Court File and Parties

COURT FILE NO.: CV-11-0303-00 DATE: 20170111

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: AMOS CARL MARACLE and PATRICIA DAWN BRANT Plaintiffs (Responding Parties)

– and –

DR. STEVEN MASCARIN c.o.b. as FAMILY DENTAL CENTRE INC. Defendant (Moving Party)

COUNSEL: S. Daniel Baldwin, for the Plaintiffs (Responding Parties) Andrew Lundy, for the Defendant (Moving Party)

HEARD: November 30, 2016 (Belleville)

RULING ON MOTION

PEDLAR J.

[1] This is a motion brought by the defendant, Dr. Steven Mascarin c.o.b. as Family Dental Centre Inc. for leave to appeal the February 3, 2016 order of Tausendfreund J. dismissing the defendant’s motion for summary judgment.

[2] The story which gives rise to this action, as gleaned from the material filed by both parties and the decision of the motions judge dated February 3, 2016, includes the following information relevant to this motion for leave to appeal.

[3] The plaintiffs are husband and wife. On December 2, 2009, they attended the defendant’s dental clinic to inquire about possible tooth implants for the plaintiff, Amos Maracle. The defendant dentist examined Amos Maracle and recommended a procedure for either three or four implants. While still in the dentist’s chair, and with the assistance of his wife, Amos Maracle agreed on a plan for three implants.

[4] To his surprise, Dr. Mascarin then told Amos Maracle that he would start the procedure that very day.

[5] Amos Maracle had undergone heart surgery in 2007 and had been treated in 2008 for heart infection. His family physician and his heart specialist, Dr. Campbell, had advised him that it was necessary for him to have antibiotics before undergoing any medical or dental procedure. He was given a prescription for antibiotics and told to take the medication before a scheduled dental appointment.

[6] He had not taken the antibiotic prior to the dental consultation on December 2, 2009, as he had only expected a meeting with the dentist for a consultation. When advised that the proposed implant procedure would start that very day, he told the defendant that he first needed to take his antibiotic medication. The Defendant advised him that he had that medication at his office and would provide it to him. Amos Maracle was then given pills and a cup of water, and asked to go and wait in the waiting room.

[7] There is a discrepancy in the evidence of the plaintiffs and the defendant about the length of time that occurred between his taking the pills and the commencement of the implant procedure. The evidence of both plaintiffs is that time period was not more than 20 minutes.

[8] Both plaintiffs state that the interval from the time they arrived at the dental office and left with the three implant posts inserted was a maximum of one and a half hours and the time from taking the antibiotic until the start of the dental procedure was not more than 20 minutes.

[9] The plaintiff, Patricia Brant, specifically recalled that the time period from the discussion of the costs of the implants, while Amos Maracle was still in the dental chair and before he had decided to have the implants, until they both left the office after the completed procedure was about 45 minutes.

[10] Dr. Mascarin asserts that after obtaining verbal and written consent from Amos Maracle, he provided him with the necessary antibiotics and then waited for 60 minutes before commencing the dental procedure, which he recalled as being routine and uneventful. Two weeks later, Amos Maracle attended at his office and told him the implants were great and that he was not experiencing any problems.

[11] On January 21, 2010, some 50 days after the dental procedure, Amos Maracle suffered a sudden loss of vision in his right eye, which at the time of examination was suspected to have occurred as a result of a stroke.

[12] On January 26, 2010, 55 days after the dental procedure, a biopsy for temporal arteritis was performed that was negative and a transthoracic echocardiogram was negative for infective endocarditis.

[13] On February 2, 2010, Amos Maracle was admitted to Quinte Health Care, Belleville General Hospital site, due to the onset of chest pain. Blood cultures revealed bacteria in the bloodstream, specifically Streptococcus oralis/mitis (i.e. endocarditis).

[14] With respect to the injury which is the subject of this litigation, Dr. Campbell, his treating cardiologist, first treated Amos Maracle on February 2, 2010.

[15] On March 1, 2010, Dr. Peter Hollet, stated in a report that the loss of vision in Amos Maracle’s right eye was a retinal embolus due to the infective endocarditis.

[16] On March 5, 2010, Dr. Campbell sent a report to Dr. Lisowski which included these comments and opinions regarding the heart condition of Amos Maracle:

(a) I am following Amos Maracle with a bicuspid aortic valve and a dilated aorta. He had his aortic root replaced and an aortic valve repair in March, 2007. His course was complicated by Streptococcal aortic valve endocarditis in February, 2008. (b) He recently developed endocarditis with a different organism related to dental work. (c) He was admitted to hospital on February 2. (d) I have sent off cultures. They all grew Streptococcal mitis/oralis. (e) Amos Maracle has recurrent Streptococcal aortic valve infective endocarditis. (f) Unfortunately, he had dental work done a couple of weeks prior to his presentation. He did receive Penicillin but only waited in the waiting room for about 20 minutes before his dental work was performed. He would not have reached therapeutic blood levels of antibiotics by that time and this was the likely source of his infective endocarditis.

[17] The statement of claim in this action was issued December 2, 2011, followed by the statement of defence on May 3, 2012.

[18] The defendant brought the motion for summary judgment heard on January 13, 2016. In support of that motion, the defendant tendered affidavits, in compliance of Rule 53.03 from Dr. Nicolucci on November 2, 2012 and Dr. Zoutman on March 6, 2013.

[19] The opinion of Dr. Campbell and his notes and records were included in the affidavit of the plaintiff, Amos Maracle, sworn October 8, 2013 and served within days on counsel for the defendant.

[20] Dr. Zoutman provided two stand-alone reasons why Mr. Maracle’s infective endocarditis was not caused by the dental treatment:

(i) the antibiotic if taken orally 20 minutes prior to the start of the procedure would have achieved a level of antibiotic that would exceed the minimum inhibitory concentration necessary to kill Streptococcus oralis/mitis or similar bacterial strains. The antibiotic would continue to be absorbed into and circulate through Mr. Maracle’s bloodstream for several hours; and (ii) it is much more likely that the source of the bacteria that caused Mr. Maracle’s infective endocarditis originated from daily activities such as chewing or brushing his teeth. The interval of some 50 days between the time of his original dental procedure, December 2, 2009, and the first manifestations of infective endocarditis is much longer than expected. Infective endocarditis develops and becomes clinically evident within 7-14 days of the initiating bactermia.

[21] Dr. Nicolucci confirmed with supporting scientific literature that the likelihood of endocarditis being caused by dental treatment is remote.

[22] Lorraine Thomson, in her affidavit of January 5, 2016, states, in part, that the notes and records of Dr. Campbell were tendered pursuant to Section 35 and 52 of the Evidence Act, R.S.O. 1990, c. E. 23.

[23] On the issue of causation, Dr. Nicolucci’s report states:

(a) Mr. Maracle was an appropriate candidate for implant treatment and that the implants were appropriately placed. (b) Considering Mr. Maracle’s medical history, the defendant administered the appropriate dose of prophylactic antibiotics at the appropriate time. The defendant followed the most recent standards (2007) approved by the American Heart Association and published by the Canadian Dental Association for the prevention and treatment of bacterial endocarditis. (c) The retinal artery embolus in Mr. Maracle’s right eye seemed to be a co-lateral result of cardiac complications and not a direct result of having the implants placed.

[24] Dr. Zoutman in his report served March 6, 2013, offered these opinions:

(a) The defendant correctly identified Mr. Maracle as meeting the criteria outlined by the American Heart Association in their guidelines for the administration of prophylaxis and provided Mr. Maracle with the correct antibiotics. (b) Bacteria commonly enter the bloodstream after dental extractions or other dental procedures. However, the risk of “spontaneous” bacteremia after daily activities, including brushing and flossing and chewing is known to be much more likely to cause infective endocarditis than bacterium associated with any dental procedure; and (c) It is extremely remove and unlikely that Mr. Maracle’s infective endocarditis was caused in any way by the dental procedure performed on December 2, 2009.

[25] Dr. Zoutman served a supplementary report on December 22, 2013 in which he opined that:

(a) If Mr. Maracle received his prophylactic antibiotics approximately 20 minutes before the procedure, this timing would not alter his opinion expressed in his earlier report; (b) 2000 mg of amoxicillin taken orally 20 minutes prior to the start of the dental procedure would have achieved a level of amoxicillin in Mr. Maracle’s blood that would exceed the minimum inhibitory concentration necessary to kill Streptococcus oralis/mitis or similar bacterial strains; (c) Infective endocarditis develops and becomes clinically evident with 7-14 days after initiating bacteremia; (d) The interval of some 50 days between the time of the dental treatment, December 2, 2009, and the first manifestations of infective endocarditis is much longer than expected; (e) Bacteria resulting from daily activities such as chewing or brushing is much more likely to cause infective endocarditis than bacteremia associated with any dental procedure.

[26] These reports of Dr. Nicolucci and Dr. Zoutman state that they are based on their respective reviews of a copy of the defendant dentist’s clinical notes and records. In December of 2015, the Royal College of Dental Surgeons of Ontario advised counsel for the plaintiffs that:

(a) The College requested the original clinical chart from the defendant dentist to assist with its investigation of the complaint which the plaintiff, Amos Maracle, had made to the College, and (b) The defendant advised the College that his original chart seemed to have gone astray and could not be located.

[27] The plaintiffs state that this information provided by the College is important for a number of reasons:

(a) The amount and type of antibiotic given to Amos Maracle and the length of time the dentist waited before starting the procedure are critical for the causation opinions. That is particularly so, the plaintiffs state, as the defendant asserts that he waited one hour while the plaintiffs’ evidence is that it was but 20 minutes between the time the antibiotics were administered and the procedure started.

[28] The plaintiffs also note that the discipline record of the defendant dentist with the Royal College of Dental Surgeons of Ontario indicates that in 2005 he had been found guilty for failing to keep records as required by the Regulations of the College and that he was found guilty of falsifying a record.

[29] On September 24, 2015, a medical-legal report was obtained from an endodontist, Dr. George Just. That report is attached as Exhibit “B” to the affidavit of Lorraine Thomson, sworn January 5, 2016. In that report, Dr. Just concluded that the defendant had breached the standard of care owed to Amos Maracle in that he:

(a) failed to confer with Mr. Maracle’s physician prior to performing a surgical procedure on Mr. Maracle despite his knowledge of Mr. Maracle’s cardiac condition; (b) failed to have Mr. Maracle rinse with an antibacterial rinse prior to performing implant surgery in order to lower the bacterial blood which is vital in preventing bacterial endocarditis; and (c) failed to adequately pre-medicate Mr. Maracle 30 minutes to an hour prior to his surgical implant treatment in contravention of the American Heart Association Guidelines.

[30] Dr. Just concludes that these breaches resulted in Mr. Maracle suffering this second bout of bacterial endocarditis and damage to his aortic valve.

[31] Furthermore, Dr. Just comments on the deficiencies he identified in the defendant’s expert reports. First, he took issue with Dr. Blake Nicolucci’s report as it was prepared on the basis that the antibiotics were administered an hour before surgery. The timing issue of Mr. Maracle’s pre-medication was therefore not considered.

[32] Second, Dr. Just found the opinion of Dr. Zoutman highly speculative. Dr. Zoutman opined that, in administering 2000 mg of amoxicillin, a blood level of 5-6 ug/ml was likely achieved in Mr. Maracle within 20 minutes. In arriving at this opinion, Dr. Zoutman failed to take into account that individuals absorb oral antibiotics at different rates depending on their stomach contents and individual physiology. He states that it is for this reason the American Heart Association Guidelines recommend an hour or at a minimum 30 minutes to account for individual absorption rates. The only way that Dr. Zoutman could prove an adequate level of amoxicillin in Mr. Maracle’s blood in 20 minutes or less would have been by performing a blood draw. However, a blood draw was not done.

[33] The defendant brought a motion for summary judgment arguing there was no genuine issue requiring a trial as the plaintiffs had failed to provide any admissible expert evidence to establish causation.

[34] The court dismissed the defendant’s motion for summary judgment.

[35] The motions judge, in his analysis, deals with the law relating to motions for summary judgment in the following paragraphs of his ruling:

[22] The issue on this motion is whether there is a genuine issue requiring a trial with respect to the claim the plaintiffs advance. The defendant seeks Summary Judgment on the grounds that there is no genuine issue requiring a trial as the plaintiffs are unable to establish that the defendant caused the alleged injuries pleaded in the statement of claim.

[23] The court shall grant Summary Judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim. (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.04(2)(a))

[24] Rule 20.04(2.1) and (2.2) grant enhanced powers for Judges hearing Summary Judgment motions. These include:

a) The ability to weigh evidence; b) The ability to determine credibility; c) The ability to draw reasonable inferences; and d) The ability to hear oral evidence – the “mini trial”.

[25] In addition, the principle of proportionality was codified in Rule 1.04 as follows:

“1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[26] The Supreme Court of Canada in Hryniak, [Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No 7], called for a “culture shift” that would promote timely and affordable access to the civil justice system: para. 3. That shift was stated to require “simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of a particular case: para. 2.

[27] Hryniak detailed these additional propositions on the resolution of Summary Judgment Motions:

a) 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: para 49. b) This will be the case when the process i) allows the Judge to make the necessary findings of fact, ii) allows the Judge to apply the law to the facts, and iii) is a proportionate, most expeditious and less expensive means to achieve that result: para 66 c) The enhanced fact – finding powers granted in Rule 24.04(2)(1) may be employed on a motion for Summary Judgment unless it is in the “interests of Justice for them to be exercised only at trial”: para 52

[28] The defendant states and I accept that in cases alleging medical malpractice which includes alleged dental malpractice, liability may be established if the plaintiffs demonstrate on a balance of probabilities that the dentist’s conduct fell below the applicable standard of care, which is the degree of skill of a reasonably competent dentist practising in Ontario: McNeil v. Easterbrook [2004] O.J. No. 3976 (S.C.J.) at para 14. The plaintiffs must establish that the treatment in question was the cause of the injury. In the face of an expert opinion obtained by the defendant on a technical causation issue such as in a medical malpractice case, a finding of negligence must be based on a supporting expert opinion: McNeil ibid at paras 15 and 16. If the plaintiffs in these circumstances do not deliver an expert report on the issue of causation and negligence, they will not have raised a genuine issue with respect to that material fact and the defendant would be entitled to Summary Judgment: McNeil ibid at para 16.

[29] The parties have agreed, for purposes of this motion, that the issue of the standard care is not “in play”, but only the issue of causation.

[30] The defendants have produced two Rule 53.03 compliant medical opinions. Dr. Nicolucci opined that Mr. Maracle’s complications with his right eye seemed to be a co-lateral result of cardiac complications and not a direct result of having the implants placed. Dr. Zoutman opined that it is extremely remote and unlikely that Mr. Maracle’s infective endocarditis heart condition was caused in any way by the dental procedure performed by the defendant on December 2, 2009.

[31] In response to these two opinions commissioned by the defendant, the plaintiffs rely on the opinion of Dr. Campbell that the defendant dentist did not wait long enough for the Penicillin to have reached the required therapeutic blood levels of antibiotics before starting the dental procedure and that this was the cause of the infective endocarditis.

[32] In the face of these competing medical opinions on the issue of the medical/dental malpractice allegation, the summary trial provisions in Rule 20.04 do not provide the appropriate forum to resolve such contradictory opinions. In my view, to prefer one such opinion over another requires nothing less than a trial process. Indeed, counsel for the defendant was unable to refer me to a decision which would support his position that the question of competing medical opinions could be resolved at the Summary Judgment stage of an action.

[33] However, that does not end the matter as the defendant states that absent compliance with Rule 53.03, the opinion of Dr. Campbell is not and should not be admissible.

[36] Leaving aside the issue of the admissibility of the opinion of Dr. George Just and focusing on the interpretation of the principles enunciated by the Ontario Court of Appeal in Westerhof v. The Estate of Gee et al, 2015 ONCA 206, 124 O.R. (3d) 721, applies to the opinion of Dr. Campbell, the motions judge dealt with that specific issue beginning at the top of page 13 of his ruling which states as follows:

[34] …The Court of Appeal distinguished reports from experts “engaged by or on behalf of a party” from that of treating physicians with notes and records as tendered. The Court of Appeal referred to the latter type of experts as “participant experts” and states this:

Para 60 . . . I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

a) the opinion to be given is based on the witness’s observation of or participation in the events and issues; and b) the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Para 61 Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.

Para 62 I conclude that Rule 53.03 does not apply to the opinion evidence of a non-arty expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

Para 76 . . .in McNeill v. Filthaut, 2011 ONSC 2165, MacLeod-Beliveau J., … described the “ultimate purpose of Rule 53.03” as being “to limit and control the proliferation of experts retained by litigants”. . . she described the “introduction of the new rules about expert witnesses” as “an effort to eliminate the use of ‘hired guns’ or ‘opinions for sale’ in civil litigation where the use of which has resulted in potentially biased expert evidence being given at trial”…

Para 81 . . .I conclude that Rule 4.1.01, Rule 53.03 and Form 53 are a comprehensive framework addressing a specific class of expert witnesses and expert reports. . . I see no basis for concluding that Rule 53.03 was intended to apply to persons other than expert witnesses “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding”.

Para 82 Witnesses, albeit ones with expertise, testifying to opinions formed during their involvement in a matter, do not come within this description. They are not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation. As such, they are not “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding. . .”

[35] Dr. Campbell had been the treating cardiologist for Amos Maracle prior to this dental procedure on December 2, 2009. He saw Mr. Maracle some two months later on February 2, 2010 for heart issues following the plaintiff’s development of blindness in his right eye. He treated him over the next few weeks and provided an opinion on March 9, 2010. The statement of claim was not issued until December 2, 2011.

[36] I am satisfied that Dr. Campbell at all times was a participant expert whose notes, records and opinions were prepared as a treating physician and not as one who was “engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding”.

[37] The defendant further states that the notes, records and opinion of Dr. Campbell must be served in a manner that will permit cross-examination. He relies on Suwary v. Women’s College Hospital, [2008] O.J. No. 883, Toronto-Dominion Bank v. Schrage, 2009 ONSC 45444, [2009] O.J. No. 3636 and Danos v. BMW Group Financial Services Canada, 2014 ONSC 2060, [2014] O.J. No. 1802. The defendant points to these authorities in support of his position that a party intending to rely on the opinion of an expert on a Summary Judgment motion must put the evidence forward in a manner that will permit cross-examination of the expert. In each of these three decisions, the plaintiffs had filed an affidavit by a third party who, on the basis of knowledge, information and belief, had attached one or more expert reports as exhibits. In each of these decisions the Court essentially held that on a motion for Summary Judgment the Court was entitled to insist on sworn evidence and, in the case of experts, that the evidence be given by the expert and not filtered through the hearsay evidence of the party: see Toronto-Dominion Bank, supra, at para 39. However, each of these decisions pre-date the Ontario Court of Appeal decision of Westerhof, supra, in which the Court stated at para 85:

.. . . I am not persuaded that disclosure problems exist in relation to the opinions of participant experts and non-party experts requiring that they comply with Rule 53.03. In many instances, these experts will have prepared documents summarizing their opinions about the matter contemporaneously with their involvement. These summaries can be obtained as part of the discovery process. Further, even if these experts have not prepared such summaries, it is open to a party, as part of the discovery process, to seek disclosure of any opinions, notes or records of participant experts and non-party experts the opposing party intends to rely on at trial. . .

[38] I note that the records, notes and opinions of Dr. Campbell were served by the plaintiffs in October 2013, as attached to the affidavit of the plaintiff Maracle sworn October 8, 2013. They were further served in August of 2015 as attached to the affidavit of Lorraine Thomson sworn August 12, 2015 and further in January 2016 as attached to affidavit of Ms. Thomson of January 5, 2016. Had the defendant been so inclined, he could have sought to examine Dr. Campbell under Rule 39.03 as a witness before the hearing of a pending motion. That had been so as of October 2013. I have no evidence of any requests the defendant may have made in that regard on this motion.

[39] I also note that the records and notes of Dr. Campbell are admissible as business records made in the usual and ordinary course of a business under s. 35 of the Evidence Act and under s. 52 of that Act as a report obtained by a party to an action signed by a physician and with leave of the Court.

[40] For reasons stated, I find that the notes, records and opinion of Dr. Campbell are admissible. Accordingly, I am faced on this Summary Judgment motion with two competing sets of medical opinions on the issue of causation. That leads me to comments made by the Ontario Court of Appeal in Rothwell v. Raes, 1990 ONCA 6610, [1990] O.J. No. 2298. Before the court was the issue of causation raised by the appellants who sought to have the court reverse specific findings of fact made by the trial judge in the decision under appeal. The court’s response at para 6 was this:

The question of causation is essentially a question of fact to be determined by the trial judge. It is not for this court to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony.

These comments on a parallel basis, in my view, apply here on this Summary Judgment motion which turns on the question of causation.

[37] In submissions, counsel for the defendant argues that the motions judge erred by not referring to paragraph 63 of Westerhof v. Gee Estate. For context, I will also quote paragraph 64 of the decision:

[63] If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with Rule 53.03 with respect to the portion of their opinions extending beyond those limits.

[64] As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert’s opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation. [page 735]

[38] I do not see how the Court of Appeal leaves any ambiguity about this issue, specifically in their statements from paragraphs 76, 81 and 82 of their decision, as quoted by the motions judge at paragraph 34 of his ruling. The ruling of the motions judge at paragraphs 35 through 40 clearly identifies and answers the issues by applying the principles of law stated in the Westerhof case to the facts in this case. The issues identified in paragraphs 63 and 64 do not apply to Dr. Campbell’s report herein.

[39] Rule 62.02(4) of the Rules of Civil Procedure states:

Leave to appeal shall not be granted unless,

a. there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or b. there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194 at Rule 62.02(4)

[40] I find that the defendant has failed to demonstrate that there is a conflicting decision by another court in Ontario since Westerhof v. Gee Estate, or elsewhere on the matter involved in the proposed appeal that in my opinion would make it desirable that leave to appeal be granted. I find that the Ontario Court of Appeal’s decision in 2015 by Westerhof stands as the defining authority regarding the use of participant expert opinions.

[41] The defendant has also failed to demonstrate that there appears to be good reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that in my opinion leave to appeal should be granted. The motions judge quoted and relied upon the relevant portions of the Westerhof v. Gee Estate decision, which give clear direction as to the distinction between a participant expert and an expert hired exclusively for the purpose of giving an opinion in the litigation.

[42] The opinion of Dr. Campbell was formed as part of Amos Maracle’s treatment, as evidenced in his letter to Dr. Lisowski. In that letter, Dr. Campbell discusses Mr. Maracle’s ongoing treatment plan, including progress on antibiotic treatment and discontinuance, blood culture tests required repeatedly to ensure eradication of infection, the plaintiff’s symptomatic with regurgitant valve, the prescribing of new medications, and the scheduling of a follow-up appointment soon thereafter. It is clear that, at the time of the opinion in the letter, treatment was still ongoing and Dr. Campbell continued to monitor the plaintiff’s prognosis.

[43] Paragraph 41 at page 18 of the ruling by the motions judge states as follows:

[41] Additionally, as I noted above, the accuracy and reliability of the notes and records of the defendant dentist is in question. He was unable to produce to the Royal College of Dental Surgeons of Ontario his original notes and records which apparently have gone missing for unnamed reasons. The plaintiffs state that these notes and records are of importance, as the opinions on causation obtained by the defendant rely and are based on those very notes and records. The plaintiffs further state that it is not clear from these notes and records what quantity and type of antibiotics were administered. The plaintiffs urge that discoveries are needed to ferret out answers to these issues relating to the defendant’s notes and records.

[44] It has now been seven years, give or take a few weeks, since the events which led to the commencement of this action took place. The statement of claim was issued just over five years ago. The motion record, filed in two volumes by the defendant moving party, contains 431 pages. The book of authorities, without having counted them, appears to contain well over 200 pages, with an additional supplementary, plus further supplementary, books of authorities filed by the defendant, plus a factum and a reply factum. The factum of the plaintiff responding party contains 14 pages and their book of authorities approximately 50 to 60 pages.

[45] I did not review the material in the file in support of, and responding to, the original motion for summary judgment. It appears to be somewhat in the same number of pages filed, (perhaps slightly more), in support of and responding to this motion.

[46] It is somewhat ironic that the process of a motion for summary judgment, which is intended to be a relatively summary process to increase access to justice, was first returnable in October 2013 and together with this motion, has consumed somewhere between 1500 to 1800 pages of written material seriously challenging the capacity of what is normally referred to as a “banker’s” box for holding the file. The oral submissions on this motion took approximately three hours. The process is becoming part of the problem in this case, rather than the solution.

[47] This motion for leave to appeal is dismissed.

[48] There clearly are factual issues in dispute, as well as competing expert opinions, as set out above. This matter needs to proceed as ordered by the motions judge at page 19, paragraph 43 of his ruling. At that time, he asked counsel to work out a new proposed timetable and gave them a deadline for doing so. The motions judge seized himself of the action at least on a trial management basis and that order should continue. Counsel are directed to provide a new proposed timetable to the motions judge by February 28, 2017, or arrange a date to appear before the motions judge to state why it was not possible to arrive at a consent proposed timetable for this matter to proceed. The plaintiffs are entitled to their costs of this motion. If the parties cannot agree on those costs, I will receive written submissions within 30 days from the plaintiffs with a 10 day right of reply to the defendant as to the quantum of those costs.

[49] I thank counsel for their assistance in this matter.

The Honourable Mr. Justice K. E. Pedlar

Released: January 11, 2017