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COURT FILE NO.: CV-13-112660-00 DATE: 20160518

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NANCY LARUSSON Plaintiff – and – DAVID J. WEIN Defendant

Counsel: Rahul Kesarwani, for the Plaintiff Valerie Wise, for the Defendant

HEARD: March 24, 2016

CHARNEY J.:

Introduction

1The plaintiff in this case is a former dental patient and alleged employee of the defendant. Her claim against the defendant alleges that the defendant provided negligent dental treatment to her and did not pay her wages owed as a dental assistant.

2The defendant brings this motion under Rule 20 of the Rules of Civil Procedure for summary judgment in respect of the claim for dental negligence. The primary ground for this motion is that, at the time the motion was brought, the plaintiff had failed to deliver an expert report to support the claim. While the plaintiff did file an expert’s affidavit on the eve of the motion, the defendant argues that it is too little too late. In the alternative, the defendant seeks to strike various paragraphs from the statement of claim on the primary basis that they are inconsistent with provisions of the Regulated Health Professions Act, 1991, S.O. 1991, c.C.18, (RHPA) which provide that records of proceedings under the RHPA are not admissible in civil proceedings.

Background Facts

3Between October 2010 and April of 2011 the plaintiff attended on the defendant seeking dental treatment. The treatment related to the removal and replacement of upper crowns. The details of this treatment are not relevant to the legal issues raised on this motion. The treatment in issue commenced in January or February of 2011, and ended in April 2011.

4The plaintiff commenced a small claims court action against the defendant on October 7, 2011.

5This small claims court action was discontinued and on January 7, 2013, the plaintiff issued a Statement of Claim in the Superior Court of Justice. The claim was not served, and on January 15, 2014 the Superior Court issued an Order Dismissing the Action as abandoned. The defendant consented to an order permitting the plaintiff to refile with an Amended Statement of Claim, which was served on February 13, 2014. A Statement of Defence was filed on March 14, 2014.

6As early as August 21, 2014, defence counsel wrote to the plaintiff’s counsel noting his client had not served an expert report supporting the professional negligence allegations against the defendant and put him on notice that the defendant would bring a motion for summary judgment if no expert report was served. This position was reiterated on at least 6 occasions between October 2014 and January 5, 2015.

7The motion for summary judgment was scheduled to be heard on September 22, 2015. In August the plaintiff sought an adjournment of the defendant’s motion for summary judgment so that she could have more time to retain one or more experts to file a report and to amend the statement of claim to address some of the pleadings issues raised in the defendant’s Motion. The defendant opposed the adjournment. Mullins J. granted the adjournment on the following terms:

(a) The plaintiff shall move to amend the statement of claim on or before October 15, 2015. (b) The parties will file any further affidavit evidence that they may consider to be required on this motion no later than January 2, 2016. (c) The plaintiff shall file any affidavit evidence required setting out the timelines within which expert opinion evidence shall be completed no later than November 1, 2015. (d) The motion for summary judgment and other relief by the defendant shall be heard on a peremptory basis to the plaintiff on March 24th 2016. (e) Costs of the day were reserved to the judge hearing the motions on March 24, 2016.

8The statement of claim has gone through several iterations since it was first commenced. The version before me is the “Amended, Amended Statement of Claim”, which was made on consent on October 15, 2015. These amendments were made in compliance with the schedule set out by Mullins J. on September 22, 2015.

Motion for Summary Judgment

9The defendant moves for summary judgment pursuant to Rule 20.01 of the Rules of Civil Procedure. Pursuant to Rule 20.04(2)(a):

The court shall grant summary judgement if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

10Rule 20.04(2.1) sets out the powers of the court on a motion for summary judgment:

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.

11These powers have been extensively reviewed by the Supreme Court of Canada in the case of Hyrniak v. Mauldin, 2014 SCC 7 [2014] 1 S.C.R. 87.

12Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” Hryniak v. Mauldin, supra, at para. 50.

13In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The court may, where appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The motion judge is entitled to assume that the record contains all of the evidence that would be introduced at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.

14Where summary judgment is refused or is granted only in part, Rule 20.05 provides “the court may make an order specifying what material facts are not in dispute and defining the issues to be tried and order that the action proceed to trial expeditiously” and to give directions or impose such terms as are just.

Need for Expert Evidence in a Medical Malpractice Case

15The defendant rightly points out that expert evidence is an essential ingredient for the plaintiff to succeed in a dental or other medical negligence claim. In Ryabikhina et al v. St. Michael’s Hospital, 2011 ONSC 1884, Belobaba J. granted summary judgment against the plaintiff in a medical malpractice case because the plaintiff was unable to obtain an expert report to support her allegations of negligence. He stated (at paras. 27-31, footnotes omitted):

In cases where liability issues are technical such as determining the standard of care in medical malpractice cases, a finding of negligence must be based on a supporting expert opinion.

Where the plaintiff in a medical malpractice case does not deliver an expert opinion in support of the allegations that the requisite standard of care was not followed and that this failure caused the plaintiff’s injuries, a genuine issue has not been raised with respect to a material fact and summary judgment should be granted.

Where the plaintiff has failed to obtain an expert report, the court may draw the inference that the plaintiff was unable to obtain an expert report to support the allegations of negligence.

Given the absence of an expert report from the Plaintiffs, I agree with the Hospital Defendants that there is no genuine issue requiring a trial with respect to the allegations of negligence.

16In Drougov v Apotex Inc., 2015 ONSC 2896, Perell J. stated (at para. 21):

For a plaintiff to succeed in a medical professional negligence action, a plaintiff requires evidence, typically expert evidence, to establish: (1) the standard of care; (2) whether there was a breach of the standard of care; and, (3) causation and on a summary judgment motion, if this evidence is not presented, there is no genuine issue for trial and summary judgment may be granted dismissing the plaintiff’s action.

17This has been recently affirmed by the Ontario Court of Appeal in the case of Liu v. Wong, 2016 ONCA 366, at para. 14:

Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert evidence in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

18In Cassibo, supra, Hourigan J. concluded (at para. 20) that there is no obligation on the defendant to file an expert report to support its motion for summary judgment since that would “effectively reverse the evidentiary burden” and lead to a difficult situation for defendants “who would be forced to obtain costly medical expert opinions to respond to a case which has not been fully articulated by the plaintiff”.

19In the present case Mullins J., ordered the plaintiff to file her expert affidavits in response to the summary judgment motion by January 2, 2016.

Expert Evidence On This Motion

20On November 1, 2015, the plaintiff provided the defendant with a letter from a dental surgeon named Dr. Gupta, dated October 31, 2015. This letter indicated that he had reviewed Dr. Wein’s clinical notes and charts dated October 13, 2010, through April 26, 2011, reports of Dr. Ira Schecter dated August 14, 2015, and October 4, 2015, and information provided to him by the patient (plaintiff) regarding her treatment by Dr. Wein. He did not examine the plaintiff. The letter stated: “the care provided to [the plaintiff] fell below the standard of care that this patient required”. It noted that “Dr. Wein’s chart does not indicate that the practitioner advised [the plaintiff] to expedite replacement following the termination of his treatment of the patient.”

21Finally, Dr. Gupta’s letter indicated that his opinion “is subject to my examination of the patient” and any further records to be produced.

22The defendant filed its factum on this motion on March 9, 2016, taking the position that the plaintiff had failed to comply with Mullins’ J.’s January 2, 2016 deadline because the letter provided by Dr. Gupta was not in the form of an expert affidavit. The letter was appended to the affidavit of the plaintiff, not to an affidavit of the expert. The cases are clear that a party relying on expert evidence in a motion for summary judgment may not shield “its expert from cross-examination through the use of an ‘information and belief’ affidavit of someone completely unqualified to testify on the issue” (Suwary v. Women’s College Hospital, [2008] O.J. 883 (S.C.) at para. 30), see also Dupont Heating & Air Conditioning Limited v. Bank of Montreal, [2009] O.J. No. 386 (S.C.) at para. 51 and cases cited therein.)

23In response, the plaintiff filed an affidavit of Dr. Gupta dated March 10, 2016, just two weeks before this motion was scheduled to be heard. The affidavit repeats much of what was in the October 31, 2015 letter, but goes into greater detail with regard to the allegations of negligence. The affidavit states:

The plan of care and implemented treatment of Dr. David Wein, particularly his delay in replacing the patient’s temporary bisque and glazed porcelain with permanent crowns in the period October, 2010 through April 26, 2011 with interruption in and termination of his treatment of the patient in May, 2011 has led to the need for extensive corrective work.

Dr. Wein’s chart does not indicate that the practitioner advised Ms. Larusson to expedite replacement of the bisque baked crowns he provided her, following the sudden termination of his treatment of the patient.

Based and relying upon the foregoing and subject to the matters stated herein, I am of the opinion that there was a poor standard of care resulting in the cause of the patient's condition. In respect of the matters that I have highlighted herein, in my opinion the care provided to Nancy Larusson fell below the standard of care that this patient required.

24The defendant did not seek an adjournment, but maintains her position on the motion for summary judgment on the basis that the affidavit was served two and one half months past the January 2, 2016 deadline ordered by Mullins J., and, in any event, does not comply with Rule 53.03 of the Rules of Civil Procedure regarding expert affidavits.

25Apart from the missed deadline, the defendant raises three fundamental issues with respect to Dr. Gupta’s affidavit.

26The first is that the expert report does not comply with Rule 53.03 because Dr. Gupta did not sign the acknowledgment of expert’s duty (Form 53). In DBDC Spadina Ltd. v. Walton, 2014 ONSC 4644 the Court (at para. 59) concluded that failure of the expert to comply with the seven categories of information mandated by Rule 53.03(2.1) will render an expert’s affidavit inadmissible. This included the signed acknowledgement of expert’s duty.

27It is clear that Dr. Gupta is an “expert witnesses engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding” and is therefore a “litigation expert” as that term has been described by the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, at para. 79. Dr. Gupta is not a “participant expert” – indeed he has never met or treated the plaintiff and has no direct knowledge of the underlying facts. Therefore Rule 53.03 (2.1) applies to his affidavit evidence.

28The second basis for challenging Dr. Gupta’s affidavit is that Dr. Gupta has never examined the plaintiff. He acknowledges that his conclusions “assumed the genuineness” of all information provided to him by the plaintiff with regard to Dr. Wein’s treatment of her upper and lower dentition. The defendant takes the position that Dr. Gupta cannot offer an independent and objective assessment and conclusion unless he has examined the plaintiff personally to confirm the accuracy of the information that she has provided.

29Finally, Dr. Gupta’s report also relies on two reports provided by Dr. Ira Schecter dated August 14, 2015, and October 4, 2015. The defendant asserts that Dr. Schecter cannot properly provide reports in this proceeding because Dr. Schecter was the defendant’s College-appointed mentor/supervisor and this would present a conflict because Dr. Schecter would not qualify as an independent and impartial witness.

30In this regard the defendant relies on s.36 (3) of the RHPA which provides:

(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

31The defendant argues that the purpose of this provision is to keep College disciplinary proceedings separate from civil proceedings. He relies on the Ontario Court of Appeal decision in F. (M.) v. Dr. Sutherland; 188 DLR (4th) 296, where the Court stated (at paras. 29 and 36):

The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.

In my view, the purpose of s.36(3) is to prevent not just patients but all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate.

32The Court of Appeal added the following comment to clarify its decision in Sutherland (at para. 45):

Second, s.36(3) refers to a “report, document or thing,” suggesting a distinction between, for example, a written complaint and the fact of a complaint having been made. The document, the written complaint, is inadmissible, but the fact a complaint was made may be provable at trial.

33In Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324, at para. 55, (affirmed 2011 ONCA 517) the Ontario Superior Court applied Sutherland, and other cases following it, for the “clear” proposition that s.36 (3) of the RHPA “creates a blanket prohibition against the admissibility of all evidence collected during the course of the College’s investigation and this prohibition is an absolute one.” The court also clarified, at para. 52, that the prohibition in s.36 (3) means that “none of the records, reports, orders, decisions or other documents” created during a College proceeding can be admitted in a civil action. See also: Ontario v. Lipsitz, 2011 ONCA 466 at paras. 102-103.

34The inference is that the plaintiff is precluded from relying on any evidence or reports prepared by Dr. Schecter in his capacity as the defendant’s College-appointed mentor/supervisor.

35The first Schecter report dated August 14, 2015, states that the last time that Dr. Schecter saw the plaintiff was in May 2013. The second report of October 4, 2015, states that Dr. Schecter examined the plaintiff again on October 1, 2015. This letter is particularly critical of the defendant’s previous dental work on the plaintiff. The October 4, 2015 letter states:

All of these crown restorations are failing and need replacement because they were improperly fabricated by her previous dentist, Dr. David Wein. Dr. Wein had cemented these restorations on with temporary cement and had left the porcelain unglazed. I believe he expected the patient to go to his dental lab to have the crowns removed and re-stained. This would have been totally improper as the lab technicians are not permitted to work intra-orally.

This was all part of the original restorative plan that was recommended to Dr. Wein before he began the restorations on the upper arch and he [Dr. Wein] chose to ignore treating the lower arch. This I believe was definitely not the proper way to address all of the patient’s dental needs.

She [the plaintiff] has been mistreated in the past by Dr. Wein and the only way her dental needs can be addressed is to replace all of her upper restorations with new ones…

36If this evidence is admissible, it is indicative of a genuine issue for trial.

37Counsel for the defendant argues that it is not admissible. Dr. Schecter did not provide his own affidavit because his evidence is based, at least in part, on his role as the defendant’s College-appointed mentor/supervisor. He collected evidence in that role, and he appears to be relying on that evidence in his October 4, 2015 report. Permitting the College-appointed mentor/supervisor to act as an expert witness in civil proceedings and give evidence of his participation in the College proceedings would contravene the purpose of s.36(3) of the RHPA to keep College disciplinary proceedings separate from civil proceedings. The plaintiff ought not to be able to circumvent s. 36(3) of the RHPA by having another dentist rely on Dr. Schecter’s report to swear an affidavit.

Analysis

38If Dr. Schechter’s October 4, 2015 report is inadmissible under s.36 (3) of the RHPA, then the Gupta affidavit, which relies on and references this report, is also inadmissible and there is no genuine issue for trial. If reference to Dr. Schecter’s October 4, 2015 report does not contravene s.36(3) of the RHPA, then the Gupta affidavit, whatever its other deficiencies, would be sufficient to show that there is a genuine issue requiring a trial in this case. In my view issues such as missing the court’s January 2, 2016, deadline are more appropriately dealt with by an order of costs against the plaintiff under Rule 20.06.

39The difficulty that I face on this motion for summary judgment is that I know very little about Dr. Schecter and his role as the College’s appointed mentor/supervisor. As far as I can determine, the only information available to me with regard to Dr. Schecter is in the statement of claim. From that document I can glean that the defendant was being supervised or “mentored” by Dr. Schecter on behalf of the Royal College of Dental Surgeons when the plaintiff and defendant attended the offices of Dr. Schecter in January 2011. At that time Dr. Schecter provided them with a written treatment plan for the plaintiff. This appears to be the “original restorative plan” referenced by Dr. Schecter in his October 4, 2015 report.

40While the supervision itself is a decision imposed by the College (and is therefore covered by s.36(3)), I cannot determine from the material provided to me on this motion whether Dr. Schecter’s January 2011 treatment plan qualifies as a “report, document or thing prepared for or statement given at such a [College] proceeding” within the meaning of s. 36(3) of the RHPA. I do not know, for example, whether this treatment plan was “prepared for” or provided to the College or used at any College proceeding. I do not know from the record on this motion if Dr. Schechter was responsible for preparing reports for the College. I do not know when the mentoring process began or ended. Are the plaintiff’s visits to Dr. Schecter in May 2013 and October 1, 2015 related to the supervision/mentoring process? Neither party made submissions with respect to these questions and the significance of this issue was not apparent to me during the hearing.

41Since the Gupta affidavit was served just two weeks before the motion was argued it is perhaps understandable that the defendant did not deal with this issue in his factum, which was filed before the Gupta affidavit was served. In order to avoid unfairness in these circumstances, the defendant should be given a fair opportunity to make submissions on this issue.

42This takes me back to the Supreme Court of Canada’s caveat in Hyrniak, para. 50, that a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” The issue relating to the application of s.36 (3) of the RHPA to the College’s supervision/mentoring process, Dr. Schechter’s January 2011 treatment plan and his report of October 4, 2015 is too important to decide on the basis of the record or submissions available on this motion. Accordingly, I am directing the parties to provide further written submissions with regard to this issue. The specific directions will be set out in my Order below.

Striking Paragraphs from the Statement of Claim

43In the alternative, the defendant seeks to strike paragraphs from the statement of claim under Rule 25.11 on the basis that they refer to proceedings before the College and are therefore inadmissible because they infringe s.36 (3) of the RHPA. Courts have struck pleadings that refer to proceedings before the College or references to College decisions on the basis that “if a paragraph in a party’s pleading pleads facts that cannot be proved at trial, or pleads documents that cannot be admitted at trial, that paragraph may be struck out on motion” under Rule 25.11 (M.F. v. Sutherland, at para. 40; Ontario v. Lipsitz, at para113; MacNeil v. Humber River Regional Hospital, 2011 ONSC 6691, at paras. 41–46).

44In addition, the defendant seeks to strike certain paragraphs on the basis that they are irrelevant and inserted solely to embarrass the defendant and will needlessly prejudice and delay the fair trial of the action.

45Rule 25.11 provides:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

46The defendant wants all references to the plaintiff and defendant “cohabiting” or in a “conjugal” relationship deleted. These allegations have nothing to do with the dental negligence claim and are included only to suggest that the defendant was in contravention of the Health Professions Procedural Code by providing dental services to a person with whom he was in a conjugal relationship. Violations of the Health Professions Procedural Code are dealt with as discipline matters before the College, and are not relevant to the issue of negligence.

47I agree with the defendant that the following paragraphs or sentences from paragraphs should be struck under Rule 25.11:

(a) Paragraph 3: “where the Plaintiff and Dr. Wein cohabited from November 26, 2010 until May 6, 2011.” – This sentence is irrelevant to the negligence claim or to any of the relief sought in the case. (b) Paragraph 4: All but the first sentence should be deleted. (c) Paragraph 5: The phrase: “and other services which were billed through the Plaintiff’s Manulife financial health insurance plan. This charge was fraudulent as the Plaintiff did not receive any fillings to her permanent crowns. Manulife provided payment in the amount of $873.03 leaving an outstanding balance of $321.81 which was eventually written off by the Dr. Wein”. These words are irrelevant to the negligence claim and may prejudice or delay the fair trial by requiring the defendant to respond to irrelevant and collateral issues. (d) Paragraph 6: The words “the Defendant was being supervised by Dr. Schechter”. The fact of supervision is a decision imposed by the College and should therefore be struck as inconsistent with s. 36(3) of the RHPA. (e) Paragraph 7. All but the first sentence should be struck since Brandy Wein is not a party to the action the reference to her is irrelevant. (f) Paragraph 9. The entire paragraph should be struck because it is not relevant to the claim of negligence and relates to a non-party to the action. (g) Paragraph 11. The entire paragraph should be struck because it is not relevant to the claim of negligence and appears to relate to proceedings before the College. (h) Paragraph 13 – the words “The Defendant extorted monies form the plaintiff” should be struck because they are not relevant to the negligence claim and may prejudice or delay the trial. (i) Para. 14. All but the first sentence should be struck because it is not relevant to negligence claim. (j) Paragraph 18. The first sentence should be struck because it is an allegation of insurance fraud against the defendant and is not relevant to the negligence claim.

Conclusion

48The parties are directed to provide written submission of no more than five pages dealing with the issue of the application of s.36(3) of the RHPA to the College’s supervision/mentoring process and in particular to Dr. Schechter’s written treatment plan [original restorative plan] for the plaintiff dated January 2011, and the plaintiff’s visits to Dr. Schecter in May 2013 and October 1, 2015. The defendant’s submissions should be filed within 30 days of the release of this decision, and the plaintiff’s submissions 20 days thereafter.

49In the event that the defendant is successful on the partial summary judgment motion my decision with respect to the Rule 25.11 motion to strike portions of the statement of claim will become moot. Accordingly, I will not make an order with respect to Rule 25.11 until I have made a final decision with respect to the Rule 20 motion.

50Costs of these motions are reserved pending my final decision on Rule 20.

Justice R.E. Charney Released: May 18, 2016

Larusson v Wein, 2016 ONSC 3283

Case Summary

Introduction

Background Facts