Court File and Parties

Court File No.: CV-14-21113 Date: 2018-07-10 Ontario Superior Court of Justice

Between: Filomena Durante, Plaintiff – and – Fouad Tayfour and Kara Harvey, Defendants

Counsel: Matt Todd, as agent for Craig Allen, for the Plaintiffs Alysia Christiaen and Peter Kryworuk, for Fouad Tayfour No one appearing for Kara Harvey

Heard: June 25, 2018

Ruling on Motion

HEBNER J.

[1] This action involves allegations of medical malpractice against the defendant, Dr. Fouad Tayfour (“Dr. Tayfour”), an ophthalmic surgeon, and the defendant, Dr. Kara Harvey (“Dr. Harvey”), an optometrist. The statement of claim, issued August 8, 2014, alleges that the plaintiff attended at Dr. Tayfour’s office for ophthalmic surgery to correct her vision such that she is no longer dependent on glasses. A procedure, a refractive lens exchange, was conducted on her right eye on August 9, 2012. A similar procedure was conducted on her left eye on August 10, 2012. The statement of claim alleges negligence on the part of the defendants and injuries suffered by the plaintiff as a result.

[2] A motion was brought by the plaintiff for an order to extend the time to conduct examinations for discovery. The defendant, Dr. Tayfour, (“moving defendant”) brought a cross-motion seeking a dismissal of the action for delay and, in the alternative, an order staying the action until the costs order dated December 11, 2017 are paid in full. This is my ruling on those motions.

[3] The statement of claim was issued August 4, 2014. Dr. Tayfour filed a statement of defence on April 8, 2015. Dr. Harvey filed a notice of intent to defend on March 20, 2015, and has not filed a statement of defence. The parties participated in mandatory mediation on January 15, 2016. The plaintiff did not have a supportive expert opinion at the time. The plaintiff agreed to provide a supportive expert opinion by the end of April 2016.

[4] The plaintiff did not obtain a supportive opinion by the end of April 2016. Dr. Tayfour brought a motion for dismissal for delay or alternatively a timetable, which was heard by Carey J. on September 27, 2016. Carey J. ordered, on consent, that the plaintiff deliver an expert report by November 8, 2016.

[5] The plaintiff had difficulty obtaining supportive expert opinions from specialists in North America. She sought opinions from specialists outside of North America and obtained three:

1. Report of Dr. Taoufik, dated February 3, 2017.
2. Report of Dr. Chahine, dated February 26, 2017.
3. Report of Dr. Habanjar, dated February 26, 2017.

[6] The reports were served on defence counsel on March 6, 2017. Dr. Tayfour then brought a motion to dismiss the action for delay. The motion was heard by Bondy J. on April 10, 2017. Bondy J.’s reasons were released on April 18, 2017. Bondy J. dismissed the motion and made the following order respecting timelines:

1. The plaintiff’s affidavit of documents was to be served within 30 days.
2. Discoveries were to be completed by October 31, 2017.
3. The plaintiff, who lives in Dubai in the United Arab Emirates, was required to attend discoveries at her own expense.
4. The matter must be set down for trial by March 31, 2018.
5. Subject to a further order from the court extending any of the time limits listed above, the matter was to be automatically dismissed by the registrar if any of the time limits were missed.

[7] On May 29, 2017, Bondy J. ordered that the plaintiff play costs to Dr. Tayfour in the sum of $7,911.35 within 30 days. Those costs were paid on August 17, 2017.

[8] The next step in the action was taken by the defendants who served a motion for security for costs (based on the plaintiff residing outside of the country) returnable September 19, 2017. The parties secured December 11, 2017 for the hearing of the motion. On September 14, 2017, counsel for the plaintiff wrote to counsel for the defendant as follows:

“The only remaining issue is the fact that examinations for discovery are required by court order to be completed by October 31, 2017. I would assume in the circumstances that we can simply consent to a new order extending the time to complete the discoveries to April 1, 2018 and to extending the time to set the matter down for trial to July 31, 2018. I do need to hear from you at your earliest opportunity in relation to the proposed, given that Justice Bondy’s order contemplates a further court order as the basis for extending any time and of course provides for the automatic dismissal of the action if a time limit is missed.”

[9] The parties agreed on an extension of the timetable. A further order was made by Bondy J. on October 25, 2017, on consent, amending the timetable as follows:

1. Discoveries are to be completed by April 1, 2018.
2. The Plaintiff is to attend discoveries at her own expense.
3. The matter is to be set down for trial by July 31, 2018.

[10] On December 11, 2017, I made an order for security for costs, on consent, as follows:

1. The plaintiff was required to post security for costs in the sum of $30,000.
2. The defendants may seek additional amounts be paid by the plaintiff for security for costs after the completion of the examinations for discovery of the parties.
3. The plaintiff may not, until the security has been given, take any step in the proceeding, subject to further order of the court.
4. The plaintiff shall pay to the defendants, costs on the motion fixed in the amount of $5,000 within 30 days.

[11] The plaintiff paid the security for costs ordered in the full amount of $30,000 into court on March 23, 2018. On that day, counsel for the plaintiff wrote to counsel for the defendants as follows:

“There are two relevant orders impacting on this case. The order of Mr. Justice Bondy dated October 25, 2017, requires that discoveries be completed by April 1, 2018 and that the matter be set down for trial by July 31, 2018.

The order of Mme. Justice Hebner was made after Mr. Justice Bondy’s order, that being December 11, 2017. You may recall that Her Honour ordered that the plaintiff take no further steps in the proceeding until posting security for costs in the amount of $30,000. I can advise that these monies have now been paid into court. I will send a confirmation from the accountant’s office.

My suggestion is that the parties consent to an extension only of the discovery date issue to May 1, 2018. The set down date will remain the same. We can then find a convenient time over the next 5 weeks to schedule the discoveries. I expect to be no more than an hour with the defendants.

Alternatively my client is available to attend on discoveries next week in London on Wednesday, Thursday or Friday if this is acceptable to the defendants. We can then agree to schedule the one hour defendant’s examination at a later date. Mr. Justice Bondy’s order would only be varied slightly by extending the time for discovery of the defendants.

Finally if these proposals are not acceptable, then we will need to bring a motion sometime next week for an order briefly extending the time limits for examinations for discovery. As you can appreciate, Mr. Justice Bondy’s order provides that the action will automatically be dismissed by the registrar if any time limits are missed, subject of course to any further order of the court extending any time limit.”

[12] The response of defence counsel came March 27, 2018 as follows:

“The plaintiff has been repeatedly in noncompliance with various orders of the court throughout this litigation. The posting of security for costs was only recently made well after the time set by the court.

The plaintiff remains in noncompliance with the order of Justice Hebner, dated December 11, 2017, pursuant to which the plaintiff was to pay the defendant Dr. Tayfour’s costs, in the amount of $5,000 (now $5,031.98 with interest). To date, payment of these costs remain outstanding. As such, we will not take any steps to further this litigation until Justice Hebner’s costs order, plus interest, is fulfilled.

In any event, we are unable to participate in an examination for discovery of the plaintiff within the timeline you have provided. In addition, we have not been provided with any up-to-date medical records of the plaintiff, which are required in order for us to conduct a fulsome examination. Similarly, it is unreasonable to expect that the defendants and their counsel will be able to make themselves available for discovery within the unrealistically short time frames you have requested.

We are not prepared to consent to any extension of the timetable.”

Allegations of Delay/Breach of Court Orders

[13] The moving defendant alleges the following delays/breaches on the part of the plaintiff:

1. The defendant points to the plaintiff’s delay in providing expert reports in breach of the order of Carey J. dated September 26, 2016.
2. The plaintiff delivered her affidavit of documents, and documents listed therein, on May 16, 2017, six days late.
3. The examinations for discovery were not completed by April 1, 2018, contrary to the order of Bondy J. dated October 25, 2017.
4. The defendant points to the overall delay from the commencement of the action in August 2014 to the hearing of this motion in June 2018 as grounds for an order dismissing the action for delay.
5. The plaintiff has not paid the costs award of $5,000 contrary to my order of December 11, 2017.

Analysis

[14] The relevant principles of law on a motion for dismissal of an action for delay are not in dispute. They are summarized by Master McGraw in Carbery v. St. Michael’s Hospital, 2018 ONSC 1617, at para. 43 as follows:

(1) To dismiss an action for delay, the court must be satisfied that the plaintiff’s default has been intentional and contumelious, or that there has been an inordinate and inexcusable delay for which the plaintiff or his lawyers are responsible resulting in a substantial risk that a fair trial will not be possible.

(2) A dismissal on the basis of intentional and contumelious delay would be warranted in cases “in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process”.

(3) The plaintiff is responsible for moving the action along.

(4) Any delay in the prosecution of an action requires an explanation. The onus rests with the plaintiff to show that the delay was not intentional. In the absence of an explanation from the plaintiff for the delay, it is presumed that the delay was intentional.

The onus is on the plaintiff to rebut the presumption of prejudice arising from the unexplained delay by showing that documents have been preserved, and that the issues in dispute do not require the recollection of witnesses, or that necessary witnesses are available with detailed recollection of events.

(5) The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay… [E]xplanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.

In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole.

(6) An inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice in which case the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption.

[Citation omitted.]

[15] The Court of Appeal in Langenecker v. Sauve, 2011 ONCA 803, said there were two types of cases that will justify an order dismissing an action for delay. They are:

1. The delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process. [1]

2. The delay is inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay. [2] The three characteristics are further described as follows:

   a) The inordinance of the delay is measured by reference to the length of time from the commencement of the proceeding to the motion to dismiss. [3]

   b) The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. [4] In assessing the explanations offered, the court will consider not only the credibility of those explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. [5]

   c) The third requirement is directed at the prejudice caused by the delay to the defendant’s ability to put its case forward for adjudication on the merits. Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay. [6]

[16] In Langenecker, the case was a medical malpractice case brought by the plaintiffs in 1995. In 2010, the doctors and hospital brought a motion to dismiss the action for delay. The delay was 15 years. The patient appealed from the dismissal of the action. The appeal was dismissed. The Court of Appeal found that “the lengthy delay itself generated a presumption (or perhaps more accurately a strong inference) of prejudice to the respondents’ ability to fully present their defence to the allegations.” The appellants had attempted to rebut that inference but fell short.

[17] In the case at hand, the statement of claim was issued in August of 2014. The delay is one of four years. I start by addressing each of the delays/breaches of court orders put forth by the defendants.

Firstly

[18] The delay in providing expert reports contrary to the order of Carey J., dated September 26, 2016, was dealt with by Bondy J. in his reasons of April 10, 2017. He found that the delay in obtaining medical reports was 24 months. At para. 35, he said:

[35] In this case, the difficulty has been finding an expert rather than prodding an expert who has already been found to provide a report. The plaintiff has contacted no less than 10 potential experts in an effort to do so. Some of those potential experts themselves delayed the process. That was the case with one of the experts, who agreed to provide a report but then failed to follow through, and with another, who agreed to provide a report for a prearranged amount but then reneged on the arrangement. In other words, the plaintiff is not entirely responsible for the 24 month delay in obtaining medical reports. Unfortunately, the economy of the evidence provided by the plaintiff makes it impossible for me to know with any precision how much of the delay is attributable to what.

[19] Bondy J. concluded, at paras. 39 and 40, as follows:

[39] In summary, I am left with a 24 month delay. During that timeframe the plaintiff clearly did not move the action along in an expeditious fashion. That said, the progress was steady.

[40] In the circumstances, I am unable to find that the delay was inordinate.

Secondly

[20] In respect of the plaintiff’s affidavit of documents, although the motion was heard by Bondy J. on April 10, 2017, his reasons for his ruling was issued April 18, 2017. His reasons set out the timetable including “the plaintiff’s affidavit of documents is to be served within 30 days”. In my view, the deadline for the delivery of the affidavit of documents was 30 days from April 18, 2017, being May 18, 2017. As the plaintiff’s affidavit of documents was served on May 16, 2017 it was served in time.

Thirdly

[21] The moving defendant points to the delay of the plaintiff in paying the $30,000 for security for costs into court. The defendant submits that, because of that delay, the examinations for discovery were not completed by April 1, 2018 in compliance with the order of Bondy J. dated October 25, 2017.

[22] Counsel for the plaintiff submits that my order of December 11, 2017 did not provide a deadline for the posting of security for costs. He is correct. Moreover, that order was made on consent. I can only conclude that the plaintiff required time to secure the funds and the moving defendant felt that he was protected by the term of the order prohibiting the plaintiff from taking any further steps until the security was posted. I was not given information about the plaintiff’s financial circumstances, but I note that the plaintiff is an individual, rather than a corporation, and $30,000 is a significant sum for anyone to raise, except those with substantial means. The plaintiff took three months and 12 days to secure the funds and post the security. Given the history of this case, and the significant sum that was required, I cannot find that this delay was intentional. Further, I cannot find that this delay has been inordinate and inexcusable.

[23] In any event, after the security was posted, counsel for the plaintiff tried to secure the consent of defence counsel to an extension of one month. Alternatively, counsel for the plaintiff proposed three dates the following week (within the court ordered timeline) for the plaintiff to attend in London for examinations. Once the security was posted, counsel for the plaintiff made bona fides efforts to comply with the timeline and counsel for the moving defendant refused given the short notice. Although the plaintiff was responsible for the delay in posting the security, I cannot find that she was in breach of the court ordered timelines.

Fourthly

[24] In respect of the overall delay of four years, this case is very different from the case of Langenecker where the overall delay was a total of 15 years. I note that the longest delay in this case took place within the first two years when the plaintiff was attempting to obtain an independent medical opinion in support of her case. This delay was found by Bondy J. not to be inordinate. Shortly after Bondy J.’s decision, the moving defendant launched a motion for security for costs. The action stalled until that motion could be dealt with in December 2017. I have found that the delay of the plaintiff in posting that security was not inordinate.

[25] It seems to me that, overall, the plaintiff has taken steps to move the matter forward. She had obtained her expert opinions and served them on the defendants. She served her affidavit of documents and copies of her productions. She paid the costs ordered by Bondy J. She appropriately responded to the motion for security for costs by agreeing to an amount and posted that amount. She then suggested dates for examination for discovery the following week or, if the defendants would agree, within the next month. This case has taken four years to move forward to this point, but it has not languished. Further, it seems to me that much of the time over the last four years has been focused on three motions brought by the moving defendant for dismissal for delay and the motion brought by the moving defendant for security for costs.

[26] In Sickinger v. Krek, 2016 ONCA 459, at paras. 29 and 30, the Court of Appeal summarized the jurisprudence. An action may be dismissed for delay where the delay is (1) inordinate; or (2) inexcusable; and (3) such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay. In my view, the length of time from the commencement of the proceeding to the motion to dismiss was not inordinate. The reasons offered by the plaintiff for the delay were adequate. The third factor is that of prejudice. As I find that the delay was not inordinate, there is no presumption of prejudice. The moving defendant suggests that the prejudice is inherent in the outstanding action itself. He is required to disclose the outstanding action every time he applies for hospital privileges and a renewal of his licence to practice. In my view, that is not the type of prejudice referred to by the Court of Appeal. The prejudice must be “prejudice caused by the delay to a defendant’s ability to put forward its case for adjudication on the merits”. There is no indication that there is any such prejudice to the moving defendant in this case.

Fifthly

[27] The moving defendant points to the failure of the plaintiff to pay the $5,000 costs award in his favour. Rule 57.03 (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:

(2) Where a party fails to pay the costs of the motion as required under subrule (1), the court may dismiss or stay the party’s proceeding, strike the party’s defence or make such other order as is just.”

[28] In determining whether to grant relief under this rule, the court is required to weigh the plaintiff’s interests in pursuing her claim against the interests of the moving defendant in receiving compensation for costs. [7] The plaintiff here has already paid a substantial sum. She paid the costs ordered by Bondy J. in the sum of $7,911.35. She paid the sum of $30,000 into court as security for costs. I cannot find that her failure to pay the costs as set out in my order of December 11, 2017 constitute a cavalier disregard of court orders. It seems to me that, as set out above, the plaintiff has made bona fides attempts to comply with the court orders that have been made in this case. Given the significant amount which has already been paid, I decline to dismiss or stay her proceeding. Although the costs are still owing, for reasons set out in the following paragraphs, the point becomes moot.

Disposition

[29] For the reasons set out above, the motion of the moving defendant, Dr. Tayfour, to dismiss the action for delay is dismissed. Similarly, the defendant’s motion to stay the action until the outstanding costs are paid is dismissed.

[30] The motion of the plaintiff is granted and the following timelines are put in place:

1. The examinations for discovery shall be completed by December 31, 2018.
2. The plaintiff shall attend discoveries in Windsor or in London, Ontario at her own expense.
3. The plaintiff shall ensure that the matter is set down for trial by January 31, 2019.
4. In the event the parties are unable to agree on exact dates for examination for discovery, or any amendments need to be made to the timelines set out above, the parties may schedule a conference call with me to address the issue.

Costs

[31] On the issue of costs, the plaintiff has been entirely successful. The moving defendant submits that the plaintiff is being granted a further indulgence and the motion was brought as a result of her delays and so she ought to pay costs. The moving defendant submits a Bill of Costs totalling $10,041.42 on a partial indemnity basis. The plaintiff did not provide a Bill of Costs, but indicates that her costs are less than those requested by the defendant.

[32] It is true that the plaintiff has been granted a further indulgence. However, as indicated above, she has acted reasonably. In my view, the motion to dismiss for delay ought not to have been brought. The parties ought to have come to some resolution on their own for the scheduling of examinations for discovery and a short extension of the timelines. This did not occur because the moving defendant took a hard line and refused to consider any extension. Under these circumstances, the plaintiff is entitled to her costs. I assess those costs at $5,000 being one half of the defendant’s partial indemnity costs requested. Accordingly, I order that the defendant, Dr. Tayfour, pay to the plaintiff her costs of the motion fixed in the amount of $5,000 inclusive of HST, forthwith.

“original signed and released by Hebner J. ”

Pamela L. Hebner Justice

Released: July 10, 2018

Footnotes

[1] Langenecker v. Sauve, 2011 ONCA 803, para. 6. [2] Ibid., para. 7. [3] Ibid., para. 8. [4] Ibid., para. 9. [5] Ibid., para. 10. [6] Ibid., para. 11. [7] Garrett v. Oldfield, Greaves, D’Agostino, 2016 ONCA 424.