The plaintiff suffered vision loss as a complication of a life-saving cardiac surgery. He commenced an action for damages against the doctor who performed the surgery and the hospital where the surgery was performed. The parties resolved certain issues in the action, and the sole remaining issue was the plaintiff’s allegation that the defendant doctor failed to obtain informed consent before performing the surgery. The defendant doctor brought a motion for summary judgment. The plaintiff argued (among other things) that the applicable test for summary judgment was heightened due to the fact that a jury notice had been served. The motion court granted summary judgment, holding that no reasonable person in the plaintiff’s position would have declined the surgery, even if apprised of the very low risk of vision loss. Justice Di Luca noted that there is split authority and no clear appellate guidance on the issue of whether service of a jury notice raises the bar on the test for summary judgment. Justice Di Luca held that the applicable test for summary judgment does not depend on whether a jury notice has been served, reasoning that Rule 20 does not suggest a different test for cases subject to a jury notice; there is nothing in Hryniak suggesting that the summary judgment test is to be applied on a different standard in jury cases; and there is no right to a trial either with or without a jury under the Rules.
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