Peter G. Hagen

The defendants brought motions for leave to appeal an interlocutory decision that dismissed their Rule 21 motions to strike the plaintiffs' statement of claim.

The plaintiffs, including a former RCMP member, claimed damages for harassment, assault, and sexual assault.

The defendants argued the claims were barred by section 9 of the Crown Liability and Proceedings Act because the plaintiff received a pension for PTSD.

The court refused leave to appeal, finding no conflicting case law on the principles for striking pleadings and no good reason to doubt the motion judge's conclusion that it was not plain and obvious the entire claim was barred.

The plaintiff alleged medical negligence arising from a bilateral varicocelectomy performed to address infertility, after which he lost a testicle.

The court considered whether the physician failed to obtain informed consent, negligently performed the surgery, or breached the standard of care in post‑operative management.

The court found that the risk of losing a testicle was extremely remote and not a material risk requiring disclosure, and that a reasonable patient would have proceeded with the surgery even if informed of that possibility.

Expert evidence established that the surgical method used was an accepted practice within the profession and that the procedure was performed competently.

However, the court concluded that post‑operative care became negligent when the patient returned to hospital with significant pain and investigation was delayed.