Court File and Parties
CITATION: Damallie v. Ping, 2014 ONSC 5562
DIVISIONAL COURT FILE NO.: 555/13
DATE: 20140924
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, HARVISON YOUNG AND GRACE JJ.
BETWEEN:
CLIFTON ANTHONY DAMALLIE
Plaintiff
(Appellant)
– and –
PEONY PING
Defendant
(Respondent)
In Person
Heather A. M. Hughes, for the Defendant (Respondent)
HEARD at Toronto: September 24, 2014
Reasons for Judgment
C. HORKINS J. (orally)
[1] The appellant, Clifton Anthony Damallie brought a motion before Justice Sachs on January 8, 2014 for an order extending his time to appeal the order of the Small Claims Court that dismissed his claim. Justice Sachs dismissed the appellant’s motion.
[2] Mr. Damallie brings a motion before this Court pursuant to s. 21(5) of the Courts of Justice Act. He seeks an order setting aside the order of Justice Sachs dated January 8, 2014 and extending his time to appeal.
[3] Mr. Damallie was a dental patient of the respondent, Dr. Peony Ping from June 2011 to March 2012. On September 17, 2012, Mr. Damallie commenced an action in the Small Claims Court against the respondent for alleged injuries arising out of Dr. Ping’s treatment. Dr. Ping denied the allegations in her defence.
[4] The law is clear that a party alleging medical malpractice must produce an expert opinion in support of the allegations, identifying the applicable standard of care, showing that the standard of care was not followed and that this failure caused the alleged injuries.
[5] The Small Claims Court issued two orders directing Mr. Damallie to produce such an expert report. On October 10, 2012, Justice Thompson ordered him to serve and file a “report from a dentist.” On November 22, 2012, Deputy Judge Skolnik adjourned the settlement conference so that Mr. Damallie could comply with the order of Justice Thompson.
[6] When the parties attended the next settlement conference before Deputy Judge Skolnik on February 19, 2013, Mr. Damallie had still not served and filed his expert report. A trial was set for August 12, 2013.
[7] On May 14, 2013, Dr. Ping served a motion to strike out Mr. Damallie’s claim under the Small Claims Court rules. At the hearing of this motion on May 23, 2013, the Court adjourned the motion to July 4, 2013 and ordered Mr. Damallie to “provide a report from another dentist commenting on Dr. Ping’s care.”
[8] Mr. Damallie subsequently served and filed a letter from Dr. Arash Ghassabei dated June 5, 2013. This letter did not comment on the standard of care, whether the dentist’s treatment met the standard of care or whether the dentist’s treatment had any causal connection to Mr. Damallie’s alleged injuries.
[9] Dr. Ping’s motion was heard on July 4, 2013. Mr. Damallie did not attend at the hearing. Deputy Judge Shapiro considered the content of Dr. Ghassabei’s letter and dismissed Mr. Damallie’s claim with the following reasons:
Although a letter was received from a Dr. Ghassabei dated June 5, 2013, it does not comment on the standard of care required of Dr. Ping nor whether Dr. Ping met that standard of care.
[10] Mr. Damallie then brought a motion before Deputy Judge Ashby on October 10, 2013 seeking to challenge the order of Deputy Judge Shapiro. Judge Ashby correctly stated that there was no jurisdiction to hear the motion and Mr. Damallie’s only recourse was an appeal to the Divisional Court in Toronto.
[11] Since Mr. Damallie was out of time for commencing an appeal to the Divisional Court, he brought a motion before Justice Sachs for an order extending the time to file a notice of appeal. Justice Sachs dismissed this motion. Mr. Damallie now appeals the order of Justice Sachs to this Court.
[12] Mr. Damallie states that he has two grounds of appeal. First, that his “evidence is in good standing” and second, his “case should have a fair chance to proceed onto trial.”
[13] On a motion pursuant to s. 21(5), the standard of review is correctness on matters of law and palpable and overriding errors on matters of fact or matters of mixed fact and law.
[14] While Mr. Damallie does not allege that Justice Sachs made any errors of law, this panel finds that Justice Sachs correctly stated the law and applied it to the facts before her on the motion. Justice Sachs correctly stated the law applicable to medical malpractice claims. Specifically, a party who alleges medical malpractice must produce an expert report in support of the allegations that the dentist fell below the requisite standard of care in her treatment of the patient. Failure to produce such a report “is an appropriate basis for finding that no genuine issue has been raised that requires a trial and that therefore a motion for summary judgment seeking to dismiss the action should be granted.” (see Ryabikhina v. St. Michael’s Hospital, 2011 ONSC 1884, [2011] O.J. No. 1779 at paras. 26 – 31).
[15] Dealing with Mr. Damallie’s motion to extend the time to file a notice of appeal, Justice Sachs correctly stated the well settled law in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15:
The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:
(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;
(b) the length of, and explanation for, the delay in filing;
(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and
(d) the merits of the proposed appeal.
[16] On the motion before Justice Sachs, Dr. Ping conceded that Mr. Damallie had formed a bona fide intention to appeal. The motions judge noted that Mr. Damallie had been given many opportunities to serve and file the required expert report and failed to do so. He had not filed an expert report by the time his motion was heard before Justice Sachs and he did not see why such a report was necessary. Given the law requiring this expert report, Justice Sachs found that the “justice of the case required that the motion for time to extend the time for filing a notice of appeal, be dismissed.”
[17] Justice Sachs articulated and applied the test applicable to Mr. Damallie’s motion to extend his time to appeal. There are no palpable and overriding errors on matters of fact or matters of mixed fact and law.
[18] While Mr. Damallie states before this Court that his “evidence is in good standing”, this is not accurate. He has never served and filed the requisite expert report. Mr. Damallie advised the Court today that it is not possible to get one dentist to criticize another dentist’s treatment but as Justice Sachs correctly noted, this is a necessary requirement in a professional negligence claim.
[19] Today, Mr. Damallie presented the Court with a letter dated February 10, 2014 from Liberty Square Dental Group. This is fresh evidence and was objected to by Dr. Ping. We refused the applicant’s request to file this letter.
[20] In any event, this letter from Liberty Square Dental Group records the dental treatment that Mr. Damallie has received from Liberty Square Dental Group. It is not an expert report that Mr. Damallie requires to proceed with a claim against the dentist. It does not address the standard of care, the breach of such standard or the causation between such breach and alleged injuries.
[21] It is not a ground for Mr. Damallie to say that his case should be given a fair chance to proceed onto trial. He is required to comply with the law like all other litigants. Mr. Damallie was given every opportunity to do so and did not.
[22] Lastly, Mr. Damallie has requested that we set aside the costs order of Justice Sachs. We have concluded that there is no basis for setting aside this costs order. A costs order is highly discretionary and in any event, the costs order was reasonable.
[23] In conclusion, for the reasons that we have given, Mr. Damallie’s motion is dismissed.
[24] The panel has had an opportunity to consider the information that Mr. Damallie provided on the issue of costs. We acknowledge that he receives benefits from ODSP and is unemployed. We have considered the issue of costs and conclude that a fair and reasonable costs order in the amount of $500 will be issued. We order Mr. Damallie to pay Dr. Ping’s costs of $500 all inclusive and we provide him with three months to pay this amount.
C. HORKINS J.
HARVISON YOUNG J.
GRACE J.
Date of Reasons for Judgment: September 24, 2014
Date of Release: September 26, 2014
CITATION: Damallie v. Ping, 2014 ONSC 5562
DIVISIONAL COURT FILE NO.: 555/13
DATE: 20140924
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, HARVISON YOUNG AND GRACE JJ.
BETWEEN:
CLIFTON ANTHONY DAMALLIE
Plaintiff
(Appellant)
– and –
PEONY PING
Defendant
(Respondent)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: September 24, 2014
Date of Release: September 26, 2014