) ) AVA GRACE DUGGAN, a minor by her Litigation Guardian, Alyson Michelle Duggan, ALYSON MICHELLE DUGGAN personally, BRAD DUGGAN v. MARY ANN, 2017 ONSC 7340

CITATION : Duggan v. Lakeridge Health Corporation, 2017 ONSC 7340 OSHAWA COURT FILE NO.: 86009/13 DATE: 20171207 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) AVA GRACE DUGGAN, a minor by her Litigation Guardian, Alyson Michelle Duggan, ALYSON MICHELLE DUGGAN personally, BRAD DUGGAN and MARY ANN DUGGAN Plaintiffs – and – LAKERIDGE HEALTH CORPORATION, DR. PADAMJIT SINGH, DR. GRAHAM FINCH, DR. WILMA WHITING, DR. MAHMUD ALMADANI, STELLA ROSTAMIAN, MARIE ROLLAUER, H. PRENZELL, G. WOODHOUSE, LISA GORSKI, JOHN DOE AND JANE DOE Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Mr. Colangelo, for the Plaintiffs Ms.

Spafford, for the Defendant, Dr. Padamjit Singh ) ) ) HEARD: November 3, 2017 REASONS FOR DECISION EDWARDS j. : Overview [ 1 ] Relying on Rule 51.06 and Rule 20 the Plaintiffs move for an order requiring the Defendant, Dr. Padamjit Singh (Singh), to make a further advance payment of not less than $600,000 to provide for the cost of care for the minor Plaintiff Ava Grace Duggan (Ava). In this medical malpractice action Singh has already admitted liability, and on September 21, 2015 Dr. Singh made an advance payment of $300,000. Ava is severely disabled with cerebral palsy that was caused at the time of her birth.

It is acknowledged by Singh that she breached the standard of care in the delivery of Ava, and that such breach caused Ava to suffer neurological impairment. [ 2 ] In my capacity as the case management judge I am also aware that on November 25, 2015, the then Defendant Lakeridge Health Corporation paid $500,000 in consideration for a dismissal of the action as against the hospital.

I am also aware in my capacity as the case management judge that in May 2016 Singh, through the Canadian Medical Protection Association (CMPA), paid $1,000,000 as an advance against the total judgment that might ultimately be awarded in this matter.

As such, to this point in time $1,800,000 has been essentially advanced to provide for Ava’s needs pending the completion of the trial. [ 3 ] Having conducted a number of pre-trials and being aware of the various damage reports that have been commissioned by both sides, no one can dispute that Ava’s damages will be significant and well in excess of the $1,800,000 that has already been paid. While there may be a dispute with respect to the level of care that Ava may need in the future, there is little dispute that she will have significant needs and that those needs are ongoing.

[ 4 ] In May 2016, the Plaintiffs brought a motion for partial

summary judgment. The Plaintiffs argued at that time that they should be entitled to partial

summary judgment on the basis of the quantum of damages reflected in the reports of Singh’s various litigation experts. The Plaintiffs’ case would continue to trial for the difference between the assessed value of the Plaintiffs’ damages, as advanced by the Plaintiffs through their experts, less the amount that would have been awarded by way of partial

summary judgments, as reflected through Singh’s experts. [ 5 ] I declined to award partial

summary judgment as there was going to be little in the way of any savings as far as court time, given that the trial judge would inevitably have to hear the evidence of Singh’s experts to provide a point of comparison with the evidence of the Plaintiffs’ experts. I was also concerned that there was always the potential for the losing party on the motion for

summary judgment to appeal my Ruling, resulting in the potential delay of the trial which was then scheduled for November 2016. [ 6 ] In addition to the Plaintiffs’ motion seeking partial

summary judgment, my reasons dismissing that aspect of the motion also dealt with a request for a further defence medical examination of Ava and a further examination for discovery of the Plaintiffs. Singh’s motion in that regard was successful. [ 7 ] On August 22, 2016, the Plaintiffs delivered a notice of motion seeking leave to appeal my decision of August 11, 2016. Subsequent to the Plaintiffs’ motion seeking leave to appeal, the Plaintiffs also served on September 9, 2016 a series of interlocutory motions, which included a motion to remove Lerners LLP as the lawyer of record for Singh.

These various motions had the inevitable result of delaying the November 2016 trial. [ 8 ] I conducted a further pre-trial on this matter on November 9, 2016. The pre-trial was unsuccessful. The trial was adjourned to November 2017. [ 9 ] In January 2017, the Plaintiffs abandoned their motion to remove Lerners as lawyers of record, and also abandoned their motion seeking leave to appeal my decision of August 11, 2016.

If these motions had not been advanced by the Plaintiffs the trial in November 2016 likely could have proceeded and the motion presently before me would have been redundant. [ 10 ] One of the many needs that Ava has is a home that is modified to accommodate her various physical needs. It was ultimately decided that the Plaintiffs would purchase a home and the necessary accessibility modifications would be submitted to me for approval.

This took place by way of an Interim Guardianship Order dated April 24, 2017, which resulted in the purchase of a home that closed on May 1, 2017. [ 11 ] The necessary renovations for the home were approved by the Children’s Lawyer and this court pursuant to the order of Boswell J. dated June 23, 2017. The budget for the purchase of the home and the necessary modifications total $1,250,000. The home modifications are expected to be completed by the end of November 2017. [ 12 ] As part of the order that I made on August 11, 2016, Ava was to be assessed by Singh’s occupational therapist in Ava’s home.

That assessment can not now take place until the completion of the home modifications. The delay in the assessment by Singh’s occupational therapist necessitated - at least in part by the delay in the completion of the home and home modifications for Ava, has resulted in a further delay in the trial of this matter that had been adjourned to November 2017. [ 13 ] The trial of this matter will not now take place until some time either in the May 2018 sittings or the November 2018 sittings.

Given this delay, the Plaintiffs argue that the needs of Ava will not be met out of the $1,800,000 that has been advance paid by Singh and the settlement funds from the hospital. It is argued that she has ongoing needs that necessitate the further funds sought in this motion for partial

summary judgment. In that regard, counsel for Singh points out that of the $1,800,000, $250,000 of the hospital settlement was allocated to Alyson and Mary Ann Duggan as opposed to Ava. Position of the Plaintiff [ 14 ] Counsel for the Plaintiff argues that between now and when the trial will take place there is a demonstrated need for ongoing care, as reflected in the report of September 6, 2017 prepared by Beverlee Melamed, Ava’s occupational therapist and case manager.

The ongoing care includes speech therapy, occupational therapy, physiotherapy as well as a personal support worker to assist with self- care grooming, feeding, hygiene, toileting, safety, mobility, access in the community and structured exercise programs. It is noted in the report from Ms. Melamed that Ava has derived significant benefits from the treatment which she has been provided, at least in part through the monies that have been advanced on behalf of the Defendants. It is also noted in the report of Ms.

Melamed that if Ava had not received the additional care that she has received through the advances, that Ava likely would have regressed significantly. Position of the Defence [ 15 ] Counsel for Singh argues – at least in part, that there is no admissible evidence before the court with respect to Ava’s need for ongoing care and the cost for such care. In that regard, it is argued that the report of Beverlee Melamed is only before the court as an attachment to an affidavit filed by one of the Plaintiff’s lawyers.

Because the report was only appended as an exhibit, it is argued on behalf of the defence that it was unable to cross-examine Ms. Melamed on a number of crucial points. [ 16 ] By way of an example of where the defence questions the opinion of Ms. Melamed they refer to her recommendation that a privately funded educational assistant be hired on a one-for-one support basis within her school, at a cost of approximately $61,000 between September 2017 and December 2018. The defence will argue that Ava is already assisted by two educational assistants at her school who provide support on a daily basis and as such Ms.

Melamed’s recommendation is not necessary. [ 17 ] The defence also points to the fact that Ms. Melamed recommends, what is described by the defence as an extraordinary amount, approximately $277,000 for personal support worker services between the time of the hearing of the motion and the end of 2018. In essence, Mr. Colangelo argues that there is no genuine issue for trial that Ava will require an awake caregiver at all times, including overnight. The defence will argue that overnight care is not required to manage Ava’s needs and that this issue will be “vigorously contested at trial”.

[ 18 ] While there is no dispute that Ava has significant needs encapsulated as part of her claim for future care costs, the defence does not concede the extent of the care reflected in the various reports filed by her lawyer in support of Ava’s claim. There is no concession at this time with respect to what the cost of care will ultimately be at trial. The defence has retained their own future care expert, Angela Fleming, who will be conducting a second assessment of Ava as required by my earlier order of August 2016. One can anticipate Ms. Fleming may not agree with all of Ms.

Melamed’s recommendations. [ 19 ] In addition to the procedural question of whether or not the Plaintiffs have properly addressed the evidence of Ms. Melamed, the defence also argues that the Plaintiffs require leave of the court pursuant to Rule 48.04 to bring their motion. Because the defence takes the position that the report of Ms. Melamed is not properly before the Court it follows that there is no evidence before the court to support Ava’s motion for partial

summary judgment and as such the motion should be dismissed. Analysis The Evidence Before the Court - Ms. Melamed’s Report [ 20 ] Plaintiffs’ counsel has argued that the report of Ms. Melamed is properly before the court, because notice was given by Plaintiffs’ counsel that the report of Ms. Melamed would be before the court pursuant to s. 52(2) of the Evidence Act (The Act). The notice of motion and the affidavit of Plaintiffs’ counsel both refer to the fact that the Plaintiffs would be relying upon s. 52(2) of the Act . [ 21 ] Plaintiffs’ counsel relies on a recent decision of Kristjanson J. in B. (R.) v.

S. (E.) Litigation Guardian , 2017 ONSC 7866 , where the question of the admissibility of an expert’s report was raised by the defence in the context of a

summary judgment motion. Plaintiffs’ counsel had served the expert’s report well prior to the motion, together with a notice to rely on medical reports under s. 52 of the Act . Plaintiffs’ counsel had also advised defence counsel of their intention to rely on the particular expert’s report as evidence at the

summary judgment motion, pursuant to the s. 52 notice. When the matter was in civil practice court before McEwen J., he had endorsed the record that “expert reports will be filed and the parties waive cross-examination of experts”. [ 22 ] Dealing with the question of whether or not the particular expert’s report was properly before the court, Kristjanson J. at paras. 56 and 57 stated: The parties thus waived cross-examination of experts at the time that the defendant was in possession of the Seatter Report, and had been given notice that the plaintiff would be relying on the Seatter Report on the

summary judgment motion. Given the service of the

section 52 Evidence Act notice for the purposes of the

summary judgment motion, the Form 53 Acknowledgment, and the waiver of cross-examination, I find that the Seatter Report is admissible for the purposes of the

summary judgment motion. [ 23 ] The issue of how experts’ reports should be before the court on a

summary judgment motion was also addressed by Tausendfreund J. in Maracle v. Mascarin , 2016 ONSC 537 , where the notes and opinions of a particular doctor were served by the Plaintiffs, attached to the affidavit of the Plaintiff (as opposed to an affidavit of the doctor). The records of the doctor were also attached to later affidavits filed by the Plaintiff, but again not the affidavit of the doctor. Tausendfreund J. noted at para. 38 of his Reasons that if the Defendant had been so inclined, they could have sought to examine the doctor under Rule 39.03 as a witness before the hearing of the pending

summary judgment motion. Tausendfreund went on at para. 39 to note: I also note that the records and notes of Dr. Campbell are admissible as business records made in the usual and ordinary course of a business under s. 35 of the Evidence Act and under s. 52 of that Act as a report obtained by a party to an action signed by a physician and with leave of the Court. [ 24 ] With that determination Tausendfreund J. came to the conclusion that the notes, records and opinion of the doctor were admissible before him on the Plaintiffs’ motion seeking

summary judgment. [ 25 ] The admissibility of an expert’s opinion where s. 52 of the Act is invoked was addressed before Emery J. in Doran v. Melhado , 2015 ONSC 2845 . The case before Emery J. in Doran did not involve a motion for

summary judgment and did not address the question of how evidence should be before the court from an expert. Nonetheless the comments of Emery J. are noteworthy, insofar as they deal with whether a medical practitioner can file a report under s. 52 of the Act to give opinion evidence as a litigation expert in written form. [ 26 ] Section 52(2) is noteworthy insofar as it contemplates the admissibility of a medical report, as evidence in the action “with leave of the court”.

A medical report served pursuant to s. 52(2) of the Act is not automatically admissible simply because the report has been served with proper notice. Leave of the court is still required. [ 27 ] Emery J. in Doran noted the interrelationship between Rule 53.03 of the Rules of Civil Procedure (the Rules) and s. 52(2) of the Act . Given the interrelationship, Emery J. held at para. 41: The gatekeeper function would be removed from the trial judge if leave were given to simply file the report of any medical practitioner relied upon as a litigation expert under

section 52. In my view, it would be contrary to the cardinal principal of impartiality and to the letter of rule 53.03 (2.1) that a medical practitioner called as a litigation expert, as distinct from a participant expert, should be considered the witness of one party or another upon the filing of a report giving his or her opinion: Foster v. Hoerk.

I therefore conclude that because rule 53.03 contemplates that an expert witness is required to attend and give his or her opinion evidence at trial, it would be inappropriate for this court to grant leave for the reports of a medical practitioner proffered as a litigation expert to be filed and relied upon as that medical practitioner’s evidence… [ 28 ] While the comments of Emery J. with respect to s. 52(2) of the Act are made in the context of a trial decision, I see no reason why those comments do not equally apply to a motion for

summary judgment where the effect of a successful

summary judgment motion

is the same as a judgment at trial. [29] I note as well that the whole question of whether an expert’s report appended to an affidavit - other than that of the expert, hascome in for some considerable judicial criticism. In Huang v. Fraser Hillary’s Ltd. et al., 2015 ONSC 7645, Corthorn J. at para. 36referenced this issue as follows: The defendant did not rely on any cases in support of his criticism of the plaintiff’s reliance on experts’ reports in the form of exhibitsattached to the plaintiff’s affidavit.

There is, however, an abundance of case law in which my colleagues of this Court are critical of aparty appending an expert’s report as an exhibit to an affidavit in the name of someone other than the expert. See: Danos v. BMWGroup Financial Services Canada, 2014 ONSC 2060 ; Toronto Dominion Bank v. Schrage (2009), 65 B.L.R. (4th) 277 (Ont.S.C.); and Beatty v. Waterloo (Regional Municipality), 2011 ONSC 3599 ; 85 M.P.L.R. (4th) 269 (“Beatty”). [30] While both parties addressed how the report of Ms.

Melamed was before this court, ultimately I do not decide that issue byreference to the application of s. 52(2) of the Act, nor by reference to the case law relied upon by the defence, particularly the decision ofEmery J. in Doran. Nonetheless I am of the view that the proper means by which any expert’s report should be placed before the courton an interlocutory motion, particularly a motion for

summary judgment, is to require such report to be appended to an affidavit of theexpert together with the expert’s curriculum vitae thus ensuring that there has been compliance with Rule 53.03 of the Rules. As itrelates to the report of Ms. Melamed, I do take note of the fact that the report itself is before this court but not her C.V., nor a Rule 53.03certificate. [31] For me, however, to simply disregard the opinion evidence of Ms. Melamed, would be to disregard the entirety of theknowledge that I have of this case in my capacity as the case management judge.

All of the Plaintiffs’ expert evidence has been beforeme, together with the expert evidence of the defence in one form or another, during the course of my involvement in this matter as thecase management judge. Were I to disregard the opinion evidence of Ms. Melamed, as reflected in her report of September 6, 2017,simply because there has been non-compliance with the procedural requirements of s. 52(2), specifically the requirement that leave of thecourt be required, and because there has not been strict compliance with Rule 53.03 in terms of the filing of Ms.

Melamed’s C.V. , wouldin my view fail to give effect to Rule 1.04 of the Rules that requires that the rules be liberally construed to ensure “the just, mostexpeditious and least expensive determination of every civil proceeding on its merits”. I have therefore determined that the report of Ms.Melamed is properly before this court, and the sole remaining issue is whether or not this court should grant partial

summary judgment. Partial

Summary Judgment [32] The Plaintiffs’ motion seeking partial

summary judgment, heard by this court on May 19, 2016, was dismissed. Since therelease of those Reasons the Court of Appeal has released its decision in Butera v. Chown Cairns LLP, 2017 ONCA 783, whichaddresses the whole question of when, if at all, partial

summary judgment is appropriate. In the decision of Pepall J.A.¸ the Court ofAppeal at para. 26 reviews the pre-Hryniak appellate jurisprudence as it relates to partial

summary judgment. In this regard, it is notedby reference to an earlier decision of the Court of Appeal in Corchis v. KPMG, Peat Marwick Thorne, 2002 CanLII (ON CA), that partialsummary judgment should only be granted in the clearest of cases “where the issue on which judgment is sought is easily severable fromthe balance of the case. If this principle is not followed there is a very real possibility of a trial result that is inconsistent with the resultof the

summary judgment motion on essentially the same claim”. [33] For a number of reasons the caution that had been expressed by the Court of Appeal in Corchis, pre-Hryniak, was noted byPepall J.A. in Butera, to be equally applicable in the post-Hryniak era. First of all, it was noted that a motion for partial

summaryjudgment could result in the delay of the main action, a concern that I had raised in my Reasons denying the Plaintiffs earlier motion forpartial

summary judgment. The Court of Appeal in Butera also noted that a motion for

summary judgment can be very expensive, andthat the significant time and effort spent by the court in dealing with a motion for partial

summary judgment involves an expense thatultimately does not dispose of the action. Finally, it was noted that on a motion for partial

summary judgment the record that would beavailable to the court may not be as expansive as the record that will ultimately be before the court on a trial, thus possibly raising thedanger of inconsistent findings. [34] Because of these concerns the Court of Appeal in Butera made it quite clear that a motion for partial

summary judgmentshould be considered to be “a rare procedure”, and a procedure “that is reserved for an issue or issues that may be readily bifurcated fromthose in the main action, and that may be dealt with expeditiously and in a cost effective manner”. [35] The issue of partial

summary judgment had also been dealt with by the Court of Appeal in an earlier decision of Osborne J.A.,Ford Motor Co. of Canada v. Ontario Municipal Employees Retirement Board, (ON CA), [1997] O.J. No. 4298,where at para. 63 and 64 the court concluded: In my opinion, the scope of the partial

summary judgment provisions of Rule 20.01(1) and (3) should be defined and limited bythe purpose of the rule as set out in Ungerman and Jockey Club. What is, and is not, a genuine issue for trial is central to the operation ofRule 20. Apart from cases where there is an admission, access to a partial

summary judgment was intended to remove from the trialprocess issues that would otherwise have to be resolved at trial. Here, the minimum amount at which fair value could be fixed is not atrial issue at all. The trial issue is fair value, not minimum fair value. In my view, determining minimum fair value for partial

summaryjudgment purposes causes delay and adds to the cost of litigation (the

summary judgment motion). There is no offsetting benefit such asshortening the trial, except in providing the dissenting shareholders with an advance payment that may be higher or lower than fair valuedetermined by the court. It seems to me that had the Legislature intended that Rule 20 be used to grant partial

summary judgment based on the probableminimum value of a plaintiff’s claim, or plain need, it would have said so. I do not think Rule 20 was intended to serve that purpose. Ifthe Legislature wants to establish a general payment in advance scheme it can easily do so. I note, however, that to date legislative actionin this area has been modest.

Section 256 of the Insurance Act (which applies only to automobile claims) does provide for advancepayments in automobile accident cases. It does not, however, give the inured plaintiff the right to demand a payment in advance. Itsimply gives the automobile insurer the right to make and receive the appropriate credit for (a release) a voluntary payment made before

judgment. [ 36 ] Since the release of the Court of Appeal’s judgment in Ford Motor Co ., Rule 20 has not been amended in such a way as to allow for the court to award partial

summary judgment for the “probable minimum value of a plaintiff’s claim”, nor for “plain need”. In that regard, it is worth noting that there is a provision in the English Rules of Civil Procedure that allows the court to make an order for an interim payment.

Rule 25.7 of the Civil Procedures Rules , 1998 UK Statutory Instrument 1998, NO. 3132 (L. 17) provides: The court may make an order or an interim payment only if: (c) …it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for interim payment. [ 37 ] While it may be seen by some that the English rule quoted above might be desirable in Ontario, such a rule at the present time does not exist. [ 38 ] The Court of Appeal in both Ford Motor Co . and its recent decision in Butera make it abundantly clear that motion judges facing motions for partial

summary judgment should only grant such relief in the rarest of cases.

The question I have to decide is whether this case is one of those rarest of cases. [ 39 ] While the Plaintiffs’ experts and Singh’s experts may not agree on the level of care that Ava will require both now and in the future, I have little doubt that with the knowledge that I have of this case in my capacity as the case management judge that Ava will ultimately obtain a judgment against Singh that is significantly greater than the $600,000 that is now sought in this motion. [ 40 ] There is no doubt that the trial of this action will be delayed until at least May 2018, and possibly November 2018.

There could be further delays caused by the ultimate release of the trial judge’s reasons and the ultimate implementation of those reasons. There is also the possibility of an appeal. [ 41 ] Ava’s best interests require that she receives the medical care that she needs. Those who are involved in Ava’s care will ultimately assist this court with their opinion evidence as to what that care entails. The defence is entitled to challenge what Ava’s needs are, both now and in the future. The trial judge will hear opinion evidence from both the Plaintiff and the defence.

Ultimately the trial judge will have to determine what the cost of that care will be and make an award in Ava’s favour reflecting the present value of her care needs for the rest of her life. At the end of the day Ava should not be under-compensated for her future care needs but it also goes without saying she should not be over compensated. [ 42 ] If this court simply granted

summary judgment in the amount of $600,000 to cover the cost of Ava’s care - as recommended by the Plaintiffs’ expert between now and the end of 2018, the ongoing care needs of Ava at trial may ultimately be seen by the trial judge to be those that she has received prior to trial. The defence could possibly be prejudiced in its ability to challenge Ava’s future care needs simply because the trial judge may feel constrained by the status quo, as established by the care that she has received throughout 2018, as funded by a

summary judgment award in the amount of $600,000. [ 43 ] This court, therefore, has to balance Ava’s best interests by providing the care that her medical experts say that she needs against the right of the defence to challenge what those needs will be on an ongoing basis when this case comes to trial. [ 44 ] In an effort to achieve that balance, I am therefore going to order that Singh pay $600,000 for Ava’s present care needs, subject to the following terms:

a) The Plaintiff’s future care expert, Ms. Melamed, shall meet with the Defendants’ future care expert, Ms. Fleming, as contemplated by Rule 20.05(2)(

k) of the Rules of Civil Procedure . This meeting shall take place at a mutually convenient time and place for Ms. Melamed and Ms. Fleming, which meeting shall take place no later than January 15, 2018;

b) To the extent these experts can agree on the ongoing needs of Ava, the funding for such care shall be made out of the $600,000 that this court has ordered to be paid by the Defendant Singh; i. To the extent that the Plaintiffs’ expert and Defendants’ expert cannot agree on Ava’s ongoing needs, each expert shall set forth in writing the areas of disagreement and their reasons for disagreement. Where the disagreement relates to quantum or duration of care as opposed to the need for such care, the minimum amount of care required shall be made out of the $600,000; ii.

By way of example, if both experts agree that Ava needs the services of a personal support worker and the area of disagreement is between 24 hour care and 12 hours of care, then the cost of a personal support worker for 12 hours shall be funded out of the $600,000; iii. Where there are areas of dispute this court will deal with such areas of dispute by way of a motion in writing, to which will be appended the two experts’ reports addressing areas of disagreement.

If so advised, counsel for the defence and the Plaintiff will have the right to cross-examine the opposing expert on areas of disagreement, which cross-examination shall be limited to two hours in length. [ 45 ] If it is not obvious from these Reasons, what this court is endeavouring to do is to balance the needs of Ava against the right of the defence to challenge the quantum of damages that the trial judge will ultimately be asked to award at trial. It is equally this court’s intention to make clear from these Reasons that the guidance given by the Court of Appeal in Boutera - that motions for

summary judgment shall be granted in the rarest of circumstances, is at the forefront of the order I am now making. This is one of those rare cases where, given Dr. Singh’s admission of liability, the needs of a severely disabled child are balanced against what will, in all likelihood, be a substantial judgment against Singh.

[ 46 ] As the application of Rule 20.05(2)(

k) was not raised by either counsel at the time this motion was argued, I am prepared to convene a case conference with counsel to discuss and hopefully resolve any concerns counsel may have regarding the implementation of my order. [ 47 ] As for the question of the costs of this motion I engaged counsel in discussions with respect to costs, and Plaintiffs’ counsel indicated that if they were successful on this motion he would be seeking $5,000 in costs. Counsel for Singh indicated that she would not be seeking costs whether she won or lost.

The Plaintiffs were ultimately successful on this motion, but in my view part of the reason why this motion was required was the fact that there have been delays in the trial of this action, the cause of which delays were not because of any wrongdoing on the part of the defence. I am therefore awarding no costs of this motion. Justice M.L. Edwards Released: December 7, 2017 CITATION : Duggan v.

Lakeridge Health Corporation, 2017 ONSC 7340 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: AVA GRACE DUGGAN, a minor by her Litigation Guardian, Alyson Michelle Duggan, ALYSON MICHELLE DUGGAN personally, BRAD DUGGAN and MARY ANN DUGGAN Plaintiffs – and – LAKERIDGE HEALTH CORPORATION, DR. PADAMJIT SINGH, DR. GRAHAM FINCH, DR. WILMA WHITING, DR. MAHMUD ALMADANI, STELLA ROSTAMIAN, MARIE ROLLAUER, H. PRENZELL, G. WOODHOUSE, LISA GORSKI, JOHN DOE AND JANE DOE Defendants REASONS FOR DECISION Justice M.L. Edwards Released: December 7, 2017