Ruling attributes acceptable delay to counsel’s transition to a new firm
The Ontario Superior Court of Justice has declined to dismiss a medical malpractice action and deemed it in the interests of justice to allow it to move forward, as the plaintiffs were able to explain the litigation delay.
In Asajar v. Ali, 2025 ONSC 6388, a statement of claim dated Jan. 21, 2016 alleged a misdiagnosis and delay in the treatment of an aortic dissection of a 44-year-old patient at the defendant hospital, leading to her death on Jan. 22, 2014.
On May 31, 2016, the four physician defendants delivered a statement of defence and crossclaim. On Mar. 1, 2017, the hospital and the four defendant nurses delivered a statement of defence and crossclaim.
In July 2022, the plaintiffs’ former counsel left his firm to join Gluckstein Personal Injury Lawyers. Delays arose as he transitioned to the new firm. He served a notice of change of lawyer on Oct. 18, 2022.
After he left Gluckstein in December 2023, the plaintiffs expressed their desire for him to continue representing them at his new practice. However, he soon became ill and sought medical attention. A hospital admitted him in January 2024 and re-admitted him the following month.
On March 5, 2024, while in the hospital, he informed the plaintiffs that he could no longer represent them and suggested that they ask Gluckstein to take his place. On Apr. 15, 2024, Gluckstein served a notice of change of lawyer.
On May 10, 2024, the plaintiffs served a motion for a status hearing. The defendant physicians alleged prejudice to challenge the motion. Specifically:
- Dr. A said she did not receive a specific question about hypertension at discovery
- Dr. L argued that he did not receive a specific question about Nurse C at discovery
- Drs. K and G claimed that they did not have any direct contact with the patient
- Dr. K’s alleged involvement was limited to interpreting an electrocardiogram (ECG) after the patient had died
- Dr. G’s supposed involvement was limited to reviewing a chest X-ray following the patient’s death
Deadlines set
The Ontario Superior Court of Justice directed the action to proceed and refused to dismiss it, given the plaintiffs’ acceptable explanation for the delay. The court imposed deadlines for mandatory mediation and setting down the action for trial.
First, the court recognized that the plaintiffs explained the delay in complying with the time to serve a reply expert report, finish mediation, and set down the action for trial. The court noted that:
- The proceeding reasonably progressed from the closure of the pleadings in March 2017 to the consent timetable order in June 2022
- By June 2022, the parties had conducted discoveries and answered undertakings
- The plaintiffs served their expert reports by June 2022, except for the reply report served in August 2023
- Each year, the plaintiffs made efforts to move the litigation forward, except during the COVID-19 pandemic in 2020
The court attributed the 10-month delay in serving the reply report to the former counsel’s departure from his old firm, transition to a new firm, and receipt of the plaintiffs’ electronic file from his former firm only in October 2022.
The court noted that the plaintiffs’ former counsel was busy with his practice and more urgent matters between November 2022 and January 2023, reviewed and prepared the file for mediation and trial alongside his associate from February to April 2023, and renewed discussions with an expert regarding the reply report in April 2023.
The court attributed the delay after the service of the reply report to former counsel’s involvement in another trial, his departure from Gluckstein, his illness, and his two-time hospitalization.
Second, the court held that the plaintiffs had always meant to proceed with and prosecute the action, rather than intending to abandon it or put it on hold, and trusted their counsel to handle the litigation and move it toward trial.
The court noted that the plaintiffs’ former counsel gave regular updates regarding undertakings, the status of expert reports, and the transfer of the file.
Next, the court saw no non-compensable prejudice to the defendants, given that the plaintiffs had rebutted any presumptive prejudice.
The court acknowledged the availability of the examination for discovery transcripts, the parties’ service of the expert reports, and the preservation of all relevant medical records, including doctors’ reports and X-ray imaging.
The court also saw no actual prejudice. The court noted that key witnesses appeared to be available for trial despite the delay.
Regarding the defendants’ concerns that they had vague, fading, or nonexistent recollections of the late patient, the court pointed out that they had yet to attempt to refresh their memory.
The court explained that the defendant physicians’ affidavit evidence – alleging frustration due to the delay and the professional impact of the outstanding litigation – did not prejudice their ability to defend the action.
