COURT OF APPEAL FOR ONTARIO

CITATION: Hodutu v. Bulger, 2015 ONCA 160

DATE: 20150311

DOCKET: C59287

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Mary Hodutu

Plaintiff (Appellant)

and

Dr. Joseph Bulger, Dr. Bohdan Kryshtalskyj, Dr. Karl Lederman, Dr. Jolanta Maj, Dr. John Kennedy, Dr. Jack Zosky, Dr. Andy Wong, Dr. Giovanni Delevadova, Dr. Paul Hu, Dr. Carmen Petrikowski, Dr. David Rawson and Dr. Victor Moncarz

Defendants (Respondents)

Marko Djukic, for the appellant

Esther Nwator, for the respondents

Heard and released orally: March 3, 2015

On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated March 5, 2014.

ENDORSEMENT

[1] This is an appeal from the order of Mew J. granting the respondents’ motion to strike the appellant’s statement of claim on the basis that the applicable limitation period had expired.

[2] The respondents are dental surgeons who provided services to the appellant from 1998 to June 2006.

[3] The appellant claimed that dental implants inserted by the respondents caused her pain and infections. She says in her statement of claim that her pain ceased when the implants were removed in June 2006. The appellant commenced an action against the respondents on February 5, 2013, alleging professional negligence and medical malpractice.

[4] The respondents brought a motion to strike the appellant’s statement of claim asserting, among other things, that the claim was statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[5] The motion judge found that the applicable limitation period is, depending on the application of the transition provision in s. 24 of the Limitations Act, 2002, either one or two years from the date the appellant knew or ought to have known that she had a claim.

[6] He noted that there is a rebuttable presumption under the Limitations Act, 2002 that the limitation period starts to run when the impugned acts or omissions occur. In these circumstances, this would be the day or days that she received the dental services. In respect of those claims subject to the previous legislation, if her claim was discovered before January 1, 2004, she would be out of time and if it was not discovered by that date, the presumption in the new Act would apply.

[7] The motion judge further found that there was no evidence to support the commencement of the limitation period from a date later than the date that she received the services she now impugns. In fact, the appellant wrote to one of the respondents on August 24, 2006 informing him that his work was faulty and requesting compensation. The appellant’s claim was struck without leave to amend because the motion judge determined that it was commenced nearly five years after the latest presumptive expiry of the limitation period.

[8] The appellant submits that the motion judge failed to properly consider the issues of discoverability and fraudulent concealment. Further, she submits that he erred in not granting her leave to amend her statement of claim.

[9] We would not give effect to any of these grounds of appeal.

[10] The appellant’s argument that she did not discover her claim in June 2006 is contradicted by her own pleadings which state that her pain ceased when the implants were removed in June 2006, and by the August 2006 letter to one of the respondents.

[11] There is also no evidence to support the appellant’s allegation of fraudulent concealment and this issue was not raised before the motion judge.

[12] Finally, there was no basis to grant leave to amend the statement of claim because the claim was statute barred.

[13] The appeal is dismissed.

[14] Costs in the amount of $5,000, all inclusive are payable by the appellant to the respondents.

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”