COURT FILE NO.: CV-13-493186
COURT FILE NO.: CV-14-496075
DATE: 20150609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LORENE LOPEZ
Plaintiff
– and –
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Defendant
AND BETWEEN:
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Plaintiff by Counterclaim
– and –
LORENE LOPEZ and CLIVE ESTY
Defendants by Counterclaim
Melanie Williams for the Defendant Dr. M. Douris Dentistry Professional Corporation
Parisima Zandi for Clive Esty, Defendant by Counterclaim
AND BETWEEN:
MARILYN VEGA
Plaintiff
– and –
DR. MICHAEL DOURIS
Defendant
AND BETWEEN:
DR. MICHAEL DOURIS
Plaintiff by Counterclaim
– and –
MARILYN VEGA and CLIVE ESTY
Defendants by Counterclaim
Melanie Williams for the Defendant, Plaintiff by Counterclaim, Dr. Michael Douris
Parisima Zandi for Clive Esty, Defendant by Counterclaim
HEARD: June 2, 2015
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION AND OVERVIEW
[1] Dr. Clive Esty, a dentist, is a Defendant by Counterclaim, in two actions. He is sued in the first action by Dr. M. Douris Dentistry Professional Corporation, and in the second action, by Dr. Michael Douris, who is also a dentist.
[2] The Counterclaim by Dr. M. Douris Dentistry Professional Corporation comes before the court in the following way. In the first action, the Plaintiff Lorene Lopez sues Dr. M. Douris Dentistry Professional Corporation for damages for wrongful dismissal. In turn, Dr. M. Douris Dentistry Professional Corporation counterclaims and sues Ms. Lopez, who formerly was an employee of Dr. Esty’s, for slander, and it joins Dr. Esty to the counterclaim to sue him for: (a) damages for misrepresentation and breach of contract; and (b) an indemnity for any amounts it was obliged to pay Ms. Lopez. As will be seen, Dr. M. Douris Dentistry Professional Corporation’s claims for misrepresentation, breach of contract, and for indemnification arise out of a contract between Dr. Douris and Dr. Esty under which Dr. Esty sold his dental practice to Dr. Douris.
[3] The situation is similar in the second action. This time, the Plaintiff Marilyn Vega, another former employee of Dr. Esty’s, sues Dr. Michael Douris for wrongful dismissal. Dr. Douris, in turn, counterclaims against Ms. Vega for defamation, and he joins Dr. Esty to the counterclaim to sue him for: (a) damages for misrepresentation and breach of contract; and (b) an indemnity for any amounts he was obliged to pay Ms. Vega. The claims for misrepresentation, breach of contract, and for indemnification, once again, arise out of a contract between Dr. Douris and Dr. Esty under which Dr. Esty sold his dental practice to Dr. Douris.
[4] Dr. Esty now brings summary judgment motions to have the Counterclaims dismissed as against him.
[5] For the reasons that follow, I grant Dr. Esty’s motions.
B. SUMMARY JUDGMENT JURISDICTION
[6] The motions before the Court are motions for a summary judgment. Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[7] With amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:
20.04 (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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[8] Rule 20.04(2.2) states:
Oral Evidence (Mini-Trial)
(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.
[9] On a motion for summary judgment, the Court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.). In 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 at para. 35 (Ont. C.A.), Justice Osborne stated: “a respondent on a motion for summary judgment must lead trump or risk losing”.
[10] In Hryniak v. Mauldin, 2014 SCC No. 7, the Supreme Court of Canada held that on a motion for summary judgment, the Court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute.
[11] In the case at bar, based only on the evidence in the motion record and without using the fact-finding powers under rule 20.04(2.1), I shall assume that there are genuine issues for trial. Under the approach to summary judgment mandated by Hryniak v. Mauldin, if there are genuine issues requiring a trial, then the Court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice, if their use 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.
[12] In the case at bar, in my opinion, the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2) to resolve the genuine issues.
C. FACTUAL BACKGROUND
[13] Based on the evidentiary record for the motions for summary judgment, I make the following findings of fact. I shall make additional findings of fact, findings of mixed fact and law, and findings of law in the Discussion and Analysis section of these Reasons for Decision.
[14] Dr. Esty is a dentist registered with the Royal College of Dental Surgeons of Ontario and has been practicing dentistry for over 42 years. From February 1998 to July 2013, his practice was located at 4630 Kingston Road, Suite 13, Toronto, Ontario.
[15] Ms. Lopez and Ms. Vega were among Dr. Esty’s employees at the dental practice. Ms. Lopez began her employment in 1993, and Ms. Vega began her employment in 2002.
[16] Dr. Michael Douris is a dentist registered with the Royal College of Dental Surgeons of Ontario, and he has been practicing dentistry for 23 years.
[17] In early 2013, Dr. Esty retained Hill Kindy Practice Sales & Realty Inc., Brokerage (“Hill Kindy”) to assist him with the sale of the practice. Hill Kindy acted as Dr. Esty’s agent for sale.
[18] Dr. Douris was introduced to the prospect of purchasing Dr. Esty’s practice by representatives of Hill Kindy who provided him with its appraisal of the value of the practice for listing purposes. The following provisions of the Hill Kindy appraisal are pertinent:
January 20, 2013
To Whom It May Concern
The following Opinion of Value is for the practice operated by Dr. Clive Esty and located at 4630 Kingston Road, Suite 13, West Hill, Ontario. The Opinion of Value has been prepared from information received from Dr. Clive Esty and his advisors and takes into consideration the results of his operations for the fiscal year ended December 31, 2011. The Practice is Going Concern and an Active Operating Entity and as such we have used a variety of Going Concern Methodologies. …
We understand that our Opinion of Value will be used to assist in determining the sale price of the practice. No other use is inferred or should be implied.
Based upon the above procedures and subject to the conditions set out in Section 7, Engagement Criteria and Limiting Factors, it is our opinion that the Notional Value of a one hundred percent (100%) interest in the dental operations of Dr. Clive Esty’s dental practice, on an Equity Basis as of December 31, 2011 would be FOUR HUNDRED TWENTY FIVE THOUSAND DOLLARS ($425,000).
1.2 Engagement Criteria & Overview
Hill Kindy Practice Sales & Realty Inc. Brokerage (“Hill Kindy”) has been engaged to determine the notional value of the dental practice of Dr. Clive Esty (the “Practice”), as at December 31, 2011. The resulting Opinion of Value is to be used for the purposes of determining an asking price for the sale of the Practice.
The use of this Opinion of Value for purposes other than those stipulated herein is restricted and Hill Kindy denies and responsibility for any losses resulting from the unauthorized use of this report. …
- PRACTICE PARTICULARS
6.2
Active Patients 1300
New Patients
Average Monthly Emergency 10
Average Monthly Regular 15
- ENGAGMENT CRITERIA & LIMITING FACTORS
To determine the fair market value of the Practice, Dr. Esty retained Hill Kindy to conduct a valuation of the dental practice of Dr. Clive Esty. The information provided to Hill Kindy has been provided by Dr. Esty and is assumed accurate. … The effective date of the appraisal is December 31, 2011, the last date of financial statements that were provided to the appraiser. This report was completed on January 20, 2013.
The analysis and opinions concluded by Hill Kindy and set forth in this financial valuation report are subject to the following assumptions and limiting conditions:
7.1 This valuation assumes that the practice is and will continue to operate as a going concern and that the character of the present business will remain intact.
7.5 Representatives of Hill Kindy have made personal visits to the premises of the Practice and have reviewed the charts of the Practice.
7.8 … The value conclusions derived were for the specific purpose set forth herein and may be invalid for any other purpose. This report is not to be used out of the context as presented herein nor used to solicit potential buyers.
7.9 All financial statements and other pertinent data relating to the income and expense attributed to the Practice have been provided either by the owner or his representative and accepted without further verification, except as may be noted in the report. Therefore, to the extent that such information may be found at a later date to have been inaccurate or misrepresented, we cannot accept responsibility for the consequences such inaccuracy or misrepresentation may have on our value conclusion or the use of our conclusion in actions taken by the client.
7.10 While we accept as correct the information furnished to us by others, no guarantee is expressed or implied herein for the validity of such information, whether in written or oral form. In addition, we assume that the information supplied by the owner and others represented a good faith effort to describe the business or assets. …
[19] Dr. Douris read the appraisal. He admitted that he understood its qualifying statements and warnings.
[20] In June 2013, Dr. Esty entered into an agreement to sell the practice to Dr. Douris. The purchase price was $375,000, which it may be noted is $50,000 less than the Hill Kindy opinion.
[21] The sale was structured as a share purchase, under which Dr. Douris would purchase all of the shares of a dentistry professional corporation to be incorporated. For present purposes, the relevant provisions of the sale agreement are set out below:
The undersigned, Dr. Michael Douris (the “Purchaser”) hereby offers to and agrees with Dr. Clive Esty (the “Vendor”) to purchase all of the shares (the “Purchased Shares”) in the capital of a dentistry professional corporation to be incorporated (the “Corporation”) which will on the Closing Date (as hereinafter defined) own all of the assets (the “Practice Assets”) used in the dental practice currently being carried on by the Vendor (the “Practice”) ….
Schedule “A”
SECTION II
VENDOR’S REPRESENTATIONS AND WARRANTIES
2.1 The Vendor hereby represents and warrants to the Purchaser as follows and hereby acknowledges and confirms that the Purchaser is relying on such representations and warranties in connection with the purchase by the Purchaser of the Purchased Shares.
(c) All material financial and other transactions of the Practice while carried on in the name of the Vendor have been properly recorded in the books and records of the Practice;
(d) The summary of income and expenses for the Practice for the years ended December 31, 2011 and 2012 and any stub period following December 31, 2010 (copies of which are attached hereto as Schedule “E”) contain true and accurate information, reflect a true and accurate statement of the financial position of the Practice as to the date(s) thereof, and where applicable, are in accordance with the books and records of the Vendor and have been prepared as a notice to reader consistent with previous readers;
(g) The Vendor has always conducted the Practice in compliance with all applicable laws, rules and regulations and the Vendor is not in breach of any such laws, rules or regulations;
(h) To the best of the Vendor’s knowledge and belief, all dental procedures conducted at the Practice were in compliance with all applicable laws, rules and regulations and the Vendor is not in breach of any such laws, rules or regulations;
(k) The Vendor currently holds all permits and approvals necessary for the use and operation of the radiology equipment used in connection with the Practice; the Vendor has carried out all required HARP inspections over the last three (3) years; there are no deficiencies noted in these reports which have not been fully rectified;
(l) All patient lists, files and records of the Practice are complete and accurate in all material respects, and comply fully with the Regulations under the Dentistry Act (Ontario) and all privacy legislation as such law(s) pertain to the acquisition and retention of personal data;
2.2 Except as otherwise provided in this Agreement, the representations and warranties contained in this Agreement (including with limitation those set out in Section 2.1 or contained in Section III herein) shall continue in full force and effect and shall survive the closing for a period of one (1) year despite any investigations and due diligence conducted by the Purchaser.
SECTION III
3.1 The Vendor covenants that, from and after the date hereof to the Closing Date the Vendor will and/or will cause the Corporation to:
(b) permit the Purchaser and his accountants and other representatives to observe all operations of the Practice after hours (at mutually convenient times) to inspect the premises and equipment, and to review all information, books, accounts, records, and other data and information relating to the Practice and the accounts, records and other data and information relating to the Practice and the Practice Assets, including without limitation, all the patient lists, files and records of the Practice;
(e) furnish the Purchaser with all information concerning the affairs of the Practice as the Purchaser may reasonably request;
3.2 The Vendor hereby covenants that, at the Time of Closing, the Vendor will have done the following:
(d) Leave all patient charts, models, records and x-rays of the Practice at the Premises for the benefit of the Purchaser as of the Closing Date, together with any charts of new patients acquired from the date of acceptance of this Offer.
(k) The Vendor shall deliver an Indemnification to the Purchaser, in a form satisfactory to the Purchaser’s solicitor, in respect of any misrepresentation or breach of any warranty, agreement, covenant or obligation of the Vendor or the Corporation contained in this Agreement or the schedules hereto provided that any such claim is brought within the survival period set out in Section 2.2 and further provided that (i) the Vendor shall not be responsible for any claims until the aggregate value of all claims exceeds One Thousand Five Hundred ($1,500.00) Dollars after which point all such claims shall be eligible to be recovered and (ii) the maximum liability of the Vendor shall be equal to the Purchase Price; ….
SECTION VIII
GENERAL
8.4 This Agreement, including the Schedules hereto, constitutes the entire agreement between the parties. There are not and shall not be any verbal statements, representations, warranties, undertakings or agreements between the parties. This Agreement may not be amended or modified in respect except as written instrument signed by both parties.
[22] The transaction closed in July 2013, and Dr. Douris subsequently amalgamated the dentistry professional corporation with Dr. M. Douris Dentistry Professional Corporation.
[23] On November 20, 2013, Ms. Lopez sued Dr. M. Douris Dentistry Professional Corporation for wrongful dismissal.
[24] On December 20, 2013, Dr. M. Douris Dentistry Professional Corporation delivered a Statement of Defence and Counterclaim against Ms. Lopez and Dr. Esty. In its Counterclaim, as noted above, Dr. M. Douris Dentistry Professional Corporation claimed: (a) damages for misrepresentation and breach of contract; and (b) an indemnity for any amounts it was obliged to pay Ms. Lopez.
[25] On January 9, 2014, Ms. Vega sued Dr. Douris for wrongful dismissal.
[26] On January 21, 2014, Dr. Esty delivered his Statement of Defence to the Counterclaim in the action brought by Ms. Lopez.
[27] On February 7, 2014, Dr. Douris delivered a Statement of Defence and a Counterclaim against Ms. Vega and Dr. Esty. In his Counterclaim, as noted above, Dr. Douris claimed: (a) damages for misrepresentation and breach of contract; and (b) an indemnity for any amounts he was obliged to pay Ms. Lopez.
[28] On June 5, 2014, Dr. Esty delivered his Statement of Defence to the Counterclaim in the action brought by Ms. Vega.
D. DISCUSSION AND ANALYSIS
1. Introduction
[29] Recalling that on a motion for summary judgment, the Court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will present at trial, the issues to be decided on this motion are whether there are genuine issues for trial that: (a) Dr. Esty breached his contract of sale with Dr. Douris and / or misrepresented the state of his practice, of which, as will be seen from the discussion below, the most serious allegation is that Dr. Esty misrepresented the number of patients; and (b) that Dr. Esty is obliged under the indemnity he gave on the sale of his practice to indemnify Dr. M. Douris Dentistry Professional Corporation for the wrongful dismissal claims of Ms. Lopez and Ms. Vega respectively.
[30] For the purposes of these motions I will assume that these issues raise genuine issues for trial, although, in truth, in some instances the evidentiary record is so thin that the genuineness of the issues for trial is doubtful. But, I shall give Dr. M. Douris Dentistry Professional Corporation and Dr. Douris the benefit of the doubt and assume that the defined issues are genuine issues for trial. However, as noted above, under the approach mandated by Hryniak v. Mauldin, if there are genuine issues requiring a trial, then the Court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). Using those powers, I conclude that the claims of Dr. M. Douris Dentistry Professional Corporation and of Dr. Douris should be dismissed on their merits.
2. The Indemnity Claim
[31] The claims on the indemnity can be quickly dealt with.
[32] Dr. Esty’s indemnity is for “any misrepresentation or breach of any warranty, agreement, covenant or obligation of the Vendor or the Corporation contained in this Agreement or the schedules hereto.” There is no sensible connection in law or in fact between Ms. Lopez’s and Ms. Vega’s wrongful dismissal claims and any warranty, agreement, covenant, or obligation of Dr. Esty.
[33] Dr. Douris conceded as much at his cross-examination. He admitted that there is no contract term whereby Dr. Esty agreed to indemnify him for any liabilities arising from the wrongful termination of an employee after closing. Dr. Douris admitted that if a court finds he wrongfully terminated an employee, then that finding would not impose any obligation on Dr. Esty.
3. The Alleged Misrepresentation about the Number of Patients
[34] Perhaps the most serious allegation of breach of contract and of misrepresentation is that Dr. Esty misrepresented the number of patients at his dental practice.
[35] The contract of sale does not contain any representation or warranty but the Hill Kindy opinion represents that there were 1300 patients, and at the argument of the summary judgment motion, over the objection of Dr. Esty, I allowed Dr. M. Douris Dentistry Professional Corporation and Dr. Douris to file answers to undertakings that suggested that the number of active patients was only 700.
[36] The elements of a claim of negligent misrepresentation are: (1) duty of care based on a special relationship between the plaintiff and the defendant; (2) an untrue, inaccurate, or misleading representation; (3) the defendant making the representation negligently; (4) the plaintiff having reasonably relied on the misrepresentation; and, (5) the plaintiff suffering damages as a consequence of relying on the misrepresentation: Queen v. Cognos, 1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87.
[37] Although it will not always be the case that a vendor will have a duty of care to a purchaser, Hill Kindy was Dr. Esty’s agent, and I shall assume that Dr. Esty had a duty of care with Dr. M. Douris Dentistry Professional Corporation and with Dr. Douris about the information provided by his agent.
[38] With that assumption, there are no genuine issues for trial that Dr. M. Douris Dentistry Professional Corporation and Dr. Douris have not proven any of the other constituent elements of the tort of negligent misrepresentation.
[39] On the evidentiary record, it cannot be found that the representation made by Hill Kindy was mistaken. It has not been established that there was any negligence by Hill Kindy in making the representation. And, I find as a fact that Dr. Douris did not rely on the representation. He had independent legal advice, and it appears that he is a knowledgeable business person and that he exercised his own due diligence before making his offer and before the closing of the transaction. Had he relied on the Hill Kindy Opinion of Value, his reliance would not have been reasonable in the circumstances, most particularly because of the qualifications and warning contained in the appraisal which itself had a limited or restricted purpose. Finally, there is no evidence of Dr. Douris suffering any damages.
[40] Moreover, there is no express warranty or representation in the sales contract, but there is an entire agreement clause that provides that there are not and shall not be any verbal statements, representations, warranties, undertakings or agreements between the parties. Strictly speaking, because I have held that there has been no proof of a misrepresentation and no proof of negligence, it is not necessary to rely on the entire agreement clause. However, there is also no reason not to enforce this exculpatory provision. As a matter of interpretation it applies to the circumstances of the case at bar and there is no unconscionability or policy reason not to enforce the provision. See Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), 2010 SCC 4.
4. The Certification and Training of the Dental Practice Staff
[41] At paragraph 26 of the Counterclaim, Dr. Douris claims that the staff at the dental practice were not fully trained and not Healing Arts Radiation Protection (“HARP”) certified. In his affidavit for the summary judgment motion, Dr. Douris deposed that following the closing, he discovered that “Ms. Lopez was not properly trained and did not possess the necessary certification to operate the x-ray machinery as required under the HARP Act.”
[42] It turns out that Dr. Douris was mistaken. Ms. Lopez is, in fact, HARP certified as she successfully completed a dental assistant program at the Toronto School of Business in 1993 in accordance with the requirements of the legislation.
[43] While he was practicing dentistry, Dr. Esty held all permits and approvals necessary for the use and operation of the radiology equipment used at the dental practice.
[44] On his cross-examination, Dr. Douris admitted that Ms. Lopez’s transcript shows that she is, in fact, HARP certified. Notwithstanding this, he refused to admit that the claim regarding Ms. Lopez’s lack of HARP certification was baseless because he has still “not seen a HARP Certification from her”.
[45] There is no provision in the sales contract whereby Dr. Esty represents that the staff of the dental practice were fully trained and HARP certified and, in any event, Dr. Douris is simply mistaken that he has grounds of complaint.
5. Discounting of Invoices
[46] At paragraph 30 of the Counterclaim, Dr. Douris alleges that contrary to the Agreement and the regulations of the College, Dr. Esty discounted patient invoices not covered by insurance. In his affidavit, Dr. Douris deposed that Dr. Esty illegally discounted patient invoices after submitting the full account to the insurance companies of the dental practice’s patients.
[47] There is also no provision in the Agreement whereby Dr. Esty has made any representation respecting the fees charged to patients, but, more to the point, contrary to the allegations contained in Dr. Douris’ affidavit, there is no proof that Dr. Esty did anything wrong.
[48] It appears that Dr. Esty wrote off some accounts as uncollectable after the portion paid by the insurance company was received. Section 2(34) of Ontario Regulation 853/93 to the Dentistry Act specifically provides that dentists may accept an amount in full payment of an account or accept a charge less than the full amount of the account submitted to a third party payor, so long as the member has made reasonable efforts to collect the balance from the patient or has the written consent of the third party payor. The evidence establishes that Dr. Esty made reasonable efforts.
[49] As evidence of improper write offs, Dr. Douris proffered three redacted dental record accounts evidencing the write off and discount amounts. Upon analysis, there is nothing in these invoices that indicates anything improper. Two of the invoices do not involve insurance companies, and the third invoice did not involve any write off.
[50] Dr. Douris has not produced any cogent evidence of the dental practice’s attempts or inability to collect amounts not covered by patients’ dental insurance plans, loss of patients due to an alleged unwillingness to pay amounts not covered by insurance, or any evidence of the damages he’s claimed as a result of this alleged misrepresentation.
[51] Dr. Douris’ claim here is without merit.
6. Patient Records
[52] At paragraphs 23 to 26 of Dr. Douris’ affidavit he claims that the record keeping employed at the dental practice is in violation of the guidelines of the regulator and in breach of the contract of sale. In particular, Dr. Douris claimed that the patient records are unclear, illegible, and are missing pertinent information. He attached as Exhibit “K” to his affidavits samples of what he claims are 23 redacted patient charts which were discovered after the purchase of the dental practice.
[53] Dr. Douris’ samples, however, prove very little. The documents found at Exhibit “K” to the Douris Affidavits are not complete patient charts; they are only partial ledgers of treatment and fees. The ledgers only form a small part of a patient’s chart. The patient’s medical and dental history, the description of all conditions present and diagnostic findings, and a description of the treatment that was provided, material and drugs used on the patient are found elsewhere in the patient’s chart. The evidence is that this information was input directly into the dental practice’s computer system, Logitech, which was replaced by another system selected by Dr. Douris.
[54] Dr. Douris admitted on his cross-examination that the partial ledgers are not the complete patient charts, and are only excerpts of patient charts. Accordingly, not one complete patient chart has been produced on this motion that would permit the Court to determine whether the patient charts of the dental practice are complete and accurate in all material respects.
[55] At the hearing of the motions, Dr. Douris proffered one dental chart that Dr. Esty had in his possession from which it was alleged that he had breached his promise in the Agreement to leave all patient patient charts at the premises for the benefit of the purchaser as of the closing date.
[56] There, however, was no evidence as to why or how Dr. Esty had this particular chart in his possession and whether it was or was not a copy of chart also found at the premises. In my opinion, on a balance of probabilities, Dr. Douris has failed to prove any breach of the Agreement.
E. CONCLUSION
[57] For the above reasons, I dismiss the Counterclaims of Dr. M. Douris Dentistry Professional Corporation and of Dr. Douris.
[58] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Dr. Esty’s submissions within 20 days from the release of these Reasons for Decision, followed by the submissions of Dr. M. Douris Dentistry Professional Corporation and Dr. Douris.
Perell, J.
Released: June 9, 2015
COURT FILE NO.: CV-13-493186
COURT FILE NO.: CV-14-496075
DATE: 20150609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LORENE LOPEZ
Plaintiff
– and –
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Defendant
AND BETWEEN:
DR. M. DOURIS DENTISTRY PROFESSIONAL CORPORATION
Plaintiff by Counterclaim
– and –
LORENE LOPEZ and CLIVE ESTY
Defendants by Counterclaim
AND BETWEEN:
MARILYN VEGA
Plaintiff
– and –
DR. MICHAEL DOURIS
Defendant
AND BETWEEN:
DR. MICHAEL DOURIS
Plaintiff by Counterclaim
– and –
MARILYN VEGA AND CLIVE ESTY
Defendants by Counterclaim
REASONS FOR DECISION
PERELL J.
Released: June 9, 2015