Court File and Parties

COURT FILE NO.: 01-BN-4355
DIVISIONAL COURT FILE NO.: 423/05
DATE: 20051129

DRAFT

ONTARIO

SUPERIOR COURT OF JUSTICE

(Divisional Court)

B E T W E E N:

MAN YOK GINA CHOO and JAMES CHOO

Plaintiffs

• and -

DR. JOSEPH KA-HOI WONG

Defendant

Counsel: Ava M. Hillier, (not present) for the Plaintiff Dana M. Peebles for the Defendant, Dr. Wong

HEARD at Toronto: November 29, 2005

P

Endorsement

GREER J.:

[1] Mr. Peebles for the Defendant, Moving Party on the Motion. No one for the Plaintiffs Choo, although duly served through service on their solicitors, Hillier & Hillier, by courier on November 9, 2005. Counsel informs me that the Plaintiff James Choo has dropped his claim and that only the Plaintiff, Man Choo, is left in the litigation. He further says that Plaintiff’s counsel informed him that she was not appearing on the Motion.

[2] The Defendant moves for leave to appeal the two interlocutory decisions of Mr. Justice Tulloch made August 19, 2005 and October 25, 2005, in connection with the Defendant’s Motion for Summary Judgment brought on, on February 2, 2005 on the grounds as set out on the Notice of Motion at Tab 1 hereof. The test for such leave is set out in Rule 62.02(4). The Moving Party must meet the test as set out in either subparagraphs (a) or (b) of that Rule.

[3] I am satisfied that the Defendant has met the the test with respect to subparagraph (b) thereof, in that there appears to me to be good reason to doubt the correctness of the Order in question and in my view the proposed appeal involves matters of such importance, that leave should be granted.

[4] The Order of the Motions Judge is in two separate endorsements, as he failed, in the first endorsement to deal with the fact that he had struck certain portions of a law clerk’s affidavit filed by the Plaintiff, Respondent on the Summary Judgment Motion. Further, the Motions Judge had allowed an affidavit of the Plaintiff to be entered as evidence, after the Moving Party had closed his case on the Motion (such affidavit prepared by Plaintiff’s counsel over the luncheon break). On the second endorsement, no reason was given by the Motions Judge for allowing such an affidavit to be filed. Further, that affidavit was sworn to by the Plaintiff, without Rule 4.06(8) having been complied with, that is, it was not read over to the Plaintiff in the language she understood (presumably Mandarin or Cantonese), yet she quite clearly stated in her affidavit in paragraph 12 thereof, that she had limited ability to read English (in reference to her saying she did not understand the medical Consent she signed.).

[5] The Defendant on this Motion for Summary Judgment had filed an expert report of Dr. David Ellis dated July 23, 2004, which was never responded to by the Plaintiff nor was any expert report served and filed by her during the 4½ years of litigation leading up to the Summary Judgment Motion. Counsel for the Moving Party has cited the decision of Mr. Justice Pitt, Maslen v. Chisholm, [2003] O.J. No. 3960, Court File No. 01-CV-208594CM, (S.C.J.) for the proposition that a Plaintiff cannot succeed at Trial without an expert medical report. At pages 6 & 7 thereof, Mr. Justice Pitt cites 14 other cases that stand for this proposition. There is therefore good reason to doubt the correctness of the Motions Judge’s Order dismissing the Summary Judgment Motion.

[6] Further, there is a line of cases which deals with the issue of counsel trying to “repair damage” done to its case by the Moving Party, after the fact. See NRS London Realty Ltd. v. Glenn (1989), 1989 4322 (ON SC), 67 O.R. (2d) 704 and decisions of Master Sandler, on the same point, such as Westbury Canada Life v. Newall (1992), 6 C.P.C. (3d) 281. If allowing such repair is to be accepted as correct, it involves a matter of such importance to the profession that leave ought to be granted, as the Choo Affidavit was allowed in by the Motions Judge.

[7] Further, there is the issue of what the Limitation Bar is under the circumstances, where the Motions Judge, in paragraph 25, states that the Defendant did not establish that the Plaintiff missed the one-year statutory limitation period based on the fact that Dr. Wong was still treating her up to the time she commenced her action May 1, 2001 after the laser treatment took place January 1999. In my view this also involves matters of such importance to the profession, in medical malpractice cases, that leave should be granted. See Peixeiro v. Haberman (1997), 1997 325 (SCC), 151 D.L.R. (4th) 429 (S.C.C.).

[8] As was stated by Mr. Justice Ferrier in Lalani v. Woolford, [1998] O.J. No. 5324, Court File No. 95-CU-93149, on a similar leave to appeal motion, there was no expert evidence tendered concerning the standard of care in a medical case, which is the position before me.

[9] Order to go granting Leave to Appeal the Orders/Decisions of the Motions Judge for reasons as set out above.

[10] The costs of this Motion are left to the Panel hearing the appeal.

“Greer J.”

Released: November 29, 2005