2012 NBCA 24, 2012 NBCA 24

COURT OF APPEAL OF NEW BRUNSWICK 86-11-CA WELDON FURLOTTE APPELLANT WELDON FURLOTTE APPELANT - and - - et - DR. JOHN J. MILCZAREK RESPONDENT D r JOHN J. MILCZAREK INTIMÉ Furlotte v. Milczarek, 2012 NBCA 24 Furlotte c.

Milczarek, 2012 NBCA 24 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Turnbull The Honourable Justice Robertson CORAM : L’honorable juge en chef Drapeau L’honorable juge Turnbull L’honorable juge Robertson Appeal from a decision of the Court of Queen’s Bench: April 18, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 18 avril 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 105 Décision frappée d’appel : 2011 NBBR 105 Preliminary or incidental proceedings: Court of Queen’s Bench: 2010 NBQB 247 Court of Appeal: 2011 NBCA 95 Procédures préliminaires ou accessoires : Cour du Banc de la Reine : 2010 NBBR 247 Cour d’appel : 2011 NBCA 95 Appeal heard: January 25, 2012 Appel entendu : Le 25 janvier 2012

Judgment rendered: January 25, 2012 Jugement rendu : Le 25 janvier 2012 Counsel at hearing: For the appellant: No one appeared For the respondent: John C. Gillis Avocats à l’audience : Pour l’appelant : Personne n’a comparu Pour l’intimé : John C. Gillis THE COURT The appeal is dismissed with costs. LA COUR L’appel est rejeté avec dépens. The following is the judgment delivered by THE COURT (Orally) [ 1 ] On July 9, 1997, the appellant, Weldon Furlotte, was injured in a two-vehicle collision. He subsequently brought an action for compensatory damages against the other driver. During the discovery process, Mr.

Furlotte was medically examined, at the instance of the defendant, by Dr. John M. Milczarek. Following the examination, Dr. Milczarek prepared a written report setting out, inter alia , his observations as well as his diagnosis and prognosis, all in accordance with Rule 36 of the Rules of Court (“Medical Examination of Parties”), and in particular Rule 36.07. Sometime later, Dr. Milczarek produced an updated report. Copies of the original and the update were provided to Mr. Furlotte. [ 2 ] In the initial report, Dr. Milczarek expressed opinions regarding Mr.

Furlotte’s pre-existing medical problems and the nature and severity of the injuries he likely sustained in the July 9, 1997 accident. He confirmed those opinions in the updated report. At trial, the judge marked the two reports as exhibits, without any objection from Mr. Furlotte, and Dr. Milczarek gave oral testimony during the course of direct and cross examination. While Mr. Furlotte argued the opinions expressed in the reports unfairly downplayed his accident-related problems, it is apparent from the trial judge’s reasons for judgment that he was satisfied they were well founded (see Furlotte v.

Elward , 2010 NBQB 247, 362 N.B.R. (2d) 365 ). On appeal, this Court rejected Mr. Furlotte’s challenge to the trial judge’s description of the accident-related injuries and his assessment of damages. In fact, the Court reduced the damages awarded to Mr. Furlotte (see Furlotte v. Elward , 2011 NBCA 95 , 379 N.B.R. (2d) 199). [ 3 ] Before the assessment of damages, Mr. Furlotte commenced an action against Dr.

Milczarek, seeking, inter alia , aggravated damages and punitive damages for producing medical reports that, in the view expressed in the Statement of Claim, “falsely” reported his history of pre-existing medical problems, unjustifiably “made it look like [he] would have become disabled with pain, even if the accident did not happen” and “[fraudulently misrepresented] the injuries suffered by [him] in the motor vehicle accident […] by not even considering other and more likely causes which he must, through education and training, have been aware of ”.

[4] After filing a Statement of Defence in which he denied any wrongdoing and asserted the representations in hisreports were honestly made, without fraud or any intention to defraud or deceive, Dr. Milczarek moved for

summary judgment. Insupport, Dr. Milczarek filed two affidavits in which he confirmed his sole involvement had been as a defence medical examiner pursuantto Rule 36 and that “the statements and opinions contained in [his] reports were made in good faith in discharge of [his] duty in providingan independent medical opinion”. Although Mr. Furlotte filed an affidavit, it provided no admissible factual substantiation for any of theallegations of wrongdoing found in his Statement of Claim. [5] In comprehensive reasons for decision, the motion judge, who, as it happens, also determined Mr. Furlotte’saccident-related injuries and assessed his damages, granted

summary judgment (see Furlotte v. Milczarek, 2011 NBQB 105, 372 N.B.R.(2d) 349). In the motion judge’s view, Dr. Milczarek’s affidavit evidence justified

summary judgment there being no “affidavit inresponse to this motion” (see para. 11) and no doubt as to the outcome at trial. The motion judge explained why Mr. Furlotte’s affidavitwas not legally and factually responsive to the case for

summary judgment: In Cannon v. Lange (1998), (NB CA), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313, Drapeau, J.A., as he then was,said at paragraph 23 of the Quicklaw version: 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 (1995), (ON CA), 21 O.R. (3d) 547 at 557 in a vernacular expression, the respondent ‘mustlead trump or risk losing.’ It will rarely be sufficient for the respondent to promise that evidence, which is admissible pursuant to Rule39.01(4), will be produced at trial: absent a compelling explanation, the respondent is required to produce admissible evidence whichwill prevent a conclusion that the action or defence is bereft of merit. I have no doubt that, where the ends of justice require, the courtwill allow all appropriate accommodations including leave to file further affidavit evidence.

Cannon v. Lange also comments at paragraphs 18, 19 and 22: 18 Stratton C.J.N.B., writing for a unanimous Court, articulated the test in the oft-quoted case of Ripulone v. Pontecorvo (1989), (NB CA), 104 N.B.R. (2d) 56 at p. 63. He held: [13]

Summary judgment should be granted only when there is no reason for doubt as to what the judgment of the court should be if thematter proceeds to trial. The moving party’s case must be unanswerable. 19 This Court has been consistent in its application of the test. The Ripulone formula is faithful to the wording of Rule 22.04 and thespirit of Rule 22: I see no reason to change its language. ... 22 In dealing with any motion for

summary judgment, the court must undoubtedly take a hard look at the pleadings and the evidence todetermine whether there is truly some merit to the action or defence, or part thereof. The court’s ability to do so will necessarily dependon the nature and quality of the evidentiary record which the parties can place before it. In some cases, perhaps not this one, theevidentiary constraints imposed by Rules 22 and 39.01(4) will make a judgment without trial inappropriate. […] At paragraph 14 of the Statement of Claim, Mr. Furlotte suggests that Dr.

Milczarek fraudulently misrepresented his injuries because hedid not consider other or more likely causes of Mr. Furlotte’s injuries. In argument, he suggests Dr. Milczarek fabricated evidence. Thereis no affidavit evidence indicating what other causes Mr. Furlotte is referring to. When I consider the pleadings and Drapeau J.A.’scomments in Cannon v. Lange, I believe the failure to provide an affidavit, with admissible evidence as to what Dr. Milczarekfraudulently failed to consider or what he fabricated, with the required specificity, leads to the conclusion that Mr.

Furlotte did not “puthis best foot forward; nor lead trump”. [paras. 12-16]

[6] Following judgment, and at the request of Mr. Furlotte, the motion judge reconsidered his decision. In theresult, he corrected a few minor and obvious misstatements in his reasons for decision. Issue is not taken with the judge’s authority tocorrect those slips. [7] Mr.

Furlotte appeals, contending the motion judge entirely overlooked his affidavit, erred in law by refusingto reconsider his dismissal of the action after it was “brought to his attention that he overlooked the evidence of the appellant” and failedto consider the allegations found in his Statement of Particulars. [8] Having carefully considered the record, we are satisfied the trial judge considered Mr. Furlotte’s affidavit, butcorrectly concluded it did not constitute a legally valid response to the motion and Dr. Milczarek’s affidavit evidence. Theuncontradicted evidence is that Dr.

Milczarek acted in good faith and competently in discharging his responsibilities pursuant to Rule 36.In our view, the motion judge was entitled to conclude, on the basis of the admissible evidence placed before him, that there was “nomerit to the action” (see Rule 22.01(3) and Cannon v. Lange (1998), (NB CA), 203 N.B.R. (2d) 121, [1998] N.B.J.No. 313 (C.A.) (QL)). That being so, we need not decide whether the Statement of Claim failed to disclose “a reasonable cause ofaction” within the meaning of Rule 23.01(1)(b) (see Village of Saint-François de Madawaska v.

Nadeau Poultry Farm Limited andMaple Lodge Farms Limited, 2011 NBCA 55, [2011] N.B.J. No. 197 (QL), paras. 20-22). [9] For the reasons adumbrated above, we dismiss the appeal with costs, which are fixed at $2,500.00. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK _____________________________________ WALLACE S. TURNBULL, J.A. _____________________________________ J.T. ROBERTSON, J.A.