Court of Appeal for Ontario

Citation: Dickie v. Minett, 2014 ONCA 265
Date: 2014-04-03
Docket: C56191

Before: Rosenberg, Gillese and Strathy JJ.A.

Between:

Robert Dickie and Karen Dickie
Plaintiffs (Appellants)

and

Charles Minett
Defendant (Respondent)

Counsel:
Patrick G. Morris, for the appellants
Andrew A. Lundy, for the respondent

Heard: March 31, 2014

On appeal from the judgment of Justice Thomas A. Bielby of the Superior Court of Justice, dated September 14, 2012, with reasons reported at 2012 ONSC 4474.

Endorsement

[1] The appellants appeal from the judgment of Bielby J. dated September 14, 2012, dismissing their action in negligence. They submit that the trial judge erred in failing to find that the respondent was negligent in the extraction of Mr. Dickie’s wisdom tooth, referred to as tooth number 48.

[2] Their principal argument is that an inference of negligence arises from the fracture of Mr. Dickie’s jaw during the course of the surgery. They say this calls for an explanation from the respondent, and that the respondent’s reliance on his clinical notes and his usual practice was insufficient to demonstrate the exercise of reasonable care.

[3] The appellants’ submission amounts to res ipsa loquitur without using that term. That doctrine was put to rest in Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424. While there remain cases in which circumstantial evidence can raise an inference of negligence which calls for an explanation from the defendant, the appellants have not persuaded us that the trial judge erred in concluding that the evidence did not reach that threshold in this case.

[4] The trial judge declined to draw an adverse inference from the respondent’s lack of independent recollection in relation to the extraction of tooth 48, which occurred some six years prior to the trial. He was entitled to accept the respondent’s explanation for his lack of recollection and to rely on his evidence of how he performed the extraction, based on his post-operative notes and his invariable practice.

[5] There was expert evidence, accepted by the trial judge, that a patient’s jaw could break during surgery in spite of the use of reasonable care. It was a known, albeit very rare, complication of such surgery. Here, there were a number of acknowledged risk factors, including the loss of almost 80 percent of the jaw bone structure in the area of the tooth due to severe periodontal disease. The tooth was deeply impacted and fused to the bone.

[6] The trial judge accepted the evidence of the respondent’s expert that he met the standard of care and rejected the appellants’ expert evidence. He gave detailed and cogent reasons for doing so, citing the failure of the appellants’ expert to adequately consider the risk factors involved in this particular extraction. In the absence of palpable and overriding error, there is no basis on which to interfere with his findings based on his assessment of the evidence.

[7] The appeal is therefore dismissed, with costs to the respondent in the amount of $15,000, inclusive of all applicable taxes and disbursements, as agreed by the parties.

“M. Rosenberg J.A.”
“E.E. Gillese J.A.”
“G.R. Strathy J.A.”