Valerie Wise

The defendant dentist brought a motion for summary judgment to dismiss the plaintiff's dental malpractice action on the basis that it was commenced beyond the two-year limitation period.

The court held a mini-trial to determine the issue of discoverability.

The plaintiff argued he only discovered the claim after a consultation with another dentist on June 15, 2010, while the defendant argued the claim was discoverable earlier when the plaintiff sought treatment from other dentists for ongoing issues.

The court found that a reasonable person in the plaintiff's position would have realized the potential negligence by May 20, 2010, when the tooth treated by the defendant was extracted.

As the action was commenced more than two years after this date, the motion was granted and the action dismissed.

The defendants moved for summary judgment dismissing a dental malpractice action on the basis that the claims were commenced outside the two-year limitation period under the Limitations Act, 2002.

The court held that discoverability turned on when a reasonable person in the plaintiff's position knew or ought to have known the material facts necessary to allege negligence, not when formal expert reports were later obtained.

On the evidence, including the plaintiff's ongoing objectively unsatisfactory outcome and a December 13, 2011 discussion with a subsequent treating dentist explaining that the procedure should have been done differently, the court found the claims were discoverable no later than that date.

Because the actions were not commenced until January 2014, they were statute-barred and summary judgment was granted dismissing the action.

The defendant appealed an order setting aside a registrar’s dismissal of a dental negligence action that had been dismissed after the plaintiff’s counsel failed to respond to a Rule 48 status notice.

The appeal turned on whether the motion judge should apply the more lenient four-factor test governing relief from a registrar’s administrative dismissal order or the stricter delay test used at status hearings and on motions to restore to the trial list.

The court held that the established Court of Appeal jurisprudence required application of the Scaini line of cases under rules 48.14(16) and 37.14, and that there was a principled basis for treating registrar dismissals differently from status-hearing dismissals.

Finding no error in principle and no appreciable error in the application of that test, the court dismissed the appeal.

The defendants, a dentist and an oral surgeon, brought a motion for summary judgment to dismiss the plaintiff's action for dental malpractice and battery.

The plaintiff alleged that the defendants extracted the wrong tooth.

The court found that the case turned heavily on the credibility of the parties, particularly the plaintiff, and that the documentary record alone was insufficient to resolve the factual disputes.

Applying the principles from Hryniak v. Mauldin, the court concluded that a full trial was not necessary but that oral evidence was required.

The court ordered an abbreviated summary trial under Rule 20.05 to determine the specific factual disputes and damages.