Expert Evidence Needed When Moving to a Dismiss Malpractice Claim

osgoode-hall-964650_960_720Unfortunately for health professionals in all disciplines and practice settings, a malpractice action can be commenced any time a patient or client suffers harm as a result of what the patient or their representatives perceive as a failure on the part of the professional.  While cases are often brought following a bad outcome, a malpractice action will not succeed unless the plaintiff can establish that the health professional has breached the standard of care (find cases at and that this breach caused the damage that the patient or client suffered. The plaintiff will almost always require expert evidence to prove that the professional’s conduct breached the applicable standard of care. Where a plaintiff fails to provide an expert report supporting his or her allegations of negligence, the defendant health professional can seek to have the claim dismissed through a motion for summary judgment, on the basis that there is no genuine issue requiring a trial.

Historically, there was a line of cases which provided that where a plaintiff fails to produce an expert report establishing that the defendant health professional breached the applicable standard of care, the defendant will succeed on a motion for summary judgment simply by arguing that there is no evidence in support of the plaintiff’s claim. However, a recent case of the Ontario Court of Appeal, Sanzone v. Schechter, 2016 ONCA 566 suggests that summary judgment will not necessarily be granted in these circumstances, particularly where the plaintiff is self-represented and the defendant fails to produce his or her own expert evidence.


In October 2011, the plaintiff commenced a malpractice lawsuit against two dentists (the “defendants”) regarding a dental surgery that was carried out in 2009. The plaintiff, who was self-represented for most of the proceeding, claimed that her ability to eat solid foods was critically diminished as a result of the defendants’ negligence in recommending the surgery that was performed.

Although the plaintiff had been ordered to set the matter down for trial by the end of 2014, she failed to do so. Approximately two months later, the defendants advised the plaintiff that they would be bringing a summary judgment motion to have the lawsuit dismissed if she failed to provide an expert’s report regarding the allegations of professional negligence.

Summary Judgment Motion Decision

The summary judgment motion was heard in July 2015. The defendants argued that the lawsuit should be dismissed on the basis that the plaintiff had failed to provide any expert evidence to support her claim that they had breached the requisite standard of care. In support of their motion, the defendants filed an affidavit from one of their lawyers describing the procedural steps that had been taken up until that point, and attesting to the fact that the plaintiff had not filed an expert’s report. Neither of the dentists filed an affidavit in their own names, nor did they submit their own expert’s report on the standard of care.

In response, the plaintiff filed an affidavit in which she described the challenges she faced as a self-represented litigant and indicated that she was attempting to find and retain an expert. The plaintiff attached to the affidavit a letter from a dentist who stated that the defendants had not met the standard of care.

The motions judge found that the dentist’s letter was inadmissible as an expert report because it did not meet the necessary requirements under the Rules of Civil Procedure (“Rules”). On the basis that the plaintiff had not filed an expert opinion to support her allegation that the dentists had not met the standard of care, the motions judge granted summary judgment and dismissed the action against the dentists.  The plaintiff appealed from this decision and retained a lawyer to represent her at the hearing of her appeal before the Court of Appeal.

Court of Appeal Decision

On appeal, the plaintiff argued that the motions judge erred in finding the letter to be inadmissible and in failing to accord a self-represented litigant an appropriate amount of leeway on procedural matters when it dismissed the plaintiff’s  lawsuit for lack of an expert report. The Court of Appeal agreed with the motions judge that the dentist’s letter submitted by the plaintiff was not an expert report, but found that the motions judge nevertheless erred in granting summary judgment.

As explained by the Court of Appeal, Rule 20.01(3) of the Rules regarding summary judgment motions requires the moving party (i.e. the defendants in this case) to move with supporting affidavit material or other evidence. Only after the moving party persuades the motions judge that there is no genuine issue requiring a trial, does the evidentiary burden shift to the responding party to prove that the claim has a real chance of success. The Court of Appeal stated that the defendants in this case were not permitted merely to rely on the allegations in their statement of defence, but instead were required to put their best evidentiary foot forward, and they had failed to do so.

Furthermore, Rule 53.03(1) requires a party who intends to call an expert witness at trial to serve a report “not less than 90 days before the pre-trial conference”. A pre-trial conference had not been set in this matter prior to the summary judgment motion. The Court of Appeal held that in the circumstances, the defendant dentists used the summary judgment motion to unfairly compel the plaintiff to file an expert report.

According to the Court of Appeal, “the overwhelming weight of the case law [is] that when medical practitioners move for summary judgment to dismiss a malpractice action, they file evidence on the merits of their defence, including expert reports”. The Court of Appeal held that in a case such as this, where the dentists did not provide any expert evidence in support of their defence, and where the self-represented plaintiff was not in default of her obligation under the Rules to deliver an expert’s report, it was not open to the motions judge to grant summary judgment (source: website).

The appeal was therefore granted and the summary judgment dismissing the action was set aside.

Lessons Learned

At least two lessons can be taken from this case.

First, the case appears to qualify the previously held view that a plaintiff’s malpractice action will be dismissed on a motion for summary judgment unless he or she can produce an expert opinion supportive of his or her claim.  The Court of Appeal’s decision in this matter demonstrates that a health practitioner seeking to have a malpractice claim dismissed on a summary judgment motion will need to provide her own expert report to support the position that there is no genuine issue for trial, even where the plaintiff has not produced an expert’s report.

Second, this decision serves as a reminder that courts are required to accommodate a self-represented plaintiff’s unfamiliarity with the litigation process in order to provide her with the opportunity to present her case to the best of her ability. This principle of fairness may have repercussions for defendants in negligence actions. In this case, the plaintiff’s unfamiliarity with the litigation process provided a basis for the Court of Appeal’s finding that summary judgment was not available where the defendants had not put forth evidence to prove that no genuine issue for trial existed.

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