Brown v. Baum, (2016) 348 O.A.C. 251 (CA)

• Judge: Feldman, Lauwers and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 29, 2015
• Jurisdiction: Ontario
• Citations: (2016), 348 O.A.C. 251 (CA);2016 ONCA 325

Brown v. Baum (2016), 348 O.A.C. 251 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MY.004

Diana Brown (plaintiff/respondent) v. Dr. Joseph Baum (defendant/appellant)

(C60281; 2016 ONCA 325)

Indexed As: Brown v. Baum

Ontario Court of Appeal

Feldman, Lauwers and Benotto, JJ.A.

May 3, 2016.

Summary:

Brown suffered severe complications following her March 25, 2009 breast reduction surgery, which was performed by Baum. Baum undertook a series corrective surgeries from May 6, 2009 to June 16, 2010. Brown sued Baum on June 4, 2012. Baum moved for summary judgment to dismiss the action as statute barred under the Limitations Act. Brown cross-moved for partial summary judgment on Baum's liability for performing the surgery without obtaining informed consent.

The Ontario Superior Court, in a decision with neutral citation 2015 ONSC 849, dismissed the motion and cross-motion. Baum appealed the dismissal of his motion. Brown did not cross-appeal the dismissal of her cross-motion, but sought leave of the court at the hearing to cross-appeal.

The Ontario Court of Appeal dismissed Baum's appeal. The court held that there was no basis to set aside the decision on the cross-motion as there was no proper cross-appeal and no factum from counsel for Baum on the issue. If the cross-appeal had been properly filed, the court would have dismissed it.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Brown suffered severe complications following her March 25, 2009 breast reduction surgery, which was performed by Baum - Baum undertook a series corrective surgeries from May 6, 2009 to June 16, 2010 - Brown sued Baum on June 4, 2012, alleging a lack of informed consent - Baum moved for summary judgment to dismiss the action as statute barred under the Limitations Act - The motion judge, in dismissing the motion, held that Brown knew she suffered an injury that was caused or contributed to by an act or omission of Baum and therefore she met the first three limbs of discoverability under s. 5(1)(a) of the Act - However, because Baum continued to treat Brown to ameliorate her complications, the fourth limb in s. 5(1)(a)(iv) was not met because Brown had not known that "a proceeding would be an appropriate means to seek to remedy" the injury, loss or damage that she had suffered - The judge concluded that the limitation period did not commence until June 16, 2010, and therefore Brown's statement of claim was issued within the limitation period - The Ontario Court of Appeal dismissed Baum's appeal - The motion judge did not err in his interpretation of s. 5(1)(a)(iv) - Further, the test in s. 5(1)(b) was met as it could not be said that a reasonable person in Brown's circumstances ought to have known that it was legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage - Where the damages were minimized, the need for an action might have been obviated - See paragraphs 15 to 23.

Limitation of Actions - Topic 3011

Actions in tort - General principles - When time begins to run - Attribution of knowledge - [See Limitation of Actions - Topic 15 ].

Limitation of Actions- Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Medicine - Topic 4324

Liability of practitioners - Bars to action - Limitation periods - [See Limitation of Actions - Topic 15 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Brown suffered severe complications following her breast reduction surgery, which was performed by Baum - Brown sued Baum, alleging a lack of informed consent - Baum moved for summary judgment - Brown brought a cross-motion seeking summary judgment - The motion judge dismissed Baum's motion - The judge dismissed the cross-motion because Brown had provided no expert evidence on aspects of the standard of care which she alleged that Baum had failed too meet and because a trial of the issue of what Brown would have done had she been given all of the required information was required - The judge also noted a significant evidentiary conflict between Brown and Baum as to what information Brown was given - Baum appealed - Brown did not cross-appeal the dismissal, but at the appeal hearing sought leave to cross-appeal - The Ontario Court of Appeal held that there was no basis to set aside the dismissal of the cross-motion - There was no proper cross-appeal and no factum from Baum on the issue - Had the cross-appeal been properly filed, the court would not have granted it - Although the motion judge acknowledged that Baum should have discussed the weight and smoking risk factors with Brown, he found that was an insufficient basis to grant summary judgment on the informed consent issue - That was a discretionary decision based on the record before the judge - There was no basis to interfere with it - See paragraphs 25 to 27.

Practice - Topic 5708

Judgments and order - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Practice - Topic 5710

Judgments and order - Summary judgments - Evidence - [See Practice - Topic 5702 ].

Practice - Topic 5716

Judgments and order - Summary judgments - Setting aside - [See Practice - Topic 5702 ].

Practice - Topic 9164

Appeals - Cross-appeals, notice of contention and notices to vary - Filing of - Effect of failure to file - [See Practice - Topic 5702 ].

Practice - Topic 9176

Appeals - Cross-appeals, notices of contention and notices to vary - Grounds for dismissing or quashing - [See Practice - Topic 5702 ].

Counsel:

Cynthia B. Kuehl and Stuart Zacharias, for the appellant;

Osborne G. Barnwell and Maxine Palomino, for the respondent.

This appeal was heard on October 29, 2015, by Feldman, Lauwers and Benotto, JJ.A., of the Ontario Court of Appeal. Feldman, J.A., released the following judgment for the court on May 3, 2016.