Ontario Court of Appeal rejects extension to appeal medical malpractice case due to lack of merit

The Ontario Court of Appeal dismissed a motion to extend the time for appealing a medical malpractice lawsuit, finding the proposed appeal without merit and emphasizing the importance of finality in litigation.

The dispute in Liu v. Chan, 2024 ONCA 699, began in 2015 when the appellant was diagnosed with prostate cancer, prompting the surgeon to perform a prostate removal surgery. Initially, the appellant consented to the procedure based on medical test results, including Prostate-Specific Antigen (PSA) levels and biopsy reports, which indicated the presence of cancer. However, after the surgery, the appellant came to believe that he never actually had cancer. He alleged that the surgeon had fraudulently manipulated the results of his medical tests, including blood tests and biopsy reports, to falsely indicate a cancer diagnosis. The appellant argued that this manipulation led to an unnecessary and invasive surgery, causing him significant harm. Based on these claims, he filed a lawsuit against the surgeon, accusing him of fraud, fraudulent misrepresentation, battery, and other related causes of action.

In 2024, both parties brought summary judgment motions, and the Ontario Superior Court dismissed the claims, ruling in favour of the surgeon. The court ordered the appellant to pay over $70,000 in costs, finding that the lawsuit had unnecessarily complicated the proceedings.

After the judgment, the appellant sought an extension to file an appeal, arguing that they mistakenly believed the 30-day appeal period began with the court’s decision on costs rather than the original ruling. The appellant also claimed that the motion judge made errors and that there was bias in the expert testimony provided.

The Court of Appeal found no legal errors or bias and determined that the appellant’s proposed appeal was "completely devoid of merit." The court noted that the appellant presented no evidence of fraud and was essentially trying to reargue factual matters rather than identify any errors of law. The court further emphasized the importance of finality in litigation, stating that the justice of the case did not support reopening the matter.

Although the delay in filing the appeal was relatively short and unintentional, the court ruled that these factors were outweighed by the proposed appeal's lack of merit. Ultimately, the court dismissed the motion for an extension of time.