



COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Wahl, 2015 ONCA 778

DATE: 20151116

DOCKET: C60253

Cronk, Epstein and Huscroft JJ.A.

BETWEEN

Louise Suzanne Brown

Plaintiff (Appellant)

and

John Wahl and Maurizio Casciato

Defendants (Respondents)

Mark H. Arnold and Joyce Weinman, for the appellant

Andrew Lundy, for the respondents

Heard: November 9, 2015

On appeal from the order of Justice David G. Stinson of
    the Superior Court of Justice, dated February 27, 2015, with reasons reported
    at 2015 ONSC 1328.

By the Court:

[1]

This is an appeal from the summary judgment granted by the motion judge
    dismissing the appellants negligence action against the respondents because it
    is statute-barred due to the expiry of the two-year limitation period under s.
    4 of the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched. B. (the
    Act).

[2]

The appellant raises two main grounds of appeal.  First, relying on this
    courts decision in
Lawless v. Anderson
, 2011 ONCA 102, 276 O.A.C. 75,
    she argues that the motion judge erred by failing to apply the test for discoverability
    of a negligence claim in a case where, as here, the claim arises from elective
    cosmetic dental surgery.

[3]

Lawless
was a medical malpractice case.  In describing when the
    plaintiff knew all the material facts required to discover her claim against
    the defendant, this court stated, at para. 30:

It was clear to the appellant at this point that she had
    suffered more than an unfortunate and unsatisfactory outcome.  She was aware of
    what was wrong, why it was wrong, what would have to be done to correct it and
    who was responsible.  In other words, the appellant had all of the material
    facts necessary to determine that she had
prima facie
grounds for
    inferring that the respondent had been negligent.

[4]

The appellant submits that, in the above-quoted passage, the
Lawless
court established a four-part test for determining when a prospective plaintiff
    may be said to have known the material facts necessary for bringing a
    negligence claim against a medical practitioner in a cosmetic surgery action. 
    This test establishes, according to the appellant, that such a claim is
    discovered by the prospective plaintiff only when he or she knows: i) of the
    harm alleged; ii) why it was wrong; iii) what action is required to correct the
    wrong; and iv) who was responsible.

[5]

Based on this suggested four-part test, the appellant argues that the
    motion judge erred by failing to properly or adequately analyze the evidence and
    apply it to the questions of when the appellant was positioned to determine
    why her dental treatment by the respondents was wrong and what would have
    to be done to correct it.

[6]

We reject this argument.

[7]

First,
Lawless
does not create a new four-part test for
    discoverability in respect of professional malpractice claims.  To the
    contrary,
Lawless
confirms, at para. 30, that the test for
    discoverability is when a prospective plaintiff had all of the material facts
    necessary to determine that she had
prima facie
grounds for inferring
    that the respondent had been negligent.  The
Lawless
courts
    reference, immediately preceding this comment, to the four factors relied on by
    the appellant reflects the application of this test to the evidence before the
    court in
Lawless
.

[8]

That
Lawless
does not establish a new test for discoverability
    is further confirmed by this courts comments in
Lawless
, at para. 23:

Determining whether a person has discovered a claim is a
    fact-based analysis.  The question to be posed is whether the prospective
    plaintiff knows enough facts on which to base an allegation of negligence
    against the defendant.  If the plaintiff does, then the claim has been
    discovered, and the limitation begins to run: see
Soper v. Southcott
(1998), 39 O.R. (3d) 737 (C.A.) and
McSween v. Louis
(2000), 132
    O.A.C. 304 (C.A.).

[9]

These statements accord with the well-established test for
    discoverability described by the Supreme Court of Canada in
Peixeiro v.
    Haberman
, [1997] 3 S.C.R. 549, at para. 18.

[10]

Second,
    we see no error in the discoverability analysis conducted by the motion judge.

[11]

Section
    5(1) of the Act provides:

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 in the circumstances of the person with the claim first ought to have known
    of the matters referred to in clause (a).

[12]

Under
    s. 5(2) of the Act, a claimant is presumed to have known of the matters
    referred to in s. 5(1)(a) on the day the act or omission on which the claim is
    based took place, unless the contrary is proved.

[13]

The
    motion judge considered these provisions of the Act and the governing
    principles regarding discoverability.  He expressly addressed this courts
    decision in
Lawless
, noting this courts comments at para. 23, set out
    above.  He went on to find that:

1)

prior
    to December 13, 2011, when the appellant met with Dr. Singh, her new dentist,
    she was experiencing serious and ongoing problems associated with the implant
    and dental prostheses procedures performed by the [respondents];

2)

at
    the December 13, 2011 meeting, Dr. Singh informed the appellant that he would
    have conducted the procedure differently, and would have used a surgical guide
    to place the implants in an ideal location, which would enable him to predict
    where the implants needed to go to achieve ideal anesthetics, speech and
    function; and

3)

at
    the same meeting, Dr. Singh also explained to the appellant the problem with
    her prostheses and the cause of breakage in her dentures.

[14]

These
    findings of fact were open to the motion judge on the evidentiary record before
    him.  They are unchallenged on appeal.  They amply support the motion judges
    conclusion that, armed with the facts known to her before December 13, 2011 and
    the information provided to her by Dr. Singh at their December 13, 2011
    meeting, the appellant ought to have known, by that date, that the dental
    problems she was experiencing were caused by substandard treatment by one or
    both of the respondents.  In short, the appellant knew sufficient facts at the
    end of her December 13, 2011 consultation with Dr. Singh on which to base an
    allegation of negligence against the respondents.

[15]

This
    was sufficient to establish that the appellant discovered her claim no later
    than December 13, 2011 and, consequently, that the limitation period began to
    run on the same day.  The law of discoverability does not require that a
    prospective plaintiff know the exact extent or type of harm he or she has
    suffered, or the precise cause of his or her injury, in order for a limitation
    period to run:
Peixeiro
, at para. 18.  We therefore agree with the
    motion judges conclusion that the appellants actions against the respondents
    were statute-barred because they were commenced in January 2014, after the
    expiry of the two-year limitation period under the Act on December 13, 2013.

[16]

The
    appellant also attacks the motion judges finding that an expert opinion was
    unnecessary in this case in order for the appellant to conclude that there was
    a likelihood of negligence of some kind by one or both of the respondents.

[17]

Contrary
    to the appellants submission, this finding does not collide with the
    proposition that expert evidence is required to establish breach of a duty of
    care by a medical professional.  There is an important difference between proof
    of the discovery of a claim for the purpose of the commencement of a limitation
    period under the Act and proof of the breach of a duty of care.  As this court
    stated in
Lawless
, at para. 28:

While courts speak of the need to obtain a medical opinion or
    the need to have access to the medical records, these are not required in all
    cases.
Moreover, a formal written medical opinion is not required  what a
    prospective plaintiff must know are the material facts necessary to make a
    claim, whatever form they come in
.  [Citations omitted; Emphasis added.]

[18]

The
    motion judge put it this way, at paras. 3334:

While [the appellant] may have learned additional information
    about [the respondents] substandard treatment once she received the expert
    reports in early 2014, in my view, those reports do not detract from the fact
    that she had sufficient knowledge to be aware of a breach by December 13, 2011
    at the latest.  Put another way, I find that the claims were discoverable by
    that date.

This is not a case in which an expert opinion was necessary for
    the plaintiff to conclude that there was the likelihood of negligence of some
    kind.  As the cases mentioned above make plain, it is enough for the plaintiff
    to have
prima facie
grounds to infer that the defendants caused harm,
    and certainty of the defendants responsibility for the act or omission that
    caused the loss is not a requirement for the limitation period to begin to run.

[19]

We
    agree.

[20]

Finally,
    we note that there is no suggestion that this was an inappropriate case for
    summary judgment under the principles enunciated in
Hryniak v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87.  Nor is there any suggestion that the motion
    judge exceeded his authority on the summary judgment motion.  Rather, the
    appellant takes aim at the motion judges conclusions on the motion.

[21]

For
    the reasons given, the appellants challenge to the motion judges decision
    fails and the appeal is dismissed.  The respondents are entitled to their costs
    of the appeal, if sought, fixed in the amount of $6,528, inclusive of
    disbursements and all applicable taxes.

Released:

NOV 16 2015                                   E.A.
    Cronk J.A.

EAC                                                Gloria
    Epstein J.A.

Grant
    Huscroft J.A.


