



COURT OF APPEAL FOR ONTARIO

CITATION:
Hodutu v. Bulger, 2015 ONCA 160

DATE: 20150311

DOCKET: C59287

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Mary Hodutu

Plaintiff (Appellant)

and

Dr. Joseph Bulger, Dr. Bohdan Kryshtalskyj, Dr.
    Karl Lederman, Dr. Jolanta Maj, Dr. John Kennedy, Dr. Jack Zosky, Dr. Andy
    Wong, Dr. Giovanni Delevadova, Dr. Paul Hu, Dr. Carmen Petrikowski, Dr. David
    Rawson and Dr. Victor Moncarz

Defendants (Respondents)

Marko Djukic, for the appellant

Esther Nwator, for the respondents

Heard and released orally:  March 3, 2015

On appeal from the order of Justice Graeme Mew of the Superior
    Court of Justice, dated March 5, 2014.

ENDORSEMENT

[1]

This is an appeal from the order of Mew J. granting the respondents
    motion to strike the appellants statement of claim on the basis that the
    applicable limitation period had expired.

[2]

The respondents are dental surgeons who provided services to the
    appellant from 1998 to June 2006.

[3]

The appellant claimed that dental implants inserted by the respondents
    caused her pain and infections. She says in her statement of claim that her
    pain ceased when the implants were removed in June 2006. The appellant
    commenced an action against the respondents on February 5, 2013, alleging
    professional negligence and medical malpractice.

[4]

The respondents brought a motion to strike the appellants statement of
    claim asserting, among other things, that the claim was statute barred by the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B.

[5]

The motion judge found that the applicable limitation period is,
    depending on the application of the transition provision in s. 24 of the
Limitations
    Act, 2002
, either one or two years from the date the appellant knew or
    ought to have known that she had a claim.

[6]

He noted that there is a rebuttable presumption under the
Limitations
    Act, 2002
that the limitation period starts to run when the impugned acts
    or omissions occur.  In these circumstances, this would be the day or days that
    she received the dental services.  In respect of those claims subject to the
    previous legislation, if her claim was discovered before January 1, 2004, she
    would be out of time and if it was not discovered by that date, the presumption
    in the new Act would apply.

[7]

The motion judge further found that there was no evidence to support the
    commencement of the limitation period from a date later than the date that she
    received the services she now impugns.  In fact, the appellant wrote to one of
    the respondents on August 24, 2006 informing him that his work was faulty and
    requesting compensation. The appellants claim was struck without leave to
    amend because the motion judge determined that it was commenced nearly five
    years after the latest presumptive expiry of the limitation period.

[8]

The appellant submits that the motion judge failed to properly consider
    the issues of discoverability and fraudulent concealment. Further, she submits
    that he erred in not granting her leave to amend her statement of claim.

[9]

We would not give effect to any of these grounds of appeal.

[10]

The
    appellants argument that she did not discover her claim in June 2006 is
    contradicted by her own pleadings which state that her pain ceased when the
    implants were removed in June 2006, and by the August 2006 letter to one of the
    respondents.

[11]

There
    is also no evidence to support the appellants allegation of fraudulent
    concealment and this issue was not raised before the motion judge.

[12]

Finally,
    there was no basis to grant leave to amend the statement of claim because the
    claim was statute barred.

[13]

The
    appeal is dismissed.

[14]

Costs
    in the amount of $5,000, all inclusive are payable by the appellant to the
    respondents.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


