Court File and Parties
COURT FILE NO.: CV-11-423023 DATE: 20190710 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jared Florence, Dana Florence, Brody Florence, Cole Florence and Taylor Florence, by their Litigation Guardian, Dana Florence, Plaintiffs AND: Dr. Suzan Benzaquen, Dr. Jon Fenton Roy Barrett, Defendants
BEFORE: Darla A. Wilson J.
COUNSEL: Duncan Embury and Daniele Pacheco, Counsel for the Plaintiffs Dana, Brody, Cole and Taylor Florence Paul Harte, Counsel for the Plaintiff Jared Florence Tom Curry and Matthew Lerner, Counsel for the Defendant Dr. Benzaquen
HEARD: July 4, 2019
Endorsement
[1] This is a medical negligence action which arises from the birth of triplets on January 1, 2008. Jared Florence is the father of the babies and Dana Florence is their mother. The triplets Brody, Cole and Taylor, are also Plaintiffs. Dr. Benzaquen and Dr. Barrett were Dana’s treating gynecologists/obstetricians. The triplets were born at approximately 25 weeks gestation, extremely premature, and all have severe and permanent disabilities. It is alleged they require 24 hour a day care.
[2] The claims against Dr. Barrett have been dismissed on consent. The remaining claim against Dr. Benzaquen alleges negligence arising from the prescription of Serophene/Clomid, commonly referred to as a fertility drug. The Plaintiff Dana alleges she was never told of the risk of multiple births, the risk of premature delivery, developmental delay and other risks associated with taking such medication. It is pleaded that “if Dana had been aware of the significant risks associated with multiple births she would not have taken Serophene.”
[3] The father and mother claim both general and special damages as a result of their children’s disabilities. The triplets are also claiming damages.
[4] Liability and causation are denied by Dr. Benzaquen, and damages remain in issue. Discoveries have been completed.
[5] On October 13, 2017, counsel appeared before me to schedule a trial date. At that time, I fixed the trial for September 23, 2019 for 4 weeks “on the understanding that this date may be vacated if damages remain in issue.” I indicated that I would make myself available to counsel to deal with issues that arose.
[6] On April 30, I convened a case conference at counsel’s request. At that time, counsel for the Defendant advised that a Rule 21 motion had been served but had not been heard. Counsel for the Plaintiffs indicated that they wished the motion to be heard at the outset of trial while Defence counsel advised that the motion ought to be heard in advance of trial. I requested counsel send me written submissions on this point, following which we would discuss the timing of the motion and the issue of the trial time at a further case conference.
[7] I received written submissions from counsel on the timing of the defence motion. On July 4, a further case conference was convened.
[8] Briefly put, the Defendant asserts that the infants have no claim in law, because “wrongful life” claims cannot succeed at law and as a result, they ought to be dismissed. Dr. Benzaquen served a motion months ago pursuant to Rule 21 for a determination of this issue. They point out that counsel for the Plaintiffs brought a motion for an order bifurcating the issues of liability and damages and one of the reasons for this motion was to have the issue of the validity of the infants’ claims in law determined without a full trial on all issues. That motion was unsuccessful and the defence wishes this issue to be determined prior to trial. They note that the September 2019 trial date was set on the basis that damages would be resolved. It is the position of the defence that all of the issues cannot be adjudicated in 4 weeks, but that the judge hearing the motion should also be the trial judge.
[9] The Plaintiffs submit that a full evidentiary record is required to adjudicate the motion given the complexity and novelty of the issues. The central question for determination is whether Dr. Benzaquen owed a duty of care to the triplets. This issue requires an analysis based on the particular facts and circumstances of this case. Ms. Pacheco advises that the Plaintiffs intend to call expert evidence on policy considerations as well as other expert evidence at the motion. It is also submitted that the motion should be heard at the same time as the trial because a prior determination of this issue will not substantially shorten the trial. In addition, the loser on the motion will almost certainly appeal to the Court of Appeal.
Analysis
[10] I agree with counsel that if liability, causation and damages remain in issue, the trial of this action cannot be completed in 4 weeks; a more accurate assessment of the necessary trial time is 8 weeks, perhaps as much as 10 weeks. Thus, the September 2019 trial date is unrealistic, even if the Rule 21 motion were not proceeding.
[11] The motion that has been served by the Defendant is a Rule 21 motion. Motions brought under this rule provide for a determination of a question of law raised by a pleading where such a determination would dispose of all or part of the action, or substantially shorten the trial. Rule 21 motions may also be used to strike out a pleading on the ground that it discloses no reasonable cause of action. The rule provides that no evidence is admissible on the motion without leave of a judge or on consent of the parties.
[12] While counsel for the Plaintiffs submits that it would be unfair to the Plaintiffs to “attempt a quick disposition of the matter in the absence of a full evidentiary record”, I cannot accept this submission. The essence of a Rule 21 motion is that it can be determined on the pleadings only because it is plain and obvious the claim cannot succeed. The purpose of Rule 21 motions is to strike out claims that have no chance of success based on the pleadings; the threshold is necessarily high.
[13] In my view, generally, Rule 21 motions should be heard at the earliest date. Depending on the nature of the case, such a motion could be brought immediately after pleadings. Other cases might require examinations for discovery to be held. In the instant case, the motion has been discussed between counsel and it is no surprise to the Plaintiffs that the defence takes the position that the infants have no valid claim at law.
[14] The Plaintiffs argue there is no benefit to either party having the motion heard in advance of trial; I do not agree. The Defendant is entitled to know the case it has to meet at trial. The Plaintiffs need to know what sort of evidence to marshal on the various claims for trial. The validity of the infants’ claim is a question of law and one that is amenable to a determination prior to trial. The motion was served in early December. Given that it is a long motion, counsel will not be able to secure a date before the time that has been set aside for the trial in September. Furthermore, the four weeks that has been set aside for the trial is not sufficient, even without the issue of the claims of the triplets. The September 2019 trial date was set on the basis that damages would be settled, which has not transpired. I am of the view that the Rule 21 motion should be heard as a preliminary matter, prior to the trial, and ought to be heard by the trial judge, who at a later date would hear the trial on the remaining issues.
[15] I direct counsel to confer and find several dates that are agreeable for the hearing of this motion in October of 2019 and to advise me. I have contacted the trial coordinator and confirmed that the trial of this action, for a period of 8-10 weeks can be heard commencing March 1, 2021. That is an unfortunate reality in Toronto but it affords the losing party the opportunity to have any appeal heard prior to the trial, if that is the desire. Counsel are to advise immediately if the trial can be fixed for March 2021.
[16] I continue to be available to counsel to assist with this matter and will convene a further case conference if so advised. If a timetable is necessary for the delivery of further materials on the motion, I may be contacted.
D. A. Wilson J. Date: July 10, 2019