Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240319 DOCKET: COA-22-CV-0491

Pepall, Sossin and Dawe JJ.A.

BETWEEN

Susan McFadden and David McFadden Plaintiffs (Appellants)

and

David J. Psutka Defendant (Respondent)

Counsel: John Legge, for the appellants Andrew Lundy and Eni Eski, for the respondent

Heard: March 15, 2024

On appeal from the order of Justice Darla A. Wilson of the Superior Court of Justice dated November 3, 2022, with reasons reported at 2022 ONSC 6239.

REASONS FOR DECISION

[1] This is an appeal from the dismissal of the appellants’ motion for leave to amend their claim. The underlying action is a dental malpractice action in which Susan McFadden sued the respondent oral surgeon, Dr. David Psutka, alleging negligence in the treatment provided and surgery undertaken.

[2] At the close of the hearing, we dismissed the appeal for reasons to follow. These are our reasons.

BACKGROUND

[3] The motion judge dismissed the appellants’ motion to amend their claim after finding that the purported amendments constituted new claims, that these claims were statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and that this resulted in prejudice that could not be compensated by costs or an adjournment.

[4] The context underlying this motion involved several attempts by the court to advance the litigation to a trial which were unsuccessful because the appellants missed deadlines and failed to heed the direction of the court with respect to obtaining expert witness reports. The motion judge, who had been case managing the action for more than three years, highlighted that by the time of the motion in September 2022, the litigation had been commenced more than five years earlier, based on dental treatment rendered more than ten years earlier. The statement of claim already had been amended twice.

[5] The motion judge relied on r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that a court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result which could not be compensated for by costs or an adjournment. The motion judge determined that the issues to be decided were (i) whether the proposed amendments merely particularized the claims already advanced against the respondent or whether they constituted a different cause of action, and (ii) if it was the latter, whether granting these amendments would cause prejudice to the respondent that could not be compensated for by an award of costs.

[6] The motion judge noted that a defendant is entitled to know the case it has to meet. The existing claim referred to surgeries alleged to have been negligently performed by Dr. Psutka in 2013 and onwards. The basis on which this claim had been advanced and defended assumed that Susan had already undergone jaw surgery many years earlier to remove her meniscus (a “meniscectomy”) in 1988, that a synthetic implant had been inserted into the joint by a different surgeon, Dr. Dobrovolsky, and that the implant had then been removed by Dr. Psutka in 1991. This history was confirmed at Susan’s examination for discovery.

[7] The appellants, on the basis of a new expert report, now alleged that Susan never had a meniscectomy and implant in her jaw placed by Dr. Dobrovolsky, and therefore that Dr. Psutka was negligent in recommending and proceeding with a 2015 surgery that was premised on her having a medical condition associated with synthetic implants. Not only was this surgery negligently performed, according to the proposed amendments, it was altogether unnecessary.

[8] The motion judge found that the appellants’ wish to amend the pleadings to reflect the new factual matrix laid out in their expert’s report put forth a very different allegation of negligence from the existing pleading that the surgery was done in a negligent fashion. She stated, at para. 38, “[i]n a nutshell, what the [appellants] seek to do with this motion to amend is to fundamentally change the nature of part of the case advanced against Dr. Psutka to conform with the opinion of their expert.”

[9] The proposed amendments to the claim also raised limitation period issues. The appellants argued that this new theory of liability was not known to them until they obtained the expert opinion in December 2021, so it was subject to discoverability. The motion judge rejected this submission, mainly because the expert’s report was rooted in his review of medical records which the appellants had had in their possession, power and control from the outset of the litigation.

[10] The motion judge accepted the respondent’s argument, relying on Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 88 O.R. (3d) 401, that an amendment sought by a plaintiff advancing a new claim which was statute-barred ought not to be permitted and constitutes prejudice. Since the limitation period to advance new claims in negligence had expired, and this constituted non-compensable prejudice, leave to amend to assert such a new claim should be refused. She also found that Dr. Psutka would be prejudiced because he had consented to the dismissal of crossclaims against other medical practitioners whose own actions could be implicated by the appellants’ new theory of liability.

ANALYSIS

[11] In Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, at para. 31, leave to appeal refused, [2021] S.C.C.A. No. 64, this court clarified the standard of review applicable in appeals of decisions which dismiss motions to amend pleadings. The motion judge’s finding that the amended pleadings constitute a new claim is a legal determination, which is subject to the correctness standard of review on appeal, while the motion judge’s finding that the new claim would be statute-barred due to the Limitations Act, and therefore constitutes actual prejudice against the defendant in the action, is a finding of mixed fact and law, and is entitled to deference. Appellate intervention is only warranted where a palpable and overriding error is established.

[12] Rule 26 of the Rules of Civil Procedure states that courts shall grant leave to amend a pleading on such terms as are just, unless prejudice would result which could not be compensated for by costs or an adjournment. However, “although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate”: Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19; see also Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289, at para. 6.

[13] The appellant argues that Dr. Psutka adduced no evidence of actual prejudice, and that the appellants’ proposed amendments are factually intertwined with and provide particulars of existing allegations. According to the appellants, the amendments sought merely enable their claim to proceed to attempt to prove facts that are now apparent because of the expert report, while Dr. Psutka’s position is that the amendments fundamentally change the nature of the claim.

[14] We reject the appellants’ submission. We see no error in the motion judge’s conclusion that the amendments sought created a new claim. Furthermore, the motion judge’s finding of actual prejudice was tied to her conclusion that the amendments raised a new negligence claim that would otherwise be statute barred as outside the limitation period in this case. This finding is entitled to deference. Moreover, the limitation period for the respondent to claim contribution and indemnity had passed.

DISPOSITION

[15] For these reasons, the appeal is dismissed.

[16] The respondent is entitled to costs from the appellants in the amount of $15,000 all-inclusive.

“S.E. Pepall J.A.”

“L. Sossin J.A.”

“J. Dawe J.A.”