Court File and Parties
COURT FILE NO.: CV-11-424715 DATE: 20191125
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SOPHIA KENESHIA HEMMINGS, by her Litigation Guardian, Rosalie Brown, ROSALIE BROWN, personally, SAMANTHA CAMILE GAYLE, MOSES HEMMINGS, minor by his Litigation Guardian, Rosalie Brown, and SAMANTHA HEMMINGS, Plaintiffs
AND:
CAROL YUEN-MAN PENG, SHARON ROSE O’BRIEN, NINA ELIZABETH NALINI VENKATARANGAM, RITIKA GOEL, NEIL THOMAS JAMENSKY, ANDRES BARTOLOME UMOQUIT, JENNIFER LAIE-YEE TSANG, LLOYD GREGORY PADMORE, STEPHANIE SLADDEN, NORA DJIZMEDJIAN, YOUYI JIAN and THE SCARBOROUGH HOSPITAL, Defendants
BEFORE: SANFILIPPO J.
COUNSEL: Amani Oakley and Neil Oakley, lawyers for the Plaintiffs
Sarit Batner and Dorothy E. Charach, lawyers for the Defendants, Carol Yuen-Man Peng, Sharon Rose O’Brien, Nina Elizabeth Nalini Venkatarangam, Ritika Goel, Neil Thomas Jamensky, Andres Bartolome Umoquit, Jennifer Laie-Yee Tsang and Lloyd Gregory Padmore
Daniel Girlando and Chloe Richardson, lawyer for the Defendant, The Scarborough Hospital
Action discontinued against Stephanie Sladden, Nora Djizmedjian and Youyi Jian
HEARD: November 21, 2019
ENDORSEMENT
[1] In the second case management endorsement in this action, issued on September 3, 2019 (the “2nd CM Endorsement”), I implemented a timetable for the development of this action for trial commencing April 13, 2020 and then continuing for four weeks. I also scheduled the third case management conference to be held on January 10, 2020.
[2] The Plaintiffs requested that a case management conference be scheduled on an urgent basis, following the procedure set out in paragraphs 9 and 10 of the 2nd CM Endorsement. The Defendants did not agree that an urgent case management conference was required but collaborated in the scheduling of the urgent case management conference, which was conducted on November 21, 2020 (the “3rd CM Conference”).
[3] The subject for discussion at the 3rd CM Conference was the timetable that I implemented in paragraph 7 of the 2nd CM Endorsement which, for ease of reference, provided as follows:
“On assessment of these issues, I order that the parties adhere to the following timetable:
(a) On consent, the plaintiffs shall serve any expert reports on the issues of future care (occupational therapist) and housing by October 31, 2019;
(b) The plaintiffs shall serve any expert reports on the issue of loss of income, liability (both in relation to the physician defendants and the hospital), and any other expert reports that they may choose to deliver in support of their case, by November 20, 2019;
(c) The defendants shall serve any responding reports by February 21, 2020;
(d) The plaintiffs shall serve any reply reports by March 20, 2020;
(e) A pre-trial conference in this action shall be organized and then conducted between March 20, 2020 and April 8, 2020.”
[4] The Plaintiffs reported that they had complied with the deadline set out in paragraph 7(a) of the 2nd CM Endorsement by serving their expert reports on the issues of future care and housing by October 31, 2019. The Plaintiffs stated that they delivered an occupational therapist report, an accessibility report, a speech language pathologist report, a future cost of care report and a past cost of care report. The Defendants agreed that these reports have been delivered, compliant with the timetable requirement in paragraph 7(a).
[5] The Plaintiffs submitted that they had two complications that jeopardized their ability to proceed with the trial in this action on April 13, 2020: first, they discovered that they have a conflicting trial commitment that could overlap with the April 13, 2020 trial date in this action, and; second, they were not able to comply with the timetable requirement in paragraph 7(b) of the 2nd CM Endorsement to serve any expert reports on the issue of income and liability, and any remaining expert reports that they seek to deliver, by November 20, 2019. In fact, apart from the expert report authored by obstetrician Dr. Nicholas Braithwaite delivered prior to the implementation of the timetable set out in the 2nd CM Endorsement, the Plaintiffs did not deliver any expert reports on these issues by their November 20, 2019 deadline. The Plaintiffs submitted that they have a continued intention to deliver the following reports: a future loss of income report; a liability report in relation to certain other Physician Defendants, and; a liability report in relation to the Scarborough Hospital.
[6] The Plaintiffs initially inquired regarding an adjournment of the trial date to accommodate their requirements but did not request that the trial date be vacated when notified that the next available trial date for a trial of four weeks or more is January 30, 2022. The Plaintiffs instead requested an extension to the timetable deadline set out in paragraph 7(b) of the 2nd CM Endorsement.
[7] The Defendants objected to any modification to the timetable implemented in the 2nd CM Endorsement, stating that the Plaintiffs should be barred from delivery of any of the expert reports provided for by paragraph 7(b) by reason of their default in breaching the timetable that I had ordered be implemented. The Defendants submitted that they would be prejudiced if the Plaintiffs were granted an extension of time on their deadline for delivery of reports and thereby reduced the amount of time available to the Defendants to reply. The Plaintiffs argued that the trial date must be preserved, and that the timetable implemented in paragraph 7 of the 2nd CM Endorsement could be varied by granting an extension of time to the Plaintiffs to provide them with additional time to deliver the expert reports that they were ordered to deliver by November 20, 2019 without impacting the amount of time provided for in the timetable for the Defendants to deliver their reply reports.
[8] Without in any manner condoning the Plaintiffs’ breach of the timetable implemented in the 2nd CM Endorsement, I determined that the timetable has enough flexibility to allow the Plaintiffs an extension of time to deliver those expert reports set out in paragraph 7(b) without reducing the time provided to the Defendants for delivery of their responding reports. This would result in reducing the time for the Plaintiffs’ delivery of reply reports (paragraph 7(d) of the 2nd CM Endorsement) and by reducing the time between the delivery by the Plaintiffs of their reply reports and the final pre-trial conference.
[9] The Defendants opposed any variations to the timetable, even a variation that afforded the Defendants the same amount of time to respond as in the initial timetable, submitting that the timetable amendments sought by the Plaintiffs were tantamount to an admission by the Plaintiffs that they could not prepare this action for trial on April 13, 2020. I do not accept the Defendants’ submission and grant the extension sought by the Plaintiffs and ordered the variation of the timetable. I do so on my determination that it is the most efficient way to seek a just and fair determination of the issues pleaded in this action on their merits. However, the Plaintiffs are on notice that if they breach the timetable that I will vary to provide them with an extension of time while preserving the existing trial date, the Defendants will have an opportunity to renew their request that the trial date be vacated and that a schedule be implemented for motions that they seek to advance for dismissal for delay or, alternatively, for summary judgment.
[10] I thereby order that the timetable set out in paragraph 7 of the 2nd CM Endorsement shall be varied as follows:
(a) Unchanged.
(b) The plaintiffs shall serve any expert reports on the issue of loss of income, liability (both in relation to the physician defendants and the hospital), and any other expert reports that they may choose to deliver in support of their case, by December 12, 2019 at 4:00 pm, as varied from November 20, 2019;
(c) The defendants shall serve any responding reports by March 12, 2020, as varied from February 21, 2020;
(d) The plaintiffs shall serve any reply reports by March 27, 2020, as varied from March 20, 2020;
(e) A pre-trial conference in this action shall be organized and then conducted between April 1, 2020 to April 8, 2020, as varied from between March 20, 2020 and April 8, 2020.
[11] The parties shall adhere to this timetable, failing which I will hear submissions at the next case management conference concerning whether the April 13, 2020 trial date ought to be vacated by reason of this action being not ready for trial and, if the trial date is vacated, on the scheduling of motions that the parties may seek to advance in the context of a later, rescheduled trial date.
[12] I notify the parties, in accordance with Rule 50.13(6), that orders may be made at the next case management conference that affect the trial date in this action and the scheduling of motions. In the event of breach of the timetable implemented through the 2nd CM Endorsement and varied by this case management endorsement, the parties shall be prepared to make submissions on these issues.
[13] As set out in paragraph 8 of the 2nd CM Endorsement, the next case management conference shall be conducted, in person, on January 10, 2020 at 4:00 pm, being a date convenient to all counsel and available to the Court.
[14] The requirement of preparation, issuance and entry of a formal order is hereby dispensed with in accordance with Rule 77.07(6).
Sanfilippo J.
Date: November 25, 2019