Fridays with Rogers Partners

At our weekly meeting, Athina Ionita discussed Justice Myers’ recent decision in Sheikh v Kathuria, 2021 ONSC 3273, in which Justice Myers expounded the importance of cooperation in avoiding excessive Court procedure, and the timely resolution of disputes. 

Background

In December of 2014, the plaintiff, Sana Sheikh, was injured in a car accident. She was 34 weeks pregnant at the time. She gave birth prematurely to the plaintiff, Alina Sheikh, by caesarian section at Brampton Civic Hospital the same day of the accident. In 2016, the plaintiffs commenced a lawsuit in Brampton, claiming that the car accident had caused Alina’s neurological injuries and premature birth.

About a year later, the plaintiffs sued the Brampton Civic Hospital, and several health care professionals who worked there, in a separate Brampton action claiming that delay in the delivery had caused Alina’s neurological injuries.

In November of 2019, the plaintiffs started a third action in Toronto, which was the lawsuit that was the subject of this decision. In that action, the plaintiffs sued The Hospital for Sick Children and several health care professionals who worked there, claiming that Alina’s injuries were caused or contributed to by negligent neonatal care administered very shortly after her birth.

This decision arose from a motion brought by the defendants to dismiss the Toronto action as an abuse of process.

Analysis

The plaintiffs opposed the motion, seeking to have this action remain intact and be heard together with the two Brampton actions. The defendants sought the dismissal of the Toronto action, and suggested that the plaintiffs could instead seek to add them as defendants to their existing claims in Brampton.

In order for the plaintiffs to add the Toronto doctors and Sick Kids as defendants to the Brampton action, the Rules require the plaintiffs to obtain leave of the court to do so. By starting a new claim, the plaintiffs could circumvent the necessity of obtaining leave.

The defendants argued that the plaintiffs should be required to seek leave, which would give them an opportunity to argue that the applicable limitation period had expired.

However, the Court noted that in deciding whether to grant leave to add new defendants to the existing Brampton litigation, the Court would not look deeply into the facts of any limitation period issue, as the evidentiary burden on the plaintiffs at a pleadings amendment motion is low.

A related issue was that Alina is a minor, so the limitation period for her claims were suspended until a litigation guardian was appointed for her “in relation to the claim”.

The defendants sought to argue that the mother’s appointment as litigation guardian in 2016 in the context of the motor vehicle claim started the limitation period for this claim against the Toronto doctors, and therefore the plaintiffs are out of time to claim against these defendants. The judge inferred that the plaintiffs are trying to avoid having to meet even the limited assessment of the limitation period on a motion to add parties and amend pleadings.

The judge was critical of the plaintiffs’ approach, speculating that the plaintiffs may fear that they cannot surmount the limitation period issue. The judge questioned why the plaintiffs brought the lawsuit if this is the case. Further, the judge questioned what the point is of adding more doctors insured by the CMPA (Canadian Medical Protective Association), who is already at the table in the Brampton actions.

The judge was just as critical of the defendant’s approach. He stated that if the Toronto doctors have a “slam dunk” limitation defence that will win on an amendment motion, it should be a slam dunk whenever and wherever the defence is brought. If this is the case, the judge suggested that there is no point in demanding that a motion to amend be brought.

The judge noted that allowing the amendment on consent with the limitation period reserved would be the obvious and cooperative outcome, if anyone was motivated to provide an efficient and affordable process to yield an early resolution.

Justice Myers reasoned that commencing the claim in Toronto was an abuse of the court’s process. It created an inefficient multiplicity and it was expressly designed to avoid meeting the test for leave to add parties in the pre-existing litigation. There were no separate and distinct claims, as the car accident, birthing care, and neonatal care all occurred within about 24 hours and are all alleged to have caused or contributed to the same damage.

The judge ultimately stayed the action stayed pending the outcome of the motion to amend in Brampton.

Conclusion

Justice Myers was critical of the parties’ propensity for motions which do not advance the litigation to its logical conclusion. His Honour stated that both sides were fighting about what kind of motion will be needed to resolve the Toronto doctors’ limitation defence. He noted that the cases could all be at trial, and the limitation period dealt with on the full record, rather than spending years to keep out extra doctors whose insurer is already committed to the litigation. Further, Justice Myers responded negatively to the plaintiff’s attempt to work around the Rules to avoid having to obtain leave to add additional claims.

This decision suggests that although they might be willing to grant the relief sought, judges may not be happy to do so where there is unnecessary and excessive procedural steps involved. The court values cooperation, and encourages the parties to proceed on consent where possible.

Justice Myer notes, “The moving parties have brought a perfectly valid motion. They win. But a Kewpie doll would be a more valuable prize.”