Robert Victor Perron

This is an appeal from a motion judge's order allowing a medical negligence claim to proceed in the Superior Court, despite the plaintiff being a professional football player subject to a collective agreement with an arbitration clause.

The appellant, a radiologist, argued the claim fell under the collective agreement.

The Court of Appeal affirmed the motion judge's decision, holding that the "essential character" of the dispute was medical negligence by an independent third-party physician, not a dispute arising from the collective agreement.

Furthermore, the arbitration process under the collective agreement would not provide effective redress for a medical malpractice claim, particularly regarding costs and expert fees.

The appellant appealed a decision of an Associate Judge dismissing her motion to extend the time to file a statement of claim and serve an amended notice of action in a medical negligence case.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Associate Judge's conclusions that the appellant failed to provide a reasonable explanation for the delay and that the respondents would suffer prejudice if the extension were granted.

The court declined to decide whether intentional delay by a plaintiff is determinative, as the other findings were sufficient to dispose of the appeal.

The moving party sought leave to appeal an order dismissing his motion to dismiss the claim based on an arbitration clause in a collective agreement.

The Divisional Court directed the parties to consider whether the order was final or interlocutory.

The parties agreed the order was final.

The Divisional Court found it lacked jurisdiction and transferred the matter to the Court of Appeal pursuant to section 110(1) of the Courts of Justice Act.