RE: Dexter Salna and Beata Szkop, Plaintiffs
AND:
Southbrook Custom Homes Inc., Damiano Cirillo also known as Domenic Cirillo and Anthony Cirillo, Defendants
BEFORE: D. Wilson J.
COUNSEL: T. Buckley, for the Plaintiffs
M. Marchioni, for the Defendants
HEARD via teleconference: January 26, 2023
ENDORSEMENT
1This is a case arising from a contract which was signed in 2019 for the building of a garage. It is fixed to commence trial for 5 days on January 30, 2023. The solicitor for the Defendants advised counsel for the Plaintiff on January 13, 2023 that he would be requesting an adjournment of the trial date because one of the named Defendants, Domenic Cirillo, who is also a principal of the Defendant Southbrook Custom Homes Inc. (“Southbrook”), was undergoing surgery at the time of trial. Mr. Buckley advised that he did not have instructions to consent to an adjournment of the trial date. Consequently, Mr. Marchioni filed a motion record in CaseLines. A case conference was arranged before me for today. In Toronto, the practice for requests for adjournments of trials is to contact the trial coordinator and request a case conference before me.
Background to the request for the adjournment
2Briefly put, the action was commenced in 2020 and set down for trial. It was fixed for trial in April 2022, but the date was changed to January 30, 2023 on consent. There was a pretrial held in November 2022.
3On January 13, 2023, Mr. Marchioni was notified by Mr. Cirillo that he had to undergo spinal surgery at the end of January 2023. Mr. Marchioni sent an email to Mr. Buckley the same day, informing him that Mr. Cirillo would not be available for the trial and enclosing a note from the family physician, Dr. Longarini, who offered the opinion that due to the surgery, Mr. Cirillo would not be able to participate in the trial.
4On January 16, 2023, Mr. Marchioni sent Mr. Buckley a further email with another letter from Dr. Longarini which referred to the name of the orthopedic surgeon, Dr. Pirouzmandi who would be conducting the surgery at Sunnybrook hospital. On January 17, 2023, Mr. Marchioni asked Mr. Buckley if the trial would be adjourned on consent. Mr. Buckley indicated that he would seek instructions. He then delivered some further trial materials on January 19, 2023.
5Mr. Buckley did not advise that the trial could be adjourned on consent. Instead, he indicated he wished to speak to both the family doctor of Mr. Cirillo and the surgeon. On January 20, 2023, Mr. Buckley delivered authorizations for signature to permit him to speak to Mr. Cirillo’s treating doctors. These authorizations are broad in their language and provide for the release of medical records as well as providing consent to speak to treating physicians. Mr. Marchioni objected to the broad scope of the authorizations that had been sent by Mr. Buckley and on January 23, revised authorizations were sent. Mr. Marchioni then arranged the case conference before me.
Analysis
6It is not disputed that at the time of the pretrial, defence counsel was not aware of any upcoming surgery for Mr. Cirillo. It is clear that as soon as he learned from his client that the spinal surgery was being scheduled for some time between January 20 and 30, 2023, Mr. Marchioni advised Mr. Buckley and provided him with a confirming note from the family doctor and asked for his consent to adjourn the trial date. Mr. Buckley did not respond to the request quickly, for reasons which are not clear to me. Mr. Marchioni sent several emails requesting consent, noting that he did not want the court to waste its time preparing for the trial if it was not going ahead.
7On January 19, Mr. Buckley responded demanding “a letter from Domenic’s surgeon, Dr. Farhad Pirouzmand, with particulars of the surgery including the date of surgery and when Domenic was first advised of the need for surgery and the proposed surgery date, as well as the expected recovery time. We have also requested signed authorizations to speak directly with Dr. Longarinin and Dr. Pirouzmand about your client’s medical condition and planned surgery...we do not have instructions to consent to any adjournment of the trial. Accordingly, we will continue to prepare for the trial as required...”
8In my view, when Mr. Marchioni wrote to Mr. Buckley on January 13 alerting him to his request for an adjournment of the trial date because Mr. Cirillo was undergoing back surgery, and providing the signed letter from Dr. Longarini, Mr. Buckley ought to have consented to an adjournment of the trial date and advised Mr. Marchioni forthwith. If the Plaintiff was not prepared to provide instructions to adjourn the trial, that ought to have been communicated to Mr. Marchioni forthwith, so he could have obtained a case conference before me.
9At today’s case conference, Mr. Buckley stated that his client did not want to adjourn the trial. I do not accept that as a reason to refuse a reasonable request for a short adjournment of a 5 day trial. In the Principles of Professionalism for Advocates, produced by the Advocates’ Society, principle number 47 states “Advocates, and not the client, have the sole discretion to determine the accommodations to be granted to opposing counsel and litigants in all matters not directly affecting the merits of the cause of prejudicing the client’s right. Advocates should not accede to a client’s demands that the advocate act in a discourteous or uncooperative manner.” In the instant case, there is no prejudice articulated by the Plaintiff that would result from a brief adjournment of the trial. This is a relatively new case, and the trial date was set in 2022.
10Mr. Buckley continued his trial preparation, and did not reply to the various emails from defence counsel until January 19, when he stated he did not have instructions to consent to the adjournment. He did not identify any reasons behind the refusal to consent. Rather, he demanded authorizations to enable him to speak to the treating physicians of Mr. Cirillo and to obtain medical records and other documents.
11The authorizations that Mr. Buckley forwarded for execution instructed the doctors to discuss Mr. Cirillo’s “health and medical conditions, and to release and all clinical notes and records, all documents/records, correspondence, emails, letters in relation to the surgery...”
12This is not a personal injury action where a party’s medical condition is in issue; it is a claim arising from a contract for the building of a garage. There is no entitlement in law for Mr. Buckley to speak to the treating physicians of the Defendant and similarly, he is not entitled to production of Mr. Cirillo’s personal medical records as a condition of agreeing to an adjournment of the trial. Such documents are confidential and there is a high threshold that must be met for their production. That threshold certainly is not met on the facts of this case. If Mr. Buckley believed the surgery was some sort of a sham to avoid the trial, then those concerns ought to have been allayed by the letter from the family doctor. To demand the right to speak to Dr. Longarini and Dr. Pirouzmand, both of whom are busy medical practitioners at a time when the health care system is struggling, is inappropriate, unnecessary and frankly, appalling.
13It is not Mr. Buckley who determines whether or not the trial will be adjourned; that is a decision for a judge. This is an action that was commenced in 2020; it is not a file that has been languishing for years with multiple trial dates that were adjourned.
14As I indicated at the case conference, I am satisfied that Mr. Cirillo cannot participate in a trial at this time given his upcoming surgery. When adjournments of trials are sought on the basis of a medical issue, it is reasonable for opposing counsel and for the court to ask for a medical note confirming the inability of a party to participate in a trial. To go beyond that, as Mr. Buckley did, and demand the right to speak to the party’s doctors and to request medical records, is unnecessary and inappropriate.
15When a lawyer, an officer of the court, advises opposing counsel that he or she has just learned something from a client which requires an adjournment of a trial date, common courtesy dictates that the request be dealt with promptly in a reasonable fashion. An appropriate response to being advised that an adjournment of a trial date will be sought because a party is undergoing surgery does not include telling opposing counsel that trial preparation will continue with the resulting escalation of costs, demanding the right to verify the information provided with the treating surgeon, forcing opposing counsel to serve and file a motion record and attending a case conference without a reasonable explanation for opposing the adjournment request. This behaviour does not accord with section 7.2 of the Rules of Professional Conduct and serves no useful purpose.
16I have no hesitation in adjourning the trial date. I am hopeful this 5 day trial can be held before the end of June 2023. The trial coordinator will contact counsel to reschedule the trial date. Had Mr. Marchioni requested costs of the preparation of the motion and the attendance today, I would have awarded the Defendants costs. I specifically order that any costs incurred by the Plaintiff from the time that Mr. Buckley was notified of the request for the adjournment, January 13, 2023, until today do not form part of any costs requested by the Plaintiff at the conclusion of this matter.
Date: January 30, 2023