Court of Appeal for Ontario

Citation: Chelli-Greco v. Rizk, 2016 ONCA 489

Date: 2016-06-17

Docket: C61472

Judges: Feldman, Rouleau and Huscroft JJ.A.

Between:

Rosalba Chelli-Greco Plaintiff (Respondent)

and

Dr. Michael J. Rizk Defendant (Appellant)

Counsel: Susanne M. Sviergula, for the appellant John J. Cardill, for the respondent

Heard and released orally: May 20, 2016

On appeal from the order of Justice C.T. Hackland of the Superior Court of Justice, dated November 13, 2015.

Endorsement

[1] This is an appeal from an order dismissing the appellant’s motion for summary judgment. The sole issue before the motion judge was whether the respondent’s action was statute-barred because the two-year limitation period established by s. 4 of the Limitations Act, S.O. c. 24, Sched. B, had expired.

[2] The respondent was a patient of the appellant dentist from September 2005 to October 2012. She commenced her action alleging negligence on June 16, 2014, which was within two years of her last appointment with the appellant. The appellant argues that the limitation period began to run from September 21, 2011 because that was the date that the respondent discovered her claim. On that date, the respondent complained about the dental work performed by the appellant, demanded reimbursement of $23,000.00, and threatened to go to a lawyer.

[3] Under s. 5 (1)(a) of the Act, a claim is discovered on the date the claimant knew, or ought to have known, the material facts giving rise to the claim, and that a proceeding would be an appropriate means to seek to remedy the claim. The date is determined on a fact-based analysis.

[4] The issue before the motion judge was when did the respondent know that a proceeding would be an appropriate means to seek a remedy. The motion judge accepted the respondent’s evidence that her decision to continue treatment with the appellant beyond September 21, 2011 was based on the appellant’s advice to her that “her failed bridge was not his fault and he would endeavour to repair and remediate the problem.” . Given this finding, we see no error in the motion judge’s conclusion that the respondent’s action was not discovered until after the treatment and the dentist-patient relationship had ended and that her action was not statute barred as a result. See Brown v. Baum, 2016 ONCA 325, at para. 18.

[5] The appeal is dismissed.

[6] The appellant seeks leave to appeal the costs awarded by the motion judge. We are not persuaded that the motion judge erred in the exercise of his discretion to award costs to the respondent that were significantly higher than those incurred by the appellant, given the nature of the motion.

[7] Leave to appeal costs is granted, but the appeal is dismissed.

[8] The appellant shall pay the costs of the appeal to the respondent in the agreed amount of $13,500, inclusive of taxes and disbursements.

“K. Feldman J.A.”

“Paul Rouleau J.A.”

“Grant Huscroft J.A.”