Gustav Kristensen v. Dr. Dale Schilser et al., 2014 ONSC 1976

COURT FILE NO.: 9144/09

DATE: 2014-03-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GUSTAV KRISTENSEN

Plaintiff

– and –

DR. DALE SCHILSER, HOPEDALE DENTAL OFFICE and DR. GLENN MORAWETZ

Defendant

John W. Bruggeman, Counsel for the Plaintiff

Valerie Wise and Katherine Aukema, Counsel for the Defendants

HEARD: February 24, 2014

REASONS FOR JUDGMENT

TRIMBLE J.

1This is a motion for Summary Judgment, brought by the Defendants, a dentist and oral surgeon, in an action by Kristensen, alleging dental malpractice. This case involves issues of credibility of the parties, and therefore, puts squarely before the Court the new test for disposing of matters summarily, the new powers in Rule 20.04(2.2) and the powers under Rule 20.05.

2The motion was scheduled for January 27, 2014, but adjourned on consent, at my suggestion, to February 24, 2014 so that the parties could ponder the impact of the Supreme Court of Canada’s decision in Hryniak v. Mauldin et al., 2014 SCC 7, released January 23rd. At the same time, I recommended that counsel consider the impact of Justice David Brown’s comments at paras. 30 to 38 in George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

3The matter proceeded with full argument on February 24, 2014. At the outset of argument I asked counsel to consider whether a full trial was necessary. I also asked them to provide me with their views on what abbreviated procedure or what sort of evidence I might require under Rule 20.04(2.2) and 20.05, assuming that I did not grant full Summary Judgment or a full trial. I also asked for some advice as to the possible range of value of the file, so that I could assess proportionality.

4Neither lawyer provided any advice on either question. Counsel for the Defendants said only that I should grant full Summary Judgment. Counsel for the Plaintiff said only that I should require a full trial.

5Ultimately, for the reasons expressed below in more detail, I order that an abbreviated trial be conducted.

THE BASIC DISPUTE:

6On November 4, 2008, Dr. Morawetz, an oral surgeon, removed the Plaintiff’s tooth #17. This was based on a referral from Dr. Schisler, the Plaintiff’s dentist. The parties agree that tooth #17 had a hopeless prognosis. It was destined to come out at some point. The Plaintiff says, however, that he agreed that tooth #15 should be removed, not #17. He sues for negligence and battery.

7The Defendants submit that “the case is that simple”. Not quite.

FACTUAL DISPUTES:

8The facts not in dispute are set out in paragraph 7 of the Defendants’ factum, which reads (without evidentiary references):

7. There is agreement about the following, with respect to the teeth in the upper right quadrant of the plaintiff’s mouth:

(a) That on October 18, 2007, Dr. Schisler saw the plaintiff for an emergency examination because the crowns on #15, #16, and #17 had fractured off. Dr. Schisler re-cemented them.

(b) The plaintiff described that those crowns fractured off “quite often”, and Dr. Schisler would re-cement them.

(c) On December 17, 2007, the plaintiff attended for another emergency examination because the crown on tooth #17 had again fractured off, at the gum line. The crown was not re-cemented or replaced this time.

(d) The plaintiff is unable to agree or disagree with Dr. Schisler’s evidence that on December 17, 2007, Dr. Schisler put restorative material on tooth #17, to cover the surface. The plaintiff agrees that whatever was put on was to protect the gum, “just to cover the tooth” – but “not that it would take part in the chewing”.

(e) On March 4, 2008, tooth #16 was extracted.

(f) On May 20, 2008, the plaintiff attended for another emergency examination (this the third in 7 months) with respect to tooth #17 – Dr. Schisler replaced the restorative material on tooth #17.

(g) On May 20, 2008, Dr. Schisler told the plaintiff that this was a temporary repair and that tooth #17 would need to be extracted one day.

(h) On May 20, 2008, Dr. Schisler referred the plaintiff to Dr. Morawetz for a consultation about an implant at the site of #16.

(i) At that time, tooth #17 had restorative material but not a crown; tooth #16 had been extracted; and tooth #15 had a crown that had been re-cemented several times.

(j) The plaintiff first saw Dr. Morawetz on July 22, 2008. They discussed a possible implant at the site of #16, and Dr. Morawetz recommended the extraction of tooth #36.

(k) The plaintiff returned to see Dr. Morawetz on July 28, 2008, at which time Dr. Morawetz extracted tooth #36.

(l) Dr. Morawetz states, and his contemporaneous chart reflects, that at that appointment he discussed with the plaintiff placing two implants in the upper right quadrant – at the site of both #16 (which had been previously extracted in March 2008) and #17 (which was not yet extracted, but it the tooth at the centre of this lawsuit). Under cross-examination, the plaintiff admitted that Dr. Morawetz mentioned and they talked about that #17 would “probably have to come out”, as Dr. Schisler had already advised him.

9What is in dispute is what transpired on October 16, October 30 and November 4, 2008. Any finding of what transpired on those days is a matter of credibility, primarily of the Plaintiff, since the Defendants have contemporaneous records that support their positions, generally.

10The Defendants’ Version of the Facts: The Defendants say that the contemporaneous records, circumstantial evidence and the Plaintiff’s own behaviour are sufficient to resolve any credibility issues and find that the Plaintiff understood that tooth #17 was to be removed and consented to it. Alternately, the Defendants say that the record supports a finding that the Defendants reasonably believed that the Plaintiff consented to tooth #17’s removal.

11The Defendants say that on October 16th, the Plaintiff came to Dr. Schisler (as part of a long series of attendances regarding dental deterioration) for the fourth time, because of pain in tooth #17. Dr. Schisler x-rayed teeth #15 and 17 (#16 having been removed much earlier). Dr. Schisler told the Plaintiff that the x-ray showed #17 had a split root and was abscessed. It had to come out. He gave the Plaintiff the x-ray and a referral form for an appointment on November 4th with Dr. Morawetz regarding the extraction of #17. He arranged the appointment with Morawetz before filling out the referral form. Dr. Schisler says he gave the Plaintiff both the referral form and x-ray, with instructions to give them to Morawetz on November 4th.

12Both Defendants deny that they had contact with the Plaintiff on October 30th. Rather, they say that the next event occurs on November 4th, when the Plaintiff saw Dr Morawetz. Morawetz says he reviewed the x-rays with the Plaintiff and he proposed extraction. He discussed with the Plaintiff that the x-ray confirmed tooth #17 had to come out, and that it was not restorable. He discussed with the Plaintiff putting in a double implant in its place (reflecting the Plaintiff’s preference for implants rather than dentures or bridges, and the fact that tooth #16 had been removed some time earlier). He says that the Plaintiff was in no doubt as to the procedure and the tooth at issue. The extraction was completed without difficulty.

13As indicated above, the Defendant submits that while the case is one of credibility, all issues of credibility can be resolved based on the record. They say this in part because medical records made contemporaneously by someone with personal knowledge of the events and under a duty to make the record should be received as prima facie proof of the facts contained in the records. [See Ares v. Venner, 1970 5 (SCC), [1970] S.C.J. No. 26 at p. 14].

14The Plaintiff’s Version of Facts: The Plaintiff disagrees with everything that the Defendants say about the three dates, laying out a very different version of the facts. This is based on his own belief in the truth of his story, and his allegation that the Defendants’ records were incorrect, or worse, falsified.

15The Plaintiff admits he saw Schisler on October 16th for pain in tooth #17. He says, however, that he left that visit without a recommendation or plan of action, no referral and no x-ray films, although he admits they were taken. The Plaintiff says that on October 27th, he broke tooth #15 and came to see Schisler on the 30th. He showed the receptionist the pieces of broken tooth. The receptionist made the appointment with Morawetz for November 4th and gave the Plaintiff the referral slip and x-rays. The Plaintiff says that at that meeting, all discussion concerned tooth #15. There was no discussion of tooth #17.

16There is no note in Schisler’s chart of this October 30th visit. Schisler says it is because the visit never happened. It is against office policy for receptionists to see patients or book referrals. All referrals must be signed by the dentist (indeed, this one was signed by Schisler). It is against office policy to see a patient for any reason and not chart the visit. There was evidence through Schisler, on information and belief, that the receptionist is identified, and said that she does not remember the visit.

17The Plaintiff says the lack of a chart note for the October 30th visit is explained because either the receptionist didn’t chart the visit or Schisler’s office edited the records to remove the note.

18The Plaintiff says that he went to Morawetz’s office on November 4th, having been told by Schisler’s office on 30 October that what remained of broken tooth #15 was coming out. He does not explain away the discussion on October 16th in terms of his misunderstanding then that the plan was that #17 was coming out. The Plaintiff says that on November 4th, Morawetz did not discuss extraction of any tooth. He did not examine the Plaintiff’s mouth. He did not indicate the tooth to come out by tapping on it, or showing the Plaintiff in the mirror. He took out tooth #17 - the wrong tooth.

19All parties agree that tooth #17 was doomed and would have to come out sooner than later, although what life remained in its short life span was never stated. The Plaintiff says, however, with tooth #15 broken off to a small stub, he needed tooth #17 to chew until tooth #15 was repaired or replaced.

LAW ON SUMMARY JUDGMENT.

20In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada considered when Summary Judgment can be granted on the basis that there is “no genuine issue requiring a trial,” under Rule 20.04(2)(a). The court also considered when it is against the “interest of justice” for the new fact-finding powers in rule 20.04(2.1) to be used on a Summary Judgment motion.

Relevant excerpts from Rule 20

20.04

(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.

21When can Summary judgment be granted? The Supreme Court of Canada stated, at para. 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.

22The overarching question 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).

23What are the “interests of justice”? The powers available under rule 20.04 subrules (2.1) and (2.2) are presumptively available. They 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.”

24The motion judge must compare the advantages of proceeding by way of Summary Judgment and proceeding by way of trial. This comparison may include an examination of the relative cost and speed of both procedures, as well as of the evidence to be presented and the opportunity 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.” However, the inquiry must go further, and must also consider the consequences of the motion in the context of the litigation as a whole.

25Approach to a motion for Summary Judgement: The Court stated that:

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. 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 under rule 20.04(2)(a).

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 rule 20.04 subrules (2.1) and (2.2). The use of the new powers will not be against the interest of justice if they 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.

26If the interests of justice, using a proportional approach, indicate that oral evidence is required, the Judge can order oral evidence under Rule 20.04(2.2). Under Rule 20.05(2), the Court can design a modified trial procedure necessary, short of a full trial, to reach a just and fair result, using a proportional approach.

27The 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. Rule 20.05 gives the motion judge powers to make certain orders, even when 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.

28Proportionality Includes an Assessment of the Use of Public Resources: In his judgment in George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001, Justice David Brown says that any assessment of proportionality must take into consideration, not only the maximization of the litigants’ resources, but also the Court’s and public’s resources. He says (albeit in the backdrop of Combined Air) :

30…. A summary judgment motion may result in the grant of full summary judgment, or it may not. By contrast, a trial will always result in a final determination on the merits. From the perspective of the allocation of scarce judicial resources, the trial exerts a strong attraction because the amount of judicial time devoted to hearing a trial always will result in a final determination on the merits, whereas devoting an equal amount of time to dealing with a complex summary judgment motion may or may not result in a final adjudication. In a time of constrained judicial resources, it should not surprise the Bar or litigants that judges prefer devoting time to achieving a final determination of a case than to dealing with a series of indeterminate, interlocutory motions, including summary judgment motions.

DISPOSITION:

29On the basis of a careful review the record before me, and notwithstanding the able argument of Counsel for the Defendants, I am unable to say that there is no genuine issue requiring a trial. I have weighed all of the evidence presented and tried to draw suitable inferences. More evidence is required in order to do justice between the parties.

30The case turns on the credibility of the parties, more so on the credibility of the Plaintiff. The Defendants have done an admirable job at marshalling evidence to suggest that other evidence resolves credibility issues against the Plaintiff. However, issues of pure credibility remain, which, in my view can be determined only after hearing viva voce evidence.

31Why do I say this?

32The Plaintiff’s version of what happened on October 16, 30 and November 4, 2008 stands in stark contrast to the Defendants’ versions. The Plaintiff has only his memory to rely upon. While the Defendants’ notes record what is done, they have no independent memory outside their notes. While those notes are admissible as prima facie proof of the truth of the contents (Ares v. Venner, supra), they are only prima facie proof, and are open to being contested by other evidence. In this case, the Plaintiff says some or all of the records are falsified or negligently kept.

33The resolution of most of the case hangs on the Plaintiff’s credibility, and, based solely on the Record, the Plaintiff has an uphill battle. If the Plaintiff is found to be highly credible (meaning believable and reliable) his specific recall may trump any evidence in the medical records, especially since the Defendants generally have no memory other than as recorded in their notes. Since the notes are only prima facie proof of their contents, they are open to challenge on an evidentiary basis. If the Plaintiff is of only modest reliability or believability, then he may not overcome the presumed truth of the contents of the notes.

34For another example, one of the difficult (although not impossible) tasks the Plaintiff faces concerns his proving that the October 30 visit to Schisler’s office occurred. In order to do so, the Plaintiff will have to prove 5 improbabilities:

1. That Schisler’s assistant would violate office policy by holding a consult with the Plaintiff absent the dentist;

2. That Schisler’s assistant would violate office policy by arranging a referral to Morawetz without Schisler’s knowledge,

3. That Morawetz’s assistant would violate Morawetz’s similar office policy;

4. That Schisler’s assistant would forge Schisler’s signature on the referral;

5. That Schisler’s assistants would violate office policy by not charting the visit.

35I note that, on this issue, the Defendant has not properly proved its case. Schisler relies on statements from the receptionist that she does not remember dealing with the Plaintiff on October 31, and that she would not have made the appointment with Morawetz. This is information and belief evidence given by Dr. Schisler. An affidavit from the receptionist is required on a key point such as this.

36A third example of the Plaintiff’s difficult task is with respect of the records. The Plaintiff says that Dr. Schisler falsified or edited his notes and records. Two versions of Dr. Schisler’s notes pertaining to the visits of October 16 to November 27 were produced. One set ended at the end of the November 27 visit. The second set of notes (see the Plaintiff’s Affidavit, Exhibit F) contain six more lines of handwriting. The Plaintiff says that this is evidence of the notes being altered. It is equally explainable that because those 6 lines referred to settlement discussions and the Plaintiff’s threat of a law suit, they were redacted on first production as irrelevant to the facts of the case, and were reproduced in the second round of production without redaction due to sloppiness on the part of the Defendants’ counsel. The explanation of the difference, however has yet to be made. There is no evidence on the point.

37Finally, there is also the issue of damages. Counsel admitted in argument that the damages would be quite modest. This was part of the Defendants’ reason for bringing the motion. There is no evidence, and were no submissions as to what the damages might be.

TRIAL DIRECTIONS:

38As indicated in the opening of these reasons, because of the Hryniak case, I asked counsel to assist me by providing me with their views as to what powers I should exercise under Rule 20.04(2.2) or what procedure I might design under Rule 20.05 to achieve a fair, just, expeditious and proportional resolution, assuming I did not dismiss or allow the motion, outright. Counsel were singularly unhelpful. Each said, according to his interest, that the motion should be granted or dismissed in its entirety. Perhaps counsel were afraid that if s/he offered a ‘middle ground’, I might take it and/or s/he would appear to be deviating from client instructions.

39At the hearing of the motion, I raised the issue of proportionality, not only as between the value of the file and the parties’ expense in achieving a result, but also with respect to the proportional use of Court and public resources as suggested by Justice Brown in the George Weston case. I asked counsel to provide me with a range of the value of the damages so that we might have an informed discussion. Neither counsel was prepared to have this discussion, perhaps for the same reasons as they would not provide me with their thoughts of what powers I might use or procedure I might craft in reaching a just, fair, expeditious and proportional resolution.

40I will weigh counsels’ refusal to be of assistance on my two questions, when I address costs.

41Given the detailed record, this matter does not require a full trial. Absent the assistance of counsel, the only people with the ability to assess the damages in this matter, I am left to assessing proportionality, a difficult task based on the record. I estimate that the general and special damages in this matter would be as low as $5,000 but not exceed $50,000 at their highest. Therefore, for present purposes, exercising my discretion under rule 20.05, I treat the file as if it were within the Simplified Rules, and the continued trial should be by way of a Summary Trial. Under Rule 20.05, I direct that the trial be limited to what occurred on the three dates at issue, the issue of the reliability of the Defendants’ notes, and with respect to damages. This will require cross examination on credibility of each of the parties, of necessity.

42Under Rule 76.12, I direct that the affidavits filed on this motion shall constitute the evidence in chief. The Defendants shall provide properly sworn evidence from staff at the Defendants’ offices where the evidence is currently on information and belief. They will have to lead evidence with respect to the allegedly changed notes. The Plaintiff advised at the hearing of the motion, there was a friend who will testify as to the issue of broken tooth #15. The additional affidavits contemplated above shall be delivered by April 30, 2014.

43Cross examination of non-party witnesses shall be limited to 10 minutes. Cross examination of the Plaintiff shall be limited to two hours. Cross examination of each Defendant shall be limited to one hour. There will be 10 minutes re-examination of each party.

44Reply evidence shall be with leave, only.

45The facta shall constitute argument. There will be 30 minutes for each party to argue their case, further, limiting argument only to the issues identified above, and the evidence adduced on cross examination.

46I direct the parties to find two days in my docket, preferably before the end of the summer, to hear the abbreviated trial in this matter.

47I reserve the issue of costs to the completion of the trial.

Trimble J.