Court File and Parties

COURT FILE NO.: 13 – 2488 (London)

DATE: 20180201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Richard Sydney Martin

Plaintiff

– and –

St. Thomas – Elgin General Hospital and Dr. Amit Shah and London Health Sciences Centre

Defendants

COUNSEL:

Ronald P. Bohm and Amani Oakley, for the Plaintiff

Andrea Farkouh and Lauren Parrish, for the Defendant, St. Thomas – Elgin General Hospital

HEARD: April 19, 2017 and August 22, 2017

Reasons for Judgment

Raikes J.

[1] This decision deals with two motions brought by the defendant, St. Thomas – Elgin General Hospital (hereafter “STEGH”).

[2] STEGH initially brought a motion for summary judgment. Shortly before the return of that motion, the parties had discussions to resolve the plaintiff’s claim against STEGH by way of a Pierringer Agreement. STEGH asserts that a settlement agreement was reached. The plaintiff vehemently denies any such settlement. STEGH has brought a motion to enforce the alleged settlement.

[3] I will deal first with the motion to enforce the alleged settlement and then with the summary judgment motion.

Nature of Action

[4] On November 29, 2011, the plaintiff fell downstairs while carrying a box at his home. He twisted and fractured his left leg when it caught in a railing. An ambulance was called and the plaintiff was transported to the emergency department at STEGH after his leg was splinted and stabilized by paramedics. After a period of time at STEGH, he was transported by ambulance to London Health Sciences Centre for treatment.

[5] The plaintiff sues the defendants for medical/hospital malpractice. He alleges substandard medical, hospital and nursing care caused or contributed to the development of compartment syndrome. His broken leg was not properly treated and, as a result, he has suffered serious permanent injury.

Motion to Enforce Settlement

Background Facts

[6] The defendants, STEGH and Dr. Shah, brought a motion for summary judgment. The plaintiff moved to dismiss that motion peremptorily on the basis that it had no reasonable prospect of success; there was no point in it proceeding. The plaintiff’s motion was dismissed. Dr. Shah, however, decided not to proceed with his motion for summary judgment. That motion was withdrawn. STEGH elected to continue with its motion.

[7] The motion was scheduled to be heard on February 22, 2017. A schedule was set for the parties to deliver their written argument and Books of Authority in advance of the return date. The discussions and communications between the parties with respect to a Pierringer Agreement occurred as the dates for delivery of written argument loomed.

[8] On January 23, 2017, Ms. Oakley, counsel for the plaintiff, contacted Ms. Farkouh, counsel for STEGH, by email. She indicated that she wished to discuss with Ms. Farkouh the prospects of the summary judgment motion as well as “an alternative route” STEGH may be interested in pursuing.

[9] Upon receipt of that email, Ms. Farkouh called Ms. Oakley the same day. During that telephone call, Ms. Oakley put forward the suggestion of a Pierringer Agreement as a means to resolve of the plaintiff’s claim in the action as against STEGH.

[10] Ms. Farkouh deposes that Ms. Oakley made an offer to settle with STEGH by way of Pierringer Agreement. The terms of the offer were that STEGH would be let out of the action in exchange for:

• payment by STEGH to the plaintiff in the range of $20,000 – $25,000; and
• ongoing cooperation by STEGH, including as witnesses at trial and production of further records.

[11] According to Ms. Farkouh, she advised Ms. Oakley that in light of the cost that would be incurred on the summary judgment motion, it was worth exploring the opportunity to enter into a Pierringer Agreement and she would seek instructions.

[12] Somewhat surprisingly, Ms. Oakley has not filed an affidavit on this motion. Instead, the only affidavit filed is that of Neil Oakley, Ms. Oakley’s partner and co-counsel for the plaintiff. No explanation is provided for the failure to provide evidence directly from Ms. Oakley.

[13] Mr. Oakley agrees that it was Ms. Oakley who initiated the discussions to resolve the claim against STEGH. He was not a party to the telephone call on January 23, 2017. Rather, he deposes that he and Ms. Oakley had discussions before that telephone call about resolution of that claim and the terms they would require. According to Mr. Oakley, they discussed, inter alia, the documents that had previously been requested and were outstanding as well as leaving the door open to access other documents that they might not know about at that point.

[14] Mr. Oakley sets out at paragraph seven of his affidavit the background from his perspective to the missing and incomplete information from STEGH in the context of the summary judgment motion.

[15] Mr. Oakley deposes that he was in the office next door to Ms. Oakley when she spoke to Ms. Farkouh on January 23, 2017. He indicates that he heard Ms. Oakley’s side of the conversation and she filled him in afterward on what was said by Ms. Farkouh. Mr. Oakley deposes that he heard Ms. Oakley indicate that:

…there were many documents and pieces of information which remained outstanding in the current litigation, and new items which would now become relevant given Mr. Bullivant’s recent letter. The plaintiff required production of these items and information. Additionally, Ms. Oakley explained that she would require the cooperation of the hospital on an ongoing basis, such that if other documents or pieces of information were requested at a later date, they would be provided. She also required, as part of an agreement, to obtain the cooperation of the hospital in permitting us to speak with the nurses involved in Mr. Martin’s care, and an agreement that they would testify at trial if required.

[16] According to Mr. Oakley, the telephone conversation with Ms. Farkouh ended with Ms. Farkouh advising that she would seek instructions. From his discussions with Ms. Oakley after the call, he concluded that they were both skeptical of the possibility of an agreement.

[17] I note that Mr. Oakley recalled that Ms. Oakley advised Ms. Farkouh in that call “something along the lines of”, “we are both confident in our positions, I get that, but there is no point in discussing this further if we can’t even agree on the monetary amount. That would be the easy part to negotiate – the rest requires some work to hammer out the terms so that everyone is on the same page.”

[18] On January 25, 2017, Ms. Farkouh emailed Ms. Oakley to set up a telephone call to discuss a counter offer for which she had recently received instructions.

[19] On January 26, 2017, Ms. Farkouh and Ms. Oakley spoke again by telephone. Ms. Farkouh advised Ms. Oakley that she had instructions to settle the action by way of the proposed Pierringer Agreement, with payment to the plaintiff in the amount of $10,000. According to Ms. Farkouh, Ms. Oakley undertook to seek instructions with respect to the counter offer.

[20] Mr. Oakley deposes that in the conversation between Ms. Oakley and Ms. Farkouh, Ms. Oakley indicated that she did not feel she could go below $20,000 as her bottom line. Ms. Farkouh indicated that her client may be prepared to offer another $5,000 at most. Ms. Oakley thanked Ms. Farkouh but told her that she did not think the extra $5,000 would be sufficient “to resume discussions regarding a potential Pierringer Agreement.” Ms. Oakley promised to consider a potential amount of $15,000.

[21] There is no indication in the affidavit that Mr. Oakley was present for or heard any part of that telephone conversation. At paragraph one of his affidavit, he indicates that where he does not specifically state the source of his information, it is from personal knowledge, review of file materials and discussions with Ms. Oakley. Since no file materials have been produced as part of the motion record which evidence these discussions, I am left to assume that the source of his information is Ms. Oakley.

[22] On January 30, 2017, Ms. Farkouh emailed Ms. Oakley requesting a response to the counter offer by February 1, 2017 because significant costs would need to be incurred to prepare STEGH’s material to file for the motion for summary judgment if the action did not settle. Ms. Oakley agreed to get back to her by February 1.

[23] Ms. Farkouh emailed again on February 2 requesting a response to the counter offer to settle the action because she had not heard back from Ms. Oakley.

[24] On February 2, 2017, Ms. Oakley responded to Ms. Farkouh by email. She wrote:

As you know, I approached you about possibly entering into a Pierringer Agreement with the hospital. I was looking for an amount between $20,000 and $25,000. I appreciate your efforts in approaching the hospital with this offer, but cannot recommend to my client, to agree to an amount of $10,000. I mentioned, when we last spoke, that our bottom-line number would be $20,000 and that still remains open should your client wish to avail themselves of that option, provided we can agree to the other terms I would require, including cooperation from the hospital, access to hospital employees or representatives, agreement for them to testify if needed, and provision of certain documents, etc. [italics added]

[25] According to paragraph 23 of Mr. Oakley’s affidavit, he believed the discussion of settlement ended at that point and other terms including the exact nature and extent of productions of missing documents and information were never discussed.

[26] Following receipt of Ms. Oakley’s February 2, 2017 email, Ms. Farkouh sought instructions from her client to settle the action on the basis of a Pierringer Agreement with payment of $20,000 to the plaintiff. Upon receiving those instructions, Ms. Farkouh emailed Ms. Oakley on February 6, 2017. She wrote:

I just left a message with your office for you to call me. I have just received instructions to settle this matter for $20,000 in exchange for a Pierringer Agreement, can you please contact me to finalize the details.

We have stopped preparing Reply materials at this time on the understanding that this matter is settled on the basis of the above. I look forward to speaking with you soon.

[27] Mr. Oakley called Ms. Farkouh within the hour. The call was rather contentious. Ms. Farkouh confirmed her understanding that they were settled and for his part, Mr. Oakley deposes that he clarified that they had settled only the financial consideration; there were other terms to be resolved which had not yet been discussed or finalized.

[28] Mr. Oakley goes on at length in his affidavit to set out the discussion with Ms. Farkouh with respect to specific documents or types of documents the plaintiff required and Ms. Farkouh’s responses. From that discussion, he concluded that there was little prospect of meaningful production; that STEGH would not provide or obtain the documents and records that he regarded as critical.

[29] Ms. Farkouh takes issue with Mr. Oakley’s characterization. In her affidavit, she maintains that her client is prepared to produce whatever data and documents are requested provided they exist. She indicates that she “assumed” the additional records to be produced were those listed in Mr. Oakley’s affidavit sworn January 20, 2017 on the motion for summary judgment. She maintains that Mr. Oakley simply refuses to accept that there may be records or documents that the plaintiff seeks which do not exist.

[30] Following her telephone conversation with Mr. Oakley, Ms. Farkouh received an email from Ms. Oakley at 3:37 PM. In the email, Ms. Oakley stated:

As you can see from our motion materials, and I know Neil reviewed this with you by phone, there are many missing documents which we have not been provided by your client, despite asking for these items repeatedly. Undertakings remain unanswered (even for the names of the involved nurses). Paging records, computer metadata, and information from the PACS system has also not been provided, again, despite previous requests made some time ago.

These terms are key for us, to any Pierringer Agreement. We are not satisfied by the response that none of this information is available. We do not agree that this is likely to be correct. In any event, if we cannot access this information through a Pierringer Agreement, then we will not agree to such, and will obtain it through the litigation process. We are not in agreement regarding the terms we require in the Pierringer, and as you have advised you cannot produce the documents we require for such agreement, then the matter is at an end. We withdraw the proposal to explore the option of a Pierringer Agreement, and expect the motion to proceed as scheduled.

[31] Ms. Farkouh responded to Ms. Oakley at 4:49 PM on the same day. She wrote:

As I mentioned to Neil several times during our discussion, I agreed to the proposed terms of the Pierringer you set out below, which was also what I communicated in my email. I am aware that any agreement includes the cooperation of witnesses, production of further records etc.

It was quite clear during my discussion with Neil that we were not on the same page, but at no time during that conversation did I ever say to Neil that none of the information was available. I did say I did not have it, if I did, I would have already provided it. Surely you did not contemplate when making that offer that I would be able to relay all that information immediately on a telephone call this afternoon?

Under the circumstances I don’t think Neil’s approach and communication of our settlement conversation was accurate.

You made an offer, I accepted the terms and worked hard to get those instructions from my client. I think it best that you and I have a discussion about the terms of settlement. I have not dealt with Neil once during the course of this action, and I think it is unreasonable at this juncture to withdraw a settlement offer which I have accepted in good faith based on a conversation that was clearly interpreted quite differently.

I am not proceeding with the motion at this point, I will not incur costs that can be better spent to settle an action. I think it’s best if we discuss and reach the agreed upon terms. [Italics added]

[32] Ms. Oakley responded at 5:18 PM. She wrote:

… He [Mr. Oakley] is in the best position to determine whether our terms will be met, and I made it clear that the Pierringer was premised on those terms being met. He has advised me that there is no prospect at all that our terms will be met, based on what you communicated to him during the discussion.

I am happy to discuss anything you would like with you, but Neil is clear that the terms we require in the Pierringer will not be met. The proposal of a Pierringer was premised on these terms being met. The proposal to seek an agreement on a Pierringer, has therefore been withdrawn. It is clear that there was no meeting of the minds on any terms, and from your discussion today, it is equally clear that there will be no meeting of the minds.…

[33] Ms. Farkouh wrote at 5:35 PM that she was unclear what terms of the Pierringer “have not been met, when I accepted the terms you proposed both verbally and in writing”. She suggested a telephone call to discuss the matter.

[34] Mr. Oakley then wrote to Ms. Farkouh at 5:53 PM:

I beg to differ that I have misrepresented what we discussed. You made it clear that you had spoken to the hospital and the documents pertaining to paging, PACS, and computer metadata etc. are not available. You advised that it has now been a number of years since the incident in question, and information would not be available. Your suggestion was that we should pursue London Health Sciences for information pertaining to whether there was a system in place for making imaging available so the London resident and other doctors there would be able to review it. You also told me you did not know who the nurse was involved in the paging, despite the fact that your client gave an undertaking in 2014 to provide the names of all nurses involved in Mr. Martin’s care, which has still not been answered.

Regrettably, from this conversation it was clear to me that your client has no intention of producing the information that is missing, and has every intention to rely on “we don’t have it” as a response. That was certainly not the plaintiff’s intent with the exploration of a possible Pierringer Agreement, when Amani required terms including cooperation and documents to be provided, which I repeatedly told you were part of the necessary terms during the conversation. I made it clear several times during the course of our discussion. I also made it clear that these were key terms for exploring any potential Pierringer Agreement and that there was no point at all in exploring a Pierringer Agreement otherwise.

[35] Ms. Farkouh responded to Mr. Oakley immediately. She advised that his interpretation of the call was entirely inaccurate and was contrary to what she undertook to do and her intentions. At the conclusion of her email, she wrote: “This settlement is not only in my client’s best interest, I think it is in both of our client’s [sic] interest for this settlement to be reached.” [Italics added]

[36] Further email and telephone discussion took place on February 7. It is unnecessary to detail it. Neither party changed their position. Ms. Farkouh for STEGH continued to assert that a settlement had been reached, and plaintiff’s counsel took the opposite position.

Issues and Law

[37] Where an offer is accepted in an action, the court may incorporate any of its terms into a judgment: r. 49.07(6).

[38] Where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may make a motion to a judge for judgment in the terms of the accepted offer: r. 49.09(a). It does not matter whether the offer is a formal r. 49 offer: Bruce v. DPCE Computer Services Inc., 1992 CarswellOnt 909 (Ont. C. J. (Gen. Div.) at para. 10. To conclude a settlement, there must nevertheless be an offer and an unqualified acceptance of that offer: Lewis v. Walls, 2011 ONSC 6578 at para. 16.

[39] The outcome of this motion depends upon determination of the following issues:

1. Was a binding settlement entered into as between the parties?
2. If so, should the court exercise its discretion to grant judgment enforcing the settlement?

[40] A settlement agreement is a contract. For a concluded contract to exist, the parties must have had a mutual intention to create a legally binding contract and have reached agreement on all of the essential terms of the contract: Olivieri v. Sherman, 2007 ONCA 491 at para. 41, citing Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.) at pp. 103-4.

[41] The determination as to whether a concluded agreement exists does not depend on an inquiry into the actual state of mind of one of the parties or on the parole evidence of one party’s subjective intention. Where the agreement is in writing, it is to be measured by an objective reading of the language chosen by the parties to reflect their agreement: Olivieri, para. 44.

[42] Where there is no meeting of the minds and the essential provisions have not been settled or agreed to, there is no agreement and the settlement will not be enforced: Bawitko (alternate citation: 1991 CanLII 2734 at p. 13). The court will not make a contract for the parties if they have not agreed on its essential terms: Picavet v. Clute, 2012 ONSC 2221 at paras. 12-13.

[43] In Bawitko, Robins J.A. wrote:

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all.…

[44] Where there is agreement on essential terms, any disagreement with respect to the implementation of the essential terms does not change the fact that a settlement occurred: Oliver v. Racette, 2011 ONSC 5870 at paras 44 – 47.

[45] Finally, there is a residual discretion in the court, to be exercised in exceptional circumstances, to refuse to enforce a settlement agreement where doing so would create a clear injustice: Brzozowsski v. O’Leary, [2004] O.J. No. 3230 at para. 44, cited with approval in Hilco Industrial Acquisition Canada ULC v. Engreen, 2016 ONSC 1792 at para 61.

[46] With respect to this discretion, Justice Sheard wrote in Hilco at para. 63:

In deciding whether or not to enforce an accepted offer, the court may consider whether the parties’ pre-settlement positions remain intact; whether there would be prejudice to the party seeking to enforce the settlement, if the settlement were not enforced; the extent of the prejudice to the party seeking to resist the settlement if the settlement was enforced and whether third parties who were awarded [would] be affected if the settlement was not enforced. (Centorame v. Centorame, 2012 ONSC 6405 at para. 65 citing Milios v. Zagas, 1998 CanLII 7119 (ON CA), [1998] O.J. No. 812 (Ont. C.A.) at para. 21).

STEGH’s Position

[47] The defendant, STEGH, submits that:

• Ms. Oakley’s email of February 2, 2017 constituted an offer to settle by which STEGH would be let out of the action through a Pierringer Agreement;
• the terms of the agreement reached are clear and unambiguous:
  • STEGH pays $20,000 to the plaintiff
  • STEGH cooperates with the plaintiff in the action including as witnesses at trial
  • STEGH provides documents previously requested by the plaintiff as set out in Mr. Oakley’s affidavit on the summary judgment motion to the extent those documents exist
  • if other documentation comes to light in the course of the litigation, STEGH will cooperate and provide that documentation;
• these terms mirror what Ms. Oakley communicated in her telephone conversation with Ms. Farkouh on January 23, 2017 save for the exact amount payable to the plaintiff;
• STEGH unequivocally accepted these terms as offered and a binding settlement was reached;
• the plaintiff’s concern as expressed by plaintiff’s counsel that STEGH will not fully and properly comply with the agreement is an issue of implementation, not formation of the contract;
• the terms of the settlement should be enforced by judgment; and
• the court should decline to exercise its discretion not to enforce the settlement.

Plaintiff’s Position

[48] The plaintiff submits that:

• Ms. Oakley made it abundantly clear in her February 2, 2017 email that even if the amount could be agreed upon, there remained other terms that she would require as part of the agreement;
• the critical component of the consideration for the contract from the plaintiff’s perspective was production of records, documents and data, known and not yet known, and the cooperation of hospital witnesses;
• the parties never got to an agreement or understanding about those additional terms because plaintiff’s counsel concluded from their discussion with Ms. Farkouh that there was little prospect that STEGH could or would complete its obligations under any terms that might be negotiated;
• the parties agreed only on the amount to be paid to the plaintiff and the remaining terms remained to be negotiated;
• Ms. Farkouh’s own emails reflect that terms remained to be “finalized” in order to “reach an agreement”; and
• there is no substantial benefit to be gained by the plaintiff from the settlement STEGH asserts and, as such, it would work a clear injustice to the plaintiff to enforce such an agreement.

Analysis

[49] On a motion to enforce an alleged settlement and in the defence of that motion, it is incumbent on the parties to put their best foot forward. The best evidence rule applies. This sort of motion is comparable to a motion for summary judgment.

[50] From January 23, 2017 (when Ms. Oakley first raised the prospect of resolution of the claim against STEGH by way of a Pierringer Agreement) to February 6, 2017 (when Ms. Farkouh emailed to accept the offer and advise she was “downing oars” on motion preparation), all settlement discussions and communications took place directly between Ms. Oakley and Ms. Farkouh. Mr. Oakley was not a party to those communications. He may have been informed by Ms. Oakley and he may have even overheard parts of their conversations (Ms. Oakley’s side), but he was not directly involved.

[51] Thus, the evidence to the point of alleged acceptance consists of the first-hand evidence of Ms. Farkouh as to discussions with Ms. Oakley, Mr. Oakley’s second-hand hearsay evidence and the written email communications between Ms. Oakley and Ms. Farkouh. I find that the plaintiff has not complied with the best evidence rule. The absence of an affidavit from Ms. Oakley is troubling.

[52] The fundamental question on this motion is whether the parties reached an agreement on February 6, 2017 when Ms. Farkouh purported to “accept” Ms. Oakley’s offer to settle the action. That is the point in time at which the defendant asserts a binding agreement was made. If so, all subsequent communications with plaintiff’s counsel amounted merely to efforts to convince them that there was a settlement and that STEGH would fulfil its obligations when called upon to do so, and their refusal to accept same. Certainly, one could not conclude on this record that a settlement was reached after Ms. Farkouh’s acceptance email.

[53] Put another way, the question here is: had all essential terms been agreed upon by the time Ms. Farkouh sent her acceptance email or were there terms still to be discussed and negotiated?

[54] This is a close call but I am not satisfied on a balance of probabilities that all of the essential terms were agreed upon. In coming to that conclusion, I note that:

• in her February 2 email to Ms. Farkouh, Ms. Oakley made it sufficiently clear that other terms remained to be resolved if the quantum was agreed upon;
• plaintiff’s counsel never put the disclosure and cooperation terms in writing, nor did counsel for STEGH;
• Ms. Farkouh’s affidavit sets out the offer of January 23 made verbally by Ms. Oakley which strikes me as being only in broad terms lacking in specifics;
• while there was considerable history to the plaintiff’s document and witness requests that remained largely unfulfilled, the parties clearly had different understandings of what was being requested – Ms. Farkouh assumed the documents to be provided were those identified by Mr. Oakley in his affidavit before the court and that limitation is not evident in Ms. Oakley’s communications;
• the scope of the documentary production on a go forward basis is ill-defined, vague and uncertain; and
• the specifics of witness cooperation are likewise stated in the broadest terms and lack certainty.

[55] To be clear, I do not intend by my comments to suggest merely that the alleged agreement could have been better drafted. Rather, I conclude that there were terms that remained to be resolved. Further negotiation was contemplated by Ms. Oakley. At best, what Ms. Oakley put forward was a concept for resolution – a Pierringer Agreement – and the parties did not get past resolution of but one of the terms of that resolution framework (quantum).

[56] I indicated above that this was a close call. That is large part because the evidence provided by the plaintiff on the motion is deficient. Of course, the entire dispute could have been avoided if plaintiff’s counsel had actually put down the terms they considered so vital at the outset. I agree with counsel for STEGH that all of Mr. Oakley’s efforts to paint the defendant as incapable or unwilling to do more than give perfunctory performance is pure speculation.

[57] In light of my conclusion that no settlement agreement was made, it is unnecessary to determine whether I would have exercised my discretion to not enforce the agreement.

[58] Therefore, I conclude that no settlement agreement was concluded. The motion to enforce the settlement is dismissed.

Motion for Summary Judgment

Background Facts

[59] As indicated, Mr. Martin fell down stairs at home while carrying a box. As he fell, his left leg caught in the railing. An ambulance was called. It arrived at his home at 1319 hrs. The Ambulance Report documents a left leg deformity with the patient in considerable pain.

[60] While en route to STEGH, Mr. Martin’s leg was assessed by a paramedic. The Ambulance Report records that there was no bruising or bleeding, and good peddle pulses. Mr. Martin was able to wiggle his toes.

[61] The ambulance arrived at the Emergency Room (ER) at STEGH at 1352 hrs. According to the Ambulance Report, the paramedics advised the triage nurse that there was an obvious deformity of the left lower leg with normal circulation, movement and sensation.

[62] Mr. Martin was initially assessed by a doctor in the ER at 1410 according to the Initial Physician Assessment Form. The doctor who first saw Mr. Martin was either the defendant, Dr. Shah, or his resident, Dr. Elia. In any event, Dr. Shah was the primary physician for Mr. Martin while he was in the ER at STEGH.

[63] Mr. Martin remained at STEGH until 2050 hrs on November 29 when he was transported on an emergent basis by ambulance to London Health Sciences Centre (LHSC). The Ambulance Report for the transfer shows that Mr. Martin was alert and oriented, there was an absence of swelling and the pulse in his left foot was present.

[64] Mr. Martin arrived at LHSC at 2135 hrs. He was assessed by nursing staff at 2200. The nursing notes indicate that at that point he had intact circulation, sensation and movement (CSM) in his left foot.

[65] He was assessed by Dr. Degen, an orthopaedic resident, at LHSC at 2345 hrs. The Emergency Record, Clinical Progress Record and Consultation Note of Dr. Degen indicate that:

• the neurovascular status of his left leg was assessed
• Mr. Martin had sensation in the superficial and deep peroneal nerves as well as in the tibial nerve and sural saphenous nerve
• Mr. Martin had motor function in the deep peroneal, superficial peroneal and tibial distributions
• he had palpable dorsalis pedis and posterior tibial pulses.

In short, Mr. Martin was neurovascularly intact and the compartment was swollen but soft.

[66] After obtaining a further-ray, a second fracture reduction procedure was attempted on Mr. Martin’s left leg at 0020 hrs on November 30. The first attempt by Dr. Shah at STEGH took place at 1704 hrs.

[67] At 0430 hrs, Mr. Martin underwent surgery at LHSC to relieve pressure after compartment syndrome was diagnosed.

Nursing Care at STEGH

[68] It is undisputed that compartment syndrome is a well-known complication/risk for the type of injury suffered by Mr. Martin. Both Dr. Shah and the nurses in the ER at STEGH were or should be presumed to be aware of risk of this complication.

[69] Regular monitoring and checking for circulation, sensation and movement (CSM) is required. Typically this involves checking for a pulse in the foot, determining whether sensation or the ability to move is altered, checking for capillary refill, and checking for abnormalities like numbness or tingling.

[70] On his examination for discovery, Dr. Shah testified that the standard procedure at STEGH, when they have a fracture such as Mr. Martin’s, is for the nurses to be involved in checking the patient’s extremity, and there was no reason in this case to depart from that standard procedure.

[71] The patient chart for Mr. Martin records that at the initial physician assessment, he had “strong dorsalis pedis, strong posterior tib. [Normal] sensation to light touch, good colour, good cap[illary] refill”.

[72] The chart records only two nurses’ references to any physical examination or assessment of Mr. Martin’s leg: the first time at triage and the second at 1406 hours almost immediately after triage and before the initial physician’s assessment.

[73] Mr. Martin was at STEGH for almost seven hours, yet the chart is remarkably barren of any CSM entries beyond the two just referred to. It may be that he was checked from time to time by one or more of the nurses in the ER but there is no evidence that that occurred. I note that the moving party, STEGH, did not file an affidavit by any STEGH nurse on this motion, nor did it answer an undertaking given on its examination for discovery to provide a list of the names of nurses who tended Mr. Martin.

[74] It is undisputed that nurses do not prescribe pain medication; that is the doctor’s purview. However, nurses do administer pain medication and are involved in checking a patient’s pain levels, before and after pain medication. One of the indicators for the onset of compartment syndrome is unremitting pain – pain that does not reduce measurably from pain medication.

[75] Paragraph 10 of the plaintiff’s Fresh as Amended Factum sets out a chart that indicates the medication given, the time it was given and Mr. Martin’s self-reported levels of pain. This information is derived from the notes recorded in Mr. Martin’s chart.

[76] Over the course of his stay at STEGH, Mr. Martin received numerous doses of morphine and two doses of Dilaudid which is considered more potent than morphine. In total he received the equivalent of 42 mg of morphine over the 7 hours at STEGH. The plaintiff’s expert, Dr. Karabatsos, opines that a dose of 2-5 mg over a four hour period is sufficient for a patient whose leg has been stinted and immobilized.

[77] Before I turn to the expert evidence filed on this motion, some procedural context is necessary.

[78] This motion for summary judgment was initially brought in conjunction with a motion by the defendant, Dr. Shah. The motion was brought because almost four years into the litigation, the plaintiff had yet to deliver any expert reports with respect to the alleged negligence of the defendants. A timetable was established for the plaintiff to obtain that evidence which, when delivered, consisted principally of expert evidence as to the standard of care and negligence of Dr. Shah. No separate report by a nursing expert was provided.

[79] The defendants, STEGH and Dr. Shah, obtained and filed responding expert opinion reports including a report by a nursing expert, Ms. Heather Leonard. The defendant, STEGH, was critical of the plaintiff’s failure to obtain a nursing expert and his reliance on opinions expressed by doctors as to the nursing standard of care.

[80] Plaintiff’s counsel then obtained further expert reports to respond to the defendant’s experts, including Ms. Leonard. These further expert reports include an expert report by Ms. Carmela Sorbara, an emergency room nurse of some 37 years’ experience. The plaintiff does not concede that doctors cannot opine on what is expected of nurses in a treatment team environment like an emergency room, but rely as well on the opinions expressed by Ms. Sorbara.

[81] With that backdrop, I now turn to the expert opinions as they relate to STEGH’s motion.

Experts

[82] I pause at the outset to observe that neither party disputed the expert qualifications of the other’s nursing expert. I have reviewed the curriculum vitae for each of Ms. Leonard and Ms. Sorbara and am satisfied that they both possess the necessary education and experience to provide expert opinion evidence as to the standard of care for nursing in the context of this action.

[83] There is no question that the matters on which they opine are properly the subject of expert opinion evidence.

[84] I note that there is a wide divergence in the opinions expressed by these experts with respect to whether the nursing standard of care was met and, if not, whether those failures caused or contributed to the plaintiff’s outcome and damages. To be fair, both nursing experts agree that the charting done by the nurses at STEGH fell below the standard of care expected of nurses in an ER. They disagree on what follows from that.

[85] In her expert report dated January 12, 2017, the plaintiff’s expert, Ms. Sorbara opines that:

• with respect to the care Mr. Martin received at STEGH, there were a number of failures to meet the standard of care including:
  • failure to perform focused assessments of Mr. Martin
  • failure to perform neurovascular assessments on Mr. Martin’s leg
  • failure to make a nursing diagnosis of possible compartment syndrome developing and to record that as a nursing concern and report same to the physician in charge of Mr. Martin’s care
  • failure to take the necessary steps to obtain prompt care for Mr. Martin
  • failure to chart the details of Mr. Martin’s condition accurately and completely
  • failure to provide accurate details to subsequent caregivers to ensure proper hand-off;
• at a minimum, Mr. Martin should have received hourly neurovascular assessments including an assessment of pain, paraesthesia, paralysis or weakness, pallor, pulses and pressure (the six P’s);
• the failure to perform focused assessments of Mr. Martin’s leg during his almost seven hours stay at the hospital is a significant omission. It prevented comparison of the physical condition of the leg at any time during his stay with how it was when he arrived at the hospital;
• tibial fractures such as Mr. Martin’s are known to be associated with neurovascular deterioration and development of compartment syndrome. This requires careful and close monitoring for early recognition of neurovascular compromise;
• the failure to conduct focused assessments and neurovascular assessments likely contributed to the failure to recognize compartment syndrome while Mr. Martin was at STEGH and thus contributed to the delay in Mr. Martin being properly treated;
• nurses have an obligation to apply critical thinking to know when to be concerned and communicate those concerns to the physician or to start interventions on physician’s orders;
• had proper physical and neurovascular assessments been performed it is likely that evidence of physical changes from baseline and neurovascular compromise would have been detected;
• the failure to detect the onset of compartment syndrome contributed to a delay in diagnosing compartment syndrome and the damage which Mr. Martin suffered as a result of that delay;
• the chart shows that Mr. Martin was experiencing significant levels of pain during the time he was at STEGH for which he received very significant amounts of pain medication;
• the nurses giving Mr. Martin this pain medication were expected to keep track of how much he had been given as well as the fact that his pain was not being controlled;
• the nurses looking after Mr. Martin should have recognized the unusually high levels of pain medication being administered and noted their concerns in the chart, and that those concerns were brought to the attention of a physician;
• the chart shows that at 7 PM, the nurse caring for Mr. Martin recognized that although she had given him several doses of morphine, his pain was not dropping but going up. Instead of alerting of the physician of what her concerns should have been at that point (which should have included neurovascular compromise and compartment syndrome), the nurse simply obtained more and stronger pain medication;
• there is no evidence of critical thinking of the potential complication with neurovascular compromise in the nursing documentation. Analgesia is administered without any pain assessment or focused assessment of the injured limb;
• it should have been clear to the nurses caring for Mr. Martin that since his pain was being poorly controlled there was a significant risk of problems such as neurovascular compromise or compartment syndrome;
• there is nothing in the charting to demonstrate that anyone advocated for prompt care including efficient transfer to LHSC;
• if there was a delay hearing back from London, it was the responsibility of the care nurse to investigate and take steps to minimize the delay. Nothing in the records suggest that occurred;
• the delay in moving Mr. Martin to London was due to lack of coordination, lack of any direction in the records to move him to London as soon as possible, failure to take steps to minimize his wait, lack of direction to take him to London on a stat basis given to the ambulance attendants, and the ambulance was not contacted until after 8 PM;
• the failure to perform and chart the information regarding the physical condition and neurovascular status of Mr. Martin’s leg contributed to the delay in treating him promptly and thus would have contributed to his injuries;
• there are important omissions in the chart in monitoring Mr. Martin’s pain, the effectiveness of the medications and the failure to note what was brought to the attention of the physicians. If there is a problem, it is expected that the nurse will advocate for the patient and bring it to the physician’s attention. There is not a single entry where the nurse followed up with the medication, good or bad, or noted discussing it with a doctor;
• providing Mr. Martin with large doses of pain medication of various types would have left him with little ability to feel sensations that can show up early in suspected compartment syndrome;
• no one considered that pain levels should have gone down when Mr. Martin’s leg was immobilized;
• the failure to identify the lack of effectiveness of the pain medications meant that no one noticed that he was getting repeated amounts of analgesia while pain was increasing; and
• complete and accurate information was essential to provide to LHSC to ensure the hand-off of Mr. Martin was done carefully and in a manner which would minimize errors of communication
  • the paging records show incorrect information was provided to LHSC; specifically, the entry at 1633 indicates left dislocated knee. By that point, an x-ray had been done and it was known that Mr. Martin’s tibia was broken. This was not simply a dislocated knee.
  • Secondly, the entry at 1800 incorrectly indicated that the fracture was of the left knee joint when it was of the tibia. It also refers to a deformity of the knee when it was a deformity of the leg.
  • There is no mention that there had been no checking of pulses for four hours.
  • There was no mention that within nine minutes of coming out of sedation after an attempt to reduce the fracture, Mr. Martin’s pain was back up to a 7/10.
  • There was also no basis to report to London that the procedure to relocate his knee had resulted in decreased pain.

[86] Ms. Sorbara also sets out in her report various points of disagreement with the opinions expressed by Ms. Leonard in her expert opinion. Suffice to say that Ms. Sorbara disagrees with the conclusions reached by Ms. Leonard in many significant respects.

[87] Ms. Heather Leonard is STEGH’s nursing expert. She is a registered nurse with 20 years of nursing experience including work in an emergency department. In her expert reports, Ms. Leonard opines that:

• the lack of documented circulation, sensation and movement (CSM) assessments by the nurses at STEGH, while below the standard of care, did not contribute to Mr. Martin’s poor outcome;
• the nurse’s initial assessment of Mr. Martin’s condition at LHSC and Dr. Degen’s assessment two hours later verify the intact neurovascular status of Mr. Martin’s left leg. Thus, Mr. Martin’s condition changed only after he presented at LHSC;
• there would likely have been no detectable signs of compartment syndrome while Mr. Martin was being cared for at STEGH;
• it is well understood that compartment syndrome symptoms include deep throbbing pain out of proportion to the original injury which is not relieved by narcotics;
• determining that pain is disproportionate to the injury is complex given that pain is subjective, severe injuries are painful, and people respond differently to medications;
• it was not below the standard of care for nurses at STEGH to have assessed Mr. Martin’s pain as proportionate to his injury and therefore not advocated for more urgent transfer to LHSC;
• the number of nursing entries in his chart indicates that Mr. Martin was receiving an appropriate level of concern and care which meets the standard of care;
• the evidence of frequent notes on pain, adjustments in medication for pain and his response to the medication show that the nurses were monitoring his pain response appropriately;
• the notes reflect frequent interaction with the doctor to deal with ongoing pain;
• once Mr. Martin’s pain had stabilized, there was no reason to seek early transfer to LHSC because of a deterioration in his condition;
• there is often undocumented communication between doctors and nurses in the care of a patient;
• nursing assessments of Mr. Martin’s left leg CSM should have been completed on an hourly basis but findings of poor skin colour and temperature, decreased sensation of limb and lack of pulses in the foot are late stage compartment syndrome findings;
• although the charting should have contained more detail, the fact remains that there were no signs consistent with compartment syndrome upon Mr. Martin’s arrival at LHSC;
• the failure to adequately chart did not contribute to Mr. Martin’s outcome;
• while nurses are expected to know the signs and symptoms of compartment syndrome, they do not make that diagnosis – that is done by the physician;
• the signs that would make a nurse suspect the presence of compartment syndrome were not present at STEGH; and
• Dr. Shah was in contact with LHSC throughout Mr. Martin’s stay at STEGH. Both he and Dr. Vandeyar were paying close attention to Mr. Martin’s condition.

[88] In a report dated January 17, 2017, Dr. Karabatsos, an orthopaedic surgeon, provides an opinion which contradicts Ms. Leonard’s opinion in several areas. In that report, Dr. Karabatsos opines that:

• Ms. Leonard appears to have opined in areas beyond her area of knowledge and expertise; in particular, as to her knowledge and understanding of compartment syndrome and pain medications;
• if a patient is appropriately splinted and immobile, as Mr. Martin was, he would have some pain but it would easily be manageable by routine analgesics. That was not the case with Mr. Martin who continued to have high levels of pain despite receiving dose after dose of morphine;
• Mr. Martin’s increased pain despite doses of morphine was a red flag for the nurses that should have alerted them that there was an underlying problem;
• as a doctor, he would expect to be advised by a nurse of the increased requirement for pain medication and that the nurse would closely monitor vital signs in his absence;
• one of the main reasons that compartment syndrome may be missed is because if the patient receives large doses of narcotics to control the pain which will “mask” the pain and physical findings which will fool doctors and nurses into thinking the pain has diminished. Mr. Martin’s case was a textbook example of what not to do;
• Mr. Martin was given so much medication that when he presented at LHSC, his pain was masked which likely contributed to him not being assessed by the resident for two hours;
• the amount and timing of medication was not accurately reported on transfer to LHSC;
• CSM testing is inaccurate with high levels of analgesic because both the testing for “sensation” and “pain with movement” may appear normal if the patient’s ability to detect pain is impaired;
• as for testing for impaired circulation, it is commonly known that circulation impairment may be a very late detected sign, often appearing well after the late stages of compartment syndrome. Therefore, the absence of signs of circulatory impairment does not rule out a compartment syndrome diagnosis;
• the paging records show that STEGH nurses/staff waited two hours without following up with the resident at LHSC. Incorrect information was given to the resident and Mr. Martin’s condition was improperly designated;
• compartment syndrome can be effectively prevented and the damage minimized if the pressure is relieved before tissue necrosis sets in. It takes on average 6-8 hours before permanent damage occurs. Mr. Martin did not have two hours for staff to waste in failing to follow up with the resident at LHSC;
• Dr. Shah and the nurses knew that Mr. Martin’s condition required that he be transferred to a tertiary care centre (LHSC) from early after his arrival, yet they waited almost seven hours to transfer him;
• the records should have been updated sooner to reflect Mr. Martin’s increased level of pain after the fracture reduction procedure and the failure to do so left LHSC with an inaccurate picture of Mr. Martin’s condition;
• the STEGH nurses’ failure to properly monitor Mr. Martin’s condition permitted compartment syndrome to develop unrecognized, and contributed to the delay in prompt treatment which likely would have avoided the serious damages suffered by Mr. Martin; and
• the serious delay, the failure to identify the development of compartment syndrome, the inaccurate records and information provided to LHSC, all contributed to the delay in getting Mr. Martin to surgery, and the development of necrotic tissue and subsequent serious damage to his leg.

[89] The expert reports filed relating to the care by Dr. Shah are relevant insofar as they assist in an assessment of the potential impacts, if any, of Mr. Martin’s care/treatment at STEGH on his outcome.

[90] Again, there is significant divergence on whether Dr. Shah met the standard of care expected of him. Most of that evidence is of limited relevance to the motion before me. However, there are some useful explanations of compartment syndrome and its onset mixed in this evidence that provides greater context for the causation issue.

Issues and Law

[91] Summary judgment motions are governed by r. 20.04 which states:

“(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;…

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.”

[92] The leading case on summary judgment is Hryniak v. Mauldin, 2014 SCC 7. At para. 66, Karakatsanis J. for the court wrote:

“On the motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they 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.”

[93] Thus, the judge hearing the summary judgment motion must ask:

1. On the basis of the evidentiary record alone, are there genuine issues that require a trial?
2. Does the evidentiary record provide the evidence needed to “fairly and justly adjudicate the dispute”?

[94] In Hryniak, the test for summary judgment was stated at para. 49 as follows:

“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 findings 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.”

[95] The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party establishes that there is no genuine issue requiring a trial, the onus shifts to the responding party to establish that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. L.H. Gray & Son Ltd., 2014 CarswellOnt 11926 (ON CA) at para. 26; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC CarswellOnt 913 at para. 12.

[96] A responding party must set out in affidavit material or other evidence the specific facts that establish that there is a genuine issue requiring a trial. The responding party cannot rest on mere denials of allegations of a party’s pleading: Sweda, para. 27. It is not enough to allude to evidence that may be adduced in the future.

[97] The judge hearing the motion must:

1. Determine the motion on the pleadings and evidence actually before the court on the motion. The judge is entitled to assume that the record contains all the evidence that would be adduced at trial; and
2. Take a hard look at the evidence and the merits of the action at this preliminary stage: Sweda, paras. 26-28.

[98] On a motion for summary judgment in a medical malpractice action, the plaintiff must provide expert opinion evidence supportive of his/her position unless the issues to be decided are within the ordinary knowledge and experience of a trier of fact: Claus v. Wolfman, 1999 CanLII 14824 (ON SC), [1999] O.J. No. 5023 (S.C.J.) at paras. 4 and 23; Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208 at paras. 26-28; Liu v. Wong, 2016 ONCA 366 at para. 14.

[99] To establish liability in a medical negligence action, the plaintiff must establish on a balance of probabilities that the defendant breached the requisite standard of care and that the defendant’s negligence caused the plaintiff’s damages. Both are essential elements to the cause of action in negligence: Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 at para. 24. It is not sufficient to prove only a breach of the standard of care; there must be a causal connection between the breach and the damages claimed: Mangal v. William Osler Health Centre, 2014 ONCA 639 at para. 40, aff’g 2013 ONSC 2313; Di Tacchio v. London Health Sciences Centre, 2013 ONSC 1274 at paras. 45 and 48; Duffy v. St Joseph’s Health Care System, 2003 O.J. No. 3078 at paras. 12, 13 and 16.

Analysis

[100] The defendant, STEGH, submits that:

• with respect to standard of care,
  • The evidence clearly establishes that Dr. Shah was directing and controlling the care that Mr. Martin received
  • It was the responsibility of Dr. Shah and LHSC to determine whether and when to transport Mr. Martin from STEGH to LHSC
  • The analgesics administered to Mr. Martin were done upon direction of the physician(s) since nurses have no authority to prescribe medicine
  • When Mr. Martin arrived at LHSC, he was intact neurovascularly and he showed no symptoms of compartment syndrome – thus, his care at STEGH must have been satisfactory;
• with respect to causation,
  • I may assume the breaches asserted by the plaintiff and determine whether there is a genuine issue requiring a trial on causation. If there is not, the action should be dismissed
  • The breaches asserted by the plaintiff could not have contributed to his damage because he was free of compartment syndrome symptoms when he arrived at LHSC
  • In any event, it was for LHSC to recognize and take appropriate steps to prevent the damage suffered by Mr. Martin – there was ample time to do so upon his arrival at LHSC.

[101] The plaintiff submits that:

• there is competing expert evidence as to the nature and import of the breaches of the standard of care;
• the plaintiff’s expert evidence establishes a causal link between the breaches by the nurses at STEGH and Mr. Martin’s resulting damage;
• the breach of the standard of care is not limited to merely failing to properly chart Mr. Martin’s care;
• the plaintiff’s expert evidence establishes that it is likely that the onset of compartment syndrome started at STEGH before he was transferred to LHSC;
• Mr. Martin’s ongoing and increasing pain levels, which necessitated more and stronger pain medication was a clear signal to the nurses that something was wrong. Their failure to recognize and act on that signal caused both a delay in his transfer to LHSC and the masking of his symptoms which prevented earlier detection and treatment;
• there are genuine issues that require a trial on both breach of the standard of care and causation; and
• this is not a case where a summary determination is possible or appropriate.

[102] I find first that there is a genuine issue for trial as to:

1. The standard of care applicable to the nurses at STEGH given the degree of Dr. Shah’s involvement in directing Mr. Martin’s care while at STEGH and his communications with LHSC;
2. Whether the nurses at STEGH breached the standard of care;
3. When the onset of compartment syndrome began; and
4. Whether the acts or omissions of the nurses at STEGH in breach of the standard of care caused or contributed to the damage suffered by Mr. Martin.

[103] As the expert evidence I have summarized above shows, the experts come to radically different views on whether the nurses at STEGH merely failed to chart properly or ought to have recognized the increased levels of pain for what they were: the onset of compartment syndrome, and acted accordingly. Further, there is complete disagreement as to whether the nurses’ breaches of duty had any effect on the timing and nature of Mr. Martin’s treatment at LHSC. The plaintiff’s expert evidence addresses both breach of the standard of care and causation (see Dr. Karabatsos’ report and that of Ms. Sorbara).

[104] I find that these issues require a trial for a just and fair determination. It is not, in my view, in the interests of justice to determine these issues on a summary judgment motion because

• the injury suffered and damages claimed are significant;
• there is competing expert evidence on these issues;
• the medical-legal issues are complex;
• none of the experts were cross-examined on their reports found in the various affidavits;
• as Mr. Oakley’s affidavit indicates, there are additional documents and evidence yet to be provided by the defendants that may bear significantly on the assessment of liability;
• the issue of breach of the standard of care is inextricably tied into the causation issue; for example, would the pain medication administered at STEGH likely mask or impair the ability of staff and doctors at LHSC to assess compartment syndrome at LHSC?; and
• the determination of when compartment syndrome likely started is critical to both causation and breach of the standard of care. That issue is most fairly determined at a trial.

[105] Further, I am not satisfied that the use of the expanded powers in r. 20.04(2.1) and (2.2) would avoid the necessity of a trial in this case. The determination of the issues of STEGH’s liability is best done in the context of the evidence relevant to the whole action. I am not satisfied that using these expanded powers in these circumstances would lead to a fair and just result.

Conclusion

[106] I conclude as follows:

1. The motion of the defendant, STEGH, to enforce a settlement is dismissed;
2. The motion for summary judgment of the defendant, STEGH, is dismissed

[107] The two motions were argued separately on different dates. If the parties cannot agree on the costs of either or both motions, they may make submissions in writing within 15 days. The submissions should be separate for each motion and should not exceed 3 pages for each.

“Original signed by Raikes, J.”

Justice R. Raikes

Released: February 1, 2018