COURT FILE NO.: CV-15-4725-00 DATE: 2021-03-11 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

PARIS PEREKEME ODEDE and LORINE ODEDE Sukhjinder Bhangu and Bois Wilson, for the Plaintiffs Plaintiffs

• and -

DR. PIERO TARTARO and YORK DIAGNOSTIC CENTRE Defendants Stephanie Sugar, for the Defendant/Moving Party, Dr. Piero Tartaro T. Craig Edwards, for the Defendant/Moving Party, York Diagnostic Centre

HEARD: virtually, by Zoom videoconference on March 10, 2021, at Brampton, Ontario

Price J.

Reasons For Decision

Overview

[1] The Defendants, doctor and medical centre, move for summary judgment dismissing this action for damages for medical negligence on the ground that it was commenced eleven months beyond the statutory limitation period and on the further ground that the Plaintiffs have failed to produce an expert report substantiating their claim.

[2] The motion was first before the Court on July 8, 2020, four months after the Government of Ontario had made an Order under the Emergency Measures Act enacting measures to combat the global COVID-19 pandemic. At that time, the Plaintiffs, who had not responded to the motion, obtained an adjournment sine die by arguing that Mr. Odede had travelled to Nigeria to obtain evidence in support of his action and had gotten “stuck there” owing to quarantine measures and travel restrictions, and was unable to obtain the evidence he was seeking or return to Ontario to help his lawyers prepare his response to the motion.

[3] Shortly after the adjournment, Defendants’ counsel asked Plaintiffs’ counsel for dates when the motion could be returned, and when he refused to provide such dates, Defendants’ counsel scheduled the motion to be heard eight months hence, on March 10, 2021. The Plaintiffs filed no material in response to the motion until the day of the hearing. At the hearing, their lawyer requested a further adjournment to an indefinite date, and filed only an affidavit of the lawyer’s assistant which essentially repeated the explanation they had offered eight months ago, to the effect that Mr. Odede was still “stuck” in Nigeria and that owing to COVID-19 disruptions, described in general terms, he had been unable to respond to the motion.

[4] After hearing argument from the parties, the Court refused the Plaintiffs’ request for a further adjournment and allowed the Defendants’ motion for summary judgment, with reasons to follow. The following are the reasons for those decisions.

Background Facts

[5] Eight years ago, Mr. Odede’s family physician, Dr. Wong, referred him to Dr. Tartaro for complaints of rectal bleeding. Dr. Tartaro was then working at the York Diagnostic Centre, the other defendant in this action.

[6] On November 22, 2012, Dr. Tartaro performed a colonoscopy and polypectomy on Mr. Odede and Mr. Odede was discharged from the Clinic.

[7] Shortly after the procedure, Mr. Odede developed a fever and experienced pain and attended to the emergency department of Rouge Valley Health Centre, where a CT scan revealed a perforation in the colon. On November 24, 2012, Mr. Odede underwent a colectomy, where 20.0 cm of the colon was resected (the “Repair Surgery”).

[8] On October 19, 2015, two years and eleven months after Mr. Odede’s surgeries, Mr. Odede and his wife, Lorine Odede, began the present action against Dr. Piero Tartaro and York Diagnostic Centre, where the surgery was performed, for damages for medical malpractice.

[9] The Plaintiffs’ primary allegation, regarding damages, is that as a result of the Repair Surgery, Mr. Odede had to delay a work-related trip to Nigeria that was originally scheduled to be immediately after the procedure. The Plaintiffs plead further that when Mr. Odede finally went to Nigeria in March 2013, he suffered relapses and was unable to return from Nigeria to Toronto. The Plaintiffs claim that Mr. Odede suffered significant financial losses because his initial trip to Nigeria was delayed, and because he was unable to do as much business after the Repair Surgery as he had done previously.

[10] The Defendants delivered a Statement of Defence in which they denied negligence, and claimed that the action was statute barred, having been commenced eleven months after the two-year statutory limitation period prescribed by the Limitations Act, 2002, had expired.

[11] On June 20, 2016, the Plaintiffs delivered an Amended Statement of Claim pleading further facts related to discoverability. The Amended Claim alleges:

In or about September 2014, one Dr. Peter Kagbala of Diete-Koki Memorial Hospital in Nigeria, who had also seen Mr. Odede amongst other doctors opined that Mr. Odede had an iatrogenic complication during colonoscopy in Canada in November of 2012 and that all the problems he is suffering are a result of this colonoscopy which resulted in proferation [sic] in the colon because of which a colectomy had to be conducted and 20.0 cm of the colon was resected.

[12] On June 7, 2019, the Defendants served an expert report on the Plaintiffs in support of their position that Dr. Tartaro had not been negligent, and that the surgery performed had likely not caused the conditions which he attributes to it. The report stated that Dr. Tartaro’s techniques met the standard of care in Ontario.

[13] Defendants’ counsel requested an expert report from the Plaintiffs but did not receive one. In April 2018, they examined the Plaintiffs for discovery and again requested an expert report from the Plaintiffs. No report has yet been forthcoming, five and a half years after the action was commenced.

[14] A year and a half after the examinations for discovery were completed, Defendants’ counsel served draft motion materials on the Plaintiffs for the present motion for summary judgment dismissing the Plaintiffs’ action. In their material, the Defendants argue that there is no genuine issue for trial owing to the expiry of the limitation period and the Plaintiffs’ failure to deliver an expert report which the law requires from a plaintiff in a medical malpractice action, substantiating their claims of negligence. The Defendants’ draft motion materials were served in September 2019. The final materials dated May 27, 2020, were served on June 26, 2020.

[15] The motion came before Justice Doi on July 8, 2020. The Plaintiffs had not filed responding material. They requested an adjournment of the motion on the ground that quarantine measures and travel restrictions resulting from the World-wide COVID-19 pandemic had prevented them from obtaining the evidence they needed to respond. Four months earlier, on March 20, 2020, the Government of Ontario had issued an Emergency Order suspending limitation periods in this Province.

[16] In adjourning the motion sine die, Justice Doi wrote, in part:

[3] Plaintiff’s counsel, Mr. Bhangu, explained that his client has been unable to consult with his proposed medical expert in Nigeria due to the COVID-19 lock- down. Mr. Bhangu also advised that he is unable to obtain instructions from his client or prepare a response to this motion due to technological difficulties in Nigeria that have compromised his ability to communicate meaningfully with his client. I accept Mr. Bhangu’s representations which he made as an officer of the court.

[4] This summary judgment motion is based on the purported expiry of a limitation period and the lack of an expert report to support the medical malpractice claim. Given the nature of the motion, I accept that the Plaintiff’s efforts to obtain his treatment records and an expert medical opinion in Nigeria may well be important for his response to the motion. I add that the Plaintiff may seek to adduce evidence from a suitably qualified foreign expert witness: Grivicic v Alberta Health Services (Tom Baker Cancer Centre), 2017 ABCA 246 at para 36, leave to appeal denied ; Stepita v. Dibble, 2020 ONSC 3041 at para 30.

[5] Based on the foregoing, and having regard to the record and submissions of counsel, I am persuaded this summary judgment motion cannot proceed at this time. Through no fault of his own, the Plaintiff is stuck in Nigeria where his efforts to prepare his case have been hampered by the global COVID-19 pandemic. Although I appreciate the various earlier delays in this proceeding, I find that it would be unfair and prejudicial to the Plaintiff to require the motion to proceed at this time.

[6] In light of the prevailing uncertainty with global quarantine measures and travel restrictions related to the global COVID-19 pandemic, it is impossible for me to reasonably predict when the Plaintiff will likely obtain his medical records and the expert opinion in Nigeria, or exhaust reasonable efforts to do so, and then return to Canada to prepare his case. Accordingly, in lieu of timetabling a return for this long-motion for summary judgment, I adjourned the motion sine die so the parties could later return the motion to an appropriate future date.

[17] The Emergency Order made on March 20, 2020, suspending limitation periods, expired on September 14, 2020, and has not been renewed.

[18] On July 10, 2020, Defendants’ counsel, Ms. Sugar, wrote to Plaintiffs’ counsel, Mr. Bhangu, to seek his agreement to a rescheduled date for the motion of January 20, 2021, being the first date available date from the Court. Mr. Bhangu replied on the same day that he would not confirm the dates and would advise when the Plaintiff was able to return from Nigeria and when he would be prepared to serve responding materials.

[19] There was no further reply from Mr. Bhangu.

[20] Beginning in August 2020, there were news reports and government announcements that indicated international flights from Nigeria were to resume August 29, 2020. On August 20, 2020, Ms. Sugar followed up with further correspondence referencing these reports and requesting a timetable to be put in place for rescheduling the motion. Ms. Sugar asked for a response by August 24 with respect to proposed dates for rescheduling the motion, failing which the date would be booked unilaterally. Ms. Sugar wrote, in part:

The Court is currently booking into February 2021 on Wednesdays for long-motions. Please advise your availability to re-schedule the motion for February 17, 24, or March 10.

If we do not have your confirmation by Monday, August 24, we will schedule unilaterally at the first available date convenient to us.

In advance of the July 8, 2020 hearing date, and before Justice Doi, you requested an adjournment on the basis that your client was in Nigeria and you were unable to prepare responding materials. On our calls and in follow up correspondence of July 6 and 7, you indicated in writing that rescheduling in a September or October timeframe would be acceptable. At the hearing of the motion, late fall was also indicated.

I then sought to reschedule for the first available date of January 21, 2021, and in your email correspondence of July 10, 2020 you objected to rescheduling to this date on the basis that you "do not know when [your] client will be returning and if [you] will be able to prepare and file the responding materials by then." This was a complete departure from your prior commitment that fall would be acceptable to you and the Plaintiffs.

[21] With regard to the Plaintiffs’ expert report, Ms. Sugar wrote:

Expert Report

As you stated before Justice Doi, the Plaintiffs are unable to secure any report from a Canadian physician that is critical of Dr. Tartaro or would establish that there was a breach of the standard of care or causation of damages.

You indicted that you intend to obtain and advance an expert report from a Nigerian physician because you are not able to secure any report in Canada.

I reiterate the objection made before Justice Doi, and as confirmed by the caselaw, properly qualified expert on the standard of care must be similarly placed and situated to Dr. Tartaro in order to be an admissible and valid opinion. A Nigerian physician cannot speak to the Canadian standard of care.

[22] Again, there was no response from Mr. Bhangu. Accordingly, the motion was booked with the Court for March 10, 2021. On August 31, 2020 Ms. Sugar wrote to Mr. Bhangu confirming the rescheduled date.

[23] There were news reports that international travel partially resumed in and out of Nigeria on September 3, 2020. On October 2, 2020 the Nigerian Civil Aviation Authority released a public letter to airline operators outlining the further expansion of international flight operations. A copy of the Aviation Authority’s letter, which was retrieved online, was tendered in evidence before me.

[24] On November 12, 2020, having not received any response from Plaintiffs’ counsel, Ms. Sugar followed up by email reiterating the request from the August 20 letter to put a timetable in place for the exchange of materials. Mr. Bhangu replied the same day indicating that he was trying to be in touch with his clients and would respond by November 17, 2020. Yet again, no response was received from Mr. Bhangu.

[25] Ms. Sugar followed up by email on January 21, 2021 indicating the Defendant’s intention to proceed with the March 10, 2021 motion date and seeking confirmation as to the Plaintiff’s intention to file responding materials in advance of the motion. Having received no response, Ms. Sugar again followed up on February 17, 2021 requesting confirmation of the motion and indicating the intention to proceed with the motion on the scheduled date. Yet again, there was no response received from Plaintiffs’ counsel.

The Plaintiffs’ Request for a Further Adjournment

[26] When requesting a further adjournment of the motion on March 10, 2021, Plaintiffs’ counsel, while acknowledging that he had refused to provide a date when he would be available for a hearing of the motion, argued that Dr. Tartaro’s counsel should not have set the date unilaterally. I disagree.

[27] This Court, in 2041094 Ontario Inc. v. Aplus General Contractors, 2016 ONSC 2175, was called upon to decide whether Ms. Wise, the counsel for the moving party, had unreasonably delayed bringing a motion for security for costs in a construction lien action, where Mr. Mubarak, counsel for the responding party, had repeatedly failed to provide his available dates when asked to do so. I held that counsel for the moving party was entitled to schedule the hearing unilaterally and could be faulted for not having done so earlier. I stated:

[73] Ms. Wise was required to balance the following, somewhat conflicting, dictates of the court and of the standards governing her conduct as a lawyer:

(i) Rule 48.04 of the Rules of Civil Procedure, which restricts a litigant’s right to move for security for costs by requiring leave for such a motion after the action is set down for trial;

(ii) Rule 1.04(1) of the Rules of Civil Procedure, which provides that the Rules are to be liberally construed to secure the just, most expeditious, and least expensive, determination of every civil proceeding on its merits;

(iii) The court’s practice directions in some areas, including Toronto, which direct counsel to consult each other as to their availability before scheduling the hearing of a motion;

(iv) Clause 1.03 (1) (a) of the Rules of Professional Conduct, published by the Law Society of Upper Canada, which states that a lawyer must discharge all his/her responsibilities to other members of the profession honourably and with integrity;

(v) Subsection 6.03 (3) of the Rules of Professional Conduct, which provides that a lawyer must not engage in sharp practice;

(vi) Subsection 6.03 (1) of the Rules of Professional Conduct, which requires a lawyer to be courteous, civil, and act in good faith, with all persons with whom the lawyer has dealings in his or her own practice; and

(vii) Paragraphs 11 and 12 of The Advocates’ Society publication, “Principles of Civility for Advocates”, which recommend that counsel consult opposing counsel regarding scheduling matters, in an effort to avoid conflicts and attempt to accommodate the calendar conflicts of opposing counsel for previously scheduled hearings and other functions.

[74] The court expects counsel not to book motions unilaterally, as reflected in the statement by Master Birnbaum in Guttmann v. Halpern, paras. 1 and 2, when he commented on the practice direction in Toronto governing the scheduling of motions:

…Mr. Tighe, for the defendants, raised two preliminary matters at the beginning of the motion.

Firstly, he raised the manner in which the motion was scheduled. I agree that the procedure used was unusual, but this did not mean that I would not hear the motion. Master Linton is not seized of this action. The procedure to be followed is clearly set out in practice directions from the court. Counsel are to communicate with each other to advise of their available dates and then there is to be a telephone call to the scheduling unit on the 10th floor to book the motion. The policy for this procedure is so that the booked time is used and there will not need to be an adjournment and a waste of court time with the resulting denial of another motion not being able to be heard because a list is fully booked. Counsel need to accommodate each other within reason. We do not expect motions that are not urgent to be unilaterally booked.

[75] Similarly, Justice Shaw, in Beneda v. Canada (Attorney General), para. 6, criticized counsel for scheduling a hearing on a date when opposing counsel was not available, necessitating a later motion to adjourn the hearing. He said:

The motion for the adjournment, in my opinion, should not have been necessary. The hearing dates of July 31 and August 1, 2006, should not have been set the way they were. Mr. McKeachie and Mr. Anderson had made it clear that they were not available on those dates. They were not being obstructive. They were simply unavailable. They should not have been told that they had to bring a motion to adjourn. … The Advocates’ Society has published a short document, “Principles of Civility for Advocates,” which although not intended as a code of professional conduct, is intended to encourage and maintain civility in our justice system. I draw attention to paragraphs 11 and 12:

11. Counsel should consult opposing Counsel regarding scheduling matters in a genuine effort to avoid conflicts.

12. In doing so, Counsel should attempt to accommodate the calendar conflicts of opposing Counsel previously scheduled in good faith for hearings, examinations, meetings, conferences, vacations, seminars or other functions.

This publication has much to recommend it.

[Emphasis added]

[76] Mr. Moubarak’s criticism of Ms. Wise for trying to accommodate his schedule and not schedule the motion unilaterally is unwarranted. When seen in the context of his own failure to respond to her efforts to his availability for the motion, his attribution of bad faith to her is unfair and discourteous. The commentary to Rule 6.03(1) of the Rules of Professional Conduct, requiring that a “lawyer shall be courteous, civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice,” states that the lawyer “should avoid ill-considered or uninformed criticism of the competence, conduct, advice … of other legal practitioners”. Further, the Principles of Professionalism for Advocates state at paragraph 28 that “Advocates should avoid disparaging personal remarks or acrimony toward opposing counsel.”

[77] Justice Scherr, in the Ontario Court of Justice, noted in Sambasivam v. Pulendrarajah, 2012 ONCJ 711:

There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. S.(C.) v. S. (M.) (2007), 38 R.F.L. (6th) 315 (Ont. SCJ).

[78] Ms. Wise can be faulted for going to unreasonable lengths in seeking to secure Mr. Moubarak’s consent to a date for the hearing of her motion. Master Nolan, in setting aside the dismissal of an action for delay in Flieger v. Canada (Attorney General), para. 10, made the following comment on the delay that had occurred in that case:

While it is difficult to say that there has been no delay in the litigation, it is my view that there has been delay on both sides and that neither side has contributed more than the other. Neither party has availed itself of the remedies contained in the Rules of Civil Procedure to move the matter along. It is not correct that a contested motion can only be scheduled if both parties consent to the date. If that position was articulated by a Courts Administration staff, that information should have been questioned with someone higher in authority. Such a policy, if followed, would lead to absurd results. A party avoiding a motion which might put its action at risk could simply refuse to consent to a date and the motion could never be heard.

[Emphasis added]

[28] Plaintiffs’ counsel in the present case, with the consent of Defendants’ counsel, tendered at the hearing, after serving it on March 5 and trying to file it, on consent, on the day before the hearing, an affidavit of his legal assistant, Divya Keswani, in support of the Plaintiffs’ request to further adjourn the hearing of the motion. I note that documents sent on the day before the hearing, although received by the Court Office, are not, in fact, filed, unless the Trial Office confirms that they have been accepted for filing. Usually, documents filed so late cannot be transmitted to the judge assigned to hear the motion before the hearing begins, and I did not receive from the Trial Office the affidavit, nor the factum that was also tendered by the Plaintiffs at the hearing, with the consent of the Defendants.

[29] Ms. Keswani states that Dr. Tartaro's draft motion materials were served some time in September 2019 but that the final materials, dated May 27, 2020, were not served until June 26, 2020. I note that this was eight months ago.

[30] Ms. Keswani states that she is informed by Mr. Bhangu that the Plaintiff Mr. Odede had gone to Nigeria on March 12, 2020, to procure some documents that were required to be produced as answers to undertakings given by him at his examination, and to obtain medical expert opinion from Dr. Kagbala, in Nigeria, who had treated him in order to assist him in this matter.

[31] Ms. Keswani states that she is informed by Mr. Bhangu that Mr. Odede was scheduled to return to Ontario on May 5, 2020 but “has been stuck in Nigeria because of lockdown due to COVID 19 and has not been able to return”. No documents such as a return ticket, or details of the cancellation of a flight or attempts to re-book have been offered.

[32] Ms. Keswani further states:

12. Mr. Bhangu and I have tried to get in touch with Mr. Odede, the Plaintiff in this matter several times and have not been successful. Out of the several calls that have been made by me and another assistant (Ms. Anita) working in Mr. Bhangu's office, we have been able to speak with Mr. Odede only once.

[33] Ms. Keswani does not provide the details of the successful call, how it was made, why it succeeded where other efforts had failed, identify who spoke with him, what was said, or whether arrangements were made for how to communicate again.

[34] Ms. Keswani further states:

13. I have been informed and I believe it to be true (as my parents live in Nigeria) that power outrage is a major problem in Nigeria. There is no electricity most of the times because of which people in Nigeria have a very limited use of their electronic gadgets like computers and cell phones which require to be charged often.

14. I have been informed that Mr. Odede, the Plaintiff is still stuck in Nigeria and has not been able to return because of COVID 19. Mr. Odede has explained that there had been times when the flights were opened and he could have come but he and several other Canadians or foreign citizens were unable to come because of lack of knowledge of timings of such flights and because of the rush of people wanting to return. Mr. Odede has also informed that since he was unable to obtain the necessary evidence /medical records, it was pointless (for the purpose of this litigation) for him to return.

[35] These last two paragraphs fail to identify the source of the information, or how and when it came to Ms. Keswani. However, the Defendants consented to the admission of the affidavit and did not make objection to the paragraphs based on their non-compliance with subrule 39.01(4).

[36] Rule 20.02 (1) provides that at the hearing of a motion for summary judgment, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. O. Reg. 438/08, s. 12. Arguably, Ms. Keswani’s affidavit was tendered only in support of the adjournment request, and not in opposition to the motion itself. Nevertheless, it is required to identify the source of her information and her failure to do so lessens its weight.

[37] Plaintiffs’ counsel, in criticizing Defendants’ counsel for returning their motion, and in support of their request for a further adjournment of indeterminate duration, rely heavily on the endorsement made by Justice Doi on July 8, 2020, when he adjourned the motion sine die.

[38] Plaintiffs’ counsel argues that the Defendants should not have taken steps to return the motion until there was a “material change in circumstances” since Justice Doi adjourned the motion. His position, simply stated, is that a presumption arises from Justice Doi’s findings, that it continues to be impossible to determine when Mr. Odede will be able to obtain the evidence he needs to respond to the motion.

[39] Plaintiffs’ counsel argues that the above presumption should prevail until conditions in Ontario, with regard to quarantine measures and travel restrictions, have improved to the point that litigants can travel freely and visit hospitals or doctors’ offices. Until that point, he argues, the onus is on the Defendants to demonstrate that conditions in Nigeria would have permitted Mr. Odede to obtain his medical records and the expert opinion he seeks to support his case. Only then, he argues, the onus will shift to Mr. Odede to offer more detailed evidence regarding the conditions in Nigeria, as the Court can take judicial notice of the fact that conditions there will impose greater impediments to Mr. Odede obtaining the evidence he seeks. For the reasons that follow, I am unable to accept the Plaintiffs’ argument and find that the Plaintiffs have failed to meet the test for obtaining a further adjournment of the motion.

Jurisprudence

[40] The court exercises discretion as to whether to allow or deny an adjournment request. In Toronto-Dominion Bank v. Hylton [1], Epstein J.A., for the Court of Appeal, commented on how this discretion should be exercised:

Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter, including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. [Emphasis added.]

[41] The Court of Appeal identified additional factors to be considered in relation to adjournment requests in Law Society of Upper Canada v. Igbinosun (2009), 2009 ONCA 484, 96 O.R. (3d) 138 (C.A.). At paragraph 37, Weiler J.A., speaking for the Court, stated:

A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and the finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceeding up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date, and the length of the requested adjournment should also be considered. [Emphasis added]

[42] In Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222, Strathy C.J.O. stated, for the court:

[18] The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani (2004), 69 O.R. (3d) 790, per Laskin J.A. dissenting, but not on this point, at para. 14:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.

[Emphasis added]

[19] Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.

[20] Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:

Laskin J.A.'s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.

[21] The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request. The fact that a party is self-represented is a relevant factor as the court has an obligation to ensure that all litigants have a fair opportunity to advance their positions.

[22] In Ariston Realty Corp. v. Elcarim Inc., [2007] O.J. No. 1497 (S.C.), a case much relied on by the appellants, Perell J. helpfully set out at para. 34 a non-exclusive list of factors that may be weighed in the exercise of a court’s discretion with respect to an adjournment.

[23] That list includes not simply factors of immediate concern to the parties, but factors affecting the broader public interest, including the objective of determining the matter on its merits, the appearance of justice and the needs of the administration of justice in the orderly processing of trials.

[24] The list in Ariston also suggests that the court should consider whether the refusal of an adjournment would significantly compromise the ability of the party prosecuting or defending the litigation and the effect of the adjournment on substantive and procedural justice.

[25] The list also makes it clear that the court must consider “the competing interests of the parties in advancing or delaying the progress of the litigation”.

[26] Finally, Perell J. noted, the judge is entitled to consider “the particular circumstances of the request for an adjournment and the reasons and justification for the request”.

The Reason for the Adjournment Request

[43] The stated reason for the adjournment request is to enable Mr. Odede to obtain his medical records and an opinion from a doctor in Nigeria in support of his position that the Defendants were negligent and that Mr. Odede did not discover the relevant facts until a date that was within two years before the Plaintiffs began their action. The strength of this reason depends on the relevance of the evidence Mr. Odede says he is seeking and the reasons his counsel says he has been unable to obtain it to this point.

[44] I will first consider the relevance of the evidence sought by Mr. Odede in relation to each of the grounds raised by the Defendants in support of their motion, namely, the limitation defence and the plaintiffs’ failure, eight and a half years after Mr. Odede’s surgery, to produce an expert report substantiating the alleged malpractice. In order to be admissible on the motion, such evidence must be relevant to those issues. In order to be relevant, the evidence must be capable of affecting the outcome.

[45] The Court of Appeal stated, in R. v. Truscott, at paras. 22 and 23:

[22] Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely: R. v. J.(J.-L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 at para. 47 (S.C.C.); R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323-24 (Ont. C.A.); R. v. B.(L.) (1997), 116 C.C.C. (3d) 481 at 492-93 (Ont. C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 524. Evidence will be irrelevant either if it does not make the fact to which it is directed more or less likely, or if the fact to which the evidence is directed is not material to the proceedings.

[23] Relevance is contextual in that it depends on the facts in issue, the position taken by the parties in respect of those facts, and the other evidence adduced in relation to those facts: see R. v. Arp (1998), 129 C.C.C. (3d) 321 at 338 (S.C.C.) ….

[46] The Court of Appeal, in Truscott, noted that because relevance is contextual, a court will often be unable to determine relevance at the time the evidence is proffered, and will receive the evidence conditionally and determine the relevance of the evidence after the evidentiary picture has been fully developed. However, there are instances, and these often arise in motions for summary judgment, when the court is called upon to consider the relevance of evidence that is proposed to be tendered, in order to determine whether it discloses a genuine issue for trial. The Court in Truscott stated: “A court should not hear evidence on the chance that it might somehow, at some time, in some way become relevant in the proceedings.”

[47] There no reasonable prospect that the evidence sought by Mr. Odede will support the Plaintiffs’ argument that they did not know the material facts as of November 24, 2012. The further paragraph pleaded in the Amended Statement of Claim that suggests it was only in September 2014 that Mr. Odede was given an opinion that his alleged ongoing symptoms were caused by the 2012 procedure is legally irrelevant and is refuted by the Plaintiffs’ own testimony. Mr. Odede allegedly suffered damages right away – he had to attend at the ER and have the Repair Surgery. That there may be later identified different damages does not “re-start” the limitation period at that later time. Knowledge of the extent of damages is not relevant to the commencement of the limitation period.

[48] The Court of Appeal, Lawless v. Anderson, 2011 ONCA 102, held, at para. 28, that a medical expert opinion is not required in order for a claim to be discoverable:

While courts speak of the need to obtain a medical opinion or the need to have access to the medical records, these are not required in all cases: see McSween v. Louis. Moreover, a formal written medical opinion is not required – what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in. This point was well expressed in Gaudet et al v. Levy et al.:

It is a question of fact as to when the information developed by his solicitor or by himself has reached the stage that a reasonably prudent person, with appropriate access to medical knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or plaintiff following a reasonably diligent investigation) would have determined that he had prima facie grounds for inferring that his doctor had been negligent or had engaged in malpractice upon him.

[Emphasis added]

[49] To the extent that Mr. Odede may wish to rely on the records of his consultation with a doctor in Nigeria in September 2014, to support his position that the surgery performed by Dr. Tartaro was not negligent, the report of a doctor in Nigeria would not be capable of establishing that fact.

[50] To succeed in a medical negligence action, a plaintiff must establish, on a balance of probabilities with expert evidence, the following three elements: (a) the defendant breached the requisite standard of care, (b) the plaintiff suffered injury or loss; and (c) the defendant’s breach of the standard of care was the actual and legal cause of the injury or loss. See: Ter Neuzen v. Korn, [1995] 3 SCR 674, at para. 57; Richmond v. Balakrishnan, 2010 ONSC 5888, at para. 22, aff’d 2011 ONCA 316, leave to appeal refused, .

[51] A physician will be found to have met the standard of care if he or she exercises the degree of care and skill that would reasonably be expected of an average physician in his or her field with the same experience and in the same circumstances. Physicians are not held to a standard of perfection and an unfortunate outcome does not, in itself, imply that the physician has fallen below the applicable standard of care. (See: Bafaro v. Dowd, [2008] OJ No. 3474, at para. 24, aff’d 2010 ONCA 188. See also: Crits v. Sylvester aff’d [1956] S.C.R. 199, at pages 143-144).

[52] To be successful in a medical malpractice action, a plaintiff must lead expert evidence to establish that the defendant physician has fallen below the standard of care. The plaintiff is also required to lead expert evidence to establish a causal connection between any alleged breach of the standard of care and the alleged damages suffered. (See: Suserski v. Nurse, 2008 ONCA 416, at paras. 4-5, leave to appeal refused, . The Court of Appeal stated at para. 5 of Suserski v. Nurse, in upholding summary judgment, “without evidence capable of establishing these two essential aspects of their claim in negligence, the plaintiffs’ action would inevitably fail.”

[53] In Richmond v. Balakrishnan, above, another summary judgment motion, the court held at para. 22 that the plaintiff’s failure to adduce expert evidence which demonstrates causation in a medical malpractice case is fatal:

If the plaintiff in a medical malpractice case does not deliver an expert opinion in support of the allegations he or she makes that the requisite standard of care was not followed and that this failure caused his or her injuries, then a genuine issue has not been raised with respect to the material fact and summary judgment must be granted.

[54] The Court of Appeal has consistently upheld the dismissal of cases where the plaintiff failed to serve an expert report addressing the requisite elements of a medical negligence claim:

[55] Medical malpractice cases are complex — even where they may appear simple to the eye of a layperson — and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from the "clearest of cases" the absence of expert evidence in support of the plaintiff's medical malpractice claim is fatal. (See: Liu v. Wong, 2016 ONCA 366, at para. 14, leave to appeal refused , citing Larman v. Mount Sinai Hospital, 2014 ONCA 923, at paras. 4-5).

[56] A properly qualified expert on the standard of care must be similarly placed and situated to Dr. Tartaro in order to be an admissible and valid opinion.

[57] The law applicable to the relevance of opinions from foreign experts in medical malpractice actions in Ontario arising from procedures performed in this Province is stated in the recent case of Stepita v. Dibble, 2020 ONSC 3041. In which the Court held that only a local expert can properly opine on the standard of care:

[22] Whether an expert is appropriately qualified depends on where they obtained their experience. In Lucuta v. Stevens, the proposed expert had never practiced in Ontario and had worked mostly in a U.S. clinic. The court concluded that while the proposed expert possessed orthopedic credentials, he did not have “the credentials or related work experience in an Ontario hospital setting to opine on procedures and interactions between medical personnel in an Ontario hospital.”

[23] Courts in Ontario have reached the same conclusion as Lucuta and refused to admit expert opinion evidence where experts do not have the necessary expertise to opine on the standard of care in Ontario:

(a) In Hirchberg v. Branson Drug Store, this court rejected the evidence of a doctor where the evidence was “insufficient to establish his expertise regarding Canadian standards of practice, let alone those applicable to the physician defendants’ circumstances.” The Court of Appeal agreed;

(b) In Kurdina v. Gratzer, the Court of Appeal dismissed appeals from two summary judgment decisions which dismissed a claim against psychiatrists for negligence, concurring with the lower court that none of the deponents offered by the appellant were qualified to practice in Ontario or qualified to provide expert evidence on the applicable standard of care in Ontario.

[58] The Plaintiffs have offered no evidence suggesting that the opinion they are seeking from the doctor Mr. Odede consulted in Nigeria could or would address the Canadian standard of care.

[59] Before Justice Doi, Plaintiffs’ counsel cited the case of Grivicic v. Alberta Health Services, 2017 ABCA 246, in support of his argument that the Plaintiffs required a report from the doctor in Nigeria to respond to the motion. In Grivicic, the issue was whether, for a particular medical specialty or procedure, the standards of practice could be the same in Canada and in the United States, such as to permit an American expert to testify. The Alberta Court of Appeal stated, at para. 34:

[34] The Supreme Court of Canada stated in Wilson v Swanson, [1956] SCR 804 at 817, 5 DLR (2d) 113:

[T]he medical man must possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases, and it is the duty of a specialist such as the appellant, who holds himself out as possessing special skill and knowledge, to have and exercise the degree of skill of an average specialist in his field: see Meredith, Malpractice. Liability of Doctors and Hospitals, 1956, at p.62, and the authorities there referred to. [emphasis added]

[35] In Ter Neuzen v Korn, [1995] 3 SCR 674 at 33, 127 DLR (4th) 577, the Supreme Court confirmed this approach to determining the standard of care of physicians when it wrote at paragraph 33:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field.

[36] It may well be that the standard of care for a particular medical specialty or medical procedure is the same in Canada and the United States: Allen v University Hospitals Board, 2000 ABQB 509 at para 74, 268 AR 201; Loffler v Cosman, 2010 ABQB 177 at paras 79-80, [2010] CarswellAlta 1051 (WL Can). However, the party hoping to use a foreign expert should produce evidence to the effect that the standards of care are the same or similar to those in Canada. This follows the basic evidentiary requirement of relevance; the expert must be able to speak to the issues in the case at bar. See e.g. Sima v Hui, 2008 ABQB 104 at paras 42-44, 90 Alta LR (4th) 360; Gayton v Rinholm, 2012 ABQB 232 at para 16, [2012] CarswellAlta 727 (WL Can). Mrs. Grivicic did not provide any evidence of the equivalency of care in Canada and the United States.

[37] While Mrs. Grivicic may be correct that there is no general principle barring the use of American experts, this does not exempt her from the requirement to prove that the reports of the American experts she refers to are relevant to the specific issues in this case. Where a foreign expert does not opine on the standard of care in Alberta, the court may give little weight to his or her opinion.

[38] As for Mrs. Grivicic’s claim that Canadian physicians tend to protect each other, she provided no evidence to substantiate this claim. The Master and chambers judge were entitled to draw the inference that Mrs. Grivicic was unable to obtain a report from a Canadian physician not because of the reluctance of physicians to opine on the work of their colleagues but because she could not find a physician to support her opinion.

[Emphasis added]

[60] As in Grivicic, the Plaintiffs have provided no evidence to support a finding that no physician in Ontario would provide evidence in support of a medical malpractice claim of the kind the Plaintiffs have advanced. In the absence of such evidence, and given the Plaintiffs’ delay in obtaining, or even seeking, such evidence from a doctor in Nigeria, I am unable to find that the reason they have advanced for requesting a further adjournment is persuasive.

[61] To the extent that Mr. Odede may wish to rely on the records of his consultation with the doctor in Nigeria to support his position that his condition at that time resulted from the surgeries performed in November 2012 and that the extent of his damages was not discoverable until then, this approach is foreclosed by this Court’s decision in Liu v. Wong, 2015 ONSC 6595. In Liu, the Court granted summary judgment based on a limitations defence and for want of expert evidence.

[62] In Liu the plaintiff had a knee surgery which left surgical staples in his knee. The staples were removed by his family physician, Dr. Wong, in September 2011. The plaintiff’s evidence on discovery was that after the removal he was in serious pain, and “stated that, in his opinion, it was ‘so obvious’ on that date that Dr. Wong had removed the staples improperly.” (paras. 6-7 of the decision). The plaintiff thereafter went to the hospital and told the treating nurses that the pain in his knee was caused by Dr. Wong’s removal of the staples.

[63] The plaintiff’s claim in Liu was not commenced until October 9, 2014 – as in this case, three years after the date of the incident. The plaintiff claimed that he did not have knowledge of the facts supporting the cause of action until he received a subsequent medical report from another physician in 2013 opining on the extent of the damage. (paras. 13-14)

[64] The Court rejected this argument. At paragraph 29, it stated:

It is clear that in the fall of 2011, the plaintiff viewed himself as having suffered a loss at the hands of Dr. Wong. I therefore find that the plaintiff was sufficiently aware of the material facts to know that his “injury, loss or damage” had occurred and was caused by or contributed to by an act or omission of Dr. Wong. Accordingly, Dr. Wong’s motion for summary judgment is granted and the plaintiff’s claim is dismissed.

[65] In affirming the motions judge’s decision, the Court of Appeal reaffirmed that the law is clear – “the extent of damages does not delay time under a limitation period.” At para. 29, the Court stated:

Mr. Liu claims that he did not know he had a cause of action – a claim – until he received the doctor’s report following the tort claim assessment respecting the car accident in which he first injured his knee, on October 19, 2012. The report did not address any injury related to his treatment by Dr. Wong. However, the law is quite well established that it is knowledge of the material facts necessary to support the cause of action that triggers the commencement of the litigation period. Knowledge of the extent of the damages is not necessary. As the Supreme Court of Canada has said in Peixero v. Haberman, [1997] 3 S.C.R. 557, at para. 18:

[O]nce the plaintiff knows that some damage has occurred and has identified the tortfeasor, the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty in the cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.

[Emphasis added]

Delay and the Previous Adjournment

[66] I am unable to conclude that the Plaintiffs or their lawyers, by the exercise of reasonable diligence, have been unable, in the eight and a half years since Mr. Odede says he formed his own opinion that Dr. Tartaro had been negligent, would have been unable to obtain such evidence, even if they faced delays in obtaining a report from such an expert on whether the standard of care was met in this case. Their delay cannot be excused by reference to the disruptions associated with the COVID-19 pandemic, when they were aware since at least March 2019 that the Defendants would be bringing a motion in which this evidence would be required.

[67] While the failure to produce an expert report is a ground relied on by the Defendants in support of their motion for summary judgment, the delay in obtaining the report, or even seeking it, is a factor this Court must consider in determining whether the Plaintiffs are entitled to an adjournment of the motion. It is not only delay in making the request for an adjournment, but delays that gave rise to the need for the adjournment, that is relevant when considering the request.

[68] While there was, in Ontario, an Emergency Order suspending limitation periods on July 8, 2020, when Justice Doi allowed the Plaintiffs’ last request for adjournment, that Order expired on September 14, 2020, and has not been renewed. The total lockdown in areas of Ontario that were most highly affected by the COVID virus has ended, and the disruptions resulting from the virus have lessened. It can no longer be concluded that litigants in Ontario are unable to access their medical records or obtain opinions from medical experts.

[69] On July 8, 2020, the Plaintiffs secured an adjournment of eight months based on the same argument they have now renewed in support of a new request for an adjournment of indefinite duration. In these circumstances, the onus was on the Plaintiffs to provide detailed evidence that conditions in Nigeria are substantially worse, and still prevent Mr. Odede from obtaining his records or the opinion he sought. He has not done so.

[70] The evidence of Ms. Keswani is simply too vague, too general, and too unsupported, to support a finding that Mr. Odede and his counsel, by the exercise of reasonable diligence, were unable to obtain the evidence they say they needed in time for the motion.

The Length of the Adjournment

[71] In July 2020, when Defendants’ counsel first sought to canvass dates for the return of the motion with Plaintiffs’ counsel, Plaintiffs’ counsel took the position that a return date in September or October 2020 would be acceptable. Yet, when Ms. Sugar sought to reschedule to January 21, 2021, Plaintiffs’ counsel refused to confirm that date and at the hearing before me, the request was for another adjournment of indefinite duration.

[72] In her letter dated August 20, 2020, to Plaintiffs’ counsel, which Plaintiffs’ counsel tendered, Ms. Sugar wrote:

In advance of the July 8, 2020 hearing date, and before Justice Doi, you requested an adjournment on the basis that your client was in Nigeria and you were unable to prepare responding materials. On our calls and in follow up correspondence of July 6 and 7, you indicated in writing that rescheduling in a September or October timeframe would be acceptable. At the hearing of the motion, late fall was also indicated.

I then sought to reschedule for the first available date of January 21, 2021, and in your email correspondence of July 10, 2020 you objected to rescheduling to this date on the basis that you "do not know when [your] client will be returning and if [you] will be able to prepare and file the responding materials by then." This was a complete departure from your prior commitment that fall would be acceptable to you and the Plaintiffs.

[73] Plaintiffs’ counsel offered no evidence on the basis of which the Court could have adjourned the motion for a short period or, indeed, granted anything other than another adjournment of indefinite duration.

Impact on Each of the Parties of Allowing or Refusing the Request

[74] The Plaintiffs may attribute a summary judgment dismissing their action to the refusal of their request for adjournment. I have weighed this possibility but conclude, for the reasons stated above, that an adjournment would not have saved from the inevitability of a summary judgment. In my view, the Plaintiffs would have no prospect of success on the motion even if the adjournment were to be granted and they were to produce the evidence they say they seek. The only result of allowing the adjournment would have been to increase their costs, as well as the costs of the Defendants.

[75] I am also mindful of the impact a further adjournment, allowed on the basis argued by the Plaintiffs, would have on the administration of justice. The Defendants would face further delay in the resolution of the action against them and other litigants would face similar delays based on a presumed inability, for however long the COVID pandemic lingers, that litigants are unable to comply with their disclosure and evidentiary obligations.

[76] For all of the foregoing reasons, I exercised my discretion to refuse the Plaintiffs’ request for a further adjournment of the Defendants’ motion. I now turn to the motion itself.

The Test on a Motion for Summary Judgment

[77] The leading case on summary judgment is, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Justice Karakatsanis sets out the following principles which govern the disposition of summary judgment motions:

On a motion for summary judgment under Rule 20.04, 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-finding powers. There will be no genuine issue requiring a 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, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she 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). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they 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.

[78] Justice Karakatsanis (supra) adds the following:

There will be no genuine issue requiring a 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.

[79] Limitation period issues are uniquely suited to motions for summary judgment in that they represent a discrete issue requiring limited evidence. Numerous recent cases involving allegations of medical negligence have considered and applied the powers provided in Rule 20 in the context of limitations defences. (See: Soper v. Southcott, [1998] O.J. No. 2799 (C.A.); Lawless v. Anderson, 2011 ONCA 102, at para. 38; Brown v. Wahl, 2015 ONCA 778, at para. 21; Liu v. Wong, 2015 ONSC 6595, at para. 29, aff’d 2016 ONCA 366; Slack v Bednar, 2014 ONSC 3672, at para. 73-7; Tremain v. Muir (Litigation guardian of), 2014 ONSC 185, at para. 64-65; Latulippe v. Greenspoon, 2017 ONSC 6579.)

[80] In order to successfully resist a motion for summary judgment on the basis of a limitation defence, the plaintiff must lead evidence of material facts relating to the limitation period which require a trial for determination. (See: Soper v. Southcott, [1998] O.J. No. 2799 (C.A.), at para. 14.)

[81] In Connerty v. Cole, 2012 ONSC 5218, at para 9, the presiding judge notes,

The moving party has the burden of persuading the court, on the balance of probabilities, through evidence, that there is no genuine issue requiring a trial. Once the moving party has met its burden, the responding party has an evidentiary burden to show that its claim has a real chance of success.

[82] The following well-established principles of summary judgment pre-dating Hryniak have endured since Hryniak and are especially apt in the context of the present case, in which the Plaintiffs have tendered no meaningful evidence to address the issues raised in the motion.

(a) Both parties must put their “best foot forward”. The court is entitled to assume on a summary judgment motion that it has all the evidence that would be available at trial (See: Sweda Farms Ltd v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26-27, aff’d 2014 ONCA 878, leave to appeal refused ); and

(b) The parties are required “to lead trumps or risk losing”. (See: Sweda Farms, at para. 26; Combined Air Mechanical Services Inc v. Flesch, 2011 ONCA 764, at para. 56, aff’d, Hryniak, supra.)

(c) The court is required to take a “hard look” at all of the evidence put forward on the motion. (See: Combined Air, at para. 15)

[83] In the present case, I find that the Defendants’ motion for summary judgment allows me to make the necessary findings of fact, to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.

The Limitations Defence

[84] Section 4 of the Limitations Act, 2002 provides that a “proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” (See: Limitations Act, 2002, SO 2002, c 24, Sched B, s. 4.30)

[85] Section 5 of the Limitations Act, 2002 sets out the test for the date on which a claim is “discovered”:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[86] For the reasons that follow, I find that all of the material facts giving rise to the claim were known or knowable as of November 22-24, 2012.

[87] The Statement of Claim pleads that the Procedure with Dr. Tartaro occurred on November 22, 2012, and the perforation was discovered, and the Repair Surgery performed over the two days following from November 23-24, 2012. Mr. Odede was discharged from the hospital after the Repair Surgery on November 30, 2012.

[88] The Plaintiffs therefore knew by November 24, 2012,

(i) that the perforation had occurred;

(ii) that the perforation was caused by the Procedure; and

(iii) that Dr. Tartaro that performed the Procedure.

[89] Further, damage had already occurred. The Plaintiff required an ER attendance and repair surgery to fix the perforation. He testified at his Examination for Discovery (Q. 214 to 215), that at that point, he believed Dr. Tartaro had done something wrong:

Q. You thought that maybe something had gone wrong?

A. Well, what I thought is what really happened, because Dr. Tartaro cut my -- the polyp that he saw and perforated it, my colon. He did not care to go and check to see if there was bleeding, if there was a perforation, or nothing. He just let me go.

Q. You believed at the time that the only reason that you needed surgery was because he had done something wrong?

A. I don't know who else done something wrong. These are after thoughts I’m talking about, you know. If he knew that there was a perforation, why did he not go and correct it and let me go?

[90] Mr. Odede testified (Q. 599 to 609) that he had further conversations with Dr. Wong and counsel, and specifically knew or was aware that he could bring a claim against Dr. Tartaro for the alleged negligence:

Q. You said that you spoke to Dr. Tartaro.

A. Yes.

Q. That you could have had a conversation with him and settled all of this in a hotel. When did you speak with him?

A. He said I should come and, 'Let’s talk.' I said, 'I can’t come.'

Q. When was this?

A. 2013.

Q. When was it generally?

A. I said 2013. I can’t remember what date.

Q. Was it before you left for Nigeria [Being March, 2013]?

A. Yes.

Q. It was sometime between January and March, 2013 that you spoke with Dr. Tartaro?

A. Could be -- November the surgery, so it could be December.

Q. At that point you said something that you alluded to wanting to settle things with him, that you could have settled in a hotel room. What did you mean by that?

A. I did not allude to anything. He called me and said he wants to talk about this, you know, and I am thinking probably Dr. Wong called him and told him that there’s going to be a lawsuit against him or so, because Dr. Wong even called me and said what am I doing with this case or something, and claimed also that he did not send me to Dr. Tartaro or whatever his name is. I said, 'Dr. Wong, you must be senile.' Ask him. I told him so.

Q. Then you decided to sue him for $2.5 million?

A. Pardon?

Q. Then you decided to sue him for $2.5 million?

A. This process was on.

[91] Mrs. Odede testified (Q. 109 to 115 of her Examination) to the same facts, that there was contemplation of a lawsuit against Dr. Tartaro in the period following the procedure:

Q. Is there anything else that you recall about any discussions with Dr. Tartaro, or anyone from the clinic, after that time period?

A. Dr. Tartaro -- the nurse, I didn't get to talk to her anymore. Dr. Tartaro, I spoke to him maybe one more time.

Q. When was that?

A. Or after the surgery I didn't get to talk to him. I’m not sure. It could be the same talk before the surgery. I remember talking to him. I don't know if it was before or after, regarding what he might be willing to do.

Q. What do you mean?

A. Like, instead of a lawsuit, what he wanted to do type of thing.

Q. I see. When was that?

A. That was probably -- if he did not think that he has done something wrong involving lawsuit, I don't think that it would have been the talk before. Maybe it was after that. I can’t tell you for sure.

Q. Was it within a couple of months?

A. Within couple -- before he [Mr. Odede] traveled, yeah.

Q. Before March, 2013 then?

A. Yeah. Sorry, I’ve gone through -- there’s a lot that I’ve gone through since that time.

Q. I appreciate that.

A. Everything is related.

[92] Both Mr. and Mrs. Odede confirmed (Mr. Odede at Q. 797-799; Ms. Odede at Q. 123-130) that they were in discussions with their counsel during this time period, were contacting him in relation to the matters in issue and were making recordings of notes over which they claim privilege.

[93] The Plaintiffs argue that they required additional information in order to determine whether a proceeding would be an appropriate means to address the injury, loss, or damage. In the present case, there is no evidence of any facts that the Plaintiffs discovered after October 19, 2013, or within the two years preceding the commencement of the action, that they lacked at an earlier point, that enabled them to make that determination.

[94] I have addressed the Plaintiffs’ argument that the information he obtained from the doctor in Nigeria in September 2014 supports a finding that the claim was not discoverable until then in my discussion above of the Plaintiffs’ request for adjournment. The Court of Appeal stated in Lawless v. Anderson, cited above, at para. 23:

Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run. The law is clear that once a plaintiff knows that some damage has occurred and has identified the tortfeasor, the cause of action is deemed to be discoverable.

[95] The Supreme Court stated, at para. 18 of Peixero v. Haberman, cited above within the excerpt from Liu v. Wong:

[O]nce the plaintiff knows that some damage has occurred and has identified the tortfeasor, the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty in the cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.

[96] Based, in particular, on that jurisprudence, I conclude that there is no genuine issue for trial on the limitations defence.

Conclusion and Order

[97] For the foregoing reasons, I find that there is no genuine issue for trial. It is accordingly ordered that:

1. The Defendants’ motion is allowed.

2. Summary judgement shall issue dismissing the Plaintiffs’ action.

3. The Plaintiffs shall, by March 24, 2021, deliver their written submissions on the costs of the motion and the action, not to exceed 4 pages, and a Costs Outline.

Price J. Released: March 11, 2021

COURT FILE NO.: CV-15-4725-00 DATE: 2021-03-11 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: PARIS PEREKEME ODEDE and LORINE ODEDE Plaintiffs - and - DR. PIERO TARTARO and YORK DIAGNSTIC CENTRE Defendants REASONS FOR DECISION Price J. Released: March 11, 2021

[1] Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, at para. 38, per G.J. Epstein J.A. for J.I. Laskin J.A., separate concurring reasons by Sharpe J.A.