COURT FILE NO.: CV-14-00524639

DATE: 20210504

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SURAJ VERMA by his Litigation Guardian YOGRAJ VERMA, YOGRAJ VERMA, KAMLESH VERMA, KANCHAN CHOPRA, PANKAJ VERMA and VERONICA VERMA Plaintiffs

AND:

THE SCARBOROUGH GRACE SALVATION ARMY HOSPITAL, and/or in the alternative THE SCARBOROUGH HOSPITAL, DR. WARREN LATHAM, DR. VAIRAVANATHAM, DR. RAJANI, DR. RANJIT SINGH RANA, KI KIT LI REHAB CENTRE, PHYSIOTHERAPIST NAMED “JENNIE” FROM KI KIT LI REHAB CENTRE, ROUGE VALLEY CENTENARY HOSPITAL, DR. JOHN JACOBS and PHYSIOTHERAPIST AT THE SCARBOROUGH GRACE SALVATION ARMY HOSPITAL NAMED TERRY SMITH Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: R. Zatzman-Stein and C. Moore for the Defendants, Dr. Warren Latham, and Dr. Rajani Vairavanathan

E. Najgoldberg, for the Defendant, Janice Ackerman (incorrectly identified as “Physiotherapist named ‘Jennie’ from Ki Kit Li Rehab Centre

K. Deakon, for the Defendants The Scarborough Hospital (incorrectly identified as The Scarborough Grace Salvation Army Hospital”), Rouge Valley Health System (incorrectly identified as “Rouge Valley Centenary Hospital”), and Simon Leung (incorrectly identified as “Physiotherapist at the Scarborough Grace Salvation Army Hospital, named Terry Smith”)

D. Muise, for the Defendant Ki Kit-Li Rehab Centre

No one appearing for the Plaintiffs

HEARD: May 3, 2021, by teleconference

ENDORSEMENT

Overview

[1] The action of the Plaintiff, Suraj Verma was dismissed by order of Sanderson, J. on July 23, 2020. The remaining Plaintiffs brought derivative claims pursuant to section 61 of the Family Law Act. The Defendants argue that the derivative claims cannot proceed as a result of the dismissal of the primary Plaintiff’s claim. In the alternative, the Defendants argue that the remaining Plaintiffs have not taken any steps to move the action forward and the action ought to be dismissed for delay.

[2] The Defendants jointly bring this motion for summary judgment dismissing the claims of the derivative Plaintiffs. For the reasons set out below, I grant summary judgment and dismiss the action.

Background Facts

[3] On January 23, 2010, Suraj Verma was involved in a slip and fall accident. He was taken by ambulance to the Scarborough Grace Hospital where he was seen by Dr. Vairavanatham. Mr. Verma complained of left knee pain. The x-ray of the knee was normal, and Mr. Verma was discharged. He was instructed to follow-up with the fracture clinic. In February 2010, he was seen in the Fracture Clinic by Dr. Latham. He had a CT scan of his left knee which revealed a cyst. He was referred for physiotherapy.

[4] Mr. Verma returned to the hospital to see Dr. Latham on Mach 15, 2010. His complaints were related to his left hip. X-rays confirmed a hip fracture. He underwent surgery on March 17, 2010. There was apparent non-union of the left hip. In September 2011, Mr. Verma had hip replacement surgery.

[5] On January 23, 2012, the action was commenced in Newmarket. The action was transferred to Toronto in August 2014. The action was brought by Suraj Verma, his litigation Guardian, Yograj Verma. The Plaintiffs included his parents, Yograj and Kamlesh Verma, and his adult siblings, Kanchan Chopra, Pankaj Verma, and Veronica Verma. Suraj Verma’s parents and siblings bring their action pursuant to s. 61 of the Family Law Act.

[6] On August 25, 2014, a timetable was established which required the Plaintiffs to set the action down for trial by December 30, 2015. On January 18, 2019, counsel for the Plaintiffs was removed as solicitor of record. The order was served on the Plaintiffs on February 7, 2019. Suraj Verma is a party under a disability, and it was necessary that he be represented by a lawyer. The litigation guardian failed to appoint counsel for Suraj Verma. On May 15, 2019, the Public Guardian and Trustee was appointed as litigation guardian for Suraj Verma. The derivative Plaintiffs failed to retain new counsel and have not served Notices of Intention to Act in Person.

[7] The Hospital Defendants entered into settlement discussions with the PGT on behalf of Suraj Verma. On April 23, 2020, the PGT, on behalf of Suraj Verma, agreed to a without costs dismissal of his claims. On July 23, 2020, the settlement was approved by Sanderson, J. As a result, the action of Suraj Verma and all crossclaims as between Suraj Verma and the Defendants were dismissed.

[8] After the action of the primary Plaintiff, Suraj Verma was dismissed, counsel for the Defendants contacted the remaining Plaintiffs about the matter. Counsel was advised that the Plaintiff, Pankaj Verma was the spokesperson for the family. On April 13, 2021, she advised that the family “would like to drop the lawsuit.”

Analysis

Summary Judgment

[9] Pursuant to Rule 20.04(2)(a), the Court shall grant summary judgment where there is no “genuine issue requiring a trial.” A trial is not required if the record before the court; “(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” than going to trial: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 15.87, at para. 49 and 66.

[10] On a motion for summary judgment, the moving party bears the initial onus of establishing that there is no genuine issue for trial. The responding party must then meet the burden of demonstrating that their claim has a real chance of success: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 30 and 32. In responding to a summary judgment motion, a party must put its best foot forward and may not rest on the mere allegations or denials in its pleadings. The court will assume that the parties have placed before it, in some form, all of the evidence that will be available at trial: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 33 and 201-206. The fact a party is self-represented does not alter the test for summary judgment: Khan v. Krylov & Company, 2019 ONSC 1666, at para. 61.

[11] The FLA claims brought by Suraj Verma’s parents and siblings are derivative claims. A derivative claim cannot continue if the claim of the primary plaintiff has been dismissed. In McRitchie v. Dr. Natale, 2011 ONSC 3400, the parents attempted to continue their derivative claims under the FLA, after the primary minor plaintiff’s claim was dismissed. The court held that, (a) the parents’ claim depended entirely on the claim that had been advanced on behalf of the minor plaintiffs, and (b) as the claims of the minor plaintiffs had been dismissed the claims of the parents could not continue: at para. 15.

[12] The remaining plaintiffs’ claims are derivative and dependant upon the claim of Suraj Verma. The dismissal of Suraj Verma’s claim pursuant to the order of Sanderson, J. dated April 23, 2020, results in the barring of the remaining Plaintiffs’ derivative action pursuant to the doctrine of res judicata: McRitchie v. Dr. Natale, at para. 23.

[13] I am satisfied that there is no issue requiring a trial. The remaining Plaintiffs’ claims have no chance of success. I grant the Defendants’ motion for summary judgment and dismiss the Plaintiffs’ claims.

Dismissal for Delay and Failure to Appoint Counsel or to File a Notice of Intention to Act in Person

[14] Had I not granted summary judgment, I would have dismissed the Plaintiffs’ action for reason of delay and failure to appoint new counsel or to file a Notice of Intention to Act in Person.

[15] The remaining Plaintiffs have not taken any steps to move this matter forward since the settlement of Suraj Verma’s action. In particular, the Plaintiffs have not appointed new counsel or deliver a Notice of Intention to Act in Person, after the previous lawyer was removed as solicitor of record on January 18, 2019. The Defendants also argue that the Plaintiffs are in breach of the order dated August 25, 2014, requiring the action to be set down for trial by December 30, 2015. To date the action has not been set down for trial.

[16] The Plaintiff, Pankaj Verma advised counsel for the Defendants that the family do not wish to prosecute the action. I am satisfied that the remaining Plaintiffs have not demonstrated an interest in moving the action forward and it is therefore appropriate for the court to exercise its discretion and dismiss the action.: Ford v. Thorold (City), [2006] OJ No. 2839, at para. 13.

Disposition

[17] I conclude that the claims of the remaining Plaintiffs are derivative in nature and cannot continue in light of the dismissal of the claim of the primary Plaintiff, Suraj Verma. There is no genuine issue requiring a trial.

[18] I grant Summary Judgment dismissing the Plaintiffs’ action. The Defendants do not seek costs.

[19] Order to go in accordance with the draft order filed and signed by me.

DATE: MAY 4, 2021