Written By: Michael Warfe and Ryan Marinacci, Student-at-Law
The Court of Appeal for Ontario recently released two medical malpractice decisions favourable to Plaintiffs.
The Court in Beaudoin Estate v Campbellford Memorial Hospital, allowed the Plaintiffs’ appeal from an R21 motion dismissing their claims as statute-barred under s. 38(3) of the Trustee Act. The motion judge concluded that the plea of fraudulent concealment even if accepted as true did not suspend the limitation under s. 38(3) because the concealment of a CT scan was not causally connected to the failure to sue within the limitation. The motion judge had also struck the claim of fraudulent concealment because it was “patently ridiculous or manifestly incapable of proof.”
The Court of Appeal disagreed on both issues. First, the Court found that the trial judge had erred in deciding the question of fraudulent concealment as a question of law on the motion. The Court found that R21 motions were not the appropriate forum for making determinations of fact based on weighing evidence.
Indeed, the Court drew on the recent authority from Kaynes v. BP p.l.c., and confirmed that R21 motions were not to be used to determine limitations issues unless very narrow circumstances arose where the pleadings were closed and the relevant facts were not in issue.
Accordingly, a factual dispute as to the date of discoverability made impossible an R21 motion which was limited to determining questions of law raised in the pleading. The Court noted that this same rationale applied to fraudulent concealment. Where the pleadings raised a factual dispute as to fraudulent concealment, an R21 motion could not succeed.
Here, at issue was whether the fraudulent concealment bore a causal connection to the failure to sue within the limitation period. The Plaintiffs argued there was, whereas the Defendants argued there was not. The motion judge ruled in favour of the Defendants even though causation was a question of fact on the authority of Clements v Clements. The Court wrote, “Such a factual issue should generally not be determined on a motion to determine a question of law under r. 21.01(1)(a).”
Second, the Court concluded that the plea of fraudulent concealment was not patently ridiculous or manifestly incapable of proof on the facts taken as true in the pleading. At its core, the Plaintiffs’ submission was that they would have sued within the two years had they received when they requested it the CT scan that was ultimately withheld.
The Court found that this factual dispute was of the type regularly decided by the courts. Accordingly, the Court found that the Plaintiffs should have the chance to support that allegation with evidence and reversed the motion judge’s decision.
The Court in Champoux v Jefremova, likewise allowed the Plaintiff’s appeal and reversed based on two issues the trial judge’s decision that the Defendant had met the standard of care. On appeal, the Plaintiff argued that the trial judge had erred in issuing insufficient reasons incapable of appellate review and in relation to a Response to Request to Admit delivered by the Defendant.
On the first ground, the Court found that the trial judge’s reasons were such that “the parties and the court are left to speculate on how the trial judge reached his conclusion on critical issues.” Yet the Court also noted that insufficiency of reasons was raised so often as to become a “boilerplate ground of appeal.” The Court found that the decision at the bar was no such case, and instead concluded that that the trial judge did not sufficiently explain his preference for the Defendant’s expert over the Plaintiff’s.
The Court also found that the trial judge also had not addressed several points of contention regarding the standard of care as between the opinions of both experts which the Plaintiff argued was “the crux of the case before him.” The Court agreed and concluded that it was “also left in the dark about how the trial judge dealt with these critical issues” by the trial judge’s reasons.
On the second ground, the Court concluded that the trial judge’s analysis of a Response to Request to Admit “resulted in an unfair trial” for the Plaintiff. Before trial, the Plaintiff had delivered a request to admit that the Plaintiff had presented at the emergency room with a perianal abscess. The Defendant refused to make that admission and stated as its reason for the refusal that the Plaintiff presented with an absence/swollen nodule in the general perianal area.
The Defendant brought a motion to withdraw the Response to Request to Admit after the Plaintiff refused to consent to the withdrawal. The Defendant argued that the Response had left its office by inadvertence. The trial judge dismissed the motion because the admission was tendered as proof of a fact (the location of the abscess) and hence imposed a more stringent standard for withdrawal than an admission of pure law or mixed fact and law. The trial judge further held that the interpretation of the admission was better left for the close of final submissions.
However, in the written decision the trial judge concluded that the Defendant’s admission could not be accepted as proof of anything more than an abscess on the buttocks. The trial judge did not address in his reasons the specific Response whereby the Defendant admitted the abscess was in the general perianal area.
The Court found that the ruling on the motion to withdraw and the final judgment were contradictory: on the motion, there was no triable issues regarding the truth of the admission while the judgment contained an analysis of whether the admission was true and a conclusion that is was not. Such contradictory rulings were not permitted in the context of formal admissions, which the Court distinguished from other forms of evidence:
A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission…
The trial judge had in effect treated the Response to Request to Admit as withdrawn in his written reasons despite dismissing the Defendant’s earlier motion for withdrawal. As such, the Court found that the trial judge’s reasons “effectively bypassed the rigorous test for the withdrawal of an admission and resulted in an unfair trial for Ms. Champoux.”
Whether on a motion to strike or a full trial on the merits, the decisions in Beaudoin Estate and Champoux are a reminder that medical malpractice cases raise difficult legal issues in addition to complex evidentiary and factual issues.
 2021 ONCA 57.
 2021 ONCA 36.
 2012 SCC 32.
 2021 ONCA 92.