Court File and Parties

COURT FILE NO.: 07-CV-342124PD2 DATE: 20190524 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Samuel Simpson, a minor by his litigation guardian The Children’s Lawyer, Michael Simpson and Lee Dash-Simpson, Plaintiffs AND: Jim Forsythe, Leslie Forsythe, James Forythe, Daniel Forsythe, John Doe, Jane Doe, ABC Corporation, XYZ Corporation, Marthold Investments Limited and Forsythe Family Farms, Defendants

BEFORE: Darla A. Wilson J.

COUNSEL: Anita Varjacic, for the minor Plaintiff Samuel Simpson Eric Heath, for the Plaintiffs Michael Simpson and Lee Dash-Simpson Jonathan Schwartzman, for the Defendants Michael Henry, for the Plaintiffs Soulias in the companion action

HEARD: May 24, 2019

Endorsement

[1] I have been case managing two actions arising from a visit to the defendant farm which took place in October 2005. The minor Plaintiffs in the Soulias/Mitsopoulos action have claims for damages which can be characterized as manifestations in gastrointestinal issues.

[2] The Simpson child, however, is a more complex case. He was diagnosed with developmental delay when he was a baby. Following the attendance at the defendant farm, he suffered renal failure, diarrhea and was admitted to the hospital, where he remained for some 6 weeks. Following his discharge, Samuel (“Sam”) has had both cognitive and physical issues.

[3] He was assessed by Dr. MacGregor, paediatric neurologist, in January 2019 and a report was delivered shortly thereafter. Dr. MacGregor was unable to offer an opinion on causation and she noted that an “urgent brain and upper cervical spine MRI” was necessary as well as a neuromuscular assessment in order for her to arrive at an opinion.

[4] The parents of Sam have their own claims for damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 and have separate representation.

[5] Counsel attended in trial scheduling court in April, 2019 and fixed a trial date for March 22, 2021 with a jury for a time period of 35 days. Counsel were unable to agree on a timetable for the delivery of expert reports and thus, I convened a case conference to deal with this issue.

[6] At the outset, Ms. Varjacic advised me that Sam will turn 18 in December, 2020 and as a result, the Office of the Children’s Lawyer will no longer act as Litigation Guardian. It will be necessary for an assessment of Sam’s capacity and assuming he does not have capacity to instruct counsel, the Public Guardian and Trustee will have to be involved and counsel was uncertain if they would accept the retainer and she doubted they would be ready to proceed to trial in March 2021. Ms. Varjacic indicated a trial date in the fall of 2021 would be more appropriate.

[7] This action was commenced in 2007, more than a dozen years ago. Even now, counsel for the infant is not in receipt of evidence, expert and otherwise, that would enable her to discuss the resolution of the case; the defence does not even know the case it has to meet, despite the passage of years. I have commented on the unacceptable delays in the processing of this case in earlier endorsements. As a result, I advised counsel that I was not prepared to entertain a discussion of the selection of an alternate trial date but rather, I wished to fix timelines for the delivery of expert reports.

[8] Counsel for Sam has a letter from the infant’s treating pediatrician, Dr. Telch, dated March 14, 2019 which indicates he has requested an MRI of the brain, an assessment with a geneticist, Dr. Yoon, and a neuropsychological assessment. Ms. Verjacic advised that the MRI has been booked for December 2019. The other assessments have not been scheduled yet.

[9] It appears that Dr. MacGregor requires the MRI in order to finalize her opinion on causation. The date for the MRI in December 2019 is too far away and makes it difficult for the defendant to secure its own expert reports. Counsel for the Plaintiff is to make best efforts to obtain an earlier date for the MRI and if this requires Sam’s parents to take him to the hospital for the imaging on short notice because of a cancellation, which should be done. Counsel for the Simpson parents is to advise his clients that it is essential the MRI be done on an expedited basis and they are to co-operate in this regard.

[10] I make the following order concerning service of expert reports:

[11] If the Plaintiffs in the Soulias/Mitsopoulos action elect to serve a further expert report on the issue of damages, that report is to be served by December 31, 2019. And responding report from the defence is to be served by June 30, 2020. I confirm counsel’s advice that no further expert reports on liability will be served by these Plaintiffs.

[12] In the action brought by the adult Simpsons, I am advised a loss of income claim is being asserted by Mr. and Mrs. Simpson. These claims have not been quantified. I order that any expert reports on the pecuniary losses of these Plaintiffs are to be served by August 31, 2019. Any discovery arising from the service of expert reports on loss of income is to be conducted by October 31, 2019. And responding report from the defence on the pecuniary claims is to be served by December 31, 2019.

[13] In the case involving Sam Simpson, I am advised that all liability reports have been served by the Plaintiff. The defence liability reports are to be served by December 31, 2019. Any further reports from the Plaintiff on damages are to be served by December 31, 2019. The defence reports on damages are to be served by August 31, 2020.

[14] Counsel are to file a copy of the timetable I have ordered with Janice Dickie at the trial office. A pretrial conference is to be arranged in the fall of 2020.

[15] The issue of who will represent Sam after he turns 18 in December, 2020 is unclear. Counsel for the adult Simpsons is to make inquiries of his clients as to whether there is a family member who is prepared to act as a litigation guardian for Sam and he is to advise me of the response.

[16] I remain available to deal with other issues as they arise.

D.A. Wilson J. Date: May 24, 2019