Court of Appeal for Ontario

CITATION: Askar v. Morton, 2009 ONCA 200

DATE: 20090305

DOCKET: C49380

Winkler C.J.O., Goudge and Epstein JJ.A.

BETWEEN:

Almis-Houssein Askar, a minor by his litigation guardian, Fozia Aboubaker Houssein, Fozia Aboubaker Houssein in her personal capacity, Ahmed Askar, Nadia Askar, Idile Askar, Hanane Askar and Ahlane Askar, minors by their litigation guardian, Fozia Aboubaker Houssein

Plaintiffs (Appellants)

and

James Morton, Bruce Hamilton, Krikor Greg Tatiossian, U-Need-A-Cab Limited, Lloyd’s, Lloyd’s of London, Lloyd’s Lloyd’s of London, and Lloyd’s Montreal Quebec

Defendants (Respondents)

Counsel:

Khalid I. Baksh and Sharon Hassan, for the appellants

Ian F. Leach, for the respondents Bruce Hamilton, Krikor Greg Tatiossian & Lloyd’s

Kerri Kamra, for the respondent, U-Need-A-Cab Limited

Morgan A. MacDonald, for the respondent, James Morton

Heard: February 13, 2009

On appeal from the final summary judgment of Justice S. Rogin of the Superior Court of Justice dated July 30, 2008.

ENDORSEMENT

[1] This is a tragic case. There is no doubt that the infant appellant suffers from a very serious medical condition that poses enormous hardships on his family. However, to succeed in recovering damages from the respondents for that condition, the appellants must show that the condition is their fault. To do that, the appellants must show that the condition was more probably than not caused or contributed to by a motor vehicle accident in which the infant appellant’s mother was involved while she was pregnant and which involved vehicles for which the respondents are legally responsible.

[2] This is an appeal from the dismissal of the action on a motion for summary judgment. The motion judge found that the appellants had shown no genuine issue as to causation that required a trial.

[3] The appellants argue in this court that the expert opinions provided by the respondents count for little because they were not sworn and were merely exhibits to an affidavit of their solicitors. We cannot accede to that argument at this stage. The appellants did not seek to test these opinions by way of examination at any point in the proceedings. Even now what is contested is only their weight not their admissibility. This ground of appeal must fail.

[4] As to the causation question, counsel for the appellants concede that they have no expert medical opinion saying that the infant appellant’s medical condition was probably caused or contributed to by the motor vehicle accident or even some other external trauma to the mother during her pregnancy. All the expert medical opinions relied on by the appellants put that at no more than one possibility along with others, such as a spontaneous occurrence.

[5] Only one doctor, a behavioural paediatrician, who acknowledges his view to be somewhat peripheral to his own expertise, felt there was likely an association between the child’s condition and the accident. This view does not survive the good hard look required on such a motion, particularly when it appears that on the motion, counsel acknowledged that this opinion, alone, was not enough.

[6] Nor can the epidemiology in the medical literature referred to by the appellants serve to establish causation in this case.

[7] Regrettably, the appeal must be dismissed. The tragic circumstances of the infant appellant simply cannot be shown to be the fault of the respondents.

[8] No costs are sought or ordered.

“Winkler C.J.O.”

“S.T. Goudge J.A.”

“G. Epstein J.A.”