Court File and Parties

COURT FILE NO.: CV-16-548161 DATE: 20220317 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elisabeth V. Atsaidis, John Paul Royal, Alexia Renee Atsaidis Royal, T.A.R., a minor, and S.D.R., a minor, by their litigation guardian, Elisabeth V. Atsaidis, Plaintiffs

AND:

Phillip L Sanford, Defendant

BEFORE: D.A. Wilson J.

COUNSEL: Dennis M. O’Leary, for the Plaintiffs S. Alexandre Proulx, for the Defendant

HEARD via teleconference: March 16, 2022

Endorsement

[1] This is a personal injury action that was commenced in 2016, arising from an incident that occurred in 2013, from which the Plaintiff claims damages. The pleadings were delivered in 2016; the Statement of Claim was subsequently amended in 2019. The Defendant has pleaded a limitation period defence since the action was commenced more than 2 years after the occurrence of the allegedly negligent act. In this case, the Plaintiff alleges that the Defendant Mr. Sanford “yanked the Plaintiff towards himself, causing her head to violently strike a hard plastic egg chair” which resulted in a loss of consciousness and a head injury and other sequelae. The Plaintiff claims general damages, loss of income, other special damages and there are claims asserted pursuant to the Family Law Act as well.

[2] The action proceeded through the usual steps, including examinations for discovery and a mediation. In November 2020, counsel appeared before me and requested a trial date. The action was placed in the jury sittings commencing June 6, 2022, with a pretrial scheduled for March 25, 2022.

[3] On March 1, 2022, Mr. Proulx wrote to the trial coordinator advising that with the consent of the solicitor for the Plaintiffs, the parties were asking that the trial and pretrial dates be adjourned as counsel had agreed to proceed with a summary judgment motion to determine the limitation period issue prior to trial. In my capacity as the team lead for civil trials and pretrials, the adjournment request was forwarded to me, and a case conference was arranged.

[4] While I appreciate that Mr. Proulx has only recently assumed carriage of this action, when I asked why the motion to determine the limitation period issue was not brought at an earlier date, there was no satisfactory answer provided.

[5] When counsel set an action down for trial and attend at trial scheduling court to fix a trial date, the Court assumes that all interlocutory matters have been completed and the action is ready for trial, save perhaps for some additional expert reports. I was not advised of any contemplated motion to determine the limitation period which, if successful, renders the trial unnecessary. Had I been advised, I would not have booked the trial date. Given the delays occasioned as a result of the pandemic and the unavoidable suspension of in person trials, in particular jury trials, in Ontario, trial dates are a precious commodity. Furthermore, the Practice Direction in Toronto stipulates that civil trials are only adjourned in extenuating circumstances (emphasis mine).

[6] In the instant case, there are no extenuating circumstances justifying an adjournment of the June trial date; nothing new or unforeseen has arisen that has resulted in the inability of counsel to conduct the trial. It must have been obvious from the outset to the defence that the claim was issued outside of the 2-year limitation period pursuant to the Limitations Act. Although there is no reference to the limitation period issue in the amended Statement of Claim that I was provided with, the Plaintiff may be arguing that she did not discover that she had a personal injury claim until some time after the 2 years had elapsed.

[7] In their joint request for an adjournment of the trial date, counsel advised that the trial will be unnecessary if the Summary Judgment motion is successful. That may be true, but the Summary Judgment motion could have and should have been brought years ago. As Justice David Brown noted in Malik v. Attia et al, 2020 ONCA 787 “…the decision in Hryniak v. Mauldin, 2014 SCC 7 promoted summary judgment as a procedural tool that offers the prospect, when used in the right circumstances, to provide litigants with timely and affordable access to the civil court system…” Here, how does adjourning the trial to allow a motion that could have been brought years ago to potentially dispose of the action provide timely access to justice for the parties? It does not, it simply adds to the delay. Adjourning the trial date would mean a delay of the trial until 2024, some 11 years after the event giving rise to this action.

[8] I decline to adjourn the trial from the jury sittings set to commence in June 2022. I do agree that the issue of the limitation period ought to be determined prior to the commencement of the trial, particularly since it is a jury trial. I will appoint the trial judge who will hear the Summary Judgment motion prior to the sittings. I direct counsel to arrive at a consent timetable for the service of the motion materials, but the motion records, factums and books of authorities must be filed with the Court in CaseLines on or before May 13, 2022. The motion will be heard by the trial judge the week of May 23, 2022. If there are any issues arising from my order, counsel are directed to contact me forthwith.

Date: March 17, 2022