Verombeck v. Jerome, 2015 ONSC 2272

CITATION: Verombeck v. Jerome, 2015 ONSC 2272 COURT FILE NO.: CV-12-455841 DATE: 2015-04-22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANTHONY VEROMBECK Plaintiff

– and –

DR. LEONARD JEROME Defendant

COUNSEL: Michael Ellis, for the Plaintiff Valerie Wise, for the Defendant

HEARD: 2 April 2015

REASONS FOR DECISION

MEW J.

[1] The defendant seeks the dismissal of this action based on the plaintiff’s alleged failure to commence it within two years of the day on which the claim was discovered, as required by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[2] The parties first appeared on this motion on 11 September 2014. For oral reasons that I delivered at the time I concluded, based on the record then before me, that I was not satisfied that there was no genuine issue for trial. However, given what I had seen and heard, it seemed to me that the interests of justice could best be served by engaging the procedure provided for by Rule 20.04(2.2) mini-trial to determine whether there is a genuine issue for trial in respect of the limitation defence pleaded by the defendant.

[3] At the mini-trial hearing on 2 April 2015, oral testimony was given by the plaintiff and by Dr. Jim Yuan Lai.

Background

[4] The defendant rendered dental treatment to the plaintiff between December 2000 and December 2009.

[5] The evidence concerning the dentist-patient relationship between the parties consists of the plaintiff’s affidavit and the clinical notes and records of the defendant. The defendant did not provide an affidavit. Accordingly, save as indicated otherwise, I have accepted the plaintiff’s narrative concerning that relationship.

[6] The defendant performed restoration work on a number of the plaintiff’s teeth, including tooth 15. The defendant also inserted a fixed bridge in the upper left portion of the plaintiff’s mouth in 2007.

[7] The plaintiff experienced ongoing issues with his teeth while receiving treatment from the defendant, including pain and discomfort on various occasions, and periodic loosening of the fixed bridge inserted by the defendant in the summer of 2007.

[8] On three occasions, the bridge loosened and had to be re-cemented.

[9] On no less than ten occasions, the defendant worked on the plaintiff’s tooth No. 15. In his amended statement of claim, the plaintiff asserts that “[t]he restorations were unsuccessful”.

[10] On 17 December 2009, the plaintiff attended the defendant’s office because part of the porcelain on the upper left bridge was chipped. The defendant indicated that the bridge could not be cemented until other dental issues in the area of the bridge had been treated.

[11] The defendant’s note of the visit on 17 December 2009 records that a periapical x-ray was taken of the maxillary left lateral incisor (12) and that:

“patient was told to get bridge repaired first (repair chipped porcelain). He should go back to the laboratory and ask them to make the repair and then after that, treat any additional new tooth problems (the result of his neglect in dealing with the situation). Patient was told that after this is done, he should have the bridge cemented”.

[12] Both the plaintiff and the defendant were members of a barter system which allowed the plaintiff to receive dental treatment in exchange for barter credits accepted by the defendant.

[13] Because, by 17 December 2009, the plaintiff had run out of barter credits and the defendant was unable to permanently fix the upper bridge before further restoration work was done, the plaintiff sought out treatment with another dentist, Dr. Petrovic, who accepted barter credits under another barter system that the plaintiff belonged to. He was seen by Dr. Petrovic on 21 December 2009 who confirmed that the bridge could not be re-cemented at that time.

[14] On 8 March 2010, the plaintiff was seen by yet another dentist, Dr. Pulec. He told the plaintiff that dental implants could be inserted at a cost of approximately $15,000.

[15] On 19 May 2010, the plaintiff went back to see Dr. Petrovic. He was having problems with tooth No. 16 and was advised by Dr. Petrovic that the tooth had to be extracted.

[16] On 20 May 2010, tooth 15 and tooth 16 were extracted by Dr. Sobhi.

[17] In his affidavit, the plaintiff says:

“As the implants suggested by Dr. Pulec were not a viable option due to the costs quoted, I attended at the University of Toronto Dentistry clinic to further canvass treatment options to address the ongoing issues I was having with my upper teeth.”

[18] On 15 June 2010, the plaintiff attended at the Dentistry Oral Reconstruction Centre at the University of Toronto Faculty of Dentistry. He was seen by Dr. Lai, who is the Graduate Director of Periodontology at the University of Toronto’s Faculty of Dentistry, and who runs the Oral Reconstruction Centre.

[19] Dr. Lai explained that individuals who come to the Oral Reconstruction Centre are initially screened to get an idea of what would be involved in them being treated further. A rough estimate of the financial cost is made. The screening process involves a conversation and a brief oral examination. However, a detailed oral examination would not have been undertaken on the 15 June visit. Rather, an “ORC Screening Form” was completed. In the plaintiff’s case, Dr. Lai identified a future implant site where the 15 and 16 teeth had been, with a tentative plan costed at $4,800 (give or take $1,000). He also noted “complex case – need to consult with third year student and Dr. Lin”. Dr. Lai explained that this reference meant that the plaintiff did not need just a simple replacement. There would need to be an overall treatment plan. However, Dr. Lai could not tell from his notes why he concluded that the plaintiff’s case was complex. He says he was probably talking about the concept of bridge work and the number of ways that an implant could be used to give teeth back to the plaintiff. Nor did he have any specific recollection of meeting the plaintiff, let alone of what was discussed.

[20] The plaintiff’s affidavit said this about his meeting with Dr. Lai:

“[Dr. Lai] reviewed my condition and advised me that dental treatment performed by Dr. Jerome had been performed improperly, and had to be redone. Dr. Lai outlined the cost of replacing teeth 15 and 16 and my upper left bridge with implants, however, he indicated that mine was a complex case and I would have to be referred for consultation with another dentist in the clinic to formulate a treatment plan to address my upper left quadrant dental issues.

“The consultation with Dr. Lai was my first indication that certain dental treatment performed by the Defendant was improper, and I would be required to undergo further treatment and incur further expenses to repair and rectify damage caused to my teeth dentition by the Defendant’s improper treatment.”

[21] Under cross-examination, the plaintiff acknowledged that he had no specific recollection of Dr. Lai referring to the defendant’s treatment as “improper”. Indeed, the plaintiff had virtually no independent recollection of his meeting with Dr. Lai, and repeatedly referred to paragraphs 21 and 22 of his affidavit as the source of his recollection about that meeting. He said on a number of occasions that the meeting had taken place a long time ago and he could not remember specifics. When it was put to him that his affidavit had been sworn as recently as 20 June 2014, he was unable to explain why he was able to recall what Dr. Lai had said then, but could not recall now.

[22] The plaintiff did have a specific recollection of Dr. Lai describing his case as a complex one. However, he could not now recall whether he discussed the upper right mouth and upper left mouth concerns with Dr. Lai.

[23] While, as already noted, Dr. Lai could not recall specifics of his meeting with the plaintiff, he testified, quite emphatically, that he would not on an initial consultation have criticised another dentist’s work to a recent patient of that dentist.

[24] On 6 July 2010, the plaintiff wrote a letter to the Royal College of Dental Surgeons of Ontario. A copy of that letter has not been produced but a copy of the response from the College, dated 8 July 2010 has. The College wrote as follows:

“It appears to me from your letter that you are seeking damages. Please be advised that the College’s Inquiries Complaints and Reports Committee can only investigate the conduct of the dentist and the standard of treatment provided. It has no authority to assess damages, issue a refund or award compensation of any kind. That is a matter for the court. If you are seeking financial compensation, your options include:

1. writing to Dr. Jerome directly expressing your concerns, thus trying to reach a settlement yourself; or

2. pursuing the matter through the civil courts, at which time you may wish to seek advice from a lawyer.

If you are considering legal action as a result of negligence or malpractice, you should be aware that there is a limitation to how long you can wait before starting your legal action. The law which governs health professionals, including dentists, requires you to commence your action within two years after you know or ought to have known the facts upon which you base your suit. If you have any questions about your rights to sue a dentist, you should consult a legal advisor.”

[25] The plaintiff pursued his complaint against the defendant with the College. He received a copy of a decision of the Inquiries, Complaints and Reports Committee on 24 November 2011. In the meantime, he continued with dental treatment at the University of Toronto Dental Clinic, during the course of which he was advised that the teeth which had been used to support the bridge inserted by the defendant were significantly decayed, non-restorable and required extraction. He says that he was advised that this was as a result of improper techniques being used by the defendant when performing crown and bridge work in that area.

[26] The plaintiff claims that upon receipt of the decision of the Inquiries, Complaints and Reports Committee of the College he became aware of various other deficiencies in the dental treatment provided by the defendant, of which he was not previously aware.

[27] On 23 October 2012 (so, after his action was commenced), the plaintiff met with Dr. John H. Gryfe, an oral and maxillofacial surgeon engaged by his lawyers to provide a medical legal opinion. In his subsequent report, dated 14 March 2013, Dr. Gryfe wrote, in respect of the plaintiff’s dealings with the defendant:

“Mr. Verombeck acknowledges that throughout this five or six year period, he continued to be unhappy with the apparent lack of success that Dr. Jerome was having in creating and maintaining a stable dentition for him, but he continued to see Dr. Jerome for cleanings for a “period of time”.

“Repeated visits to Dr. Jerome resulted only in the bridge being re-cemented repeatedly with temporary adhesives. Despite continuing problems with the bridge, Dr. Jerome did not offer to remake the prosthesis. Despite his continuing visits to Dr. Jerome, the surrounding teeth “started to decay” and as a result in 2009 or thereabouts, Mr. Verombeck started to obtain appropriate treatment elsewhere from a number of other dentists, including Dr. Biljna Petrovic, whom he visited a number of times in 2009 and 2010, and Dr. Venns Sobhi, who removed two maxillary right posterior teeth in 2010. Finally, he became a patient of the dental clinic at the University of Toronto, Faculty of Dentistry where he was treated between 2010 and 2012 for various complaints including ongoing pain, infection, and a desire to restore his dentition with implant dentistry.”

[28] The plaintiff does not acknowledge that he told Dr. Gryfe that throughout the five or six year period he was being treated by Dr. Jerome “he continued to be unhappy with the apparent lack of success”. He also disagrees with the characterisation in Dr. Gryfe’s report that he “started to obtain appropriate treatment elsewhere” from Dr. Petrovic and Dr. Sobhi in 2009 and 2010. The plaintiff steadfastly maintains that it was the consultation with Dr. Lai on 15 June 2010 that triggered his awareness of the possibility that Dr. Jerome had been negligent.

Issue

[29] The issue to be determined on this motion is the application of the Limitations Act, 2002 to the facts.

Discussion and Analysis

[30] Section 4 of the Limitations Act, 2002 provides a basic limitation period of two years running from the day on which the plaintiff’s claim was discovered. The rules regarding discoverability are set out in s. 5 of the Act which provides:

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

[31] The defendant argues that the plaintiff has failed to rebut the presumption provided for in s. 5(2) that he is deemed to have discovered his claim on the day the act or omission on which the claim is based took place, unless the contrary is proved. For the purposes of his argument, the defendant is content to use the last day that he treated the plaintiff, namely 17 December 2009, as the date from which the two year limitation period should run.

[32] The plaintiff has expressly pleaded, in respect of his discovery of the claim against the defendant:

“…that on or about June 15, 2010 during a consultation with Dr. Lai…he was informed that the dental treatment performed by the Defendant had been performed improperly and had to be redone.

“…his consultation with Dr. Lai was his first indication that certain dental treatment performed by the Defendant was improper and that further expenses would have to be incurred to repair and rectify damage caused by the Defendant.

“…the claim against the Defendant was discovered on or about June 15, 2010.”

[33] As pleaded, this is not a case where the plaintiff is arguing that he needed to get an expert opinion before he was capable of discovering the existence of a claim against the defendant.

[34] In Tremain v. Muir, 2014 ONSC 185, the court stated (at para. 56):

Sometimes the determination of negligence would be impossible to ascertain based on the knowledge possessed by the plaintiff or plaintiffs and further investigation by way of, for example, an independent medical report may be required or copies of medical charts or both. However sometimes there may be clear evidence from the plaintiff that would seemingly speak of negligence.

[35] According to the defendant, there was ample evidence of the very complaints which the plaintiff makes about Dr. Jerome’s treatment more than two years before the commencement of the plaintiff’s action. Quite apart from what he reported to Dr. Gryfe in 2012, there are the facts that the plaintiff was seen by no less than three other dentists between December 2009 and May 2010, at which time Dr. Sobhi extracted the very tooth which the plaintiff complains that the defendant unsuccessfully attempted to restore.

[36] Any problems associated with the dental work undertaken by Dr. Jerome would, the defendant submits, have been immediately apparent following the work done by the defendant. The consultations with Dr. Petrovic, Dr. Pulec and Dr. Sobhi would have reinforced this.

[37] The plaintiff, despite his limited recollection of the meeting with Dr. Lai on 15 June 2010 testified that he had no appreciation, until that consultation, that Dr. Jerome had been negligent. Of the meeting with Dr. Lai, the plaintiff testified that he became aware from his discussion with Dr. Lai that work that he thought had been done by Dr. Jerome had not been done. He said that he was shocked by that. He claims that Dr. Lai performed a thorough oral examination to determine the possible installation of implants and what had to be done to restore the plaintiff’s dentition.

[38] Whatever else may have transpired from the meeting on 15 June 2010, the plaintiff’s evidence was that prior to meeting with Dr. Lai he did not have a concern with respect to the work done by Dr. Jerome, but following the meeting he did.

Findings

[39] In determining whether summary judgment should be granted on the limitation defence that has been pleaded, rule 20.04(2.1) provides that the court shall consider the evidence submitted by the parties and may exercise any of the following powers for that purpose:

1. Weighing the evidence;
2. Evaluating the credibility of the deponent; and
3. Drawing any reasonable inference from the evidence.

[40] In the present case, as previously indicated, I ordered a mini-trial pursuant to rule 20.04(2.2) for the purposes of being better able to exercise the powers set out in subrule 2.1.

[41] I find that although the plaintiff did not complain to Dr. Jerome about the efficacy or otherwise of the treatment he was receiving, he was, as he subsequently reported to Dr. Gryfe, unhappy with the apparent lack of success that Dr. Jerome was having in creating and maintaining a stable dentition for him.

[42] I accept the plaintiff’s evidence that the reason for the termination of his relationship with Dr. Jerome was economic (his inability to use further barter credits with Dr. Jerome). However, within a matter of days after his last consultation with Dr. Jerome, he had been seen by Dr. Petrovic who had confirmed that the bridge could not be re-cemented. He then learned, as a result of his visit to Dr. Pulec on 8 March 2010, that it would cost $15,000 to insert dental implants.

[43] On 20 May 2010, the plaintiff’s tooth 15 and tooth 16 were extracted by Dr. Sobhi.

[44] I accept the plaintiff’s evidence that it was the cost of Dr. Pulec’s quotation for implants which drove the plaintiff to seek assistance from the University of Toronto Faculty of Dentistry Oral Reconstruction Centre.

[45] When I originally heard the summary judgment motion in this matter I indicated that, absent a more complete evidentiary record, there remained a triable issue in respect of the interaction between the plaintiff and Dr. Lai on 15 June 2010. I noted that there was no other evidence, other than the history of what had occurred between December 2009 and June 2010, that would illuminate the discoverability issue. I was not prepared to find on the record then before me, as the defendants had urged me to, that a reasonable person in the position of the plaintiff would necessarily have realized that his problems were potentially the consequences of Dr. Jerome’s actions or inaction.

[46] Having now heard the oral testimony of the plaintiff and Dr. Lai, I am satisfied that I am in as good a position as a trial judge would be to determine the limitation issue once and for all.

[47] The plaintiff’s evidence that his visits to Dr. Pulec, Dr. Petrovic and Dr. Sobhi did not alert him to the possibility that Dr. Jerome’s treatment had been “improper” is unconvincing. By the time that the very tooth which Dr. Jerome had laboured over improving so many times over a six year period was extracted, I find that a reasonable person in the plaintiff’s position would have realized that Dr. Jerome’s treatment might have been a cause of his dental problems.

[48] In coming to this conclusion, my view is reinforced by the evidence given by both the plaintiff and Dr. Lai with respect to what happened on 15 June 2010.

[49] The fact is that the plaintiff cannot remember Dr. Lai saying that the treatment he had received from Dr. Jerome was “improper”, as set out in the plaintiff’s affidavit sworn on 20 June 2014. I find it troubling that less than ten months later, the plaintiff can no longer remember details that he deposed to in his affidavit. One is left with the very strong impression that the narrative in the affidavit does not accurately reflect the plaintiff’s recollection at the time.

[50] It is also noteworthy that there was nothing in the affidavit about the realization, first articulated by the plaintiff during the course of re-examination, that as a result of his consultation with Dr. Lai he became aware that work that he thought had been done by Dr. Jerome had not been done, which, he says, “shocked” him. When pressed on what he meant by this, he was vague.

[51] While the plaintiff did make a complaint to the College shortly after his meeting with Dr. Lai, the evidence does not support a conclusion that the meeting with Dr. Lai was determinative of whether a complaint was made or not.

[52] Indeed, when, later on, the plaintiff received a copy of the decision of the Inquiries, Complaints and Reports Committee of the College on 24 November 2011, as a result of which, according to him, he learned of various other deficiencies in the dental treatment provided to him by the defendant of which he was not previously aware, he still waited until 23 April 2012 before he consulted a lawyer and then, subsequently, on 11 June 2012, commenced an action.

[53] In Brown v. Wahl, 2015 ONSC 1328, the plaintiff had undergone dental implant and prosthetic insertion procedures undertaken by her then dentist and an oral and maxillofacial surgeon, that were completed by September 2010. She had various problems during the following months, including biting her cheek and lips, a misshapen mouth and profile and breaks in the prosthesis for which she was seen by another dentist, who had taken over from the plaintiff’s original dentist who had retired. In December 2011 that dentist explained the problems to her and told her that he would have done the work differently. In early 2014, the plaintiff obtained two expert reports in relation to the problems and commenced a dental malpractice action against the dentists. The defendants argued that the limitation period had expired. The plaintiff said that she was not aware that the defendants had been negligent until she received the expert reports. Stinson J. allowed the defendants’ motion for summary judgment dismissing the action on the basis that the limitation period had expired before the action was commenced. He found that although the plaintiff might have learned additional information from the expert reports, she should have known that the problems were caused by the work of one or both of the defendants after the other dentist explained the problems in December 2011, if not before. Stinson J. stated, at para. 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, [2011 ONCA 102] and Patterson v. Anderson [(2004), 2004 CanLII 21532 (ON SC), 72 O.R. (3d) 330 (S.C.)] – both of which deal 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.

[54] In Lawless v. Anderson, 2011 ONCA 102, the Court of Appeal concluded that time would start to run against a plaintiff at a point in time where it was clear to her that she had suffered more than an unfortunate and unsatisfactory outcome in respect of breast augmentation surgery. The Court of Appeal said (at para. 30):

She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible. In other words, the appellant had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent.

[55] In Brown v. Wahl, having concluded that the plaintiff should have known that something was wrong with the work performed by the defendants well before the end of 2011, Stinson J. then went on to consider whether the plaintiff knew or ought to have known why she was experiencing the problems that she did. While acknowledging that the expert opinions she had subsequently received provided her with specific opinion evidence regarding the particular shortcomings in the professional services rendered by the defendants, Stinson J., referring to the decision of Perell J. in Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, where his Honour remarked that “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.”

[56] I do not accept, on a balance of probabilities, that it was the meeting with Dr. Lai that resulted in some sort of epiphany on the part of the plaintiff. Dr. Lai was firm in his evidence that he would not have openly criticised a colleague in the circumstances of the consultation which took place on 15 June 2010 which, it will be remembered, involved only a brief – and not detailed – oral examination for the purposes of getting an idea of the plaintiff’s condition and providing a rough estimate of the financial cost of the restoration work that the plaintiff had come to consult with him about.

[57] The evidence simply does not support the plaintiff’s pleading that the claim against the defendant was discovered on or about 15 June 2010 during the consultation with Dr. Lai.

[58] Rather, I find that by no later than 20 May 2010, the date upon which Dr. Sobhi extracted the plaintiff’s tooth 15 and tooth 16, the plaintiff knew, or reasonably should have known, that his dental problems were related to some act or failure to act on the part of Dr. Jerome and that there was the possibility of negligence of some kind on his part: see also McSween v. Louis, (2000) 2000 CanLII 5744 (ON CA), 187 D.L.R. (4th) 446 ON C.A. at para. 47.

Disposition

[59] By reason of the foregoing, the defendant’s motion for summary judgment is granted, with the result that the plaintiff’s action is dismissed.

Costs

[60] The parties provided costs outlines with respect to the motion for summary judgment. The defendant’s partial indemnity costs, including disbursements, are claimed in the amount of $11,799.58. The plaintiff’s partial indemnity costs of the motion (inclusive of disbursements) are claimed at $18,111.92.

[61] Given the result, I conclude that the defendant should have his costs of the motion on a partial indemnity basis which I fix in the amount of $11,799.58.

[62] The defendant is also entitled to his costs of the action. If those costs cannot be agreed, either party should notify me within 14 days of the date of release of these reasons. I will then set a timetable for the delivery of submissions.

Graeme Mew J.

Released: 22 April 2015