Johnson v. Rajanna

Johnson v. Rajanna

The fresh expert evidence (affidavit and report of Dr. Kellen) was admitted because the Palmer criteria were satisfied: the appellant exercised due diligence in attempting to find an expert, the evidence was directly relevant to standard of care and causation, it was reasonably capable of belief despite deficiencies, and if believed could have affected the result; therefore the summary judgment dismissal was set aside and the matter remitted rather than affirmed.

Citation
2021 ONCA 453
Parties
Plaintiff (appellant): Phyllis Johnson; Defendant (respondent): Dr. Shobha Rajanna; Defendant (respondent): Dr. Anthony Sterling; Defendant (respondent): Margaret Doe; Defendant (respondent): Mary Doe
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
23 June 2021
Procedural Posture
Civil Medical Malpractice / Appeal From Summary Judgment Dismissal (motion for Summary Judgment)
Outcome
Appeal allowed; summary judgment dismissal set aside and costs below set aside; matter remitted; respondents may bring further summary judgment motion
Legal Topics
Summary Judgment, Fresh Evidence on Appeal, Expert Evidence, Standard of Care, Causation, Adjournment, Self Represented Litigant
Source Language
English
Civil Medical Malpractice Procedural Law Evidence Summary Judgment Fresh Evidence on Appeal Expert Evidence Standard of Care +3 more

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Parties

Phyllis Johnson

Plaintiff (appellant)

Dr. Shobha Rajanna

Defendant (respondent)

Dr. Anthony Sterling

Defendant (respondent)

Margaret Doe

Defendant (respondent)

Mary Doe

Defendant (respondent)

Procedural Posture

Civil Medical Malpractice / Appeal From Summary Judgment Dismissal (motion for Summary Judgment)

Legal Issues

  1. 1 Whether fresh expert evidence (affidavit and report of Dr. Kellen) should be admitted on appeal under the Palmer test
  2. 2 Whether the motion judge properly granted summary judgment given absence of admissible expert evidence on standard of care and causation
  3. 3 Whether interests of justice required an adjournment rather than dismissal

Ratio Decidendi

The fresh expert evidence (affidavit and report of Dr. Kellen) was admitted because the Palmer criteria were satisfied: the appellant exercised due diligence in attempting to find an expert, the evidence was directly relevant to standard of care and causation, it was reasonably capable of belief despite deficiencies, and if believed could have affected the result; therefore the summary judgment dismissal was set aside and the matter remitted rather than affirmed.

Court Disposition

Appeal allowed; summary judgment dismissal set aside and costs below set aside; matter remitted; respondents may bring further summary judgment motion

Orders

  • Appeal allowed and dismissal of the appellant’s action set aside
  • Costs award below set aside