DATE: 20031120

DOCKET: C35689

COURT OF APPEAL FOR ONTARIO

RE: MARTA ERDELYI (Plaintiff (Respondent) – and – LAFONTAINE RISH MEDICAL GROUP, LTD. AND SONIA LAFONTAINE (Defendants (Appellants)

BEFORE: FELDMAN, GILLESE and ARMSTRONG JJ.A.

COUNSEL: David B. Cousins for the appellants Sylvia L. Tint for the respondent

HEARD: NOVEMBER 10, 2003

RELEASED ORALLY: NOVEMBER 10, 2003

On appeal from the judgment of Justice Douglas Coo of the Superior Court of Justice dated January 15, 2001

E N D O R S E M E N T

[1] The appellant seeks to introduce fresh evidence regarding certain professional conduct by the plaintiff’s trial expert witness, some of which ultimately culminated in his plea of no contest before the Discipline Committee of the College of Physicians and Surgeons to professional misconduct resulting in a six-month suspension from practise.

[2] At the time of the trial, the Complaints Committee of the College had dismissed a complaint against the witness and no appeal had yet been taken of that decision. Therefore, nothing different could have been done at the trial of this matter in respect of his testimony.

[3] The real issue is that prior to the hearing of the appeal, the doctor pleaded no contest to misconduct by breaching an undertaking he gave to the Ministry of Health in connection with the earlier discipline proceedings. Arguably, this misconduct may have affected the favourable view the trial judge took of the expert’s evidence.

[4] We do not, however, find it necessary to decide whether to admit the fresh evidence, because we are satisfied that even if the evidence of the expert witness had not been accepted by the trial judge, the other evidence led by the plaintiff, together with the fact that the appellant led no evidence, leads us to conclude that the result on appeal would not be affected. Taking the evidence that the trial judge accepted from the plaintiff herself, from Dr. Rahal and the opinion letter of Dr. Weatherhead, there was evidence of causation, of failure to obtain informed consent of the risk, and of the trial judge’s conclusion that the plaintiff would not have taken the risk of what occurred had she been informed.

[5] Therefore the finding of liability by the trial judge, although bolstered by the evidence of the expert, was grounded in the record aside from that evidence. As the defence called no evidence, expert or otherwise, to refute the evidence of the plaintiff, it would, in our view, be inappropriate in the circumstances to set aside the findings of the trial judge in this case and to order a new trial.

[6] The appellant also asked this court to find that the trial judge erred in the quantum of damages awarded. We decline to do so. The trial judge took into account the relevant principles of law as to the assessment of damages and the plaintiff’s evidence of loss of enjoyment of life. It cannot be said that the award was outside the appropriate range in this regard.

[7] We would therefore dismiss the appeal with costs fixed at $17,000 on the partial indemnity scale.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”