Chan et al. v. White et al., (2014) 352 N.S.R.(2d) 204 (SC)

• Judge: Coady, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 02, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 352 N.S.R.(2d) 204 (SC);2014 NSSC 383

Chan v. White (2014), 352 N.S.R.(2d) 204 (SC);

    1112 A.P.R. 204

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. NO.005

Park Wu (Truman) Chan, Lin Feng and Bonita Chan (plaintiffs) v. D. White, S. Couban, Dr. Yuen, D. Jones, J. MacDonald and The Queen Elizabeth II Health Sciences Centre (defendants)

(Hfx. No. 265999; 2014 NSSC 383)

Indexed As: Chan et al. v. White et al.

Nova Scotia Supreme Court

Coady, J.

October 24, 2014.

Summary:

The defendant doctors moved for summary judgment in a fatal injury malpractice action. The plaintiffs requested an adjournment of the motion, asserting that the motion was premature and should wait until after the discovery of the doctors. The plaintiffs also objected to the admission of the doctors' expert reports on the motion.

The Nova Scotia Supreme Court denied an adjournment. The court, without considering the doctors' expert reports, granted the doctors summary judgment.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The defendant doctors moved for summary judgment in a fatal injury malpractice action - The doctors filed an affidavit of a lawyer in support of the motion - Expert reports were attached as schedules - The plaintiffs objected to the admission of the reports on the motion - They asserted that the manner of providing evidence on a motion under Civil Procedure Rule 23.08 did not include attaching expert reports to affidavits of other individuals - They asserted that the evidence was clearly hearsay and was presumptively inadmissible and did not attract a rule 22.1 exception - The Nova Scotia Supreme Court accepted the plaintiffs' submissions and refused to consider the expert reports - See paragraphs 11 to 13.

Medicine - Topic 4241.2

Liability of practitioners - Negligence and fault - Causation - The defendant doctors moved for summary judgment in a fatal injury malpractice action - The doctors denied breaching a duty of care and any suggestion that their care caused the deceased's death - They asserted that the plaintiffs' failure to obtain an expert opinion on causation resulted in there being no evidence on causation - The Nova Scotia Supreme Court allowed the motion - It was well established that expert evidence was required to assist the trier of fact in an area outside of their ordinary experience - It would be the exception that medical causation could be determined without an expert - This case was not one of those exceptions - The deceased had leukemia which was a very complex disease - The treatment of leukemia was not something that a non-expert would understand - An expert was required to link the plaintiffs' concerns about non-resuscitation to the cause of the deceased's death - The doctors had established that there was no genuine issue for trial - The plaintiffs had not established that they had a real chance of success - See paragraphs 14 to 23.

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof - [See Medicine - Topic 4241.2 ].

Practice - Topic 4160.2

Discovery - General principles - Examination for discovery before summary judgment - The defendant doctors moved for summary judgment in a fatal injury malpractice action - The plaintiffs requested an adjournment of the motion, asserting that it was premature and should wait until after the discovery of the doctors - The Nova Scotia Supreme Court denied an adjournment - The plaintiffs were "just procrastinating to forestall summary judgment" - The action was filed in 2006 and they had not yet approached an expert - They had done little to advance the case for the trial - They did not suggest that they were taken by surprise by the motion - Adjourning the motion to allow pretrial procedures to run their course would defeat the purpose of a summary judgment - The court referred to National Bank Financial Ltd. v. Potter et al. (2007, NSSC) where it was held that summary judgment was "... an expeditious and inexpensive way of obtaining a determination on the merits and should have priority over the discovery process." - See paragraphs 8 to 10.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Medicine - Topic 4241.2 ].

Practice - Topic 5702.1

Judgments and orders - Summary judgments - Time for hearing (incl. abridgment of) - [See Practice - Topic 4160.2 ].

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Medicine - Topic 4241.2 ].

Practice - Topic 5708.1

Judgments and orders - Summary judgments - Bar to application - Merit to claim and facts to substantiate claim - [See Medicine - Topic 4241.2 ].

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See Evidence - Topic 1504 and Medicine - Topic 4241.2 ].

Practice - Topic 5712

Judgments and orders - Summary judgments - Application or motion - Time for - [See Practice - Topic 4160.2 ].

Cases Noticed:

Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, refd to. [para. 8].

National Bank Financial Ltd. v. Potter et al. (2007), 261 N.S.R.(2d) 50; 835 A.P.R. 50; 2007 NSSC 331, refd to. [para. 10].

MacAulay v. Ali, [2013] N.S.R.(2d) Uned. 192; 2013 NSSC 271, refd to. [para. 13].

Masontech Inc. v. Aaffinity Contracting and Environmental Ltd. (2014), 344 N.S.R.(2d) 292; 1089 A.P.R. 292; 2014 NSSC 164, refd to. [para. 16].

Robert v. Brooks (2014), 343 N.S.R.(2d) 28; 1084 A.P.R. 28; 2014 NSSC 49, refd to. [para. 17].

Clements v. Clements (2012), 431 N.R. 198; 346 D.L.R.(4th) 577; 2012 SCC 32, refd to. [para. 18].

Cassibo v. Bacso, [2010] O.T.C. Uned. 6435; 2010 ONSC 6435, refd to. [para. 19].

Cherny v. Glaxo Smith Kline Inc. (2009), 279 N.S.R.(2d) 192; 887 A.P.R. 192; 2009 NSCA 68, refd to. [para. 20].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 21].

Counsel:

Jennifer Langille, for the plaintiffs;

Stewart Hayne and Peter LeCain, for the defendants.

This motion was heard at Halifax, Nova Scotia, on October 2, 2014, by Coady, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 24, 2014.