Court of Appeal for Ontario

CITATION: Persaud v. Rzadki, 2014 ONCA 693

DATE: 20141008

DOCKET: C56963

Strathy C.J.O., Rouleau and Hourigan JJ.A.

BETWEEN

Jasoda Persaud by her Litigation Guardian, Public Guardian and Trustee, Lakhraji Pydiah and Adrian Persaud

Appellants

and

Dr. Edward John Rzadki, William Osler Health Centre, Dr. John Doe 1, Dr. John Doe 11, Dr. John Doe 111, Nurse Jane Doe 1, Nurse Jane Doe 11, Nurse Jane Doe 111 And Nurse Jane Doe IV

Respondents

Jasoda Persaud by her Litigation Guardian, Public Guardian and Trustee, Lakhraji Pydiah, acting in person

Anna L. Marrison, for William Osler Health Center

Heard: October 7, 2014

On appeal from the judgment of Justice Robert F. Goldstein of the Superior Court of Justice, dated April 4, 2013.

APPEAL BOOK ENDORSEMENT

[1] The appellants appeal from the summary judgment dismissing their claim. The motion judge granted summary judgment finding that there was no genuine issue requiring a trial. His conclusion was reached based on expert reports tendered by the respondents opining that there had been no breach of the standard of care.

[2] Despite their best efforts, the appellants were unable to secure any expert or other evidence contradicting the findings of the respondents’ experts.

[3] Before us, the appellants maintain that summary judgment ought not to have been granted and that they deserve to have their day in court. They hope to be able to retain an expert and challenge the conclusions reached by the respondents’ experts.

[4] We would not give effect to the submission. Where an expert’s report is not filed in a malpractice claim, the court can infer that the party is unable to obtain one. In the present case, the appellants did not file an expert report. Faced with uncontradicted expert evidence the motion judge concluded, correctly in our view that the claim simply could not succeed.

[5] We see no basis to interfere. For these reasons, the appeal is dismissed. There is no order as to costs.