Summary Judgment Granted in Medical Malpractice Case Where Plaintiff Fails to File Affidavits of Experts

In Suwary v. Women’s College Hospital, Mr. Justice George R. Strathy was dealing with a defence motion for summary judgment in a medical malpractice case. The key issue in the action was informed consent in relation to one of the defendant doctors (as it had been conceded by the plaintiff that summary judgment should issue in relation to another defendant physician). His Honour ruled that the evidence filed on behalf of the plaintiff did not establish a genuine issue for trial and dismissed the claim. His reasons contain some helpful comments about the evidentiary requirements of such motions.

The defendants had filed four affidavits, three from expert medical witnesses and one from an associate at the law firm representing the defendants. In response, the plaintiff filed an affidavit sworn by an associate in the law firm representing her. The deponent of that affidavit swore that he had informed himself by reading the discovery transcripts and the medical reports and records. Two medical reports had been attached to the affidavit as exhibits. The reports had been prepared by experts retained by the plaintiff’s solicitor. Justice Strathy concluded that one of the two reports did not implicate the doctor in question on the issue of informed consent, while the other might.

However, His Honour held that the “information and belief” affidavit filed on behalf of the plaintiff fell far short of establishing a genuine issue for trial. He was critical of the failure to file an affidavit from the medical experts. He said:

It is well-established that a party intending to rely on the opinion of an expert on a summary judgment motion must put the evidence forward in a manner that will permit cross-examination of the expert. In Hiebert v. Lennox Canada Inc., [2007] O.J. No. 3079, Valin, J., stated at para 17:

If a party intends to rely on the substance of an expert’s report on a summary judgment motion, the evidence must be put before the court in a manner that will permit cross-examination of the maker of the report. This can be done in one of two ways. The expert can place the substance of his/her opinion in an affidavit sworn by him/her. Alternatively, the expert can swear an affidavit to which his/her report is attached as an exhibit and swear to the truth of the contents of the report.


Justice Strathy rejected the argument of plaintiff’s counsel, that it was open to the defence to cross-examine the authors of the reports that had been attached to the affidavit filed on behalf of the plaintiff, by examining them as witnesses on a pending motion under rule 39.03. He said, “it is not the defendants’ obligation to examine witnesses whose evidence is not properly before the Court”.

Finally, His Honour refused to adjourn the motion to permit the plaintiff to file affidavits from the experts, saying “[i]t is well settled that a party may not ‘repair damage’ to its case by introducing new evidence on a motion in order to patch up holes in the case created by the other party’s evidence or counsel’s submissions.”

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