Court of Appeal for Ontario
Laskin, Gillese and Blair JJ.A.
BETWEEN
Cherrille Franklin and Steven Franklin
Plaintiffs (Appellants)
and
Dr. Michael Tymianski, Toronto Western Hospital and Toronto General Hospital (Toronto Hospital)
Defendants (Respondents)
COUNSEL:
Edward Goldentuler, for the appellants
Erica J. Baron and Paul Fruitman, for the respondent, Dr. Michael Tymianski
Lisa Alleyne, for the respondents, Toronto Western Hospital and Toronto General Hospital
Heard: December 15, 2008
On appeal from the order of Justice Peter G. Jarvis of the Superior Court of Justice dated February 28, 2008.
APPEAL BOOK ENDORSEMENT
1The defence has not filed an expert medical report. The plaintiff has filed has filed two reports from her referring surgeon from which it may be possible to find negligence. In these circumstances we are not satisfied that the defendant has met its burden to show that there is no genuine issue for trial.
2To the extent that the motion judge decided this motion on the limitation period, that question raises an issue of discoverability that must go to trial.
3Accordingly, the appeal is allowed. The order of Jarvis J. dated February 28, 2008 is set aside, and in its place an order will issue dismissing the motion for summary judgment. The appellants are entitled to their costs of the motion and the appeal in the total amount of $15,000, all inclusive.