The Defendant, an emergency room physician, sought Summary Judgment dismissing the Plaintiff’s claim against him. The Applicant filed an Expert Report which stated that he had met the standard of care of an emergency room doctor practicing in Alberta. The Plaintiff also filed an Expert Report, which stated that the Applicant breached the relevant standard of care.  

Citing Sima v Hui, 2008 ABQB 104, Brooker J. held that Summary Judgment is appropriate where it is plain and obvious that an Action cannot succeed. Brooker J. further held that the initial onus is on the Applicant to demonstrate that there is no genuine issue for Trial. Once this threshold has been met, the onus shifts to the Respondent to establish that the claim has a real chance of success. The Respondent cannot merely rely on allegations in the pleadings or on the possibility that more evidence may be available at Trial. If the Respondent fails to come forward with evidence to prove a meritorious case, Summary Judgment will be granted. In the context of medical malpractice cases, Brooker J. held that there may be an onus on a Respondent to provide expert evidence to support the claim in a Summary Judgment Application.

Brooker J. held that liability could be established against the Applicant if the Respondent could prove on a balance of probabilities that his conduct fell below the appropriate standard of care, which was that of a reasonably competent emergency room physician practicing in Alberta. Brooker J. held that expert opinion proffered on behalf of the Plaintiff, that the Applicant breached the standard of care, was of no weight because the expert had no expertise as to the appropriate standard of care in Alberta. As such, the Respondent had no proper evidence before the Court to support her allegation that the Applicant’s conduct fell below the standard of care. In the face of expert evidence that the Applicant’s conduct met the relevant standard of care, the Respondent’s claim against the Applicant was bound to fail. As such, the Application was allowed and Summary Judgment was granted.