COURT OF APPEAL FOR ONTARIO

CITATION: Polera v. Wade, 2015 ONCA 895

DATE: 20151217

DOCKET: C60247

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Felicity (Felicia) Polera and Brian Pittana

Plaintiffs (Respondents)

and

Dr. Philip Wade, The Canadian Hearing Society, Kelly Duffin, Stephanie Ozorio and Jane and John Doe

Defendants (Appellant)

Jasmine T. Akbarali and Zohar Levy, for the appellant

Ron Bohm and Amani Oakley, for the respondent

Heard: December 7, 2015

On appeal from the orders of Justice E.P. Belobaba of the Superior Court of Justice, dated February 20, 2015, with reasons reported at 2015 ONSC 821.

ENDORSEMENT

[1] The appellant physician seeks to overturn the partial summary judgment ordered in a medical malpractice action.

[2] The underlying action arises from the delayed diagnosis of a brain tumour in relation to the respondent, Felicity Polera. Prior to the partial summary judgment motions, the appellant admitted that he breached the standard of care and that this breach caused Ms. Polera’s damages.

[3] These admissions essentially settled all liability issues in the action except for the defence of contributory negligence and a specific list of the injuries sustained by Ms. Polera as a result of the appellant’s breaches of the standard of care. On a motion brought by the respondents, partial summary was granted disposing of these two remaining liability issues.

[4] On this appeal, the appellant submits that the motions judge erred on both issues. With respect to contributory negligence the appellant submits he was denied procedural fairness and that the motions judge reversed the burden of proof. With respect to the second issue, he submits that the motions judge erred in listing the specific injuries sustained by Ms. Polera.

[5] We note that, at the outset of oral argument, the appellant pointed out that the respondents’ factum referred to information not before the motions judge and sought to file affidavit evidence in response. The respondent objected. The issue was resolved by the parties who agreed to proceed on the record as it existed at first instance.

Background

[6] Ms. Polera, who was 36 years old at the time, attended the Canadian Hearing Society (the “CHS”) in October 2004 because she was experiencing some hearing loss in her right ear. She was tested and fitted with a hearing aid, and was sent for an MRI. When the MRI results came back, the appellant failed to detect Ms. Polera’s brain tumour.

[7] In January 2007, Ms. Polera discovered that she had lost all hearing in her right ear. The appellant ordered another MRI, on which he noticed the tumour. He arranged for the necessary medical follow-up, which involved two days of surgery, leaving Ms. Polera with extensive and serious injuries.

[8] The appellant admitted that he breached the requisite standard of care in failing to detect the growing tumour in the first MRI and in failing to follow-up as required. Further, he admitted that these breaches caused Ms. Polera to sustain significant injuries and damages.

[9] The motions judge heard the summary judgment motion in two stages. The first motion was heard in August 2014 (not the subject of this appeal) and resulted in an order particularizing the appellant’s breaches of the standard of care. The second motion was heard in February 2015 (the subject of this appeal).

[10] On the second motion, the motions judge concluded that there was no genuine issue for trial with respect to either the defence of contributory negligence or the listing of Ms. Polera’s specific injuries. On the evidence before him, he dismissed the defence of contributory negligence and particularized Ms. Polera’s injuries.

Contributory Negligence

[11] The appellant submitted that Ms. Polera contributed to her injuries by missing a number of CHS appointments. In particular, he claimed she cancelled an “emergency appointment” with his office, which added six months to the overall delay in the tumour’s diagnosis and removal. This suggestion arose from a note in the file of Tommy Choo, the audiologist which said: “will ask ENT for an emergency appt.”

[12] Ms. Polera said she was never told there was an “emergency”. The appellant says there is a major credibility issue requiring a trial. However, there is no evidence that Mr. Choo ever communicated the contents of his note to anyone, let alone the respondent. Mr. Choo was never examined. The appellant has had three years to obtain Mr. Choo’s evidence and did not do so.

[13] Further, Ms Polera had good reason to cancel her appointment because she was dealing with other health issues. Once she learned that she had a brain tumour, she never cancelled or missed any appointments.

[14] The motions judge was confident that the necessary findings of fact could be made on the evidence, including the parties’ examination for discovery transcripts. There was no need for contributory negligence to go to trial.

[15] The motions judge was satisfied on the evidence that Ms. Polera behaved reasonably and did nothing to contribute to her injuries. There was no compelling evidence that Ms. Polera was told there was any urgency in scheduling an appointment. Accordingly, it was not unreasonable to miss a hearing aid follow-up appointment when there was nothing to suggest there was any harm in doing so.

[16] The motions judge concluded that there was no evidence of contributory negligence.

(1) Procedural Fairness

[17] The appellant alleges that he was denied procedural fairness because he did not know that the issue of contributory negligence would be before the motions judge.

[18] We do not agree. The record before the court belies this assertion.

[19] The reasons of the motions judge show that at the first hearing, he dealt with the breaches of the standard of care. He then explained that the issue of contributory negligence was adjourned to the second hearing. In those reasons, the motions judge said (at para. 8):

The second part of the motion about the specific injuries sustained and the defence of contributory negligence was adjourned and is now before me for adjudication.

[20] And, at para. 19:

It has been the [appellant’s] long-standing position that any order granting summary judgment on the issue of liability should be made without prejudice to [his] right to argue contributory negligence at trial.

[21] Further, the factums filed by the appellant on both hearings address contributory negligence.

[22] In his factum dated August 15, 2014, the appellant addresses contributory negligence by saying (at para. 34):

[The order] should be without prejudice to the [appellant’s] right to argue contributory negligence at trial, given that [Ms. Polera] did not attend follow-up appointments, did not seek out medical attention between 2004 and 2007 and repeatedly cancelled appointments with Dr. Wade in 2007, resulting in a delay of 6 months, after the January 30, 2007 audiogram and despite the records of the audiologist Tommy Choo stating that he was requesting an “emergency appointment” with Dr. Wade.

[23] Likewise, in his factum dated January 27, 2015, the appellant says this (at para. 12):

[O]n this summary judgment [motion] on the issue of the liability of Dr. Wade, the Plaintiffs are asking the motion judge to direct the jury not to consider any evidence or arguments regarding:

(a) contributory negligence… [Emphasis in original.]

[24] This factum also addressed the facts relied on by the appellant with respect to contributory negligence.

[25] Clearly, the appellant was aware that contributory negligence was an issue before the motions judge and was not denied procedural fairness.

(2) Burden of Proof

[26] The appellant submits that the motions judge misplaced the burden of proof. He relies on the motions judge’s comments that he had to “put his best foot forward” (at para. 21).

[27] The appellant submits that the burden rested with the respondent (the moving party on the motion) to adduce evidence supporting a lack of contributory negligence before the appellant was required to “put his best foot forward.” Specifically, the appellant submits that the respondent should have produced evidence from the audiologist at CHS about what she was told regarding the alleged “emergency appointment”.

[28] The appellant submits that the only evidence with respect to contributory negligence was Ms. Polera’s examination for discovery transcript, filed without the mandatory supporting affidavit. He argues that it was unreasonable for the motions judge to expect him to prepare motion materials to prove there was a genuine issue for trial when the respondents did not file admissible materials proving there was no such issue. In other words, there was no burden on the appellant to address the contributory negligence issue.

[29] We do not agree.

[30] First, the motions judge was entitled to consider Ms. Polera’s impugned discovery evidence. Once the appellant relied on her discovery evidence, he opened up its use to both parties. As a result, the motions judge was entitled to consider it for all issues.

[31] On this point, we agree with the analysis of D.M. Brown J. (as he then was) in Lawless v. Anderson, 2010 ONSC 2723, 188 A.C.W.S. (3d) 1006, at para. 12, aff’d on other grounds, 2011 ONCA 102, 276 O.A.C. 75:

As a general rule when a party places into evidence answers given by an opposite party on her examination for discovery, such evidence is available to either party in the same manner as any other evidence.

[32] Second, the onus was not shifted by the motions judge. The motions judge determined that there was no genuine issue requiring a trial on the contributory negligence issue, at para. 8: “I am satisfied that both matters, specific injuries and contributory negligence, can be summarily adjudicated.” Given the uncontradicted evidence of Ms. Polera that she was not told of any urgency, and silence by the appellant, the only reasonable conclusion was that the respondent was not contributorily negligent. Resolution of this issue did not turn on the onus of proof.

Specific Injuries

[33] Although the appellant submitted that the motions judge should not have listed the specific injuries, we see no error in this regard.

[34] The listing of the respondent’s specific injuries was based on the three expert reports filed. There was no cross-examination on these reports.

[35] There was an issue about Ms. Polera’s hearing loss. The appellant submitted that the issue had been withdrawn from consideration by the respondents. We do not agree that is what happened. The respondents were prepared to have a trial on this issue, but the motions judge considered the issue and determined that it did not require a trial. It was open to him on the record to come to that conclusion.

[36] The motions judge took a robust and pragmatic view of the evidence respecting causation. Although evidence will still be called by the parties with respect to the degree to which a specific injury affects the respondent and hence the quantum damages, the listing provided by the motions judge eliminates a time consuming component of the trial, as liability is no longer in question.

[37] Moreover, we see no prejudice to the order.

Disposition

[38] The appeal is dismissed with costs payable to the respondents fixed, as agreed, in the amount of $15,000, inclusive of disbursements and HST.

“Karen M. Weiler J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”