COURT FILE NO.: CV-13-5376-00

DATE: 20201211

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: SYED JAWADUL HASAN, SHAZIA HASA, SYEDA KISA ZEHRA, SYED ZAIN JAFFARY, and SYEDA ARUBA SEHRA, a minor, by her Litigation Guardian, Shazi Hasan, Plaintiffs

AND:

TRILLIUM HEALTH PARTNERS – MISSISSAUGA, DR. VERITY JANE JOHN, DR. ALAN CAMPBELL, DR. NEIL ANTMAN, DR. CHIKKAHANUMAIAH DEVARAJ, JOHN DOE and JANE DOE, Defendants

BEFORE: Justice Daley

COUNSEL: Duncan Embury, counsel for the Plaintiffs

Jennifer Hunter, counsel for the Defendant, Dr. Campbell

Barbara Walker, counsel for Defendant, Trillium

HEARD: December 4, 2020, via video conference

TRIAL MANAGEMENT ENDORSEMENT AND COSTS RULING

[1] This medical malpractice action involves very complex issues of liability and damages.

[2] The action was instituted in 2013 and I have been the case management judge, pursuant to rule 37.15, since March 2017. Also, with the agreement of all parties, I have been the pretrial and trial management conference judge since that time as well.

[3] Counsel have had several attendances on case management conferences and trial management conferences before me in order to ensure that this action was trial-ready in that all reasonable steps were taken to ensure that this nonjury action would proceed through trial in the most efficient and economical way possible.

[4] Given the complexity of this action having regard to the issues of the medical standard of care, causation, and the quantification of proper damages, the trial would necessarily involve several expert medical witnesses as well as experts with respect to damages. Counsel agreed that the trial of this action would take in the order of five – six weeks.

[5] As the trial would require evidence from several medical experts and experts in other fields and as the trial time required was significant, at the request of counsel, a fixed trial date was provided namely starting on May 13, 2019.

[6] At a case management conference on September 20, 2017, it was ordered that all liability expert reports regarding the applicable standard of care and the question of causation were to be served by counsel for the plaintiff by April 30, 2018 and that responding reports on behalf of the defendants were to be served by November 30, 2018.

[7] Counsel for the plaintiffs, not counsel presently representing those parties, breached the case management order. Rather than serving the plaintiffs' liability expert report by April 30, 2019, as ordered, counsel served a report of Dr. David Gladstone on or about March 19, 2019. This necessitated the adjournment of the fixed trial date of May 13, 2019 so as to allow counsel for the defendants an opportunity to consider Dr. Gladstone's report, obtain instructions and thereafter engage their own experts and obtain reports from them.

[8] As noted in my case management endorsement of March 25, 2019, counsel for the plaintiffs confirmed that there will be no additional expert reports, other than reply reports relating to future care costs and that no further expert reports would be tendered on behalf of the plaintiffs in respect of standard of care or causation.

[9] Following the adjournment of the fixed trial date of May, 2019, a new fixed trial date was provided namely for January 4, 2021, this being the next available fixed date for a long civil trial, as opposed to simply having the case placed on a running civil blitz sittings.

[10] Over the months as the January, 2021 trial date approached, counsel attended on several trial management and pretrial conferences before me. The most active and regular trial management conferences were held in the fall of 2020. Meetings with counsel were held over several days and regularly involved half-day attendances by counsel. These meetings were in the nature of trial management and pretrial conferences and the focus of these meetings was to work towards resolution of the action or alternately the streamlining of the steps required to properly conduct the trial.

[11] In the last week of November, 2020, counsel for the defendant doctors requested that the court convene a further trial management conference by telephone as new counsel had taken over conduct of the action.

[12] A trial management conference was convened by telephone on December 2 at which time counsel advised that a new neuroradiology expert report had just been served on behalf of the plaintiffs upon counsel for the defendants. New counsel for the plaintiff further advised that he may also be seeking to tendered two additional neuroradiology expert reports.

[13] It was submitted on behalf of the defendant doctors that the late service of the report from the neuroradiologist, again breached the trial management order made by me in September 2017. It further breached the undertaking of counsel for the plaintiff during the case management conference of March 25, 2019 he stated that there would be no additional liability expert reports relating to the issues of the standard of care or causation.

[14] Given that the neuroradiologist's report was served late, in violation of the case management order, and contrary to counsel's undertaking, and as well given that defence counsel would have no reasonable opportunity to have the report considered by an expert retained on behalf of the defendants and a responding report produced prior to January 4, 2021, there was no other fair option but to adjourn the trial.

[15] A further trial management conference was held on December 4, 2020 at which time a new trial date was set, namely for January 10, 2022, peremptory to the plaintiffs.

[16] Counsel for the defendant doctors has sought payment from the plaintiffs of the cost of trial preparation time thrown away as a result of the adjournment required resulting from the late service of the neuroradiologist's report.

[17] Counsel for the defendant hospital advised that she wished to reserve her client's rights to make costs submissions at a later date, if that was necessary, and all parties agreed that that was appropriate in the circumstances.

POSITION OF THE DEFENDANT DOCTORS RE-COST THROWN AWAY:

[18] Counsel on behalf of the defendant doctors submitted a costs outline covering the period from October 21, 2019 to December 3, 2020, which relates to the period commencing on the trial management conference date where the fixed trial date of January 4, 2021 was set and up to the date that the trial date was vacated.

[19] While the costs outline is thorough, no dockets were produced which would assist in identifying what time was devoted to trial preparation that may have to be redone prior to the newly scheduled trial date. Given the closeness of the trial date, it can reasonably be inferred that a significant portion of the time outlined in the costs outline would in fact be trial preparation time. Based on my involvement as the trial management and pretrial judge, clearly the preparation for trial in this action would be very significant for all counsel.

[20] The fees on a full indemnity basis, and disbursements, including taxes, for the period in question totalled $59,404.38. Counsel for the defendant doctors submitted that $30,000 would be a reasonable estimate for the cost of the time that would need to be duplicated in order to properly prepare for the new trial date in January, 2022.

POSITION OF THE PLAINTIFFS RE-COST THROWN AWAY:

[21] Counsel for the plaintiffs fairly acknowledged that the adjournment of this trial resulted from the late service of the neuroradiologist's report and that for that reason there was justification for the defendant doctors seeking payment of cost thrown away as a result of the adjournment.

[22] Without submitting what a fair and reasonable sum would be, he simply indicated that the costs amount as proposed by counsel was excessive.

[23] He further submitted that whatever costs were to be awarded should not constitute punishment of the plaintiffs and that they should be limited to the preparation time lost which will have to be duplicated again before the next trial date. He also submitted that without the benefit of dockets from the defendant's counsel, it was impossible to accurately identify the exact time devoted to trial preparation which will have to be repeated in due course.

APPLICABLE LEGAL FRAMEWORK & ANALYSIS:

[24] The primary purpose of a costs award is to partly indemnify the successful party for the costs associated with the litigation. There are also secondary purposes, including the encouragement of settlement; preventing frivolous, vexatious or harassing litigation; and to encourage economy and efficiency in litigation.

[25] The costs sought by the defendant doctors arise from the adjournment of this trial and relate to breaches of case management orders made with respect to the delivery of expert reports.

[26] This action was placed in case management pursuant to rule 37.15 in order to ensure that the action proceeded at a proper pace and that it was trial-ready at the time it reached the trial list.

[27] Case management orders are meant to be complied with and are not to be considered as a “suggestion” or “recommendation” to counsel on how the action should proceed.

[28] The court's management of civil actions by way of case management has been in place across Ontario for several years, with specific regional centres having case management under rule 77. In those centres not governed by rule 77, while the rules governing case management, such as under rule 37.15, are not as comprehensive, the overarching intention of case management and its importance to the timely management of civil actions is universal across this court.

[29] Rule 57.01 sets out the general principles as to how the court should exercise its discretion under section 131 of the Courts of Justice Act in awarding costs.

[30] Rule 57.01 (1) (e) is most apt in the circumstances of this case.

[31] That subsection provides that the court may consider: "(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding".

[32] The plaintiffs by their conduct, in having twice breached a case management order requiring the service of expert reports within specified time frames, has resulted in the trial of this action being adjourned twice. Thus, the plaintiffs conduct has resulted in a delay of approximately two years in this case reaching trial.

[33] No reasonable explanation whatsoever has been provided by the plaintiffs as to why the breaches of the case management orders occurred.

[34] Although not expressly stated in rule 57.01, this Court has the inherent jurisdiction to award costs for abuse of its own process: Canada (Attorney General) v. Pacific International Securities Inc., 2006 BCCA 303; R. v. Chapman, 2006 CanLII 1178 (ON CA), 78 OR (3D) 778.

[35] It has further been held that indemnity is no longer the exclusive governing principle of the law of costs and it has been noted that that principle is now outdated: Fellowes, McNeil v. Kana General International Insurance Co. (1997), 1997 CanLII 12208 (ON SC), 37 OR (3d) 464 at 475.

[36] The plaintiffs' counsel relies upon the decision of Firestone J. in Orologio v. Reali , 2019 ONSC 686, in support of his submissions that an award of costs for trial preparation thrown away is not to penalize a party who sought an adjournment or who was at fault for such an adjournment but is rather meant to indemnify the party opposite for the wasted time incurred in trial preparation. While I agree in principle with that as a general statement of the law, what was not before the court in that matter was a situation involving repeated breaches of case management orders, which twice necessitated the adjournment of the trial.

[37] I have considered the submissions of both counsel, including the costs outline submitted on behalf of the defendant doctors, as well as the proposal that an award of costs of $30,000 be made against the plaintiffs representing cost thrown away as a result of the adjournment. Absent detailed dockets as to actual trial preparation time spent, it is not easily determined as to exactly how much time was truly spent on active trial preparation.

[38] Having case managed this action for several years, I do have some insight into the time devoted by all counsel in terms of moving this case to trial and generally what time has been spent on trial preparation and as such I have concluded that an award of $20,000.00 all-inclusive is a fair and reasonable award with respect to costs thrown away on trial preparation as well as taking into account the specific and general deterrence that is necessary to ensure that parties do comply with case management orders.

[39] Although counsel for the plaintiffs did not raise this matter in his submissions, in reaching my decision as to what fair and reasonable costs should be awarded to the defendant doctors, I also took into account the grave physical limitations of the plaintiff Syed Hasan and the impact of his health on his ability to pay an adverse costs award.

[40] In the result, the plaintiffs shall pay to the defendant doctors the all-inclusive sum of $20,000.00 in any event of the cause, at the conclusion of this litigation.

Daley J.

Date: December 11, 2020