Court File and Parties
COURT FILE NO.: CV-16-00545282 MOTION HEARD: 20200106 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Manju Gupta, Plaintiff AND: Dr. Mary Chacko, Dr. N.E. Venka, Dr. Catherine Owen, Dr. Nina Venkatarangam, Dr. Peter Mark, Dr. Shawn J. Soon, Dr. Muhseen Mohamed Yusuf, the Scarborough Hospital, Nurse Gyda Talavera, Nurse Narmin Malik-Abbasova, and Nurse Mary Alcance, Defendants
BEFORE: Master B. McAfee
COUNSEL: Davies Bagambiire, Counsel for the Moving Party, the Plaintiff Dorothy Charach and Natalie Kolos, Counsel for the Responding Parties, the Defendants Dr. Mary Chacko, Dr. N.E. Venka, Dr. Catherine Owen, Dr. Nina Venkatarangam, Dr. Peter Mark, Dr. Shawn J. Soon, and Dr. Muhseen Mohamed Yusuf Victoria Cistrone, Counsel for the Responding Parties, the Defendants, Scarborough Health Network (incorrectly identified as the Scarborough Hospital), Nurse Gyda Talavera, Nurse Narmin Malik-Abbasova, and Nurse Mary Alcance
HEARD: January 6, 2020
Reasons for Decision
[1] The plaintiff Manju Gupta (“the plaintiff”) moves for an order granting leave to amend the notice of action by deleting the names of three physicians as defendants, an order granting leave to extend the time to file a statement of claim, and an order extending the time within which to serve the amended notice of action and statement of claim.
[2] The defendants Dr. Mary Chacko, Dr. N.E. Venka, Dr. Catherine Owen, Dr. Nina Venkatarangam, Dr. Peter Mark, Dr. Shawn J. Soon, and Dr. Muhseen Mohamed Yusuf (collectively “the physician defendants”) and the defendants Scarborough Health Network (incorrectly identified as the Scarborough Hospital), Nurse Gyda Talavera, Nurse Narmin Malik-Abbasova, and Nurse Mary Alcance (collectively “the hospital defendants”) oppose the motion. In the event that the time to file a statement of claim and the time to serve an amended notice of action and statement of claim are extended, the physician defendants do not oppose the deletion of Dr. Chacko, Dr. Mark, and Dr. Yusuf, as defendants.
[3] The plaintiff came to Canada in 2011 as a non-permanent resident to be caregiver to her two sons Mohit Gupta, born February 1, 1991 and Prayagh Gupta, born November 19, 1995. The sons came to Canada as international students. The plaintiff’s spouse Ajay Gupta is the father of the two sons. He lives and works in Kenya. He financially supports the plaintiff and their sons and has paid for most of the plaintiff’s medical care and procedures.
[4] There is no issue that coverage pursuant to the Ontario Health Insurance Plan (OHIP) is not available to the plaintiff due to her status in Canada.
[5] In January of 2014, the plaintiff was hospitalized multiple times and required an urgent hysterectomy. On January 27, 2014, the hysterectomy was performed by Drs. Owen and Venka (gynecologists) (the January 2014 surgery). During the January 2014 surgery, one of the plaintiff’s ureters was severed. Dr. Soon (urologist) then performed a ureter repair, inserting a stent. The plaintiff was aware immediately after the January 2014 surgery that a complication had occurred, that Dr. Soon had inserted a stent and that the stent would have to be removed.
[6] Thereafter, according to the proposed statement of claim, the plaintiff attended for the stent removal on February 9, 2014, but the removal was not performed. On March 19, 2014, the plaintiff underwent a stent removal and pyelogram. Later it was revealed that the plaintiff had a complete left uretic obstruction. As a result, Dr. Soon attempted a cystoscopy, pyelogram, and left-j stent insertion. On June 18, 2014, Dr. Soon recommended a nephrostomy tube insertion. On August 20, 2014, Dr. Soon recommended a urinary diversion to protect the plaintiff’s left kidney. The urinary diversion was booked for October 1, 2014, but the plaintiff cancelled it in September 2014 (the cancelled surgery). The plaintiff declined both the nephrostomy tube insertion and the cancelled surgery because she had no money. On September 17, 2014, the plaintiff met with Dr. Soon and a discussion took place with respect to the cancelled surgery (the September 17, 2014 appointment). The plaintiff alleges that the defendants were negligent in their performance of the January 2014 surgery and in their post-operative care including their failure to perform the cancelled surgery despite the plaintiff’s lack of funds. The plaintiff alleges that the foregoing caused her left kidney to fail.
[7] In October of 2014, shortly after the cancelled surgery, the plaintiff saw Dr. Abramovitch (urologist). According to the plaintiff, in November of 2014, Dr. Abramovitch advised her that, in his view, Dr. Soon was negligent.
[8] On January 26, 2016, within 2 years of the January 2014 surgery, the notice of action was issued. No statement of claim was filed within 30 days or at all.
[9] In or about February 2016, approximately one month after issuing the notice of the action, the plaintiff expressly instructed her lawyer to stop working on her case and she made no contact with her lawyer for over 20 months.
[10] On December 15, 2017, the plaintiff instructed her lawyer to start working on her case again.
[11] On or about December 27, 2018, the hospital defendants first received notice of the claim by way of telephone call from plaintiff’s counsel to L. Zlotkowski, legal affairs coordinator at the hospital. On December 28, 2018, plaintiff’s counsel provided Ms. Zlotkowski with a copy of the notice of motion for the within motion.
[12] In or about January 2019, the physician defendants first received notice of the claim when they were served with a notice of motion for the within motion.
[13] The applicable Rules of Civil Procedure are as follows:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
3.02(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.
14.03(3) Where a notice of action is used, the plaintiff shall file a statement of claim (Form 14D) within thirty days after the notice of action is issued, and no statement of claim shall be filed thereafter except with the written consent of the defendant or with leave of the court obtained on notice to the defendant.
14.08(2) Where an action is commenced by a notice of action, the notice of action and the statement of claim shall be served together within six months after the notice of action is issued.
[14] In my view the plaintiff’s deliberate decision not to proceed with the action is determinative. One month after issuing the notice of action on January 26, 2016, the plaintiff expressly instructed her lawyer to put the case on hold and to not work on the case anymore. The plaintiff gave those instructions knowing that the claim had not been served and that her lawyer would not be working on the case. Approximately 20 months later, on December 15, 2017, the plaintiff instructed her lawyer to start working again. During those 20 months the plaintiff made no contact with her lawyer. In these circumstances, the plaintiff is unable to establish that she maintained an intention to pursue the claim at all material times.
[15] In Pagliuso v. Primerica Financial Services Ltd., 2019 ONSC 460 (Ont. S.C.J.) the plaintiff sought an order to extend the time to serve a statement of claim. Justice Gray held that where the delay lays at the feet of the plaintiff personally, rather than flowing from other reasons such as a lawyer’s inaction, the defendant need not show prejudice to succeed at resisting the motion. Justice Gray held that the test for such a motion is similar to the test on a motion to dismiss an action for delay under Rule 24. Justice Gray states as follows at paras 20 to 24:
20 I agree with counsel for Primerica that the cases relied on by the plaintiff are cases in which the delay cannot be laid at the feet of the plaintiff personally, but rather flow from inaction by the plaintiff’s counsel or for other reasons that do not rise directly from action or inaction on the part of the plaintiff personally. Those cases include Chiarelli v. Wiens (2000), 46 O.R. (3d) 780 (Ont. C.A.); Desjardins v. Mooney, [2001] O.J. No. 697 (Ont. S.C.J.); Heaps Estate v. Jesson, [2007] O.J. No. 1478 (Ont. S.C.J.); Kuner v. Nguyen, supra; and Lico v. Griffiths (1996), 28 O.R. (3d) 688 (Ont. Gen. Div.).
21 In this case, it is clear that the plaintiff made a deliberate decision to not serve the Statement of Claim. Accordingly, pursuant to the test set out in Armstrong v. McCall, supra, the default must be considered to be “intentional and contumelious”. That being the case, pursuant to the test applied there, the issue of prejudice would not be relevant. That was certainly the view of Quinn J. in Elltoft v. Mann, [2001] O.J. No. 1521 (Ont. S.C.J.), at para. 21, where he stated:
However, must prejudice always exist before rule 24 can be said to apply? Almost always; but not always. A lawsuit requires a demonstrable commitment on the part of a plaintiff to have the case tried. Granted, some actions do not progress at a fast or even a steady speed. Many move glacially. Others are marked by spurts of activity, incited, perhaps, by the urging from the plaintiff, interjections of money or the lawyer’s doleful acceptance that he or she cannot indefinitely continue to move the file from one flat surface to another. Generally, delay has either of two fathers: the client or the lawyer. Delay by the lawyer is frequently forgiven so as to not punish the client. Delay by the client requires closer scrutiny.
22 At para. 22, he stated:
Here, the plaintiff, effectively, has abdicated his role as plaintiff. He has chosen to sojourn rather than litigate. This cannot be countenanced by the court and I believe rule 24 is wide enough to encompass the situation. Consequently, for this reason, as well, the action must be dismissed. The conduct of the plaintiff is offensive to the administration of justice.
23 In other cases under Rule 24, the court has required the plaintiff to provide an explanation that any delay was not intentional: Berg v. Robbins (2009), 266 O.A.C. 200 (Ont. Div. Ct.); Nugent v. Crook (1969), 40 O.R. (2d) 110 (Ont. C.A.); and Purkis v. 736007 Ontario Ltd. (2001), 143 O.A.C. 344 (Ont. Div.Ct.).
24 I am prepared to dismiss this motion on the sole ground that the delay in serving the Statement of Claim was as a result of a personal decision made by the plaintiff, and was not the fault of his counsel or some other cause. In effect, the plaintiff took a risk that he would be successful on a motion of this sort. I do not think it is appropriate to allow the plaintiff to play fast and loose with the rules in this way.
[16] The plaintiff made a deliberate decision not to pursue her action for a period of 20 months. For this reason, the motion is dismissed.
[17] If I am wrong and the deliberate decision not to pursue her action is not determinative, I will proceed to consider whether the plaintiff has a reasonable explanation for the delay and whether the defendants will suffer prejudice or unfairness if the motion is granted (Bargain Club Inc. v. Co-Operators General Insurance Company, 2018 ONSC 3402 (Ont. S.C.J.) at paras. 12-14; Venneri v. TD General Insurance at paras. 52, 65-66, 72; Nugent, supra at para. 111; and Chiarelli, supra at para. 17).
[18] In her initial affidavit sworn January 9, 2019, the plaintiff states that the reason a statement of claim was not filed was a result of her lawyer being unable to locate an expert witness willing and able to give opinion evidence in support of her claim of negligence against the defendants.
[19] The plaintiff issued a notice of action before contacting an expert. Before she issued the notice of action, the plaintiff had been told by a treating physician that Dr. Soon was allegedly negligent. No urologist was contacted until 2018, despite a urologist being named in the notice of action. To underscore the lack of need for an expert opinion prior to serving the claim in the circumstances of this case, the plaintiff still does not have an expert opinion to support her claims against Dr. Venka, Dr. Owen, the nurses or the hospital but wishes to pursue the action against them.
[20] The plaintiff retained litigation consultant Sandra Perron on February 10, 2016, for the purpose of obtaining an expert opinion with respect to the standard of care and causation. Although Dr. George Vilos (gynaecologist) had responded to a letter from Ms. Perron dated March 9, 2016, advising that he was prepared to assist, Ms. Perron was subsequently told by the plaintiff’s lawyer, on March 30, 2016, to put the case on hold. Although the plaintiff did have a doctor who was willing to assist, the plaintiff put the case on hold.
[21] An expert opinion is not required before a claim filed and served in any event. In Tarsitano v. Drutz, 2013 ONSC 5605 (Ont. S.C.J.) at para. 29, Justice DiTomaso states as follows with respect to a reasonable explanation for the delay in service and moving promptly to seek an extension:
- In consideration of this factor, rule 14.08(1) requires service within 6 months after issuance of a Statement of Claim. The plaintiffs waited more than a year to serve Dr. Drutz which they did on May 5, 2010. There was not even an attempt to serve the Statement of Claim until after the six month deadline had expired. The plaintiffs’ counsel’s explanation for the failure to serve the Statement of Claim was that they were waiting to obtain a medical opinion as to the viability of their claim against Dr. Drutz. I do not accept this as a valid explanation. There was no reason to obtain an expert opinion before commencing a claim. Further, there is no need to wait to serve a claim until an expert opinion is obtained. It is interesting to note that the plaintiffs have not served an expert report in this action.
[22] Even if it is recognized in some medical malpractice cases that advice from a person who is medically trained is required to discover a claim (Lawless v. Anderson, 2011 ONCA 102 (Ont. C.A.) at para. 24) this is not a case where the plaintiff had been actively looking for an expert opinion to support her claim. As noted above, the plaintiff made a deliberate decision not to proceed with the claim for a period of 20 months. In addition, Ms. Perron, who had been retained to find an expert, was told on March 30, 2016, to stop working on the matter notwithstanding that she located a medically trained person to assist.
[23] In her supplementary affidavit sworn July 2, 2019, the plaintiff states that in or around February of 2016 she recalls instructing her lawyers to put the matter on hold due to the uncertainty that surrounded her immigration status. However, the plaintiff’s immigration status has been uncertain from the time she arrived in Canada in 2011 through to her cross-examination in September 2019.
[24] In the affidavit of Angelina Quashie, paralegal at the office of the plaintiff’s lawyer, sworn December 28, 2018, Ms. Quashie states that she was advised by the plaintiff’s lawyer that having failed to secure expert witnesses to support the plaintiff’s theory of the case, a decision was made not to file and serve a statement of claim as that would have attracted unnecessary costs and expenses when the case looked “bleak.” As previously noted, Ms. Perron had located a doctor who was willing to assist prior to being told not to work on the case further. The plaintiff had also been told by a treating physician that Dr. Soon was allegedly negligent.
[25] In her factum the plaintiff indicates that the statement of claim was not served and filed because the plaintiff was in excruciating pain from her complications and could not walk or care for herself, had suffered total renal failure and was despondent. I was not referred to the evidence in support of the assertion that the plaintiff’s condition prevented the plaintiff from proceeding with her claim for 20 months.
[26] In her factum the plaintiff also indicates that she had no money and her husband had no money for the law suit. It is the plaintiff’s evidence that her husband supported the plaintiff and their sons. I was not referred to any evidence that the plaintiff’s husband did not have money to proceed with the law suit. There is no evidence from the husband and no evidence of the husband’s financial circumstances that resulted in the husband having funds only as December 2017. There is no evidence of any financial arrangements between the plaintiff and her lawyer.
[27] I am not satisfied that the plaintiff has provided a reasonable explanation for the delay.
[28] Even if the plaintiff is not required to provide a reasonable explanation for the delay (Chiarelli, supra at paras. 12, 14, 17; and Rafeek v. Yao at para. 34), I am also not satisfied that the defendants will not suffer prejudice as a result of the delay nor am I satisfied that there would be no unfairness to the defendants.
[29] Over 4 years passed since the events in question before the defendants first had notice of the claim in or about December 2018 and January 2019.
[30] To the extent that the plaintiff relies on requests for clinical notes and records in January 2016 as notice of the claim, the request letters make no mention of a claim against the defendants. The request for clinical notes and records does not constitute notice in these circumstances (Tarsitano, supra at paras. 3-4).
[31] The defendants have lead evidence of prejudice. I am satisfied that the plaintiff’s delay has put the defendants’ ability to defend this action at risk.
[32] Dr. Soon’s evidence is that he has a vague recollection of the plaintiff’s appointments and the other various times he saw the plaintiff; however, as 5 years have now passed since he last saw the plaintiff, he does not recall specifics of any of their interactions.
[33] One of the main allegations against Dr. Soon relates to the September 17, 2014 appointment. Dr. Soon only has a “very vague” recollection of that appointment. Dr. Soon recalls that they had a conversation in which they tried to troubleshoot ways that the plaintiff might be able to have the cancelled surgery despite not having OHIP coverage. Dr. Soon has reviewed his letter to Dr. Venka dated September 17, 2014 following the appointment and knows that his discussion with the plaintiff encompassed more than what is said in the letter. Dr. Soon does not recall the specifics of the conversation given the passage of 5 years.
[34] Dr. Soon does not recall and it is nowhere in the medical records whether he advised the plaintiff to go to any other source for money other than the Hindu temple and Christian Church, whether he advised the plaintiff to speak to the hospital to see if they would help her get the surgery even without funds, whether he spoke with the College of Physicians and Surgeons of Ontario (CPSO) or the Canadian Medical Protective Association (CMPA) or any other agency about raising funds for the plaintiff, whether he had a conversation with Dr. Venka after he sent the letter dated September 17, 2017, whether he or his assistants spoke with the plaintiff by telephone after September 17, 2014, or what his plan of care was for the plaintiff after the cancelled surgery.
[35] This is not a case where Dr. Soon’s standard practice could assist in filling in the gaps. The plaintiff’s situation was unique. A conversation about funding for medical care is not a common conversation Dr. Soon would have with patients. Dr. Soon’s evidence is that he would have had a better memory and would have been better able to defend himself if he had notice earlier.
[36] Dr. Venka does not recall and it is not in medical records whether she had a conversation with Dr. Soon after she received the letter dated April 22, 2014 from Dr. Soon dealing with testing and follow up, whether she spoke with the CPSO or the CMPA or any other agency about raising money for the plaintiff, the substance of any conversation she had with Dr. Soon about the plaintiff’s care post-operatively, although she did likely speak with Dr. Soon, and does not recall discussing the cancelled surgery with the plaintiff or her lack of funding.
[37] The evidence of the nurse defendants is that, after reviewing the plaintiff’s medical records, they have no recollection of the plaintiff or the surgery.
[38] The evidence of lack of recollection of relevant facts as a result of the delay is evidence of prejudice.
[39] The evidence of the hospital is that it has lost the opportunity to perform a timely investigation of the allegations set out in the claim. In the ordinary course, when the hospital receives notice of a legal action against the hospital or its employees, including nurses, a timely investigation is conducted. This investigation may include interviewing employees named in the claim or other relevant witnesses in an effort to preserve their memories. As the hospital was not notified of the claim until December 2018, the hospital was unable to arrange a timely investigation. I am satisfied that the inability to conduct a full investigation due to delay is constitutes prejudice to these defendants (Gault v. Lane at para. 31, Sultan v. Hurst, 2018 ONCA 37 (Ont. C.A.) at para. 4).
[40] In these circumstances I am not satisfied that the defendants will not suffer prejudice as a result of the delay.
[41] In support of the relief sought on this motion, the plaintiff also argues that the limitation period with respect to certain claims has not yet expired. In the revised version of the proposed statement of claim (plaintiff’s further supplementary motion record, tab A) the plaintiff now alleges a further alternative claim for breach of fiduciary duty. The plaintiff argues that there is no limitation period with respect to a claim of breach of fiduciary duty. The plaintiff relies on the decision of Bulloch-MacIntosh v. Brown at para. 8. Bulloch-MacIntosh, supra was decided under the previous regime and not under the provisions of the Limitations Act, 2002, c. 24, Sched. B. I was not referred to the applicable section of the Limitations Act that supports the plaintiff’s position that there is no limitation period for the plaintiff’s claim of breach of fiduciary duty. I am not satisfied that there is a provision in the Limitations Act that provides for no limitation period or a longer presumptive limitation period for claims for breach of fiduciary duty in the circumstances of this case. In addition, to the extent that the plaintiff asserts that she only discovered certain claims in or about October 10, 2018, when Dr. Casey (urologist) and Dr. Klotz (urologist) communicated with Ms. Perron, the plaintiff was not exercising reasonable diligence in discovering these claims, having put the matter on hold for 20 months.
[42] In all of the circumstances of this matter it would be unfair to the defendants to allow the plaintiff to proceed with the claim. The plaintiff did not maintain an intention to pursue the action at all material times. I am not satisfied that the plaintiff has a reasonable explanation for the delay. Even if a reasonable explanation for the delay is not required, I am also not satisfied that the defendants will suffer no prejudice as a result of the delay.
[43] For these reasons, the motion is dismissed.
[44] With respect to the issue of costs, the parties advised that they have agreed to resolve the issue of costs as between them.
[45] Order to go as follows:
- The motion is dismissed.