2013 ONSC 2760, 2013 ONSC 2760

CITATION : Eschlboeck v. Babey, 2013 ONSC 2760 COURT FILE NO.: 09-202 DATE: 20131005 SUPERIOR COURT OF JUSTICE - ONTARIO RE: NICOLE ESCHLBOECK, JOHANN ESCHLBOECK, PETRA ESCHLBOECK and JOHANN MARKUS ESCHLBOECK Plaintiffs v. DR. KENNETH BABEY Defendant BEFORE: CONLAN J. COUNSEL: B. Cameron, for the Plaintiffs B. Shaw, for the Defendant REASONS FOR DECISION ON MOTION Conlan J. The Issue [ 1 ] Should the Court grant an adjournment of this medical malpractice civil jury trial scheduled to commence in Owen Sound in the first week of June 2013? [ 2 ] The Defendant doctor moves for the adjournment.

The request is opposed by the Plaintiffs. [ 3 ] This Motion was heard in Owen Sound on May 9, 2013. I reserved my decision. [ 4 ] I am grateful to counsel for their succinct submissions and their thorough written materials including the Motion Records, Facta and Books of Authorities. The Basic Facts [ 5 ] The Plaintiffs’ case alleges, in essence, that the Defendant doctor’s professional negligence caused the Plaintiff, Nicole Eschlboeck, to be severely brain injured. Several millions of dollars are claimed in damages. [ 6 ] The action is nearly four years old.

[ 7 ] In March 2012, the action was placed on the civil jury trial sittings commencing the first week of June 2013. That was done on consent. [ 8 ] The June 2013 trial sittings are three weeks in length. It is common ground that three weeks are woefully inadequate to complete the trial. The new trial estimate is now at least four weeks but potentially, and more realistically in my view, six to eight weeks.

The Positions of the Parties [ 9 ] Briefly stated, the Defendant submits that the trial ought to be adjourned for one or more of the following four reasons: His trial counsel is not available because of a judge-alone Superior Court trial in Newmarket; a key defence expert is not available to testify for medical reasons; the Defendant needs additional time to properly respond to further experts reports delivered by the Plaintiffs, some of which may have been delivered late; and it is not in the interests of justice to commence the trial in June 2013 when there is no prospect of completing it. [ 10 ] The Plaintiffs argue that none of those reasons is sufficient to adjourn the trial.

Further, it is submitted that the Plaintiffs deserve to have their case tried with reasonable dispatch and as already scheduled, on consent. Analysis The Unavailability of Trial Counsel for the Defendant [ 11 ] This argument has no merit. It is dismissed. [ 12 ] Clearly, this jury trial was scheduled before the new trial date was arrived at in the other matter, judge-alone, that preoccupies trial counsel for the Defendant. As such, the other proceeding is no reason to adjourn this trial. The Unavailability of the Defence Expert [ 13 ] This argument has little merit.

It is dismissed. [ 14 ] The Defence has known for some time that Professor Pesando, economist, is unavailable for trial due to health issues. There has been more than ample time for the Defence to make alternative arrangements.

The Need for the Defendant to Respond to Further Experts Reports Delivered by the Plaintiffs [ 15 ] This argument has more than a little merit, however, taken alone it does not justify an adjournment of the trial. [ 16 ] I am satisfied that the vast majority of these further experts reports commissioned on behalf of the Plaintiffs were served on counsel for the Defendant in accordance with the timelines provided for in the Rules . [ 17 ] More important, there is no argument that the Defendant cannot properly respond to those reports prior to the commencement of the trial or, at the very least, by not long after the trial begins.

With the undertaking by the Plaintiffs that they will not make a fuss about responding materials from Defence experts provided those are delivered to counsel for the Plaintiffs before the Defence experts testify, this problem is more illusory than anything of real substance. The Fact that the Trial Cannot be Completed During the June 2013 Sittings [ 18 ] This is a problem. [ 19 ] The trial time estimate has ballooned considerably. Unquestionably, it cannot be completed in three weeks. I am the scheduled trial Justice. This is a relatively small jurisdiction with only one full-time Superior Court Justice.

At this late stage, it is not possible for me to simply continue the trial beyond the three weeks sittings until it is done. At this late stage, it is not possible for me to expand the duration of the sittings. [ 20 ] A key consideration is whether there is anything to suggest that the Plaintiffs will suffer non-compensable prejudice if the trial is adjourned: Graham v.

Vandersloot , 2012 ONCA 60 , at paragraph 9 . [ 21 ] There is nil reliable evidence before me that they will. [ 22 ] And, although prejudice may be inferred from a lengthy adjournment, as the Local Administrative Justice I undertake to give this matter some priority. [ 23 ] In fact, I conclude that prejudice to the Plaintiffs is more likely if the matter proceeds before a jury in bits and pieces due to its inevitable non-completion during the June 2013 sittings. Proceeding in that fashion is surely not in the interests of justice. Conclusion [ 24 ] Somewhat reluctantly, I grant the Defendant’s Motion.

The trial shall be adjourned. [ 25 ] The matter shall be spoken to at the Assignment Court in Owen Sound at 10:00 a.m. on June 3, 2013. [ 26 ] In the meantime, I direct counsel to immediately contact the Office of the Regional Senior Justice in Brampton to secure the earliest possible fixed trial date, whether with me or another Justice. I recommend that a minimum of six weeks be requested. [ 27 ] Alternatively, if there is any agreement on behalf of the parties to have this matter tried without a jury, please contact me

through the Trial Coordinator in Owen Sound. It may be that I can offer the parties some trial dates sooner than what the earliest fixed trial date would be with a jury, although in more than one block of time. [ 28 ] If counsel wish to address me on the issue of costs, they may contact the Trial Coordinator in Owen Sound to arrange for a teleconference in that regard. [ 29 ] There will be no costs ordered in favour of the Defendant.

Although the doctor was successful on the Motion, it was not brought in a timely manner and not heard by the end of April 2013 as ordered by Price J. at the pretrial conference in February 2013. ___________________________ Conlan J. DATE: May 10, 2013 CITATION : Eschlboeck v. Babey, 2013 ONSC 2760 COURT FILE NO.: 09-202 DATE: 20131005

SUPERIOR COURT OF JUSTICE - ONTARIO RE: NICOLE ESCHLBOECK, JOHANN ESCHLBOECK, PETRA ESCHLBOECK and JOHANN MARKUS ESCHLBOECK Plaintiffs v. DR. KENNETH BABEY Defendant BEFORE: CONLAN J. COUNSEL: Mr. B. Cameron, for the Plaintiffs Mr. B. Shaw, for the Defendant REASONS FOR DECISION ON MOTION Conlan J. DATE: May 10, 2013