Brown v. Wahl, 2015 ONSC 1328

COURT FILE NO.: CV-14-496964

DATE: 20150227

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: LOUISE SUZANNE BROWN, Plaintiff

AND:

JOHN WAHL and MAURIZIO CASCIATO, Defendants

BEFORE: Stinson J.

COUNSEL: Mark Arnold and Joyce Weinman, for the plaintiff, responding party

Valerie Wise and Heather Hughes, for the defendants, moving parties

HEARD at Toronto: February 17, 2015

ENDORSEMENT

[1] This decision concerns a motion for summary judgment brought by the defendants in this dental malpractice action. The motion is founded on argument that the claims of the plaintiff against the defendant dentists are statute barred because they were commenced after the expiration of the applicable limitation periods. The parties are largely in agreement with respect to the applicable legal principles. They also differ little in relation to the factual chronology. Where they part company, however, is on the application of the legal principles to the facts of this case and, in particular, when the plaintiff knew or ought to have known that she had actionable claims against the defendants.

Factual background and procedural overview

[2] The defendant Wahl was a dentist who practised general dentistry and was the plaintiff’s personal dentist up until his retirement in the fall of 2010. The defendant Casciato is an oral and maxillofacial surgeon.

[3] In the spring of 2008, Wahl referred the plaintiff to Casciato to discuss possible dental implant treatment. The plaintiff was missing teeth in the left upper jaw and left and right lower jaw. Casciato and Wahl both participated in the subsequent treatment of the plaintiff that has resulted in this litigation.

[4] Casciato’s role was consulting and advising with respect to the particular course of treatment he recommended, and carrying out some of the procedures relating to that treatment. Casciato recommended that the best treatment option for the plaintiff was the removal of all of her teeth and their replacement by implants affixed to her upper and lower jaw bones. The implants would then provide the pins or posts protruding from the gums to which would be affixed permanent prosthetics or dentures. Wahl’s role was the fabrication and installation of the dental prostheses.

[5] In May 2009, Casciato performed surgery on the plaintiff in which he removed her remaining natural teeth and placed 12 dental implants, six in her upper jaw and six in her lower jaw. He saw her in follow-up in November 2009 and, according to his evidence, by then all of the implants had integrated properly into her jaw and gums. He did not see her again until February 2012.

[6] In June 2010, the defendant Wahl began the installation of permanent dentures in the plaintiff’s upper and lower jaw, using the pins or posts affixed to the implants placed by Casciato. The final installation of the permanent dentures was completed in September 2010. Wahl retired from practice soon thereafter and instructed the plaintiff to contact Dr. Surrendra Singh (the dentist who took over Wahl’s practice) for any follow-up.

[7] According to the Fresh as Amended Statement of Claim, as a result of the defendants’ dental treatment, the plaintiff suffered from a variety of dental problems after the work was performed. These included: cheek and lip biting; lisping when speaking; food and debris collection and impaction under her upper and lower dentures; lack of contact between her upper and lower teeth when chewing and inability to chew properly; unsightly upper teeth with protruding overjet and overbite; an asymmetrical smile line that deviates to the left; fractures of her lower prosthesis; a fracture of her upper prosthesis; implantitis and gingivitis; implant failures; and bone loss to the extent that removal of all implant fixtures remains the only option, followed by extensive reconstructive surgery and placement of new implants.

[8] During the fall of 2010 and throughout 2011, the plaintiff attended on Dr. Singh, Wahl’s replacement, for follow-up and to address the difficulties she was encountering. On two separate occasions during that time frame, her dentures broke while she was eating. She had ongoing difficulties with biting her cheek, difficulties with eating, accumulating food in her dentures while she ate, such that she had to remove the food during the course of a meal, and speech problems, among others. Eventually, Dr. Singh referred her back to Casciato for a follow-up consultation. That consultation took place in February 2012, but Casciato did not perform any treatment.

[9] In the summer of 2012, the plaintiff was seen by Dr. Allen Burgoyne, a dentist who specializes in prosthodontics and implant dentistry. Among other things, he diagnosed defective/fractured restorations, aberrant occlusal plane with occlusal dysfunction, moderate generalized peri-implantitis and severe localized peri-implantitis. He also identified significant horizontal bone loss on all of the implants in the upper jaw and on one of the implants in the lower jaw. His prognosis was fair to poor for restoration of the upper and lower arches using the existing implants. He recommended removal of the existing prostheses, interim denture construction and a determination of which existing implants might be in a favorable position to be retained.

[10] At some undisclosed point, the plaintiff consulted counsel. On the plaintiff’s behalf, expert opinions were sought in relation to her problems. One expert opinion (from Dr. Limor Avivi-Arber, concerning the defendant Wahl) was forthcoming on January 19, 2014. A second opinion (from Dr. Douglas J. Paterson, concerning the defendant Casciato) was forthcoming on February 3, 2014. According to the plaintiff’s evidence, prior to the receipt of those opinions she was unaware of facts sufficient to support her claims against Wahl and Casciato. She issued a statement of claim against Wahl on January 23, 2014 and against Casciato on January 24, 2014. The two actions were subsequently consolidated into court file CV-14-496964.

[11] Against the foregoing backdrop, the defendants move for summary judgment. They point to the fact that Casciato last treated the plaintiff in November 2009 and Wahl last treated her in September 2010. As a result, the defendants argue, the two year limitation periods for claims against them expired well before the actions were commenced in January 2014.

[12] For her part, the plaintiff responds that she was unaware of the facts that would support claims against the defendants until she received the report of her expert, Dr. Avivi-Arber, on January 19, 2014. She therefore asserts that the limitation period did not begin to run until that date and thus neither claim is statute barred.

Applicable legal principles

[13] Section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, (the “Act”) states as follows:

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.

Thus, the basic limitation period is 2 years.

[14] Subsection 5(1) of the Act sets out when a claim is discovered:

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).

[15] As stated by Perell J. in Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 (at para 56), “a limitation period begins to run when the claimant discovers the underlying material facts or, alternatively, when the claimant ought to have discovered those facts by the exercise of reasonable diligence.” According to Ferrara v. Lorenzetti, Wolfe, 2012 ONCA 851 (at para 33):

Subsection 5(1)(a) is a subjective test. It requires a determination of when the claimant had actual knowledge of the material facts constituting the cause of action. Subsection 5(1)(b) is an objective test. It requires a determination of when a reasonable person in the claimant’s position would have been alerted to the elements of the claim.

[16] Subsection 5(2) of the Act contains a presumption concerning when a claimant is deemed to have knowledge of a potential claim, as follows:

(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 or omission on which the claim is based took place, unless the contrary is proved.

[17] If a plaintiff wants to assert a different date of discovery, the presumption contained in s. 5(2) of the Act puts the onus on the plaintiff to refute the presumption and to establish that the claim was not discovered until some later date. Trent University v. Nortex Roofing ltd , 2009 CanLII 47572 (ON SC), [2009] O.J. No. 3759 (Sup. Ct. Master Short) at para. 32.

[18] The law relating to discoverability was summarized by Perell J. in Tender Choice, at paras 57 through 61 as follows:

57 The discoverability of a claim for relief involves not only the identification of the tortfeasor but also the discovery of an act or omission that constitute liability: Aguonie v. Galion Solid Waste Material Inc., (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 (C.A.). It is not enough that the plaintiff has suffered a loss and has knowledge that someone might be responsible; the identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence: Mark v. Guelph (City), 2010 ONSC 6034 (S.C.J.); Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596, (S.C.J.); Greenway v. Ontario (Minister of Transportation) (1999), 1999 CanLII 14797 (ON SC), 44 O.R. (3d) 296 (Gen. Div.).

58 The question is whether the prospective plaintiff knows enough facts to base a cause of action against the defendant, and, if so, then the claim has been discovered and the limitation period begins to run: Lawless v. Anderson, 2011 ONCA 102 at para. 23; Soper v. Southcott supra; McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.A.C. 304 (C.A.); Gaudet v. Levy (1984), 1984 CanLII 2047 (ON SC), 47 O.R. (2d) 577 (H.C.J.) at p. 582.

59 However, the discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed; the limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim, and the later discovery of facts which change a borderline claim into a viable one does not postpone the discovery of the claim: Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004), 2004 CanLII 13633 (ON SC), 71 O.R. (3d) 330 (S.C.J.) at paras. 10-13; Giakoumakis v. Toronto (City), [2009] O.J. No. 55 at para. 20 (S.C.J.).

60 Discovery does not depend upon awareness of the totality of the defendant's wrongdoing. Section 5(1)(a) of the Limitations Act, 2002 prescribes that discovery occurs when the plaintiff knows or ought to know of an injury caused by an act or omission of the defendant and having regard to the nature of the injury legal proceedings would be an appropriate way to seek a remedy. For the limitation period to begin to run, it is enough for the plaintiff to have prima facie grounds to infer that the defendant caused him or her harm, and certainty of a defendant's responsibility for the act or omission that caused or contributed to the loss is not a requirement: Kowal v. Shyiak, 2012 ONCA 512 at para. 18; Gaudet v. Levy, supra.

61 The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say, the constitute factual elements of his or her cause of action. Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period: Nicholas v. McCarthy Tétrault, 2008 CanLII 54974 (ON SC), [2008] O.J. No. 4258 (S.C.J.), aff'd 2009 ONCA 692, [2009] O.J. No. 4061 (C.A.), leave to appeal to S.C.C. ref'd [2009] S.C.C.A. No. 476.

[19] The following comments from the Court of Appeal decision in Lawless v. Anderson, 2011 ONCA 102, [2011] O.J. No. 519 at paras 23 to 25 and 28 are of particular relevance to the case before me:

23 Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation begins to run: see Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.A.C. 304 (C.A.).

24 In some medical malpractice cases, however, it has been recognized that in order to discover that they have a claim, plaintiffs may require advice from a person who is medically trained. Similarly, in some cases, plaintiffs will require access to their medical records and charts in order to become apprised of the facts necessary to discover their claim.

25 When dealing with cosmetic surgery, as in the present case, the outcome of the surgery will often be subjective. For any number of reasons, 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. This is well illustrated by the case of Patterson v. Anderson (2004), 2004 CanLII 21532 (ON SC), 72 O.R. (3d) 330 (S.C.). In that case, a 71 year-old had liposuction surgery in order to improve the appearance of her knees and thighs. After the operation, she suffered pain and was dissatisfied with the appearance of her legs. She consulted various doctors and complained to the College of Physicians and Surgeons of Ontario. However, it was only when she received the decision of the College resulting from her complaint that the plaintiff discovered the facts needed to issue a claim in negligence. As Speyer J. explained at para. 25:

[I]it is not until the plaintiff receives the CPSO report that she realizes two things. First, she may not have been an appropriate candidate for the procedure. Second, an inappropriate instrument may have been used during the course of the surgery. Both these matters are directly related to Dr. Anderson. It is now the basis of the allegations of negligence contained in para. 11 of the Statement of Claim.

28 While courts speak of the need to obtain a medical opinion or the need to have access to the medical records, these are not required in all cases: see McSween v. Louis. Moreover, a formal written medical opinion is not required - what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in. This point was well expressed in Gaudet et al v. Levy et al. (1984), 1984 CanLII 2047 (ON SC), 47 O.R. (2d) 577 (H.C.J.), at p. 582:

It is a question of fact as to when the information developed by his solicitor or by himself has reached the stage that a reasonably prudent person, with appropriate access to medical knowledge (appropriate in the sense of that which could be discovered by a reasonably prudent solicitor, or plaintiff following a reasonably diligent investigation) would have determined that he had prima facie grounds for inferring that his doctor had been negligent or had engaged in malpractice upon him. [Emphasis in original.]

The plaintiff’s knowledge of the material facts

[20] At the heart of the plaintiff’s submission relating to discoverability is her assertion that she was unaware that what the defendant dentists did to her mouth and her teeth was wrong and why it was wrong until she received the expert reports of Doctors Avivi-Arber and Paterson in January and February 2014. The report of Dr. Avivi-Arber alerted her to the fact that the defendant Wahl had failed to identify several pre-existing risk factors and he introduced several risk factors that resulted in an early treatment failure. In relation to the defendant Casciato, the report of Dr. Paterson confirmed to the plaintiff that she had been a poor candidate for the dental procedure, due to, among other factors, the risks associated with placing implants in a smoking patient and due to the uncertainty of bone stability around immediately placed implants into extraction sockets.

[21] By contrast, the defendants submit that the plaintiff was aware for a considerable time and, in any event, at least two years prior to issuing the statements of claim of facts that would support a claim against them. For the reasons that follow, I agree with the defendants’ submission.

[22] It is undisputed that in the months following the completion of the insertion of the prostheses by Wahl (i.e. in the period from September 2010 through November 2011), the plaintiff experienced ongoing problems with her mouth. These included biting her cheek and lips, a misshapen mouth and profile, ongoing accumulation of food in her prostheses and breaks in her prostheses, to name some. While it may be expected that some period of healing and adjustment would be expected following the surgery to place the implants, that surgery was performed in June 2009 and thus it is logical to conclude that the ongoing problems were not associated with the normal healing process.

[23] Significantly, the problems associated with the dentures themselves began immediately after they were constructed and inserted by Wahl. Those problems were noticeable and objectively problematic. Unlike the situation of the plaintiffs in Lawless v. Anderson and Patterson v. Anderson – both of which dealt with cosmetic surgery, the outcome of which was subjective – the outcome of the plaintiff’s dental surgery in this case was objectively unsatisfactory. Simply put, properly performed dental implant surgery and prosthetic insertion do not result in the types of problems experienced by the plaintiff. In other words, the plaintiff should have known that something was wrong with the work performed by the defendants well before the end of 2011.

[24] A more challenging question is whether the plaintiff knew or ought to have known why she was experiencing the problems that she did. It is true that the opinions of Doctors Avivi-Arber and Paterson provided the plaintiff with specific opinion evidence regarding particular shortcomings in the professional services rendered by the defendants. As noted by Perell J in Tender Choice, however, discovery of a claim does not depend on the plaintiff knowing that her claim is likely to succeed, nor does it depend upon awareness of the totality of the defendants’ wrongdoing.

[25] I acknowledge that this case does not involve a plaintiff who merely “sat on her rights”. Rather, understandably (and to her credit) the plaintiff sought ongoing assistance from Dr. Singh, the dentist who assumed Wahl’s practice. Significantly, however, in December 2011, after another prosthesis had broken, the plaintiff met again with Dr. Singh. By this time she had begun to question why she was having problems. According to his evidence, Dr. Singh told the plaintiff that he would have treated her case differently and he tried to explain to her why she was having her chief complaints. In response to her question as to how he would have done things differently, Dr. Singh testified that he would have explained to her that Wahl graduated at a different time than he did, science changes and the way we do things gets better and better. According to his evidence, he explained to her that surgical guides would be used to predict where the implants needed to go in order to achieve ideal aesthetics, speech and function.

[26] For her part, the plaintiff admits that while she does not remember Dr. Singh discussing a surgical guide, he probably told her that he would make a guide. She also said that it was possible that he explained to her that in an ideal situation a surgical guide would predict where the implants needed to go in order to achieve ideal aesthetics, function and speech.

[27] In her testimony before me at the hearing of the defendants’ motion for summary judgment, the plaintiff said that she did not remember a discussion with Dr. Singh about where the implants were, but she confirmed that they talked about where the prosthesis was. She testified that he told her it was “hanging over” or “cantilevered out” over the implants and thus was outside of the implant. She said that Dr. Singh told her that he felt this had something to do with causing the breaks she had experienced, because with normal chewing the denture was cantilevered out such that chewing put a lot of strain on the denture, causing it to break.

[28] On a motion for summary judgment such as this, I am empowered by rule 20.04(2.1) to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence. I am, in effect, empowered to make findings of fact, especially where oral evidence is presented. I can do so unless it is in the interest of justice for such powers to be exercised only at a trial.

[29] In the present case, based upon the evidence of Dr. Singh and that of the plaintiff – both at her prehearing examinations and her cross-examination before me – I am satisfied on a balance of probabilities that the discussion described by Dr. Singh took place. First of all, Dr. Singh based his testimony upon his review of his chart for the plaintiff, a contemporaneous record of their visit. Secondly, while his recollection may be incomplete and imperfect, Dr. Singh’s reconstruction of what he told the plaintiff on that occasion is logical and makes sense. Plainly, he, too, was trying to understand what had transpired and what was causing the plaintiff’s ongoing problems. The testimony of the plaintiff does not seriously contradict that of Dr. Singh and in many instances confirms it.

[30] I do not consider that, as a trial judge hearing oral evidence from both participants in the conversation, I would be any better suited than I am now to make findings of fact regarding the substance of their exchange on December 13, 2011. Indeed, I consider that making findings of fact at this time is in line with the goal of proportionate, cost effective and timely dispute resolution.

[31] Based on the foregoing, I find the following facts:

(a) Well before her meeting with Dr. Singh on December 13, 2011, the plaintiff was experiencing serious and ongoing problems associated with the implant and dental prostheses procedures performed by the defendants Casciato and Wahl.

(b) At the December 13, 2011 consultation, Dr. Singh told the plaintiff that he would have done the procedure differently, and would have used a surgical guide to place the implants in an ideal location which would enable him to predict where the implants needed to go to achieve ideal anesthetics, speech and function.

(c) Dr. Singh explained that the problem with the plaintiff’s prostheses was that it was cantilevered out over the implants, which caused it to break because with normal chewing it was subjected to a lot of strain.

[32] In my view, armed with the foregoing knowledge and information, a reasonably prudent person in the position of the plaintiff would have inferred that either or both of the defendants Casciato and Wahl had been negligent. She knew that the problem she was experiencing flowed from their treatment. She had to know that the outcome was substandard. Based on what she was told by Dr. Singh on December 13, 2011, she should have known that her problem “must have been caused through some act or failure to act by one or more of the professionals involved in the procedure and there was the likelihood of negligence of some kind, either in what was done or what was not done but should have been.” See McSween v. Louis, (2000) 2000 CanLII 5744 (ON CA), 132 O.A.C. 304, 187 D.L.R. (4^th) 446 (ON C.A.) at paragraph 47.

[33] Here, based upon what she was told by Dr. Singh, the plaintiff ought to have known that the problems she was experiencing were caused by substandard treatment by one or both of the defendants. While she may have learned additional information about that substandard treatment once she received the expert reports in early 2014, in my view, those reports do not detract from the fact that she had sufficient knowledge to be aware of a breach by December 13, 2011 at the latest. Put another way, I find that the claims were discoverable by that date.

[34] This is not a case in which an expert opinion was necessary for the plaintiff to conclude that there was the likelihood of negligence of some kind. As the cases mentioned above make plain, it is enough for the plaintiff to have prima facie grounds to infer that the defendants caused harm, and certainty of the defendants’ responsibility for the act or omission that caused the loss is not a requirement for the limitation period to begin to run.

[35] For these reasons, I conclude that the limitation period for commencing proceedings against the defendants Casciato and Wahl arising from their treatment of the plaintiff began to run no later than December 13, 2011. That two-year limitation period expired no later than December 13, 2013. Because neither of the actions was commenced prior to January 2014, both were commenced after the expiry of the limitation period. As a result, both proceedings are barred by s. 4 of the Act.

Conclusion and disposition

[36] In the result, therefore, the motions for summary judgment must be granted, and the plaintiff’s action against the defendants must be dismissed. I fully recognize that this is a bitter outcome for the plaintiff, in light of the pain and discomfort she has endured in connection with her dental procedures. That said, the legal framework relating to timely commencement of proceedings dictates the result in this case. The legislation grants no discretion to a judge to waive or extend the limitation period in circumstances such as these. I should add that the outcome is to some extent a bittersweet one for the defendants as well, since the plaintiff’s allegations of substandard treatment remain untested and the expert opinions proffered by the plaintiff remained uncontradicted. In light of the result dictated by the law governing limitation periods, the merits of the plaintiff’s complaints will remain unadjudicated.

Costs

[37] In relation to costs, I invite the parties to reach agreement. If they are unable to do so, I direct as follows:

(a) The defendants shall serve their bill of costs on the plaintiff, accompanied by written submissions, within fifteen days of the release of these reasons.

(b) The plaintiff shall serve her response on the defendants within fifteen days thereafter. I invite the plaintiff to submit the bill of costs she would have submitted, had she prevailed on the motion.

(c) The defendants may, but are not obliged to serve a reply, within ten days thereafter.

(d) In all cases, the written submissions shall be limited to three double-spaced pages, plus bills of costs.

(e) I direct that counsel for the defendants shall collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for the defendants will assemble a single package for delivery as described above.

Stinson J.

Date: February 27, 2015