Court File and Parties

COURT FILE NO.: CV-14-500782 DATE: 20170424 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Guillerma Muralla, Plaintiff – and – Dr. Mujeeb Qazi, Defendant

COUNSEL: M. Greg Abogado & Andrew E. Franklin, for the Plaintiff Eric S. Baum, for the Defendant

HEARD: April 5, 2017

BEFORE: Hood J.

Endorsement

Overview

[1] The plaintiff has brought a claim against the defendant alleging dental malpractice relating to an examination and treatment that took place on March 25, 2012. The defendant moves for summary judgment to dismiss the plaintiff’s claim against him. The plaintiff asks that the defendant’s motion be dismissed on the basis that there are genuine issues for trial.

[2] Both parties concur that, if summary judgment is not granted, there would be no benefit in conducting a mini-trial because the mini-trial would practically have to be the equivalent of a trial itself. It would involve the examination and cross-examination of the expert witnesses relied upon by the parties, along with evidence from the parties themselves and others as to liability.

[3] For the reasons that follow, the defendant’s motion for summary judgment is dismissed.

Summary Judgment Principles

[4] On a summary judgment motion, the court will find no genuine issue requiring a trial when it is able to reach a fair and just determination on the merits. The motions judge should determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the fact-finding powers in Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: see Hyrniak v. Mauldin, 2014 SCC 7, 366 D.L.R. (4th) 641, at paras. 49 and 66.

[5] The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute: see Hyrniak, at paras. 50 and 57.

[6] On a summary judgment motion, the court is entitled to assume that the parties have advanced their best case and the record contains all of the evidence the parties would present at trial: see Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33.

[7] The parties agree that, for a medical malpractice case, a plaintiff must deliver expert reports to establish the standard of care, the breach of the standard of care, and that the negligent treatment was connected to the injury in question: see McNeil v. Easterbrook, [2004] O.J. No. 3976, at para. 16. Otherwise, there would be no genuine issue for trial and summary judgment should be granted in favour of the defendant.

[8] While summary judgment can operate as a timely, fair, and cost-effective means of adjudicating a civil dispute, it has its limits. Not all civil disputes are amenable to a final adjudication on the merits by summary judgment. In certain cases, adjudication exclusively on a written record poses a risk of substantive unfairness. Great care must be taken “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial”: Baywood Homes Partnerships v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44; see also Cook v. Joyce, 2017 ONCA 49, at para. 91.

Facts

[9] Due to my decision, it is not necessary or appropriate to go into great detail as to the facts. For the purpose of this motion, the facts are as follows:

a) On March 23, 2012, the plaintiff saw her regular dentist, Dr. Kirupkaran, complaining of headaches, dizziness, nausea, and jaw pain. b) Dr. Kirupkaran prescribed antibiotics and the plaintiff filled the prescription that day. c) On March 25, 2012, the plaintiff attended Dr. Kirupkaran’s office complaining of jaw pain. She was seen by the defendant. d) The defendant removed an upper right wisdom tooth, tooth 18. e) On March 26, 2012, the plaintiff went to North York General Hospital complaining of right jaw pain. She was diagnosed, treated, and discharged. f) On March 28, 2012, the plaintiff went to Toronto East General complaining of jaw pain. She was diagnosed, treated, and discharged. g) On March 29, 2012, the plaintiff was admitted to Toronto East General with a dental infection. She was treated and operated on by Dr. El Masri. Over the next few months she was in and out of the hospital all the while being treated by Dr. El Masri. She was ultimately discharged May 11, 2012. h) The plaintiff issued her claim on March 24, 2014, alleging that the defendant was negligent in his treatment of her on March 25, 2012.

[10] In support of his motion, the defendant relies upon an expert report from a Dr. Speers dated April 10, 2015, which speaks to standard of care and causation. The defendant also relies upon expert reports from a Dr. Zoutman dated July 22, 2016 and March 7, 2017, which speak to causation. In opposition to the defendant’s motion, the plaintiff relies upon two expert reports from a Dr. Gryfe, one dated November 26, 2015, which speaks to standard of care and causation, and one dated February 13, 2017, which speaks to causation.

[11] I have read all of the reports. The opinions contained in the reports are in conflict, both as to the standard of care and causation.

[12] Dr. Speers is clearly of the opinion that the defendant’s treatment met the standard of care expected of a reasonable and prudent dentist practicing in Ontario. He is also of the opinion that the defendant’s actions or non-actions were not the cause of the plaintiff’s subsequent problems, but that these problems were caused by opportunistic bacteria.

[13] Dr. Zoutman is of the opinion that there is nothing the defendant could have done on March 25, 2012 to change the course of the plaintiff’s infection or the outcome.

[14] Dr. Gryfe, while somewhat more lengthy in his reports, is ultimately of the opinion that the defendant fell below the required standard of care of a dentist. Dr. Gryfe is also of the opinion that the defendant’s treatment, by removing the upper right wisdom tooth, tooth 18, rather than the lower right wisdom tooth, tooth 48, together with the way he removed tooth 18, was connected to the plaintiff’s eventual injuries.

[15] The defendant argues that Dr. Gryfe is not qualified to give an expert opinion on the standard of care of a dentist because he is a specialist, an oral and maxillofacial surgeon, rather than a practicing regular dentist.

[16] The plaintiff takes issue with the admissibility of the reports of Dr. Speers and Dr. Zoutman because they did not review the defendant’s discovery evidence prior to reaching their opinions. Counsel for the defendant deliberately chose not to provide these witnesses with the discovery transcript of the defendant.

[17] The defendant faced examination for discovery. He did give evidence that could be viewed as differing from his notes of March 25, 2012, which notes Dr. Speers and Dr. Zoutman reviewed and relied on in reaching their opinions. The discovery evidence could suggest that tooth 48 was more infected that tooth 18 and that he should have removed tooth 48 instead.

[18] The defendant argues that, at discovery, he was nervous and confused by the questions asked. He says that, because English is not his first language, some of what he said and the words he used, including the word “infection,” was said loosely and in an imprecise fashion. The defendant has attempted to rehabilitate his discovery evidence.

[19] On his cross-examination, Dr. Zoutman acknowledged that his opinion might change if he had evidence from the defendant given under oath that gave a different description of the events of March 25, 2012, when the defendant saw the plaintiff, or a different diagnosis by the defendant than was in his notes. Dr. Speers did not agree with this line of questioning on his cross-examination.

[20] I am faced with two competing sets of medical opinions on the issues of standard of care and causation which are based upon different facts. Each party says the other’s assumed facts are wrong. I am not confident that I can fairly resolve the issues on a paper record. These are genuine issues that require a trial to resolve. While every case is different, a similar conclusion was reached in Maracle v. Mascarin, 2016 ONSC 537, at para. 32, leave to appeal refused 2016 ONSC 271, and in Paul v. Oliver Fuels Ltd., 2012 ONSC 978, at para. 44. While the latter decision was pre-Hyrniak, I find the reasoning in it to be apt and in line with the reasoning in Maracle.

[21] Several issues raised are best left to trial, including: whether Dr. Gryfe is qualified to give an expert opinion on the standard of care of a dentist as a specialist rather than a dentist, whether Dr. Gryfe’s reliance on the defendant’s discovery evidence was improper, and whether the non-review of the defendant’s discovery evidence by the defendant’s experts was improper. At trial, the trial judge can determine these issues following voir dires to determine qualifications, the admissibility of the various expert opinions, and ultimately the weight of the opinions given, if admitted.

[22] At a trial, the reports do not go in as evidence. The experts, once qualified, give their opinions through testimony. While their testimony is not to stray from their reports, ultimately their opinion, because they lack personal knowledge of the matters in issue, is based upon hypothetical questions incorporating assumed facts.

[23] It is more appropriate that these medical expert witnesses give their evidence at trial in the witness box where different hypotheticals can be put to them and where the trial judge will be the one to ultimately determine whether a fact has been proven and is no longer a hypothetical. If the trial judge rejects the factual premises on which the opinion is based, then the expert’s opinion must be rejected as well.

[24] As part of this fact-finding process, it is more appropriate for the trial judge to see and hear the fact witnesses, such as the plaintiff and defendant and perhaps some of the treating doctors, so as to determine the facts upon which the expert opinions will be based.

[25] Equally, issues relating to the defendant’s discovery evidence and the rehabilitation evidence is best left to trial and the trial judge, where the defendant will presumably give evidence and where the discovery evidence may be used in a variety of ways by the plaintiff.

Costs

[26] Being successful on the motion, the plaintiff is presumptively entitled to costs. The parties have provided me with their cost outlines for the motion. They have advised me that there are no offers that might impact upon a costs award.

[27] The fixing of costs is a discretionary decision under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include indemnity for the successful party, the amount at issue, the complexity, and the expectations of the unsuccessful party. Overall, the court is to consider what is fair and reasonable in all of the circumstances.

[28] While the hourly rates of the plaintiff’s counsel are appropriate, the amount of time spent is excessive. I fix costs, taking into account the factors in Rule 57.01, inclusive of disbursements and HST, at $17,000. The costs are to be paid by the defendant to the plaintiff within 30 days of today’s date.

Hood J. Released: April 24, 2017