Guzzo v. Waite, 2016 ONSC 1654
CITATION: Guzzo v. Waite, 2016 ONSC 1654
OTTAWA COURT FILE NO.: 13-56682
DATE: 2016/03/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wanda Guzzo
Plaintiff
AND
Dr. Deborah Waite
Defendant
BEFORE: Madam Justice S. Corthorn
COUNSEL: Wanda Guzzo, Self-represented
Robin Brown, Counsel for the defendant
HEARD: March 8, 2016
RULING ON MOTION FOR SUMMARY JUDGMENT
Introduction
[1] The defendant has for over a year been attempting to have the action against her dismissed. From December 2014, when the defendant made her first such attempt, to February 9, 2016 the plaintiff was given four opportunities to take the steps required to move her action forward. In that 15-month period, the plaintiff has not moved her action forward at all.
Background
[2] The plaintiff’s claim against the defendant dentist is for $1,000,000 for injuries and losses, which the plaintiff alleges she suffered as a result of impressions taken for the creation of bleaching trays to enable her to whiten her teeth. The plaintiff alleges that she suffered an allergic reaction to latex, or a similar chemical or material, used during an appointment with the defendant in February 2011. The action was commenced in January 2013 by way of a notice of action.
[3] The essence of the plaintiff’s claim against Dr. Waite is that she was negligent because she: a) knew that the plaintiff is severely allergic to latex; and b) failed to take the steps necessary to ensure that the plaintiff was, during treatment, not exposed to latex or any other substance that would cause the plaintiff harm.
[4] In her pleading the defendant alleges that non-latex gloves were used. The defendant denies that the plaintiff was exposed to latex during the February 2011 appointment. The defendant denies that the plaintiff has a latex allergy. The defendant alleges that at all times she provided treatment to the plaintiff in accordance with “the prevailing standards and protocols of dentistry at the time the dental services were rendered”: see para. 6 of the statement of defence.
The Issue
[5] The sole issue to be determined on this motion is whether the defendant is entitled to summary judgment dismissing the action.
Decision
[6] For the reasons set out below, the defendant is granted summary judgment and the plaintiff’s claim against the defendant is dismissed.
Procedural History
[7] It has been slightly more than three years since the plaintiff commenced this action. It has been more than 15 months since the defendant began her pursuit of an order dismissing the plaintiff’s claim.
[8] Given the outcome of the motion for summary judgment it is, in my view, important to set out the procedural history of this action. That history demonstrates that the plaintiff has been afforded procedural fairness throughout.
[9] The motion record does not include a copy of the notice of action issued in January 2013. As a result, I am uncertain whether the plaintiff was represented by counsel at that time. The plaintiff was represented by counsel when the statement of claim was filed with the Court in March 2013.
[10] Counsel by whom the plaintiff was represented in March 2013 obtained an order in April 2014 removing him as the lawyer of record for the plaintiff. The order removing the plaintiff’s lawyer of record was served on the plaintiff. The plaintiff has been self-represented since April 2014.
[11] The statement of defence was delivered in February 2015 pursuant to a time line set by Master Roger (as he then was) for steps to be taken in the action. Deadlines set by Master Roger in early February 2015 included those for:
• The parties to serve their respective affidavits of documents;
• The plaintiff to examine the defendant for discovery;
• The defendant to serve her motion record with respect to this motion; and
• The plaintiff to serve responding materials, if any: and
• The defendant’s motion for summary judgment to be heard on September 9, 2015.
a) September 9, 2015
[12] The defendant complied with the deadline for service of the materials for summary judgment. The plaintiff did not deliver any responding materials. The matter came before me as scheduled by Master Roger.
[13] As of September 2015, the plaintiff had not fulfilled any of her obligations pursuant to the time lines set by Master Roger in February 2015. On the return of the motion, the plaintiff requested an adjournment.
[14] The request for an adjournment was contested by the defendant. For the following reasons an adjournment was granted on terms:
• There was some evidence from the plaintiff that her failure comply with the timelines set by Master Roger was because of her reliance on the services of a paralegal who had in 2015 essentially gone ‘AWOL’. The plaintiff had not been able to communicate with that individual for a number of months; and
• The plaintiff informed the Court that she was in the process of consulting with two well-known civil litigators in the hope that one of them would agree to represent her in this action.
[15] The request for an adjournment was granted to permit the plaintiff to complete the consultations with the two lawyers. The plaintiff was cautioned by the Court that if neither of those individuals agreed to represent her, then she would need to give serious consideration as to why they would not take her case.
[16] The motion for summary judgment was adjourned to February 9, 2016 – with no further right to an adjournment and on terms. The terms included a revision, as follows, of the time lines set by Master Roger:
• Service by the plaintiff of a sworn affidavit of documents (Oct. 31, 2015);
• The examination for discovery of the defendant by or on behalf of the plaintiff; (Nov. 13, 2015);
• Service of the plaintiff’s responding record on the motion for summary judgment (Dec. 10, 2015);
• Service by the defendant of any evidence in reply (Dec. 24, 2015); and
• Cross-examination on affidavits included in the records on the motion for summary judgment (Jan. 15, 2016).
b) February 9, 2016
[17] Prior to this return date the defendant delivered a supplementary motion record. The record consists of a single affidavit sworn on December 21, 2015 by Karen Smiley (“Smiley Affidavit No. 1”), a legal assistant with Cavanagh LLP – the lawyers of record for the defendant. Smiley Affidavit No. 1 refers to five letters sent to the plaintiff by counsel for the defendant in the period from September to December 2015.
[18] The letters address each of the steps to be completed by the plaintiff as prescribed by the September 2015 endorsement. In her letters counsel for the defendant inquires with each approaching deadline as to whether the plaintiff intends on taking the requisite step(s). Ms. Smiley’s evidence is that the plaintiff did not respond to any of the letters and that the plaintiff had not, as of December 2015, taken any of the steps addressed in the September 2015 endorsement.
[19] The plaintiff was served on December 21, 2015 with the supplementary motion record, which includes Smiley Affidavit No. 1, by “regular letter mail” to the plaintiff at 300B Craig Henry Drive in Ottawa. That method of service complied with paragraph 9(a) of the endorsement of Master Roger dated February 3, 2015. The timing of service complied with paragraph 2(d) of the September 2015 endorsement in terms of any materials on which the defendant intends to rely in reply. The plaintiff had not, in any event, delivered any responding motion record within the deadline set by the September 2015 endorsement.
[20] On February 9, 2016 counsel for the defendant informed the Court that:
a) Her office had received a telephone call from the plaintiff sometime after 9:00 a.m. that morning. The plaintiff advised that she was ill and would not be attending on the return of the motion; and
b) Counsel had personally spoken with the plaintiff by telephone at approximately 9:30 a.m. The plaintiff had informed counsel that she was ill and was on her way to the hospital to seek treatment of an infection from which she was suffering.
[21] On behalf of the plaintiff, counsel for the defendant communicated a request for an adjournment of the motion for summary judgment.
i) Service of Documents – The Plaintiff’s Address
[22] Before contesting the adjournment, counsel for the defendant addressed the matter of service of materials on the plaintiff. She did so because one of the six letters sent by counsel to the plaintiff from September through December 2015 was returned. The December 16, 2015 letter was returned – received by the office of counsel for the defendant on February 6, 2016 and marked as “moved”.
[23] The materials for the summary judgment motion returnable on February 9, 2016 were served on the plaintiff by regular letter mail on December 21, 2015. This method of service is in accordance with the February 2015 and September 2015 endorsements. The motion confirmation form was also sent by regular letter mail to the plaintiff (on February 4, 2016).
[24] As of the February 9, 2016 return date, counsel for the defendant was not aware of either the summary judgment motion materials or the confirmation form being returned because the plaintiff had “moved”.
[25] Regardless of any issues with respect to the plaintiff’s mailing address, the defendant relied on the February 2015 and September 2015 endorsements with respect to: a) the method of service deemed to be valid; and b) the requirement for the plaintiff to advise counsel for the defendant if the plaintiff moves. Counsel for the defendant informed the Court that at no time did the plaintiff advise counsel for the defendant that she had moved.
ii) Communication from the Plaintiff
[26] The only communication which counsel for the defendant had received from the plaintiff since September 2015 was three voicemail messages left by the plaintiff. One of the voicemail messages was left with counsel at 4:18 p.m. on December 27, 2015. The other two voicemail messages were left by the plaintiff with Susanne Sviergula (senior counsel on the file) on December 29, 2015 (at 6:01 and 6:05 a.m. on that date).
[27] Counsel for the defendant was permitted to file with the Court an affidavit sworn by Ms. Smiley on February 8, 2016 (“Smiley Affidavit No. 2”). The exhibits to that affidavit include transcriptions of each of the three voicemail messages left by the plaintiff. Based on the transcriptions provided, I find that the voicemail messages are rambling and make no clear statement of any efforts made to move the litigation forward.
[28] Counsel for the defendant attempted to speak with the plaintiff by telephone on February 1 and 3, 2016. On each occasion, counsel was required to leave a voicemail message.
iii) Request for Adjournment - Contested
[29] Counsel for the defendant referred to her September 29, 2015 letter to the plaintiff (exhibit “A” to Smiley Affidavit No. 1). Under cover of that letter counsel provided the plaintiff with a copy of the September 2015 endorsement. In addition, counsel set out in the body of her letter the terms on which the motion for summary judgment was adjourned and the deadlines by which the plaintiff was to complete steps in the action.
[30] The initial position taken on behalf of the defendant was to oppose the request for an adjournment. In opposing the adjournment requested, counsel for the defendant made the following submissions:
• The plaintiff had on two occasions been given the opportunity to respond to the motion for summary judgment (i.e. before the September 2015 and February 9, 2016 return dates). On neither occasion did the plaintiff respond to the motion.
• In addition, the plaintiff had on two occasions been given timelines by which steps in the action were to be taken. The plaintiff did not comply with any of the timelines set.
• The most recent deadline for the service of a sworn affidavit of documents was October 31, 2015. Counsel for the defendant made multiple requests for copies of the plaintiff’s Schedule “A” documents and received nothing in response to those requests.
• February 9, 2016 was the fourth time that counsel for the defendant prepared for an attendance in Court the potential outcome of which was the dismissal of the plaintiff’s claim:
− The first attempt was in December 2014 before Master Roger. The relief sought was based on Rule 15 of the Rules of Civil Procedure. That motion was adjourned to February 2015 because the defendant’s motion materials were sent to the plaintiff by courier and that was not an acceptable method of service.
− The second attempt was in February 2015, again before Master Roger. As set out in the Sviergula affidavit filed in support of the motion for summary judgment, on that occasion Master Roger provided the plaintiff with an explanation as to the requirement for an expert’s report in support of her claim. He told the plaintiff that the expert’s report would have to be listed in Schedule “A” of the plaintiff’s affidavit of documents.
− The third attempt was before me in September 2015. As noted above, the plaintiff was granted an adjournment specifically so that she could complete the two consultations which she anticipated having with “well-known” civil litigators.
[31] It has been three years since the plaintiff commenced her action. The action has not moved beyond the exchange of pleadings despite two court orders requiring the plaintiff to advance the action.
[32] Had the plaintiff done ‘something’ since February 2015, the defendant “might” have consented to the plaintiff’s request on February 9, 2016 for an adjournment.
iv) Consent to Adjournment on Terms
[33] After contesting the request for an adjournment, counsel for the defendant obtained instructions from her client to agree to a brief adjournment, peremptory to the plaintiff, and with costs of the attendance on February 9, 2016 payable by the plaintiff to the defendant.
[34] The matter was adjourned from February 9 to February 25, 2016 on terms, as requested and with the following additional terms: a) the plaintiff was to serve, no later than the 22nd of February, 2016 a medical certificate or physician’s letter setting out her condition and confirming the plaintiff’s attendance at a hospital on February 9, 2016; and b) the plaintiff was also to file the document with the Court no later than February 24, 2016.
c) February 25, 2016
[35] The motion proceeded at 9:10 a.m., for 15 minutes, in the absence of the plaintiff. The plaintiff arrived in Court at approximately 9:25 a.m.
[36] Prior to the plaintiff arriving in Court, the defendant was given leave to file an affidavit sworn by Ms. Smiley on February 24, 2016 (“Smiley Affidavit No. 3”). A copy of the affidavit had not been served on the plaintiff.
[37] In her affidavit, Ms. Smiley details the communication from and with the plaintiff on the morning of the 9th of February 2016 and sets out the written and telephone communication with the plaintiff since that date.
[38] An exhibit to Smiley Affidavit No. 3 is a transcription of a voicemail message left by the plaintiff for Ms. Smiley on February 10, 2016. Once again, I find that the voicemail message does not include anything approaching a clear statement to the effect that the plaintiff has taken any of the steps required to move the action forward.
[39] Ms. Smiley’s evidence is that as of February 24, 2016 counsel for the defendant had not received the medical certificate or physician’s letter required pursuant to my endorsement of February 9, 2016.
[40] Upon the plaintiff’s arrival in Court she produced an affidavit sworn by her on February 23, 2016 (“the Plaintiff’s Affidavit”). The affidavit had not been served and a copy of it had not been provided to counsel for the defendant. Counsel for the defendant was given an opportunity to review the Plaintiff’s Affidavit. On consent leave was granted to the plaintiff to file the Plaintiff’s Affidavit in response to the motion for summary judgment.
[41] The Plaintiff’s Affidavit is approximately four pages (single-spaced) and 31 paragraphs in length. The Plaintiff’s Affidavit is completely devoid of any evidence of anything done by the plaintiff to move the action forward, as required pursuant to the February 2015 and September 2015 endorsements of this Court.
[42] The plaintiff did not produce a medical certificate or physician’s letter in satisfaction of the February 9, 2016 endorsement.
[43] The plaintiff informed the Court that she had consulted with Ontario Legal Aid and it was her belief that she was in a position to retain counsel with the assistance of Ontario Legal Aid. The information she provided was no more specific than that. She did not file any evidence with respect to her communication with the Ontario Legal Aid Plan.
Summary Judgment
[44] The defendant’s motion for summary judgment is made pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Sub-rules 20.04(2) and (2.1) provide as follows:
(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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[45] The defendant’s position is that:
a) The plaintiff’s claim against the defendant is based in professional liability, given that the defendant is a member of a regulated health profession;
b) In response to the motion for summary judgment the plaintiff is required to produce a report from a professional in the same field as the defendant. The author of the report (i.e. an expert witness) is to set out opinion evidence as to the standard of care, that the defendant breached the standard of care, and that the breach of the standard of care by the defendant is the cause of the plaintiff’s damages; and
c) There is no genuine issue which requires a trial.
[46] The defendant submits that she is entitled to summary judgment dismissing the plaintiff’s claim against her.
a) Claim Based in Professional Liability
[47] As a dentist, the defendant is governed by the Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 1. I find that the claim against the defendant is one based in professional liability.
[48] The plaintiff herself recognizes that the claim is one based in professional liability. That she does so is evident from the wording of her pleading. The allegations of negligence reference the relevant standard of care as that of “a reasonably competent dentist”. In her submissions on the return of the motion, the plaintiff acknowledged that the action is one based in professional negligence.
b) No Expert Evidence
[49] I agree with the defendant that on a motion for summary judgment with respect to a claim in professional negligence (dentistry) in this matter, it is incumbent upon the plaintiff to put expert evidence before the Court: see Kurdina v. Dief, 2010 ONCA 288, at paras. 2 and 3, leave to appeal refused [2010] S.C.C.A. No. 199.
[50] The evidence required from the expert is as to the standard of care expected of the defendant in the circumstances, an opinion that the care and treatment provided by the defendant fell below the standard of care expected, and an opinion that the negligence of the defendant contributed to or caused the damages which the plaintiff alleges she has suffered as a result of the alleged negligence: see Damallie v. Ping, 2014 ONSC 5562 (Div. Ct.), at para. 4.
[51] There is no expert evidence before the Court of any kind whatsoever on behalf of the plaintiff. In the circumstances, I am entitled to draw an inference, and do so, that the plaintiff has not been able to obtain any or adequate expert evidence to support the allegations made in her pleading: see Ferroni v. St. Joseph’s Health Centre, 2012 ONSC 1208, at para. 28 [Ferroni].
[52] There is no evidence in the record before me to support the requisite findings: a) with respect to the standard of care the defendant was to meet; b) that the defendant breached the applicable standard of care; or c) that such a breach, if it even occurred, caused or contributed to the damages which the plaintiff alleges she has suffered.
c) No Genuine Issue that Requires a Trial
[53] The defendant relies on the following passage from the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings 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.
[54] In this matter, the Court is in precisely the position described above. I find that the plaintiff has failed to raise a genuine issue requiring a trial. I am, in the absence of any evidence in support of the plaintiff’s claim, able to reach a fair and just determination on the merits.
[55] I am entitled to assume that the parties – the plaintiff and the defendant – have advanced their respective best cases and put forward the evidence on which they rely in support of their respective cases. The plaintiff, as the party resisting the motion for summary judgment, has the burden of leading trump or risking losing: see Byfield v. Toronto-Dominion Bank, 2012 ONCA 49, 17 C.L.R. (4th) 173, at para. 10.
[56] The plaintiff is not entitled to rely on the prospect of obtaining expert evidence in the future or expert evidence which is ‘pending’: see Shalouf v. Beaudry, [2006] O.T.C. 283, at para. 23 (S.C.). There is no evidence in the record to support a finding that the plaintiff has even identified any potential expert to review the relevant records and provide an opinion on the merits of this action.
d) Relief Granted
[57] There is no need for a trial in this action. There is no need for me to exercise the fact-finding powers that I have pursuant to Rule 20 of the Rules of Civil Procedure and as directed by the decision of the Supreme Court of Canada in Hryniak v. Mauldin. There is no evidence to be weighed. There are no findings of credibility to be made. The only inference to be drawn is set out in paragraph 51 above.
[58] The plaintiff’s action has “no hope of success”: see Ferroni at para. 26.
[59] There is no reason not to grant the defendant’s motion for summary judgment: see Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 15.
[60] A proportionate, expeditious treatment of this action requires that the motion for summary judgment be granted.
Costs
[61] The plaintiff was granted extensions of time by this Court on at least four occasions. Despite being granted these extensions of time, the plaintiff has done nothing to comply with the orders made – in particular the February 2015 and September 2015 endorsements. The plaintiff did not deliver any materials in response to either the ‘Rule 15’ motion before Master Roger or the motion for summary judgment.
[62] In summary, the plaintiff requested and was granted indulgences and then did nothing to act upon the relief granted.
[63] It is clear from the contents of the Plaintiff’s Affidavit, the transcripts of her voicemail messages, and the plaintiff’s presentation in Court, that her day-to-day existence is fraught with challenges. If the defendant intends to pursue costs against the plaintiff, written submissions are required as follows:
The party’s written submissions are limited to a maximum of three pages. A bill of costs, if delivered, is in addition to the written submissions. Hard copies of any cases referred to in written submissions are to be included with the submissions;
The written submissions are to comply with Rule 4 of the Rules of Civil Procedure;
The defendant’s costs submissions are to be served on the plaintiff and filed with the Court no later than 10 days from the date of release of these Reasons;
The defendant is to address in her submissions both scale of costs and quantum; and
The plaintiff’s written submissions are to be served on the defendant and filed with the Court no later than 17 days from the date of release of these Reasons.
Madam Justice Sylvia Corthorn
Date: March 8, 2016
CITATION: Guzzo v. Waite, 2016 ONSC 1654
COURT FILE NO.: 13-56682
DATE: 2016/03/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Wanda Guzzo
Plaintiff
AND
Dr. Deborah Waite
Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Wanda Guzzo, Self-represented
Robin Brown, Counsel for the Defendant
RULING ON MOTION FOR SUMMARY JUDGMENT
Madam Justice Sylvia Corthorn
Released: March 8, 2016