



COURT OF APPEAL FOR ONTARIO

CITATION: Dickie v. Minett, 2014 ONCA 265

DATE: 20140403

DOCKET: C56191

Rosenberg, Gillese and Strathy JJ.A.

BETWEEN

Robert Dickie and Karen Dickie

Plaintiffs (Appellants)

and

Charles Minett

Defendant (Respondent)

Patrick G. Morris, for the appellants

Andrew A. Lundy, for the respondent

Heard: March 31, 2014

On appeal from the judgment of Justice Thomas A. Bielby
    of the Superior Court of Justice, dated September 14, 2012, with reasons
    reported at 2012 ONSC 4474.

ENDORSEMENT

[1]

The appellants appeal from the judgment of Bielby J. dated September 14,
    2012, dismissing their action in negligence. They submit that the trial judge
    erred in failing to find that the respondent was negligent in the extraction of
    Mr. Dickies wisdom tooth, referred to as tooth number 48.

[2]

Their principal argument is that an inference of negligence arises from
    the fracture of Mr. Dickies jaw during the course of the surgery. They say
    this calls for an explanation from the respondent, and that the respondents
    reliance on his clinical notes and his usual practice was insufficient to
    demonstrate the exercise of reasonable care.

[3]

The appellants submission amounts to
res ipsa loquitur
without
    using that term. That doctrine was put to rest in
Fontaine v. British
    Columbia (Official Administrator)
, [1998] 1 S.C.R. 424. While there remain
    cases in which circumstantial evidence can raise an inference of negligence which
    calls for an explanation from the defendant, the appellants have not persuaded
    us that the trial judge erred in concluding that the evidence did not reach
    that threshold in this case.

[4]

The trial judge declined to draw an adverse inference from the
    respondents lack of independent recollection in relation to the extraction of
    tooth 48, which occurred some six years prior to the trial. He was entitled to
    accept the respondents explanation for his lack of recollection and to rely on
    his evidence of how he performed the extraction, based on his post-operative
    notes and his invariable practice.

[5]

There was expert evidence, accepted by the trial judge, that a patients
    jaw could break during surgery in spite of the use of reasonable care. It was a
    known, albeit very rare, complication of such surgery. Here, there were a
    number of acknowledged risk factors, including the loss of almost 80 percent of
    the jaw bone structure in the area of the tooth due to severe periodontal
    disease. The tooth was deeply impacted and fused to the bone.

[6]

The trial judge accepted the evidence of the respondents expert that he
    met the standard of care and rejected the appellants expert evidence. He gave detailed
    and cogent reasons for doing so, citing the failure of the appellants expert
    to adequately consider the risk factors involved in this particular extraction.
    In the absence of palpable and overriding error, there is no basis on which to
    interfere with his findings based on his assessment of the evidence.

[7]

The appeal is therefore dismissed, with costs to the respondent in the
    amount of $15,000, inclusive of all applicable taxes and disbursements, as
    agreed by the parties.

M. Rosenberg J.A.

E.E.
    Gillese J.A.

G.R.
    Strathy J.A.


