COURT OF APPEAL FOR ONTARIO

CITATION: McAfee v. Holloway, 2014 ONCA 600

DATE: 20140820

DOCKET: C58156

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Carolyn J. McAfee

Appellant

and

Dr. Robin Holloway

Respondent

Carolyn J. McAfee, appearing in person

Cameron Fiske, appearing as amicus and duty counsel

Amanda Smallwood, for the respondent

Heard and orally released: August 14, 2014

On appeal from the judgment of Justice Lederer of the Superior Court of Justice, dated April 18, 2013.

ENDORSEMENT

[1] Assuming the defendant could be sued in negligence (the immunity issue), and assuming the defendant owed a duty of care to the appellant, the only evidence before the motion judge, an affidavit filed by the defendant, indicated that the defendant had met the applicable standard of care.

[2] In this court, the appellant made a strong and concise argument that the defendant had misunderstood the medical root of her problems. She contends that her problems are primarily related to visual deficiencies and not developmental deficiencies as indicated by the defendant in his report.

[3] The appellant may well be right. We do not know. However, even assuming that she is right, there still must be evidence from which a trier of fact could find that the defendant fell below the applicable standard in characterizing the cause of her problems as he did. The fact that he may ultimately have made an error is not, in our view, a basis for a finding that he fell below the appropriate standard of care.

[4] In the absence of such evidence, the motion judge made no error in concluding there was no genuine issue requiring a trial on the negligence claim. Summary judgment was properly granted and the appeal is dismissed.

[5] We need not and do not address the immunity issue.

[6] Costs are awarded in the amount of $2,500, inclusive of disbursements and taxes, if demanded by the defendant. I would urge the respondent to bear in mind the problems the appellant has in making any demands in reference to costs.

[7] The court is indebted to Mr. Fiske for his assistance as amicus.

“Doherty J.A.”

“John Laskin J.A.”

“Gloria Epstein J.A.”