Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20210623 DOCKET: C68567
Rouleau, Hoy and van Rensburg JJ.A.
BETWEEN
Phyllis Johnson Plaintiff (Appellant)
and
Dr. Shobha Rajanna, Dr. Anthony Sterling, Margaret Doe and Mary Doe Defendants (Respondents)
Counsel: Daniel Lamberto Ambrosini, for the appellant Monica Tessier, for the respondents
Heard: May 31, 2021 by video conference
On appeal from the order of Justice Michael T. Doi of the Superior Court of Justice, dated April 22, 2020, with reasons reported at 2020 ONSC 2489.
Reasons for Decision
[1] The appellant appeals the motion judge’s order, granting summary judgment in favour of the respondents, dismissing her action against them. She also seeks leave to adduce fresh evidence on appeal, consisting of the affidavit and report of Dr. Ronald M. Kellen, a retired dentist.
[2] The appellant raises several arguments on appeal. It is unnecessary to address all of them. As we will explain, we admit the fresh evidence. We are persuaded that, with the benefit of the fresh evidence, the motion judge would have adjourned the summary judgment motion. Accordingly, we set aside the dismissal of the appellant’s action.
The background
[3] In March 2015, the appellant commenced an action against the respondents for dental malpractice arising out of Dr. Rajanna’s extraction of a molar in April 2013. The appellant, a walk-in patient, was 70 years old at the time of the extraction. She alleged that she suffered nerve damage from the procedure, which resulted in lost sensation and feeling in the lower left side of her tongue and mouth.
[4] In February 2016, the respondents gave the appellant notice of their intention to seek a summary dismissal of the action because she had not obtained expert evidence to establish that the respondents had failed to meet the standard of care.
[5] Over the course of the litigation, the appellant was represented by several lawyers. She had difficulty obtaining an expert report.
[6] The respondents’ summary judgment motion was originally returnable January 16, 2019. However, the appellant and her then-counsel requested an adjournment in order to allow additional time to seek and retain an expert to provide an expert report. The adjournment was granted, and, on February 21, 2019, a timetable was ordered, peremptory to all parties to the action. That timetable required the appellant to serve her responding record by September 2, 2019. In a court attendance on another matter on August 20, 2019, the appellant was reminded that the timelines continued to apply.
[7] When the summary judgment motion was ultimately heard on Wednesday, March 11, 2020, the appellant represented herself. At the outset of the hearing, she handed up a two-page, undated and unsigned, written submission to the motion judge. It stated that after meeting on Saturday with a retired dentist, who was not identified, and reviewing her documentation, “we found three discrepancies which might constitute negligence or malpractice.” The letter went on to briefly describe the concerns.
[8] The motion judge, after making some inquiries of the appellant, concluded that she was unable to obtain an expert report to support her claim against the respondents and that, given the complexity surrounding the application of clinical dental skills in determining liability, this was not a case where liability could be determined without expert admissible evidence addressing the standard of care and causation. Because the appellant had not delivered expert evidence to support her dental malpractice claim, and the respondents had adduced their own expert evidence which states that the dental treatment at issue met the expected standard of care, he found there was no genuine issue to be tried.
The fresh evidence
[9] In his affidavit, Dr. Kellen deposes that: he is the retired dentist who assisted the appellant in preparing her two-page written submission; his initial contact with the appellant was on Friday, March 6, 2020; when he met with her on Saturday, March 7, 2020, he agreed to be retained to assist in her case; he had reviewed her file and identified issues that suggested the possibility of negligence but he required additional time to investigate them and complete his final report; he could not attend the hearing on March 11, 2020 due to health reasons; and he advised the appellant to give the judge the written submission and seek an adjournment so that he would have enough time to complete his report.
[10] After the hearing, the appellant instructed Dr. Kellen to complete his report, which he did on May 15, 2020.
[11] In his affidavit, Dr. Kellen deposes that, “Based on my review of the file provided by Ms. Johnson, and direct interviews with Ms. Johnson, I am of the opinion there is very likely negligence and dental malpractice by the Defendants that require a more fulsome disclosure and appropriate adjudication.” He attaches his report, dated May 15, 2020.
[12] The opinions expressed in his report include that:
- The paraesthesia (numbness) “almost certainly developed from additional injection(s) possibly with a damaged needle”. It would be negligence if Dr. Rajanna used a 27-gauge needle (rather than a 25-gauge needle) to administer the anaesthetic or if she failed to test the needle point for a bur prior to re-use. The fact that the paraesthesia happened to both the lingual nerve and the inferior alveolar nerve raises the probability that more than one block injection was used and that one or more of the further injections had a bur-damaged needle tip, which would have torn nerve tissue.
- The x-ray showed that the appellant’s bone is dense, with narrow periodontal ligament space around the tooth being extracted. This definitely increased extraction difficulty. There is no indication in the chart that there was any pre-planning or consideration of the potential problems with the extraction that developed. This indicates negligence.
- When Dr. Rajanna realized the difficulties with the extraction, there is no indication that she stopped, re-assessed, or considered aborting and referring the appellant to a nearby oral surgeon. That is negligence.
Application of the test for admission of fresh evidence
[13] R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, established the test for the admission of fresh evidence on appeal:
- The evidence should not be admitted if, by due diligence, it could have been adduced at trial, but this general principal will not be applied as strictly in criminal cases as in civil cases;
- The evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue;
- The evidence must be credible in the sense that it is reasonably capable of belief; and
- The evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[14] The respondents argue that the proposed fresh evidence does not satisfy the first, third and fourth Palmer criteria. We disagree. In our view, all four factors are satisfied in this case.
[15] As to the first factor, the respondents say that the time to adduce expert evidence was before the hearing of the summary judgment motion. They point out that the appellant had several years to obtain a supportive expert report and, according to her, had approached at least ten dentists, trying to do so.
[16] That is so, but that very submission supports the appellant’s position that she was trying, throughout, to obtain an expert report. She spoke of her difficulty in finding someone to opine that a fellow dentist was negligent. She only succeeded in finding Dr. Kellen days before the scheduled summary judgment motion. Once she located him, she followed up to ensure that his report was completed promptly, within approximately two months of the hearing date.
[17] There is no dispute that the second factor is satisfied. The expert evidence is clearly relevant to the issue that was before the motion judge.
[18] As to the third factor, the respondents say that the fresh evidence is not credible because Dr. Kellen’s report is not accompanied by an assurance of his objectivity, in the form of an acknowledgment of the expert’s duty (Form 53), signed by Dr. Kellen, as required by r. 53.03(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Further, they say that Dr. Kellen makes groundless assumptions and assertions about Dr. Rajanna, which should lead this court to conclude he cannot meet his obligation to provide the court with a fair, objective and non-partisan opinion.
[19] The respondents are correct that the report is not accompanied by a Form 53 and, in portions of his report, Dr. Kellen made certain assumptions which he characterized as “a couple of unsubstantiated theorizations because of large information gaps and things that do not ‘fit’”.
[20] To the extent there are deficiencies in Dr. Kellen’s report, they may speak to a lack of experience as an expert witness or the preparation of the report without input by counsel. We view them more as deficiencies that go to the fourth Palmer factor, and that could prove fatal if not rectified before trial or a further summary judgment motion. Nonetheless, in our view, Dr. Kellen’s evidence is reasonably capable of belief.
[21] Turning to the fourth Palmer factor, the respondents argue that Dr. Kellen’s report suffers from a further, fundamental deficiency: it fails to definitively opine on both standard of care and causation. Dr. Kellen could have expressed his opinions with greater clarity. But, contrary to the respondents’ assertion, his opinions, summarized above, address both standard of care and causation.
[22] In our view, if the motion judge had the benefit of Dr. Kellen’s affidavit and report he would not have granted summary judgment in favour of the respondents.
[23] As the respondents argue, there are problems with the report Dr. Kellen prepared. And we note the lengthy history of this matter, the reminders to the appellant about the necessity of an expert report, and the peremptory timetable in place. We appreciate that there was in important interest in finality in this case.
[24] However, the respondents were seeking a summary dismissal of the appellant’s action and had the onus of establishing there was no genuine issue requiring a trial. There appears to be no dispute that the appellant suffers from a real injury – numbness in the lower left side of her mouth and tongue – as a result of the dental procedure performed. Further, the transcript reveals that the motion judge made inquiries of the appellant when she handed up the letter. Unfortunately, the appellant did not specifically request an adjournment or clearly advise that she had retained an expert. The motion judge would not have appreciated from her submissions that, at the time the motion was heard, she had retained Dr. Kellen to provide an expert report and he had requested more time to complete his report.
[25] We are persuaded that, faced with a 77 year-old self-represented party, seemingly of limited means, who suffered injury as a result of a dental procedure, who had struggled to secure an expert, who had retained an expert at the time she appeared before him, and who then secured a supportive expert report, the motion judge would have concluded that it was in the interests of justice to adjourn the motion to provide the appellant with an opportunity to cure the deficiencies in the expert report.
Disposition
[26] Accordingly, we allow the appeal and set aside the dismissal of the appellant’s action and the costs below, without prejudice to the respondents’ right to bring a further summary judgment motion. Should the respondents elect to bring a further summary judgment motion, the privileged materials included in the motion record below and in the responding materials on this appeal should not form part of the motion record.
“Paul Rouleau J.A.”
“Alexandra Hoy J.A.”