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December 2017

Court Orders Up to $600,000 Advance Payment in Advance of Personal Injury Med-Mal Trial

David Elmaleh
David Elmaleh
Partner

Priya Chopra
Danielle Ralph,
Associate

By David Elmaleh and Danielle Ralph

The Court of Appeal has made it abundantly clear that partial summary judgment motions will only be granted in the clearest of cases.1 In Duggan v Lakeridge Health Corporation 2017 ONSC 7340, Justice Edwards found that the circumstances at bar constituted one such case. In this instance, the Plaintiffs were granted a partial summary judgment order requiring the Defendant, Dr. Padamjit Singh (the “Defendant”), to make a further advance payment of not less than $600,000 in advance of the trial scheduled for November 2018.

Background

The Plaintiff, Ava Grace Duggan (“Ava”), suffers from Cerebral Palsy which was caused at the time of her birth. It was previously acknowledged by Dr. Singh that she breached the standard of care in delivering Ava, causing neurological impairment. Dr. Singh made an advance payment of $300,000 on September 21, 2015, following her admission of liability.

The motion for partial summary judgment brought by the Plaintiffs seeking an advance of $600,000 before trial was on the basis that Ava had a demonstrated need for ongoing care, as reflected in a Future Care Cost report prepared by the Plaintiffs’ expert. The Plaintiffs’ expert opined that without the care afforded by the funds already received by the Plaintiffs, it was likely that Ava would have regressed significantly. The trial had been delayed from November 2016 to November 2018 for various reasons, and without an advance partial payment of what was anticipated to be awarded at trial, it was possible that Ava could regress before trial.

While there was no dispute that Ava required significant future care, the cost of which would amount to a large portion of her claim, the Defence’s counsel did not agree to the extent of care reflected in the expert reports filed by the Plaintiffs.

It was previously acknowledged by Dr. Singh that she breached the standard of care in delivering Ava, causing neurological impairment.

In addition, it was the position of Defence counsel that there was no admissible evidence before the court to outline Ava’s future care costs, due to the fact that the Plaintiffs’ expert report was not properly before the court. Plaintiff’s counsel gave notice that the report would be before the court pursuant to section 52(2) of the Evidence Act, as an appendage to the Affidavit of one of the Plaintiff’s lawyers. As a result, the Defendant argued that the Plaintiffs could not rely on the report to substantiate their claim for a $600,000 advance.

Justice Edwards determined that a medical report served pursuant to section 52(2) of the Evidence Act is not automatically admissible simply because the report has been served with proper notice. Leave of the court is still required. To ensure the admissibility of an expert report, such a report must be appended to an affidavit of the expert, together with the expert’s curriculum vitae, to comply with Rule 53.03 of the Rules of Civil Procedure.

Despite this determination, he allowed the report to be included as evidence on which the Plaintiff could rely, to give effect to Rule 1.04 of the Rules of Civil Procedure which requires the rules to be liberally construed to ensure “the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

Outcome

Having determined that the Plaintiffs’ expert report was admissible, the issue before the court remained whether partial summary judgment was appropriate. In considering the standard for granting partial summary judgment, Justice Edwards referred to cases such as Corchis v. KPMG,2 which established that summary judgment should only be granted in the clearest of cases “where the issue on which judgment is sought is easily severable from the balance of the case”. Justice Edwards concluded that the circumstances of the case amounted to the “rarest of cases”. In reaching this conclusion, he considered the admission of liability of the Defendant, the needs of the severely disabled Plaintiff, Ava, and what would likely be a substantial judgment against the Defendant.

In granting the Order for partial summary judgment, Justice Edwards engaged in a balancing act between considering Ava’s best interests, and any prejudice to the Defendant’s ability to challenge her future care needs by granting summary judgment in the amount of $600,000.00 and establishing a status quo.

Although Justice Edwards ordered that the Defendant pay $600,000 for Ava’s attendant care needs between the summary judgment motion and trial, he also required that both the Plaintiffs’ and Defendant’s experts meet to agree on Ava’s ongoing needs. To the extent that they could reach a consensus on her care needs, the funding for her interim care was to be paid out of the advance granted. Should the experts be unable to agree on a quantum for her care, the minimum cost of care was to be paid out of the $600,000.

Conclusion

... this decision by Justice Edwards balanced the interests of both parties and exemplifies the “human” element of Courts...

The considered approach taken by Justice Edwards in this instance reflects the abundance of caution the court will apply in considering granting partial summary judgment. Although Hyrniak3 helped to expand the number of cases in which there is no genuine issue requiring a trial, by enabling the court to use the fact-finding powers in Rule 20 to grant summary judgment, a motion for partial summary judgment requires further, and careful, consideration.

This case makes clear that the court will consider the potential for delay in the main action, additional expense and time for a motion that does not dispose of the action, and lack of evidence available at the motion that could be available at trial, to determine whether it is advantageous to grant partial summary judgment.

In this instance, the obvious needs of Ava necessitated Justice Edwards to grant partial summary judgment to prevent a regression that may otherwise occur without the necessary funding to provide care. However, caution should be exercised when considering bringing a motion for partial summary judgment, given the continued conservative approach exercised by the courts in granting partial summary judgment, and the expenditure necessarily incurred in bringing such a motion.

Overall, this decision by Justice Edwards balanced the interests of both parties and exemplifies the “human” element of Courts in granting an advance payment when both sides of the dispute agree that the bare minimum of care is required.

It will be interesting to see if other judges grant similar orders in circumstances where liability and causation are not admitted.


1 Butera v. Chown Cairns LLP, 2017 ONCA 783
2 Corchis v KPMG, 2002 CanLII (ONCA)
3 Hyrniak v Mauldin [2014] 1 SCR


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