



COURT OF APPEAL FOR ONTARIO

CITATION: Chelli-Greco v. Rizk, 2016 ONCA 489

DATE: 20160617

DOCKET: C61472

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

Rosalba Chelli-Greco

Plaintiff

(Respondent)

and

Dr. Michael J. Rizk

Defendant

(Appellant)

Susanne M. Sviergula, for the appellant

John J. Cardill, for the respondent

Heard and released orally: May 20, 2016

On appeal from the order of Justice C.T. Hackland of the Superior
    Court of Justice, dated November 13, 2015.

ENDORSEMENT

[1]

This is an appeal from an order dismissing the appellants motion for
    summary judgment. The sole issue before the motion judge was whether the respondents
    action was statute-barred because the two-year limitation period established by
    s. 4 of the
Limitations Act
, S.O. c. 24, Sched. B, had expired.

[2]

The respondent was a patient of the appellant dentist from September
    2005 to October 2012. She commenced her action alleging negligence on June 16,
    2014, which was within two years of her last appointment with the appellant. 
    The appellant argues that the limitation period began to run from September 21,
    2011 because that was the date that the respondent discovered her claim. On
    that date, the respondent complained about the dental work performed by the
    appellant, demanded reimbursement of $23,000.00, and threatened to go to a
    lawyer.

[3]

Under s. 5 (1)(a) of the Act, a claim is discovered on the date the
    claimant knew, or ought to have known, the material facts giving rise to the
    claim, and that
a proceeding would be an appropriate means to
    seek to remedy the claim.
The date is determined on a fact-based
    analysis.

[4]

The issue before the motion judge was when did the respondent know that
    a proceeding would be an appropriate means to seek a remedy. The motion judge
    accepted the respondents evidence that her decision to continue treatment with
    the appellant beyond September 21, 2011 was based on the appellants advice to
    her that her failed bridge was not his fault and he would endeavour to repair
    and remediate the problem.  . Given this finding, we see no error in the
    motion judges conclusion that the respondents action was not discovered until
    after the treatment and the dentist-patient relationship had ended and that her
    action was not statute barred as a result. See
Brown v. Baum
, 2016
    ONCA 325, at para. 18.

[5]

The appeal is dismissed.

[6]

The appellant seeks leave to appeal the costs awarded by the motion
    judge. We are not persuaded that the motion judge erred in the exercise of his
    discretion to award costs to the respondent that were significantly higher than
    those incurred by the appellant, given the nature of the motion.

[7]

Leave to appeal costs is granted, but the appeal is dismissed.

[8]

The appellant shall pay the costs of the appeal to the respondent in the
    agreed amount of $13,500, inclusive of taxes and disbursements.


K. Feldman J.A.

Paul
    Rouleau J.A.


Grant
    Huscroft J.A.


