Civil procedure is the body of rules that governs how a lawsuit is conducted, from the issuance of the claim through pleadings, discovery, motions, pre-trial, and trial. In Ontario, most medical malpractice actions proceed in the Superior Court of Justice under the Rules of Civil Procedure, and procedural decisions often shape the course and cost of a case as much as the substantive law does.
Recurring procedural issues in medical malpractice litigation include the expert evidence requirements of Rule 53.03, the framework for summary judgment refined by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, the scope of documentary and oral discovery, the addition of parties, and the management of the long timelines typical of expert-driven cases. Procedural rulings can determine whether a claim survives to trial at all.
Posts tagged Civil Procedure analyze Ontario decisions on the procedural rules that govern how medical malpractice actions are litigated.
A patient treated at Sunnybrook over three years, a claim issued on the last day of the Trustee Act limitation period, and eighty Doe defendants. Justice Merritt refused to treat the case as misnomer, holding that the litigation finger pointed at everyone and therefore at no one. The three physicians were added anyway, with the limitation defence preserved for trial.
Rule 53.08 was tightened in 2022 to stop the routine late service of expert reports. In Pelrine v Chung, the Divisional Court held that the correction can be overdone, and that the interests of justice apply throughout the rule rather than only at its second stage. Two excluded defence reports were let in, thirteen months before a jury trial.
In the certified Moncton oxytocin class action, a New Brunswick court has ordered the defendant nurse’s personnel file produced, rejected most of the hospital’s quality-improvement privilege claims, and refused to disclose the private health records of other patients. The disclosure reasoning is persuasive only in Ontario, but it tracks the Ontario approach closely.
How to cross-examine the defence expert and advance your case theory. From the 2024 OBA Anatomy of a Trial continuing professional development program.
Composite card pairing the Medico-Legal Society of Toronto crest with the title Causation in Systemic Medical Negligence, on Paul Cahill’s navy brand panel.
Paul Cahill’s Winter 2023/2024 Litigator article on finding the right expert, navigating Westerhof and the Mohan/White Burgess framework, and surviving defence challenges to expert evidence at trial.
Three 2023 decisions from Alberta, Ontario, and Newfoundland show why self-represented plaintiffs almost never succeed in medical malpractice litigation.
When can a defendant compel genetic testing in a medical malpractice claim? An analysis of Klinck v Dorsay and Preece v Nicholson from a 2023 OTLA paper.
A plaintiffs’ motion to pierce litigation privilege over expert communications fails despite real credibility concerns about a defendant doctor’s evidence.
Reflections on two medical malpractice trials in post-COVID Ontario, one jury and one judge-alone. From Gluckstein’s 2022 Risky Business CLE.
Where literature, medicine, and the law intersect at a medical malpractice trial in Ontario. From a 2022 OTLA medical malpractice conference panel.
How Ontario judges gatekeep expert opinion evidence, and what plaintiff counsel can do to clear that bar. From a 2021 MLST panel.
Free, confidential consultations. Paul reviews every potential case personally and tells you honestly whether it merits investigation.