Court File and Parties

CITATION: Holguin v. University Health Network, 2019 ONSC 2193 COURT FILE NO.: CV-11-436596 DATE: 20190405

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Octavio Holguin, Plaintiff/Responding Party AND: University Health Network – Toronto General and Toronto Western Divisions, Dr. Michael Tymianski, Dr. Robert A. Willinsky, Dr. Karel Ter Brugge, Dr. Timo Krings, Dr. Lakshmi Venkat Raghavan, Dr. Elizabeth John, John Doe and Jane Doe, Defendants/Moving Parties

BEFORE: Darla A. Wilson J.

COUNSEL: Octavio Holguin, self-represented Andrew Kalamut and Sabrina Bruno, counsel for the defendant physicians Logan Crowell, counsel for the defendant hospital

HEARD: April 4, 2019

Endorsement

[1] This is a medical negligence action which was commenced in 2011 arising from treatment the Plaintiff received at Toronto Western Hospital between July 13 and October 9, 2009. The Plaintiff alleges the treatment he received from the named doctors and from the nurses at the hospital for his spinal arteriovenous fistula was negligent and as a result, he has suffered damages. The defendant physicians are neurosurgeons and interventional neuroradiologists.

[2] The Plaintiff alleges and testified at his examination for discovery that he woke up during the course of the procedure and he was administered morphine to render him unconscious. He believes this has led to paralysis.

[3] The Plaintiff was initially represented by counsel and examinations for discovery of the parties, with the exception of the hospital, have been completed. I have been case managing this action since 2018. At that time, the action had been administratively dismissed twice because it had not been set down for trial.

[4] At the initial case conference on July 5, 2018, the Plaintiff had not delivered any expert reports critical of the care rendered by the defendants. Counsel advised that three experts had been retained and the reports were expected in the near future. I made an order requiring the Plaintiff to serve the two liability expert reports and the damage report by August 31, 2018. I also made other orders relating to the action.

[5] At a further case conference held September 13, 2018, I was advised that despite the timetable I had set in place, the Plaintiff had failed to deliver any expert reports. Subsequently, I met with the Plaintiff and his counsel. On October 2, 2018, I made an order removing his counsel as solicitor of record. In that order, I directed the Plaintiff must file a Notice of Intention to Act in Person or appoint a new lawyer by November 2, 2018.

[6] Mr. Holguin contacted the court and requested an extension of time to file a notice or appoint a new solicitor. I acceded to his request and varied my order of October 2, 2018 to permit the Plaintiff to secure new counsel or file the appropriate notice by November 30, 2018.

[7] The Plaintiff failed to comply with my order. Therefore, I convened a further case conference by telephone. Although he was notified of the date and time of the conference, Mr. Holguin did not participate. On December 18, 2018, at the case conference, defence counsel advised that they wished to bring motions to dismiss the action. I made an order on that date setting April 4, 2019 for the hearing of the motions. I set a timetable for the delivery of materials. My endorsement was served on the Plaintiff.

[8] There was no response from the Plaintiff. Counsel for the defendant doctors and for the hospital served their respective notices of motion to dismiss the action. No materials were received from Mr. Holguin and he failed to contact defence counsel or the court.

[9] On the return date of the motions, Mr. Holguin attended court. He advised that he knew of the motion date and acknowledged that he had filed no materials in response. His reason for his failure to secure new counsel or submit documentation on the motion was that he had been dealing with issues concerning his apartment and further, that he had a case before the Human Rights Commission that was time consuming. He submitted that he needed more time to obtain proof that he woke up in the middle of the operation.

[10] Defence counsel opposed any adjournment and asked that their motions proceed.

[11] I am familiar with the history of this action, since I have been case managing it. I decline to adjourn these motions. To do so, in my view, would be unfair to the defendants. The Plaintiff has had ample time to put his case forward. As Morgan J. noted in Wolfe v. Lady Dunn Health Centre, 2019 ONSC 190, “An adjournment will only put off to another day an assessment of the case that can and should be made today.” I agree.

[12] The Plaintiff commenced this action more than eight years ago and until October of 2018, he was represented by counsel. Several timetables for the delivery of expert reports have been imposed and all of them have been breached by the Plaintiff. The defendant doctors have served two expert reports. Dr. Tampieri, interventional neuroradiologist, and Dr. Bloom, anaesthesiologist, both of whom opine that the standard of care was met by the treating physicians.

[13] The law is clear that in order to be successful in establishing negligence in this case, the Plaintiff is required to deliver an expert report in compliance with Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the issues of standard of care and causation: Suserski v. Nurse, 2008 ONCA 416. The Plaintiff has failed to do so, despite having ample time and numerous extensions of timetables to assist him. The onus is on the Plaintiff to establish negligence and without expert opinions, there is no genuine issue for trial.

[14] As well the Court is entitled to infer from the absence of an expert opinion supportive of negligence that the Plaintiff is unable to obtain a report from a duly qualified expert that supports their allegations of negligence: Richmond v. Balakrishnan, 2010 ONSC 5888. In the instant case, it is more than an inference. Counsel for the Plaintiff confirmed that he had retained three experts to provide opinions on liability and causation, yet no report has been forthcoming.

[15] Mr. Holguin has known since at least October 2018 that expert reports were needed to move forward with this claim and that without them, the Defendants would bring motions to dismiss his action. He has known that he needed to find new counsel, if that was his wish. He has known since December 2018 that April 4 was the date set for the hearing of the motions to dismiss his action. Yet, he failed to contact the defence counsel and he attended at court without a satisfactory explanation for his failure to comply with my various orders and specifically, his failure to appoint counsel and secure the requisite expert opinions.

[16] To defeat a motion for summary judgment the Plaintiff must demonstrate that there is a genuine issue requiring a trial. In this case, that requires the Plaintiff to provide cogent expert opinions that the actions of the Defendants fell below the requisite standard of care and as well, that he would not be in his current medical condition but for the negligence of the Defendants.

[17] I am alive to the fact that Mr. Holguin has serious health issues and is without the benefit of counsel. However, the delay in this action goes back in time to when he had counsel. The defendants are entitled to have this action move forward to an adjudication and not to languish. The purpose of Rule 20 motions for summary judgment is to eliminate at an early stage claims that have no chance of success at trial: Hryniak v. Mauldin, 2014 SCC 7.

[18] There are a number of grounds upon which this action could be dismissed. The Plaintiff has failed to comply with several of my orders; he has failed to set the action down for trial; and he has failed to deliver expert reports.

[19] I have reviewed the motion records. There is no evidence to rebut the expert opinions proffered by the defence; there is no genuine issue requiring a trial. The defendants’ motions for summary judgment are granted. The action is dismissed.

[20] If costs are being sought, the defendants may make written submissions of no more than 5 pages within 20 days of the release of these Reasons, followed by the Plaintiff’s written submissions within a further 10 days.

D. A. Wilson J. Date: April 5, 2019