Fridays with Rogers Partners
At our weekly meeting, Annie Levanaj discussed the recent decision in Bédard v. Pye et al., 2021 ONSC 6379, granting a motion to dismiss an action for damages allegedly resulting from medical malpractice.
There had been a prior decision in the action by the same judge on a motion for summary judgment under Rule 20 of the Rules of Civil Procedure brought by the defendant dentists and physicians. That motion had been granted, and the action dismissed as against those defendants, because the plaintiff had failed to deliver an expert report to support his claim.
The present motion related to the defendants, Brant Memorial Hospital and nurses Lorraine Verschoote and Lisa Duncan, who also brought a motion seeking summary judgment, or in the alternative, dismissal for failure of the plaintiff to appoint counsel or deliver a notice of intention to act in person.
The plaintiff alleged negligence against the hospital nurses for failing to diagnose and treat the plaintiff when he came to the hospital after suffering a fractured mandible from a negligently performed tooth extraction. The plaintiff alleged vicarious liability against the hospital.
Issues
The defendants moved for dismissal of the action on two bases:
1) Summary judgment should be granted on the basis that there was no genuine issue requiring trial as it relates to the nurses’ negligence, because the plaintiff had failed or refused to deliver an expert report on the issue; and
2) The action should be dismissed because the plaintiff had failed to appoint a new lawyer or to give notice of his intention to represent himself.
In the previous motion, the dentist and physician defendants succeeded in raising the first submission, but on this motion the court rejected the first submission and instead, and granted the motion on the basis of the second.
Analysis
Submission 1: No genuine issue requiring trial
The court stated that when responding to a summary judgment motion, a plaintiff should rely on more than the allegations of negligence made in their statement of claim, and must bring additional evidence to show there is a genuine issue requiring trial. It also stated:
“the party moving under r. 20 bears the onus of establishing that there is no genuine issue requiring a trial… to satisfy that onus, r.20.01(3) requires the moving party to adduce evidence going to the merits of the case: Sanzone v. Schecter[1]”
The court stated that professional negligence requires expert evidence from both the plaintiff and the moving party. The defendant failed to file any expert evidence on this motion to demonstrate they met the standard of care, and instead relied on the fact that the defendant nurses are experts. The court found that this was not sufficient for the defendant to meet their evidentiary burden on a summary judgment motion.
Submission 2: Failure to appoint a new lawyer or give notice of self-representation
The plaintiff’s lawyer had been removed after a successful motion under rule 15.04. The lawyer’s affidavit in support of the motion indicated that she spoke with the plaintiff in April of 2019, and advised the plaintiff of the pending summary judgment motion. Afterwards, the former lawyer attempted to contact the plaintiff numerous times to which there was no response for six months. Rule 15.04 was complied with, and an order removing the lawyer was served at the plaintiff’s last known address.
Rule 15.04(8) requires that within 30 days of being served with an order for removal of counsel, the party shall appoint a new lawyer by serving a notice of change of lawyer, or shall serve a notice of intention to act in person.
As the plaintiff failed to act on the order for over 18 months, the judge struck the plaintiff’s claim under rule 15.04. Rule 15.04(9) indicates that when a client fails to comply with rule 15.04(8), the court may dismiss a client’s proceeding. The plaintiff’s claim against the defendants was accordingly dismissed on this basis.
Takeaways
The requirements under rule 15.04 are more than mere formalities, and require compliance. For summary judgment motions in medical negligence cases, it is important for both parties to bring in expert evidence to support their position on whether there is a genuine issue requiring trial.
[1] 2016 ONCA 566