





CITATION:
Langenecker v. Sauvé, 2011
          ONCA 803



DATE: 20111219



DOCKET: C53425



COURT OF APPEAL FOR ONTARIO



Doherty, Armstrong and Hoy JJ.A.



BETWEEN



Peter Langenecker, Joanne Langenecker, Elisabeth
          Langenecker, and Franz Langenecker



Plaintiffs (Appellants)



and



Dr. S. Sauvé
,
Dr. P. Luke
, Dr. White,
          Nurse K. Kiegel R.N., University Hospital and London Health Association



Defendants (Respondents)



Alan L. Rachlin, for the appellants

Julie Parla and Gillian Kerr, for the respondents Sauvé and Luke








Heard:  December 1, 2011

On appeal from the order of Justice
          John F. McGarry of the Superior Court of Justice dated February 16, 2011,
          dismissing the action for delay, with reasons reported at 2011 ONSC 867.

Doherty J.A.:



I

[1]

The appellant, Peter Langenecker, was seriously injured in a motorcycle
    accident in June 1994.  He was treated at the University Hospital in London,
    Ontario by Dr. Sauvé, Dr. Luke (the respondents) and others.  In June 1995, he
    sued the respondents and others alleging that their negligence had caused him
    serious and permanent injuries and disabilities.  Some 15 years later, in
    September 2010, the respondents brought a motion under Rule 24.01 seeking an
    order dismissing the action for delay.  By the time the motion was brought, the
    respondents were the only remaining defendants in the action.  The motion judge
    granted the motion and dismissed the action.  The appellants appeal.

[2]

I would dismiss the appeal.  The motion judge correctly stated the test
    to be applied on a motion to dismiss for delay.  The chronology of the relevant
    events was not in dispute.  The motion judge considered the explanations
    offered by counsel for the appellants for the various delays and he considered
    the respondents prejudice claim.  The motion judge decided that the delay was
    inexcusable.  That conclusion was reasonably open to him.  The motion judge
    also considered and rejected the submission that the nature and reliability of
    the evidence still available (medical and hospital records), and the narrow factual
    issue on which liability would turn, rebutted the presumption of prejudice to
    the defendants flowing from the long delay.  The motion judge rejected this
    submission because he found there were potential sources of evidence other than
    the medical records that were lost to the defendants through the passage of
    time.  The motion judges finding that the appellants had not rebutted the
    presumption of prejudice was not unreasonable.

II

[3]

An order dismissing an action for delay is obviously a severe remedy.  The
    plaintiff is denied an adjudication on the merits of his or her claim.  Equally
    obviously, however, an order dismissing an action for delay is sometimes the
    only order that can adequately protect the integrity of the civil justice
    process and prevent an adjudication on the merits that is unfair to a
    defendant.

[4]

The test under Rule 24.01 for dismissal of an action for delay is well
    established and is taken from English case law:  see e.g.
Saikaley v.
    Commonwealth Insurance Co. et al.
(1978), 21 O.R. (2d) 629 (H.C.);
Armstrong
    v. McCall et al.

(2006), 213 O.A.C. 229;
De Marco v.
    Mascitelli
(2001), 14 C.P.C. (5th) 384 (Ont. S.C.);
Allen v. Sir Alfred
    McAlpine & Sons, Ltd
.
[1968] 1 All E.R. 543 at 556.

[5]

The language used to describe the appropriate test varies slightly in
    the authorities.  I prefer the language of Lord Diplock in
Allen
, at p.
    556, where he described the exercise of the power to dismiss for delay in these
    terms:

It should not in any event be exercised without
    giving the plaintiff an opportunity to remedy his default, unless the court is
    satisfied either that the default has been intentional and contumelious, or
    that the inexcusable delay for which the plaintiff or his lawyers have been
    responsible has been such as to give rise to a substantial risk that a fair
    trial of the issues in the litigation will not be possible at the earliest date
    at which, as a result of the delay, the action would come to trial if it were
    allowed to continue.

[6]

The first type of case described by Lord Diplock refers to those cases
    in which the delay is caused by the intentional conduct of the plaintiff or his
    counsel that demonstrates a disdain or disrespect for the court process.  In
    dismissing cases which fall within this category, the court effectively declares
    that a continuation of the action in the face of the plaintiffs conduct would
    constitute an abuse of the courts process.  These cases, thankfully rare,
    feature at least one, and usually serial violations of court orders.  This case
    does not fall into that category.

[7]

The second type of case that will justify an order dismissing for delay
    has three characteristics.  The delay must be inordinate, inexcusable and such
    that it gives rise to a substantial risk that a fair trial of the issues in the
    litigation will not be possible because of the delay:  see
De Marco,
at
    paras. 22, 26;
Armstrong
, at paras. 11-12.

[8]

The inordinance of the delay is measured simply by reference to the
    length of time from the commencement of the proceeding to the motion to
    dismiss.  Most litigation does not move at a quick pace.  Some litigation,
    because of the issues raised and/or the parties involved, will move even more
    slowly than the average case.  It is fair to say that many medical malpractice
    actions are among those cases that move slowly.  However, even accepting that
    litigation customarily moves at a somewhat stately pace and that this kind of
    litigation can move even more slowly than most, there can be no doubt that 15
    years from the commencement of the action to the motion to dismiss constitutes
    inordinate delay.

[9]

The requirement that the delay be inexcusable requires a determination
    of the reasons for the delay and an assessment of whether those reasons afford
    an adequate explanation for the delay.  As LaForme J. explained in
De Marco
,
    at para. 26, explanations that are reasonable and cogent or sensible and
    persuasive will excuse the delay at least to the extent that an order
    dismissing the action would be inappropriate.

[10]

In assessing the explanations offered, the court will consider not only
    the credibility of those explanations and the explanations offered for
    individual parts of the delay, but also the overall delay and the effect of the
    explanations considered as a whole.  For example, in this case, the appellants
    offered a sensible and persuasive explanation for part of the lengthy delay
    in completing the discovery process, but offered little by way of cogent
    explanation for the many other lengthy delays that occurred in the course of
    the 15 years since this action was commenced.

[11]

The third requirement is directed at the prejudice caused by the delay
    to the defences ability to put its case forward for adjudication on the
    merits.  Prejudice is inherent in long delays.  Memories fade and fail, witnesses
    become unavailable, and documents and other potential exhibits are lost.  The
    longer the delay, the stronger the inference of prejudice to the defence case
    flowing from that delay:
Tanguay v. Brouse
, 2010 ONCA 73, at para. 2.

[12]

In addition to the prejudice inherent in lengthy delays, a long delay
    can cause case-specific prejudice.  In this case, the respondents led evidence
    on the motion that their expert had died in June 2009 and that counsel for the
    respondents had been unable to find a replacement.  The respondents argued that
    their inability to obtain an expert was caused by the delay in the prosecution
    of the claim and resulted in prejudice to their defence.  Clearly, if the
    appellants delay left the respondents in a position where they could not
    obtain a medical opinion in a medical malpractice case, that delay would cause
    serious prejudice to the defence.  I will return to this submission below.

III

[13]

In his reasons, the motion judge, at para. 9, correctly set out the applicable
    legal principles.  He then reviewed briefly, but accurately, the chronology and
    explanations offered for the delay.  With respect to those explanations, the
    motion judge did not address each separately, but did say, at para. 16:

[T]he plaintiff has clearly failed to move the
    action forward in an appropriate manner and I agree with the defendants that
    there has been an inordinate delay which has not been caused by any
    extraordinary events but simply the usual hurdles that must be overcome in
    prosecuting an action.

[14]

I understand the motion judge to be indicating that none of the
    explanations offered convinced him that any difficulties in moving the case
    forward went beyond the usual hurdles encountered in the prosecution of a
    claim.  Those usual hurdles could not excuse a 15-year lapse between the initiation
    of the action and the motion to dismiss.  Put differently, the motion judge
    assessed the explanations offered as amounting to no more than a description of
    the usual problems encountered by litigants (e.g. prodding an expert to provide
    a report) and did not amount to reasonable and cogent explanations for the
    inordinate delay that had occurred in this case.

[15]

The motion judges conclusion that the delay was inexcusable is one
    part fact finding and one part judgment.  Both attract deference in this
    court.  The appellants have not demonstrated that the motion judge fell into
    any factual error.  Nor have they convinced me that he acted unreasonably in
    characterizing the delay in this case as inexcusable.  By reasonable, I mean an
    assessment of the relevant facts that falls within a range of possible,
    acceptable outcomes which are defensible in respect of the facts and law:
Dunsmuir
    v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[16]

Counsel for the appellants (who was not counsel prior to the appeal)
    made his most forceful submissions when addressing the question of prejudice. 
    He argued that the ready inference of prejudice to the defence flowing from a
    lengthy delay was rebutted in this case because the relevant evidence was found
    almost entirely in the medical records which had been preserved.  He also made
    the point that the respondents had been examined for discovery many years ago and
    could refer to the discovery transcripts to refresh their memory.

[17]

In support of his submission, counsel observed that two experts, one for
    each side, had been able to give written opinions on the reasonableness of the
    doctors conduct based on the medical records.  Counsel submitted that it must
    follow that those records contain substantially the entire evidentiary story.

[18]

I do not agree that because an expert can offer an opinion based on the medical
    records that it must follow that those records contain the entire or even close
    to the entire evidentiary story.  The experts ability to offer an opinion
    based on the medical records says nothing about whether those records provide
    an accurate or complete basis upon which to assess the reasonableness of the
    respondent doctors conduct and the care they provided.

[19]

Before the motion judge, the respondents led evidence that the medical
    decisions under attack in the lawsuit were the product of ongoing discussions
    among various members of the critical care team.  This is the procedure
    normally followed in teaching hospitals such as the University Hospital in
    London.  According to the respondents evidence, these discussions would not
    necessarily be recorded in the hospital records and could have augmented or modified
    information available in those records.  The respondents argued before the
    motion judge that some of the individuals involved in these team discussions,
    including the doctor primarily responsible for the appellants care, had not
    been sued and, therefore, their recollections had not been memorialized in a
    discovery transcript.

[20]

The motion judge was persuaded that prejudice to the defence should be
    presumed from the lengthy delay.  He said, at para. 15:

In light of the type of evidence required to be led
    by the defendants, I am satisfied there is a fair presumption that their
    recollection, and those of their supporting witnesses would be severely
    impacted by the passage of some 16 years.

[21]

There was evidence to support this finding and it cannot be
    characterized as unreasonable.

[22]

On the question of prejudice, the motion judge ultimately concluded, at
    para. 16:

The plaintiff has failed to rebut the presumption of
    prejudice resulting from a delay of 16.5 years and the action is therefore
    dismissed.

[23]

I think this passage reflects the proper approach.  The lengthy delay
    itself generated a presumption (or perhaps more accurately a strong inference)
    of prejudice to the respondents ability to fully present their defence to the
    allegations.  The appellants attempted to rebut that inference by reference to
    the nature of the evidence available even after 15 years and to the fact that
    the respondents had been examined for discovery years earlier.  The motion
    judge found that the attempted rebuttal failed in the face of the respondents
    evidence as to the potential significance of testimony dependent upon witnesses
    abilities to recall statements and observations made by various persons jointly
    responsible for Mr. Langeneckers treatment during the ongoing team meetings
    held when he was in the hospital over sixteen years earlier.

[24]

Counsel for the appellants also argued that the motion judge erred in
    finding actual prejudice to the respondents flowing from the death of their
    expert witness and their inability to retain a new expert.  Counsel submits
    that the affidavit of the law clerk filed on behalf of the respondents did not
    contain any admissible evidence to support the inference of actual prejudice
    flowing from the death of the respondents expert.

[25]

The motion judge did not make any finding of actual prejudice based on
    the death of the expert and the purported inability to replace that expert.  I
    do not think he made a finding one way or the other on the validity of that
    claim.  It was not necessary for him to do so because he was satisfied that the
    presumption of prejudice flowing from the inordinate delay had not been
    rebutted and was sufficiently strong to give rise to a substantial risk that
    the respondents could not fairly present their case so long after the relevant
    events.  It is, therefore, unnecessary to decide whether the law clerks
    affidavit provided an adequate evidentiary basis for a finding of prejudice
    based on the death of the expert and the alleged inability to replace that
    expert.

IV

[26]

The motion judge applied the right test.  His fact finding and his
    assessment of those facts reveal no reversible error.  I would dismiss the
    appeal.  The respondents are entitled to their costs on the appeal, if
    demanded, in the amount of $10,300, inclusive of relevant taxes and
    disbursements.

RELEASED:
DD  DEC 19 2011

Doherty J.A.

I agree Armstrong J.A.

I agree Alexandra Hoy J.A.


