Court File and Parties

CITATION: Suserski v. Nurse, 2008 ONCA 416

DATE: 20080528

DOCKET: M35328-M36176

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., DOHERTY and GILLESE JJ.A.

BETWEEN:

LYDIA SUSERSKI, PAVEL SUSERSKI, BRANKO SUSERSKI, VLASTO SUSERSKI

Plaintiffs (Appellants)

and

DR. WILLIAM E. NURSE, L.R.C.P. & s. (Ire.) F.R.C.O.G. Obstetrics and Gynecology

Defendant (Respondent)

Lydia Suserski appearing in person Pavel Suserski appearing in person Branko Suserski appearing in person Vlasto Suserski appearing in person

Sally P. Bryant and Alexandra Wilbee for the respondent, Dr. Nurse

Heard: May 23, 2008

On a motion to review the order of Laskin J.A. of the Court of Appeal for Ontario dated March 11, 2008.

ENDORSEMENT

[1] The plaintiffs ask this court to review the order of Laskin J.A. dismissing their motion for an extension of time for serving a notice of appeal.

[2] In the underlying action, the plaintiffs allege that the defendant, Dr. Nurse, negligently performed an endometrial biopsy on the plaintiff, Lydia Suserski. Glithero J. granted Dr. Nurse’s motion for summary judgment and dismissed the action.

[3] Like Laskin J.A., we would be prepared to excuse the plaintiffs’ failure to show an intention to appeal within the appeal period and their failure to account for all of the delay in bringing the motion to extend the time for serving their notice of appeal.

[4] However, we agree with Laskin J.A. that there is no possible merit to the appeal and that as a result the request for an extension must fail. The problem is that the plaintiffs did not introduce an expert’s report on the summary judgment motion indicating that Dr. Nurse fell below the requisite standard of care or that his treatment caused the injuries for which Mrs. Suserski seeks compensation.

[5] The motion judge held correctly that without evidence capable of establishing these two essential aspects of their claim in negligence, the plaintiffs’ action would inevitably fail. Indeed, the motion judge pointed out that the medical evidence that Mrs. Suserski had obtained undermined her claim.

[6] It is important to note that the plaintiffs, who have been self-represented throughout, have been repeatedly told that they require an expert’s report in order to support their position. Glithero J. adjourned the summary judgment for two months to allow them to obtain an expert report. He then dismissed the action because they had not done so and explicitly pointed out their failure in this regard.

[7] In the material filed on the motion before Laskin J.A., the plaintiffs said that they would deliver an expert report. They did not do so. As a result, Laskin J.A. dismissed the motion and pointed out very clearly that the failure to produce an expert report was fatal to the plaintiffs’ claim.

[8] To date, the plaintiffs still have not obtained an expert report.

[9] In the result, we dismiss the plaintiffs’ request to set aside the order denying them an extension of time to serve a notice of appeal.

“D. O’Connor A.C.J.O.”

“Doherty J.A.”

“E.E. Gillese J.A.”