Posted: March 08, 2017
By: Steve Rastin

A week into a medical malpractice trial, Lyons Estate v. Dr. Freeman et al. (2017), one of the defendants, Dr. Fairfull-Smith, sought leave to bring a motion for summary judgement to have the plaintiff’s claim against him dismissed.  The case against Dr. Fairfull-Smith arose after another defendant in this claim, Dr. Freeman, allegedly left a rectal remnant, about 7 cm in length, inside the plaintiff during a surgical procedure to completely remove the plaintiff’s colon and rectum, in January 1987.  The remnant was discovered in 2009, during another surgical procedure performed by a different physician.  

Dr. Fairfull-Smith performed surgery on the plaintiff in March 1987 and continued to treat the plaintiff for a number of years after that. The plaintiff’s claim alleges that, in the course of his treatment of the plaintiff, the defendant was negligent in his failure to identify that the rectal remnant was present and treat it aggressively.

The plaintiff, Robert Lyons, was diagnosed with cancer and passed away in December 2014.   The claim was continued by the plaintiff’s widow, in the name of his estate.

The issue to be decided in the Lyons Estate motion for summary judgement was whether the defendant is entitled, pursuant to rule 48.04(1) of the Rules of Civil Procedure, for leave to bring a motion for summary judgement for an order to dismiss the plaintiff’s case against him.  

The defendant argued that there is no evidence to support a finding that the care provided by him to the plaintiff fell below the standard of care and in the absence of evidence to support such finding, the claim should be dismissed. Dr. Fairfull-Smith also argued that a motion for summary judgement would not delay the trial because it had already started. He added that, if the motion is heard and is successful, there would be one less party to the action and the issues to be determined at trial would thus be narrowed.

The plaintiff submitted that that defendant has not provided the court with a reasonable explanation for why he delayed bringing this motion until the start of a multi-week trial. The plaintiff asserted that there had been no change in circumstances since March 2015, when both parties agreed to the trial date, that would explain the defendant’s delay in bringing the current action. The plaintiff also argued that there was no evidence to support a finding that it would be more cost-effective if the defendant is allowed to proceed. Finally, the plaintiff noted the potential prejudice to its case if partial summary judgement was given, thus releasing one of the defendants from the civil action.

In her analysis, Justice Corthorn disagreed with the defendant’s arguments and challenged the defendant’s reference to the ruling in Fruitland Juices Inc. v. Custom Farm Service Inc., where the motion for leave to bring a summary judgement motion was brought well before the start of the trial, in contrast to the current case. The judge further noted that in none of the decisions the defendant relied on to make his argument, was a motion brought, much less granted, at the start of or during a trial.

Justice Corthorn stated that her decision lay on the timing of the motion, the defendant’s delay in bringing the motion, and the lack of evidence in support of the request. The judge again stressed the fact that she was not provided any precedent where a leave to bring a motion for summary judgement was granted after a trial had commenced.  The judge stated that, in her view, a motion for summary judgement is a step that should be taken prior to the start of a trial.

Justice Corthorn also dismissed the defendant’s argument that the March 2015 case conference between all the parties represented a change in the landscape of the case for him, because it set deadlines for the exchange of experts’ reports and the chosen deadlines made it more cost-effective for him to wait until the experts’ reports had been exchanged, before deciding whether he should pursue a motion for summary judgement.

Justice Corthorn disagreed with the defendant’s argument and referenced her own decision, in Villeneuve v. Canada (Attorney General), where, despite granting the defendant leave to amend her statement of defence, the judge made it clear that she would not grant leave for a motion for summary judgement due to the lack of evidence that the criteria for granting leave had been met.  A key factor that is considered in a decision to grant such a motion is when there was a “material change of circumstances” after a case was set for trial; however, this criterion did not apply in this case.

In the current motion, just as in the Villeneuve case, Justice Corthorn found a lack of evidence on the part of the defendant, whether qualitative or quantitative, to support a finding that granting leave to proceed with a motion for summary judgement would be more expeditious and less expensive than completing the trial. In fact, the judge noted that there were many issues the defendant failed to take into consideration that would likely significantly delay the case, rather than expedite it, and the delay would impact a trial that is already underway.

Issues and evidence the judge identified as outstanding included:

  • The plaintiff’s responding materials to the defendant’s proposed motion had not been delivered.
  • The defendant may wish to deliver materials in reply to the plaintiff’s responding materials.
  • Based on the delivered materials, the parties may desire cross-examination of the opposing parties’ supporting affidavits.
  • If cross-examination is requested of a physician who practices in Toronto, will the parties be required to travel there for the cross-examination or will the physician be asked to travel to Ottawa?
  • Transcripts of the cross-examinations would have to be expedited at added expense.
  • Both parties would be required to produce facta and books of authorities.

Justice Corthorn noted that, unless such steps were completed, she would not have confidence in the conclusions drawn in the summary judgement process.  Given the defendant’s unsatisfactory explanation for his delay in seeking the motion, the poor timing of the motion which would unduly delay the trial, and the lack of evidence that a summary judgement motion would be a more cost-effective and  proportionate method to resolve the plaintiff’s claim against the defendant, Justice Corthorn decided to dismiss the defendant’s motion for leave.

The steps in reaching successful resolution of an injury claim can be a complicated process, from the initial filing, to the gathering of necessary information, evidence and documents, and in the case of a trial, any pretrial motions and conferences.  At Rastin & Associates, we have years of experience and expertise in providing strong representation for clients in civil actions.  At Rastin, we well understand the steps that are necessary in building a successful case.  Call our office today if you or someone you love was injured in an accident as a result of another person’s negligence and you would like to claim compensation for your losses.

You can call us at  844-RASTIN1 or  email Rastinlaw.com

 


 
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