COURT FILE NO.: CV-16-00005263-00 & CV-17-00005153-00
DATE: 2022 12 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sana Sheikh, Alina Sheikh, Amaira Sheikh, and Arhaan Sheikh by their Litigation Guardian Sana Sheikh v. Jatinderpal Singh Purewal, Farrukh Ali Sheikh, Honda Canada Finance Inc., and The Personal Insurance Company
BEFORE: RSJ RICCHETTI
COUNSEL:
S. Mandel and A. Vining, for the Plaintiffs
M. Hoffman and J. Perdo, for the Defendant, Jatinderpal Singh Purewal;
L. Matthews, for the Defendant Farrukh Ali Sheikh and Honda Canada Finance Inc.;
M. Robins and B. Gjoci, for the Defendant Physicians; and
K. Deakon, for the Defendant Hospital
HEARD: December 01, 2022
ENDORSEMENT
[1] This endorsement applies to the following five files:
a) CV-16-00005263-0000 – Sheikh et al v. Purewal et al.
b) CV-16-00005263-00A1 – (Third Party) Purewal et al v. Abou-Seido et al;
c) CV-17-00005153-0000 – Sheikh et al v. Abou-Seido et al;
d) CV-17-00005153-00A1 – (Third Party) Abou-Seido et al v. Sheikh et al;
Toronto Court File:
e) CV-19-00631505-00 – Sheikh v. Kathuria.
[2] The Toronto Action is being discontinued or dismissed. Counsel are awaiting the Order from the Toronto court. Accordingly, I need not deal with the Toronto action.
[3] There are two issues to be dealt with today.
Settle the terms of the order that these proceedings be tried together or one after the other.
Whether the court should set a timetable, and if so, what timetable should be set.
ORDER
[4] A draft order was uploaded in CaseLines by counsel for the Hospital and Doctors. The Plaintiff’s counsel does not approve that form of order.
[5] The Plaintiff’s counsel agrees to para. 1 (that these proceedings be heard together or one after the other by the same trial judge) and para. 5 (that a copy of this order be filed in each of these proceedings).
[6] The Plaintiff’s counsel objects to paras. 2, 3 and 4. This position is supported by the Farrukh Sheikh’s (Sana Sheikh’s husband) counsel.
Para. 2
[7] The draft order provides that the Affidavit of Documents produced, by each party, is to be delivered to every other party in these proceedings and that each party to these proceedings are “permitted to attend at and conduct an examination for discovery of each and every other party” in these proceedings.
[8] The concern raised by the Plaintiffs is that every party shouldn’t have the right to see the Affidavit of Documents or be entitled to question every other party in these proceedings.
[9] As all counsel have agreed that these proceedings (which include the related Third-Party claims) relate to the same underlying events (the Motor Vehicle Accident (MVA) and the subsequent medical treatment) and, for this reason, a common trial will be conducted, I fail to see how access by all parties to all Affidavits of Documents of all parties prejudices the Plaintiff. Nor is any specific prejudice alleged. Failure to have all the documents would result in a party attending a common trial not knowing all the information/documentation that may or may not be relevant to its position, on liability and/or damages, nor to is crossclaims, counterclaims, and third-party claims.
[10] Despite the fact there will be common discoveries in these proceedings, each party asking questions at an Examination for Discovery of a party must have a lis between the party examining and the party being questioned AND the question must be relevant to that lis. As a result, I fail to see how this prejudices the Plaintiff or is an unreasonable term in this type of common order.
[11] I am satisfied that this is an appropriate term of an order where the trial of these related actions will be tried together. So, ordered.
Para. 3
[12] This provision provides that all parties to these actions “shall be served with any expert reports, pre-trial briefs, mediation memoranda, motion records, factums or any other materials filed with the Court in either action.”
[13] I agree that mediation memoranda do need not be shared with all parties – only with those parties involved in the mediation. It is easy to contemplate that the Plaintiff may mediate with one or more parties to these proceedings and not with others. In that case, the mediation materials and briefs might contain information or positions which are confidential, perhaps even privileged, and need not be shared with other parties. Those words are to be struck except to the extent any mediation materials filed with the court, which would then be available to all parties.
[14] As for the balance, given these are related actions with common Plaintiffs seeking damages arising from two common and related events (both in terms of liability and damages in a common trial), there is no reason why any filed court documents, in any of these proceedings, should not be available to all parties to prepare for trial.
Para. 4
[15] This term permits any party to these actions to attend at all “pre-trial conferences, mediations, motions, and any other proceedings whatsoever.”
[16] The words are overly broad. Any party should have the right to attend any court proceedings. The presiding judge will determine whether the party, or any party, has a right to be heard on a particular matter based on whether they are impacted by the issues/relief sought – i.e. whether they are an interested party. There is and should be no automatic right of standing for every party at every court hearing.
[17] For mediations, I need not repeat my comments from above. This term should be limited to these court proceedings.
TIMETABLE
[18] The Plaintiff seeks the following order:
That the parties to this action (the "obstetrical case") and the two companion actions bearing Court file numbers CV-16- 5263-00 (the "motor vehicle case") and CV-16-5280-00 (the "father's case"), respectively, including all Third Party Claims, be subject to the following litigation timetable:
(i) Examinations for discovery on the issue of liability to be completed by December 31, 2023;
(ii) Subject to any delay associated with subsection (a)(i), Plaintiffs to make best efforts to serve their liability expert reports in this obstetrical case by June 1, 2024, exclusive of any supplementary reports pursuant to rule 53.03(3) of the Rules of Civil Procedure;
(iii) Subject to any delay associated with subsection (a)(i) and/or (a)(ii), the Defendants in this obstetrical case to serve their liability expert reports by December 1, 2024, exclusive of any supplementary reports pursuant to rule 53.03(3) of the Rules of Civil Procedure;
(iv) If requested by any party, a further case conference to be completed in December of 2024, subject to the availability of this Honourable Court, for purposes of addressing a timetable relating to the issue of damages;
(b) In the alternative to subsection (a), that the creation of a litigation timetable be deferred until on or about December 7, 2024, at which time the minor Plaintiff, Alina Sheikh ("Alina"), will be ten years of age;
Background
[19] On December 6, 2014, Mrs. Sana Sheikh, was a seat belted passenger in a two-vehicle crash. She was 34 weeks pregnant. Ms. Sana Sheikh’s husband, Farrukh Sheikh, was the driver of the vehicle.
[20] After the motor vehicle accident, Mrs. Sans Sheikh was taken to hospital. Concerns about her pregnancy, resulted in an urgent caesarean section.
[21] On December 7, 2014, Alina Sheikh was born. Unfortunately, Alina Sheikh is cognitively compromised. The cause and extent are serious issues in these proceedings.
[22] These proceedings all relate to liability for and the damages arising from the motor vehicle accident and the subsequent health care. Hence, Sana Sheikh and Alina Sheikh’s claims against Farrukh Sheikh, the Hospital and Doctors and the various crossclaims, third party claims and so on.
[23] To date there has not been an exchange of signed Affidavit of Documents. There have been no discoveries. Quite simply, 8 years after the accident and these proceedings have gone nowhere.
The Position of the Parties
[24] There are two opposing positions.
[25] The Plaintiffs submit that the court should not set a timetable except for productions and examinations for discovery on the issue of liability. The Plaintiffs submit these proceedings should not and cannot proceed with productions and examinations on damages as there is an “inability to appropriately quantify damages in a matter that will ultimately require court approval pursuant to Rule 7 of the Rules of Civil Procedure.”
[26] The Hospital and the Doctors oppose, seeking the court to impose a timetable as follows:
a) Exchange of Productions March 31, 2023
b) Examinations for Discovery June 30, 2023
c) Undertakings Answered August 31, 2023
d) Plaintiffs’ Expert Reports February 28, 2024
e) Defendants’ Expert Reports August 31, 2024
f) Set down for Trial December 31, 2024
[27] Farrukh Sheikh’s counsel (in the non-MVA action) takes no position but “somewhat” supports the Plaintiffs’ position. I am not sure what to do with such an ambivalent submission. Farrukh Sheikh’s counsel in the MVA action, supports the Plaintiffs’ position.
[28] In my view, the proposed timetable by the Hospital and Doctors is reasonable and ought to be imposed, and is hereby imposed, for the following reasons:
Bifurcation of the Discoveries
[29] There are several difficulties with the Plaintiffs proposal to proceed with bifurcated discoveries by leaving the issue of damages in abeyance.
[30] I agree with the statement by Associate Justice McGraw in 20/20 Management Limited v. Concord Adex Inc., 2022 ONSC 3119:
[25] The Court of Appeal has recently affirmed that it is a basic right of a litigant to have all disputed issues resolved in one trial, therefore, the power to divide production or discovery must be regarded as a narrowly circumscribed one (Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788 at para. 37 at para. 37).
[31] The onus on a party seeking a bifurcated discovery (absent consent) is a high one. In most cases, the determination whether to bifurcate discoveries will require a consideration of many factors including,
a) The nature of the claims advanced;
b) The reasons for seeking a bifurcation of the discovery;
c) Whether there will be and the length of any delay in setting a trial date,
d) Whether there will be increased costs if bifurcation is granted;
e) The number of defendants/third parties and claims against and amongst them; and
f) Whether and how discrete liability and damages are to the claims of each party in the proceeding(s).
[32] In this case, all these factors weigh against granting the bifurcation of the examinations for discovery.
[33] The claims advanced and the various crossclaims/third party claims are all intertwined both on liability and damages.
[34] Delaying productions and examinations until the damages are “crystalized” will result in a lengthy and unknown length of delay. It will increase the expense of the litigation.
[35] I am not persuaded that meaningful liability discoveries can even be held or would be of any benefit. How could liability be established between and amongst the defendants/third parties without getting into issues such as foreseeability and causation for each of the defendants/third parties? There is a lot of “finger pointing” amongst the defendants/third parties in these proceedings which increases the significance of this factor weighing against granting the relief sought.
[36] The possibility that proceeding with productions and examinations on liability “might” narrow the issues is not a persuasive as a factor favouring a bifurcation sought. It is speculative.
[37] Weighing these factors, I am not persuaded that ordering a timetable solely on the exchange of productions and examinations on liability would be productive, appropriate nor reasonable in the circumstances of this case.
Rule 7 is not a Significant Factor
[38] Rule 7 requires the court to approval a settlement where a party is under a disability. This Rule would only become relevant if there was a settlement. Hopefully, this matter will be settled. But actions must move forward until they are settled.
[39] In any event, whether in assessing the reasonableness of a settlement or fixing damages at trial, the same considerations apply. That is: for the court to determine liability, assess and decide damages, usually based on expert evidence as to what are the possible prognosis and the likelihood of any prognosis for the disabled party. The court then, based on its finding of liability and the damage evidence it accepts, determines what is an appropriate and reasonable damage award, often based on a percentage based on likelihood of an accepted prognosis and damages flowing from that prognosis.
[40] Assessing damages is for future losses are always a matter of the application of predictions and contingencies. Krangle v. Brisco 2002 SCC 9 at para. 21.
[41] Rule 7 is not a factor in delaying these proceedings towards a trial.
Should a Timetable be Set?
[42] Rule 48.14(1) requires that actions be set down for trial within five years or face administrative dismissal.
[43] Having reviewed the medical evidence submitted by the Plaintiffs, I cannot and do not conclude that the experts cannot provide a (or several) prognosis and an opinion on the likelihood of each prognosis. To some extent, the doctors have already done so. One expert concluded that Alina will “likely” have “permanent and persistent deficits”.
[44] Waiting for the damages to crystalize simply leaves the claims “hanging over the heads” of the Hospital, the Doctors, Farrukh Sheikh (and their insurers, if any).
[45] This court’s concerns were emphasized by the Plaintiffs’ counsel’s own submission that issues such as Alina’s “marriageability and employability” cannot be determined at this time. These issues may take many years or decades before they can be “crystalized”. It would be inappropriate to delay these proceedings for a lengthy period until such issues, and likely other issues, can be determined with the precision the Plaintiffs seek to have before proceeding with these proceedings.
[46] Defendants have a right to have the claims against them determined in a reasonably prompt fashion. In some cases, reasonably prompt may be shorter or longer depending on the circumstances in each case. But it should never be an indefinite nor an unreasonable delay to have the claims made tried on its merits.
[47] I consider the fact that the timetable proposed by the Hospital and Doctors is a very reasonable one in the circumstances. It essentially provides that these proceedings be set down for trial by December 31, 2024. That is two years from now and 10 years from the date of the accident. Then, I note that, in Central West Region, it will be a further 2 to 3 years for a trial date from the date matters are set down for trial. Therefore, it will be 12-13 years after the accident.
[48] I am satisfied a timetable should be set now and the timetable proposed by the Doctors and Hospital is a reasonable one to impose now.
CONCLUSION
[49] This court imposes the following timetable:
a) Exchange of Productions March 31, 2023;
b) Examinations for Discovery June 30, 2023;
c) Undertakings Answered August 31, 2023;
d) Plaintiffs’ Expert Reports February 28, 2024;
e) Defendants’ Expert Reports August 31, 2024;
f) Set down for Trial December 31, 2024.
[50] This timetable shall not be varied without a further order from me or another judge of this court.
RSJ RICCHETTI
Released: December 09, 2022
COURT FILE NO.: CV-16-00005263-00 & CV-17-00005153-00
DATE: 2022 12 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sana Sheikh, Alina Sheikh, Amaira Sheikh, and Arhaan Sheikh by their Litigation Guardian Sana Sheikh v. Jatinderpal Singh Purewal, Farrukh Ali Sheikh, Honda Canada Finance Inc., and The Personal Insurance Company
COUNSEL:
S. Mandel and A. Vining, for the Plaintiffs
M. Hoffman and J. Perdo, for the Defendant, Jatinderpal Singh Purewal;
L. Matthews, for the Defendant Farrukh Ali Sheikh and Honda Canada Finance Inc.;
M. Robins and B. Gjoci, for the Defendant Physicians; and
K. Deakon, for the Defendant Hospital
ENDORSEMENT
RSJ RICCHETTI
Released: December 09, 2022