ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-41788
DATE: February 14, 2020
B E T W E E N:
JANET CAMPAGIORNI, DARIO CAMPAGIORNI CAPAMGIORNI, DARIO-JOHN CAMPAGIORNI, JAMIE CAMPAGIORNI and PETER CAMPAGIORNI
Plaintiffs
- and -
LYNE LEGARE, HOSEN SALEM ADREWI, MUSBAH SALEM FARHAT, FATHI ABDUSALAM GADHAFI, GRANT PATRICK SEIFRED, NARESH KUMAR MURTY, ROBERT STEVEN WERHUN WERHU, NISHMA SINGAL, ARLENE AUDREY FRANCHETTO, DREW ALEXANDER BEDNAR, NIAGARA HEALTH SYSTEM, HAMILTON HEATH SCIENCES and JANE DOE, JOHN DOE (being physicians, nurses or other health-care practitioners who provided advice and treatment to the plaintiff before June 22, 2011, and June 30, 2011)
Defendants
COUNSEL: Jillian Evans, lawyer for the plaintiffs Eric Pellegrino and Emilie Bruneau, lawyers for the moving defendant, Drew Bednar
HEARD: December 16, 2019
JUDGMENT
The Honourable Mr. Justice H. S. Arrell
INTRODUCTION:
[1] This action was commenced by the plaintiff for damages in her medical care that she says she sustained as a result of the alleged negligence and delayed care provided by the various defendants, including the moving defendant Dr. Bednar.
[2] This motion is brought by the defendant Dr. Bednar for summary judgment dismissing this action as against him due to the expiry of the limitation period as prescribed by the Limitations Act 2002.
[3] The plaintiffs have filed a cross motion seeking an order changing "John Doe" for Drew Bednar in accordance with the proposed second amended statement of claim.
FACTS:
[4] The plaintiff first presented at the Niagara General Hospital Emergency Department on June 22nd, and again on June 23rd, June 26th and June 27th, 2011 reporting worsening complainants of neck and back pain. She was eventually diagnosed with a cervical spine abscess and transferred to Hamilton General Hospital on June 28th, 2011 where she underwent spinal decompression and fusion surgery. The plaintiff awoke from the spinal surgery paralyzed from the neck down.
[5] The plaintiff was in various hospitals thereafter including a lengthy stay at a rehabilitation hospital. She did not return home until May 2012 where she was, and continues to be, largely bed ridden and immobile.
[6] In the fall of 2012, the plaintiff began efforts to retain counsel in the Niagara Region by way of telephone calls to at least 10 personal injury lawyers. She was unsuccessful.
[7] On Decmeber 12, 2012 the plaintiff contacted the law firm of Stanley M. Tick and Associates by telephone and was advised that she would need to obtain her medical records for their review.
[8] The law firm followed up with her on January 8th and May 1st, 2013 but the medical records had not yet been obtained.
[9] Mr. Jeejeebhoy, of the Tick Law Firm, met with the plaintiff in her home on May 8th, 2013 and left a retainer agreement for her consideration. He was formally retained in early June 2013.
[10] The statement of claim was issued on June 21st, 2013 after Mr. Jeejeebhoy received the partial Niagara Hospital medical records on June 14th, and the OHIP summary on June 18th, 2013. Those records were reviewed by Mr. Jeejeebhoy prior to his drafting the statement of claim and issuing it on June 21st, 2013.
[11] The presumptive limitation period expired June 28th, 2013.
[12] The original statement of claim does not list Dr. Bednar as a defendant but does indicate "Jane Doe, John Doe" (being physicians, nurses or other health care practitioners who provided advice and treatment to the plaintiff between June 22, 2011 and June 30, 2011).
[13] In December of 2014 Mr. Jeejeebhoy obtained an expert opinion alerting him, he alleges, for the first time to the fact that orthopedic surgeon Dr. Drew Bednar may have contributed to the plaintiff's delayed receipt of medical care.
[14] The plaintiff retained new counsel and in June 2015 brought a motion seeking to add Dr. Bednar as a defendant. That order was granted on consent on the condition it was without prejudice to his right to plead a limitation defence. Dr. Bednar defended the action on May 10th, 2017 and was examined for discovery with the matter set down for trial on November 14th, 2018.
POSITION OF THE PARTIES:
[15] The defendant Dr. Bednar argues that the plaintiffs issued their statement of claim naming two hospitals and nine physicians as defendants. They did not name Dr. Bednar even though he was named in the Niagara Hospital health records in their possession at the time and indicated his role in the primary care of the plaintiff. The defendant Dr. Bednar therefore states that the presumptive limitation period expired on June 28, 2013 and the claim against him is out of time.
[16] In the alternative, Dr. Bednar argues that the claim against him was readily "discoverable" after the plaintiffs received the set of medical records on June 18th, 2013 from the Niagara Hospital which clearly named him as a consulting physician in the care of the plaintiff. On that basis, Dr. Bednar argues that the limitation period expired on June 18th, 2015 which was five months before any effort was made to add Dr. Bednar as a defendant and as such the claim against Dr. Bednar is statue barred and should be dismissed.
[17] The plaintiff argues that the only reference to Dr. Bednar in the Niagara Hospital records is a two-page type written history and physician's note authored by emergency room physician Dr. Dirgham Al-Jarrah which states as follows; "Critical line was consulted yesterday by the emergency physician and Dr. Bednar (?) was reached and the MRI sent to him last night, this morning he called at 8:30 in the morning and asked to repeat blood culture and urine culture. Also, asked to check the sensation, if the sensation gets worse then to call critical line again because there are no beds available at this time, to be delayed for 2 to 3 days."
[18] Further the plaintiff argues the only other reference to Dr. Bednar is the OHIP summary which indicated on June 28th, 2011, that he provided services. That was the day she was transferred to the Hamilton General Hospital for surgery. There was no mention in the OHIP summary of him providing any medical service prior to that date.
[19] The statement of claim, it is argued, named the physicians that the records disclosed had been responsible for the plaintiff's surgical and post-surgical care based on the information that was available at that time. Counsel for the plaintiff at the time understood Dr. Bednar's involvement, based on these partial records, as advising on the status and availability of the Hamilton General Hospital's resources at the time. Plaintiff's counsel argues that these records did not disclose that Dr. Bednar had exercised any decision-making power in the course of his communications with the Niagara Hospital, nor that he had been empowered with any discretionary control over his hospital's resources.
[20] Plaintiff's counsel argues that Mr. Jeejeebhoy, as per his unchallenged affidavit, was well aware that because of the limited records available at the time that the initial statement of claim was issued, that there might well be other physicians or individuals whose identities were not apparent. He was also well aware that those individuals might later be identified as potentially delaying the care of the plaintiff, and as a result they were named as Jane Doe and John Doe. The potential allegations of negligence against them were set out in the statement of claim.
[21] Plaintiff's counsel argues that it was not until December 11th, 2014 that the initial counsel received a partial opinion on causation from their expert who brought into issue that Dr. Bednar may have had both the obligation and the authority to admit the plaintiff to the Hamilton General Hospital on June 27th, 2011 despite the lack of beds. This was the first time it had come to counsel's attention that Dr. Bednar might have had some form of independent discretionary decision-making authority to admit the plaintiff; and by delaying the admission, may have contributed to the plaintiff's poor outcome, as a result of delay of care.
[22] The plaintiff therefore argues that the date of December 11th, 2014 is the first time it is "discovered" that Dr. Bednar might have potential liability regarding the delay of care. As a result, the limitation period should run from that date. The motion to add Dr. Bednar as a named defendant was brought on November 25th, 2015 which plaintiff's counsel argues is well within the two-year limitation period running from the date of December 11th, 2014.
[23] In the alternative, the plaintiff argues that the question of discoverability cannot be fairly determined on a motion for summary judgment as evidence needs to be called as to whether the plaintiff and her counsel acted with sufficient diligence to discover their cause of action against Dr. Bednar under all the circumstances of this plaintiff's injuries.
ANALYSIS:
[24] The only mention of Dr. Bednar in the records before Mr. Jeejeebhoy were in the Niagara Hospital records where the emergency room physician references him as indicating there were no beds available at the Hamilton General Hospital at that time. He certainly did not provide any care at that time. There is nothing in those records to indicate Dr. Bednar had any discretionary authority to admit the plaintiff to the Hamilton General Hospital. As a result of the subsequent discoveries it is undisputed that he did have the authority to admit the plaintiff despite a lack of beds.
[25] Likewise, there is nothing in the OHIP record to alert Mr. Jeejeebhoy that Dr. Bednar had the authority and discretion to admit the plaintiff to the Hamilton General Hospital earlier than what occurred. In fact, those records make no mention of him providing any care prior to the date of her admission to the Hamilton General Hospital.
[26] I therefore do not find it unreasonable that Dr. Bednar was not listed as a named defendant in the original statement of claim for either delaying the care of the plaintiff or providing negligent care to her.
[27] The real question is whether his potential involvement should had been discovered at an earlier date than it was, being December of 2014.
[28] To answer that question, the physical and emotional state of the plaintiff needs to be fully appreciated before one can conclude that she or her lawyer did not act with due diligence in discovering Dr. Bednar as a potential defendant. Likewise, the full understanding of Mr. Jeejeebhoy and his knowledge at the time of Criticall needs to be explored, as well as his understanding of policies for admission at the Hamilton General Hospital, under circumstances such as this.
[29] The plaintiff, prior to this incident in late June 2011, was from the record before me, a mobile individual who was perfectly capable of looking after herself and was leading a relatively normal life. There is nothing in the record before me that she had any inkling that there was a real possibility that she could end up a quadriplegic as a result of the treatment proposed.
[30] One can imagine therefore her shock at waking up from this surgery and discovering she was paralyzed from the neck down and would be for the rest of her life.
[31] There is little in this record to indicate that any sort of explanation was provided to the plaintiff of the results of the surgery, or any hope held out that she would improve.
[32] The plaintiff remained hospitalized after the surgery for over 10 months with little improvement.
[33] On her return home, she was allowed three hours per day of attendant care to assist her in her day to day grooming, toileting, feeding, etc. I accept her evidence that she was in severe pain and on strong analgesic medication. I also accept, without question under these circumstances, that she was depressed, distraught, and left with a feeling of complete and utter hopelessness.
[34] The plaintiff was immobile and basically bed ridden with little assistance available to her. I accept that the plaintiff had no further information about her care prior to the surgery, other than what is provided in the medical records which she had great difficulty obtaining on her own prior to finally retaining Mr. Jeejeebhoy after going through 10 other law firms without success.
[35] The records Mr. Jeejeebhoy received on behalf of the plaintiff did not indicate that Dr. Bednar had the authority to admit the plaintiff to the Hamilton General Hospital on June 27th, 2011 despite a lack of beds. There is nothing in the record to indicate that this information should have come, or could have come, to Mr. Jeejeebhoy's attention any earlier than it did than through his expert Dr. Boyd in December 2014. The real issue is whether this information that he did have from these records should have triggered an earlier investigation into the role of Dr. Bednar than he received from his expert. It was not until discoveries were completed some weeks thereafter that Mr. Jeejeebhoy was able to confirm for the first time of Criticall's systems and workings and Dr. Bednar's authority within the hospital both through Dr. Bednar and the hospital representative. This information now confirms that he had complete authority to admit patients as he felt necessary with or without beds being available.
[36] I am of the view that the record before me is incomplete on the issue of information Mr. Jeejeebhoy could have learned regarding Criticall back in 2013 and how that information may have informed him of the potential involvement of Dr. Bednar. That is evidence that must be called at trial before that question can be answered. As well the examination of Mr. Jeejeebhoy on that issue and other experts may well be crucial for a determination of that issue.
[37] Evidence must also be called on the condition of the plaintiff, what if any assistance she may have had, her pain, the extent of her depression, the effects of her medication and her true state of mind. Evidence must also be called as to what she knew about her care as well as what instructions she may have given Mr. Jeejeebhoy regarding further investigations.
[38] Rule 20 of the Ontario Rules of Civil Procedure states at 20.04 the following:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent
Drawing any reasonable inference from the evidence
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [emphasis added]
[39] In Hryniak v. Mauldin, 2014 SCC 7 at para. 49 the court instructed as follows:
[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
The overarching issue to be answered is "whether summary judgment will provide a fair and just adjudication."[^1] The Court went on to say that "the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute."[^2] [emphasis added].
[40] The Court in Hryniak further stated that at para. 66:
- The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-findings powers.
a. There will be no genuine issue requiring trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
- If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).
a. She may, at her discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[41] I conclude that the defendant has not proven on this summary judgment motion that the limitation period regarding Dr. Bednar had expired and that is an issue that must be determined through the trial process. I am not confident that I have all the necessary facts to fairly resolve this very important issue in this litigation. There is a genuine issue for trial as I am unable to reach a fair and just determination on the discoverability limitation issue on the merits without hearing evidence that will be called at trial.
[42] I conclude that this summary judgment motion "does not provide a fair and just adjudication" of the discoverability issue. I also conclude that by having this issue determined at trial, that it will not unduly delay or prolong this already lengthy and complicated trial as most of the same witnesses, except perhaps Mr. Jeejeebhoy and Dr. Bednar, needed to determine the limitation issue will already be witnesses.
[43] The plaintiff brings a cross motion for misnomer on the basis that the pleadings be corrected to accurately reflect the correct name of a party identified but misnamed in the litigation from the outset. Dr. Bednar argues this motion should be dismissed as an abuse of process and is nothing more than an improper attack on the previous order of this court to add Dr. Bednar as a defendant on the condition that a limitation defence was still a live issue at a later date.
[44] The courts have made it abundantly clear that litigants may not have endless opportunities to seek the same remedy using different legal arguments in front of different triers of fact. See Alberta v. Pocklington Foods Inc., 1995 ABCA 111, at para. 8.
[45] I am of the view this is a different situation even though the issue may become moot depending on the decision of the trial judge on the issue of discoverability regarding the appropriate limitation period.
[46] I prefer the reasoning in Loy-English v. Fournier, 2018 ONSC 6212. In that medical malpractice case John Doe was in the claim as a defendant for various allegations of negligence. When the names of the doctors were eventually discovered the presumptive limitation period had expired, and a summary judgment motion was brought. The court concluded that a misnomer motion could have been brought at the same time as the summary judgment motion, putting all issues and all remedies clearly before the court. The court found that the suggestion that the failure to bring a misnomer motion was an abuse of process, was not valid and stated at para. 14, "the plaintiff is entitled to take all reasonable steps to preserve her rights against the expiry of a limitation period".
[47] The court further added "taking various parallel prophylactic steps to avoid the application of the Limitations Act was not an abuse of process or in any event was not worthy of an extreme sanction such as a stay of proceedings." See: Loy-English v. The Ottawa Hospital et. al., 2019 ONSC 6075, at para. 28. Further the court stated at para. 14, "Even if the manner in which this litigation has been pursued is characterized as abusive, the response should be proportionate and does not follow that loss of the right to litigate is a proportionate remedy." I agree and any sanction required can ultimately be dealt with by way of costs.
[48] I further conclude that the issue of misnomer, if it becomes relevant, can best be dealt with by the trial judge hearing all of the evidence on the limitation defence and such other evidence as counsel feel is appropriate on the misnomer issue.
CONCLUSION:
[49] The summary judgment motion of Dr. Bednar is dismissed without prejudice to the issue of discoverability of the limitation period being argued before the trial judge.
[50] The misnomer summary judgment motion is dismissed without prejudice to it being argued before the trial judge.
[51] Costs of these motions are left to the discretion of the trial judge.
Arrell, J.
Released: February 14, 2020
COURT FILE NO.: 13-41788
DATE: February 14, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JANET CAMPAGIORNI, DARIO CAMPAGIORNI CAPAMGIORNI, DARIO-JOHN CAMPAGIORNI, JAMIE CAMPAGIORNI and PETER CAMPAGIORNI
- and -
LYNE LEGARE, HOSEN SALEM ADREWI, MUSBAH SALEM FARHAT, FATHI ABDUSALAM GADHAFI, GRANT PATRICK SEIFRED, NARESH KUMAR MURTY, ROBERT STEVEN WERHUN WERHU, NISHMA SINGAL, ARLENE AUDREY FRANCHETTO, DREW ALEXANDER BEDNAR, NIAGARA HEALTH SYSTEM, HAMILTON HEATH SCIENCES and JANE DOE, JOHN DOE (being physicians, nurses or other health-care practitioners who provided advice and treatment to the plaintiff before June 22, 2011, and June 30, 2011)
JUDGMENT
HSA
Released: February 14, 2020
[^1]: At para. 50. [^2]: At para. 50.