CITATION: Vandergiessen v. Trillium Health Centre (Mississauga), 2010 ONCA 379

DATE: 20100526

DOCKET: C51487

COURT OF APPEAL FOR ONTARIO

Goudge, Sharpe and Armstrong JJ.A.

BETWEEN

Yvonne Vandergiessen

Appellant/Plaintiff

and

Mississauga Hospital, Dr. K. McIntyre, Dr. M.A. Virey, Peel Police Services Board, Halton Police Services Board, Officer Joan Wilson-Badge No 1908 and Officer N. Sachdeva – Badge No 1940 Security Guards Wes Cheshire (Badge No 20633) and Mark Borba (Badge No. 20531), Carecor Health Services Limited

Respondents/Defendants

Osborne G. Barnwell, for the appellant

Eli Mogil, for the respondents Dr. McIntyre and Dr. Virey Anna Marrison, for the respondent Mississauga Hospital

Heard: May 19, 2010

On appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice dated December 3, 2009.

ENDORSEMENT

[1]              The appellant appeals the summary judgment dismissing her claim against the respondent physicians and hospital.  Summary judgment was granted on the basis that the appellant had failed to provide an expert opinion to support the assertion that the respondent physicians failed to meet the applicable standard of care.  The appellant argues that, given the nature of the claims she advances, an expert opinion is not essential.

[2]              The claim arises from the appellant’s involuntary committal in the psychiatric wing of the respondent hospital more than 12 years ago.  In addition to the respondents to this appeal, the appellant asserts claims against police officers and security guards involved in the events leading to her involuntary committal.  The summary judgment at issue on this appeal does not affect the claims advanced against those parties.

[3]              The amended amended statement of claim makes a variety of allegations against the respondents.  While the appellant does allege that the respondent physicians “were negligent in that they did not exercise reasonable standard of care”, the claim also alleges that the respondents failed to follow the procedures required by the Mental Health Act, R.S.O. 1990, c. M.7 and failed to meet the conditions specified by the Act with respect to involuntary committals.  She further alleges that the respondents thereby breached her Charter rights.

[4]              The respondents rested their case for summary judgment upon the assertion that without an expert opinion stating that the respondent physicians had failed to meet the applicable standard of care, the appellant could not succeed on her claims.  The only evidence advanced by the respondents in support of the motion for summary judgment consisted of a lawyer’s affidavit reciting the history of the action and annexing two expert opinions to the effect that the respondents had met the requisite standard of care.

[5]              It is clear from what the motion judge stated to the appellant during the course of the summary judgment motion proceedings and from his very brief reasons disposing of the motion that he granted summary judgment solely on the ground that the appellant’s failure to provide an expert opinion was necessarily fatal to her claims.

[6]              In our respectful view, the motion judge erred by granting summary judgment on this record.  Not all claims against medical doctors require expert opinion evidence that the applicable standard of care was not met: see ter Nuezen v. Korn, [1995] 3 S.C.R. 674 at paras. 40-49.  While the appellant may be unable to establish elements of her claim without an expert opinion, the claims advanced by the appellant against the respondents involve more than a typical allegation of medical malpractice.  The appellant claims that statutory procedures and statutory conditions for her involuntary committal were not followed or satisfied.  In our view, these allegations fall into the category of claims that may be established without an expert opinion.  They are not matters that rest solely upon the opinion of experts as to whether the requisite standard of care was met.

[7]              In our view, given the specific nature of the allegations advanced in the pleadings against them, the respondents failed to satisfy the burden that rests upon them to lead evidence demonstrating that there was no triable issue.

[8]              Accordingly the appeal is allowed and the summary judgment dismissing a claim against the respondents is set aside.  The appellant is entitled to her costs of this appeal fixed at $10,000 inclusive of disbursements and GST.

“S.T. Goudge J.A.”

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”