On February 2, 2024, the Ontario Superior Court of Justice dismissed the Plaintiff’s motion for an order extending time for service and validating the irregular service of the Statement of Claim.
This medical malpractice action was brought by a physician, Dr. Vincent Tookenay (“Dr. Tookenay”), who alleged that his right leg had to be amputated below the knee as a result of negligence of, inter alia, the late Defendant, Dr. Michael O’Mahony (“Dr. O’Mahony”).
The Statement of Claim was issued in April 2021. The Statement of Claim must be served within six months after it is issued, according to Subrule 14.08(1) of the Rules of Civil Procedure. However, the Statement of Claim was not served until August 2022 due to a “miscommunication” within the Plaintiffs’ lawyers’ office.
The Defendant, Dr. O’Mahony, passed away on May 2, 2023, more than three months before the motion was argued. The Defendant Estate submitted that the motion should not be granted because extending time for service would cause significant and non-compensable prejudice to the Defendant Estate. Further, the Defendant Estate submitted that the two most important witnesses for its defence were no longer available. Namely, after the time for service had elapsed, Dr. O’Mahony, suffered a significant mental decline due to his advancing Parkinson’s Disease, which resulted in complete loss of capacity. Further, Ms. Melissa Georgiou (“Ms. Georgiou”), a nurse practitioner within Dr. O’Mahony’s clinic, died of cancer.
The Plaintiffs questioned whether the Defendant Estate had actually been prejudiced and submitted that the Defendant Estate should, in any event, bear the responsibility for not having taken appropriate steps to preserve the evidence of at least Dr. O’Mahony. The Plaintiffs also submitted that any prejudice to the Defendant Estate was self-created and should not be allowed to deprive the Plaintiffs of their opportunity to advance their case.
FACTS
The late Defendant, Dr. O’Mahony was a family physician, practicing in a clinic in Sarnia with a nurse practitioner, Ms. Georgiou. The Plaintiff, Dr. Tookenay, was a patient of Dr. O’Mahony for some years. On January 4, 2019, Dr. Tookenay sustained a puncture-type wound to the medial side of his right big toe. At that time, he had diabetes and peripheral vascular disease. It appears that the first time Dr. Tookenay came to Dr. O’Mahony’s clinic for the care at issue was February 27, 2019, although he was seen by nurse practitioner Ms. Georgiou. Between February 27, 2019, and April 25, 2019, Dr. Tookenay attended at the clinic on four or five occasions but was not seen by Dr. O’Mahony on all attendances. On the last attendance, on April 25, 2019, Dr. O’Mahony performed an examination, prescribed antibiotics and arranged for urgent surgical referrals for Dr. Tookenay to a cardiovascular surgeon and a vascular surgeon. On May 3, 2019, Dr. Tookenay saw a vascular surgeon at London Health Sciences Centre for infected necrotic gangrene of his right first and second toes, and on May 4, 2019, he underwent a transmetatarsal amputation of this right first and second toes. On June 10, 2019, Dr. Tookenay underwent an operation to amputate his right leg below the knee.
On January 23, 2020, the Plaintiffs retained a lawyer from a law firm to investigate a potential medical malpractice claim. The Plaintiffs’ law firm conducted certain investigations and collected medical records from various practitioners and healthcare providers, including Dr. O’Mahony. On April 28, 2021, the Plaintiffs’ lawyers issued a Statement of Claim in the Plaintiffs’ name in respect of Dr. Tookenay’s injuries. On October 28, 2021, the six-month deadline contemplated by Subrule 14.08(1) to serve the Statement of Claim expired without the Defendant having been served and without the Plaintiffs’ lawyers having moved to extend the time for service. Despite the Plaintiffs’ lawyer receiving reminders through his firm’s internal computer-based tickler system on September 13, 2021, and again on October 3, 2021, the Statement of Claim was not served due to a miscommunication between the Plaintiffs’ lawyer and his law clerk. Further, on January 31, 2022, the Plaintiffs’ lawyer received an email from his legal assistant with Tasks entries from his former law clerk’s Outlook program. The Plaintiffs’ lawyer misinterpreted the Tasks entries to mean that the Statement of Claim had been served and that they were awaiting a doctor’s review of the materials so that the Plaintiffs’ lawyer could provide a preliminary opinion.
On July 25, 2022, the Plaintiffs’ lawyers realized that the Statement of Claim had not been served. Meanwhile, nurse practitioner Ms. Georgiou was required to stop working at Dr. O’Mahony’s clinic in early March 2022 because her breast cancer had returned. Ms. Georgiou passed away shortly after, on April 6, 2022. Despite realizing that the Statement of Claim had not been served on Dr. O’Mahony, it appears no steps were taken to have the Statement of Claim served on Dr. O’Mahony until one month later. On August 25, 2022, a process server left a copy of the Statement of Claim in a sealed envelope for Dr. O’Mahony at his clinic in Sarnia. Dr. O’Mahony was not served personally. In due course, the Statement of Claim came to the attention of Dr. O’Mahony’s son and one of his father’s substitute decision-makers, who then arranged for legal counsel to be retained. On September 12, 2022, defence counsel wrote to Dr. Tookenay by letter to advise that had been retained to assist Dr. O’Mahony and urged Dr. Tookenay to retain legal counsel, advising that a motion to extend time for service may be necessary.
The Statement of Claim was personally served on Dr. O’Mahony on January 16, 2023. On May 2, 2023, Dr. O’Mahony passed away. Before his passing, his evidence in respect of these issues were not obtained or preserved.
LAW
The key issue in this dispute was the question of prejudice. Both counsel acknowledged that the leading decision on extending time for service of a Statement of Claim is the Ontario Court of Appeal’s decision in Chiarelli v Wiens (“Chiarelli”), where the court stated that “the court should not extend time for service if to do so would prejudice the defendant.”
In deciding whether to grant an extension under Subrule 14.08(2), “a court must consider whether the extension would advance the just resolution of the dispute without prejudice or unfairness to either party.” The court “should be concerned mainly with the rights of the litigants, not with the conduct of counsel.” Further, the plaintiffs bear the “onus to show that the defendant would not be prejudiced by an extension.” If the plaintiff fails to establish that there will be no prejudice to the defendant, then the motion to extend should be dismissed.
The Plaintiffs’ factum noted the following principles from Chiarelli, which were summarized by Perell J. in Rowland v Wright:
In Chiarelli[,] … the Court of Appeal articulated the following principles for determining whether to grant an extension of time for the delivery of the statement of claim: (1) although the onus is on the plaintiff to show that the defendant will not be prejudiced by an extension of time, the plaintiff cannot be expected to speculate and the defendant has at least an evidentiary obligation to provide some details of prejudice; (2) the defendant cannot create prejudice by his or her failure to do something that could reasonably have been done; (3) the prejudice that will defeat an extension of time for service must be caused by the delay; (4) an extension of the time for service should not be denied simply because the delay is longer than the applicable limitation period; and (5) each case should be decided on its facts, focusing on whether the defendant is prejudiced by the delay.
The factors to consider in determining whether an extension of time to serve a Statement of Claim should be granted have been expressed similarly in different cases, including:
a. the length of the delay,
b. the evidence filed that explains the delay,
c. whether the evidence regarding the explained delay is sufficient,
d. whether or not the plaintiff moved promptly for an extension of time after the period expired,
e. whether or not the delay in serving the claim resulted from the direction, participation, or involvement of the plaintiff personally in the service of the claim,
f. the extent to which the defendant, themselves, bears some or all of the responsibility for this delay,
g. whether or not it was reasonable for a defendant to infer from all the circumstances that the plaintiff had abandoned his claim,
h. whether the applicable limitation period for the action has already expired,
i. whether the defendant had notice before the expiry of the limitation period that the plaintiff was asserting a claim against the defendant, and
j. whether the defendant would suffer prejudice if the motion is granted.
ANALYSIS
The judge held that the Plaintiffs’ late service of their Statement of Claim was not adequately explained and, as a result, the Defendant Estate had incurred actual prejudice that was both significant and uncompensable. As such, the Plaintiffs’ motion was dismissed.
The delay in service was more than one year and two months after the six-month deadline. The judge noted that “[e]ven if one considers that some attempt was made on August 25, 2022, assuming the court validates such service, that so-called service was still affected ten months after the deadline.” Further, the Plaintiffs’ lawyer received reminders from his firm’s internal computer-based tickler system on September 13, 2021, and again on October 3, 2021, about the need to serve the Statement of Claim. There was no evidence before the court as to the lawyer’s response to those reminders or evidence that the Plaintiffs’ lawyer took any action as a result of those reminders. There was also no miscommunication about the reminders received on September 13, 2021, and October 3, 2021. The evidence of miscommunication does not come until January 31, 2022, when the lawyer received an email from his legal assistant and misinterpreted what was meant by the Tasks entries.
Upon learning on July 25, 2022, that the Statement of Claim had not, in fact, been served in October 2021, the Plaintiffs’ lawyer let the Statement of Claim “sit for about another month”. The judge stated that one would think that the Plaintiff’s lawyer, after finding out that the Statement of Claim had not in fact been served, would have issued instructions that the Statement of Claim be served “immediately”, not in a couple of weeks or a month. Instead, the Statement of Claim was not served until August 25, 2022. The judge found that there was “absolutely no explanation at all for that further one-month delay”. On this basis alone, the judge dismissed the Plaintiff’s motion.
Prejudice
With respect to the fundamental question of prejudice, the judge agreed with the Defendant Estate that a presumption of prejudice arises by operation of the relevant deadlines under the Rules of Civil Procedure because the Statement of Claim was served late and well past the outermost plausible limitation date. The judge stated that “[e]ven where an originating process is issued within the limitation period, if it is served both late and outside the limitation date, then a presumption of prejudice attaches.”
The judge found that the Defendant Estate had suffered actual prejudice, beyond the presumed prejudice arising out of the expiration of the limitation period, caused by the failure of the Plaintiffs to serve their Statement of Claim in a timely manner. The actual prejudice arises in respect of two now unavailable witnesses.
While the Plaintiffs argued that the evidence of nurse practitioner Ms. Georgiou was not particularly relevant and, in any event, was available through her clinical notes, the judge agreed with the Defendant Estate’s submissions that the defence witnesses will not be able to describe their version of events and interpret those events and the paper record. Crucial defence evidence could have been preserved if service happened on time. Further, not everything that occurs in a patient interaction is charted. Jurisprudence has developed to reflect that the “evidence of a doctor’s usual or invariable practice is admissible and must be given ‘significant weight’ because medical charting is not, nor should it be, an exhaustive and unabbreviated log of every detail that transpired at a patient interaction.” The same principles apply to nurses. The evidence of both witnesses’ invariable practice is gone solely due to the delay in service.
Similarly, the Plaintiffs’ failure to have serve their Statement of Claim in a timely manner resulted in Dr. O’Mahony’s evidence being unavailable to the Defendant Estate. The Plaintiffs argued that Dr. O’Mahony’s evidence was available but that the Defendant Estate failed to take reasonable steps to preserve that evidence and, therefore, should bear that responsibility. However, the judge found that the Plaintiffs’ evidence was contradicted by the evidence before the court. The Defendant Estate’s lawyers candidly advised that they took no steps to preserve the late Dr. O’Mahony’s evidence because by the time they were retained, it was not possible to secure his evidence given his mental decline and incapacity.
A little over two weeks after the Plaintiffs’ irregular service of their Statement of Claim, Dr. O’Mahony’s lawyers were retained and writing to the Plaintiff. Nine days after that, their client, Dr. O’Mahony, was non-verbal. The judge found that the Defendant Estate’s lawyers acted promptly and reasonably, and the Plaintiffs failed to demonstrate that the Defendant Estate’s lawyers acted unreasonably. The judge also noted that “it does not lie in the mouth of the lawyers for the plaintiffs to come to court and complain that the lawyers for the defendant Estate did not jump into action within a matter of days to secure Dr. O’Mahony’s evidence after the statement of claim came to the defendant’s attention, when they themselves waited an entire month before they took steps to make some attempt at service of their statement of claim (on August 25, 2022), after they realized – on July 25, 2022 – that their statement of claim had not in fact been served back in October 2021.” Therefore, the judge dismissed the Plaintiff’s’ motion for an order extending time for service and validating irregular service.
Decision Date: February 2, 2024
Jurisdiction: Ontario Superior Court of Justice
Citation: Tookenay v O’Mahony Estate, 2024 ONSC 709 (CanLII)
