COURT FILE NO.: 07-CV-334075PD2

DATE: 20120216

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAFINA EVSTATIEVA MARKOWA

Plaintiff

• and -

ADAMSON COSMETIC FACIAL SURGERY INC., THE CUMBERLAND COSMETIC SURGERY CENTRE INC., ADAMSON INVESTMENTS INC., DR. PETER A. ADAMSON,

DR. JASON LITNER,

DR. JOHN R. DAVIDSON,

DR. MARK FRIEDLANDER,

DR. JASON HEIER, DR. THOMAS A. B. BELL,

DEBRA KALMAN, MAUREEN DENNIS, and DEBORAH DOYLE

Defendants

Dafina Evstatieva Markowa, Appearing in Person

Thomas N. T. Sutton and Moya L. Graham, for the Defendants

HEARD: November 8, 2011 in part, with subsequent written submissions received November 15, 2011 and December 13, 2011

SPENCE J.

REASONS FOR DECISION

[1] The Defendants move for summary judgment to dismiss the medical malpractice action of the Plaintiff against them. The Plaintiff asserts several causes of action against the Defendants in respect of a coronal forehead lift, cervical liposuction, a deep plane rhytidectomy (face lift) and a submentoplasty/platysmaplasty (neck lift) (the “Surgery”) performed at The Cumberland Clinic on June 2, 2005. The Plaintiff’s action was commenced by Notice of Action issued on June 4, 2007.

[2] The Plaintiff has brought two motions: one for summary judgment and one to set aside certain court orders. The Defendants have brought a cross-motion for summary judgment and a motion for related ancillary relief (collectively, the “motion of the Defendants”).

[3] On a motion for summary judgment, the court must decide whether there is a genuine issue requiring a trial with respect to a claim or defense.

The Hearing on November 8, 2011

[4] The motion of the Defendants was scheduled to be heard on November 8, 2011. There may have been a dispute as to whether either or both of the Plaintiff’s motions were properly scheduled to be heard, but the Plaintiff in her communications to the Court indicated she did not wish to proceed with those motions on November 8 and she also wished the Defendants’ motions not to proceed then either. The Plaintiff made submissions to that effect on November 8, 2011. The Defendants opposed the adjournment of their motion. No adjournment was granted of the Defendants’ motions. The Plaintiff’s motions were not heard.

[5] In her submissions on November 8, 2011, the Plaintiff asked me to recuse myself. No reason for me to do so was advanced then and none is apparent now.

[6] The Defendants made their submissions based on the materials filed, including the factum they had originally filed for a hearing of their motion first scheduled for April 4, 2011. Significant portions of the Defendants’ factum and their reply submissions referred to in paragraph 7 are employed extensively below where they set out satisfactorily the evidence that is relevant and the law and analysis that are applicable. Those portions have been revised where it seemed necessary or appropriate, but otherwise the text as set out in the factum has been employed.

[7] At the request of the Plaintiff, the Plaintiff was allowed to make her responding submissions on the Defendants’ motions in writing. The submissions were served and filed on November 15, 2011. The submissions of the Plaintiff are addressed in detail below.

[8] On December 9, 2011 the Defendants were advised that any reply submissions they wished to make with respect to the issue addressed below under the heading of “Non-Delivery of the Defendants’ Affidavit of Documents” were to be made within 7 days. The reply submissions of the Defendants were received on December 13, 2011.

The Evidence before the Court on the Motion

[9] The evidence of the Defendants is set out in the affidavits in the Motion Record of the Defendants that was served and filed for their cross-motion on its earlier scheduled return date of April 4, 2011.

[10] The evidence of the Plaintiff is set out in her affidavits which are set out in the Motion Records which she has served and filed in support of her motion for summary judgment. The affidavits were sworn on August 31, 2010, January 5, 2011 and February 14, 2011, respectively.

Disposition of the Defendants’ Motion for Summary Judgment

[11] For the reasons set out below, there is no genuine issue requiring trial and accordingly, the motion of the Defendants for summary judgment must be granted, thereby dismissing the Plaintiff’s action against the Defendants.

the evidence

The Defendants

[12] Dr. Adamson is a duly qualified physician licensed to practice medicine in Ontario specializing in otolaryngology with extensive experience in facial cosmetic surgery. Dr. Adamson is a full professor and head of the Division of Facial Plastic and Reconstructive Surgery at the University of Toronto, as well as past president of the Canadian-American Academies of Facial Plastic and Reconstructive Surgery and the American Board of Facial Plastic Surgery. Dr. Adamson’s extensive clinical and academic experience, numerous honours, awards, academic papers and other professional activities are outlined in his curriculum vitae.

[13] Three corporations have been named as Defendants: Adamson Cosmetic Facial Surgery Inc.; the Cumberland Cosmetic Surgery Centre Inc.; and Adamson Investment Inc.

[14] At all material times, Dr. Adamson was an employee of and carried on his office practice at Adamson Cosmetic Facial Surgery Inc. Adamson Cosmetic Facial Surgery Inc. carried on business under the name Adamson Associates Cosmetic Facial Surgery Clinic (“Adamson Associates”). Adamson Associates was located in the Renaissance Plaza at 150 Bloor Street West in the City of Toronto.

[15] The Cumberland Cosmetic Surgery Centre Inc. (“The Cumberland Clinic”) was a separate business located across the street from Adamson Associates. The Cumberland Clinic was a private, surgical facility. This is where the anaesthetic consult occurred and where the Surgery was performed.

[16] Dr. Adamson was a member of The Cumberland Clinic’s medical staff with privileges to perform surgical and other procedures on his patients at The Cumberland Clinic. Dr. Adamson was not an employee of The Cumberland Clinic.

[17] The Defendant Adamson Investment Inc. (the “Investment Corporation”) was the sole shareholder of Adamson Associates. The Investment Corporation had no role or involvement in the operation or management of Adamson Associates and had no relationship at all with The Cumberland Clinic.

[18] Since 1988, Adamson Associates has employed qualified physicians through a fellowship program approved by the American Academy of Facial Plastic and Reconstructive Surgery and the University of Toronto. In order to participate in the fellowship program, the physician must have graduated from medical school, completed a recognized residency program in North America and obtained a license to practice medicine from the College of Physicians and Surgeons of Ontario.

[19] Between July 2004 and June 2005, the Defendant Dr. Jason Litner (“Dr. Litner”) practiced under Dr. Adamson’s supervision as part of this clinical fellowship program. Dr. Litner was an employee of Adamson Associates and was registered as a Fellow in the Department of Otolaryngology – Head and Neck Surgery at the University of Toronto.

[20] At all times material to the Plaintiff’s claim, Dr. Litner was licensed to practice medicine in Ontario, having obtained his medical degree from the University of Toronto, Faculty of Medicine in 1999.

[21] During Dr. Litner’s clinical fellowship at Adamson Associates, he was involved in all aspects of Dr. Adamson’s practice, including assisting Dr. Adamson with the pre- and post-operative care of Dr. Adamson’s patients. Dr. Litner would also act as Dr. Adamson’s surgical assistant, assisting Dr. Adamson by performing some of the non-substantive aspects of the surgical procedures under Dr. Adamson’s direction and supervision.

[22] The Defendant Maureen Dennis (“Nurse Dennis”) was a practice nurse employed by Adamson Associates, responsible for communicating with patients and completing preoperative assessments and procedures.

[23] The Defendant Deborah Doyle (“Ms. Doyle”) was a patient consultant employed by Adamson Associates responsible for scheduling, billing and logistical arrangements for patients.

[24] The Defendant Debra Kalman (“Nurse Kalman”) was a registered nurse employed by The Cumberland Clinic as the Nurse Manager.

[25] The Defendants Dr. Mark Friedlander (“Dr. Friedlander”) and Dr. John R. Davidson (“Dr. Davidson”) were both anesthesiologists on staff at North York General Hospital. These two physicians occasionally provided anaesthesia services at The Cumberland Clinic on a fee for service basis. Neither of them were employees of any of the corporate defendants.

[26] The remaining two individuals named as Defendants, Dr. Thomas B. Bell and Dr. Jason Meier (“Dr. Meier”) (said to be incorrectly named in the Statement of Claim as “Dr. Jason Heier”), were not served with either the Statement of Claim or any of the amended versions of the Statement of Claim. The time allowed under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the service of these individuals expired on December 4, 2007.

[27] The term “the Defendants” refers to all of the named Defendants, except Dr. Bell and Dr. Meier.

The Initial Consultations

[28] Dr. Adamson first saw the Plaintiff on January 16, 2002, for an initial patient consultation. The Plaintiff has acknowledged that she received a booklet from Adamson Associates entitled, “The Cosmetic Surgery Guide”. The Cosmetic Surgery Guide is a standard booklet that Adamson Associates provides to patients and which contains an overview of Dr. Adamson’s personal training, experience and treatment philosophy, an overview of the cosmetic procedures performed and a summary of Dr. Adamson’s cosmetic surgery programs.

[29] The Cosmetic Surgery Guide also includes a general discussion of the risks associated with all cosmetic surgery procedures – for example, bleeding, swelling, bruising, infection, poor healing, scarring, the possibility of reactions to medications or anaesthetic and, in rare cases, the possibility of nerve, blood, tissue or organ damage. It also includes a description of each surgical procedure, including information on the level of risk, how the procedure is done, what it can and cannot accomplish and what to expect in terms of post-surgical care.

[30] Dr. Adamson next saw the Plaintiff on July 7, 2003, for another consultation. According to Dr. Adamson’s notes, the Plaintiff expressed an interest in a coronal forehead lift, secondary transconjunctival only blepharoplasty (eyelid surgery), a deep-plane face lift, platysmaplasty plication (neck lift) and trace liposuction. Dr. Adamson again discussed these procedures with the Plaintiff and answered all of her questions. The Plaintiff expressed an understanding of their discussion and told Dr. Adamson she intended to return to the office to book these procedures.

[31] The Plaintiff alleges that it was during the July 7, 2003, appointment that she informed Dr. Adamson that she wanted a “Deep-Plane Rhytidectomy” (facelift) using the technique developed by “Dr. Hamra”. According to the Plaintiff, Dr. Adamson represented to her that he would perform a deep-plane face lift as described by Dr. Hamra.

[32] Dr. Sam Hamra is a well-known American plastic surgeon who has described a number of different face lift techniques that involve a “deep-plane” approach. There is no one technique or procedure developed by Dr. Hamra. While Dr. Adamson does says he does not have any specific recollection of this conversation with the Plaintiff, his evidence is that he would not have represented to the Plaintiff that he would perform “Dr. Hamra’s” deep-plane face lift. Although Dr. Adamson does use a deep-plane face lift technique, he does not view his technique as being identical to any specific technique developed by Dr. Hamra. Furthermore, he says it is unusual for a patient to request a specific technique by a specific surgeon. Therefore, in the absence of a note in the Chart documenting such a discussion, Dr. Adamson says he is confident that the Plaintiff never asked him to perform a deep-plane face lift using a specific technique developed by Dr. Hamra. Had she done so, he says he would have charted such an inquiry.

[33] On December 29, 2004, nearly a year and a half after her last visit with Dr. Adamson, the Plaintiff contacted Adamson Associates and scheduled the Surgery for March 15, 2005.

The Planning Meetings – March 2005

[34] On March 9, 2005, the Plaintiff attended at Adamson Associates and met with Nurse Dennis to prepare for the Surgery.

[35] On March 10, 2005, the Plaintiff returned to Adamson Associates to meet with Dr. Litner and Dr. Adamson for a physical assessment and determination of whether there were any contraindications to the Surgery and specific discussions about the indications for the procedure, the surgical protocols and the expected risks and benefits of the Surgery.

[36] In particular, during this visit, Dr. Litner met with the Plaintiff and reviewed all aspects of the Surgery and the specific nature of each procedure with her. The Plaintiff expressed an understanding and acceptance of all aspects of the Surgery, including all of the limitations and risks discussed and confirmed that she wished to proceed with the Surgery as planned.

[37] Dr. Litner’s uncontradicted evidence is that his consent discussion with the Plaintiff would have included a full discussion of post-surgery care, including but not limited to a discussion of scarring, infection, swelling, bleeding and hair loss.

[38] Dr. Litner also reviewed and completed with the Plaintiff the Informed Consent for Surgery form (the “Consent Form”), which he personally witnessed the Plaintiff sign. The Consent Form clearly indicated that a coronal forehead lift, deep plane face lift and neck lift, liposuction of neck and platysmaplasty would be performed. These are the precise procedures that were eventually performed on June 2, 2005.

[39] Dr. Adamson subsequently joined the meeting with Dr. Litner and the Plaintiff in order to discuss the issue of her high blood pressure which had recently been diagnosed by another physician. The Surgery was rescheduled to March 31, 2005.

[40] On March 11, 2005, the Plaintiff informed Nurse Dennis that her family doctor had prescribed her medications in order to control her blood pressure.

[41] On March 24, 2005, the Plaintiff informed Nurse Dennis that she still had not seen her family doctor since their last discussion. As a result, Nurse Dennis informed the Plaintiff that without the approval of her family doctor, and for her own safety and well-being, the Surgery would need to be postponed to another date. The next available date was June 2, 2005. Nurse Dennis did offer that if any earlier surgery date became available, they would accommodate her as long as her family doctor agrees. The Plaintiff agreed to the postponement.

[42] On May 30, 2005, after various communications between the Plaintiff and Nurse Dennis, the Plaintiff returned to Adamson Associates to meet with Dr. Adamson and Dr. Litner. They arranged that the Surgery would proceed as scheduled on June 2, 2005.

[43] Dr. Adamson arranged for the Plaintiff to have a Pre-Operative Assessment by an anesthesiologist in The Cumberland Clinic to determine whether she was fit to proceed with the Surgery.

[44] On May 31, 2005, the Plaintiff was seen by Dr. Friedlander, one of the two anesthesiologists named as a defendant in this Action, for the pre-operative anaesthesia consultation that Dr. Adamson had arranged. In Dr. Friedlander’s opinion the Plaintiff had “stable hypertension” and since there were no contraindications or any other reasons to delay, he recommended that she proceed with the Surgery as scheduled.

The Pre-Surgical Reports and Review

[45] Prior to the Plaintiff’s Surgery, Dr. Adamson and his staff received the Pre-Operative Physician Assessment completed by the Plaintiff’s family physician, Dr. Chen, which confirmed that the Plaintiff was fit to proceed with the Surgery. Dr. Adamson had also received the Plaintiff’s electrocardiogram report and a laboratory report in respect of the Plaintiff’s blood work, both of which were now in the Chart.

[46] Dr. Adamson reviewed the entire Chart in detail prior to the Surgery, including all Pre-Operative Assessments, Consultations and Reports, and confirmed that there were no contraindications for the Surgery.

The Surgery – June 2, 2005

[47] On June 2, 2005, the Plaintiff attended at The Cumberland Clinic for the coronal forehead lift, cervical liposuction, a deep-plane rhytidectomy and submentoplasty/ platysmaplasty as planned.

[48] The anaesthesiologist for the Surgery, Dr. Davidson, met with the Plaintiff prior to the Surgery and performed a pre-operative anaesthesia assessment. Dr. Davidson concluded that the Plaintiff was fit to proceed with the Surgery under a general anaesthetic as proposed.

[49] The evidence of the Defendants is that Dr. Adamson’s surgical assistant for the Surgery was Dr. Litner, the scrub nurse was Barry Prane (a non-party), the circulating nurse was Nurse Kalman and the clinical assistant was Vera Radunovic (also a non-party).

[50] The evidence of the Defendants is that the only other individual present in the operating room during the Surgery was Dr. Meier, an applicant for Dr. Adamson’s fellowship program. Dr. Meier was present only to observe the Surgery. He did not participate or play any role whatsoever in respect of the care and treatment provided to the Plaintiff.

[51] The administration of the general anaesthetic was uneventful. Following induction, a local anaesthetic was administered, causing a temporary rise in the Plaintiff’s blood pressure, which Dr. Davidson controlled with two 5 milligram doses of the medication known as Labetalol.

[52] Contrary to the Plaintiff’s allegations, the evidence of the Defendants is that it was Dr. Adamson who performed all substantive aspects of the Surgery. Dr. Litner confirms that Dr. Adamson was the surgeon for the entire procedure and that his assistance was limited to tasks such as preparation of the hair and sterile field, injecting the local anaesthetic, retraction of tissues so Dr. Adamson could see better, sponging bleeding areas, cutting sutures and the placing of dressings after the Surgery.

Post Surgery Care

[53] the Plaintiff was seen post-operatively by Dr. Litner and Dr. Adamson at Adamson Associates on June 6, 10, 17 and 26, and July 6, 2005. All indications were that the Plaintiff was healing well and that she had an excellent lift. There were no unusual post-operative complications or issues. The Plaintiff’s recovery was proceeding as planned.

[54] On July 27, 2005, the Plaintiff met with Dr. Adamson and his clinical fellow at the time, Dr. Zavod (Dr. Litner had completed his fellowship). During this meeting, the Plaintiff raised for the first time a number of concerns in respect of the Surgery and her post-operative recovery. She was concerned with an apparent asymmetry. Dr. Adamson and Dr. Zavod noted on examination that she had an excellent result and was healing within normal limits. The Plaintiff also expressed concerns with hair loss, which is a known complication with these procedures. Dr. Adamson noted that he would follow the small area of hair loss.

[55] It was during this meeting that the Plaintiff also raised, for the first time, concerns that her face had not been marked pre-operatively. She questioned whether Dr. Adamson performed the Surgery himself and whether a deep plane facelift had been performed. Dr. Adamson reassured the Plaintiff that he marks every patient on the morning of the Surgery, that he had been the surgeon who performed the procedure and that he worked carefully without being hurried. Dr. Adamson also explained to the Plaintiff that a deep plane facelift had been performed and that he had been performing them for approximately ten years.

[56] This is the last time that the Plaintiff was seen by Dr. Adamson or his clinical fellow at either Adamson Associates or The Cumberland Clinic in follow-up despite their numerous requests. Subsequent to this, the Plaintiff engaged in a number of phone calls and correspondence with Adamson Associates in which she raised similar concerns and allegations and requested further information and copies of her medical records.

[57] The Plaintiff claims that the Surgery did not produce satisfactory results and, specifically, that she continues to have face and brow asymmetry, poor brow position, neck deformity and that the Surgery failed to eliminate sagging and caused soft-tissue damage.

[58] The evidence is that the Plaintiff was informed and acknowledged the inherent limitations of cosmetic surgery; she understood that the objective of the Surgery was improvement, not perfection, and that there is a real possibility imperfections may ensue and the results may not live up to her expectations. This concept is clearly articulated in the Consent Form, The Cosmetic Surgery Guide, and was explained to her in her consultations with Dr. Adamson and Dr. Litner.

[59] In terms of surgical risks and complications, the Plaintiff alleges that the Surgery caused her pain, swelling, bleeding, scarring and hair loss. As noted above, the evidence is that the Plaintiff was informed about and acknowledged these risks.

[60] The Plaintiff acknowledged in the Consent Form that Dr. Adamson and/or his staff had fully explained the risks involved with the Surgery and that she had been given an opportunity to ask questions, which had been fully answered, and that she understood and accepted the information provided. In respect of the risk of scarring, the Consent Form has a detailed explanation of this risk.

The Expert Evidence

[61] Rule 53.03 provides for the manner in which the report of an expert is to be given by a party who intends to call the expert to give evidence at trial.

[62] The Defendants have tendered two expert opinions pursuant to Rule 53.03 from Dr. Wayne Carman (“Dr. Carman”) and Dr. Pavel Straka (“Dr. Straka”) respectively.

[63] the Plaintiff has not tendered any admissible expert evidence pursuant to Rule 53.03.

[64] Dr. Carman is on the active surgical staff in the division of plastic surgery at the Scarborough Hospital – General Division in Toronto and is the director of the Cosmetic Surgery Institute. Dr. Carman reviewed all of the relevant medical records and pleadings and determined that, in his expert opinion, the pre-operative, peri-operative and post-operative care provided to the Plaintiff met the standard of care and that the procedures identified on the consent form were the procedures performed by Dr. Adamson.

[65] In particular, Dr. Carman confirms that the Defendants pre-operative management of the Plaintiff’s elevated blood pressure was appropriately diagnosed, monitored and managed and that she did not suffer any harm as a result of her diagnosis of high blood pressure.

[66] Dr. Carman confirms that the surgical procedures performed on the Plaintiff were the ones identified on the Consent Form, which is signed by the Plaintiff, and that these procedures were appropriate given her clinical presentation.

[67] Dr. Carman explains that it is common practice, indeed essential, for a surgeon to use a surgical assistant to complete these procedures and that using a surgical assistant in this context falls within the standard of care.

[68] Dr. Carman confirms that the Plaintiff’s concerns regarding the outcome of the Surgery are minor postoperative complications that were part of the pre-operative consent discussions and are likely not, in any event, permanent. His opinion is that they are in no way evidence that the care provided was below the standard of care.

[69] Dr. Straka is a licensed anaesthesiologist practicing full time at the Humber River Regional Hospital in Toronto, Ontario. Dr. Straka also has experience providing anaesthetic care at several private cosmetic and endoscopic facilities in Toronto. Dr. Straka reviewed all of the relevant medical records and pleadings and has opined that Dr. Davidson and Dr. Friedlander met the standard of care in respect of the care and treatment they provided to the Plaintiff and, in particular, that the administration of Labetalol was a safe, appropriate and necessary component of maintaining the Plaintiff’s blood pressure intra-operatively.

[70] Dr. Straka confirms that the use of anaesthetic in respect of the Plaintiff was uneventful and the patient remained in stable condition during and after the Surgery.

[71] Dr. Straka also explains that while it is customary for anesthesiologists to outline the anaesthetic plan to the patient, it is not common – and indeed is not the standard of care – to discuss every potential detail, drug or potential intervention which may be required.

The Motion to Strike Portions of the Plaintiff’s Affidavits

[72] The Defendants move to strike the references in the Plaintiff’s affidavits to the medical opinions and reports and exhibits referred to below.

[73] The Plaintiff has filed three affidavits in her own name in support of her motion for summary judgment, sworn on August 31, 2010, January 5, 2001 and February 14, 2011 respectively.

[74] Rule 20.02(1) of the Rules of Civil Procedure provides that an affidavit for use on a summary judgment motion may be made on information and belief, as provided for in Rule 39.01(4), but that on the hearing of the motion the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having knowledge of the contested facts.

[75] Rule 39.01(4) provides:

An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

[76] As a result, an affidavit for use on a motion for summary judgment may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

[77] As Wright, L.J.S.C. held in Evans v. Holroyd: “The provisions of this rule are well known and explicit and in the face of an objection being taken, the Court cannot waive the irregularity.”[^1]

[78] In some circumstances, the court may have regard to the substance of the exhibits to an affidavit, even if the affiant has failed to state the source of the information and the fact of their belief, but only in respect of non-contentious matters or documents that are not in dispute.[^2]

[79] Furthermore, it is well-established that, on a motion for summary judgment, expert reports or opinion evidence (including opinions found in medical literature) must be tendered through direct evidence and in a manner that permits cross-examination of the expert.[^3] The expert must either place the substance of his or her opinion in an affidavit or swear an affidavit to which the report is annexed and in which the truth of the report is attested to.[^4]

[80] As Strathy J. noted in Suwary v. Women’s College Hospital:

The reason for this rule is obvious: a party relying on expert evidence in a motion for summary judgment does not ‘play trump’ by shielding its expert from cross-examination through the use of an ‘information and belief’ affidavit of someone completely unqualified to testify on the issue.[^5]

[81] The Plaintiff refers in her affidavits to two oral medical opinions provided by Dr. Nazin Karsan (“Dr. Karsan”) and Dr. Harold Silver (“Dr. Silver”) and to the medical opinion of an unnamed medical professional. In addition, the Plaintiff refers to two written medical reports from Dr. Karsan and Dr. Silver, which she attaches as exhibits to her affidavit. Finally, the Plaintiff refers to opinions found in several medical articles and guidelines, which she also attaches as exhibits to her Affidavit. \

[82] The Plaintiff has not complied with the requirements of Rule 39.01(4) and has not tendered any direct evidence from any qualified expert on this motion. Moreover, none of the opinions tendered by the Plaintiff comply with the requirements of Rule 53.03. As a result, these medical opinions have not been properly introduced into evidence on this motion and should be struck out.

[83] The Plaintiff has also attached as exhibits to her Affidavits a voluminous amount of material, mostly containing computer printouts from the internet, including medical articles, guidelines, physician profiles and materials form professional organizations. The Plaintiff has not supported these materials with evidence from any expert in the field to which they relate, nor has the Plaintiff deposed in her Affidavit to the source of any of the information contained in these exhibits or her belief in its truth.

[84] In Reid v. Livingstone[^6] the plaintiff attached to her affidavit various exhibits which included an Obstetric Guideline of British Columbia respecting “Pain Management During Labour dated” May 2000, a Canadian Medical Association article on PTSD and an Obstetric Guideline of British Columbia respecting Vaginal Births after Previous Caesarian Birth. In Reid v. Livingstone, Cameron J. held that:

These internet materials are not admissible in evidence as they are not properly sworn to as hearsay and are not supported by the affidavit of an expert in the field. Mrs. Reid's own evidence on the issues of a doctor's standard of care and whether it was met is not admissible as she is not an expert.[^7]

[85] As a result, the offending paragraphs and exhibits in the Plaintiff’s Affidavits are not admissible on this motion and are to be struck out accordingly.

The Motion for Summary Judgment: Rule 20

[86] A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.[^8]

[87] Rule 20 of the Rules of Civil Procedure, which govern summary judgment motions, was recently amended to provide that a court shall grant summary judgment, in whole or in part, where the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or a defence.[^9]

[88] In making this determination, a motion’s judge may now weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.[^10] A judge may also, for the purpose of exercising those powers, order that oral evidence be presented.[^11] Finally, these powers need not be exercised if the judge determines it is in the interest of justice for such powers only to be exercised at trial.[^12]

[89] A motion judge’s mandate under the new Rule 20 is to use these expanded forensic powers to determine whether there is a genuine issue that requires a trial and whether it is in the interests of justice for these powers to be exercised at trial or on the motion.[^13]

[90] It is therefore important that on a motion for summary judgment the parties place before the Court all of the relevant evidence that could be placed before the trial judge.[^14] This in itself is not new. The case law that requires parties to put their “best foot forward” and “lead trump or risk losing” continues to apply with equal force to motions under the new summary judgment rules.[^15] The moving party must provide a level of proof that demonstrates that a trial is unnecessary to truly, fairly and justly resolve the issues.[^16]

[91] The new powers available to the Court under Rule 20 allow this Court to weigh any contradicting evidence and to evaluate the credibility of the deponents when determining whether a genuine issue exists that requires a trial. Therefore, to the extent to which material evidence of the Plaintiff and the Defendants is contradictory, this no longer means, as it may have under the old Rule, that a trial is necessarily required to resolve the issue.

[92] The practical implications of the relatively new standard for summary judgment which is set out in Rule 20 of the Rules of Civil Procedure were recently considered Brown J. in Optech Incorporated, supra.[^17]

How, then, does a court approach a summary judgment motion? Stepping back, as a practical matter it strikes me that on any motion for summary judgment a motions judge must pose, at certain points of his or her decision-making process, the following question – how much more would I need to decide this case? …

If conflicts of material fact are present in the record, the enhanced powers of Rule 20.04(2.1) now authorize the judge to engage in a standard fact-finding exercise but, in my view, at this stage a judge needs to ask, yet again, ‘how much more do I need to determine that conflicting evidence and thereby decide this case?’ …

[93] In the final analysis, the issue is whether there is a genuine issue that requires a full trial, or whether it is in the interests of justice for the motions judge to exercise the powers under Rule 20.04 in order to truly, fairly and justly resolve the issues on the motion.

[94] On December 5, 2011, the Ontario Court of Appeal released its decision in Combined Air Mechanical Services Inc. v. Flesch.[^18] Combined Air established “a new departure and a fresh approach to the interpretation and application of the amended Rule 20”.[^19] The Court of Appeal established the “full appreciation test” which requires that motions judges assess whether the attributes of a trial are necessary to enable a full appreciation of the evidence and issues in the case.[^20] That test has been applied in making the determinations set out below.

[95] In its decision, the Court of Appeal affirmed the principle that “[e]ach side must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried”. Under the amended Rule 20, as interpreted in Combined Air, the parties are “not entitled to sit back and rely on the possibility that more favourable facts may develop at trial”.[^21]

The Issues on the Motion for Summary Judgment

[96] This is a medical malpractice action in which, according to the Defendants, the Plaintiff asserts several claims against the Defendants relating to the Surgery in respect of the following:

• alleged breaches of the standard of care in relation to the Surgery (the “Standard of Care Claims”);

• the Plaintiff’s alleged lack of consent to various aspects of the Surgery (the “Consent Claims”);

• the alleged vicarious liability of the corporate defendants for the acts and/or omissions of the individual defendants (the “Vicarious Liability Claims”); and

• the allegations of fraud and falsification of medical records (the “Fraud Claims”).

[97] The Plaintiff asserts that in the Amended Amended Statement of Claim she has made claims which she characterizes as “Fraud Claims”. These claims are said to be pleaded in paragraphs 10.2, 10.3, 12.3, 12.4, 12.3, 12.4, 12.5, 12.6, 12.8, 13, 15, 24, 28.1, 33, 34, 35, 36, 36.1 and 40.

[98] The text of those paragraphs is as follows:

10.2 The plaintiff pleads that Dr. Adamson, Dr. Litner, Dr. Davidson, Dr. Friedlander, Dr. … Kalman, Maureen Dennis, Deborah Doyle, the Clinic and his employees owed a fiduciary duty to the plaintiff, and by virtue of this relationship, owed the plaintiff a duty of utmost good faith and candor. the plaintiff pleads that those defendants failed to disclose to the plaintiff that the Clinic was a teaching facility when they were under a duty to disclose that the Clinic was a teaching facility, and their failure to do so constituted a negligent, reckless or fraudulent misrepresentation. This misrepresentation was material and those defendants knew, or ought to have known that that [sic] plaintiff would rely upon this misrepresentation.

10.3 The duty to disclose that the Clinic was a teaching facility was heightened since the Clinic is an affiliate of the University Health Network and required to abide by its Code of Ethics and Mandatory Disclosure Policy.

12.3 Prior to the initial consultation, the plaintiff received a letter from the Clinic enclosing an information package entitled “The Cosmetic Surgery Guide TM” which describes the services offering at the Clinic and a biographical sketch which outlines Dr. Adamson’s training and expertise (the “Clinic Guide”). Portion of Dr. Adamson’s sketch reads: “Fellowship Director, American Academy of Facial Plastic and Reconstructive Surgery (13 years). Medical student and residents teaching. Faculty of Medicine, University of Toronto (20 years).” From the Clinic Guide, the plaintiff learned that Dr. Adamson was fellowship director and also was teaching medical students and residents.

12.4 During the January 16, 2002 meeting, the plaintiff asked Dr. Adamson about his fellowship program and teaching activities, and Dr. Adamson replied that the fellowship program was sponsored by both the American Academy of Facial Plastic and Reconstructing Surgery and the University of Toronto and that he was training postgraduate fellows at the Toronto General Hospital on patients who had sustained facial trauma and also was teaching residents and students at the University and at the University hospitals. In fact, at all material times, Dr. Adamson was training in facial plastic and reconstructive surgery clinical fellow applicant, residents and visiting surgeons on the faces of his private patients at the Clinic.

12.5 Further, Dr. Adamson represented to the plaintiff that the Clinic where he was performing surgery o his private patients, met the standards for elective and emergency care similar to those in place at the Toronto General Hospital. In fact, the Clinic is quite dangerous to the public place because Dr. Adamson’s unsafe acts are not errors, but deliberate deviations from the standards, rules and safe operating procedures. Details concerning these allegations will follow.

12.6 The plaintiff pleads that in the Clinic Guide, Dr. Adamson stated, among other things, the following: “Honest answers, a caring attitude, and the utmost in technical skill and aesthetic artistry are the qualities patients can rely on in Dr. Peter A. Adamson. Since launching his successful and highly respected Toronto practice in 1981, Dr. Adamson’s excellence in cosmetic and reconstructive surgery of the face, head, and neck has consistently inspired the loyalty and trust of patients from all walks of life.”

12.8 The plaintiff pleads that at the time Dr. Adamson made the representations referred to in paragraphs 12.4, 12.5 and 12.6 of the amended statement of claim, he knew that they were false and that Dr. Adamson made these false representations with the intent that they would be relied upon by the plaintiff, and the plaintiff did in fact rely on Dr. Adamson’s representations. The plaintiff pleads that these representations were intended to induce the plaintiff to enter into the Contract referred to in paragraph 11 of the amended statement of claim.

13. The plaintiff pleads that on July 7, 2003, Dr. Adamson represented to her that the Deep Plane Rhytidectomy procedure he would be performing on the plaintiff was the Deep Plane Rhytidectomy procedure as described by the inventor of the said procedure, Dr. Hamra, in his book (“Dr. Hamra’s Deep Plane Rhytedectomy”) and that Dr. Adamson has been practicing Dr. Hamra’s Deep Plane Rhytidectomy for 10 years. The plaintiff pleads that at the time Dr. Adamson made the aforesaid representations, he know that they were false and that Dr. Adamson made these false representations with the intent that they would be relied upon by the plaintiff, and the plaintiff did in fact rely on Dr. Adamson [sic] representations.

14. Relying on Dr. Adamson’s representations as referred to in paragraph 13, as well as the fraudulent misrepresentations and the fraudulent omission, as referred to in paragraphs 10.2, 12.4, 12.5, 12.6 and 12.7 of the amended statement of claim, the plaintiff called Deborah Doyle in January of 2005, to book her surgery, and Deborah Doyle booked the plaintiff’s surgery for March 15, 2005, and scheduled a pre-operative visit with Dr. Adamson for March 2, 2005.

15. The plaintiff pleads that at that meeting, Dr. Adamson assured the plaintiff that he would be performing Dr. Hamra’s Deep Plane Rhytidectomy and that all actions in the surgery would be performed by Dr. Adamson. The plaintiff pleads that at the time Dr. Adamson made these representations, he knew that they were false and that Dr. Adamson made these false representations with the intent that they would be relied upon by the plaintiff, and the plaintiff did in fact rely on Dr. Adamson’s false representations.

28.1 The plaintiff pleads that before signing the consent form, she questioned Dr. Litner regarding paragraph 4 of the consent form which authorizes “Dr. Adamson and/or his medical staff to perform any other procedure(s) or take whatever measures that he/they may deem necessary or desirable, in addition to or in substitution for the surgical procedures initially contemplated”, and Dr. Litner replied that he said paragraph did not apply to the plaintiff’s case and should be ignored by her. The plaintiff pleads that at the time Dr. Litner made the aforesaid representations, he knew that they were false and that Dr. Litner made these false representations with the intent that they would be relied upon by the plaintiff, and the plaintiff did in fact rely on Dr. Litner’s false representations.

33. On Saturday, May 28, 2005, the plaintiff met with her general physician, at which time he completed and faxed to Dr. Adamson’s office the Physical Assessment (History & Physical) form. Shortly after the said visit, the plaintiff got flu, and when she meet with Dr. Adamson on May 30, 2005, after complaining of flu, she asked him to postpone the scheduled for June 2, 2005, surgery. In response, Dr. Adamson told the plaintiff that she had to be evaluated by an anaesthesiologist, and if the anaesthesiologist decided that the plaintiff was not fit to proceed to surgery on June 2, 2005, then Dr. Adamson would postpone the surgery. The plaintiff pleads that at the time Dr. Adamson made these representations, he knew that they were false and that Dr. Adamson made these false representations with the intent that they would be relied upon by the plaintiff, and the plaintiff did in fact rely on Dr. Adamson’s false representations.

34. The plaintiff pleads that Dr. Friedlander then took the plaintiff’s blood pressure and advised the plaintiff that her blood pressure was 143/83 and stable, that her complaint of flu would not be a problem for the surgery and that she was fit to proceed to surgery on June 2, 2005. The plaintiff pleads that at the time Dr. Friedlander made these false representations with the intent that they would be relied upon by the plaintiff, and the plaintiff did in fact rely on Dr. Friedlander’s false representations.

35. The plaintiff pleads that shortly after her meeting with Dr. Friedlander, she had her blood pressure checked, and it was 180/100. The plaintiff immediately contacted Dr. Maureen Dennis to advise her that the surgery may have to be postponed because of the plaintiff’s blood pressure. Maureen Dennis informed the plaintiff that because Dr. Friedlander had concluded that the plaintiff was fit to proceed to surgery, and because it would have been the third postponement of the plaintiff’s surgery, the surgery could be postponed only if on the date of the surgery the plaintiff’s blood pressure was high. further, Maureen Dennis assured the plaintiff that her blood pressure would be checked on arrival at the Clinic on the day of surgery, and if it was still high, the surgery would be postponed.

36.1 The plaintiff states that at the time Maureen Dennis made the aforesaid representations, she knew that they were false and that Maureen Dennis made these representations with the intention that they would be relied upon by the plaintiff, and the plaintiff did in fact rely on Maureen Dennis’s false representations.

40. The plaintiff pleads that relying on the false representations and the fraudulent omissions referred to in paragraphs 10.2, 12.4, 12.5, 12.6, 13, 24, 28.1, 33, 35, as well as on Maureen Dennis’s false representations as referred to in paragraph 36, of the amended statement of claim, she attended at the Clinic on June 2, 2005, at which time she underwent cosmetic facial surgery under general anaesthesia administered by Dr. Davidson, during which the plaintiff was used by Dr. Adamson, Dr. Litner and Dr. Heier as a human guinea pig. Relying on Maureen Dennis representation as referred to in paragraph 36 of the amended statement of claim, the plaintiff attended at the Clinic on June 2, 2005, at which time Dr. Davidson anaesthetized the plaintiff so that Dr. Litner and Dr. Heier could practice and they did practice on the plaintiff’s face.

[99] The Plaintiff submits that the Defendants and their counsel know that the Plaintiff’s claim is not for “breaches of the standard of care in relation to the surgery” or for “lack of consent to various aspects of the surgery”.

[100] On this motion for summary judgment by the Defendants, the Court must determine whether they have established that there is no genuine issue requiring a trial in respect of the claims of the Plaintiff.

The Evidentiary Basis for the Claims

[101] In view of the differing legal characterizations submitted by the parties as to the nature of the claims, it is advisable to consider first the evidentiary basis for the factual allegations which are said to support the claims.

[102] The factual allegations made by the Plaintiff in the fraud claims are as follows:

• The Clinic operated by Dr. Adamson was a “teaching facility” and the Defendants fraudulently failed to disclose this to the Plaintiff;

• Dr. Adamson was training other doctors and medical students “on the faces of his private patients” at the Clinic, which he did in the case of the Plaintiff by allowing Dr. Litner or Dr. Meier to “practice on the patient’s face”, and Dr. Adamson made a false representation about this;

• Dr. Adamson made false representation about the standards and the work of the Clinic;

• Dr. Adamson falsely represented to the Plaintiff that he would use the surgical procedure invented by Dr. Hamra;

• Dr. Litner falsely represented to the Plaintiff that the portion of the consent form which authorized the participation of other medical staff did not apply in her case;

• Dr. Adamson falsely represented to the Plaintiff that if the anaestheseologist decided she was not fit to proceed to surgery, Dr. Adamson would postpone it;

• Dr. Friedlander made false representations to the Plaintiff about her fitness for surgery;

• Nurse Dennis falsely represented to the Plaintiff that surgery could only be postponed if her blood pressure was high and assured her that her blood pressure would be checked on arrival at the Clinic on the day of surgery and, if it was still high, the surgery would be postponed.

[103] These factual allegations are analyzed below.

Whether The Cumberland Clinic is a “Teaching Facility”

[104] The Plaintiff alleges that had she known The Cumberland Clinic was a “teaching facility”, she would not have consented to the Surgery.

[105] The evidence demonstrates that The Cumberland Clinic is not, in fact, a “teaching facility” where, as the Plaintiff alleges, individuals “train” on Dr. Adamson’s patients. Rather, the evidence establishes that all of the surgical procedures performed by Dr. Adamson at The Cumberland Clinic are done with the assistance of fully qualified medical professionals, including other physicians licensed to practice in the Province of Ontario.

[106] The fact that Dr. Adamson is the director of a clinical fellowship program, or that Adamson Associates employs a clinical fellow, does not make The Cumberland Clinic a “teaching facility” in the manner alleged by the Plaintiff.

[107] In order to participate in the fellowship program, the physician must have graduated from medical school, completed a recognized residency program and obtained a license from the College of Physicians and Surgeons of Ontario.

[108] The evidence demonstrates that Dr. Litner had all of these qualifications and was a licensed physician with considerable experience.

[109] Similarly, the fact that Dr. Adamson holds a professorship at the University of Toronto, or that he has been teaching residents and medical students at University Hospitals in Toronto, does not mean The Cumberland Clinic is a “teaching facility”. Dr. Adamson’s evidence is clear that any students or residents who may be present at either Adamson Associates or The Cumberland Clinic are there only to observe his practice.

[110] The Plaintiff has led no credible evidence, other than her own speculative belief, to support her allegations that either Adamson Associates or The Cumberland Clinic are “teaching facilities” in the manner she alleges.

[111] In addition, the Plaintiff’s own evidence completely contradicts her assertion that she was unaware of the clinical fellowship sponsored by Dr. Adamson.

[112] The Plaintiff acknowledges in her affidavit that on January 5, 2005, Dr. Adamson sent her a copy of a booklet called “Cosmetic Surgery Guide” which included disclosure that Dr. Adamson was a fellowship director who also taught medical students and residents.

[113] The Plaintiff has further admitted that on January 16, 2002, Dr. Adamson answered her questions about his fellowship program and teaching activities and informed her that The Cumberland Clinic met the standards for elective and emergency care similar to those in place at the Toronto General Hospital. While Dr. Adamson has no recollection of this conversation, he confirms that some of the information she attributes to him is partially correct. In addition, Dr. Adamson confirms that his clinical fellowship program and teaching activities are publically known and that he would never hide or conceal them from his patients.

[114] Based on the above, there is no evidentiary basis for the claim that the Clinic operated by Dr. Adamson was a “teaching facility” and the Defendants fraudulently failed to disclose this to the Plaintiff.

The Performance of the Surgery

[115] The Plaintiff alleges that all the actions in the Surgery were to be performed by Dr. Adamson and that he assured her that all actions in the Surgery would be performed by him personally. The Plaintiff asserts that, in fact, it was Dr. Litner and Dr. Heier who operated on her face and performed a cervical liposuction and/or a submateoplast/ platymaplasty procedure on her during which time the soft tissue of her neck was injured.

[116] However, the Plaintiff has no basis for any of these allegations, other than her own unsubstantiated and uncorroborated belief. The Affidavit and documentary evidence tendered on this motion support the assertion of the Defendants that it was Dr. Adamson who performed the substantive aspects of the Surgery and, to the extent he was assisted by other licensed medical professionals, this was consented to by the Plaintiff and is consistent with the standard of care.

[117] The Consent Form that the Plaintiff signed on March 10, 2005, contained the following provision:

I hereby request and authorize Dr. Peter A. Adamson, his assistants and operating room personnel to perform: coronal forehead lift, deep plane face and neck lift, liposuction of the neck, platysmaplasty.

[118] It is the uncontradicted expert evidence of Dr. Carman that assistance at surgery is a common practice and is required in order to facilitate the actions of the surgeon and to allow for the procedure to be completed in a safe and efficient manner. This is consistent with Dr. Adamson’s evidence that it is simply physically impossible for him to perform these procedures without assistance.

[119] The fact that Dr. Adamson had Dr. Litner and others assist him during the Surgery does not change the fact that he was the primary surgeon in this case and that his use of their assistance falls within the standard of care.

[120] Moreover, there is no dispute that on June 2, 2005, the day of the Surgery, Dr. Adamson, Dr. Litner and Dr. Davidson were all duly licensed to practice medicine in the Province of Ontario.

[121] It is the evidence of Dr. Adamson and Dr. Litner that it was Dr. Adamson, not Dr. Litner, who was the lead surgeon for the entire procedure and that it was Dr. Adamson, not Dr. Litner, who performed all substantive aspects of the Surgery.

[122] Dr. Litner’s role as surgical assistant was limited to assisting Dr. Adamson with various tasks, which would typically include: the preparation of the hair and sterile field, injecting of the local anaesthetic, retraction of tissue so Dr. Adamson could see better, sponging bleeding areas, cutting sutures and the placing of dressings after the surgery.

[123] At all times, Dr. Adamson was the lead surgeon and was responsible for all aspects of the Surgery.

[124] It is the evidence of Dr. Adamson and Dr. Litner that Dr. Meier, an applicant for the fellowship program, was visiting at the time and was present to observe the Surgery Dr. Adamson performed on the Plaintiff. Although Dr. Meier was present in the operating room to observe, Dr. Meier did not participate in the Surgery and played no role whatsoever in respect of the Plaintiff’s care and treatment.

[125] The Plaintiff has tendered no evidence beyond her own unsupported belief that contradicts the evidence of Dr. Adamson, Dr. Litner and Dr. Carman so there is no evidentiary basis for the claim about improper participation by Dr. Litner or Dr. Meier.

Representations by Dr. Adamson about the Nature and Work of the Clinic

[126] These claims are made in paragraphs 12.4, 12.5, 12.6 and 12.8 in the Amended Amended Statement of Claim. There is no evidentiary basis in the record for this claims that the representations referred to were false.

The Surgical Technique

[127] The Plaintiff says that she specifically requested that Dr. Adamson use “Dr. Hamra’s Deep Plane Rhytidectomy” technique when he performed the Surgery, and that Dr. Adamson agreed to use this technique, but that on the day of the Surgery Dr. Adamson used a technique other than “Dr. Hamra’s Deep Plane Rhytidectomy”.

[128] There is no evidence other than the Plaintiff’s that she ever even requested or discussed a Dr. Hamra deep plane technique with Dr. Adamson. There is no note in the Chart recording that any such discussion took place. Dr. Adamson is confident that if such a discussion had taken place, he would have documented her request and their discussion in the Chart. In the absence of any note, Dr. Adamson is confidence no such discussion took place.

[129] The “Informed Consent for Surgery Form” that the Plaintiff executed on March 10, 2005, specifically lists the surgical procedures that the Plaintiff consented to:

(i) a coronal forehead lift;

(ii) a deep plane face and neck lift;

(iii) liposuction of the neck; and

(iv) platysmaplasty.

[130] Based on the Supreme Court of Canada’s decision in Reibl v. Hughes, if the basic nature and character of the operation performed is substantially that which the Plaintiff was advised about, and then agreed to, then there has not been an uncontested invasion of the person of the plaintiff, regardless of any failure to disclose any collateral risk flow from the operation. A failure to disclose risks or provide information about the procedure goes to an informed consent analysis but does not support a claim in battery.[^22]

[131] According to the uncontradicted expert evidence of Dr. Carman, the basic nature and character of the operation performed by Dr. Adamson was substantially that which the Plaintiff agreed to. As Dr. Carman explains, the term “deep plane facelift” does not refer to specific surgical technique, but rather a family of techniques that utilize a deep dissection method. Dr. Carman’s evidence is that depending on the patient’s clinical presentation intra-operatively, there were various acceptable surgical methods and techniques within a generally accepted range to accomplish the cosmetic procedures the Plaintiff has consented to.

[132] The Plaintiff has not provided any admissible expert evidence that the facelift performed by Dr. Adamson was of a substantially different nature and character than the procedure she consented to. By contrast, Dr. Carman’s expert evidence is that the deep plane facelift itemized in the consent form was the procedure which was undertaken by Dr. Adamson.

[133] For the above reasons, the Plaintiff’s evidence is not of sufficient weight to overcome the evidentiary basis provided by the Defendants.

Dr. Litner and the Consent Form

[134] The Plaintiff states that she asked Dr. Litner about paragraphs 4, 8 and 9 of the Consent Form and that Dr. Litner told her that each of those paragraphs did not apply to her case and should be ignored by her.

[135] While Dr. Litner has no independent recollection of any such conversation, he may have told her paragraphs 8 and 9 did not apply as the Surgery would not require the transplant of tissue, cartilage or bone from other areas of the body, or the use of a medical grade synthetic implant.

[136] However, Dr. Litner is adamant that he would never tell any patient, including the Plaintiff, that paragraph 4 did not apply. Paragraph 4 of the Consent Form states:

I also authorize Dr. Adamson and/or his medical staff to perform any other procedure(s) or take whatever measures that he/they may deem necessary or desirable, in addition to or in substitution for the surgical procedures initially contemplated.

[137] According to Dr. Litner, this is an essential paragraph that, in his experience, appears in virtually every consent form he has ever used for the simple reason that it is important for patients to understand that additional surgical intervention may be required during a procedure.

[138] The Plaintiff alleges that Dr. Litner falsely certified that the Consent Form was completed prior to her signature and that she did not discuss the purpose of the operation with Dr. Litner. Dr. Litner’s evidence is unequivocal that he personally witnessed the Plaintiff sign the Consent Form and that he would not have certified the form unless it had been complete and he had discussed the purpose of the operations with her. Dr. Litner’s contemporaneous handwritten notes, in addition to the Consent Form itself clearly document that he undertook a detailed discussion of each proposed procedure with the Plaintiff on that day.

[139] Based on the above, taking into account the reasons given by Dr. Litner and the contemporaneous record, the evidence proffered by the Defendants has greater weight than that of the Plaintiff.

Dr. Adamson’s Advice

[140] There is no evidence that there was anything false about Dr. Adamson’s advice that he would postpone the surgery if the anaesthesiologist decided the Plaintiff was not fit to proceed.

Dr. Friedlander’s Advice

[141] Dr. Friedlander’s evidence is as follows:

Ms. Markowa assets at paragraphs 61 and 62 of her August 31, 2010 Affidavit that she complained to me of having the “flu”. I do not have any specific recollection of Ms. Markowa ever complaining of the flu. If Ms. Markowa had complained of having the flu, I would have documented it in my consult note. Given that my note only records that Ms. Markowa exported feeling “achy” n the weekend but was feeling better, and that she told me she did not have a cough of headache, I am confident that Ms. Markowa did not complain to me during our appointment of having the flu.[^23]

[142] For the reasons given by Dr. Friedlander for his confidence that the Plaintiff did not complain of having the flu, his evidence on this point is to be preferred. There is no evidence that the advice he gave about the Plaintiff’s blood pressure was incorrect or that his advice that his assessment that the Plaintiff had “stable hypertension” was false.

The Plaintiff’s Blood Pressure: Basis for Postponement Prior to the Day of Surgery

[143] The evidence of the Plaintiff repeats the allegation in paragraph 36 of the Amended Amended Statement of Claim.

[144] The evidence of Nurse Dennis is as follows:

44. Contrary to Ms. Markowa’s assertion at paragraph 63 of her August 31, 2010 Affidavit I did not tell Ms. Markowa that because Dr. Friedlander had concluded that she was fit to proceed to surgery, and because it would have been her third postponement of her surgery, that it could only be postponed if on the day of the surgery her blood pressure was high. While I have no specific recollection of this conversation, I may have told Ms. Markowa that if her blood pressure was high on the day of the surgery, the anaesthesiologist may decide she is not fit to proceed with the Surgery as scheduled and it would be postponed. Adamson Associates does not have any policy regarding the number of permissible postponements.[^24]

[emphasis original]

[145] Ms. Dennis states a reason why she would not have told the Plaintiff that there could be no postponement unless her blood pressure was high on the day of surgery: there was no company policy to that effect. There is no evidence contrary to that statement. It is not apparently unreasonable. It is consistent with the evidence given by Ms. Doyle at paragraph 12 of her Affidavit, that the company does not have any policy that requires a patient’s surgery to be rescheduled to a specific date failing which the patient would forfeit their monies paid to date.

[146] For these reasons, the evidence of the Defendants on this point is to be preferred to that of the Plaintiff.

The Plaintiff’s Blood Pressure: Basis for Postponement on the Day of Surgery

[147] The Plaintiff says she told Ms. Dennis the surgery might have to be postponed because of her blood pressure and Ms. Dennis assured her that her blood pressure would be checked on arrival and if it was still high, the surgery would be postponed. Ms. Dennis says that she may have said if the Plaintiff’s blood pressure was high, the anaesthesiologist may decide she is not fit to proceed with the surgery as scheduled and it would be postponed. Since the question under discussion was whether the surgery would need to be postponed, the reasonable inference is that Ms. Dennis’s response, however precisely it was worded, would reasonably have been understood to mean that the Plaintiff’s blood pressure would be taken prior to surgery and if, because of the blood pressure reading, she was not fit to proceed, the surgery would be postponed.

[148] The evidence of the anaesthesiologist, Dr. Davidson, is as follows in paragraphs 9 and 10 of his affidavit:

9. The measurements immediately to the right of the pre-operative assessment section on the Anaesthetic Record are recordings of Ms. Markowa’s oxygen saturation, blood pressure, pulse and breathing. I do not, as part of my usual practice, obtain these measurements during the pre-operative assessment. Rather, it is my practice that after a patient is brought into the operating room and is prepared for surgery, I will obtain baseline measurements for all of the patient’s relevant vital signs, including blood pressure, heart rate and oxygen saturation, prior to the administration of any general anaesthetic and after all relevant medical instruments are attached to the patient and functioning properly.

10. According to the Anaesthetic Record, prior to the administration of the general anaesthetic, Ms. Markowa’s systolic blood pressure was 120. It is not my practice to fill in on the Anaesthetic Record a patient’s diastolic blood pressure as this has little, if any, clinical significance in this context. A systolic blood pressure of 120 did not effect [sic] my assessment that Ms. Markowa was fit to proceed with the surgery under a general anaesthetic as required.[^25]

[149] The purport of this evidence is that Dr. Davidson took the blood pressure of the Plaintiff prior to the commencement of the surgery and found that, after assessing his reading of her blood pressure, the Plaintiff was fit to proceed.

[150] In her Affidavit, sworn August 31, 2010, the Plaintiff at paragraph 69 refers to the fact that the Operative Record shows that the anaesthesia started at 7:44 a.m. and that the surgery started at 8:00 a.m. There is no evidence that would support an inference that this record contradicts or is inconsistent with Dr. Davidson’s evidence.

[151] In paragraph 70 of her Affidavit, the Plaintiff states that according to the Anaesthetic Record, at approximately 9:30 a.m. her blood pressure increased for a split second, causing significant bleeding. Paragraph 13 of Dr. Davidson’s affidavit confirms that there was a temporary rise in the Plaintiff’s blood pressure.

[152] The only entry in the Anaesthetic Record that could apparently relate to the “significant bleeding”, is the entry “losses: blood 250”. There is no evidence to show that this entry records “significant bleeding”.

[153] Dr. Straka provided his report and his opinion. His report states that Dr. Davidson “correctly determined [the Plaintiff] was fit to proceed with surgery” and that Dr. Davidson responded correctly to the temporary rise in the Plaintiff’s blood pressure. Dr. Straka stated that the anaesthetic care provided by Dr. Davidson was delivered competently at all times and met the standard of care.

[154] For the reasons set out above, the evidence does not support the claim that there was something false in the assurance given by Ms. Dennis to the Plaintiff.

[155] In her submissions at paragraph 51, the Plaintiff states that a letter to the Plaintiff dated November 8, 2005 contains “Dr. Adamson’s own admission” that on June 2, 2005 the Plaintiff was not fit for surgery and that the blood pressure of the Plaintiff was not taken before anaesthetics were commenced. This allegation is a serious one. If the letter makes the alleged statements, it would contradict other evidence of the Defendants. The first part of the allegation, as to the admission that the Plaintiff was not fit for surgery, is obviously of a most serious nature.

[156] The submissions do not identify the letter with greater particularity than its date. The only letter to the Plaintiff of November 8, 2005 that is indexed in the material that the Plaintiff identified for the hearing of the motion that could bear on the two subjects identified in the statement in paragraph 51 of the Plaintiff’s submissions is a letter from Ms. Dennis of that date. The Plaintiff has been asked whether there is some other letter and she has not identified any. The text of the letter of Ms. Dennis is set out in the submissions at paragraph 140. The letter does not state what the Plaintiff says is stated. Nor could it be construed as doing so.

The Claim of Fraudulent Representation

[157] For the reasons set out above, there is no genuine issue requiring a trial in respect of the claims of fraudulent representation set out in the paragraphs of the Amended Amended Statement of Claim that are referred to above.

Comment

[158] In view of the conclusion reached above, it is not necessary to address more fully the elements of a claim of fraudulent misrepresentation, but it may be helpful to the parties, since none of their submissions do so. It has long been part of the common law that for such a claim to be established the plaintiff must show that there is a false representation as to a matter of present or past fact: see for example, Halsbury, 3rd edition, vol. 26 at paragraph 844 ff. Ms. Dennis’s assurance was not as to such a matter. The false representation must be made without actual and honest belief that it is true. The false representation must be material and it must be intended to induce and must in fact induce the recipient to act in a manner that is causally connected to the alleged damage. In the present case, the matter of causation is addressed in part above and is also addressed further, below.

The Fraud Claims

[159] The Plaintiff alleges that Dr. Adamson, Dr. Litner, Dr. Davidson, Dr. Friedland, Nurse Dennis and Nurse Kalman fraudulently falsified and/or altered the medical records contained in her chart.

[160] The Plaintiff has provided no evidence in support of these serious allegations. There is no admissible evidence before this Court that would support a finding of fraud. As such, there is no genuine issue requiring a trial with respect to the Fraud Claims.

Other Claims

[161] Although the Plaintiff submits that her claims are not for breaches of the standard of care or for lack of consent, it is advisable to deal with the submissions on those issues to assure that all claims that might be raised on the basis of the Amended Amended Statement of Claim have been addressed. As well, the Plaintiff has made a claim against three corporate defendants. The Defendants have made extensive submissions on these other claims. The Plaintiff has made submissions that bear on only two matters that are relevant to these other claims. These submissions relate to the expert opinions and to the consent that the Plaintiff signed.

The Experts’ Opinions

[162] In her submissions, the Plaintiff alleges at paragraph 134 that certain documents set out in Exhibit “D” to Dr. Adamson’s affidavit were not shown to Dr. Carman and Dr. Straka. The Plaintiff repeats this allegation in respect of the Consent Form and Dr. Carman in paragraph 138 of her submissions. All of the allegedly omitted documents are set out in that Exhibit “D”. In paragraph 5 of each of their affidavits, Dr. Carman and Dr. Straka each say that they reviewed the affidavit of Dr. Adamson. There is nothing in paragraph 5 to support an inference that they were not provided with all of the exhibits to the affidavit of Dr. Adamson.

[163] In paragraph 135 of her submissions, the Plaintiff alleges the experts were not provided with certain documents that are not included in the chart. There is no submission that the documents would have been material to the matters on which the experts were to express their opinions. There is nothing in the description of the documents in paragraph 135 to suggest they would have been material.

The Consent Signed by the Plaintiff

[164] The allegation of the Plaintiff is that parts of the Consent Form were only completed after she signed and without discussion of the purpose of the operations. This allegation is addressed above.

[165] It is also to be noted that the first page bears initials identified by the words “Patient Initials” and what appear to be the same initials appear on the third page of the form.

[166] For the reasons given above, the Plaintiff’s submissions on these two matters cannot properly affect the determination of any of the issues on this motion (i.e., including the claims of fraudulent misrepresentation considered above).

Analysis of the Other Possible Claims

[167] In what follows, the other possible claims are treated as actual claims for purposes of analyzing their proper determination.

The Standard of Care Claims

[168] To succeed in an action for medical malpractice, the Plaintiff bears the onus of proving, on a balance of probabilities, that one or more of the medical practitioners did or omitted to do something that caused damage to the Plaintiff, and that this conduct fell below the standard of care expected of a reasonable and prudent practitioner with the same training and experience, having regard to all of the circumstances.[^26]

[169] The standard of care expected of a medical practitioner was explained in Crits and Crits v. Sylvester et al. as follows:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of skill and care which could be expected of a normal, prudent practitioner of the same experience and standing...[^27]

[170] A physician is not held to a standard of perfection, nor can they guarantee the results of any particular surgical procedure. So long as the care provided met the standards expected, they will not be held liable for any damages or accidents that occur. As the Supreme Court of Canada stated in Cardin v. Montreal[^28]:

Certainly, doctors should not be held responsible for unforeseeable accidents which may occur in the normal course of the exercise of their profession. Cases necessarily occur in which, in spite of exercising the greatest caution, accidents supervene and for which nobody can be held responsible. The doctor is not a guarantor of the operation which he performs or the attention he gives. If he displays the normal knowledge, if he gives the medical care which a competent doctor would give under identical conditions, if he prepares his patient before the operation according to the rules of the art, it is difficult to sue him in damages, if by chance an accident occurs. Perfection is a standard required by law no more for a doctor than for other professional men, lawyers, engineers, architects, etc. Accidents, imponderables, what is foreseeable and what is not, must necessarily be taken into account. [emphasis added]

[171] Moreover, the Courts have held that physicians can exercise their clinical judgment within a range of acceptable options and techniques. Two reasonable physicians can choose different approaches both of which meet the standard of practice. An error in judgment is distinguishable from an act of unskillfulness, carelessness or a lack of knowledge.[^29]

[172] The Courts have acknowledged that where there are a number of different opinions about how to treat the same medical condition, a physician should be allowed to exercise his judgment in determining the best course of treatment for that particular patient. In Lapointe v. Hôpital le Gardeur, Madam Justice L’Heureux-Dubé stated:

Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor would not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories.[^30] [emphasis added]

[173] A physician cannot be judged in hindsight. A retrospective analysis of the treatment provided working back from the outcome is not appropriate. An adverse, or less than optimal outcome, is not evidence of a breach of the standard of care.[^31]

[174] The issue in this action is whether the medical practitioners behaved as would reasonably prudent and diligent fellow professionals in the same circumstances.[^32]

Expert Evidence is Necessary

[175] What the standard of care is, and whether these standards have been complied with, are not within the ordinary knowledge and experience of the trier of fact.[^33] Expert evidence is therefore required to establish the standard of care to which a medical practitioner will be held and to determine whether the standard has been complied with.[^34]

[176] In ter Neuzen v. Korn, the Supreme Court of Canada acknowledged that the Courts lack the knowledge and expertise required to evaluate medical procedures that are accepted by the medical community in the absence of expert opinion evidence:

It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interest of patients and are not inherently negligent.[^35]

[177] In the absence of expert evidence establishing the standard of care to which a medical practitioner will be held and that the specific aspects of that standard were not complied with, a plaintiff’s claim for negligence cannot succeed.[^36] Similarly, in the absence of evidence of either causation or damages, a claim must also fail.

[178] The Plaintiff has not tendered any admissible expert evidence pursuant to Rule 53.03 on this motion to establish that any of the medical practitioners failed to render care in conformity with the standard of care and the recognized practices followed by other members of the profession. In addition, the Plaintiff has not tendered any admissible expert evidence establishing that she has suffered any harm or damage whatsoever as a result of the Surgery, or that there is any causal connection between any alleged error and any damages she has allegedly suffered.

[179] As cited above, on a motion from summary judgment, the Court must assume the record before it contains all of the evidence on which a party would rely at trial. Therefore, the absence of any expert evidence in support of the Plaintiff’s claim is, on its own, demonstrative of the absence of any genuine issue requiring a trial with respect to the Standard of Care Claims.

The Defendants’ Opinion Evidence

[180] By contrast, the Defendants have tendered the expert evidence of Dr. Carman and Dr. Straka, which confirms that the medical care provided to the Plaintiff was rendered in conformity with the standard and recognized practices followed by other members of the profession.

[181] While the Defendants do not bear any onus to tender such evidence on a motion for summary judgment, the evidence of Dr. Carman and Dr. Straka is cogent evidence that the medical practitioners in this action met the standard of care.

[182] The existence of such expert evidence in the absence of any contrary evidence from the Plaintiff strongly reinforces summary judgment in favour of the Defendants, and provides reassurance to the Court that the Plaintiff’s claims are bound to fail. A trial is therefore not required for a determination of the issues relating to the standard of care.[^37]

[183] For the above reasons, there is no genuine issue requiring a trial in respect of the Standard of Care Claims.

The Consent Claims

[184] The Plaintiff asserts claims related to an alleged lack of informed consent and claims based on the intentional tort of battery (i.e. consent simpliciter).

[185] The two leading cases on the issue of informed consent are Reibl v. Hughes[^38] and Hopp v. Lepp,[^39] which explain the difference between informed consent and battery.

[186] A claim for a battery exists where the patient did not consent to the surgery at all, or where consent was for a different procedure than was performed, or was obtained by fraud or misrepresentation. Allegations which relate instead to a practitioner’s failure to disclose or properly inform a patient, give rise to an action in negligence.

[187] The Supreme Court of Canada explained the difference as follows:

… In my opinion, actions in battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent. …

In situations where the allegation is that attendant risks which should have been disclosed were not communicated to the patient and yet the surgery or other medical treatment carried out was that to which the plaintiff consented (there being no negligence basis of liability for the recommended surgery or treatment to deal with the patient’s condition), I do not understand how it can be said that the consent was vitiated by the failure of disclosure so as to make the surgery or other treatment an unprivileged, unconsented to and intentional invasion of the patient’s bodily integrity. I can appreciate a temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure treatment, a failure to disclose attendant risks, however serious, should go to negligence rather than to battery. Although such a failure relates to informed choice of submitting or refusing recommended and appropriate treatment, it arises as the breach of an anterior duty of due care, comparable in legal obligation to the duty of care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent.[^40]

[188] Disalle J. of the Ontario Court of Justice (General Division) held, in O’Bonswawin v. Paradis, that consent can either be expressed by the patient, or can be reasonably inferred by the physician. His Honour stated:

It is clear, that every intervention by a doctor can be considered a battery, unless there is a consent to the procedure by the patient. The consent can be either expressed clearly by the patient or can be reasonably inferred by the doctor, taking all of the circumstances in each case.[^41]

[189] The Newfoundland Court of Appeal reversed the decision of a trial judge who had found that a battery had been committed when the surgeon had performed a procedure which, it was argued by the defendant, fell within the written consent to further or alternative procedures that may be found necessary during the course of the operation. Marshall J.A. of the Court of Appeal stated:

In my respectful opinion the learned trial Judge erred in confining her assessment of the formal written consent form. It is noted that Laskin C.J. in Reibl held that battery should be confined to cases where there has been ‘no consent at all’ or where the medical procedures go ‘beyond that to which there was consent’. He did not state that one’s inquiry must be limited to the specific formal consent. On the contrary, the statement that battery is predicated upon the absence of any consent ‘at all’ implies that one must examine all aspects of the situation to determine if the patient had agreed to the medical procedure in respect of which complaint is laid.[^42]

[190] Marshall J.A. considered the circumstances surrounding the surgery and the overriding purpose of the surgery, which in that case was investigatory, and went on to hold that the portion of the written consent relating to permission to perform “further or alternative measures as may be found necessary” was broad enough to cover procedures which were related to the overriding purpose of the surgery. Marshall J.A. stated:

The law has always clearly recognized the individual’s right to determine medical treatment upon his person….It may not be abridged by considerations of medical convenience. However, this inviolable right must be interpreted in relation to the overall social interest of precluding undue hindrance of the physician legitimately acting within the scope of the consent actually given by adopting too narrow a view of its ambit. The full extent of that consent must be gained by looking at all of the circumstances arising from the relation of doctor and patient against the background of which the formal consent will be viewed.[^43]

[191] the Plaintiff’s allegation that there was a failure to disclose to her that The Cumberland Clinic was a “teaching facility” goes to the Plaintiff’s informed consent to the Surgery. Conversely, the balance of the Plaintiff’s allegations related to her consent – namely, who performed the surgery, the medications used during the procedure and the nature of the surgery performed – constitute allegations of a battery.

Informed Consent Claim

[192] A physician has a duty to obtain the informed consent of a patient before treatment is provided. It is well-established that a physician must disclose those risks of the procedure that are material or special or unusual.[^44]

[193] The question whether a particular risk is a material risk or a special and unusual risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure. A subjective concern which is peculiar to the patient and which is not expressed to the physician, such as a fear of surgical materials, must be expressed to the physician. Only what a physician knows that the particular patient deems relevant to a decision whether to undergo a particular treatment should be factored into the analysis of what risks are material or special and unusual.[^45]

[194] Chief Justice Laskin stated in Hopp v. Lepp:

[A] surgeon need not go into every conceivable detail about the proposed operation so long as he describes its nature, unless the patient asks specific questions not by way of merely general inquiry, and, if so, those questions must be answered, although they invite answers to merely possible risks. If no specific questions are put as to possible risks, the surgeon is under no obligation (although he may do so) to tell the patient that there are possible risks since there are such risks in any operation. It becomes a question of fact of how specific are any questions that are put and, equally, it is an issue of fact whether, questions or no questions, the evidence supports a finding that there were probable or special or unusual risks which the surgeon failed to disclose or did not fully disclose.[^46]

In summary,…in obtaining consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.[^47]

[195] Based upon the decisions in Reibl v. Hughes and Hopp v. Lepp, the Ontario Court of Appeal summarized the following principles for triers of fact to determine what are material risks in Videto et al. v. Kennedy[^48]:

1. The question of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solely by the professional standards of the medical profession at the time. The professional standards are a factor to be considered.

2. The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient’s decision whether or not to undergo the operation. …

3. A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences, such as paralysis or even death, then it should be treated as a material risk and should be disclosed.

4. The patient is entitled to be given an explanation as to the nature of the operation and its gravity.

5. Subject to the above requirements, the dangers inherent in any operation such as the dangers of anaesthetic, or the risks of infection, do not have to be disclosed.

6. The scope of the duty of disclosure and whether it has been breached must be decided in relation to the circumstances of each case.

7. The emotional condition of the patient and the patient’s apprehension and reluctance to undergo the operation may in certain cases justify the surgeon in withholding or generalizing information as to which he would otherwise be required to be more specific.

8. The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure.

[196] The Plaintiff has not tendered any admissible evidence that Dr. Adamson refused or failed to answer any of her questions, or that he somehow misrepresented his qualifications or the clinical fellowship program to her, in such a way that any genuine issue requiring a trial is raised as to the informed consent of the Plaintiff.

Whether the Plaintiff has Established Causation

[197] In any event, even if a physician fails to disclose a material risk, liability will only occur where the plaintiff can establish that a reasonable person in the circumstances of the patient would have decided to forego the surgical procedure had he or she been properly informed.

[198] As the Supreme Court of Canada explained more recently in Arndt v. Smith:

The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any "particular concerns" of the patient and any "special considerations affecting the particular patient" in determining whether the patient would have refused treatment if given all the information about the possible risks.[^49]

[199] It is clear that the idiosyncratic concerns or irrational fears of a patient that do not relate to the material risks of the proposed treatment, which are often unknown to the physician, are excluded from consideration.[^50]

[200] The Court of Appeal held that the causation inquiry must be “subjectivized” to consider evidence, if any, of the subjective beliefs, fears, desires or expectations of the plaintiff that would have played a role in the decision of whether to proceed with the procedure or continue with the treatment.[^51]

[201] In other words, while objectively ascertainable circumstances such as a Plaintiff’s age, income, marital status and other factors should be taken into consideration, the Plaintiff bears an evidentiary burden and legal burden of “subjectivizing” the objective test with particular reference to her reasonable beliefs, fears, desires and expectations.

[202] There is no evidence that would allow the Court to conclude that a reasonable person in the Plaintiff’s circumstances would have declined to proceed with the Surgery had she received further disclosure. There is no evidence of any of the Plaintiff’s subjective beliefs, fears, desires or expectations that would have played a role in her decision of whether to proceed with the procedure.

[203] There is no basis to conclude that a reasonable person in the Plaintiff’s circumstances would have declined to proceed with the Surgery if they had been informed that Dr. Adamson employed a licensed clinical fellow in his practice who was going to assist him during the procedure.

[204] The Plaintiff has not tendered any admissible evidence to support a finding that even if The Cumberland Clinic were a “teaching facility”, this had any impact on her surgical outcome. There is simply no evidence of any causal connection between the alleged undisclosed information and any adverse outcome the Plaintiff alleges occurred.

[205] For the above reasons, there is no genuine issue requiring a trial with respect the Plaintiff’s Informed Consent Claim.

The Battery Claims

[206] In order to succeed in an action for battery in a medical case, the Plaintiff must prove on a balance of probabilities that:

(a) there has been no consent to the surgery at all (either initially or if it has been withdrawn);

(b) the treatment provided goes materially beyond that which has been consented to or, an entirely different procedure is carried out than the one consented to; or

(c) consent was obtained by fraud or misrepresentation to induce the patient to submit to surgery for an ulterior purpose.

The Performance of the Surgery

[207] The claim of the Plaintiff that, contrary to the assurances of Dr. Adamson, Dr. Litner and Dr. Heier operated on her face is dealt with above.

[208] As a result, there is no genuine issue requiring a trial with respect to this aspect of the Plaintiff’s battery claim.

The Use of Labetalol

[209] The Plaintiff also alleges that the intra-operative administration of the medication Labetalol was done without her consent.

[210] The Consent Form signed by the Plaintiff on March 10, 2005, contained the following provision:

I hereby consent to the administration of anaesthetics to be supplied by or under the direction of Dr. Adamson or other medical staff.

[211] Labetalol is a beta-blocker used to lower blood pressure and reduce blood loss. The use of Labetalol for a controlled hypotension is standard, safe and an accepted technique. It was one of eight medications and agents administered intra-operatively by Dr. Davidson to anaesthetize the Plaintiff, maintain her while she was anaesthetized and revive her from anaesthetic upon completion of the procedure.

[212] There is no evidence that the Plaintiff asked any specific questions or expressed any objection to the use of any particular medication, including Labetalol, pre-operatively.

[213] The expert evidence of Dr. Straka is that while it is customary to briefly outline the anaesthetic plan to the patient, it is not the standard, nor is it even possible, to discuss every possible detail, drug and potential intervention which may be required during a procedure.

[214] Further, there is no evidence that the use of Labetalol was contra-indicated or that the Plaintiff had a history of adverse reactions to Labetalol. To the contrary, the uncontradicted expert evidence demonstrates that:

• the administration of Labetalol was a necessary component of maintaining the patient intra-operatively;

• there is no evidence of any adverse outcome arising from the administration of Labetalol; and

• the administration of the Labetalol in these clinical circumstances was appropriate and met the standard of care.

[215] For the above reasons, there is no genuine issue requiring a trial with respect to this aspect of the Plaintiff’s Battery Claim.

The Surgical Technique

[216] The allegations of the Plaintiff in this regard are dealt with above. For the reasons given above, there is no genuine issue that requires a trial in respect of the surgical procedure that was used.

Vicarious Liability Claims

[217] In addition to the claims considered above, the Plaintiff has made claims against three corporate defendants. The Defendants made submissions about these claims. The Plaintiff has not addressed these claims in her submissions. To ensure that these reasons for decision are complete, these claims are addressed below.

[218] The Plaintiff has named three corporate defendants: Adamson Associates, the Investment Corporation and The Cumberland Clinic.

[219] At all material times, the Investment Corporation was the sole shareholder of Adamson Associates, and had no role or involvement whatsoever in the operation or management of either Adamson Associates or The Cumberland Clinic

[220] It is well-established law that a shareholder is not liable for the acts or liability of the corporation merely by reason of being a shareholder. As a result, there is no genuine issue that requires a trial in respect of the Investment Corporation.

[221] In respect of Adamson Associates and The Cumberland Clinic, at all material times:

(a) Dr. Adamson, Dr. Litner, Nurse Dennis and Ms Doyle were employees of Adamson Associates; and

(b) Nurse Kalman was an employee of The Cumberland Clinic.

[222] At no time were Drs. Davidson and Friedlander employees of either Adamson Associates or The Cumberland Clinic. Instead, both of these physicians provided their medical services on a fee for service basis. The law is clear that a hospital cannot be held liable for the negligence of any doctor that is not an employee.

[223] The Plaintiff’s claims against Adamson Associates and The Cumberland Clinic are entirely based upon, and therefore dependent upon, the viability of the claims against the individuals personally. Therefore, to the extent that summary judgment in respect of the Plaintiff’s claims against any of the individual employees of the corporations is granted, the claims against the corporate defendants must also be dismissed.

[224] For the above reasons, there is no genuine issue that requires a trial with respect to the Vicarious Liability Claims.

Non-Delivery of the Defendants’ Affidavit of Documents

[225] The Plaintiff seeks the dismissal of the motion of the Defendants, on the ground that they have failed to deliver their affidavit of documents.

[226] Under Rule 30.03(1), until it was amended as of January 1, 2010, a party was required to serve its affidavit of documents within 10 days after the close of pleadings. That Rule is no longer in effect. Under the amended Rules of Civil Procedure, a more flexible approach to documentary productions and discoveries has been established. Parties now set their own deadlines by establishing a Discovery Plan. Furthermore, the Rules of Civil Procedure themselves contemplate that service of affidavits of documents may occur after a motion pursuant to Rule 20. Under Rule 20.05(2)(a), in cases where summary judgment is either refused or granted only in part, the court may order that each party deliver, within a specified time, an affidavit of documents in accordance with the court’s directions. Therefore, the amended Rules of Civil Procedure clearly contemplate that summary judgment motions can proceed prior to the delivery of affidavits of documents.

[227] In its decision in Combined Air, the Court of Appeal recognized that there may be some cases in which the “nature and complexity of the issues” will be such that it is not in the interests of justice to proceed with a motion for summary judgment prior to completing the normal process of document production and oral discovery.[^52] The Court of Appeal did not state that in all cases the parties must complete the discovery process envisioned by Rules 29.1 to 33.

[228] The Court of Appeal’s reasons in Combined Air must be considered in the context of the present rules for the delivery of the affidavit of documents. The view expressed by the Court of Appeal is that in certain cases parties should not be required to build a record through affidavits and cross-examinations. This category of cases includes those where a record prepared for a summary judgment motion would only replicate what could happen in a “more orderly and efficient way through the usual discovery process”.[^53] This point calls for consideration with one of the other recent amendments to the Rules of Civil Procedure; namely, the addition of the proportionality principle to Rule 1.04. For several decades now Rule 1.04(1) has stated that the Rules of Civil Procedure must be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04(1.1) now adds that in applying the rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[229] The Court of Appeal recommended that in appropriate cases where it appears that the usual discovery process is the more suitable and proportionate manner to develop the record, responding counsel could move for a stay of the summary judgment motion or seek directions from the court to proceed with discovery in the normal course.

[230] On this basis, the question whether it is more efficient or proportionate to proceed with productions and discovery in the normal course or by way of affidavits and cross-examinations is a question best addressed by the parties prior to commencing either the discovery process or proceeding with a motion or, if the parties are unable to agree, by way of directions from the court prior to proceeding down either path.

[231] For the reasons set out below, the use of the summary judgment motion process is an orderly, efficient and proportionate process to secure the just, most expeditious and least expensive determination of this proceeding on its merits.

[232] It was the Plaintiff who first commenced a motion for summary judgment in August 2010. The Court of Appeal affirmed in Combined Air that, generally speaking, cases will be amenable to summary judgment where the parties agree that proceeding by way of summary judgment is appropriate.[^54]

[233] Although this Court retains the discretion to refuse to hear a motion for summary judgment, notwithstanding the agreement of the parties, if the full appreciation test set out in Combined Air is not met, the full appreciation test has been met for the reasons set out above, with the result that the attributes of the trial process are not required. The record provides a clear, complete and comprehensive picture of the issues and evidence in this case. There is no evidence before the Court that any additional material evidence would be forthcoming were the Defendants to prepare, swear and serve affidavits of documents.

[234] There is no evidence that the Plaintiff has been unable to put forward all relevant evidence in relation to the motion. It is clear from the record that the Plaintiff has had several opportunities to ascertain whether additional relevant documentary evidence was available. In the absence of a clear evidentiary gap in the record, it is not possible for the Court to conclude that additional documentary evidence is necessary to satisfy the full appreciation test.

[235] Dr. Adamson’s Affidavit attaches the Plaintiff’s “complete medical chart”.

[236] Each Defendant, except for Nurse Kalman, provided an affidavit with his or her account of the material facts. The Plaintiff also provided several lengthy affidavits setting out her version of the events and attaching additional documentation that was exclusively within her possession, power and control.

[237] The Defendants provided two expert reports. These two expert reports were based upon the documentation, namely the “complete medical chart”, that is in the record before the Court. The Plaintiff has provided no expert evidence to support her allegations and there is no admissible or credible evidence that the “complete medical chart” is deficient or incapable of supporting the opinion evidence.

[238] The Plaintiff had the opportunity to cross-examine the Defendants. Despite being provided with such opportunities, she did not do so.

[239] The motion for summary judgment was not “brought early in the litigation process”. This claim was commenced in 2007. The surgery occurred in 2005. Dr. Adamson first met with the Plaintiff in 2002. The issues in this case are well defined and there is no reason to consider that there is relevant and admissible evidence that is not in the record.

[240] In Combined Air, the Court of Appeal urges counsel to ensure that they adopt an appropriate litigation strategy, knowing that some cases require a trial for just resolution and others may be safely determined on am motion for summary judgment. The Defendant’ decision to proceed with a cross-motion for summary judgment in response to the Plaintiff’s motion for summary judgment, rather than push the matter forward through the discovery process to trial, was reasonable, particularly in light of the nature of this case and the Plaintiff’s own motion for summary judgment.

[241] For the above reasons, it appears that a record developed in the normal course would not have contained any material documents other than those now before the Court.

[242] Accordingly, the full appreciation test is met, notwithstanding the fact that the Defendants have not delivered their affidavits of documents.

[243] For the above reasons, the fact that the Defendants have not delivered an affidavit of documents does not provide a basis for an order to dismiss the Defendants’ motion for summary judgment.

conclusion

[244] For the above reasons, there are no genuine issues in respect of the Plaintiff’s claims that require a trial. Accordingly, summary judgment is granted in favour of the Defendants dismissing the plaintiff’s action against them.

[245] If it becomes necessary, the parties may make written submissions to me about costs. It would be helpful if a copy of any such submissions could be sent by e-mail to my assistant.

Spence J.

Released: February 16, 2012

[^1]: Evans v. Holroyd, [1988] O.J. No. 1705 at p. 4 (S.C.J.); see also Suwary v. Women’s College Hospital, [2008] O.J. No. 883 (S.C.J) at para 23

[^2]: Ontario (Attorney-General) v. Paul Magder Furs, 1989 CanLII 4253 (ON SC), [1990] O.J. No. 63 (H.C.J.) at pp. 7-8 (Q.L.); Carevest Capital Inc. v. North Tech Electronics Ltd., [2010] O.J. No. 1939 (S.C.J.)

[^3]: Suwary, supra, at paras. 26-30

[^4]: Ewaskiw v. Zellers Inc., 1998 CanLII 14866 (ON SC), [1998] O.J. No. 3533 (S.C.J.) at paras 16-19; Reid v. Livingstone, [2004] O.J. No. 1477 (S.C.J.) at para 19; and Hiebert v. Lennox Canada Inc. (c.o.b. Boehmers Home Services), [2007] O.J. No. 3079 (S.C.J.) at paras 17-18

[^5]: Suwary, supra, at para. 30

[^6]: Reid v. Livingstone, [2004] O.J. No. 1477 (S.C.J.)

[^7]: Reid, supra, at para. 13

[^8]: Rule 20.01, Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[^9]: Rule 20.04(2), Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[^10]: Rule 20.04(2.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[^11]: Rule 20.04(2.2), Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[^12]: Rule 20.04(2.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[^13]: Canadian Premier Life Insurance Co. v. Sears Canada Inc., 2010 ONSC 3834, [2010] O.J. No. 3987 (S.C.J.) at para. 69

[^14]: Optech Incorporated v. Sharma, 2011 ONSC 680, [2011] O.J. No. 377 (S.C.J.), at para. 32

[^15]: Foster v. Sanchez, [2011] O.J. No. 814 (S.C.J.)

[^16]: Healey v. Lakeridge Health Corp., 2010 ONSC 725, [2010] O.J. No. 417 (S.C.J.), aff’d 2011 ONCA 55, [2011] O.J. No. 231 (C.A.), at para. 30

[^17]: Optech Incorporated v. Sharma, supra, at at paras. 42-44

[^18]: Combined Air Mechanical Services Inc. v. William Flesch, 2011 ONCA 764, [2011] O.J. No. 5431 (C.A.) (“Combined Air”)

[^19]: Ibid., at para. 35

[^20]: Ibid., at para. 54

[^21]: Combined Air Mechanical Services Inc. v. William Flesch, supra, at para. 56

[^22]: Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 (S.C.C.) at p. 8

[^23]: Affidavit of Mark Friedlander, sworn January 13, 2011

[^24]: Affidavit of Maureen Dennis, sworn January 13, 2011

[^25]: Affidavit of John R. Davidson, sworn January 13, 2011

[^26]: Crits and Crits v. Sylvester et al., 1956 CanLII 34 (ON CA), [1956] O.J. No. 526 (C.A.) at para. 13, aff’d 1956 CanLII 29 (SCC), [1956] S.C.J. No. 71 (S.C.C.); ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 (S.C.C.) at paras. 33-34

[^27]: Crits and Crits v. Sylvester et al., supra, at para. 13

[^28]: Cardin v. Montréal (CITÉ), 1961 CanLII 77 (SCC), [1961] S.C.R. 655, (S.C.C.), cited by Krever J. in Ferguson v. Hamilton Civic Hospitals et al.; Gregor (Third Party) (1983), 1983 CanLII 1724 (ON SC), 40 O.R. (2d) 577 (H.C.) at 613

[^29]: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804 (S.C.C.) at p. 7

[^30]: Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 (S.C.C.) at para. 31

[^31]: Ibid. at para. 28

[^32]: St-Jean v. Mercier, 2002 SCC 15, [2002] S.C.J. No. 17 (S.C.C.) at para. 53

[^33]: Branco v. Sunnybrook & Women’s College Health Sciences Centre, [2003] O.J. No. 3287 (S.C.J.) at para. 8; Claus v. Wolfman, 1999 CanLII 14824 (ON SC), [1999] O.J. No. 5023 (S.C.J.) at para. 4, affirmed 2000 CanLII 22728 (ON CA), [2000] O.J. No. 4818 (C.A.)

[^34]: Suserski v. Nurse, 2008 ONCA 416, [2008] O.J. No. 2078 (C.A.), leave to appeal to refused: [2008] S.C.C.A. No. 298 (S.C.C.); Samuel v. Ho, [2009] O.J. No. 172 (S.C.J.)

[^35]: ter Neuzen v. Korn, supra, at para. 38

[^36]: Suserski, supra, at para. 5; Branco, supra, at para. 8

[^37]: Samuel v. Ho, supra, at para. 34

[^38]: Reibl v. Hughes, supra

[^39]: Hopp v. Lepp, 1980 CanLII 14 (SCC), [1980] 2 S.C.R. 192 (S.C.C.)

[^40]: Reibl v. Hughes, supra, at pp. 8-10

[^41]: O’Bonsawin v. Paradis, [1993] O.J. No. 396 (Gen. Div.) at pp. 6-7

[^42]: Cowan v. Brushett, [1990] N.J. No. 145 (Nfld. C.A.) at p. 5

[^43]: Cowan, supra, at p. 5; O’Bonsawin, supra, at p. 9

[^44]: Hopp v. Lepp, supra; Reibl v. Hughes, supra; Videto et al. v. Kennedy (1981), 1981 CanLII 1948 (ON CA), 33 OR (2d) 497 (C.A.) at 502 to 506

[^45]: Reibl v. Hughes, supra, at pp. 4-5

[^46]: Hopp v. Lepp, supra, at pp. 9-10

[^47]: Hopp v. Lepp, supra, at pp. 14

[^48]: Videto et al. v. Kennedy, supra, at pp. 502-503

[^49]: Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] S.C.J. No. 65 (S.C.C.) at para. 6

[^50]: Ibid. at para. 14

[^51]: Van Dyke v. Grey Bruce Regional Health Centre, 2005 CanLII 18841 (ON CA), [2005] O.J. No. 2219 (C.A.) at paras. 86-88, application for leave dismissed: [2005] S.C.C.A. No. 335 (S.C.C.)

[^52]: Reibl v. Hughes, supra, para. 57

[^53]: Combined Air, supra, at para. 57

[^54]: Combined Air, supra, at para. 41