Defendant Must Disprove Allegations In Order to Obtain Summary Judgment
Some cases are stronger than others. What happens if you are faced with a claim that the plaintiff has no ability to prove? Are you required to go to the cost and trouble of disproving what might be wildly baseless allegations. The short answer to this question is "yes" according to a 2016 decision of the Ontario Court of Appeal.
The defendants were dentists who the plaintiff alleged improperly performed dental surgery on her. She sued for malpractice. In doing so, the plaintiff did not hire a lawyer but rather represented herself. Early in the litigation, the defendants were troubled by the lack of evidence supporting the plaintiff's allegations. They demanded that she produce an expert report demonstrating that they fell below the standard of care required from dentists. The plaintiff failed to do so and the defendants moved for summary judgment.
In support of their motion for summary judgment, the dentists relied on two affidavits from their lawyer. The first set out the procedural history of the action demonstrating delay and asserting the lack of evidence in support of the plaintiff's claim. In response, the plaintiff deposed that she would be hiring an expert. She included a letter from a dentist which asserted that the defendants fell below the proper standard of care. The second affidavit relied upon by the defendants set out the deficiencies of the dentist's letter as expert testimony.
At the motion for summary judgment, the motion judge did not admit the dentist's letter as evidence on the basis that it failed to qualify as an expert's report. Specifically, it did not set out the qualifications of the dentist or provide an acknowledgment of expert's duty. The motion judge granted summary judgement to the defendants on the grounds that the plaintiff's action could not succeed. The plaintiff appealed.
The Court of Appeal overturned the decision. It supported the motion judge's decision not to admit the dentist's letter as proper evidence. However, it noted that the defendants had failed to adduce proper evidence going to the merits of the allegations facing them. The Court was troubled by the failure in light of the fact that the onus lies with the moving defendant to prove that there is no genuine issue requiring a trial when moving for summary judgment. The Court stated that it was up to the defendants to provide evidence that they met the requisite standard of care in providing the dental surgery. Only then would the onus shift and require the plaintiff to adduce expert testimony demonstrating that a genuine issue existed with respect to the standard of care.
The Lesson:
The decision may seem troublesome to the defendant who does not want to waste time and resources defending allegations that appear to lack merit. However, if moving for summary judgment in order to end the litigation, it is the responsibility of the defendant to prove that the allegations lack merit. Doing so will require resources. The alternative is to sit back and wait for the plaintiff to proceed to trial where s/he has the onus to prove the case before the defendant must respond.
Sanzone v Schechter, 2016 ONCA 566 (ONCA) https://www.canlii.org/en/on/onca/doc/2016/2016onca566/2016onca566.pdf
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