Leek v. Vaidyanathan, 2011 ONCA 46

CITATION: Leek v. Vaidyanathan, 2011 ONCA 46

DATE: 20110120

DOCKET: C52443

COURT OF APPEAL FOR ONTARIO

Weiler, Blair and Epstein JJ.A.

BETWEEN:

Penny Leek, Lauren Leek by her Litigation Guardian Penny Leek, and George Zafiris by his Litigation Guardian Penny Leek

Respondents/Plaintiffs

and

Sankar Vaidyanathan, Humber River Regional Hospital, Rueben Devlin, Patrick Safieh and David Starr

Appellant/Defendant

Cynthia Kuehl and Stuart Zacharias, for the appellant

Paul Harte, for the respondents

Heard: January 11, 2011

On appeal from the order and declaration of Justice E.P. Belobaba of the Superior Court of Justice, dated June 28, 2010.

ENDORSEMENT

[1] Dr. Vaidyanathan seeks to set aside the order of Justice E.P. Belobaba of the Superior Court of Justice, dated June 28, 2010, declaring that the respondent Penny Leek had no legal obligation or duty to the appellant to terminate her second-trimester pregnancy in order to mitigate the plaintiffs’ claim for damages in a wrongful birth action.

[2] We are satisfied that the order must be set aside. In our view this is not a proper case for the question posed to the motion judge to be determined on the pleadings under Rule 20.01(1)(a), which states:

A party may move before a judge,

(a) For the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs.

[3] The pure question of law raised by the motion is whether a woman can ever be required to mitigate her claim for damages in a wrongful birth action by having an abortion. This is an important issue of law, raising significant policy considerations, and such questions are normally better determined on a full factual record after trial, where the judge has been able to make findings that form the basis for the legal analysis and conclusions: see PDC 3 Limited Partnership v. Bregman + Hamann Architects (2001), 2001 38745 (ON CA), 52 O.R. (3d) 533, at para. 11; Haskett v. Equifax Canada Inc. (2003), 2003 32896 (ON CA), 63 O.R. (3d) 577, at para. 24.

[4] In addition, the pure question of law articulated above is not the way the case was put to us by counsel, or it appears, to the motion judge. What the motion judge was asked to determine – and did – was whether, on the facts as pleaded, this case constituted a “most exceptional circumstance” case where a court might find that refusing to have an abortion was unreasonable, and, therefore, a failure to mitigate. Framed in that way, this is not a question of law, but a question of mixed fact and law to be determined at trial.

[5] On the pleadings here, we simply do not know enough to be able to make any such determination. Respectfully, the motion judge erred in concluding that a determination of the question before him would not benefit from a more complete evidentiary record available at trial.

[6] Accordingly, we allow the appeal and set aside the declaration made by the motion judge.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“G.J. Epstein J.A.”