Langenecker v. Sauvé et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Doherty, Armstrong and Hoy, JJ.A.
• Neutral Citation: 2011 ONCA 803
• Citation: (2011), 286 O.A.C. 268 (CA),2011 ONCA 803,[2011] OJ No 5777 (QL),286 OAC 268,[2011] O.J. No 5777 (QL),(2011), 286 OAC 268 (CA),286 O.A.C. 268
• Date: 01 December 2011

Langenecker v. Sauvé (2011), 286 O.A.C. 268 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. DE.023

Peter Langenecker, Joanne Langenecker, Elisabeth Langenecker, and Franz Langenecker (plaintiffs/appellants) v. Dr. S. Sauvé, Dr. P. Luke, Dr. White, Nurse K. Kiegel R.N., University Hospital and London Health Association (defendants/respondents)

(C53425; 2011 ONCA 803)

Indexed As: Langenecker v. Sauvé et al.

Ontario Court of Appeal

Doherty, Armstrong and Hoy, JJ.A.

December 19, 2011.

Summary:

In June 1995, the plaintiff and others sued health care providers, which included two doctors, for malpractice. In September 2010, the two doctors moved to dismiss the action for delay.

The Ontario Superior Court granted the motion. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In June 1995, the plaintiff and others sued health care providers, which included two doctors, for malpractice - In September 2010, the two doctors moved to dismiss the action for delay - The Ontario Court of Appeal affirmed a decision that granted the motion - The court held as follows: "The motion judge correctly stated the test to be applied on a motion to dismiss for delay. The chronology of the relevant events was not in dispute. The motion judge considered the explanations offered by counsel for the [plaintiffs] for the various delays and he considered the [defendants'] prejudice claim. The motion judge decided that the delay was inexcusable. That conclusion was reasonably open to him. The motion judge also considered and rejected the submission that the nature and reliability of the evidence still available (medical and hospital records), and the narrow factual issue on which liability would turn, rebutted the presumption of prejudice to the defendants flowing from the long delay. The motion judge rejected this submission because he found there were potential sources of evidence other than the medical records that were lost to the defendants through the passage of time. The motion judge's finding that the [plaintiffs] had not rebutted the presumption of prejudice was not unreasonable" - See paragraphs 1 to 26.

Cases Noticed:

Saikaley v. Commonwealth Insurance Co. et al. (1978), 21 O.R. (2d) 629 (H.C.), consd. [para. 4].

Armstrong v. McCall et al. (2006), 213 O.A.C. 229 (C.A.), consd. [para. 4].

De Marco et al. v. Mascitelli et al., [2001] O.T.C. Uned. 846; 14 C.P.C.(5th) 384 (Sup. Ct.), consd. [para. 4].

Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 1 All E.R. 543 (H.L.), consd. [para. 4].

Tanguay v. Brouse, [2010] O.A.C. Uned. 378; 2010 ONCA 73, consd. [para. 11].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, consd. [para. 15].

Counsel:

Alan L. Rachlin, for the appellants;

Julie Parla and Gillian Kerr, for the respondents, Sauvé and Luke.

This appeal was heard on December 1, 2011, by Doherty, Armstrong and Hoy, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Doherty, J.A., and released on December 19, 2011.