Brown v. Wahl et al.^*^
[Indexed as: Brown v. Wahl]
Ontario Reports
Court of Appeal for Ontario,
Cronk, G.J. Epstein and Huscroft JJ.A.
November 16, 2015
128 O.R. (3d) 583 | 2015 ONCA 778
Case Summary
Limitations — Discoverability — Plaintiff commencing negligence action against defendant dentists in January 2014 — Plaintiff's claim discoverable in December 2011 when her new dentist explained her problems with her implants and prosthesis and told her that he would have conducted implant procedure differently — Expert opinion [page584] unnecessary in order for plaintiff to conclude that there was likelihood of negligence by defendants — Action statute-barred.
The plaintiff commenced a negligence action against the defendant dentists in January 2014. The defendants moved successfully for summary judgment dismissing the action as statute-barred. The plaintiff appealed.
Held, the appeal should be dismissed.
When the plaintiff met with a new dentist in December 2011, she was experiencing serious and ongoing problems with the implant and dental prostheses procedures performed by the defendants. He explained to her the nature of her problem and told her that he would have conducted the implant procedure differently. Armed with the facts known to her and the information provided by her new dentist, the plaintiff ought to have known by December 2011 that her dental problems were caused by substandard treatment by one or both of the defendants. An expert opinion was unnecessary in order for the plaintiff to conclude that there was a likelihood of negligence by one or both of the defendants. As the claim was discoverable in December 2011, it was not commenced within the two-year limitation period and was statute-barred.
Cases referred to
Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162; Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 81 C.C.L.T. (3d) 220, 276 O.A.C. 75, 198 A.C.W.S. (3d) 333; Peixeiro v. Haberman, [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117
Statutes referred to
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5(1), (1)(a), (2)
APPEAL from the order of Stinson J., [2015] O.J. No. 951, 2015 ONSC 1328 (S.C.J.) dismissing an action as statute-barred.
Mark H. Arnold and Joyce Weinman, for appellant.
Andrew Lundy, for respondents.
[1] BY THE COURT: -- This is an appeal from the summary judgment granted by the motion judge dismissing the appellant's negligence action against the respondents because it is statute-barred due to the expiry of the two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act").
[2] The appellant raises two main grounds of appeal. First, relying on this court's decision in Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75, she argues that the motion judge erred by failing to apply the test for discoverability [page585] of a negligence claim in a case where, as here, the claim arises from elective cosmetic dental surgery.
[3] Lawless was a medical malpractice case. In describing when the plaintiff knew all the material facts required to discover her claim against the defendant, this court stated, at para. 30:
It was clear to the appellant at this point that she had suffered more than an unfortunate and unsatisfactory outcome. She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible. In other words, the appellant had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent.
[4] The appellant submits that, in the above-quoted passage, the Lawless court established a four-part test for determining when a prospective plaintiff may be said to have known the material facts necessary for bringing a negligence claim against a medical practitioner in a cosmetic surgery action. This test establishes, according to the appellant, that such a claim is discovered by the prospective plaintiff only when he or she knows (i) of the harm alleged; (ii) why it was wrong; (iii) what action is required to correct the wrong; and (iv) who was responsible.
[5] Based on this suggested four-part test, the appellant argues that the motion judge erred by failing to properly or adequately analyze the evidence and apply it to the questions of when the appellant was positioned to determine "why" her dental treatment by the respondents was "wrong" and "what would have to be done to correct it".
[6] We reject this argument.
[7] First, Lawless does not create a new four-part test for discoverability in respect of professional malpractice claims. To the contrary, Lawless confirms, at para. 30, that the test for discoverability is when a prospective plaintiff "had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent". The Lawless court's reference, immediately preceding this comment, to the four factors relied on by the appellant reflects the application of this test to the evidence before the court in Lawless.
[8] That Lawless does not establish a new test for discoverability is further confirmed by this court's comments in Lawless, at para. 23:
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the [page586] defendant. If the plaintiff does, then the claim has been "discovered", and the limitation begins to run: see Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 132 O.A.C. 304 (C.A.).
[9] These statements accord with the well-established test for discoverability described by the Supreme Court of Canada in Peixeiro v. Haberman, [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, at para. 18.
[10] Second, we see no error in the discoverability analysis conducted by the motion judge.
[11] Section 5(1) of the Act provides:
5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[12] Under s. 5(2) of the Act, a claimant is presumed to have known of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[13] The motion judge considered these provisions of the Act and the governing principles regarding discoverability. He expressly addressed this court's decision in Lawless, noting this court's comments, at para. 23, set out above. He went on [at para. 31] to find that
(1) prior to December 13, 2011, when the appellant met with Dr. Singh, her new dentist, she was "experiencing serious and ongoing problems associated with the implant and dental prostheses procedures performed by the [respondents]";
(2) at the December 13, 2011 meeting, Dr. Singh informed the appellant that he would have conducted the procedure differently, and would have used a surgical guide to place the implants in an ideal location, which would enable him to predict where the implants needed to go to achieve ideal anesthetics, speech and function; and [page587]
(3) at the same meeting, Dr. Singh also explained to the appellant the problem with her prostheses and the cause of breakage in her dentures.
[14] These findings of fact were open to the motion judge on the evidentiary record before him. They are unchallenged on appeal. They amply support the motion judge's conclusion that, armed with the facts known to her before December 13, 2011 and the information provided to her by Dr. Singh at their December 13, 2011 meeting, the appellant ought to have known, by that date, that the dental problems she was experiencing were caused by substandard treatment by one or both of the respondents. In short, the appellant knew sufficient facts at the end of her December 13, 2011 consultation with Dr. Singh on which to base an allegation of negligence against the respondents.
[15] This was sufficient to establish that the appellant discovered her claim no later than December 13, 2011 and, consequently, that the limitation period began to run on the same day. The law of discoverability does not require that a prospective plaintiff know the exact extent or type of harm he or she has suffered, or the precise cause of his or her injury, in order for a limitation period to run: Peixeiro, at para. 18. We therefore agree with the motion judge's conclusion that the appellant's actions against the respondents were statute-barred because they were commenced in January 2014, after the expiry of the two-year limitation period under the Act on December 13, 2013.
[16] The appellant also attacks the motion judge's finding that an expert opinion was unnecessary in this case in order for the appellant to conclude that there was a likelihood of negligence of some kind by one or both of the respondents.
[17] Contrary to the appellant's submission, this finding does not collide with the proposition that expert evidence is required to establish breach of a duty of care by a medical professional. There is an important difference between proof of the discovery of a claim for the purpose of the commencement of a limitation period under the Act and proof of the breach of a duty of care. As this court stated in Lawless, at para. 28:
While courts speak of the need to obtain a medical opinion or the need to have access to the medical records, these are not required in all cases. Moreover, a formal written medical opinion is not required -- what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in.
(Citations omitted; emphasis added) [page588]
[18] The motion judge put it this way, at paras. 33-34:
While [the appellant] may have learned additional information about [the respondents'] substandard treatment once she received the expert reports in early 2014, in my view, those reports do not detract from the fact that she had sufficient knowledge to be aware of a breach by December 13, 2011 at the latest. Put another way, I find that the claims were discoverable by that date.
This is not a case in which an expert opinion was necessary for the plaintiff to conclude that there was the likelihood of negligence of some kind. As the cases mentioned above make plain, it is enough for the plaintiff to have prima facie grounds to infer that the defendants caused harm, and certainty of the defendants' responsibility for the act or omission that caused the loss is not a requirement for the limitation period to begin to run.
[19] We agree.
[20] Finally, we note that there is no suggestion that this was an inappropriate case for summary judgment under the principles enunciated in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7. Nor is there any suggestion that the motion judge exceeded his authority on the summary judgment motion. Rather, the appellant takes aim at the motion judge's conclusions on the motion.
[21] For the reasons given, the appellant's challenge to the motion judge's decision fails and the appeal is dismissed. The respondents are entitled to their costs of the appeal, if sought, fixed in the amount of $6,528, inclusive of disbursements and all applicable taxes.
Appeal dismissed.
- Vous trouverez la traduction française à la p. 588, post.
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