Furlotte v. Milczarek, 2012 NBCA 24

• Judge: Drapeau, C.J.N.B., Turnbull and Robertson, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 25, 2012
• Jurisdiction: New Brunswick
• Citations: 2012 NBCA 24;(2012), 383 N.B.R.(2d) 237 (CA)

Furlotte v. Milczarek (2012), 383 N.B.R.(2d) 237 (CA);

    383 R.N.-B.(2e) 237; 991 A.P.R. 237

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]

.........................

Temp. Cite: [2012] N.B.R.(2d) TBEd. MR.011

Renvoi temp.: [2012] N.B.R.(2d) TBEd. MR.011

Weldon Furlotte (appellant) v. Dr. John J. Milczarek (respondent)

(86-11-CA; 2012 NBCA 24)

Indexed As: Furlotte v. Milczarek

Répertorié: Furlotte v. Milczarek

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Robertson, JJ.A.

January 25, 2012.

Summary:

Résumé:

Dr. Milczarek was a defence expert medical witness in a prior action with respect to a motor vehicle accident in which Furlotte was the plaintiff. He performed two independent medical evaluations on Furlotte. Prior to the trial, Furlotte sued Dr. Milczarek, alleging that he fraudulently misrepresented his injuries and fabricated evidence in his report. Dr. Milczarek denied the allegations and moved for summary judgment.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 372 N.B.R.(2d) 349, granted summary judgment and dismissed the action. Furlotte appealed, contending the motion judge entirely overlooked his affidavit, erred in law by refusing to reconsider his dismissal of the action after it was "brought to his attention that he overlooked the evidence of the appellant" and failed to consider the allegations found in his Statement of Particulars.

The New Brunswick Court of Appeal dismissed the appeal. The motion judge was entitled to conclude, on the basis of the admissible evidence placed before him, that there was "no merit to the action" (rule 22.01(3) and Cannon v. Lange (1998), 203 N.B.R.(2d) 121 (C.A.)).

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - Dr. Milczarek was a defence expert medical witness in a prior action with respect to a motor vehicle accident in which Furlotte was the plaintiff - Dr. Milczarek performed two independent medical evaluations on Furlotte - Prior to the trial, Furlotte sued Dr. Milczarek, alleging that he fraudulently misrepresented Furlotte's injuries because he did not consider other or more likely causes of the injuries, and that he fabricated evidence - Dr. Milczarek denied the allegations and moved for summary judgment - A motion judge granted summary judgment - Dr. Milczarek's affidavit evidence justified summary judgment, there being no "affidavit in response to this motion" and no doubt as to the outcome at trial - The motion judge explained why Furlotte's affidavit was not legally and factually responsive to the case for summary judgment - Furlotte appealed, contending that the motion judge entirely overlooked his affidavit and erred in law by refusing to reconsider his dismissal of the action after it was "brought to his attention that he overlooked the evidence of the appellant" - The New Brunswick Court of Appeal dismissed the appeal - The motion judge considered Furlotte's affidavit, but correctly concluded it did not constitute a legally valid response to the motion and Dr. Milczarek's affidavit evidence - The uncontradicted evidence was that Dr. Milczarek acted in good faith and competently in discharging his responsibilities pursuant to rule 36 of the Rules of Court ("Medical Examination of Parties") - The motion judge was entitled to conclude, on the basis of the admissible evidence placed before him, that there was "no merit to the action".

Practice - Topic 5715.1

Judgments and orders - Summary judgments - Burden on respondent - [See Practice - Topic 5710 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5710 ].

Procédure - Cote 5710

Jugements et ordonnances - Jugements sommaires - Preuve - [Voir Practice - Topic 5710 ].

Procédure - Cote 5715.1

Jugements et ordonnances - Jugements sommaires - Fardeau sur l'intimé - [Voir Practice - Topic 5715.1 ].

Procédure - Cote 5719

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

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), appld. [para. 8].

Saint-François de Madawaska (Village) v. Nadeau Poultry Farm Ltd. et al., [2010] N.B.R.(2d) Uned. 118; 2011 NBCA 55, refd to. [para. 8].

Statutes Noticed:

Rules of Court (N.B.), rule 22.01(3) [para. 8].

Counsel:

Avocats:

No one appeared, for the appellant;

John C. Gillis, for the respondent.

This appeal was heard and decided on January 25, 2012, before Drapeau, C.J.N.B., Turnbull and Robertson, JJ.A., of the New Brunswick Court of Appeal. The following is the judgment delivered orally by the Court in both official languages on January 25, 2012.