Court File and Parties

CITATION: Coleman v. Singh, 2012 ONSC 7147

DIVISIONAL COURT FILE NO.: 561/12

DATE: 20121217

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DAVID COLEMAN Plaintiff (Responding Party)

AND:

DURJODHAN RAJ SINGH Defendant (Moving Party)

BEFORE: Mr. Justice Lederer

COUNSEL: Gordon A. Meiklejohn, for the Plaintiff (Responding Party) P. John Brunner, for the Defendant (Moving Party)

HEARD: December 10, 2012

ENDORSEMENT

Introduction

[1] This is a motion for leave to appeal the refusal of an order granting summary judgment. The motions judge, relying on Combined Air Mechanical v. Flesch 2011 ONCA 764, concluded that, without a trial, it was not possible to “fully appreciate” when the claim should be taken to have been discovered. Thus, it was not possible to know whether the action was commenced outside the two-year limitation period imposed by the Limitations Act, 2002, S.O. 2002, c. 24 s. 4.

[2] The Limitations Act, 2002 codified the principle that the limitation periods it established would begin to run only when a claim had been discovered. In this case, the plaintiff in the action (the responding party to this motion) has acknowledged that the claim was discovered in December 2004, but argues that, as a result of actions taken by the defendant when they met in February 2005, the “discovery” should be understood to have been erased, negated or set aside.

Background

[3] Between the months of November 1998 and July 2004, the defendant, a dentist, provided the plaintiff with restorative treatment, which included the placement of various crowns on the teeth of the plaintiff. On November 12, 2003, another dentist advised the plaintiff that three of these crowns were deficient. On December 8, 2004, the second dentist told the plaintiff that two more crowns were deficient. This dentist advised the plaintiff that he should ask the defendant to repair the faulty work and, if he refused, to report the defendant to the Royal College of Dental Surgeons of Ontario. Although this issue was in dispute before the motions judge, it was suggested that the plaintiff was also advised to sue the defendant for professional negligence.

[4] On December 15, 2004, the plaintiff wrote a letter to the defendant. In this letter, the plaintiff detailed the deficiencies in the dental treatment, demanded a refund and payment of the expenses incurred to fix the teeth.

[5] On February 5, 2005, the plaintiff met with the defendant and his treatment co-ordinator for the purpose of discussing his complaints. At this meeting and perhaps in a subsequent telephone conversation later that month, the defendant stated that his workmanship was professional and competent, denied any negligence and, told the plaintiff that his ongoing problems with his teeth were caused by a lack of proper dental cleaning and hygiene. Nothing more that was material happened until January 10, 2008 when a third dentist, an associate of the defendant, extracted one of the crowned teeth. This third dentist told the plaintiff that the crown had failed because it did not connect to the margin of the tooth. In May 2008, the plaintiff visited yet another dentist and, on December 28, 2008, this action was commenced.

Analysis

[6] The case centres on when, for the purposes of commencing this action, the limitation period began to run. Was it during December 2004 when the plaintiff was advised that the work of the defendant was faulty and required repair or was the effective running of the limitation period delayed by the actions of the defendant, at the meeting of February 5, 2005, when he explained that the problems being experienced by the plaintiff were the result of his own failure to exercise proper dental hygiene? The case concerns our understanding of the Limitations Act, 2002 and, in particular, the effect of s. 5(2) of that legislation. Section 5(1) of the Act explains the basis on which we are to determine when a claim is taken to have been discovered. This is when, in the normal course, the applicable limitation period begins to run. It says:

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[7] The discovery of a claim pursuant to this section is not immutable. Rather, the effect of s. 5(1) is to create a presumption which can be set aside. This is where s. 5(2) becomes important. It puts the presumption in place, as follows:

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[8] In this case, the plaintiff conceded that, but for his conversations with the defendant in February 2005, he would have discovered his claim by December 2004 when he was advised, by the second dentist, of the problems with the defendant’s work. This is consistent with and confirmed by the letter that the plaintiff wrote to the defendant on December 15, 2012. The decision of the motions judge was that it is not possible to determine, without a trial, whether the presumption of the discovery of the claim in December 2004 was set aside by the assurances of the defendant provided in February 2005.

[9] On this motion for leave to appeal, it is submitted, on behalf of the defendant, that this approach misreads the intent of s. 5(2) of the Limitation Act, 2002. It is said that this improperly creates a circumstance where the discovery of the claim can be erased by subsequent events. It was submitted that the purpose of the exception in s. 5(2) is to permit a plaintiff to adduce evidence with a view towards establishing that the plaintiff did not know of the matters referred to in clause 5(1)(a) of the Act until a date some time after the act or omission on which the claim is based took place. On this basis, once it is accepted that the plaintiff has discovered the claim, the time limits begin to run and, as a matter of law, will not stop.

[10] McSween v. Louis, 2000 5744 (ON CA), [2000] CarswellOnt 1934, 132 O.A.C. 304, 187 D.L.R. (4th) 446 took place before the passage and proclamation of the Limitations Act, 2002. Even so, its findings bear on the current case. The plaintiff was burned during the course of an operation. Most of the blame was being placed on a defective machine or improper use of the machine. Within a day or two of the operation, the plaintiff was seen by the defendant doctor who characterized the burn in a fashion that suggested it had occurred without negligence on his part. The trial judge found that the limitation period began to run with receipt of an expert’s opinion some twenty months later. The Court of Appeal found that the limitation period commenced immediately after the operation. Mr. Justice Goudge dissented. He wrote:

…The mere fact that she had suffered an unexpected injury in surgery was not enough, where the precise cause of the injury was unknown to her and the only indication she had received from the professional involved was that it was due to a defective machine for which the hospital, not the doctor would be responsible.

(McSween v. Louis, supra, at para. 27)

[11] Mr. Justice Goudge based his determination on the proposition that the plaintiff did not discover the claim until after the medical report was received. It was not a case, as here, of the plaintiff discovering the claim and then having that discovery negated by subsequent actions of the defendant. On the other hand, in her reasons, Madam Justice Feldman found that the plaintiff had the information necessary to discover the claim immediately after the operation. The medical report did not assist the plaintiff and, in fact, nothing in the report found its way into the Statement of Claim. What is important insofar as this case is concerned is the observation made by Madam Justice Feldman that, even though the plaintiff had the information required to discover the claim, it was possible that the actions of the doctor, a few days after the operation, could have had an impact on a proper understanding of when the limitation period began to run. She noted:

Had Dr. Louis in some way actively misled the respondent about how the incident occurred, that could well have had the effect of delaying the commencement of the limitation period against him.

(McSween v. Louis, supra, at para. 53)

[12] It may be, as counsel for the applicant suggested, that this comment was obiter dicta (did not bear directly on the case). Nonetheless, it suggests that the Court of Appeal has recognized, at least, the prospect that subsequent actions by the defendant may set aside the earlier presumptions or understandings about a claim that otherwise had been discovered. Whether this is so, whether s. 5(2) of the Limitations Act, 2002 is open to such an interpretation or whether this is a remnant of the common law held over from a time before the discovery principle found its way into legislation, are issues that wait to be determined.

[13] In this case, there was evidence that the dentist told the patient that he had not been negligent and that the work his office had done on the teeth of the patient had been performed competently and professionally. Mr. Justice Perell observed that the plaintiff “appears to have been placated” by what transpired at the meeting that took place in the office of the defendant on February 5, 2005 (see: Coleman v. Singh 2012 ONSC 6148, at paras. 7 and 8). It is said that there is evidence that the dentist told his patient that x-rays taken of his crowns did not disclose any problems. Mr. Justice Perell concluded that “… there is evidence that might be accepted by a trial judge that because of what Dr. Singh told him in February, 2005 all that Mr. Coleman discovered was that his damaged teeth were caused by his own allegedly poor dental hygiene (see: Coleman v. Singh, supra, at para 18). The judge concluded that:

…in the case at bar, Dr. Singh’s alleged insistence that Mr. Coleman was the author of his own misfortune may have gone too far and Mr. Coleman may be able to rebut the discovery of the professional negligence claim against Dr. Singh.

(Coleman v. Singh, supra, at para 21)

[14] It is difficult to imagine that a flat or perfunctory denial of liability by a prospective defendant could have the impact of negating the discovery of a claim. Could it be different if the defendant went further and explained the circumstances in a way that convinced the plaintiff there was no cause of action? As determined by Mr. Justice Perell, the questions raised reflect the need for a trial to fully appreciate “the evidence and issues… required to make dispositive findings” (see: Combined Air Mechanical Services v. Flesch, supra, at para. 51).

[15] There is no reason to doubt the correctness of the decision made on the motion for summary judgment. It is not suggested that Mr. Justice Perell relied on an incorrect principle of law. He relied on what has quickly become an accepted principle in considering motions for summary judgment. Can the issues and circumstances be fully appreciated without a trial? Mr. Justice Perell has applied that principle to the facts as he was required to do. There is no conflicting decision. Counsel for the defendant submitted that there is no case that considers whether the discovery of a claim can be negated by the subsequent actions of the defendant (see: Rule 62.02(4) of the Rules of Civil Procedure).

Conclusion

[16] For the reasons reviewed, the motion is dismissed.

Costs

[17] Pursuant to an agreement between the parties, costs are to the successful party, the responding party (the plaintiff), in the amount of $7,000.

LEDERER J.

Date: 20121217