Court File and Parties
Ontario Superior Court of Justice
Between:
PATRICK CHAPIN and JESSIE ALEXANDRA CHAPIN
Self-represented
Plaintiffs
- and -
DR. RANJIT BABOOLAL, DR. DIANA MILLS-TETTEY, DR. VINCENT DE SA, DR. JUSTIN JAGGER, DR. FRANK NIGRO, THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE and GEORGE EDWARD DERBYSHIRE
Defendants
Counsel
M. Lerner and S. Hargreaves, for the Defendants/Moving Parties on Motion, Dr. Justin Jagger and Dr. Frank Nigro
P. Goudarzi-Malayeri, for the Defendant/Moving Party on Motion, Thunder Bay Regional Health Sciences Centre
Hearing
Heard: July 30, 2025, at Thunder Bay, Ontario
Before: Madam Justice R.A. Lepere
Decision on Motion
Overview
1The Plaintiffs, Patrick Chapin ("Patrick") and Jessie Chapin ("Jessie") are father and daughter. They have commenced this medical malpractice action arising out of the care and treatment received by their sons and brother, Wesley Chapin ("Wesley") between November 15-17, 2009 and November 27-29, 2009 at the Thunder Bay Regional Health Sciences Centre (the "Hospital"). The individual Defendants are the various doctors that were involved in Wesley's care at the material times referred to in the Statement of Claim. All of the doctors named as Defendants are pediatricians, except for Dr. Nigro who is a cardiologist.
2The Defendants, Dr. Jagger and Dr. Nigro have brought this motion for summary judgment to dismiss the Plaintiffs' claim against them on the basis that the Plaintiffs have no expert evidence to support the allegations of negligence made against them.
3The Hospital has also brought a motion for summary judgment to dismiss the Plaintiffs' claim against it on the basis that the Plaintiffs have no expert evidence to support the allegations of negligence made against it.
4The Plaintiffs defend the motions on the basis that the negligence as against the Hospital, Dr. Jagger and Dr. Nigro are so clear that no expert evidence is needed, they can rely on medical literature to prove the alleged negligence and/or they can cross-examine the Defendants and their expert witnesses at trial to get evidence to support their case.
Factual Background
5On November 15, 2009, Wesley came to the Hospital by ambulance after he was discovered at home in a disoriented and confused state and was admitted for observation. It was suspected that he may have had a seizure. Several tests were conducted at the Hospital during his admission from November 15, 2009 to November 17, 2009 (the "First Admission"). It was suspected that he may have had a cardiac syndrome and a consultation with a pediatric cardiologist from Sick Kids Hospital in Toronto, Ontario was done. Wesley had an EEG done during the First Admission, but the results were pending at the time of his discharge. Wesley was discharged home on November 17, 2009 by Dr. Baboolal with plans to follow up with an outpatient Holter monitor and an echocardiogram (ECG).
6Neither Dr. Jagger nor Dr. Nigro were involved in Wesley's care during the First Admission.
7Wesley wore the Holter monitor on November 20, 2009 and November 21, 2009 and was subsequently interpreted by Dr. Nigro.
8On November 27, 2009, Wesley was brought back to the Hospital by Patrick with complaints of dizziness and light-headedness. He was admitted for observation from November 27, 2009 to November 29, 2009 (the "Second Admission") under the care of Dr. Warkentin. Wesley's care was transferred to Dr. Jagger on November 28, 2009. Dr. Jagger did a pediatric consult with respect to Wesley. At the time of the consult, Wesley was waiting for the ECG to be completed. Dr. Jagger determined that anti-convulsant medication were not needed at this time and wanted the cardiac testing to be completed before any medication was prescribed. Dr. Jagger had no other involvement in Wesley's care.
9Wesley was discharged home on November 29, 2009, by Dr. DeSa, with a plan that included follow-up with Dr. Baboolal.
10The ECG was completed on November 29, 2009 and was subsequently reported by Dr. Nigro on November 30, 2009.
11Dr. Nigro never saw or examined Wesley and had no more involvement in his care.
12Wesley's EEG was interpreted by Dr. Derbyshire on December 7, 2009.
13Wesley had a follow up appointment with Dr. Baboolal on December 10, 2009 at which time all of the testing and related reports had been completed.
14On December 19, 2009, Wesley passed away in his home. An autopsy was performed. No cause of death could be ascertained. The coroner did note that there was reason to suspect a cardiac event.
15The Plaintiffs dispute the findings of the coroner and have made allegations of negligence as against the named Defendants. For the purposes of these motions, I will only focus on the allegations of negligence as against Dr. Jagger, Dr. Nigro and the Hospital.
Procedural History
16The Statement of Claim was issued on December 15, 2011. The Plaintiffs originally had a lawyer but filed a Notice of Intention to Act in Person in March 2012. Statements of Defence were delivered in May 2012.
17A status hearing was held on June 27, 2014 wherein it was ordered that the action was to be set down for trial on or before October 31, 2015.
18All Affidavits of Documents were delivered by the end of 2014.
19On November 24, 2015, the action was administratively dismissed for delay as the action had not been set down for trial. The action was reinstated on January 7, 2016 further to a motion brought by the Plaintiffs.
20Examinations for discovery were held in January 2015.
21In the summer of 2016, the Plaintiffs retained a new lawyer.
22On October 3, 2017, a further timetable was agreed to by the parties requiring all expert reports to be served by May 31, 2018 and that the action be set down for trial by July 31, 2018.
23In May 2018, the Plaintiffs were once again self-represented. A Trial Record was delivered by the July 31, 2018 deadline.
24The parties attended two pre-trial conferences in February and March 2019. At these attendances, the Plaintiffs advised the court they were in the process of having their expert report(s) finalized.
25The parties attended three further pre-trial conferences/case conferences to ready the matter for trial in the fall of 2023. At these conferences orders were made on consent discontinuing the claim against some of the Defendants. At the November 28, 2023 conference, the Plaintiffs recognized the need for more expansive expert opinions regarding certain doctors, including Dr. Jagger and Dr. Nigro.
Allegations against Dr. Jagger
26The Plaintiffs allege that Dr. Jagger was negligent in that he failed to follow up on an MRI that had been ordered by a different doctor but had not yet been completed, that he should have corrected a previously ordered EEG to sleep deprived EEG, that he should have referred Wesley to a neurologist and a cardiologist, and that he should have prescribed anti-convulsant medication to Wesley.
27The Defendants have delivered an expert report from Dr. Jeremy Friedman, a pediatrician, which opines that Dr. Jagger met the relevant standard of care with respect to the care he provided to Wesley.
28The Plaintiffs obtained the opinion of Dr. Evan Cole Lewis, a pediatric neurologist. The focus of Dr. Lewis' report is primarily the care of Dr. Baboolal. However, Dr. Lewis does explicitly state in his report that Dr. Jagger met the standard of care.
Allegations against Dr. Nigro
29The Plaintiffs assert that Dr. Nigro was negligent as the ECG results did not mention the cardiac myopathy that was identified after Wesley's death.
30The Plaintiffs' own cardiac expert, Dr. Makanjee is supportive of the cardiac care received by Wesley in this case. He does not raise any concerns with the care provided by Dr. Nigro.
31The Defendants have not obtained their own expert evidence with respect to the care provided by Dr. Nigro. They take the position that same is not necessary as the Plaintiffs have no evidence critical of the care provided by Dr. Nigro to Wesley.
Allegations against the Hospital
32The Plaintiffs assert that the Hospital was negligent because:
a. the EEG ordered on November 16, 2009 was not completed until November 17, 2009 and this delay impacted its accuracy; and
b. the Hospital failed to initiate a protocol to properly consult tertiary specialists.
33The Plaintiffs have not delivered an expert report that addresses the standard of care expected of the Hospital and/or that the above allegations are a breach of the expected standard of care. Lastly, there is no opinion that if the above allegations were a breach of the standard care, that the breaches contributed to Wesley's death.
34The Plaintiffs rely on the coroner's investigation to support its allegations against the Hospital. However, the Hospital asserts that the coroner's report cannot be tendered as expert evidence in this litigation.
35The Hospital has obtained their own expert report which opines that the Hospital and its staff met the standard of care in this case. Furthermore, the Hospital asserts that Wesley's cause of death could not be determined. Therefore, the Plaintiffs cannot prove that the Hospital was a but for cause of Wesley's passing.
Summary Judgment – General Principles
36Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits a defendant to move for summary judgment after delivering a Statement of Defence.
37On a summary judgment motion, the presiding judge must decide if there are genuine issues requiring a trial. Rule 20.04(2) requires the court to grant summary judgment if "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence". The overriding consideration on a motion for summary judgment is whether the "judge is able to reach a fair and just determination on the merits": see Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
38Rule 20.02 governs the evidence to be used on a motion for summary judgment. Rule 20.02(2) states that a party responding to a motion for summary judgment "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." Each party must put its best foot forward. The Court is entitled to assume that no additional evidence would be put forward by either party if the matter had proceeded to trial: see Hurst v. Shabib, 2021 ONSC 8342, at para. 23.
39Although a party moving for summary judgment bears the burden of establishing that there is no genuine issue requiring a trial, the responding party must prove its claim has a "real chance of success" by furnishing evidence in support of its position: see Shabib, at para. 23.
Requirement for Expert Evidence in Medical Malpractice Actions
40In a medical malpractice action, there is no genuine issue requiring a trial if the plaintiffs do not obtain expert opinions in support of their claim. That expert evidence must establish: (1) the standard of care; (2) that there was a breach of the standard of care; and (3) that the breach caused the plaintiff's injuries or damages. If this evidence is not presented, summary judgment may be granted dismissing the plaintiff's action: see Ayubi v. Mount Sinai Hospital, 2023 ONSC 968, at para. 100.
41The reason for this requirement was stated by the Ontario Court of Appeal in Liu v. Wong, 2016 ONCA 366, at para. 14 as follows:
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 in support of the plaintiff's medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.
42The failure of a plaintiff to obtain an expert report permits and invites the court to infer that the plaintiff was unable to obtain an expert report to support their allegations of negligence: see Richmond v. Balakrishnan et al, 2010 ONSC 5888, at paras. 22-23.
Analysis and Disposition
43Mr. Chapin, who was self-represented and made submissions on behalf of himself and Jessie, spoke clearly and passionately during his oral submissions with a sincere belief in the merits of their case against Dr. Jagger, Dr. Nigro and the Hospital. While I am certainly sympathetic to the Plaintiffs and their loss, the fact that they are self-represented does not relieve them of their obligation to prove their claim with the necessary evidence on this motion or at trial.
44Pursuant to the applicable legal principles and the facts of this case, as I will set out in more detail below, I am granting the motions brought by Dr. Jagger, Dr. Nigro and the Hospital, and dismissing the Plaintiffs' claim as against them.
Claim against Dr. Jagger
45With respect to the Plaintiffs' claim against Dr. Jagger, the motion is granted as there is no genuine issue requiring a trial for the following reasons:
a. the Plaintiffs have not delivered expert evidence either in the action or on this motion providing an opinion that Dr. Jagger breached the relevant standard of care with respect to the care he provided to Wesley and/or that any breach by Dr. Jagger caused Wesley's death;
b. the Plaintiffs own expert witness, Dr. Lewis supports the care provided by Dr. Jagger and does not opine that Dr. Jagger was negligent;
c. Dr. Jagger has delivered his own expert evidence opining that he met the relevant standard of care with respect to the care he provided to Wesley which has not been disputed;
d. the Plaintiffs were aware of the requirement that expert evidence is needed to prove their claims against the named Defendants and the timeline for providing same expired a long time ago;
e. the position of the Plaintiffs that this is a clear case of negligence by Dr. Jagger rendering expert evidence unnecessary is not supported by the evidence (most specifically, the expert opinion stating that Dr. Jagger was not negligent);
f. the position of the Plaintiffs that they can use medical literature to prove that Dr. Jagger was negligent cannot be accepted given the clear law on the requirement for expert evidence in medical malpractice actions;
g. the position of the Plaintiffs that they can obtain evidence at trial on cross-examination to support the allegations of negligence cannot be accepted as they are required on this motion to put their best evidentiary foot forward to establish that there is a genuine issue requiring a trial and cannot defend this motion by waiting until trial to "hope" that they will get the evidence they need to prove their claims; and
h. given the passage of time, the fact that the Plaintiffs have been advised on at least three occasions via court endorsement that they require expert evidence to prove their claims, and that the deadlines for the Plaintiffs to deliver expert evidence have long expired, I can infer that the Plaintiffs are unable to obtain the necessary expert evidence with respect to the allegations against Dr. Jagger: see Latulippe v. Greenspoon, 2017 ONSC 6579, at paras. 27-29.
Claim against Dr. Nigro
46With respect to the Plaintiffs' claim against Dr. Nigro, the motion is granted as there is no genuine issue requiring a trial with respect to the Plaintiffs' claim as against Dr. Nigro for the following reasons:
a. the Plaintiffs have not delivered expert evidence either in the action or on this motion providing an opinion that Dr. Nigro breached the relevant standard of care with respect to the care he provided to Wesley and/or that any breach by Dr. Nigro caused Wesley's death;
b. the Plaintiffs' own expert witness, Dr. Makanjee, is not critical of Dr. Nigro's interpretations of Wesley's cardiac testing and is generally supportive of all cardiac care received by Wesley;
c. while Dr. Nigro has not delivered his own expert report opinion that he met the relevant standard of care with respect to the care he provided to Wesley, this is not necessary in this case as the Plaintiffs' own evidence is supportive of the care provided by Dr. Nigro;
d. the Plaintiffs were aware of the requirement that expert evidence is needed to prove their claims against the named Defendants and the timeline for providing same expired a long time ago;
e. the position of the Plaintiffs that this is a clear case of negligence by Dr. Nigro rendering expert evidence unnecessary is not supported by the evidence (most specifically, the Plaintiffs' own expert opinion supporting the cardiac care received by Wesley);
f. the position of the Plaintiffs that they can use medical literature to prove that Dr. Nigro was negligent cannot be accepted given the clear law on the requirement for expert evidence in medical malpractice actions;
g. the position of the Plaintiffs that they can obtain evidence at trial on cross-examination to support the allegations of negligence cannot be accepted as they are required on this motion to put their best evidentiary foot forward to establish that there is a genuine issue requiring a trial and cannot defend this motion by waiting until trial to "hope" that they will get the evidence they need to prove their claims; and
h. given the passage of time, the fact that the Plaintiffs have been advised on at least three occasions via court endorsement that they require expert evidence to prove their claims and that the deadlines for the Plaintiffs to deliver expert evidence have long expired I can infer that the Plaintiffs are unable to obtain the necessary expert evidence with respect to the allegations against Dr. Nigro: see Latulippe, at paras. 27-29.
Claim against the Hospital
47With respect to the Plaintiffs' claim against the Hospital, the motion is granted as there is no genuine issue requiring a trial with respect to the Plaintiffs' claim as against the Hospital for the following reasons:
a. the Plaintiffs have not delivered expert evidence either in the action or on this motion providing an opinion as to the relevant standard of care expected of the Hospital in this case, that the Hospital breached the relevant standard of care with respect to the care provided to Wesley and/or that any breach by the Hospital caused Wesley's death;
b. the Plaintiffs' own expert witnesses (while likely not qualified to opine on the Hospital's standard of care) are not critical of the care provided by the Hospital;
c. the Hospital has delivered its own expert evidence opining that it met the relevant standard of care with respect to the care provided to Wesley which has not been disputed;
d. the Plaintiffs were aware of the requirement that expert evidence is needed to prove their claims against the named Defendants and the timeline for providing same expired a long time ago;
e. the position of the Plaintiffs that this is a clear case of negligence by the Hospital rendering expert evidence unnecessary is not supported by the evidence (most specifically, the expert opinion stating that the Hospital was not negligent);
f. the position of the Plaintiffs that they can use medical literature to prove that the Hospital was negligent cannot be accepted given the clear law on the requirement for expert evidence in medical malpractice actions;
g. the position of the Plaintiffs that they can obtain evidence at trial on cross-examination to support the allegations of negligence cannot be accepted as they are required on this motion to put their best evidentiary foot forward to establish that there is a genuine issue requiring a trial and cannot defend this motion by waiting until trial to "hope" that they will get the evidence they need to prove their claims; and
h. given the passage of time, the fact that the Plaintiffs have been advised on at least three occasions via court endorsement that they require expert evidence to prove their claims and that the deadlines for the Plaintiffs to deliver expert evidence have long expired I can infer that the Plaintiffs are unable to obtain the necessary expert evidence with respect to the allegations against the Hospital: see Latulippe, at paras. 27-29.
Costs
48A Bill of Costs was filed by Dr. Jagger and Dr. Nigro showing that their costs of the action were $40,844.44, inclusive of HST and disbursements. This includes $11,947.80 in fees on a partial indemnity basis for the summary judgment motion. However, they only seek costs of $5,000.00, inclusive of HST and disbursements if successful on the motion.
49The Hospital has filed two Bill of Costs. The first is for the action wherein they claim costs on a partial indemnity basis in the amount of $65,669.38, inclusive of HST and disbursements. This does not appear to include time related to the summary judgment motion. A second Bill of Costs was filed wherein they claim costs on a partial indemnity basis in the amount of $14,903.34, inclusive of HST and disbursements for the summary judgment motion. The Hospital did not advise during submissions if they were prepared to accept a discounted amount of costs if successful on the motion.
50The Plaintiffs state that any cost award should take into consideration the fact they are self-represented. They did not make further submissions on the amounts claimed.
51In the usual course, the successful party is entitled to their costs or a portion thereof from the losing party. Since I have dismissed the Plaintiffs' claims against Dr. Jagger, Dr. Nigro and the Hospital, they are the unsuccessful party. I must now determine whether they must pay costs to Dr. Nigro, Dr. Jagger, and the Hospital, and if yes, how much.
52In Ayubi v. Mount Sinai Hospital, 2023 ONSC 968, at para. 124, Perell, J. stated:
…[M]odern costs rules are designed to advance five purposes in the administration of justice: (1) to indemnify the successful litigants for the costs of litigation, although not necessarily completely; (2) to facilitate access to justice, including access for impecunious litigants; (3) to discourage frivolous claims and defences; (4) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements.
53I find that the only purpose a cost award against the Plaintiffs would serve in this instance is to indemnify Dr. Jagger, Dr. Nigro, and the Hospital for the costs of litigation. As such, I find that the Plaintiffs shall pay costs to Dr. Jagger, Dr. Nigro, and the Hospital.
54In terms of quantum, I find that the amount requested by Dr. Jagger and Dr. Nigro is reasonable in the circumstances for the following reasons:
a. the amount claimed is a significant discount from the costs claimed on a partial indemnity basis;
b. the amount claim is less than the disbursements expended on behalf of Dr. Jagger and Dr. Nigro to defend the action; and
c. Dr. Jagger had to incur the cost of obtaining an expert report to defend against the claims advanced by the Plaintiff with that evidence being vital to his success on this motion.
55Based on the foregoing, the Plaintiffs shall pay costs of the action and this motion to the Defendants, Dr. Jagger and Dr. Nigro in the amount of $5,000.00, inclusive of HST and disbursements.
56In terms of quantum, I find that the amount requested by the Hospital is not reasonable for the following reasons:
a. they have multiple lawyers involved at various stages suggesting a duplication of time;
b. they have claimed time for several law clerks without anything to show that they were performing clerk work and not administrative tasks;
c. the Hospital chose to retain lawyers from outside of the Northwest Region who charge hourly rates significantly higher than lawyers in our region for which the Plaintiffs should not be responsible for;
d. the Hospital has had their expert report since early 2021 but continued to incur costs related to the litigation, instead of bringing a motion at that time for summary judgment avoiding costs incurred since that time (approximately $17,785.00 in fees);
e. the Hospital should have worked with Dr. Nigro and Dr. Jagger in the preparation of the summary judgment motion materials to avoid duplication and to save costs; and
f. a general consideration of the principles of proportionality and the reasonable expectations of the parties.
57Based on the foregoing, the Plaintiffs shall pay costs of the action and this motion to the Hospital in the amount of $5,000.00, inclusive of HST and disbursements.
The Hon. Madam Justice R.A. Lepere
Released: September 11, 2025