Court File and Parties

COURT FILE NO.: CV-15-66873 DATE: 2022-03-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Neil Doef, Plaintiff AND Hockey Canada, The Hockey Canada Foundation and AIG Insurance Company of Canada, Defendants

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Thomas G. Conway and Abdalla Barqawi, Counsel for the Plaintiff Sophia Irish Dales, Counsel for the Defendant, Hockey Canada Thomasina Dumonceau, counsel for AIG Insurance Company of Canada

HEARD: February 3 and 4, 2022 by video conferencing

Reasons for Decision

M. Smith J

Overview

[1] There are two (2) motions before me. The first motion is for summary judgment brought by the Defendant, AIG Insurance Company of Canada (“AIG”) against the Plaintiff, Neil Doef (“Doef”). The second motion is brought by Hockey Canada seeking leave to withdraw an affidavit sworn in support of Hockey Canada’s motion for summary judgment and replace it with a new and substantially similar affidavit.

[2] Doef opposes both motions.

[3] For reasons that follow, both motions are dismissed. Hockey Canada’s motion for summary judgment, scheduled to proceed on September 19, 2022, is vacated.

Factual and procedural history

[4] On December 14, 2014, Doef suffered a spinal injury while playing in a hockey tournament sanctioned by Hockey Canada.

[5] On March 9, 2015, Doef made a claim for the paralysis benefit under the policy of insurance issued to Hockey Canada (the “Policy”).

[6] On or about October 9, 2015, AIG requested that Dr. Richard Wales undertake a paper review of the updated medical documentation and provide an opinion as to whether Doef met the paralysis definition set out in the Policy.

[7] On October 22, 2015, Dr. Wales advised that further medical documentation was required before making the determination if Doef met the paralysis definition set out in the Policy.

[8] Following the receipt of additional medical information, Dr. Wales opined on or about November 13, 2015, that Doef did not meet the definition of paralysis because Doef had major residual function in both arms and the right leg and some residual function in the left leg. Dr. Wales’ opinion was based primarily upon the assessment of Doef’s physician, Dr. Vidya Sreenivasan’s, dated October 30, 2015.

[9] On or about November 15, 2015, Dr. Wales opined that Doef’s medical documentation on file supports the definition of Loss of use of the left leg.

[10] On or about November 27, 2015, AIG advised Hockey Canada that based on the review of the medical documentation submitted, Doef did not meet the Policy definition to be eligible for the paralysis benefit.

[11] On January 15, 2016, Doef issued a Statement of Claim against the Defendants.

[12] On February 11, 2016, AIG advised Hockey Canada that Doef was eligible to receive $30,000 as full and final payment of the indemnity payable for the loss of one leg.

[13] On May 10, 2016, AIG delivered its Statement of Defence.

[14] On July 20, 2016, Hockey Canada and The Hockey Canada Foundation delivered their Statement of Defence.

[15] On August 18, 2016, Doef delivered a Notice of Discontinuance against The Hockey Canada Foundation.

[16] Doef was examined for discovery on May 2, 2017.

[17] At AIG’s request, Dr. David Lipson was retained to determine if Doef met the criteria for the Policy’s paralysis benefit. On January 20, 2018, Dr. Lipson opined that Doef did not satisfy the criteria.

[18] On July 15, 2020, Dr. Lipson delivered an addendum report based on new documentation that had become available. Dr. Lipson’s opinion remained the same.

[19] On November 3, 2020, the Trial Record was filed by Doef.

[20] On July 13, 2021, Hockey Canada served its motion record for summary judgment. The first supporting affidavit was from Mr. Glen McCurdie, Senior Vice President of Insurance and Risk Management at Hockey Canada. Two (2) additional affidavits were served, namely from Mr. Steve Lacoste and Mr. Sam Ciccolini.

[21] On July 16, 2021, the jury trial date was scheduled to proceed on September 19, 2022, for ten (10) days.

[22] On July 30, 2021, AIG served its motion record for summary judgment.

[23] On September 8, 2021, Associate Justice Kaufman ordered that the motions for summary judgment proceed on February 2 and 3, 2022.

[24] On September 20, 2021, Associate Justice Kaufman ordered the following timetable regarding the motions for summary judgment:

a. Doef to serve all his affidavits by December 1, 2021. b. Cross-examinations of Doef’s affiants, if any, to be completed on December 7 and 8, 2021. c. Hockey Canada and AIG to serve reply affidavits by December 10, 2021. d. Cross-examinations of Hockey Canada and AIG affiants, if any, to be completed on December 15 to 17, 2021.

[25] In response to Hockey Canada’s motion for summary judgment, Doef delivered two (2) affidavits. The first was from Doef’s mother, Bobbi-Jean Doef and the second from Doug Munn, an expert retained by Doef. Both affiants were cross-examined in accordance with the agreed upon timetable.

[26] On December 15, 2021, Mr. McCurdie took an indefinite leave of absence from Hockey Canada for reasons unrelated to this litigation. Mr. McCurdie was not cross-examined. Doef refused to proceed with the cross-examinations of Messrs. Lacoste and Ciccolini.

[27] On January 10, 2022, the parties attended at a Case Conference before Associate Justice Kaufman to address the issues arising from Mr. McCurdie’s leave of absence. Hockey Canada proposed to withdraw Mr. McCurdie’s affidavit and replace it with a new and substantially similar affidavit from another affiant. Doef did not consent. Hockey Canada’s motion for leave to withdraw Mr. McCurdie’s affidavit was scheduled to proceed on February 2, 2022.

[28] AIG was prepared to consent to adjourn its motion for summary judgment so that it may be heard at the same time as Hockey’s Canada’s motion. However, Doef’s counsel, Mr. Conway, had no availability until the start of the trial in this action.

[29] Associate Justice Kaufman ordered that Hockey Canada’s motion for summary judgment be returnable on the first day of trial, being the first available date for Mr. Conway.

AIG’s motion for summary judgment

[30] AIG argues that there is no basis in fact or in law for Doef’s claim because he does not meet the Policy’s definition of paralysis, being: “ that he sustained within 365 days of the accident, a permanent total loss of ability to move both his upper and lower limbs (Quadriplegia), both his lower limbs (Paraplegia), or his upper and lower limbs on the same side (Hemiplegia) and the functional loss of use of both his upper and lower limbs (Quadriplegia), both his lower limbs (Paraplegia), or his upper and lower limbs on the same side (Hemiplegia), which was continuous for twelve consecutive months and determined to be permanent at the end of the twelve months ”.

[31] Doef argues that the claim against AIG pertains to its wrongful denial of coverage for a paralysis benefit. Since this is a jury trial, factual determinations should be left to the jury. Doef submits that there are genuine issues for trial because the Policy is ambiguous.

[32] Doef further argues that AIG should be precluded from bringing a summary judgment motion for two (2) reasons. The first reason is that the parties are on the cusp of a trial and AIG has failed to provide a legitimate justification for the delay in bringing its motion. The second is that AIG’s motion does not meet the criteria for partial summary judgment.

[33] I am not prepared to entertain AIG’s motion for summary judgment because AIG failed to provide an adequate justification to explain AIG’s delay in bringing this motion. AIG’s motion is dismissed solely on this basis.

Analysis

[34] AIG says that Doef raised the issue of delay at the September 8, 2021, Case Conference before Associate Justice Kaufman, but the motion was nonetheless scheduled by Associate Justice Kaufman. While the issue may have been discussed at the Case Conference, I do not believe that this prevents Doef from advancing the argument at this motion, based on a more fulsome record, including affidavit evidence, and comprehensive written and oral submissions. AIG has not provided me any authority to the contrary.

[35] AIG submits that it has brought this motion in a timely manner. I disagree.

[36] AIG’s position on the motion for summary judgment is that the evidence overwhelmingly establishes that Doef does not meet the definition of paralysis set out in the Policy. AIG relies on the following evidence:

a. Two (2) weeks post injury (late December 2014 / early January 2015), Doef was described to have non-functional walking. Dr. Sreenivasan stated that Doef could walk, but not consistently, or at a level necessary to complete day to day tasks. b. The clinical notes and records of physiotherapist Roy Myllari reveal that in April 2015, Doef was able to walk 65 metres with the assistance of two (2) poles and an electrical stimulation gait aid (the Bioness). Doel had a grip strength of 40 lbs (right) and 50 lbs (left). His upper extremity strength for biceps and triceps was 3+/5 and he was able to complete biceps and triceps exercises with 10 lbs resistance. c. On Doef’s own evidence at his examination for discovery of May 2, 2017, by June/July 2015, he had stopped using a wheel chair and walker, he was not using any medical device other than a walking pole and the Bioness, and he had stopped using a walking pole inside his home and had only been using it when walking outside. d. On October 30, 2015, Dr. Sreenivasan reported that Doef was able to move all four (4) of his limbs and that he was walking independently with the Bioness, as well as walking without the Bioness, albeit with some challenges and instability. e. On August 16, 2016, Mr. Myllari reported that Doef had a maximum walking capacity of one (1) kilometer with a single point Nordic pole and the Bioness, and a comfortable frequent walking capacity of 300 to 500 metres. He was capable of ascending and descending a standard flight of stairs without difficulty with the use of his Nordic pole and a railing. Doef had been observed to ascend 30 stairs in an uninterrupted manner with a reciprocal gait pattern. f. As of January 11, 2017, it was reported by Mr. Myllari that Doef had grip strength of 85 lbs in both hands, biceps/triceps strength was 5/5, and he was able to complete arm curls with 30 lbs with each arm for 10 repetitions. Shoulder girdle strength was also 5/5 in all planes with minimal deficits noted. Residual minor deficit was noted on the index finger extension bilaterally, however minimal deficit was noted. Overall upper body recovery was outstanding with near full recovery. g. On Doef’s own evidence at his examination for discovery of May 2, 2017, he had 70 to 75% pre-injury range of motion in his left hip flexor, 90 to 95% pre-injury range of motion in his left knee and 85 to 90% pre-injury range of motion in his left ankle. Doef also reported having 90 plus per cent pre-injury range of motion of his right ankle, knee, thigh, and hip. h. On August 28, 2017, it was reported by Mr. Myllari that Doef continued to be independently ambulatory with the use of a single point walking pole, with a maximum observed distance of one (1) kilometer. Upper extremity recovery was virtually full with exception of mild residual finger weakness. Lower extremity recovery was good with a nearly full recovery of the right lower extremity with reduced tolerance. Doef’s exercise program was noted to include inter alia stationary cycle, lunges, squats, step ups, and stair climbing.

[37] In addition to the above-noted evidence, AIG had secured a medical opinion from Dr. Wales in November 2015, stating that Doef did not meet the definition of paralysis. AIG proceeded to obtain a second medical opinion. On January 20, 2018, Dr. Lipson delivered his report and concludes the following: “ Although I am of the opinion that Mr. Doef did sustain significant spinal cord injury, on the basis of medical records and the definition at hand, it does not appear to me that Mr. Doef has satisfied the criteria for benefit for paraplegia. ”

[38] As of January 2018, AIG possesses all the medical and expert evidence that it requires to bring a motion for summary judgment. Then why does AIG wait 42 months to bring a motion for summary judgment against Doef?

[39] AIG responds that the parties exchanged further expert reports in 2019 and 2020, and the matter was not mediated until August 2020. AIG submits that it was first reasonable to proceed to Mediation and not incur the expense of a motion for summary judgment.

[40] I am not satisfied with AIG’s response.

[41] For years, AIG was in possession of multiple reports that formed the basis of its denial of the paralysis benefit. There is no indication in the file materials before me that AIG's position altered from the time that AIG received Dr. Wales report in November 2015 until it received Dr. Lipson's report in January 2018. Dr. Lipson's addendum report in 2020 added nothing new to what AIG had already been relying upon to deny the paralysis benefit.

[42] Based on the facts of this case, holding out for the completion of Mediation is not a reasonable explanation for delaying bringing the motion for summary judgment. With the position that had been taken by AIG since 2015, Mediation was more likely than not, a mere formality. AIG has not departed from its position that the denial of paralysis was proper and grounded in the evidence.

[43] In the seminal Supreme Court of Canada decision Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, it was noted at paras. 2 and 3 that a culture shift was required to promote timely and affordable access to the civil justice system. This shift included moving away from the conventional trials in favour of proportional procedures, such as summary judgment motions.

[44] But the Supreme Court of Canada went further and imposed the following on judges, at para. 32:

This culture shift requires judges to actively manage the legal process in line with the principle of proportionality. While summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately. While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client's limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.

[45] The purpose of a summary judgment motion is to determine matters in a just and expedited manner. If a party participates in litigation for approximately six (6) years before triggering the summary judgment proceedings, I am of the view that the objective of achieving a fair and expeditious process is lost.

[46] The declaration of the pandemic in March 2020 partially explains some of the delay in filing the motion for summary judgment. However, AIG is unable to provide any reasonable justification why it took no steps between January 2018 until March 2020, or even once the court resumed operations and started to schedule motions.

[47] AIG did not move with dispatch to bring their motion for a summary judgment. AIG genuinely believed that Doef’s claim was unmeritorious shortly after the commencement of litigation and this belief was solidified in November 2015 and then in January 2018. Yet, AIG waited, without justification, until late July 2021, to bring the motion.

[48] In arriving at my decision, I have considered the competing interests of the parties as well as the interests of the administration of justice.

a. Doef has been involved in litigation for over six (6) years, with the understanding that his claim was going to trial in September 2022. Doef’s interests are impacted by AIG’s late request for a summary judgment motion. For years, Doef’s time and financial resources have been focused on proceeding towards trial and it is unfair to have him deal with a motion for summary judgment at this late juncture, especially when the delay is not attributable to Doef. b. In terms of AIG, while my decision undoubtedly impacts their interests, it is because of their failure to diligently move this matter along in an expeditious manner. c. The court must actively manage the legal process and ensure that the proceedings are conducted in a fair, expeditious, and orderly manner. AIG’s delay was avoidable. If AIG’s motion for summary judgment was permitted to proceed, on the facts of this case, I am of the view that it would be contrary to the interests of the administration of justice.

Disposition

[49] I find that given the pending trial and the unjustifiable delay in bringing the motion for summary judgment, this is an appropriate case to decline AIG’s motion for summary judgment.

Hockey Canada’s motion seeking leave to withdraw an affidavit

[50] Hockey Canada seeks leave of the court to withdraw Mr. McCurdie’s affidavit sworn on July 13, 2021, and replace it with a new and substantially similar affidavit to be sworn by Mr. Todd Jackson, Director, Insurance and Risk Management at Hockey Canada. Also, Hockey Canada seeks leave of the court to file supplementary affidavits by Messrs. Ciccolini and Lacoste to change references to Mr. McCurdie’s affidavit to references to Mr. Jackson’s affidavit instead. This request is made because of the sudden and unexpected leave of absence of Mr. McCurdie.

[51] Hockey Canada argues that Doef will not be prejudiced by the requested order because:

a. Mr. Jackson and Mr. McCurdie were both familiar with Hockey Canada’s insurance program, which is the subject of the summary judgment motion. b. Mr. Jackson’s evidence will be consistent with that of Mr. McCurdie. c. Doef’s affiants have already been cross-examined. d. Mr. Jackson would not attest to any new evidence that was not in Mr. McCurdie’s affidavit. e. None of the affidavits filed by Doef in response to Hockey Canada’s summary judgment motion responded to any of the evidence in the McCurdie affidavit. f. Mr. McCurdie was not yet cross-examined. g. The evidence of Mr. Jackson will be substantially the same, and he will be available for cross-examination. h. The summary judgment motion has been rescheduled to September 19, 2022.

[52] Doef says that r. 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), governs the issue. Rule 34.15(1) reads:

Sanctions for Default or Misconduct by Person to be Examined

34.15 (1) Where a person fails to attend at the time and place fixed for an examination in the notice of examination or summons to witness or at the time and place agreed on by the parties, or refuses to take an oath or make an affirmation, to answer any proper question, to produce a document or thing that he or she is required to produce or to comply with an order under rule 34.14, the court may,

(a) where an objection to a question is held to be improper, order or permit the person being examined to reattend at his or her own expense and answer the question, in which case the person shall also answer any proper questions arising from the answer; (b) where the person is a party or, on an examination for discovery, a person examined on behalf or in place of a party, dismiss the party’s proceeding or strike out the party’s defence; (c) strike out all or part of the person’s evidence, including any affidavit made by the person; and (d) make such other order as is just. R.R.O. 1990, Reg. 194, r. 34.15 (1) .

[53] Doef argues that I should dismiss Hockey Canada’s summary judgment motion, or in the alternative, strike out all its affidavits. Doef submits as follows:

a. Doef was precluded from cross-examining Hockey Canada’s affiants because Hockey Canada did not comply with the schedule and the Notice of Examination. Doef could not cross-examine Messrs. Lacoste and Ciccolini because he needed to test the veracity of Mr. McCurdie’s evidence first. b. Doef will suffer non-compensable prejudice if Hockey Canada is permitted to adduce new affidavits because counsel does not have availability to cross-examine Hockey Canada’s affiants before the commencement of trial. Pursuant to r. 39.02(1) of the Rules, Doef has the right to cross-examine Hockey Canada’s affiants. It would be unjust and unfair to hold a summary judgment motion in circumstances where Doef would be unable to cross-examine Hockey Canada’s affiants. c. Hockey Canada will not suffer any non-compensable prejudice if its summary judgment motion is dismissed, or its affidavits are struck without leave to tender new ones. With the trial of this action being heard in September 2022, dismissing Hockey Canada’s summary judgment motion will not deprive of it of presenting its case or cross-examining witnesses at trial. To the extent that Hockey Canada is ultimately successful at trial, it would be entitled to costs in the ordinary course. d. Hockey Canada’s summary judgment motion is now scheduled to commence on the first day of trial. It does not make any sense for the summary judgment motion to proceed at the first day of trial. A summary judgment motion at the start of the trial will do nothing but increase the costs for the parties and delay the trial. e. If Hockey Canada is permitted to adduce new affidavits, there is a significant risk that Doef may have to adduce responding affidavit evidence, which will unnecessarily increase costs. Hockey Canada asserts that the affidavit from its new main affiant will be “consistent with that of Mr. McCurdie” and that it does not “expect Mr. Jackson to attest to any new evidence that was not in Mr. McCurdie’s affidavit”. But, there is no evidence before this court about what the new affidavits will actually contain. Hockey Canada has not filed a copy, or a draft, of its proposed new affidavits. f. Other than his leave of absence and retirement, Hockey Canada has not provided any explanation for why Mr. McCurdie could not attend his cross-examination. It has not explained the circumstances that have led to Mr. McCurdie going on leave of absence the day before he was scheduled to be cross-examined. There is no evidence of when Hockey Canada became aware that Mr. McCurdie was not available for cross-examination. There is no evidence that Mr. McCurdie was not available for cross-examination. Hockey Canada’s affiant on this motion does not state that he inquired about whether Mr. McCurdie would not be willing to be cross-examined or whether Mr. McCurdie took that position. In cases where an affiant is no longer available to be cross-examined on an affidavit, the consequences should be borne by the party relying on the evidence. This is especially so in the absence of an adequate explanation. It is unfair to inflict the consequences on the party that complied with the Rules and was ready to cross-examine. g. In the event this court does not dismiss Hockey Canada’s summary judgment motion and only strikes its affidavit evidence without leave to adduce new ones, such a decision will be consistent with prior jurisprudence. This court routinely strikes affidavits of affiants who fail to appear at their cross-examinations, especially when there is no legitimate explanation for a person could not attend.

Analysis

[54] The Rules are silent on the issue of granting leave to withdraw an affidavit and replace it with another.

[55] The court has a broad and pervasive inherent jurisdiction to govern its own process.

[56] In P.G. v. L.S.G., 2004 BCSC 518, 46 C.P.C. (5th) 379, (“Gill”), the Supreme Court of British Columbia set out the framework, including a review of the common law, with respect to the withdrawal of an affidavit. The court established a non-exhaustive list of factors to consider when exercising its discretion to allow the withdrawal of an affidavit. Recently, in Solomon v. Unger, 2022 ONSC 924, paras. 16 to 25, Kimmel J. cites with approval the Gill analysis. I equally adopt the reasoning in Gill and consider the following factors:

a. Was the affidavit filed by mistake? b. Has the affidavit been used, in the sense of having been before the court, during the course of considering an application? c. Is there a pending application before the court for which a party has indicated it intends to rely upon the affidavit? d. Is the application to withdraw the affidavit made as a strategic or tactical decision to deny the other party access to relevant information or the ability to cross-examine the deponent? e. Would the other party be prejudiced in any by the withdrawal of the affidavit? f. Are there policy considerations which would militate against a withdrawal of the affidavit? g. Would the administration of justice be adversely affected by the withdrawal of the affidavit?

Application of the Gill factors

Factor (a) – affidavit filed by mistake

[57] Mr. McCurdie’s affidavit was not filed by mistake. But for his unexpected leave of absence, the withdrawal of the affidavit would not have been required.

Factor (b) – use of the affidavit

[58] Mr. McCurdie’s affidavit has not been used by the court or the other party, it has not been filed in the public record, and it is not subject to judicial findings or orders.

Factor (c) – pending proceeding

[59] The pending proceeding is the motion for summary judgment that has been scheduled to proceed on the first day of trial, in September 2022. Hockey Canada intends to rely upon Mr. Jackson’s affidavit in support of its motion.

[60] The difficulty that arises in allowing Hockey Canada to replace affidavits is that Mr. Conway will not be able to cross-examine Hockey Canada’s affiants before the motion. Because of Mr. Conway’s schedule, he is not available to conduct cross-examinations, from now until the trial. Mr. Conway’s unavailability is also the reason that Associate Justice Kaufman scheduled the motion for summary judgment to be heard on the first day of trial.

Factor (d) – strategic decision to withdraw

[61] The withdrawal of Mr. McCurdie’s affidavit is not a way to avoid cross-examination or for any strategic or tactical reasons. It is because of an unanticipated turn of events and not for the purposes of denying the other party access to relevant information or the ability to cross-examine the deponent.

Factor (e) – prejudice by the withdrawal of the affidavit

[62] The withdrawal of Mr. McCurdie’s affidavit will not prejudice Doef because it will be replaced with Mr. Jackson’s affidavit, which is said to be substantially the same. If the replacement affidavit is not similar, then to avoid any prejudice, Doef would be permitted to file a reply affidavit.

[63] However, in this case, there are other prejudicial factors to consider. As described below, Doef’s counsel does not have the time to cross-examine Hockey Canada’s affiants. Proceeding to a motion for summary judgment without the ability to cross-examine the affiants is prejudicial to Doef.

Factors (f) and (g) – policy considerations and the administration of justice

[64] Hockey Canada argues that in assessing these factors, the key principle is that there is no absolute right to cross-examine a deponent. In support of this proposition, Hockey Canada relies upon Ridley v. Ridley (Ont. H.C.), [1989] O.J. 1121, 37 C.P.C. (2nd) 167, at para. 1, and A.H. Al-Sara & Brothers Engineering Project Co. v. Al-Jabouri (1984), [1984] O.J. 549, at para. 13.

[65] Hockey Canada submits that Doef is not absolutely entitled to cross-examine any deponent.

[66] In the decision Meagher v. Hooper-Holmes Canada Ltd., 2020 ONSC 4480, at para. 15, F.L. Myers J. best described the right to cross-examine as follows: “ Moreover, prior to conducting cross-examinations of the defendants’ affiants, the plaintiffs were also entitled to examine whomever they wished as witnesses to the motion under Rule 39.03(1). Furthermore, under Rule 39.02(1) they had the near absolute right to cross-examine the defendants’ experts on their affidavits and on whatever documents they had reviewed in preparing their reports .”

[67] I adopt F.L. Myers J.’s reasoning. The right to cross-examine is not absolute. It is near absolute.

[68] Context is important in determining if the right to cross-examine is a relevant factor to consider.

[69] Through no fault of Hockey Canada, its main affiant was unable to attend at the court ordered cross-examinations.

[70] Doef was not prepared to cross-examine Messrs. Lacoste and Ciccolini without having cross-examined Mr. McCurdie first because Messrs. Lacoste and Ciccolini’s affidavits relied on Mr. McCurdie’s affidavits or deposed to overlapping facts. Doef wanted to test the veracity of Mr. McCurdie’s evidence first. This was a reasonable approach taken by Doef.

[71] Hockey Canada’s proposal to replace Mr. McCurdie’s affidavit with Mr. Jackson’s affidavit on substantially the same evidence, is reasonable.

[72] However, because of Mr. Conway’s schedule, Messrs. Jackson, Lacoste, and Ciccolini cannot be cross-examined before the motion for summary judgment.

[73] Doef’s request to cross-examine Messrs. Jackson, Lacoste, and Ciccolini may not be absolute, but in the circumstances of this case, the request is reasonable. The outcome of the motion is significant to Doef. Hockey Canada is attempting to dispose of his action against them.

[74] In the circumstances of this case, it would be unjust to hold a summary judgment motion where Doef would be unable to cross-examine Hockey Canada’s affiants.

Other factor – prejudice to Hockey Canada

[75] Prejudice to the party seeking to withdraw an affidavit if leave is not granted does not form part of the Gill factors. It is nonetheless a factor that should be considered.

[76] Hockey Canada argues that if leave is not granted, they will be significantly prejudiced. It is submitted that the parties have invested a lot of time and resources into the motion for summary judgment, noting that two (2) out of five (5) affiants have already been cross-examined. If the motion does not proceed, Hockey Canada will be forced into a lengthy jury trial, even though after years of litigation, Doef has failed to adduce any evidence of the standard of care he alleges Hockey Canada was supposed to have met.

[77] I am not going to comment on the merits of Hockey Canada’s motion for summary judgment, as it is not before the court.

[78] I agree that Hockey Canada will suffer prejudice if leave is not granted. However, it must be balanced with the competing interests of the parties and the proper administration of justice.

[79] Doef had agreed to the timetable established by Associate Justice Kaufman, and he was prepared to cross-examine Hockey Canada’s affiants in mid-December 2021 and proceed to the motion in early February 2022. Doef always intended to cross-examine Hockey Canada’s affiants and that intention remains the same to this day.

[80] Mr. McCurdie’s departure caused the landscape to change dramatically. The motion for summary judgment had to be moved from February 2022 to the first day of trial because of Mr. Conway’s unavailability. This new date may create some uncertainty and expense to the parties because they will have to prepare for both a motion and a trial. Then, depending upon how the events unfold regarding the motion on the first day of trial, there may be some disruption to witnesses, jury members, courts administration staff, and/or the court.

[81] Due to Mr. Conway’s prior commitments, including two lengthy trials, he not available to attend the cross-examination of Hockey Canada’s affiants.

[82] While the unexpected departure of Mr. McCurdie was out of Hockey Canada’s control, the resulting situation nonetheless exists entirely because of Hockey Canada, and it is not attributable whatsoever to Doef.

[83] A motion for summary judgment is important to the parties because it may dispose of the action in its entirety. For Doef, considering that he has been waiting for over six (6) years to have his day in court, it is reasonable to expect that he would want to oppose the motion as vigorously as possible, thereby necessitating thorough cross-examinations by Mr. Conway.

[84] Balancing the competing the parties’ interests, all while ensuring the proper administration of justice, I find that this case requires that leave should not be granted because proceeding to Hockey Canada’s motion for summary judgment, without cross-examination, would be manifestly unfair to Doef.

Disposition

[85] For these reasons, Hockey Canada’s motion is dismissed and the motion for summary judgment, scheduled for the first day of trial, is vacated.

Conclusion

[86] AIG’s motion for summary judgment is dismissed.

[87] Hockey Canada’s motion to withdraw Mr. McCurdie’s affidavit is dismissed.

[88] Hockey Canada’s motion for summary judgment, scheduled to proceed on September 19, 2022, is hereby vacated.

[89] The parties are encouraged to agree on costs. If they are unable to do so, Doef may file his costs submissions within 60 days of these Reasons for Decision (five (5) pages maximum, excluding his Bill of Costs and Offers to Settle). AIG and Hockey Canada may file responding costs submissions within 30 days thereafter, with the same page restriction. Then, Doef may file a reply, within 10 days thereafter, limited to two (2) pages maximum.

M. Smith J Released: March 3, 2022