Smyth v. Waterfall et al. [Indexed as: Smyth v. Waterfall]

50 O.R. (3d) 481

[2000] O.J. No. 3494

Docket No. C33402

Court of Appeal for Ontario

McMurtry, C.J.O., Borins and Feldman JJ.A.

September 22, 2000

Civil procedure -- Summary judgment -- Genuine issue for trial -- Medical malpractice -- Limitation period defence -- Discoverability rule raising factual issue and genuine issue for trial -- Defendant's motion for summary judgment dismissed -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.01(3).

Civil procedure -- Summary judgment -- Costs -- Medical malpractice -- Limitation period defence -- Discoverability rule raising factual issue and genuine issue for trial -- Summary judgment motion to dismiss plaintiff's action unreasonable -- Plaintiff entitled to costs on solicitor and client basis -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.06(1).

Limitations -- Discoverability -- Summary judgment -- Motions judge erring in dismissal of action on basis of limitation period -- Incorporation of discoverability rule in statutory limitation periods requiring trial of issue -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.01(3) -- Health Disciplines Act, R.S.O. 1990, c. H.4 -- Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

On October 12, 1993, the defendant Dr. W performed a medical procedure on the plaintiff S, and it was alleged that due to his negligence her oesophagus was ruptured. S consulted a lawyer on September 27, 1994, and, in December 1994, the lawyer received a copy of her medical file. On October 11, 1995, S commenced an action for negligence and assault and battery. Dr. W moved for a summary judgment on the ground that S's action was commenced after the expiry of the one-year limitation period established by s. 17 of the Health Disciplines Act (now renamed Drug and Pharmacies Regulation Act) and s. 89 of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act. These sections preclude an action unless it is commenced within one year after the date when the person commencing the action knew or ought to have known the facts upon which the negligence is alleged. On the motion, it was Dr. W's position that S knew or ought to have known all the facts for her claims on October 12, 1993 or, at the latest, November 9, 1993, when she was released from the hospital. The motions judge granted Dr. W's motion without reasons. S appealed.

Held, the appeal should be allowed with costs on a solicitor and client basis.

The motions judge erred in concluding that the evidence in the record did not disclose a genuine issue for trial. The statutory provisions that established the limitation period incorporated the discoverability rule, and the issue was when S knew or ought to have known the fact or facts upon which she based her negligence claim against Dr. W so that it could be determined whether her action was commenced within the one-year limitation period. In resolving the factual issue in Dr. W's favour, the motions judge assumed the role of a trial judge. Generally speaking, it is not appropriate for a motions judge on a motion for summary judgment to resolve an issue about the application of the discoverability rule. Accordingly, the appeal should be allowed.

S was entitled to her costs under rule 20.06(1) on a solicitor and client basis. The object of rule 20.06(1) is to discourage unmeritorious summary judgment motions. The onus rests on the unsuccessful moving party to establish that the motion was reasonably brought. Focusing on the time when the motion was brought, the court must inquire whether it would be clear to the moving party, acting reasonably, on the basis of the information that it knew or reasonably ought to have known, and the authorities interpreting Rule 20, that there existed a genuine issue for trial. In the immediate case, it should have been abundantly clear to Dr. W that a genuine issue for trial existed and that a motions judge, in the proper exercise of his or her role, would be required to dismiss the motion. It followed that the bringing of the motion was unreasonable.

APPEAL from a summary judgment dismissing the plaintiff's action for negligence and assault and battery in performing a medical procedure.

Cases referred to Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219 (C.A.); Bisoukis v. Brampton (City) (1999), 1999 3825 (ON CA), 46 O.R. (3d) 417, 180 D.L.R. (4th) 577, 7 M.P.L.R. 1, 7 M.P.L.R. 1 (C.A.) [leave to appeal to S.C.C. refused August 17, 2000]; Chippewas of Sarnia Band v. Canada (Attorney General), [2000] O.J. No. 1875 (S.C.J.); Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.); DeJussel v. Hajzar, [1948] O.W.N. 468 (C.A.); Innovative Automation Inc. v. Candea Inc. (1995), 1995 7088 (ON SC), 24 O.R. (3d) 639 (Gen. Div.); Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545, 83 D.L.R. (4th) 734, 1 C.P.C. (3d) 248, 20 R.P.R. (2d) 49n (C.A.); Koschman v. Hay (1977), 1977 1116 (ON CA), 17 O.R. (2d) 557, 6 C.P.C. 243, 4 C.C.L.T. 47, 80 D.L.R. (3d) 766 (C.A.); Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 2000 16845 (ON CA), 50 O.R. (3d) 97 ante (C.A.); Novak v. Bond, 1999 685 (SCC), [1999] 1 S.C.R. 808, 63 B.C.L.R. (3d) 41, 172 D.L.R. (4th) 385, 239 N.R. 134, [1999] 8 W.W.R. 499, 45 C.C.L.T. (2d) 1, 32 C.P.C. (4th) 197; Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429, 217 N.R. 371, 30 M.V.R. (3d) 41, 12 C.P.C. (4th) 255; Rosedale Motors Inc. v. Petro-Canada Inc., [2000] O.J. No. 938 (S.C.J.); Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, 107 N.B.R. (2d) 94, 72 D.L.R. (4th) 289, 110 N.R. 200, 267 A.P.R. 94, 4 C.C.L.T. (2d) 229; Thomas v. Transit Insurance Co. (1993), 1993 8527 (ON SC), 12 O.R. (3d) 721 (Gen. Div.); Wright v. Ruckstuhl, 1954 315 (ON CA), [1955] 2 D.L.R. 77, [1955] O.W.N. 32 (C.A.) Statutes referred to Health Disciplines Act, R.S.O. 1990, c. H.4 (renamed Drug and Pharmacies Regulation Act, 1991, c. 18, s. 47(2)), s. 17 [repealed 1991, c. 18, s. 47] Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sch. 2 (Health Professions Procedural Code), s. 89 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 39.04(2)

Thomas N.J. Basciano, for appellant. Sally P. Bryant, for respondent.

The judgment of the court was delivered by

[1] BORINS J.A.: -- This is an appeal by Bernice Smyth from the summary judgment granted by Fedak J. dismissing her claim against Dr. William E. Waterfall based on his alleged negligence and assault and battery in performing a medical procedure, an oesophageal dilation, at the McMaster University Medical Centre on October 12, 1993, which resulted in the rupture of her oesophagus.

Background

[2] The respondent moved under rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for summary judgment dismissing the appellant's claim on the ground that it was commenced subsequent to the expiry of the limitation periods in s. 17 of the Health Disciplines Act, R.S.O. 1990, c. H.4 and s. 89 of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Each section precludes the commencement of an action arising out of negligence or malpractice in respect of professional services rendered "unless the action is commenced within one year after the date when the person commencing the action knew or ought to have known the fact or facts" upon which the negligence or malpractice is alleged. Although the procedure took place on October 12, 1993, the appellant's action was not commenced until October 11, 1995.

[3] The respondent's motion was supported by three affidavits sworn by Audley Trevor Evans, a senior law clerk employed by his solicitors. The respondent did not provide an affidavit, although the transcript of his examination for discovery formed part of the motion record. It would appear from this evidence that it was the position of the respondent before Fedak J. that the appellant knew of the facts upon which her claim was based immediately following the procedure of October 12, 1993, or at the latest, on November 9, 1993, when she was released from her hospitalization that resulted from the procedure.

[4] In response to the motion the appellant relied on her own affidavit, an affidavit sworn by her daughter, her examination for discovery and that of the respondent. The salient information contained in the respondent's evidence indicates that she is now 80 years of age, and was age 72 when the procedure was performed. While performing the procedure, the respondent perforated the appellant's oesophagus. The resulting complications required the appellant's hospitalization for 27 days during which she experienced periods of unconsciousness and heavy pain. Following her release from hospital she returned to her daughter's home, where she lived. She required homecare assistance for three months, followed by nursing assistance for another three months. In addition, she required medical attention on a regular basis. Her diet was restricted to liquids and soft foods. In general, her physical and mental health remained poor throughout the summer of 1994.

[5] The appellant consulted a lawyer on September 27, 1994. Although the lawyer was not retained until after the appellant obtained a legal aid certification on October 27, 1994, on September 24, 1994 he wrote to the McMaster University Medical Centre requesting a copy of the appellant's medical file. It was not sent to the lawyer until December 15, 1994. The 272- page file contained a report prepared by Dr. Waterfall on October 14, 1993, in which he described the procedure he had performed on October 12, 1993. This was the first time that the appellant, or her medical and legal advisers, had received a detailed account of the procedure. Although the appellant's lawyer was unable to obtain an expert medical opinion supporting the appellant's negligence claim until May 1998, he nevertheless issued a statement of claim on her behalf on October 15, 1995, less than one year from the receipt of her medical file from the hospital. The opinion of the appellant's medical expert, which was before the motions judge, was unrefuted.

[6] In granting the respondent's motion dismissing the appellant's claim, Fedak J. gave no reasons. He was content to endorse the motion record: "Motion granted. Costs set at $500.00 for the defendant if asked."

Analysis

[7] Although he gave no reasons, I would assume that the motions judge accepted the respondent's position that the appellant knew of the facts upon which her claim is based immediately following the procedure of October 12, 1993, or at the latest, on November 9, 1993. In accepting this position, the motions judge necessarily would have had to conclude that the evidence contained in the motion record did not disclose a genuine issue for trial concerning when the appellant "knew or ought to have known the fact or facts" upon which her claim for negligence was based. In my view, he erred in concluding that the evidence in the record did not disclose a genuine issue for trial in respect to the commencement of the limitation period.

[8] As in every motion for summary judgment, the onus rested on the respondent to establish that there was no genuine issue for trial. In this case, the issue was in respect to whether the appellant had commenced her claim within one year from when she knew or ought to have known the fact or facts upon which her claim for negligence was based, as provided by the two statutory provisions which establish the limitation period, and which incorporate the discoverability rule. The discoverability rule is a rule of fairness which provides that a limitation period does not begin to run against a plaintiff until he or she knows, or ought reasonably to know by the exercise of due diligence, the fact, or facts, upon which his or her claim is based: Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at p. 566, 151 D.L.R. (4th) 429 at p. 442. The determination of when the limitation period begins to run is one of fact.

[9] In Novak v. Bond, 1999 685 (SCC), [1999] 1 S.C.R. 808, 172 D.L.R. (4th) 385, the Supreme Court considered s. 6 of the Limitation Act, R.S.B.C. 1996, c. 266, which is a codification and enlargement of the discoverability rule. McLachlin J. observed at p. 841 S.C.R., p. 410 D.L.R. that statutory provisions intended to extend limitation periods are aimed at treating plaintiffs fairly. In Bisoukis v. Brampton (City) (1999), 1999 3825 (ON CA), 46 O.R. (3d) 417, 180 D.L.R. (4th) 577 (C.A.), leave to appeal to the Supreme Court of Canada refused, August 17, 2000, at p. 431 O.R., pp. 591-92 D.L.R., this court extracted, and applied, the following approach of McLachlin J. as a guide to the court in the interpretation of statutory provisions intended to extend limitation periods:

-- The cardinal principle of statutory interpretation is that a legislative provision should be construed in a way that best furthers its objects.

-- A provision extending a limitation period should be interpreted in a way that best furthers its goals.

-- Although the traditional interpretation of limitation statutes has reflected the interests of potential defendants, modern interpretation has become more balanced, to take into account the plaintiff's interests, by favouring a more contextual view of the parties' actual circumstances.

-- Thus, the contemporary approach is that when construing a limitation statute the plaintiff's concerns must be considered together with the defendant's need to be protected from stale claims brought by dilatory plaintiffs.

[10] Central to the application of the discoverability rule is when the plaintiff acquired, or ought reasonably to have acquired, knowledge of the facts on which her claim is based. As such, in the context of this appeal, the application of the rule requires the resolution of the factual issue of when Ms. Smyth "knew or ought to have known the fact or facts" upon which she based her negligence claim against Dr. Waterfall so that it can be determined whether her action was commenced within the one-year limitation period: Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 at pp. 170 and 172, 156 D.L.R. (4th) 222 (C.A.). As in Aguonie, the evidence before the motions judge required the resolution of the factual issue central to the application of the discoverability rule. In apparently resolving the factual issue in the respondent's favour, the motions judge assumed the role of a trial judge. Moreover, as this court pointed out in Aguonie at p. 174, "generally speaking, it is not appropriate for a motions judge, hearing a motion for summary judgment where the application of the discoverability rule is central to its resolution, to resolve this issue."

[11] Because Fedak J. failed to provide reasons for his decision, it is not known why the respondent's motion succeeded. It is not known what approach the motions judge took in his interpretation and application of the statutory provisions intended to enlarge the limitation period. Either he assumed the role of a trial judge and resolved the discoverability rule issue by making a finding of fact when Ms. Smyth knew, or through the exercise of reasonable diligence ought to have known, the facts in support of her claim against Dr. Waterfall. Or, he failed to recognize that the evidence relied on by Ms. Smyth in satisfaction of her evidentiary burden to provide evidence which raises a genuine issue for trial, as I believe it does, raised a genuine issue for trial. Whether the motions judge followed either or both of these routes, he erred. In reaching this conclusion I am mindful of rule 39.04(2) and its application to motions for summary judgment as discussed by this court in Lana International Ltd. v. Menasco Aerospace Ltd., released on September 7, 2000 [now reported 2000 16845 (ON CA), 50 O.R. (3d) 97 ante].

[12] As there will be a trial, it would be inappropriate for me to comment further on the evidence relied on by the appellant in support of her position that there is a genuine issue for trial about whether she commenced her action within the one-year limitation period stipulated by the two statutes. It is sufficient to say that the evidence relied on by the appellant, particularly the evidence which I have summarized, raises a genuine issue as to when she acquired the requisite facts and entitles the plaintiff to proceed to trial where the issue will be decided. It is also helpful to bear in mind, as Sopinka J. observed in Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311 at p. 328, 72 D.L.R. (4th) 289 at p. 300: "In many malpractice cases, the facts lie particularly within the knowledge of the defendant." I am satisfied that, in response to the respondent's motion for summary judgment, the appellant has met her evidentiary burden to support the position that her action is not statute-barred is adequately supported by evidence. I would, therefore, allow the appeal.

Failure of Motions Judge to Give Reasons

[13] It is unfortunate that the motions judge failed to provide any reasons for dismissing the appellant's claim. On many occasions this court has emphasized the desirability of trial judges giving meaningful reasons, however brief, for their decisions: see, e.g., DeJussel v. Hajzar, [1948] O.W.N. 468 (C.A.); Wright v. Ruckstuhl, 1954 315 (ON CA), [1955] 2 D.L.R. 77, [1955] O.W.N. 32 (C.A.); and Koschman v. Hay (1977), 1977 1116 (ON CA), 17 O.R. (2d) 557, 80 D.L.R. (3d) 766 (C.A.). This is a principle that applies, as well, to decisions rendered by motions and applications judges. The parties are entitled to know why the court reached its decision. Indeed, a failure to provide a reasoned decision tends to undermine confidence in the administration of justice as the absence of reasons may give the appearance of an arbitrary decision, particularly in the eyes of the unsuccessful party. As well, as this appeal illustrates, the absence of reasons makes appellate review difficult and, in some circumstances, may require a new trial or the rehearing of a motion or an application.

Costs

[14] Counsel for the appellant, relying on rule 20.06(1), asked the court to award the appellant her costs of the motion and the appeal on a solicitor and client basis if the appeal succeeded. Rule 20.06(1) states:

20.06(1) Where, on a motion for summary judgment, the moving party obtains no relief, the court shall fix the opposite party's costs of the motion on a solicitor and client basis and order the moving party to pay them forthwith unless the court is satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable.

It was the position of counsel that it was unreasonable for the respondent to bring the motion because it should have been obvious to him that there was a genuine issue for trial concerning the application for the discoverability rule.

[15] It would appear that this is the first occasion on which this court has been asked to apply rule 20.06(1). However, there are several decisions of motions court judges interpreting rule 20.06(1) and awarding the responding party costs on a solicitor and client basis when the moving party, on a motion for summary judgment, has obtained no relief. The purpose of rule 20.06(1) was considered in Thomas v. Transit Insurance Co. (1993), 1993 8527 (ON SC), 12 O.R. (3d) 721 (Gen. Div.) and in Innovative Automation Inc. v. Candea Inc. (1995), 1995 7088 (ON SC), 24 O.R. (3d) 639 (Gen. Div.).

[16] In Thomas the issue was under what circumstances the making of an unsuccessful motion for summary judgment was "nevertheless reasonable" within the meaning of rule 20.06(1). In resolving the issue the court found it helpful to consider the purpose of the rule. At p. 724, the court stated:

As for rule 20.06(1), like rule 20.06(2), its purpose is to discourage the bringing of unnecessary motions. It imposes severe cost sanctions against the moving party where a motion for summary judgment fails, but contains a discretion to relieve against the sanctions.

The court declined to award solicitor and client costs, being of the opinion that it was reasonable to make the motion as s. 258(1) of the Insurance Act, R.S.O. 1990, c. I.8, which was central to the success or failure of the plaintiff's claim, had never been judicially interpreted.

[17] In Innovative Automation, at p. 639, Belleghem J. stated: "Rule 20.06 was enacted to provide severe cost sanctions for the bringing of unreasonable motions for summary judgment." After referring to Thomas, he continued at p. 640:

In 759418 Ontario Inc. v. 690352 Ontario Ltd., unreported, June 3, 1992, Ontario Court (General Division), Kovacs J. stated that it was "intended to discourage vexatious motions."

In Shelter Canadian Properties Ltd. v. Steppe Two Inc., unreported, September 30, 1994, Ontario Court (General Division), Epstein J. found that:

The intention of the cost provisions of rule 20.06 is to provide a deterrence to bringing summary judgment motions that are "long shots".

While very useful in filtering out unmeritorious positions, these motions are usually expensive and time consuming. Accordingly, they should only be brought where there is some reasonable likelihood that something will be accomplished by the moving party.

(Emphasis added by Belleghem J.)

[18] Belleghem J. also addressed how the court should determine whether it is "satisfied" that the making of the unsuccessful motion "was nevertheless reasonable". At p. 641 he stated:

While the purpose of the moving party in bringing the application [sic] is, thus, of some relevance in determining the issue of reasonableness, the threshold test of whether or not the bringing of the motion was reasonable is whether, at the time the application [sic] was launched, there appeared to be a "genuine issue" for trial. In Zimmerman v. Banack (1993), 15 C.P.C. (3d) 293 (Ont. Gen. Div.), Ground J., dealing with a similar application to permit abandonment without costs of a summary application [sic] for judgment, looked at the evidence available to the parties as at the time the motion was made. . . .

In CIBC Mortgage Corp. v. Tarpos Holdings Inc., unreported, Ontario Court (General Division), April 7, 1995, Philp J. found that to determine whether the bringing of the motion was reasonable or not, one had to look at the situation when the motion was first made.

[19] In a recent decision, Chippewas of Sarnia Band v. Canada (Attorney General), [2000] O.J. No. 1875 (S.C.J.) in considering the application of rule 20.06(1), A. Campbell J. stated in paras. 24 and 25:

The question is not whether the arguments advanced in support of the unsuccessful motion are unreasonable in the sense that they would, if made at trial, be untenable or frivolous. The question is whether at the time the application was launched it was reasonable in all the circumstances to bring it.

The successful party does not need to show that the motion was unreasonable. The onus is on the unsuccessful party to show that the motion was reasonable.

(Emphasis added)

[20] I agree with the interpretation of rule 20.06(1) discussed in these cases. Given that the object of the rule 20.06(1) is to discourage unmeritorious motions, the onus rests on the unsuccessful moving party to establish that its motion was reasonably brought. The inquiry that the court is to make must focus on the time when the motion was brought and whether it would be clear to the moving party, acting reasonably, on the basis of the information that it knew, or reasonably ought to have known, and the authorities which have interpreted Rule 20, such as Aguonie, supra; Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545, 83 D.L.R. (4th) 734 (C.A.) and Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.), that there existed a genuine issue for trial. If it reasonably appeared to the moving party that there was no genuine issue for trial, then the motion was reasonably brought. This inquiry applies to summary j udgment motions which, like the motion in this appeal, are fact based. As cases such as Thomas illustrate, where the motion is based on a legal proposition, different considerations may apply as to whether the bringing of the motion "was nevertheless reasonable": see also Rosedale Motors Inc. v. Petro-Canada Inc., [2000] O.J. No. 938 (S.C.J.).

[21] In this appeal, the issue raised by the respondent's motion was the factual issue of whether the appellant's claim had been commenced within the time mandated by the legislation. The resolution of the issue was dependent on the application of the fact-based discoverability rule. The motion was brought on November 16, 1998. The inquiry, therefore, is whether on that date it was clear to the respondent, acting reasonably, on the basis of the information that he knew, or reasonably ought to have known, and on the basis of the authorities, that there was a genuine issue for trial respecting when the appellant knew, or ought to have known, the facts on which she had based her negligence claim. In my view, it should have been abundantly clear that a genuine issue for trial existed and that a motions judge, in the proper exercise of his or her role, would be required to dismiss the motion. It follows that as the respondent should have known that his motion stood a real risk of not succeeding because of the pr esence of a genuine factual issue, the bringing of the motion was unreasonable.

[22] It is not difficult to assess what was known to the respondent when he made the motion. By then, as the parties had been examined for discovery, the respondent was aware of virtually all of the appellant's evidence that she ultimately included in the affidavits filed in response to the motion. Indeed, it is clear from Mr. Evans's affidavit of November 16, 1998, filed in support of the motion, that the respondent was aware of the salient evidence which, in my view, clearly raised a genuine issue for trial in respect to the application of the discoverability rule. Moreover, in para. 11 of his affidavit Mr. Evans quoted the following from the appellant's examination for discovery which had been conducted on May 27, 1996:

Question 267 Ms. MacAskill: What is your response to the limitations defence?

Mr. Basciano: The plaintiff was not really that healthy until, I believe around August '94 I believe, before she actually got to my office. She was basically immobile. And we ordered the Hospital records in September of '94 and received them sometime around December of 1994. It wasn't until that time that we really knew what had happened on October 12th, 1993. As you recall, she was, she indicated she was heavily sedated, heavily medicated after the event occurred and wasn't feeling up to getting out and seeing anyone until the summer of '94. It's our position that she really didn't know the facts that formed the basis of the allegation until December 1994 and that the claim was issued nine or ten months later. It was in the one year limitation period.

[23] As it should have been obvious to the respondent when he brought the motion that it stood virtually no chance of success, it was unreasonable for him within the meaning of rule 20.06(1) to have brought the motion. The appellant, therefore, is entitled to her costs of the motion on a solicitor and client basis.

Conclusion

[24] For all of the above reasons, the appeal is allowed and the judgment of Fedak J. dismissing the appellant's claim is set aside. The appellant is entitled to her costs of the motion on a solicitor and client basis. As this appeal was necessitated by a motion which it was unreasonable for the respondent to bring, the respondent should bear the full costs of indemnifying the appellant for the expense to which she has been put by the appeal. Therefore, the appellant will have her costs of the appeal on a solicitor and client basis. Unfortunately, this court is not in a position to fix the costs. If the parties are unable to agree on the amount, the costs of the motion and the appeal are to be assessed and are to be paid forthwith.

Order accordingly.