Franklin v. Tymianski

Franklin v. Tymianski

The appeal was allowed because the defendant did not meet the burden to show there was no genuine issue for trial and the limitation/discoverability question raises a factual issue that must go to trial; the motion for summary judgment was dismissed.

Citation
2008 ONCA 850
Parties
Plaintiff/appellant: Cherrille Franklin; Plaintiff/appellant: Steven Franklin; Defendant/respondent: Dr. Michael Tymianski; Defendant/respondent: Toronto Western Hospital; Defendant/respondent: Toronto General Hospital
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
15 December 2008
Procedural Posture
Civil / Appeal From Order on Motion for Summary Judgment
Outcome
Appeal allowed; order of Jarvis J. dated February 28, 2008 set aside; motion for summary judgment dismissed.
Legal Topics
Summary Judgment, Expert Evidence, Discoverability, Limitation Period, Costs
Source Language
English
Civil Procedure Medical Negligence Torts Limitation Law Summary Judgment Expert Evidence Discoverability Limitation Period +1 more

Case Brief

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Parties

Cherrille Franklin

Plaintiff/appellant

Steven Franklin

Plaintiff/appellant

Dr. Michael Tymianski

Defendant/respondent

Toronto Western Hospital

Defendant/respondent

Toronto General Hospital

Defendant/respondent

Procedural Posture

Civil / Appeal From Order on Motion for Summary Judgment

Legal Issues

  1. 1 Whether the moving defendant met the burden to show there is no genuine issue for trial on a medical negligence claim
  2. 2 Whether absence of a defence expert medical report justified summary dismissal
  3. 3 Whether the limitation period issue was properly decided or requires trial on discoverability

Ratio Decidendi

The appeal was allowed because the defendant did not meet the burden to show there was no genuine issue for trial and the limitation/discoverability question raises a factual issue that must go to trial; the motion for summary judgment was dismissed.

Court Disposition

Appeal allowed; order of Jarvis J. dated February 28, 2008 set aside; motion for summary judgment dismissed.

Orders

  • Order of Jarvis J. dated February 28, 2008 set aside
  • Motion for summary judgment dismissed