ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-17-370 DATE: 2022-01-10

B E T W E E N:

GABRIELLA MARINA MICHIELI Plaintiff

• and -

JAMES KEE GONG MAO and J. MAO DENTISTRY PROFESSIONAL CORPORATION o/a ABA DENTAL CLINIC Defendants

COUNSEL: V. Popescu., for the Plaintiff M. Hargadon, for the Defendants

HEARD: October 27, 2021 via Zoom

REASONS ON MOTION FOR SUMMARY JUDGMENT

Justice J. Fregeau

Overview

[1] In this personal injury action, the plaintiff, Gabriella Marina Michieli (“Ms. Michieli”), claims compensatory damages arising out of an alleged assault and battery committed against her by the defendant, James Kee Gong Mao (“Dr. Mao”), a dentist. Ms. Michieli contends that Dr. Mao committed these torts against her at his dental clinic on August 12, 2015, after she assisted him with the sedation of a patient.

[2] Ms. Michieli further claims that the defendant, Mao Dentistry Professional Corporation o/a ABA Dental Clinic (the “defendant clinic”), is vicariously liable for the alleged tortious conduct of Dr. Mao.

[3] On this motion, Ms. Michieli seeks an order for Summary Judgment finding liability against Dr. Mao for the torts of assault and battery and an award of damages against Dr. Mao to compensate for Ms. Michieli’s pain and suffering. The plaintiff also seeks a declaration that the defendant clinic is vicariously liable for the actions of Dr. Mao.

[4] In response, Dr. Mao admits liability for the tort of assault. The defendants also concede that the defendant clinic is vicariously liable for the tortious conduct of Dr. Mao. Dr. Mao disputes liability for the tort of battery and the defendants dispute the quantum of damages sought by Ms. Michieli.

Background

[5] Dr. Mao practices dentistry in Thunder Bay and operates two dental clinics under the name “ABA Dental Clinic”. Ms. Michieli began to work for Dr. Mao in June 2015, initially as a receptionist and then as a dental assistant.

[6] On August 12, 2015, Dr. Mao was performing a wisdom tooth extraction on a patient and was assisted by Ms. Michieli. Dr. Mao asked Ms. Michieli to provide suction to remove any excess anesthetic from the patient’s mouth. Ms. Michieli did not do so to Dr. Mao’s satisfaction. He became angry with her and told her to remove herself from the procedure, which she did.

[7] Subsequently, Dr. Mao directed Ms. Michieli to accompany him to a staff room where he told her that she would have to taste the dental anesthetic in order to understand why suctioning it was important. Dr. Mao told Ms. Michieli to sit in a chair and open her mouth. She did so with her eyes closed.

[8] Dr. Mao then approached Ms. Michieli with a hypodermic needle loaded with lidocaine solution. As he did so, Ms. Michieli opened her eyes and realized that Dr. Mao was serious about administering the anesthetic to her. She told him to stop and got up from the chair she was sitting in.

[9] The defendants deny that Dr. Mao placed the hypodermic needle in Ms. Michieli’s mouth.

[10] On this motion, Ms. Michieli’s evidence on this issue is as follows:

I sat in a chair located in the staff room and was then told by [Dr. Mao] to open my mouth…I opened my mouth…[Dr. Mao] then approached me with the needle. When I realized that the needle was getting close to my mouth and that he was serious, I said “no”. [Dr. Mao], in a fit of anger, then placed the needle into my mouth…I turned my head, closed my mouth and told [Dr. Mao] to stop by saying “no” a second time.

[11] At her examination for discovery, Ms. Michieli’s evidence on this issue was:

• That she realized that Dr. Mao was serious about administering the anesthetic to her when the needle got close to her mouth
• That she had assumed the needle was close to her mouth but could not know if it actually was because her eyes were closed and she did not feel anything
• That she did not know in fact if the needle came into contact with her mouth, and she “couldn’t feel if it was in [her] mouth or not, [she] did not know”.

[12] The plaintiff’s factum concedes that Ms. Michieli “lacked conclusive knowledge of whether she actually came into contact with the needle in question”.

[13] Ms. Michieli subsequently attended hospital and, pursuant to medical direction, underwent prophylactic measures for HIV, that being the administration of antiretroviral drugs to prevent possible HIV infection. The defendants concede that these drugs produce nausea and are generally unpleasant.

[14] Ms. Michieli deposes that the events of August 12, 2015 have affected her mental, physical and emotional well-being. The prescription for her HIV medication was taken over five days during which she experienced a number of side-effects, including but not limited to drowsiness, loss of appetite and vomiting. She lost weight and was required to undergo blood tests at one-month intervals for three months after August 12, 2015.

[15] Ms. Michieli further deposes that she attended three psychotherapy counselling sessions to address ongoing stress and anxiety that she experienced as a direct result of Dr. Mao’s conduct and that she still experiences anxiety and stress when she drives by the ABA Dental Clinic.

The Law of Summary Judgment

[16] Rule 20.04(2)(a) of the Rules of Civil Procedure states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial.

[17] There will be no genuine issue requiring a trial when the motions judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process:

1. Allows the motions judge to make the necessary findings of fact;
2. Allows the motions judge to apply the law to the facts; and
3. Is a proportionate, more expeditious and less expensive means to achieve a just result.

Hryniak v. Mauldin, 2014 SCC 7 at para. 48

[18] In determining whether there is a genuine issue requiring a trial, Rule 20.04(2.1) requires the motions judge to consider the evidence submitted by the parties and empowers the motions judge, when doing so, to weigh the evidence, evaluate the credibility of a deponent and to draw any reasonable inferences from the evidence.

[19] Rule 20.04(2.1) further allows the motions judge, for the purposes of exercising any of the powers set out in subrule (2.1). to order that oral evidence be presented by one or more parties.

Discussion

[20] On this summary judgment motion, the defendants admit liability for assault and acknowledge that the plaintiff has endured some level of pain and suffering as a result. The defendants also concede that the defendant clinic is vicariously liable for Dr. Mao’s tortious conduct.

[21] The only issues in dispute on this summary judgment motion are:

1. Whether the tort of battery requires the plaintiff to prove that the needle held by Dr. Mao came into direct physical contact with the mouth of Ms. Michieli:
2. If so, does the evidence on this motion establish that fact, such that Dr. Mao is also liable to Ms. Michieli in battery; and
3. The quantum of damages.

[22] As to damages, the quantum sought by the plaintiff is modest and the parties are not far apart.

[23] I am satisfied that the record on this motion allows me to make the required findings of fact and apply the relevant law to those findings. In all the circumstances of this case, I have no hesitation in concluding that summary judgment is a proportionate, expeditious and less expensive means to achieve a just result in this personal injury action.

The Tort of Battery

[24] It is settled law that to establish battery, a plaintiff must prove direct physical contact with his/her person. In Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] S.C.J. No. 26, McLachlin J., as she then was, described it as a “settled rule” that a plaintiff in a battery case must show “contact through a direct, intentional act of the defendant”. Thus, if a plaintiff is unable to establish, on a balance of probabilities, that a defendant made direct physical contact with his/her person, the claim in battery fails.

[25] A battery can also be established if an object held by a defendant is the instrument of the direct physical contact with a plaintiff. Therefore, in the context of this case, to succeed in battery the plaintiff must establish, on a balance of probabilities, that the needle held by Dr. Mao made direct physical contact with a part of her body.

[26] I accept the submission of the defendants that there is insufficient evidence to establish, on a balance of probabilities, that any physical contact occurred between the needle held by Dr. Mao and the plaintiff’s mouth.

[27] The plaintiff, in her affidavit in support of this motion, does state that “Dr. Mao placed the needle in my mouth…”. However, she also deposes that she turned her head and closed her mouth without saying anything about the needle actually making contact with the inside of her mouth or any other part of her body.

[28] In her examination for discovery, the plaintiff candidly testified that she did not feel the needle in her mouth and that she simply did not know if the needle came into contact with her mouth.

[29] I find that the plaintiff has failed to prove, on a balance of probabilities, that the needle held by Dr. Mao made direct physical contact with her body. The plaintiff’s claim in battery therefore fails.

Damages

[30] The plaintiff claims damages in assault for pain and suffering. The defendants concede that the defendant clinic is vicariously liable for any damages assessed against Dr. Mao.

[31] As a result of the tortious conduct of Dr. Mao, the plaintiff made one attendance and underwent one examination at the hospital emergency department. Out of an abundance of caution, the plaintiff was prescribed and took HIV medication over the course of five days. The defendants submit, appropriately, that they are not pursuing the issue of mitigation of damages.

[32] It is not in dispute that the plaintiff suffered side-effects from the HIV medication, including drowsiness, loss of appetite, nausea, vomiting and weight loss. I assume these side-effects were suffered concurrently and for a short period of time following the consumption of the medication.

[33] The plaintiff also suffered from stress and anxiety as a result of Dr. Mao’s conduct. She attended three psychotherapy sessions to address these issues.

[34] The plaintiff submits that damages in the amount of $35,000.00 are appropriate to compensate the plaintiff for pain and suffering. All cases cited by the plaintiff in support of this submission are for battery. The defendants submit that general damages for the tort of assault should be assessed at $17,500.00.

[35] In my opinion, damages of $20,000.00 are appropriate to compensate the plaintiff for the pain and suffering she suffered as a result of Dr. Mao’s conduct toward her. The defendant clinic is also vicariously liable for these damages. Judgment shall issue accordingly against both defendants.

[36] If the parties cannot agree on the costs of the action and this motion, they shall make written submissions as to costs, not to exceed five pages, exclusive of their respective Bills of Costs. The plaintiff’s costs submissions shall be filed within 14 days of the release of this decision; the defendants’ within seven days thereafter.

The Hon. Justice J. Fregeau Released: January 10, 2022