Court File and Parties

Court File No.: CV-16-00544948 Motion Heard: 2025-09-25 Superior Court of Justice – Ontario

Re: Joseph Asajar, Yolanda Navarro Adan, Katrina Asajar, Jayvee Asajar, Alexis Asajar, Miggy Asajar, Kyle Asajar, and Joseph Asajar as Trustee of the Estate of Maria Patria Asajar, Plaintiffs

And: Azra Ali, Hyoung-Zin Lho, Koon Leung Kwok, Ronn Elliot Goldberg, Maria Victoria Gonzalez Cruz, Sina Jatow, Catherine Navia-Cacalda, Joseph Prendergast, Doctors X, Nurses Y, Consultants Z, and North York General Hospital, Defendants

Before: Associate Justice B. McAfee

Counsel:

• T. Pagliaroli, Motion Counsel for the Moving Parties, the Plaintiffs
• D. Charach and M. Watkins, Counsel for the Responding Parties, the Defendants Ali, Lho, Kwok and Goldberg
• K. Hepp, Counsel for the Responding Parties, the Defendants Cruz, Jatow, Navia-Cacalda, Prendergast and North York General Hospital

Heard: September 25, 2025

Reasons for Decision

Background

[1] The plaintiffs bring this motion for a status hearing pursuant to Rule 48.14(6) of the Rules of Civil Procedure.

[2] The parties attended status hearing assignment court on August 7, 2024 and August 14, 2024 (see endorsements of Associate Justice McGraw dated August 7, 2024 and August 14, 2024). This motion for a status hearing was subsequently assigned to me on August 20, 2024 (see long motion assignment of Associate Justice Brott dated August 20, 2024).

[3] This is a medical malpractice action. The plaintiffs allege a misdiagnosis and delay in treatment of the late Maria Patria Asajar's (Maria) aortic dissection while a patient at the defendant hospital resulting in her death on January 22, 2014. Maria was 44 years of age at the time of her death.

Procedural History

[4] On January 21, 2016, the statement of claim was issued.

[5] On May 31, 2016, the defendants Dr. Ali, Dr. Lho, Dr. Kwok and Dr. Goldberg (the physician defendants) delivered a statement of defence and crossclaim.

[6] On March 1, 2017, the defendant nurses Cruz, Jatow, Navia-Cacalda, Prendergast and the defendant North York General Hospital (the hospital defendants) delivered a statement of defence and crossclaim.

[7] Between August 2018 and May 17, 2019, examinations for discovery were conducted. Examinations for discovery of the hospital defendants and the plaintiffs Joseph Asajar and Katrina Asajar (Katrina) took place in August 2018. The two primary defendant doctors Drs. Ali and Lho were examined on September 6, 2018. The defendant Nurse Prendergast was examined on May 17, 2019.

[8] Beginning in 2018, and for the next four years, former counsel to the plaintiffs, James Newland, took steps to retain and consult with experts. The plaintiffs' expert reports are dated between October 2018 and April 2022 and were served between June 2021 and June 2022. The plaintiff's reply expert report is dated August 25, 2023, and was served on August 28, 2023.

[9] In 2020, Newland and counsel for the hospital defendants agreed that the hospital defendants would provide a will say statement from Nurse Fernando Cruz, a nurse involved in Maria's care who had not been identified at the time the statement of claim was issued. On May 4, 2021, the will say statement was provided. The non-party Nurse Fernando Cruz was subsequently interviewed on July 13, 2021.

[10] In June 2021, the parties agreed to a timetable for the remaining steps in the action. The timetable required the parties to answer undertakings by July 2, 2021, the plaintiff's expert reports to be served by August 27, 2021, the defendants' expert reports to be served by January 7, 2022, the plaintiffs' reply reports to be served by February 18, 2022, completion of mediation by May 13, 2022, and the action to be set down for trial by June 3, 2022. This timetable, which was not filed with the court or ordered by the court, was not complied with.

[11] In October 2021, November 2021 and February 2022, the plaintiff served expert reports.

[12] In March 2022, Newland initiated discussions with defendants' counsel regarding a revised timetable.

[13] On June 6, 2022, on consent, the court ordered a timetable for the remaining steps (see order of Associate Justice Frank dated June 6, 2022). The timetable order required all parties to answer undertakings and refusals by April 29, 2022, the plaintiffs to serve expert reports by April 29, 2022, the defendants to serve expert reports by September 30, 2022, the plaintiffs to serve reply expert reports by October 29, 2022, mediation to be completed by January 31, 2023, and the action to be set down for trial by February 15, 2023.

[14] In compliance with the timetable order, on April 29, 2022, the plaintiffs served an updated undertakings chart together with productions and an expert brief containing all expert reports served to date together with a new expert report on causation.

[15] Newland intended to secure the reply expert report in accordance with the timetable order and had consulted with Dr. Croskerry in March 2022, in that regard.

[16] In July 2022, Newland left his firm to join Gluckstein Personal Injury Lawyers. There were delays associated with leaving his old firm and transitioning to a new firm. Newland only received the plaintiffs' electronic file from his old firm in October 2022. Newland served a notice of change of lawyer on October 18, 2022.

[17] Between February 2023 and April 2023, Newland met with his associate to review the file in preparation for mediation and trial. In April 2023, Newland renewed discussions with Dr. Croskerry to secure a reply report.

[18] On June 20, 2023, in anticipation of serving the reply report in the near future, Newland's office wrote to defendants' counsel in an attempt to schedule mandatory mediation for the summer or fall of 2023, which was after the ordered deadline for mediation and after the deadline to set the action down for trial. The defendants were not agreeable to proceeding with mediation. Counsel for the defendant physicians responded on July 12, 2023, that the "action is at an end".

[19] The action was not at an end. The action was still "active" and had not been dismissed by the registrar. Administrative dismissals did not resume until on or about May 13, 2024, after the plaintiffs took steps to schedule the within motion for a status hearing. I also note that as of July 2023, the plaintiff Kyle Asajar was still a party under a disability (see email from counsel for the hospital defendants dated May 31, 2021, noting a date of birth of March 6, 2006 and see Rule 48.14(8)).

[20] In August 2023, the plaintiffs served their reply expert report, which was 10 months after the deadline.

[21] In September 2023, Newland began trial preparation for a three-week brain injury medical malpractice case that proceeded to trial in November and December 2023. In December 2023, Newland left the Gluckstein firm. The plaintiffs had indicated that they would continue to have Newland act for them at his new practice. Almost immediately following his departure from the Gluckstein firm, Newland became ill, sought medical attention and was admitted to hospital in January 2024. After discharge from the hospital and attempting to deal with his practice, Newland fell ill again and was re-admitted to hospital in February 2024, where he remained for 3 weeks.

[22] On March 5, 2024, while in hospital, Newland advised the plaintiffs that he could not continue with their case and recommended that they ask the Gluckstein firm if they would be prepared to act.

[23] On March 6, 2024, the plaintiffs contacted Charles Gluckstein who agreed to review their case and determine whether he could act. The plaintiffs followed up with Gluckstein on March 26, 2024. On April 10, 2024, the plaintiffs met with Gluckstein.

[24] On April 15, 2024, Gluckstein served a notice of change of lawyer and requested a conference call among counsel to discuss the timetable and a mediation to take place in the fall of 2024.

[25] That same day, counsel for the physician defendants responded that the action had been at an end for more than a year, that there was no existing timetable to adjust and no live dispute to mediate.

[26] On May 9, 2024, the plaintiffs requisitioned the within motion. On May 10, 2024, the plaintiffs served their notice of motion for a status hearing.

[27] The plaintiffs are ready to set the action down for trial and have been ready to do so, subject to mediation, since 2023.

Legal Test

[28] The test on a motion for a status hearing was recently confirmed by Justice Dawe in Beshay v. Labib, 2024 ONCA 186 at paras. 11 and 12:

[11] This legal test is well-settled: see 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544, 112 O.R. (3d) 67. The plaintiff must establish that there is "an acceptable explanation" for the delay, and must also demonstrate that the defendant will not suffer any non-compensable prejudice if the action is allowed to proceed. As Sharp J.A. explained in 1196158 Ontario Inc., at paras. 32-33:

The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.

As I have noted, the goal of the civil justice system is [to] ensure "the just, most expeditious and least expensive determination of every civil proceeding on its merits". Consideration of actual prejudice focuses on the just determination of the dispute on its merits. The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the timelines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.

[12] It should be noted that the Rules previously required dilatory plaintiffs to bring a motion under r. 48 if an action had not been set down for trial within two years, but this deadline has now extended to five years. This affects the balance between the competing policy goals of having civil actions decided on their merits and of "ensur[ing] timely and efficient justice".

[29] What the court accepts as a justifiable or acceptable explanation for the delay depends on the case (Koepcke v. Webster, 2012 ONSC 357 at para. 22, citing Amirrahmani v. Wal-Mart Canada Inc., 2011 ONSC 6608 (Ont. S.C.J.) at para. 42). An explanation is acceptable if it is "adequate" or "passable" (3 Dogs Real Estate Corp. v. XCG Consultants Ltd., 2014 ONSC 2251 at para. 38). It is not necessarily a "perfect" explanation or even a "good" explanation (Windebank v. Toronto East General Hospital, 2022 ONSC 6913 at para. 13).

[30] A party who commences an action has the primary responsibility for the progress of the action (Beshay at para. 23 citing 1196158 Ontario at paras. 28-29).

Analysis: Acceptable Explanation for Delay

[31] The action progressed reasonably from the time pleadings were closed in March 2017 to the time of the consent timetable order in June 2022. By June 2022, discoveries had been conducted, undertakings had been answered, all plaintiffs' expert reports had been served, save for the reply expert report which was served in August 2023. The only year where there appeared to be little or no outward movement forward of the litigation was in 2020, in the first year of the Covid 19 pandemic. Both before and after 2020, there was no year when the plaintiffs did not take steps to move the litigation forward.

[32] While the timetable order had been complied with in part, the delay in complying with the time to serve a reply expert report, complete mediation and set the action down for trial has been explained. The reply expert report was served in August 2023, 10 months late. The delay during this time is adequately explained by Newland leaving his former firm, transitioning to a new firm, and not receiving the within file until October 2022. Between November 2022 and January 2023, Newland was dealing with a busy practice and tending to more urgent matters. Between February 2023 and April 2023, Newland and his associate were reviewing and preparing the file for mediation and trial. In April 2023, Newland renewed discussions with Dr. Croskerry regarding a reply report. The delay after service of the reply report, has been explained due to Newland being involved in a trial, departing from the Gluckstein firm, becoming ill and being hospitalized twice.

[33] In considering whether the plaintiffs have provided an adequate explanation for any delay, the plaintiffs' intention to move the action forward is a relevant consideration (Koepcke at para. 15 citing Oberding v. Sun Life Financial, 2010 ONSC 3303 at para. 19; Curlew Gardens Developments Inc. v. Terraprobe Inc., 2023 ONSC 5531 at para. 31).

[34] As attested to by Katrina, who was primarily responsible for instructing and communicating with the plaintiffs' lawyers, the plaintiffs have always intended to proceed with this action. Newland's unchallenged evidence is that from the outset, the plaintiffs have always intended to prosecute this action. Both Katrina and Newland confirmed that Katrina received regular updates from Newland including with respect to undertakings, the status of expert reports and the transfer of the file. The plaintiffs trusted their lawyer to handle their case and do what was necessary to advance the case to trial. I am satisfied that there was no intention to abandon the action or put the action on hold.

[35] The defendants rely on a number of letters sent to Newland that went unanswered, particularly between September 2019 and September 2020, most of which were seeking to have the plaintiffs release the peripheral defendant doctors and Dr. Lho from the action, and requesting expert reports and then again from June 2022, when Newland was transitioning from his old firm and through to January 2023. Newland explained that he did not respond to this correspondence because he did not intend to make any decision regarding the release of any physicians until the non-party Nurse Fernando Cruz had been interviewed and all the expert evidence had been received. While Newland ought to have responded to the letters from defendants' counsel, in the circumstances of this case the lack of response has been adequately explained and does not equate to a failure to take steps to advance the action.

[36] This is not a case where there have been multiple breaches of court orders. There was an agreed upon timetable in June 2021 that was not complied with. There was one court ordered timetable dated June 6, 2022, that was not complied with in part.

[37] The defendants take the position that a dismissal of this action would not leave the plaintiffs without a remedy because they would have a cause of action against their former lawyer. I do not agree that this is a relevant consideration. As stated by Justice Laskin in Finlay v. Paassen, 2010 ONCA 204 at paras. 32 and 33, in the context of a motion to set aside a dismissal order (see also Heslop v. Flynn, 2022 ONSC 3217 (Ont. S.C.J.) at para. 25; Curlew Gardens at para. 37):

[32] ….Speculation about whether a party has a lawsuit against its own lawyer, or the potential success of that lawsuit, should not inform the court's analysis of whether the registrar's dismissal order ought to be set aside.

[33] In my view, on a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel. As Sharpe J.A. noted in Marché, at para. 28, "The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor." Sharpe J.A. went on to recognize that the situation may be different where the lawyer's conduct is not inadvertent but deliberate. …

[38] To the extent that the defendants rely on the recent Court of Appeal decision in Barbiero v. Pollack, 2024 ONCA 904, that case involves a Rule 24 motion and a 21-year-old class action, where no steps were taken to advance the action for many years, which is not the case before me.

[39] I am satisfied that the plaintiffs have provided an acceptable explanation for the delay in these circumstances.

Analysis: Non-Compensable Prejudice

[40] Consideration of non-compensable prejudice focuses on the just determination of the dispute on its merits (Beshay at para. 11). 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 (Windebank at para. 34, citing Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 at para. 57).

[41] As stated by Justice van Rensburg in Carioca at para. 49: "…The mere passage of time cannot be an insurmountable hurdle in determining prejudice, or else timelines would become inflexible and explanation futile."

[42] As stated by Justice Sweeny in Biergerl v. Oakville-Trafalgar Memorial Hospital, 2017 ONSC 1014 (Ont. S.C.J.) at para. 22, in medical malpractice actions, the defendant's evidence will depend to a great extent on their review of the clinical notes and records that they have made.

[43] Any presumption of prejudice has been rebutted. All relevant medical records have been preserved, examination for discovery transcripts are available for those parties who were examined, the non-party Nurse Fernando Cruz has provided a will say statement and has been interviewed, and expert reports have been obtained and served by all parties.

[44] Dr. Ali and Dr. Lho both affirm that they are worried about fading memories because of the nature of the allegations against them which concern, in part, details of discussions that may have taken place. Dr. Ali argues that there is actual prejudice because she was not asked specifically about hypertension at discovery. Dr. Lho argues that there is actual prejudice because he was not asked specifically about Nurse Cruz at discovery.

[45] I am satisfied that there is no actual prejudice. Oral discussions among members of the care team were canvassed during the examinations for discovery of the defendants who were examined and in the interview of the non-party Nurse Fernando Cruz, as were discussions with the Asajar family, in addition to questions regarding the care and treatment of Maria.

[46] On her discovery, Dr. Ali read in her notes, including the history she obtained, into the record. Dr. Ali was asked about any elements of the history she had obtained but had not written down. She gave evidence of everything she recalled but had not written down.

[47] While the non-party Nurse Fernando Cruz had not yet been identified by name at the time of Dr. Lho's discovery, on Dr. Lho's discovery, Dr. Lho was asked about any discussions he had with any other nurses.

[48] In the case of Drs. Kwok and Goldberg who were not examined for discovery, both attest to not having a recollection of Maria or the care that she received. They depose that they did not have any direct contact with Maria and that their involvement was limited to interpreting an ECG in the case of Dr. Kwok and reviewing a chest x-ray in the case of Dr. Goldberg both after Maria was deceased. Their reports and the x-ray imaging are available.

[49] There is no evidence that key witnesses are unavailable for trial as a result of the delay. Nurse Prendergast was retired and residing in Jamaica at the time of his discovery. He has recently reconnected with his counsel. In his affidavit he deposes that he has only a vague memory of Maria and his involvement in her care. However, he has not attempted to refresh his memory. He deposes that he has not reviewed any records since his discovery.

[50] Nurse Jatow and Nurse Maria Cruz are retired. They also affirm that they only have vague recollections of Maria's care. However, they have not attempted to refresh their memory. Both depose that they have not reviewed any records or given any thought to their involvement in Maria's care since being examined for discovery.

[51] The affidavit evidence of the defendant physicians attesting to the frustration they feel because of the delay and this outstanding litigation against them and the professional impact of this litigation, is not prejudice with respect to the defendants' ability to defend the action. To the extent that it may be a relevant consideration on a status hearing, unlike the circumstances in 1196158 Ontario, where there was no significant movement by the plaintiff beyond pleadings after more than five years, this action has progressed and is ready to be set down for trial, subject to mediation.

[52] I am satisfied that there is no non-compensable prejudice to the defendants.

Conclusion

[53] For these reasons, I am satisfied that the plaintiffs have shown cause why the action should not be dismissed for delay. I am satisfied that it is in the interests of justice that the action should proceed.

[54] In the event that the plaintiffs were successful, plaintiffs' counsel confirmed that the action is ready to be set down for trial as soon as mediation has taken place. To accommodate schedules, I am ordering that mediation take place on or before March 20, 2026, and the action be set down for trial on or before March 31, 2026.

Costs

[55] With respect to the issue of costs, the plaintiffs were successful. While the plaintiffs are being granted an indulgence, in the circumstances of this case being granted an indulgence does not disentitle the plaintiffs to costs. The plaintiffs have been ready for trial for some time, subject to mediation. In my view a just determination of costs is that costs be fixed and payable to the plaintiffs in the cause. Having regard to the circumstances, a fair and reasonable amount that the defendants could expect to pay for costs is on a partial indemnity basis in the total all-inclusive amount of $35,000.00, of which $17,500.00 is payable by the physician defendants and $17,500.00 is payable by the hospital defendants.

Order

[56] Order to go as follows:

1. The action shall proceed;

2. The deadline for mandatory mediation shall be March 20, 2026;

3. The deadline to set the action down for trial shall be March 31, 2026;

4. Costs of this motion for a status hearing are payable by the physician defendants to the plaintiffs in the cause fixed in the all-inclusive amount of $17,500.00, and payable by the hospital defendants to the plaintiffs in the cause fixed in the further all-inclusive amount of $17,500.00.

Associate Justice B. McAfee

Date: November 17, 2025