Citation: Sanzone v. Schechter, 2016 ONCA 566 (CanLII), <http://canlii.ca/t/gsgjq>, retrieved on 2016-07-13

ISSUES ON APPEAL

[14]      The appellant submits the motion judge committed two errors in dismissing her action:

i.     The motion judge erred in finding that Dr. Shafer’s letter was not admissible as an expert report on a summary judgment motion; and

ii.   The motion judge failed to accord the appellant, a self-represented litigant, an appropriate amount of leeway on procedural matters, with the result that the dismissal of her action was not a fair and just result in the circumstances.

ANALYSIS

First ground of appeal: The admissibility of Dr. Shafer’s letter

[15]      The appellant submits the motion judge erred in ruling that Dr. Shafer’s letter was inadmissible on the summary judgment motion. I do not agree. The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in rule 20.02(1) of the Rules of Civil Procedure.

[16]      As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII), 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060 (CanLII), [2014] O.J. No. 1802, at para. 29, aff’d 2014 ONCA 887 (CanLII).

[17]      In the present case, Dr. Shafer was not a participant expert, and his letter of July 27, 2014 did not meet the requirements of rule 53.03: it lacked a proper statement of his qualifications; it did not set forth the reasons for his opinion in the depth required by rule 53.03(2.1)(6); nor was it accompanied by an acknowledgement of expert’s duty.

[18]      Moreover, on the motion the appellant did not purport to tender Dr. Shafer’s letter as an expert report. As stated in her July 13, 2015 affidavit, she was still “looking to retain an expert.” She attached Dr. Shafer’s letter as one “from a qualified dentist [that] speaks to some issues involved in this claim. The letter is by no means complete, however.”

[19]      Accordingly, I see no error in the motion judge’s ruling that Dr. Shafer’s letter was inadmissible on the summary judgment motion as the report of an expert.

Second ground of appeal: Whether the dismissal of the appellant’s action was fair and just in the circumstances

[20]      The appellant submits the dismissal of her action was not a fair or just result given her circumstances as an impecunious, self-represented litigant. The appellant contends the motion judge should have afforded her some leeway on procedural matters by (i) dispensing, in various ways, with the requirements of rule 53.03, (ii) affording her more time to comply with rule 53.03, or (iii) considering an alternative to the dismissal of her action.

[21]      Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 1999 CanLII 9289 (ON CA), 125 O.A.C. 375 (C.A.), at para. 36. It is apparent from the transcript of the June 20, 2014 adjournment hearing that the motion judge tried very hard to do exactly that.

[22]      Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36. A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.

[23]      That said, when a represented party invokes the mechanisms available under the Rules of Civil Procedure to seek some relief against a self-represented party, the represented party must ensure it complies fully with its own obligations under the rules, and not use the rules to take unfair advantage of the self-represented litigant.

[24]      Rule 20.01(3) requires a defendant to “move with supporting affidavit material or other evidence” on a summary judgment motion. The respondent dentists, as the moving parties, bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201 (C.A.), at para. 16; Connerty v. Coles, 2012 ONSC 5218 (CanLII), [2012] O.J. No. 4313, at para. 9. They were not entitled to rely merely on the allegations in their statement of defence; the respondents were required to put their best evidentiary foot forward.

[25]      They did not do so. Instead, they submitted to the motion judge that the decision of this court in Kurdina v. Dief, 2010 ONCA 288 (CanLII), [2010] O.J. No. 1551, required the dismissal of the appellant’s action because the absence of any expert evidence in support of her claim demonstrated that no genuine issue requiring trial existed. The motion judge accepted that argument. In my respectful view, he erred in so doing in the circumstances of this case.

[26]      Kurdina involved a negligence claim against two psychiatrists. They moved for summary judgment, which was granted. In dismissing the plaintiff’s appeal, this court observed, at para. 3:

The respondents provided the evidence of Dr. Sugar, a qualified expert witness who swore that the respondents had not fallen below the standard of care in their treatment of the appellant.  To avoid summary judgment, the appellant was required to adduce some expert opinion evidence from a qualified psychiatrist supporting her claim that the care she received fell below the applicable standard of care.

[27]      In contrast to the evidence on the merits put forward by the moving party psychiatrists in the Kurdina case, in the present case the moving party dentists did not file any evidence going to the merits of their defence. They did not file their own affidavits explaining the treatment they gave the appellant, nor did they file an affidavit or report from a qualified expert on the issue of the standard of care. Instead, they filed affidavits from two associates in their counsel’s office: one recounting the procedural history of the action; the other providing information about Dr. Shafer’s qualifications.

[28]      The respondents submit two cases support their position that simply filing a lawyer’s affidavit was sufficient in the circumstances. In Claus v. Wolfman (1999), 1999 CanLII 14824 (ON SC), 52 O.R. (3d) 673 (S.C.), aff’d (2000), 2000 CanLII 22728 (ON CA), 52 O.R. (3d) 680 (C.A.), defendant physicians and a hospital moved for summary judgment in a medical malpractice action arguing the plaintiff had failed to produce a supporting expert report. In the course of his reasons granting summary judgment, the motion judge commented that “it would therefore be open to a court to grant summary judgment dismissing a claim of this nature even without the expert opinion of the defendants”: at para. 12. That comment was obiter because, in fact, the moving party physicians had filed a report of their own expert on the motion. In dismissing the appeal, this court relied on that expert evidence, noting the defendant physicians “have demonstrated that there is no evidence that such force as was applied [during the delivery] fell below an acceptable standard of care.” The Claus case therefore does not support the respondents’ submission.

[29]      The second case is Cassibo v. Bacso, 2010 ONSC 6435 (CanLII), [2010] O.J. No. 5150, in which a defendant dentist obtained summary judgment dismissing a professional negligence claim. The plaintiff, who was represented by counsel, had not delivered an expert report by the time discoveries had concluded and the motion was brought. The motion judge observed, at paras. 15 and 17, that some courts have held that in a limited class of cases a plaintiff’s expert report is not necessary where an inference of a breach of care or causation can be made without the necessity of expert evidence. However, the motion judge rejected the plaintiff’s submission that the moving party defendant was not entitled to summary judgment because he had not filed an expert report. The motion judge stated, at para. 20:

Such an argument if accepted would effectively reverse the evidentiary burden. It would also as a practical matter lead to a difficult situation for defendants who would be forced to obtain costly expert opinions to respond to a case which has not been fully articulated by the plaintiff.

[30]      I would respectfully disagree with that conclusion. First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) – “a defendant may… move with supporting affidavit material or other evidence.” As explained in Connerty, at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.

[31]      Second, the decision in Cassibo stands outside the overwhelming weight of the case law that when medical practitioners move for summary judgment to dismiss a malpractice action, they file evidence on the merits of their defence, including expert reports.[1] That general practice is consistent with the evidentiary obligation borne by moving parties on summary judgment motions.

[32]      In the present case, given the absence of evidence from the moving party dentists in support of their defence, the motion judge should have addressed the threshold question of whether the respondents had discharged their evidentiary obligation as moving parties under rule 20 to put their best foot forward by adducing evidence on the merits. In my respectful view, the motion judge erred in failing to address that question.

[33]      If the respondent dentists had filed evidence dealing with the merits of their defence in support of their summary judgment motion, it would have been open to the motion judge to treat the appellant’s failure to deliver a compliant expert’s report as a basis to dismiss her action. In light of the respondents’ failure to file any such evidence, it was not open to the motion judge to grant summary judgment. He erred in so doing.

[34]      In my view, the respondent dentists attempted to use rule 20 as a means to unfairly accelerate the delivery of an expert’s report by the appellant. Rule 53.03(1) requires a party who intends to call an expert witness at trial to serve a report “not less than 90 days before the pre-trial conference.” In the present case, no pre-trial conference date had been set.

[35]      Where no pre-trial conference date has been set, it is open to a party to accelerate the exchange of expert reports by requesting under rule 50.13(1) a case conference which can be scheduled “at any time.” At a case conference, a judge may give directions for any procedural step, including setting a timeline for the exchange of expert reports: rules 50.13(5)-(6). In crafting those directions at a case conference where the parties can raise all outstanding procedural issues, the judge can fairly balance the interests of both parties and establish a procedural roadmap for the balance of the proceeding tailored to the circumstances of the case and the abilities of any self-represented party. Single-judge case management, which addresses all the steps in a proceeding, not just the preparation of a single motion, offers a powerful tool by which judges can discharge their duty to accommodate self-represented parties’ unfamiliarity with the litigation process to enable them to present their case to the best of their abilities.

[36]      Although the parties had attended two case conferences before masters prior to the respondents launching their summary judgment motion, no timetable had been set for the exchange of expert reports. The timetables set by the masters had focused on the respondents’ motion for security for costs. Accordingly, when the respondents brought their summary judgment motion, the appellant was not in default of her obligations under the rules regarding the delivery of an expert’s report. By resorting to rule 20 to compel the self-represented appellant to deliver an expert report, without meeting their own evidentiary obligations as moving parties under the rule, the defendants used the rules in a procedurally inappropriate manner.

[37]      In those circumstances, the motion judge should not have granted summary judgment but, instead, should have focused on the moving parties’ alternative relief – the dismissal of the action because the appellant had not set it down for trial by December 31, 2014, as directed by a master. Had the motion judge done so, no doubt he would have concluded that this action had reached the point where case management by a single judge was required in order to address the legitimate desire of the respondents to see the action moved along, while accommodating, in a reasonable and practical manner, the self-represented appellant’s unfamiliarity with the process to enable her to present her case to the best of her ability.

DISPOSITION

[38]      For these reasons, I would grant the appeal, set aside the summary judgment dismissing the action, and award the appellant costs of the appeal fixed in the amount of $5,000, inclusive of disbursements and HST.

Released: “GRS” (July 13, 2016)

 

“David Brown J.A.”

“I agree G.R. Strathy C.J.O.”

“I agree Grant Huscroft J.A.”

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