Grass v. Women's College Hospital, 2007 ONCA 542

CITATION: Grass v. Women's College Hospital, 2007 ONCA 542

DATE: 20070726

DOCKET: C46985

COURT OF APPEAL FOR ONTARIO

LASKIN, MACFARLAND JJ.A. and BENOTTO J. (ad hoc)

BETWEEN:

NATALIE GRASS, a minor by her Litigation Guardian, MARILYN GRASS and the said MARILYN GRASS personally

Plaintiffs (Respondents)

and

WOMEN’S COLLEGE HOSPITAL, JANE DOE, JOHN DOE, BETH GHERSON and FAY WEISBERG

Defendants (Appellant)

Counsel:

Harry Underwood and Erica J. Baron for the appellant

Susan M. Chapman and David S. Steinberg for the respondents

J. Gregory Richards and Caroline E. Abela for the Children’s Lawyer

Heard and released orally: July 17, 2007

On appeal from the order of Justice Colin L. Campbell of the Superior Court of Justice dated March 9, 2007.

ENDORSEMENT

[1] We agree with the reasons of the motion judge and with his conclusion. We add the following.

[2] Whether the motion judge ought to have granted the amendment increasing the claim for damages or whether he should have approved the settlement made in 1998, at heart raised the same question: At the time of the motion, what was in the best interests of the child?

[3] That is the question the motion judge asked. His conclusion that it was in the best interests of the child to grant the amendment and to refuse to approve the settlement is a conclusion reasonably supported by the record before him.

[4] The basis for the amendment was the child’s increased life expectancy today compared to her life expectancy in 1998. The only evidence before the motion judge on the child’s life expectancy today was the opinion evidence of Dr. William Geisler. His opinion was that the child now has a life expectancy approximately 30 to 35 years greater than the experts considered she had when the settlement was made nine years ago. The appellant filed no contrary opinion. The appellant did cross-examine Dr. Geisler and, in oral argument, argued that in the light of that cross-examination, his opinion should be given no weight.

[5] We cannot accept that argument. In our view, the motion judge properly rejected it as well. Dr. Geisler’s opinion evidence was admissible. Thus, the cross-examination went to the weight of that opinion. The weight to be accorded his opinion is a matter for the trial judge. His opinion provided a basis for the motion judge’s order.

[6] The appellant also contended that the motion judge erred in not following the procedure outlined by the English Court of Appeal in Bailey v. Warren, [2006] E.W.C.A. 51. We do not agree with this contention. Our procedure is set out in rule 7.08 of the Rules of Civil Procedure, which the motion judge did follow. Moreover, nothing in Bailey v. Warren detracts from the principle that a motion judge must focus on the best interests of the child and exercise his or her discretion on that basis. Finally, we note that Bailey v. Warren is entirely distinguishable on its facts.

[7] We add that today the child, Natalie Grass, has outlived the life expectancy proffered by the appellant’s own expert nine years ago. By itself that would cause any judge to doubt the wisdom of approving the settlement.

[8] In summary, the motion judge had before him evidence showing that it was in the child’s best interests to grant the amendment, and no evidence showing that it was not in the child’s best interests to do so. The motion judge was therefore entirely correct to refuse to approve the settlement and to grant the amendment.

[9] The appeal is dismissed, with costs fixed at $15,000, all inclusive.

“John Laskin J.A.”

“J. MacFarland J.A.”

“M.L. Benotto J. (ad hoc)”