COURT FILE NO.: Hamilton 08-2688

DATE: 2014-03-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VIRGINIA BARRY, Personally and as Litigation Guardian for the minor JACOB DAVID BARRY, JESSICA MAY BARRY AND JENNIFER ANN BARRY

Plaintiff

– and –

ROBERT J. PYE and NATALIE M. GAIK

Defendants

James A. Scarfone, Counsel for the Plaintiff

Doug A. Wallace, Counsel for the Defendants

HEARD: March 4, 2013

REASONS FOR JUDGMENT

TRIMBLE J.

[1] This is a motion brought by the Defendants for a declaration that the Plaintiff’s action is barred by the expiry of the limitation surgery.

[2] The surgery was conducted on January 21, 2001. The Notice of Action was issued on May 1, 2008, with the Statement of Claim following on May 28^th.

[3] The essence of the claim is that on January 21, 2001, Dr. Pye, the Plaintiff’s oral surgeon, performed a bilateral mandibular sagittal split on the Plaintiff to correct issues the Plaintiff had with her smile and occlusion. This surgery was recommended to her by Dr. Pye, and Dr. Gaik, her orthodontist, following a two year course of orthodontic correction (braces) by Dr. Gaik. The Plaintiff is very unhappy with the outcome of the surgery. This is understandable given some of the photographs, and the opinions received and filed at the hearing of the motion. While I have sympathy with the Plaintiff, I make no comment on whether the Defendants were negligent.

[4] The allegations in the Statement of Claim can be reduced to three main allegations. The Defendants were negligent in that a) they negligently recommended the surgery. It was unnecessary and she was not a suitable candidate for it; b) they failed to inform her adequately, or at all, about the risks attendant on and the outcomes of the surgery; and c) Pye performed the surgery negligently.

[5] The issue in this motion is whether the limitation has expired. To answer this question, we must address two other questions. First, we must address the issue of when the Plaintiff knew or ought to have known the facts that supported a claim against the Defendants. This engages section 24 of the Limitations Act, 2002. The second question is which limitation applies? This involves an analysis of sections 4, 5, and 24 of the Limitations Act, 2002.

[6] Having read all of the material filed with the Court, and listened carefully to the able argument of counsel for both sides, I have concluded two things. First, I conclude that I can do justice between the parties and reach a fair disposition of this matter, without hearing any further evidence or exercising any of the powers under Rule 20.04(2.1). The evidence is clear. There are no issues on this motion that require further evidence, nor are there issues of credibility to be weighed. I accept the Plaintiff’s evidence, at its highest, for the purposes of this motion.

[7] Second, I conclude that the Defendants’ Summary Judgment motion is granted. There are no issues requiring a trial. For the reasons expressed below, I conclude that the Plaintiff knew or ought to have known well before May 1, 2006 the facts on which her cause of action against the Defendants were based, and hence, the Action was brought outside the two year limitation under the Limitations Act, 2002, the applicable limitation.

FACTS:

[8] The following chronology of germane facts is taken from the record:

1998

August 20 Barry sees Dr. Gaik complaining of pain and clicking in her jaw and having to hold her lower jaw forward. Gaik noted a small lower jaw, backward leaning upper front teeth, a protruding lower lip, retruded lower jaw, a significant overbite, protruded and crowded teeth. She discussed surgery and braces to correct the problem. Barry opted for braces. This treatment continued until 2000. Gaik advised that she gave Barry a pamphlet detailing the issues surrounding the surgery (see Affidavit of Virginia Barry sworn January 28, 2014, Exhibit A). Barry denies she saw the pamphlet.

2000

March 22 Barry met with Pye for a consult regarding possible surgery.

Oct. 24 Barry reported to Pye that she wanted the surgery.

November 15 Pre-surgery consult. Pye said that he explained the surgery and its risks including the likelihood that she would have numbness of some or all of the lip, chin, cheek, tongue, and/or mouth, and that these could be permanent. Barry denied this conversation. Barry instructed Pye to proceed with the surgery.

2001

January 26 Bilateral mandibular saggital split osteomy done to move Barry’s jaw forward, thereby improving her profile and bite.

January 31 Barry discharged from hospital.

February 5 Barry saw Pye complaining of jaw asymmetry and lower lip numbness. She is reassured.

February 19 Barry saw Pye complaining of jaw asymmetry, pain and feeling a “step” or protruding jaw. She was reassured.

February 26 Barry saw Pye complaining of bump in her jaw on the right side, associated with a wire in her jaw. She was reassured it could be cured post-operatively after healing had taken place.

Barry also saw Gaik that day and reported that her jaw was asymmetrical, that there was a bump on the right side, that her midlines were not consistent. She complained of numbness, burning and tingling in her face. At her Examination for Discovery, questions 552 to 565, Barry reported that since the surgery she suffered from pain and numbness and asymmetry since the surgery, which has worsened since the surgery, causing depression and anxiety. She has not been happy with her appearance since the surgery.

March 5 Barry saw Pye complaining of the bump in her right jaw, insisting that it be trimmed. She complained that her teeth were not properly aligned and could not be fixed. She was reassured that she had to await the healing process.

Barry also saw Gaik that day and made similar complaints. She was reassured.

March 7 Barry complained to Gaik about the same issues, and was reassured.

March 9 Barry complained to Pye, after removal of hardware, that her jaw was asymmetrical and her jaw was very sore, keeping her awake at night.

March 15 Dr. Dore, Oral Surgeon, wrote to the family doctor, Neimanis, by way of second opinion regarding the surgery. Overall, he thought the surgery went well, and that her upper lip appearance was good. The final issues regarding her bite would resolve with further orthodontic work. She had some limitation in her ability to open her mouth and needed physiotherapy for this. Numbness in her right jaw was normal and would likely resolve in a year. There was evidence of numbness resolving on the left side.

March 26 Barry complained to Pye regarding a wire poking through in her mouth on the right side, a bone protruding on the right side, asymmetry in her jaw, that she had a “boxer’s look”, and that she had lost confidence in herself and could not work or go outside. She did not want to see Pye again, but eventually accepted his recommendation to come back for a later visit. He reassured her that her result was good.

April 11 Barry saw Gaik and complained she looked like a “bulldog”. She complained having difficulty swallowing, her tongue felt too big for her mouth, her lower right lip deviated when she spoke, her upper lip now was made too small, and she had bilateral lip swelling.

June 8 Dr. Fawcett, Neurologist, provided an opinion to the family doctor. Barry complained of facial numbness on the right side, although it was improving. She also complained of a little numbness in the tongue and lower gum which had recovered. She has pain when biting and that her tongue is going to one side. The angle of her mouth on the right is bad. She was very angry about what she says has happened to her. She complained of asymmetry in her jaw and a funny speech pattern due to inability to move muscles properly. Dr. Fawcett disagreed with many of the complaints, saying that the nerve issues should settle down on their own.

July 5 Barry saw Gaik and complained of a frozen jaw, freezing in her face, asymmetry, unhappiness with her profile. Barry was reminded that she was told that numbness or freezing was a likely complication. She denied she was told this. She was told it was in written material she was given, but which she admitted to Gaik she did not read. She accused Gaik of being a liar concerning information Gaik says Barry was given about the surgery. She said there was a conspiracy against her and that Dr. Dore was merely protecting Gaik and Pye. Gaik recommended an objective assessment from a pain specialist at McMaster, but Barry was not sure if she would go. Barry accused Gaik of ruining her face.

July 23 Barry admitted that between February 1 and July 23 she had complained to Pye that she was unhappy with her surgery including that she a) had facial asymmetry, b) the surgery was more extensive and intrusive than she expected or was told it would be, c) her jaw was crooked and her chin pointed to one side, d) her jaw joint (TMJ) was not working properly and was painful, e) she had a bump on the inside of her right jaw associated with a wire poking through, f) her jaw was misshapen, g) she did not look as good as she did before the surgery.

August 9 Barry complained to Gaik that there was a freezing in her face, with “prickles”, reduced feeling in her tongue, numbness in her jaw, and pain from wires. She resisted the suggestion that the wires should be removed. She complained that Gaik was not attentive enough. She accused Gaik of lying to her about the bone on the right side of her jaw that was protruding and ignoring her complaints about it. She was unhappy about her appearance and wanted to “rip her face off”. She said to Gaik that she would “make me pay” for what she had done to her. She complained about her appearance, felt she had a “gummy appearance” and felt her face had collapsed.

September 12 Orthodontist, Dr. Burton, wrote a short letter suggesting that Barry continue speaking to her orthodontist and surgeon.

September 14 Barry’s family doctor referred Barry to Plastic Surgeon, Patterson, saying that Barry had post-surgery problems including limitations in her ability to open her mouth, smile normally, a residual piece of bone causing spasm in her cheek and pain.

September 20 Barry saw her general dentist, Dr. Jarekca, and reported to Jarekca that she should not have had the surgery. She complained she was misled, and wanted to see another oral surgeon. Jarekca made the referral. Barry never made the appointment.

September 27 Barry appeared at Gaik’s office without an appointment, complaining of tooth 47. In discussing that tooth, Barry began accusing Gaik of lying to her and saying Barry wanted to rip her own face off. She said that if Gaik had not lied to her about the surgery, she would not have had the surgery. She denied that Gaik had given her any information about the surgery, and that Gaik had deceived her about the surgery. She said all the doctors were sticking together. She demanded an objective opinion from someone out of the city of Hamilton. She was given a number and referral to the Mt. Sinai Facial Pain Clinic in Toronto, an appointment the parties agree that would have been covered by OHIP. She never made the appointment.

November 19 Plastic Surgeon Patterson said that Barry reported changes in her facial profile following surgery. Patterson agreed that Barry looked “slightly prognathic” and that her jaw looked too prominent for her facial profile. However, he commented it was difficult to evaluate or assess without the complete record. He suggested that Barry obtain an opinion from another oral surgeon, and suggested that she follow up with Dr. Dore, again.

2002

February 20 Barry complained to Dr. Pye regarding her bite being wrong.

April 24 Barry complained about pain on chewing and her face muscle looking ‘funny’, and that she was biting her lip.

2003

January 23 Barry wrote to Dr. Taylor, Orthodontist, (delivering it to him on the 23^rd), listing her complaints. She complained that Gaik and Pye had abused their positions, connived and manipulated circumstances and delivered incomplete information in order to convince her to opt for surgery. She said that she was anxious and depressed, and to that date had ongoing pain and anguish, without a proper bite or jaw function. She did not look normal, and spoke with a speech impediment. Her face was falling down. There was numbness and loss of sensation all the time. Her doctors took “... advantage of my trusting vulnerable and unknowledgeable of my choices to choose better for myself...”. Gaik and Pye used their positions to influence her into surgery.

Gaik spoke to Taylor on the 23^rd. Taylor reported that Barry told him that she had retained a lawyer and was intending to sue Gaik.

January 24 Dr. Taylor reported on his visit with Barry on the 23^rd. He noted a significant amount of TMJ dysfunction and that her jaw deviated to the right on opening. Barry complained to Taylor of asymmetry and poor dental function. He enclosed to Gaik, Barry’s January 23^rd letter to him. He concluded that Barry’s occlusion was far from ideal but didn’t think further orthodontics would be of much service. He said: “According to her, her smile function has changed dramatically since her mandibular advancement. She still has paraesthesia of her mandibular lip and chin area and is unhappy with the prominence of her chin.” Dr. Taylor referred Barry to Dr. Harnett, an oral surgeon, for an opinion. Barry did not make the appointment.

January 28 Gaik called Barry because Barry had cancelled appointments for January 14^th and 27^th. Gaik wanted her to come in for a follow up. Barry complained that she cannot bite, her teeth stand on end, she cannot swallow, and that she never received any answers to her questions about the surgery before or after. Pye does not answer her. Something “is seriously wrong”. She complained of continuing severe pain in her face and jaw. Her face was distorted and numb with nerve damage. She complained she was deformed, had lost her job, her life was over, and she could not live with her new look. Barry questioned Gaik’s motives and accused her of using Barry as a source of revenue. She accused Gaik of giving her no information before the surgery. She said that Pye did not give her any information before the surgery, either. She accused Gaik and Pye of covering up for each other.

February 6 Barry wrote Pye complaining of her failed orthodontic and surgical treatment causing her “great despair and anxiety”, unexpected symptoms that have occurred since the surgery, dysfunction in her jaw, her distorted appearance, all of which caused great interference with her lifestyle. Much of her complaint was directed at obtaining information she was given before the surgery or, as she put it, “pertaining to your reasoning and preparation, for my surgery”.

February 14 Barry wrote to another, unidentified dentist, referring to “further possible litigation pending”.

May 5 Barry’s lawyer wrote to Barry saying that the one year limitation to sue the Defendants may have expired. He urged her to issue a Statement of Claim, notwithstanding. He advised that Barry would need a medical opinion from an expert to determine whether or not Barry had a cause of action, and that opinion should be from an expert not in Hamilton. He urged her to obtain her medical records and to discuss with friends and family assisting with the retainer. The lawyer said that if she gave written instructions to issue a Statement of Claim, plus $257 to cover the disbursement, he would issue the Statement of Claim. He said it should be issued as soon as possible. If, after investigation, the lawyer was of the view that there was no claim, he would advise her and close his file.

August 20 Barry admitted in cross examination that on or about this date, she retained a lawyer for the specific purpose of suing the Defendants.

On the same date, Barry tells her family doctor that she is suing Pye and Gaik, and that she felt like she had lost her identity since her “face is gone”. She is recorded as having said that she feels better now that she has a lawyer who understands she does not have money but is confident that she has a case, and will take the case on a contingency.

October 3 The lawyer’s file contains a note that the lawyer spoke to Barry, told her that she could not get around the limitation, and said that he could not issue the claim until he was certain there was negligence. She said there was, according to Dr. Taylor. The information in the note is confirmed in a letter dated November 10^th.

November 10 Barry’s lawyer wrote to Barry further to their meeting of October 3, 2003, regarding whether or not to pursue the litigation. He advised that based on the case as he understood it, the limitation had passed and issuing a claim would be a waste of time and money. He did say that if another doctor confirmed that there was a step or procedure undertaken that was negligence, she could argue that she only discovered her cause of action at that time. He urged her, again, to obtain such an expert. She confirmed she was seeking the advice of her family doctor. If that doctor confirms that the defendants were negligent, she should obtain a report as soon as possible. Further, the lawyer said that he was not prepared to issue a Statement of Claim unless he was properly retained and had the medical opinion he suggested be obtained.

December 19 Barry’s lawyer wrote to the hospital to obtain records, for the purposes of the litigation arising from the dental surgery.

2004

January 19 Barry’s lawyer wrote asking for a reply to his letter of November 10^th, and asked for payment of the disbursement for obtaining the Hospital Records.

April 15 The lawyer’s file contains a note that Barry came in to bring her x-rays. He had seen Dr. Tocchio for a second opinion and he said that she should file a complaint with the Dental Association against the Defendants. Tocchio felt that the surgery was unnecessary but that he would not testify against them. For reasons expressed below, I cannot accept the contents of the document are true. I can only accept it as a business record showing that it exists.

2005

April Barry’s lawyer writes to say that he can no longer act. She retrieves her file from him.

2006

March 20 The family doctor’s notes indicate that Barry was to see Dr. Tocchio for a second opinion, and that the matter was going to litigation in October.

March 21 The family doctor’s notes indicate that an appointment was made for Barry to see Dr. Eldon Tunks, a Hamilton pain management specialist, for her facial and jaw pain. It is unknown if this appointment was kept.

May 26 Barry saw Dr. Claudio Tocchio, Oral Surgeon, who advised in an opinion dated August 30, 2007. He opined that she had an additional, undiagnosed fracture present on the right side of the jaw, which was not noted in the operative report or discussed with the patient post-operatively. She continued to have a dental malocclusion and significant temporomandibular joint pain, lower lip numbness, and prominent chin. Additional surgery was likely required to correct this.

2007

August ?? Barry complained to the College with respect to both Defendants.

August 30 Dr. Tocchio sent his report further to the May 24, 2006 meeting with the Plaintiff, which contains no opinion on the standard of care. This report was prepared for the Plaintiff’s complaint lodged with the College.

2008

May 1 Notice of Action issued.

May 28 Statement of Claim served.

February 25/14 Dr. Schacher provided an opinion that the standard of care was not met.

THE POSITION OF THE PARTIES:

1. The Defendants’ position.

[9] The Defendants say that it is possible to do justice between the parties by way of Summary Judgment, without further inquiry, based solely on the motion materials, as the facts and law are clear.

[10] Applicable Limitation: The Defendants’ position is that the applicable limitation period is the one year limitation in s. 89(1) of the Health Professionals Procedural Code, being Schedule 2 to the Regulated Health Professionals Act, 1991, S. O. 1991, c. 18 (“RHPA”), which reads:

No person who is or was a member is liable to any action arising out of negligence or malpractice in respect of professional services requested of or rendered by the person unless the action is commenced within one year after the date when the person commencing the action knew or ought to have known the fact or facts upon the negligence or malpractice is alleged.

[11] The Defendants say that the earliest the cause of action arose is the date of the surgery. Since that limitation expired before January 1, 2004, and no action was commenced by that date, s. 24(2) of the Limitations Act, 2002 says that the limitation had expired, and no proceeding shall be commenced in respect of the claim.

[12] The Defendants say that the latest date on which the cause of action could have arisen is August 20, 2003, when the Plaintiff told her family doctor that she had retained a lawyer who was taking the case on a contingency basis, and that she was confident she had a good case against the Defendants. Assuming this is the date on which the Plaintiff knew or ought to have known that she had a case of action, under s. 24(5) of the Limitations Act, since the former one year limitation had not expired by January, 1, 2004, the act on which the claim is based is deemed to have taken place on January 1, 2004. The limitation is therefore two years under s. 4 of the Limitations Act. This limitation, too, had expired (on January 1, 2006) and the Statement of Claim is out of time.

[13] Discoverability: The Defendants say that discoverability under s. 89(1) of the Code relates to the date when the plaintiff had actual knowledge of the facts on which the negligence is based (a subjective test) or the date on which the Plaintiff ought to have reasonably known the facts on which the negligence is based (an objective test requiring an analysis of what steps the reasonable person ought to have taken to obtain the requisite knowledge) [see Castronovo v. Sunnybrooke and Women’s College Health Sciences Centre 2008 1174 (ON SC), [2008] O.J. No. 160 (S.C.J.), para. 13, app’d 2008 ONCA 655, [2008] O.J. No 3769 (C.A.)]. This analysis is the same under s. 5 (1) and (2) of the Limitations Act, 2002.

[14] Discoverability does not extend to when the Plaintiff knew or ought to have known with certainty that either of the Defendants were negligent in their treatment of the Plaintiff. It is sufficient for the Plaintiff to have a prima facie factual basis to infer that the acts or omissions were caused by the party or parties identified. see Kowal v. Shuyiak, [2012 ONCA 512](https://www.canlii.org/en/on/onca/doc/2012/2012onca512/2012onca512.html), at para. [18]. The cause of action begins to run from when the Plaintiff knew or ought to have known, prima facie, the facts upon which she could found a potential claim, regardless of the fact that the claim may later become a viable one see Tender Choice Foods Inc. v. Versacold Logistics Canada Inc. [2013 ONSC 80](https://www.minicounsel.ca/scj/2013/80), at para. [59].

[15] The Defendants’ analysis starts with the nature of the complaints the Plaintiff made, as found at para. 13, 14, 15 and 16 of the Statement of Claim, which are as follows:

13. The Plaintiff states that her injuries are as follows:

a. Severe permanent freezing pain;

b. Depression;

c. Unnatural protruding jaw;

d. Pain on stretching her mouth;

e. Inability to open her mouth fully;

f. Jaw turned toward the left and misaligned;

g. Nerve damage on the lower lip and around the chin causing drooling;

h. Hyper sensitivity and lack of sensitivity to her lips;

i. Feeling of pins and needles in the lips;

j. Sensitive teeth make brushing painful;

k. Bone shifting on the left side causing interference with a molar;

l. Scar tissue inside the mouth;

m. Lack of pressure in chewing;

n. Crackling in her jaw joint primarily on the right side;

o. Inability to pucker her lips;

p. Inability to close her mouth fully;

q. Required to wear braces for 2 more years post surgery;

r. Additional pain of treatment and costs to correct the injuries;

s. Required to take pain medication for the rest of her life;

t. Continued treatment to correct and alleviate pain;

u. Pain Specialist Treatment with Dr. E. Tunks.

14. The Plaintiff states that the particulars of the negligence of the Defendant Gaik are as follows:

a. She made an assessment of the need for surgical reconstruction of the Plaintiff’s jaw without sufficient, or any evidence, upon which to base such assessment;

b. Knowing that she had the complete trust of the Plaintiff and that the Plaintiff would accept her assessments and opinion, she negligently recommended surgery that there was no basis in medicine or dentistry to recommend;

c. She formed a professional business relationship with the defendant Pye, such that she recommended surgeries that she knew or ought to have known were not properly based in medicine and where not properly supported by the clinical presentation of the Plaintiff, all in order to facilitate referrals to Pye;

d. She continued to reassure the Plaintiff, after the Pye surgery was completed, that the surgery had been done well, knowing that it had not been performed properly, and had in fact been performed negligently;

e. She failed to provide informed consent;

f. She continued to treat the Plaintiff, knowing that the continued treatment was an unreasonable creation of false hope that the injuries caused by Pye could be corrected;

g. She continued to accept fees from the Plaintiff, knowing that there was nothing that she could feasibly do to correct the problems that occurred.

h. Despite the poor outcome on an ongoing basis, Gaik being aware of the continuing symptoms, failed to make a referral or obtain a second opinion for remediation of the Pye surgery, as she continued to be the most responsible dental surgeon on an ongoing basis.

15. The Plaintiff states that the particulars of the negligence of the Defendant Pye are as follows:

a. He failed to provide full informed meaningful consent by advising Barry that there was a risk of serious complications, and that she should properly weigh whether the surgery should be performed at all given the significant risk of an adverse outcome;

b. He failed to advise the Plaintiff at the earliest possible time that his outcome was poor and below standard and may be uncorrectable;

c. He performed surgery that he was ill equipped and not competent to perform and/or he did not have sufficient experience upon which to base his opinion that surgery should be performed or to perform this

d. He failed to properly assess the Plaintiff prior to and after the surgery;

e. He failed to consider all of the evidence in order to determine whether or not the proposed surgery was reasonable and/or necessary;

f. He performed surgery that was neither reasonable nor necessary;

g. Knowing that the Plaintiff did not have significant pain and did not have any severe dental problems, he recommended a drastic and risky surgery including the fracturing of her jaw in multiple places to achieve a result that had little or no chance of success;

h. He performed the surgery negligently and below standard, by making too many fractures and failing to properly align the fractures;

i. He failed to communicate to the Plaintiff that he had been negligent, and that no amount of surgery and no amount of further treatment would be of any use to her;

j. He promoted continued service by Gaik and himself, when he knew or ought to have known that this was a waste of time and money;

k. He failed to employ up to date materials, equipment and he failed to have trained staff in the performance of the surgery;

l. He failed to use up to date surgical methods that were evidence based and were supported medically;

m. He failed to advise the Plaintiff at the earliest possible time that his outcome was poor and below standard and he failed to refer her to a qualified expert;

n. He failed to recommend a second opinion;

o. He failed to provide informed consent by advising the patient that there was a risk of serious complications, and that she should properly weigh whether the surgery should be performed given the significant risk of adverse outcome;

p. Despite numerous requests he failed to properly explain the surgery he performed and the poor outcome;

q. He failed to advise the Plaintiff that she had alternatives, including being referred to either an Oral or Maxillofacial surgeon or other surgeon.

16. The Plaintiff has been left with a permanent and serious disfigurement of her mouth and injury to her jaw, and face, lips and teeth. This injury also involves pain, misalignment, and the prospect of future dental complications. The surgery was performed unnecessarily and negligently. The resulting outcome of the surgery has severely affected the Plaintiff’s self esteem, ability to socialize, and ability to competitively work.

[16] The Defendants say that the Plaintiff knew or ought to have known all of the facts about which she complained in the Statement of Claim, at the earliest, on August 9, 2001, when she complained to Dr. Gaik that she was unhappy enough about the surgical result that she wanted to rip her face off, and would make Dr. Gaik ‘pay for what she had done’, or at the latest, August 20, 2003 when the Defendants say that the Plaintiff admitted on Discovery, as of the August 20, 2003 visit to her family doctor, she admitted that she knew (i) that she had an injury, (ii) caused or contributed to (iii) by the Defendants’ acts and that (iv) a proceeding would be an appropriate way to seek a remedy, all as required by s. 5(1) of the Limitations Act, 2002, as indicated by the following exchange:

When asked what was meant by these comments in Dr. Neimanis’ notes, Barry was asked and answered the following questions under cross examination on January 17, 2014:

49. I just want to be clear on what this means. You said, “is confident she has a case”. Are you saying Mr. Turnbull was confident –

A. No

50. Q. – you had a case, or were you confident you had a case?

A. I thought that, I was.

51. Okay. You were confident you had a case?

A. I – I thought so.

52. Q. Right.

A. With what I knew.

54. Q. Right. And the case that you were confident you had was against doctors Pye and Gaik, correct?

A. I thought so.

55. Q. Right. And that was case to sue them for injuries that you thought they caused to you, correct?

A. Yes.

56. Q. Because of the treatment they provided to you?

A. Yes.

57. Q. Thank you. And you told that to Dr. Neimanis in – on August 20, 2003, correct?

A. Yes.

[17] Due Diligence: The Defendants say that the Plaintiff did not exercise due diligence in discovering the facts on which her case of action could be founded. While the Defendants deny that the limitation begins to run when the Plaintiff obtains an expert opinion of negligence by the Defendants, they argue that there was no due diligence in this regard. By report dated March 15, 2001, maxillofacial surgeon Dr. Dore opined that the surgery was satisfactory. The Plaintiff disagreed with this. Her general dentist, Dr. Jarekca, told her on September 20, 2001 to see another oral surgeon for an opinion. Dr. Patterson, the plastic surgeon to whom the family doctor had referred the Plaintiff, told her on November 19, 2001 to see an oral surgeon for an opinion. Dr. Taylor, an orthodontist to whom the Plaintiff’s family doctor referred her, suggested she see oral surgeon, Dr. Harnett. The Plaintiff did nothing in response to this advice. In August and November, 2003, her lawyer told her she needed an opinion from a qualified expert, from outside of Hamilton, to provide an opinion to assist with establishing a cause of action and which would address discoverability. Again she did nothing until she saw Dr. Tocchio in May, 2006.

[18] The Defendants argue in response to the Plaintiff’s position that the limitation did not begin to run until May 24, 2006 when Tocchio provided his advice to the Plaintiff, the Defendants say that once the Plaintiff knows that some damage has occurred, and has identified the likely tortfeasor, the limitation begins to run regardless that the full extent of the damage is not clear. It is not necessary for the full damage to be known for the cause of action to accrue see Pexeiro v. Haberman, [1997 325 (SCC)](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii325/1997canlii325.html), [1997] 3 S.C.R. 549 para. [18].

2. The Plaintiff’s Position:

[19] The Plaintiff says that there is considerable factual uncertainty, unease and disquiet with respect to the issue of when the Plaintiff knew or ought to have known that she had a cause of action. Therefore, the Court is unable to make a ‘fair and just determination on the record’ and the matter should go on to trial [see Hryniak para. 49].

[20] Applicable Limitation: The Plaintiff’s position is that the applicable limitation is two years, under the Limitations Act, 2002, from when the Plaintiff knew or ought to have known she had a cause of action. She takes this position because, while the surgery was in 2001, she did not know nor ought she to have known that she had a cause of action until May 24, 2006, when she received Dr. Tocchio’s oral advice. The Regulated Health Professions Act, 1991 limitation did not survive the Limitations Act 2002. Therefore, under sections 4 and 5 of the Limitations Act, the two-year limitation applies.

[21] Discoverability: The Plaintiff says that she did not know key facts until Dr. Tocchio’s consult on May 24, 2006, when she found out, for the first time that:

a) There was a previously undiagnosed fracture in her jaw, unreported at the time of surgery,

b) Corrective surgery was required to remedy her situation, and

c) Doctors Gaik and Pyes’ conduct was serious enough warrant a complaint to the College of Dental Surgeons of Ontario.

[22] The Plaintiff submits that, in medical malpractice cases, the Plaintiff usually requires an expert opinion in order to discover that she has a claim. For example, in dealing with cosmetic surgery, where the outcome is often subjective, “the patient may be unhappy with the result, but will not know whether the unsatisfactory outcome may be the result of negligence rather than an unfortunate, but non-negligent outcome.” [See Lawless v Anderson [1022] O.J. No. 519 (C.A.), at para 23-25]. In this case, the Plaintiff was not advised until May 24, 2006 of the undiagnosed, pre-existing fracture and that she might need corrective surgery. These were “absolutely fundamental to permit a conclusion that there is a cause of action.”, to quote Plaintiff’s counsel. The Plaintiff must know what was wrong, why it was wrong, what would have to be done to correct it, and who was responsible. [See Lawless, para. 30].

[23] The Plaintiff argued that I should find the cases of Lawless, DiBiasi and Patterson, “irresistible”, on a factual basis, in finding that the Plaintiff did not discover the essential facts on which she could found a cause of action, until May 24, 2006 when she met with Dr. Tocchio.

[24] In argument, the Plaintiff went further. She submitted that the limitation did not begin to run until there was an opinion that there was an error in or breach of the standard of care. [see Lawless, at para. 25]. She says that she had no information that would lead a reasonably prudent person, with appropriate access to relevant medical knowledge (following reasonably diligent investigation) to determine that she had a prima facie case against the Defendants [see Lawless, at para. 28]. Knowledge that the Defendants fell below the standard of care is necessary for the limitation to begin to run. Knowing the identity of the Defendants as being involved in the procedure is not enough. Knowledge of the purported omissions is. See George v. Newfoundland and Labrador, [2013 80917](https://www.canlii.org/en/nl/nlsctd/doc/2013/2013canlii80917/2013canlii80917.html) (NLSCTD), at para [69 and 73].

[25] The Plaintiff conceded that Dr. Tocchio’s August 2007 report did not mention the standard of care. The only evidence of the breach of the standard of care was the report from Dr. Schacher dated February 24, 2014. Therefore, according to the Plaintiff’s theory, the limitation did not begin to run until Dr. Schacher’s report, which is irrelevant as that report came after the Notice of Action was issued.

[26] Due Diligence: The Plaintiff made two arguments in support of her due diligence in discovering her cause of action. First, she says that while she did consult with several doctors before Dr. Tocchio, all of these dealt with treatment, not standard of care, causation or correction of her problems. Doctors Dore, Gaik and Pye all reassured her and told her nothing was wrong and that she had to await the healing process. Until 2006, while the Plaintiff had suspicions, was angry, upset and had a sense of injustice, this is not enough. It was not until 2006 that she had an expert to help her make the prima facie case.

[27] Second, the Plaintiff says that she consulted a lawyer who told her that the limitation had likely expired and that he would not commence the claim without an opinion addressing discoverability. On what basis was she to gainsay the advice of her lawyer?

The Defendants’ Reply.

[28] The Defendants say that if the Plaintiff’s limitation does not begin to run until she received an opinion (a position they say is incorrect, in law and fact) Barry did not act with reasonable diligence in obtaining such advice. She was referred to the Mt. Sinai Facial Pain Clinic in September 2001 and did not go. Dr. Patterson, in his report of November 19, 2001, and Dr. Jarekca in her notes dated September 20, 2001 both said that Barry should see another oral surgeon for an opinion. She did not do so. At several points after April, 2003, her lawyer told her to get an opinion. She did not do so. It was not until 2012/13 that she began to seek opinions on the standard of care from relevant specialists. It is arguable that she still has not done due diligence in that the specialists she consulted are not directly relevant. Dr. Schacer is an orthodontist, and cannot opine on Dr. Pye’s actions. She has not yet gone to an oral surgeon.

ANALYSIS

1. Rule 20.

[29] This motion is for Summary Judgment under Rule 20. On January 23, 2014, the Supreme Court of Canada released its decision in Hryniak v. Mauldin, 2014 SCC 7, which addresses the new test for Summary Judgment under recently amended Rule. 20. The Supreme Court of Canada considered when Summary Judgment can be granted on the basis that there is “no genuine issue requiring a trial,” and when it is in the “interest of justice” for the new fact-finding powers in R. 20.04(2.1) to be used on a Summary Judgment motion.

[30] The relevant portions of Rule 20.04 are:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent

3. Drawing any reasonable inference from the evidence

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[31] When can summary judgment be granted? The Supreme Court of Canada stated, at para. 49:

[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

The overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication.” The Court went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” emphasis added, see Hryniak, para [50].

[32] What are the “interests of justice”? The powers available under Rules 20.04(2.1) and (2.2) only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. The Court noted: “The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.” See Hryniak at para. [56].

[33] The motion judge must engage in a comparison between the advantages of proceeding by way of summary judgment or proceeding by way of a trial. Such a comparison may include an examination of the relative cost and speed of each medium, as well as the evidence that is to be presented and the opportunity afforded by each medium to properly examine it. The court noted that, “when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so.” See Hryniak para. [59]. However, the inquiry must go further, and must also consider the consequences of the motion in the context of the litigation as a whole.

[34] Approach to a motion for summary judgment: The Supreme Court mandated the following steps:

1. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-findings powers. See Hryniak para. [60]. There will be no genuine issue requiring trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.

2. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The motions judge may, at her discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if the use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[35] The Supreme Court also examined when it is appropriate to hear oral evidence under R.20.04 (2.2.). The Court held that “[t]his power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action.” A party who seeks to lead oral evidence should be prepared to demonstrate why such evidence will assist the motion judge.

[36] The Court also examined the role of a judge on a summary judgment motion, with respect to controlling the size of the record, managing the time and cost of the motion, and giving other directions. Finally, the Court examined R. 20.05, which gives the motion judge powers to make certain orders, even where the motion for summary judgment is dismissed, in order to craft a trial procedure that will resolve the dispute in a more appropriate and expeditious way.

[37] As will be made clear from the reasons below, there is no issue here that requires a trial, or the use of the new Rule 20 “powers” to fairly and justly determine the limitation question. I find that I can address the limitation question fairly, and in the interest of justice, on the record before me.

2. Potentially Applicable Limitations:

[38] The applicable statutes are as follows:

Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991 c. 18

s. 89(1) No person who is or was a member is liable to any action arising out of negligence or malpractice in respect of professional services requested of or rendered by the person unless the action is commenced within one year after the date when the person commencing the action knew or ought to have known the fact or facts upon which the negligence or malpractice is alleged.

Limitations Act, 2002 S.O. 2002, C. 2

Basis limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

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).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act of omission on which the claim is based took place, unless the contrary is proved.

Limitations Act 2002, S.O. 2002, C. 24, Schedule B

24.(1) In this section,

“former limitation period” means the limitation period that applied in respect of the claim before January 1, 2004.

(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

(3) If the former limitation period expired before January 1, 2004, no proceeding shall be commenced in respect of the claim.

(5) If the former limitation period did not expire before January 1, 2004 and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply;

1. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.

s.24(2) This section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

1. Law Regarding Limitations

[39] There was no real controversy between the parties with respect to the applicable principles of law. The difference between the parties was in the principles’ application to the facts.

[40] The onus is on the Plaintiff to establish that the action was brought within the limitation, including, if necessary, that the discoverability delayed the commencement of the running of the limitation by establishing, on evidence, the material facts giving rise to the action were not within his knowledge within the requisite time period from the date he issued the Statement of Claim. [See Findlay v. Holmes, 1998 5488 (ON CA), [1998] O.J No. 2796 (C.A.), para 25 & 26, and McSween v. Louis, 2000 5744 (ON CA), [2000] O.J. NO. 2076 (C.A.), para 37 (C.A.)]. With respect to s. 5(2) of the Limitations Act, 2002, there is a rebuttable presumption that the Plaintiff had knowledge sufficient to start the limitations running, on the date the event occurred giving rise to the cause of action. See s. 5(2) Limitations Act, 2002, S.O. 2002, and Ferrara v. Lorenzetti, [2012 ONCA 851](https://www.canlii.org/en/on/onca/doc/2012/2012onca851/2012onca851.html) (C.A.), para. [8].

[41] The test under s. 5(1)(a) of the Limitations Act (the date on which the Plaintiff actually knew that she had (i) suffered injury, (ii) because of an act or omission (iii) by the defendant (iv) and that an action would been an appropriate remedy), is a subjective test. The test under s. 5(1)(b) (when the Plaintiff knew or ought to have known the facts under s. 5(1)(a)) is an objective test. See Ferrara, supra, para. [33]. Since the wording of the RHPA is similar to the Limitations Act, the same test should apply.

[42] Limitations are not to be ignored. The Plaintiff must act with due diligence in acquiring facts in order to be apprised, fully, of the material facts on which the claim can be based, including in obtaining a medical opinion, if one is required, so as not to delay the commencement of the limitation period. See Soper v. Southcott, [1998 5359 (ON CA)](https://www.canlii.org/en/on/onca/doc/1998/1998canlii5359/1998canlii5359.html), [1998] O.J. No. 2799 (C.A.), para. [21].

[43] The Plaintiff need not be certain that the Defendants’ act or omission caused or contributed to the loss in order for the limitation to begin to run. The limitation begins to run from when the Plaintiff had, or ought to have had, sufficient facts to have prima facie grounds to infer that the Defendants’ acts or omissions caused or contributed to the loss. [See Kowal v. Ciddio, 2012 ONCA 512 (C.A.), para 18 & 19, Gaudet et al. v. Levy et al. (1984) 1984 2047 (ON SC), 47 O.R. (2d) 577 (H.C.), McSween , supra, para 46, and Lawless, supra, para. 28].

[44] The limitation begins to run when the Plaintiff knew or ought to have known, on a prima facie basis, that she had (i) suffered injury, (ii) because of an act or omission (iii) by the defendants, and (iv) that an action would been an appropriate remedy. See Kowal, supra, at para [19](https://www.canlii.org/en/on/onca/doc/2012/2012onca512/2012onca512.html), and Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., [2013 ONSC 80](https://www.minicounsel.ca/scj/2013/80), [2013] O.J. NO. 634 (Ont. S.C.J.), at para. [56 to 58]. The discovery of a claim does not depend on the plaintiff knowing that his or her claim is likely to succeed. It runs from when the Plaintiff knows or ought to have known of a potential claim. The fact that he later discovers facts which change a borderline claim into a viable one does not postpone the discovery of the claim. [See Tender Choice, supra, at para. 59]. Justice Desotti, in Tremain et al., v. Muir et al. 2014 ONSC 185 put it this way:

[54] Do we merely hope that a Statement of Claim is timely or is the assessment of timeliness to be determined after all of the material facts are discovered? Do we need a ‘eureka’ moment as was the case in Patterson, or can there be some sort of totality of disquiet, unhappiness, or a culmination of concern that somehow moves the principle of discoverability beyond a time from where at least some of the culminating facts had been known but were new material facts might arise?

[55] The simple answer is a resounding no! Plaintiffs and lawyers acting for plaintiffs must be aware that when a patient expresses some concern about an operation by a physician or physicians or a course of conduct or treatment experienced by an individual, for example at a hospital, an assessment at the time must be made to ascertain whether this unhappiness might be grounded in negligent [sic] or below a standard of care that objectively one would deem to be appropriate.

[45] The Court of Appeal in Lawless, supra, at para. 36 and 37 tells us:

[36]… To discover a claim, the plaintiff need only have in her possession sufficient facts upon which she could allege negligence. Additional information will support the claim and help to assess the risk of proceeding, but is not needed to discovery the claim. As this court stated in McSween, at apra. 19:

To say that a plaintiff must know the precise cause of her injury before the limitation period starts to run, in my view, places the bar too high. Both the one year limitation period itself, as well as the production and discovery process, and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants. In order to come within s. 17 of the [Health Disciplines’ Act], it is sufficient if the plaintiff knows enough facts [upon which] to base her allegation of negligence against the defendant [Emphasis added].

[46] Further, one does not need full knowledge or appreciation of the nature of the damages before the limitation clock starts running. The exact nature and extent of the injury need not be known for the cause of action to accrue. Once the Plaintiff knows that some damage has occurred and has identified the possible tortfeasor and his acts as the potential cause, the cause of action has accrued. Neither the extent of the damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty into cases where the full scope of the damages may not be ascertained for an extended period of time beyond the general limitation period. See Peixeiro v. Haberman, [1997 325 (SCC)](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii325/1997canlii325.html), [1997] 3 S.C.R. 549, at para. [18].

[47] The single largest issue between the parties in this case is whether the Plaintiff needed medical opinion in order determine the necessary facts on which her cause of action was based, and when she ought to have obtained that expert opinion.

[48] It is well accepted that in medical malpractice cases, a Plaintiff may know the material facts sufficient to found a cause of action, without medical opinion. In those cases, medical opinion is merely evidence for the trial, and immaterial to the commencement of the running of the limitation period. See Soper, supra, at para. [21](https://www.canlii.org/en/on/onca/doc/1998/1998canlii5359/1998canlii5359.html), Findlay, supra, at para. [29 to 31](https://www.canlii.org/en/on/onca/doc/1998/1998canlii5488/1998canlii5488.html), and McSween, supra, at para. [43, 47 & 48].

[49] In other cases, medical evidence may be necessary to determine the facts. For example, a doctor’s assistance may be required to tease out from complex medical records facts the Plaintiff could never determine, such as which of the multiple people in the surgical theatre, did the deed that caused the damage, or what the specific problem was. Patterson v. Anderson et al. (2004), 2004 21532 (ON SC), 72 O.R. (3d) 330 (S. C. J.), is a perfect example of circumstances in which medical opinion is required before it can be said that the Plaintiff had sufficient facts on which to found a cause of action. The 71 year old Plaintiff had liposuction on her knees and thighs in June, 1998 but was dissatisfied with the results. In February, 1999 she complained to the College about the doctors who performed the liposuction. In May, 2002, the College released a decision to the effect that the doctor used the wrong instrument in doing the liposuction, and that the Plaintiff was not a suitable candidate for the liposuction and it ought not to have been done. Between February, 1999 and May 2002, the Plaintiff contacted several lawyers none of whom was retained to commence an action and none of whom did any investigation.

[50] The Court of Appeal held that until the College spoke the Plaintiff could not have known that the wrong instrument was used nor that she was not a suitable candidate for the surgery. Therefore, her action, brought in October, 2002 was not statute barred.

[51] It is significant that in Patterson, the Plaintiff’s complaints were purely subjective, until the facts were revealed by the College.

[52] Similarly, where a case is very complex or unique on its facts, it stands to reason that an expert’s opinion is necessary. [see George et al. v. The Queen in Right of Newfoundland and Labrador, 2013 NLTD(G) 170, at para. 78 and Lawless, supra, at para. 24].

[53] Also, where a Plaintiff is upset, but “has no facts” as to the cause of death of a relative, medical opinion may be necessary before the cause of action arises [see Armitage v. Brantford General Hospital, 2004 32184 (ON SC), [2004] O.J. No. 2012 (S.C.J.) and Debiasio v. York Central Hospital et al, 2012 ONSC 3181 (S.C.J.)].

1. When does the Limitation begin to run in this Case?

[54] When did the Plaintiff know she had a cause of action? I find that the Plaintiff knew, at the latest by August 20, 2003 that she had (i) suffered injury, (ii) because of actions, (iii) by the defendants, and (iv) that an action was likely necessary to seek redress.

[55] In her cross examination or Discovery transcript, Barry was examined on the August 20, 2003 note from her family doctor in which she is noted to have complained that since the jaw surgery, her “life has been taken away from her”. She detailed her frustration, anxiety and depression to the doctor, arising from her jaw surgery. She demonstrated physical limitations arising from poor jaw function. The doctor records that the Plaintiff “Feels better now that she has a lawyer who understands she does not have any money, is confident she has a case, and will take her case on a contingency basis, with no payments now.” [See notes filed as Exhibit EE to Dr. Gaik’s affidavit, Motion Record, Tab. 2]. In examination, she admitted that she thought as of that date, based on what she knew at the time, she was confident she had a case against the doctors for injuries she suffered at their hands during the treatment that they provided to her. She said that she told all this to her family doctor on August 20, 2003. [See Virginia Barry Transcript Brief, tab 2, pages 11 – 12, questions 49 – 58].

[56] Since the Plaintiff knew enough facts on which to base a prima facie cause of action on August 20, 2003, which is before January 1, 2004, under s. 24(5)2 of the Limitations Act, 2002, the one year limitation under s.89(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 applies, the limitation is one year from when she knew she had a cause of action, the limitation is expired by August 20, 2004.

[57] This finding that the Plaintiff knew by August 20, 2003 that she had a cause of action does not rest solely on the doctor’s note of August 20, 2003 and her examination.

[58] The Plaintiff’s case is that the doctors were negligent a) in recommending the surgery (it was not suitable for her), b) it was not done properly, and c) she was not given appropriate or sufficient information about the surgery to make an informed decision about it. In my view, she was already aware of facts in support of all of these claims, on a prima facie basis, by August, 2003.

[59] In 2001, she complained about jaw asymmetry, lower lip problems, numbness in her jaw and face, limitations in her jaw function and pain in her face. Up to and including the visit with Dr. Dore in March, she was reassured that the healing process was still ongoing. However, the problems persisted. Through the balance of 2001, she continued to complain of looking like a “bulldog”, facial asymmetry and deformity, difficulty swallowing and speaking, facial numbness, pain in chewing, jaw malfunction. By July 5^th, she began to complain that she had not been adequately informed (or informed at all) about the risks and possible outcomes of the surgery, and that Doctors Dore, Gaik and Pye were conspiring against her to protect Gaik and Pye. All of these complaints persisted through 2001.

[60] In 2002, Barry’s complaints continued, including that she was having trouble chewing, was biting her lip, and her appearance was still not correct.

[61] In 2003, up to and including August 20^th, her complaints remained that she was misinformed of the surgical procedure and its possible outcomes and that she had been manipulated by the doctors. Her January 23, 2003 letter to Dr. Taylor is illustrative. The complaints Barry makes in that letter bear a striking similarity to the allegations made in paragraphs 13 to 16 of the Statement of Claim. By January, 2003, she told Dr. Taylor that she had retained a lawyer and intended to sue Dr. Gaik. She told another dentist on February 14^th that she was intending to sue.

[62] Therefore, while it could be said that the Plaintiff was aware before August 20, 2003 of the things necessary to say that her cause of action had accrued, based on her cross examination, there is no doubt that, in her mind, she was aware by August 20, 2003 that she suffered damages, because of the surgery, performed and/or recommended by the Defendants, and that she intended to sue them.

[63] Discoverability. If I am wrong in making the finding that the Plaintiff knew by August 20, 2003 the facts on which she could found a prima facie case against the Defendants, I also find she should have known the facts by that time.

[64] The Plaintiff’s position is that she was not in a position to know the facts on which she could base a prima facie claim against the Defendants until she received oral advice from Dr. Tocchio on May 24, 2006. That advice was that there was a break in her jaw that had gone undiagnosed, and she did not know until that time that she could make a complaint to the College.

[65] The analysis of what the Plaintiff knew, and when, as discussed above, is applicable to the issue of discoverability. Even if Barry did not know, in fact, by August 20, 2003, the facts on which she could found a cause of action, with the relevant knowledge as set out in the case law, I find she ought to have known by that time. The fact that there was an undisclosed break in her jaw, or that she might need corrective surgery to remedy some of her problems, is evidence of more damage than she may have already appreciated, but as said in Peixeiro, by August, 2003 she was already aware of considerable damage that she thought was caused by the negligence of the doctors, and for which an action was the proper way to seek remedy.

[66] Doctor Tocchio’s Report: The Plaintiff says that she did not know the facts on which the cause of action could be based, in sufficient detail “to bring it home” to her, until Dr. Tocchio’s oral advice in May 24, 2006. I disagree. She knew or ought to have known by August 20, 2003 of the essential facts on which she could found a cause of action. Her complaints to her treating and other doctors is replete with consistent complaints about her physical and psychological injuries, and that fact that they were caused by the Defendants’ negligence, including that she was not adequately informed about the procedure and its possible risks and outcomes to make an informed consent. I say this, accepting her statements in contemporaneous recordings of them (whether by her or by others) at face value. These conflict with her position in this motion regarding Dr. Tocchio’s report.

[67] In any event, as in Lawless, the doctor’s report does not disclose new and necessary, facts on which the Plaintiff could found her claim; it discloses only additional facts on which the Plaintiff could found her claim.

[68] Due Diligence: If I accept that Dr. Tocchio’s oral advice in May 24, 2006 is the time at which the limitation clock begins to run because that is when she first knew, with sufficient specificity, that she had a cause of action, the question arises of whether the Plaintiff acted with due diligence in obtaining that opinion. The Plaintiff submits she acted with due diligence. She says that she was lulled into believing she did not need an opinion since the doctors she saw saw her for treatment, not opinion, and they reassured her that things would improve once the healing process was complete. This was estimated to be a year. I accept this position. After that point, however, the Plaintiff’s relative inaction is problematic.

[69] Barry received a second opinion from oral surgeon, Dr. Dore, on March 15, 2001, but was not satisfied with it given the severity and persistence of her complaints. In 2001, Barry was referred to and saw neurologist Fawcett, orthodontist Burton, plastic surgeon Patterson, her general dentist Jarekca, the Defendant Gaik and orthodontist Taylor, most of whom said the problems were out of their specialties. Doctors Patterson and Jarekca told her to see another oral surgeon for a second opinion. She never made an appointment or sought the opinion. Dr. Gaik told her to see the Mt. Sinai Facial Pain Clinic in Toronto, and wrote the referral. She never went there. In 2003, Dr. Taylor said she should see Dr. Harnett, an oral surgeon, for a second opinion and made the referral. The Plaintiff never made the appointment. The Plaintiff’s lawyer also told the Plaintiff to obtain a second opinion from an oral surgeon [see his letters of May 5 and November 10, 2003]. There is no evidence that the Plaintiff took the advice of her own lawyer and doctors about getting another opinion, until late 2005 when she apparently arranged to see Dr. Tocchio in May 24, 2006. This is hardly expeditious conduct.

[70] I have reason to doubt the credibility of Plaintiff’s position that she acted with due diligence. On the morning of the hearing of the motion, the Defendants filed an Affidavit attaching four documents received as part of the Plaintiff’s original lawyer’s file. The Plaintiff’s current lawyer received that file at the end of February and sent it immediately to the Defendants’ lawyer. The Affidavit attached two letters, and two memos to file, extracted from the original lawyer’s file. The parties agreed that I could accept the documents for what they were, as business records. They agreed that I could accept the letters as sent and received. With respect to two memos to file, the Plaintiff took the position I could not accept them for the truth of their contents. The Plaintiff’s lawyer agreed I could use them only to test the credibility of the Plaintiff. I agree with that submission. These memos, dated October 3, 2003 and April 15, 2004, purport to say that Barry was directed to seek an expert opinion. Whether this discussion took place is unknown. They confirm, however, the lawyer’s advice as stated in his letters in May and November, 2003. Indeed, the November 10, 2003 letter confirms the discussion on October 3 2003, noted in that note. The business records suggests that the Plaintiff’s current position that she acted with due diligence in getting the expert opinion she says she needed to discover her cause of action, has less credibility.

[71] Discovery is delayed because of the advice of the Lawyer. The Plaintiff says that until her lawyer told her she had a valid cause of action, she cannot be expected to have formed that opinion. I disagree, for several reasons.

[72] In May, 2003, the Plaintiff consulted a lawyer. In his letter of May 5^th, he said to her that he thought that the limitation had expired. He urged her to provide the modest disbursement cost to begin an action, presumably to prevent any further prejudice from accruing to Barry. He told her to retain an expert to advise Barry about her situation, which could also assist in determining when she should have “discovered” her claim. He also urged her to obtain medical records, and discuss with family and friends obtaining financial support. This was good advice in the circumstances. The lawyer never received instructions to bring an action, even if it was to stop the time from running. We know from elsewhere in the file that she did not obtain the expert report.

[73] On November 10^th, he wrote his client, again, advising that the limitation had passed but gave the same advice. The only difference is that he added that without the opinion as to discovery of the claim, commencing an action would be a waste of time and money. Again, in the circumstances this was good advice. It does not appear from the file that she acted on this advice.

[74] Further, one cannot say that that it is unfair to expect the Plaintiff to form an opinion as to the facts germane to the issue of discoverability because the lawyer could not form such an opinion. As discussed elsewhere, the Plaintiff, by this time, had a very firm opinion as to the fact that the doctors’ activities had caused her loss. In her mind, those activities included not informing her sufficiently to make informed consent. Her lawyer told her to begin an action and to get an opinion. She did not instruct him to commence the Claim. She said she was attending to the issue of an expert, but did not do so until 2006.

[75] Lack of informed Consent/Inappropriate Advice: The Plaintiff argues that she did not know the particular medical acts or omissions that gave rise to her cause of action until May 24, 2006. She alleges that the doctors gave no or inadequate advice on the risks attendant on, and possible outcomes of the surgery.

[76] As discussed above, the case law tells us that such specific knowledge of the acts or omissions, or of the actual negligence of the tortfeasors, is not necessary. The Plaintiff need only have prima facie evidence on which to found a claim. Even if this higher level of information was required here, on the issues of informed consent, the Plaintiff clearly understood the facts on which this particular cause of action was based long before May 24, 2006. The Plaintiff was aware from as early as July 5, 2001 that she had been misinformed. On that day she told Dr. Gaik that she was never advised that facial numbness and “freezing” was a possible outcome of the surgery. On August 9, 2001, she told Gaik that Gaik had lied to her about the bone protruding on the right side of her jaw. On September 20, 2001, she told family dentist Jarekca that she was misled into having the surgery. On September 27, 2001, she accused Dr. Gaik of lying to her again, and said that if Dr. Gaik hadn’t lied to her about the surgery, she would not have had it. She demanded an independent opinion from someone outside of Hamilton. She was given a referral to Mt. Sinai’s facial pain clinic, but did not make the appointment. Her letter to Dr. Taylor on January 23, 2003 confirms her belief, yet again, that she was misrepresented to, lied to and manipulated by the Defendants.

[77] In short, Ms. Barry did not need Dr. Tocchio’s advice to know the facts supporting this cause of action.

[78] Infant’s Claim: One of the Plaintiffs is an infant. All parties agree that the infant’s claim is derivative, and falls or stands with the adults’ claim. By similar logic, all FLA claims are derivative and stand or fall with the injured Plaintiff’s claim.

DISPOSITION

[79] For the reasons discussed above, the Defendants’ motion for Summary Judgment is granted and the action is dismissed.

[80] With respect to who should pay costs and in what amount, the parties may book an hour long appointment before me, in Milton, at 9:00 a.m., to speak to the issue of costs, exchanging and filing their bills of costs and submissions not less than 7 days in advance. If the parties agree and so advise me, I will make the decision on the written material, alone.

Trimble J.

Released: March 26, 2014

COURT FILE NO.: Hamilton 08-2688

DATE: 2014-03-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

VIRGINIA BARRY, Personally and as Litigation Guardian for the minor JACOB DAVID BARRY, JESSICA MAY BARRY AND JENNIFER ANN BARRY

Plaintiff

– and –

ROBERT J. PYE and NATALIE M. GAIK

Defendants

REASONS FOR JUDGMENT

Trimble J.

Released: March 26, 2014