COURT OF APPEAL FOR ONTARIO

CITATION: Larman v. Mount Sinai Hospital, 2014 ONCA 923

DATE: 20141224

DOCKET: C58838

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Elliott Gerald Larman

Plaintiff (Appellant)

and

Mount Sinai Hospital, Dr. Oleg Safir, Dr. Olanrewaju

Okusanya and Dr. Aaron Nauth

Defendants (Respondents)

Counsel:

J. Brian Johnston, for the appellant

Elizabeth K. P. Grace and Nadia Marotta, for Dr. Safir, Dr. Okusanya and Dr. Nauth

Daniel Girlando and Meghan Lindo, for Mount Sinai Hospital

Heard and released orally: December 19, 2014

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated April 24, 2014.

ENDORSEMENT

[1] The appellant appeals from a judgment granted on a Rule 20 motion. The motion judge dismissed his action claiming damages as a result of the medical treatment he received from the respondents.

[2] When the motion was first brought, no expert report had been delivered by the appellant notwithstanding court ordered timetables requiring him to do so. While the appellant is correct in asserting that the focus of the original notice of motion was on the lack of an expert report, nevertheless, the motion was for summary judgment dismissing the action. It would have been apparent to the appellant that simply delivering an expert report, that is, any expert report, would not be sufficient to successfully resist the motion.

[3] The action had been commenced four years before the motion was brought. The absence of an expert report, which is acknowledged by the appellant to be essential to his success in the action, had been noted and pursued consistently by the respondents.

[4] We agree with the specific findings of the motion judge that there was no evidence of causation put forward by the appellant in response to the motion and that there was no evidence in the expert report that the hospital and two of the doctors fell below the standard of care. The failure to put forward any evidence on these essential elements was fatal in this case.

[5] The appellant contends that he was denied procedural fairness when the respondents relied on discovery transcripts at the hearing of the motion. There was no denial of procedural fairness. The reason the motion judge granted summary judgment was that the appellant failed to meet his obligation to put his best foot forward regardless of the moving party’s evidence. The failure to do so means that there was no evidence to address central elements of the appellant’s claim, including causation, and therefore no issue requiring a trial.

[6] The appeal is therefore dismissed.

[7] Costs are payable by the appellant to the respondent Hospital in the sum of $5,000 inclusive of disbursements and applicable taxes, and in the same amount to the other respondents.

“Robert J. Sharpe J.A.”

“K. van Rensburg J.A.”

“G. Pardu J.A.”