Bouchard v. Daniel et al., (2015) 431 N.B.R.(2d) 347 (CA)

• Judge: Richard, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 26, 2014
• Jurisdiction: New Brunswick
• Citations: (2015), 431 N.B.R.(2d) 347 (CA);2015 NBCA 5

Bouchard v. Daniel (2015), 431 N.B.R.(2d) 347 (CA);

    431 R.N.-B.(2e) 347; 1124 A.P.R. 347

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JA.031

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JA.031

Darren Bouchard (appellant) v. Dr. Nach Daniel and Ass., Dr. Stirling, Dr. Nach Daniel, Nurse Doe, Anesthetic Nurse Doe (respondents)

(133-13-CA; 2015 NBCA 5)

Indexed As: Bouchard v. Daniel et al.

Répertorié: Bouchard v. Daniel et al.

New Brunswick Court of Appeal

Richard, Quigg and Green, JJ.A.

January 29, 2015.

Summary:

Résumé:

Bouchard alleged medical malpractice against oral surgeons Dr. Stirling, Dr. Daniel, Dr. Nach Daniel and two unnamed nurses. Dr. Daniel moved for summary judgment (Rules of Court, rule 22) dismissing Bouchard's action against him, on the ground that he did not provide any dental treatment or services to Bouchard. Bouchard argued that Dr. Daniel was operating under a partnership with the other oral surgeons who treated him. Dr. Daniel's position was that he merely shared space with those surgeons who ran their own individual surgery practices.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2013), 414 N.B.R.(2d) 373; 1075 A.P.R. 373, granted summary judgment. Bouchard appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Partnership - Topic 10

General - Partnership - What constitutes - The defendant Dr. Daniel, an oral surgeon, moved for summary judgment (rule 22 of the Rules of Court) dismissing Bouchard's action against him, on the ground that there was no merit to the action as Dr. Daniel did not provide any dental treatment or services to him - Bouchard argued that Dr. Daniel was operating under a partnership with the other oral surgeons who treated him, and that on the Consent Form, there was a reference to a surgical center - Dr. Daniel's position was that he merely shared space with those surgeons who ran their own individual surgery practices - The trial judge held that Dr. Daniel's affidavit justified summary judgment - A review of the affidavit in response left no doubt as to the outcome at trial - A partnership had not been established - There was no agreement, no sharing of profits or responsibility for losses - The New Brunswick Court of Appeal dismissed the appeal - The trial judge determined the central question to be adjudicated: whether there was any evidence that raised a serious triable issue - The trial judge applied the proper test and made findings of fact which led him to conclude that Bouchard could not be successful at trial - Having regard to the record, and the applicable deferential standard of review, there was no basis for appellate intervention.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Partnership - Topic 10 ].

Procédure - Cote 5719

Jugements et ordonnances - Jugements sommaires - En vue du rejet de l'action - [Voir Practice - Topic 5719 ].

Sociétés en nom collectif - Cote 10

Généralités - Éléments constitutifs d'une société en nom collectif - [Voir Partnership - Topic 10 ].

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 5].

Brunswick News Inc. v. Sears (2012), 390 N.B.R.(2d) 167; 1011 A.P.R. 167; 2012 NBCA 32, refd to. [para. 5].

Milemore Holdings Ltd. v. Grew et al. (2014), 421 N.B.R.(2d) 316; 1094 A.P.R. 316; 2014 NBCA 33, refd to. [para. 6].

Counsel:

Avocats:

No one appeared for the appellant;

David T. Hashey, Q.C., for the respondents.

This appeal was heard on November 26, 2014, before Richard, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. In reasons written by Quigg, J.A., the Court delivered the following judgment, in both official languages, dated January 29, 2015.