CITATION: Conidis v. Tait, 2015 ONSC 1558
COURT FILE NO.: CV-13-482365
DATE: 20150310
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DESPINA CONIDIS A.K.A.
TINA CONIDIS
Plaintiff
– and –
KIMBERLEY ANN TAIT
Defendant
Harvey Consky and Jennifer Mendelsohn for the Plaintiff
Esther Nwator for the Defendant
HEARD: March 9, 2015
REVISED ENDORSEMENT
DIAMOND J.:
[1] In an action brought by the Plaintiff against the Defendant for damages arising out of alleged negligent dental treatment, the Defendant brings this motion for summary judgment seeking an order dismissing the claim by reason of a failure on the part of the Plaintiff to commence this proceeding within the two year period set forth in the Limitations Act 2002 S.O. 2002, c. 24 (“Limitations Act 2002”). While the parties’ respective recitations of the chronology of the facts do not differ substantially, they part company on the application of the legal principles to the facts of this case.
[2] The Plaintiff’s claim is based upon a theory of negligence against the Defendant, and in particular, alleged negligence on the part of the Defendant involving the insertion of lower and upper bridges in the Plaintiff’s mouth. In essence, the Defendant argues that as the Plaintiff’s claim was issued more than two years after the Plaintiff’s claim was “discovered” within the meaning of the Limitations Act 2002, the claim is thus statute barred and there is no genuine issue requiring a trial.
The Facts
[3] The Defendant carries on business as a dentist in the City of Toronto, Ontario. The Plaintiff was a patient of the Defendant from October 1, 2004 until her last appointment on November 1, 2010.
[4] A review of the Statement of Claim discloses that the Plaintiff had been a patient of the Defendant for several years. The Defendant’s alleged negligence arises out of the permanent insertion of a lower bridge in August 2007 and an upper bridge in August 2008. The reasons for the Defendant’s permanent insertion of the lower and upper bridges do not appear to be germane to the disposition of this motion.
[5] The apparent breakdown of the relationship commenced during an exchange of e-mail correspondence between the parties during the November 2-4, 2010 period. In response to the Plaintiff’s request that the Defendant provide her with an itemized list of dental work that “had to be re-done”, the Defendant denied that any of the dental work she had performed ever needed to be “re-done”. In response, the Plaintiff advised the Defendant that, inter alia, she wondered why “her teeth were always breaking off” and that she was going “look for a new dentist”.
[6] While the Defendant never treated the Plaintiff again after November 4, 2010, the parties continued to correspond with each other on occasion, and it is this correspondence on which the Defendant relies to form the basis of her position that the Plaintiff’s claim in negligence is statute barred.
[7] The Plaintiff was ultimately seen by a new dentist, Dr. Gerald Suess, commencing with an initial visit in late May 2011. According to Dr. Suess’ clinical notes and records (the authenticity of which were admitted by the Plaintiff pursuant to her Response to Request to Admit), Dr. Suess discussed several matters with the Plaintiff during a May 24, 2011 attendance at his office, including his opinion and recommendation that the upper and lower bridges needed to be removed due to, inter alia, fractured roots and necessary extractions.
[8] In argument, the Plaintiff sought to highlight the fact there was no affidavit tendered by Dr. Suess on this motion, and thus no evidence of his opinion as to the cause of the faulty bridges (i.e. no opinion as to the Defendant being responsible for the failed dental work). In response, the Defendant took the position that the Court need not look any further than the Plaintiff’s own evidence to conclude that she had knowledge of the requisite material facts to support her claim prior to June 10, 2011 (being two years prior to the commencement of this proceeding).
[9] There is no dispute that between May 26 - June 1, 2011, Dr. Suess removed both the lower and upper bridges initially inserted by the Defendant, with a view to having them re-done. A few days prior to the removal of the upper and lower bridges, the Plaintiff sent an e-mail to the Defendant informing the Defendant that she was having problems with both bridges, and relaying Dr. Suess’ opinion that the teeth supporting the bridges had cracked. In that e-mail, the Plaintiff stated, inter alia, as follows:
“After a review of my dental payments, my accountant advises that I have spent approximately $23,000.00 on dental work under your care. I have no idea how much of this cost is related to the bridges, but I am finding it a financial hardship to come up with another $2,500.00 to replace the bridges.
Do you have a reimbursement policy when this type of work needs to be replaced?
Please let me know what your policy is when you have a moment.”
[10] The Defendant answered that e-mail and advised the Plaintiff that there would be no reimbursement for any previous work. In response, the Plaintiff delivered three successive e-mails to the Defendant on June 6, 7 and 9, 2011, all marked “Without Prejudice”. Although the parties did not object to the production of those emails in the record before this Court, I question why those emails were drafted by the Plaintiff on a without prejudice basis in the first place. If the purported privilege was settlement privilege, presumably the Plaintiff was looking to settle a claim. If the purported privilege was in anticipation of litigation, the Plaintiff arguably had a subjective belief that she already had a claim against the Defendant.
[11] In any event, a review of those e-mails discloses, inter alia the following:
(a) The Plaintiff considered the Defendant an expert in dental work, and as such believed that anyone who provided such a service had a responsibility to ensure “stellar workmanship” and an obligation to rectify any problems or reimburse clients in the events problems arose.
(b) The Plaintiff expected reimbursement for the cost of both bridges because she thought the life expectancy of bridges should last at least 5-10 years, and anything else “was unacceptable”;
(c) For her own peace of mind, the Plaintiff needed to settle the dispute and proposed the sum of $3,000.00 in order to “put this issue behind both of us so that we can move on”. That sum represented the amount the Plaintiff had to pay Dr. Suess for the replacement of temporary dentures for the two bridges; and
(d) If the Defendant paid the said $3,000.00, the Plaintiff would be prepared to “call it a truce” and hold off sending a complaint letter to the Royal College of Dental Surgeons of Ontario (the “College”), and sign a waiver indicating that she had no further claim against the Defendant for any dental work performed during the time she was her patient.
[12] The Defendant did not agree with the Plaintiff’s proposal. The Plaintiff ultimately filed a complaint with the College on August 4, 2011. In that complaint, drafted by the Plaintiff herself (there is no evidence to the contrary). the Plaintiff stated that it was “not until both bridges had to be removed that she became concerned about the quality of the Defendant’s work”.
[13] The College ultimately delivered a decision to the Plaintiff on April 22, 2013. The Defendant objected to the inclusion of that decision in the record filed before this Court, and the Plaintiff obliged. I draw no adverse inference against the Plaintiff for any alleged failure to include the College’s decision in her responding materials.
[14] In any event, the Plaintiff maintains that she only obtained the material facts necessary to know that she had a cause of action of negligence against the Defendant when she received and reviewed the College’s decision.
[15] As stated above, a Request to Admit and Response to Request to Admit were exchanged between the parties in advance of this Motion. The salient facts admitted by the Plaintiff are as follows:
(a) on May 24, 2011, the Plaintiff knew that the implants had failed;
(b) on May 24, 2011, Dr. Suess diagnosed that the bridgework done by the Defendant has failed or was failing; and,
(c) on May 24, 2011, Dr. Suess recommended to the Plaintiff that he removed the failed crown and bridge treatment previously performed by the Defendant.
[16] The Plaintiff’s Statement of Claim was issued on June 10, 2013. I note that the Plaintiff relies upon the doctrine of res ipso loquitor in support of her claim. In addition, when the Defendant raised the Limitations Act 2002 as part of her substantive defence to the claim, the Plaintiff did not deliver a Reply setting out the facts supporting any delayed discoverability.
[17] Neither the Plaintiff nor the Defendant were cross-examined upon their respective affidavits.
The Law
Summary Judgment
[18] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant a summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”. As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.
[19] In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the fact-finding powers set out in the 2010 amendments. The Court must review the factual record and only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and summary judgment would be an affordable, timely and proportionate procedure.
[20] If the Court determines the presence of a genuine issue requiring a trial, the inquiry does not end there as the analysis proceeds to whether a Court can determine if a need for a trial may be avoided by use of the aforesaid fact-finding powers.
[21] In my view, on the record before me and for the reasons set out below, there is no genuine issue requiring a trial.
Limitations Act 2002
[22] Pursuant to Section 5(1) of the Limitations Act 2002, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,
(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 a person against whom the claim was 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.
[23] Section 5(2) of the Limitations Act 2002 and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a Plaintiff with necessary evidence.
[24] While it is debatable that the Plaintiff knew or ought to have known her cause of action arose in early November 2010 which she delivered her initial e-mail correspondence to the Defendant complaining of the bridge work that had to be “re-done”. I am not prepared to find that the Plaintiff had knowledge of the necessary facts or damages at that time so that a cause of action purportedly vested in her in early November 2010.
[25] However, the case law mandates that a Plaintiff is not required to possess a comprehensive understanding of her potential claim in order that the limitation period commence. It is knowledge of the material facts, and not the elements of a cause of action, which inform the Court’s assessment of the commencement of a limitation period.
[26] As stated by Perell J. in Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, [2013] O.J. No. 634 (SCJ), the discovery of a claim does not depend upon a plaintiff’s knowledge that his or her claim is likely to succeed, or awareness of the totality of a defendant’s wrongdoing. Where a Plaintiff may not appreciate the legal significance of the facts, those circumstances do not postpone the commencement of the limitation period if the Plaintiff knew or ought to have known the existence of those material facts. Ignorance of the law, or the legal consequences of those facts, also does not postpone the running of the limitation period.
[27] The facts in this case are similar to those as found by my colleague Justice Stinson in the recent decision of Brown v. Wahl 2015 ONSC 1328 (S.C.J.). As stated by Stinson J., the question to be posed is whether a plaintiff knows enough facts upon which to base his/her allegation of negligence against a defendant. Discoverability is a fact-based analysis and the Court must assess whether a plaintiff has prima facie grounds to know or infer that the acts or omissions complained of were caused by a defendant.
[28] The Plaintiff seeks to distinguish Brown v. Wahl on the basis that in that case, Ms. Brown was told by her new treating dentist that Dr. Wahl was arguably the cause of the problems she was experiencing with faulty dentures and posts. While I agree that there was no direct evidence from Dr. Suess on this motion, the acts undertaken and the words chosen by the Plaintiff after meeting with Dr. Suess in late May 2011 evidence a clear understanding on the part of the Plaintiff that she viewed the Defendant as the cause of the problems with her faulty bridges.
[29] By June 6, 2011 (and likely earlier) the Plaintiff considered herself to have a “claim” against the Defendant which she was prepared to “walk away from” in exchange for monetary reimbursement. The Plaintiff was well aware that in Dr. Suess’ opinion the bridges had failed, and she looked squarely to the Defendant for an answer and, significantly, for legal compensation.
[30] Further, the Plaintiff’s complaint to the College confirms that she became concerned about the quality of the Defendant’s work when the bridges were removed by Dr. Suess. Tellingly, the Plaintiff’s statement is clear and unsolicited evidence that the Plaintiff drew a causal link between the faulty bridges and the Defendant’s treatment.
[31] It is not sufficient for the Plaintiff to maintain that by late May/early June 2011, she did not know that the Defendant’s treatment amounted to negligence in law. In the Plaintiff’s own opinion, her expectation of the life-span of the lower and upper bridges was 5-10 years, and the bridges in question failed within 3-4 years.
[32] As set out above, the fact that the Plaintiff delivered “without prejudice” correspondence to the Defendant setting out settlement proposals (effectively amounting to informal demand letters), and threatening the Defendant with a complaint to the College in the event her proposals were not accepted, is further evidence that the Plaintiff viewed the Defendant to be the person responsible for the failure of the lower and upper bridges. In her emails delivered to the Defendant in early June 2011, it is clear that the Plaintiff viewed herself as having “suffered a loss”, and I therefore find that on the record before me, the Plaintiff was sufficiently aware of the material facts to know that her “injury, loss or damage” had occurred and was caused by or contributed to by an act or omission of the Defendant.
[33] As Stinson J. stated in Brown v. Wahl, I too recognize that this result is likely a bitter pill for the Plaintiff to swallow given the pain she claims to have experienced resulting from the faulty bridges. However, like all litigants, the Plaintiff is legally bound to comply with the provisions of the Limitations Act 2002 as the Court lacks any discretion to waive or extend the relevant limitation period.
[34] In the result, I grant the Defendant summary judgment and the Plaintiff’s claim is dismissed.
Costs
[35] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act, and that discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party, the expectations of the unsuccessful party, the amount claimed and recovered, and the complexity of the issues. Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario) (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[36] Costs normally follow the event and there is no reason to depart from that principle in this case. Both parties submitted Costs Outlines which were roughly in the same range. As the Plaintiff’s reasonable expectation to pay costs of the motion is not in issue, given the importance of the issues and the result I order the Plaintiff to pay the Defendant her costs of this motion on a partial indemnity basis in the amount of $7,500.00 all inclusive and payable within 30 days.
Diamond J.
Released: March 10, 2015
CITATION: Conidis v. Tait, 2015 ONSC 1558
COURT FILE NO.: CV-13-482365
DATE: 20150310
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DESPINA CONIDIS A.K.A.
TINA CONIDIS
Plaintiff
– and –
KIMBERLEY ANN TAIT
Defendant
ENDORSEMENT
Diamond J.
Released: March 10, 2015