COURT FILE NO.: CV-13-476648
MOTION HEARD: February 19, 21, December 15, 16, 2020
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Said Musllam Plaintiff
AND:
Hamilton General Hospital, et al., Defendants
Before: Master J. Josefo
Date of Decision: January 8, 2021
Motion heard: February 19, 21, & December 15, 16, 2020
Counsel: B. Morrison, counsel for the defendant, Dr. J. Wells, Email: bmorrison@litigate.com
D. Girlando, counsel for the defendant, Hamilton Health Sciences Corporation, Email: dgirlando@blg.com
T. Pagliaroli, agent-counsel for plaintiff and for the plaintiff’s law firm (“Oakley”), Email: tanya@taplaw.ca
E. Mogil, counsel for the new proposed defendant, Dr. S. Karmali-Rawji, Email: emogil@mccarthy.ca
A. Wood, counsel for the new proposed defendant, Dr. J. Mistry, D.C., Email: alexiwood@stlbarristers.ca
Overview of these motions: background facts/process for hearing/process for these reasons
[1] The within medical malpractice action, commenced in 2013, originally arose out spinal surgery performed on Mr. Said Musllam on March 23, 2011 by Dr. John Dennison Wells. Sadly, following that surgery, Mr. Musllam has ever since been a paraplegic. Plaintiff, in his statement of claim dated March 20, 2013, sues Dr. Wells and the Hamilton General Hospital (properly, the Hamilton Health Sciences Corporation). The crux of the original claim was lack of informed consent, and surgical misadventure.
[2] Plaintiff brings a motion, originally dated December 30, 2018, served early January 2019, amended January 10, 2020, to:
a. amend the statement of claim to add new proposed defendants Dr. S. Karmali-Rawji, the former family doctor of plaintiff (“family doctor” or “Dr. Karmali”), and Dr. J. Mistry, D.C., the former chiropractor of plaintiff (“chiropractor” or “Dr. Mistry”). The claims against these individuals, found at paragraphs 25 C & D of the draft Amended claim, are that they, inter alia, failed or delayed to diagnose the spinal tumour (also described as a “lesion”) and/or to refer the plaintiff for appropriate care and treatment;
b. amend the statement of claim by adding to it what are described as “particulars”, or further details regarding what plaintiff asserts were the already pleaded facts as pertains to the alleged negligence of Dr. Wells;
c. amend the August 10, 2018 timetable order made by Master Abrams.
[3] The new proposed defendants resist being added as defendants to this action. They oppose the motion, asserting, inter alia, that the plaintiff is long out of time to add them as defendants.
[4] Defendant Dr. Wells also opposes the motion, including the aspect of it which purports to amend the statement of claim which Dr. Wells asserts raise new causes of action against him beyond the limitation period. He also brought a cross-motion dated April 30, 2019 to have the action dismissed against him, asserting that there is no genuine cause of action against him, and because the plaintiff has “…unreasonably delayed the progress of this action in contravention of the Rules and in breach of the Order of Master Abrams of August 14, 2018”. This date refers to the above-referenced timetable order; nothing turns on whether it is August 10 (as appears on its face) or August 14, 2018.
[5] The Hamilton Health Science Centre (“hospital”) in essence supports the position of Dr. Wells.
[6] A word on the hearing process, and the process which I follow in these reasons: the motions were, after some scheduling challenges, first heard on two non-consecutive days in February 2020. While initially hopeful that these could be completed in two days, that was not to be. Additional days were scheduled, pursuant to my several scheduling endorsements, for the summer of 2020. Covid interrupted that, however, with the result that the motions were ultimately re-scheduled and completed on December 15 & 16, 2020. It was thanks to the efforts and efficiency of all counsel that we completed the matter in two of the three days booked in December 2020, especially as those days were remote hearings via Zoom, where everything takes longer.
[7] As one can imagine in a matter such as this, there were multiple motion records, supplementary records, authorities, compendiums, factums, and the like. As Mr. Mogil observed, the record before me is “comprehensive”. Additionally, I have my notes from the four hearing days. All points of fact and law which could have been covered were covered thoroughly by all counsel involved in their informative written and oral submissions. Yet to not further elongate these reasons, I shall not refer to all the evidence in all the many volumes of documents; nor will I refer to all the submissions or to all the case-law upon which counsel relied. Rather, I will address what I found most compelling and persuasive, and what I believe most applied to the facts of this case so counsel, and any reviewing Court, can hopefully understand why I came to my herein decisions.
What Master Abrams found: Her decision of June 28, 2018
[8] On April 28, 2018, Master Abrams held a Status Hearing, for which plaintiff had moved. Plaintiff as well had moved for an Order extending the set-down deadline which, given this 2013 action, was by then looming. Dr. Wells did not oppose the relief sought by the plaintiff, while the hospital did. In her decision of June 28, 2018, Master Abrams described the relevant facts (which factual background further assists in the context of this motion before me) and came to her conclusions:
The plaintiff commenced this action within the limitation period. It arises out of a surgical procedure, after which procedure the plaintiff was rendered paraplegic und confined to a wheelchair. The action has not progressed beyond the exchange of pleadings and some documents, its age notwithstanding. The plaintiff's evidence on this motion, on which there was no cross-examination, derives from the plaintiff himself and from counsel with whom the plaintiff recently consulted. The plaintiff deposes that he lives alone, has no one to assist him, has not worked since 2011 and, with English being his second language, has some difficulty expressing himself in the English language. The evidence also reveals that Mr. Musllam has consulted with no fewer than eleven lawyers with the hope of finding one who might prosecute his claims. Further, before now, Mr. Musllam was conscientious enough to deliver a notice of intention to act in person; to confer with counsel for Hamilton Health Sciences Corporation about that defendant's right to defend itself herein; and to obtain and retain records in respect of his claim. That said, the evidence before me also reveals a measure of hesitation on the part of the plaintiff in moving this action forward without first seeking the advice and/or guidance of a lawyer…Whether to allow an action to proceed is a discretionary exercise on the part of the court. There will be some cases in which a plaintiff can show that it would be unfair for his action to be dismissed. "In considering the reasonableness of any explanation for the delay in question", the court "will almost invariably engage in a weighing of all relevant factors in order to reach a just result" (see: Biegeri Estate v. Oakville-Trafalgar Memorial Hospital, [2017] O.J. No. 1150, al para. 3). …I do note that a general (but reasonable) explanation has been proffered as to why Mr. Musllam did not retain those lawyers to represent him. With the evidence before me being of a disabled plaintiff who necessarily attends "frequent and lengthy medical appointments", who cannot drive, who lives alone, who does not work, who has consulted with a number of lawyers since his last lawyer went off the record, and who hesitates in acting without legal assistance, the plaintiff's explanation for his delay is acceptable to me. But, that is not enough. Have the defendants suffered non-compensable prejudice? In addressing this motion, Ms. Paliaroli advises that Mr. Musllam is in possession of a decoded OHIP summary dating back to 2009. Further, she points out that, as at June 2014, Dr. Wells' lawyers had "a complete copy of Dr. Wells' chart" (see: Exhibit "H" to the affidavit of Rebecca Jones, sworn April 23/18) and, as at July 31/13, the hospital's lawyers had Mr. Musllam's medical records (see: Exhibit "C;" to the affidavit of Daniel Girlando, sworn April 19/18). There is no evidence before me that any of the witnesses cannot be located or have died; and, while the hospital now says, in argument, that it doesn't quite know the case it has to meet (given the manner in which the claims have been pled and the plaintiff's failure to proceed to the discovery phase of the litigation), it is noteworthy that it did not ask the plaintiff to furnish particulars of his claim as a precursor to its delivery of a statement of defence. Relying on Macko v. Remus (1977), 1977 CarswellOnt 315 and Hersi v. Hotel Dieu, 2013 ONSC 5049, Ms. Deakon posits that the "even if medical records are available ... much depends on the recollection and memory of the defendants, which diminishes over time, creating prejudice". What distinguishes this case from those two cases is that, here, both defendants have been aware of and have had an opportunity to investigate the plaintiff's claims since at least 2013 and that this is the first status hearing conducted in this action with the request for the status hearing originating with the plaintiff. I agree with Sharpe, J.A. when he says that "expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant[s] would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured" (Marché d'Alimentation Denis Thériault ltée v. Giant Tiger Stores, 2007 ONCA 695, at para. 34). Mr. Musllam has provided a reasonable, if imperfect, explanation for his delay; …documents have been preserved (including by the defendants); there is no evidence of actual prejudice; there has been no status hearing before the one now before me; Mr. Musllam has breached no court Order; and, counsel will soon go on the record for Mr. Musllam and/or "explain to him the concerns and risks involved in advancing his claim .... or ... refer him to counsel who may be able to assist him" (see: para. 25 of the affidavit of Neil W. Oakley, sworn April 12/18). Looking at this status hearing in context and balancing the interests of (a) timely justice and (b) determination of claims on their merits, I am of the view that the balance tips in favour of my permitting Mr. Musllam to prosecute his claims but with strict timelines put in place so that the action will move forward without further delay. Counsel are to confer and to file with me a proposed consent timetable or, failing agreement, to request a telephone case conference with me this by July 31/18.
Developments since then
[9] As described in the January 17, 2019 joint affidavit of Neil and Amani Oakley, lawyers for the plaintiff (collectively, “Oakley”; individually identified as needs be), and in the Oakley firm docket excerpts contained in the compendium books of both the plaintiff and the family doctor, on May 16, 2017, Neil Oakley reviewed medical records of the plaintiff’s family doctor. These records were finally received February 6, 2017. He also then reviewed the records of the chiropractor, whose records the plaintiff finally obtained in September 2016 (after first seeking them starting on or about May 7, 2015) and which were provided to Oakley in October 2016. In October 2017, this information was sent to neurosurgeon Dr. P. Muller for an expert opinion if the family doctor and chiropractor had potential liability for their care of the plaintiff.
[10] On May 2, 2018, while the decision of Master Abrams was under reserve, Dr. Muller provided a “preliminary verbal opinion”. His actual report is dated December 30, 2018. Yet as of the date of swearing of the first Oakley affidavit, pursuant to paragraph 82, that report was not then received. It was received subsequently and forms part of the record via the supplementary affidavit of Neil Oakley sworn July 9, 2019.
[11] Shortly after issuance of the June 28, 2018 decision of Master Abrams, which decision allowed the original action against Dr. Wells and the hospital to remain alive, on July 18, 2018 Amani Oakley emailed counsel for the hospital and for Dr. Wells. Those parties were then notified that plaintiff intended to attempt to add the family doctor and possibly the chiropractor to this action. Ms. Oakley advised that:
While we will move quickly to bring that motion, my concern is that this may affect the previously agreed-upon timetable since it would obviously be helpful to know the outcome of the motion prior to conducting discoveries. The newly added parties (assuming success on the motion) will no doubt want to participate in those discoveries. May I have your thoughts please on a revised timetable, which includes that anticipated motion to add?...
[12] To that suggestion of a revised timetable, Mr. Morrison disagreed. In his response the same day, it was asserted that Master Abrams “placed some reliance on the fact that Dr. Wells did not oppose”… the plaintiff’s (prior) motion to maintain the action. It was also noted that the plaintiff never raised these issues with Master Abrams, and that no motion to add parties was yet then brought or pending. Accordingly, Dr. Wells preferred to settle the timetable Order “as agreed…if the plaintiff actually brings a motion to add new defendants, it can take steps at that time”.
[13] Ultimately, the motion to add the new proposed defendants was brought as outlined above, on December 30, 2018. It was served on or about January 3-4, 2019. There then eventually ensued cross-examinations on affidavits, and all the various other steps which were taken to ready these motions for hearing.
Discussion of and ruling on the Cross-Motion of Dr. Wells: Dismissal for delay
[14] In his Reply Factum, Dr. Wells argues that the plaintiff “has no explanation for delaying after May 2, 2018”. It was essentially the position of Dr. Wells that the plaintiff, after agreeing to a timetable and a course of conduct, deliberately breached this agreement to follow a different approach (instead of pursuing Dr. Wells, that defendant submits that plaintiff chose to pursue the new proposed defendants). The plaintiff, it is submitted in the original factum of Dr. Wells, in essence spurned the lifeline which the court granted when plaintiff breached the timetable Order; and the plaintiff was also not forthright with the parties opposite, or with the court, regarding his intentions in that regard. Given this breach of an Order, pursuant to Rule 60.12, (and Rule 3.04), and the undue delay, as well as considering the lack of merits of the claim against Dr. Wells, it is urged that the action against him be dismissed, with the question of the new proposed defendants being considered separately.
[15] There is much to consider in these well-made arguments. First, I am not of the view that the plaintiff deliberately set out to breach the timetable Order of Master Abrams. As the above-excerpt from the July 18, 2018 correspondence shows, Ms. Oakley contacted counsel when she believed that new developments and new facts had surfaced which, in her view, should change the timetable. This transparent approach to counsel opposite was made before the timetable order was finalized. As the correspondence demonstrates, it was counsel for Dr. Wells who preferred to have the order signed pursuant to the prior agreement reached, which prior agreement was before Ms. Oakley had obtained an oral, preliminary opinion from Dr. Muller regarding the potential merits of a claim against the new proposed defendants.
[16] The timetable order was indeed subsequently breached, since the case has not proceeded pursuant to those timelines. In my view, however, considering all the circumstances, this was by no means a contumelious breach. Instead, I would characterize it as closer to a “technical breach”, albeit by so doing I am by no means undermining the importance of adherence to court orders. Yet timetable orders, after all, are often before this court, at times on a consent basis, with dates changed at times, especially given changing circumstances. Rule 3.04 specifically so allows. In this case, there clearly were evolving circumstances which plaintiff sought to have considered, before the order was signed. On the evidence and in context, this is not a circumstance where Rule 60.12(b) applies. As discussed in Satechi v. Tawoosi, 2016 ONCA 986, in this case there is no wilful and ongoing disregard for the court’s process.
[17] This is also not a case which meets the stringent test set out in Rule 3.04(4). Temelini v. Wright, 2013 ONSC 6691, at paragraph 7, makes clear that the discretionary remedy to dismiss an action for failure to comply with a timetable is only for the “most serious case where the conduct of a party has been so egregious as to warrant such a remedy”. In so concluding, the court in Temelini relies upon the well-known decision of Starland Contracting Inc. v. 1581518 Ontario Ltd. (2009) O.A.C 19. In my view, this within matter does not at all equate to the level of serious misconduct which these decisions discuss.
[18] While I have sympathy for the frustration of Dr. Wells, who has had this matter hanging over him since the claim was initiated in 2013, I find that the Oakley firm did not set out to deliberately mislead counsel for Dr. Wells or the court. Indeed, the facts support the opposite conclusion. Again, prior to the timetable order being finalized, Ms. Oakley suggested changing the timelines, given her transparent and candid discussion of her intentions regarding the new proposed parties. The conduct cannot fairly on the evidence be described as “egregious”, or anything close to that.
[19] I also understand why Ms. Oakley was hesitant to contact Master Abrams while her decision was under reserve. Rule 1.09 injects at least a note of caution in so doing. Nor did Mr. Morrison suggest that course of conduct when he responded to Ms. Oakley: his suggestion was simply to allow the order to be signed, and to subsequently address any asserted need to vary it. That to me was also a reasonable approach in the circumstances. That, albeit with some further delay, was what was done. I do not find the delay in this case to be “inordinate and inexplicable”, as was the case in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, para 22. The further period of time was, I conclude, both explicable and understandable given the rather unique facts and circumstances of this complex medical malpractice case.
[20] The more important question arises from a consideration of Rule 24.01. Should this action against Dr. Wells and the hospital now be dismissed for delay? In considering this question, I agree with counsel for plaintiff that, while I can (and I do) consider the entire time period from 2013 and forward holistically, I prefer to focus on what has occurred which now could render a dismissal just since the previous lifeline extended by Master Abrams on June 28, 2018 (her decision was received by most in early July 2018). As was held in Stokker v. Storoschuk, 2018 ONCA 2 at paragraph 5, as the prior time period was addressed by Master Abrams, and was specifically accepted by Dr. Wells who consented to the then timetable order, it is the subsequent delay which is at issue and to be addressed.
[21] After all, the delay up until that point was excused by Master Abrams for reasons in her decision. My colleague specifically found, at paragraph 12 of her decision, that “there is no evidence of actual prejudice”. I would only re-visit that prior time period if I concluded that information was concealed from Master Abrams, or that relevant new facts have since emerged which leads me to conclude that, if those facts were known before-hand, the decision of Master Abrams would likely be different. Yet, after considering all the evidence and submissions, I do not find that either situation arises.
[22] I do not find that the plaintiff or counsel set out to deceive Master Abrams in any way, including on the issue of when the Oakley firm was retained although, given some ambiguity, I understand why defendants have concerns about that. While I discuss when the retainer arose as necessary, at present, based on the cross-examination and affidavit evidence, I do not find that there was any deliberate attempt or intent to deceive the court (or counsel opposite) about that issue.
[23] Can it be stated that from that date until this motion was brought and argument commenced in February 2020, a further 20 months, the delay is to the point where dismissal is the only just result? It is certainly true that, as was stated in Longenecker v. Sauve, 2011 ONCA 803, at paragraph 11, over time “memories fade and fail, witnesses become unavailable, and documents can be lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay”. Yet, from when Master Abrams issued her timetable Order in August 2018 through to date, not much if anything, has substantively changed: records are still preserved, witnesses are still available, and the parties are in basically the same situation as when the prior timetable order was issued.
[24] Some of the two-year delay stems from an issue shown in the evidence before me of inadvertence in not booking the within motion date in September 2018, and also from the trial schedule of various of the lawyers (which same schedule, at least pre-Covid, led to some delay in finding a return date for this motion for completion of argument). Applying the tests under Rule 24.01, I do not find the default to be intentional, contumelious, or inexcusable, such that there is a substantial risk that a fair trial might no longer be possible (again referring to the Stokker decision). There has been no disdainful, scornful, insulting, or insolent conduct on the part of plaintiff or his counsel (see, amongst others, De Marco v. Mascitelli, paragraphs 26-27, [2001] O.J. No 3582). Moreover, the prior timetable order was not peremptory, nor stated to be a “last chance” order. Yet such specification is necessary and cannot be implied, as was found by Master Robinson in Smith (c.o.b Squarefoot) v. Hudsons Bay Co., 2019, ONSC 2348, paragraph 23.
[25] Accordingly, given the lack of prejudice and the, in context, reasonable explanation for the relatively short period of additional delay since the timetable Order was made, I will not dismiss this action on the basis of delay or for failure to comply with the prior court (timetable) Order.
[26] Dr. Wells further argues that the claim against him lacks merit, and the court, with “inherent jurisdiction to control its own process”, may dismiss an action with no hope of success against this defendant. It is correct that not only the reports of experts retained by Dr. Wells but also that of the expert retained by plaintiff, Dr. P. Muller, in his December 30, 2018 report, opines that Dr. Wells “met the standard of care” in his assessment of and recommendation to Mr. Musllam for surgery. Dr. Muller is arguably less definitive regarding the actual surgery, yet he offers no negative opinion, at least not preliminarily, regarding what Dr. Wells did or his standard of care in that regard.
[27] This is not, however, a summary judgment motion. It is not for me, as a Master, to essentially rule de facto summarily on the merits of the claim against Dr. Wells. Should such a motion be necessary to be brought, the parties may have, despite this record being comprehensive, additional evidence to adduce to assist that trier of fact. Accordingly, while I may have concerns about the merits of the claim against Dr. Wells based on the preliminary position of Dr. Muller, so I urge the relevant parties to have serious discussions about this claim, I will not preliminarily and arguably prematurely (even if it is within my jurisdiction to do so, which I question given likely disputed facts) dismiss the claim at this stage on the basis of an assertion of lack of merit.
[28] It follows from the above that the timetable Order of August 10, 2018 must be amended. That aspect of the plaintiff’s motion is granted. What ultimately follows in these reasons, addressing which if any new parties are added as defendants, will inform which counsel are to be involved in amending the timetable order. It is suggested that, once these reasons are reviewed, all counsel involved meet and confer to hopefully find their own consent resolution for a revised timetable order, which I would be pleased to sign. Yet if agreement proves elusive, the parties may appear before me by (virtual) case-conference if they wish me to rule pertaining to the timetable.
Plaintiff’s proposed Amendments to the Statement of Claim—new allegations against Dr. Wells, or mere particulars of existing ones?
[29] The legal tension which arises in this issue is between Rule 26.01 and section 4 of the Limitations Act. Rule 26 permissibly provides that:
On motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[30] Yet, section 4 of the Limitations Act 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”.
[31] The question before me is whether the proposed amended portion of the statement of claim served January 16, 2020, specifically, paragraph 25 A (g) through (j), are merely particulars of what was already alleged against Dr. Wells, so, not new allegations and thus not out of time pursuant to the Limitations Act, or if indeed these are new causes of action now asserted, too late. I reproduce the relevant portion of the draft amended pleading as follows:
- The above-mentioned injuries were caused or contributed to by the negligence, breach of duty and/or breach of contract of the Defendants, either jointly or severally, the particulars of which include:
A. AS TO THE DEFENDANT, HAMILTON GENERAL HOSPITAL, ITS STAFF, SERVANTS, AGENTS, OR EMPLOYEES, INCLUDING AND THE DEFENDANT DR. WELLS, FOR WHOM THE DEFENDANT HAMILTON GENERAL IS RESPONSIBLE IN LAW:
(a) They failed to inform the Plaintiff, Said, of the risks and benefits of the operation, thereby depriving him of the ability to give informed consent to the treatment undertaken;
(b) They failed to perform the necessary tests to determine any possible risks to the Plaintiff, Said, with respect to the operation;
(c) They improperly and/or inadequately performed the operation on the Plaintiff, Said, and/or administered inadequate post-operative care to the detriment of the Plaintiff;
(d) At all material times, their agents, representatives and/or employees fell below the reasonable standard of care required in the circumstances;
(e) At all material times, their agents, representatives and/or employees were unfit to perform the responsibilities with which they were charged; and;
(f) They failed to adequately instruct, oversee, supervise and/or train their employees so as to avoid, lessen or ameliorate the chance of causing or contributing to the damages and injuries sustained by the Plaintiff, Said;
(g) They failed to provide, utilize, or properly utilize the correct equipment for the procedure(s) performed on Said;
(h) They failed to ensure that there was proper monitoring of Said's condition and status, during the procedure(s) performed on him, and/or they failed to ensure that the necessary equipment was correctly utilized for the necessity of proper monitoring during the procedure(s);
(i) They failed to ensure that the procedure was performed by professionals who were knowledgeable and experienced regarding Said's condition, including the nature of the lesion/tumour which was to be removed, how best to operate on it, and cautions to apply in the circumstances; and,
(j) Further knowledge about the negligence of the Hospital, its employees and agents, lies peculiarly within the knowledge of the Hospital, its employees and agents.
[32] In Lo Faso and Ferracuti [2018 ONSC 6308], Justice Emory addressed the question of “whether the requested amendments amount to a new cause of action…the distinction between claims made on a common factual matrix already contained in a pleading is distinct from a cause of action that rests on whether particular facts are already pleaded or not pleaded…”.
[33] In Davis v. East Side Mario’s Barrie, 2018 ONCA 410, Justice MacFarland discussed the issue being one of whether “the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled…”[emphasis added].
[34] In my view, new clauses (g) through (i) of paragraph 25 do more than plead alternative claims for relief arising out of the same facts or provide particulars of already pled allegations. Rather, these add specific, new facts, beyond facts previously pled, and new grounds of negligence alleged against Dr. Wells: that he and the co-defendants failed to use the right equipment, failed to properly monitor the plaintiff, and ensure that the necessary equipment was properly utilized, and failed to ensure that the procedure was performed by the right professionals with the right expertise.
[35] All of this is not “more of the same”. Rather, I find these are fresh allegations, alleging fresh, new, and distinct breaches of care which are proposed to be added to the claim. If such had been pleaded at the outset, other than possible skirmishes over particulars or whatever else counsel may have raised, there would have been probably no issue with such pleadings. Yet to raise these new factual allegations now, nearly a decade later, is beyond the limitation period. I find that these amendments are thus not permitted.
[36] Regrettably, it is not clear if the parties were also disputing paragraph 25 B, clauses (i), (j), and (k) of the draft amended statement of claim. My bench notes reflect that these clauses were not argued, so these seemingly were not disputed. I was told that the parties had agreed on some of the proposed amendments. If, however, I was expected to rule on paragraph 25 B and these three clauses, I can do so if counsel agree. To that end, counsel may notify me through ATC Mr. Magnante, who will arrange a short tele-conference to that purpose of my hearing submissions on those pleas.
Discussion of and ruling on the plaintiff’s motion to add the family doctor and chiropractor
[37] To situate the analysis, I begin with the relevant statutes which herein govern, including Rule 5.04 of the Rules and sections 4, 5, and 21 of the Limitations Act, 2002. These read as follows:
Rule 5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
Limitations Act, 2002, S.O. 2002,
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was 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
(iv) 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). 2002, c. 24, Sched. B, s. 5 (1).
(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.
21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
[38] Earlier in these reasons I set out some of the relevant chronology; for example, the date of surgery of the plaintiff, his original lawsuit against Dr. Wells and the hospital (brought just within the two years), and the date when this within motion was initially brought. As I address these issues, I will advance that chronology as necessary.
[39] Clearly, it is for the plaintiff to make his case in this matter. He has the onus to overcome the presumption described in section 5(2): which is that he had actual knowledge of his claims against the family doctor and the chiropractor within the two-year limitation period. It is also for the plaintiff to establish when he knew of the facts which would give rise to a claim—not a perfect or viable, or even a good claim, but only when he knew he had a potential or possible claim against these potential defendants. I also must address, pursuant to section 5(1) b, when the plaintiff ought to have known, as a “reasonable person”, that his injuries were caused or contributed to by the alleged acts or omissions of the family doctor and the chiropractor. In other words, when did he discover his claims against these potential defendants, and when were these reasonably discoverable?
[40] In considering these questions, I am guided by the fairly recent Ontario Court of Appeal decision, Morrison v. Barzo 2018 ONCA 979. Therein, at paragraphs 29 and following, the Court stated as follows:
[29] Where there is a question as to whether claims covered by the basic two- year limitation period are statute-barred, such that parties cannot be added pursuant to s. 21(1) of the Limitations Act, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the date of actual discovery, as determined by the court, would bring the claim within the limitation period, and the proposed defendant relies on "reasonable discoverability" to contend the claim was brought outside the prescription period, the court must go on to determine under s. 5(1)(b) when "a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)". While a plaintiff's due diligence is relevant to the finding under 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred: see Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd ., 2016 ONCA 585, 133 O.R. (3d) 35, at para. 23. This is the case whether expiry of the limitation period is at issue in a motion for summary judgment or in a motion to add a defendant: Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, 24 C.P.C. (8th) 1, at para. 30.
[30] Reasonable discoverability of a claim under s. 5(1)(b) that precludes adding a party contrary to s. 21(1) requires an evidentiary foundation. The Court must be satisfied that a reasonable person in the plaintiff's circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable "before the expiry of the limitation period", without explaining why…
[31] … The presumption is displaced by the court's finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2)…
[34] In a medical malpractice action, a claim is discovered when the claimant knows the facts that form "the core of [the plaintiff's] claim of substandard medical treatment"…
[41] As I address the various issues, including the submissions not unreasonably advanced that the Oakley firm was arguably tardy or perhaps negligent in certain aspects of how it handled this matter (Mr. Mogil submitted that, while I may feel sympathy for the plaintiff, even if I dismiss this aspect of the motion, plaintiff may yet have a different remedy), I do so from the perspective that this is not now, nor has it ever been, “ a perfect world”. Not to wax too philosophically, but most people struggle daily—including lawyers to do right for their clients, and jurists who strive to come to the legally just result for all parties involved in a case. Indeed, I find all counsel in this complex matter did their best, including in their thorough, at times minute, dissection of what chronologically happened in this case.
[42] Yet, in my view, a “standard of perfection” is not required. While limitation periods were certainly not enacted to be ignored, as Ms. Wood well submitted for Dr. Mistry, my assessment of the steps taken or perhaps not taken in a timely fashion by some of the parties in this case is based on a standard of contextual reasonableness in the “real world” in which these parties existed, not perfection based on 20/20 hindsight using a microscope or magnifying glass to minutely examine each and every step taken or not taken, or not taken in as timely a manner as ideally should perhaps have been done in some instances.
[43] The plaintiff in this case, as was found by Master Abrams, has English as his second language and is hampered by various other significant challenges as described in her decision. The evidence before me is that before his surgery he drove a taxi. There is no evidence before me that he is an educated layman, let alone knowledgeable about medical issues or able to easily “connect the dots” so to draw inferences pertaining to causation or contribution. In my view, it is fair to conclude that the plaintiff is unsophisticated, including that he is an unsophisticated litigant. Accordingly, I so conclude, based on all the evidence.
[44] On May 5, 2010, the plaintiff attended his family doctor for what she testified at her cross-examination on January 27, 2020 was his annual physical (starting from question 291 of her cross-examination transcript). The plaintiff, pursuant to the family doctor’s interpretation of her chart note of May 5, 2010, complained about, inter alia, of his “right leg can’t move” (Q. 296), which the family doctor interprets as “drop/drag”…“it was my interpretation of what he was describing, with the way he was walking, that he could not lift his foot and had to drag it” (Q. 297). The plaintiff was referred to neurologist Dr. S Carleton who, on May 20, 2010, provided a report to Dr. Karmali with the following opinion:
This man definitely has a spinal cord lesion which could be anywhere from the cervical to thoracic region…we will do his nerve conduction studies today but he will need an MRI of his cervical and thoracic cord. I will arrange that.
[45] Under cross-examination, (Q. 393), the family doctor acknowledges that she initialled the second page of that May 20, 2010 report from Dr. Carleton, below the above-quoted opinion. She then saw the plaintiff on June 10, 2010. Beginning at question 396 of her cross-examination, the family doctor reviews her chart note of that date. After noting the plaintiff’s “walking difficulty, leg” (Q. 415), that the plaintiff had seen or been reviewed by Dr. Carleton (Q. 417), and noting the plaintiff’s various pain complaints and a “normal notation” under the reference to “Carleton” (Q. 426-427), the family doctor continues her objective assessment (Q. 429-437). At question 440, the family doctor testified that her assessment was of a shoulder strain and lower back pain (Q. 442), with a plan for “physio/swimming” for the shoulder strain (Q. 443). The plaintiff received a referral for physiotherapy (Q. 453) from the family doctor’s office, as the family doctor confirmed in her cross-examination testimony that she asked the plaintiff to get physiotherapy.
[46] Contrary to paragraph 8 of her September 5, 2019 affidavit, based on the family doctor’s testimony at her cross-examination, I find that the chart note from the June 10, 2010 visit to not record any significant concerns or problems. It would appear to be quite unremarkable, other than a benign referral for physiotherapy, and a recommendation to swim. Accordingly, I find that there was no discussion about a lesion or tumour, or any need for further investigations or treatment in that regard, urgent or otherwise, between the plaintiff and his family doctor.
[47] Subsequent to that June 2010 visit, which would be the last visit the plaintiff had with his family doctor as she later took ill and became unavailable, the plaintiff carried on. I find that he accepted that there was nothing seriously wrong with him (as he later testified in his cross-examination) as he relied on his long-time family doctor in that regard.
[48] Unfortunately, as is now known, there was something seriously wrong with the plaintiff. As Dr. Carleton had diagnosed, he had a spinal lesion (tumour). When his condition worsened, so he was having ever increasing difficulty walking, he attempted to return to the family doctor. Yet she was unavailable. He eventually sought care at the emergency department and was ultimately referred to Dr. Wells for surgical treatment. The surgery occurred on March 23, 2011.
[49] Following the surgery and his partial paralyzed state, the plaintiff sought answers. His long-standing and seemingly then firm belief about who was responsible and why is well captured in an Oakley firm docket of June 9, 2016. The time-keeper, or person docketing, was Amani Oakley (“AO”). That docket, as can be seen, addresses various other relevant points, too:
June 9/16 3:22 p.m. - 3:45 p.m. Long Distance - 23 min 0.4 hrs AO
Telephone attendance with Said. I indicated that, to date, we have been unable to get Dr. Karmali's records, though we have tried multiple times and different ways (faxes, mailed letters, voice messages and discussions with the receptionist) Unfortunately, my view is that even if we get the records, they are unlikely to be helpful to us. He last saw her in June of 2010, and at that time, she had done what one would expect a doctor to do - she had referred him to a neurologist and ordered MRIs of his spine, so unfortunately, if nothing was showing at that time, those negative findings would certainly serve to reduce a doctor's level of suspicion. I had hoped to get the records just to be thorough, but she is not responding and that only leaves a complaint to the CPSO to extract those records. Said didn't want to cause her trouble with a CPSO complaint, and indicated again that she had never spoken to him about a tumour or any real issues with his spine - he thinks she may have said there was some slight changes consistent with him aging, and nothing very unusual. I indicated that it doesn't look like we will be able to assist and I was very sorry about that. If no one knew he was having walking leg problems ahead of time, in order to detect the tumour sooner, and recommend surgery when the tumour was smaller, then it is not likely we can make a successful argument in his case. I asked him to provide the chiropractic records (which we still didn't have) but again reminded him that if he saw the chiropractor in December and not before that, then it is unlikely that even if the chiropractor had identified the problem correctly, that it would have made a significant enough impact on his outcome to succeed in a legal case. We will continue to try and get the records from Dr. Karmali, but at some point, I would recommend that he consider dropping the case. I can assist with that, to ensure that the defence wouldn't come after him for costs, though that was very unlikely. I know this is difficult for him to hear, but he has had some very experienced lawyers look at this file (eg - Paul Mann) and they were unable to see a way to assist him either. He returned to his often-stated theme that if the doctor didn't do anything wrong, why is he paralyzed. I used the analogy of walking on ice. You can walk as carefully as possible but that doesn't mean you might not fall. If you fall, that doesn't mean you were being careless while walking. Sometimes, regardless of all the care you take doing something, something can still go wrong. That doesn't mean you were negligent. …I indicated that he needs to think seriously about closing his case now [emphasis added].
[50] Thus, at that time, plaintiff still believed that Dr. Wells was solely to blame for his paralysis. Considering the information that he, and the eleven lawyers with whom he had consulted, all had and relied upon, as corroborated in the above docket, in my view this belief was reasonable. After all, the last time the plaintiff saw his family doctor, all she had done was urge him to swim and attend physiotherapy. This position of the plaintiff that he was unaware of any prior serious problem, which is what he had previously told Oakley as further documented in the above docket of June 9, 2016 was, quite importantly, corroborated by the family doctor in her cross-examination testimony summarized above. The plaintiff had no reason to believe otherwise, which finding I further explain below. I add that not only this unsophisticated plaintiff, but most people with a family doctor would accept and rely upon the information provided to them by that care-giver.
[51] Of all the many lawyers to whom the plaintiff had spoken from the outset of this matter, it is fair to observe that none of them seemingly suggested to the plaintiff that he also sue his family doctor or the chiropractor. Instead, all focused on the surgery, and treated the case as one of surgical misadventure or with problematic consent. Do I take from that, that all of these lawyers, many quite experienced medical malpractice counsel, were in error, or missed the pathways or signs which counsel for the family doctor asserts always purportedly pointed to the possible exposure of these newly proposed defendants? Or, were there, simply and in reality, no signs, no pathways, nothing which would lead anyone with the information then available to reasonably suspect the existence of such additional claims and other defendants? I attempt to answer that question, below.
[52] In addition to the above-referenced docket, earlier dockets of the Oakley firm maintain the same theme. For example, on January 13, 2015, the student-at-law noted that, as “Amani and Neil” discussed, and “cautioned” as follows:
if the plaintiff “had a normal MRI in June of 2010, and was seen by a neurologist with no problems found just before that, that any testing before that time…would similarly show nothing so they cautioned that it was unlikely that any lawyer could assist…that’s because it doesn’t seem likely that it was possible for his tumour to have been diagnosed much earlier than it was”.
[53] The January 30, 2015 docket is in a similar vein. The ongoing assumption throughout is that “nothing showed up in the testing in June of 2010…”. On February 20, 2015, the plaintiff is documented as being confused as to why the firm was trying to get Dr. Karmali’s records “since the tumour had not been identified at the time he was last seeing her”. On December 15, 2015, Amani Oakley docketed her telephone call with the plaintiff, and begun by “apologizing that this is taking so long to obtain his other records”. Ms. Oakley continues as follows:
Our question is whether there was any inkling of a problem earlier than February/March 2011, and as we have spoken already, it doesn’t seem like any argument can be made that the tumour might have been detected earlier, given that his visit with the family doctor of June 2010 and the fact that neither the neurologist nor the MRIs found a problem…we have been able to get a copy of his current doctor’s records but not his previous family doctor’s records…[Plaintiff] said that he doesn’t remember his previous family doctor ever mentioning a tumour to him. …
[54] While steps were being taken by the Oakley firm to obtain the records of the family doctor, and awaiting the plaintiff to obtain the chiropractor’s records, the firm was ostensibly not retained by him. On the one hand, the firm was holding itself out as his counsel to various parties from whom it was seeking the records, yet on the other hand, asserting to the plaintiff that they were not retained. Rather, they were only helping him to get the records for either another lawyer whom they might find (at one point they thought that they had found someone, a lawyer, first name, “Sajjad”) or that the plaintiff would find someone to represent him. The plaintiff was, during all this, still talking to other lawyers and contacting various points of referral to that purpose.
[55] The old saying, “no good deed goes unpunished”, I find applies in this matter. If the Oakley firm can be faulted, it can be, first, for caring too much. The dockets in my view paint a vivid picture of a small law firm, with no excess capacity, and a full schedule, yet still trying to help this man who kept seeking them out even though they then, based on the information then available, opined that he likely had no viable case. In that regard, I mean no viable case against Dr. Wells. Yet they wanted to leave no stone unturned, to explore all the records, before they tried to let the plaintiff down gently. To that end Ms. Oakley had begun that process, by tactfully explaining to the plaintiff, pursuant to the above-excerpted June 9, 2016 docket, that even though the result of the surgery was obviously poor, that does not necessarily mean this was anyone’s fault.
[56] One might also fault the Oakley firm for a lack of clarity as to when it was actually retained. Counsel for the proposed defendants do raise this issue, as being one which led to confusion and, they argued, was misleading. While it is correct that it is best practice to either be “in or out” of a file, not halfway in or out, again, I consider the real-world circumstances and context of this case. These very busy lawyers, in a small firm, were trying to help the plaintiff out of a sense of compassion, for no cost. When the plaintiff could get nobody else, on March 17, 2016 they finally accepted what is described below as a limited retainer for the plaintiff, as the docket of Ms. Oakley of that date demonstrates:
Mar 17/16 4:13 p.m. - 4:28 p.m. Long Distance - 15 min 0.3 hrs AO
Telephone attendance with Said. I explained what had happened with Sajjad, and that the file has been returned to us. I indicated to Said that this should not have happened and I apologized to him for the additional delay. I asked him if he had retained other counsel. Said indicated that he had not been able to do so. Most recently, he had spoken to several lawyers at Howie Sacks, including Neil Sacks, but in the end, they did not take on the case. I told Said that at this point, it was unacceptable to me to leave him without counsel so I have decided that Neil and I will review his file, free of charge. We will not go on the record for him, but we will review the full file and provide him with our legal advice regarding the litigation. We have not yet received the records of Dr. Karmali, and Said has not yet provided a copy of the chiropractor's file. We will continue to try to get Dr. Karmali's records, but we will review the file if we can't get her records and similarly, if Said cannot get the chiropractic records. We will not charge him for the review. Said thanked me for my assistance.
[57] In my view, when the Oakley firm was retained, and the purported limits to the retainer, is not determinative of or dispositive to the current issue of adding parties. Whether it was wise or even possible to take on the file for only one purpose yet to simultaneously hold oneself out as lawyer for the plaintiff, without going on the record, I need not conclude upon. Yet these acts again demonstrate, as discussed earlier, that there was no bad faith, nor a deliberate attempt to mislead other counsel or the court by the Oakley firm. That they ultimately took on the matter and doggedly pursued getting the requisite information so to be able to try to put the plaintiff’s mind at ease that nothing else could have been done to prevent the unfortunate result of his paralysis, at no cost to the plaintiff, is in my view to their credit. That the information subsequently obtained changed that plan is not hardly the fault of the Oakley firm.
[58] As described above near the outset of these reasons (paragraph 9), on May 16, 2017, Neil Oakley reviewed medical records of the plaintiff’s former family doctor, which were received February 6, 2017. He also then reviewed the records of the chiropractor, whose records the plaintiff obtained in September 2016. Yet, pursuant to a docket entry of January 11, 2017, a person named “JM” discussed with AO (Ms. Oakley) an earlier review of the chiropractor’s records which “noted some possibly significant findings recorded by the chiropractor both in December 2010 but also earlier in 2009”. The docket entry of JM continues, noting that AO was of the view that, in essence, given the clear MRI and neurological assessments in June 2010, earlier symptoms alone, absent corroborating test results, would likely not be of much help.
[59] Returning to Morrison v. Barzo, “a claim is discovered when the claimant knows the facts that form the core of [the plaintiff's] claim of substandard medical treatment”. In my view, the plaintiff only knew of and could have discovered his claim against the family medical doctor on May 16, 2017, when the family doctor’s records were for the first time reviewed. Until then, neither the plaintiff, nor the Oakley firm, knew that all of the assumptions under which each had been operating were manifestly incorrect; that the lesion had in fact been diagnosed in May 2010, with the family doctor being aware of the problem yet not addressing it when she saw the plaintiff on June 10, 2010. Accordingly, the claims against the family doctor I find were discovered on May 16, 2017.
[60] This is not at all the same as Lawless v. Anderson, 2011 ONCA 102. In that case, it was held (paragraph 21) that obtaining the chart and a medical opinion was not necessary when these add nothing of significance to the plaintiff’s knowledge. I agree that awaiting the report from Dr. Muller was, with hindsight, not necessary in this case to know that there existed a claim. While that opinion arguably strengthens the new claims, making these arguably more viable, I find that these claims themselves crystallized or existed once the information in the chart was reviewed in May 2017 by Neil Oakley, an experienced medical malpractice lawyer who, as the docket information confirms, understood its significance. The chart, by contrast to the expert opinion, was in this case of great significance to determine that a claim likely existed against both potential new defendants, as I expand upon below. The information in the family doctors’ chart did not just add facts of significance; in this case, these were the facts which were key, thus of fundamental importance, to discovering that there was a claim at all against the proposed new defendants.
[61] Similarly, I find that the claim against the chiropractor was also only known at that same date, May 16, 2017. Again, the family doctors’ records changed everything. The prior assumptions, which were reasonably held, were by this new information completely upended. In my view, the fundamentally important information finally revealed from the family doctors’ records are inextricably linked to any possible negligence of the chiropractor, for the reasons expressed by Ms. Oakley in the above-referenced January 11, 2017 docket entry: again, earlier symptoms alone, absent corroboration, would not be of use. Such would not ground a claim at all, let alone a good or viable one. Yet now the plaintiff had the chart, including the report from Dr. Carleton. The issues pertaining to the chiropractor are, I find, closely connected to the possible negligence of the family doctor. Thus, I find that the claims against the chiropractor were also discovered on May 16, 2017.
[62] In my view, this is not about a claim which existed or was known and, once the records were finally obtained, after a painful period of 22 months from first request on April 28, 2015 to receipt on February 6, 2017, became improved, or more viable, or more likely to succeed (winnable), as discussed in Lawless (paragraph 36) and in Colin v. Tran, 2016 ONSC 1187 (paragraph 72). In this case, I find that, without the chart of the family doctor, there simply was no claim, and no reason to believe that there was or could ever be a claim, against the family doctor or against the chiropractor. Again, the information in the chart was of fundamental importance, was new, and was also seemingly quite unexpected information which dramatically changed the prior and reasonably held working assumptions.
[63] Why May 17, 2017? Why not when the records were actually received: February 6, 2017 for the family doctor and September 2016 for the chiropractor? In response, I reference my above discussion about the imperfect “real-world” in which we all function. I again consider a small and very busy law firm, with many demands on their time. It was only this firm, after all the many lawyers whom the plaintiff saw, which was willing to take him on—and at no cost. Yet these lawyers also had other, prior commitments, including to trials and to existing clients. In my view, it was, in the context and all the circumstances, reasonable that they did not immediately drop everything when the records were received. After all, they did not expect the “bombshell” information contained therein. Moreover, the medical records were complex to read and decipher, as the step-by-step cross-examination transcript of the family doctor makes clear. If even Dr. Karmali had some challenges reading her own chart notes, these would surely not be an easy or quick read for anyone else, even a lawyer experienced in the field. I thus find a period of about three months from when the chart of the family doctor was received until it was reviewed to be reasonable in all the circumstances.
[64] As for the chiropractor records, why not January 11, 2017, when these files were first reviewed and an anomaly was apparently spotted, pursuant to the above-referenced docket entry of that date? Again, as discussed, in my view these records, the family doctors’ and the chiropractors’ are linked. The chiropractic records alone absent the family doctor records would be insufficient to ground a claim—not necessarily a good or viable claim but, in my view, any claim at all. While perhaps suspicious, given a potential anomaly as described above, these do not rise much above a level of mere suspicion or perhaps some interest.
[65] If my analysis is, however, incorrect, then the date the family doctor chart was received, February 6, 2017, would be an alternate discovery date. Similarly, the date the seeming anomaly in the chiropractic records was spotted, January 11, 2017, would be an alternate discovery date.
[66] It was submitted that the plaintiff should have discovered these claims earlier, that he even knew that he had these claims as he recovered from the surgery. It was also submitted that there was a pathway to the records, from the family doctor who came after Dr. Karmali or from the storage facility, Docu-davit.
[67] Addressing the alleged earlier alleged pathway to the chart from the family doctor, I disagree that there was anything close to resembling a clear path to these records. Rather, there was a murky maze through which counsel had to navigate and run. As noted, it took almost two years to obtain these records. Counsel, as the Oakley dockets repeatedly reveal, called, emailed, and faxed, using the proper contact information of the family doctor pursuant to the CPSO records. Eventually reaching Dr. Karmali, the dockets of September 20, 2016 and ongoing reveal the difficulties, including that Dr. Karmali did not for some reason refer counsel to Docu-davit, the storage facility, for some time. Yet, respectfully, she should have known where her records were kept. Even when finally referred to Docu-davit, the dockets in September and October 2016 demonstrate that obtaining these records from that storage facility remained for some reason, not the fault of counsel for plaintiff, a very fraught, time-consuming, and difficult exercise.
[68] There was a reference in the file of the successor (plaintiff’s new family doctor, Dr. Kolbasnik) to Dr. Karmali to Docu-davit. In my view, this is equivalent to a cryptic clue in a mystery game, something buried within mounds of information, not a clear pathway to the information as counsel for the family doctor suggested. Again, when those other records, from Dr. Kolbasnik, were received, these were not found to be of particular relevance given that these post-dated the surgery. Logically, these would likely not be informative of what problems, if any, existed before the plaintiff underwent the surgery. Accordingly, in the “real-world” context of this case, expecting a busy firm to minutely examine these reasonably expected to be less relevant records, at that time when the package was not yet complete, is in my view not reasonable, nor is it the expected standard. Waiting for the entire package, and then reviewing it all, including the chiropractor’s records, was an understandable and sensible approach.
[69] As to the suggestion that this successor had the records of Dr. Karmali, this is speculative. There is no reliable evidence before me which supports that premise. Thus, again, considering practicalities and an efficient use of resources, I would not expect the Oakley firm to try to obtain Dr. Karmali’s records from a “second-hand source”, as it were. Rather, even applying hindsight, it seems to me more logical that Dr. Karmali was approached for what were, after all, her records. She was the primary source for these and accordingly the right party to be approached. There was no other viable pathway that could reasonably have then been followed, other than with foresight.
[70] Did the plaintiff know or ought he to have reasonably suspected that he had a claim against his family doctor from the outset? Unlike in the above-referenced Colin v. Tran decision, where Mr. Colin sued his family physician yet not the surgeon, whom he sought to add as a defendant only years later, in this within matter the surgeon was sued at the outset. Based on the information then known, that was a reasonable choice. After all, the surgeon was most proximal to the result (which does not mean that he caused or contributed to it, as Ms. Oakley attempted to years later explain to the plaintiff).
[71] In Colin, also, the surgeon was most proximal to the result so, applying hindsight, he likely should have been part of that litigation from the outset, notwithstanding the initial belief that the family doctor had greater liability. Yet, in any event, those facts in Colin are not similar to the facts before me. In this case, based on what was known and reasonably believed to be true pursuant to the evidence discussed herein, the family doctor was assumed not to be proximal to the poor outcome. That assumption, however, as also discussed, changed only when the chart with its bombshell information was reviewed.
[72] Dr. Karmali also relies on what I describe as the “wondering” evidence to assert that this claim against her was sufficiently known by plaintiff from the outset. In that regard, the plaintiff testified at his cross examination on January 28, 2020 in part as follows (questions 111-121):
Q. And after the surgery you no longer had any feeling below your waist, is that right? A. Yeah, I didn't have from the liver line all the way down.
Q. From the nipple (sic) line all the way down? That, that's what you're saying? A. Yes.
Q. Okay, and so that must have made you very frustrated. A. Very frustrated.
Q. And angry. A. Angry and you can imagine what a bad situation I was in.
Q. Right. And at the time you must have wondered whether it was possible that your tumor could have been diagnosed earlier. A. I was wondering.
Q. Right, you were wondering that, right? You were wondering could my tumor have been diagnosed earlier? A. I was wondering, could be. Was wonder always when I guess you sit.
Q. And you were wondering if maybe Dr. Karmali could have diagnosed your tumor earlier? A. I was wondering.
Q. And you wondering whether Dr. Mistry could have maybe diagnosed your tumor earlier? A. I was wondering, as, as I said in my affidavit, I wasn't, I wasn't sure about my situation.
Q. You weren't sure what happened, but as you said, you were wondering those things, maybe it could have been diagnosed earlier, maybe you could have had surgery earlier? A. If it's been discovered earlier maybe will be much better, but I was wondering.
Q. Okay, so you were wondering maybe if it was discovered earlier and you had surgery earlier then you might have had a better outcome? A. Yeah.
Q. And you probably wondered to yourself if Dr. Karmali's office had been available in November or December 2010 when you were having worsening symptoms, maybe then your tumor could have been discovered. Were you thinking that? A. I was wondering what's, what's happening to me. That's all I ...
[73] In my view, the plaintiff, discussing the period of time when he learned that he was newly paralyzed, in a hospital bed after surgery, was doing what I find probable many people in such new-found difficult circumstances would probably do: ruminate, speculate, and engage in some “what-iffing” about his new limitations and his fate. Notwithstanding the skillful cross-examination, this testimony does not reflect knowledge of even a possibility of a claim against his family doctor. At its highest, this is the plaintiff wondering what may have happened “if only” something else had happened differently. It does not change that he then believed, based on what he was told by his family doctor whom he clearly trusted, that, when he saw her in June 2010, there was nothing seriously wrong with him. Given that, it is impossible to conclude that the plaintiff then believed that he had a claim against his family doctor. Indeed, the evidence is that he did not believe he had any basis for such a claim.
[74] Regarding the chiropractor, the plaintiff also had no reason to think that there was a claim against him. Again, based on what he knew, he was fine as of June 2010. Neither the family doctor nor, later, the chiropractor gave him reason to believe that there was anything of concern. Otherwise, no doubt one of them would have taken steps, such as to refer the plaintiff for necessary care.
[75] The plaintiff I have found is, for reasons above, an unsophisticated layman. On that basis, pursuant to section 5(1) b of the Limitations Act, the plaintiff could not be expected to have come to any other conclusion than what he did come to, until the Oakley firm obtained and reviewed the medical and chiropractic records. It is also clear to me that the plaintiff was diligent in trying to obtain the chiropractic records, and he persisted in that endeavour until these were finally given to him.
[76] This leads to the question of prejudice to these proposed defendants. In my view, Dr. Karmali is unlikely to be prejudiced even with her being added to this litigation so many years after the fact. Her records are preserved for her benefit, as well as for the benefit of any other party in this litigation. That she lacks an independent memory of the plaintiff is not surprising, yet unlikely to be prejudicial, given that her records are available.
[77] It is true that, as she deposes at paragraph 18 of her affidavit, her call logs are no longer available. Yet these were destroyed in 2010, well within the original limitation period and far earlier than the CPSO mandates should be done. Thus, as these records were destroyed within the original limitation period, any prejudice thus arising is the responsibility of Dr. Karmali. I find that there is no prejudice which would prevent the family doctor from being added as a party defendant.
[78] Dr. Mistry, overall, I find was able to control and gain access to his records in a reasonable fashion. While an employee of the clinic where the plaintiff received treatment from him, Dr. Mistry subsequently opened his own facility in that very same location as his previous employer, in the same mall. He knew that the records of his former employer were stored in the basement of the mall as, pursuant to his evidence, he occasionally had to access these records. At questions 136-147 of his January 23, 2020 cross-examination testimony, the chiropractor told his office manager to retrieve from the basement storage facility and provide the plaintiff with a copy of his complete chart. Dr. Mistry did not then choose to verify that the chart was complete; nor did he look at the original chart at the time.
[79] Only subsequently, and after the records have been destroyed by his former employer, did the chiropractor then assert that the records, which he told his office manager to ensure were complete, were purportedly not complete. It is unfortunate that Dr. Mistry did not verify the status of the chart, and what he asserted was a complete copy to be given to the plaintiff, was actually complete before the charts were later on destroyed.
[80] It is, moreover, speculative that the chart may have contained any additional information. Dr. Mistry indeed speculates in that regard, when he asserts that certain items that he would expect to see in the chart are not present. Even if so, there is no evidence that these expected items were previously present or, indeed, were ever present, including during the original limitation period. An expectation, after all, is not a certainty. I find the circumstances of Dr. Mistry similar to that of Silvercreek in Mazzuca v. Pharmacy Ltd, 2001 CanLII 8620 (ON CA), 56 O.R. (3d), 768. In that decision, the Court of Appeal at paragraph 65 discussed that Silvercreek, which sought to rely on destroyed financial records, might (speculatively) experience some prejudice. Yet the Court observed that the prejudice may well have existed in any event, from the outset of the action, thus within the limitation period, given the prior destruction of those records.
[81] Overall, and on balance, I find that the possible or speculative prejudice which may impact the chiropractor does not justify his not being added as a party defendant.
[82] To recap, pursuant to my analysis, the earliest possible (and alternative) discovery date for Dr. Mistry is January 11, 2017 when, as discussed above, an anomaly in the records was observed. The earliest possible and alternative discovery date for Dr. Karmali is February 6, 2017, when the Oakley firm finally received her medical chart for the plaintiff. While I conclude that the discovery date for both new defendants, for reasons herein, is May 16, 2017, the day when Mr. Oakley reviewed the charts/records and connected the dots, in any case the within motion is dated December 30, 2018. The motion was served on the potential new defendants in early January 2019, before January 11, 2019. Thus, even using the alternative, earliest possible dates, the motion to add these parties was brought and served within two years of the earliest possible dates that these claims could have been discovered. Pursuant to section 4 of the Limitations Act, the plaintiff is thus in time to add the proposed new defendants. The motion to add these parties is thus granted.
[83] I thank counsel for their helpful written and oral submissions in this complex and lengthy matter.
Costs
[84] Costs were not addressed. It may be possible for the parties to resolve the issue of costs themselves. Yet, if not, when (if) the timetable order is addressed, a short telephone or Zoom cost hearing can also be scheduled or added onto the timetable issue, through my ATC.
[85] The parties may file material regarding costs. In addition to their cost outlines, which they should exchange if not yet done, the parties are each limited to three pages of submissions, in normal sized font and normal pagination.
Master J. Josefo