Joyce Weinman

The appellant commenced a negligence action against the respondent dentists for substandard dental implant procedures.

The respondents successfully moved for summary judgment, arguing the action was statute-barred under the Limitations Act, 2002.

On appeal, the appellant argued the motion judge erred in applying the discoverability test.

The Court of Appeal dismissed the appeal, finding the claim was discoverable when the appellant's new dentist explained the nature of the problem and advised he would have conducted the procedure differently, which occurred more than two years before the action was commenced.

Following summary judgment dismissing a dental malpractice action on limitation grounds, the court determined the defendants' entitlement to costs.

Applying the Rule 57.01 factors and the overriding principle of reasonableness, the court held the unsuccessful plaintiff should pay costs on a partial indemnity basis.

Although the defendants sought $25,000 all inclusive, the court reduced the amount in light of access to justice concerns and the plaintiff's modest means.

Costs were fixed at $20,000 all inclusive.

The defendants moved for summary judgment dismissing a dental malpractice action on the basis that the claims were commenced outside the two-year limitation period under the Limitations Act, 2002.

The court held that discoverability turned on when a reasonable person in the plaintiff's position knew or ought to have known the material facts necessary to allege negligence, not when formal expert reports were later obtained.

On the evidence, including the plaintiff's ongoing objectively unsatisfactory outcome and a December 13, 2011 discussion with a subsequent treating dentist explaining that the procedure should have been done differently, the court found the claims were discoverable no later than that date.

Because the actions were not commenced until January 2014, they were statute-barred and summary judgment was granted dismissing the action.