Court File and Parties

Court File: CV-14-501607 MOTION FILED: 20190815 REASONS RELEASED: 20200117 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

The Estate of Donna S. Farrage, Deceased, by her Executor William Farrage, William Farrage, Riyad Farrage, Anton Farrage, Nicholas Farrage and Nicole Farrage Plaintiffs

and

Dr. Joan Wendy D’Andrea, Dr. Raymond John Osborne, Dr. Luc Roeland Clemens Willem Van Lonkhuijzen and Sunnybrook Health Sciences Centre Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Mitchell Wine mitch@isblaw.com -for the plaintiffs Fax: 416-224-2408

Paul-Erik Veel pveel@litigate.com -for the Defendant Dr. D’Andrea Fax: 416-865-2861

Scott Azzopardi sazzopardi@litigate.com -for the Defendant Dr. Osborne Fax: 416-865-2861

Simon Cameron scameron@mccarthy.ca -for the Defendant Dr. Van Lonkhuijzen Fax: 416-868-0673

Victoria Cistrone vcistrone@blg.com -for the Defendant Sunnybrook Health Science Centre Fax: 416-367-6749

Ryann Atkins ratkins@lolg.ca -for the Third Party Dynacare Fax: 416-598-3730

RELEASED: January 17, 2020

Reasons for Decision

I. Overview

[1] Five years after this action was commenced, the plaintiffs move for an order granting additional time to set this matter down for trial.

[2] Pursuant to Rule 48.14 (5) (6) and (7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a motion such as this proceeds as a "status hearing" and the plaintiff is required to show cause why the action should not be dismissed for delay. In brief, the question at a status hearing is whether or not the plaintiff has lost the right to proceed with a determination on the merits due to procedural delay. The test established by the jurisprudence requires a reasonable explanation for the delay and proof that the extension of time will not unreasonably prejudice the defendants.

[3] For the reasons that follow, I am persuaded I should exercise my discretion to extend the time period to set this matter down for trial, in order to permit this action to be determined, “on the merits.”

[4] The Plaintiffs also seek an Order under Rule 48.14(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 establishing a timetable for the remaining steps in the action. I am prepared to do so and, if necessary, to impose a timetable under, the relatively new, subrule 29.1.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

II. Applicable Rules Background

[5] As it currently reads, Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires the Registrar to dismiss a civil action that has not been set down for trial or concluded in some other manner on the 5th anniversary of the commencement of the action. Assuming the plaintiff is not in a position to set the matter down for trial prior to the deadline, there are two ways to avoid dismissal. The parties may agree on a timetable to bring the matter to conclusion and file it 30 days in advance pursuant to Rule 48.14.(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Here, at least some of the defendants refused to agree to a timetable.

[6] Alternatively, a party may bring a motion under Rule 48.14 (5) and (6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in which case the motion proceeds as a status hearing. That is what has occurred in the case at bar.

[7] In a status hearing, there is a reverse onus. The plaintiff must show cause why the action should not be dismissed for delay. Much has been written about the status hearing rule and the competing policy imperatives of access to justice, deciding cases on the merits, and discouraging delay. I need not repeat that analysis here.

[8] Societal interest in timely and efficient justice at a certain point outweighs the importance of adjudication on the merits. The defendants submit that “the jurisprudence makes clear, when a status hearing is invoked, the action should be dismissed unless the plaintiff can demonstrate a reasonable explanation for the delay on the one hand and an absence of prejudice to the defendant on the other.”

[9] In seeking to explain the delay, the plaintiff should address what impediments prevented the setting of the action down for trial. Technically, setting the matter down is a unilateral step, that may be taken at any point in time at which the plaintiffs believe they are ready for trial and have no further need of discovery.

[10] Here the nature of the case and the consequences of the alleged grounds which lead to this action would clearly dictate the need for a greater degree of preparation.

[11] Various defendants were separately represented and filed separate facta. The factum filed on behalf of Doctors D’Andrea and Osborne submits:

“The plaintiffs now bring this motion, which is treated at a status hearing, where they must justify why this action should not be dismissed. They cannot:

(a) The delay has been egregious, and no reasonable explanation has been provided for their delay;

(b) If this action is permitted to proceed, the defendants will suffer non-compensable prejudice .

Memories have faded, and at least some records and information are irretrievably lost.

The plaintiffs have had more than ample opportunity to move the case forward. They did not. This action should be dismissed.” [my emphasis]

[12] The applicable portions of Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (with my emphasis bolded throughout), provide:

48.14 (1) Unless the court orders otherwise , the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action….

Timetable

(4) Subrule (1) does not apply if, at least 30 days before the expiry of the applicable period referred to in that subrule, a party files the following documents:

1. A timetable, signed by all the parties, that,

i. identifies the steps to be completed before the action may be set down for trial or restored to a trial list, as the case may be,

ii. shows the date or dates by which the steps will be completed, and

iii. shows a date, which shall be no more than two years after the day the applicable period referred to in subrule (1) expires, before which the action shall be set down for trial or restored to a trial list.

2. A draft order establishing the timetable.

[13] The rule also provides an opportunity for the plaintiff’s situation to be considered at a Status Hearing:

(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing.

(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing.

(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may ,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action should proceed,

(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,…

III. Overview of Factual Background

(a) 2006 Surgery

[14] Originally this action was brought by Donna Farrage together with her husband and their children, with respect to claims under the Family Law Act .

[15] The present Notice of Motion sets out a detailed outline of the grounds relied upon with respect to the damages suffered as a result of the manner in which Donna Farrage’s cancers were treated.

[16] For the purpose of a motion such as this, I believe it is appropriate to treat the pleaded allegations as provable, in assessing whether or not, applying proportionality, this action should be terminated or permitted to proceed at this stage.

[17] This action arises out of two separate elements relating to treatment by different professionals for different cancers occurring over a 10 year period. I have noted elements by bolding or underlining, within a number of extracts from the detailed Notice of Motion that was before me:

2. Initially Donna was under the care of the Defendant Dr. D'Andrea. As a result of two mammograms performed in April and May of 2006 , surgery was performed on Donna in July 2006 at the Defendant hospital, Sunnybrook Health Sciences Centre ("Sunnybrook").

3. The surgery involved a right breast lumpectomy, sentinel biopsy and lymph node dissection.

4. Donna completed several rounds of chemotherapy and radiation treatment. After surgery, Donna began receiving two medications at different times - Tamoxifen and Exemestane. Tamoxifen is known to have a potential side-effect of causing cancer in the pelvic region .

[18] Some years later in or about September, 2011, She had a regular check-up and screening appointment with Dr. D' Andrea. Donna was symptom-free at this time.

[19] However, apparently during the appointment a pap smear was taken. It is asserted that Dr. D 'Andrea advised Donna that the pap smear would be sent for culture and Dr. D'Andrea would be in touch if there was anything to discuss .

(b) Discovery of atypical cells

[20] The Notice of Motion asserts:

7. Donna did not hear further from Dr. D' Andrea's office so assumed that the results of the pap smear were unremarkable.

8. In late 2011 or early 2012 Donna began to experience persistent vaginal bleeding. After a visit to her oncologist, Donna was referred for a gynecological assessment of the bleeding. This appointment took place on April 7, 2012.

9. During the appointment, the gynecologist logged onto her computer to review Donna's medical records including the pap smear results from the test conducted by Dr. D' Andrea in September, 2011. She advised Donna that the pap smear showed atypical cells which were potential indicators of cancer.

(c) Sunnybrook surgery

[21] The gynecological assessment revealed that the cause of the vaginal bleeding was a polyp that had to be removed. A biopsy was done and the pathology report showed that Donna had a grade 2 endometrial carcinoma. Donna was referred by the gynecologist to the Defendant, Dr. Osborne at Sunnybrook for surgery. The plaintiffs assert:

11. Dr. Osborne met with Donna and recommended that Donna undergo a hysterectomy, bilateral salpingo-oophorectomy , infracolic omentectomy and pelvic node dissection. Donna accepted the recommendation and surgery was performed on May 28, 2012 by either Dr. Osborne or the Defendant, Dr. Luc Roeland Clemens Willem Van Lonkhuijzen ("Dr. Lonkhuijzen").

[22] Significantly the Notice of Motion reports:

12. The operative note from the surgery indicates that either Dr. Osborne or Dr. Van Lonkhuijzen performed a total abdominal hysterectomy, bilateral salpingo-oophorectomy and left and right pelvic lymphadenectomy . The operative note makes no mention of the infracolic omentectomy that Dr. Osborne had recommended and that Donna had been admitted to hospital to receive.

[23] I glean from Notice of Motion asserts that it appears that Dr. Osborne and/or Dr. Van Lonkhuijzen “forgot to perform this surgery” on May 28th, 2012. The Notice of Motion continues:

13. Post-surgery Dr. Osborne advised William that the surgery had been a success. The final pathology report confirmed grade 3 endometrial carcinoma.

14. Following surgery, three radiation treatments took place in August 2012 at Sunnybrook.

[24] It is asserted that Post-operatively Donna complained repeatedly to both Dr. Osborne and the radiation oncologist of tenderness and discomfort in her right pelvic area. Examination revealed swelling and a poorly defined abnormality “but Donna was told that there was nothing wrong with her and the discomfort was likely the result of scar tissue or some type of local aggravation or haematoma.”

[25] The Notice of Motion continues:

16. The complaints and symptomology continued for months and were reported by Donna to Dr. Osborne and other doctors. As a result of her urging, Dr. Osborne ordered an ultrasound in October 2012 with a biopsy taken of cells in the area in question.

[26] The pathology report from the biopsy was interpreted at Sunnybrook as disclosing adenocarcinoma, likely of endometrial origin. Dr. Osborne ordered a CT scan which revealed disseminated peritoneal disease, in addition to the presence of malignant cells:

“18. Dr. Osborne recommended to Donna that she undergo a course of chemotherapy treatment that was to begin in October 2012. Dr. Osborne advised, however, that the efficacy of the chemotherapy for Donna's cancer was only 60% which caused Donna and William grave concern and worry. Donna did receive one round of chemotherapy at Sunnybrook.”

(d) Apologies Act 2009

[27] I pause in this litany to address the possible relevance of the Apologies Act, 2009, S.O. 2009, c. 3 of Ontario. That Act provides in part that:

“apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.

[28] The Act then addresses the potential effect of apology on liability:

2. (1) An apology made by or on behalf of a person in connection with any matter,

(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;

(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and

(c) shall not be taken into account in any determination of fault or liability in connection with that matter.

[29] While not available in the ultimate determination of fault for liability, I am nevertheless, inclined to feel that such disclosure could have an impact on a procedural determination such as that before me. However, I do not base my ultimate finding on any possible acknowledgment of an error in this case. In any event I have considered, as well, these portions of the statute:

Evidence of apology not admissible

(3) Despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in connection with that matter

Exception

(4) However, if a person makes an apology while testifying at a civil proceeding, including while testifying at an out of court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration.

[30] There have not yet been any examinations for discovery in this matter. Neither side appears to have pushed for a case timetable prior to a point in time shortly before this motion was brought.

(e) “Ethical responsibility”

[31] Against that background I return to the the assertions contained in the plaintiffs’ Notice of Motion:

19. At this time, Dr. Osborne told Donna and William that he had an ethical responsibility to advise Donna that the omentum that was to be removed during surgery the previous May had likely been removed and/or that he was not 100% sure it was not removed. Dr. Osborne stated, however, there was no record of the omentum having been removed or biopsied.

20. Dr. Osborne further advised Donna and William that Donna likely had stage 4 cancer and she should prepare for the end of her life.

IV. Subsequent Care and Treatment

[32] The Notice of Motion continues by observing that Donna then met with her oncologist and asked to be referred for care at Princess Margaret Hospital, in Toronto. “The referral was made, and her condition was diagnosed as adenocarcinoma, with its likely origin from the area of the breast. This was a different diagnosis than that received from Dr. Osborne.”

[33] It was at this time that Donna looked into alternatives for medical care outside Ontario. She learned of a radiological oncologist at the Mayo Clinic in Arizona, who recommended that Donna obtain a PET scan of the affected area for optimal definition of the cancer.

[34] The Notice of Motion continues:

23. Upon following up with the medical professionals in Ontario, Donna was advised that no PET scan was available in the near future. Donna and William flew to Arizona to obtain a PET scan and other medical care in late November 2012.

24. A PET scan and other tests were performed in Arizona and immediate surgery was recommended. Inquiries were made in Ontario whether the surgery could be performed in a hospital in Ontario but Donna and William were advised that the recommended surgery was not part of Ontario protocol and treatment was refused .

25. Having no alternative, Donna opted for surgery, paid privately, in Arizona. Surgery was performed on November 29, 2012. During the surgery the tumour was systematically cleared. The omentum, which was still present , revealed the presence of a tumour as well. This was also removed and an omentectomy was performed. A right partial radical vulvectomy was also carried out.

[35] Donna returned to Ontario and underwent a course of chemotherapy at Princess Margaret Hospital between January and May 2013. Since that time, she followed up regularly with her oncologist and also returned to Arizona for follow-up care.

[36] This action was commenced on April 4, 2014 by way of a Notice of Action which was followed up with the Statement of Claim issued on May 1, 2014. Regrettably the present Notice of Motion advises that:

27. While Donna was symptom free for some period after surgery, her cancer returned. Donna died on September 29, 2015.

V. Progress of Action

[37] The case history on file with the court indicates that an order was obtained in October 2014 extending the time for service of the May 1, 2014 Statement of Claim on some of the defendant doctors until April 1, 2015. It would seem that a notice of intent to defend was filed on May 4, 2015 with the Statements of Defense (and apparently some cross-claims being filed in June 2015, about three months before the lead plaintiff died at the end of September, 2015.

[38] Understandably it took some time to obtain an Order to Continue, which was requisitioned in November 2015 and granted on December 4, 2015.

[39] Rule 11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 deals with Orders to Continue:

11.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed with respect to the party whose interest or liability has been transferred or transmitted until an order to continue the proceeding by or against the other person has been obtained.

[40] While the five-year period for setting the action down, may not be stayed in such circumstances, it nevertheless appears that 15 months passed prior to this action being ready to move forward. Clearly unopposed orders extending filing periods were granted by this Court.

[41] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are based upon this General Principle:

1.04 (1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits

Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

Matters Not Provided For

(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.

VI. Current Situation

[42] The plaintiffs assert that the various medical records from the Defendant doctors and medical institutions (including institutions in Arizona) have been obtained by counsel for the Plaintiffs. Their Notice of Motion asserts:

30. Counsel for the Plaintiffs have consulted with medical professionals to provide expert evidence for the Plaintiffs. The primary issues that will need to be determined by the Court are as follows:

a) Was Dr. D' Andrea's alleged negligence in not obtaining Donna's pap smear results from September 2011 until Donna obtained a gynecological assessment in April 2012 a factor in Donna's death in September 2015?

b) Was it appropriate for tamoxifen to be prescribed to Donna?

c) Did Dr. Osborne misdiagnose the nature of Donna's cancer and, if so, did that misdiagnosis play a role in Donna's death in September 2015?

d) Did the failure to remove Donna's omentum in May 2012 play a role in Donna's death in September 2015?

[43] As several different specialties are involved in providing an opinion with respect to the care received by Donna, expert evidence will be required from different medical professionals.

[44] The plaintiffs are seeking to obtain expert assistance and have requested co-operation from the defendants:

32. With respect to the care provided by Dr. D’Andrea, counsel for the Plaintiffs are in communication with a medical professional. That expert has requested a copy of the pap smear results from September 2011.

33. Counsel for the Plaintiffs has written to counsel for Dr. D’Andrea to request production of their documentation. To date, no response has been received.

[45] I am concerned about the difficulties apparently being encountered with respect to finding Canadian medical experts to assist in evaluating the care given to the deceased. The Notice of Motion asserts:

34. With respect to the care provided by Dr. Osborne and Dr. Van Lonkhuijzen, counsel for the Plaintiffs identified an expert in Alberta to provide an opinion. Discussions with the expert ensued over the course of several months. Slides of the biopsy results of Donna's tissues and Formalin Fixed Paraffin Embedded blocks were sent from Sunnybrook to the hospital in Alberta .

35. After many emails and telephone conversations with the doctor in Alberta during which many of the issues regarding negligence were narrowed, the doctor, without warning, stopped answering counsel for the Plaintiffs' emails and telephone calls. No explanation for this was ever provided.

[46] While in no way ascribing these difficulties to any of the defendants, I see no reason to disbelieve the assertions in the present notice of motion in this regard:

[47] While I recognize that we continue to have an adversarial system, it can only work effectively if independent expertise is available to plaintiffs.

[48] I understand that many years ago the medical profession ensured that skilled experts were made available to patients who believed they had been harmed as a result of an error in treatment. This permitted an earlier resolution based upon neutral reliable scientific information.

[49] The present environment to my mind can, in cases such as the present, militate for extended periods being necessary and appropriate, so as to permit such cases to reach a resolution “on the merits.”

VII. Appropriate Approach to Such Cases

[50] Several years ago, I had occasion to consider the appropriate cooperation amongst parties in my decision in Ornstein (Litigation Guardian of) v. Starr, 2011 ONSC 4220, 108 O.R. (3d) 380; [2011] O.J. No. 5379 ; 2011 ONSC 4220; 38 C.P.C. (7th) 281 ; 2011 CarswellOnt 13216 .

[51] There I observed:

[41] When an error by a physician is alleged, the Canadian Medical Protection Association ("CMPA") normally becomes involved. The organization's current strategic plan is available online….

[43] The strategic plan notes that the CMPA “is owned and governed by physicians in the collective interests of the profession.” The association's core values guide its actions and fall within three broad commitments. In addition to a "Commitment To Responsible Governance And Management", the other two identified commitments are relevant, in my view, to the correct approach to the resolution of this motion. In part, the "Commitments" read:

COMMITMENT TO MEMBERS . . .

• An ethical defence. The integrity and professional reputation of physician members are two of their most valued assets. The CMPA provides members with an ethical defence and, in keeping with its approach of "defending the defensible," does not settle unsubstantiated claims for expediency or economic reasons.

COMMITMENT TO PATIENTS . . .

• Financial compensation. If patients are proven to have been harmed as a result of negligent medical care provided by a CMPA member, assistance will be available to compensate those patients in an appropriate and timely manner.

[44] The CMPA's strategic plan identifies five desired strategic outcomes. The first of these is entitled "Strategic outcome #1 -- Protecting members' integrity". One of the five identified objectives in this regard reads:

1.2 To promote appropriate measures that encourage the timely resolution of medico-legal matters. Regardless of the circumstances, medico-legal matters are stressful for all involved: physicians, other health care providers, patients and their families. The CMPA will actively promote measures that respect the right to procedural fairness and encourage the timely resolution of such matters. This will reduce system costs, improve accessibility to justice and reduce the stress experienced by physicians and their patients.

[52] In Ornstein I expressed a concern which continues in the present case:

[45] I am troubled that the approach taken in this case does not strike me as being in accord with the objectives described above. I would hope those responsible for the approach in this case would re-evaluate whether the strategy used in this case to date accords with the requirements of procedural fairness in the administration of justice in present day Ontario.

[53] While it would be inappropriate at this stage to come to similar conclusion in the present case, I am encouraged by the 2019-2022 Strategic Plan of the CMPA as set out on its present website, which includes as one of their Long-Term Outcomes:

“3 . Support the Medical Liability System

The CMPA supports an effective and sustainable medical liability system that meets the needs of physicians and their patients.”

[54] I note as well this description regarding the Strategic Plan:

“Our strategy is guided by our vision and mission and seeks to achieve three long-term outcomes: Assist Physicians, Contribute to Safe Medical Care, and Support the Medical Liability System. The Plan reflects the Association’s unrelenting focus on member assistance, our emphasis on the importance of working with our stakeholders to effect positive improvements in the safety of care, and our commitment to effective and sustainable medical liability protection. Our core values define and guide all of the Association’s actions and decisions.

[55] In meeting my obligation to construe the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 liberally in order to secure the just, most expeditious and least expensive determination of this proceeding on its merits, I have weighed the need to provide directions that are proportionate to the importance and complexity the issues and to the matter amount involved to each of the parties in this proceeding. It appears to me that there would be significantly more harm to the plaintiffs if I were not to grant their motion, than any prejudice that might be suffered by the individual defendants or Sunnybrook.

[56] I am convinced that my allowing the matter to proceed would constitute a result that would be in accord with an implementation, in this case, of the goals of the CMPA concerning “strategic change initiatives”:

A1.Align the CMPA’s extent of assistance to meet evolving member needs

In response to the changing medical liability protection requirements of our members, the CMPA will appropriately and responsibly adjust our assistance to ensure physicians can continue to practise with confidence their medical liability interests are protected. Guided by the principles of mutuality and proportionality, we will engage members to proactively identify and respond to emerging medical-legal risks .

Ethical defence

The CMPA provides members with an appropriate and ethical defence and, in keeping with its philosophy of "defending the defensible" does not settle unsubstantiated claims for expediency or economic reasons. The CMPA seeks to do this in as timely a manner as is feasible.

in this case.

[57] In considering the appropriate path resolution of the present motion I a helpful paper by Professor Elaine Gibson, of the Faculty of Law and a member of the Health Law Institute at Dalhousie University. She presented her findings at a conference of the Canadian Institutes of Health Research Health Law, Ethics and Policy Training Program.

[58] Her report entitled “Is It Time to Adopt a No-Fault Scheme to Compensate Injured Patients?” can be found at (2016) 47: 2 Ottawa L Rev 303 – 338. This substantial report concludes with a consideration of “System Efficiencies”:

78 The fault-based medical malpractice system performs particularly poorly on the criterion of efficiency. As has been demonstrated previously, a very high portion of costs of the system are expended on legal fees, the retention of expert witnesses by each of the parties to the dispute, and costs of access to the judicial system, including accompanying lengthy delays. These delays in turn exacerbate problems with rehabilitation. No-fault serves to reduce these inefficiencies and place a greater portion of expenditures in the hands of injured patients.

79 Distributive justice aspects are problematic in our fault-based system for a number of reasons. Governments across Canada are covering by far the greatest share of CMPA defence fees, meaning that substantial fiscal resources of government are ultimately utilized in defence of physicians against claims of patients

V. CONCLUSION

80 It has been demonstrated that no-fault compensation schemes have advantages on a number of fronts: a serious reduction in administrative costs, including cost savings to the judicial system; a reduction in the need for legal services; a major increase in the number of injured patients receiving compensation; a reduction in the time from launching a claim to receipt of an award; the physician can become an ally to the patient in seeking compensation; and amounts of awards can be controlled through regulated caps and charts. ….The neutrality of having independent experts in no-fault has considerable advantages over the tort-based approach, including cost, regional disparities in terms of access to experts to testify, and the non-impartiality of expert witnesses in medical malpractice.

VIII. Concerns Raised by Defendants

(a) Overview

[59] The defendants assert that on October 2, 2014, their counsel received notice from the Court that this action would be dismissed, as no Statements of Defence had been filed. They note:

13. As the defendants could not file a Statement of Defence without the relevant medical records, Dr. D' Andrea and Dr. Osborne agreed to file a Notice of lntent to Defend in order to avoid an automatic dismissal of the plaintiffs' case at that stage.

14. At that time, Ms. Kirshblum reiterated her request for the records.

15. They were not provided.

[60] Surely, they could have brought a Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 motion to obtain such documentation at any point in time, if the information was in fact necessary to deliver an appropriate pleading. Moreover, on November 6, 2014, counsel for the defendant Sunnybrook provided a copy of Sunnybrook's records.

[61] On June 8, 2015, Plaintiffs’ wrote to counsel for the defendants confirming receipt of the Statements of Defence. He also asked to arrange examinations for discovery soon, stating that his client was "not well".

[62] There would seem to be a clear indication that Dr Osborne had told his patient “to prepare for the end of life.” Nevertheless, the defendants argue surprise:

19 This was the first the defendants had heard of any problems in Ms. Farrage's health. Unbeknownst to them, Ms. Farrage's health had started declining shortly after her Notice of Action was issued in April 2014,…

23. At this point, [their counsel] LSB still had not served an affidavit of documents, nor had it delivered any records at all. Discoveries were not yet feasible; the defendants needed records first.

[63] In a subsequent section of their factum dealing with the assertion that “the plaintiffs finally resurface when the action is about to be dismissed”:

29. On March 8, 2019, less than a month prior to the date on which this action would have been automatically dismissed for delay, Mr. Wine emailed all parties to request their consent to an Order establishing a timetable for this action. The defendants refused.

(b) OHIP summary

[64] Issues of possible prejudice are raised regarding the lack of an OHIP Summary:

“32. Not included in those records was a decoded OHIP summary . This was a surprising omission, given that decoded OHIP summaries are routinely obtained in personal injury and medical negligence litigation.”

[65] Counsel for Doctors D’Andrea and Osborne made these submissions in their factum:

Information in a decoded OHIP summary is lost forever

76. A decoded OHIP summary is a document sets out all billings to OHIP from all medical practitioners that have billed OHIP in respect of an individual's treatment. Decoded OHIP summaries are routinely produced in cases where there is some issue regarding the treatment individuals have received. An important purpose of a decoded OHIP summary is to understand whether all relevant medical records relating to an individual's care in Ontario have been produced. It is particularly important to obtain a decoded OHIP summary where other sources of information are unavailable--as is the case here, for example, where the main plaintiff is deceased.

77. Unfortunately, OHIP only provides decoded OHIP summaries for the previous seven years. Any information on OHIP billings that were made more than seven years prior to the date of the request for the decoded summary cannot be obtained from OHIP and is simply unavailable.

[66] I find this position to be somewhat disingenuous. These physicians had been her treating physicians leading up to the surgery. There is no indication of any reason why these physicians would not have reviewed and considered a part of a full seven-year record available both when the breast cancer surgery was performed and subsequently when the May 28, 2012 surgery was performed.

[67] No one seems to have asserted that the Hospital and Doctors records are missing or inadequate.

[68] This is not a case where a motor vehicle accident victims pre and post-accident medical records might have a bearing on the consequences of the initial accident. It seems to me that none of the defendants have indicated that any specific records that matter are not available

[69] These doctors were her treating physicians. There is no allegation that she did or could have done anything to worsen her condition after the 2012 surgery.

(c) Other Records

[70] The second source of alleged prejudice relates to other health records that may not be available. There are various records that are clearly relevant on the face of the pleadings that have not been obtained by the plaintiffs and in relation to which there is no evidence that they had been preserved.

[71] Similarly, it is asserted that under cross examination on this motion “Mr. Farrage testified that he was not aware of any efforts made by the plaintiffs to obtain or preserve various medical records, such as Ms. Farrage' s annual mammogram and ultrasound imaging, and Ms. Farrage's mammogram from April 13, 2006 and subsequent ultrasound imaging.”

[72] The factum asserts that these tests are directly relevant to issues in the litigation. “Yet there is no evidence that the imaging has been preserved.” Yet there is no explanation why the defendant doctors doing those examinations would not continue to have access to such records for the periods before and after their treating their patient.

[73] Put simply while they assert “There is no evidence that other relevant medical records are preserved or available”; they do not assert that such records are not available.

(d) Timeliness

[74] Rather than move for the records under Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, counsel for the doctors simply sent letters, at least monthly, asking the plaintiffs for this data from January 2016 onward. If it mattered, they had access to a remedy which would have preserved the records from 2009 onward, but apparently chose not to utilize it. In the words of their factum, “Had a decoded OHIP summary been requested when this litigation was commenced, it would be available for virtually that entire period. Having not been requested, that information is now lost forever.”

[75] I am not convinced that a prior OHIP billing summary would have any serious impact on the consequences of the failure to perform the intended omentectomy.

[76] The Defendants argue:

Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 controls the timeliness of adjudication, which is a measure of the health of the justice system. It counteracts a culture of complacency in litigation. The presumptive time periods contained in Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 remind the plaintiffs of their obligation to move their actions forward expeditiously "and cautions that they bear the consequences of conducting their actions in a dilatory manner."

The timelines in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 should only be deviated from where there is some justification. “Failure to enforce the timelines established by the rules frustrates the legitimate expectations of parties to the litigation, and inhibits the orderly conduct of a proceeding.”

[77] In this they assert:

“… the Court of Appeal for Ontario held in 1196158 Ontario Inc v 6274013 Canada Ltd, 2012 ONCA 544, "[i]f flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated. " [ 2012 ONCA 544 at paras 41-42]

[78] I do not regard the factual elements of this case as being, to any extent, a descent into a toleration of laxness.

[79] Rather, in this case the surgical omission was confessed to, and moreover the patient was told that she did not have long to live. In such circumstances, what are the appropriate reasonable and proportional expectations for the widower and his family?

[80] Surely, they are entitled to a significant degree of forgiveness with respect to the handling of their seeking “a just result” in this case .

IX. Erland v. Ontario

[81] While this matter was under reserve the Defendants/Third party provided the Court with the recent Court of Appeal decision decision delivered by Justices Paciocco, Harvison Young and Zarnett in Erland v. Ontario, 2019 ONCA 689. They submitted that test, in a case such as this, must be read as conjunctive.

[82] The Plaintiffs' position with respect to my reopening the argument on this motion, was that “it was not necessary to provide the decision since it merely restates the law that all parties agreed upon during argument”.

[83] In particular they asserted:

“It is common ground that the motion judge correctly identified the applicable law. Subrules 48.14(5)-(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provide that where the plaintiff seeks to extend the deadline to set an action down for trial, the plaintiff/moving party must show cause why the action should not be dismissed for delay. In order to meet this burden the plaintiff must prove that (1) there is an acceptable explanation for the delay and (2) that allowing the action to proceed would not cause the defendant(s) to suffer non-compensable prejudice: Kara v. Arnold, 2014 ONCA 871; 328 O.A.C. 382, at para. 8. This test is conjunctive.

[84] The Plaintiffs objected to the provision of the Erland v. Ontario, 2019 ONCA 689 case to the Court because they believed it would put forward the Defendants’ /Moving Parties’ position “yet again in a vacuum without the submissions of the Plaintiffs on the proper interpretation of the test.”

[85] As a result, I provided the Plaintiffs with an opportunity to make submissions with regard to the Erland v. Ontario, 2019 ONCA 689 decision on an appeal from a decision of Justice MacLeod. There, in an action arising out of the flooding of the plaintiff’s land, His Honour exercised his discretion and (in that factual situation) refused to extend the time for setting the matter down for trial.

[86] Erland referred to the conjunctive test laid out in Kara v. Arnold, [2014] OJ No 5818, 2014 ONCA 871, 2014 CarswellOnt 17098, 247 ACWS (3d) 552, 328 OAC 382. There Blair, J.A., writing for that Court, refers to the contextual approach at paragraphs 13-14:

In my view, little is to be gained by debating whether there is a bright line between the"contextual approach" and the approach enunciated in later authorities such as Faris and 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544. It seems to be evident that, in considering the reasonableness of any explanation for the delay in question, a status hearing judge will almost invariably engage in a weighing of all relevant factors in order to reach a just result .[ Emphasis added ]

Here, the judge at the status hearing considered all of the pertinent factors relevant to a contextual approach ( as in Scaini ) and the approach taken to Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dismissals in later cases ( 1196158 Ontario Inc. and Faris ). I do not see these authorities as inconsistent.

[87] I accept and agree with Plaintiffs’ counsels’ observations that, as stated in Kara v. Arnold, 2014 ONCA 871, the case law is clear that the test requires a contextual analysis. I believe my approach is rightly guided by cases such as these

a) In 1196158 Ontario Inc v 6274013 Canada Ltd, 2012 ONCA 544, Sharpe, J.A. wrote:

And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant. (Emphasis added)

If the test could not be applied contextually, Sharpe, J.A. would have said the judge must dismiss the action if the Plaintiff could not explain the delay. He would not have given the Court discretion in this situation with use of the words “it is open”.

b) In Cedrom-Sni Inc. v. Meltwater Holding, 2017 ONSC 3387, Master Graham set out the conjunctive test and then wrote that inevitably the Court will weigh "all relevant factors in order to reach a fair result".[ Cedrom-Sni Inc. v. Meltwater Holding , 2017 CarswellOnt 8214 , 2017 ONSC 3387 , [2017] O.J. No. 2810 , 280 A.C.W.S. (3d) 50 ]

c) In Koepcke v. Webster, 2012 ONSC 357, Master Dash wrote:

‘In my view, the plaintiff need not rigidly satisfy both aspects of the test but the two factors, acceptable explanation for the delay and demonstrating absence of any prejudice to the defendant, must be considered, together with other relevant factors, on a contextual basis."

Master Dash also wrote it made no sense for the Court to apply a contextual test in cases of an action dismissed by the Registrar but to apply a rigid, non-contextual analysis in cases of status hearings. [ Koepcke v. Webster ; 2012 CarswellOnt 578, 2012 ONSC 357 , [2012] O.J. No. 230, 212 A.C.W.S. (3d) 386 ]

[88] I agree with my former colleague, Master Dash, who held that “the plaintiff need not rigidly satisfy both aspects of the test" and that there will be some cases when a plaintiff can show cause that on the whole, it would be unfair for the action to be dismissed. Determining fairness or unfairness requires a consideration of all the circumstances and a certain balancing of the respective interests of the parties.

[89] The purpose of the set down rule is to ensure that the system works effectively for matters to be resolved, on the merits, within a reasonable period of time. It is clearly my belief that, in a factual situation such as this, if there is any doubt as to the causes of delay and their consequences, the plaintiffs ought not to be denied their day in court.

X. Disposition

[90] Decisions under Rule 48.14(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 involve a careful balance between two competing values. On the one hand, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.

[91] In my view, little is to be gained by debating whether there is a bright line between the "contextual approach" and the approach enunciated in later authorities such as Faris and 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544. It seems to be evident that, in considering the reasonableness of any explanation for the delay in question, the decision maker will, almost invariably, engage in a weighing of all relevant factors in order to reach a just result.

[92] In the present matter I am satisfied that both factors have been met. Moreover, if I am wrong in that determination, I am fully satisfied on an overall contextual basis, there is no doubt that this action should be allowed to proceed.

[93] In the result I am granting leave to extend the set down date in this case and at least for the time being I am extending the set down date to January 15, 2021.

[94] I invite counsel to agree upon a case timetable in the next 60 days . If no agreement can be reached, I will convene a case conference and impose a timetable upon the parties.

[95] The plaintiffs are receiving an indulgence. Nevertheless, I feel they are entitled to their costs of this motion on a partial indemnity basis, to be the joint and several responsibility of the defendants.

[96] If the parties cannot agree upon a fair quantum, I will convene a case conference to establish a method of reaching a fair costs determination.

[97] I would be remiss if I did not commend all counsel on their well thought out and presented arguments, which both assisted, and also made more challenging, my reaching this decision.

R. 305/DS

Master D.E. Short