COURT FILE NO.: CV-16-68530 DATE: 2020/04/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Patrick Harbord Plaintiff

– and –

Pierre Dupont and Dupont Chiropody Professional Corporation and College of Chiropodists of Ontario Defendants

Counsel: David Cutler and Janel UnRuh, for the Plaintiff All Defendants, Self-represented

HEARD: December 2, 2019 at Ottawa

REASONS FOR JUDGMENT

Kershman J.

Introduction

[1] The Plaintiff brings this action for negligence, breach of fiduciary duty, and other claims against the Defendants Pierre Dupont and Dupont Chiropody Professional Corporation.

Orders Made at the Commencement of Trial

[2] Neither of the Defendants, Pierre Dupont nor Dupont Chiropody Professional Corporation attended trial, notwithstanding that they were aware of the trial dates. These parties were paged at 9:55 a.m. and again at 10:28 a.m. and no one appeared.

[3] The following orders were made at the commencement of trial:

1. The trial would proceed without the Defendants being present, in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 52.01(2)(a). The Court is satisfied that the Defendants both knew that the trial would be held on December 2, 2019, and neither appeared;
2. The Court also ordered that the pleadings of the Defendant, Pierre Dupont, as well as the Defendant corporation’s pleadings, be struck pursuant to rule 52.01(2)(d) of the Rules of Civil Procedure; and
3. The Court dismissed the action against the Defendant, Dupont Chiropody Property Professional Corporation, in accordance with rule 23.01(b) of the Rules of Civil Procedure.

Factual Background

[4] The Plaintiff was born on August 9, 1947, in Sussex, England. He retired from NAV Canada in 2011.

[5] In the early summer of 2014, he began feeling pain in the big toe of his right foot. In July 2014, he saw his family doctor, Dr. Abbud, who referred him to a podiatrist.

[6] The Plaintiff initially met with Pierre Dupont (“Defendant”), a podiatrist, on August 12, 2014 and spoke for approximately 30 minutes, at which time Mr. Dupont described the benefits of HyProCure, a titanium foot implant or stent. He said that this procedure would change the Plaintiff’s life and prevent further problems with his feet. The Plaintiff said that the surgery was described as a unique procedure that raised the arch of the ankle and eliminated any future problems.

[7] The Plaintiff testified that the Defendant told him that his feet were misaligned. The Plaintiff was given two articles, respectively entitled “The Hidden Dangers of Walking or Running with Misaligned Feet” and “Painful Over Pronating Feet? Free Yourself From Orthotics”, which he read.

[8] The Plaintiff testified that he was offered no alternative treatment and that he was not referred to any other health care professional. The Plaintiff was measured for orthotics, which were to be worn after the treatment to assist with the healing process.

[9] Based on the discussions with Mr. Dupont, the Plaintiff agreed to have the treatment on both feet. He was advised that there would be a hiatus of three to four weeks between each surgery.

[10] The Plaintiff testified that he had informed himself of the procedure and did not discuss the risks with the Defendant. He said he had a good understanding of the risks of the procedure.

[11] Prior to the first surgery, the Plaintiff paid a deposit and his feet were measured for orthotics. The first stent surgery was performed by Mr. Dupont on the Plaintiff’s right foot on August 21, 2014.

[12] The Plaintiff testified that he based his decision to proceed with the surgeries more so on discussions with the Defendant than anything else. There was no conversation about what would happen if things went badly. The Plaintiff said that the pin used in the surgery was not approved by Health Canada.

[13] A second stent surgery, this time on the left foot, was performed by Mr. Dupont approximately 16 days later, on September 5, 2014.

[14] In the fall of 2014, the Plaintiff received follow-up care from Mr. Dupont and the Ottawa Foot Practice.

[15] The Plaintiff spent the winter of 2014 in Florida and attended his final appointment with Mr. Dupont on August 26, 2015.

[16] In September 2015, the Plaintiff obtained work as a school bus driver. He worked for one day. He decided that he was not able to drive children safely based on the amount of medication he was taking for the pain in his feet.

[17] The Plaintiff spent the winter of 2015 and 2016 in Florida.

[18] On April 4, 2016, the Plaintiff reviewed media coverage concerning Mr. Dupont and his troubling history.

[19] On May 2, 2016, the Plaintiff saw media coverage concerning unapproved stents implanted in patients’ feet. The Plaintiff became upset and had a consultation with another podiatrist, Mr. Acharaya, on May 17, 2016. The Plaintiff complained of a stinging pain in his right foot. He was given new orthotics and went to physiotherapy.

[20] The Plaintiff’s original family physician was no longer in practice. That practice was taken over by Dr. Khan, who referred the Plaintiff to Dr. Di Silvestro, an orthopedic surgeon, on June 22, 2016.

[21] On August 11, 2016, the Plaintiff met with Dr. Di Silvestro, who recommended the removal of the stent in the right foot and that nothing be done to the left foot.

[22] Dr. Di Silvestro performed stent removal surgery on the Plaintiff’s right foot on January 6, 2017. Dr. Di Silvestro found that the stent was clearly loose and that the tissue around the stent was quite inflamed. The stent was removed, and the wound was closed.

[23] Between January and March 2017, the Plaintiff had follow-up consultations with the Doctor. Ten weeks post-surgery, the foot was fully healed and there was no more jabbing pain.

[24] In the fall of 2017, the Plaintiff attended several physiotherapy sessions. The right foot seemed to have healed well. The Plaintiff said that he had little or no problems with his right foot except for some pain in his big toe.

[25] In relation to the left foot, the Plaintiff said he had numbness in his toes the odd time and that the numbness would wake him up. The left stent remains in place.

Issues

[26] The issues are as follows:

1. In the course of providing professional chiropody/podiatry services to the Plaintiff in August and September 2014, was Pierre Dupont negligent, did he make errors, and did he engage in wrongful acts or omissions in relation to the installation of the stents?
2. Was the Plaintiff harmed and did he suffer losses as a result of Mr. Dupont’s negligence, errors, and wrongful acts and omissions?
3. Is the Plaintiff entitled to award of compensatory damages against Mr. Dupont with respect to that negligence, those errors, and those wrongful acts and omissions?

Law of Negligence

i. Duties of Care Generally

[27] For there to be a cause of action in negligence, the Plaintiff must establish the following elements:

• a duty of care owing by one party to another;
• a breach of this duty by acts or omissions of the Defendant;
• harm suffered by the aggrieved party as a result of the breach;
• proximate cause between the breach and the harm suffered;
• that the defendant is unable to avail itself of defences releasing them from liability (since the Defendant did not appear at trial, he did not put forward any defences); and
• that the aggrieved party’s harm can be compensated for by an award of damages.

(see Linden and Feldthusen, Canadian Tort Law, 10th ed. (2015), at §4.7.)

[28] As the Supreme Court of Canada noted in Odhavji Estate v. Woodhouse, 2003 SCC 69, 233 D.L.R. (4th) 193, at para. 45, the following is true of duties of care:

It is a well-established principle that a defendant is not liable in negligence unless the law exacts an obligation in the circumstances to take reasonable care. As Lord Esher concluded in Le Livre v. Gould, [1893] 1 Q.B. 491 (Eng. C.A.), at p. 497, “[a] man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.” Duty may therefore be defined as an obligation, recognised by law, to take reasonable care to avoid conduct that entails an unreasonable risk of harm to others.

[29] Duties of care also have an element of foreseeability. As noted in the seminal case of Donoghue v. Stevenson, a duty is owed to one’s neighbour; in other words, “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”: 1932 A.C. 562 at p. 580.

[30] In Canada, the existence of a duty of care is determined via the Anns test, as restated in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537. The full test is not required, however, if the case at hand falls into an analogous category of relationship that has previously been recognized.

ii. Standards of Care in Particular

[31] There is an established standard of care applicable to all medical practitioners, described by the Ontario Court of Appeal as follows:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

(Crits v. Sylvester (1956), 1 D.L.R. (2d) 502 (Ont. C.A.), at para. 13, aff’d 1956 S.C.R. 991, 5 D.L.R. (2d) 601)

[32] This standard of care and those analogous to it have been held to apply not only to medical professionals within the strict sense of the word, but also in medical negligence cases involving medical practitioners licensed by other professional bodies and who are not licensed to practice medicine: see e.g. Loffler v. Cosman, 2010 ABQB 177, paras. 61-68 (chiropractors); Wiebe v. Fraser Health Authority, 2018 BCSC 1710, at paras. 104-110 (nurses). Podiatrists in particular have been held to be subject to the standard of care of a reasonable practitioner within their profession: see Lynn v. Shepherd, 1992 CarswellBC 2143, at para. 28.

[33] Standards of care are measured against existing knowledge in the medical profession at the time of the alleged negligence: see ter Neuzen v. Korn, 1995 SCC 72, [1995] 3 S.C.R. 674, at para. 47.

[34] These standards are also measured against practitioners in similar communities in similar circumstances. Here, the practitioner’s access to equipment and medical facilities is an important consideration. The skill of the rural physician will not be measured by the same standards as the urban physician who has better resources and opportunities available to them: see e.g. Rodych v. Krasey (1971), 1971 CarswellMan 40 (Man. Q.B.). Thus, practitioners located in proximity of large urban centers may be more likely to be found negligent in using obsolete procedures.

[35] Standards of care can also be heightened where the professional makes themselves out to be an expert: see Crits v. Sylvester, at p. 508.

[36] The degree of care required is commensurate to the amount of danger involved in the procedure. The higher the risk involved, such as with experimental surgeries, the higher the degree of care warranted: see e.g. Archibald v. Kuntz, 1994 CarswellBC 2408 (B.C. S.C.).

[37] In terms of diagnosing issues, the duty incumbent upon medical professionals had been described as follows:

[The] duty to diagnose requires doctors to take a full history, use appropriate tests and consult or refer if necessary. They must take reasonable care to detect signs and symptoms and formulate a diagnosis using good judgment. They cannot act only on what they are told, nor ignore what they are told. Sophisticated tests and continuing knowledge of disease must be employed when appropriate. A doctor’s skill and judgment must be in step with his colleagues but need not be in advance of theirs and if this standard of care is met in the circumstances the doctor will not be held liable to a patient injured by a misdiagnosis. As with all errors of clinical judgment, a misdiagnosis is not necessarily negligent.

(Remedies in Tort (Canada: Thomson Reuters, 2020), at para. §148.1)

[38] As this concerns both the decision to operate and the operation procedure itself, the surgeon must exercise reasonable care throughout: see Finlay v. Hess (1973), 3 O.R. (2d) 91 (H.C.). Notably, a surgeon must ensure patients fully appreciate the special risks involved in the proposed procedure: Reibl v. Hughes, 1980 SCC 23, [1980] 2 S.C.R. 880, at para. 4. This duty is legislated in section 11 of the Health Care Consent Act, 1996, S.O. 1996 c. 2, Sch. A, which confirms a physician’s duty to outline the risks and benefits of a given treatment, and the right of the patient to be informed of alternatives in order to allow the patient to choose the best alternative for them.

[39] A sub-facet of informed consent is the duty of disclosure. As noted in Solomon v. Ali, 2018 ONSC 3287, “[a] physician has a duty to disclose the nature, gravity, and material risks of the treatment, and answer any questions posed by the patient about these risks.”: para. 131. This duty also includes informing the patient of alternative treatments that are available.

iii. Causation

[40] As to causation, the Supreme Court has laid out test in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8-9, as follows:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

The “but for” causation test must be applied in a robust common-sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.

[41] In medical negligence cases, however, proof of causation generally requires expert evidence, as noted in Kram v. Oestreicher, 2018 ONSC 3813, at para. 53:

With few exceptions, in medical negligence cases, issues regarding the expected standard of care, requirements of informed consent, and causation generally require expert evidence. This is particularly the case in considering issues relating to the standard of care applicable to physicians. The reason for this is that courts do not have the knowledge or expertise to determine whether a physician has conducted him or herself properly in the relevant field of medicine. It is not the role of the Court to speculate about the standard of care applicable to diagnosis and treatment in the absence of expert evidence.

[42] However, while relevant, this evidence is not required as to the question of whether informed consent was given: Solomon, at paras. 120-123. It is also not required for claims of mental distress: Johnson v Cline, 2017 ONSC 3916, at para. 123; Galea v. Wal-Mart Canada Corp., 2017 ONSC 245, at para. 271.

[43] As to claims arising from a lack of informed consent in particular, the Solomon decision notes the following at paras. 127-128:

In order to succeed on an informed consent claim, a plaintiff must prove that a physician failed to meet the requirements of informed consent mandated by the College, and that this failure caused damages.

The second branch of this test, causation, involves both a subjective and objective component. First, the plaintiff must prove that he or she would not have consented to the surgery had he or she been properly informed (i.e., subjective causation). Second, the plaintiff must prove on a modified objective standard that a reasonable person in his or her shoes would not have consented to the surgery had she been properly informed.

(Citations omitted.)

[44] The decision elaborates at paras. 225-229 that, “to determine whether a physician’s failure to disclose caused damage, the Court must ask not only what the plaintiff would have done if the material risks had been disclosed, but also whether a reasonable person in the plaintiff’s position would have consented to the treatment if disclosure had properly been made.” The subjective element accounts for what the patient knew at the time but cannot include hindsight reasoning. The objective element guards against idiosyncratic reasoning.

[45] The Court finds that, while the foregoing test is applicable to medical doctors, it is also applicable in the present case to Mr. Dupont in his capacity as a podiatrist/chiropodist.

Ms. Charyk’s Report

[46] The Plaintiff retained Jana Charyk, a chiropodist who practices in Ajax, Ontario, who provided a report dated November 26, 2018, which was accepted into evidence. The Court qualified Ms. Charyk as an expert witness in accordance with Rule 53.02 of the Rules of Civil Procedure to give an expert opinion with respect to the expected standard of care in the circumstances versus the standard of care provided by Mr. Dupont.

[47] Ms. Charyk set out the observations and opinions that follow.

[48] At the present time, Ontario only has chiropodists, and no longer uses the term ‘podiatrist’.

[49] In Ms. Charyk’s opinion, the handouts that Mr. Harbord received from the Ottawa Foot Practice on August 12, 2014 are in violation of the Advertising Guidelines (“Guidelines”) as they relate to Titles and Qualifications. In her view, the handouts would contribute to making it more difficult for patients to understand the proposed treatment plan. The Guidelines state that the College (of Chiropodists of Ontario) “does not recognize any specialty areas within chiropody and podiatry”. The Guidelines go on to say that members should refrain from using terms such as “certified”, “expert”, and other such descriptive terms. Several of the documents Mr. Harbord received during this initial visit list Mr. Dupont as a “Master HyProCure Foot Implant Surgeon”, in violation of the Guidelines and which may negatively impact a patient’s decision.

[50] Ms. Charyk’s opinion is that chiropodists and podiatrists may not use the title “doctor” in any advertisement or instruction material provided, as laid out in the Guidelines. Members of the College of Chiropodists of Ontario are responsible to avoid use of this title in any context, from marketing to administration: see Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s.33(1). It is evident in the charted notes that the staff at the Ottawa Foot Practice referred to Mr. Dupont as Dr. D (see clinical notes from 09/18/14, 09/24/14, and 10/02/14). It is also referenced in the Mr. Dupont’s questioning that the title “doctor” is used orally within the office and in front of patients such as Mr. Harbord (see Q.245 of his Examination for Discovery dated November 29, 2017). This misuse of the title “doctor” can be confusing and misleading to the general public and can negatively impact a patient’s ability to differentiate between a chiropodist and a medical doctor. An example of this is displayed on the Ottawa Foot Practice intake form, which is titled “Doctors of Podiatric Medicine”. This can lead a patient to believe that that the practitioner they are being treated by is a medical doctor.

[51] Ms. Charyk did not feel that surgical intervention was required in this case, in either foot. The Guidelines for the “Subtalar Joint Arthroereisis Procedure for Chiropodists and Podiatrist” state that “non-surgical treatment for Flexible Flatfoot may include activity modifications, footwear modifications, orthoses, and physical therapy”. It goes on to state that surgical intervention “may be considered when non-surgical treatment options have been ineffective at improving symptoms or foot function”. If orthotic therapy was given the time to properly function, or physical therapy was performed, even if Mr. Harbord was instructed to ice his painful toe or had taping applied to it to stabilize the joint, an invasive procedure such as the stent implant would typically only be considered after such conservative methods had failed. Mr. Harbord had no symptoms in any area of his left foot when he sought out Mr. Dupont’s care. There does not seem to be any logical reason why a surgical implant was necessary to treat his asymptomatic foot. Furthermore, the implant procedure on the left foot was done only two weeks following the procedure on the right foot. It is clearly stated in the handouts provided by Mr. Dupont that the procedure “is performed one foot at a time, 3 to 4 weeks apart, for a faster recovery and to lesson potential complications”.

[52] Ms. Charyk said that Mr. Harbord had lived his whole life free from symptoms related to his congenital flat feet. He sought a foot specialist for the acute pain he was experiencing in the big toe of his right foot. He had no pain in his left foot.

[53] The Plaintiff’s only acute symptom at the time was his recent right-toe pain, which may have been unrelated to his flat feet. It was apparently of long standing and asymptomatic. He was drawn to Mr. Dupont’s office from an online search where he saw that Mr. Dupont could “cure flat feet”. The first appointment at the Ottawa Foot Practice was approximately 45 minutes in duration, 30 of which were spent with Mr. Dupont. During this time, a treatment plan was set that included scanning and evaluation for custom prescription orthotics, laser treatments, and surgical intervention of both feet. It was in this same initial visit with Mr. Dupont that Mr. Harbord was evaluated and scanned for orthotics, given numerous handouts to review regarding the surgical procedure, and consented to this promise of a cure for his asymptomatic flat feet.

[54] In Ms. Charyk’s opinion, the documents and recommendations that were provided to Mr. Harbord during his first visit with Mr. Dupont did not comply with the applicable standards of care. They therefore could have altered Mr. Harbord’s consent, as his consent was not properly informed. Had the information provided by Mr. Dupont, both orally and written, offered alternative courses of action in treating Mr. Harbord’s painful toe, he would have known all of the viable options available to him as it related to his symptoms. The standard of care would have been to provide Mr. Harbord with all viable options for conservative treatment as it related to care for the pain he was experiencing in his right big toe so that he would be presented with all the options. This would have allowed his consent to be properly informed. Moreover, had the handouts properly represented Mr. Dupont, without improper use of the title Doctor or the use of terms such as “expert”, they likely would have eliminated any confusion as to Mr. Dupont’s qualifications. Furthermore, the promises of a “cure” and the threat of Mr. Harbord’s condition worsening with time, along with the information set out in the documentation that Mr. Harbord received on his first visit, could have swayed his view of the treatment plan.

[55] After reviewing this information, Ms. Charyk opined that Mr. Dupont failed to uphold the relevant standard of care provided to Mr. Harbord. The standard of care would be to provide options and employ conservative measures before surgery. Ms. Charyk believed that, had Mr. Dupont’s approach been a more conservative and less invasive, Mr. Harbord would not have the chronic foot pain that he is currently living with. Had a more conservative approach been taken from the initial assessment, it is her belief that it is more probable than not that Mr. Harbord’s pain in his right big toe would have been successfully relieved, thus eliminating the need for further invasive procedures and expenses. Had Mr. Harbord been provided with chiropodial care that met the relevant standards of care, it is more probable than not that he would have opted not to undergo surgery, and his current foot condition would not have resulted.

[56] The Court accepts the evidence of Ms. Charyk and finds that the treatment provided to Mr. Harbord by Mr. Dupont fell below the standard of care expected of a chiropodist/podiatrist in similar circumstances.

Dr. Gordon’s Report

[57] The Plaintiff was assessed by Dr. Gordon, an orthopedic surgeon, on December 12, 2018, who then prepared a report dated December 12, 2018, which was accepted into evidence.

[58] The Court qualified Doctor Gordon as an expert witness in accordance with Rule 53.02 of the Rules of Civil Procedure.

[59] In his report, Dr. Gordon set out the following observations and opinions:

1. He is 71 years of age, in generally good health, and looking forward to an active retirement.
2. He had no other significant medical issues pertaining to his feet or other muscular skeletal problems.
3. On clinical examination, Mr. Harbord walks with an obvious antalgic gait on the right side. His right foot is also out turned with an abducted forefoot and a complete collapse of his medial arch. His heel is in significant valgus when he walks.
4. X-rays taken on December 12, 2018 showed a complete collapse of the mid foot on the right side. There is a lesser deformity on the left. The metal stent for the right foot had been removed by Dr. Di Silvestro. There is no evidence for any infective process going on in the mid foot. There is mid foot arthritic change present on the right side in the talonavicular joint particularly.
5. On the left side, the stent is still in place. There is no obvious arthritic change on the left and there is a lesser degree of mid foot collapse.
6. X-rays also show the forefoot abduction on the right side and a neutrally aligned left.
7. It was Dr. Gordon’s opinion that Mr. Harbord had a complete right mid foot collapse, which has resulted in a healed mid foot and forefoot deformity of his right foot.
8. Mr. Harbord has had a mild pes planus, which was almost asymptomatic, when he first went to investigate his condition with Mr. Dupont.
9. Without any attempt to treat this in a conservative fashion, surgery was immediately recommended and performed. Fortunately, on the left foot, this did not lead to any significant deterioration of the condition.
10. Unfortunately, on the right side, this was not the case.
11. The stent was both radiologically and, by surgical description, loose on the right side. This resulted in significant pain and discomfort in the right foot immediately post-op and persisting. This would almost certainly lead to a fair amount of inflammatory change in the subtalar joint, which likely has been the cause for the progressive mid foot collapse, forefoot abduction, forefoot pronation and heel valgus.
12. Mr. Harbord was left with a significant right foot disability as a result of surgery performed on his right foot, which was not adequately followed up with and treated by Mr. Dupont.
13. In Doctor Gordon’s opinion, Mr. Harbord has had his active retirement lifestyle quite severely curtailed because of the disability in his right foot. He is a traveler, and anticipated in his retirement to be travelling, walking, and hiking all over the world. This has now been curtailed to a significant extent.
14. It was Dr. Gordon’s opinion that, as a direct result of the surgical intervention in August of 2014 and a failure to respond to ongoing symptoms, Mr. Harbord had suffered a long-term and significant disability with his right foot.
15. Dr. Gordon did not find that, at the time, anything other than the conservative management that he is presently following is indicated. There is the possibility of further surgical intervention with a subtalar fusion of his right foot, but, in all probability, that would not serve to improve his situation.
16. In Dr. Gordon’s opinion, Mr. Harbord will continue to suffer a right foot disability for the rest of his life. He believes that this will necessitate the use of appropriate custom fit orthotics and appropriate footwear, which he is presently wearing, together with the use of walking aids, such as a cane or walking sticks, for any walking or hiking that he might wish to do.
17. In Dr. Gordon’s opinion, there is a good probability that symptoms in his right foot might increase with time. The collapse that has occurred will almost certainly lead to a more progressive osteoarthritis in the mid foot joints of his right foot.
18. In Dr. Gordon’s opinion, the right foot dysfunction that the Plaintiff presently suffers is the result of a surgical procedure done to correct a minimally bothersome flat foot deformity. That intervention was not appropriately followed and treated when symptoms started to increase as a consequence of that surgery.
19. It was Dr. Gordon’s opinion that Mr. Harbord’s disability with his right foot will be permanent, and probably increase in the future.

[60] The Court accepts the evidence of Dr. Gordon, including his observations and opinions.

Findings

[61] Based on the evidence at trial, the Court makes the following findings:

1. In the course of providing professional chiropody/podiatry services to the Plaintiff, in August 2014 and September 2014, Pierre Dupont was negligent in his treatment of the Plaintiff’s right foot. In addition, he did not meet the standard of care in treating Mr. Harbord;
2. The Plaintiff was harmed and suffered losses as a result of the Defendant’s negligence, described above; and
3. The Plaintiff is entitled to an award of compensatory damages against the Defendant, Mr. Dupont, in respect of that negligence.

Damages

Position of the Plaintiff

[62] The Plaintiff submits that he should be awarded the following:

1. $140,000 for general non-pecuniary damages;
2. $100,000 for loss of income/competitive advantage (20,000/year for five years);
3. $5,465.96 for the subrogated claim for the Ministry of Health and Long-Term Care;
4. $8,544.10 for the repayment of monies paid to the Defendants for the surgical services (net of reimbursement from the insurance company);
5. $420.00 for net orthotic expenses paid to proMotion (net of reimbursement from the insurance company);
6. $1,260.00 for future net orthotic expenses ($420.00 x 3 times);
7. $80,795.91 for legal fees on a substantial indemnity basis together with disbursements and HST; and
8. Pre-judgment interest (August 21, 2014 to December 2, 2019 at five percent in accordance with section 128(1)(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The amount of the pre-judgment interest claimed is to be calculated by counsel.

Analysis

i. General Damages

[63] As noted in Remedies in Tort, at para. §181, the rules applicable to general damages in medical negligence are substantially similar to those for other actions in negligence: “[t]he purpose of compensation is to restore the plaintiff to his position prior to the negligent act.” In so doing, the usual principles of assessment are deployed: ibid at para. §182.

[64] In negligence cases, damages include (i) pain and suffering resulting from the injury and reasonably certain to be experienced in the future; (ii) any disability related to the injuries suffered; and (iii) the inability to enjoy the normal amenities of life: see Kania v. 1618278 Ontario Inc. c.o.b. as Heart and Crown Irish Pubs, 2015 ONSC 7042 at para. 55.

[65] As to non-pecuniary damages, the rough upper limit set by the Supreme Court of Canada should not be exceeded in medical negligence cases absent exceptional cases: see ter Neuzen v. Korn, at paras. 230-239.

[66] It should also be noted that a plaintiff cannot recover for loss of a chance to avoid injury. A claim of this nature has been specifically rejected by the Supreme Court of Canada in favour of the traditional negligence concepts: Laferrière c. Lawson, 1991 SCC 87, [1991] 1 S.C.R. 541.

[67] A comparable case to the present one is that in Koerts v. Yoneda, 1988 CarswellBC 1558, where a poorly performed surgery required further operations to fix damage caused by the first surgery and complete the procedure. The court awarded $12,000.

[68] Santos v. Traff (1999), 1999 ABQB 630, 251 A.R. 223 (Alta. Q.B.) is another case of a surgery gone wrong where there was also a lack of informed consent. The Court awarded $50,000 in general damages caused by surgical complications that required more surgeries to fix.

[69] In Solomon, $20,000 in general damages were awarded where the Court found that the plaintiff had been given insufficient information about the risks related to a wrist surgery, which resulted in his wrist being substantially damaged and required another surgery to alleviate. This prevented him from pursuing his livelihood as a golf teacher.

[70] In Kania v. 1618278 Ontario Inc. c.o.b. as Heart and Crown Irish Pubs, the Court awarded general damages in the amount of $100,000 in a slip and fall case where the plaintiff suffered a serious injury to her foot.

[71] In Daniel-Cuffy v. Pereira, [2005] O.T.C. 736 (Ont. S.C.), the Court awarded $150,000 in case involving a motor vehicle accident where the plaintiff suffered a serious and permanent impairment to her foot.

[72] As relates to general damages, the Court has found that the Plaintiff suffered a permanent, significant disability to his right foot in that he had a complete right mid foot collapse that resulted in a mid-foot and fore-foot deformity of his right foot. As a result of this disability, the Plaintiff will require custom orthotics as well as physiotherapy in the future.

[73] Based on the cases of Daniel-Cuffy and Kania, the Court assesses the Plaintiff’s general damages at $140,000.

ii. Loss of Income/Competitive Advantage

[74] The Plaintiff claims loss of income/competitive advantage of $20,000 per year for five years.

[75] In 2014, at the time of the surgery performed by Mr. Dupont, the Plaintiff was approximately 67 years of age. He had been a pilot and retired in approximately 2011.

[76] By 2014, the Plaintiff decided that he wanted to go back to work on a part-time basis. His evidence was that he spent the winter’s in the south, usually in Florida. The Plaintiff’s further evidence is that he took a part-time position as a school bus driver in September 2015, which lasted for one day. The Plaintiff said that, based on the amount of pain medication that he was taking, he did not feel safe driving a school bus.

[77] The Plaintiff seeks five years of loss of income/competitive advantage. This would mean that he would have worked from the age of approximately 67 to 73.

[78] The Court finds that working to age 73 on a part-time basis is reasonable.

[79] The Plaintiff testified that he would spend his winters in Florida. This means that he would only work at most nine months per year.

[80] On that basis, with the work only being part time, approximately 25 hours per week for nine months, the Court calculates that the Plaintiff would have earned $15,200 per year based on an income of $16 per hour.

[81] The Court finds that the Plaintiff’s loss of income/competitive advantage would be $15,200 for five years, for a total of $76,000.

iii. Subrogated Claim

[82] The Ministry of Health and Long-Term Care has submitted a subrogated claim for $5,465.96. The Court accepts the claim as made and awards this amount to the Plaintiff.

iv. Services Provided by the Defendant

[83] The Plaintiff has paid $8,544.10 for surgical services to the Defendant, net of insurance reimbursement. This amount covers both feet. The evidence is that there were minor issues with the Plaintiff’s left-foot stent.

[84] Ms. Charyk indicated in her report that the surgical intervention was not required for either foot.

[85] Therefore, the Court awards the Plaintiff the sum of $8,544.10.

v. Orthotic Expenses

[86] The Plaintiff claims $420 for orthotic expenses, and net of reimbursement by the insurance company.

[87] The Court finds that the Plaintiff shall have judgment for this amount notwithstanding that it includes a claim for the left foot. The Court finds that the reimbursement for the full amount is appropriate in the circumstances.

vi. Future Orthotic Expenses

[88] The Plaintiff claims $1,260 for future net orthotic expenses. Based on the findings of negligence and the corrective surgery, the Court finds in the circumstances that $1,260 is an appropriate amount for future orthotic expenses.

vii. Pre-Judgment Interest

[89] The Plaintiff claims pre-judgment interest from August 21, 2014 to December 2, 2019 at the rate of 5%, in accordance with sections 128(1)-(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[90] The Court finds that the Plaintiff is entitled to pre-judgment interest at the rate of 5% from August 21, 2014 to December 2, 2019. Counsel will have to calculate the amount based on the judgment granted. This can be done by way of affidavit and provided when issuing the judgment.

Costs

[91] Counsel for the Plaintiff filed a Bill of Costs claiming fees on a substantial indemnity basis of $54,456.00, plus HST of $7,079.28, and disbursements of $19,260.63, including HST. The total amount of fees and disbursements in HST on substantial indemnity basis claimed were $80,795.91.

[92] The Plaintiff claims costs on a substantial indemnity basis, citing the case of Mignelli v. Scavo, 2004 ONSC 14032. At paragraph 10, Justice J.W. Quinn says the following:

Given the nature of the conduct of Scavo and his non-attendance at trial, I think that Mrs. Mignelli is entitled to her costs on a substantial indemnity basis.

[93] The Plaintiff argues that the Defendant filed a statement of defence, went through two rounds of discoveries and mediation, and then, at the eleventh hour, backed out of the case and did not appear at trial.

[94] The matter was set for a one-week trial. The Plaintiff prepared for it as if a two-week trial was going to take place, only to find that the Defendant would not participate.

[95] Based on the decision in Mignelli, the Court finds that substantial indemnity costs should be awarded in this case. Had the Defendant not defended, this matter could have proceeded to an undefended trial at a much earlier stage, and the Plaintiff’s costs would have been far less.

[96] Looking to the relevant Rule 57.01 factors, the Court notes that the issue in this matter was important to both parties. The Plaintiff was successful at trial. The hours spent by counsel appeared to be reasonable together with the hourly rates. The Defendant lengthened the process by defending the action until the eve of trial, then did not appear to defend the action.

[97] The Court has reviewed the fees and disbursements, inclusive of HST, and finds that they are acceptable.

[98] Therefore, the Court assesses the Plaintiff’s costs at $80,795.91, inclusive of fees, disbursements, and HST. This amount is in addition to any amounts awarded previously in this judgment.

Conclusion

[99] The Plaintiff, Patrick Harbord, shall have judgment against the Defendant, Pierre Dupont, in the amounts of:

1. $140,000 for general non-pecuniary damages;
2. $76,000 for loss of income/competitive advantage ($15,200/year for five years);
3. $5,465.96 for the subrogated claim for the Ministry of Health and Long-Term Care;
4. $8,544.10 for the repayment of monies paid to the Defendants for the surgical services (net of reimbursement from the insurance company);
5. $420.00 for net orthotic expenses paid to proMotion (net of reimbursement from the insurance company);
6. $1,260.00 for future net orthotic expenses ($420.00 x 3 times);
7. $80,795.91 for legal fees on a substantial indemnity basis together with disbursements and HST; and
8. Pre-judgment interest (August 21, 2014 to December 2, 2019 at five percent in accordance with section 128(1)(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43). The amount of the pre-judgment interest is to be calculated by counsel.

[100] The Plaintiff shall also have post-judgment interest in accordance with the rates set out in the Courts of Justice Act.

[101] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: April 3, 2020