ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-434476

DATE: 20150730

BETWEEN:

MARIE SANZONE
Plaintiff
(The Responding Party)

– and –

DR. IRA SCHECTER, DR. MICHAEL SCHECTER, AND SCHECTER DENTAL
Defendants
(The Moving Parties)

Marie Sanzone, acting in person

Mario E. Delgado, for the Defendants (Moving Parties)

s.a.Q. akhtar j.

Introduction

[1] The plaintiff, Marie Sanzone, alleges negligent professional malpractice by the defendants, Dr. Michael Schecter and Dr. Ira Schecter, with respect to dental treatment performed in September 2009. The defendants insist that they acted with the appropriate standard of care. They point to Ms. Sanzone’s failure to produce mandatory expert evidence to support her claims. In the absence of this evidence, the defendants argue Ms. Sanzone cannot prove her allegations. The defendants seek summary judgment to dismiss Ms. Sanzone’s action.

Factual Background and Allegations

[2] In September 2009, Marie Sanzone attended the defendants’ office to deal with dental issues that included infections, tooth decay, the need for partial root canals, the replacement of missing fillings, and the cleaning up of decay. The condition of her teeth was causing her pain and she wanted remedial treatment to assist and improve her chewing ability. Ms. Sanzone’s medical history and multiple health issues were disclosed prior to surgery. The defendants, both dentists registered to practise dentistry in Ontario, formulated a treatment plan with the intention of eliminating Ms. Sanzone’s symptoms but, at the same time, retaining as many of her teeth as possible. After starting the procedure, however, the defendants realised the plan could not be implemented as intended. Instead, Dr. Michael Schechter devised a new means of treatment which would involve bone grafting and extracting all of Ms. Sanzone’s teeth replacing them with detail implants and snap on dentures. The dental surgery was carried out on 9-10 September 2009.

[3] As a result of this procedure, Ms. Sanzone claims that her ability to eat solid foods was critically diminished. She launched proceedings alleging the defendants were negligent in recommending the techniques that were carried out.

[4] Ms. Sanzone issued her Statement of Claim in October 2011 to preserve her litigation rights under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. On March 13, 2013, Master Brott set out a timetable outlining the dates by which the parties were to exchange documents and pleadings. Ms. Sanzone was ordered to file her Fresh as Amended Statement of Claim by May 1, 2013. She failed to do so. The defendants complied with Master Brott’s order and filed a Statement of Defence on June 14, 2013. On 25 November 2013, Master Glustein (as he then was) revised the timetable and ordered that the matter be set down by the plaintiff by 31 December 2014. No trial record was ever served by the plaintiff.

[5] Motions brought by the defendants for security of costs were denied. On 12 February 2015, the defendants wrote to Ms. Sanzone informing her of their intention to schedule a summary judgment motion if she failed to provide an expert’s report on the allegations of professional negligence. The defendants made good on their promise scheduling a motion due to be heard on 12 June 2015. On that date, Ms. Sanzone indicated that she was not in a position to argue the motion. She was granted an adjournment on the condition that the matter had to proceed on the next date.

LEGAL PRINCIPLES

Summary Judgment

[6] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

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

[7] In Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada concluded that summary judgment motions must be granted whenever there is “no genuine issue requiring a trial.” The test under Rule 20.04 is satisfied if the presiding judge could reach “a fair and just determination on the merits of a motion for summary judgment.”

[8] When faced with a summary judgment motion the court must determine whether the process:

(1) Allows the judge to make the necessary finding of fact;

(2) Allows the judge to apply the law to the facts; and

(3) Is a proportionate, more expeditious and less expensive means to achieve a just result.

[9] I am satisfied that, in the circumstances of this case, there is no genuine issue requiring a trial.

The Requirement for Expert Evidence in Medical/Dental Negligence Cases

[10] There is no dispute that the defendants owed Ms. Sanzone a duty of care when providing treatment. The law in Ontario has held, however, that when professional malpractice is alleged, expert opinion evidence is required to allow a trier of fact to properly assess whether a defendant’s action fell below the appropriate standard of care. The expert called to establish negligence must be a professional practising in the same field as the defendant: Kurdina v. Gratzer, 2010 ONCA 288, [2010], O.J. No. 1551, at para. 2. Furthermore, the expert’s opinion must establish all elements of cause in a negligence action: McNeil v. Easterbrook, [2004] O.J. No. 3976 (S.C.), at para. 16.

[11] In the absence of supporting expert opinion, a plaintiff has no hope of success and the action must be dismissed: Kurdina, at para. 4; Markowa v. Adamson Cosmetic Facial Surgery Inc., 2012 ONSC 1012, [2012] O.J. No. 762, at para. 177.

THE EXPERT EVIDENCE

[12] In alleging the defendants were negligent it is mandatory for Ms. Sanzone to provide an opinion outlining the requisite standard of care, the manner in which that standard was breached and how that breach caused her injuries.

[13] Ms. Sanzone seeks to rely on a document prepared by Stanley M. Shafer, D.M.D. dated 27 July 2014 (“the Shafer document”). This document states that Dr. Shafer has reviewed x-rays and chart notes pertaining to Ms. Sanzone’s dental work performed by the defendants in 2009. It also declares, in bald statements, that “[t]he fact that they did not remove or grind-off any unusable [sic] implant. [sic] and that she was not IMMEDIATELY sent to a specialist for additional treatment is below the standard of care.” The document is not produced in the form of a sworn affidavit but has been notarised.

[14] The defendants object to this document’s admissibility on the grounds of form and content.

[15] In my view, there are two issues to be decided in this case:

(1) Is Dr. Shafer’s report admissible?

(2) Is Dr. Shafer’s report credible?

Issue 1: Is Dr. Shafer’s Report Admissible?

[16] The defendants argue that Dr. Shafer’s opinion falls afoul of two requirements. First, it is not an affidavit upon which Dr. Shafer could be cross-examined. Secondly, they argue that the pre-conditions of admissibility contained in Rule 53.03 of the Rules of Civil Procedure have not been met.

[17] The defendants are correct that an expert must provide his or her opinion in an affidavit. In Toronto-Dominion Bank v. Schrage, 2009 45444 (ON SC), [2009] O.J. No. 3636 (S.C.), Strathy J., as he then was, remarked upon the necessity of a sworn affidavit in the context of expert evidence at para 39:

This is not a mere formality. On a motion for summary judgment the court is entitled to sworn evidence and, in the case experts, that the evidence be given by the expert and not filtered through the hearsay evidence of the party.

[18] There is an additional difficulty with the Shafer document: it does not comply with Rule 53.03 of the Rules of Civil Procedure which governs the admission of an expert report at trial. The rule provides that an expert report shall contain the “expert’s qualifications, employment, and educational experiences in his or her area of expertise.” The report must also contain the factual foundations upon which the opinion is based and a list of the documents relied upon in forming the opinion. None of these requirements are met in the Shafer document.

[19] There was nothing preventing Dr. Shafer from providing a sworn affidavit outlining his opinion or providing an affidavit attaching a report containing his opinion. Regrettably, in this case, he did neither. It was impermissible for Ms. Sanzone to swear an affidavit and attach the Shafer document to it as an exhibit. Moreover, any report sought to be tendered had to comply with Rule 53.03 of the Rules. The contents of the Shafer document were woefully inadequate in that regard.

[20] Accordingly, I find the Shafer document to be inadmissible on this motion.

[21] That finding, of itself, is sufficient to dispose of this motion: without expert evidence to establish negligence, the plaintiff’s claim must be dismissed. For the sake of completeness, however, I discuss the content and credibility of Dr. Shafer’s document.

Issue 2: Is the Shafer Document Credible?

[22] Even if I were to find the Shafer document admissible, I would place very little weight on it when deciding the issue of the defendants’ negligence. The document is entirely lacking in specifics and gives no evidence of causation.

[23] Dr. Shafer fails to identify the standard of care required of the defendants in Ontario. In addition, he fails to define the standard that he is using to determine their negligence. His “answers/comments” with respect to Ms. Sanzone’s treatment are both vague and devoid of detail. There is barely a reference to what the defendants did wrong other than cursory remarks that they did not remove or “grind off” any unusable implant or send Ms. Sanzone to a specialist immediately afterwards. These comments are wholly inadequate in establishing the negligence alleged by Ms. Sanzone.

[24] Finally, there is nothing in the Shafer document indicating that the defendants’ dental work actually caused the complaints that Ms. Sanzone now claims to be suffering. This evidence is critical in the determination of liability at trial.

Conclusion

[25] For the reasons set out above, Ms. Sanzone’s action is dismissed.

[26] If the parties cannot agree on costs, I invite the defendants to submit a written application for costs no longer than 5 pages within 30 days of these reasons. Ms. Sanzone is to provide written reasons of the same length within a further 30 days.

S.A.Q. Akhtar J.

Released: July 30, 2015

COURT FILE NO.: CV-11-434476

DATE: 2015030

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIE SANZONE
Plaintiff
(The Responding Party)

– and –

DR. IRA SCHECTER, DR. MICHAEL SCHECTER, AND SCHECTER DENTAL
Defendants
(The Moving Parties)

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.