ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-513910
DATE: 20151026
BETWEEN:
SONGYUAN LIU
Plaintiff
– and –
DR. STEPHEN SIK-HONG WONG and
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Defendants
Self-represented and acting in person
Stephen W. Ronan, for the defendant
Dr. Stephen Sik-Hong Wong
HEARD: October 23, 2015
ENDORSEMENT
DIAMOND J.:
Overview
[1] In this action, the plaintiff alleges that the defendant Dr. Stephen Sik-Hong Wong (“Dr. Wong”, the plaintiff’s family doctor at the time) negligently removed surgical staples from his right knee on September 8, 2011. The staples were previously inserted at the conclusion of surgery performed by Dr. Barry Cayen on August 26, 2011 to repair the plaintiff’s fractured right patella suffered in a motor vehicle accident on August 25, 2011.
[2] Dr. Wong, brings this motion for summary judgment seeking an order dismissing the plaintiff’s claim on two grounds:
(a) a failure on the part of the plaintiff to commence this proceeding within the two year period set out in the Limitations Act 2002 S.O. 2002, c.24 (“Limitations Act 2002”), and
(b) the plaintiff’s failure to serve an expert medical opinion proving the applicable standard of care, a breach of that standard of care by Dr. Wong, and a causal link between that breach and plaintiff’s alleged damages.
[3] For the reasons which follow, I grant Dr. Wong’s motion for summary judgment.
Summary of relevant facts
[4] On August 25, 2011, the plaintiff was injured in a motor vehicle accident and suffered a fractured right patella. Dr. Cayen performed surgery on August 26, 2011 to repair the fracture, and 19 surgical staples were inserted into the plaintiff’s right knee. The plaintiff was told to attend his family doctor’s office within two weeks to have the surgical staples removed.
[5] On September 8, 2011, the plaintiff attended Dr. Wong’s office. Dr. Wong removed the 19 staples. According to Dr. Wong’s notes, he did not encounter any difficulty in carrying out the procedure, and there was some “mild bleeding” after the staples were removed.
[6] The plaintiff’s evidence in this proceeding is that Dr. Wong in fact broke one of the staples when trying to remove it, and this caused the plaintiff significant bleeding and serious pain. I pause to note that on his examination for discovery, the plaintiff stated that, in his opinion, it was “so obvious” on that date that Dr. Wong had removed the staples improperly.
[7] The plaintiff also gave evidence at his examination for discovery that the pain he experienced in his knee right after Dr. Wong removed the staples was “different” than he was experiencing before the staple removal procedure, and this resulting pain prompted the plaintiff to call an ambulance to take him to the hospital that very evening.
[8] When the plaintiff arrived at the hospital that evening, he advised the treating nurses and doctors that, in his opinion, the pain in his knee was caused by the staple removal procedure performed by Dr. Wong.
[9] On September 16, 2011, the plaintiff attended a follow-up appointment with Dr. Cayen. According to Dr. Cayen’s notes made during that attendance, the plaintiff’s “post-operative course was complicated by urinary tract infection. It was also complicated by the family doctor having some difficulty taking out one of the sutures”. There is no dispute that Dr. Cayen’s note was based upon information provided to him by the plaintiff, and not any independent assessment.
[10] The plaintiff continued to experience pain in his right knee. As a result of being dissatisfied with Dr. Wong, in or around mid-December 2011 the plaintiff began seeing a new family doctor, Dr. Hilda Lim. On his examination for discovery, the plaintiff confirmed that the reason he stopped seeing Dr. Wong was because “he made a big mistake on my knee”, and he felt that Dr. Wong was not competent.
[11] The plaintiff experienced an infection in his right knee at some point between September – December 2011. It is unclear from the record before me as to whether that infection was in fact caused by anything to do with Dr. Wong’s removal of the 19 staples. It is the plaintiff’s position that Dr. Wong’s negligent removal of those staples did cause the infection, but there are no medical documents or other opinions which confirm such a position.
[12] In fact, the plaintiff has failed to obtain or produce any expert medical opinion to support his theory of the case, a theory described in his Amended Statement of Claim as “medical malpractice”. During the life of this proceeding, Dr. Wong has repeatedly requested that the plaintiff deliver an expert medical opinion. It is the plaintiff’s position that the trier of fact will not need an expert medical opinion, as the plaintiff’s claim is, in his opinion, a “very simple case” based upon a “simple procedure”. The plaintiff submits that there will be no dispute at trial on any “scientific issue”.
[13] The plaintiff issued his Statement of Claim on October 9, 2014. Dr. Wong takes the position that the commencement date for this legal proceeding was more than two years after the plaintiff’s claim was “discovered” within the meaning of the Limitations Act 2002, and since the claim is statuted barred there is no genuine issue requiring a trial.
[14] For his part, the plaintiff takes the position that he did not have knowledge of the sufficient material facts supporting a cause of action against Dr. Wong until after he received and reviewed a medical report from Dr. Ogilvie Harris in 2013. This report was obtained by the lawyer who represented the plaintiff in connection with his claims arising from the motor vehicle accident. As part of the scope of Dr. Harris’ retainer, he was asked to determine whether the plaintiff suffered any injuries as a result of the accident, and whether those injuries interfered with his daily activities and/or activities associated with employment. Put simply, Dr. Harris was asked to provide his opinion in connection with the statutory threshold set out in sections 267.5(3)(a) and (b) of the Insurance Act R.S.O. 1990 c.I.8 (“Insurance Act”) and applicable regulations.
[15] To summarize, the plaintiff takes the position that until he obtained Dr. Harris’ opinion that his injuries were (allegedly) “permanent and serious”, he was not aware of the material facts forming the basis of a cause of action against Dr. Wong.
[16] It is important to note Dr. Harris was not asked to comment, nor did he opine, on the standard of care provided by Dr. Wong to the plaintiff.
Summary Judgment
[17] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant a summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”. As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.
[18] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the fact-finding powers set out in the 2010 amendments. The Court must review the factual record and only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and summary judgment would be an affordable, timely and proportionate procedure.
[19] If the Court determines the presence of a genuine issue requiring a trial, the inquiry does not end there as the analysis proceeds to whether a Court can determine if a need for a trial may be avoided by use of the aforesaid fact-finding powers.
[20] The overarching principle is proportionality, and summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case. For the reasons which follow, and on the record before me, I am able to find the necessary facts and apply the relevant legal principles to conclude that there are no genuine issues requiring a trial.
Limitations Act 2002
[21] Pursuant to Section 5(1) of the Limitations Act 2002, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of a person against whom the claim was made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.
[22] Section 5(2) of the Limitations Act 2002 and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a Plaintiff with necessary evidence.
[23] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson 2011 ONSC 102, “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”.
[24] Discoverability is thus a fact-based analysis. The discovery of a claim does not depend upon a plaintiff’s knowledge that his/her claim is likely to succeed, or awareness of the totality of a defendant’s wrongdoing. Knowledge of the material facts, and not the elements of a cause of action, will inform the Court’s assessment of the commencement of a limitation period.
[25] Pursuant to Section 5(2) of the Limitations Act 2002, the plaintiff is presumed to have known that his “injury, loss or damage” occurred, and was caused or contributed by an act or omission on behalf of Dr. Wong on September 8, 2011. The plaintiff bears the onus of rebutting that presumption with sufficient evidence to show that he was not aware of those necessary material facts as at September 8, 2011 (or at any time up to October 9, 2012 being two years before the commencement of this legal proceeding).
[26] In my view, the plaintiff cannot rebut this presumption. His evidence confirms that in the fall of 2011, he had already subjectively concluded that Dr. Wong had “botched” the staple removal procedure, and as a result of Dr. Wong’s actions, the plaintiff’s right knee suffered a resulting injury. The plaintiff has testified that he felt that Dr. Wong acted improperly from the outset of the events giving rise to this proceeding. He confirmed this position on several occasions between September – December 2011 to other parties.
[27] The plaintiff relies upon a line of authority dealing with the applicability of the Limitations Act 2002 in the context of claims brought under the Insurance Act, and in particular cases where the court grappled with whether a plaintiff knew or ought to have known the material facts relating to the statutory threshold. I agree with the comments of Justice MacKinnon in Muirhead v. Coulas, 2011 ONSC 6281, [2011] O.J. No. 4908 (S.C.J.). In Muirhead, the plaintiff slipped and fell in July 2005 at the defendants’ home, injuring her right knee. After undergoing surgery, the plaintiff chose not to sue the defendants. In February 2006, the plaintiff suffered another injury to the same knee from a slip and fall on a sheet of ice. After commencing an action in relation to the February 2006 accident, and having obtained a medical opinion that the 2005 accident partially contributed to her ongoing disability, the plaintiff commenced an action in 2010 arising from the 2005 accident.
[28] In granting a motion for summary judgment dismissing the plaintiff’s 2010 action as being in contravention of the provisions of the Limitations Act 2002, Justice MacKinnon held:
“In my view, this line of authority does not assist these plaintiffs. There is no condition precedent or statutory threshold applicable. Section 5(1)(a)(iv) does not amount to a bar to an action for recovery in tort, nor is it equivalent to the Insurance Act provision such that the cause of action does not arise until a statutory requirement is met. This cause of action was complete, even if the complete extent of damages was not fully known.”
[29] It is clear that in the fall of 2011, the plaintiff viewed himself as having suffered a loss at the hands of Dr. Wong. I therefore find that the plaintiff was sufficiently aware of the material facts to know that his “injury, loss or damage” had occurred and was caused by or contributed to by an act or omission of Dr. Wong. Accordingly, Dr. Wong’s motion for summary judgment is granted and the plaintiff’s claim is dismissed.
Failure to deliver expert opinion
[30] Even though the plaintiff’s claim is dismissed for the reasons set out above, for completeness of the record I shall address Dr. Wong’s additional argument that the plaintiff’s claim ought to be dismissed by reason of his failure to adduce and file an expert medical opinion.
[31] As stated above, the plaintiff’s cause of action is framed as “medical malpractice”. Cases which involve the application of clinical skills are outside the ordinary knowledge and experience of a trier of fact, and thus require admissible opinion evidence. The comments of Justice Kelly in Samuel v. Ho, 2009 940 (ON SC) are apposite:
“In assessing the performance and skilled professionals, the court must base its conclusions on the evidence before it and must not speculate on the adequacy of the professional standards in the absence of expert evidence attacking those standards. In an action, such as this, alleging medical negligence and where the issues to be cited are not within the ordinary knowledge and experience of the trier of fact, the court cannot make a finding of a breach of the standard of care or a finding of causation without expert opinion evidence to support that finding. The court cannot simply substitute its own opinion for that of qualified medical experts.”
[32] The plaintiff’s position is somewhat ironic. If the staple removal procedure was as simple as the plaintiff contends (a position which I do not accept), then why would the plaintiff have required the medical opinion of Dr. Harris before knowing the material facts in support of his cause of action against Dr. Wong? The plaintiff cannot obviously have it both ways.
[33] While it is possible in the “clearest of cases” for the Court to draw an inference without an expert medical opinion, I do not find this proceeding to be one of those cases. As held by Justice Kelly in Samuel, the time for filing a supporting expert medical opinion was now, namely in response to Dr. Wong’s motion for summary judgment. The plaintiff had an obligation to put his best foot forward, and he chose not to do so. He thus cannot assert that more favourable facts will be available to him at trial through additional evidence or the cross-examination of witnesses.
[34] As I am entitled to assume that the record before me contains all the evidence the plaintiff will present at trial, in the absence of an expert medical opinion there are no genuine issues for trial and I grant Dr. Wong’s motion for summary judgment on this basis as well.
Costs
[35] At the conclusion of the hearing, both the plaintiff and Dr. Wong submitted costs outlines. Dr. Wong’s Bill of Costs seeks the total sum of $6,437.70 for costs of his motion for summary judgment, and $7,238.08 for costs of the action. The plaintiff requested additional time to review and respond to Dr. Wong’s request for costs, and I am agreeable with that request.
[36] The plaintiff shall have 10 business days from the release of this endorsement to serve and file his responding costs submissions. Thereafter, Dr. Wong may deliver reply submissions within 10 business days thereafter. Both sets of submissions shall be no longer than 3 pages.
Diamond J.
Released: October 26, 2015
COURT FILE NO.: CV-14-513910
DATE: 20151026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SONGYUAN LIU
Plaintiff
– and –
DR. STEPHEN SIK-HONG WONG and
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Defendants
ENDORSEMENT
Diamond J.
Released: October 26, 2015