CITATION: Bilusack v. Faith, 2015 ONSC 678
COURT FILE NO.: DV-979-14
DATE: 2015/02/05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROYCE BILUSACK
Acting in person
Plaintiff (Appellant)
- and -
DR. ANDREW FAITH
Ian McLean, for the Defendant (Respondent)
Defendant (Respondent)
HEARD: January 28, 2015
REASONS FOR DECISION
ellies j.
[1] Mr. Bilusack’s Small Claims Court action against his dentist, Dr. Faith, was dismissed at a settlement conference because Mr. Bilusack had failed to obtain an expert report regarding Dr. Faith’s alleged negligence, which he had agreed to do at a settlement conference held nearly a year earlier.
[2] In this appeal, Mr. Bilusack asks that the dismissal order be set aside and that his action be permitted to proceed to trial.
[3] For the following reasons, Mr. Bilusack’s appeal is dismissed. There were good reasons for requiring Mr. Bilusack to obtain an expert report and he was provided with ample time in which to do so.
BACKGROUND
[4] Mr. Bilusack commenced his action against Dr. Faith by way of a plaintiff’s claim dated November 29, 2012. The specifics of the claim are not obvious from reading it. Mr. Bilusack admitted during argument that his claim is now “much better developed” than it was at the time that it was commenced. As he explained it to me, Mr. Bilusack claims that Dr. Faith failed to complete dental work, first on one tooth, and then on a second tooth, either correctly or in a timely manner. As I understand the claim, Mr. Bilusack alleges that he suffered pain and discomfort as a result of Dr. Faith’s negligence until another dentist repaired the affected teeth. Mr. Bilusack contends that, in addition to the pain he suffered, Dr. Faith’s negligence caused a change in Mr. Bilusack’s underlying diabetic condition such that Mr. Bilusack must now take injections, rather than the medicine he was taking orally when Dr. Faith first began his work.
[5] Dr. Faith retained counsel and defended against Mr. Bilusack’s claim. At a settlement conference held on September 12, 2013, the deputy judge made an order which read, in part:
This claim is one that alleges professional negligence and damage suffered by the Plaintiff in consequence. The parties consent to the following: The Plaintiff shall obtain, serve on the [Defendant] through his counsel, and file in the court file, all within 120 days of this date, written expert report(s) relating to both the primary allegation of negligence and the consequences to the Plaintiff thereof.
[6] A second settlement conference was held on March 28, 2014, before a different deputy judge. On that date, an order was made extending the time to serve and file the expert report(s) ordered by the first deputy judge. The time was extended to April 30, 2014.
[7] Subsequently, Mr. Bilusack obtained a report dated April 28, 2014, from a psychologist with respect to the consequences to him of Dr. Faith’s alleged negligence. No issue is taken on behalf of Dr. Faith with respect to whether this report fulfills the order that Mr. Bilusack obtain a report relating to that issue.
[8] On August 25, 2014, a third and final settlement conference was held before the same deputy judge that presided over the second settlement conference. The order made on that date, from which Mr. Bilusack appeals, reads as follows:
The plaintiff has not filed the expert report as ordered on September 12, 2013 and again on March 28, 2014, consequently this claim is struck.
ISSUES
[9] Mr. Bilusack submits that, although he did consent to the order made at the first settlement conference, he did not understand that it was a mandatory order, the breach of which could result in the dismissal of his case.
[10] Mr. Bilusack further submits that he made every reasonable effort to obtain an expert report, but was unable to do so because of the difficulty he experienced in finding a dentist who is prepared to testify against another dentist.
[11] Lastly, Mr. Bilusack contends that Dr. Faith’s negligence is so clear from the evidence that no expert evidence is needed. In this regard, he relies on the legal maxim res ipsa loquitur.
ANALYSIS
Standard of Review
[12] There is no equivalent rule in the Rules of the Small Claims Court, O. Reg. 258/98 to rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which requires a party in proceedings before the Superior Court of Justice to serve a report on every other party before calling an expert witness at trial. As I will explain, the order requiring Mr. Bilusack to obtain an expert report and the order striking his claim for failing to do so were made pursuant to the powers granted to a deputy judge presiding at a settlement conference under the Rules of the Small Claims Court. Thus, ignoring the consensual nature of the first order, both orders were discretionary.
[13] The standard of review for a discretionary order is whether the judge that made it committed an error in principle, failed to consider material evidence, gave too much weight to one relevant consideration over others, or was clearly wrong: see Cummings v. Cummings (2004), 60 O.R. (3d) 398 (C.A.), at para. 56; and Propane Levac Propane Inc. v. Macauley, 2011 ONSC 293 (Div. Ct.), at para. 15.
Mandatory Nature of the Order Made at the First Settlement Conference
[14] Rule 13 of the Rules of the Small Claims Court deals with settlement conferences. Subrules 13.05(1) and (2) set out the powers of a deputy judge presiding at a settlement conference. The relevant portions of these subrules read:
(1) A judge conducting a settlement conference may make any order relating to the conduct of the action that the court could make.
(2) Without limiting the generality of subrule (1), the judge may,
(a) make an order,
(iii) with written reasons, staying or dismissing the action,
(iv) amending or striking out a claim or defence under rule 12.02(1),
(vi) directing production of documents,
[15] Although he consented to the order made at the first settlement conference, Mr. Bilusack submits that he did not know that it was a mandatory order. He argues that there is a distinction between the use of the word “shall” (obtain) and the word “must” (obtain). I am unable to accept this argument.
[16] The word “shall” is as strong a directive, in my view, as the word “must”. In ordinary, everyday parlance, the word “shall” is used in contrast to “may”. “Shall” is mandatory; “may” is permissive. The order in question did not use the word “may”. It was mandatory.
[17] If there was any doubt in Mr. Bilusack’s mind about the mandatory nature of the order made at the first settlement conference, it most certainly must have been removed at the second settlement conference. The deputy judge’s endorsement of that date used the same word (“shall”) in granting an extension, but made it clear that Mr. Bilusack’s claim would be struck for failing to comply. The relevant portion of the order reads:
The plaintiff shall have until April 30, 2014 to serve and file an expert report as ordered by Wood, D.J., on Sept. 12, 2013 failing which the claim will be struck.
[18] I am unable to accept that Mr. Bilusack misunderstood the mandatory nature of either the September or the March orders. The efforts he says he made from September forward demonstrate that Mr. Bilusack understood the nature of the obligation imposed upon him at that time. I turn now to his submissions regarding those efforts.
Efforts Made to Secure a Report
[19] No affidavit evidence was filed by Mr. Bilusack in support of his submission that he made reasonable efforts to retain an expert before his claim was struck. Instead, Mr. Bilusack relied on a number of unsworn documents, many of which appear to be prepared by him, contained in the “Appellant’s Certificate Respecting Evidence”, which was filed in connection with the appeal. No objection was made on behalf of Dr. Faith to Mr. Bilusack’s use of these documents, which is understandable, and perhaps even commendable, given that there is no record of the proceedings below and that Mr. Bilusack is representing himself. Because there was no objection, I will rely on the information provided by Mr. Bilusack in these documents and referred to by him during his submissions.
[20] Unfortunately, I am unable to make complete sense of all of the documents contained in the Appellant’s Certificate of Evidence. What I can glean, and what I was taken to by Mr. Bilusack during his submissions, is that he contacted a number of dentists. However, with the exception of a “Doctor Kano”, I have been provided with no information as to when Mr. Bilusack contacted these people. I am unable, therefore, to determine from the record that Mr. Bilusack made reasonable efforts to obtain the expert report in question before his case was dismissed.
[21] In any event, it has now been over 16 months since the September order was made and there is no evidence that Mr. Bilusack is any closer to obtaining the expert report, or that there is any prospect that he will be able to do so in the reasonably foreseeable future.
[22] In my view, the dismissal order was reasonable, especially given my further opinion that an expert report is a necessary prerequisite to this action proceeding, as I will now explain.
Professional Negligence
[23] Although medical negligence may occasionally be inferred without the need for expert evidence, Canadian courts apply caution in their application of the legal doctrine known as “res ipsa loquitur” to these types of cases: Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham: LexisNexis, 2011), at p. 254.
[24] Mr. Bilusack argues that three facts make Dr. Faith’s negligence obvious without the need for expert evidence, namely:
(1) the inordinate delay before commencing work on the first tooth and in between that work and Dr. Faith’s work on the second tooth;
(2) the fact that, throughout, Dr. Faith left two important teeth “open”; and
(3) the ease with which Mr. Bilusack’s discomfort and other problems were alleviated when he finally saw another dentist.
[25] I disagree that any or all of these facts obviate the need for expert evidence. There is nothing in delay, even long delay, that signifies dental negligence, to my knowledge. Without expert evidence, a deputy judge would have no way to determine whether delay was an acceptable part of the treatment involved in this case.
[26] The same is true for discomfort. Discomfort is well known to accompany dental treatment.
[27] Lastly, the ease with which Mr. Bilusack’s discomfort was remedied by another dentist does little or nothing to prove that the discomfort was the result of negligent dentistry.
[28] In my view, expert evidence would be necessary for Mr. Bilusack to establish both the standard of care expected of Dr. Faith and that Dr. Faith breached that standard. Even if Mr. Bilusack could establish these things without expert evidence, if Dr. Faith testified and gave his own expert evidence, the deputy judge presiding at the trial would be unable to determine whether Dr. Faith’s evidence should be accepted or rejected without other expert evidence against which to measure it. For that reason, I find no error in the exercise of the discretion of the deputy judge that made the first order.
[29] Mr. Bilusack advises the court that he is prepared to summons one of the dentists that later treated him and another dentist that he has never seen, so that these dentists could give expert evidence during his case. Although it is acceptable to call a treating dentist as a witness to describe the treatment performed, it would not be fair in this case to call either type of witness without providing a report setting out the substance of that witness’s opinion on the issue of negligence. Fairness requires that Dr. Faith know the case he has to meet. Without a report setting out the expert opinion, he cannot.
CONCLUSION
[30] Mr. Bilusack reminded this court that the Small Claims Court is known as “The People’s Court”. It is a court in which the rules are relaxed so that justice can be done in matters within its jurisdiction: see Courts of Justice Act, R.S.O. 1990, Chap. C.43, s. 25. However, fairness exists in The People’s Court as much as it exists in this one and I share the view of the deputy judges in this case that fairness requires that Dr. Faith know the case he has to meet and that he not be required to wait an inordinately long time to get that information.
[31] In my view, there was no error made in the order dismissing Mr. Bilusack’s case. The appeal, therefore, is dismissed.
COSTS
[32] At the conclusion of his submissions, counsel for Dr. Faith provided two bills of costs, one on a partial indemnity scale and the other on a substantial indemnity scale. Mr. Bilusack was unprepared to address the issue of costs.
[33] Therefore, Mr. Bilusack shall have 20 days from the date of the release of these reasons to provide written submissions, limited to no more than five typewritten pages, addressing the issue of whether costs should be awarded to Dr. Faith and, if so, in what amount.
[34] Dr. Faith shall have 10 days from receipt of Mr. Bilusack’s written submissions to serve and file a reply, similarly limited in length.
Ellies J.
Released: February 5, 2015
CITATION: Bilusack v. Faith, 2015 ONSC 678
COURT FILE NO.: DV-979-14
DATE: 2015/02/05
ONTARIO
SUPERIOR COURT OF JUSTICE
ROYCE BILUSACK
Plaintiff (Appellant)
– and –
DR. ANDREW FAITH
Defendant (Respondent)
REASONS FOR DECISION
Ellies J.
Released: February 5, 2015