Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240710 DOCKET: COA-23-CV-0958
Roberts, Miller and Gomery JJ.A.
BETWEEN
Sharon Shyh Ang Plaintiff (Appellant)
and
Simon Lin Defendant (Respondent)
Sharon Shyh Ang, acting in person Eric S. Baum, for the respondent
Heard: June 27, 2024
On appeal from the order of Justice Robert Charney of the Superior Court of Justice, dated July 31, 2023, with reasons reported at 2023 ONSC 4446.
Reasons for Decision
Overview
1The appellant appeals from the dismissal of her action for dental negligence against the respondent. The essence of her claim is that the respondent allegedly administered an amount of anesthetic in excess of the recommended dosage causing her serious injuries and that he caused damage to the appellant’s teeth and gums in the vicinity of the implant site that was being treated.
2The appellant submits that the motion judge erred in granting summary judgment. She argues that there was procedural unfairness because she was not allowed to examine the respondent or his standard of care expert, Dr. Allan Katchky, and because of the respondent’s failure to produce documents and disclose the amount of the anesthetic administered to her. She contends that there was conflicting evidence about the amount of anesthetic administered in Dr. Katchky’s reports that raised a genuine issue requiring a trial. She says that the motion judge erred in failing to provide adequate reasons for rejecting her evidence and the evidence of her expert, Dr. David Chen.
3We are not persuaded that there was any procedural unfairness or that the motion judge made any reversible errors.
Analysis
4The appellant was given an opportunity to cross-examine Dr. Katchky, which she did not do, examine the respondent by way of written questions, and received productions before the motion for summary judgment.
5The motion judge reviewed and applied the relevant governing principles concerning motions for summary judgment, including the court’s enhanced fact-finding powers under r. 20.04(2.1) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, and concluded, correctly in our view, that he could determine this matter on the basis of the record filed and that there were no genuine issues requiring a trial.
6We disagree that there were any conflicting factual issues that required a trial for determination. The motion judge had to determine the straightforward factual issues of what the amount of anaesthetic was actually administered to the appellant and whether the respondent caused the alleged damages claimed by the appellant. The motion judge preferred the respondent’s uncontroverted evidence about the amount of anesthetic administered, namely, two cartridges totalling 3.6 cubic centimetres/millilitres, and that he did not damage the appellant’s teeth and gums or cause any damage to the appellant. The motion judge noted that the appellant had not met her burden to prove that the damages were caused as alleged. In particular, she produced no admissible evidence from the other dentists who subsequently saw her that there were injuries to her teeth and damage to her gums.
7The motion judge explained why he preferred the expert evidence of Dr. Katchky that the anesthetic administered by the respondent was well below the recommended dosage and could not have caused the damages alleged by the appellant. We do not agree that Dr. Katchy’s opinions are inconsistent. He correctly stated in all his reports that the amount of anesthetic administered by the respondent was 3.6 millilitres in two cartridges. The one reference to 76 milligrams in the course of his review in his third report of the dental literature provided by the appellant is clearly a typographical error. In any event, his opinion never varied that the amount of anesthetic administered by the respondent was below the recommended dosage and that the respondent did not fall below the required standard of care.
8The motion judge rejected Dr. Chen’s evidence because he was not a dentist practising in Ontario nor had he provided a sworn affidavit attesting to his opinions. These were conclusions that the motion judge was entitled to reach.
Disposition and Costs
9As a result, we dismiss the appeal.
10The respondent is entitled to his partial indemnity costs of the appeal from the appellant in the all-inclusive amount of $8,000.
“L.B. Roberts J.A.”
“B.W. Miller J.A.”
“S. Gomery J.A.”