MOTION HEARD: 20220616
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hilary Rodrigues, Savio Rodrigues, and, by his Litigation Guardian Hilary Rodrigues, Isaac Rodrigues, Plaintiffs
AND:
Mount Sinai Hospital, Maria-Luiza Minea, Alena Kucirek, Shanaz Fouladian, Eleanor Grilo, Maryam Nezaratizadeh, Christine Guanzon, Juanita Clarke, Dr. Elyse Levinsky, Dr. Wendy Whittle, Dr. Brittany Hoover, Dr. Ann Malinowski, Dr. Marie Czikk, Dr. John Snelgrove, Dr. Julia Kfouri, Dr. Rasheeda Altourshi, Dr. Hans Keunen, Dr. Ally Murji, Dr. Joshua Rucker, Dr. Naveed Siddiqui, Dr. Yair Sagi, Dr. Akash Goel, Dr. Michael Chaikof, Doctor Doe and Nurse Doe, Defendants
BEFORE: Associate Justice B. McAfee
COUNSEL: J. Evans and K. Hayden, Counsel, for the Plaintiffs
C. Hubbard and N. Kolos, Counsel, for the Defendants Dr. Elyse Levinsky, Dr. Wendy Whittle, Dr. Brittany Hoover, Dr. Ann Malinowski, Dr. Marie Czikk, Dr. John Snelgrove, Dr. Julia Kfouri, Dr. Rasheeda Altourshi, Dr. Hans Keunen, Dr. Ally Murji, Dr. Joshua Rucker, Dr. Naveed Siddiqui, Dr. Akash Goel and Dr. Michael Chaikof
M. Umbrio, Counsel, for the Defendants Mount Sinai Hospital, Maria-Luiza Minea, Alena Kucirek, Shanaz Fouladian, Eleanor Grilo, Maryam Nezaratizadeh, Christine Guanzon and Juanita Clarke
HEARD: June 16, 2022
REASONS FOR DECISION
Introduction and Background
1This is a motion brought by the plaintiffs for an order extending the time for service of the statement of claim on the defendants Dr. Rasheeda Altourshi, also referred to in the motion material as Dr. Al Tourshi (Dr. Altourshi), and Dr. Yair Sagi (Dr. Sagi), nunc pro tunc. The plaintiffs also seek an order validating service of the statement of claim on these defendants.
2Dr. Altourshi opposes the motion. The defendants Mount Sinai Hospital (the hospital), Maria-Luiza Minea, Alena Kucirek, Shanaz Fouladian, Eleanor Grilo, Maryam Nezaratizadeh, Christine Guanzon and Juanita Clarke (the defendant nurses) take no position on the motion. No one appeared on behalf of Dr. Sagi. The other defendant physicians take no position on the motion as it relates to Dr. Sagi.
3This medical malpractice action concerns the alleged negligent treatment and care received by the plaintiff Hilary Rodrigues (Ms. Rodrigues) from August 5 to August 9, 2016. The plaintiffs allege negligent management of Ms. Rodrigues’ labour, delivery and postpartum care. Ms. Rodrigues developed a severe septic infection, ultimately resulting in shock and multi-organ failure within 24 hours of the birth of her child. Ms. Rodrigues required dialysis, a lengthy hospitalization and a kidney transplant. Ms. Rodrigues was discharged from the hospital on August 23, 2016.
4At the time of the events, Dr. Sagi was a fellow in maternal-fetal medicine at the hospital. Dr. Sagi is alleged, among other things, to have been involved in Ms. Rodrigues’ care overnight from August 8 to 9, 2016, and to have failed to respond to reports that Ms. Rodrigues was experiencing visual disturbances and abnormal vital signs.
5At the time of the events, Dr. Altourshi was also a fellow in maternal-fetal medicine at the hospital. Dr. Altourshi is alleged to have been involved in assessing Ms. Rodrigues on a number of occasions throughout the day on August 8, 2016, when Ms. Rodrigues was found to be febrile, tachycardic and hypertensive. Dr. Al Tourshi was also involved in the caesarean hysterectomy performed later that day, and in assessing Ms. Rodrigues the following morning.
6The statement of claim was issued on August 3, 2018, naming fifteen doctors, seven nurses, two “Doe” parties, and the hospital as defendants. Twenty-one of twenty-three named defendants were served with the statement of claim by March 2019.
7The hospital and defendant nurses served a statement of defence on or about February 7, 2020.
8The defendant doctors, save for Dr. Altourshi and Dr. Sagi, served a statement of defence on or about May 27, 2020.
9The process server began efforts to serve the statement of claim in January 2019. With a few defendants still needing to be served, on February 1, 2019, the plaintiffs brought an ex parte motion before Master Sugunasiri, as she then was, and obtained an order extending the time for service until March 4, 2019. On February 28, 2019, the plaintiffs brought a further ex parte motion and obtained a further extension to May 6, 2019. By March 26, 2019, the plaintiffs had served all defendants other than Dr. Altourshi and Dr. Sagi. On May 3, 2019, the plaintiff brought a third ex parte motion and obtained an order extending the time for service until November 6, 2019.
10The service that the plaintiffs seek to validate with respect to Dr. Sagi took place by email on April 8, 2021. On April 8, 2021, Dr. Sagi responded to the email.
11The service that the plaintiffs seek to validate with respect to Dr. Altourshi took place by email on April 28, 2021. On May 8, 2021, Dr. Altourshi responded to the email.
12The service at issue took place approximately 17 months after the expiry of the deadline in the last extension order, or approximately 11 months after the expiry of the deadline having regard to the Emergency Management and Civil Protection Act, R.S.O. 1990, E.9, and the regulations made thereunder.
13Moving counsel advises that notice of the within motion was first served on or about September 27, 2021.
Applicable Rules and Legal Principles
14The applicable Rules of Civil Procedure are as follows:
1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
3.02(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.
14.08(1) Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued.
16.01 An originating process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in rule 16.03.
16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service when the court is satisfied that,
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.
15The applicable test for an extension of the time to serve is set forth by the Court of Appeal in Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA), [2000] O.J. No. 296 (C.A.) as follows:
As Lacourcière J. A. said in Laurin v. Foldesi (1979), 1979 CanLII 1875 (ON CA), 23 O.R. (2d) 331, 96 D.L.R. (3d) 503 (C.A): “The basic consideration … is whether the [extension of time for service] will advance the just resolution of the dispute, without prejudice or unfairness to the parties.” (para. 12);
…the plaintiff has the onus to prove that extending the time for service will not prejudice the defence. (para. 12);
Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. … if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. (para. 14);
…the defence cannot create prejudice by its failure to do something that it reasonably could have or ought to have done. (para. 15);
…prejudice that will defeat an extension of time for service must be caused by the delay. Prejudice that exists whether or not service is delayed ordinarily is not relevant on a motion to extend the time for service. (para. 16);
…the court should be concerned mainly with the rights of litigants, not with the conduct of counsel. (para. 9);
The court should not fix in advance rules or guidelines when an extension should be refused. Each case should be decided on its facts, focusing … on whether the defence is prejudiced by the delay. (para. 17)
16Dr. Altourshi opposes the extension of time sought as against her for four reasons: (i) the plaintiffs knowingly abandoned their claim against Dr. Altourshi; (ii) the plaintiffs have failed to provide an explanation for their failure to promptly locate and serve Dr. Altourshi; (iii) an extension of time will result in prejudice to Dr. Altourshi; and (iv) it would be unfair to Dr. Altourshi to grant the relief sought.
17Dr. Altourshi argues that the plaintiffs knowingly abandoned their claim against Dr. Al Tourshi by November 6, 2019, when the third extension order expired.
18The evidence before me does not support Dr. Altourshi’s assertion that the plaintiffs knowingly abandoned their claim against Dr. Altourshi by November 6, 2019. On February 5, 2020, plaintiffs’ counsel wrote to counsel for the defendant physicians who had been served indicating “we continue to be unable to locate Drs. Sagi and Altourshi.” On April 24, 2020, plaintiffs’ counsel wrote to counsel for the served defendant physicians indicating “we continue to have a difficult time locating them. We would prefer not to inconvenience them, and wonder if you’re able to assist in providing the attached Statement of Claim, and service card to them?” On April 9, 2021, plaintiffs’ counsel wrote to counsel for the served defendant physicians indicating “By way of update, we’ve now managed to reach Dr. Sagi after multiple attempts. He acknowledged receipt of the Statement of Claim by email yesterday. We encouraged him to reach out to the CMPA so I expect that Natalie will hear from them shortly. I don’t have any news on Dr. Altourshi but will keep you posted.”
19Seeking an extension order after the expiry of time is permitted pursuant to Rule 3.02(2).
20I am satisfied that the plaintiffs have provided an explanation for their failure to promptly serve Dr. Altourshi and Dr. Sagi.
21The process server began efforts to serve the statement of claim in January 2019. On January 9, 2019, the process server attempted to serve Dr. Altourshi at the hospital. The process server was informed that Dr. Altourshi was a resident physician and did not have a regular schedule. The process server was not advised that Dr. Altourshi no longer worked at the hospital. As such, the process server made further attempts to serve Dr. Altourshi on January 15 and 31, 2019.
22On February 27, 2019, plaintiffs’ counsel wrote to counsel for the served defendant physicians to inquire whether they would agree not to take issue with late service on the as yet unserved defendant physicians.
23On March 22 and 23, 2019, plaintiffs’ counsel asked counsel for the served defendant physicians whether Dr. Altourshi or Dr. Sagi had yet contacted the Canadian Medical Protective Association (CMPA).
24On April 29, 2019, plaintiffs’ counsel contacted the College of Physicians and Surgeons of Ontario (CPSO) for assistance in obtaining current contact information for Dr. Altourshi and Dr. Sagi. The CPSO agreed to try and contact the Dr. Altourshi and Dr. Sagi on counsel’s behalf.
25On April 30, 2019, plaintiffs’ counsel emailed counsel for the served defendant physicians asking for their assistance in sending the statement of claim to Dr. Altourshi and Dr. Sagi. Counsel for the served defendant physicians responded that they were not aware of contact information and were unable to assist.
26On May 1, 2019, the office of plaintiffs’ counsel spoke to CPSO again and were advised that CPSO has tried to contact Dr. Altourshi and Dr. Sagi but have not received a response.
27On August 27, 2019, the process server attended at the hospital again to locate Dr. Altourshi.
28Internet searches were conducted on multiple occasions since 2019 in an attempt to locate Dr. Altourshi without success.
29LinkedIn and Facebook searches for Dr. Sagi revealed he worked at a hospital in Israel. In December 2019, the office of plaintiffs’ counsel left voicemails and emails at two hospitals in Israel in an attempt to locate Dr. Sagi. These were not responded to. A courier package containing the statement of claim was sent to Dr. Sagi in Israel in January 2020, without successful delivery.
30On February 6, 2020, the office of plaintiffs’ counsel emailed Dr. Sagi, without a response. This was the same email address that Dr. Sagi eventually responded to in April 2021.
31I am satisfied that these efforts provide an explanation for the failure to promptly serve Dr. Altourshi and Dr. Sagi who both left the country and moved to Oman and Israel respectively.
32I am satisfied that an extension of time will not result in prejudice to Dr. Altourshi or Dr. Sagi. No material witnesses have disappeared or died. Ms. Rodrigues’ complete clinical notes and records from the events at issue, including those relating to Dr. Altourshi and Dr. Sagi, are preserved and were produced by the hospital. The plaintiffs have also produced and preserved Mr. Rodrigues’ post-admission records from the University Health Network and her Personal Claims History from 2013 to 2020. The ten-year period of record preservation required under the Medicine Act, 1991, S.O. 1991, c. 30 and regulations made thereunder, has yet to expire. An internal quality assurance review was prepared by the hospital in relation to these events. The resultant report has been preserved.
33Although Dr. Altourshi’s evidence is that there is actual prejudice to her due to her loss of memory as a result of the delay, including whether she worked with a particular co-defendant physician, the medical records of the treatment at issue are available.
34As noted in Chiarelli each case should be decided on its own facts. Dr. Altourshi relies on the decision in Gupta v. Chacko, 2020 ONSC 1457 (Ont. S.C.J.); aff’d Gupta v. Dr. Venka, 2022 ONSC 754 (Ont. Div. Ct.). The circumstances in Gupta are unique and can be distinguished. In Gupta the plaintiff expressly instructed her lawyer to stop working on her case and then had no contact with her lawyer for 20 months, which was found to be determinative. I have not found that the plaintiffs expressly or knowingly abandoned their case. In Gutpa, it was not until approximately 3 years following the issuance of the notice of action that any defendant first received notice of the claim, which is not the case before me. In Gupta, no statement of claim was ever filed, which is not the case before me. In Gupta, there was evidence to satisfy the court of prejudice. In Gupta there was evidence of prejudice as a result of a lost opportunity to investigate, which is not prejudice alleged before me. In Gupta one of the main allegations against one of the physicians related to an appointment wherein a doctor discussed funding with the plaintiff who did not have OHIP coverage. There were no records of conversations dealing with the issue of funding. The situation in Gupta was unique because the conversations involved funding for medical care and not medical treatment. In the circumstances it was found that the physician’s standard practice could not fill in the gaps. To the extent that Dr. Altourshi also claims actual prejudice because her standard practice could not fill in the gaps, the claims against Dr. Altourshi and Dr. Sagi involve their treatment of Ms. Rodrigues and not unique circumstances such as were before the court in Gupta.
35Having regard to the circumstances of this case, including the length of the delay, I am satisfied that there would be no prejudice to Dr. Altourshi or Dr Sagi if the extension sought is granted.
36In determining whether to grant the extension of time sought, I am mindful of the decision of Justice Sharpe in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544. Although 1196158 was a motion to dismiss for delay, the below is also applicable to the relief sought on the within motion. Sharpe J. A. states at paras. 17-19:
17The civil justice system aims to resolve disputes fairly, on the merits and in a timely and efficient manner. The Rules of Civil Procedure provide that the rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”: rule 1.04(1).
18Achieving that goal in cases involving dismissal for delay requires a careful balance of two fundamental principles. The first is that civil actions should, if possible, be decided on their merits and procedural rules should be interpreted accordingly. The second is that the procedural rules that aim to resolve disputes in a timely and efficient manner can only achieve their goal if they are respected and enforced.
19Timelines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice and not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] ONCA 204, 2010 ONCA 204, at para. 14, “the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute”.
20The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.
37I am satisfied that the granting of an extension of time to serve the statement of claim nunc pro tunc would not be unfair to Dr. Altourshi or Dr. Sagi. This is not a case where the plaintiffs abandoned their action. Two defendant physicians, who provided medical treatment to Ms. Rodrigues in Ontario, left the country to practice elsewhere and could not be located until in or about April 2021, despite reasonable efforts to do so. Thirteen other defendant physicians have been represented in this case by the same counsel since 2019. I have been satisfied that there is no prejudice to Dr Altourshi or Dr. Sagi if the extension sought is granted.
Service on Dr. Sagi and the Hague Convention
38No specific submissions were made on behalf of Dr. Altourshi concerning the method of the service sought to be validated on Dr. Altourshi.
39Shortly before the return of the motion counsel for Dr. Altourshi and the other defendant physicians save for Dr. Sagi, raised an issue with plaintiffs’ counsel concerning the application of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention) as it may relate to the method of service sought to be validated on Dr. Sagi. Counsel raising this issue with plaintiffs’ counsel is not representing Dr. Sagi on this motion and made no submissions in this regard on the motion. The morning of the motion, plaintiffs’ counsel uploaded the Convention to CaseLines. Plaintiffs’ counsel submitted that the Convention does not apply to service on Dr. Sagi because, pursuant to Article 1, the Convention does not apply where the address of the person to be served with the document is not known. Plaintiff’s counsel also submits that Dr. Sagi accepted the statement of claim voluntarily in accordance with Article 5.
40Based on the material before me, I disagree with the plaintiffs’ submission that the Convention does not apply with respect to Dr. Sagi. I am not satisfied that Dr. Sagi’s address in Israel is unknown. The affidavit of Mariah Hanlin filed by the plaintiffs contains an affidavit of personal service of the statement of claim in action no. CV-18-602784 commenced by the hospital and nurse defendants against Dr. Sagi. The address at which Dr. Sagi was personally served on November 25, 2021, is noted in the affidavit. With respect to Article 5, while Dr. Sagi did reply to the email attaching the statement of claim, I was not referred to evidence where Dr. Sagi specifically confirms that he has voluntarily accepted service of the statement of claim.
41There was no case law or other material before me in support of the position that service on Dr. Sagi by email is permitted in Israel under the Convention.
42It is clear that the statement of claim has come to the attention of Dr. Sagi. He replied to the email attaching the claim. However, on the basis of the record before me, I am not satisfied that validation of service on Dr. Sagi is appropriate having regard to the Convention. As noted above, I am, however, satisfied that it is just to extend the time for service nunc pro tunc. I hereby extend the time for service of the statement of claim on Dr. Sagi until June 30, 2023, nunc pro tunc.
43For these reasons, the time to serve the statement of claim on Dr. Altourshi and Dr. Sagi shall be extended nunc pro tunc and service of the statement of claim on Dr. Altourshi shall also be validated.
Costs
44With respect to costs of the motion, if successful, the plaintiffs sought costs of the motion on a partial indemnity basis in the all-inclusive amount of $14,828.05, payable by Dr. Altourshi. If successful in opposing the motion, Dr. Altourshi sought costs of the motion in the all-inclusive amount of $16,502.79. Dr. Altourshi also submitted that if the plaintiffs were successful, Dr. Altourshi should only be responsible for one half of the plaintiffs’ costs.
45The plaintiffs were successful on the motion with respect to the relief against Dr. Altourshi and partially successful on the motion with respect to the relief against Dr. Sagi. Dr. Altourshi should not be responsible for all of the plaintiffs’ costs because some of those costs relate to Dr. Sagi. Having regard to all of the circumstances of this motion, in my view a fair and reasonable amount that Dr. Altourshi could expect to pay for costs is the all-inclusive amount of $10,000.00, payable to the plaintiffs within 30 days.
Order
46Order to go as follows:
The time for service of the statement of claim on Dr. Altourshi is extended to May 31, 2021, nunc pro tunc.
Service of the statement of claim on Dr. Altourshi on April 28, 2021, by email is validated.
The time for service of the statement of claim on the defendant Dr. Sagi is extended to June 30, 2023, nunc pro tunc.
Costs of this motion are fixed in the all-inclusive amount of $10,000.00 payable by Dr. Altourshi to the plaintiffs within 30 days.
Associate Justice B. McAfee
Date: October 12, 2022