Court of Appeal Decision of the Week

What is “Precisely the Type of Case” for Summary Judgment?

Case: Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125 (CanLII)

Keywords: Summary Judgment; Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87


A Motion Judge grants summary judgment dismissing the Appellant’s action as against the Respondents (County of Simcoe Paramedic Services, Paramedic J. Doe, nine doctors, and Barrie Medical Clinics Inc.). The decision also grants partial summary judgment dismissing the Appellant’s action against Victoria Regional Health Centre with respect to certain events described in the statement of claim.

Apart from a small correction to the partial summary judgment, the Court of Appeal finds no basis to interfere with the Motion Judge’s decision.


This decision is worth reviewing because it provides a relatively clean, uncontroversial demonstration of the principles set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87.

For the Court of Appeal, the decision below was “precisely the type of case” for summary judgment:

It is the type of case that can be fairly resolved “in line with the goal of proportionate, cost-effective and timely dispute resolution”: Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, at para. 67. (See para. 3).

Over and above the Court of Appeal’s concerns with respect to judicial economy, the need for deference to the decision of the Motion Judge was emphasized as follows: “Where there is no error in principle, the determination of the motion judge should be upheld absent a showing of palpable and overriding error: Hryniak, at para. 81.” (See para. 4).

As an example, one may note that, among other things, the Appellant “complained” (in the context of her claim against the nine doctors) that the Respondents’ experts did not comply with Rule 53.03 requirements to provide an acknowledgment of expert’s duty.

Although the Court of Appeal agreed it would be “preferable” for the Motion Judge to have accepted the acknowledgment forms at the time of the hearing, the Court declined to find a reversible error:

It was open to him, on the basis of that evidence, to conclude that the doctors’ experts had complied with r. 53.03. (See para. 14).

That being said, the Motion Judge’s decision was not immune to some judicial tailoring from the Court of Appeal. At the appeal hearing, the Respondent Royal Victoria Regional Health Centre “acknowledged that its motion for partial summary judgment dismissing the claims against it was limited…” to certain claims. As such, the Court of Appeal found the balance of the claim as against Royal Victoria Regional Health Centre should not have been dismissed and amended paragraph two of the Motion Judge’s decision. (See paras. 19-23).

Counsel for the Respondent Royal Victoria Regional Health Centre: Jonathan Gutman (Healthcare Insurance Reciprocal of Canada, North York)

Counsel for the Respondent Barrie Medical Clinics Inc.: Mark Vernon (Carroll Heyd Chown LLP, Barrie)

Counsel for the Respondent Doctors: Peter Downs (Lerners LLP, London)

Counsel for the Respondent County of Simcoe Paramedic Services: Jacinthe Boudreau (Stieber Berlach LLP, Toronto)

In Person: Barbara Kuber

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Posted: Wednesday, February 14, 2018