Court File and Parties

Court File No.: CV-15-532367 Date: 2019-01-09 Superior Court of Justice – Ontario

Re: Patricia Wolfe, Plaintiff – And – Lady Dunn Health Centre, Sault Area Hospital, Dr. Stamler, Dr. Marshall, Dr. Kirby, Dr. Weinstein, Dr. Curran, Dr. Jane Doe and John Doe, Defendants

Before: E.M. Morgan J.

Counsel: Peter Carlisi, for the Plaintiff Darren Blimkie, for the Defendants, Dr. Stamler, Dr. Marshall, Dr. Kirby, Dr. Weinstein and Dr. Curran Matthew Malcolm, for the Defendant, Sault Area Hospital Gillian Wilkins, for the Defendant, Lady Dunn Health Centre

Heard: January 8, 2019

Summary Judgment

[1] This is a medical malpractice action in which the Plaintiff alleges that she incurred back injuries in 2012-13 that were not properly treated by the Defendants. The Statement of Claim was issued on July 14, 2015.

[2] The Defendants bring this motion for summary judgment under Rule 20 of the Rules of Civil Procedure. Despite the passage of 4 years since commencement of the litigation, the Plaintiff has failed to serve any expert report.

[3] The Defendants have served a number of expert reports which are on their face quite strong in stating that the relevant standard of care was met by the physicians and hospitals. Two of the Defendants’ expert reports – one from a radiologist and the other from an orthopedic specialist – also address the issue of causation. Both of those reports indicate that the Plaintiff has suffered no discernable back injury at all.

[4] As indicated, the Statement of Claim was issued in 2015. In 2016, all medical records were exchanged between the parties. Examinations for discovery were completed in May 2017. Shortly thereafter, counsel for the Defendants advised that they were contemplating a summary judgment motion and began requesting that the Plaintiff provide them with an expert report in support of her case. The record is replete with correspondence of this nature. No expert report has ever been forthcoming from the Plaintiff.

[5] One year ago, in January 2018, Defendants’ counsel advised Plaintiff’s counsel that they had received firm instructions from their clients to bring the present motion. The Defendants’ motions came before Firestone J. in civil practice court on April 20, 2018. At that time, Plaintiff’s counsel requested an adjournment in order to give him further opportunity to obtain an expert report. Justice Firestone did not want to adjourn the civil practice court date; instead, he accommodated the Plaintiff’s request by setting an extended timetable for this motion and building into it an extra 4 months for the Plaintiff to obtain the necessary expert report.

[6] Accordingly, the order of Firestone J. dated April 20, 2018 required that the Plaintiff produce an expert report by August 31, 2018. The Plaintiff did not adhere to Justice Firestone’s timetable, and now, some 9 months later (i.e. 5 months after Justice Firestone’s 4-month extension), has still not produced an expert report. Plaintiff’s counsel stresses that the failure to do so is not a result of any lack of good faith on the Plaintiff’s part, which I accept. The fact is, however, that time continues to march ahead but this case is at a standstill.

[7] Counsel for the Plaintiff now seeks another adjournment. He indicates that if he is given more time he is hopeful that he will be able to find and retain an expert to produce a report in support of the Plaintiff’s case. He has filed an affidavit of the Plaintiff in which she explains the delay, indicating that she has physical limitations which have prevented her from proceeding expeditiously with this matter. She specifically points to some further injuries that she sustained this past September, which have complicated her situation.

[8] The Plaintiff herself attended at the hearing of the motion before me and requested a chance to address the Court. I granted that request. The Plaintiff stated that her medical documentation supports her claim, but that, as described in her affidavit filed this past week, she has had too many health issues to properly address the case with an expert report. She has been working on her health needs before her legal needs, which is of course understandable.

[9] Counsel for the Defendants point out that the recent physical troubles that the Plaintiff describes in her affidavit apparently occurred in September 2018 – i.e. a month after the August 2018 deadline set by Firestone J. for serving an expert report. It does not adequately explain the inability to meet Justice Firestone’s timetable, which was itself an accommodation in light of the Plaintiff’s inability to produce expert evidence for the preceding three years.

[10] It is the Defendants’ view that the failure to serve an expert report in support of the Plaintiff’s case suggests that, in fact, no such expert report can be obtained. They submit that granting a further adjournment for the Plaintiff to try again to find an expert will only delay the inevitable dismissal of the action.

[11] It is well-established that the standard of care of a physician is not in the ordinary knowledge of the trier of fact. Expert evidence is required to establish the relevant standard of care to which a physician and hospital is to be held: Latulippe v Greenspoon, 2017 ONSC 6579, at para 27. Counsel for the Plaintiff does not take issue with that proposition.

[12] Courts have consistently granted summary judgment in medical cases where plaintiffs have failed to serve an expert report. When this occurs, there is simply nothing in the record to support the claim that a physician or medical institution has either caused the injuries in issue or fallen below the requisite standard of care. Without that evidence the Plaintiff’s claim will necessarily fail and the action must be dismissed: Da Silva v Wong, 2010 ONSC 6428, at para 4, aff’d 2011 ONCA 505.

[13] In fact, it is clear from the existing case law that the Plaintiff not only requires an expert report in order to sustain the claim at trial, but must produce one toward the beginning of the action. This is not a small detail that can wait several years until the matter is set down for trial. “The requisite expert opinion ought to be available at the front end of the litigation”: Galalae v Kingston Police Services Board, 2013 ONSC 5153, at para 42.

[14] I need not determine how close to the beginning of the litigation the Plaintiff’s expert report must be available. We are now 4 years after the issuance of the claim, the Defendants have repeatedly asked for the required expert report, and a judge sitting in civil practice court has already set an extended deadline for producing an expert report. That is more than enough time, and more than enough warning, to suggest that the Plaintiff was not only aware of the need for an expert report but that she and her counsel simply could not obtain one. Other courts have indicated that in similar circumstances, where the delay has been a matter of years and the Plaintiff was well advised of the situation, it may be inferred that no expert report has been forthcoming because none could be secured: Latulippe, at para 28.

[15] Here, not only has the Plaintiff failed to provide an expert report, but the Defendants have provided expert reports supporting their positions in defense. This is not a case where the Defendants have brought a motion to dismiss based on the Plaintiff’s lack of evidence but have otherwise been passive in their approach to the litigation. To the contrary, Defendants’ counsel have put together a strong record indicating that there is no negligence on any of the Defendants’ part: see Kueber v Royal Victoria Regional Health Centre, 2016 ONSC 3296 and 2017 ONSC 1219.

[16] In my view, this is not a proper case for an adjournment. There has been ample time for both sides to put their best foot forward, but only the Defendants have done so. An adjournment will only put off to another day an assessment of the case that can and should be made today.

[17] Although the hearing before me started with a request for an adjournment by Plaintiff’s counsel, at my invitation all counsel proceeded to make their full submissions on the merits of the motion. Having heard those submissions, and on the basis of the record before me, I have little hesitation in stating that I am in a position to fairly and justly adjudicate the dispute: Hryniak v Mauldin, [2014] 1 SCR 87, 2014 SCC 7, at para 66. I find that there is no expert evidence to support the Plaintiff’s case and that expert evidence is necessary in this kind of case. As a consequence, there is no genuine issue requiring trial.

[18] The action is dismissed.

[19] The Defendants are entitled to some costs. Counsel for each of the three sets of Defendants have submitted a Costs Outline. Counsel for the individual doctors seek a total (including HST) of just over $16,500 on a partial indemnity basis plus disbursements in the amount of $8,357.81 representing, for the most part, the cost of the expert reports. Counsel for the Lady Dunn Health Centre seek a total of just under $18,000 for the action and the present motion, and counsel for the Sault Area Hospital seek a total award of just over $12,000 all inclusive.

[20] Although counsel for the Plaintiff takes issue with the fact that Defendants’ counsel have not submitted dockets to support their requested amounts, none of those amounts should take the Plaintiff by surprise. The Costs Outline submitted by Plaintiffs’ counsel sets out a total amount of just over $19,000. Although Plaintiffs’ counsel points out that he had to respond to three motions whereas each of the Defendants had only their own motion to prepare; nevertheless, the amounts in issue are all in the same range and no one of them is beyond what the Plaintiff might expect a motion of this nature to cost: see Rule 57.01(1)(0.b).

[21] That said, I have considerable sympathy for the Plaintiff. She made submissions on her own behalf at the hearing which indicated that she has endured substantial hardship over the past few years. I would not want to add to her burden by creating an overwhelming financial hardship. Although the Defendants did nothing to increase the costs beyond what they naturally would have been, I am inclined to discount the amount awarded to them out of consideration for the Plaintiff’s situation.

[22] I will exercise the discretion granted to me under section 131 of the Courts of Justice Act to reduce the costs payable to each set of Defendants to roughly one-half the amount requested by the individual doctor Defendants. The Plaintiff shall therefore pay costs in the amount of $6,000 to each set of Defendants (i.e. $18,000 all together). In addition, the Plaintiff shall pay the individual doctor Defendants the cost of their disbursements in the amount of $8,357.81.

Morgan J. Date: January 9, 2019