Court of Appeal for Ontario

Date: 2018-02-09 Docket: C63552

Judges: Simmons, Roberts and Nordheimer JJ.A.

Between

Barbara Kueber Plaintiff (Appellant)

and

Royal Victoria Regional Health Centre, Barrie Medical Clinics Inc., Dr. Sayed Mostafa Amir Shourideh-Ziabari, Dr. Laurie Elizabeth Shaver, Dr. Angelo John Iocca, Dr. Heather Lynne Waterman, Dr. George Nicholas Karasmanis, Dr. Andrea Boyd May, Triage Nurse J. Doe, Dr. Darren Jonathan Usher, County of Simcoe Paramedic Services, Paramedic J. Doe, Dr. David Boushy, Dr. Nazir Ahmad Malik Defendants (Respondents)

Counsel

Barbara Kueber, in person

Jonathan Gutman, for the respondent Royal Victoria Regional Health Centre

Mark Vernon, for the respondent Barrie Medical Clinics Inc.

Peter Downs, for the respondent doctors

Jacinthe Boudreau, for the respondent County of Simcoe Paramedic Services

Heard: January 18, 2018

On appeal from: the judgment of Justice Hugh K. O'Connell of the Superior Court of Justice, dated February 22, 2017.

Reasons for Decision

[1] Overview

The motion judge granted summary judgment dismissing the appellant's action against: County of Simcoe Paramedic Services; Paramedic J. Doe; the nine doctors named in the statement of claim; and Barrie Medical Clinics Inc. He also granted partial summary judgment dismissing her action against Royal Victoria Regional Health Centre as it relates to events on March 10 and 11, 2012.

[2] Appellate Standard

The appellant appeals the motion judge's decision. At the oral hearing, we did not call on the respondents to address all the appellant's arguments. For the reasons set out below, apart from a correction to the partial summary judgment granted to Royal Victoria Regional Health Centre, we see no basis on which to interfere with the motion judge's decision.

[3] Appropriateness of Summary Judgment

In our view, this is precisely the type of case that summary judgment is designed to address so as to avoid putting the parties to the time and expense of a full blown trial. It is the type of case that can be fairly resolved "in line with the goal of proportionate, cost-effective and timely dispute resolution": Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 67.

[4] Standard of Review

Further, absent an error of law, the decision of the motion judge is entitled to deference. Where there is no error in principle, the determination of the motion judge should be upheld absent a showing of palpable and overriding error: Hryniak, at para. 81.

(i) The Appellant's Claims Against County of Simcoe Paramedic Services

[5] Nature of Claims

The appellant's claims against County of Simcoe Paramedic Services and an unknown paramedic fell into three main categories. First, she claimed she was defamed in a March 10, 2012 ambulance call report, which noted anxiety, yelling, and aggressiveness on her part and that she sometimes becomes violent. Second, she claimed that, on March 21, 2012, a paramedic threatened to taser her. Third, she made general allegations that, in essence, the paramedic services provided to her fell below the standard of care, causing her to endure multiple incidents of endangerment and negatively impacting her care.

[6] Motion Judge's Reasoning

The motion judge gave ample reasons for concluding that: i) summary judgment was appropriate; ii) the paramedic's description of the appellant's history and status in the March 10, 2012 ambulance call report was not defamatory; and iii) there was no basis in the record for concluding either that a paramedic threatened to taser the appellant on March 21, 2012 or that paramedic services provided to the appellant fell below the standard of care.

[7] Defamation Claim

As a starting point, the motion judge was not persuaded that the entries in the ambulance report had been published so as to support a claim for defamation. In any event, he concluded there was no evidence that the descriptions in the report were defamatory. The motion judge found the descriptions were based on good faith observations by the paramedic and that the appellant authenticated, in large measure, her state of mind as described in the report. This finding was supported by the record.

[8] Tasering Allegation

As for the threatened tasering, the two paramedics on scene were not cross-examined on the denials in their affidavits that that had occurred. And on discovery, the appellant had acknowledged she could not recall what was said. Rather, she said that she believed that is what would have been said.

[9] Breach of Duty of Care

Finally, in relation to the issue of breach of a duty of care, the trial judge concluded there was nothing in the record or submissions to suggest any deficiency in what the paramedics did.

[10] Affidavit Evidence

We agree that the motion judge erred when he indicated at paras. 121 and 131 of his reasons that the appellant did not deliver affidavit evidence on the summary judgment motion. She had, in fact, delivered some affidavits, although it could be said that they were not entirely responsive to the issues raised on the summary judgment motion. However, at footnote 11 to paragraph 287, he found that the various texts the appellant had authored, setting out a purported history of events during the time frame underpinning her claim (which were before the court but, in his view, not in a form receivable in evidence), were "completely self-serving". Based on our review of the record, this finding was entirely justified and the motion judge's erroneous conclusion that the texts were not properly before him did not give rise to a miscarriage of justice.[1]

[11] Standard of Care Evidence

Finally, we reject the appellant's complaint that the motion judge erred in granting summary judgment because County of Simcoe Paramedic Services failed to adduce evidence concerning the standard of care. In the particular circumstances of this case, we see no error in the motion judge's conclusion that the pleadings and record failed to reveal a factual foundation that would have brought the standard of care into issue, "much less what damages occurred".

(ii) The Appellant's Claims Against the Nine Doctors

[12] Nature of Claims

The appellant's claims against the nine doctors were for medical negligence, falsification of records and defamation, and, in some instances, lack of informed consent.

[13] Expert Evidence and Medical Negligence

The doctors provided expert opinion evidence supporting their claims that they met the standard of care. The appellant did not cross-examine the doctors' experts and filed no contradictory expert evidence to support findings of breach of the standard of care or causation. In these circumstances, it was entirely open to the motion judge to dismiss the appellant's claims for medical negligence.

[14] Expert Acknowledgments

Although the appellant complained on the motion that the doctors' experts had not complied with the r. 53.03 requirement to provide an acknowledgment of expert's duty, there was evidence before the motion judge, which he accepted at para. 167 of his reasons, that the acknowledgements (Form 53) had been forwarded to the appellant.[2] In the face of the appellant's assertions at the motion hearing that she did not receive the acknowledgement forms, it would have been preferable had the motion judge accepted counsel's offer to file them at the time of the hearing. Nonetheless, as he accepted the evidence that the forms had been sent, he did not commit reversible error in failing to do so. It was open to him, on the basis of that evidence, to conclude that the doctors' experts had complied with r. 53.03.

[15] Falsification and Defamation Claims

Concerning the claims of falsification of records and defamation, the motion judge concluded that they were "rooted in complete speculation and innuendo." The appellant has not identified any error in this finding.

[16] Informed Consent

As for the informed consent issue, the motion judge was entitled to rely on the appellant's acknowledgement on discovery that she was limiting her claim against Dr. Iocca to post-operative treatment. Dr. Iocca's expert supported his position that his post-operative treatment met the standard of care.

[17] Conclusion

In all the circumstances, we see no error in the summary judgment dismissing the appellant's claims against the doctors.

(iii) The Appellant's Claims Against Barrie Medical Clinics Inc.

[18] Independent Contractors

The appellant visited two of the doctors against whom she advanced claims at Barrie Medical Clinics Inc. Evidence on the summary judgment motion indicated these doctors were independent contractors. In any event, as we have said, while the doctors adduced expert evidence supportive of their care and treatment, the appellant failed to introduce contradictory expert evidence. We see no error in the summary judgment dismissing the appellant's claims against Barrie Medical Clinics Inc., in the circumstances.

(iv) The Appellant's Claims Against Royal Victoria Regional Health Centre

[19] Scope of Dismissal

The motion judge granted summary judgment dismissing the appellant's claims against Royal Victoria Regional Health Centre concerning the March 10 and 11, 2012 hospital visits. At the appeal hearing, Royal Victoria Regional Health Centre acknowledged that its motion for partial summary judgment dismissing the claims against it was limited to the claims concerning the actions of Triage Nurse J. Doe on March 10 and 11, 2012. The claims relating to March 10 and 11, 2012 should not therefore have been dismissed in their entirety.

[20] March 10, 2012 Claims

The appellant's claims against Triage Nurse J. Doe relating to March 10 and 11, 2012 were essentially that on March 10, 2012 a hospital nurse negligently entered "incomplete and false information" that defamed her, impacted her care, and interfered with future treatments.

[21] March 11, 2012 Claims

Concerning March 11, 2012, the appellant claimed that: she was discharged before being seen by a physician; she was required to list her allergies and reactions experienced despite having given the hospital allergy information previously; Triage Nurse J. Doe advised her that Stevens-Johnson Syndrome was not a condition treated at the hospital; and triage notes failed to accurately record the purpose of her visit to the hospital.

[22] Motion Judge's Findings

The motion judge noted that the appellant had advised at discovery that she was not proceeding with her defamation claim. Further, he found that the appellant's claim that records had been falsified was speculative. He also concluded that there was no evidence that the appellant had suffered any damages as a result of her other complaints. Although the appellant was initially discharged, ultimately, she was seen by a doctor on March 11, 2012 concerning Stevens-Johnson Syndrome. The motion judge found there was no nexus between the events of March 10 and 11, 2012 and the appellant's treatment on March 22, 2012. In our view, these findings were open to the motion judge on the record before him, and the appellant has failed to demonstrate any error.

(v) Disposition

[23] Amendment to Judgment

Based on the foregoing reasons, paragraph two of the judgment, dated February 22, 2017, is amended to read as follows:

2. THIS COURT ORDERS AND ADJUDGES that the following claims in the within action as against the defendant, Royal Victoria Regional Health Centre, relating to events on March 10 and 11, 2012, be and are hereby dismissed:

i) On March 10, 2012, Triage Nurse J. Doe entered false and incomplete information into the plaintiff's record that impacted her care and interfered with future treatment;

ii) On March 11, 2012, Triage Nurse J. Doe was negligent when she advised that the hospital does not assess or treat Stevens-Johnson Syndrome;

iii) On March 11, 2012, Triage Nurse J. Doe was negligent in failing to accurately record the purpose of her visit, which impacted on the plaintiff's care; and

iv) Triage Nurse J. Doe was negligent.

[24] Costs

The appellant's appeal is otherwise dismissed with costs to the respondents on a partial indemnity scale, fixed in the following amounts inclusive of disbursements and taxes: County of Simcoe Paramedic Services, $10,000; the nine physicians, $7,500; Royal Victoria Regional Health Centre, $7,500; and Barrie Medical Clinics Inc., $5,000.

Janet Simmons J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.

Footnotes

[1] The County of Simcoe Paramedic Services, the doctors, and Barrie Medical Clinics Inc.'s summary judgment motions were heard in October 2015. Royal Victoria Regional Health Centre's summary judgment motion had to be adjourned to February 2016. Although the summary judgment motions heard in October 2015 were completed at that time and although the motion judge indicated he would provide judgment on the motions he had heard to that point in time, he did not do so to avoid the risk that further submissions could impact on the earlier motions. Between October 2015 and February 2016, the appellant delivered an affidavit attesting to the truth of the contents of various text messages she had previously filed.

[2] Section 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that "[a] court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred."

[3] Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This court has indicated that r. 53.03 applies on a summary judgment motion: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 15-16.