Court of Appeal for Ontario

Citation: Friend v. Watters, 2010 ONCA 699

Date: 20101022

Docket: C52246

Sharpe, Blair and Rouleau JJ.A.

BETWEEN

Nadia Friend

Plaintiff/(Appellant)

and

Dr. James M. Watters, Dr. J. Smith, The Ottawa Hospital (Civic Campus), Dr. Ian Zunder, Dr. Johannes Penning, Dr. Gordon Reid and Dr. Mark Raymond Farrell

Defendant(s)/(Respondents)

Counsel:

Richard R. Marks, for the plaintiff/appellant

Laura B. Stewart, for Dr. James M. Watters, Dr. J. Smith, Dr. Ian Zunder, Dr. Johannes Penning, Dr. Gordon Reid and Dr. Mark Raymond Farrell

Heard & released orally: October 19, 2010

On appeal from the judgment of Justice Roydon J. Kealey of the Superior Court of Justice dated June 2, 2010.

ENDORSEMENT

[1] The appellant settled its claim with the hospital. The terms of that settlement allowed the appellant to proceed with its claims against the other defendants with respect to their several liabilities. As part of the settlement, the appellant and the hospital agreed to the form of the required amendments to the statement of claim. While those amendments appear to us to be unorthodox, they fully disclose the terms of the settlement.

[2] Accordingly, when read as a whole, the scope of the claim advanced against the respondent Penning in the fresh as amended statement of claim is restricted precisely to what is permitted by the settlement. The claims advanced against the respondent Penning in paras. 24-26 of the fresh as amended statement of claim were in the claim prior to the amendment sought. The extent to which these can still be maintained must be determined in relation to the terms of the settlement and it would be inappropriate for us to attempt to elaborate on that issue any further in the context of this appeal. Accordingly, we leave that issue for another day should the respondents seek to have them struck.

[3] In these circumstances, it is our view that the motion judge erred by refusing to allow the appellant to amend the statement of claim in the precise terms contemplated by its settlement with the hospital.

[4] Accordingly, the appeal is allowed. Costs to the appellant fixed at $8,500 inclusive of the motion, the appeal, disbursements and applicable taxes.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”