Court File and Parties

Court File No.: CV-13-485735 Motion Heard: 2017-05-08 Reasons Released: 2017-05-30 Superior Court of Justice – Ontario

Between: MONIKA LASKI, WAYNE LASKI, MARTIN LASKI, CAROLYN LASKI, and THOR ALEXANDER LASKI Plaintiffs

- and-

DR. VICTOR MONCARZ Defendant

Before: Master M.P. McGRAW

Counsel: Derek L. Smith Fax: (416) 408-3811 -for the plaintiffs, Monika Laski, Wayne Laski, Martin Laski, Carolyn Laski and Thor Alexander Laski

Eric S. Baum Fax: (416) 966-9325 -for the defendant, Dr. Victor Moncarz

Reasons For Endorsement

I. Background

[1] This is a motion by the plaintiffs Monika Laski, Wayne Laski, Martin Laski, Carolyn Laski and Thor Alexander Laski seeking leave to amend their Statement of Claim pursuant to Rule 26.01 of the Rules of Civil Procedure.

[2] This is a dental malpractice action arising from surgical procedures and follow-up care provided to Monika Laski (“Monika”) by the defendant Dr. Victor Moncarz, an oral and maxillofacial surgeon. On or about October 3, 2011, Dr. Moncarz performed a surgical procedure on Monika which involved the removal of two lower implants and a bone graft. At a follow-up appointment on or about November 8, 2011, Dr. Moncarz noted significant swelling and granulation in the tissue at the operation site and on November 10, 2011 performed a second surgical procedure to treat post-operative infection.

[3] Monika’s condition deteriorated and on November 24, 2011 she was admitted to hospital and diagnosed with a chronic suppurative osteomyelitis of the anterior mandible with an acute exacerbation. She was treated with intra venous antibiotics for approximately 5 months.

[4] In their Statement of Claim dated July 26, 2013, the plaintiffs allege that Dr. Moncarz was negligent and did not provide the appropriate standard of care before, during and after the procedure. Monika claims general and special damages in the amount of $450,000 and the other plaintiffs claim $100,000 each pursuant to the Family Law Act (Ontario).

[5] The defendant denies all liability and damages pursuant to his Statement of Defence dated November 26, 2014.

[6] On December 17, 2015, the defendant served an expert report from Dr. Marshall Freilich, an Ontario oral and maxillofacial surgeon dated December 14, 2015. In his report, it is Dr. Freilich’s opinion that Dr. Moncarz’s treatment of Monika met the standard of care and did not cause her alleged injuries.

[7] In or about September 2015, the defendant brought a summary judgment motion. Pursuant to the Endorsement of the Justice Firestone dated March 18, 2016, the summary judgment motion was scheduled for July 11, 2016. This motion was adjourned to October 11, 2016 pursuant to the Endorsement of Justice McEwan dated July 5, 2016 in order to permit the plaintiffs to obtain an expert report. The plaintiffs undertook to provide an expert report by July 25, 2016 but did not do so until September 26, 2016, when they served an expert report from Dr. Mislav Pavelic, a general dentist.

[8] The defendant took the position that Dr. Pavelic was not qualified to opine on the standard of care provided by an oral and maxillofacial surgeon. Pursuant to the Endorsement of Justice McEwan dated October 7, 2016, the defendant’s summary judgment motion was adjourned on consent to January 17, 2017.

[9] On November 17 and December 22, 2016, the defendant served rebuttal reports from Dr. Freilich to Dr. Pavelic’s report. On January 11, 2017, the plaintiffs served an expert report from Dr. Kevin Lung, an oral and maxillofacial surgeon licensed to practice in Alberta. The defendant takes the position that Dr. Lung is not qualified to opine on the standard of care of an oral and maxillofacial surgeon practicing in Ontario.

[10] On January 17, 2017, in order to provide time for the defendant to respond to Dr. Lung’s report, the summary judgment motion was adjourned by Madam Justice Matheson to Civil Practice Court on March 7, 2017. The summary judgment motion has since been withdrawn.

[11] As a result of Dr. Lung’s report, the plaintiffs seek leave to amend their Statement of Claim. The proposed amendments include the addition of 7 new subparagraphs under existing paragraph 13 which states:

“13. The Plaintiffs state that the incompetent medical management and damages noted herein were caused by or contributed to by the negligence, breach of duty, and breach of contract of the Defendant. The particulars of such negligence, breach of duty, and breach of contract are as follows:”.

[12] The above preamble is followed by existing paragraphs 13(a)-(i) which purport to set out particulars of the defendant’s alleged negligence, breach of duty and breach of contract.

[13] The proposed new paragraphs 13(j)-(p) are preceded by a proposed new sentence which states: “Further particulars of said Defendant’s negligence, breach of duty and breach of contract, include the following:”. In summary, the proposed new subparagraphs allege the following:

(i) the defendant did not create or maintain appropriate patient records including failing to diagnose changes to the anterior mandible alveolar and basal bone (para. 13(j));

(ii) the defendant did not appreciate that Monika presented a significantly compromised unique complex medical dental situation, was predisposed to a fractured mandible and did not follow appropriate procedures as a result (para. 13(k));

(iii) the defendant did not complete the proper pre-operative documentation (para. 13(l));

(iv) the defendant did not appreciate that there was no evidence to support the need for an immediate and simultaneous regenerative procedure and did not obtain bone and tissue specimens (para. 13(m));

(v) the defendant required a more specific antibiotic regimen to be provided (para. 13(n));

(vi) there was no evidence of specific post-operative instructions following the surgical care of Monika’s complex case such that there should not have been a dental load on the mobile graft and there should have been no insertion of the denture (13(o));

(vii) the defendant did not provide sufficient post-surgical care, including advising that she should not smoke and not wear a denture (13(p)).

[14] There is an additional proposed paragraph, 13-A which attempts to explain that the proposed paragraphs 13(j)-(p) are further particularizations noted in other paragraphs of the Statement of Claim and how they were discovered.

[15] The plaintiffs submit that the proposed amendments are tenable, provide particulars of causes of action already pleaded, do not constitute new causes of action and the defendant would not suffer any prejudice which could not be compensated for in costs. The defendant submits that that these are material amendments which constitute new causes of action which are outside the limitations period set out in the Limitations Act (Ontario) and that the plaintiff cannot rebut the presumption of prejudice which arises in these circumstances.

II. The Law and Analysis

[16] Rule 26.01 of the Rules of Civil Procedure provides that on a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[17] Both counsel rely on the general principles set out at paragraph 16 of Rayner v. McManus, 2016 ONSC 422:

“As for the restriction on granting leave to amend a claim, when doing so would allow the plaintiff to avoid an otherwise applicable limitation period:

∙ While the onus of proving prejudice normally is on the party resisting the proposed amendment, the situation is different in cases where a proposed amendment asserts a new cause of action after an applicable limitation period appears to have expired. In such cases, an inference of incompensible prejudice may be drawn, the onus shifts, and the party seeking the amendment must displace the presumption of prejudice; e.g., by demonstrating that discoverability is in issue.

∙ A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded, and no new facts are relied upon, amount simply to different legal conclusions drawn from the same set of facts, and/or simply provide particulars of an allegation already pled, or additional facts upon which the original right of action is based.” [references omitted]

[18] The issue of whether or not a proposed amendment to a pleading constitutes a new cause of action was recently canvassed by the Divisional Court in Farmers Oil and Gas Inc. v. Ontario (Ministry of Natural Resources), 2016 ONSC 6359. In Farmers Oil, Nordheimer J. endorsed the broader, factually-oriented approach adopted by Lauwers J. at paragraph 25 of Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg Producers, 2011 ONSC 6146:

“ I find that the broader, factually-oriented approach to the meaning of "cause of action" in interpreting and applying rule 26.01 is the correct approach. It is consistent with the trend of the cases and is also consistent with a purposive approach to the interpretation of limitations legislation. This means that the defendant's basic entitlement is to have notice of the factual matrix out of which the claim for relief arises. In my view the existing set of pleadings raises the factual matrix of concern to the plaintiffs and within which the defendants' possible liability is to be located. The proposed Fresh Statement of Claim simply reframes those allegations of fact.”

[19] Nordheimer J. distinguished the approach in Sweda from one which views a cause of action “simply as the legal basis upon which the claims for relief is based” (Farmers Oil, para. 14) an approach which was used in Fuda v. Jim McIntosh Petroleum Engineering Ltd., 2013 ONSC 2122, aff’d 2013 ONCA 378 and a related line of cases. In Fuda, the Court of Appeal affirmed the motion Judge’s decision denying proposed amendments where misrepresentation claims asserted after the expiry of the limitation period advanced new causes of action that were unconnected to the factual matrix pleaded in the original statement of claim.

[20] In summarizing the approach from Sweda, Nordheimer J. states at paragraphs 22 and 31 of Farmers Oil:

“[22] As may be obvious from the above, the distinction between the authorities relied upon by the appellant, and those relied upon by the respondent, turns on whether the proposed amendments do, or do not, arise out of the same facts, or the factual matrix, that was pleaded in the original statement of claim. If they do, then the amendments should be permitted. If they do not, and the limitations period has expired, then the amendments should be refused.

[31] In the end result, the requirement to read a pleading generously, and the concomitant requirement to allow amendments unless they will inflict non-compensable prejudice, means that the presumption is that any amendment, that can reasonably be seen as falling within the four corners of the existing claim, ought to be permitted. In that regard, I agree with the sentiment [page399] expressed by Master Short in Brand Name Marketing Inc. v. Rogers Communications Inc., 2010 ONSC 2892 at para. 84:

I believe that equity dictates that if a defendant knows that the "finger of litigation" is pointing in its direction, and an action is commenced on a timely basis based on specific actions, this court ought to take appropriate steps to ensure that the true lis between the parties is addressed, rather than permitting one party to perhaps escape its possible liability by relying upon a technical Limitations Act defence.”

[21] As in Farmers Oil, I start with a generous reading of the original Statement of Claim with due allowance for drafting deficiencies (see Farmers Oil, para. 23). In this regard, the plaintiffs’ original claim arises out of the surgical procedure performed by Dr. Moncarz on or about October 3, 2011 and his care and management of Monika and her circumstances before, during and after this surgical procedure including the overall procedure and follow-up appointments and the additional surgical procedure for post-operative infection on November 11, 2011 leading to her hospitalization and subsequent care.

[22] In my view, the facts alleged in proposed paragraphs 13(j)-13(p) arise out of the same factual matrix as the original Statement of Claim and therefore fall into the Sweda approach adopted in Farmers Oil. The proposed amendments provide the type of particulars which are part and parcel of and integral to the surgical procedures and the care and management of Monika by Dr. Moncarz before, during and after the first surgical procedure on October 3, 2011. The proposed amendments are factually intertwined with the existing allegations, do not allege any new and distinct claims unrelated to the original claim, do not advance any “new theory of liability” as the defendant alleges and can reasonably be viewed as falling within the four corners of the existing Statement of Claim. I will address each proposed amendment in turn.

[23] In proposed paragraph 13(j), the plaintiffs allege that the defendant did not create or maintain appropriate patient records including failing to diagnose changes to the anterior mandible alveolar and basal bone. In proposed paragraph 13(k), the plaintiffs allege that the defendant did not appreciate that Monika presented a significantly compromised unique complex medical dental situation, was predisposed to a fractured mandible and did not follow appropriate procedures as a result and in paragraph 13(l) and that the defendant did not complete the proper pre-operative documentation. In proposed paragraph 13(m), the plaintiffs allege that the defendant did not appreciate that there was no evidence to support the need for an immediate and simultaneous regenerative procedure and did not obtain bone and tissue specimens.

[24] The factual basis and foundation for all 4 of these proposed paragraphs is set out in the following paragraphs:

i.) paras. 6, 7 and 8 (the details of the procedures, treatments, follow-up care and complications);

ii.) para. 9 (“inaccurate medical management of the Plaintiff’s circumstances”);

iii.) para. 10 (“inappropriate to use the procedure in question”);

iv.) para. 11 (“inaccurate medical management of her circumstances both throughout the procedures and treatment, and afterward. Complications have arisen since said procedures and treatment, as well as the various prescribed medications”);

v.) para. 13 (“incompetent medical management”);

vi.) para. 13(b)(“knew or ought to have known that such treatment and medications posed an unreasonable or unacceptable risk of damage”);

vii.) para. 13(c)(“administered treatment and medications on the Plaintiff in an incompetent or unskilled manner”);

viii.) para. 13(d)(“the treatment and medications were incomplete and/or improperly administered and further failed to take the necessary, or any steps, to remedy the situation”); and

ix.) para. 13(i)(“incompetent in the medical management of the Plaintiff, with respect to treatment and the administration of prescribed medications all of the circumstances, and completed said medical management in an inappropriate fashion”).

[25] Counsel for the defendant takes particular issue with the proposed amendments related to patient records and bone and tissue samples. Counsel submits that the allegations regarding patient records should not be allowed because there is no mention of records in the original Statement of Claim and they constitute a separate cause of action. Counsel further submits that although there is a reference to tissue samples in the Statement of Defence, this is with respect to post-surgery samples and the proposed amendment refers to pre-surgery samples.

[26] In my view, on a generous reading of the existing Statement of Claim, the amendments with respect to patient records and bone and tissue samples are connected to the existing factual matrix related to the alleged inaccurate and incompetent medical management of Monika’s care before, during and after the original surgical procedure. There is no requirement that the actual phrase “records” appear in the existing pleading and what is pleaded in the Statement of Defence regarding tissue and bone samples is not relevant to the Sweda approach set out above.

[27] With respect to proposed paragraph 13(n), the plaintiffs allege that the defendant required a more specific antibiotic regimen to be provided. The factual matrix for this amendment is set out at existing paragraphs 11, 13(b), 13(c), 13(d) and 13(i) all of which refer to medications administered by Dr. Moncarz, in addition to paragraph 8 which refers to the IV antibiotics prescribed to Monika during and after her admission to hospital.

[28] With respect to proposed paragraph 13(o), the plaintiffs allege that there was no evidence of specific post-operative instructions following the surgical care of Monika’s complex case such that there should not have been a dental load on the mobile graft and there should have been no insertion of the denture. In proposed paragraph 13(p), it is alleged that the defendant did not provide sufficient post-surgical care, including advising Monika that she should not smoke and not wear a denture. In my view, the factual matrix for these allegations is set out at existing paragraph 11 which refers to inaccurate medical management of Monika “both throughout the procedures and treatment, and afterwards” and the facts in paragraphs 7-9 which refer to her post-operative care.

[29] In opposing the amendments, counsel for the defendant relied on Thompson v. Zeldin where Master Glustein (as he then was) stated that a proposed amendment is not related to an existing claim simply because both claims arise from the same surgery. However, my conclusions with respect to paragraphs 13(j)-13(p) are not contrary to the principle set out in Thompson given that these conclusions are not based not on the simple fact that the proposed amendments arise from the same surgical procedures. Rather, my conclusions are based on my finding that the amendments arise from the same factual matrix as the original pleading. The court’s disposition in Thompson is also distinguishable given that, unlike in the present case, the proposed amendments were with respect to pleading informed consent, which constitutes a separate cause of action.

[30] Counsel for the defendant also stated numerous times that the defendant’s position that Dr. Lung is not qualified to opine on the care provided by an Ontario oral surgeon is relevant to whether or not the proposed amendments are tenable. Specifically, since the amendments are based on a report provided by an Alberta expert, and the defendants submit that this renders the expert unqualified, the amendments are not tenable. Quite apart from the substantial leap in logic that drawing this conclusion requires, it is not relevant to the broad, factually-oriented approach endorsed in Farmers Oil. This is an issue which could be advanced in a reply expert report and on cross-examination of Dr. Lung.

[31] I am also satisfied that there is no evidence that the defendant will suffer any prejudice which could not be compensated for in costs if the proposed amendments are allowed and that any presumption of prejudice has been rebutted by the plaintiffs. Discoveries have not been conducted and the defendant can amend his Statement of Defence with the plaintiffs’ consent or seek leave to do so or serve rebuttal reports. This provides the defendant with ample opportunities to respond to, discover and probe the allegations set out in the proposed amendments prior to trial.

[32] I further reject the submission of defendant’s counsel that the delays caused by the adjournments to the defendant’s now withdrawn summary judgment motion, which were in turn necessitated by the plaintiffs’ obtaining expert reports, are relevant to my consideration of prejudice. Any issues with respect to these delays were considered by the Judges who granted the adjournments. Specifically, in her Endorsement dated January 17, 2017, Justice Matheson noted that having heard arguments on costs thrown away, she concluded that it was appropriate that the issue be addressed by the Judge hearing the summary judgment motion.

[33] Having given the existing Statement of Claim a generous reading, concluded that the proposed amendments arise out of the same factual matrix, found that there is no prejudice which could not be compensated for in costs and considered all of the circumstances and factors above, I conclude that the proposed amendments in paragraphs 13(j)-13(p) should be allowed. As set out in the case law cited above, the defendant has received its basic entitlement to receive notice of the factual matrix of the claim asserted by the plaintiff in an action commenced on a timely basis. Accordingly, the plaintiffs’ motion with respect to proposed paragraphs 13(j)-13(p) is granted.

[34] With respect to proposed paragraph 13-A, in my view, this is not an appropriate amendment to the Statement of Claim. This proposed paragraph explains that the previous amendments are further particularizations of allegations noted in previous existing paragraphs and that Monika was not in a position to plead “with this level of particularlity until she received an expert’s medical report, on or about January 8, 2017”. The final sentence of this proposed paragraph states rather awkwardly that with respect to “this specific discoverability”, the plaintiffs note that the defendant’s expert indicated that the defendant’s treatment met the standard of care.

[35] In my view, the proposed paragraph 13-A is contrary to Rule 25.06(1) of the Rules of Civil Procedure which prohibits the pleading of evidence. Proposed paragraph 13-A appears to be an effort to further advance the plaintiffs’ arguments on this motion using the evidence from the affidavit of Lorraine Whaley sworn April 27, 2017 filed in support of this motion. The fact that this paragraph is almost entirely comprised of evidence from Ms. Whaley’s affidavit further supports the conclusion that this paragraph is contrary to Rule 25.06(1) and should not be allowed. The plaintiffs’ motion with respect to proposed paragraph 13-A is denied.

III. Disposition

[36] Order to go as follows:

i.) The plaintiffs are granted leave to amend their Statement of Claim to add proposed paragraphs 13(j)-13(p);

ii.) The plaintiffs’ motion seeking leave to amend their Statement of Claim to add proposed paragraph 13-A is denied.

[37] Counsel have exchanged costs outlines. If the parties are unable to agree on the costs of this motion, they may file costs outlines and written costs submissions not to exceed 2 pages (excluding costs outlines) with me through the Masters Administration Office on or before June 30, 2017.

Released: May 30, 2017

Master M.P. McGraw