DATE: 20040910

DOCKET: C41531

COURT OF APPEAL FOR ONTARIO

RE:

LINDA OSWALD (Plaintiff/Appellant) – and – DR. PAUL KORTAN (Defendant/Respondent)

BEFORE:

MACPHERSON and CRONK JJ.A., and LANE J. (ad hoc)

COUNSEL:

Linda Oswald

in person

Anne Spafford

for the respondent

HEARD AND ENDORSED:

September 3, 2004

On appeal from the judgment of Justice P. T. Matlow of the Superior Court of Justice dated February 19, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant argues that the motions judge erred in concluding that there is no genuine issue for trial in this case and in granting summary judgment. We disagree.

[2] The appellant’s allegations of negligence against the respondent must fail due to the complete lack of expert evidence to support the appellant’s claims concerning the standard of care and causation. Such evidence was required in this case, at least, to contradict the positive expert evidence introduced by the respondent.

[3] In addition, the appellant has no cause of action in battery against the respondent, who did not conduct the procedure in question and who, the appellant admits, never touched her.

[4] Finally, on the record before us, we are not persuaded that there is any genuine issue for trial concerning the appellant’s claim of lack of informed consent.

[5] Accordingly, the appeal is dismissed. This is not an appropriate case for an award of costs.