ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 60824
DATE: 2015/09/29
BETWEEN:
Romola Porchuk (as [sic] known as Romola Dugsin) and Ben Porchuk
Joni Dobson, for the plaintiffs
Plaintiffs
- and -
Bruce Fletcher
Brian Smith, for the defendant
Defendant
HEARD: July 29, 2015
Rady J.:
Introduction
[1] This is a dental malpractice action. The defendant moves for partial summary judgment dismissing claims respecting treatment provided prior to September 20, 2005. Those claims pertain to alleged negligent root canal treatment to Teeth 15 (the right upper second bicuspid); 25 (the left upper second bicuspid); 36 (the lower left first molar); and the alleged failure to treat Tooth 37 (the lower left second molar).
[2] The defendant provided dental treatment to Romola Porchuk between December 12, 2000 and January 8, 2007. A statement of claim was issued on January 16, 2009. The claim alleged negligence with respect to treatment provided after September 20, 2005. On October 1, 2013 a motion to amend the claim to raise either additional claims of malpractice (as the defendant asserts) or particulars of claims already pleaded (as the plaintiffs assert) respecting the treatment of Teeth 15, 25, 36 and 37 was served. The amendment was permitted.
[3] The defendant submits that the claims newly advanced in the amended claim are statute barred.
The Facts
[4] Dr. Fletcher was Dr. Porchuk’s family dentist and he undertook various dental repairs and procedures summarized below:
Date
March 22, 2001
Root Canals (Teeth #15 and #25)
August 29, 2001
Permanent Crowns (Teeth #15 and #25)
May 17, 2005
Root Canal (Tooth #36)
August 16, 2005
Permanent Crown (Tooth #36)
September 15, 2005
Perforation Repair (Tooth #36)
October 18, 2005
Root Canal (Tooth #26)
October 31, 2005
Permanent Crown (Tooth #26)
November 30, 2005
Root Canal (Tooth #35)
December 15, 2005
Permanent Crown (Tooth #35)
April 10, 2006
Perforation Repair (Tooth #36)
[5] On January 4, 2007, Dr. Porchuk was struck in the jaw while playing with one of her children. She developed symptoms of progressive pain. From January 6, 2007 to January 19, 2007, she saw Dr. Fletcher and other dentists for her teeth pain. On January 19, 2007, an endodontist [Dr. Moreno] told her that there appeared to be an untreated canal in Tooth 36.
[6] On January 21, 2007, she wrote to Dr. Fletcher, beginning her letter as follows:
I am writing to give you a synopsis of the several treatments and agonizing journey that I have been on in the last two weeks.
a) So I can rebuild some communication with you, and because, as you will read, this has shaken my trust in our Dr./Patient relationship. As I refer patients to you regularly, I offer this letter as an opportunity for a dialogue to rebuild trust.
b) So that you may have this information to address future cases, which may occur, though obviously very rarely.
I want to be clear that I am not coming at this from a legal standpoint, yet I do feel there has to be some dialogue regarding rectifying this situation.
[7] She went on to set out a chronology of her symptoms and treatment from January 6, 2007 to January 19, 2007.
[8] By way of summary, after she saw Dr. Fletcher on January 8, 2007, Dr. Porchuk continued to have pain in her lower jaw and bottom teeth. Her family doctor recommended that she seek a second dental opinion.
[9] Ms. Porchuk attended at the Dove Dental Centre, where she was examined by Dr. Merritt on January 10, 2007. Dr. Merritt recommended a pulpectomy (the removal of diseased pulp tissue) be performed on Tooth 37, after an x-ray showed decay underneath an existing filling. He performed the initial pulpectomy on Tooth 37. He also recommended the root canal of Tooth 36 be redone.
[10] The pulpectomy was completed by Dr. So, another dentist at Dove Dental, two days later.
[11] Dr. Porchuk attended the emergency room on the evening of January 12, 2007 with complaints of jaw pain.
[12] Dr. Porchuk called Dr. So on January 13, 2007 with continuing complaints of jaw pain. Dr. So referred her to an oral surgeon, Dr. Shimizu for investigation of the cause of the pain.
[13] On January 17, 2007, Dr. Shimizu diagnosed a suspected fracture in Tooth 36 and referred Dr. Porchuk to an endodontist, Dr. Moreno. An endodontist specializes in root canal therapy.
[14] She attended with Dr. Moreno on November 13, 2007 with complaints that the crown on Tooth 25 had become loose. An x-ray was taken and Dr. Moreno recommended extraction and insertion of an implant. He referred her to Dr. Shimizu to perform the procedure.
[15] In her letter of January 21, 2007 to Dr. Fletcher, she identified “two glaring mistakes”, namely the missed decay on Tooth 37 and the missed canal on Tooth 36. She wrote:
On January 19, I saw Dr. Moreno and he confirmed that 3-7, was not the problem, but he would open it up, just to be sure, as it seemed the canals were in a C shape and still could hold some organic material. However, what he saw on his x-ray was clearly a 4th canal on 3-6 that had been missed. It had probably always held a low grade infection and when the tooth was hit, it caused the infection to erupt. . . He cleaned out 3-7, confirmed that it was fine, and tried to drill through the crown on 3-6. He said he had never seen such a hard metal on a crown and that it was bio-incompatible and would have contributed to an infection. He took an hour to drill through the metal to the canals and the crown eventually did come off. He stopped as soon as he got to the canals, he confirmed the existence of a fourth canal and as soon as he went into it, it erupted with blood and pus . . .
He suggested I go back to my regular dentist to get my crowns. However, as you can imagine, after this experience I am trepidatious. I could not work for two weeks, I have not been able to parent my children, and I have been in and out of hospital with excruciating pain. I have become exceptionally weak – from being able to jog 5 km. a day, I can barely get around my house. The infection was so severe that I will now have to rebuild my stamina. And there seems to be two glaring mistakes that may have avoided this whole situation. The missed decay on 3-7 – albeit the 3-7 was not the main culprit, and the missed canal on 3-6.
[16] I pause here to note that Dr. Fletcher has deposed that he has no recollection of receiving this letter before the claim was commenced but this evidence is immaterial to the outcome of this motion.
[17] Dr. Porchuk met with counsel in April 2008 and retained them in June 2008. Dr. Fletcher’s records were requested in July, September and November 2008. Counsel retained an expert to review the material when it was received.
[18] The records were received on December 4, 2008 and provided to the expert two weeks later. Unfortunately, some of the records were illegible and as a result, the expert was unable to render an opinion before the impending limitation period. A claim was issued on January 16, 2009.
The Claim and the Amended Claim
[19] The original claim made the following allegations:
Dr. Fletcher was Romola’s family dentist. On or about September 20, 2005 Romola was involved in a motor vehicle collision in which she sustained injuries including injuries to her jaws and teeth. As a result of these injuries several of Romola’s teeth died. Dr. Fletcher provided treatment to Romola for injuries to her jaw and teeth which included performing several root canals. Dr. Fletcher advised Romola that the root canal surgery to repair the dead teeth was the appropriate treatment.
On or about January 4, 2007, Romola was playing with her children when her head was struck causing Romola’s lower and upper jaws to collide. She developed pain that day which progressed.
Romola visited Dr. Fletcher on or about January 7, 2007 for investigation and treatment for the pain. Romola was advised by Dr. Fletcher that the pain was likely caused by infection for which he prescribed antibiotics and pain medication.
On or about January 8, 2007 Romola visited Dr. Fletcher due to continuing pain and was further advised by Dr. Fletcher that the pain was likely caused by infection and that Romola should return for a further visit to Dr. Fletcher’s office one week later.
On or about January 9, 2007, Romola telephoned Dr. Fletcher to advise that none of the prescriptions were improving her symptoms and that the pain had increased, her jaw felt hot and was extremely sensitive to touch.
On or about January 9, 2007, Romola contacted her family physician to report her symptoms. Her family physician referred Romola to an oral surgeon who proceeded to perform a pulpotomy to determine the source of the pain and in an attempt to alleviate the pain.
The pain continued necessitating hospitalization and treatment from a further oral surgeon including administering antibiotics and pain medication to Romola intravenously, followed by two further outpatient hospital visits.
Romola received and continues to receive endodontic and prosthodontic treatment as a result of the injuries sustained from Dr. Fletcher’s dental treatment.
As a result of the improperly performed root canals and crowns by Dr. Fletcher, Romola has sustained infection, pain, fever, nausea from medications, pulpectomies, root canals, and other dental, endodontic and prosthodontic treatment including replacement of crowns and bridges.
[20] The plaintiffs set out the particulars of negligence with respect to the “root canal surgeries and crown work” and the “injury to jaw and teeth following root canal surgeries and placement of crowns”.
[21] The plaintiffs brought a motion in October 2013 seeking an order to amend the claim. The defendant opposed the amendments on the basis that they were statute barred. Justice Hockin permitted the amendments to be made, as explained in his endorsement dated February 26, 2015. The essence of his decision was that it was not plain and obvious that the claims were out of time on the basis of the record then before him.
[22] The amended claim contains the following allegations:
Dr. Fletcher was Romola’s family dentist. Romola first visited Dr. Fletcher in or about December 2000. On or about March 22, 2001, after Romola was involved in a motor vehicle accident, Dr. Fletcher performed root canal procedures on teeth 15 and 25. He performed root canal procedures on tooth 36 on or about May 17, 2005. Romola returned to have a permanent crown placed on tooth 36 on or about August 16, 2005. Dr. Fletcher perforated the crown when he attempted to place and cement it.
On or about September 15, 2005, Romola returned to Dr. Fletcher who sealed the perforation in the crown placed on August 16, 2005.
On or about September 20, 2005 Romola was involved in a motor vehicle collision in which she sustained injuries including injuries to her jaws and teeth. As a result of these injuries several of Romola’s teeth required repair. Dr. Fletcher provided treatment to Romola for injuries to her jaw and teeth which included performing several root canals. Dr. Fletcher advised Romola that the root canal surgery to repair the injured teeth was the appropriate treatment. 7. On or about October 18, Dr. Fletcher performed a root canal procedure on tooth 26 and completed it on October 31, 2005. He performed a root canal procedure on tooth 35 on November 30, 2005 as well.
On or about April 10, 2006, Dr. Fletcher re-sealed the perforation on the crown on tooth 36.
On or about January 4, 2007, Romola was playing with her children when her head was struck causing Romola’s lower and upper jaws to collide. She developed pain that day which progressed.
Romola visited Dr. Fletcher on or about January 7, 2007 for investigation and treatment for the pain. Romola was advised by Dr. Fletcher that the pain was likely caused by an infection for which he prescribed antibiotics and paid medication. Dr. Fletcher did not further investigate the cause of the pain.
On or about January 8, 2007 Romola visited Dr. Fletcher due to continuing pain and was further advised by Dr. Fletcher that the pain was likely caused by infection and that Romola should return for a further visit to Dr. Fletcher’s office one week later.
On or about January 9, 2007, Romola telephoned Dr. Fletcher to advise that none of the prescriptions were improving her symptoms and that the pain had increased, her jaw felt hot and was extremely sensitive to touch.
On or about January 9, 2007, Romola contacted her family physician to report her symptoms. Her family physician referred Romola to an oral surgeon who proceeded, On January 10, 2007, to perform an emergency pulpectomy on tooth 37 to determine the source of the pain and in an attempt to alleviate the pain.
On or about January 13, 2007, an oral surgeon determined that Romola had infection, deep decay in tooth 36 and 37. On January 19, 2007, an oral surgeon determined that tooth 35 had a canal that had not been treated. It was on this latter date that Romola first discovered that Dr. Fletcher’s dental treatment may not have been adequate.
The pain continued necessitating hospitalization and treatment from a further oral surgeon including administering antibiotics and pain medication to Romola intravenously, followed by two further outpatient hospital visits. A faulty crown was found on tooth 26. The crown on tooth 25 was loose. The crowns had to be removed. Tooth 25 was extracted, tooth 26 required root canal, and a bridge placed from 24 to 26.
[23] Some further particulars follow respecting the root canal surgeries, crown work and the work performed on Tooth 36.
[24] As is apparent, the amended pleading includes reference to Teeth 15, 25 and 36 for which treatment was provided prior to September 20, 2005 and Tooth 37 for which there was no treatment.
The Evidence
[25] The defence filed a brief affidavit from Dr. Fletcher. He explains the treatment he provided for Teeth 15, 25, 36 and 37. He appends relevant records from other dental caregivers.
[26] The plaintiffs have filed an affidavit from Dr. Porchuk, as well as one from Dr. Abrams, the dental expert retained by the plaintiffs and two affidavits from a law clerk with Ms. Dobson’s firm. Dr. Porchuk was also examined for discovery on September 25, 2014 and her transcript is part of the record.
[27] Dr. Abrams deposes that he received Dr. Porchuk’s medical brief from her counsel on December 17, 2008. On February 9, 2009, he requested clearer copies of chart entries among other information. On September 16, 2009, he received a transcribed copy of Dr. Fletcher’s notes. He requested further information in late 2009, which he received in December 2009. Ultimately, he felt unable to render an opinion until after the defendant’s examination for discovery. His opinion was ultimately given in February 2015.
[28] Ms. Smiley, the law clerk, appends Dr. Fletcher’s records as originally provided in December 2008. Some portions are not legible, although I note that the records prior to May 10, 2005 are clear and readable.
[29] Dr. Porchuk deposes that she “learned that Dr. Fletcher had provided care to me which fell below the standard of care when I reviewed the Report of Dr. Abrams”.
[30] At her examination for discovery, Dr. Porchuk was asked and answered these questions respecting her treatment by Dr. Moreno on January 19, 2007 and who diagnosed a periapical lesion at Tooth 36. He performed a root canal treatment for Tooth 37 and re-did the root canal for Tooth 36.
- Q… So Let’s talk about your first appointment with Dr. Moreno. What do you remember about that appointment?
A. He was just very professional. He looked at the tooth, he specializes in, as an endodontist in this sort of treatment. He gave me the information that if he attempted to open up the 3-6 which he now perceived as the problem, that it, the risk was that I would potentially lose the tooth, and he needed to make me aware of the [sic] because he would do his best to deal with it, but you can [sic] always redo a root canal. In fact, it’s extremely difficult to redo a root canal …
- Q. Right
A…. There was something else I, I … that he didn’t like about the crown itself, and when he got the canal, canals themselves, he you know, said he didn’t like certain things about something or the other, but then, and then he was quite astonished as the amount of infection that when he did you, the, the other canal, what started coming out of it and that he apparently used a lot of antibiotic, and a lot of you know, suction and things like that …
[31] She was questioned about the amendment to paragraph 14 of the claim.
- Q. And the final sentence in that paragraph states, “It was on this latter date, the January 19th date, “that Romola first discovered that Dr. Fletcher’s dental treatment may not have been adequate.” Do you agree with the accuracy of that sentence?
A. Yes.
Q. And it states that, you know, kind of blanket, Dr. Fletcher’s dental treatment may not have been adequate. When you learned that information on January 19th about tooth 36 and the missed canal, does it mean that on that date you just thought that his treatment of that tooth had been…inadequate? …
Q. Or are you talking about his treatment, in general, of you?
A. So there had been five root canals that he had done. At that date, I, the three things that alerted to me some concern were Dr. Moreno had stated that whatever substance was used in the crown was bio incompatible and this was, you know, very strange material, and I don’t know why the crown was set such and such a way, and whatever, and the canal was missed. He both Dr. Merritt and Dr. Moreno questioned, “Well, when you went to see your dentist why didn’t he notice that 3-7 had some problems?” and at that time they had asked me, “Have you had any other problems with any of the other root canals?” and at that point I had said no, but given this one, I had now had a flag in my mind of and I wonder. … At that point, the implication of the 3-6 and the pain that it caused, and in my opinion Dr. Fletcher not following up to do what Dr. Merrit did, which was deal with the 3-7, and go see an oral surgeon, or a referral to an oral surgeon to see if it had gone to the jaw, referral to an endodontist to see if there was a problem with the root canal, Dr. Fletcher didn’t do any of these steps, and that was very concerning because it was a tremendous amount of pain during that time, and implications to all sorts of other things as a result.
- A. So in February of 2007, I think, Dr. Moreno suggested that we look at all the teeth that had been done, all the other root canals that had been done because he was going to check, just from X-rays perspective, of any other missed canals so that this wouldn’t happen again, because the 3-6 has, had the missed canal, and upon look at the other root canals that had been done … so he had done the 2-6/7, redid, redid the 3-6, finished the 3-7 … there were four others. He had suggested that he had seen some concerns with all of them. He said the one on my right side, upper, would eventually need apical surgery to go through the gum to get to it, if it was ever going to be redone, and eventually it would likely need that, and he was concerned about all four failing …
The Issue and the Parties’ Positions
[32] At issue on this motion is whether the amended claim asserts new causes of action with respect to teeth 15, 25, 36 or 37 or merely particularizes claims already asserted.
[33] The defendant urges the former conclusion and the plaintiffs the latter. The defendant submits that on the evidence the plaintiffs knew or ought to have known of the facts giving rise to the claim sometime between January 21, 2007 and February 15, 2008. He argues that on the basis of the pleading itself, the plaintiffs knew as of January 19, 2007 that Dr. Fletcher’s care may not have been adequate (see paragraph 14 of the amended claim).
[34] The plaintiffs emphasize that the original claim was brought on a timely basis. While they concede that the original claim may not be as clearly articulated as it might have been, the plaintiffs say that it clearly points the “finger of litigation” at the defendant with respect to the adequacy of the dental care provided. They note that Dr. Fletcher’s statement of defence delivered to the original claim outlines the care he provided from the outset of his retainer in December 2000 until its termination in January 2007. They say the parties clearly understood the claims being advanced arose from “root canals gone bad, crown work, and injury to the jaw and teeth following root canal surgery”, as noted by the defendant’s former solicitor at Dr. Fletcher’s examination for discovery. Furthermore, they point out that the defendant provided illegible records that impeded their ability to secure an expert opinion about whether there was a departure from the standard of care.
The Law
[35] I do not propose to review at length the Supreme Court of Canada’s decision respecting summary judgment in Hryniak v. Mauldin (2014), 2014 SCC 7, 366 D.L.R. (4th) 641 (S.C.C.). Suffice it to say that it provides clear guidance to a motion judge with respect to the approach to be taken to such motions and it has been the subject of considerable discussion in the many cases that have followed.
[36] Summary judgment has been encouraged as a means to promote access to justice that is proportionate, more expeditious and less expensive than a full blown trial. The first step in the analysis is to determine whether there is a genuine issue requiring a trial. The motion judge is permitted to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence. It remains the case that the responding party must “lead trump or risk losing”.
[37] The parties agree that the evidentiary record is now complete. They also agree on the applicable law respecting when a limitation period begins to run.
[38] The Limitations Act, 2002 provides as follows:
Basic limitation period
- 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.
Discovery
- (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 has 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.
[39] The discoverability principle postpones the running of the limitation period until the plaintiff knows, or by reasonable diligence could have known, the material facts upon which to bring an action: Soper v. Southcott, 1998 5359 (ON CA), [1998] O.J. No. 2799 (C.A.).
[40] The test for determining when the claim was discovered pursuant to subsection 5(1)(a) is subjective. It requires a determination of when the claimant had actual knowledge of the material facts upon which to bring an action. The test under 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 material facts: Ferrara v. Lorenzetti, Wolfe, 2012 ONCA 851.
[41] An expert opinion is not necessarily a prerequisite to commencing an action: Soper, supra. In that case, the court observed:
Limitation periods are not enacted to be ignored. The plaintiff is required to act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based. This includes acting with diligence in requesting and receiving a medical opinion, if required, so as not to delay the commencement of the limitation period. In some cases, a medical opinion will be necessary to know whether to institute an action. In other cases, it will be possible to know material facts without a medical opinion, and the medical opinion itself will simply be required as evidence in the litigation. In the latter instances, the time of receipt of the medical opinion is immaterial to the commencement of the running of the limitation period.
[42] The defendant submits that the plaintiffs ought reasonably to have known the material facts upon which the claim was based as early as January 21, 2007 and no later than February 15, 2008. They rely on a number of dental malpractice cases touching on the issue of what constitutes sufficient knowledge.
[43] In Conidis v. Tait, 2015 ONSC 1558 (S.C.J.), the court noted:
… 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.
[44] In Barry (Litigation Guardian) v. Pye, 2014 ONSC 1937 (S.C.J.), the defendants sought summary judgment dismissing a claim on the basis it was commenced after the expiry of the limitation period. The motion was granted. The motion judge noted that the plaintiff had complained to her family doctor about her oral surgery and described the frustration, anxiety and depression that ensued. He concluded that by that time, she had discovered her claim, explaining as follows:
65 The analysis of what the Plaintiff knew, and when, as discussed above, is applicable to the issue of discoverability. Even if [the plaintiff] did not know, in fact, by August 20, 2003, the facts on which she could found a cause of action, with the relevant knowledge as set out in the case law, I find she ought to have known by that time. The fact that there was an undisclosed break in her jaw, or that she might need corrective surgery to remedy some of her problems, is evidence of more damage than she may have already appreciated, but as said in Peixeiro, by August 2003 she was already aware of considerable damage that she thought was caused by the negligence of the doctors, and for which an action was the proper way to seek remedy.
76 As discussed above, the case law tells us that such specific knowledge of the acts or omissions, or of the actual negligence of the tortfeasors, is not necessary. The Plaintiff need only have prima facie evidence on which to found a claim. Even if this higher level of information was required here, on the issues of informed consent, the Plaintiff clearly understood the facts on which this particular cause of action was based long before May 24, 2006.
[45] Finally, in Brown v. Wahl, 2015 ONSC 1328 (S.C.J.), a motion for summary judgment was successful where the plaintiff was told by a dentist who provided subsequent treatment that he took issue with the treatment provided by one of the defendants. Stinson J. made this observation:
- 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.”
[46] The plaintiffs submit that these cases are distinguishable because they all involved cases where a claim had not been issued before the expiry of the limitation period.
[47] They rely on Khan (Litigation guardian of) v. Lee, [2014] O.J. No. 5940 (C.A.) on the issue of the degree of particularity required in a pleading. In that case, the court made the following comment:
I agree with the observation of Aitken J. in Chenier, at para. 21:
At this early stage in the litigation process, it would be placing an unduly onerous burden on the Plaintiffs to describe in detail what transpired or did not transpire at all of these points in time. The Defendants are in the position of knowing with great particularity what was done or not done by way of treatment and intervention. The Plaintiffs will only be able to further particularize their allegations once any records that have been disclosed to them by the Defendants are further supplemented with responses given on discovery. The Plaintiffs cannot be expected to have retained their own medical experts to assist in particularizing their allegations regarding a breach of standard of care by the Defendant Physicians before those experts would have access to all available information as to what actually happened at the time of Sacha’s birth.
[48] The defendant responds on the “new cause of action vs. particulars” issue with Timbers Estate v. Bank of Nova Scotia, 2011 ONSC 3639, [2011] O.J. No. 2696 (S.C.J.), which discussed the distinction:
A cause of action is defined as a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. When a proposed amendment relates to material facts that were not substantially pleaded in the original claim or are essential to support the claim being advanced, the amendment raises a new cause of action [see Ascent Inc. v. Fox 40 International Inc., [2009] O.J. No. 2964 (Ont. Master) and Bank of Nova Scotia v. PCL Constructors Canada Inc., [2009] O.J. No. 4347(Ont. Master)].
As summarized in Thompson v. Zeldin, [2008] O.J. No. 3591 (Ont. Master), a proposed amendment will not constitute a new cause of action if it:
(a) Simply pleads an alternative claim for relief arising from the same facts previously pleaded and no new facts are relied upon;
(b) Simply amounts to a different set of legal conclusions drawn from the same set of facts;
(c) Simply provides particulars of an allegation already plead; or
(d) Simply provides additional facts upon which the original right of action is based.
(e) In short, the proposed amendment must rely on facts which have been substantially pleaded in the initial statement of claim.
Analysis
[49] I have concluded that the defendant is entitled to partial summary judgment, dismissing the claims relating to treatment rendered prior to September 20, 2005. I am not persuaded that the amendments merely particularize claims previously sketched out in the original statement of claim. Nor can I accept the contention that Dr. Porchuk did not know that the defendant may have provided substandard care until she reviewed the expert report. I have reached these conclusions for several reasons.
[50] First, the original claim clearly refers to events and treatment that occurred after September 20, 2005. The claim pleads a chronology of events after that time in paragraphs four and following. Dr. Porchuk would certainly have been aware that she had received treatment prior to September 20, 2005 and the plaintiffs were in receipt of Dr. Fletcher’s notes and records that clearly disclosed the earlier treatment as early as December 2008.
[51] The plaintiffs sought an expert opinion and although one did not become available until following the defendant’s examination for discovery, the plaintiffs had sufficient information to issue the original statement of claim on January 16, 2009, which as already noted spoke to events only occurring after September 20, 2005.
[52] It is significant that the amendments were sought in October 2013, long before Dr. Abrams rendered his opinion. Accordingly, Dr. Porchuk’s statement that she was not aware that the defendant had provided substandard care until receipt of his opinion cannot withstand scrutiny.
[53] Moreover, that assertion is belied in the amended pleadings, Dr. Porchuk’s letter to the defendant and her testimony at the examination for discovery. Paragraph 14 of the amended claim bears repeating:
On or about January 13, 2007, an oral surgeon determined that Romola had infection, deep decay in tooth 36 and 37. On January 19, 2007, an oral surgeon determined that tooth 35 had a canal that had not been treated. It was on this latter date that Romola first discovered that Dr. Fletcher’s dental treatment may not have been adequate.
[54] On January 21, 2007, Dr. Porchuk wrote to the defendant and identified two “glaring mistakes” related to Teeth 36 and 37, based on information she obtained from Dr. Moreno. At her examination for discovery, she testified that both Drs. Merrett and Moreno questioned why the problems with Tooth 37 had been overlooked by Dr. Fletcher. She also said in February 2007, Dr. Moreno suggested that all of the root canals be checked because he had concerns about all of them.
[55] The foregoing makes it apparent that the plaintiffs knew as of February 2007 that the adequacy of Dr. Fletcher’s care throughout the time he provided it was seriously in question. Accordingly, the case bears a striking similarity to Brown v. Wahl. By February 2007, Dr. Porchuk knew or should have known that her problems “must have been caused through some act or failure to act…and there was the likelihood of negligence of some kind, either in what was done or what was not done but should have been”.
[56] Finally, I am not persuaded that the amended claim simply provides particulars of allegations already pleaded or substantially pleaded in the first claim. The amended claim clearly expands the time period during which treatment was provided and which the plaintiffs now say was deficient.
[57] The motion for partial summary judgment is therefore granted. If the parties cannot agree, I will secure brief written submissions on costs from the defendant by October 16, 2015 and the plaintiffs by October 30, 2015.
“Justice H. A. Rady”
Justice H.A. Rady
Released: September 29, 2015
COURT FILE NO.: 60824
DATE: 20150929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Romola Porchuk (as [sic] known as Romola Dugsin) and Ben Porchuk
Plaintiffs
- and -
Bruce Fletcher
Defendant
REASONS FOR JUDGMENT
Rady J.
Released: September 29, 2015