



CITATION: Leek v. Vaidyanathan, 2011
      ONCA 46



DATE: 20110120



DOCKET: C52443



COURT OF APPEAL FOR ONTARIO



Weiler, Blair and Epstein JJ.A.



BETWEEN:



Penny
          Leek, Lauren Leek by her Litigation Guardian Penny Leek, and

George Zafiris by his Litigation
          Guardian Penny Leek



Respondents/Plaintiffs



and



Sankar
          Vaidyanathan
, Humber River Regional Hospital,

Rueben Devlin, Patrick Safieh
          and David Starr



Appellant
/Defendant



Cynthia Kuehl and Stuart
          Zacharias, for the appellant



Paul Harte, for the respondents



Heard: January
      11, 2011



On appeal from the order and declaration of Justice E.P.
          Belobaba of the Superior Court of Justice, dated June 28, 2010.



ENDORSEMENT



[1]

Dr. Vaidyanathan seeks to set
    aside the order of Justice E.P. Belobaba of the Superior Court of Justice,
    dated June 28, 2010, declaring that the respondent Penny Leek had no legal
    obligation or duty to the appellant to terminate her second-trimester pregnancy
    in order to mitigate the plaintiffs claim for damages in a wrongful birth
    action.

[2]

We are satisfied that the order
    must be set aside.  In our view this is not a proper case for the question
    posed to the motion judge to be determined on the pleadings under Rule
    20.01(1)(a), which states:

A party may move before a judge,

(a) For the determination,
    before trial, of a question of law raised by a pleading in an action where the
    determination of the question may dispose of all or part of the action,
    substantially shorten the trial or result in a substantial saving of costs.

[3]

The pure question of law raised by
    the motion is whether a woman can
ever
be required to mitigate her claim
    for damages in a wrongful birth action by having an abortion.  This is an
    important issue of law, raising significant policy considerations, and such
    questions are normally better determined on a full factual record after trial,
    where the judge has been able to make findings that form the basis for the
    legal analysis and conclusions: see
PDC 3 Limited Partnership v. Bregman +
    Hamann Architects
(2001), 52 O.R. (3d) 533, at para. 11;
Haskett v.
    Equifax Canada Inc.
(2003), 63 O.R. (3d) 577, at para. 24.

[4]

In addition, the pure question
    of law articulated above is not the way the case was put to us by counsel, or
    it appears, to the motion judge.  What the motion judge was asked to determine
     and did  was whether, on the facts as pleaded, this case constituted a most
    exceptional circumstance case where a court might find that refusing to have
    an abortion was unreasonable, and, therefore, a failure to mitigate.  Framed in
    that way, this is not a question of law, but a question of mixed fact and law
    to be determined at trial.

[5]

On the pleadings here, we simply
    do not know enough to be able to make any such determination.  Respectfully,
    the motion judge erred in concluding that a determination of the question
    before him would not benefit from a more complete evidentiary record available
    at trial.

[6]

Accordingly, we allow the appeal
    and set aside the declaration made by the motion judge.

K.M. Weiler J.A.

R.A. Blair J.A.

G.J.
    Epstein J.A.

