



COURT OF APPEAL FOR ONTARIO

CITATION: McAfee v.
    Holloway, 2014 ONCA 600

DATE: 20140820

DOCKET: C58156

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Carolyn J. McAfee

Appellant

and

Dr. Robin Holloway

Respondent

Carolyn J. McAfee, appearing in person

Cameron Fiske, appearing as
amicus
and duty
    counsel

Amanda Smallwood, for the respondent

Heard and orally released:  August 14, 2014

On appeal from the judgment of Justice Lederer of the Superior
    Court of Justice, dated April 18, 2013.

ENDORSEMENT

[1]

Assuming the defendant could be sued in negligence (the immunity issue),
    and assuming the defendant owed a duty of care to the appellant, the only
    evidence before the motion judge, an affidavit filed by the defendant,
    indicated that the defendant had met the applicable standard of care.

[2]

In this court, the appellant made a strong and concise argument that the
    defendant had misunderstood the medical root of her problems.  She contends
    that her problems are primarily related to visual deficiencies and not
    developmental deficiencies as indicated by the defendant in his report.

[3]

The appellant may well be right.  We do not know.  However, even
    assuming that she is right, there still must be evidence from which a trier of
    fact could find that the defendant fell below the applicable standard in
    characterizing the cause of her problems as he did.  The fact that he may
    ultimately have made an error is not, in our view, a basis for a finding that he
    fell below the appropriate standard of care.

[4]

In the absence of such evidence, the motion judge made no error in
    concluding there was no genuine issue requiring a trial on the negligence
    claim.  Summary judgment was properly granted and the appeal is dismissed.

[5]

We need not and do not address the immunity issue.

[6]

Costs are awarded in the amount of $2,500, inclusive of disbursements
    and taxes, if demanded by the defendant.  I would urge the respondent to bear
    in mind the problems the appellant has in making any demands in reference to
    costs.

[7]

The court is indebted to Mr. Fiske for his assistance as
amicus
.

Doherty J.A.

John Laskin J.A.

Gloria Epstein J.A.


