Mylo Kathirgamanathan first Plaintiff and: dr. m. kathirgamanathan pmc (2012) inc. second plaintiff And: Western Regional Integrated Health Authority Defendant - v. -, 2020 NLSC 123

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Kathirgamanathan v. Western Regional Integrated Health Authority , 2020 NLSC 123 Date : September 17, 2020 Docket : 201601G5444 Between: Mylo Kathirgamanathan first Plaintiff and: dr. m. kathirgamanathan pmc (2012) inc. second plaintiff And: Western Regional Integrated Health Authority Defendant - AND - Docket : 2018 01G1144 Between: Mylo Kathirgamanathan first Plaintiff And: DR. M. KATHIRGAMANATHAN PMC

(2012) INC. SECOND PLAINTIFF And: SIMON ASH FIRST DEFENDANT And:

KAREN PHILLIPS AND DR KA PHILLIPS PMC INC. SECOND DEFENDANTS And: CHRISTOPHER JENKINS and DR. C.E. JENKINS PHYSICIAN PMC INC. THIRD DEFENDANTS And: ANDREW JEFFREY AND DR. ANDREW H. JEFFREY PHYSICIAN PMC INC. FOURTH DEFENDANTS And: CAREL ARNOLD VERMOOTEN AND DR. CAREL ARNOLD VERMOOTEN PROFESSIONAL MEDICAL CORPORATION FIFTH DEFENDANTS And: kollipara sridhar sixth defendant And: szilvia szarvas seventh defendant And: drs. szarvas and sridhar pmc inc. eighth defendants - AND - Docket : 2019 01G3996 Between: Mylo Kathirgamanathan first Plaintiff And: DR. M. KATHIRGAMANATHAN PMC

(2012) INC. SECOND PLAINTIFF

And: western regional integrated health auhority FIRST DEFENDANT And: darrell boone SECOND DEFENDANT Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 8, 2020

Summary: The Defendant applied to consolidate three actions brought by the Plaintiffs against it, a number of individual anesthesiologists andagainst the Chair of a Peer Review Committee appointed by the Defendant. All of the Plaintiffs’ complaints emanate from one set of actions. All three actions have common issues, common documentation andcommon witnesses. It was ordered that the three actions be heard by the same trial judge, one following the other. The evidence of each matter shall bedeemed to be evidence in the other two. A common set of pleadings was not ordered. Appearances: Bernard M. Coffey, Q.C. Appearing on behalf of Mylo Kathirgamanathan and Dr. M. Kathirgamanathan PMC

(2012) Inc.Twila E. Reid & Giles W. Ayers Appearing on behalf of Western Regional Integrated Health Authority and Simon AshR. Barry Learmonth, Q.C. &Sarah M. Learmonth Appearing on behalf of Karen Phillips and Dr KA Phillips PMC Inc., Christopher Jenkins and Dr. C.E.Jenkins Physician PMC Inc., Andrew Jeffery and Dr. Andrew H. Jeffery Physician PMC Inc., CarelArnold Vermooten and Dr. Carel Arnold Vermooten Professional Medical Corporation, KolliparaSridhar, Szilvia Szarvas, Drs. Szarvas and Sridhar PMC Inc., and Darrell Boone Authorities Cited: CASES CONSIDERED: King v. Chaulk, 2006 NLTD 133; Earle v.

Christian Brothers of Ireland in Canada, (NLSC), [1994] 124 Nfld. & P.E.I.R. 254, 384 A.P.R. 254 (Nfld. S.C. (T.D.))

REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Defendant, Western Regional Integrated Health Authority (Western Health), has applied to consolidate three actionsbrought by the Plaintiffs (Dr. Mylo Kathirgamanathan and the medical corporation under which he operates) against Western Health(Action “K1”), a number of individual anesthesiologists (Action “K2”) and Western Health and the Chair of the Peer ReviewCommittee, Darrell Boone, appointed by Western Health (Action “K3”). [2] Dr.

Kathirgamanathan is a general surgeon who practiced medicine in the facilities provided by Western Health at its hospitalin Corner Brook, Newfoundland and Labrador. [3] In February, 2016 a group of anesthesiologists decided to withdraw anesthesia services from the Plaintiffs allegedly inresponse to patient safety concerns.

As a result, on September 21, 2016, the Plaintiffs brought an action, K1, against Western Healthalleging that it improperly acquiesced in the actions of the anesthesiologists. [4] On February 14, 2018 the Plaintiffs brought an action, K2, against the eight individual anesthesiologists who had withdrawnanesthesia services from the Plaintiffs. [5] On June 5, 2019 the Plaintiffs commenced an action, K3, against Western Health and Darrell Boone. In that action thePlaintiffs claimed that both Defendants were in breach of their public duty to fairly, and expeditiously, determine the Plaintiff’s matter.

In addition, it is alleged that Darrell Boone committed fraud by issuing a false document. [6] K1 has been diligently prosecuted and is ready to be put on the pre-trial list according to counsel for the Plaintiffs. K2 and K3have not had the benefit of production of documents, interrogatories or examinations for discovery. They are not ready to be put onto apre-trial list and are unlikely to be ready for some time to come. In fairness to the Plaintiffs, this is due in part to the fact that some ofthe Defendants in K2 have relocated to other jurisdictions and could not be served earlier with the Statement of Claim.

In the case of K3the impugned decision of Darrell Boone was not made until June, 2018. ISSUE Is consolidation of two, or more, of the three actions advisable to avoid a multiplicity of proceedings and to ensure the efficient use of theCourt’s resources? ANALYSIS [7] The Court has a broad discretion to consolidate matters where, as was the case in King v. Chaulk, 2006 NLTD 133, there arecommon questions of law or fact, or where relief is claimed and it arises out of the same transaction.

In such circumstances it is open tothe Court to order that the matters be tried at the same time, or one immediately after another, or to stay some matters until after thedetermination of any other of them. [8] Mercer, JA pointed out in Earle v. Christian Brothers of Ireland in Canada, (NL SC), [1994] 124 Nfld. &P.E.I.R. 254, 384 A.P.R. 254 (Nfld.

S.C. (T.D.)), consolidated trials save the Court and parties time and money and are far moreexpedient; but they also ensure that inconsistent or perverse verdicts are avoided. [9] There is little doubt, in this matter, that all of the Plaintiffs’ complaints emanate from one set of actions - the denial of serviceby the eight individual Defendants in K2. The claim in K1 is that Western Health is, essentially, vicariously liable for the eightindividual Defendants’ improper withdrawal of service.

Moreover, the claim in K3 relates to Western Health’s lack of oversight of thePeer Review Committee’s actions and, as well, impugns the actions of the Chair of the Peer Review Committee. [10] The three actions will undoubtedly have common issues, common documentation and common witnesses. [11] Mr. Learmonth submitted, on behalf of his clients (he acts for seven out of eight of the K2 Defendants) that while he is notopposed to a consolidation of the actions, he is opposed to having the action he is defending being set down prematurely for trial.

Nosteps have been taken, in that matter, beyond the closing of pleadings. It would be premature to consolidate and, then, immediately setthe matters down on the pre-trial list. He indicated that while counsel for Western Health may well be cognizant of all of thedocumentation generated in the three actions, he does not have access to that documentation and would not be able to properly prepare ina consolidated action unless and until he had access and an ability to study the documentation.

His view has considerable merit in myopinion. [12] I realize that an Order for consolidation of the actions will have the effect of impeding the progress that the Plaintiffs havemade in K1. On balance, however, that is a small price to pay considering the harm that could be done by inconsistent verdicts or amultiplicity of actions surrounding the same issues of fact and law. CONCLUSION [13] Under the circumstances I Order that K1, K2 and K3 be heard by the same trial judge and one following the other. I Order thatthe evidence from one matter be accepted as evidence in the other two.

This will ensure that witnesses will only have to attend once togive their evidence and, where so given, it will apply to each of the actions before the Court. I do not think it is necessary to order that

there be a common set of pleadings. The three matters can proceed with the pleadings that currently exist and will have separate tracks until all three matters are ready to be set down for trial - at which point their tracks will merge as previously indicated. [ 14 ] Based on the foregoing, the request to have K1 set to the pre-trial list becomes premature. [ 15 ] I thank counsel for their briefs and submissions. [ 16 ] Costs of the application shall be in the cause. _____________________________ Vikas Khaladkar Justice