Court File and Parties

COURT FILE NO.: CV-12-466961 DATE: 2022-04-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aamir Sherwani, Plaintiff AND: Terence Fargher, Donald Sanderson and West Parry Sound Health Centre, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Howard Wolch, for the Plaintiff Lisa Spiegel and Tina Kaye, for the Defendants, Donald Sanderson and West Parry Sound Health Centre Sean Lewis, for the Defendant, Terence Fargher

HEARD via Telephone: April 27, 2022

Endorsement

[1] This is an action for damages arising from the loss of privileges of the Plaintiff at the Defendant hospital. It was fixed to start trial March 28, 2022 for 10 days; unfortunately, there was no judge available to preside at the trial so it did not proceed. Counsel were offered new trial dates in June 2022 and in the fall of 2022; counsel advised they were unavailable to do the trial on the dates that were offered by the Court.

[2] Counsel for the Hospital decided to bring a motion for summary judgment and attended in Civil Practice Court on April 6 requesting a motion date. Justice Myers declined to schedule the Summary Judgment motion and referred counsel to me for a case conference. As a result, I convened today’s teleconference.

[3] I was advised by counsel that the examinations for discovery took place in 2015. No explanation was offered by counsel for the hospital for the delay in bringing the Summary Judgment motion. Today, I was also advised the hospital wishes to bring a motion for security for costs. Again, no explanation was forthcoming as to why this motion was not brought in a timely fashion.

[4] This action was set down for trial in 2019. Counsel attended trial scheduling court and fixed the case for trial on consent in July 2021 and a pretrial conference took place on January 27, 2022. Had a judge been available, the trial would have started on March 28 and it would have been completed by now. I decline to grant leave to the Defendant hospital to bring a motion for partial Summary Judgment. Such a motion should have been brought much earlier on, certainly prior to scheduling a trial date in this action. Summary Judgment is intended for a quick, efficient disposition of a case; now that the case is at the trial-ready stage, there is no advantage to the parties to have a partial Summary Judgment motion and indeed, the Court of Appeal has specifically ruled that partial Summary Judgment motions should not be launched on cases that are fixed for trial.

[5] The motion for security for costs ought to have been brought prior to the setting of a trial date as well. When counsel attend trial scheduling court and advise the Court the case is ready for trial, it is expected that all of the interlocutory motions have been brought. Indeed, once an action is set down for trial and a trial date selected, the parties require leave of the Court to initiate motions. A motion for security for costs is properly brought before an Associate Judge. If counsel for the hospital wishes to bring such a motion at this stage, they are at liberty to do so in accordance with the regular procedure for motions; this would not qualify as an urgent motion.

[6] I am advised that one of the witnesses, Dr. Hunt, that the Defendant physician wishes to call at trial is elderly and there is a concern about his availability to testify at trial. Mr. Lewis wishes to have his evidence done now and counsel seem to agree that is sensible. Counsel shall arrange for the de bene esse evidence of Dr. Hunt on a mutually convenient date.

[7] The Plaintiff asserts a loss of income claim in this action arising from the denial of his privileges at the hospital. At the examination for discovery in 2015, the loss of income was not quantified. The Plaintiff served an expert report in 2019 calculating the loss of income claim being pursued; more recently the Plaintiff’s tax returns were produced. The Plaintiff shall attend an examination for discovery on the loss of income claim on a mutually convenient date for counsel before August 31, 2022. All documentation concerning the loss of income claim on which the Plaintiff relies shall be produced prior to the discovery date.

[8] Finally, I turn to the issue of the new trial date. At this moment in time, trial dates are a precious commodity, given the adjournments of cases necessitated by the suspension of the work of the Court during the pandemic. We are very fortunate in Toronto that we have returned to in-person trials and jury trials. It is indeed unfortunate that the trial could not proceed on March 28 as scheduled; however, the Court offered counsel early dates for trial as a result, so the trial could be completed in 2022. This case is 10 years old and needs to be completed. In my view, it is unacceptable for counsel to advise that none of the trial dates offered by the Court were agreeable and instead, to seek to secure a trial date in 2023. There is an obligation on counsel to make themselves available when trial dates are offered. It is difficult to imagine what would be more important than a trial date on a case that is a decade old and was ready for trial several weeks ago. I advised counsel that the trial of this action will take place in 2022; I have checked with the trial coordinator and this case can be fixed for trial to commence September 19 or November 21, 2022 for 10 days. Counsel are directed to agree upon a trial date, failing which I will set the date for trial.

Date: April 28, 2022