Court of Appeal for Ontario

Date: 2018-05-10 Docket: M48689

Judges: Strathy C.J.O., Roberts and Paciocco JJ.A.

Between

Warren Rill Appellant

and

Dr. John Adams, Dr. Mark Guttman and the Centre for Movement Disorders Respondents

Counsel

Warren Rill, acting in person

Lars Brusven, for the respondents

Heard: In writing

Reasons for Decision

[1] This matter came before us on March 29, 2018, by way of a motion in writing for leave to appeal. We dismissed the motion, with costs fixed at $500.

[2] The record before us did not reflect that the moving party had been granted leave to file a reply factum within 60 days on February 15, 2018. His reply factum, which was filed on April 16, 2018, has now been brought to our attention, together with a letter in which he requests an opportunity to make oral submissions on his motion.

[3] We have considered the matter afresh in light of the moving party's reply factum and his letter.

[4] The moving party filed a 15-page factum and a 7-page reply factum. He has made full argument on the issues. We are not satisfied that an oral hearing is required.

[5] Nor are we persuaded that leave to appeal should be granted.

[6] The background is this. The moving party brought an action in the Small Claims Court, alleging negligent medical diagnosis and drug treatment. The respondents filed an expert medical report, which opined that they had met the standard of care. The moving party filed no report. The respondents moved to strike his claim at the commencement of trial, on the basis that it could not succeed without expert medical evidence that the respondents had breached the standard of care.

[7] An adjournment was granted to enable the moving party to obtain evidence, in the form of either an expert medical report or a statement of a treating physician, to support his allegations. After being granted more than six months in which to obtain such evidence, the moving party was unable to provide satisfactory evidence that the respondents had breached the standard of care. His action was therefore dismissed.

[8] His subsequent appeal to the Divisional Court was also dismissed: Rill v. Adams, 2017 ONSC 5297. The Divisional Court judge gave careful reasons, explaining why the moving party's action could not succeed in the absence of evidence of a breach of the standard of care. The Divisional Court judge considered the fact that the moving party was self-represented and that there was a need for a measure of flexibility in the application of the rules in Small Claims Court proceedings. He also noted, however, that it would be unfair to submit parties to a proceeding that had no reasonable prospect of success.

[9] In our view, there is no basis on which leave to appeal should be granted. The moving party has identified no error in the reasons of the Divisional Court judge. The proposed appeal involves neither a question of law nor a matter of public importance. The issue raised by the moving party does not transcend the particular issues and facts of this case. Nor does it require clarification by this court. It is well-established in the authorities (some of which were reviewed by the Divisional Court judge) that in cases of this kind the plaintiff must prove the standard of care by expert evidence, either through an expert or a treating physician.

[10] Having reconsidered the matter in light of the moving party's reply factum and his letter, we remain of the view that the motion should be dismissed and it is so ordered.

"G.R. Strathy C.J.O." "L.B. Roberts J.A." "David M. Paciocco J.A."