In our March 31, 2022 blog post, we discussed the decision in Atsaidis v. Sanford, 2022 ONSC 1690, wherein a consent adjournment of trial to permit the defendants to bring a summary judgment motion on a limitation period issue was denied by Justice D.A. Wilson. Justice Wilson scheduled the motion for two weeks prior to the commencement of trial, but declined to adjourn the trial date.
Request for Trial Adjournment
In March of 2022, the parties consented to an adjournment of the trial date to allow the defendant to bring a proposed motion for summary judgment. In her decision denying the consent adjournment, Justice D.A. Wilson declined to adjourn the trial, stating that when counsel set an action down for trial and attend at trial scheduling court to fix a trial date, the court assumes that all interlocutory matters have been completed and the action is ready for trial. Justice Wilson had not been advised of any contemplated motion to determine the limitation period at the trial scheduling court hearing. Had Her Honour been advised of the motion at that time, she indicated that the trial date would not have been booked.
Justice Wilson further commented that, given the delays due to the pandemic, trial dates are a “precious commodity”. Additionally, the Practice Directions for Toronto only allow for the adjournment of a trial date in extenuating circumstances. There was no extenuating circumstance in this case.
Justice Wilson agreed that the issue of the limitation period should be dealt with prior to the commencement of the trial. Accordingly, she schedule the motion to be heard by the trial judge during the week of May 23, 2022.
Motion for Summary Judgment
The motion for summary judgment was heard by Justice Myers on May 25, 2022. The jury trial was scheduled to begin 2 weeks later. Due to Toronto’s resource limitations, a trial judge had not yet been appointed for this case, and there was no judge available to hear the motion.
Justice Myers agreed to add the motion to his list, and heard it. He noted in his decision that “that was a mistake”.
Justice Myers noted that if the motion was allowed, and the action dismissed, and the trial date vacated, an appeal could be allowed on that basis alone. In other cases, the Court of Appeal has criticized lower courts for hearing and granting summary judgment close to trial, and allowed appeals on this basis.
The defendant’s motion required an assessment of when the plaintiff reasonably ought to have discovered her cause of action. The plaintiff alleges that she suffered a concussion as a result of the defendant’s negligence on October 30, 2013. The plaintiff did not recognize the cause of her symptoms until several months later. At issue is whether the plaintiff should have sought treatment sooner and realized earlier that her symptoms were caused by the injury on October 30, 2013.
The parties provided a set of admitted facts for the motion judge to rely on. The defendant did not cross-examine the plaintiff or her doctor on their affidavit evidence submitted for the motion.
Plaintiff’s counsel asked Justice Myers to read the plaintiff’s discovery transcript to rebut submissions made by the defendant’s counsel. His Honour felt that this highlighted the need for the parties to testify at trial. There was no evidentiary basis for Justice Myers to rely on to determine whether a party behaved reasonably.
Several questions were posed by Justice Myers, including: How definitive must a doctor be to satisfy s. 5 of the Limitations Act? and What would a reasonable person with the plaintiff’s abilities have been doing and feeling at various stages? There was nothing before him on either of these questions.
Further, the matter of what date the injuries were discovered on had several complexities, including the plaintiff’s decision to not consult a doctor for several months, and ruling out a differential diagnosis of a brain tumour.
Outcome and Reasoning
Justice Myers felt that it was not efficient or appropriate for him to make this type of assessment mere weeks before a jury trial.
Summary judgment has to be considered in the context of the interests of justice. If the issue could be resolved based on the admitted facts alone the parties would save 2 weeks of jury trial costs. But Justice Myers could not see how it was in the interests of justice, considering the litigation as a whole, to assess the limitation period issue separate from the rest of the evidence.
His Honour stated that the summary judgment motion should have been brought long ago. It was too late in March 2022, and far too late in May. Given the defendant’s delay, His Honour concluded that it was in the interests of justice, considering the litigation as a whole, to adjourn the motion to the trial judge and leave the costs to be assessed by her as well.
His Honour noted that the trial judge would be able to consider whether she can decide the motion before empanelling the jury, or whether it should be heard and considered after evidence unfolds about what the plaintiff was doing and feeling between the date of the accident and when she presented to a doctor some 4 months later. This will likely require cross-examination of the plaintiff and the doctor.
As we have seen since the practice direction came into effect, the Toronto Court is not willing to grant an adjournment of trial unless there are extenuating circumstances. As this case illustrates, a summary judgment motion, even one which could possibly dispense with the necessity of trial, is not an extenuating circumstance.
This case also provides two important takeaways with regards to summary judgment motions: the importance of not delaying in bringing the motion; and of providing a proper evidentiary record when bringing it.