2015 NBCA 5, 2015 NBCA 5

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 133-13-CA DARREN BOUCHARD APPELLANT DARREN BOUCHARD APPELANT - and - - et - DR. NACH DANIEL and ASS., DR. STIRLING,DR. NACH DANIEL, NURSE DOE, ANESTHETICNURSE DOE RESPONDENTS DR. NACH DANIEL and ASS., Dr STIRLING, Dr NACH DANIEL, INFIRMIÈRE UNETELLE,INFIRMIÈRE ANESTHÉSISTE UNETELLE INTIMÉS Bouchard v. Dr. Daniel et al., 2015 NBCA 5 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green Bouchard c.

Dr Daniel et autres, 2015 NBCA 5 CORAM : l’honorable juge Richard l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: December 3, 2013 Appel d’une décision de la Cour du Banc de laReine: le 3 décembre 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 391 Décision frappée d’appel : 2013 NBQB 391 , 2013 NBBR 391 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: November 26, 2014 Appel entendu : le 26 novembre 2014 Judgment rendered: January 29, 2015 Jugement rendu : le 29 janvier 2015

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Green Counsel at hearing: For the appellant: No one appeared For the respondents: David T. Hashey, Q.C. Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Green Avocats à l'audience : Pour l’appelant : personne n’a comparu Pour l’intimée : David T. Hashey, c.r. THE COURT The appeal is dismissed with costs of $2,500. LA COUR Déboute l’appelant, qui est condamné à des dépens de 2 500 $.

The judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] Darren Bouchard appeals from a decision of a judge of the Court of Queen’s Bench, who granted

summary judgment (Rule 22 of the Rules of Court ) to the respondents, Dr. Nach Daniel and Dr. Nach Daniel and Associates, in an action for medical malpractice. II. Background [ 2 ] Mr. Bouchard claims Dr. Daniel is operating a partnership called Dr. Nach Daniel and Associates. Mr. Bouchard had been referred by his dentist to be seen and treated by an oral surgeon, Dr. Peter Stirling. In July 2011, Mr. Bouchard was treated by Dr. Stirling at premises referred to as the Dr. Nach Daniel Clinic. He was subsequently treated by Dr. St-Germain, another doctor practicing oral surgery at the clinic. Dr.

Stirling is now deceased. In his Statement of Claim, Mr. Bouchard alleges medical malpractice against Dr. Stirling, Dr. Daniel, Dr. Nach Daniel and Associates and two unnamed nurses. [ 3 ] After filing a Statement of Defence, in which he denied any wrongdoing, Dr. Daniel moved for

summary judgment and filed a supporting affidavit wherein he submits there was no partnership with either Dr. Stirling or Dr. St-Germain. Dr. Daniel claims that Dr. Nach Daniel and Associates is not an incorporated company nor is it a partnership or business name. According to

Dr. Daniel, he merely leases out space to other oral surgeons who operate their own practices. There is no sharing of profits orresponsibility for losses. III. Grounds of Appeal [4] Mr. Bouchard's Notice of Appeal contains approximately 25 grounds of appeal. Verbatim, these would takeup 13 pages in this decision. They are, for the most part, irrelevant to the issues we must determine on appeal, which are whether, ingranting

summary judgment, the motion judge applied the correct legal test, made any error in principle, or made any palpable andoverriding error in his assessment of the facts. It is on this basis I will proceed to determine the appeal without addressing any specificground of appeal. In doing so, I do, however, consider all the arguments Mr. Bouchard has advanced in support of his numerous groundsof appeal. IV. Analysis [5] Cannon v. Lange et al. (1998), (NB CA), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313 (C.A.) (QL),directs that, before granting

summary judgment, the motion judge must determine, based on the record, the outcome is a foregoneconclusion, in the sense that there is no merit to the claim or defence, as the case may be. In Brunswick News Inc. v. Sears, 2012 NBCA32, 390 N.B.R. (2d) 167, Larlee J.A. states: In Shareline Systems v. New Brunswick and New Brunswick Distance Education Network, 2001 NBCA 29, 235 N.B.R. (2d) 162,Drapeau J.A. (as he then was) described the correct approach to

summary judgment adjudications: The Cannon v. Lange decision settles some of the more contentious aspects of Rule 22. In particular, it clarifies the court's role inadjudicating any application for

summary judgment and identifies the basis upon which such adjudication must be made. Whilereaffirming the view that

summary judgment should not be granted unless the moving party's case is unanswerable, the Court in Cannonv. Lange underscored the need to protect innocent parties and the system against frivolous claims or defences. It went on to spotlightRule 22's potentially helpful role in reaching that worthy objective. The Court also emphasized that a motion for

summary judgmentstands to be determined upon a consideration of both the pleadings and any admissible evidence adduced by the parties. On a motion for

summary judgment under Rule 22, contested allegations of fact in the responding party's pleading are not deemed true.Of course, a contrary approach governs motions to strike out a pleading. See Rules 23.01(1)(

b) and 23.02 and Cayouette v. Co-operatorsGeneral Insurance Co., [2000] N.B.J. No. 296, online: Quicklaw (NBJ) at paragraph 8. Contested allegations of fact, standing alone, willrarely, if ever, suffice to insulate a claim or defence from any rule-compliant motion for

summary judgment. In Cannon v. Lange, at para. [23], the Court addressed the following caution to any responding party who might be tempted to rely solelyupon contested and unsubstantiated allegations of fact to oppose a motion for

summary judgment that meets the requirements of Rule 22: [23] Common sense should move the parties to put their best foot forward on a motion under rule 22. Such a course of conduct isparticularly wise for a respondent, since he or she has the most to lose. As stated by the Ontario Court of Appeal in 1061590 Ontario Ltd.v.

Ontario Jockey Club et al. (1995), (ON CA), 77 O.A.C. 196; 21 O.R. (3d) 547 (C.A), at 557 [O.R.] in a vernacularexpression, the respondent "must lead trump or risk losing." It will rarely be sufficient for the respondent to promise that evidence, whichis admissible pursuant to rule 39.01(4), will be produced at trial: absent a compelling explanation, the respondent is required to produceadmissible evidence which will prevent a conclusion that the action or defence is bereft of merit.

I have no doubt that, where the ends ofjustice require, the court will allow all appropriate accommodations including leave to file further affidavit evidence. [paras. 17-19] [para. 7] She goes on to state: Further, in Morrow v. Aviva Canada Inc., 2004 NBCA 100, 279 N.B.R. (2d) 77, this Court confirmed the approach with respect to theevidence to be considered on a motion for

summary judgment:

Summary judgment is appropriate whenever there is "no reason for doubt as to what the judgment of the court should be if the matter

proceeds to trial": Ripulone v. Pontecorvo (1989), (NB CA), 104 N.B.R. (2d) 56 at para. 13 (C.A.) and Cannon v.Lange et al. (1998), (NB CA), 203 N.B.R. (2d) 121 (C.A.). That pivotal question stands to be determined on thebasis of the issues as defined by the pleadings, any relevant admissions in the record and the admissible evidence. Our Court hasrepeatedly endorsed that elementary proposition, which responding parties ignore at their peril. [para. 10] [para. 7] [6] In this case, the judge determined the central question to be adjudicated: whether there was any evidence thatraised a serious triable issue. In his view, Dr. Daniel’s affidavit justified

summary judgment, and a review of the affidavit in response leftno doubt as to the outcome at trial. The judge applied the proper test as set out in Cannon v. Lange and made findings of fact which ledhim to conclude that Mr. Bouchard could not be successful at trial. As an aside, the judge did state that Mr. Bouchard could proceed withhis action against Dr. Stirling’s estate or any of the other parties. Having regard to the record, and the applicable deferential standard ofreview (see Grew v. Milemore Holdings, Fullerton et al., 2014 NBCA 33, 421 N.B.R. (2d) 316), there is no basis for appellateintervention. V.

Disposition [7] For the above reasons, I would dismiss the appeal. I would award the Respondents one set of costs in the amountof $2,500. __________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _________________________ J.C. MARC RICHARD, J.A. _________________________ BRADLEY V. GREEN, J.A.