Court File and Parties

Court File No.: 13-58490 Date: 2019-07-23 Ontario Superior Court of Justice

Between: FRANK PAPINEAU, Plaintiff – and – DR. PABLO ROMERO-SIERRA and DR. JOHNNY BRISEBOIS, Defendants

Counsel: Jamie M. Noel/Mikolaj T. Grodzki/Michael Switzer, for the Plaintiff Phuong T.V. Ngo/Glenn Harvey-McKean/Corey Willard, for the Defendants

Heard: May 17, 2019

Reasons for Decision Beaudoin J.

[1] The defendants seek: a) their costs thrown away on a substantial indemnity basis for the late adjournment of the trial of this action, b) an order suspending pre-judgment interest from the original trial date of November 26, 2018, until such time as the trial actually commences, and, c) an order for costs of this motion.

Background

2The plaintiff commenced this action on August 3, 2013. He alleges that the defendants failed to diagnose that he had Lyme disease. The defendants maintain that they met the standard of care in their treatment of the plaintiff. They dispute the diagnosis of Lyme’s disease and allege that the plaintiff’s health problems are caused by pre-existing conditions.

3A chronology of this action is set out in the affidavit of Glen Harvey-McKean, counsel for the defendants.

4On November 24, 2017, Master Fortier scheduled this matter for trial commencing November 26, 2018, for four weeks before a judge alone.

5On September 28, 2018, a pre-trial conference was convened before Justice Minnema. The plaintiff’s non-compliance with undertakings, along with pre-trial evidentiary and substantive matters, were discussed. Justice Minnema ordered the plaintiff to provide authorizations and directions to the defendants permitting the defendants to obtain documents that were the subject of undertakings.

6Plaintiff’s counsel, Jamie Noel and Mikolaj Grodzki, advised Justice Minnema that they intended to call 15 witnesses at trial; the defendants anticipated calling six witnesses. The parties confirmed that four weeks was an appropriate estimate for the duration of the trial.

7Justice Minnema ordered the plaintiff to provide a witness statement or summary of the evidence for each witness (except for experts) by October 31, 2018. He also ordered that, “each party shall advise of additional witnesses by October 15, 2018”. The plaintiff was to provide “will say” statements by October 31, 2018, for his additional witnesses, if any.

8On October 15, 2018, Ms. Noel sent a letter to counsel for the defendants providing a list of the plaintiff’s witnesses. That list includes 11 new witnesses and excludes two witnesses on the plaintiff’s original list of witnesses. On the same day, Ms. Noel sent an e-mail adding another witness. Two more witnesses were added on October 23, 2018. In total, the plaintiff proposed to call 27 witnesses (15 + 11 - 2 + 1 + 2).

[9] In response to inquiries from counsel for the defendants, on October 30, 2018, Mr. Grodzki provided some information about the witnesses the plaintiff intends to call at trial:

• With respect to five witnesses, the defendants were told to look to their reports;
• With respect to two doctors, the defendants were told to look at their charts;
• The plaintiff could not provide “will say” statements for five new doctors identified as witnesses;
• Limited “Will say” statements were provided for twelve witnesses; and
• Other new witnesses are mentioned, including unidentified emergency room physicians and an unidentified Ottawa Hospital Records Officer.

10The information provided by Mr. Grodzki generated further inquiries from counsel for the defendants. On November 1, 2018, counsel for the defendants requested proper “will say” statements for 10 witnesses. Pending the receipt of proper “will say” statements, counsel for the defendants advised that the defendants intended to object to the calling of and/or the admissibility of the evidence of nine witnesses. None of these nine witnesses were identified by the plaintiff at the pre-trial conference.

11On the same date, defendants’ counsel wrote to the Trial Coordinator with concerns regarding the increase in the number of the plaintiff’s witnesses to 27 and the impact that increase would have on the length of the trial. Ms. Ngo also expected that multiple motions would be required at the outset of trial. Ms. Ngo’s letter was copied to plaintiff’s counsel. A trial management conference was requested to address the issues raised by Ms. Ngo and to ensure that the trial would be conducted in an efficient manner.

12On November 5, 2018, Ms. Noel sent a letter to the Trial Coordinator indicating that there would be 22 witnesses called for the plaintiff. This letter was not copied to defendants’ counsel; they learned of its existence on November 21, 2018 (at the trial management conference).

13On November 8, 2018, Mr. Switzer wrote to Mr. Harvey-McKean. Mr. Switzer asked that Mr. Harvey-McKean review an audio recording of September 13, 2012, and compare it to a transcription that Mr. Switzer had provided. Mr. Switzer said the review was necessary to avoid a “verification exercise during the course of the trial”.

14Mr. Switzer did not provide the “will say” statements that had been requested earlier, but gave contact information for the witnesses in issue. He also indicated that a Dr. Angel and the Ottawa Hospital Records Officer had been summonsed. Mr. Switzer added: “We do not yet know what their evidence will be and do not expect to know it before they reveal it at trial”.

15In his November 8 letter, Mr. Switzer noted that the trial was two and a half weeks away. He reported that Ms. Noel was scheduled to undergo surgery and that he “will be out of the office until the commencement of the trial preparing for other matters and attending examinations for discovery, including eight days out of town”. He asked that any trial management conference be put over to the morning of the trial.

16Mr. Harvey-McKean responded by letter dated November 16, 2018. He advised that the defendants object to the transcript of the recording being admitted as evidence and to the plaintiff calling nine of the witnesses identified. Mr. Harvey-McKean noted that proper “will say” statements had not been provided for a number of the witnesses.

17Mr. Harvey-McKean sought confirmation that the plaintiff would not be calling Dr. Maureen McShane in any capacity and that the plaintiff would not be seeking to tender any of Dr. McShane’s records at trial. He gave notice that the defendants would object to the admissibility of Dr. McShane’s records. Mr Harvey-McKean added that the defendants would object to Dr. McShane giving evidence in relation to the standard of care and/or causation, as she is not properly qualified to do so.

18Mr. Switzer replied on November 19, 2018, taking note of the defendants’ positions and information contained in Mr. Harvey-McKean’s letter. He asked for clarification of the issues to be raised at the upcoming trial management conference. Mr. Switzer indicated that the only issue he intended to raise was the integrity of IGeneX Inc. testing. Mr. Switzer advised that if the defendants disputed the integrity of the testing, then the plaintiff will be forced to call witnesses from California and possibly from the Centres for Disease Control and Prevention (Georgia, USA) to give evidence with respect to testing protocols.

19Mr. Switzer concluded his letter by stating that he thought he had made it clear that he was not available to attend a trial management conference due to his schedule. He wrote: “I note you were contacted by the court with respect to scheduling of same, that you omitted to advise the court of same, despite my request that you do so. I trust that this brief (sic) of professionalism will not be repeated”.

20During this time, and at my direction, the Trial Coordinator requested that the parties provide their availability for a trial management conference before me. Defence counsel provided their availability on five different dates. Mr Grodzki responded on November 18, 2018 (eight days prior to the date on which the trial was scheduled to commence): “I’m not available at all right now. Have a mediation and two days of discoveries booked”. He proposed to deal with the concerns expressed by defendants’ counsel at the outset of trial, as proposed Mr. Switzer had proposed in his November 8, 2018 letter.

21Through the Trial Coordinator, I advised counsel that leaving the matters raised by defendants’ counsel to the outset of trial was not acceptable. I ordered the parties to attend a trial management court before me on November 21, 2018 at 2:00 p.m.

22On November 20, 2018, at 1:25 pm. Mr. Switzer emailed defendants’ counsel with an updated list of witnesses anticipated to be called on behalf of the plaintiff. The email included a preliminary schedule for the trial. Mr. Switzer expressed confidence that, even with 23 witnesses to be called on behalf of the plaintiff, the case could be completed within the four weeks for which the trial was scheduled. The 23 witnesses included two new witnesses, identified for the first time, in the November 20 email.

The Trial Management Conference

[23] Mr. Switzer and Mr. Grodzki attended the trial management conference on November 21, 2018. As of that date, I had:

• Ms. Noel’s letter of November 5, 2018, indicating that 22 witnesses would be called by the plaintiff.
• I had Ms. Ngo’s letter indicating that multiple motions would be required at the outset of trial and that she had been advised that 26 witnesses would be called by the plaintiff.
• A chart of the plaintiff’s evolving witness list; it had changed seven times since the date of the pre-trial conference; and
• A copy of Mr. Switzer’s letter providing contact information for witnesses, instead of “will say” statements.
• Justice Minnema’s Pre-trial Conference Report.

24I noted the failure, on the part of plaintiff’s counsel, to provide proper “will say” statements for many of the witnesses to be called by the plaintiff. Five revised witness lists had been provided after the October 15, 2018 deadline date set by Justice Minnema. At the trial management conference, Mr. Switzer volunteered to limit his witness list to 15 witnesses. He did not specify which witnesses would be called at trial.

25Mr. Switzer advised that the plaintiff’s main expert witness, Dr. Maureen McShane, would not be attending the trial. Mr. Switzer proposed that her evidence be provided by filing her report. He failed to appreciate that the report would not be admissible in evidence.

26Eight new witnesses had been identified since the date of the pre-trial conference, including an Ontario judge, the nature of whose evidence was unknown. The trial was five days away.

27Only four weeks had been scheduled and were available because the four weeks ended at the holiday break. I concluded that the trial could not be completed within four weeks because the plaintiff now intended to call 22 witnesses and a number of motions would be brought at the outset of trial.

28At the trial management conference, I offered the parties the possibility of a bifurcated trial to first deal with the issue of liability only. I scheduled a second trial management conference for November 28, 2018.

29On November 28, 2018, I was informed that bifurcation was not viable because of the link between the medical evidence with respect to both liability and damages. I provided the parties with a draft civil trial readiness form to be completed for case management purposes. I directed the parties to complete the form and to return for a third trial management conference with the completed form, so that a more accurate estimate of trial time could be made.

30Although judicial resources were in limited supply because of criminal matters and the family law sittings, a judge and a court room were available for a civil trial on November 26, 2019. Courtrooms and judicial resources are always limited, and cases that are in fact “ready” are given priority. I therefore determined that the trial would be adjourned.

31Contrary to Mr. Switzer’s assertion in his responding affidavit (filed for the purpose of addressing costs of the trial thrown away, as requested by the defendants), at the trial management conference, there was neither a discussion nor any decision with respect to costs thrown away.

32Upon learning that the trial was adjourned, Mr. Switzer advised that the plaintiff intended to use the adjournment to further develop his case and that the plaintiff may be presenting a claim for future care costs.

33On December 7, 2018, Mr. Switzer sent an email to the defendants’ counsel attaching a partially completed Trial Readiness From. Two new expert witnesses were identified for the first time.

34Eventually, the matter was referred to trial management court on February 13, 2019 before Justice MacLeod. On the consent of all parties, Justice MacLeod set a trial date commencing October 4, 2021, for six weeks. Justice MacLeod referred the issue of costs thrown away to me.

35In response to the defendants’ motion for costs thrown away, Mr. Switzer points out that, when the parties appeared before Justice Minnema, the total number of witnesses for all parties was 20. He estimates that the total time required for the witnesses was 33 days, not including pre-trial motions, opening statements, mid-trial motions, closing arguments and other typical trial events; the latter would have added an estimated three to four trial days. He submits that the original trial estimate was understated; this submission is contradicted by his own November 20, 2018, letter to counsel. In that letter, Mr. Switzer estimates that 29 witnesses could complete their testimony in 20 days of trial.

36In his affidavit, Mr. Switzer maintains that the expanded witness list is merely a list of potential witnesses. He repeats that he believed the trial could be completed within four weeks. While Mr. Switzer deposed in his affidavit that strategies were being applied to reduce the number of witnesses, including the use of a request to admit and the preparation of an agreed statement of fact, there was no request to admit attached as an exhibit to his affidavit. None of the correspondence produced to me supports Mr. Switzer’s contention that he had discussed an agreed statements of fact with defendants’ counsel.

37On behalf of the plaintiff, Mr. Grodzki argues that a great deal of time had been spent by plaintiff’s counsel preparing for the trial. There is, however, no evidence of trial preparation set out in the Switzer affidavit other than as described immediately above.

38There is no evidence before me that the plaintiff was ready to proceed and that all of the necessary witnesses had been summonsed. The only evidence before me is that Mr. Grodzki and Mr. Switzer were too busy with other matters to attend a trial management conference when first requested to do so.

[39] On the return of the defendants’ motion for costs thrown away, I queried Mr. Grodzki as to why the witness list had expanded to now include an Ontario judge and others. He advised that: a) the case had attracted a lot of media attention; and b) that many of the new witnesses are individuals who had contracted Lyme disease and want to testify.

40None of the individuals who had contracted Lyme disease received treatment from either of the defendants. Mr. Grodzki was unable to explain how the evidence of these individuals could be admissible or was relevant to the issues to be determined at trial.

The Issues

1. Are the defendants entitled to costs thrown away? If so, in what amount?
2. Should pre-judgment interest be suspended?

Issue No. 1: Costs

Position of the Defendants

41The defendants submit that it is not necessary for the court to identify fault in determining whether costs thrown away should be awarded. Even where there is no fault, it is appropriate to award costs thrown away against a party who is responsible for an adjournment. The defendants argue that the adjournment of the trial was due to the conduct of plaintiff’s counsel—who advised 20 days before the trial date that the number of witnesses the plaintiff intended to call at trial had now increased from 15 to 22.

42The defendants request their costs thrown away on a full indemnity basis, for trial preparation carried out prior to the last minute adjournment.

43The defendants delivered a detailed the Bill of Costs. Their actual trial preparation costs, in fees, disbursements, and HST are $235,482.02.

44The defendants submit that the fees reflect the hours spent by their counsel for the intense trial preparation from October 1, to November 21, 2018. The Bill of Costs excludes time docketed by articling students and law clerks. The fees are for work that includes conference calls with witnesses and opposing counsel, preparation of books of documents and books of authorities, meetings with witnesses, attending to “will say” statements, and reviewing and responding to admissions and productions. The defendants submit that all of the work reflected in the Bill of Costs will have to be redone.

45The defendants submit that the plaintiff’s witness list changed almost daily in the weeks preceding the date on which the trial was scheduled to commence. New witnesses were added and/or removed on a regular basis. The defendants argue that plaintiff’s counsel have stated their intention to continue to develop the plaintiff’s case and seek leave to add a claim for damages under a new heading (cost of future care). Defendants’ counsel anticipates that the list of the plaintiff’s witnesses will change yet again, there will be additional documentary discovery, additional experts’ reports will be required, and quite possibly, the oral discovery process will have to be continued.

46The defendants refer to new experts identified by the plaintiff. The defendants submit that the theory of the case may change and additional or new experts’ reports may be required to respond to the plaintiff’s case as it is further developed. At a minimum, existing experts’ reports served on behalf of the defendants will have to be updated for the trial now scheduled to commence in the fall of 2021.

47The defendants submit that the their actual costs incurred should be subject to a minimal reduction given that most, if not all, of the work will have to be repeated in preparation for the October 2021 trial.

Plaintiff’s Position

48Plaintiff’s counsel maintain that they never represented that all 27 witnesses would be called, the names listed were identified as potential witnesses only. Plaintiff’s counsel acknowledge that they sent a letter to the court on November 5, 2018 identifying 22 potential witnesses would be in attendance at trial. They submit however, that this letter did not include an undertaking to call all of these individuals as witnesses at trial.

49The plaintiff notes that no party requested an adjournment of the trial and that all parties wanted to proceed with the trial. The plaintiff submits that the trial was adjourned without any opportunity for the parties to make submissions and in the absence of sworn evidence. The plaintiff submits that: a) the Court advised that no courtroom was available to start a trial, and b) the plaintiff’s offer to limit his case to 15 witnesses was not accepted due to the lack of judicial resources.

50The plaintiff submits that his counsel were denied a meaningful opportunity to be heard with respect to the adjournment of the trial. He argues that he did not receive adequate or proper notice of the potential for the trial to be adjourned. The plaintiff submits that the true reason for the adjournment of trial was insufficient or reallocation of judicial resources.

51The plaintiff further submits that the defendants previously requested their costs thrown away at the trial management conference, which request was dismissed. The Plaintiff submits that if costs thrown away are ordered thrown away, costs should be discounted by 60% from the reasonable costs identified.

The Legal Framework

52The Superior Court of Justice has inherent jurisdiction to control its own processes. This is reflected in r. 52.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that a judge may postpone or adjourn a trial to such time and place, and on such terms, as are just.

53At para 48 of its decision in Martin v. Sansome, 2014 ONCA 14, 118 O.R. (3d) 522, the Court of Appeal held: “The decision of a trial judge to grant or refuse an adjournment is highly discretionary.”

54In Caldwell v. Caldwell, 2015 ONSC 7715, 70 R.F.L. (7th) 397, Justice Quinlan dealt with the issue of costs thrown away when a trial is adjourned. She said at paras. 7 to 10:

Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides considerable judicial discretion on the issue of fixing costs. …

The phrase “costs thrown away” refers to a party’s costs for trial preparation which have been wasted and will have to be re-done as a result of the adjournment of the trial.

There are three general categories of cases in “costs thrown away” decisions:

i. the first category deals with fault where, for example, one of the parties or their counsel neglect to call a witness or a last-minute amendment is required. The court will grant the adjournment on conditions, including the payment of costs thrown away; ii. the second category is where the trial is adjourned because of the court’s scheduling problems. No costs are awarded in this circumstance as no party bears responsibility for the adjournment; and iii. the third category deals with adjournments sought by one of the parties as a result of no fault on their part. Costs thrown away are still awarded against the party applying for the adjournment, notwithstanding lack of fault: (internal citations omitted)

The court noted in Goddard, at para. 20:

The third category… is really one of responsibility for the adjournment as opposed to fault or lack of fault… situations where someone is responsible for an adjournment, but cannot be faulted for that responsibility… [B]eing responsible for an adjournment…carries with it a costs consequence.

Analysis

55Dates for trials in excess of three weeks are not readily available in this court. It is not unusual for parties to wait three years for a mutually acceptable trial date. The court must rely on counsel’s estimate of time when assigning trial dates. Counsel are expected to know how the case will unfold. Trial scheduling is dependent on trials being completed within the allocated time.

56In Ottawa, case management is readily available; timetable orders are put into place to ensure that a matter will be ready for trial when listed. In this case, timetable orders were put in place by Master Fortier on November 24, 2017.

57The parties attended at a pre-trial conference before Justice Minnema on September 28, 2018. Counsel identified the witnesses to be called and provided estimates of time for their evidence. They confirmed that the trial could be completed in four weeks.

58Counsel signed the certificates acknowledging that they understood both the contents of their respective pre-trial conference briefs and their respective obligations to be ready to proceed on the date fixed for trial. Counsel also undertook to advise their respective clients of the contents of the Pre-Trial Conference Report, including the obligation to be ready to proceed on the date fixed for trial.

59Justice Minnema made timetable orders with respect to the production of witness statements and the updating of witness lists. Justice Minnema also ordered the plaintiff to provide authorizations and directions permitting the defendants to obtain information/documents.

60Mr. Switzer makes much of the fact that the original estimate of trial time was not realistic and that 33 days would have been required to complete the trial. However, in his November 20 letter, Mr. Switzer expressed confidence that he could call 23 witnesses in 16.5 days. The parties now agree that the rescheduled trial will require six weeks because of changes to the plaintiff’s witness list.

61The court attempted to arrange a trial management conference as soon as problems were identified to give plaintiff’s counsel an opportunity to respond to the court’s concerns. Plaintiff’s counsel indicated that they would not be available until the outset of trial as they were too busy on other matters. They were given an opportunity to present their position to the court in a timely way; they chose to ignore that opportunity.

62By the time a trial management conference was conducted on November 21, I no longer had confidence that the trial could be completed in four weeks. As the Administrative Judge for civil matters, I exercised my discretion to adjourn the trial. Only four weeks were available; there was no room for error.

63I find that the responsibility for the adjournment lies with the plaintiff and his counsel.

64The timetable orders made by Justice Minnema were not followed. The defendants have the right to know the case they have to meet. The Court is entitled to a properly prepared trial that will be completed in the time allocated. Given the ever-changing witness list and the addition of new witnesses whose evidence was unknown, the plaintiff’s case appeared to be a work in progress.

65I conclude that the defendants are entitled to costs thrown away.

66As Justice Quinlan added in Caldwell at paras. 12 and 13:

The court must determine what costs have actually been wasted. This is not an easy task: some witnesses will require little further preparation while some will require much. It has been described as an “intuitive”, rather than a scientific, process.

An award of costs thrown away can be revisited at the end of the trial to determine if further costs should be awarded.

[67] The defendants prepared a detailed Bill of Costs. The total fees and disbursements including HST for three counsel are set as follows:

• Partial indemnity amount: $166,520.58;
• Substantial Indemnity amount: $216,976.40; and
• Full indemnity amount: $235,484.02.

68The disbursements total $50,425.87. Of that amount, invoices for expert reports and trial preparation of experts represent $44,175.01. Approximately one-third of these expert costs for the experts’ time in reviewing Dr. McShane’s reports. Dr. McShane may no longer be called as a witness at trial.

69Plaintiff’s counsel submit that they invested as much time in preparation for the trial as did defendants’ counsel. Yet the plaintiff did not deliver a Bill of Costs.

70This case has attracted a lot of notoriety and is being followed by the media. It features complex and novel issues of fact involving the diagnosis of a relatively new disease. The issues were of importance to the parties and to the public.

71The defendants incurred increased costs in responding to the continual changes to the plaintiff’s case. New witnesses and evidentiary issues were being identified on the very eve of trial.

72In his statement of claim the plaintiff seeks general damages of $350,000 and an unknown amount for special damages. In the absence of a claim for damages that is fully particularized, it is difficult to apply the principle of proportionality with respect to the defendants’ claim for costs.

73I do not dispute the accuracy of the defendants’ Bill of Costs. It is unknown how much the plaintiff’s claim will change between now and the time of trial. I am mindful that any present order of costs thrown away can be revisited at the end of trial.

74I have not received any information with respect to the plaintiff’s personal circumstances. It is reasonable to assume that a costs order in the magnitude requested by the defendants could seriously prejudice his ability to pursue his claim.

75I find that the defendants’ are entitled to their costs thrown away on a partial indemnity basis. I discount the total of the costs claimed by 40 per cent because, as of this date, the defence on the issue of liability remains unchanged. I fix the defendants’ costs thrown away in the amount $100,000.00. These costs are payable in any event of the cause.

76The total amount of costs to be thrown way to be paid by the plaintiff can be revisited, and increased, after trial, when the trial judge will have a clearer picture of the expert witnesses called and the total amount of time that was wasted as a result of this adjournment.

Issue No. 2 – Suspension of Pre-Judgment interest

77The defendants ask that the court make an order suspending the accrual of pre-judgment interest. They note that the adjournment is three years in duration (from November 2018 to October 2021). The defendants argue that they have been and will continue to suffer irreparable prejudice due to the delay, and that they have been frustrated in their ability to defend this action on its merits.

78The plaintiff maintains the he is not solely responsible for the adjournment of the trial. He submits that the defendants bear some responsibility for not properly estimating the length of trial when the parties were before Justice Minnema. The plaintiff submits that pre-judgment interest should continue to accrue in accordance with the Courts of Justice Act.

79The defendants do not bear any responsibility for the trial adjournment. They were ready for trial. The rescheduled trial will not take place for another three years. I am satisfied that the defendants will continue to suffer prejudice if pre-judgment interest is not suspended until the date of trial.

80I find in favour of the defendants and suspend the accrual of pre-judgment interest from November 26, 2018, until as the date on which the trial actually commence.

Costs of this Motion

81The defendants were successful on both aspects of their motion (costs thrown away and the suspension of pre-judgment interest). I order the plaintiff to pay the defendants their costs of this motion, which I fix in the amount of $7,500 (inclusive of fees, disbursements, and applicable HST), payable forthwith.