Court of Appeal for Ontario
Date: 20211223 Docket: C68103
Judges: Hourigan, Trotter and Zarnett JJ.A.
Between: Maxine Donna McLean Plaintiff (Appellant)
And: Dr. Nikolaj Wolfson Defendant (Respondent)
Counsel: Maxine Donna McLean, acting in person Eli Mogil and Pippa Leslie, for the respondent
Heard and released orally: December 17, 2021
On appeal from the order of Justice David L. Edwards of the Superior Court of Justice, dated January 30, 2020.
Reasons for Decision
[1] Dr. McLean appeals from the dismissal of her action against Dr. Wolfson.
[2] Dr. McLean commenced the action on April 30th, 2018. She alleged that Dr. Wolfson was negligent in performing surgery on her leg in 1995. Her Statement of Claim included the following averment in para. 5: “a recent X ray revealed that the appellant’s hips are not aligned and it was recently diagnosed that the defendant removed the fibula bone when he could have cut it to create a new bone in order to lengthen the right leg”.
[3] On November 8, 2018 counsel for Dr. Wolfson served a Request to Inspect Documents, pursuant to r. 30.04(2) of the Rules of Civil Procedure (R.R.O. 1990, Reg. 194).
[4] Specifically, Dr. Wolfson requested copies of the “recent X ray” and any medical records relating to what had been “recently diagnosed”. Dr. Wolfson required this information in order to prepare a responsive statement of defence.
[5] Although some X ray’s and medical records were provided to Dr. Wolfson, they dated back to 1995 and they were not the records apparently referred to in para. 5 of the Statement of Claim.
[6] After further failed attempts to obtain these records Dr. Wolfson brought a motion for production.
[7] On October 3rd, 2019, on consent, an order was made requiring production of these records within 30 days by the same motion judge. Dr. McLean failed to comply with this order.
[8] Dr. Wolfson then brought a motion under rr. 30.08 and 60.12 to dismiss Dr. McLean’s action, based on her failure to properly respond to the request to inspect documents (r. 30.08) and failing to comply with the consent order (r. 60.12).
[9] On the first return date, January 23, 2020, Dr. McLean sought an adjournment. Justice Lococo adjourned the motion for a week, until January 30, 2020. He gave Dr. McLean one “last chance” to comply with the consent order.
[10] When the matter returned to court on January 30, 2020 Dr. McLean sought a further adjournment which was denied. The motion was heard on its merits and the action was dismissed.
[11] Dr. McLean submits that the motion judge erred in dismissing her action. Her main point is that the motion judge should have considered a “lesser remedy”, rather than dismissing her claim.
[12] We do not agree.
[13] In exercising his broad discretion under the applicable rules, the motion judge properly considered that Dr. McLean had ample time to produce the materials or records referenced in her Statement of Claim and that she had failed to provide a reasonable explanation for failing to do so. These circumstances supported the dismissal of the claim.
[14] Dr. Mclean applies to adduce fresh evidence on the appeal. We decline to admit the evidence.
[15] First, it fails to correct the deficiencies that resulted in the dismissal of the action. Second, Dr. McLean has failed to explain why these records could not have been produced in a timely fashion. It has been over three and a half years since Dr. McLean issued her Statement of Claim in which she referred to important medical records that were not produced as ordered. It would not be in the interests of justice to admit the proposed fresh evidence respecting a claim that dates back to 1995.
[16] Accordingly, the appeal is dismissed.
[17] We make no order as to costs.
“C.W. Hourigan J.A.”
“Gary Trotter J.A.”
“B. Zarnett J.A.”