Court File and Parties

CITATION: Bulloch-MacIntosh v. Browne, 2015 ONSC 994

DIVISIONAL COURT FILE NO.: 608/14

COURT FILE NO.: 96-CV-114450CM

DATE: 20150213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WENDY MARGARET BULLOCH-MACINTOSH and JAMES MACINTOSH By his litigation guardian WENDY MARGARET BULLOCH-MACINTOSH Plaintiffs

AND:

GRAEME BROWNE, RICHARD EMERY, JOHN DOE, JANE ROE, MONTREAL GENERAL HOSPITAL, HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF HEALTH, DOW CHEMICAL CANADA INC. and DOW CORNING CORPORATION INC. Defendants

BEFORE: H. Sachs J.

COUNSEL: Dr. Graeme Browne, Defendant, Self-Represented J. Legge and D. Steeves, for the Plaintiffs James M. Newland and Neil G. Wilson, for the Ontario Ministry of Health and Long Term Care

HEARD: In writing

ENDORSEMENT

[1] This is a motion for leave to appeal the decision of Myers J., dated December 19, 2014, dismissing the motion of the Defendant, Dr. Graeme Browne, for summary judgment on the basis of a limitation period defence.

[2] The motion judge found that this was a fact-laden inquiry that required a trial both on the nuances of Quebec law and on the issue of what the Plaintiff knew and when.

[3] In order to succeed on this motion, Dr. Browne must demonstrate either (a) that there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and that it is, in my opinion, desirable that leave be granted; or (b) that there appears to be good reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that, in my opinion, leave to appeal should be granted (Rules of Civil Procedure, Rule 62.02).

[4] Dr. Browne submits that there have been two conflicting decision on the limitation period issue in this case – one from Master MacLeod and one from Justice Lederer. I reject this argument. Master MacLeod’s decision dealt with other proposed defendants, not Dr. Browne. Justice Lederer did not make a decision on the issues in dispute. He dealt with the matter in a scheduling context and specifically noted in his endorsement that “some inquiry should be made as to whether a motion date has been set.” That date was eventually set in front of Justice Myers.

[5] I also do not accept that there is any reason to doubt the correctness of Justice Myer’s decision that to determine the limitation period issue in this case would require a trial where evidence could be heard and credibility assessments made. Even if there were reason to doubt the correctness of Justice Myer’s decision, the issues raised in the proposed appeal do not transcend the interests of the parties nor do they involve questions of general or public importance relevant to the development of the law or the administration of justice such that leave to appeal should be granted.

[6] For these reasons, Dr. Browne’s motion for leave to appeal is dismissed.

[7] The parties may address me in writing on the question of costs. The plaintiff and the Ministry shall file their submissions on costs within 10 days of the release of this endorsement and Dr. Browne shall have 10 days to file his response. Each party’s submissions shall not exceed two pages in length.

SACHS J.

Date: 20150213