



COURT OF APPEAL FOR ONTARIO

CITATION: McLean v. Wolfson, 2021 ONCA 928

DATE: 20211223

DOCKET: C68103

Hourigan, Trotter and Zarnett
    JJ.A.

BETWEEN

Maxine Donna McLean

Plaintiff (Appellant)

and

Dr. Nikolaj Wolfson

Defendant (Respondent)

Maxine Donna McLean, acting in person

Eli Mogil and Pippa Leslie, for the
    respondent

Heard and released orally:
    December 17, 2021

On appeal from the order of Justice David
    L. Edwards of the Superior Court of Justice, dated January 30, 2020.

REASONS FOR DECISION

[1]

Dr. McLean appeals from the dismissal of her
    action against Dr. Wolfson.

[2]

Dr. McLean commenced the action on April 30th,
    2018. She alleged that Dr. Wolfson was negligent in performing surgery on
    her leg in 1995. Her Statement of Claim included the following averment in
    para. 5:  a recent X ray revealed that the appellants hips are not aligned
    and it was recently diagnosed that the defendant removed the fibula bone when
    he could have cut it to create a new bone in order to lengthen the right leg.

[3]

On November 8, 2018 counsel for Dr. Wolfson
    served a Request to Inspect Documents, pursuant to r. 30.04(2) of the
Rules
    of Civil Procedure
(R.R.O. 1990, Reg. 194).

[4]

Specifically, Dr. Wolfson requested copies of
    the recent X ray and any medical records relating to what had been recently
    diagnosed. Dr. Wolfson required this information in order to prepare a
    responsive statement of defence.

[5]

Although some X rays and medical records were
    provided to Dr. Wolfson, they dated back to 1995 and they were not the records
    apparently referred to in para. 5 of the Statement of Claim.

[6]

After further failed attempts to obtain these
    records Dr. Wolfson brought a motion for production.

[7]

On October 3rd, 2019, on consent, an order was
    made requiring production of these records within 30 days by the same motion
    judge. Dr. McLean failed to comply with this order.

[8]

Dr. Wolfson then brought a motion under rr.
    30.08 and 60.12 to dismiss Dr. McLeans action, based on her failure to
    properly respond to the request to inspect documents (r. 30.08) and failing to
    comply with the consent order (r. 60.12).

[9]

On the first return date, January 23, 2020, Dr.
    McLean sought an adjournment. Justice Lococo adjourned the motion for a week,
    until January 30, 2020. He gave Dr. McLean one last chance to comply with the
    consent order.

[10]

When the matter returned to court on January 30,
    2020 Dr. McLean sought a further adjournment which was denied. The motion was
    heard on its merits and the action was dismissed.

[11]

Dr. McLean submits that the motion judge erred
    in dismissing her action. Her main point is that the motion judge should have
    considered a lesser remedy, rather than dismissing her claim.

[12]

We do not agree.

[13]

In exercising his broad discretion under the
    applicable rules, the motion judge properly considered that Dr. McLean had
    ample time to produce the materials or records referenced in her Statement of Claim
    and that she had failed to provide a reasonable explanation for failing to do
    so. These circumstances supported the dismissal of the claim.

[14]

Dr. Mclean applies to adduce fresh evidence on
    the appeal. We decline to admit the evidence.

[15]

First, it fails to correct the deficiencies that
    resulted in the dismissal of the action. Second, Dr. McLean has failed to
    explain why these records could not have been produced in a timely fashion. It
    has been over three and a half years since Dr. McLean issued her Statement of Claim
    in which she referred to important medical records that were not produced as
    ordered. It would not be in the interests of justice to admit the proposed
    fresh evidence respecting a claim that dates back to 1995.

[16]

Accordingly, the appeal is dismissed.

[17]

We make no order as to costs.

C.W.
    Hourigan J.A.

Gary Trotter
    J.A.

B.
    Zarnett J.A.


