Court File and Parties

COURT FILE NO.: CV-19-00631505

DATE: 20210503

ONTARIO SUPERIOR COURT OF JUSTICE

RE: ALINA SHEIKH by her Litigation Guardian, Sana Sheikh, and SANA SHEIKH, personally, Plaintiffs

-and-

DR. SANGEET KATHURIA, DR. RACHEL PEARL, DR. SIMONE VAZ, DR. HERBERT BRILL, DR. PRABO DWIGHT, DR. J. DOE #1, DR. J. DOE #2, DR. J. DOE #3, and THE HOSPITAL FOR SICK CHILDREN, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Brendan Morrison and Adil Abdulla (student-at-law), for the defendants

Stephen M Birman and Ava N Williams, for the plaintiffs

Kate Deakon, for The Hospital for Sick Children

HEARD: April 27, 2021

ENDORSEMENT

It’s 2021. Where’s the culture shift

[1] On January 23, 2014, the Supreme Court of Canada made the following stark and startling statements in Hryniak v. Mauldin, 2014 SCC 7,

[1] Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.

[2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

[2] Has there ever before been a time when the country’s top court has announced that an entire branch of the law does not serve the public for whom it exists? Most Canadians cannot afford to sue for compensation when they are injured or to defend themselves when they are sued. The rule of law is threatened by the delays and cost of our civil justice system. The Court called for a “culture shift” so that real people can obtain a fair measure of civil justice in Canada.

[3] Yet, just one month ago, in McIntosh v. Jason Boccinfuso, 2021 ONSC 2360 RSJ Edwards wrote:

[1] There was a time when procedural motions served a legitimate purpose in our judicial system. The clarity obtained from a pleadings motion; the unravelling of an undertaking and/or refusals motion; the need for particulars; the significance of the location for an action – these and many other motions provided younger counsel an opportunity to “cut their teeth” in front of a judge or master. Put in the context that statistically well in excess of 90% of all civil actions initiated in the court system ultimately will settle prior to trial it is reasonable to question what material impact the outcome of most procedural motions have on the final outcome.

[2] The motion before this court is just one of those types of motions. These Reasons will explain why litigants, counsel and the court, must rethink the approach to what is in essence a procedural type motion that in no way advances the litigation to its logical conclusion. These Reasons will also explain why counsel must demonstrate that they have worked cooperatively in an effort to avoid the type of procedural motion presently before this court. Sadly, despite the admonition of two other judges who had previously dealt with this matter, the fact that these motions went ahead demonstrates a lack of cooperation on the part of the litigants and or their counsel. [Emphasis added.]

[4] Like RSJ Edwards, the motion before me is the poster child for a motion that “in no way advances the litigation to its logical conclusion”. If you look up “Toronto Motion Culture” in a Canadian legal dictionary, the definition should henceforth say, “Sheikh v Kathuria, 2021 ONSC 3273”.

[5] As I explain, briefly, below, the moving parties have brought a perfectly valid motion. They win. But a Kewpie doll would be a more valuable prize.

[6] This litigation could not be about a more important issue. It is about whether the defendants’ negligence caused a newborn baby to endure a lifetime of suffering from cerebral palsy and other neurological deficits.

[7] The motor vehicle accident and then the alleged medical negligence for which the plaintiffs sue occurred in December, 2014 a few months after the Supreme Court of Canada’s release of Hryniak.

[8] It’s seven years later and the parties remain mired in costs and delay about procedural matters. There is much sound and fury signifying nothing.

This Lawsuit

[9] On December 16, 2014, the plaintiff Sana Sheikh was injured in a car accident. She was 34 weeks pregnant at the time.

[10] On December 17, 2014, Sana Sheikh gave birth prematurely to the plaintiff Alina Sheikh by caesarian section at Brampton Civic Hospital.

[11] On December 2, 2016, the plaintiffs commenced a lawsuit claiming that the defendants involved in the car accident caused Alina’s neurological injuries and premature birth. They brought the lawsuit in Brampton.

[12] On November 28, 2017, the plaintiff sued the Brampton Civic Hospital and several health care professionals who worked there claiming that Alina’s neurological injuries were caused or contributed to by alleged delay in delivering her by caesarian section. The plaintiffs also brought this second lawsuit in Brampton.

[13] On November 22, 2019, the plaintiffs started this third lawsuit in Toronto. They sue The Hospital for Sick Children and several health care professionals who worked there claiming that Alina’s injuries were caused or contributed to by negligent neonatal care administered very shortly after her birth.

Motion for Summary Judgment or a Motion to Amend?

[14] The defendants move to dismiss this action as an abuse of process. Multiple lawsuits for the same thing are bad. The defendants say that they should be sued in Brampton as part of the other lawsuits. Apart from an altruistic desire to prevent the waste of court resources brought about by multiple proceedings, what difference does it make where the Toronto doctors are sued?

[15] Both sides agree that the Toronto action should be dealt with in Brampton. The plaintiffs want the lawsuit to remain intact and be heard together with their prior claims. The defendants want this lawsuit ended and invite the plaintiffs to try to add them as defendants in their existing claims.

[16] If the plaintiffs want to add the Toronto doctors and Sick Kids as defendants in their existing claims, then under the Rules of Civil Procedure, RRO 1990, Reg. 194, the plaintiffs need permission or leave of the court to do so.

[17] The plaintiffs don’t want to add the defendants to their existing claims. By starting a new claim, the plaintiffs hope to circumvent their obligation to obtain leave.

[18] So, what difference does that make?

[19] The defendants say that as part of the leave process, they will raise questions of whether the limitation period has already run so that the plaintiffs are too late to sue the Toronto defendants.

[20] Yet, all counsel agreed that in deciding whether to grant leave to add new defendants to the existing Brampton litigation, the court will not really dig into the facts of any limitation period issue. The evidentiary burden on the plaintiffs at a pleadings amendment motion is low. Not much evidence is required to establish a basis to allow a claim to proceed with the limitation period issue being reserved as an issue for resolution in the proceeding. Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, at para. 24; 2027707 Ont. Ltd. v Richard Burnside & Associates Ltd., 2016 ONSC 530, at para. 56.

[21] In this case, there are at least two limitation period issues. First, Alina is a minor. The limitation periods for her claims are suspended until a litigation guardian is appointed for her “in relation to the claim”. Limitations Act, 2002, S.O. 2002, c. 24, s. 6 (b). The defendants want to argue that the mother’s appointment as litigation guardian in 2016 in the motor vehicle claim started the limitation period for this claim against Toronto doctors. If that is so, then since this claim was started more than two years later, there will then be a question of when the plaintiffs ought to have discovered their claims against the Toronto neonatal care professionals and hospital. Why were the claims not discovered when the plaintiffs sued the Brampton doctors?

[22] These limitation issues will be issues whether by way of defence in this claim or in the pre-existing claims. The difference is that the plaintiffs are trying to avoid having to meet even the limited assessment of the limitation period on a motion to add parties and amend pleadings. Similarly, the defendants are fighting to protect their entitlement to poke at the limitation defences on the pleadings motion.

[23] So, we are 18 months into this action and the litigation is stalled to decide whether two limitation issues get decided on summary judgment or if they are first going to be gently tested on an amendment motion.

[24] Do the plaintiffs fear that they cannot surmount the limitation period as a matter of law or on uncontested facts? If it is so clear that they are too late that they fear even a quick peak at the issues on untested facts, why have they brought this lawsuit? To add more doctors represented by the CMPA that is already at the table in Brampton? To access another insurer for a different hospital before the claim is summarily dismissed? That does not help. Is it to guard against the risk that the doctors in Brampton may point blame at the doctors in Toronto? The plaintiffs cannot help that if they have already clearly missed the limitation period. Moreover, all they need is 1% liability in Brampton to collect 100% against the CMPA in any event.

[25] Flipping around, if the Toronto doctors have a slam dunk limitation defence that will win on an amendment motion, isn’t it a slam dunk whenever and wherever brought? If they do not have a slam dunk, then what is the point of demanding that the motion to amend be brought at all? Is it just to put the plaintiffs through another procedural hoop and take a free shot? Should the amendment not just be allowed on consent with the limitation period reserved so the parties can get on with it? That would be the obvious and cooperative outcome if anyone was motivated to provide the most efficient, affordable, process to yield the earliest fair resolution on the merits for all parties.

[26] If the facts on the limitation period issue are not contested or it wins as a matter of law, then a summary judgment motion does not need to be costly and lengthy. A neat question of law distinct from all the other issues in the case is the easiest to resolve summarily.

[27] Well, the Toronto doctors say, on a motion to amend, the plaintiffs bear the burden to prove that they have a tenable claim. So all of this is to try to force the process with the more favourable burden of proof? On summary judgment, the defendants will bear the burden to show there is no genuine issue for trial. That makes no difference if the defendants say they have a slam dunk. If they don’t have a slam dunk, then there is no value to preserving the ability to raise the issue on the motion to amend in any event.

Abuse of Process

[28] The commencement of the claim in Toronto is an abuse of the court’s process. Maynes v. Allen-Vanguard Technologies Inc., 2011 ONCA 125. It creates an inefficient multiplicity and it is expressly designed to avoid meeting the test for leave to add parties in the pre-existing litigation. This is not a separate and distinct claim as discussed by the Court of Appeal in Abarca v Vargas, 2015 ONCA 4. The car accident, birthing care, and neonatal care all occurred within about 24 hours. They are all alleged to have caused or contributed to the exact same damage. The plaintiffs will claim joint and several liability among all the health care professionals and facilities once the claims are joined in Brampton. This case falls squarely within Maynes v. Allen-Vanguard Technologies Inc., 2011 ONCA 125.

Order

[29] This action is stayed pending the outcome of the motion to amend in Brampton. The Toronto doctors undertake that they will not raise in Brampton a defence based on the passage of time after this action was brought. This meets the issue discussed by my colleague S.F. Dunphy J. in Nuco Jewelry Products Inc. v Lynott, 2016 ONSC 5532, at paras. 27 and 28.

[30] Counsel for the defendants ask me to rule that it is the service of the statement of claim in this action rather than its issuance a month earlier that is the relevant date for limitation purposes. That issue is not properly before me. The judge who hears a motion involving the limitation period will have to decide that point if it matters. Another little tactical edge sought.

Post-Script

[31] Both sides are fighting about what kind of motion or worse, motions, will be needed to resolve the Toronto doctors’ limitation defence. Will it be summary judgment in which the defendants need to prove there is no genuine issue requiring a trial? Or will it be a motion to amend in which the plaintiffs first bear a burden to surmount a minimal evidentiary hurdle and then, if they succeed, a motion for summary judgment? If the plaintiffs truly fear the motion to amend, then why take this expensive and long detour off the road to claiming compensation for their clients at trial.? If the defendants have a great limitations defence, does it really matter when or where it is asserted?

[32] How many years and tens of thousands of dollars will be spent on the clever strategizing to avoid or to enforce a motion with a minimal burden that usually goes on consent?

[33] The cases could all be at trial and the limitation period dealt with on the full record rather than spending years to keep out extra doctors whose “insurer” is already before the court.

[34] How does a court or any lawyer on any side tell Alina’s family that under our civil justice system, the resolution of their claims for compensation for Alina’s disastrous injuries is being deferred and costs substantially increased by tactical and strategic positioning over who bears the burden of proof on a procedural motion to review the limitation period that is not yet even advanced by one set of doctors?

[35] The plaintiffs may or may not succeed in any of their claims. I have no idea. But are they not entitled to some effort to provide them timely, affordable, fair access to civil justice?

Costs

[36] The normative approach in Ontario is that the successful party is entitled to partial indemnity for its costs. I invite counsel to agree on the costs given the defendants’ complete success. If they cannot agree, then I will consider at a case conference the evidentiary and hearing process required to resolve this next dispute. Counsel may contact my Judicial Assistant to schedule the case conference.

F.L. Myers J.

Date: May 3, 2021