Introduction

[1] In this action, the Plaintiffs claim the Defendant/Moving Party, Dr. Keleshian, was negligent in his treatment of [the Plaintiff/Responding Party] Claudia Sytsma’s teeth which resulted in sustained tooth pain and a geographic tongue injury for which she seeks damages. She claims the procedures he undertook were unnecessary, and performed negligently. The dental work was performed in 2006.

[2] The Defendant/Moving Party, Dr. Keleshian, seeks leave to appeal from the order of Stewart J. dated July 24, 2015. In that order, Stewart J. refused the Defendant/Moving Party’s motion for partial summary judgment to dismiss the Plaintiff’s claim for damages arising out of the alleged “geographic tongue” injury.

[3] In her July 24, 2015 order, Stewart J. held that,

I do not consider it to be appropriate or just to parse out any particular issue of causation in order to determine on this record that it should not be dealt with at trial.

Rather, I consider that all relevant issues of damages which necessarily engage questions of causation are matters which ought to be heard by and adjudicated upon by the trial judge. If some aspects of the claimed damages, or all of them, cannot be sustained by the evidence, including all admissible expert evidence, then the trial judge may make the necessary determinations.

[4] The Moving Party claims,

a. this decision conflicts with decisions by the Supreme Court of Canada and the Court of Appeal,

b. the motions judge mistakenly reversed the liability analysis by stating that damages necessarily engage questions of causation,

c. there is good reason to doubt the correctness of her decision as there was no evidence adduced regarding the cause of the geographic tongue injury, and

d. the proposed appeal is important.

[5] The Moving Party claims, “There is no mention in [the Plaintiff/Responding Party] Mrs. Sytsma’s affidavit that the treatment provided by [the Defendant/Moving party] Dr. Keleshian caused her, “geographic tongue” injury. She only mentions tooth pain sensitivity. … There was no admissible expert opinion evidence … to support a finding that the treatment provided by Dr. Keleshian caused Mrs. Sytsma’s ‘geographic tongue’ injury.”

[6] The Defendant/Moving Party correctly asserts that a Defendant’s misconduct must be causally connected to the Plaintiff’s harm in order for the Defendant to be liable.

[7] The Defendant/Moving Party suggests that because there is no basis from which to conclude that Dr. Keleshian’s actions caused or contributed to Mrs. Sytsma’s ‘geographic tongue’ injury, there is no genuine issue for trial and partial summary judgment should have been granted to dispose of that claim.

Is there Evidence in Dr. Pavone’s Reports that Dr. Keleshian’s Treatment caused Mrs. Sytsma’s ‘geographic tongue’ injury?

[8] Dr. Maris Pavone, the expert dentist and oral pathologist engaged by the Plaintiff/ Responding Party, noted in her letter to a referring physician on June 20, 2008 that,

“I saw Mrs. Sytsma on June 13, 2008 when she told me she had been experiencing tingling, dull throbbing and numbness of her tongue for approximately 1 year. She also noticed ‘white spots’ on the gingiva.

On examination I found an erythematous area on the tongue dorsum with gross accumulation of plaque. … The clinical signs and report symptoms suggest symptomatic erythema migrans also known as geographic tongue.”

[9] On October 26, 2009, she stated that,

“I first saw Mrs. Sytsma on June 13, 2008 when she told me she had been experiencing tingling, dull throbbing, numbness and a decrease in taste sensation of the tongue since February 2006. She also reported an intermittent and recurrent coating on the tongue and white spots on the gingiva.

Mrs. Sytsma reported Nilstat rinse decreased and occasionally resolved the accumulations on her tongue and some of the tongue symptoms but only while using Nilstat rinse. As the Nilstat rinse relieved the signs and symptoms Mrs. Sytsma concluded she had developed a chronic fungal infection.

On examination I found a large accumulation of keratin and plaque over the tongue dorsum. There was mild erythematous patch on the mid tongue dorsum.

My initial impression of the reported symptoms was symptomatic erythema migrans, also known as geographic tongue, with accumulation of keratin and plaque,

I saw Mrs Sytsma for follow up on July 18, 2008.

My impression of the tongue signs and symptoms was existing erythema migrans becoming symptomatic secondary to the stress associated with long standing 18 months, sensitivity of the teeth in the right posterior maxilla and mandible after replacement of the amalgam restorations with composite resins on February 8, 2006.

My impression of the clinical signs and symptoms in Mrs. Sytsma’s case is symptomatic erythema migrans of the tongue secondary to stress mainly psychological in response to the long standing dental sensitivity or pain after replacement of the amalgam restorations in the right posterior maxilla and mandible. The tongue symptoms were exacerbated by a habit of decreased tongue movement, in order to minimize tongue trauma and soreness, resulting in a decrease in natural shedding of keratin from and a new accumulation of keratin coating on the tongue dorsum. Thickened keratin enhanced plaque accumulation which further exacerbated the tongue symptoms causing Mrs. Sytsma to maintain the habit of minimal tongue movement.” (emphasis added)

[10] In her affidavit dated April 18, 2014, Dr. Pavone attached two copies of a report she prepared on February 10, 2014. In the February 10 report she states that,

“Dr. Keleshian was not maintain (sic) the standard of care in dentistry with respect to the replacement of dental restorations in the replacing four (4) (sic) of Mrs. Sytsma’s permanent amalgam dental restorations on February 8, 2006.

Mrs. Sytsma reported that soon after amalgam restoration in the teeth of her right maxilla and mandible were replaced with composite resin restoration she began experiencing sensitivity in these teeth to temperature and chewing. The sensitivity continued for approximately 18 months. Also she experienced tongue soreness and accumulation of plaque on the tongue.” (emphasis added)

Test for Leave to Appeal

[11] The test for granting leave to appeal under Rule 62.02(4) is well-settled. Leave should not be easily granted and the test to be met is a very strict one.

[12] There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[13] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[14] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[15] I do not see that in this case there is a “conflicting decision” with respect to a matter of principle such that leave should be granted nor does the appeal raise matters of such importance that, in my opinion, leave should be granted.

[16] Contrary to the assertion made by the Defendant/Moving Party, Stewart J.’s decision does not provide that a motion for summary judgment should be refused even where there is no genuine issue for trial.

[17] Stewart J. held that all of the problems that arose after the dental work by the Defendant should be considered by the trial judge to see whether and to what extent they were caused by the Defendant’s actions and that it was premature to make this determination at this stage of the proceedings. Her decision is not inconsistent with the proposition that partial summary judgment must be granted where there is no genuine issue for trial with respect to the aspect of the claim that is at issue on the motion.

[18] Moreover, it is evident from the excerpts in italics above, that there is a genuine issue for trial as to whether the Defendant/Moving Party’s negligence resulted in the Plaintiff/Responding Party suffering from geographic tongue.

[19] While the evidence in support of the allegation was not in the report attached to Dr. Pavone’s affidavit, it was part of her earlier reports, as noted above. The earlier reports are attached to an affidavit filed by the Plaintiff/Responding Party’s counsel in support of the Claim against Dr. Keleshian. In the earlier reports, Dr. Pavone opined that there were physiological and psychological manifestations of the geographic tongue injury both of which stemmed from the pain following the dental work done by Dr. Keleshian in 2006.

[20] The evidence that the treatment provided by [the Moving Party/Defendant] Dr. Keleshian caused her “geographic tongue” injury was thereby before the court.

[21] Dr. Pavone also filed an affidavit and attached a different report to her affidavit that did not make mention of the alleged “geographic tongue” injury.

[22] However, since Dr. Pavone filed an affidavit and her earlier report was before the court, (and attached as an Exhibit to Mrs. Sytsma’s counsel’s affidavit) Dr. Pavone could have been cross-examined by defence counsel regarding the conclusions in each of Dr. Pavone’s reports.

[23] Finally, there is little or no prejudice to the Defendant as the action will proceed in some form regardless of the outcome of this motion: the same witnesses would be testifying whether all or some of the claims are advanced.

[24] For these reasons, there is no conflicting decision and no matter of such great importance that leave to appeal ought to be granted. The motion for leave to appeal is therefore denied.

[25] No costs are ordered as counsel for the Plaintiff/Responding Party failed to articulate the evidence relied upon in this decision to deny leave to appeal.

Thorburn J.

Date: January 19, 2016

Sytsma v. Keleshian, 2016 ONSC 460

Case Summary

Introduction

Is there Evidence in Dr. Pavone’s Reports that Dr. Keleshian’s Treatment caused Mrs. Sytsma’s ‘geographic tongue’ injury?

Test for Leave to Appeal

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 1