Court File and Parties

COURT FILE NO.: CV 15-378 DATE: 2020 August 5 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jaimie Heather Piatkowski and Richard Thomas Mason, Plaintiffs AND: Demetrios Drakos, Defendant

BEFORE: The Honourable R. J. Harper

COUNSEL: A. Kalamut/C. Humphrey, Counsel, for the Plaintiffs K. Beyer/M. Lambert, Counsel, for the Defendant

HEARD: June 24, 2020

Endorsement

Issues

[1] The Plaintiff Jaimie Piatkowski, now Mason, (the “Plaintiff”) brings this motion to amend her Statement of Claim dated November 24, 2015 (the “Statement of Claim”). This motion was heard by videoconferencing software on June 24, 2020.

[2] The following issues were raised by the parties and each will be addressed in turn:

(i) whether the Plaintiff, relying on Rule 26.02(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, should be permitted to amend her Statement of Claim to include punitive damages; and

(ii) whether in amending the Statement of Claim, the Plaintiff is attempting to plead a new cause of action, namely, battery, and in so doing, whether she is attempting to rely on “new” material facts 3.5 years after the limitation period would have expired for such a claim; the result being a lack of jurisdiction for this court to permit the amendments.

Background

[3] The Defendant, Demetrios Drakos, (the “Defendant”) is a medical doctor licenced to practice as a plastic surgeon in the Province of Ontario. On November 29, 2013 he performed an abdominoplasty (commonly referred to as “tummy tuck”) on the Plaintiff.

[4] On November 24, 2015, the Plaintiff commenced an action against Dr. Drakos alleging negligence in the pre, intra and post operative performance with respect to this surgical procedure.

[5] For the purposes of this motion, the material portions of the Statement of Claim are set out at para. 11 and read as follows:

Prior to the surgery on November 29, 2013, Dr. Drakos obtained Jaimie’s consent to surgery, without fully explaining the risks, possible complications and injuries that could occur during the surgical procedure. Had Jaimie been fully informed of the risks, she would not have consented to the surgical procedure.

[6] The Statement of Claim does not allege the tort of battery, nor does it make a claim for punitive or exemplary damages.

[7] In support of this motion, the Plaintiff has filed a draft Amended Statement of Claim (the “Amended Statement of Claim”). In addition to a claim for punitive damages, the relevant portions of the Amended Statement of Claim are as follows:

10. The particulars of Dr. Drakos’ negligence include but are not necessarily limited to the following: (l) he performed the surgery on Jaimie when he knew or ought to have known that given Jaimie’s medical history, the surgery was unnecessarily risky.

11. Jaimie had initially contacted Dr. Drakos to obtain a breast augmentation only. A consultation with Dr. Drakos was scheduled. During the consultation on October 22, 2013, Dr. Drakos persuaded Jaimie to also have a cosmetic abdominoplasty with adjunctive liposuction (a “tummy tuck”), which he said he could do at the same time as the breast augmentation.

12. While describing the procedure, commonly know as a “tummy tuck” to Jaimie and her husband Rich, Dr. Drakos failed to advise them that a complication often associated with this surgery was skin necrosis, which could cause severe and permanent damage to Jaimie’s skin and leave unsightly permanent scarring.

13. Dr. Drakos specifically failed to advise Jaimie that the full skin necrosis, which in fact resulted, was a well-recognized complication of abdominoplasty surgery.

14. Furthermore, Dr. Drakos failed to properly obtain a history of Jaimie’s previous surgeries, which are associated with an increased risk of skin necrosis, including gall bladder surgery, a hysterectomy and a caesarean section, all of which presented an increased risk factor in the “tummy tuck” surgery, proposed to Jaimie by Dr. Drakos.

15. Had Dr. Drakos advised Jaimie of the potential risks, particularly the skin necrosis, which in fact has permanently scarred and disabled Jaimie, she never would have consented to the surgery. Accordingly, the consent to the surgery obtained by Dr. Drakos from Jaimie was obtained by misrepresentation on the part of Dr. Drakos. As a result, Jaimie’s consent to the surgery was invalid and the surgery performed upon Jamie by Dr. Drakos amounted to an assault.

[8] On August 6, 2019 the Plaintiff obtained a report of an expert witness, Dr. Krajden. In this report, Dr. Krajden expressed his opinion that:

Full-thinness skin necrosis involving the infero-medial portion of the abdominal flap is a well-recognised complication of the abdominoplasty surgery in the peer-reviewed published literature.

[9] The Defendant’s expert, Dr. Steven Brown, expressed a similar opinion in his letter of November 1, 2019. He opined that necrosis is a recognized and “unfortunate but common complication of abdominoplasties”.

Position of the Plaintiff

[10] The Plaintiff takes the position that no new material facts are pled in the Amended Statement of Claim. She argues that the only new claim is for punitive damages.

[11] The Plaintiff submits and relies on r. 26 and various cases that stand for the proposition that if no prejudice is shown that cannot be compensated for by an adjournment and/or costs, the amendment shall be allowed. The Plaintiff relies heavily on her assertion that para. 11 of the Statement of Claim set out the material facts and the Defendant was therefore aware of them in 2015. It is only the punitive damages claim that is new.

Position of the Defendant

[12] The Defendant submits that the Plaintiff is attempting to claim a new cause of action, namely, battery. The Defendant also submits that the Plaintiff is attempting to lead new material facts that were known or ought to have been known on November 24, 2015.

The Law and Analysis

[13] The Court of Appeal for Ontario in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, 135 O.R. (3d) 694, reviewed the principles upon which the law has developed regarding motions to amend pleadings. At paras. 24-25 the court stated:

[24] Motions for leave to amend a pleading are governed by r. 26.01, which provides:

On 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.

[25] The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

• The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to SCC refused, 2010 CarswellOnt 425, and Andersen Consulting v. Canada (Attorney General) (2001), 2001 ONCA 8587, 150 O.A.C. 177 (C.A.), at para. 37.
• The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 1996 ONSC 8109, 27 O.R. (3d) 479 (Gen. Div.), rev’d on other grounds Whiten v. Pilot Insurance Co. (1999), 1999 ONCA 3051, 42 O.R. (3d) 641 (C.A.), aff’d 2002 SCC 18, [2002] 1 S.C.R. 595.
• There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21, and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 ONCA 8620, 56 O.R. (3d) 768 (C.A.), at para. 65.
• The non-compensable prejudice may be actual prejudice, i.e. evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King’s Gate Developments Inc. v. Drake (1994), 1994 ONCA 416, 17 O.R. (3d) 841 (C.A.), at paras. 5-7, and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 ONSC 7105, 25 O.R. (3d) 106 (Gen. Div.), at para. 9.
• Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky (1996), 1996 ONCA 1762, 95 O.A.C. 297 (C.A.), at para. 2, and Andersen Consulting, at paras. 36-37.
• At some point the delay in seeking an amendment will be so lengthy and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), 2006 ONCA 5135, at para. 6.
• The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 1996 ONCA 36, 27 O.R. (3d) 576 (C.A.), at paras. 3-4, and Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 ONSC 64295, 66 O.R. (3d) 74 (Master), at para. 21.
• The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.

[14] In this case, the surgical procedure was performed by the Defendant on November 29, 2013. The Statement of Claim was issued by the Plaintiff on November 24, 2015. The Motion to amend the pleadings was brought by the Plaintiff on January 28, 2020. In the circumstances of this case I find that there has been inordinate delay in seeking to amend the pleadings. Over 6 years have gone by since the performance of the operation and over 4 years have passed since the commencement of this action.

[15] The issue for this court is whether the material facts pled sufficiently outline the cause of action now being advanced or whether the Plaintiff is attempting to bring a new cause of action following the expiry of the limitation period.

[16] The relevant section of the Limitations Act, 2002, S.O. 2002, c. 24, reads:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5. (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it … [Emphasis added.]

[17] In Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, 138 O.R. (3d) 641, the Court of Appeal for Ontario outlined some of the important considerations in assessing the timelines set out in the Limitations Act, 2002. Commencing at para. 21:

[21] In assessing whether the motion judge erred in reaching this conclusion, I begin with three contextual points about subclause (iv) of s. 5(1)(a) of the LA.

[22] First, the word “appropriate” means “legally appropriate”. As explained by Sharpe J.A. in Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, at para. 34:

[34] In my view, when s. 5(1)(a)(iv) states that a claim is “discovered” only when “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”, the word “appropriate” must mean legally appropriate. To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [Emphasis in original.]

[23] Second, this does not mean that determining whether a limitation period applies involves pulling two simple levers – date of injury and date of initiation of legal proceeding – and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis. As Laskin J.A. cautioned in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709 (“407 ETR”), at paras. 33-34:

The appropriateness of bringing an action was not an element of the former limitations statute or the common law discoverability rule. This added element can have the effect – as it does in this case – of postponing the start date of the two-year limitation period beyond the date when a plaintiff knows it has incurred a loss because of the defendant’s actions.

Also, when an action is “appropriate” depends on the specific factual or statutory setting of each individual case: see Brown v. Baum, 2016 ONCA 325, 397 D.L.R. (4th) 161, at para. 21. Case law applying s. 5(1)(a)(iv) of the Limitations Act, 2002 is of limited assistance because each case will turn on its own facts. [Emphasis added.]

[24] Third, within the rubric of “the specific factual or statutory setting of each individual case”, s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim: see Novak v. Bond, [1999] 1 S.C.R. 808 (“Novak”), at para. 85; and 407 ETR, at paras. 44-46.

[25] Against this background of general principles, I turn to the motion judge’s conclusion that the appellant’s battery claim was outside (by one day) the two year limitation period prescribed by s. 4 of the LA. With respect, I think that the motion judge erred, essentially for three reasons.

[26] First, the appellant’s negligent investigation claim is proceeding. The parties agree that the discoverability date for this claim is February 17, 2016, the day the appellant was acquitted on the criminal charges against him. Factually, the negligent investigation claim covers almost precisely the same parties and events as the battery claim. There was virtually no investigation in this case. The police were called, they arrived and immediately entered the appellant’s home, and some kind of altercation quickly unfolded.

[27] In my view, the appellant’s Amended Statement of Claim shows how inextricably intertwined are the two alleged torts:

14 e. The Defendant officers were present and knew or ought to have known that the Plaintiff did not commit an assault against any police officer. There was no reasonable cause for the Defendant officers to arrest or charge the Plaintiff with assault of a police officer.

14 f. As the Plaintiff stood motionless, he was pushed violently in the chest by the Defendant Dopf. He was then thrown to the floor. Knee strikes and punches were then delivered by both the Defendants Dopf and Campbell. He was handcuffed, removed from the house and taken to the police station.

[28] Second, I agree with the appellant that, in the specific factual setting of this case (407 ETR), and bearing in mind the circumstances of the person with the claim (Novak), it made sense for him to postpose deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved. The criminal charges of assault and resisting arrest against the appellant and his tort claim of battery against the respondents are, in reality, two sides of the same coin or mirror images of each other.

[18] I start my analysis with the guidance of the Supreme Court of Canada in its decision in Reibl v. Hughes, [1980] 2 S.C.R. 880. In that case, the plaintiff had formally consented to surgery for the removal of an occlusion in the left internal carotid artery. Paralysis of the right side and impotency resulted from a massive stroke suffered during or immediately after the surgery. He sued on the basis that the consent given was not an informed consent and at trial recovered in both battery and negligence but was awarded judgment for a global sum in damages. While the Supreme Court of Canada restored the judgment at trial, it clearly did not agree with the trial judge’s reasons respecting recovery for battery because of lack of proper information being communicated by the doctor to the patient.

[19] The Chief Justice stated at pp. 890-891:

... actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.

[20] The Court commented further at pp. 891-892: “unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.”

[21] In the case before me, there is a claim for negligence in the Statement of Claim but no claim based in either the tort of assault or battery nor are there any material facts pled that allege misrepresentation or fraud on the part of the Defendant.

[22] In Shaw v. Shaw, 2012 ONSC 590, 9 R.F.L. (7th) 359, Blishen J. considered the difference between the tort of battery and that of assault. Quoting from Linden and Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), pp. 44, 46-47, Her Honour began by setting out their respective definitions at paras. 45-46:

A battery may occur even when no harm is intended. The only intention required is that of making contact.

Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault provides protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. The underlying policy of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law.

Assault should be distinguished from battery, although the two are often blurred together and called “assault”. This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.

Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault.

[23] Her Honour continued, at para. 47:

In this case both parties blurred the torts of assault and battery and used the term “assault” throughout. I do not find this a significant problem. The essence of Ms. Brunelle’s argument is that Mr. Shaw intentionally physically ejected her from the home, causing her to break her right wrist. Therefore, “battery” is the more accurate description of what is alleged.

[24] In this case, the Plaintiff’s Statement of Claim states at para. 11:

Prior to the surgery on November 29, 2013, Dr. Drakos obtained Jaimie’s consent to surgery, without fully explaining the risks, possible complications and injuries that could occur during the surgical procedure. Had Jaimie been fully informed of the risks, she would not have consented to the surgical procedure.

[25] The Plaintiff’s Amended Statement of Claim goes much further. The amended claim alleges that the Defendant’s misrepresentation induced an invalid consent and therefore the procedure constituted an assault. At para. 16:

Had Dr. Drakos advised Jaimie of the potential risks, particularly the skin necrosis, which in fact has permanently scarred and disabled Jaimie, she never would have consented to the surgery. Accordingly, the consent to the surgery obtained by Dr. Drakos form Jaimie was obtained by misrepresentation on the part of Dr. Drakos. As a result, Jaimie’s consent to the surgery was invalid and the surgery performed upon Jaimie by Dr. Drakos amounted to an assault.

[26] I find that the reference to an assault in para. 16 of the Amended Statement of Claim falls within the “blurred lines” referred to in Shaw. The blurring of the lines between assault and battery in this case is not significant. What is significant is that the proposed amendment pleads new material facts that were or should have been within the knowledge of the Plaintiff at the time of the issuing of the Statement of Claim. These new material facts create a new cause of action.

[27] The proposed amendment materially restates what was originally pled as a lack of informed consent. The original pleading framed that as part of the negligence claim. This approach properly aligns with the considerations outlined by the Supreme Court of Canada in Reibl.

[28] However, the Amended Statement of Claim includes material facts that transforms the pleadings into an intentional misrepresentation that would amount to the tort of battery: see Reibl reference as set out in these reasons at para. 20 herein.

[29] There was no evidence presented by the Plaintiff that reasonably rebuts the presumption of prejudice. There is no evidence to justify the inclusion of facts from Dr. Krajden’s report obtained by the Plaintiff more than 4 years after the Statement of Claim was issued and approximately 6 years after the surgery that is the subject of these proceedings. No explanation has been given for the significant delay that would justify including material facts that were known or should have been known at the time of the issuance of the Statement of Claim or, at the latest, before the limitation period for claiming assault or battery expired.

[30] I find that the claim for the tort of battery is statute barred by the Limitations Act, 2002. The motion to amend the pleadings to claim this new cause of action is dismissed in its entirety.

[31] I find there is no prejudice caused by allowing the Plaintiff to include a claim for punitive damages. Allowing this amendment is in no way commenting on the likelihood of success of such a claim.

[32] If costs cannot be agreed upon, the party seeking costs must provide a short 3 page written outline of their submissions along with a summary of the costs no later than August 19, 2020. The responding party must submit their 3 page outline of submissions and summary of costs no later than August 31, 2020.

The Honourable R. J. Harper Date: August 5, 2020