



COURT OF APPEAL FOR ONTARIO

CITATION: Hervieux v. Huronia Optical, 2016 ONCA 294

DATE: 201604025

DOCKET: C60826

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

Donald Hervieux

Plaintiff (Respondent)

and

Huronia Optical,
Ben Pezik,
and
Huronia
    Eye Clinic

Defendants(
Appellants)

Jason Arcuri, for the appellant Ben Pezik

Keegan Boyd and Jessica Laham, for the appellant Huronia
    Eye Clinic

Asha James and Marc Gibson, for the respondent

Heard: February 4, 2016

On appeal from the order of Justice G.M. Mulligan of the Superior
    Court of Justice (Divisional Court), dated March 19, 2015, with reasons
    reported at 2015 ONSC 1810, allowing an appeal from the order of Deputy Judge
    V. Stabile of the Small Claims Court, dated February 21, 2014.

L.B. Roberts J.A.:

Overview and
    Background

[1]

The appellants appeal from the
    order of the Divisional Court that allowed the respondents appeal from the
    dismissal of his action, and remitted his claim back to the Small Claims Court
    for a hearing.

[2]

The respondent commenced an action
    in the Small Claims Court against the appellants. In his action, the respondent
    claimed damages arising out of the appellants alleged professional negligence
    in diagnosing and treating an eye condition that led to blindness in the
    respondents eye.

[3]

The respondent failed to produce
    expert reports in accordance with orders made during settlement conferences on March
    1 and May 31, 2013. The appellants brought a motion under r. 12.02 of the
Rules
    of the Small Claims Court
, O. Reg. 258/98
    (
Small Claims Court Rules
),

to dismiss the respondents claim.

[4]

R. 12.02 provides as follows:

12.02 (1) The court may, on motion, strike out or amend all or
    part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of
    the courts process.

(2) In connection with an order striking out or amending a
    document under subrule (1), the court may do one or more of the following:

1. In the case of a claim, order that the action be stayed or
    dismissed.

2. In the case of a defence, strike out the defence and grant
    judgment.

2.1 In the case of a motion, order that the motion be stayed or
    dismissed.

3. Impose such terms as are just.

(3) The court may, on its own initiative, make the order
    referred to in paragraph 1 of subrule (2) staying or dismissing an action, if
    the action appears on its face to be inflammatory, a waste of time, a nuisance
    or an abuse of the courts process.

[5]

On February 21, 2014, the deputy
    judge allowed the appellants motion and dismissed the respondents claim
    because of the respondents failure to file expert evidence supporting his
    claim on the issues of standard of care and causation, concluding that: Absent
    such evidence,
and no prospect of such evidence being secured
, it is
    reasonable for this court to invoke the provisions of Rule 12.02(1) [and] (2)
    of the Small Claims Court, and I do so. (Emphasis added.)

[6]

On March 19, 2015, the appeal judge
    allowed the respondents appeal on the bases that the deputy judge had made an
    error of law and exceeded his jurisdiction in treating the appellants motion
    as a motion for summary judgment and dismissing the respondents claim under r.
    12.02(1), because the claim was not inflammatory, a waste of time, a nuisance
    or an abuse of the courts process. The appeal judge held that it was a denial
    of natural justice to dismiss the respondents claim under r. 12.02(1), and
    that the deputy judge should have given the respondent, a self-represented litigant,
    another opportunity to provide expert reports.

Analysis

[7]

The appellants submit that the appeal
    judge made several errors in reversing the deputy judges dismissal of the
    respondents action. The appellants argue that the appeal judge erred in
    finding that the deputy judge effectively granted summary judgment when the
    deputy judge merely and correctly applied the provisions of r. 12.02. The
    appellants complain that the effect of the appeal judges decision is that
    deputy judges will not have the jurisdiction to dismiss actions in which
    plaintiffs have failed to comply with an order to produce expert reports and,
    as a result, they will not be able to enforce deadlines for the delivery of
    documents, including expert reports, under r. 12.02 of the
Small Claims
    Court Rules
.

[8]

I disagree that the appeal judges
    order has that wide-reaching effect.

[9]

There is no question that a deputy
    judge has the jurisdiction to alter the time deadlines otherwise provided under
    the
Small Claims Court Rules
and
    even to dismiss an action. In particular, in accordance with the provisions of
    r. 13.05(1) and (2)(a)(vi), it was open to the deputy judge during the
    settlement conferences to require the respondent to provide his expert evidence
    to the appellants in advance of the trial. Further, under r. 13.05(2), if the
    circumstances warranted it, the deputy judge, with written reasons, could have
    stayed or dismissed the action.

[10]

It would also be open to a deputy judge
    in the appropriate case to dismiss an action under r. 12.02 for a partys
    failure to comply with a court production order or any other order.

[11]

Indeed, it was open to the deputy
    judge in the present case to invoke r. 12.02 if the circumstances supported any
    of the criteria listed in that rule.  However, for the reasons that follow, I
    agree with the respondents submissions that the circumstances of this case did
    not warrant the dismissal of the action under r. 12.02.

[12]

The motion before the deputy judge to
    dismiss the respondents action was not based on his breach of a court order. Rather,
    in their notice of motion, the appellants submitted that because of the
    respondents failure to serve an expert report critical of the care received
    at the Huronia Eye Clinic or linking any defect in care to his alleged
    damages, permitting his action to proceed to a trial would be a waste of this
    Honourable Courts time, and, as such, the Plaintiffs Claim should be struck
    and this action dismissed.

[13]

I agree with the appeal judge that
    the deputy judge erred by concluding that the respondents claim was a waste
    of time under r. 12.02, based on his finding that there was no prospect of the
    respondents providing independent expert evidence.

[14]

Specifically, the deputy judge
    erred in determining that the respondents treating physicians could not provide
    expert evidence in support of the respondents claim and that, as the
    respondent had failed to meet the threshold test, his action was a waste of
    time and there was no reason to provide him with a further 30-day extension to
    file the evidence of his treating physicians.

[15]

In
Westerhof v. Gee
    Estate
, 2015 ONCA 206, 124 O.R. (3d) 721,
    at para. 60, leave to appeal refused 2015 CarswellOnt 16501 (S.C.C.), this
    court recently held that a treating physician could provide expert opinion
    evidence for the truth of its contents without complying with the formal
    requirements of r. 53.03 of the
Rules of Civil Procedure
, O. Reg. 17014, in the following circumstances:

i.        The opinion to be given is based on the
    witnesss observation of or participation in the events at issue; and

ii.       The witness formed the opinion to be given
    as part of the ordinary exercise of his or her skill, knowledge, training and
    experience while observing or participating in such events.

[16]

If the formal requirements of r. 53.03
    are not mandatory in the Superior Court of Justice for treating physicians to
    appear as trial witnesses in the above circumstances, it follows that under the
Small Claims Court Rules,
parties are not obliged to engage independent experts and provide formal expert
    reports in the same circumstances. To hold otherwise would undermine the
    fundamental objective of the Small Claims Court to provide easier and less
    expensive access to justice, especially to self-represented litigants who are the
    most frequent users of the Small Claims Court system.

[17]

There was ample evidence before
    the deputy judge that the respondent could provide the expert evidence of his
    treating physicians in support of his claim. The respondent had delivered
    medical records to the appellants. He had not provided a formal expert report;
    however, he had repeatedly indicated his intention to call his treating
    physicians as experts at trial and had included their names on his witness list
    that he filed with the court. He had also requested the opinions of his treating
    physicians.

[18]

I agree with the appeal judges
    determination that the deputy judges dismissal of the respondents claim was an
    error and a breach of natural justice in the circumstances of this case.

Disposition

[19]

Accordingly, I would dismiss the
    appeal.

[20]

The respondent is entitled to his
    costs of the appeal in the amount of $15,000.00, inclusive of all amounts.

Released: April 25, 2016

L.B. Roberts J.A.

I agree Alexandra Hoy A.C.J.O

I agree G. Pardu J.A.


