Court of Appeal for Ontario

CITATION: Franklin v. Tymianski, 2008 ONCA 850

DATE: 20081215

DOCKET: C48533

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

[1] The 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.

[2] To 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.

[3] Accordingly, 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.