Sally P. Bryant

The self-represented plaintiffs sought to review an order dismissing their motion for an extension of time to serve a notice of appeal from a summary judgment dismissing their medical malpractice action.

The Court of Appeal upheld the dismissal, finding no possible merit to the appeal because the plaintiffs failed to produce an expert report establishing a breach of the standard of care or causation, despite multiple opportunities to do so.

The moving party, a self-represented plaintiff, sought an extension of time to file a notice of appeal from an order dismissing her motion to set aside a master's order.

The plaintiff had initially sought leave to appeal in the Divisional Court, which was the wrong forum, and allowed the motion to sit dormant for over a year.

The Court of Appeal dismissed the motion for an extension of time, finding that the plaintiff failed to adequately explain the delay and that the merits of the proposed appeal did not justify a lengthy extension.

The appellant appealed a summary judgment dismissing a medical malpractice action on limitation grounds arising from an oesophageal dilation that allegedly caused a rupture.

The court held that the governing statutory limitation provisions incorporated the discoverability rule and that the record raised a factual issue as to when the appellant knew or ought to have known the material facts underlying the negligence claim.

Because that fact-based issue could not properly be resolved on summary judgment, the appeal was allowed and the action was restored for trial.

The court further held that the respondent's summary judgment motion was unreasonable within rule 20.06(1) and awarded the appellant solicitor and client costs of both the motion and the appeal.