Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125 (CanLII)

Summary authored by David Derfel, OTLA member and lawyer at Derfel Injury Law.

The appellant, who was self-represented, appealed a summary judgment motion dismissing her action against the defendants.  The plaintiff’s action against the various defendants pertained to events that occurred over several days.  With regard to the defendant hospital, Royal Victoria Regional Health Centre, the defendant was granted partial summary judgment.  

Date Heard: January 18, 2018 | Full Decision [PDF]

For the oral arguments at the motion, only the appellant’s arguments were heard.  The court did not call upon the defendants to respond.  Apart from a correction to the partial summary judgment granted to Royal Vic, the court did not overturn the order granting the other defendants summary judgement.

The court found the is case one that is “precisely the type of case that summary judgment is designed to address so as to avoid putting the parties to the time and expense of a full-blown trial.”  Through summary judgment, the court found that the case could be fairly resolved “in line with the goal of proportionate, cost-effective and timely dispute resolution”.

When determining if a decision of the lower court should be overturned, the court held that absent an error of law, the decision of the motion judge is entitled to deference. Where there is no error in principle, the determination of the motion judge should be upheld, absent a showing of palpable and overriding error.

With regard to summary judgment relating to the paramedics, the court did find that motion judge erred when he indicated in his reasons that the appellant did not deliver affidavit evidence on the summary judgment motion; when in fact she did.  The lower court however, took issue with the evidence as it was presented by the plaintiff.  The court found the lower court’s reasoning with regard to the plaintiff’s presentation of the evidence was “entirely justified and the motion judge’s erroneous conclusion that the texts were not properly before him did not give rise to a miscarriage of justice”.  Regarding standard of care, the court found no evidence supporting the plaintiff’s position.

Regarding the plaintiff’s claims against the nine doctors, her claims were for “medical negligence, falsification of records and defamation, and, in some instances, lack of informed consent.”  The doctors provided expert opinion evidence supporting their claims that they met the standard of care. The appellant did not cross-examine the doctors’ experts and filed no contradictory expert evidence.  The court held that “it was entirely open to the motion judge to dismiss the appellant’s claims for medical negligence.”  Although the defendants’ experts failed to file experts’ duty forms in accordance with Rule 53.03, the motion judge was still entitled to hear and consider the evidence at the hearing.  This was not a reversible error.  With respect to the plaintiff’s other arguments regarding negligence, the court agreed there was no evidence to support the plaintiff’s assertions.

The motion judge granted summary judgment dismissing the appellant’s claims against Royal Victoria Regional Health Centre.  At the appeal the court dismissed the claims against Royal Victoria Regional Health Centre in their entirety.


Read the full decision [PDF]
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