Court File and Parties

COURT FILE NO.: CV-20-685594

DATE: 20220804

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BLESSING ALECHENU, on her own behalf, and EDGAR OMAKWU by his Litigation Guardian BLESSING ALEACHENU, Plaintiffs

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DR. PHILIP ROLAND SOLOMON, SOLOMON FACIAL PLASTIC, and ALL PRIMARY MEDICAL PERSONNEL WHO PARTICIPATED IN THE ALLEDGED NEGLIGENT TREATMENT, ALONG WITH ADDITIONAL, YET TO BE IDENTIFIED DEFENDANTS, Defendants

BEFORE: E.M. Morgan, J.

COUNSEL: Pippa Leslie, for the Defendant

HEARD: August 4, 2022

MOTION TO DISMISS

[1] We have waited until 10:20 a.m. for a motion scheduled to begin at 10:00 a.m., but the Plaintiff has not shown up. The affidavit of service filed by the Defendant establishes that she has received all of the motion materials and is on notice of today’s motion.

[2] Counsel for the Defendants advises that the Plaintiff has failed to attend a number of different motions during the past year and that she has not communicated with them since the last case conference held by the case management judge, Justice Chalmers, on April 28, 2021. At that case conference the Plaintiff was specifically advised that the Defendants would be bringing this summary judgment motion to dismiss the action. Although the Plaintiff had been actively pursuing the matter up until that time, she has gone silent since that date.

[3] The Defendants now move for summary judgment. The claim is a medical malpractice action alleging negligent medical treatment by the Defendants in performing plastic surgery on the Plaintiff’s nose. The Defendants have served an expert report, and the Plaintiff has failed to do so and has expressed no intention of doing so. In Defendants’ counsel’s submission, this failure on the Plaintiff’s part should lead to her case being dismissed.

[4] It is by now well established that in order to succeed in a medical malpractice action, the Plaintiff must provide expert evidence establishing that the Defendant fell below the applicable standard of care and that the breach of the standard of care caused damages. In the absence of expert evidence establishing a breach of the standard of care causing damages to the Plaintiff, there is no genuine issue requiring a trial and the action should be dismissed. The Court of Appeal in Liu v. Wong, 2016 ONCA 366, at para. 14, stated:

Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from ‘the clearest of cases’ the absence of an expert evidence in support of the plaintiff’s medical malpractice claim is fatal.

[5] The Plaintiff is aware of this requirement. Defendant’s counsel advises that at the April 28, 2021 case conference before Justice Chalmers, the Plaintiff was advised of this requirement. She was also advised that if it was not met, the Defendants would be bringing a motion to dismiss her claim.

[6] In the three years since starting this action, the Plaintiff has delivered no expert evidence with respect to the care provided by the Defendant. By contrast, the Defendant has delivered a report from Dr. Henry Huang, a surgeon specialising in Otolaryngology-Head and Neck Surgery and Facial Plastic Surgery, establishing that the applicable standard of care was met in all respects.

[7] Dr. Huang has opined that the Defendant met the standard of care of an Otolaryngology-Head and Neck Surgeon in his treatment of the Plaintiff. Given that this evidence is unchallenged, I have no reason to doubt its cogency.

[8] I note that the action also advances a claim by the Plaintiff’s son under the Family Law Act. This co-Plaintiff is a minor and requires a litigation guardian. Defendant’s counsel tells me that the Plaintiff was advised of this at a case conference and discussed with Justice Chalmers the need to appoint an independent litigation guardian for her son. She has never done so.

[9] I am satisfied that there is no genuine issue requiring a trial: Hryniak v. Mauldin, [2014] 1 SCR 8.

[10] The Defendants seek $40,000 in costs, inclusive of all fees (on a partial indemnity scale), disbursements, and HST. This figure also includes the cost of the expert report which they have produced.

[11] In my view, this is a request that would be within the expectations of any party litigating a complex medical claim. The Plaintiff has put the Defendants to the expense of defending a case which she has apparently decided not to further pursue.

[12] Costs are always discretionary under section 131of the Courts of Justice Act. Under the circumstances, the Defendants’ request meets the fair and reasonable test set out by the Court of Appeal: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, at para 38.

[13] The Plaintiff shall pay the Defendant $40,000 in costs, all inclusive.

[14] The action is dismissed. There will be an Order to go as submitted by the Defendants.

Date: August 4, 2022 Morgan J.