S. Gillis

Bryan Motz, a 24-year-old with severe cerebral palsy, was the plaintiff in a medical malpractice action.

His mother, Leslie Motz, acting as litigation guardian (LG), sought to settle the action by dismissal without costs due to concerns about potential adverse cost awards.

Justice Daley rejected this settlement, found Leslie Motz in a conflict of interest, removed her as LG, and appointed the Public Guardian and Trustee (PGT).

The PGT subsequently moved to vary Justice Daley's order, arguing lack of notice to both the PGT and Leslie Motz, and insufficient grounds for the PGT's appointment.

The court found that both the PGT and Leslie Motz were entitled to notice and that the PGT's appointment as LG of last resort should only occur if no other proper person is willing and able.

The court varied Justice Daley's endorsement, reinstating Leslie Motz as LG and ordering the PGT to provide a report with objections or recommendations regarding the proposed settlement to Justice Daley.

In a motor vehicle accident action, the plaintiffs brought a pre‑trial motion seeking to admit various medical documents under ss. 35 and 52 of the Evidence Act, including clinical notes and consultation reports from several physicians.

The court considered the distinction between factual medical observations and opinion evidence following the Divisional Court’s decision in Westerhof v. Gee (Estate) and related authorities.

The court held that factual portions of a deceased treating physician’s clinical notes were admissible under the principled exception to the hearsay rule and potentially as business records, but the physician’s diagnoses could not be admitted for their truth absent compliance with Rule 53.03.

Compliance with Rule 53.03 was waived in limited circumstances to allow the diagnosis to explain treatment, subject to a limiting jury instruction.

Reports from other specialists that did not comply with Rule 53.03 were excluded due to prejudice and lack of cross‑examination.