Chasczewski Estate v. 528089 Ontario Inc. et al., (2012) 287 O.A.C. 266 (CA)

• Judge: O'Connor, A.C.J.O., Laskin and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 16, 2011
• Jurisdiction: Ontario
• Citations: (2012), 287 O.A.C. 266 (CA);2012 ONCA 97

Chasczewski Estate v. 528089 Ont. (2012), 287 O.A.C. 266 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. FE.019

John E. Chasczewski, Executor of the Estate of Millie Chasczewski, Deceased, John E. Chasczewski, Tod Chasczewski and Gary Chasczewski (plaintiffs/appellants) v. 528089 Ontario Inc., operating as Whitby Ambulance Service, William Cocker, F. Webster and R. Werner (defendants/respondents)

(C53915; 2012 ONCA 97)

Indexed As: Chasczewski Estate v. 528089 Ontario Inc. et al.

Ontario Court of Appeal

O'Connor, A.C.J.O., Laskin and Cronk, JJ.A.

February 13, 2012.

Summary:

Chasczewski went into cardiac arrest while in an ambulance. She was pronounced dead at the hospital. Her estate brought a medical malpractice action, alleging that the paramedics should have transported Chasczewski sooner and that, had they done so, she could have been treated at the hospital while she still had a heart beat. The defendants sought summary judgment to dismiss the action.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 999, granted the motion. The estate appealed.

The Ontario Court of Appeal allowed the appeal, directing a trial.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - Chasczewski went into cardiac arrest while in an ambulance - She was pronounced dead at the hospital - Her estate brought a medical malpractice action, alleging that the paramedics should have transported Chasczewski sooner and that, had they done so, she could have been treated at the hospital while she still had a heart beat - The estate relied, in part, on the expert evidence of Stadthagen, whose overall opinion was that Chasczewski was a "load and go" patient who should have been transported immediately and that, by not doing so, the defendants had breached the standard of care - The defendants were successful on a summary judgment motion to dismiss the action - On the estate's appeal, the defendants asserted that the estate had filed no admissible evidence on the standard of care because Stadthagen neither worked nor was trained in Ontario - The Ontario Court of Appeal rejected the defendants' argument - The bar for qualifying an expert was not high - The only requirement was that the expert had to "have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify" - This special knowledge had to go "beyond that of the trier of fact" - Stadthagen had the requisite knowledge and expertise regarding paramedical standards of care in Texas - He reviewed the Ontario standards and said under oath that they were nearly identical to those used in Texas, where he practiced - His expertise on the standard of care in Ontario went "beyond that of the trier of fact" - Moreover, he was not cross-examined on his opinion or on his qualifications generally - His expert opinion was therefore admissible - Its weight was a matter for the motion judge - See paragraphs 24 to 33.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See Evidence - Topic 7001 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Chasczewski went into cardiac arrest while in an ambulance - She was pronounced dead at the hospital - Her estate brought a medical malpractice action, alleging that the paramedics should have transported Chasczewski sooner and that, had they done so, she could have been treated at the hospital while she still had a heart beat - The defendants sought summary judgment to dismiss the action, relying, in part, on the evidence of Munkley, who stated that persons suffering a "complete heart block", such as Chasczewski had, outside of the hospital had a 2.4% survival rate - The motion judge granted the motion, indicating that the estate's failure to respond to Munkley's causation opinion was fatal to their claim - While the standard of care was an issue requiring a trial, the motion judge dismissed the action because, even if the defendants had breached the standard of care, Chasczewski would have died anyway, according to Munkley - The Ontario Court of Appeal allowed the estate's appeal, directing a trial - Whether the standard of care was met was a genuine issue requiring a trial - This question had to be decided before the question of factual causation - Without a finding that the defendant had breached the standard of care, the question of causation became moot - Further, it was the defendant's particular substandard act or omission that had to be shown to have caused the harm - Therefore, it was necessary to identify the act or omission to determine what, if any, connection it had to the harm at issue - On a summary judgment motion, the motion judge had to assume that the breach was as alleged in order to decide whether causation was an issue requiring a trial - Here, the alleged breach was the failure to transport Chasczewski to the hospital quickly so that she could receive treatment there - Munkley's evidence regarding the pre-hospital survival rate did not address that theory - Further, denying the estate its day in court on the basis of such a statistic was unsatisfactory - See paragraphs 34 to 47.

Medicine - Topic 4257

Liability of practitioners - Negligence or fault - Evidence and burden of proof - [See Medicine - Topic 4241.2 and Evidence - Topic 7001 ].

Practice - Topic 5708

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

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Medicine - Topic 4241.2 ].

Torts - Topic 65

Negligence - Causation - Evidence and proof - [See Medicine - Topic 4241.2 ].

Cases Noticed:

Bafaro et al. v. Dowd et al. (2010), 260 O.A.C. 70; 2010 ONCA 188, refd to. [para. 15].

Randall et al. v. Lakeridge Health Oshawa et al. (2010), 270 O.A.C. 371; 2010 ONCA 537, refd to. [para. 15].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 32].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 33].

McLean et al. v. Seisel et al. (2004), 182 O.A.C. 122 (C.A.), refd to. [para. 32].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 16, refd to. [para. 46].

Counsel:

Allan Rouben and Amani Oakley, for the appellants;

Deborah Berlach and Renée A. Kopp, for the respondents.

This appeal was heard on December 16, 2011, by O'Connor, A.C.J.O., Laskin and Cronk, JJ.A., of the Ontario Court of Appeal. On February 13, 2012, Laskin, J.A., delivered the following judgment for the court.