motion for summary judgment is dismissed

On June 30, 2016, the Ontario Court of Appeal released its decision in the case of Sanzone v. Schecter, 2016 ONCA 566 (CanLII). By coincidence, the defendant in that case, Dr. Ira Schecter, is the same Dr. Ira Schecter who was Dr. Wein’s college-appointed mentor/supervisor in the case before me. That coincidence has nothing to do with this case. That coincidence aside, the Court of Appeal’s decision in Sanzone v. Schecter changes everything.

[8]               Rule 20.01(3) of the Rules of Civil Procedure provide:

(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[9]               In the present case the defendant did not provide any supporting affidavit or other evidence going to the merits of his defence in support of his motion for summary judgment. The only affidavits filed by the defendant were affidavits by a law clerk outlining the somewhat tortured history of this action. The defendant did not file his own affidavit explaining his treatment of the plaintiff, or file an affidavit from a qualified expert on the issue of standard of care. He took the position that, notwithstanding Rule 20.01(3), there is no obligation on the defendant in a medical malpractice case to file an expert affidavit to support a motion for summary judgment. He relied on two decisions for this position: the decision of Hourigan J. (as he then was) in Cassibo v. Bacso, 2010 ONSC 6435 (CanLII), and the decision of Akhtar J. in Sanzone v. Schecter2015 ONSC 4829 (CanLII).

[10]           In Cassibo, Hourigan J. concluded (at para. 20) that there is no obligation on the defendant to file an expert report to support its motion for summary judgment since that would “effectively reverse the evidentiary burden” and lead to a difficult situation for defendants “who would be forced to obtain costly medical expert opinions to respond to a case which has not been fully articulated by the plaintiff”.

[11]           I followed this paragraph in the Cassibo decision at para. 18 of my May 18, 2016 decision and permitted the defendant to proceed with his motion for summary judgment in the absence of any supporting affidavit.

[12]           In Sanzone, the Ontario Court of Appeal expressly disagreed with para. 20 of the Cassibo decision. The Court of Appeal affirmed that Rule 20.01(3) requires a defendant to put its “best evidentiary foot forward” and file evidence with its motion for summary judgment. The court stated (at para. 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.

[13]           In Sanzone the defendants did not file any expert evidence going to the merits of their defence to support their motion for summary judgment. The Court of Appeal held (at para. 25) that the motion judge in Sanzone erred in accepting the argument that the plaintiff’s case must be dismissed because the absence of any expert evidence in support of her claim demonstrated that no genuine issue requiring trial existed. The defendants in Sanzone relied on para. 20 of the decision in Cassibo. After quoting para. 20 of Hourigan J.’s decision in Cassibo,  Brown J.A. stated (at paras. 30 -34, footnotes omitted):

[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. 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.

Following the release of the Court of Appeal’s decision in Sanzone I invited counsel to make submissions with respect to the effect of paras. 30 to 34 of that decision on this motion.

[15]           Counsel for the defendant has made a valiant effort to distinguish Sanzone, arguing that the Court of Appeal was concerned that the self-represented plaintiff’s ability to prosecute her case was imperilled by defendant’s use of Rule 20 to accelerate the delivery of an expert report. She argues that since the plaintiff in this case is not self-represented, the Court of Appeal’s special solicitude for self-represented litigants does not apply. Paragraph 23 of the Court of Appeal’s decision states:

[W]hen 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.

[16]           I do not interpret this comment as a suggestion that a represented party bringing a summary judgment motion against another represented party is somehow exempt from full compliance with its obligations under the rules. The Court of Appeal makes clear that one of these is the onus on the moving party under Rule 20 to discharge his evidentiary obligation to put his best foot forward by adducing evidence on the merits. Health care professionals are not exempt from this requirement.

[17]           Based on the Court of Appeal’s decision in Sanzone, I was wrong to rely on Cassibo in my May 18, 2016 reasons. The defendant in this case was the moving party and “bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed” (Sanzone at para. 24). He did not do so.

[18]           Given that the defendant has not filed any evidence going to the merits of his defence and has therefore not complied with Rule 20.01(3), the defendant’s motion for summary judgment must be dismissed.

[19]           Since the defendant has not discharged his evidentiary burden of proving no genuine issue for trial, the burden does not shift to the plaintiff to prove that her claim has a real chance of success. Accordingly, it is not necessary for me to consider the admissibility of the plaintiff’s Gupta affidavit. I will observe, however, for the benefit of counsel should this case continue, that there is considerable merit to the defendant’s position that s. 36(3) of the RHPA precludes the plaintiff from relying on any information provided by Dr. Schecter that was obtained or came into Dr. Schecter’s knowledge in the course of his duties as the College-appointed mentor/supervisor to Dr. Wein.

[20]           Accordingly, this court Orders that:

The defendant’s motion for summary judgment is dismissed;

……


Justice R.E. Charney

Citation: Larusson v Wein, 2016 ONSC 5391 (CanLII), <http://canlii.ca/t/gt46l>, retrieved on 2016-08-29

full case via CanLII – 2016 ONSC 5391 (CanLII)

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