Court File and Parties

COURT FILE NO.: CV-15-65254 DATE: 2022/01/12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOANNE BURWASH Plaintiff – and – Dr. Sheldon Levy, Dr. Abraham Isaac Orner, 7977085 Canada Inc. (previously known as Riverfront Medical Services Limited), Jean Turgeon, Dr. Tilak De Fonseka Mendis and Dr. Kenneth William Gregory Suddaby Defendants

Counsel: Joseph Obagi for the Plaintiff Eli Mogil for the defendant physicians Christopher Blom for the defendant Jean Turgeon Calogero Rumeo for the defendant 7977085 Canada Inc.

ENDORSEMENT OF CASE CONFERENCE ON January 11, 2022

[1] Canvassed for possible trial dates for a judge-alone trial, the parties in this matter asked the Ottawa case management office to schedule a twenty-day trial in two non-consecutive, two-week tranches. This would have allowed them to secure trial dates in 2023 rather than 2024. The case management office sought my input as the local administrative judge for civil cases. I directed a case conference to hear submissions on the scheduling of the trial. At the end of the case conference, I indicated to the parties that the trial in the matter would be scheduled as requested. Since this is an unusual direction, I am providing the parties with this written endorsement.

Background

[2] This action arises from assessments obtained by the plaintiff Joanne Burwash’s insurer, after she was injured in a serious motor vehicle accident in January 2007. Ms. Burwash alleges that the defendant physicians and occupational therapist colluded to undermine a treatment plan that she submitted to the insurer. This plan would have involved modifying her home at a cost of about $300,000. When the insurer refused to fund the plan, Ms. Burwash borrowed money at an exorbitant interest rate so that she could make the modifications at her own expense. She has since repaid the loan with money obtained in settlement of her accident benefits claim and tort claim in late 2014 and early 2015. Based on the allegations of collusion and bad faith, however, she claims that the defendants are liable for the costs of the loan, which are somewhere between $600,000 and $700,000. She also claims punitive damages.

[3] Although the car accident took place in 2007 and the assessments at issue were completed in 2011, Ms. Burwash did not obtain disclosure of the medical assessment file until November 2014. She began this action in 2015. It was set down for trial in July 2020. Due to an administrative error, nothing further occurred until the end of 2021, after Ms. Burwash followed up with the case management office. Various trial dates were then offered. Taking into account the court’s schedule and counsels’ availability, the earliest possible date for a continuous four-week hearing is April 2024. If, on the other hand, the trial were to proceed in two week tranches, it could begin about a year earlier.

Analysis

[4] In Louis v. Poitras [1], the plaintiff moved to strike a jury notice, arguing that, if the trial had to take place before a jury, it would be unduly delayed due to the Covid-19 pandemic. Beaudoin J. granted the motion, struck the jury notice, and ordered that the trial be held in three-week tranches. The Divisional Court agreed that he had the discretion to make such an order. The Court of Appeal agreed.

[5] As Beaudoin J. noted, at paras. 60 and 61 of Louis v. Poitras, our court has generally avoided scheduling trials in non-consecutive weeks unless the parties seek a bifurcated trial under r. 6.1.01. He said that, until recently, judges were concerned that delaying the completion of a trial could compromise the ability of the parties, their counsel, witnesses and the judge to recall the evidence. Now that digital recordings of testimony are much more often available, Beaudoin J. observed that “the ability to review the evidence and refresh the judge's memory as well as the memories of the parties and their counsel has vastly improved”. While acknowledging that scheduling a non-continuous trial was novel, he held that “it should be attempted during these unprecedented times”.

[6] Unfortunately, these “unprecedented times” are still with us. The rise of the Omicron variant of Covid-19 in late 2021 has once again curtailed this court’s ability to hear non-urgent matters in person or to hold civil jury trials in Ottawa. We do not know when this particular stage of the pandemic will end, and what limitations on civil proceedings may have to remain in place over the next months or years.

[7] The pandemic has already exacerbated existing delays in scheduling civil trials in this region. The local bench and bar and the courts’ administration have moved mountains over the last 22 months to keep cases moving forward through the adoption and use of electronic filing and video hearings. Despite this, the civil backlog accumulates day by day.

[8] I find that the pandemic delayed trial scheduling in this case. In Louis v. Poitras, at para. 1, Beaudoin J. noted that, if the trial is expected to take three or more weeks, parties to Ottawa actions typically wait at least two years after setting a civil case down for their action to proceed to trial. In the case at bar, the plaintiff filed a trial record in July 2020 and is being offered a trial date in April 2024, a delay of almost four years. About 18 months of this delay is due to an oversight by courthouse staff. In my capacity as LAJ civil in Ottawa, I have directly observed how the pandemic has stressed our administrative processes and staff, who have been forced to adapt to new processes and demands with limited resources, while at the same time facing the same personal challenges that have burdened all of us during this period. The oversight in this case would not have arisen in ordinary circumstances.

[9] This impact does not, in itself, dictate that a non-continuous trial be scheduled. Directing a “stop and start” trial may negatively impact the parties, their counsel, and the court system as a whole.

[10] As already noted, memories about what occurred in the first segment of the trial may not remain fresh. Access to trial recordings helps, but reviewing them duplicates the time and effort required of everyone involved in the hearing. It increases trial costs for the parties and gives the trial judge more work, which they generally will not be given additional non-sitting time to complete. Finally, accommodating non-continuous trials is a challenge for the trial coordinator and the management of court services. If a judge is involved in a trial that is heard in multi-week segments over a period of months, the judge’s ability to hear other long trials may be compromised.

[11] Taking these impacts into account, scheduling non-continuous trial dates must remain the exception rather than the rule, even during a pandemic. The parties must establish that they have a genuine reason for asking the case management judge to make this kind of discretionary order.

[12] In this case, I find that a non-continuous trial is warranted, for two reasons.

[13] First, if I do not make the order sought, the trial of this action will be further delayed by many months. This should be avoided if at all reasonably possible. Fifteen years have passed since Ms. Burwash’s motor vehicle accident. Ten years have passed since the assessments at issue were performed. Recollections fade over time. Any further trial delay therefore risks the deterioration of the evidence. Further delay also risks further personal and professional reputational damage to the individual defendants, whom Ms. Burwash alleges engaged in collusion and dishonest conduct. Finally, it delays closure for Ms. Burwash herself, who has been involved in multi-pronged litigation since 2009.

[14] Second, all of the parties in this case have agreed to seek non-continuous trial dates. The consent of all parties does not dictate that the court must make the direction sought. It is significant, however. All parties are prepared to accept any reduced efficiency and/or increased costs, in exchange for an earlier hearing date.

[15] Since the beginning of the pandemic, case management judges have been encouraging parties to adopt a creative approach to dispute resolution and procedural issues. Although a segmented trial will not be appropriate in many cases, I find that it is suitable in the circumstances of this case.

Disposition

[16] I direct the case management office to set a twenty-day trial in two, non-continuous tranches of two weeks, beginning the first date that all counsel are available. I also direct case management to set a half-day pre-trial conference before a judge not more than 6 months ahead of the first trial date.

Justice Sally Gomery

Released: January 12, 2022

[1] 2020 ONSC 5301; rev’d 2020 ONSC 6907 (Div. Ct.); motion judge’s decision restored 2021 ONCA 49.