



COURT OF APPEAL
    FOR ONTARIO

CITATION: Kueber v. Royal Victoria Regional Health Centre,
    2018 ONCA 125

DATE: 20180209

DOCKET: C63552

Simmons, Roberts and Nordheimer JJ.A.

BETWEEN

Barbara Kueber

Plaintiff (Appellant)

and

Royal Victoria Regional Health Centre, Barrie Medical
    Clinics Inc., Dr. Sayed Mostafa Amir Shourideh-Ziabari, Dr. Laurie Elizabeth
    Shaver, Dr. Angelo John Iocca, Dr. Heather Lynne Waterman, Dr. George Nicholas
    Karasmanis, Dr. Andrea Boyd May, Triage Nurse J. Doe, Dr. Darren Jonathan
    Usher, County of Simcoe Paramedic Services, Paramedic J. Doe, Dr. David Boushy,
    Dr. Nazir Ahmad Malik

Defendants (Respondents)

Barbara Kueber, in person

Jonathan Gutman, for the respondent Royal Victoria
    Regional Health Centre

Mark Vernon, for the respondent Barrie Medical Clinics
    Inc.

Peter Downs, for the respondent doctors

Jacinthe Boudreau, for the respondent County of Simcoe
    Paramedic Services

Heard: January 18, 2018

On appeal from the judgment of Justice Hugh K. OConnell of
    the Superior Court of Justice, dated February 22, 2017.

REASONS FOR DECISION

[1]

The motion judge granted summary judgment dismissing the appellants
    action against: County of Simcoe Paramedic Services; Paramedic J. Doe; the nine
    doctors named in the statement of claim; and Barrie Medical Clinics Inc. He
    also granted partial summary judgment dismissing her action against Royal
    Victoria Regional Health Centre as it relates to events on March 10 and 11,
    2012.

[2]

The appellant appeals the motion judges decision. At the oral hearing,
    we did not call on the respondents to address all the appellants arguments.
    For the reasons set out below, apart from a correction to the partial summary judgment
    granted to Royal Victoria Regional Health Centre, we see no basis on which to
    interfere with the motion judges decision.

[3]

In our view, this 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. It is the type of case that can be fairly resolved in
    line with the goal of proportionate, cost-effective and timely dispute
    resolution:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at
    para. 67.

[4]

Further, 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:
Hryniak
, at para. 81.

(i)

The appellants claims against County of Simcoe Paramedic Services

[5]

The appellants claims against County of Simcoe Paramedic Services and
    an unknown paramedic fell into three main categories. First, she claimed she
    was defamed in a March 10, 2012 ambulance call report, which noted anxiety,
    yelling, and aggressiveness on her part and that she sometimes becomes violent.
    Second, she claimed that, on March 21, 2012, a paramedic threatened to taser
    her. Third, she made general allegations that, in essence, the paramedic
    services provided to her fell below the standard of care, causing her to endure
    multiple incidents of endangerment and negatively impacting her care.

[6]

The motion judge gave ample reasons for concluding that: i) summary
    judgment was appropriate; ii) the paramedics description of the appellants
    history and status in the March 10, 2012 ambulance call report was not
    defamatory; and iii) there was no basis in the record for concluding either
    that a paramedic threatened to taser the appellant on March 21, 2012 or that
    paramedic services provided to the appellant fell below the standard of care.

[7]

As a starting point, the motion judge was not persuaded that the entries
    in the ambulance report had been published so as to support a claim for
    defamation. In any event, he concluded there was no evidence that the
    descriptions in the report were defamatory. The motion judge found the
    descriptions were based on good faith observations by the paramedic and that
    the appellant authenticated, in large measure, her state of mind as described
    in the report. This finding was supported by the record.

[8]

As for the threatened tasering, the two paramedics on scene were not
    cross-examined on the denials in their affidavits that that had occurred. And on
    discovery, the appellant had acknowledged she could not recall what was said.
    Rather, she said that she
believed
that is what would have been said.

[9]

Finally, in relation to the issue of breach of a duty of care, the trial
    judge concluded there was nothing in the record or submissions to suggest any
    deficiency in what the paramedics did.

[10]

We
    agree that the motion judge erred when he indicated at paras. 121 and 131 of
    his reasons that the appellant did not deliver affidavit evidence on the
    summary judgment motion.
[1]
She had, in fact, delivered some affidavits, although it could be said that
    they were not entirely responsive to the issues raised on the summary judgment
    motion. However, at footnote 11 to paragraph 287, he found that the various texts
    the appellant had authored, setting out a purported history of events during
    the time frame underpinning her claim (which were before the court but, in his
    view, not in a form receivable in evidence), were completely self-serving. Based
    on our review of the record, this finding was entirely justified and the motion
    judges erroneous conclusion that the texts were not properly before him did
    not give rise to a miscarriage of justice.
[2]


[11]

Finally,
    we reject the appellants complaint that the motion judge erred in granting
    summary judgment because County of Simcoe Paramedic Services failed to adduce
    evidence concerning the standard of care. In the particular circumstances of
    this case, we see no error in the motion judges conclusion that the pleadings
    and record failed to reveal a factual foundation that would have brought the
    standard of care into issue, much less what damages occurred.

(ii)

The appellants claims against the nine doctors

[12]

The
    appellant's claims against the nine doctors were for medical negligence,
    falsification of records and defamation, and, in some instances, lack of
    informed consent.

[13]

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 to support findings of breach of the
    standard of care or causation. In these circumstances, it was entirely open to
    the motion judge to dismiss the appellants claims for medical negligence.

[14]

Although
    the appellant complained on the motion that the doctors experts had not
    complied with the r. 53.03 requirement to provide an acknowledgment of experts
    duty, there was evidence before the motion judge, which he accepted at para.
    167 of his reasons, that the acknowledgements (Form 53) had been forwarded to
    the appellant.
[3]
In the face of the appellants assertions at the motion hearing that she did
    not receive the acknowledgement forms, it would have been preferable had the
    motion judge accepted counsels offer to file them at the time of the hearing.
    Nonetheless, as he accepted the evidence that the forms had been sent, he did
    not commit reversible error in failing to do so. It was open to him, on the
    basis of that evidence, to conclude that the doctors experts had complied with
    r. 53.03.

[15]

Concerning
    the claims of falsification of records and defamation, the motion judge
    concluded that they were rooted in complete speculation and innuendo. The
    appellant has not identified any error in this finding.

[16]

As
    for the informed consent issue, the motion judge was entitled to rely on the
    appellants acknowledgement on discovery that she was limiting her claim against
    Dr. Iocca to post-operative treatment. Dr. Ioccas expert supported his
    position that his post-operative treatment met the standard of care.

[17]

In
    all the circumstances, we see no error in the summary judgment dismissing the
    appellants claims against the doctors.

(iii)

The appellants claims against Barrie Medical Clinics Inc.

[18]

The
    appellant visited two of the doctors against whom she advanced claims at Barrie
    Medical Clinics Inc. Evidence on the summary judgment motion indicated these
    doctors were independent contractors. In any event, as we have said, while the
    doctors adduced expert evidence supportive of their care and treatment, the
    appellant failed to introduce contradictory expert evidence. We see no error in
    the summary judgment dismissing the appellant's claims against Barrie Medical
    Clinics Inc., in the circumstances.

(iv)

The appellants claims against Royal Victoria Regional Health Centre

[19]

The
    motion judge granted summary judgment dismissing the appellant's claims against
    Royal Victoria Regional Health Centre concerning the March 10 and 11, 2012 hospital
    visits. At the appeal hearing, Royal Victoria Regional Health Centre
    acknowledged that its motion for partial summary judgment dismissing the claims
    against it was limited to the claims concerning the actions of Triage Nurse J.
    Doe on March 10 and 11, 2012. The claims relating to March 10 and 11, 2012
    should not therefore have been dismissed in their entirety.

[20]

The
    appellants claims against Triage Nurse J. Doe relating to March 10 and 11,
    2012 were essentially that on March 10, 2012 a hospital nurse negligently
    entered incomplete and false information that defamed her, impacted her care,
    and interfered with future treatments.

[21]

Concerning
    March 11, 2012, the appellant claimed that: she was discharged before being seen
    by a physician; she was required to list her allergies and reactions
    experienced despite having given the hospital allergy information previously; Triage
    Nurse J. Doe advised her that Stevens-Johnson Syndrome was not a condition
    treated at the hospital; and triage notes failed to accurately record the
    purpose of her visit to the hospital.

[22]

The
    motion judge noted that the appellant had advised at discovery that she was not
    proceeding with her defamation claim. Further, he found that the appellants claim
    that records had been falsified was speculative. He also concluded that there
    was no evidence that the appellant had suffered any damages as a result of her
    other complaints. Although the appellant was initially discharged, ultimately,
    she was seen by a doctor on March 11, 2012 concerning Stevens-Johnson Syndrome.
    The motion judge found there was no nexus between the events of March 10 and
    11, 2012 and the appellants treatment on March 22, 2012. In our view, these
    findings were open to the motion judge on the record before him, and the
    appellant has failed to demonstrate any error.

(v)

Disposition

[23]

Based
    on the foregoing reasons, paragraph two of the judgment, dated February 22,
    2017, is amended to read as follows:

2. THIS COURT ORDERS AND ADJUDGES that
    the following claims in the within action as against the defendant, Royal
    Victoria Regional Health Centre, relating to events on March 10 and 11, 2012,
    be and are hereby dismissed:

i) On March 10, 2012, Triage Nurse
    J. Doe entered false and incomplete information into the plaintiffs record
    that impacted her care and interfered with future treatment;

ii) On March 11, 2012, Triage
    Nurse J. Doe was negligent when she advised that the hospital does not assess
    or treat Stevens-Johnson Syndrome;

iii) On March 11, 2012, Triage
    Nurse J. Doe was negligent in failing to accurately record the purpose of her
    visit, which impacted on the plaintiffs care; and

iv) Triage Nurse J. Doe was negligent.

[24]

The
    appellants appeal is otherwise dismissed with costs to the respondents on a partial
    indemnity scale, fixed in the following amounts inclusive of disbursements and
    taxes: County of Simcoe Paramedic Services, $10,000; the nine physicians, $7,500;
    Royal Victoria Regional Health Centre, $7,500; and Barrie Medical Clinics Inc.,
    $5,000.

Janet
    Simmons J.A.

L.B. Roberts
    J.A.

I.V.B.
    Nordheimer J.A.





[1]
The County of Simcoe Paramedic Services, the doctors, and Barrie Medical
    Clinics Inc.s summary judgment motions were heard in October 2015. Royal
    Victoria Regional Health Centres summary judgment motion had to be adjourned
    to February 2016. Although the summary judgment motions heard in October 2015 were
    completed at that time and although the motion judge indicated he would provide
    judgment on the motions he had heard to that point in time, he did not do so to
    avoid the risk that further submissions could impact on the earlier motions.
    Between October 2015 and February 2016, the appellant delivered an affidavit
    attesting to the truth of the contents of various text messages she had previously
    filed.



[2]
Section 134(6) of the
Courts of Justice Act
, R.S.O. 1990, c. C. 43,
    provides that "[a] court to which an appeal is taken shall not direct a
    new trial unless some substantial wrong or miscarriage of justice has
    occurred."



[3]

Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. T
his
    court has indicated that r. 53.03 applies on a summary judgment motion:
Sanzone
    v. Schechter
, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 15-16.


