Court File and Parties

COURT FILE NO.: CV-15-540887 DATE: 20220509 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Abdullah Horani, by his Litigation Guardian, Rania Alsaman, and Rania Alsaman, personally, Plaintiffs AND: Manulife Financial Corporation, Defendant

BEFORE: D.A. Wilson J.

COUNSEL: David Macdonald and Geoffrey Adair, for the Plaintiffs David Zuber and Neil Searles, for the Defendant

HEARD via Teleconference: May 3, 2022

Endorsement

[1] This is a claim for damages for personal injuries allegedly sustained as a result of a fall that occurred August 5, 2014 at the Plaintiff’s workplace. Mr. Horani asserts that he tripped over cords/wires/cables and suffered serious injuries from which he has not recovered. The Statement of Claim was issued in 2015, a Statement of Defence received and examinations for discovery of all parties took place in 2016. After a failed mediation, the action was set down for trial in April 2018, more than 4 years ago.

[2] Counsel attended trial scheduling court in June 2019 and fixed a 25-day jury trial to start March 29, 2021. As is the practice, a timetable for the exchange of expert reports was filed with the court at that time. A pretrial was held on January 7, 2021, and the Trial Management Report completed at that time indicated the pleadings were in order, productions were complete and all expert reports had been served. The trial did not proceed in March 2021 as civil jury trials were not available due to the pandemic. The trial coordinator, on my instructions as the civil co-team lead responsible for trials, contacted counsel and a new trial date of May 16, 2022 was selected with the consent of both counsel.

[3] On March 22, 2022, another pretrial was held before Regional Senior Justice Firestone. In his Trial Management Report, Justice Firestone noted that the pleadings were in order, all expert reports had NOT been delivered and the Plaintiff was requesting additional documentation from the Defendant [emphasis mine]. RSJ Firestone also noted that the length of trial was 32 days.

[4] After the second pretrial, Mr. Macdonald wrote to Mr. Zuber advising that he needed further documentation from Manulife and also advised that he had retained an expert to provide a report and the outstanding documents were critical to instructing the expert. Counsel indicated that the expert would be providing an opinion on whether the Defendant met its obligations under the Ontario Health and Safety Act to ensure the workplace was safe. Additionally, in his correspondence to Mr. Zuber dated March 31, 2022, Mr. Macdonald advised that he intended to amend the prayer for relief to $8,000,000 and to include a claim for punitive damages in the sum of $2,000,000. He advised that the motion would also include a request for a further and better affidavit of documents from the Defendant. The motion was served on April 1, 2022.

[5] A case conference was booked before me on April 4. I advised counsel that given the fixed trial date, I would ensure the motion was scheduled before a judge on an urgent basis. The motion was argued before Justice Vermette on April 13, 2022 on a full record.

[6] Justice Vermette released her written reasons on April 19, 2022. She found on the evidence that the first time the Plaintiff advised that he intended to amend the Claim to include a punitive damages claim and serve a brand new expert report was March 31, 2022. She declined to grant leave to the Plaintiffs to bring a motion for a further and better affidavit of documents. Vermette J. granted leave to the Plaintiffs to increase the quantum of the prayer for relief, noting that the Defendant had known about the extent of the injured Plaintiff’s alleged damages for 4 years and there was no prejudice.

[7] However, Justice Vermette dismissed the request of the Plaintiffs to add a punitive damages claim. Her Honour noted that the Plaintiffs had not rebutted the presumption of prejudice and given that the request was made on the eve of trial, she found that it would be unfair to the Defendant and the trial could not go ahead as scheduled on May 16, 2022.

[8] On April 29, 2022, I received an email from the solicitor for the Plaintiffs requesting an urgent case conference; he advised that he intended to appeal the Order of Vermette J. to the Court of Appeal and that he had retained counsel to do so. I convened a case conference on May 3, 2022. Mr. Macdonald advised that while the issue of the late delivery of an expert report could be dealt with by the trial judge, the dismissal of the request to amend the claim to include a punitive damages claim was a final order and would need to be appealed to the Court of Appeal. Since that appeal could not be heard before the trial date of May 16, he submitted the trial would have to be adjourned.

[9] Mr. Zuber on behalf of the defence advised that the Plaintiffs had not delivered a notice of appeal and in his view, the order of Vermette J. was an interlocutory order and should have been appealed to Divisional Court within 7 days of the release of the decision and a motion ought to have been brought for a stay of the order. Since that was not done, and the appeal was out of time, the trial should proceed on May 16. The defence was strongly opposed to any adjournment of the trial date. I advised counsel that I would deal with the issue of the adjournment of the fixed trial date.

[10] Subsequent to the case conference, Mr. Macdonald emailed me on May 5 to send a copy of the Notice of Appeal to the Court of Appeal and to advise that a request would be made of the Court of Appeal to hear the motion on the earliest possible date.

[11] I am not being asked to decide whether the Order of Vermette J. is an interlocutory or a final order; nor am I tasked with a review of the Order as to its correctness. The case conference before me was convened to deal with the request of the Plaintiffs for an adjournment of the fixed trial date. In Toronto, fixed trial dates are only adjourned in extenuating circumstances.

[12] The Plaintiffs were content to proceed to trial in 2021 with the record as it existed at that time and the trial would have commenced and concluded in 2021 but for the pandemic and the suspension of jury trials. Counsel for the Plaintiffs agreed with the fixing of the new trial date of May 16, 2022, and the trial time requested was 32 days, a significant amount of trial time.

[13] The trip and fall giving rise to this action occurred in 2014; the examinations for discovery were held in 2016. At that time, the issue of whether or not Manulife complied with its obligations as an employer pursuant to the OHSA to ensure the workplace was safe for employees should have been canvassed. Six years is more than ample time for counsel to determine if the documentary production is satisfactory and whether the expert opinions necessary for trial have been secured; in a nutshell, there has been more than sufficient time for counsel to determine if the case is “trial ready” not once, but twice. Surely when the 2021 trial date did not proceed, all of the concerns now raised by Mr. Macdonald could have been dealt with at that time. If he was unhappy with the responses from Mr. Zuber concerning production of additional documents, leave to bring a motion could have been sought a year ago. Nothing new occurred recently that persuades me that the situation today is any different than the situation as it existed when the action was set down for trial or when the first judicial pretrial was held. I do not find it is unfair to the Plaintiffs to proceed with the scheduled trial date of May 16. If Mr. Macdonald wishes to have a late served expert report received into evidence, that request can be made of the trial judge pursuant to Rule 53.03 of the Rules of Civil Procedure and it is specifically provided for in the Order of Justice Vermette.

[14] While I make no specific finding on this point, it seems to me that the solicitor for the Plaintiffs is at liberty to ask the trial judge to amend the claim if there is evidence heard at the trial on which a punitive damages claim could be asserted, since such damages are based on conduct.

[15] When counsel deliver a certificate of readiness for trial pursuant to Rule 48.04 of the Rules of Civil Procedure that is an important event in the life of a litigation file and it has consequences. Counsel is confirming to the Court that all interlocutory matters have been attended to and the parties are ready for trial pursuant to Rule 48.07 of the Rules of Civil Procedure. Leave to initiate a motion or further discovery is required from the Court.

[16] In the instant case, the solicitor for the Plaintiffs advised the Court the case was ready for trial in 2018 when the trial record was served. Counsel attended at trial scheduling court and again advised the Court the case was ready, and a trial date was selected in March 2021. At the pretrial in January 2021, counsel advised the pretrial judge that the pleadings were in order, productions were complete, and all expert reports were available.

[17] More than a year later on March 22, 2022, at the second pretrial, counsel again confirmed that all expert reports were in hand, and pleadings were in order. There was never a mention of a punitive damages claim being advanced until after the second pretrial, some 6 weeks before the trial was scheduled to commence.

[18] The Court relies on counsel to confirm that a case is ready for trial. This case has 32 days of trial time booked; if it were adjourned, a new trial date could not be secured until some time in 2024. I accommodated the solicitor for the Plaintiffs’ request for an urgent motion date because I wanted the motion heard prior to the fixed trial date. After the release of the decision on April 19, counsel could have moved immediately on an urgent basis for a stay of the order or for an urgent hearing in the Divisional Court to determine if the Order was final or interlocutory. Counsel could have sought an urgent motion date in the Court of Appeal as well, given the fixed trial date. None of these steps were taken; in fact, a Notice of Appeal was not delivered for more than 2 weeks after the decision of Justice Vermette was released.

[19] In my view, it is not in the interests of justice to adjourn this 32-day trial so that an appeal of the Order of Justice Vermette can be heard prior to the trial, and I decline to do so.

Date: May 9, 2022