Taylor v. David, 2021 ONSC 3264

COURT FILE NO.: CV-20-00637092-0000

DATE: 20210503

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDREA THERESA TAYLOR and

ANDRE COREAM MATTRASINGH

Plaintiffs

– and –

DR. LESLEY A. DAVID, DR. JOANNE COLLINS and DR. LARRY RALEY

Defendants

Ikenna Aniekwe, lawyer for the plaintiffs

Eric S. Baum, lawyer for defendants

HEARD: April 29, 2021

ENDORSEMENT

DIAMOND J.:

Overview

[1] On or about September 2, 2004, the plaintiff Andrea Theresa Taylor (“Taylor”) underwent jaw surgery performed by the defendant Dr. Leslie A. David (“Dr. David”) and the defendant Dr. Larry Raley (“Dr. Raley”) at the Trillium Health Centre.

[2] The defendant Dr. Joanne Collins (“Dr. Collins”) is the orthodontist who referred Taylor to Dr. David for the surgery.

[3] Both plaintiffs, including the plaintiff Andre Coream Mattrasingh (“Andre”, Taylor’s son) seek damages arising from Taylor’s surgery which the plaintiffs claim was performed negligently and without Taylor’s informed consent. At the time of the surgery, Andre was a minor and did not reach the age of majority until December 2008.

[4] The defendants bring a motion for summary judgment seeking to dismiss this proceeding on the basis that the claim was not issued within the time periods prescribed by the provisions of the Limitations Act 2002 S.O. 2002, c.24 (“the Act”).

[5] At the conclusion of the defendants’ motion, I took my decision under reserve.

Summary Judgment

[6] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant a summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence.” As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.

[7] In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment, the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the fact-finding powers set out in the 2010 amendments. The Court may only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and if summary judgment would be an affordable, timely and proportionate procedure.

[8] The overarching principle is proportionality. Summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case.

[9] As held in Sanzone v. Schechter 2016 ONCA 566, only after the moving party discharges its evidentiary burden of proving that there is no genuine issue requiring a trial for resolution does the burden then shift to the responding party to prove that its claim has a real chance of success. The Court must address the threshold question of whether the moving party discharges its evidentiary obligation to put its best foot forward by adducing evidence on the merits.

[10] Nothing in Hyrniak or the subsequent jurisprudence displaces the onus upon a party responding to a motion for summary judgment to “lead trump or risk losing.” The Court must assume that the parties have put their best foot forward and placed all relevant evidence in the record. If the Court determines that there is a genuine issue requiring a trial, the inquiry does not end there and the analysis proceeds to whether a Court can determine if the need for a trial may be avoided by use of its expanded fact-finding powers.

[11] As recently held by the Court of Appeal for Ontario in Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, when hearing a motion for summary judgment, the Court must follow the analytical process set out in Hryniak and carefully analyze all the evidence relied upon by a responding party in his/her efforts to show the presence of a serious issue requiring a trial. First, the Court must consider whether there is a genuine issue requiring a trial based on the record alone and without utilizing the enhanced fact-finding powers in Rule 20.04 (2.1) of the Rules of Civil Procedure.

[12] If the Court finds the presence of a genuine issue requiring a trial on the record alone, then the second question is whether the need for a trial can be avoided by using the said fact-finding powers. In his recent decision Oxygen Working Capital Corp. v Mouzakitis 2021 ONSC 1907, Justice Myers posed the following (non-exhaustive) questions for the Court to consider at the second stage:

a) Will making findings of fact on the evidence before the court provide a fair and just result as compared to a mini-trial or a trial?

b) Does the material before the court illuminate the factual issue sufficiently to allow the judge to make findings of fact and credibility?

c) Is there something missing that is needed for basic fairness despite the fact that the parties chose not to put that evidence forward?

d) Do considerations of the litigation as a whole mandate some further process before making factual or credibility findings?

Limitations Act – Basic Principles

[13] Pursuant to section 5(1)(a) of the Act, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,

(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 a person against whom the claim was 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.

[14] Section 5(2) of the Act and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a plaintiff with necessary evidence.

[15] As the Court of Appeal for Ontario held in Miaskowski v. Persaud 2015 ONSC 758, 2015 ONSC 758 (C.A.), a plaintiff is presumed to have discovered the material facts upon which his/her claim against a defendant is based on the day the accident took place. There is an obligation upon a plaintiff to act with due diligence in determining if he/she has a claim. No limitation period will be tolled while a plaintiff sits idle and fails to take steps to investigate any of the matters referred to in section 5(1)(a) of the Act.

[16] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson 2011 ONSC 102 (C.A.), “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”.

[17] As held by the Court of Appeal for Ontario in Lieu v Wong 2016 ONCA 366, it is well established that it is knowledge of the material facts necessary to support a cause of action that triggers the commencement of the limitation period, and not knowledge of the extent of the damages.

Limitations Act – Ultimate Limitation Period

[18] Pursuant to section 15 of the Act, regardless of any other limitation period set out in the Act, no proceeding may be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission forming the basis of the claim occurred.

[19] Section 15(4) of the Act creates certain limited exceptions to the 15 year ultimate limitation period:

“The limitation period established by subsection (2) does not run during any time in which,

(a) the person with the claim,

(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and

(ii) is not represented by a litigation guardian in relation to the claim;

(b) the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim; or

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage. 2002, c. 24, Sched. B, s. 15 (4).”

Incapacity to Commence a Proceeding

[20] In Carmichael v GlaxoSmithKline Inc. 2020 ONCA 447, the Court of Appeal for Ontario addressed the issue of a party of being incapable of commencing a proceeding in respect of the claim due to a physical, mental or psychological condition. While the Court’s analysis was engaged through the lens of section 7(1)(a) of the Act, the underlying principles of incapacity are equally applicable to section 15(4) of the Act.

[21] In Carmichael, the Court of Appeal cited with approval the decision of Justice Hebner in Hengeveld v. Ontario (Transportation) 2017 ONSC 6300, and set out a list of non-exhaustive potential indicators for the Court to consider when assessing the capacity/incapacity of a party charged with commencing a proceeding:

(a) a party’s ability to know or understand the minimum choices or decisions required to make them;

(b) an appreciation of the consequences and effects of a party’s choices or decisions;

(c) an appreciation of the nature of the proceedings;

(d) a party’s ability to choose and keep counsel;

(e) a party’s ability to represent him/herself;

(f) a party’s ability to distinguish between the relevant and irrelevant issues; and

(g) a party’s mistaken beliefs regarding the law or court procedures.

[22] The Court went on to discuss a party’s incapacity being due to his/her “physical, mental or psychological condition”:

A “physical condition” is a condition arising in or relating to a person’s body. A “mental condition” is a condition affecting or arising in a person’s mind, and includes mental disability, mental incompetency, or mental illness. And a “psychological condition” is a condition relating to the mental or emotional state of a person. See The Oxford English Dictionary Online (“physical”, “mental”, “psychological”).

As is evident from these definitions, in many cases there may be no clear demarcation between a psychological condition and a mental condition. Indeed, it could be said that a psychological condition is a particular type of mental condition, in that both conditions affect or arise in a person’s mind. It would appear that the reason for listing the three separate conditions in s. 7(1)(a) was to allow for a liberal and generous interpretation of the types of conditions that would satisfy the plaintiff’s burden to prove incapacity and stop the running of the limitation period, in order to treat the plaintiff fairly and account for their interests.

It is also evident that a person could have incapacitating physical, mental, and psychological conditions simultaneously. For example, a person could be incapacitated by physical and mental conditions, such as bodily paralysis coupled with a traumatic brain injury; or by mental and psychological conditions, such as schizophrenia coupled with severe depression; or all three conditions could operate together.

The physical, mental, or psychological condition must be the cause for the incapacity relied on under s. 7(1)(a). The incapacity cannot arise from other sources, such as lack of sophistication, education, or cultural differences: see Huang, at para. 18; Costantino v. Costantino, 2016 ONSC 7279, at para. 41; and Children’s Aid Society of Toronto, at para. 25.”

[23] There is naturally a distinction to be drawn between failing to understand and appreciate risks and consequences, and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity.

[24] The jurisprudence is clear that in order to prove a lack of capacity to commence a proceeding in respect of a claim, a party will typically be required to tender persuasive medical and/or psychological evidence in support of that position. As I read Carmichael, while that persuasive medical and/or psychological evidence may not necessarily require the filing of a formal expert medical opinion, it should still take the form of admissible evidence from, inter alia, a treating physician with the necessary medical or psychological background and experience.

[25] While other evidence may also be relevant (such as evidence from individuals who know the plaintiff, evidence relating to the plaintiff’s participation in other civil or criminal proceedings, or other general indicators of capacity), the need for persuasive medical and/or psychological evidence is essential.

Wilful concealment

[26] Section 15(4)(c)(i) tolls the 15 year limitation period during any time in which the defendant “wilfully conceals from the plaintiff the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission of the defendant, or that the act or omission was that of the defendant”.

[27] In Colin v. Tan 2016 ONSC 1187, Justice Perell discussed the issue of wilful concealment and held as follows:

“Fraudulent concealment is an equitable principle aimed at preventing a limitation period from operating as an instrument of injustice: M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6 at para. 66; Guerin v. Canada, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335; Giroux Estate v. Trillium Health Centre (2007), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341 (C.A.) at paras. 28-29. Fraudulent concealment will suspend a limitation period until the plaintiff can reasonably discover his or her cause of action; M. (K.) v. M. (H.), supra; Mongeon v. Sammon, 2012 ONSC 409 at para. 39; Charette v. Trinity Capital Corp., 2012 ONSC 2824; Halloran v. Sargeant, 2002 CanLII 45029 (ON CA), [2002] O.J. No. 3248 (C.A.).

The constituent elements of fraudulent concealment are threefold: (1) the defendant and plaintiff have a special relationship with one another; (2) given the special or confidential nature of the relationship, the defendant's conduct is unconscionable; and (3) the defendant conceals the plaintiff's right of action either actively or the right of action is concealed by the manner of the wrongdoing: M. (K.) v. M. (H.), supra; Guerin v. Canada, supra; Authorson (Litigation Administrator of) v. Canada (A.G.) (2007), 2007 ONCA 501, 86 O.R. (3d) 321 (C.A.) at paras. 120-131, leave to appeal to S.C.C. ref'd. [2007] S.C.C.A. No. 472; Giroux Estate v. Trillium Health Centre, supra at para. 29; Rajmohan v. Norman H. Solmon Family Trust, 2014 ONCA 352 at para. 3.

Fraudulent concealment includes conduct that having regard to some special relationship between the parties concerned is unconscionable: Giroux Estate v. Trillium Health Centre, supra at para. 22; Kitchen v. Royal Air Force Assn., [1958] 2 All E.R. 241 (C.A.) at 249; M. (K.) v. M. (H.), supra at para. 63. For fraudulent concealment, the defendant must hide, secret, cloak, camouflage, disguise, cover-up the conduct or identity of the wrongdoing: Johnson v. Studley 2014 ONSC 1732 at para. 83. The word fraudulent is used in its equitable (not common law) sense to denote conduct by the defendant such that it would be against conscience for him or her to avail himself of the lapse of time: King v. Victor Parsons Co., [1973] 1 All E.R. 206; Huet v. Lynch, 2000 ABCA 97; Guerin v. Canada, supra, at para. 390.

There is a causative element to the doctrine of fraudulent concealment because the legal policy behind fraudulent concealment is that if the plaintiff was unaware of his or her cause of action because of the wrong of the defendant, then the court will refuse to allow a limitation defence; i.e., the plaintiff must be ignorant of the cause of action because of the misconduct of the defendant: M. (K.) v. M. (H.), supra at paras. 57-58.”

Is Summary Judgment Appropriate?

[28] At trial, the plaintiffs would need to establish that their action was issued within the time provisions under the Act. However, on this motion for summary judgment, the defendants bear the legal burden to satisfy the Court that the case is one that fairly and justly ought to be resolved summarily. If the defendants meet that onus, the Court will then put the plaintiffs to their burden on the merits.

[29] As there is no dispute that this proceeding was commenced on February 27, 2020, nearly 16 years after the date of the allegedly negligent oral surgery, the defendants have met their legal onus on their motion for summary judgment. The ultimate limitation period under the Act is not subject to any discoverability concerns. If a legal proceeding is commenced 15 or more years after the day on which the act or omission forming the basis of the claim occurred, then the legal proceeding is dismissed under the Act subject to the Court making a finding that one or more of the section 15(4) exceptions apply.

[30] With the defendants having met their legal burden, the onus thus shifts to the plaintiffs to show, through persuasive medical and/or legal evidence, that the ultimate limitation period should be tolled by reason of section 15(4) of the Act,

[31] In my view, and for the reasons which follow, it is just, efficient and proportionate to grant summary judgment dismissing this claim, as there is no genuine issue requiring a trial given the plaintiffs’ failure to discharge their onus that one of the section 15(4) exceptions apply.

a) Section 15(4)(a)

[32] The plaintiffs submit that during several periods from 2004 - 2020, Taylor was incapable of commencing a proceeding due to her having suffered a level of physical and psychological impairment(s) that reached the point of incapacity. Despite the efforts of counsel for the plaintiffs, the evidence on this motion does not support such a finding.

[33] To begin, the only evidence tendered by the plaintiffs on this motion are their own affidavits. There is no direct evidence from any treating physicians (other than from the defendants themselves). The only medical or psychological evidence in the record takes the form of certain isolated medical records attached as exhibits to Taylor’s affidavit. As such, none of this (arguably inadmissible) medical and psychological evidence was able to be independently challenged through cross-examination. This alone renders such medical or psychological evidence to be of little to no weight.

[34] Even if the Court were to treat the plaintiff’s medical and psychological evidence as admissible, it nevertheless falls short of reaching the “level of persuasion” required by Carmichael. I note that there was very little, if any, medical or psychological evidence in Taylor’s original responding affidavit. Only after Taylor was cross-examined upon that affidavit (and before her counsel conducted any cross-examination of the defendants) did she serve and file a supplementary responding affidavit which attempted to set out the medical and psychological evidence being relied upon in support of a finding of incapacity. Optically, the decision to serve and file that supplementary affidavit looks somewhat strategic and contrived.

[35] Nevertheless, I have culled through the relevant exhibits attached to Taylor’s supplementary affidavit. The following is a summary of the medical and psychological evidence being relied upon by the plaintiffs:

• In mid-October 2005, the plaintiff attended the Greenspoon Pain Management Centre (“Greenspoon”) for chronic head pain and right arm pain. The reporting letter from Greenspoon is not signed, but presumably authored by Dr. Greenspoon (a doctor with designations in pain management). The reporting letter noted, inter alia, Taylor’s persistent historical pain in her jaw area that resulted in the 2004 oral surgery. Dr. Greenspoon administered a “hospital anxiety and depression scale” (which was not defined in the reporting letter) and the results suggested a high likelihood for anxiety and depression.

Dr. Greenspoon further noted that Taylor was experiencing emotional issues which were “tugging at her”, and he suggested that Taylor potentially undergo cognitive behavioural therapy. There is no indication if such cognitive behavioural therapy ever occurred, or what the results of such therapy were.

• There are no further medical or psychological records in the plaintiff’s supplementary responding motion record until 2017 when she was involved in a work-related head injury that triggered WSIB claims to be pursued. There is evidence in the record that Taylor did suffer from concussion related issues as a result of the head injury.

• While there are medical records relating to her head and jaw issues, there is very little medical or psychological evidence relevant to the issue of Taylor’s capacity. On January 31, 2017, Taylor attended the Altum Health Centre for a comprehensive musculoskeletal assessment at the request of a WSIB case manager. There is no doubt that Taylor was taking various medications for the treatment of ongoing pain and difficulty sleeping.

In the section of the Altum Report titled “Current Concerns & Symptoms”, Taylor described suffering from headache pain, ringing in her ears (which had improved over the years), nausea, neck pain and central low back pain.

While Taylor self-reported symptoms of depression and anxiety, no diagnosis or treatment was noted.

In late October 2019, Taylor underwent a neurological assessment with Trillium Health Partners. Apart from suffering from an inability to sleep more than 3-4 hours a night, most if not all of Taylor’s complaints were physical in nature, relating to her head, neck, back, hip and knee.

With respect to any cognitive concerns, Taylor reported some forgetfulness since 2016 (i.e. the year of her injury), and some difficulty staying focused. Taylor also self-reported a “history of depression and anxiety” that was “diagnosed” (there is no indication by whom) following her 2016 head injury. Taylor reported that after 2016, she began seeing a psychologist and had attended 20 sessions. Unfortunately, Taylor did not produce any of the contents of her psychologist’s files, and as the plaintiffs bear the evidentiary onus of proof under the Act and the relevant summary judgment jurisprudence, the Court is left with the option of drawing an adverse inference against Taylor to find that nothing in her psychologist’s files would have supported her submission that she lacked the requisite capacity to commence this proceeding.

The assessor went on to pose a series of “Anxiety and Depression Scale” questions that led the assessor to conclude the presence of a potential increased likelihood for anxiety and depression. However, when an actual cognitive functional ability assessment was carried out that day, the assessor did not note any speech/language difficulties, word finding issues or difficulty in Taylor recalling specific details with respect to her injuries. Taylor did not present with any “observable impairments to insight, judgment, executive function or attention.”

The assessor also administered a behavioral memory test and concluded that Taylor achieved a score in the “average range”. Only one particular section of that memory test (visual memory) was recorded as “poor”.

[36] To my review, that is the extent of the medical and/or psychological evidence in the record. During argument, counsel for the plaintiffs submitted that the medical and/or psychological evidence tendered by the plaintiffs ought to trigger the Court’s need to order a mini-trial where the issue could be more fully canvassed. As I held in Crisafi v. Urban Landmark Realty Inc. 2018 ONSC 191, the Court should restrict itself from ordering a mini-trial when a party has chosen to tender a deficient evidentiary record on a motion for summary judgment, for a mini-trial ought not to permit a party to buttress or “cooper up” its deficient record. If the record does not contain an affidavit from a key witness, or a relevant document, then a mini-trial should typically not be ordered to allow a party “a second kick at the can” when to do so would effectively permit a party to evade his/her well-established legal and evidentiary onuses on a motion for summary judgment.

[37] As stated, the only other medical or psychological evidence was given by Taylor and Andre themselves. Andre gave evidence that he lived with his mom until the fall of 2012 when he moved to Windsor, Ontario for education purposes. He returned in the spring of 2013 and eventually moved out on his own. He described his mother becoming “a shadow of herself” after the 2004 surgery, with his mom being “sad all the time”. In 2006, Taylor quit her well-paying job which “threw the family’s standard of living downhill and compounded the manifest difficulties that Andre was already going through as a child.”

[38] For her part, Taylor gave evidence that she “found a way in her mind to completely disassociate the 2004 surgery as a potential reason for or cause of the first post-operative challenges she faced”. In particular, she “forced her mind to accept” that her jaw misalignment did not exist, and the pain and numbness were not present. While the Court is certainly not in a position to make any medical or psychological diagnosis, it is questionable that a party who is able to “force their mind” to accept ongoing pain suffers from a lack of capacity as defined by the jurisprudence.

[39] In Baig v. Mississauga 2020 ONCA 697, the Court of Appeal for Ontario upheld a summary judgment decision dismissing a claim as being commenced outside the provisions of the Act. In dismissing the appeal, the Court held as follows:

“The motion judge accepted that, while Mr. Baig had proffered evidence of a mental illness, there was no evidence that it rose to the level of incapacity for the purposes of s. 7 of the Limitations Act. After reviewing the chronology of events set out above, and noting that Mr. Baig had received legal advice on the issue, the motion judge held at paras. 42-43 of her reasons:

There is a complete absence of any medical evidence to show that Mr. Baig by reason of his mental illness, the injuries suffered from the bicycle crash or his treatment at the hands of the insurance adjuster rendered him incapable within the limitation period. Medical documentation from 2017 and 2018 indicating that Mr. Baig has some cognitive deficits falls well short of establishing that he is now or was incapable during the limitation period.

I note as well that Mr. Baig was articulate and organized in his preparation of and presentation of material to the Court and as well in his submissions. There was nothing in his presentation which caused me to doubt that he had the capacity to commence the action within the limitation period. [Emphasis added.]

In our view, the motion judge correctly applied s. 7 of the Limitations Act. As she observed, under s. 7(2), a plaintiff is presumed to have been capable of commencing a proceeding, unless the contrary is proved on a balance of probabilities: Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at paras. 77-78. As the motion judge found, it was not proved in this case.”

[40] I come to the identical conclusion. While the medical and psychological “evidence” produced by way of exhibits attached to Taylor’s affidavit do, on occasion, raise the (albeit limited) possibility of the presence of cognitive difficulties, that same medical and psychological evidence offers the opposite conclusion. The Court accepts that Taylor has apparently suffered from ailments and issues both before and after the 2004 surgery. However, the evidence in the record before the Court does not satisfy the plaintiff’s onus of proof that she lacked capacity at any given time between 2004 – 2020.

b) Section 15(4)(b)

[41] While Andre was a minor for the first four years after Taylor’s surgery, Andre’s claims are clearly derivative of Taylor’s claims. Andre’s ability to pursue any of his own claims against the defendants arises from the provisions of section 61 of the Family Law Act R.S.O. 1990 c. F3. As Andre’s claims are based upon his status as Taylor’s son/dependent, if Taylor’s claims do not exist in law for having been commenced outside the provisions of the Act, then Andre’s claims cannot exist independently.

c) Section 15(4)(c)

[42] There is no evidence in the record that the plaintiff or her family doctor ever made any formal post-surgery request for information or documentation from the defendants. During argument, I asked counsel for the plaintiffs to take the Court to any evidence in support of Taylor’s submission that the defendants wilfully concealed information or documentation.

[43] The evidence tendered by the plaintiffs does not support their position. To begin, paragraph 21 of Taylor’s original affidavit states as follows:

“Dr. David and Dr. Raley did not disclose to me the x-rays that they had done on my face after the surgery. In fact, the defendants failed to provide me with copies of my medical records, charts and x-ray images. I believe that they deliberately concealed them in order to prevent me from initiating legal action earlier.”

[44] Nowhere in this paragraph, or in the balance of her two affidavits, does Taylor state that she made a specific request for any such documentation from the defendants, who were under no obligation to disclose such documents to Taylor absent a request for them.

[45] At paragraph 34 of Taylor’s supplementary affidavit, she stated:

“I gave the defendants Drs. David and Raley a consent to disclosure mandate prior to the surgery authorizing the disclosure and release of all my medical records relative to the surgery to my family doctor. They failed to do this because of their contrived tactic to hoard records of what truly transpired during the surgery. I feel that it will be unfairly prejudicial to me and my plight in the hands of the defendants that they are permitted to escape accountability simply because they hoarded and subsequently as they alleged, destroyed evidence of their culpability to the damages that I have suffered.”

[46] There is no evidence from Taylor’s family doctor at all in the record, let alone any evidence that the defendants were asked to disclose the contents of their files. The consent that Taylor gave to the defendants was for the purpose of disclosing charts, records or other documents in the event the defendants were requested to do so by Taylor or other doctors or professionals on her behalf. One cannot be accused of concealing something which one is not obligated or requested to produce.

[47] The plaintiffs sought to rely upon an alleged admission on the part of Dr. David that she did not send any reporting letters or charts to Taylor’s referring orthodontist. A review of the transcript from Dr. David’s cross-examination discloses that, at most, Dr. David admitted that she had no specific recollection of providing the contents of her files to Taylor’s referring orthodontist, but if she had been requested to do so, she would have forwarded those records.

[48] Accordingly, for the above reasons I find that there is no genuine issue requiring a trial with respect to this proceeding having been commenced in contravention of the provisions of the Act. The defendants’ motion for summary judgment is granted, and this action is dismissed.

Costs

[49] I would ask counsel for the parties to exert the necessary efforts to try and resolve the costs of this motion and this action. If those efforts prove unsuccessful, they may serve and file written costs submissions, totaling no more than five pages including a Costs Outline, in accordance with the following schedule:

a) the defendants shall serve and file their written costs submissions within 10 business days of the release of this Endorsement; and

b) the plaintiffs shall have 10 business days from the receipt of the defendants’ submissions to serve and file their own responding written costs submissions.

Diamond J.

Released: May 3, 2021

COURT FILE NO.: CV-20-00637092-0000

DATE: 20210503

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDREA THERESA TAYLOR and

ANDRE COREAM MATTRASINGH

Plaintiffs

– and –

DR. LESLEY A. DAVID, DR. JOANNE COLLINS and DR. LARRY RALEY

Defendants

ENDORSEMENT

Mr. Justice Diamond

Released: May 3, 2021