Henry v. Zaitlen

COURT FILE NO.: CV-12-459089

DATE: 20210201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SEAN OMAR HENRY, personally and as Estate Trustee for the Estate of Sandy Robinson

Plaintiffs (Responding Parties)

– and –

DR. MARSHALL ZAITLEN, DR. EDGAR JAN, DR. JOSEPH FAIRBROTHER, DR. HILARIE LOUISE SHEEHAN, DR. VERA BRIL, DR. ROBERT KURTZ, DR. JOHN DOE, JANE DOE, JOAN DOE, WILLIAM OSLER HEALTH CENTRE - BRAMPTON CIVIC HOSPITAL and UNIVERSITY HEALTH NETWORK – TORONTO GENERAL HOSPITAL

Defendant (Moving Party)

COUNSEL:

Barbara A. MacFarlane and Katelynn Drake, for the Plaintiffs (Responding Parties)

Frank McLaughlin and Stephanie Sugar, for the Defendant (Moving Party) Dr. Marshall Zaitlen

HEARD: January 15, 2021

RAMSAY J.

[1] The defendant, Dr. Marshall Zaitlen (“Dr. Zaitlen), moves for an order striking the jury notice in this action. The grounds for the motion are that because of COVID-19, the trial was adjourned once and a second adjournment would result in additional waste of time and resources given the suspension of jury trials in Toronto, and justice would be better served by striking the jury notice. The plaintiffs oppose the order sought. Both parties are relying on prejudice in support of their position.

[2] The trial is scheduled to commence on February 16, 2021.

[3] The parties agree that I may take judicial notice of facts contained in the Notices to the Profession and Public Regarding Court Proceedings in the Superior Court of Justice issued by the Honourable Geoffrey Morawetz, Chief Justice of the Ontario Superior Court of Justice (“the Chief Justice”), regarding the operations of the Superior Court of Justice during the pandemic and information and statistics set out on the government websites at every level. The notices are dealt with in greater detail below as Dr. Zaitlen also relies on the length of the delay since the cause of action arose.

[4] Toronto has COVID-19 retrofitted courtrooms dedicated to civil matters.

[5] Toronto has had jury trials during the pandemic.

[6] Toronto has made use of off-site venues for the selection of jury panels during the pandemic.

[7] In the most recent notice to the profession, the Chief Justice advised that jury trials would be suspended until May 3, 2021, at the earliest.

[8] There have been recent positive developments with respect to vaccines with vaccinations currently being administered though it is unknown when the general public will have the opportunity to be vaccinated.

[9] After submissions were completed but before these Reasons were released, counsel for Dr. Zaitlen provided the court with the decision of Louis v. Poitras, 2021 ONCA 49, released January 20, 2021.

Overview

[10] This medical malpractice action arises out of medical care provided to the plaintiff Sean Omar Henry in 2010. The statement of claim was issued on July 18, 2012 against several physicians, two hospitals, and the defendant Dr. Zaitlen, a neurologist, who is the sole remaining defendant. The plaintiffs allege that Dr. Zaitlen was negligent in his diagnosis, treatment and management of the plaintiff’s spinal injuries.

[11] The plaintiff is a single father with a seven-year-old son. The plaintiff deposes that at the age of 34 years old, he sustained permanent spinal cord injury while under the care of Dr. Zaitlen. He claims that Dr. Zaitlen failed to image his middle spine which would have revealed a dural arteriovenous fistula (DAVF) and, in turn, would have resulted in a timely diagnosis of his condition and treatment of his injury.

[12] The plaintiff deposes that he has not returned to his previous employment as an educator with the City of Toronto. He contends that he has sustained catastrophic spinal cord injuries and, as a result, has significant functional limitations, personal care issues relating to neurogenic bladder and bowel, and suffers from emotional distress, anxiety and depression.

[13] The plaintiff says that has suffered not only catastrophic injuries but also significant economic losses.

[14] The defendant Dr. Zaitlen is currently 64 years old and practices as a neurologist out of three hospitals. He sees patients in clinic through new referrals and those he follows. He was served with the statement of claim in 2012. Dr. Zaitlen deposes that the fact that this matter has been outstanding for a decade has been “very stressful and disruptive”, and he found preparing for the March 2020 trial stressful. Preparing for trial a second time has increased his stress and the prospect of the trial being adjourned further adds to his “anxiety and prolong what has already been a very protracted legal process. The prospect of having to prepare for trial again, for a third time, is very distressing.”

[15] Dr. Zaitlen deposes that preparing for trial the first time impacted his practice and led to missed clinic days and a reduction in the number of patients he was able to see. He has not provided any particulars, however. He concedes that his patients can reschedule “on relatively short notice” but says that it is inconvenient to move or reschedule numerous patients, and he has also lost many new patient referrals.

[16] Dr. Zaitlen admits in his affidavit sworn in support of the motion that Covid-19 has impacted his clinic schedule, which has been reduced, but anticipates that once the COVID-19 crisis begins to ease, there will be an increase in his workload as well as other professional and personal activities.

Leave to Bring this Motion

[17] Neither counsel addressed whether leave was required under rule 48.04 (1) to bring this motion, nonetheless, the recent decisions dealing with motions to strike the jury in the face of the ongoing pandemic have concluded that the pandemic “presents a substantial and unexpected change of circumstances that justify granting leave”: Smith et al. v. Muir, 2020 ONSC 8030, at para.33; Hipkiss v. Comeau, 2020 ONSC 7796, at para. 8, and Coban v. Declare, 2020 ONSC 5580, at para. 29, upheld by the Divisional Court: see Coban v. Declare, 2020 ONSC 7537.

[18] I find that the defendant has shown a substantial or unexpected change of circumstances subsequent to the filing of the trial record and, in any event, leave was implicitly granted on the basis that the pre-trial judge, Justice Wilson, authorized the defendant to bring the motion.

Chronology

[19] Dr. Zaitlen relies on litigation delay as well as the delay in proceeding to trial. His counsel submits that delay is the predominant and deciding factor and calls the delay in this case of eleven years “excessive”. The defendant argues that there is no certainty as to when a jury trial could be heard in Toronto.

[20] There is no evidence before the court as to which party, if any, is responsible for any litigation delay, aside from what may be gleaned from the Trial Management Report filed by the defendant. The evidence before the court provides the following chronology:

[21] The plaintiff was under Dr. Zaitlen’s care from January 2010 to July 2010.

[22] The statement of claim was issued on July 18, 2012.

[23] Examinations for discoveries were completed in November 2014.

[24] The parties participated in a mediation in February 2016.

[25] The action was dismissed as against Dr. Jan, Dr. Kurtz, William Osler Health System and University Health Network in November 21, 2016.

[26] The trial record was served in February 16, 2016 and updated on May 1, 2017.

[27] On October 19, 2017, the parties filed a Certification Form to Set Pre-Trial and Trial Dates. The form indicated that (approximately) there would be over thousand documents. It is not clear who filed the form but counsel certified that expert reports had not yet been completed.

[28] On February 7, 2018, the matter was placed on the trial list for a three-week trial to commence March 23, 2020.

[29] Expert reports were exchanged in 2018 and 2019.

[30] A pre-trial conference took place on February 3, 2020 and March 2, 2020 with Justice Stinson. The Trial Management Report noted: “plaintiff may object to late service of defence expert reports and therefore the admissibility of some defence expert evidence.” Both parties anticipated calling at least 24 witnesses to testify, 12 of which are physicians. The plaintiffs’ witnesses included a neurologist, a physiatrist, a neurosurgeon, a Life Care Planner, among others. The defendant’s witnesses included two experts on the standard of care as well as a physiatrist, urologist and future care costs expert. AV equipment, it was noted, would be brought by counsel, and there is an indication, on the report, that demonstrative evidence would be called at the trial.

[31] Justice Stinson’s Trial Management Report following the Pre-Trial Conference, just a few weeks before the trial was initially scheduled to start in March 2020 also noted:

“Plaintiff to consider further reports…respond/reply to recently served defence reports. Defence counsel advises he will not object to late service. Depending on what responses/replies plaintiff could…obtain over next 3 weeks there may be objections by plaintiff to some evidence.”

[32] As a result of the global pandemic, counsel for the parties participated in a case management conference call on March 13, 2020, and the trial was adjourned to January 18, 2021.

[33] On March 15, 2020, Chief Justice Morawetz Chief Justice of the Ontario Superior Court of Justice, issued a “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings” advising that regular operations of the Superior Court of Justice would be suspended effective March 17, 2020 until further notice.

[34] On May 5, 2020, Chief Justice Morawetz issued an Updated Notice to the Profession, advising that in-person hearings will not resume until July 6, 2020 at the earliest.

[35] On June 25, 2020, Chief Justice Morawetz issued a Notice to the Profession advising of a resumption of in-person hearings on a phased in basis.

[36] In October 2020, due to a personal conflict of the defendant’s lawyer, the parties consented to adjourning the trial once again to February 16, 2021.

[37] On October 9, 2020, Premier Ford announced that Toronto would be returning to modified stage two restrictions due to the rising increase in COVID-19 cases. On the same day, the Chief Justice issued a Notice to the Profession suspending jury selection for 28 days and only allowed (jury and non-jury) in-person trials in progress to continue in the discretion of the trial judge. At the time the notice was issued, civil jury trials were taking place in Toronto.

[38] On November 21, 2020, Chief Justice Morawetz released a further Notice advising of the suspension of new jury selection for new jury trials in all areas of the province except Green Zones until at least January 4, 2021. Toronto was not a Green Zone and was therefore affected by the suspension.

[39] On December 14, 2020, Chief Justice Morawetz extended the suspension of jury trials in all areas of the province, except Green Zones, until at least January 29, 2021 in all areas of the province except Green Zones, with jury trials to recommence February 1, 2021.

[40] On January 12, 2021, the Government of Ontario issued a province wide state of emergency and a stay-at-home order requiring everyone to remain at home for all but essential purposes for at least 28 days.

[41] On January 13, 2021, the Chief Justice issued an Updated Notice in light of the government’s notice, extending the suspension of jury trials to May 3, 2021 at the earliest.

Position of Dr. Zaitlen

[42] Dr. Zaitlen deposes that the action has been a source of stress and anxiety for him. Further delay will prolong and exacerbate his stress. Counsel for Dr. Zaitlen and Dr. Zaitlen point to the “excessive delay” of eleven years as constituting prejudice to him as well as the first Covid related delay, the anxiety and stress of having an outstanding lawsuit, and the impact on his medical practice.

[43] Dr. Zaitlen submits that delay should be the predominant and deciding factor in this case.

[44] Dr. Zaitlen submits that given the prevailing public health concerns, justice between the parties can best be served by striking the jury notice and proceeding with a virtual trial by judge alone.

[45] Counsel for Dr. Zaitlen relied heavily on the comment made by Brown J.A. in Louis v. Poitras, 2020 ONCA 815, at para. 33, that “delay in obtaining a trial date (emphasis added) can, by itself, constitute prejudice and justify striking out a jury notice”.

Prejudice Relied on by the Plaintiff

[46] The plaintiff, on the other hand, insists on having a community or members of the community with their collective judgement, life experience, values and common-sense being part of the process in resolving the issues in dispute.

[47] His evidence, which is unchallenged, is that a virtual trial will present certain challenges for him. The plaintiff deposes that he has suffered catastrophic injuries and has significant care needs. He suffers from depression and anxiety. He does not have adequate audiovisual equipment. He has childcare concerns as his seven-year-old son’s schooling has been impacted by the school closures due to Covid which will continue to be a challenge should schools remain close beyond February 16, 2021. He has no private space. He would experience certain challenges preparing and consulting with his lawyer virtually.

[48] Counsel for the plaintiff submits that the case has been prepared differently on the basis that it was to be presented to a jury and there would be substantial prejudice both economically and in the loss of substantial trial preparation aimed at the jury and the important functional difference of having members of the community determine the issues in dispute in this medical malpractice case. She has not set out in what way the case was prepared differently.

Analysis

[49] Subject to the exceptions enumerated in s. 108(2) of the Courts of Justice Act, the statutory right to a civil jury trial is governed by s. 108(1) of the Act which provides that:

“In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.”

[50] Rule 47.02 (2) of the Rules of Civil Procedure provides that a motion to strike out a jury notice may be made on “the ground that the action ought to be tried without a jury.”

[51] The jurisprudence has established that the right to a civil jury trial is a substantive one which should not be interfered with without just cause: King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, 4 D.L.R. (2d) 561, at p. 533 S.C.R; Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (Ont. C.A.), at 625; Cowles v. Balac, 2006 CanLII 34916 (ON CA), at para. 36, (leave to appeal refused in S.C.C.A. No. 496 (S.C.C), and Kempf v. Nguyen, 2015 ONCA 114 (Ont. C.A.).

[52] Despite being a substantive right, the right to a civil trial by jury is not absolute. In Girao v Cunningham, 2020 ONCA 260, Lauwers J.A. stated at para. 171: “While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.”

[53] A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which warrants dispensing with the jury. A court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury: Graham, supra.: Cowles v. Balac, supra at para. 37, Placzek v. Green, 2012 ONCA 45, 212, at para. 7.

[54] It is settled law that the test confers broad discretion on the judge (Cowles v. Balac, supra, at para. 38.). Recently, in Girao v. Cunningham, the Court of Appeal confirmed that in exercising its discretion in determining whether to discharge a civil jury, the question remains whether justice to the parties would be better served by dismissing or retaining the jury.

[55] The right to a jury trial is not to be taken away lightly (Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc., 2002 CanLII 45019 (ON CA) at para. 73.

[56] Counsel for the defendant brought the Louis v. Poitras leave application decision to my attention following the motion. The Ontario Court of Appeal has recently granted the plaintiff leave to appeal in Louis v. Poitras, 2021 ONCA 49. In Louis, the motion judge in Ottawa granted the plaintiff’s motion to strike the jury notices in two actions in the face of the uncertainty as to when jury trials would resume in Ottawa and fixed the trial dates. Civil jury trials were not being scheduled in Ottawa at the time the motion was granted, but judge-alone trials of three weeks or less were available. The defendants appealed to the Divisional Court and that court allowed the appeal, reinstating the jury notices. The plaintiff moved before Brown J.A. to stay the Divisional Court’s order pending the leave to appeal application to the Court of Appeal. Brown J.A. granted the stay and at the time he did so, there was still no indication as to when jury trials would resume in Ottawa.

[57] The leave application has now been allowed by the Court of Appeal and at the heart of the issue in Louis is the question of the extent to which an appellate court may interfere with the motion/trial judge’s discretion. As Hourigan J.A, speaking for the Court explained, at paras. 18 -19:

It is equally well settled that an appellate court reviewing a decision to strike a jury notice has a very limited scope of review. It may only interfere where the decision to strike was “exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”: Kostopoulos v. Jesshope (1985), 1985 CanLII 2047 (ON CA), 50 O.R. (2d) 54 (C.A.), at pp. 69-70, leave to appeal refused, [1985] S.C.C.A. No. 93.

Given the Divisional Court’s reasoning in this case, the admonition from this court in Cowles regarding deference bears repeating. The court warned that “an appeal court should not merely pay lip service to the concept of deference and then proceed to substitute its own view as to what the proper result should be for that of the lower court. Interference is only justified when the lower court is shown to have committed the type of error referred to in Kostopoulos”: Cowles, at para. 42.

[58] In my view, Louis does not change the law but confirms the state of the law. The decision to discharge or dispense with a jury is an exercise of a discretionary power. The motion judge had considered the state of affairs in the East Region. It was not known when jury trials would be scheduled in Ottawa but judge alone trials were known to be available within the following six months. Both Brown J.A. on the stay application in Louis and Hourigan J.A. on the leave application have merely reiterated the state of the law and have confirmed that an appellate court ought not to interfere with the motion judge’s exercise of his or her discretion in these cases unless it has been carried out arbitrarily, capriciously or on wrong or inapplicable principles, as previously articulated by the Court of Appeal in Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc., at para. 52 and Cowles v. Balac (2006). They have confirmed that appellate review of the exercise of a motion judge’s discretion to strike the jury is limited: Cowles v. Balac (2006), at para. 40. And, to do so, the appellate court must find that the motion or trial judge exercised his or her discretion arbitrarily, capriciously or based upon a wrong or inapplicable principle of law: Kostopoulos, v. Jesshope (1985),supra.

[59] In contrast to the state of affairs in Ottawa, Toronto has had civil jury trials during the pandemic. The courtrooms are retrofitted, and the most recent notice by the Chief Justice indicates jury trials are suspended until May 3, 2021 at the earliest. There is therefore some date on the horizon for civil jury trials to resume in constrast with other regions where the suspension was indefinite.

[60] In MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, Myers J., at paras 23-24, referred to the principles set out in Cowles v. Balac to be applied by the court on a motion to strike a jury notice as follows:

a. The court must decide whether the moving party has shown the justice to the parties will be better served by the discharge of the jury;

b. The object of a civil trial is to provide justice between the parties, nothing more; and

c. A judge may strike a notice even before the trial has begun if the judge considers that there is no advantage to beginning the trial with the jury because the situation makes it apparent that the case should not be tried with a jury.

[61] Counsel for Dr. Zaitlen submits that delay is the predominant and deciding factor and points to the excessive delay of eleven years. Given Dr. Zaitlen’s position he ought to, at a minimum, put forward some evidence to show who was responsible for the delay. On the evidence, Dr. Zaitlen was responsible for some of the delay at least with respect to the delivery of expert reports. Justice Stinson’s Trial Management report, filed by the defendant, noted that the defence expert reports, or some of them, were late and may be subject to objections by the plaintiff had the trial proceeded in March 2020. The first delay of the trial due to the pandemic arguably assisted Dr. Zaitlen in curing his noncompliance with rule 53 with respect to the timing of delivery of his defence expert reports.

[62] Dr. Zaitlen also submits that this would be the third adjournment of the trial. However, the second adjournment of the trial was at the request of his own lawyer.

[63] The jurisprudence has established that the decision to strike a jury notice or discharge jury should be decided on a case-by-case basis. Louis does not change the state of the law. The question is whether justice would be better served by dispensing with the jury. The plaintiff has indicated he has physical limitations as a result of his injuries as well as emotional issues, and is concerned about the challenges posed in doing a virtual trial by his technological challenges, child care challenges, limitations in his living arrangements, and challenges which would present itself in consulting and preparing with his lawyer virtually.

[64] The court must consider the prejudice alleged by Dr. Zailin, the stress of preparing for trial, the disruption to his practice, without actual evidence of any financial impact caused to him by him having to prepare for trial, the impact of the trial on his practice, without any evidence to show that trial preparation has led to a loss of revenues as compared to the impact of Covid, which he has conceded has affected his practice, and the “excessive delay”, without evidence of which party caused the delay.

[65] Dr. Zaitlen’s challenges, or prejudice, stems from the passage of time (without evidence as to who caused the delay), and the financial impact caused by preparing for a trial on his practice, and the stress involved in preparing for trial. There is no actual evidence of any financial impact caused to him by him having to prepare for trial and he has admitted that the pandemic has impacted his practice. The court takes seriously Dr. Zaitlen’s assertion that preparing for the trial is stressful and disruptive to his practice, but the stress and disruption would exist regardless.

[66] Dr. Zaitlen has not challenged the limitations and challenges that the plaintiff says that he faces if the trial were to proceed virtually. The plaintiff’s evidence must be accepted. There is no evidence as to how he is to be accommodated so that he can meaningfully participate, or at all, during a virtual trial given his stated challenges.

[67] In Louis v. Poitras, the Court of Appeal confirmed that local conditions will impact the choice of solutions. This is not a case where there would be an adjournment of the trial to an indefinite unknown date. Dr. Zaitlen may have his trial this year. There is a date on the horizon.

[68] I am not satisfied the it is in the interest of justice to ask the plaintiff to proceed with a virtual trial in the face of his unchallenged and uncontradicted evidence of his restrictions and limitations in terms of technology and the impact of his significant injuries, causation aside, on him. There is no evidence as to how he could be accommodated with a virtual trial. Dr. Zaitlen has not discharged his onus of proving that justice would be best served by dispensing with the jury.

[69] I conclude that justice to the parties requires that a “wait and see” approach be adopted given the stated date of May 2021 for civil jury trials to resume. This approach does justice between the parties and is not inconsistent with the culture shift espoused in Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 SCR 126 in facilitating access to timely and proportionate civil justice.

Ramsay J.

Released: February 1, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SEAN OMAR HENRY, personally and as Estate Trustee for the Estate of Sandy Robinson

Plaintiffs (Responding Parties)

– and –

DR. MARSHALL ZAITLEN, DR. EDGAR JAN, DR. JOSEPH FAIRBROTHER, DR. HILARIE LOUISE SHEEHAN, DR. VERA BRIL, DR. ROBERT KURTZ, DR. JOHN DOE, JANE DOE, JOAN DOE, WILLIAM OSLER HEALTH CENTRE - BRAMPTON CIVIC HOSPITAL and UNIVERSITY HEALTH NETWORK – TORONTO GENERAL HOSPITAL

Defendant (Moving Party)

REASONS FOR JUDGMENT

Ramsay J.

Released: February 1, 2021