Court File and Parties

COURT FILE NO.: CV-15-540295

MOTION HEARD: 20220913

ADDITIONAL WRITTEN SUBMISSIONS: 20221107

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wayne Windebank, as Litigation Administrator for the Estate of Rita Mary Mohan, deceased, Wayne Windebank, personally, Ashley Windebank, June Ann Combden, Patricia Mary Ann Lewis, Sharon Theresa Wells, Daniel Thomas Kelly and Michael Joseph Alphonse Mohan, Plaintiffs

AND:

Toronto East General Hospital, Dr. Rhiannon Da Costa, Dr. Alvin Chang, Dr. Denise Marie Vasiliou, Dr. Raghunandan Gopinath, Pinglawatie Kamla Jadubir, Sally Alimo-ot, Grace Hildebrand, Arlene Magat, Marie Eroles-Arciaga, and Elka Graham, Defendants

BEFORE: Associate Justice L. La Horey

COUNSEL: Julien Bonniere, Counsel for the Moving Parties Plaintiffs

Andrew Kalamat and Amanda D. Iarusso, Counsel for the Responding Parties Defendants Dr. Rhiannon Da Costa, Dr. Alvin Chang, Dr. Denise Marie Vasiliou, Dr. Raghunandan Gopinath

Daniel Girlando, Counsel for the Responding Parties Defendants, Toronto East General Hospital, Pinglawatie Kamla Jadubir, Sally Alimo-ot, Grace Hildebrand, Arlene Magat, Marie Eroles-Arciaga, and Elka Graham

HEARD: September 13, 2022 by videoconference, additional written submissions November 7, 2022

REASONS FOR DECISION

OVERVIEW AND BACKGROUND

[1] The plaintiffs bring this motion to extend the time to set down the action in this matter and for a timetable. The defendants oppose. For the reasons that follow, the plaintiffs’ motion is granted.

[2] This is a medical malpractice action arising out of the death of Rita Mary Mohan while at the Toronto East General Hospital (the “Hospital”) on November 17, 2014. The defendants are four physicians (the “Physicians”) and the Hospital and six nurses (the “Nurses”) (collectively, the “Hospital Defendants”). The action is being dismissed against the Nurses on consent.

[3] The statement of claim in this action was issued on November 12, 2015. The defendants have defended. The plaintiffs have conducted all of the discoveries that they intend to conduct, having discovered two of the four Physicians and the Hospital’s representative. The defendants have examined three of the plaintiffs. Affidavits of documents have been exchanged. The plaintiffs have delivered answers to undertakings. The Physicians have served two expert reports regarding the care provided by the two Physicians that the plaintiffs examined for discovery. The plaintiffs have served an expert report on liability. The plaintiffs have agreed to dismiss the claim against the six Nurses without costs and have delivered releases of them.

[4] This is the plaintiffs’ second request for an extension of the set down date. On November 26, 2020, Master McGraw (as his title then was) made an order on consent extending the set down date to July 31, 2021 and establishing a timetable (the “November 26, 2020 Order”). The defendants conducted examinations for discovery of three of the plaintiffs on January 13, 2021, prior to the deadline in the November 26, 2020 Order. The plaintiffs did not conduct any further discoveries by the deadline in the timetable, but now say that they do not wish to examine the two Physicians who have yet to be discovered. They do not need to discover the six Nurses as they have agreed to dismiss the claims against them. The plaintiffs failed to deliver their expert report on liability by the deadline set out in the timetable. The mediation was not held and the plaintiffs did not set the matter down for trial by July 31, 2021. The Registrar has not dismissed the action.

[5] It was only on August 25, 2021, after the set down deadline had passed, and after prompting from the defendants, that the plaintiffs served a draft motion record to extend the set down date yet again. The defendants refused to consent to a further extension. The plaintiffs now say they are ready to set the matter down for trial once a mediation has been held. At the hearing, counsel for the plaintiffs confirmed that the plaintiffs are waiving any further discovery and said that the plaintiffs will not be serving any further expert reports.

[6] The plaintiffs served their motion record for this motion on November 18, 2021, with a return date of August 17, 2022. The motion was adjourned by me to September 13, 2022, because insufficient time had been booked for argument. All parties bear responsibility for the fact that not enough time was booked for this motion. The matter was heard on September 13, 2022, with further submissions delivered in writing.

[7] In their second factum (of three) on this motion, the Physicians took the position that late served materials by the plaintiffs ought not to be considered the court. In oral argument, Mr. Kalamat withdrew the objection, but took the position that the late service of materials is relevant to the question of costs.

[8] I have prepared a more detailed chronology of events in this matter which is attached as Appendix A.

LAW AND ANALYSIS

[9] The parties are now in agreement that the applicable test on this motion is the two-part conjunctive test whereby the plaintiff has the onus of demonstrating that: (1) there is an acceptable explanation for the delay; and, (2) if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice because of the plaintiff’s delay. This test is often referred to as the Faris v Eftimovski test.[^1]

[10] Initially, the plaintiffs took the position that the appropriate test was the test to set aside a registrar’s order dismissing an action for delay, in which the four “Reid factors” are considered in a contextual approach.[^2] The defendants submitted that the appropriate test was the Faris v Eftimovski test. While this matter was on reserve, I invited the parties to make additional written submissions addressing the appropriate test on this motion and listed a number of cases that none of the parties had cited[^3] including 366012 Ontario Inc. (c.o.b. Sandy Hill Childcare Centre) v Boudreau[^4] and Yang v The Christian World Korea Inc.[^5] All parties submitted factums in response to my invitation, and all parties are now agreed on the appropriate test.

[11] The Court of Appeal has provided the following guidance:[^6]

Dismissals for delay involve a careful balance between two competing values. On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.

Delay

[12] The first part of the test must be contextualized and the court should weigh all relevant factors to determine the order that is just in the case.[^7]

[13] An “acceptable” explanation is not necessarily a “perfect” explanation[^8] or even a “good” explanation. An “adequate” or “passable” explanation may suffice.[^9]

[14] The primary responsibility for moving the action along rests with the plaintiff, although the conduct of the defendant may also be relevant.[^10]

[15] The plaintiffs submit that they have moved the action forward and that they have provided reasonable explanations for any delays.

[16] The defendants point out that the action was commenced about seven years ago. However, the initial delay in the action arose as a result of the length of time that the defendants took to deliver their pleadings. The statement of claim in this matter was issued on November 12, 2015. The Physicians’ evidence is that it was served on them in the period January to February 2016. It was not until about 17 months after service, July 13, 2017, that the Physicians served their statement of defence and crossclaim. The affidavit of the law clerk filed on behalf of the Physicians says that the defence was served once the Physicians obtained the “relevant medical records that would permit them to prepare a responsive defence”. The Hospital Defendants only served their statement of defence and crossclaim on November 6, 2017.

[17] Thereafter, the defendants served affidavits of documents and the examinations for discovery of some of the defendants took place on or about November 28, 2018. The plaintiffs changed counsel in January 2020. The Physicians served one of their expert reports in September 2020. In September 2020 the plaintiffs wrote to defendants’ counsel advising that they were not going to proceed with scheduling the discoveries of the Nurses and that they were obtaining the transcript of the examination for discovery of the Hospital representative. On November 4, 2020, the plaintiffs brought a motion to extend the set down date which went on consent.

[18] The Physicians submit that the plaintiffs have failed to provide an explanation for lengthy periods of delay where “no substantive steps were taken” between the November 26, 2020 Order and November 2021 when their motion record was served. They also argue that the plaintiffs have failed to explain “why they only engaged an expert in November 2021, three years after the completion of the [Physicians’] discoveries” and why it took nine months to deliver an expert report in August 2022, on the eve of the first return date for this motion.

[19] As noted above, the defendants consented to the extension of the set down date which resulted in the November 26, 2020 Order. The plaintiffs failed to meet the deadlines in this order and are now coming to the court for a second “extension” or “lifeline”. However, I note that the set down date of July 30, 2021 in the November 26, 2020 Order is only about two and half months later than the expiry of five-year expiry period once the extension of time periods due to COVID is taken into account.[^11]

[20] The defendants point out that in addition to missing the set down deadline in the November 26, 2020 Order, the plaintiffs also did not meet other deadlines in the order. The plaintiffs did not conduct any further discovery of the defendants, but have now waived their rights to do so. The plaintiffs that the defendants requested be examined for discovery were produced for discovery prior to the January 31, 2021 deadline. Pursuant to the November 26, 2020 Order the plaintiffs were to deliver any expert reports by March 31, 2021. The plaintiffs did not deliver any expert report until August 4, 2022.

[21] The first affidavit of Leigh Harrison, a partner of the plaintiffs’ law firm, contained in the motion record served in November 2021, states that the parties faced challenges in adhering to the timetable due to the effect of the COVID-19 pandemic. The plaintiffs served a further affidavit of Leigh Harrison sworn September 1, 2022, in which she deposes that when plaintiffs’ counsel reviewed the transcripts of the discovery of the Hospital, Dr. Vasiliou, and Dr. Gopinath, conducted by the plaintiffs’ previous lawyer, they concluded that there was insufficient information to obtain an expert liability report. She further deposes that there was a conference call on June 7, 2021 amongst counsel for all parties to discuss conducting additional discovery. At that time, counsel for the Hospital refused to produce his client for further discovery but requested written questions from the plaintiffs for consideration. I pause here to note that it was not until December 20, 2021 that the plaintiffs’ delivered a list of 16 questions.

[22] Ms. Harrison deposes that: “Between June 2021 and September 2021 counsel for the Plaintiff was addressing the Defendant Hospital discovery issues as well as further attempts to obtain an expert liability report and as a result the set down deadline [of July 31, 2021] was inadvertently missed.” Ms. Harrison’s supplementary affidavit also sets out communications and events since her earlier affidavit was sworn. Ms. Harrison was not cross-examined.

[23] The plaintiffs served the affidavit of Daniel Kelly, one of the plaintiffs, who agrees with and adopts the information set out in Ms. Leigh’s two affidavits.

[24] Although the motion to extend the set down date of July 31, 2021 was brought after the expiry of that date, and thus at a point when the registrar was entitled to dismiss the action, the plaintiffs served a draft motion record less a month after that date, and only a week after the defendants had reminded the plaintiffs that the deadline had passed.

[25] Thereafter, the plaintiffs delivered answers to undertakings in tranches beginning in August 25, 2021. On September 21, 2021, the plaintiffs’ lawyer advised that he had instructions to dismiss the action against the Nurses without costs. The Physicians served a second expert report on September 22, 2021.

[26] On September 22, 2021, the lawyer for the plaintiffs advised defence counsel that the plaintiffs had engaged an expert and would provide details the following week. They did not do so and ignored repeated follow-ups by defence counsel.

[27] In December 2021, the plaintiffs finally wrote to counsel for the Hospital asking for answers to 16 questions to which the Hospital responded in January 2022, declining to provide any further information. The plaintiffs followed up with a call to the Hospital’s lawyer many months later in June 2022, but the Hospital maintained its position.

[28] In summary, after the November 26, 2020 Order, the plaintiffs attended to be examined for discovery, answered undertakings, attempted to get further discovery evidence, were rebuffed, served an expert report and released the Nurses from the action.

[29] The defendants submit that the plaintiffs’ explanation for the delay, that they were seeking further discovery evidence and additional information before delivering an expert report, is not a reasonable one, because ultimately the plaintiffs did not obtain any further information before delivering an expert report. Although the requests were ultimately futile and not pursued with great diligence, it was not unreasonable for the plaintiffs’ current counsel, who had not conducted the original discoveries, to try to obtain more information before serving an expert report.

[30] I am satisfied that the plaintiffs’ explanation for the delay, although by no means perfect, is nevertheless adequate in context.

[31] The defendants are also critical of the plaintiffs’ expert report and submit it does not assist in establishing liability on the part of any of the defendants. The Physicians also take issue with the expert’s qualifications. However, the sufficiency of the plaintiffs’ expert evidence is not a live issue on this motion. This is not a motion for summary judgment or a trial.

[32] The defendants rely on Kara v Arnold,[^12] also a medical malpractice case, in which the plaintiffs’ action was dismissed. In that case there was no contact between the plaintiff and defendant for three years. The only explanation was that the three years were spent attempting to obtain an expert report. In this case, there was contact between the plaintiff and defendants including in regards to the plaintiffs’ request for further information. Moreover, in that case, the relevant overall period of delay was found to be almost eleven years.

[33] In this case, the delays are not inordinate. Overall, and considering the context, I am satisfied that the plaintiffs have provided a reasonable explanation for their delay.

Prejudice

[34] The onus is on the plaintiffs to demonstrate that there is no non-compensable prejudice to the defendants. The prejudice at issue is to the defendants’ ability to defend the action as a result of the plaintiffs’ delay, not as a result of the sheer passage of time.[^13]

[35] The Hospital Defendants accept that there is no evidence of actual prejudice in their first factum (of three). Counsel for the Physicians properly made the same concession in oral argument.

[36] Both sets of defendants rely on the presumption of prejudice due to inordinate delay.

[37] Associate Justice McGraw recently summarized the law regarding prejudice in the context of a status hearing as follows:[^14]

Actual prejudice is any prejudice which would impair the Defendants' ability to defend this action resulting from the Plaintiffs' delay, not due to the sheer passage of time (Carioca's at para. 57; H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 37). It is a long-held principle that prejudice is inherent in long delays as memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost giving rise to a presumption of prejudice due to concerns of trial unfairness (Langenecker v. Sauvé, 2011 ONCA 803, at para. 11; DK Manufacturing Group Ltd. v. MDF Mechanical Limited, 2019 ONSC 6853 at para. 28; 1196158 Ontario Inc. at para. 42). The longer the delay, the stronger the inference of prejudice to the defence flowing from that delay (Langenecker at para. 11). The plaintiff is not required to adduce affirmative evidence rebutting the presumption of prejudice, rather the court must consider all of the circumstances in evaluating the strength of the presumption (1196158 Ontario Inc. at para. 6(b); DK Manufacturing at para. 29).

[38] I accept that the plaintiff has rebutted any presumption of prejudice when I consider all of the circumstances.

[39] The parties have exchanged affidavits of documents. This is medical malpractice action and accordingly there are clinical notes and records available. In this case the productions include: records of the triage assessment when Ms. Mohan presented to the emergency department; the physician orders; the chemistry and microbiology results; the medication administration record; and the nursing clinical and progress notes. While it is true that memories fade, the defendants are able to rely on the clinical records to refresh their memories.

[40] The defendants have examined for discovery three of the plaintiff family members of Ms. Mohan that they selected for examination. In addition, two of the Physicians and the Hospital representative have been discovered and their evidence recorded. The plaintiffs have waived any further discovery. Although the other two Physicians and six Nurses have not been discovered, defence counsel had the ability to interview the individual defendants and/ or obtain witness statements from them.

[41] Further, the Physicians have served expert reports with respect to the two Physicians who were examined for discovery and the plaintiffs have served the only expert report that they intend to rely upon.

[42] The Hospital Defendants submit that this case is similar to Burgess v University Health Network,[^15] a medical malpractice action in which the Court of Appeal upheld the decision of the motions judge refusing to extend the timetable and dismissing the action for delay. However, the circumstances in that case are distinguishable in that no statements of defence had been filed, no affidavit of documents had been exchanged and no examinations for discovery had taken place, notwithstanding that over five years had elapsed between the issuance of the claim and the original return date of the status hearing motion.

[43] In Burgess, the motions judge had regard to the fact that a key part of the plaintiff’s case related to the alleged actions and communications of an unidentified Jane Doe defendant nurse and said that the evidence of and about such a person would be significantly compromised by the passage of time.[^16] In this case, there is no unidentified Jane Doe nurse. Further, unlike in Burgess, the Hospital Defendants filed a statement of defence and crossclaim after a long period of time in which they had the opportunity to investigate all of the allegations against the nursing staff. Unlike the situation in Burgess, affidavits of documents have been exchanged in the case at bar and the defendants have the benefit of the discovery of the plaintiffs and presumably asked about the plaintiffs’ allegations against Hospital staff. Moreover, the Nurses have been released from the action.

[44] I am satisfied that the defendants will suffer no non-compensable prejudice if the action is permitted to continue.

Conclusion

[45] This case is ready for trial once a mediation has taken place. In my view, the value of deciding cases based on their merits weighs heavily in the context of this case and the just result is that the action should be permitted to proceed.

DISPOSITION AND COSTS

[46] The plaintiffs motion is granted. The mediation in this action shall take place by March 31, 2023. The action shall be set down for trial by April 28, 2023.

[47] At the conclusion of the hearing, I heard argument on costs. In view of the fact that I invited additional submissions, I am providing the parties an opportunity to make submissions in writing, in the event that the parties cannot agree on the appropriate disposition on costs. The plaintiffs may submit costs submissions of up to three pages exclusive of costs outlines by December 21, 2022. The Physicians and the Hospital Defendants may deliver costs submissions of up to three pages, exclusive of cost outlines by January 9, 2023. The plaintiffs shall be entitled to deliver reply submissions of three pages by January 16, 2023. Cost submissions, which shall be double-spaced, 12 point font, shall be filed with the court and provided to my Assistant Trial Coordinator.

L. La Horey, A.J.

Date: December 6, 2022

APPENDIX A - CHRONOLOGY

November 17, 2014 - Rita Mohan passes away

November 12, 2015 - statement of claim issued

Jan/ Feb 2016 – statement of claim served on Physicians

July 13, 2017 – statement of defence and crossclaim of the Physicians

November 6, 2017 – statement of defence and crossclaim of the Hospital Defendants

July 13, 2018 – draft affidavit of documents on behalf of Hospital delivered

November 28, 2018 – two of the four Physicians (Dr. Gopinath and Dr.Vasiliou) are examined for discovery. Three of the four Physicians serve affidavits of documents (the fourth has no Schedule A documents). The Hospital serves its sworn affidavit of documents and its representative is examined for discovery.

January 2020 – plaintiffs replace former law firm with current law firm and physical file is transferred and reviewed

February 24, 2020 – notice of change of lawyer on behalf of the plaintiffs served

September 22, 2020 – Physicians serve expert report of Dr. Frost regarding care of Dr. Vasiliou dated October 15, 2019

September 24, 2020 – letter from plaintiffs’ counsel confirming that they are not going to proceed with scheduling discoveries of Nurses, and advising that they are obtaining the transcript of the examination for discovery of the Hospital representative

November 4, 2020 – plaintiffs bring motion to extend the set down date and for a litigation timetable prior to the expiry of the five year period since the issuance of the claim

November 26, 2020 – order of Master McGraw (as his title then was) on consent extending the set down date and establishing a timetable as follows: examinations for discovery of all parties to be conducted by January 31, 2021; plaintiffs’ expert report on liability to be served by March 31, 2021; defendants’ expert reports on liability to be served by May 31, 2021; mediation to be held by June 30, 2021, matter to be set down by July 31, 2021. The order requires the Registrar to dismiss the action for delay if the matter has not been set down by July 31, 2021. The Registrar has not to date dismissed the action.

January 11, 2021 – plaintiffs serve unsworn affidavit of documents

January 13, 2021 – examination for discovery of the three of the plaintiffs, Ashley Windebank, Wayne Windebank and Sharon Wells

April 12, 2021 – email from lawyer for Hospital Defendants noting the deadline for service of plaintiffs’ expert reports was March 31, 2021 which had passed without delivery of expert reports and that mediation to be completed by June 30, 2021

June 7, 2021 – call amongst all parties re additional discovery of Hospital

July 30, 2021 – deadline for plaintiffs to set matter down for trial pursuant to the order

August 18, 2021 – email from lawyer for the Hospital Defendants noting that the plaintiffs are in breach of the timetable order and stating that the order requires the Registrar to dismiss the action, and enquiring as to plaintiffs’ intentions

August 25, 2021 – lawyer for plaintiffs serves a draft motion record for a timetable and order extending the set down date and requests defendants’ position on motion

August 25, 2021 – plaintiffs deliver answers to undertakings

September 1, 2021 – both sets of defendants advise that they will oppose the motion

September 21, 2021 – plaintiffs’ lawyer advises that he has received instructions to dismiss the action against the Nurses without costs

September 22, 2021 – Physicians serve expert report of Dr. Hookey regarding care of Dr Gopinath dated September 20, 2021

September 29, 2021 – lawyer for plaintiffs advises Physicians’ counsel that plaintiffs have engaged an expert and details would be provided the following week

October 2021 – lawyer for Physicians follows up with plaintiffs’ counsel on three occasions (October 5, 13, and 25) on outstanding issues, including nature of expert report and motion materials for motion to extend time

October 27, 2021 – November 2, 2021 – plaintiffs seek dates from court, earliest available dates from the court are late July 2022. Parties exchange emails to schedule the plaintiffs’ motion for some time in August 2022. Defence counsel do not object to the plaintiffs’ lawyer booking 45 minutes for this motion although the court had availability for a 2 hour motion.

November 10, 2021 – plaintiffs serve additional answers to undertakings

November 17, 2021 – plaintiffs’ counsel contacts court to schedule motion for August 17, 2022 and

November 18, 2021 – plaintiffs serve motion record with a requested timetable (including a new set down date of July 30, 2022)

November 30, 2021 –Physicians’ lawyer writes to plaintiffs following up on expert report

December 9, 2021 – plaintiffs serve additional answers to undertakings

December 17, 2021 – Hospital lawyer sends releases for execution by plaintiffs of Nurses and draft consent and dismissal order as against the Nurses

December 20, 2021 – plaintiffs’ lawyer writes to lawyer for Hospital asking for answers to 16 questions

December 21, 2021 – Physicians follow-up with respect to status of plaintiffs’ expert opinions

January 10, 2022 – Hospital lawyer responds to December 20, 2021 letter from plaintiffs’ lawyer stating that the questions were inappropriate as seeking opinion evidence or could be answered by review of the medical records

January 24, 2022 – first of five emails from counsel for the Hospital Defendants following with plaintiffs’ counsel on consent to dismissal order against Nurses and signed releases

February 9, March 14 and April 12, 2022 – Physicians follow-up with plaintiffs asking for response to prior correspondence

June 13, 2022 – lawyers for the plaintiffs and Hospital Defendants have a call to discuss questions in the December 20, 2021 letter and lawyer for Hospital Defendants maintains his position that no answers will be provided

August 4, 2022 – plaintiffs’ serve expert liability report of Dr. Gibney dated July 19, 2022

August 8, 2022 – plaintiffs’ deliver an updated draft timetable with letter dated August 4, 2022 which provides that mediation must be conducted by December 31, 2022 and establishing a set down date of January 31, 2023

August 8, 2022 – plaintiffs provide signed release in favour of the Nurses after multiple follow-ups from counsel for the Hospital Defendants since December 2021

August 17, 2022 – original return date of motion, motion adjourned to September 13, 2022 as parties had not booked sufficient time for motion

September 13, 2022 – motion heard

October 11, 2022 – my endorsement inviting submissions on the appropriate test

November 3 - 7, 2022 – further written submissions delivered

[^1]: Faris v Eftimovski, 2013 ONCA 360 at paras 32-33; Kara v Arnold, 2014 ONCA 5818 at para 8

[^2]: Prescott v Barbon, 2018 ONCA 504 at paras 14 - 15

[^3]: See my endorsement dated October 11, 2022

[^4]: 2022 ONSC 2527

[^5]: 2019 ONSC 6131 (Master)

[^6]: Kara v Arnold, 2014 ONCA 5818 at para 9

[^7]: Henderson v Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387 at para 10

[^8]: 366012 Ontario Inc. (c.o.b.) Sandy Hill Childcare Centre) v Boudreau, at para 18

[^9]: Yang v Christian World Korea Inc. at para 35

[^10]: 1196158 Ontario Inc. v 6274013 Canada Limited, 2012 ONCA 544 at para 28 – 30

[^11]: Ontario Regulation 73/20 made pursuant to s. 7.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9. On July 24, 2020, O. Reg. 73/20 was continued under the Reopening Ontario (A flexible Response to Covid-19) Act, 2020, SO 2020, c. 17. On September 14, 2020, O. Reg. 73/20 was revoked, O. Reg. 457/20.

[^12]: Kara v Arnold, 2014 ONCA 871

[^13]: Cedrom-Sni Inc. v Meltwater Holding, 2017 ONSC 3387 (Master) at para 8, Carioca’s Import & Export Inc., v Canadian Pacific Railway, 2015 ONCA 592 at para 57

[^14]: Integrated Business Concepts Inc. v Akagi, 2022 ONSC 3889 at para 31 (A.J.)

[^15]: Burgess v University Health Network, 2022 ONCA 105

[^16]: Burgess v. University Health Network et al., (26 March 2021), Ottawa, Ont. Sup. Ct. CV-14-61157 (endorsement of oral reasons rendered 7 January, 2021)