Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241106 DOCKET: M55228 (COA-24-OM-0008)

Rouleau, Roberts and Favreau JJ.A.

BETWEEN

Cary Beazley Plaintiff (Moving Party)

and

Dr. Mary Johnston, Dr. James Gill, Dr. Pravin Shukle, Dr. Kalpesh Raichura, Dr. Robert Gauvreau, Dr. Lawrence Norman, Dr. Mariko Hashimoto, Dr. Mark Trecarten, Dr. Baskar Gopalan, Dr. Natalie Keses, Dr. Dean Holden, Dr. James Ward, Dr. Ellen Henry, Dr. Guy Hebert, Dr. Martin Green, Dr. Pablo Nery, Dr. Adam Nicholson, Dr. Adam Cohn, Dr. Donald Harris, Dr. Kuan Chin Chen, Dr. Elizabeth Scott, Dr. Gordan Kee, Dr. Hyman Rabinovitch, Dr. Daniel Chukwu, Dr. Kadambi Sitaram, Dr. Kari Sampsel, Dr. Getnet Asrat, Dr. Richard Moxon, Dr. Stephen Choi, Dr. Pablo Nery, Dr. Samuel Hetz, Dr. Jacinda Wong, Dr. Robert Nichols, Dr. Sunil Varghese, Dr. David Davidson, Dr. Nina Ramic, Dr. Jane Doe, Dr. John Doe, The Ontario Ministry of Health and Long Term Care, Queensway Carleton Hospital and Public Health Agency of Canada Defendants (Responding Parties)

Counsel: Cary Beazley, acting in person Andrew W. McKenna and Justin McCarthy, for the responding party physicians [1]

Heard: October 28, 2024

Reasons for Decision

[1] This is a motion to review the May 28, 2024 order of a single motion judge of this court. The motion judge dismissed Mr. Beazley’s motion for an extension of time to appeal the dismissal of his action. He argues that the motion judge made several reversible errors in determining that his appeal was so devoid of merit that he should be deprived of his important right of appeal.

[2] In his medical malpractice action, Mr. Beazley alleges that the responding party physicians were negligent because they failed to diagnose him with Lyme disease in a timely way and therefore failed to give him the appropriate treatment, causing him severe and ongoing injury. He also claims that the respondent hospital was vicariously liable for the physicians’ negligence. His action was dismissed on a motion for summary judgment.

[3] In submitting that his appeal has merit and should be allowed to proceed, Mr. Beazley focussed on the summary motion judge’s treatment of the expert evidence. He argued that the summary motion judge erred in accepting the evidence of the responding parties’ experts because those experts incorrectly opined that testing for Lyme disease is 100 percent accurate. He submitted further that it was an error for the summary motion judge to exclude his expert’s evidence on the standard of care. Finally, Mr. Beazley argued that a summary judgment motion was not the appropriate procedure to determine the complex issue of standard of care.

[4] We start with the standard of review on this review motion. It is well-established that a review of a decision by a single judge of this court is not a new hearing. The motion judge’s exercise of her discretion to refuse an extension of time to appeal is entitled to significant deference on review. The panel will only intervene if the motion judge made a legal error or misapprehended material evidence: Machado v. Ontario Hockey Association, 2019 ONCA 210, at para. 9.

[5] The motion judge applied the governing principles informing the court’s discretion to extend the time to appeal, including the overarching consideration of whether it would be in the interests of justice to grant the extension. She thoroughly reviewed the summary motion judge’s decision and Mr. Beazley’s proposed grounds of appeal. She determined that it was not in the interests of justice to allow the extension because Mr. Beazley had failed to put forward arguable grounds of appeal and she could not see any reversible error in the lower court’s decision.

[6] We do not see any legal error or misapprehension of material evidence by the motion judge nor was the exercise of her discretion to refuse the extension of time to appeal unreasonable.

[7] With respect to the particular issues raised by Mr. Beazley before us, according to the record before the summary motion judge, the responding parties’ experts did not opine that Lyme disease tests were 100 percent accurate. To the contrary, they were of the unanimous view that they were not and that a diagnosis could not be based solely on test results which, especially in the early stages of the disease, could show a false negative. For this reason, according to these experts, it was important to look at a patient’s clinical presentation. This was also the view of the expert Mr. Beazley sought to qualify.

[8] As the motion judge highlighted, here, there was no evidence from Mr. Beazley that his clinical presentation differed from that reflected in the medical records produced in these proceedings. The responding parties’ experts opined that based on the clinical presentation as reflected in those records, the responding parties did not fall below the standard of care expected of those physicians at the relevant time. Moreover, even if Mr. Beazley’s expert had been accepted by the court below, his opinion was based on a clinical presentation that was not reflected in the evidence that was properly before the court.

[9] We also see no error or unfairness in the exclusion of Mr. Beazley’s expert’s opinion. Mr. Beazley understood that he had to counter the responding parties’ expert opinion with properly admissible expert evidence. It was open to the summary motion judge to exclude his expert’s opinion because, among other issues, he had retired from the practice of medicine before the relevant period in question in these proceedings. In any event, even if his expert’s evidence had not been excluded, it would have made no difference to the result. As earlier indicated, Mr. Beazley’s expert’s view on the standard of care did not differ from that of the responding parties’ experts. However, his opinion that the responding parties had fallen below the required standard of care was undermined by his reliance on a clinical presentation that was not part of the evidentiary record before the summary motion judge. There was therefore no genuine issue requiring a trial.

[10] Ultimately, the motion judge’s refusal to grant an extension was based on her view that the proposed appeal has so little merit that it was bound to fail. The record before the summary motion judge fully supported this conclusion.

[11] The review motion is therefore dismissed, but, as the parties agreed, without costs.

“Paul Rouleau J.A.”

“L.B. Roberts J.A.”

“L. Favreau J.A.”

[1] The responding party, Queensway Carleton Hospital, took no position on the review motion.