



COURT OF APPEAL FOR ONTARIO

CITATION: Polera v. Wade, 2015 ONCA 895

DATE: 20151217

DOCKET: C60247

Weiler, Pardu and Benotto JJ.A.

BETWEEN

Felicity (Felicia) Polera and Brian Pittana

Plaintiffs (Respondents)

and

Dr. Philip Wade
, The Canadian Hearing
    Society, Kelly Duffin, Stephanie Ozorio and Jane and John Doe

Defendants (
Appellant
)

Jasmine T. Akbarali and Zohar Levy, for the appellant

Ron Bohm and Amani Oakley, for the respondent

Heard: December 7, 2015

On appeal from the orders of Justice E.P. Belobaba of the
    Superior Court of Justice, dated February 20, 2015, with reasons reported at
    2015 ONSC 821.

ENDORSEMENT

[1]

The appellant physician seeks to overturn the partial summary judgment ordered
    in a medical malpractice action.

[2]

The underlying action arises from the delayed diagnosis of a brain
    tumour in relation to the respondent, Felicity Polera. Prior to the partial
    summary judgment motions, the appellant admitted that he breached the standard
    of care and that this breach caused Ms. Poleras damages.

[3]

These admissions essentially settled all liability issues in the action
    except for the defence of contributory negligence and a specific list of the
    injuries sustained by Ms. Polera as a result of the appellants breaches of the
    standard of care. On a motion brought by the respondents, partial summary was
    granted disposing of these two remaining liability issues.

[4]

On this appeal, the appellant submits that the motions judge erred on
    both issues. With respect to contributory negligence the appellant submits he
    was denied procedural fairness and that the motions judge reversed the burden
    of proof.  With respect to the second issue, he submits that the motions judge erred
    in listing the specific injuries sustained by Ms. Polera.

[5]

We note that, at the outset of oral argument, the appellant pointed out
    that the respondents factum referred to information not before the motions
    judge and sought to file affidavit evidence in response. The respondent
    objected. The issue was resolved by the parties who agreed to proceed on the
    record as it existed at first instance.

Background

[6]

Ms. Polera, who was 36 years old at the time, attended the Canadian
    Hearing Society (the CHS) in October 2004 because she was experiencing some
    hearing loss in her right ear. She was tested and fitted with a hearing aid,
    and was sent for an MRI. When the MRI results came back, the appellant failed
    to detect Ms. Poleras brain tumour.

[7]

In January 2007, Ms. Polera discovered that she had lost all hearing in
    her right ear. The appellant ordered another MRI, on which he noticed the
    tumour. He arranged for the necessary medical follow-up, which involved two
    days of surgery, leaving Ms. Polera with extensive and serious injuries.

[8]

The appellant admitted that he breached the requisite standard of care
    in failing to detect the growing tumour in the first MRI and in failing to
    follow-up as required. Further, he admitted that these breaches caused Ms.
    Polera to sustain significant injuries and damages.

[9]

The motions judge heard the summary judgment motion in two stages. The
    first motion was heard in August 2014 (not the subject of this appeal) and resulted
    in an order particularizing the appellants breaches of the standard of care. The
    second motion was heard in February 2015 (the subject of this appeal).

[10]

On
    the second motion, the motions judge concluded that there was no genuine issue
    for trial with respect to either the defence of contributory negligence or the
    listing of Ms. Poleras specific injuries. On the evidence before him, he
    dismissed the defence of contributory negligence and particularized Ms.
    Poleras injuries.

Contributory Negligence

[11]

The
    appellant submitted that Ms. Polera contributed to her injuries by missing a
    number of CHS appointments. In particular, he claimed she cancelled an
    emergency appointment with his office, which added six months to the overall
    delay in the tumours diagnosis and removal. This suggestion arose from a note
    in the file of Tommy Choo, the audiologist which said:  will ask ENT for an
    emergency appt.

[12]

Ms.
    Polera said she was never told there was an emergency. The appellant says
    there is a major credibility issue requiring a trial. However, there is no
    evidence that Mr. Choo ever communicated the contents of his note to anyone,
    let alone the respondent.  Mr. Choo was never examined.  The appellant has had
    three years to obtain Mr. Choos evidence and did not do so.

[13]

Further,
    Ms Polera had good reason to cancel her appointment because she was dealing
    with other health issues. Once she learned that she had a brain tumour, she
    never cancelled or missed any appointments.

[14]

The
    motions judge was confident that the necessary findings of fact could be made
    on the evidence, including the parties examination for discovery transcripts.
    There was no need for contributory negligence to go to trial.

[15]

The
    motions judge was satisfied on the evidence that Ms. Polera behaved reasonably
    and did nothing to contribute to her injuries. There was no compelling evidence
    that Ms. Polera was told there was any urgency in scheduling an appointment.
    Accordingly, it was not unreasonable to miss a hearing aid follow-up
    appointment when there was nothing to suggest there was any harm in doing so.

[16]

The
    motions judge concluded that there was no evidence of contributory negligence.

(1)

Procedural Fairness

[17]

The
    appellant alleges that he was denied procedural fairness because he did not know
    that the issue of contributory negligence would be before the motions judge.

[18]

We
    do not agree. The record before the court belies this assertion.

[19]

The
    reasons of the motions judge show that at the first hearing, he dealt with the
    breaches of the standard of care. He then explained that the issue of
    contributory negligence was adjourned to the second hearing. In those reasons,
    the motions judge said (at para. 8):

The second part of the motion about the specific injuries
    sustained and the defence of contributory negligence was adjourned and is now
    before me for adjudication.

[20]

And,
    at para. 19:

It has been the [appellants] long-standing position that any
    order granting summary judgment on the issue of liability should be made
    without prejudice to [his] right to argue contributory negligence at trial.

[21]

Further,
    the factums filed by the appellant on both hearings address contributory
    negligence.

[22]

In
    his factum dated August 15, 2014, the appellant addresses contributory
    negligence by saying (at para. 34):

[The order] should be without prejudice to the [appellants] right
    to argue contributory negligence at trial, given that [Ms. Polera] did not
    attend follow-up appointments, did not seek out medical attention between 2004
    and 2007 and repeatedly cancelled appointments with Dr. Wade in 2007, resulting
    in a delay of 6 months, after the January 30, 2007 audiogram and despite the
    records of the audiologist Tommy Choo stating that he was requesting an
    emergency appointment with Dr. Wade.

[23]

Likewise,
    in his factum dated January 27, 2015, the appellant says this (at para. 12):

[O]n this summary judgment [motion] on the issue of the
liability
    of Dr. Wade
, the Plaintiffs are asking the motion judge to direct the jury
    not to consider any evidence or arguments regarding:

(a)     contributory negligence [Emphasis in original.]

[24]

This
    factum also addressed the facts relied on by the appellant with respect to
    contributory negligence.

[25]

Clearly,
    the appellant was aware that contributory negligence was an issue before the
    motions judge and was not denied procedural fairness.

(2)

Burden of Proof

[26]

The
    appellant submits that the motions judge misplaced the burden of proof. He
    relies on the motions judges comments that he had to put his best foot
    forward (at para. 21).

[27]

The
    appellant submits that the burden rested with the respondent (the moving party
    on the motion) to adduce evidence supporting a lack of contributory negligence
    before the appellant was required to put his best foot forward. Specifically,
    the appellant submits that the respondent should have produced evidence from
    the audiologist at CHS about what she was told regarding the alleged emergency
    appointment.

[28]

The
    appellant submits that the only evidence with respect to contributory
    negligence was Ms. Poleras examination for discovery transcript, filed without
    the mandatory supporting affidavit. He argues that it was unreasonable for the
    motions judge to expect him to prepare motion materials to prove there was a
    genuine issue for trial when the respondents did not file admissible materials
    proving there was no such issue. In other words, there was no burden on the
    appellant to address the contributory negligence issue.

[29]

We
    do not agree.

[30]

First,
    the motions judge was entitled to consider Ms. Poleras impugned discovery
    evidence. Once the appellant relied on her discovery evidence, he opened up its
    use to both parties. As a result, the motions judge was entitled to consider it
    for all issues.

[31]

On
    this point, we agree with the analysis of D.M. Brown J. (as he then was) in
Lawless
    v. Anderson
, 2010 ONSC 2723, 188 A.C.W.S. (3d) 1006, at para. 12, affd on
    other grounds, 2011 ONCA 102, 276 O.A.C. 75:

As a general rule when a party places into evidence answers
    given by an opposite party on her examination for discovery, such evidence is
    available to either party in the same manner as any other evidence.

[32]

Second,
    the onus was not shifted by the motions judge. The motions judge determined
    that there was no genuine issue requiring a trial on the contributory
    negligence issue, at para. 8: I am satisfied that both matters, specific
    injuries and contributory negligence, can be summarily adjudicated. Given the
    uncontradicted evidence of Ms. Polera that she was not told of any urgency, and
    silence by the appellant, the only reasonable conclusion was that the
    respondent was not contributorily negligent.  Resolution of this issue did not
    turn on the onus of proof.

Specific Injuries

[33]

Although
    the appellant submitted that the motions judge should not have listed the
    specific injuries, we see no error in this regard.

[34]

The
    listing of the respondents specific injuries was based on the three expert
    reports filed. There was no cross-examination on these reports.

[35]

There
    was an issue about Ms. Poleras hearing loss. The appellant submitted that the
    issue had been withdrawn from consideration by the respondents. We do not agree
    that is what happened. The respondents were prepared to have a trial on this
    issue, but the motions judge considered the issue and determined that it did
    not require a trial. It was open to him on the record to come to that
    conclusion.

[36]

The
    motions judge took a robust and pragmatic view of the evidence respecting
    causation. Although evidence will still be called by the parties with respect
    to the degree to which a specific injury affects the respondent and hence the quantum
    damages, the listing provided by the motions judge eliminates a time consuming
    component of the trial, as liability is no longer in question.

[37]

Moreover,
    we see no prejudice to the order.

Disposition

[38]

The
    appeal is dismissed with costs payable to the respondents fixed, as agreed, in
    the amount of $15,000, inclusive of disbursements and HST.

Karen
    M. Weiler J.A.

G.
    Pardu J.A.

M.L.
    Benotto J.A.


