COURT FILE NO.: CV-15-6305
DATE: 2021/09/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tomy Bédard
Plaintiff
– and –
Robert Pye, Antonio Locantore, Kevin Batten, Joseph Brant Memorial Hospital, Lorraine Verschoote, Lisa Duncan, Gordon Brock, Véronique Mallet, J. Doe 1 and J. Doe 2
Defendants
No one appearing
D. Down and F. Guay-Racine, for the defendants Dr. Kevin Batten, Dr. Gordon Brock, and Dr. Véronique Mallet
A. Lundy and E. Eski for the defendants Dr. Robert Pye, and Dr. Antonio Locantore
G. Wilkins for the defendants Joseph Brant Memorial Hospital, Lorraine Verschoote, and Lisa Duncan
HEARD: In Writing
REASONS FOR DECISION
Ellies R.S.J.
OVERVIEW
[1] The defendant dentists and physicians in this dental/medical malpractice action move in writing for summary judgment dismissing the plaintiff’s claim against them because the plaintiff has failed to serve an expert report supporting the allegations of professional negligence and because he has failed to appoint a lawyer or serve notice that he will be representing himself since his lawyer was removed as lawyer of record in 2019.
[2] For the following reasons, the motion is granted.
THE ALLEGATIONS IN THE ACTION
[3] The plaintiff alleges that he suffered a mandibular fracture as a result of a wisdom tooth extraction performed by the defendant dentist, Robert Pye, on November 20, 2012. He alleges that he was referred to Dr. Pye by the other defendant dentist in the action, Antonio Locantore, whom the plaintiff alleges failed to properly diagnose the injury during subsequent visits for the treatment of pain.
[4] The plaintiff further alleges that the defendant physicians, Kevin Batten, Gordon Brock, and Véronique Mallet, also failed to diagnose the injury during subsequent attendances by the plaintiff for treatment at the defendant hospital, Joseph Brant Memorial Hospital, and at a treatment centre in Témiscamingue, Québec.
PROCEDURAL HISTORY
[5] The action within which this motion is brought was commenced on October 19, 2015, by a lawyer acting on behalf of the plaintiff. By the end of July 2016, statements of defence had been delivered on behalf of all the defendants.
[6] In August 2017, examinations for discovery were conducted of all the defendant dentists and physicians. An examination for discovery of the plaintiff was started in July 2018, but was adjourned after it began because the plaintiff was not comfortable testifying in English. The examination was initially rescheduled for late September 2018. However, on September 4, 2018, the lawyers for the defendant dentists served the expert report of Dr. Henry J. Lapointe, dated August 22, 2018, in which Dr. Lapointe expressed the opinion that both dentists met the standard of care. As a result of the report, the plaintiff’s lawyer requested that the examination for discovery of the plaintiff be rescheduled so that she could obtain her own expert report on behalf of the plaintiff.
[7] On September 28, 2018, the defendant physicians’ lawyers served the expert report of Dr. Paul Rheault, dated September 12, 2018, in which Dr. Rheault expressed the opinion that the defendant physicians all met the standard of care.
[8] The examination for discovery of the plaintiff never took place. Nor did the lawyer for the plaintiff ever serve an expert report. Instead, the moving defendants gave notice of their intention to bring this motion and, in July 2019, the lawyers for the parties agreed to a timetable with respect thereto.
[9] The moving parties originally delivered their motion materials in September 2019, in accordance with the timetable. No responding materials were delivered on behalf of the plaintiff. Instead, the plaintiff’s lawyer brought a motion asking to be removed as lawyer of record. The request was based on the plaintiff’s failure to communicate with the lawyer. The affidavit filed in support of the motion indicated that the plaintiff spoke with his lawyer in April 2019, who advised him of the pending summary judgment motion. The plaintiff at that time stated that he wished to oppose the motion.
[10] The affidavit also indicated that, after the summary judgment motion materials were served on the plaintiff’s lawyer, she made numerous attempts to reach her client by telephone at a number he had previously given her. Several messages were left in September and October 2019 in a voicemail box, the greeting for which stated that it still belonged to the plaintiff. The plaintiff never responded to the messages.
[11] The plaintiff’s lawyer’s request to be removed as lawyer of record was granted by way of an order dated November 29, 2019. That order required that the plaintiff be served with a copy of the order at his last known address. It also provided that the defendants were free to proceed with their motion for summary judgment if the plaintiff did not file a notice of intention to act in person within 30 days.
[12] No notice of intention was ever served or filed by the plaintiff, nor has any lawyer served a notice of change of lawyer.
ISSUES
[13] The issues in this motion are straightforward:
(1) Is there a genuine issue requiring a trial with respect to the allegations of negligence against the moving defendants?
(2) Should the action be dismissed because the plaintiff has failed to retain another lawyer or to give notice that he intends to represent himself?
[14] I will deal with the issues in the order in which I have listed them.
ANALYSIS
Is there a genuine issue requiring a trial with respect to the allegations of negligence against the moving defendants?
[15] The moving defendants bring their motion for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The relevant parts of the rule read:
20.01
(3) 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.
20.02
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
20.04
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence…
[16] The party moving under r. 20 bears the onus of establishing that there is no genuine issue requiring a trial: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201, 1998 CarswellOnt 3202, at para. 17. To satisfy that onus, r. 20.01(3) requires the moving party to adduce evidence. In a professional negligence case such as this one, that evidence must include evidence going to the merits of the case: Sanzone v. Schecter, 2016 ONCA 566, at para. 27.
[17] The moving defendants have done that here. They have all sworn affidavits in which they have outlined the symptoms with which the plaintiff presented and the treatment they offered him. They have also delivered affidavits sworn by Dr. Lapointe and Dr. Rheault, in which each expert summarizes why he has concluded that the defendants met the standard of care, and to which each witness has appended a copy of his report. These affidavits more than meet the evidentiary requirements for the filing of expert evidence in a summary judgment motion: Sanzone, at para. 16.
[18] Pursuant to r. 20.02(3), in response to this evidence, the plaintiff is not permitted simply to rest on the allegations made in the statement of claim; he must submit evidence showing that there is a genuine issue requiring a trial. In the context of a professional negligence claim, that evidence must include the evidence of an expert: Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125, at para. 18; Latulippe v. Greenspoon, 2017 ONSC 6579, at para. 27; Galalae v. Kingston Police Services Board, 2013 ONSC 5153, at para. 27. Without expert evidence, there is no hope of success at trial and, therefore, there is no genuine issue requiring one: Galalae, at para. 28. Such is the case here.
[19] As r. 20.04(2) makes clear, where a judge concludes that there is no genuine issue requiring a trial, he or she must grant summary judgment.
[20] For these reasons, summary judgment is granted in favour of the moving defendants.
Should the action be dismissed because the plaintiff has failed to retain another lawyer or to give notice that he intends to represent himself?
[21] Because of the conclusion I have reached on the first issue, there is no need to consider the second.
CONCLUSION
[22] For the foregoing reasons, the plaintiff’s claim against Robert Pye, Antonio Locantore, Kevin Batten, Gordon Brock, and Véronique Mallet, is dismissed.
COSTS
[23] The successful parties may make written submissions regarding costs, limited to five typewritten pages, exclusive of attachments, within 30 days.
[24] Given the plaintiff’s failure to comply with r. 15.04(8) by hiring another lawyer or filing a notice of intention to act in person, service on the plaintiff of the written submissions on costs shall be dispensed with under rr. 2.03 and 16.04 of the Rules of Civil Procedure.
M.G. Ellies R.S.J.
Released: September 15, 2021
COURT FILE NO.: CV-15-6305
DATE: 2021/09/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tomy Bédard
Plaintiff
– and –
Robert Pye, Antonio Locantore, Kevin Batten, Joseph Brant Memorial Hospital, Lorraine Verschoote, Lisa Duncan, Gordon Brock, Véronique Mallet, J. Doe 1 and J. Doe 2
Defendants
REASONS FOR Decision
M.G. Ellies R.S.J.
Released: September 15, 2021