Court File and Parties

COURT FILE NO.: CV-14-118320 DATE: 20220412 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Denise Bosse, Plaintiff AND: Dr. Yair Karas, Defendant

BEFORE: C.M. SMITH J

COUNSEL: Samantha Shatz, Counsel for the Plaintiff Christine Wadsworth, Counsel for the Defendant

HEARD: March 22, 2022

ENDORSEMENT on the defendant’s motion for summary judgment

[1] The defendant/moving party, Dr. Yair Karas, brings a motion for summary judgment pursuant to Rule 20. He claims that the plaintiff’s action is statute barred by operation of s. 5 of the Limitations Act, R.S.O.

Background

[2] This is a medical malpractice action brought by the plaintiff against the defendant who is an ophthalmologist. Dr. Karas performed Radial Keratotomy (“RK”) surgery on the plaintiff’s eyes in a series of operations commencing in 1994 and ending in 2005.

[3] In May 2011, the plaintiff booked an appointment with the defendant. In the course of that appointment she asked for and received a copy of her medical records regarding those operations. At that time the plaintiff also refused Dr. Kara's offer of a further surgical procedure to attempt to correct ongoing problems she was having with her eyes.

[4] On July 11, 2011, the plaintiff filed a formal complaint with the College of Physicians and Surgeons of Ontario (“CPSO”) regarding the treatment she received from the defendant. In that complaint the plaintiff apparently alleged that she was not advised by the defendant of the risks associated with the surgical procedures, nor was she told about possible side effects or long-term effects, which could include fluctuating vision and incapacitating glare. The plaintiff concluded that she may not have been an appropriate candidate for the procedures.

[5] On February 24, 2012, the CPSO imposed certain restrictions on the defendant’s ability to perform the surgery in question.

[6] The plaintiff retained Mr. Michael Munro, Barrister, on April 2, 2013. He immediately arranged for the plaintiff to be seen by Doctor Waring in Atlanta, GA who, at the time, was one of the world's foremost experts on this type of surgery. The plaintiff maintains that Mr. Munro also advised her that the limitation period on her claim did not start to run until such time as she was in receipt of a report from an expert.

[7] The plaintiff travelled to Atlanta, Georgia at her own expense in order to see Dr. Waring on July 31, 2013. In his report dated November 15, 2013, Dr. Waring opined that the various incisions made by the defendant on the plaintiff’s eyes through the course of his treatment of her were “outside the standard of care.”

[8] The plaintiff’s relationship with Mr. Munro broke down in October 2013. Mr. Munro's license to practice law was revoked by the Law Society of Ontario in November 2014 as a result of complaints made by other clients.

[9] The plaintiff subsequently contacted her current counsel in January 2014. She completed her retainer arrangements with her current counsel on March 26, 2014. The Statement of Claim in this action was issued on April 2, 2014.

[10] The defendant served his Statement of Defence on November 5, 2014.

[11] The plaintiff was cross examined on her affidavit on February 14, 2020. The matter appears to have languished since that time, due no doubt to the global pandemic.

Positions of the Parties

The defendant/moving party

[12] The defence takes the position that the plaintiff’s claim is statute barred by operation of s. 5 of the Limitations Act.

[13] The defendant asserts that when the plaintiff received her medical records from the defendant in 2011, she was provided with enough information for her to “discover” her claim and to proceed accordingly.

[14] The defendant/moving party takes the position that the onus is on the plaintiff/responding party to show that discoverability of her claim did not occur until a later date. The defendant cites s. 4 of the Limitations Act in support of that position. The moving party also submits that on a subjective basis the plaintiff knew everything she needed to know in order to bring her claim for negligence against the defendant by July 2011. At that point, the plaintiff had enough information to make out a prima facie case against the defendant which is all she needed in order to commence her claim.

[15] The defendant/moving party submits that as of July 11, 2011, when the plaintiff filed her complaint with the CPSO, she was of the view that the defendant had “destroyed her eyes”. In the defendant/moving party’s view, that was sufficient for the plaintiff to realize that she had a cause of action against the defendant which she could pursue in court. In other words, at that point the plaintiff knew or ought to have known that a legal proceeding was the appropriate course of action.

[16] The defendant/moving party therefore submits that the plaintiff’s appropriate remedy in this matter is a claim against her former lawyer, Mr. Munro, and that her claim against the defendant in this matter should be dismissed.

The plaintiff/responding party

[17] The plaintiff/responding party takes the position that her complaint to the CPSO in July 2011 was based on the fact that the inherent risks of the surgery, when properly done, were not fully explained to her by the defendant. She had no idea that even when properly done the surgery could result in fluctuations in the quality of her eyesight as well as incapacitating glare. She insists that had she known about the potential for such long-term effects she would never have had the surgery.

[18] The plaintiff concedes that her claim on that ground may well be statute barred by operation of s. 5 of the Limitation Act.

[19] Nevertheless, the plaintiff submits that a different cause of action arose when she discovered that Dr. Waring was of the view that the surgery performed by the defendant on her eyes had not met the appropriate standard of care.

[20] The plaintiff therefore submits that as the defendant’s negligent surgical procedure and related breach of the standard of care owed the plaintiff was not discovered until 2013, she could not have known prior to that date that she had a claim in negligence. The plaintiff therefore takes the position that she did not discover her claim in negligence against the defendant, as envisioned by the provisions of Limitation Act, until November 2013.

[21] The plaintiff therefore submits that when she commenced her action in the spring of 2014, she was well within the two-year limitation period, having only discovered the claim when she received Dr. Waring’s letter of opinion in November 2013.

The Relevant Legal Principles

(a) Summary judgment

[22] In its landmark decision on the issue of summary judgment in Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada found that summary judgment rules should generally be interpreted very broadly. The court held that proportionality and fair access to affordable, timely and just adjudication of claims is the paramount objective.

[23] On a summary judgment motion the moving party has the onus of establishing that there is no genuine issue requiring a trial. The responding party must lead evidence of specific facts showing that there is in fact at genuine issue for trial. It is said that in those circumstances the responding party must “put their best foot forward” and not hold anything back.

[24] The judge hearing the motion is entitled to assume that both parties have advanced their best case and put forward the necessary evidence in support of that case.

[25] Pursuant to rule 20.04(2.1) the judge hearing the motion may also engage in a weighing of the evidence, an evaluation of the credibility of a particular deponent, and may also draw any reasonable inference from the evidence.

[26] Importantly for this case, rule 20.04(4) provides that where the judge hearing the matter is satisfied that the only genuine issue is a question of law, that judge may determine the question of law and grant judgment accordingly.

(b) The limitation period and discovery of the claim

[27] There is no issue about the fact this proceeding is governed by the two-year limitation period set out in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Rather, the issue is when the plaintiff discovered she had a claim against the defendant.

[28] Discovery of a claim is governed by s. 5(1) of the Limitations Act, which reads as follows:

Discovery

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; and

(b) the day on which a reasonable person with the abilities and circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

5 (2) A person with a claim shall be presumed to have known of the matters referred to in clause 1(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[29] From this I conclude that the plaintiff may not simply rely on her lack of subjective understanding as to whether she had a claim such as to delay the start of the limitation period. Rather, it is necessary to consider the date on which a reasonable person in the plaintiff’s circumstances would have first known that they had a claim. The limitation period will then run from the earliest of those two dates.

[30] Determining when the plaintiff first discovered she had a claim involves a consideration of the question of when the plaintiff, or a reasonable person with the plaintiff’s abilities and in her circumstances, had knowledge of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn. Certainty of liability is not required; however, a plaintiff will be deemed to have constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercising reasonable diligence. Suspicion alone may be enough: see Grant Thornton LLP v. New Brunswick, 2021 SCC 31 (“Grant Thornton”).

[31] The court also held in Grant Thornton that for the purpose of determining discoverability, the plaintiff does not need knowledge that the defendant owed her a duty of care or that the defendant’s act or omission breached the applicable standard of care.

(c) The limitation period and multiple causes of action

[32] The plaintiff is essentially alleging 2 separate claims or causes of action against the defendant.

[33] The first claim involves an allegation that the defendant failed to properly advise the plaintiff of the risks of RK surgery and of the subsequent enhancement procedures she had done, nor was she told about the possible side effects or long-term effects of those procedures. The plaintiff is therefore essentially arguing that the consent that she gave to the surgery was not a properly informed consent. This was the basis of her July 11, 2022, complaint to the CPSO.

[34] The plaintiff also claims that the defendant breached the standard of care he owed her in the course of performing the surgery on her eyes. The plaintiff did not become aware of that claim until she received the report from Dr. Waring in November 2013.

[35] The plaintiff suggests separate and distinct causes of action may mean discovery of one such cause of action may not necessarily lead to discovery of another, separate, cause of action in the same matter. She cites the case of Grey Condominium Corp. No 27 v. Blue Mountain Resorts Ltd. 2008 ONCA 384. That case involved latent construction defects which were found to be defects that may not be readily discoverable. The court in that case found that the discovery of one such latent defect may not reasonably give rise to discovery of others due to the inherently latent nature of construction defects.

[36] In that case it was the construction defect, in other words the injury, that was latent.

[37] That is not the situation in this case. The plaintiff’s injury was not latent. Her eye problems were only too readily apparent to her. The origin and cause of her eye problems was made known to her in the course of her examination by the optometrist at Kanata Optometry on May 18, 2011. The plaintiff testified the optometrist told her that her “corneas were deformed due to the RK procedures.” To be sure, the optometrist expressed no opinion on the quality of the RK surgery, that being the standard of care issue which the plaintiff says was unknown to her at the time and which she describes as being latent. However, as the court held in Grant Thornton, knowledge that the defendant breached the standard of care owed is not required for the purpose of determining discoverability.

[38] In my view, the advice of the optometrist could also be said to have given rise, at the very least, to the “suspicion” referred to in Grant Thornton.

[39] The plaintiff chose not to believe the optometrist, choosing instead to meet with the defendant ten days later on May 28, 2011, ostensibly to obtain a copy of her medical records. She denied the suggestion she did so in order to take her records to a lawyer. She testified she decided to obtain the records as a precaution against them being destroyed by the defendant due to the passage of time. She did admit though that she wanted to “get someone eventually to look at it” in order that she might “have an understanding of what was going on”.

[40] The plaintiff has referred me to a number of authorities tending to stand for the proposition that a plaintiff is not in a position to commence a claim for negligent performance of surgery unless and until they receive medical advice that the doctor involved breached the standard of care owed to the plaintiff in the performance of the procedure in question; see Twomey v. Dr Karas, 2007 ONSC 37898, Gaudet v. Levy, Zurba v. Lakeridge, 2010 ONSC 318, Bearden v. Lee, 2003 ONSC 1178 and Urquhart v. Allen Estate.

[41] With respect, I do not find these cases to be persuasive. All of those cases predate the decisions of the Supreme Court of Canada in both Hyrniak and Grant Thornton. In my view, those two decisions have significantly altered the traditional approach to cases of this nature, both in terms of when an issue such as discoverability of a claim can be decided, as well as the basis on which it should be decided.

[42] The defendant has directed me to the recent decision of the Ontario Court of Appeal in Gordon Dunk Farms Ltd. v. HFH Inc., 2021 ONCA 681. That case also involved a summary judgment motion with the primary issue also being when the appellant knew or ought to have known that it had a claim against the respondents.

[43] At paragraph 32 of the decision, the court questioned whether a separate limitation period begins to run in respect of each act or omission committed by a defendant as part of the negligent conduct contributing to the loss, thereby requiring a separate discoverability analysis for each act or omission.

[44] In answering that question Feldman J.A. reviewed the limitations jurisprudence of the Ontario Court of Appeal as well as that of the Supreme Court in Grant Thornton. She also reviewed the provisions of s.5 of the Limitations Act before finding as follows:

34 A plaintiff need not know the exact act or omission by the defendant that caused the loss in order to start the limitation period running. What it needs to know is that an incident occurred that resulted in a loss (s. 5(1)(a)(i), that the defendant did or failed to do something to cause that loss (s. 5(1)(a)(ii) and (iii), and that, having regard to the nature of the injury, loss or damage, a court proceeding is an appropriate means to seek a remedy (s. 5(1)(a)(iv).

35 The damages and injury caused by a car accident provide an instructive example. The defendant's car slams into the plaintiff’s car. The plaintiff knows the defendant was driving but may not know whether the defendant fell asleep at the wheel, neglected to get the brakes of the car serviced, was distracted by a phone call, was drunk, or was just careless. The plaintiff will plead all of those allegations as part of its negligence claim. In discovery, the true facts will likely be disclosed. It is also possible that the actual cause or causes of the accident may not be revealed until trial. But the action must be commenced within two years of when the plaintiff knows or ought to know that the defendant committed some act or omission that caused the loss or damage.

36 And what is meant by “knows” is that the plaintiff has the evidentiary basis to believe that the defendant did an act or omission that caused a loss for which a court proceeding is appropriate to obtain a remedy - the basis of a possible inference of liability, in the words of Moldaver J. Of course, at trial, it may turn out that the defendant was not responsible for the loss, either because they owed no duty of care, they met the standard of care, or they did not commit the act or mission that was alleged.

[45] Justice Feldman also considered the meanings of the words “claim” and “cause of action”. She found that a “claim is pursued in a court proceeding to obtain a remedy for a loss that the defendant caused the plaintiff to suffer by its act or omission. To obtain a remedy in a court proceeding, a person must assert a cause of action.”

[46] As I read that passage, Justice Feldman effectively reached the same conclusion reached by Justice Moldaver, at paragraph 37 of his decision in Grant Thornton, when he rejected the argument that there was any meaningful distinction between the two terms.

[47] In my view, the decisions in the Grant Thornton and Gordon Dunk Farms cases are the controlling case law on the issue of discoverability of a claim.

Application of the Relevant Legal Principles to the Facts of This Case

[48] A finding that this action is statute barred would effectively end the matter as in such circumstances the moving party’s summary judgment motion would have to be granted and the action dismissed.

[49] The chronological history of this matter to date has been established for many years. It is not going to change between now and the time when a trier of fact might consider the issue. That being the case, I am satisfied that no trier of fact would ever be in a better position than I currently am to decide this issue.

What did the plaintiff know and when did she know it?

[50] In her July 11, 2011, complaint to the CPSO about the defendant, the plaintiff apparently alleged that during an eye examination in the spring of 2011, with a different practitioner, who we now know to be the optometrist in Kanata, Ontario, she learned that the treatment provided by the defendant had harmed her eyes and that the ophthalmological procedures he performed were inappropriate.

[51] In her cross examination the plaintiff agreed that at the time of her complaint to the CPSO she believed that she had not been properly informed of the risks of the procedure, a belief that was based on her review of the informed consent form she saw in her medical file. She also acknowledged that by the time she made her complaint she was experiencing “starbursts”, having trouble seeing contrast, and was losing the image sharpness in her eyesight. She agreed with the suggestion that those were all symptoms relating to her vision which she did not have before undergoing the RK surgeries.

[52] Prior to her eye surgeries the plaintiff could get perfect 20/20 vision using corrective lenses but after the surgery she was no longer able to do that. She agreed that post-surgery she has been experiencing periodic fluctuations in her vision, and in particular, has difficulty seeing at night.

[53] The plaintiff also acknowledged in her cross examination that the Kanata optometrist told her in the spring of 2011 that her corneas were deformed, that the deformity was caused by the RK procedure, and that her corneas were, to use her phrase, “bumpy”. She also learned that because of those conditions she would never be able to wear contact lenses, nor would she be able to correct her vision to 20/20 with glasses.

[54] Most importantly, in the course of her examination in this matter the plaintiff agreed with the suggestion that at the time of her complaint to the CPSO she believed that the RK surgery and subsequent enhancement procedures had “essentially destroyed” her eyes.

[55] The plaintiff also acknowledged engaging in internet searches in the spring of 2011 in the course of which she learned the defendant had been subjected to restrictions on his practice by the CPSO and that there had been other complaints made by other patients of the defendant. That caused her to realize that she was not the only person having problems with their vision after undergoing surgery performed by the defendant.

[56] On the strength of the plaintiff’s own evidence, I am satisfied that when she made her complaint to the CPSO she had knowledge, actual and constructive, of the material facts upon which a plausible inference of liability on the defendant’s part could be drawn. She knew that her eyes had been “essentially destroyed”, she knew that was not the result of natural causes but rather, was the result of the RK surgery and subsequent enhancements, and further, she knew that it was the defendant who performed the RK surgery and subsequent enhancements. This was a level of knowledge that far exceeded mere suspicion or speculation. It was also a level of knowledge which in my view constituted the “core of substandard treatment, the material facts which constitute negligence and the causation that give rise to a cause of action” as described by this court in the recent decision of Musslan v. Hamilton General Hospital, 2022 ONSC 1243.

[57] I am also satisfied that by the summer of 2011 the plaintiff knew, or ought to have known, that a proceeding would be an appropriate means to seek a remedy. I say that because of the following facts:

• The plaintiff sought out her medical reports as she thought she might “eventually get someone to have a look at it”;
• The plaintiff knew by then that other patients of the defendant were having experiences similar to her own and she reached out to some of them;
• The plaintiff made a formal complaint to the CPSO based on her allegation of uninformed consent; and
• The plaintiff eventually retained litigation counsel which she did at a point in time prior to the expiry of the two-year limitation period.

[58] That being the case, all 4 of the conjunctive list of factors set out in is s. 5 (1)(a) (i-iv) of the Limitations Act have been met. The plaintiff knew by the date she filed a complaint with the CPSO that her eyes were damaged, she knew that the damage was not the result of natural causes but had been caused by an act or omission which was committed by the defendant, and she knew, or she ought to have known, that a proceeding would be the appropriate means to a remedy.

The uninformed consent claim

[59] By the spring of 2011 the plaintiff had concluded that she was not in fact a suitable candidate for the surgery that she received and that she did not receive suitable information prior to the surgery being performed such as to allow her to provide informed consent to the procedures.

[60] As the plaintiff did not issue her Statement of Claim in this matter until the spring of 2014 her claim against the defendant based on uninformed consent is clearly statute barred by virtue of the fact that the two-year limitation period provided by the Limitations Act had, at that point in time, been expired for nine months.

The standard of care claim

[61] I also reject the plaintiff’s claim that the potential claim for breach of the standard of care owed her by the defendant was not discoverable until receipt of reports from Dr. Yoo and Dr. Waring report in 2013.

[62] The plaintiff did not need knowledge that the defendant owed her a duty of care, or that the defendant’s acts or omissions breached the applicable standard of care, in order to understand that she had a plausible cause of action in negligence against the defendant. That type of knowledge is frequently not learned until the discovery process, or the exchange of experts reports or, for that matter, even the trial itself: see Grant Thornton at para. 48, and see also Gordon Dunk Farms at paras. 34 and 35.

[63] The lack of informed consent claim and the standard of care claim are both based in negligence. On the facts of this case, I am satisfied that the plaintiff knew or ought to have known, that she had a plausible claim in negligence against the defendant at the time she made her complaint to the CPSO in July 2011. I am also satisfied that a reasonable person, in the circumstances of the plaintiff at that time, would also have known or ought to have known that they had a plausible claim against the defendant by that point in time.

[64] I am unable to find that the plaintiff’s discovery of her standard of care claim in any way altered the running of the limitation period herein.

Conclusion

[65] The plaintiff’s claim against the defendant is statute barred as the two-year limitation period, which began to run no later than July 11, 2011, expired in July 2013, some 9 months before the Statement of Claim in this matter was issued on April 2, 2014.

[66] There is therefore no genuine issue for trial.

[67] Accordingly, pursuant to the provisions of Rule 20.04, summary judgment is granted to the defendant/moving party.

[68] This action is dismissed.

I thank both counsel for their very thorough and efficient presentation of this case.

Costs

If counsel are of the view that this is an appropriate case for a costs award, and if counsel are unable to agree on what that award should be, then they may address me further in writing. Counsel for the defendant/moving party shall file their submissions, limited to two pages double spaced, plus appropriate attachments which shall include a bill of costs, no later than April 29, 2022. Counsel for the plaintiff/responding party shall then file her own written submissions, again limited to two pages double spaced, plus appropriate attachments, including a bill of costs, on or before May 6, 2022.

C. M. Smith, J Date: April 12, 2022