Court File and Parties

COURT FILE NO.: CV-13-478449 DATE: 20190404 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JEREMY ARYEH GROSS, a person under disability, and EZRA GROSS, a minor, by their litigation guardian, Naomi Gross, and the said NAOMI GROSS, Plaintiffs

AND:

WOMEN’S COLLEGE HOSPITAL, HOWARD RONALD COHEN, EZRA EDDY COHEN, NINA ELIZABETH VENKATARANGAM, B.A. JOHNSON, L. DOE and C. BOUMAN and LEIGH ANDREWS, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Hilik Elmaleh and Michael Hershkop, for the Plaintiffs Mary Lynn Gleason and Anna Marrison, for the Defendants Women’s College Hospital, B.A. Johnson, C. Bouman and Leigh Andrews; Frank McLaughlin, Sara Kushner, and Charlotte-Anne Malischewski, for the Defendants Howard Ronald Cohen, Ezra Eddy Cohen, Nina Elizabeth Venkatarangam

HEARD: April 2, 2019

Endorsement

[1] This is a medical malpractice action which I have been case managing since 2017. It arises as a result of the birth of Jeremy Gross on April 22, 1994. The Plaintiffs allege that the care provided during her labour and delivery was negligent, causing impaired oxygen to the infant, resulting in brain damage. As the claim has moved through the usual litigation stages, liability of both the doctors and the nurses is in issue, as well as causation and damages. It is a complicated action and the Plaintiffs reside in New York, where Jeremy receives treatment. He is now almost 25 years of age.

[2] This action is to be tried with a jury. The trial date of April 1, 2019 was fixed more than two years ago, with a trial time of 8 weeks. I have had numerous meetings with counsel over the last number of months, as the trial date moved closer. In the last few weeks, extensive trial management has been done. At counsel’s request, the trial date of April 1 was held down so the trial is now fixed to commence April 15, 2019.

[3] On March 7, 2019, Mr. Rachlin, counsel for the Plaintiffs, sent an email advising that his relationship with Naomi Gross, the litigation guardian of Jeremy, had broken down to the point that it was necessary for him to bring a motion to remove himself as counsel of record. I convened a case conference on March 19, 2019 with counsel to discuss this development. I directed the Plaintiff attend at a case conference on March 25, 2019 to deal with the issue of Mr. Rachlin’s continued retainer. Defence counsel were excused from the latter attendance.

[4] On that date, Ms. Gross attended along with Hilik Elmaliah, who advised that he had been retained to assume carriage of the file from Mr. Rachlin. He indicated he had not had an opportunity to review the file but that he would be requesting an adjournment of the trial date as he required time to read the expert reports and to determine, among other things, whether the damage figure that was discussed when Mr. Rachlin was her counsel was a fair figure.

[5] Subsequent to the March 25 appearance before me, Mr. Elmaleh served and filed a Notice of Change of Solicitors. Counsel for the Defendants stated that they would be opposing any adjournment of the trial date and other motions might be launched. They also indicated that if an adjournment of the trial was granted, they wished to make submissions on the terms.

[6] I directed counsel to attend before me on April 2, 2019. At that time, Mr. Elmaleh advised that he had not yet received the file from Mr. Rachlin. He estimated that he required 3-4 months to read the file and inquire into the Medicare and Medicaid issues which are of critical importance since the Plaintiffs reside in New York. Mr. Elmaleh advised that he cannot possibly get up to speed on the case in time for the April 15 trial date. Furthermore, he has a fixed trial set to start in Central East commencing in May, which cannot be adjourned.

[7] Counsel for the Defendants oppose the adjournment, noting this is an old action, the trial date has been fixed for a long time and significant time has been spent preparing for trial. Finally, any adjournment means that the trial will not be heard for a long time and the Defendants wish closure to this long outstanding matter.

[8] After hearing submissions from counsel, I have, with great reluctance, come to the conclusion that the trial set for April 15 cannot proceed. My reluctance arises for a number of reasons. First, the cause of action arose in 1994. Second, this trial date has been fixed since October 2016 and a great deal of work has gone into this matter in the last few months to ensure it is trial ready. Third, the reality in Toronto is that if the trial does not proceed April 15, a new trial date will not be secured before 2021, which is a long time away. All of the parties need closure, and that includes Jeremy. Finally, the practice direction in Toronto states that adjournments of fixed trial dates are to be granted only in exceptional circumstances. I am not persuaded that Ms. Gross’s decision to change counsel at the eleventh hour qualifies as an “exceptional circumstance.”

[9] However, I am mindful of the fact that this is a claim that involves a party under a disability. It is a complicated medical negligence case which will be tried with a jury for 8 weeks, if all of the issues have to be determined. I therefore grant the request of the Plaintiffs for an adjournment of the fixed trial date, but it will be on terms.

[10] I appreciate that as new counsel, Mr. Elmaleh must get up to speed on this case. It is essential that he review this file as quickly as possible. I make the following orders:

[11] Mr. Elmaleh is to advise me by April 5 whether the file will be transferred to him from Rachlin Wolfson on a consent basis. If there is an issue, I will deal with it.

[12] Mr. Elmaleh is to review the file and make inquiries concerning Medicare and Medicaid. A teleconference will be held April 30 at 9:15 am to discuss the status of the matter. I expect that Mr. Elmaleh will be in a position to advise whether the issue of damages is settled. As well, counsel should be able to advise if an order can be taken out on consent dismissing the action against the defendant Dr. Venkatarangam.

[13] I will deal with the issue of the entitlement and the quantum of costs thrown away as a result of the adjournment of the trial date.

[14] There are other issues to be dealt with, but I will defer them pending further advice from new counsel for the Plaintiffs.

D. A. Wilson J. Date: April 4, 2019