COURT FILE NO.: CV-14-359-00
DATE: 2019/08/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Andrew Walker, Plaintiff
AND
Her Majesty the Queen in Right of Canada, The Commissioner of Corrections, Dr. Aaron Campbell and Dr. Diana Silver Wyatt, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: J. Todd Sloan, for the Plaintiff
Youri Tessier-Stall, for the Defendants Her Majesty the Queen in Right of Canada and the Commissioner of Corrections
Aweis Osman, for the Defendants Dr. Aaron Campbell and Dr. Diana Silver Wyatt
HEARD: July 25, 2019
ENDORSEMENT
Overview
[1] The plaintiff, Andrew Walker, alleges that in June 2008, he injured his left knee at a worksite while he was incarcerated at Frontenac Institution, a federal penitentiary. Mr. Walker claims that Her Majesty the Queen in Right of Canada and the Commissioner of Corrections (the “Crown defendants”), were negligent in the maintenance and supervision of the worksite where the injury occurred. Mr. Walker also alleges that he received inadequate medical treatment by Drs. Campbell and Wyatt, and that complications during treatment of his injury led to the amputation of his left leg above the knee on February 8, 2012.
[2] Before me are the motions for summary judgment brought by Drs. Campbell and Wyatt and the Crown defendants asking that the action as against them be dismissed. The defendant physicians and the Crown defendants submit that there is no genuine issue requiring a trial. Drs. Campbell and Wyatt submit that there is no genuine issue requiring a trial with respect to the claims against them because there is no evidence that either physician breached the standard of care, and no evidence to establish causation. The defendant physicians have filed expert reports that they met or exceeded the standard of care in their treatment of Mr. Walker.
[3] The Crown defendants assert that there is no genuine issue requiring a trial with respect to Mr. Walker’s claims against them because: (i) there is no evidence that Mr. Walker suffered a workplace injury in June 2008; (ii) Mr. Walker’s claim is statute-barred; and (iii) even if there is a genuine issue requiring a trial with respect to the care provided by Drs. Campbell and Wyatt, the Crown defendants are not vicariously liable for any act or omission on the part of the physicians.
[4] Mr. Walker disputes the medical evidence adduced by the defendant physicians, submits that the evidence currently before the court discloses genuine issues requiring a trial, and denies that his claim is statute-barred. Counsel for Mr. Walker seeks the opportunity to cross-examine the medical experts who filed evidence in support of the defendant physicians’ motion, and submits that this would be an appropriate case for the court to direct a mini-trial pursuant to Rule 20.04(2.2) of the Rules of Civil Procedure. Mr. Walker has not filed any responding affidavit material on the motions.
[5] For the following reasons, the motions for summary judgment are granted and the plaintiff’s action is dismissed.
Summary Judgment
[6] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” A judge hearing a motion for summary judgment has the power to weigh evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence (Rule 20.04(2.1)).
[7] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process:
(i) allows the judge to make the necessary findings of fact;
(ii) allows the judge to apply the law to the facts; and
(iii) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4 and 49).
[8] As summarized by Corbett J. in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200,[^1] at para. 33, on a motion for summary judgment, the court should undertake the following analysis:
(i) assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
(ii) on the basis of this record, decide whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
(iii) if the court cannot grant judgment on the motion, the court should (a) decide those issues that can be decided in accordance with the principles described in (ii); (b) identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues; and (c) in the absence of compelling reasons to the contrary, seize itself of the further steps required to bring the matter to a conclusion.
[9] A defendant moving for summary judgment bears the burden of persuading the court, with supporting affidavit material or other evidence, that no genuine issue requiring a trial exists. The defendant is not entitled to rely merely on the allegations in the statement of defence; the defendant, as moving party, is required to put its best evidentiary foot forward (Sanzone v. Schecter, 2016 ONCA 566, 402 D.L.R. (4th) 135 (Ont. C.A.), at para. 24). Only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the plaintiff responding party to prove that its claim has a real chance of success (Sanzone, at para. 30). The responding party, too, is required to put its best evidentiary foot forward (Rule 20.02(2) and Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 12).
[10] In a medical malpractice action, the central issue is whether or not the defendant physician met the appropriate standard of care. To support allegations of negligence, the plaintiff is required to lead expert evidence of a physician practising in that area of medicine attesting to the defendant’s failure to meet the standard of care required in the circumstances; absent such evidence, the plaintiff will have “no hope of success.” Where the allegations in a statement of claim have not been supported by an expert report, a genuine issue requiring a trial has not been raised and summary judgment ought to be granted to the defendant (Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208, at para. 26).
The Allegations in the Claim and the Evidence on the Motions
[11] Mr. Walker originally commenced an action for his claims in the Federal Court on February 5, 2014. The Federal Court stayed that action and Mr. Walker then commenced this action. The statement of claim was issued on August 1, 2014. He has not served an affidavit of documents and has taken no other steps to advance this proceeding.
[12] In his statement of claim, Mr. Walker alleges that the amputation of his left leg above the knee on February 8, 2012 became necessary due to a leg injury that occurred while he was working in a barn at Frontenac Institution in June 2008, and “due to a series of complications arising during the treatment of this injury culminating in the amputation” (paras. 4-5). Mr. Walker alleges that this accident involved “severe damage” to his knee caused by his tripping on a sunken drain and that the Crown defendants failed to reasonably supervise or maintain the work area so as to prevent the injury (para. 6).
[13] Mr. Walker asserts in his claim that subsequent to the accident, the Crown defendants and Drs. Campbell and Wyatt (whom he alleges were “health care agents” or “servants” of the Crown defendants), failed to provide “timely and hygienic health care services” to him, and administered medical procedures, all of which caused and exacerbated his condition (paras. 7-16).
[14] Paragraph 17 of Mr. Walker’s claim alleges that the negligent acts or omissions “of the defendant Crown, her agents and servants, including but not limited to the defendants Drs. Campbell and Wyatt” include the following:
a) the failure of CSC staff to provide proper regulation and supervision in their barn area, which resulted in the initial injury.
b) the failure of CSC staff to provide appropriate and sufficient follow-up treatment following the injury.
c) the on-going failure of persons providing health care services to the plaintiff at Frontenac and Collins Bay on behalf of CSC, including, but not limited to, their failure to conduct treatment in sufficiently hygienic circumstances and their failure to reasonably diagnose the need for further treatments in a timely fashion, when they know [sic], or ought to have known that their acts or omissions would cause the plaintiff harm.
d) the failure of staff of local hospitals, agents of the defendant, including but not limited to Hotel Dieu hospital in Kingston, Ontario, to provide reasonable treatment in sufficiently hygienic conditions, when they knew or ought to have known that their actions or omissions would cause the plaintiff harm.
e) the failure of the defendant Dr. Campbell, both as agent of the defendant Crown and in his own capacity, who conducted surgical procedures on the plaintiff to appropriately reasonably remedy his injuries as they existed from time to time, when he knew or ought to have known that the procedures were probably ineffective and inadequate and could cause further pain and distress to the plaintiff.
f) [t]he act[s] of the defendant Crown and her agents, including but not limited to the Defendant Dr. Campbell in replacing his knee with an implant, which they knew or ought to have known, was medically inappropriate and would cause the plaintiff further harm and would not function as its manufacturers claimed.
g) [t]he act[s] of the manufacturers of the knee implant in constructing and providing the knee implant that was inserted in the plaintiff, when they knew, or ought to have known, that the implant would not function properly and would cause further harm to the plaintiff and other patients.
[15] At the hearing, counsel for Mr. Walker submitted that the claim relates to the amputation and the events in the months preceding and following the amputation. The statement of claim belies counsel’s submission; it is clear from the claim that insofar as the Crown defendants are concerned, the acts and omissions relied upon include alleged improper regulation and supervision of the barn area at Frontenac Institution in June 2008.
[16] Although Mr. Walker alleges that the injury occurred in June 2008, while he was working at Frontenac Institution, the evidence before the court discloses that between June 2008 and August 27, 2009, Mr. Walker was incarcerated at Fenbrook Institution and Beaver Creek Institution. He was not transferred to Frontenac Institution until August 27, 2009. Mr. Walker worked briefly as a dairy herdsman at Frontenac Institution in December 1995 and was employed as a range worker at Fenbrook Institution from September 10, 2007 to June 2, 2008.
[17] In the litigation, the Correctional Service of Canada (“CSC”) has produced the documents listed in Schedule A of the Crown defendants’ list of documents. There is no record of Mr. Walker suffering a work-related injury in or around June 2008. A July 21, 2008 medical report produced on this motion, refers to Mr. Walker being seen with respect to early osteoarthritis in his right knee and states “[h]e doesn’t recall any specific injuries to the knee but it has been progressively deteriorating.” In his claim, Mr. Walker alleges to have injured his left leg. The same medical report states that “[t]he left knee has pain and crepitus…though his x-ray shows mainly lateral compartment and a little anterior compartment degeneration.”
[18] Neither Dr. Campbell nor Dr. Wyatt was employed by CSC; the uncontroverted evidence is that they provided medical services to inmates as independent contractors. Dr. Wyatt provided health care services to the inmate population at Frontenac Institution under contract with CSC. Her services were provided to the Crown on request and CSC was invoiced. Dr. Wyatt did not receive a salary or benefits from CSC.
[19] Dr. Campbell was part of a group of medical professionals at the Kingston Orthopaedic and Pain Institute, which has a contract with CSC to provide medical services on a referral basis. CSC is invoiced for these services. Dr. Campbell does not receive a salary or benefits from CSC.
[20] In support of their motion, the defendant physicians rely on the expert reports of Dr. John Gordon and Dr. Alan Drummond. Dr. Gordon’s opinion is that the medical care provided to Mr. Walker by Dr. Campbell met or exceeded the standard of care expected of a prudent orthopaedic surgeon. Dr. Wyatt provided only primary and supportive care to Mr. Walker. In Dr. Drummond’s opinion, the medical care provided by Dr. Wyatt met or exceeded the standard of care expected of a prudent family physician.
Analysis
(i) The claims against the defendant physicians
[21] The defendant physicians have provided expert opinion evidence supporting their defence that they met the standard of care. Mr. Walker has not filed any expert evidence critical of the care he received from Drs. Campbell and Wyatt or attesting to their failure to meet the standard of care required in the circumstances. Mr. Walker did not cross-examine the physicians’ experts.
[22] In the absence of any evidence supportive of Mr. Walker’s medical malpractice claims, Mr. Walker has not raised a genuine issue requiring a trial in relation to the defendant physicians.
[23] A plaintiff is not entitled to sit on his requirement to provide a supportive expert opinion. I agree with Leroy J. that such opinion evidence “ought to be available at the front end of litigation” (Galalae v. Kingston (Police Services Board), 2013 ONSC 5153, at para. 42). Certainly, such opinion evidence should be available well before the fifth anniversary of the commencement of the action (which may result in administrative dismissal of the action for delay pursuant to Rule 48.14(1) of the Rules of Civil Procedure) and in response to a motion for summary judgment.
[24] The assertion by plaintiff’s counsel at the hearing that he was in the process of consulting with an expert does not constitute evidence. The court may infer that the plaintiff was unsuccessful in obtaining an expert medical opinion to support the allegations of negligence in the claim where the plaintiff has failed to obtain an expert report for use in defending against a motion for summary judgment (Ferroni, at para. 28). I draw such an inference in this case.
[25] As no genuine issue requiring a trial has been raised with respect to the claims against the defendant physicians, summary judgment is granted to Drs. Campbell and Wyatt.
(ii) The claims against the Crown defendants
[26] I am also of the view that no genuine issue requiring a trial has been raised with respect to the claims against the Crown defendants.
[27] There is no evidence to support the allegation that in June 2008, Mr. Walker slipped on a sunken drain at Frontenac Institution, or indeed, at any other CSC workplace and injured his left knee. The uncontroverted evidence is that Mr. Walker was employed at Frontenac Institution as a dairy herdsman in 1995. In June 2008, he was employed as a range worker at Fenbrook Institution. Mr. Walker was not transferred to Frontenac Institution until August 2009.
[28] There is no evidence that Mr. Walker suffered any workplace injury to his left knee. While Mr. Walker did seek and receive medical treatment for his knees in the 2008 to 2010 time period, the CSC records disclose that the medical treatment was unrelated to any workplace injury.
[29] The claims against the Crown defendants are also statute-barred. Mr. Walker had two years from the day on which his claim was discovered to commence his action (Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4).
[30] Section 5(1) of the Limitations Act, 2002 provides that a claim is discovered on the earlier of (a) the day on which the person with the claim first knew that the injury had occurred, that the injury was caused by or contributed to by an act of or omission by the person against whom the claim is made, and that, having regard to the nature of the injury, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[31] Mr. Walker alleges that his injury occurred in June 2008, when he tripped on a sunken drain “which had not been covered despite his previous requests that this be done.” Assuming this allegation to be true, I agree with the Crown defendants that as of that moment in time in June 2008, Mr. Walker knew that an injury had occurred, that it was caused by or contributed to by an act or omission of the Crown defendants, and that having regard to the nature of the alleged injury, a proceeding would be an appropriate means to seek to remedy the injury. I also agree with the Crown defendants that a reasonable person with the abilities and in the circumstances of Mr. Walker would have known that this was an actionable harm as of the date of the alleged injury in June 2008.
[32] Mr. Walker is presumed to have known of the matters referred to in s. 5(1)(a) of the Limitations Act, 2002 on the day the act or omission on which the claim is based took place unless the contrary is proved (Limitations Act, 2002, s. 5(2)). Section 7(2) provides that a person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved. Mr. Walker has provided no evidence to rebut either presumption.
[33] It is for the plaintiff to establish that the action was brought within the limitation period, including, if necessary, that the discoverability delayed the commencement of the running of the limitation period, by establishing, on evidence, the material facts giving rise to the action were not within his knowledge within the requisite time period from the date the claim was issued (Barry v. Pye, 2014 ONSC 1937, at para. 40). Mr. Walker was not required to know the full extent of his injuries before the limitation period began to run (Peixeiro v. Haberman, [1997] 2 S.C.R. 549, at para. 18).
[34] In this case, there is no genuine issue requiring a trial with respect to whether the claims against the Crown defendants were brought within the limitation period. I find that the two year limitation period began to run from the day of Mr. Walker’s alleged injury in June 2008. Any action against the Crown defendants should have been brought by June 2010. The action in Federal Court was not commenced until February 5, 2014. The action is statute-barred as against the Crown defendants.
[35] Finally, there is no genuine issue requiring a trial with respect to the issue of vicarious liability of the Crown defendants for the acts or omissions of the defendant physicians. There is no evidence that Mr. Walker received negligent medical care. In any event, the uncontroverted evidence is that Drs. Campbell and Wyatt were not employees of the Crown defendants and that they provided medical services to Mr. Walker as independent contractors.
[36] As for the allegation that the Crown defendants are liable for the conditions at the hospitals where Mr. Walker was treated, paragraph 3(b)(ii) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 provides that the Crown is liable for damages where it breaches a duty attaching to the ownership, occupation, possession or control of property. The uncontroverted evidence is that CSC does not own, occupy, possess or control any of the hospitals at which Mr. Walker was treated.
Disposition
[37] In my view, this is “precisely the type of case that summary judgment is designed to address so as to avoid putting the parties to the time and expense of a full blown trial” (Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125, at para. 3). This case can be fairly and justly adjudicated on its merits, consistent with the goals of timeliness, affordability and proportionality.
[38] I find there are no genuine issues requiring a trial with respect to any of the claims in the action. Summary judgment is granted to the defendants and the action is dismissed with costs.
[39] If the parties are unable to agree on costs of the motion and the action, they may make written submissions limited to a maximum of three pages. The defendants shall deliver their costs submissions by August 28, 2019. Mr. Walker shall deliver his responding costs submissions by September 25, 2019. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as amongst themselves.
Justice R. Ryan Bell
Date: August 2, 2019
COURT FILE NO.: CV-14-359-00
DATE: 2019/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Andrew Walker, Plaintiff
AND
Her Majesty the Queen in Right of Canada, The Commissioner of Corrections, Dr. Aaron Campbell and Dr. Diana Silver Wyatt, Defendants
BEFORE: Justice R. Ryan Bell
COUNSEL: J. Todd Sloan, for the Plaintiff
Youri Tessier-Stall, for the Defendants Her Majesty the Queen in Right of Canada and the Commissioner of Corrections
Aweis Osman, for the Defendants Dr. Aaron Campbell and Dr. Diana Silver Wyatt
ENDORSEMENT
Justice R. Ryan Bell
Released: August 2, 2019
[^1]: Affirmed, 2014 ONCA 878. See also Mayers v. Khan, 2017 ONSC 200, affirmed 2017 ONCA 524, at para. 19.