Court File and Parties

COURT FILE NO.: CV-15-6305 DATE: 2021/09/27

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

Counsel: No one appearing for the Plaintiff 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] On September 15, 2021, I released reasons for decision in motions brought by the defendant dentists (Robert Pye and Antonio Locantore) and the defendant physicians (Kevin Batten, Gordon Brock, and Véronique Mallet) for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in this dental/medical malpractice action (2021 ONSC 5491). As those reasons explained, the motions were allowed because the plaintiff had failed to deliver an expert report in support of his claims of negligence.

[2] Subsequent to the release of my reasons, it came to my attention that the defendant hospital (Joseph Brant Memorial Hospital) and the defendant nurses (Lorraine Verschoote and Lisa Duncan) had also brought a motion seeking the same relief. I have not been able to determine why this motion was not brought to my attention at the same time as the others. It may have had something to do with the fact that the materials in these matters were first filed in paper not long before our court was required to move to electronic filing due to the pandemic and were later updated electronically. Whatever the reason, on behalf of the court, I wish to apologize to the hospital and the nurses (“the Hospital Defendants”) for the delay.

[3] For the following reasons, the present motion is allowed.

BACKGROUND

[4] The allegations in the action and its procedural history were fully set out in my earlier reasons and I will not repeat them here.

[5] As they relate to the Hospital Defendants, the plaintiff alleges that the nurses negligently failed to diagnose and treat the plaintiff when he attended upon them after suffering a fractured mandible caused by a negligently performed tooth extraction. He further alleges that the defendant hospital is vicariously liable for the nurses’ negligence.

THE ISSUES

[6] The Hospital Defendants move for summary judgment on the same basis as the dentists and physicians did. They submit:

(1) That there is no genuine issue requiring a trial as it relates to the nurses’ negligence because the plaintiff has failed or refused to deliver an expert report on that issue; and, in the alternative,

(2) That the action should be dismissed because the plaintiff has failed to retain another lawyer or to give notice that he intends to represent himself.

[7] Unlike the defendant dentists and physicians, however, the Hospital Defendants cannot succeed on the first issue, as I will explain.

ANALYSIS

Is there a genuine issue requiring a trial with respect to the allegations of negligence against the Hospital Defendants?

[8] As I explained in my earlier reasons, at para. 18, a plaintiff responding to a summary judgment motion is not permitted simply to rest on the allegations of negligence made in the statement of claim. He must adduce evidence showing that there is a genuine issue for trial which, in the case of a professional malpractice action, will usually require that he deliver the report of an expert on the issue of negligence: 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. As the Hospital Defendants correctly submit, the plaintiff has failed to do that here.

[9] However, as I also explained in my earlier reasons, at para. 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), 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.

[10] In the earlier motions, the dentists and physicians had fulfilled this legal requirement. Expert reports had been delivered on behalf of each group in which the author opined that the professionals in question had met the standard of care. Those reports had been filed in the motion as attachments to affidavits sworn by the authors thereof, in which affidavits they also summarized the reasons for their opinions.

[11] That has not been done by the Hospital Defendants. Although they rely on the fact that the defendant nurses are experts, the Hospital Defendants have failed to file any expert evidence establishing that they met the standard of care.

[12] Therefore, they cannot succeed on this issue.

Should the action be dismissed because the plaintiff has failed to retain another lawyer or to give notice that he intends to represent himself?

[13] The plaintiff’s lawyer was removed following a motion brought by the lawyer under r. 15.04 of the Rules of Civil Procedure. The relevant portions of that rule provide:

(2) Service on the client of the notice of motion, of the motion record and of any order removing the lawyer from the record shall be made,

(a) personally or by an alternative to personal service under rule 16.03; or

(b) by mailing a copy to the client at,

(i) the client’s last known address, and

(ii) another address, if any, where the lawyer believes the copy is likely to come to the client’s attention.

(4) The order removing a lawyer from the record shall include,

(a) the client’s last known address, or the address for service if different;

(b) another address, if any, where the lawyer believes the copy is likely to come to the client’s attention;

(c) the telephone number and any e-mail address of the client;

(d) if the client is a corporation, the text of subrules (6) and (7); and

(e) if the client is not a corporation, the text of subrules (8) and (9).

(8) A client who is not a corporation shall, within 30 days after being served with the order removing [the client’s] lawyer from the record,

(a) appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or

(b) serve a notice of intention to act in person under subrule 15.03 (3).

(9) If the client fails to comply with subrule (8),

(a) the court may dismiss the client’s proceeding or strike out his or her defence…

[14] The motion was granted on the basis that the plaintiff had failed or refused to communicate with his lawyer. The affidavit filed in support of the motion to be removed as counsel indicated that the plaintiff spoke with his lawyer in April 2019 and that the lawyer advised the plaintiff at that time of the pending summary judgment motion. The affidavit also indicated that, after the summary judgment motion materials were served on the plaintiff’s lawyer, she made numerous attempts to reach the plaintiff by telephone at a number he had given her. Several messages were left in September and October 2019 in a voicemail box, the greeting for which stated that it belonged to the plaintiff. No response was ever received by the lawyer.

[15] In accordance with r. 15.04, the order removing the plaintiff’s former lawyer set out the plaintiff’s last known address and the lawyer later provided proof that it had been served at that address, as required by the rule. Although the obligation to serve the order under r. 15.04 is that of the lawyer who has been removed as counsel, the defendant physicians took the precautionary step of serving the plaintiff themselves, not only with a copy of the order, but also with a letter (dated December 5, 2019) explaining plainly in both English and French the effect of the order and enclosing (again in both languages) a blank Notice of Intention to Act in Person. These documents were served in accordance with the order removing plaintiff’s counsel by sending them to the plaintiff’s last known address.

[16] The plaintiff has done nothing since the order was served more than 18 months ago.

[17] The requirements imposed upon a former lawyer and his or her client under r. 15.04 are not mere formalities. They ensure that claims do not languish and opposing parties do not suffer due to the uncertainty that comes with outstanding litigation. To fulfil their purpose, these rules must be enforced. That is especially true in a case such as this, where the plaintiff’s failure to comply with the rule is combined with a failure to respond to a motion for summary judgment, a motion which the evidence shows was brought to the attention of the plaintiff by his former lawyer.

[18] For these reasons, the plaintiff’s claim should be struck under r. 15.04.

CONCLUSION

[19] For the foregoing reasons, the motion is allowed and the plaintiff’s claim against the Hospital Defendants is dismissed.

COSTS

[20] The Hospital Defendants may make written submissions regarding costs, limited to five typewritten pages, exclusive of attachments, within 30 days.

[21] 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 27, 2021

COURT FILE NO.: CV-15-6305 DATE: 2021/09/27

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 27, 2021