



COURT OF APPEAL FOR ONTARIO

CITATION: Lattuca v. Smith, 2016 ONCA 476

DATE: 20160615

DOCKET: C61184

MacPherson, Rouleau and Pardu JJ.A.

BETWEEN

Joseph Lattuca

Plaintiff (Appellant)

and

Frank C. Smith, Gamal Kousa, John Doe, Jane Doe,
    Hamilton Health Sciences Corporation

Defendants (Respondents)

Jillian Van Allen, for the appellant

Andrew M. Porter for the respondents Frank C. Smith and
    Gamal Kousa

Logan Crowell, for the respondent Hamilton Health
    Sciences Corporation

Heard: June 9, 2016

On appeal from the judgment of Justice Dale Parayeski of
    the Superior Court of Justice, dated September 17, 2015.

ENDORSEMENT

[1]

The appellant Joseph Lattuca appeals the Order of Parayeski J. of the Superior
    Court of Justice dated September 17, 2015 dismissing his motion to extend an
    expired timetable in a medical malpractice action against the respondent
    doctors and hospital.

[2]

The motion judge applied the test from
Marché d`Alimentation Denis
    Theriault Ltee v. Giant Tiger Stores Ltd.
, 2007 ONCA 695, which directs
    that four factors should be considered when determining whether relief should
    be granted from an order dismissing an action for non-compliance with statutory
    time requirements:

(1)

any explanation for the delay;

(2)

whether there was inadvertence in missing the deadline to set the action
    down as ordered;

(3)

whether the motion seeking relief was brought promptly; and

(4)

any prejudice to the defendant(s) should the action be allowed to
    continue.

[3]

The motion judge found in favour of the appellant on the third factor
    and in favour of the respondents on the other factors. He did not grant the
    appellant an extension of time.

[4]

On appeal, the appellant contends that the motion judge did not consider
    certain relevant evidence relating to the time periods in the action and failed
    to take sufficient account of the fact that medical malpractice cases can be
    complicated and time consuming.

[5]

We do not accept these submissions. The history of delay and inactivity by
    the appellants lawyers in this case was unrelenting and inexcusable. We agree
    with the motion judge that the facts have transcended anything that
    legitimately can be described as inadvertence.

[6]

The appellant submits that the motion judge erred in her assessment of
    the prejudice factor. He says that there is no direct evidence from the
    respondent physicians concerning their ability to recall significant events and
    that most of the relevant documents from the doctors and the respondent
    hospital are obtainable.

[7]

We are not persuaded by this submission. The surgery giving rise to the
    action took place almost eight years before the motion, some undertakings
    remained unfulfilled, and many relevant documents have not been obtained.
    Moreover, with respect to the hospital, the appellant received ongoing care at
    the hospital for six months following his surgery. He interacted with many
    caregivers. Without particulars, it is difficult for the hospital to know what
    is at issue  witnesses, documents  to preserve the evidence necessary to its
    defence. Finally, it should not be forgotten that there is always stress and
    concern when professional caregivers and institutions are accused of negligence
    relating to their care of patients.

[8]

The decision of the motion judge on this discretionary matter is
    entitled to deference. We can see no error in the way he dealt with each of the
    four factors or in the way he balanced them in arriving at his ultimate
    decision.

[9]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $6,500 (doctors) and $3,500 (hospital), inclusive of
    disbursements and HST.

J.C. MacPherson J.A.

Paul Rouleau J.A.

G.
    Pardu J.A.


