ONTARIO SUPERIOR COURT OF JUSTICE

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: FL Myers J

COUNSEL: Dennis M. O'Leary, for the Plaintiffs

S. Alexandre Proulx, for the Defendant

HEARD: May 25, 2022

ENDORSEMENT

[1] The court finds itself in a predicament. A jury trial of this action is scheduled to begin in two weeks as part of the upcoming June Sittings in the Toronto Region. The defendant moves now for summary judgment based on the expiry of the limitation period prior to the commencement of this action six years ago.

[2] In March of this year counsel agreed to adjourn the trial to allow the defendant to bring his proposed motion for summary judgment. However, despite counsel’s agreement, D.A. Wilson J. declined to adjourn the trial. In her endorsement, reported at 2022 ONSC 1690, she wrote:

[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.

[3] I agree with Wilson J.

[4] The motion was scheduled to be heard on May 25, 2022. Unfortunately, with current resource limitations on the Civil Team in Toronto, the trial judge cannot yet be identified and no one was available to hear the motion.

[5] Due to the urgency of the timing, I added the matter to my already full list and heard it. That was a mistake.

[6] If I allow the motion, the action will be dismissed and the trial date will be vacated. An appeal could then be allowed on that basis alone. The position would be worse than the facts in Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2021 ONCA 361.

[7] In Avedian, a judge adjourned a trial that was scheduled to commence in five months time to hear a motion for partial summary judgment. The motion succeeded. The Court of Appeal held:

[14] The motion should not have been permitted to proceed. I draw attention to the “Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region”, (July 1, 2015), s. 69, in force at the time, which provided that “[o]nce trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.” There were no extenuating or exceptional circumstances present here. When the motion was brought, Enbridge Inc. was in the same circumstance and possessed the same knowledge as at the time of the March 2018 pre-trial conference before Firestone J. The purpose of the Practice Direction, in this respect, is precisely to avoid this sort of last-minute manoeuvring to the prejudice of other parties. In the result, the motion for partial summary judgment added unnecessary delay, expense, and the squandering of available court time: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 30-31, 34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at paras. 14, 23.

[8] Here, the trial is set to start in two weeks not five months. Wilson J. has already found that there are no extenuating circumstances justifying an adjournment of the trial.

[9] For the reasons that follow, I do not accept that it is in the interest of justice to grant summary judgment now considering, in particular, the litigation as a whole.

[10] Most of the defendant’s submissions before me require an assessment of when the principal plaintiff reasonably ought to have discovered her cause of action.

[11] The principal plaintiff alleges that the defendant negligently caused her to suffer a concussion on October 30, 2013. However, the plaintiff did not recognize the cause of her symptoms until many months later. Whether the plaintiff ought to have sought medical treatment sooner and learned or realized earlier that her symptoms were caused by her injury at the hands of the defendant is very much in issue.

[12] The defendant did not cross-examine the plaintiff or her doctor on their affidavits delivered for the motion. The plaintiff’s counsel asked me to read the transcript of the plaintiff’s examination for discovery to rebut submissions made by the defendant’s counsel. But a party is not entitled to rely on her own discovery evidence on a motion except to correct incomplete readings by the adverse party. This simply highlights the need for the parties to testify at trial.

[13] I cannot assess a contest as to whether a party behaved reasonably absent a proper evidentiary base including cross-examinations (and compliance with the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H. L.)). I just cannot see how it is efficient or affordable to try to make this type of assessment mere weeks before a jury trial. Counsel are well into their preparation for trial. Utilizing the ladder or multi-step approach outlined in Hryniak v Mauldin, 2014 SCC 7, at para. 66, I could not find it in the interests of justice to make the findings sought under the enhanced fact-finding powers in Rule 20.04 (2.1) considering the interests of the litigation as a whole with the trial literally right around the corner.

[14] The defendant argues that even ignoring the question of reasonableness, the limitation period expired on the plaintiff’s admitted evidence that she learned her GP’s diagnosis of the cause of her injury on February 20, 2014. The lawsuit was commenced just over two years later.

[15] But even that issue has some complexities.

[16] On February 20, 2014, the doctor gave the plaintiff a diagnosis that she was suffering from a concussion incurred in the incident with the defendant some months earlier. But the doctor also referred the plaintiff for an MRI to rule out a brain tumour as the cause of the plaintiff’s symptoms.

[17] On March 12, 2014, the plaintiff was told definitively that the MRI established that she did not have a brain tumour. A concussion specialist told her that she was suffering from post-concussion syndrome. The plaintiffs commenced this lawsuit just less than two years from that date.

[18] Normally perhaps, ruling out other causes of a plaintiff’s injury would not undermine the commencement of the limitation period once a plaintiff learns that the acts of the defendant caused the injury. But here, had the plaintiff sued the next day and then two weeks later learned that her MRI revealed that she had a brain tumour, the lawsuit would have been for naught.

[19] The plaintiffs submit that with just a few weeks in play until the injured plaintiff learned definitively that her symptoms were caused by a concussion sustained due to the defendant, rather than by a brain tumour, litigation in the brief interim period was not yet appropriate under s. 5 (1)(a)(iv) of the Limitations Act, 2002, SO 2002, c 24, Sch B?

[20] I am troubled by the idea of deferring the limitation period after a diagnosis has been communicated while other possible causes are ruled out. That could extend the limitation period endlessly despite a diagnosis having been made. Counsel for the plaintiff asserts however that the plaintiff was quite reasonably fixated on the frightening risk that she might have a brain tumour for the ensuing few weeks.

[21] I am also troubled by the artificiality of the analysis. The question in issue has little to do with the actual timing of the lawsuit. The plaintiff deferred suing, she says, because she hoped she would get better. That does not defer the limitation period of course. Two years later, when the plaintiff actually sued, I seriously doubt that she was looking back to figure out whether she first learned that she could sue the defendant on receiving her diagnosis on February 20th or after she received her MRI results on March 12th.

[22] The whole issue was avoidable had the plaintiff commenced the litigation within two years of the date of the actual incident i.e. by October 29, 20215 instead of in March, 2016. What probably happened was a lawyer entered a date in a tickler system based on an early assessment of facts. Once medical records were obtained and memories were jogged, a conservative approach ought to have led to a revision of the diarized limitation period expiration date. Whether that happened or, perhaps, whether the plaintiff was simply not ready to sue and knowingly took on the risk of being too late, is not for me to know.

[23] Be that as it may, the statute directs me to the period from February 20, 2014 to March 12, 2014. There is a fair degree of nuance involved in assessing these facts. It seems to me that if the doctor had told the plaintiff that she might have two or three causes of her symptoms so that investigation was still required to come to a diagnosis, the issue would be much simpler. Similarly, on the other side, had the doctor told the plaintiff definitively that she was suffering from a concussion from the blow to her head without needing medically to rule out a brain tumour, that would be simpler too. But between those two extreme poles sits a fair gulf of grey.

[24] How definitive must a doctor be to satisfy s. 5 of the statute? The parties have submitted no law on this question specifically.

[25] To decide if, on February 20, 2014, the plaintiff learned that the defendant caused her injuries under s. 5 (1)(a)(ii) of the statute and that litigation was appropriate that day under s. 5 (1)(a)(iv), requires a consideration of what the plaintiff was told by her doctor. The doctor has provided evidence that the plaintiff’s concerns about a brain tumour were reasonable in the doctor’s opinion. Is that opinion admissible as a participant expert’s medical opinion? Perhaps it was medically reasonable for the plaintiff to want to rule out a brain tumour; but does that go to the legal assessment of reasonableness for limitation purposes?

[26] At the same time, I cannot ignore that there are many other arguments available to the defendant that a reasonable person in the plaintiff’s position, suffering the plaintiff’s symptoms, ought to have gone to a doctor well before she did. She had to be pushed to see her doctor by her family and partners. She is a tax lawyer and at some point after November 19, 2013 and prior to February 20, 2014, she says she could not read more than a single paragraph without becoming nauseated.

[27] Summary judgment has to be considered in the context of the interests of justice. I recognize that if I could resolve the issue based on the admitted facts alone the parties would save two weeks of jury trial costs. The court would also gain those days for other trials waiting for their turn in the Toronto June Sittings. Had this motion been brought years ago, before counsel set a trial date and incurred trial prep costs, I might have been able to approach it with less diffidence.

[28] I also cannot see how it is in the interests of justice considering the litigation as a whole to bifurcate the assessment of limitation period issues. As discussed previously, if I hive off just the admitted facts and decide that the limitation period expired, an appeal could well succeed. Then the trial judge may decide that the admitted facts do not even matter because the plaintiff ought reasonably to have known the key facts well before her February 20, 2014 doctor’s appointment in any event. That is, the trial may be deferred a year or two and still be unnecessary in retrospect because the action can be resolved on a different limitation period argument.

[29] Moreover, the trial judge will be able to consider whether she can decide the motion before empanelling the jury if appropriate. Or, the motion can be heard and considered after evidence unfolds about what the plaintiff was doing and feeling from November, 2013 to February, 2014, with a deeper dive into how and when she decided to go to the doctor and what she was told by her doctor on February 20, 2014. There will be cross-examinations of the plaintiff and the doctor no doubt. There may also be evidence adduced to try to assist the court understand what a reasonable person with the plaintiff’s abilities ought to have been doing at various stages. There is nothing before me on this question. The defendant effectively asks me to rely on my own lived experience as a lawyer to ponder what the plaintiff was waiting for as her key career skill – her ability to reason - was becoming increasingly impaired.

[30] If the trial judge ultimately determines that the limitation period issue resolves the case, so that the trial was unnecessary, she can deal with unnecessary costs under Rule 57. This is not optimal as costs are rarely a complete indemnity and do not address delay and systemic resource utilization at all. But at least there can be some assessment of responsibility for unnecessary costs if appropriate.

[31] This predicament has a clear cause. If the defendant thought that this was a case that was properly resolved summarily, he should have brought the motion long ago. It was just too late in March, 2022 and certainly too late in May. In my view, as a result of the defendant’s delay, the only efficient, affordable, and proportional outcome consonant with the interests of justice considering the litigation as a whole at this stage is to adjourn the motion to the trial judge and leave the costs to be assessed by her as well.

[32] Accordingly the motion, including the costs associated with the hearing before me, is adjourned to the trial judge.

FL Myers J

Date:, May 30, 2022