Velgakis v. Servinis, 2016 ONSC 7183
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
IPPOKRATIS VELGAKIS Plaintiff
– and –
GUS SERVINIS, ROSE T. FILIPCHUK AND LAURA ILIAGVIEV (also known as LEORA ILIA also known as LEORA LAICHTER) carrying on business (variously) as PAPEFINCH DENTAL, PAPE FINCH DENTAL and PAPE FINCH DENTISTRY Defendants
Bruce D. Day, for the Plaintiff
Michelle Gibbs and Carina Lentsch, for the Defendants
– and –
DIANA LAM Third Party
No one appearing for the Third Party
HEARD: June 15, 2016
M. D. FAIETA J.
REASONS FOR DECISION
INTRODUCTION
1The plaintiff, Ippokratis Velgakis, brings this dental malpractice action for services provided by the defendants during the period January 14, 2010 until October 4, 2012. This action was commenced on March 30, 2015. The defendants bring this motion for summary judgment to dismiss the action on the ground that it is statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
2For the reasons given below, I have dismissed the motion.
BACKGROUND
3The defendants Dr. Gus K. Servinis, Dr. Rosemary T. Filipchuk and Dr. Leora Laichter are dentists who were partners in the defendant Pape Finch Dentistry (the “Clinic”) until 2015. Dr. Laichter left the Clinic in September 2012 and formally ceased to be a partner in March 2015. She eventually started her own dental clinic in Kleinburg, Ontario.
First Treatment
4Dr. Laichter is a dentist whose practice includes implant dentistry. Dr. Laichter met the plaintiff, a 74-year-old man, in January 2010. His existing dentures were failing. After several meetings, the plaintiff chose to replace his implants with larger implants and acrylic snap-on dentures.
5Dr. Laichter provided the plaintiff with the following undated letter on the Clinic letterhead:
To whom it may concern,
Mr. Ippokratis Velgakis presented in my office as a new patient for a dental implant consultation. His chief complaint was in the prosthetic aspect of his past dental implant rehabilitation. He had multiple mini-implants placed at his upper and lower jaws, clinically the implants seem well osseointegrated.
His main concern was the longevity of the prosthetic aspect, reporting multiple repairs to his current overdentures. Clinically the implants seem to be well integrated showing minimal mobility. The dentures are unstable, with obvious mobility present.
I discussed with the patient the option of keeping the mini-implants and making new dentures. The patient’s concern is the ongoing wear and tear, as well as the constant repairs he must endure if he keeps the mini-implants. He reports having multiple consultations about his case with other dentists, and it seems there seems to be a general consensus by all the dentists that the mini-implants are too small to maintain a long lasting, durable overdentures.
After multiple consultations, the options were discussed by the patient fully. We have reached a treatment plan with the patient. This will include 4 upper and 4 lower implants, of which the size of implants will be a minimum of 4.3mm in diameter, with new set of overdentures. The fee for the case has been set at $20,000 and it will include the costs of the entire treatment: consultations, radiographs, tomograph, general anesthesia, dental implant surgery, bone grafting (if required), restorative phase, and two year maintenance in our hygiene department.
I have discussed with the patient the complexity of his case. I will attempt removing the implants. If during surgery I feel that the implants cannot be removed or too much damage to the bone will be incurred in the process of doing so, I will section off the intramucosal aspect of the mini-implants (there by embedding them in the bone), and place additional large Nobel Biocare implants in between the mini-implants. The patient understands the complexity of this surgery, and that it may not be possible to be achieved with only one surgical session. The patient understands, and consents to dental implant surgery.
6With the above letter, the following “Consent for Implant Surgery” form was attached and signed by both Dr. Laichter and the plaintiff, dated April 30, 2010:
I have been informed and afforded time to fully understand the purpose and the nature of the implant surgery procedure. I understand what is necessary to accomplish the placement of the implant under the gum or in the bone.…
In rare instances implant treatment does not succeed including the surgery or prosthetics due to biological factors beyond our control or ability to predict. As such the fee paid is non refundable. In these circumstances we may offer alternative treatment at
a reduced feeno addition fee. The patient is still responsible for any materials cost incurred with the additional treatment. This in no way implies that we have provided inadequate professional treatment but our desire to see you have the best possible outcome. [Strikethrough and italics handwritten in original.]
7On or about May 1, 2010, Dr. Laichter performed dental implant surgery on the plaintiff. She removed the plaintiff’s pre-existing implants and placed four new upper and six new lower implants while the plaintiff was under general anesthesia. The implant treatment was completed on September 15, 2010.
8The plaintiff subsequently received denturist services and treatment from Diana Lam (“Lam”). Lam is a denturist who practiced at the Clinic.
9On June 9, 2011, Dr. Laichter saw the plaintiff for an emergency appointment. At that time the plaintiff was complaining of soreness on biting. Dr. Laichter adjusted and smoothed his bite and advised him to inform the Clinic if his discomfort persisted.
10The plaintiff was seen by Lam on August 11, 2011, when his upper snap-on denture had a midline fracture at teeth 11 and 21, which Lam subsequently repaired.
Second Treatment
11On September 4, 2011, the plaintiff met with Dr. Laichter and advised her that his ability to chew was not as good as he had hoped for and that he wished to upgrade the upper arch to a fixed denture. The plaintiff opted to add a further implant in the area of tooth 26 and to change his upper prosthesis to a fixed acrylic denture, replacing the existing removable snap-on denture. Dr. Laichter states that he also agreed to pay an additional fee associated with this work.
12On November 15, 2011, the plaintiff attended the Clinic for implant surgery. Dr. Laichter placed an additional implant in the area of the plaintiff’s tooth 26 under general anesthesia. After the implant surgery, Lam assumed responsibility for the restorative portion of the treatment. The final upper screw-retained bridge was inserted on May 31, 2012.
13The plaintiff attended the Clinic on June 10, 2012 and July 29, 2012 for bite adjustments. Dr. Laichter completed those repairs.
14The plaintiff attended the Clinic on September 6, 2012, after his denture teeth 11 and 12 had broken off from the upper screw-retained bridge. He was seen by Dr. Laichter, Lam and a restorative dental hygienist. The upper bridge was removed, the broken teeth were repaired, and the bridge was then reinserted. Dr. Laichter also adjusted the patient’s occlusion (ie. the contact between upper and lower teeth) at teeth 12 and 13.
15The plaintiff returned to the Clinic on September 20, 2012. He was seen by Lam and a restorative dental hygienist. At that time his denture teeth 12 and 13 on the upper screw-retained bridge were repaired.
16On October 4, 2012, the plaintiff attended the Clinic for an occlusal adjustment.
Refusal to Perform Additional Work at No Charge
17The plaintiff travelled to Greece in January 2013. Upon his return, he visited the Clinic on or about February 10, 2013. His evidence on cross-examination was that he did not receive any treatment after December 2012 at the Clinic. He further stated that he told a receptionist at the Clinic in February 2013 that he thought the work was defective and said that he wanted to be compensated for his damages. At Questions 207-213, the plaintiff gave the following answers:
Q. Who did you speak with when you went to PapeFinch Dental three or four days after you got back from Greece?
A. I spoke to Meni, the Greek girl. All three receptionists were there. They are all Greek, Meni, her daughter, and another girl.
Q. You told Meni about the problems you were having?
A. Yes. I explained it, yes.
Q. You explained that you had broken some more teeth while you were in Greece?
A. Yes, two of them.
Q. Were you upset?
A. Of course I was.
Q. Did you think the fixed upper bridge was defective?
A. For the teeth to break, obviously, it was not done right.
Q. And that’s what you thought when you went and saw Meni at the end of February?
A. They explained to me that they could not – they cannot assist me at this time with my problem because she was moved. So they gave me her phone number for her new practice, [Dr. Laichter].
Q. And my question was, when you saw Meni three or four days after you got back from Greece, you thought that your fixed upper denture had not been done right?
A. As I explained to you before, I paid so much money at this dentistry, and the job was not done right. So yes, I did explain to them my disappointment and someone had to compensate me for damages. They only gave me her [Dr. Laichter’s] phone number, and they told me they cannot help me because no one replaced her yet. [Emphasis added.]
18In his affidavit, the plaintiff states that his return to the Clinic, described above, occurred in March 2013. He states that he requested that the Clinic do a further full mouth reconstruction to repair the work that had been done by Dr. Laichter. It was his expectation that the Clinic would repair the “badly done work” in accordance with the “Consent for Implant Surgery” form described above. The plaintiff was advised by the Clinic that Dr. Laichter was no longer associated with the Clinic and that no other dental surgeon was available. The plaintiff was told to attend at Dr. Laichter’s new clinic for further work: see Affidavit of Ippokratis Velgakis, at paras. 3 and 4.
19On or about March 13, 2013, the plaintiff called Dr. Laichter at her new office, Green Apple Dentistry, to book an appointment for the purpose of having broken denture teeth repaired. On March 27, 2013, the plaintiff attended at Dr. Laichter’s office and advised that his upper denture teeth had broken off and that he wanted his lower dentures repaired. Dr. Laichter advised the plaintiff that there would be an additional fee associated with any repair to his upper and lower dentures: see Affidavit of Leora Laichter, at para. 20. The plaintiff states that the events of March 27, 2013 occurred in or about April 2013: see the Affidavit of Ippokratis Velgakis, at para. 4. On cross-examination the plaintiff corrected this affidavit evidence and stated that he went to see Dr. Laichter in March 2013, but could not remember when they met: see Questions 235-237. Dr. Laichter’s clinical notes support that she gave a quote of $1,500 for the repair to the plaintiff on March 27, 2013. I accept Dr. Laichter’s evidence that she first met with the plaintiff at Green Apple Dentistry on March 27, 2013.
20The plaintiff states that at the meeting on March 27, 2013, Dr. Laichter gave him a tour of her new office and said “she was going to fix whatever is broken”. The plaintiff said that he was told that the “whole problem is because the lower denture is not done correctly”. The plaintiff also stated that Dr. Laichter removed the broken dentures and took an impression of his mouth. He is unsure whether this happened on March 27, 2013 or a few days later.
21Counsel for Dr. Laichter confirmed that the plaintiff attended at Green Apple Dentistry on March 27, 2013 and April 2, 10 and 12, 2013. There is no indication of what services, if any, were provided to the plaintiff on April 2, 10 and 12, 2013.
22On cross-examination, the plaintiff stated in relation to his first visit on March 27, 2013:
She told me, don’t be upset, I will fix your teeth, I will help you. She told me she – to come and take my measurements and fix my lower denture. She was happy to see me. She was happy with her new location. She told me she also had a second baby and she was pregnant with the third one. She introduced me to her husband.…
She recommended me to go to the denturist, and I did follow her orders. But at the end, I was charged 1,500 Canadian. I refused, of course, because I told them, you were paid for all that before. And then she told me, this is a different dentistry office. I left.
But again, my upper denture with my lower denture was not compatible to be able to eat. I called them to ask for that to be fixed, because, again, one tooth was broken, and I actually have a picture of that as evidence. They refused to see me again if I did not pay them the amount of 1,500 Canadian.
23A clinical note from Green Apple Dentistry, dated March 27, 2013, states:
Saw Mr. Ippokratis after his visit with Dr. Laichter. Pt broke upper teeth off denture and wants to repair lower. We discussed total cost for repair of upper and to make a new fixed lower plus a NG. Mr. Ippokratis said he is a pensioner and has very little income can not afford to make a fixed for the lower. He only wants them both repair. Gave him a quote for the repairs of $1500.00, he booked appt to see David [Istzer, Denturist] this Sunday, March 31, 2013.
24Dr. Filipchuk, one of the other partners at the Clinic, gave evidence as follows:
Mr. Velgakis continued returning for treatment until October 4 2012.
On April 25 2013 Mr. Velgakis came to our office and told us that he had contacted [Dr. Laichter] at her new office. [Dr. Laichter] told patient the [sic] she wasn’t responsible for finishing any of his treatment and that Papefinch Dental was responsible for him. She asked him to pay and patient said that he had paid $30000.00. Mr. Velgakis said that he had an appointment scheduled with [Dr. Laichter] at her new office. On April 25 2013 he received a call from the new office that his appointment was cancelled.
On April 29 2013 patient was told that Dr. Servinis and Dr. Filipchuk do not do implant procedures. Mr. Velgakis said he would call [Dr. Laichter]. He would tell her that if she didn’t repair his upper implant bridge that he would seek estimate from another dentist and then file a complaint with a lawyer. [See letter dated December 6, 2013, from Dr. Rose Filipchuk, Tab 2B, Plaintiff’s Motion Record]
25The plaintiff states that he consulted Dr. Mark Lin, a prosthodontist. He provided an estimate, dated September 5, 2013, which stated that it would cost $35,471 to do the necessary repair work.
Toronto Small Claims Court Action
26The Plaintiff commenced an action for $25,000 in the Toronto Small Claims Court against “Pape Finch Dental” on September 11, 2013. Dr. Lin’s estimate was attached to the claim. The claim, handwritten by the plaintiff, reads as follows:
Remburse me for the money paid you for insatisfactory roises rendered as a result which I continue to suffer from April 30, 2010 to March 2013.
27Pape Finch Dental filed a Statement of Defence on September 27, 2013, which states:
The Defendant denies all the allegations in the Plaintiff’s Claim.
The Defendant, Pape Finch Dental, is a business name and is not a legal entity recognized in law.
The Defendant therefore submits that this action be dismissed as against it with costs.
28On October 2, 2013, Justice Thomson added Dr. Servinis and Dr. Filipchuk as defendants and ordered that they file a defence on the merits by October 31, 2013.
29Dr. Servinis and Dr. Filipchuk filed the following Statement of Defence on October 31, 2013:
The Defendant, Dr. Gus Servinis, incorrectly named as Dr. Gus Seriinis, and the Defendant Dr. Rose Filipchuck deny all the allegations in Plaintiff’s Claim….
These Defendants therefore submit that this action be dismissed as against them with costs.
30An Amended Claim was filed on February 2, 2014. The only change was the attachment of a six-page letter from Dr. Lin dated January 10, 2014, and Dr. Lin’s curriculum vitae. Dr. Lin’s letter states, in part, that:
Without the benefits of previous dental records or communications with the previous treating general dentists and based on the patient’s reported history of sequence of events, the following conclusions can be made. Patient reported that the previous general dentist initiated and completed the sequence in full mouth reconstructions with maxillary fixed, mandibular removable overdentures without going through the sequence of utilizing provisionals to confirm the patient’s occlusal, comfort and stability.
My expert opinion in a full mouth reconstruction of a complex nature as such, it is critical and important for any treating dentist to provide intraoral provisionals that can confirm and evaluate the patient’s adaptability and comfort before fabrication of final prosthesis. Without such provisionals and confirmation, the final definitive fixed final implant restorations may be compromised. The patient’s envelop of function and occlusal habits cannot be evaluated and as such the limitations of the technical maxillary screw retained prosthesis resulted in acrylic denture teeth fracture and breakage of all remaining dentition that has been restored.
In conclusion, unfortunately Mr. Velgakis will need a full mouth reconstruction to repair his existing condition of acrylic fracture teeth. Either fixed or removable implant retained prosthesis will need to be fabricated to restore the patient’s occlusion, esthetics phonetics and functions.…
31The defendants, Pape Finch Dental, Dr. Servinis and Dr. Filipchuk, filed an Amended Statement of Defence on February 25, 2014. It states:
The Defendants deny the allegations contained in the Plaintiff’s Claim.…
The Defendants further state that any dental treatment that the Plaintiff received at Pape Finch Dental was provided in…a reasonable, careful and competent manner using generally accepted techniques that were in accordance with the appropriate prevailing standards of the practice of dentistry at the time of all treatment and state that no act or omission on their part, or that of any treating dentist at Pape Finch Dental led to any of the injuries or damages alleged in the Plaintiff’s Claim.
The Defendants specifically deny that there was any conduct, act or omission on their part, or that of any treating dentist at Pape Finch Dental which constituted negligence or otherwise.…
32Pape Finch Dental, Dr. Servinis and Dr. Filipchuk filed a Third Party Claim (styled as a “Plaintiffs by Defendants’ Claim”) against Lam on October 31, 2014. It states:
By the Amended Plaintiff’s Claim…the Plaintiff in the main action…claims damages against the Plaintiffs by Defendants’ Claim for negligence with respect to treatment provided at Pape Finch Dental from April 30, 2010 to March 2013.…
The Plaintiffs by Defendants’ Claim state and the fact is that Ms. Lam was the denturist responsible for making, fitting and repairing Mr. Velgakis’ dentures and bridgework.
If at the trial of the main action herein, it is adjudged that the Plaintiffs by Defendants’ Claim are liable to the Plaintiff, then the Plaintiffs by Defendants’ Claim state that their liability to the Plaintiff is due in whole or in part to the negligence of Ms. Lam.…
33On January 4, 2015, Lam filed Statements of Defence in respect of the plaintiff’s claim and the plaintiffs by defendants’ claim. On January 12, 2015, Lam also filed a claim against Dr. Laichter and a counterclaim against Pape Finch Dental, Dr. Servinis and Dr. Filipchuk for contribution and indemnity. Pape Finch Dental, Dr. Servinis and Dr. Filipchuk filed a Statement of Defence to Lam’s counterclaim on April 24, 2015.
Ontario Superior Court of Justice Action
34The plaintiff commenced this action on March 30, 2015 (the “SCJO action”). The defendants in this action are the same defendants to the Small Claims Court action; however, Dr. Laichter is also named as a defendant. The SCJO action asserts a claim in breach of contract and negligence seeking general damages in the amount of $100,000 and special damages in the amount of $50,000: see paras. 1 and 10(l) of the claim.
Motion to Transfer and Consolidate the Actions
35The plaintiff brought a motion for an order: 1) transferring the Small Claims Court action to the Ontario Superior Court of Justice; and 2) amending the transferred action or consolidating the Small Claims Court action with this action.
36On September 15, 2015, Justice Dunphy made the following order:
THIS COURT ORDERS THAT Toronto Small Claims Court Action…is transferred to the Superior Court of Justice effective immediately.
THIS COURT ORDERS THAT the Plaintiff shall be deemed to have amended the prayer for relief in the said Small Claims Court action as transferred to $100,000.00 in general damages and $50,000.00 in special damages.
THIS COURT ORDERS THAT the transferred action shall be “procedurally consolidated” with action #CV-15-525007 in the Superior Court of Justice as far as possible. All motions shall be heard together. There shall be one set of discoveries and the actions shall be tried together.
THIS COURT ORDERS THAT this Order is without prejudice to the Plaintiff moving to actually consolidate the two said actions on the later of:
(i) six months from today’s date; or ,
(ii) disposition of any Limitations Act motion made by the Defendants.
THIS COURT ORDERS THAT the Defendants shall bring a motion within six months (or at trial) to determine any Limitations Act defences.
THIS COURT ORDERS THAT the Defendants shall serve their Statement of Defence in CV-15-525007 within 30 days.
37Justice Dunphy’s endorsement states, in part, that:
After hearing from the parties, the concern of both is to avoid any possibility of prejudice to their respective Limitations Act issues. Plaintiff wishes to keep 2013 date to extent he needs it; Defendant wants to hold him to that date and argue all or most of the 2015 claim is barred.…
The Plaintiff may argue that some or all of the claims the [Defendant] may seek to strike are sheltered by it. Other than that, the 2015 action will be the “main event”.…
ANALYSIS
38This motion for summary judgment is brought pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There is no suggestion by the plaintiff that this is an inappropriate case for summary judgment.
Is the SCJO action sheltered by the Small Claims Court action?
39The plaintiff submits that the SCJO action is not barred by the Limitations Act as it is not a new cause of action, but rather is a clearer statement of the material facts in support of the breach of contract and negligence claims advanced by the Small Claims Court action that was commenced within the two-year limitation period on February 2, 2014. I also note that the defendants in both actions are not the same in that Dr. Laichter is not a defendant in the Small Claims Court action. The plaintiff has provided no examples to demonstrate that the principle he advances has been applied to find that a claim, otherwise commenced in the Superior Court of Justice after the expiry of the applicable limitation period, was sheltered by an action commenced in the Small Claims Court within the applicable limitation period. In any event, the plaintiff has not satisfied me that this principle should be applied in these circumstances. Accordingly, I dismiss this submission.
When was the plaintiff’s claim against the defendants discovered or discoverable?
40Section 4 of the Limitations Act states that, unless otherwise provided, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Under s. 1 of the Act, a “claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.
41Section 5 of the Act governs when a claim is discovered. Subsection 5(1) of the Act provides a subjective test and a modified objective test for when a claim is discovered. It states that 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 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 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).
42The Act also provides that a person with a claim shall be presumed to have known of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
43The plaintiff states that the last date of treatment that he received from any of the defendants was sometime in December 2012. This evidence is not corroborated by the clinical chart kept by the Clinic. Further, the plaintiff admitted on cross-examination that his memory regarding dates was uncertain. I prefer to rely on Dr. Laichter’s evidence that, based on the clinical chart, the last day that the plaintiff attended for any treatment and/or dental services at the Clinic was on October 4, 2012, and that she never provided services to the plaintiff after that date.
44I find that the last possible act or omission on which the plaintiff’s claim against the defendants is based took place on October 4, 2012. Accordingly, the plaintiff is presumed to have known of the matters referred to in s. 5(1)(a) of the Act on October 4, 2012. Given that the SCJO action was commenced on March 30, 2015, the onus is on the plaintiff to prove that the claim was not discovered or discoverable until March 30, 2013.
Subjective Test
45I find that the plaintiff knew by February 10, 2013, if not much earlier, that the requirements of s. 5(1)(a)(i) to (iii) were satisfied. He knew that the dentures had broken. He believed that the dentures broke because they were defective. He believed that the “job was not done right” by the defendants.
46I find that the plaintiff believed that legal action against the Clinic would be an appropriate means to seek to remedy the damage that he had suffered only after he had exhausted his efforts at trying to have the defendants repair his dentures at no cost to him.
47I find that, given that he had appointments with Dr. Laichter’s office on March 31, 2013 and April 2, 10 and 12, 2013, it is likely that the plaintiff was not advised by Leora that she would not repair the dentures at no cost to the plaintiff until sometime after March 31, 2013.
48In my view, it was not until April 29, 2013, when according to Dr. Filipchuk’s evidence, after being told that the Clinic could not do the work, the plaintiff stated that he would seek an estimate from another dentist and file a complaint with a lawyer if Dr. Filipchuk did not repair his dentures that the plaintiff first knew a proceeding would be an appropriate means to seek a remedy.
Modified Objective Test
49Under s. 5(1)(b) of the Act a claim is discovered on the “day on which a reasonable person with the abilities and circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)”.
50I find that it was appropriate for the plaintiff to make reasonable efforts to have his complaints regarding his dentures resolved on a consensual basis without quickly resorting to potential litigation, which would be relatively expensive. The defendants had provided the plaintiff with a consent form, which indicated that repairs may be made at no additional fee. It was appropriate for the plaintiff to rely on that agreement and pursue a consensual resolution of his complaints. I find that April 29, 2013 was the first day on which a reasonable person in the Plaintiff’s circumstances ought to have known that a proceeding would be an appropriate means to seek to remedy this claim given that that by that date the plaintiff’s request to have his dentures repaired at no cost to him had been refused by all of the defendants.
CONCLUSIONS
51I hereby dismiss the motion for summary judgment. I encourage the parties to resolve the issue of costs, failing which the plaintiff shall provide his submissions on costs within one week of today’s date. In that case, the defendants shall provide their submissions within two weeks of today’s date.
Given the modest size of this claim, I encourage the parties to resolve this action. If the parties wish, I will make myself available for a settlement conference at a mutually convenient date.
Mr. Justice M. D. Faieta
Released: November 25, 2016