In the recent decision of Sanzone v.
Schechter,1 the Ontario Court of Appeal provided
insight regarding the evidentiary burden that a defendant must meet
in moving to dismiss an action by way of summary judgment, and in
particular what expert evidence may be required.
Sanzone involved the appeal of a successful summary
judgment motion brought by the defendants, who were dentists, to
dismiss a medical malpractice action. The summary judgment motion
was granted at first instance on the basis that the
self-represented plaintiff had not delivered an expert report in
support of the allegation that the defendants had breached the
standard of care required of them or that the purported breach had
caused the plaintiff's injuries. In support of their motion,
the respondent dentists filed an affidavit from one of their
lawyers describing the procedural history of the action and stating
that the appellant had not delivered an expert report in support of
her claim. Neither of the respondent dentists filed an affidavit,
nor did they file an expert's report on the issue of the
standard of care. The appellant first filed a responding affidavit
setting out the difficulties she faced as a self-represented
litigant without legal training, and then ultimately a
supplementary affidavit stating that she was looking to retain an
expert and would comply with the Rules of Civil Procedure
when she had retained one. Also filed was a one-page letter from a
dentist stating that the respondent dentists had not met the
standard of care in two respects, although the appellant admitted
that the "letter is by no means complete, however."
The motions judge held that the appellant's
"report" did not comply with the Rules of Civil
Procedure surrounding expert reports and was therefore
inadmissible. The motions judge then granted summary judgement by
accepting the defendants' submissions on the basis of
established case law (see Kurdina v. Dief, 2010 ONCA 288)
holding that a plaintiff will not be successful in a medical
malpractice action in the absence of supporting expert opinion.
On appeal, the Court of Appeal held that the defendants, as the
parties moving for summary judgment, had the burden of persuading
the Court that there was no genuine issue requiring trial. Noting
that Rule 20.01(3) allowed a defendant to move for summary judgment
with supporting affidavit material or other evidence, the Court of
Appeal interpreted this to mean that the defendants were required
to put their "best evidentiary foot forward" to discharge
their evidentiary burden. Only then would the onus shift to the
plaintiff to prove that the claim had any real chance of success.
The defendants could not simply rely on the plaintiff's failure
to deliver an expert report as a basis for the dismissal of the
The Court of Appeal took issue with the defendants' failure
to file any evidence going to the merits of their defense,
including affidavits regarding the treatment they provided to the
plaintiff or expert reports in support of their position. If the
defendants had filed evidence regarding the merits of their defense
as Rule 20.01(3) required, it would have then been open to the
motions judge to dismiss the action based on the plaintiff's
failure to deliver a compliant expert report.
The Court of Appeal also took issue with what it described at
the defendants' strategy of using Rule 20 against a
self-represented litigant to accelerate the requirements regarding
service of an expert report. When the defendants brought a motion
for summary judgment, the plaintiff was not in breach of Rule 53
regarding service of expert reports, and ought not to have been
compelled to deliver a report without the defendants first meeting
their evidentiary burden as the moving party. The appeal was
ultimately granted and summary judgment was set aside.
Outside of the medical malpractice sphere, those defending
products liability claims will want to carefully consider the
strategic merits of leading with early opinion evidence on summary
judgement versus waiting to respond to expert evidence first
provided by a plaintiff. The result of Sanzone may be
that, despite the Supreme Court's endorsement of summary
judgment as a tool to deal expeditiously with cases, it will be
deployed sparingly in medical malpractice and products cases.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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