Court File and Parties

COURT FILE NO.: CV-15-521405 DATE: 20200722 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Colleen Meagher et al., Plaintiffs

– and –

Hooper-Holmes Canada Limited et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Adrian King, for the Plaintiffs Monica Tessier, for the Defendants

HEARD: July 21, 2020

CIVIL PRACTICE COURT endorsement

The Scheduling Issue

[1] The defendants seek to re-schedule a motion for summary judgment to dismiss the claims against them. The motion was first scheduled to be heard in January, 2019.

[2] The plaintiffs sue for personal injuries allegedly arising from medical malpractice. The defendants provided the nursing services that Ms. Meagher claims negligently caused her injuries. Mr. Meagher sues for damages derived through his relationship with Ms. Meagher pursuant to the Family Law Act, RSO 1990, c F.3.

[3] The plaintiffs resist the re-scheduling of the motion because they say it would be fundamentally unjust to resolve the case before they exercise their right to conduct documentary and oral discovery of the defendants and attend mandatory mediation. In addition, the plaintiffs argue that as a matter of procedural fairness, Ms. Meagher has a right to be heard at a trial in open court.

[4] It is also relevant to observe that during the five year life of this lawsuit to date, the plaintiffs have been not been able to retain an expert witness who will testify that the defendant nurse was negligent or that her negligence caused the injuries claimed by the plaintiffs.

The Outcome

[5] At the end of the CPC hearing, I imposed the following schedule: The motion for summary judgment will be heard on September 1, 2020 for up to three hours peremptory to both sides. The defendants’ factum is due on August 10, 2020. The plaintiffs’ factum is due on August 25, 2020. The defendants will upload all motion materials for all parties to a folder on Sync.com in accordance with the attached directions. The defendants’ counsel is to provide the Motion Coordinator the link to the folder on Sync.com when she files her Motion Confirmation Form.

[6] In light of the limited time in CPC, I advised the parties that I would provide reasons for this decision at a later date. These are my reasons for re-scheduling the motion to be heard six weeks from now.

The Procedural Background

[7] The defendants first attended CPC in the summer of 2018 to schedule the motion for hearing in January, 2019. In January, the plaintiffs sought an adjournment. Among other grounds asserted, the plaintiffs indicated that although the time set for them to respond to the motion had passed, they needed more time to retain an expert and obtain a report.

[8] The motion was adjourned to May, 2019. On the eve of the motion, the plaintiffs delivered further evidence although not from an expert witness. The parties agreed to adjourn for cross-examination. In light of the plaintiffs’ continuing need to find one or more experts witnesses, the motion date was re-scheduled for April, 2020 – 11 months later.

[9] The defendants delivered an affidavit from an expert opining on the standard of care in late 2018. The defendants delivered a supplementary report from that expert in the spring of 2019. They delivered an affidavit from a different expert on the issue of causation in January, 2020.

[10] The parties cross-examined each other’s fact witnesses in January, 2020. At the end of January, 2020 the plaintiffs asked for production of documents relied upon by one or both of the defendants’ experts. The defendants say that the documents shown to their experts are just the plaintiffs’ own medical records. Whether that is correct or not, the plaintiffs have taken no steps to cross-examine either expert and did not propose to do so in relation to the summary judgment motion.

[11] During the cross-examination of the parties in January of this year, the plaintiffs raised a concern that the defendants’ law firm previously acted for Mr. Meagher’s corporation in a business matter a number of years ago. The lawyer who acted for Mr. Meagher’s business is no longer with the firm.

[12] The plaintiffs argue that they are entitled to full discovery from the defendants including production of the documents shown to the experts. They want to attend mediation. They argue that they may want to move to disqualify the defendants’ law firm from acting. And they assert a fundamental procedural entitlement to be heard at a trial in person.

[13] In my view, it is far too late in the day for any of these arguments to succeed.

The Duty to Exercise Procedural Rights with Diligence

[14] I do not know whether the parties discussed documentary or oral discovery with the judge in CPC when the motion was booked in the summer of 2018 or when the schedule was revised in May, 2019. I know of no reason why the plaintiffs could not have asked for documentary or oral discovery then. That was the time to build whatever procedural elements into the motion schedule that were sought and were accepted by the CPC judge.

[15] Moreover, the parties conducted cross-examinations in January of this year. Under Rule 34.10(2)(b) of the Rules of Civil Procedure, the plaintiffs were entitled to deliver a summons that required the defendants’ affiants to bring with them to the cross-examinations all documents relevant to the issues on the motion. Moreover, prior to conducting cross-examinations of the defendants’ affiants, the plaintiffs were also entitled to examine whomever they wished as witnesses to the motion under Rule 39.03(1). Furthermore, under Rule 39.02(1) they had the near absolute right to cross-examine the defendants’ experts on their affidavits and on whatever documents they had reviewed in preparing their reports.

[16] Under Rules 39.02(1) and (3) and 39.03(3) it is too late to conduct examinations or to ask for further productions now. It has been two years since the motion was scheduled. It has been 18 months since it was to have first been heard. The plaintiffs chose not to cross-examine the defendants’ experts in January of this year leading up to the hearing that was then set for April. I do not accept that the plaintiffs need documents or examinations that they have not sought to date despite their many opportunities to do so.

There is no Right to a Civil Trial

[17] As to the right to trial, I will resist the temptation to delve deeply into issues of access to civil justice in Canada. See: Hryniak v Mauldin, 2014 SCC 7 at para. 1. Suffice it to say that on the return of the motion, the judge will be most concerned with the question of whether she can fairly find the facts and apply the law to the facts as found on the written record. At para. 66 of Hryniak, the Supreme Court of Canada prescribes a ladder of procedural considerations before the parties are consigned to the cost, delay, and distress of a trial.

[18] I do not know anything about the facts of this case. I do not know whether the negligence alleged is of a type that must be proven by expert evidence for example. However, if, hypothetically, the nature of the negligence alleged requires that the plaintiffs adduce expert evidence to prove that the defendants’ care fell below the relevant standard in Ontario at the time, then, the lack of an expert report may itself be dispositive of the claim. If, as a matter of law, the plaintiffs cannot possibly succeed in establishing liability unless they adduce expert evidence, then I cannot understand any procedural basis to require a full trial where the plaintiffs have been unable to obtain the requisite expert evidence.

[19] I am keen to the issues addressed in Sanzone v. Schechter, 2016 ONCA 566. Summary judgment cannot be used to spring a trap on an unprepared, self-represented party who does not know the essential need for an expert report or to whom the importance of the motion schedule has not been brought home. The judge at the motion will decide if that is the case here with represented plaintiffs who sought and received an 11-month adjournment in May, 2019 due in part at least to the plaintiffs’ expressed difficulties finding expert witnesses.

Personal Attendance can be Accommodated

[20] The plaintiffs also insist that they are entitled to personal attendance at court. As civil motion court is now being held in open court once again, the plaintiff will be able to attend the courthouse if she and her counsel wish to do so. It will be up to the judge to determine the nature of the proceeding. If the parties need a ruling on whether the motion will be heard remotely or in open court (or perhaps with some people in court and others participating by videoconference) they may seek a case conference prior to the hearing date.

Mandatory Mediation

[21] This case has not reached the stage where mediation is required. Nothing stops the parties from discussing settlement however. A court can order mediation under Rule 50.13(6) of the Rules of Civil Procedure if so inclined. But, while a court can order parties to meet, it cannot order them to agree to settle. Where a party claims to have a complete defence to the claim based on the other side’s inability to obtain needed expert evidence, I see no purpose in ordering the parties into a mediation room. However, if the defendants agree to mediate, I can certainly be approached to assist or to find another judge to do so.

Threat of Motion to Remove Counsel

[22] On its face, the concern of an FLA party about a former member of the law firm opposite acting for his corporation in a business matter many years ago does not evoke a strong ethical concern. What could a retired member of the firm have told the defendants’ current lawyers about Mr. Meagher’s corporation or business years ago that could affect Mr. Meagher’s derivative claim based on his spouse’s injuries? I am not prejudging that issue. But it does not jump out at one as particularly compelling. Moreover, the raising of the matter in January, 2020 instead of 2015 and the plaintiffs’ failure to move on the issue to date, lead me to conclude that the issue is being raised now as a tactic and, I would add, inappropriately so. If it was really an issue in January of this year, why have the plaintiffs not have dealt with it before being called into CPC to re-schedule the motion?

[23] The ethics of justice system participants is not a scheduling issue. It is an issue underpinning the essential validity of the entire system. Raising ethical issues like conflicts of interest and bias are serious allegations. They are not mere throw-aways to try to buy some time. If the plaintiffs were concerned about the defendants’ law firm acting, they ought to have been in court with their evidence immediately to protect themselves and to safeguard the appearance of justice in the proceedings. Raising ethical allegations against other participants in the justice system without evidence and without moving on the issues on a timely basis is just tactical. It is not appropriate and should not be condoned.

The Defendants are Entitled to a Hearing Too

[24] The goal of the civil justice system is to provide a fair hearing and outcome to all of the parties before the court. To receive compensation, any plaintiff must prove both negligence and causation on a balance of probabilities; the onus rests with the plaintiff, not with the defence. In most medical malpractice cases, a plaintiff cannot succeed without an expert opining on the applicable standard of care, confirming there has been a breach of that standard, and that causation exists. The defence is entitled to know the case it has to meet at trial. In this case, unusually, the defendants have been first to serve expert reports and the plaintiffs have failed to respond by delivering their own expert opinions. It is difficult to comprehend the request by counsel for the plaintiffs for a “day in court” in these circumstances.

[25] By contrast, it is fair and just that the defendants be given their chance to meet their burden on a motion for summary judgment as was scheduled by a judge two years ago. Unlike a fine wine or cheese, civil lawsuits generally do not improve with age. This case is five years old. The plaintiffs have had ample time to exercise all procedural opportunities and to collect their evidence. But, defendants suffer costs, delay, and the distress of jeopardy too. A defendant has every bit as much right as a plaintiff to her, his, or its day in court. Professional negligence claims have been hanging over these defendants for half a decade.

[26] The summary judgment motion would have been heard in April but for the Covid-19 pandemic. The factual record is fixed. No further evidence may be delivered except with leave of the motion judge.

[27] I do not have enough information to amend the timetable created by Chalmers J. in the event that a trial is ultimately required. If the motion judge dismisses the motion for summary judgement, she will no doubt be cognizant of her obligation to be seized of the matter and consider appropriate procedural orders to move the case forward with alacrity.

[28] No costs.

F.L. Myers J.

Date: July 22, 2020

Delivery of Written Motion Materials to an Online Document Storage Folder at Sync.com

1. All motion participants are required to make their best efforts to use the following document delivery method in addition to sending documents to the court by email. Law firms shall assist self-represented parties to name and upload their documents if requested to do so. Any party may request a case conference to discuss any problems they encounter with these rules.

2. Documents that are not uploaded onto Sync.com as required by these rules, or as otherwise allowed after a case conference, may not be read for the motion or application.

3. In addition to emailing all material to the court, all parties (or the party directed by the Triage Judge, if any) shall provide an online document storage folder at www.sync.com in which all documents will be collected and organized for the judge.

4. There is to be only one folder on Sync.com for each proceeding. All parties’ materials are to be uploaded to the same folder. See: Mann v. Chac-Wai, 2020 ONSC 3428.

5. As soon as the moving party uploads its motion record to Sync.com, it shall forthwith provide the URL or link to the opposing parties so they can access the moving party’s material and upload their own material to the folder.

6. At least one week prior to the date set for the motion, the parties will email Motion Confirmation Forms to the Motions Coordinator including the URL or link to the Sync.com folder for use by the judge to CivilUrgentMatters-SCJ-Toronto@ontario.ca.

7. Service of documents for the motion or application may be made by uploading the documents to the Sync.com folder and sending to the other parties a link to each document uploaded. Affidavits of service are not required for documents served by uploading to the Sync.com site unless the documents are not served by any other manner.

8. The Sync.com site shall contain a separate folder for material filed by each participating party. Each folder will be labelled with the filing party’s name only. Parties may upload material to their own folder only and may not alter any material uploaded by any other party except with an order of the court.

9. Each document uploaded to Sync.com shall be named using the Naming Rules set out in the Practice Advisory Concerning Civil Long Motions in the Toronto Region Effective April 3, 2018 found at: https://www.ontariocourts.ca/scj/practice/practice-directions/toronto/t/civil-long-motions/

10. Pages shall be numbered sequentially within each document if practicable.

11. All documents other than factums shall be uploaded to the Sync.com site in OCR searchable PDF format.

12. Factums shall be uploaded to the Sync.com in WORD format.

13. No Books of Authority containing the full text of authorities may be uploaded to the Sync.com site. Citations to all authorities relied upon are to be provided in each party’s factum to by hyperlinks to a publicly available free website such as.org.

14. Where oral argument has been scheduled for the motion, all parties are required to upload to the Sync.com folder a document labelled “Participants Sheet”, setting out (a) the names of all person who will be attending at the hearing for the party; (b) the names of counsel or the party who will be making oral submissions; (c) time estimates for each person making oral arguments; and (d) email addresses and telephone numbers for all participants which the court can access on the day or and during the hearing if necessary. If a participant cannot be contacted on the day of the scheduled hearing they may miss changes to the hearing time and have no way to provide documents to the court or to see documents provided by others, if any.

15. Each of the parties shall deliver a “Compendium” containing just the brief portions of the cases and the brief portions of the evidence to which each intends to refer during the hearing. Where portions of cases are included in the Compendium, the name of the case, citation, and the headnote from each case should be included as well. Where portions of the evidence are included in the Compendium, the first page of the document and identification of where it may be found in the record should also be provided.