Court File and Parties

COURT FILE NO.: CV-15-1370-00 DATE: 2020 04 22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PHYLLIS JOHNSON, Plaintiff/Responding Party AND: DR. SHOBHA RAJANNA, DR. ANTHONY STIRLING and MARGARET DOE Defendants/Moving Parties

BEFORE: Doi J.

COUNSEL: Phyllis Johnson, Self-Represented Monica Tessier, Counsel for the Moving Defendants

HEARD: March 11, 2020

REASONS FOR JUDGMENT

Overview

[1] This is a dental malpractice claim that arises from treatment that the Plaintiff, Ms. Johnson, received from the Defendant, Dr. Rajanna. The claim alleges that Dr. Rajanna improperly treated Ms. Johnson when she extracted her tooth.

[2] The moving Defendants seek summary judgment to dismiss the action in its entirety. They submit that there is no genuine issue for trial because Ms. Johnson has not produced an expert report to support her negligence and malpractice claim in this action.

[3] Ms. Johnson has not delivered expert evidence to support her dental malpractice claim, and the Defendants have adduced their own expert evidence which states that the dental treatment at issue met the expected standard of care. In the circumstances, I find that there is no genuine issue to be tried. The motion for summary judgment is granted and the action is dismissed.

Background

[4] The facts may be briefly stated. On April 2, 2013, Ms. Johnson saw Dr. Rajanna as a walk-in dental patient complaining of pain from a lower left molar. After taking Ms. Johnson's medical history and conducting a dental examination, Dr. Rajanna treated Mr. Johnson by extracting her molar at tooth "3.7" (i.e., her seventh tooth on her lower left jaw quadrant) which reportedly had deep decay and apical periodontitis. After the procedure, Ms. Johnson experienced ongoing numbness to her lip and tongue.

[5] Ms. Johnson later saw another dentist, Dr. Manacki, who gave her a referral to Dr. Omura, an oral and maxillofacial surgeon. After seeing Ms. Johnson, Dr. Omura wrote to Dr. Manacki on November 1, 2013 to report that Ms. Johnson had paraesthesia of the left inferior alveolar nerve. Dr. Omura also reported that he had extracted Ms. Johnson's lower left first molar at tooth "3.6" (i.e., which had been adjacent to the molar that Dr. Rajanna had removed earlier) along with neighbouring necrotic bone for possible osteomyelitis and related periodontitis.

The Litigation

[6] On March 20, 2015, Ms. Johnson issued her statement of claim. The Defendants filed a statement of defence on April 23, 2015, and later delivered an amended statement of defence on March 3, 2016.

[7] On February 25, 2016, the Defendants gave notice of their intention to seek a summary dismissal of the action because Ms. Johnson had not obtained expert evidence to establish that the Defendants had failed to meet the expected standard of care.

[8] Between November 2015 and August 2019, Ms. Johnson was represented or assisted by at least seven (7) different lawyers and/or law firms. She is now a self-represented litigant.

[9] Ms. Johnson's former lawyers communicated with Defendants' counsel on several occasions during this litigation to advise of their respective efforts to obtain an expert opinion to support her negligence claim. However, the Plaintiff did not produce an expert report.

[10] On August 3, 2017, the Defendants delivered a defence expert report by Dr. Richard Speers, D.D.S., dated June 19, 2017. From a review of Ms. Johnson's treatment records and other related materials, including the reporting letter prepared by Dr. Omura, Dr. Speers concluded that the diagnosis, treatment and follow-up care that Dr. Rajanna gave to Ms. Johnson had been appropriate to the circumstances. In Dr. Speers' expert opinion, the dental care and treatment that Ms. Johnson had received met the standard of care expected in Ontario.

The Law

Summary Judgment

[11] After delivering a statement of defence, a defendant may move under Rule 20.01(3) of the Rules of Civil Procedure for summary judgment to dismiss all or part of a statement of claim. The court shall grant summary judgment if satisfied that there is no genuine issue for trial with respect to a claim: Rule 20.04(2)(a).

[12] Summary judgment is a significant alternative model of adjudication that is interpreted broadly and favours proportionality and fair access to the affordable, timely and just adjudication of claims: Hryniak v. Mauldin, 2014 SCC 7 at para 5.

[13] A motion for summary judgment follows a two-step analysis:

1. The court must first determine whether there is a genuine issue requiring a trial based only on the evidence before him or her, without using the fact-finding powers. If there is no genuine issue requiring a trial, then summary judgment must be granted;

2. If there appears to be a genuine issue requiring a trial, the court should decide if the need for a trial can be avoided by using its fact-finding powers under Rules 20.04(2.1) and (2.2) to weigh evidence, evaluate credibility, and draw inferences.

Hryniak at para 66.

[14] An issue should be determined on a motion for summary judgment if the motion affords a process that (i) allows the court to make necessary findings of fact, (ii) allows the court to apply the law to those facts, and (iii) is a proportionate, more expeditious and less expensive process to achieve a just result than going to trial: Hryniak, at para 49.

[15] On a motion for summary judgment, the court may assume that the record contains all the evidence that the parties would present if the matter proceeded to trial, and that the parties have advanced their best case and put forward the evidence on which they rely to make out their case: Sweda Farms Ltd v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras 26-27, affd 2014 ONCA 878, leave to appeal to SCC refused, [2015] SCCA No 97; Byfield v. The Toronto-Dominion Bank, 2012 ONCA 49 at para 10.

Expert Evidentiary Requirement in Malpractice Actions

[16] To pursue the action at trial, a plaintiff in a dental malpractice action is required to produce an expert report to support her claim on the issues of standard of care and causation: Guzzo v. Waite, 2016 ONSC 1654 at paras 49-50, citing Kurdina v. Dief 2010 ONCA 288 at paras 2-3; leave to appeal denied [2010] SCCA No 199; Larman v. Mount Sinai Hospital, 2014 ONCA 923 at para 4; Holguin v. University Health Network, 2019 ONSC 2193 at para 13; Suserski v. Nurse, 2008 ONCA 416 at paras 5-6, leave to appeal denied [2008] SCCA No 298. The plaintiff must produce the expert report towards the beginning of the action: Wolfe v. Lady Dunn Health Centre, 2019 ONSC 190 at para 13. In the face of a defence expert report absolving the defendant of liability, a malpractice claim without supporting expert evidence will inevitably fail and result in the action being dismissed on a summary judgment motion for raising no genuine issue for trial: Suserski at para 5; Wolfe at para 12; Holguin at para 13.

[17] Where the plaintiff in a malpractice action does not produce an expert report in responding to a summary judgment motion, the court may infer that she is unable to obtain one to support her claim: Persaud v. Rzadki, 2014 ONCA 693 at para 4; Guzzo at para 51; Holguin at para 14.

Analysis

[18] A moving defendant seeking summary judgment to dismiss a dental malpractice action must put its best evidentiary foot forward and meet a threshold evidentiary burden by adducing expert evidence to persuade the court that there is no genuine issue requiring a trial: Rule 20.01(3); Sanzone v. Schechter, 2016 ONCA 566 at paras 24 and 31, leave to appeal denied [2016] SCCA No 443. In this case, the moving Defendants delivered Dr. Speers' expert report which opines that the subject dental treatment met the standard of care. As such, the Defendants have met their burden on this summary judgment motion to show no genuine issue requiring a trial.

[19] It is settled that Ms. Johnson must deliver an expert report on the issues of standard of care and causation in order to successfully establish her negligence claim: Guzzo at paras 49-50; Larman at para 4. Without an expert opinion to support her claim, there can be no genuine issue for trial: Suserski at para 5; Wolfe at para 12; Holguin at para 13.

[20] Ms. Johnson brought this action five (5) years ago. Since then, she has been represented by, or has consulted with, a number of different lawyers. On several occasions, her former counsel advised of their intention to obtain an expert report to support her claim. But Ms. Johnson has not produced an expert report.

[21] Ms. Johnson has known about the return of the Defendants' summary judgment motion for quite some time. In submissions, she candidly acknowledged being aware of the requirement for her to deliver an expert report, and described some of her efforts to obtain an expert report that ultimately were unsuccessful. In the circumstances, I am forced to conclude that Ms. Johnson is unable to obtain an expert report to support her claim against the Defendants.

[22] I fully recognize that Ms. Johnson, who is self-represented, has a health issue and currently lacks the assistance of counsel. However, this action was brought on March 20, 2015 and has gone through several lengthy delays as Ms. Johnson engaged a number of different lawyers and law firms. The Defendants are entitled to have this action proceed with reasonable dispatch.

[23] Relying on Dr. Omura's letter of November 1, 2013, Ms. Johnson submits that Dr. Rajanna acted negligently by extracting tooth 3.7 instead of tooth 3.6, which Dr. Omura later extracted due to osteomyelitis and related periodontitis issues. By extracting the "wrong" tooth, Ms. Johnson submits that Dr. Rajanna's negligent act fell within "the clearest of cases" category that raises a genuine issue for trial without requiring supporting expert evidence: Liu v. Wong, 2016 ONCA 366 at para 14, leave to appeal denied [2016] SCCA No 264. However, Ms. Johnson's submission on this point conflicts with Dr. Speers' expert opinion that Dr. Rajanna appropriately extracted tooth 3.7 due to its deep decay and apical periodontitis. Dr. Speers also opines that Dr. Rajanna did not cause the infection that led Dr. Omura to extract tooth 3.6. Moreover, Dr. Omura's letter does not identify any negligence to support Ms. Johnson's claim of negligence. As a result, and absent an expert report to support her theory, I am unable to accept Ms. Johnson's submission that negligence clearly arises on the facts of this case. In arriving at this determination, I am guided by the following reasoning by the Court of Appeal in Liu (at para 14):

Medical malpractice cases are complex - even where they may appear simple to the eye of a layperson - and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard or care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from ''the clearest of cases" the absence of expert evidence in support of the plaintiff's medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

Applying this reasoning, I find this to not be one of the "clearest of cases" given the complexity surrounding the application of clinical dental skills in determining liability which, in my view, cannot properly be ascertained without admissible supporting expert evidence to address the standard of care and causation issues.

[24] Ms. Johnson was required to deliver a supporting expert medical opinion in response to the Defendants' motion for summary judgment: Wolfe at para 13. She had an obligation to put her best foot forward, but did not or could not do so. The absence of expert evidence supporting her malpractice claim is fatal: Liu at para 14. On a motion for summary judgment, the court is entitled to assume that the parties have advanced their best case and put forward the evidence on which they rely to make their case: The Toronto-Dominion Bank at para 10.

Outcome

[25] From the evidentiary record and the parties' submissions, I find that I am in a position to fairly and justly adjudicate this matter: Hryniak at para 66. In view of the Defendants' expert report by Dr. Speers which opined that the dental care at issue met the requisite standard, the absence of expert evidence to support Ms. Johnson's malpractice claim leads me to find that there is no genuine issue for trial: Suserski at para 5; Wolfe at para 12; Holguin at para 13. Accordingly, the Defendants' motion for summary judgment is granted and the action is dismissed.

[26] The Defendants were successful on this summary judgment motion and are entitled to partial indemnity costs fixed in the amount of $12,000.00, inclusive of taxes and disbursements, which I find to be just, proportional and within the range expected of a motion of this nature.

[27] Based on the foregoing, I make the following orders:

1. The motion for summary judgment is granted and the action is dismissed; and
2. The Plaintiff shall pay the Defendants costs in the amount of $12,000.00, inclusive of taxes and disbursements.

[28] In the circumstances of the COVID-19 pandemic emergency, these reasons are deemed to be an order of the court that is operative and enforceable from the date of release without a signed or entered formal order. [^1] Should they wish, the parties may later submit a formal order for entry with the court once operations resume, although these reasons remain an effective and binding order from the date of release.

Doi J. Date: April 22, 2020

[^1]: Given the serious health risks posed by the COVID-19 pandemic, the regular operations of the Superior Court of Justice have been suspended since March 15, 2020: Notice to the Profession for Civil and Family Matters by the Chief Justice of the Superior Court of Justice dated April 2, 2020, at https://www.ontariocourts.ca/scj/notice-profession-civil-family.