis for adjournment. Further, they sought to have the motion dismissed on the basis that leave was not obtained to bring this motion, alternately that the supporting affidavit filed on behalf of the plaintiffs should be struck out on the basis that it is improper hearsay and argument and contains the irrelevant information, inflammatory rhetoric and offensive allegations with respect to the conduct of the defending lawyers.
Analysis:
[14] In considering a motion for adjournment the court must balance a number of factors, and the approach to be applied in civil trials was outlined by Laskin J.A. (in dissent – as adopted by the majority) in Khimji v. Dahanani et al., 2004 CanLII 12037 (ON CA), [2004] O.J. No. 320 at para [14] where he stated as follows:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope of appellate intervention is correspondingly limited. In exercising its discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on these interests.
[15] It was urged by counsel for the defendant that the plaintiffs’ motion should be dismissed simply on the basis that leave to bring this motion should be denied. It was submitted that before leave should be granted to allow for the bringing a further interlocutor proceedings there must be a substantial or unexpected change in circumstances: Hill v. Ortho Pharmaceutical (Canada) Ltd. (1992), 11 CPC (3d) 236.
[16] Given that the plaintiff is a minor, leave was granted to the plaintiffs to bring this motion. The initial material filed on the motion was wholly inadequate for this court to make a proper determination as to the merits of the motion, however recognizing the plaintiff as a minor, leave has been granted to allow the court to properly explore the merits of the plaintiffs’ motion.
[17] While counsel for the plaintiff urged that one of the grounds for an adjournment was alleged improper issuance or signing of summonses to witnesses, there is no evidence in support of that allegation, nor was any authority offered by counsel on this ground.
[18] Counsel for the plaintiff was most reluctant to acknowledge that the only basis upon which the adjournment was sought was alleged serious misconduct on the part of the defendant’s defence medical expert, Dr. Adrian Upton.
[19] In the course of his submissions, counsel for the plaintiffs stated that if the trial were to proceed, he plans on calling as witnesses, counsel for the defendant, who were present in court on this motion, to demonstrate that Dr. Upton has committed a “fraud” in terms of the medical legal reports he has provided for the purpose of deceiving the court. No evidence was adduced on behalf of the plaintiffs with respect to the alleged fraud or misconduct on the part of Dr. Upton, other than a submission, based entirely on speculation at this point, that the last report from Dr. Upton was forged and not signed by him. This ground for the adjournment request is based entirely on counsel’s own assessment of Dr. Upton’s handwriting, without any evidence whatsoever being offered in support of this submission.
[20] Further, counsel for the plaintiffs took the position that as there is negative judicial commentary about Dr. Upton in prior tribunal decisions and civil cases an adjournment should be granted in order to allow him an opportunity to further investigate the evidence that is available with respect to those earlier proceedings where Dr. Upton provided expert medical evidence.
[21] The plaintiffs’ counsel intends on relying on and introducing evidence at trial on decisions from an administrative tribunal and prior judicial commentary in regard to Dr. Upton’s qualifications as a medical expert witness and as to his credibility.
[22] Section 36 (3) of the Regulated Health Professions Act has been held to constitute an absolute prohibition against the use of information and evidence adduced before a tribunal such as the Health Professions and Appeal Board in a subsequent civil proceeding.
[23] In M.F. v. Sutherland, 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522 (C.A.) at para. 29 Laskin JA stated as follows in regard to s. 36 (3):
[29] I find no relevant indicators of legislative meaning to
displace the presumption in favour of the ordinary meaning of s.36(3). The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3). The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.
[24] Following Sutherland, the court in Montgomery v. Seiden, [2012] O.J. No. 136 (SCJ) at para 52 expressly stated that the absolute prohibition contained in s. 36 (3) applied to information from a complaint to the Health Professions and Appeal Board. See also: Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324, [2011] O.J. No. 136 (SCJ).
[25] Thus, contrary to the submissions of counsel for the plaintiff, I have concluded that any prior tribunal decisions or court rulings with respect to Dr. Upton are inadmissible at this trial and as such the plaintiffs’ request for an adjournment based on the need for further investigation of past tribunal rulings does not form a reasonable basis upon which the adjournment of this trial should be granted.
[26] As to prior judicial rulings and decisions regarding Dr. Upton’s qualifications and credibility, the Court of Appeal Court of Ontario has recently dealt with this issue in its decision Bruff-Murphy v. Gunawawardena, 2017 ONCA 502. In upholding the trial judge’s decision prohibiting cross-examination of the defendant’s expert witness regarding prior civil and arbitral findings made against him, Hourigan J.A. stated as follows at para’s 31 – 32:
[31] I do not accept this argument. In my view, the prior comments made about Dr. Bail do not amount to a finding of discreditable conduct. Rather, they are the opinions of a judge and two arbitrators regarding the reliability of his testimony in particular cases. This is analogous to the situation in Ghorvei, where a witness’s credibility had been attacked in previous proceedings. Charron J.A. (as she then was) held at para. 31 that those credibility findings from the previous proceedings were not proper material for cross-examination:
In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness's credibility without also being provided with the factual foundation for the opinion.
See also R. v. Boyne, 2012 SKCA 124, 405 Sask.R. 163, at paras. 48-51, leave to appeal refused, [2013] S.C.C.A. No. 54.
[32] In the present case, the comments of the judge and arbitrators about Mr. Bail’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. Bail’s testimony in the three other proceedings. Thus, in my view, the trial judge did not err in prohibiting this line of cross-examination.
[27] I have thus concluded that any prior judicial rulings or decisions relating to Dr. Upton’s qualifications as an expert witness or in respect of his credibility are wholly inadmissible in this pending trial.
[28] It is asserted by plaintiffs’ counsel that an adjournment of this trial is required in order to further investigate Dr. Upton’s credibility as a medical expert and as well the “Scheme”, as alleged, wherein counsel essentially submits that counsel for the defendant has been acting in concert with Dr. Upton to deceive the court in past proceedings.
[29] This ground for the adjournment request is based entirely on speculation alleging a conspiracy by Dr. Upton and the defendant’s lawyers to deceive the jury and the court in this case. There is absolutely no evidence whatsoever to support these most serious allegations which included, in counsel’s submissions, an allegation of fraud as against Dr. Upton and defence counsel.
[30] In his submissions, counsel for the plaintiffs further urged that given the court’s parens patriae duty, regard must be had for protection of the interests of the minor plaintiff in the circumstances of this case.
[31] The focus of that submission was entirely based on counsel’s desire to conduct further investigation regarding the very serious allegations made with respect to Dr. Upton and counsel for the defendant.
[32] Counsel acknowledged that there are five neurological experts who have treated and examined the minor plaintiff and have concluded that he has sustained a traumatic brain injury as a result of the motor vehicle accident giving rise to this action. Thus, in spite of his submissions with respect to the qualifications of the only defence medical expert, Dr. Upton, he states that there is substantial evidence as to the nature and the extent of the plaintiff’s injuries. All of that evidence will be available for the judge and the jury to consider.
[33] Returning to the considerations to be examined when considering a motion for an adjournment as discussed in Khimji (supra), it is firstly noted that the within action was commenced in 2008 following a motor vehicle accident in 2006. Thus, this action has been before this court for approximately 10 years and when considering the overarching objective of civil proceedings, being a just determination of the real matters in dispute, in a timely way – given the history of this action, recognition of this objective favours the denial of the adjournment request.
[34] As to the consideration of prejudice resulting from the refusing or granting of the adjournment, any prejudice alluded to by counsel for the plaintiffs is illusory given the absence of any evidence of prejudice, particularly in view of the fact that the evidence counsel wishes to further investigate and attempt to adduce at trial would be inadmissible in any event. Delay in this action proceeding to trial is prejudicial to not only the defendant but as well to the minor plaintiff.
[35] As such, I have concluded that denying an adjournment in this case solely based on unsupported allegations of misconduct on the part of Dr. Upton and defence counsel does not give rise to any prejudice or trial unfairness for the plaintiffs.
[36] It is anticipated that this trial will take 20 to 25 days. In the event this case did not proceed at the May 2018 blitz sittings, the case would have to be put over to the January or May Sittings in 2019 and given its anticipated length, there is a possibility that it may not be reached at either of those sittings. Thus, the adjournment sought is not short and would only add to the very significant delay in this matter proceeding to trial. Counsel had declared that this case was ready for trial when it was set down and it has occupied a position on the Brampton civil trial list for some time, resulting in other cases not being reached or placed on the May civil blitz sittings. Thus, access to justice by parties involved in other actions is at stake here as well.
[37] As already detailed, the basis for the adjournment request advanced on this motion cannot reasonably support the motion being granted. All of the submissions being made by counsel with respect to the qualification of Dr. Upton, as a medical expert and as well the admissibility of his evidence and expert reports may be put to the court in a qualification voir dire and as well to some extent in cross-examination of Dr. Upton, if called. It must also be noted that counsel for the defendant simply indicated that he “may” call Dr. Upton as a defence witness. It would not be open to counsel for the defendant to tender Dr. Upton’s reports under s. 52 of the Evidence Act, R.S.O. 1990, c. E.23 without making the doctor available for cross-examination. Thus, the questions surrounding Dr. Upton’s qualifications and credibility may never have to be considered by the court and his evidence and opinions may never come before the jury.
[38] For all of these reasons, I have concluded that the plaintiffs’ motion for an adjournment of this trial must be dismissed and the action shall remain on the May 2018 blitz sittings to be called. As to the other relief sought in the notice of motion, that part of the motion is dismissed, without prejudice, to the plaintiffs seeking leave at a later date, in the event this trial does not proceed at the sittings, to renew the production motion.
[39] Further, in the event this case does not get reached at the May 2018 sittings, I hereby appoint myself as the case management judge pursuant to Rule 37.15. For clarity, those aspects of the plaintiffs’ adjournment motion which were not dealt with by these reasons shall not be brought back to court in the event this action is called for trial at the May, 2018 sittings and leave to renew those aspects of the motion may only be sought if the case does not proceed at those sittings and is adjourned to another sittings as it was not reached within the time allocated for the May sittings.
[40] As to the issue of costs relating to this motion, those are reserved to the trial judge.
Daley RSJ.
Date: May 16, 2018
COURT FILE NO.: CV-08-0512-00
DATE: 20180516
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IBRAHIM NASIR, a minor, by his litigation guardian Tahir Nasir and TAHIR NASIR, personally
Plaintiffs
v.
AGGIE KOCHMANSKI
Defendant
BEFORE: RSJ Peter A. Daley
COUNSEL: H. Fancy, for the Plaintiffs
K. Hirani and J. Koifman, for the Defendant
ENDORSEMENT ON MOTION FOR ADJOURNMENT OF TRIAL
Daley RSJ.
DATE: May 16, 2018