Court File and Parties

COURT FILE NO.: CV-11-424715

DATE: 20210716

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sophia Keneshia Hemmings, by her Litigation Guardian, Rosalie Brown, et al.

AND:

Carol Yuen-Man Peng, et al.

BEFORE: J.T. Akbarali J.

COUNSEL: Duncan N. Embury, and Amani Oakley for the plaintiffs/responding parties

Dorothy Charach, and Natalie Kolos for the defendants/moving parties Carol Yuen-Man Peng and Sharon Rose O’Brien

HEARD: July 12, 2021

ENDORSEMENT

Overview

[1] The moving party defendants, Carol Yuen-Man Peng and Sharon Rose O’Brien, are obstetricians who treated the plaintiff, Sophia Keneshia Hemmings, at times during her labour and delivery. Ms. Hemmings tragically suffered respiratory and cardiac arrest during a caesarean section, resulting in catastrophic brain injuries. Ms. Hemmings now requires round-the-clock care.

[2] Drs. Peng and O’Brien move for summary judgment, arguing that the plaintiffs’ expert reports do not raise a genuine issue requiring a trial with respect to whether their actions fell below the standard of care, or caused Ms. Hemmings’ injuries. They argue that expert evidence is required to establish the content of the standard of care and causation in a medical negligence case. As a point of law, they argue that the plaintiffs’ expert evidence about their care is insufficient, and fails to meet the requirements of an expert report set out in r. 53.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As a result, they argue that the action should be dismissed as against them.

Brief Background

[3] The plaintiffs claim against Drs. Peng and O’Brien, as well as against other physicians, including the obstetrician who followed Ms. Hemmings through her pregnancy, Dr. Padmore, and the anesthesiologist who treated Ms. Hemmings during the c-section, Dr. Jamensky. They also claim against the hospital. Other physician defendants have been released from the litigation.

[4] The heart of the claim against Drs. Peng and O’Brien is that they failed to refer Ms. Hemmings to a tertiary care centre for her labour and delivery, although she presented with numerous high-risk factors and complications. The plaintiffs argue that, had Ms. Hemmings been delivered at a tertiary care centre, more personnel, more experienced personnel, and more appropriate equipment would have been available, as a result of which Ms. Hemmings would not have suffered the catastrophic consequences that she did.

[5] I do not know the full context of all of the claims made against the other defendants in this litigation, but it is safe to say that the plaintiffs also claim that Dr. Padmore should have referred Ms. Hemmings to a tertiary care centre to be followed prior to labour and delivery, and for labour and delivery.

[6] This action is proceeding to trial in just over two months. The trial is expected to take ten weeks.

[7] I accept that the moving parties have brought this motion at their earliest opportunity. They seek to challenge the sufficiency of the plaintiffs’ expert evidence and as a result, they could not bring the motion until the deadline for the delivery of the plaintiffs’ expert evidence had passed. This deadline was judicially ordered. This motion was scheduled at the parties’ pre-trial by the pre-trial judge.

[8] No matter what happens on this motion, the trial has to occur. This motion will not dispose of the entirety of the action. At most, it will dismiss the action against two defendants.

Is this action appropriate for summary judgment?

[9] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set out the approach to motions for summary judgment. The judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her without using the fact-finding powers in the rule. If the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute, and is a timely, affordable and proportionate procedure, there will be no genuine issue requiring a trial. If there appears to be a genuine issue requiring a trial, the judge should determine if the need for a trial can be avoided by using the fact-finding powers in the rule: Hryniak, at para. 66.

[10] In this case, the moving parties’ argument is that I do not reach the second stage of the analysis; rather, using the evidence before me, I should determine that the plaintiffs’ expert evidence is insufficient to establish liability with respect to Drs. Peng and O’Brien. They do not ask me to turn to the fact-finding powers in the rule because they are not seeking a determination that Drs. Peng and O’Brien met the standard of care, or did not cause Ms. Hemmings’ losses. Rather, they focus on the legal sufficiency of the plaintiffs’ expert evidence only. They have not even placed the evidence of their experts into the record. Thus, in the particular circumstances of this case, my additional fact-finding powers would be of no use.

[11] Drs. Peng and O’Brien seek partial summary judgment. The Court of Appeal has recently weighed in on the topic. In Malik v. Attia, 2020 ONCA 787, Brown J., writing for the court, noted that the risks inherent in partial summary judgment motions are not limited to the risk of inconsistent findings. Rather, a court faced with a motion for partial summary judgment must determine if partial summary judgment will achieve the objectives of proportionate, timely and affordable justice or, instead, cause delay and increase expense: Malik, at para. 61.

[12] At para. 62, Brown J. identified three simple requests the court should make of counsel when faced with a request to hear a motion for partial summary judgment:

a. Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

b. Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

c. Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[13] The theme of evaluating the request for partial summary judgment in the context of the action as a whole also found expression in Hryniak, albeit in the context of the court’s discussion of when it will be in the interests of justice to have resort to the fact-finding powers in the rule. The Court held that, when, for example, summary judgment is sought by a single defendant, the consequences of the motion ought to be considered in the context of the litigation as a whole, and that “partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact”: Hryniak, at para. 60.

[14] In Dia v. Calypso Theme Waterpark, 2021 ONCA 273, the Court of Appeal very recently considered a motion for summary judgment brought by one defendant, who argued that the plaintiff could not prove he, and not the other defendants, was the wrongdoer. After recalling that the fundamental purpose of summary judgment is to provide proportionate, cost-effective and timely dispute resolution, the Court of Appeal held that, when a proceeding has taken more time to get to trial than it ought to have – as the proceeding before me has – “motion judges ought to stand back and consider whether the pursuit of a summary judgment motion is likely to achieve its fundamental purpose”: Dia, at paras. 29-30.

[15] Having regard to these principles, I conclude that this is not an appropriate case for summary judgment, for the reasons that follow.

[16] The events underlying these actions occurred over ten years ago. A trial is finally imminent. A summary judgment motion at this stage is not proportionate, cost-effective, or timely. While I understand why Drs. Peng and O’Brien only brought their motion now, they could have brought it earlier were they prepared to rely on their own and their expert evidence to support a finding that they met the standard of care, or did not cause Ms. Hemmings’ injuries. They did not want to structure their motion that way; that decision is theirs to make. But the fact that they were not able to bring the motion as constructed until shortly before trial does not mean that I can ignore the motion’s proximity to trial in assessing its impact in the context of the litigation as a whole.

[17] If the motion is granted, the decision may well be appealed. If it is, then either the trial date is in jeopardy, or the trial will proceed without Drs. Peng and O’Brien, and if the appeal is successful, a second trial must proceed against Drs. Peng and O’Brien. The first alternative delays the conclusion of these already drawn-out proceedings, and vacates dates in the court’s calendar that are too close to be filled with other trials, both wasting court resources and delaying justice for the parties to this action (except, possibly, Dr. Peng and Dr. O’Brien). The second alternative runs the risk of inconsistent findings of fact, and the waste of court resources through duplication.

[18] If the motion is not granted, Drs. Peng and O’Brien may appeal, although they have indicated they might not. Even if they did, the appeal could potentially proceed in tandem with the trial. There is a greater possibility of bringing the action to trial sooner.

[19] Moreover, the arguments Drs. Peng and O’Brien want to make about the sufficiency of the expert evidence will translate at trial into arguments about the scope of the evidence the experts can give. It is more appropriate that these disputes be resolved in that forum when the trial is so close, and the action so long-standing. I find it difficult to believe that however much the trial might be shortened by avoiding or limiting the arguments over the scope of the experts’ evidence, that this summary judgment motion has resulted in a net gain or efficiency in terms of the use of the parties’ or the court’s resources.

[20] I am not convinced that determining the issues raised by Drs. Peng and O’Brien on this motion will prove cheaper for the parties, even if the physicians are successful. I have grave doubts that a partial summary judgment decision would get this case in and out of the court system more quickly; I think it is much more likely it will add delay to the eventual determination of the case.

[21] I also find there is a risk of inconsistent findings were I to find that the plaintiffs’ expert evidence is not sufficient. Some of the expert evidence in question addresses the conduct of Dr. Padmore in addition to Dr. Peng and Dr. O’Brien. While each physician’s role in the events in question must be assessed individually, I am concerned that findings I make about the sufficiency of the expert evidence may conflict with the trial judge’s assessment of it when it comes time to evaluate the conduct of Dr. Padmore. This is especially true if a successful summary judgment motion were to lead to a successful appeal, and two trials.

[22] In summary, this partial summary judgment motion has the potential to cause delay, to cause waste or duplication of the court’s and the parties’ resources, and to negatively impact the case as a whole. Taking a step back, as the Court of Appeal has directed me to do, I find that the pursuit of this partial summary judgment motion is at odds with the fundamental purpose of summary judgment, to provide a proportionate, cost-effective, and timely dispute resolution.

[23] Accordingly, I dismiss the motion for summary judgment.

[24] Although I do not need to address the other issues the parties have raised on the motion, for the sake of completeness of the record, I will briefly address whether there is a genuine issue requiring a trial.

[25] Assuming, without deciding, that Drs. Peng and O’Brien had no obligation to lead evidence to support a conclusion that they met the standard of care, or did not cause Ms. Hemmings’ injuries,[^1] I would still have had difficulty concluding that the plaintiffs’ expert evidence was so lacking that the defendants met their burden to establish that there is no genuine issue requiring a trial.

[26] The plaintiffs’ expert evidence was put to me in argument having been parsed by the parties. On a day-long summary judgment motion, there is no other way to do it. There are multiple reports, covering well over a hundred pages of narrative and analysis. The expert reports on such complex medical issues need to be considered in the context of the facts, including the clinical presentation of Ms. Hemmings through her pregnancy, labour and delivery.

[27] The plaintiffs’ expert evidence may not go far enough to establish liability on the part of Drs. Peng or O’Brien at trial. However, in the decontextualized setting of a summary judgment motion, I am not convinced of that fact. While there is no doubt that the reports focus in significant measure on Drs. Jamesky and Padmore, they do not ignore Drs. O’Brien and Peng.

[28] The issues raised are complex. A judge who witnesses the unfolding narrative at trial will be much better placed to determine whether Drs. O’Brien and Peng bear any responsibility for the events that befell Ms. Hemmings. Thus, even if I could conclude that this partial summary judgment motion has the potential to be a proportionate, more expeditious and less expensive means to achieve a just result having regard to the litigation as a whole (Hryniak, para. 49), I would still conclude that the liability of Drs. O’Brien and Peng is a genuine issue requiring a trial.

[29] As I have already noted, in the circumstances, I am not asked to and cannot have resort to the fact-finding powers in r. 20, because the defendants have not engaged substantively on the question of standard of care or causation beyond arguing that the plaintiffs’ expert evidence is not sufficient to support a finding of their liability. Thus, the additional fact-finding powers are of no assistance in avoiding a trial.

Costs

[30] The parties have agreed that the successful party on this motion shall be entitled to $35,000 in costs, all inclusive, payable within thirty days. The plaintiffs are the successful parties. Accordingly, Drs. Peng and O’Brien shall pay $35,000 in costs all inclusive to the plaintiffs within thirty days.

J.T. Akbarali J.

Date: July 16, 2021

[^1]: This point was the subject of much debate.