



COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Rajanna, 2021 ONCA 453

DATE: 20210623

DOCKET: C68567

Rouleau, Hoy and van Rensburg
    JJ.A.

BETWEEN

Phyllis
    Johnson

Plaintiff (Appellant)

and

Dr. Shobha Rajanna, Dr.
    Anthony Sterling, Margaret Doe
and Mary Doe

Defendants (
Respondents
)

Daniel Lamberto Ambrosini, for the
    appellant

Monica Tessier, for the respondents

Heard: May 31, 2021 by video conference

On
    appeal from the order of Justice Michael T. Doi of the Superior Court of Justice,
    dated April 22, 2020, with reasons reported at 2020 ONSC 2489.

REASONS FOR DECISION

[1]

The appellant appeals the motion judges order,
    granting summary judgment in favour of the respondents, dismissing her action
    against them. She also seeks leave to adduce fresh evidence on appeal,
    consisting of the affidavit and report of Dr. Ronald M. Kellen, a retired
    dentist.

[2]

The appellant raises several arguments on
    appeal. It is unnecessary to address all of them. As we will explain, we admit
    the fresh evidence. We are persuaded that, with the benefit of the fresh
    evidence, the motion judge would have adjourned the summary judgment motion.
    Accordingly, we set aside the dismissal of the appellants action.

The background

[3]

In March 2015, the appellant commenced an action
    against the respondents for dental malpractice arising out of Dr. Rajannas
    extraction of a molar in April 2013. The appellant, a walk-in patient, was 70
    years old at the time of the extraction. She alleged that she suffered nerve
    damage from the procedure, which resulted in lost sensation and feeling in the
    lower left side of her tongue and mouth.

[4]

In February 2016, the respondents gave the
    appellant notice of their intention to seek a summary dismissal of the action
    because she had not obtained expert evidence to establish that the respondents
    had failed to meet the standard of care.

[5]

Over the course of the litigation, the appellant
    was represented by several lawyers. She had difficulty obtaining an expert
    report.

[6]

The respondents summary judgment motion was
    originally returnable January 16, 2019. However, the appellant and her
    then-counsel requested an adjournment in order to allow additional time to seek
    and retain an expert to provide an expert report. The adjournment was granted,
    and, on February 21, 2019, a timetable was ordered, peremptory to all parties
    to the action. That timetable required the appellant to serve her responding
    record by September 2, 2019. In a court attendance on another matter on August
    20, 2019, the appellant was reminded that the timelines continued to apply.

[7]

When the summary judgment motion was ultimately
    heard on Wednesday, March 11, 2020, the appellant represented herself. At the
    outset of the hearing, she handed up a two-page, undated and unsigned, written
    submission to the motion judge. It stated that after meeting on Saturday with a
    retired dentist, who was not identified, and reviewing her documentation, we
    found three discrepancies which might constitute negligence or malpractice. The
    letter went on to briefly describe the concerns.

[8]

The motion judge, after making some inquiries of
    the appellant, concluded that she was unable to obtain an expert report to
    support her claim against the respondents  and that, given the complexity
    surrounding the application of clinical dental skills in determining liability,
    this was not a case where liability could be determined without expert
    admissible evidence addressing the standard of care and causation. Because the
    appellant had not delivered expert evidence to support her dental malpractice
    claim, and the respondents had adduced their own expert evidence which states
    that the dental treatment at issue met the expected standard of care, he found
    there was no genuine issue to be tried.

The fresh evidence

[9]

In his affidavit, Dr. Kellen deposes that: he is
    the retired dentist who assisted the appellant in preparing her two-page
    written submission; his initial contact with the appellant was on Friday, March
    6, 2020; when he met with her on Saturday, March 7, 2020, he agreed to be
    retained to assist in her case; he had reviewed her file and identified issues
    that suggested the possibility of negligence but he required additional time to
    investigate them and complete his final report; he could not attend the hearing
    on March 11, 2020 due to health reasons; and he advised the appellant to give
    the judge the written submission and seek an adjournment so that he would have
    enough time to complete his report.

[10]

After the hearing, the appellant instructed Dr.
    Kellen to complete his report, which he did on May 15, 2020.

[11]

In his affidavit, Dr. Kellen deposes that,
    Based on my review of the file provided by Ms. Johnson, and direct interviews
    with Ms. Johnson, I am of the opinion there is very likely negligence and
    dental malpractice by the Defendants that require a more fulsome disclosure and
    appropriate adjudication. He attaches his report, dated May 15, 2020.

[12]

The opinions expressed in his report include
    that:

·

The paraesthesia (numbness) almost certainly
    developed from additional injection(s) possibly with a damaged needle. It
    would be negligence if Dr. Rajanna used a 27-gauge needle (rather than a
    25-gauge needle) to administer the anaesthetic or if she failed to test the
    needle point for a bur prior to re-use. The fact that the paraesthesia happened
    to both the lingual nerve and the inferior alveolar nerve raises the
    probability that more than one block injection was used and that one or more of
    the further injections had a bur-damaged needle tip, which would have torn
    nerve tissue.

·

The x-ray showed that the appellants bone is
    dense, with narrow periodontal ligament space around the tooth being extracted.
    This definitely increased extraction difficulty. There is no indication in the
    chart that there was any pre-planning or consideration of the potential
    problems with the extraction that developed. This indicates negligence.

·

When Dr. Rajanna realized the difficulties with
    the extraction, there is no indication that she stopped, re-assessed, or
    considered aborting and referring the appellant to a nearby oral surgeon. That
    is negligence.

Application of the test for admission of
    fresh evidence

[13]

R. v. Palmer
,
    [1980] 1 S.C.R. 759, at p. 775, established the test for the admission of fresh
    evidence on appeal:

1.

The evidence should not be admitted if, by due
    diligence, it could have been adduced at trial, but this general principal will
    not be applied as strictly in criminal cases as in civil cases;

2.

The evidence must be relevant in the sense that
    it bears on a decisive or potentially decisive issue;

3.

The evidence must be credible in the sense that
    it is reasonably capable of belief; and

4.

The evidence must be such that if believed, it
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result.

[14]

The respondents argue that the proposed fresh
    evidence does not satisfy the first, third and fourth
Palmer
criteria.
    We disagree. In our view, all four factors are satisfied in this case.

[15]

As to the first factor, the respondents say that
    the time to adduce expert evidence was before the hearing of the summary
    judgment motion. They point out that the appellant had several years to obtain
    a supportive expert report and, according to her, had approached at least ten
    dentists, trying to do so.

[16]

That is so, but that very submission supports
    the appellants position that she was trying, throughout, to obtain an expert
    report. She spoke of her difficulty in finding someone to opine that a fellow
    dentist was negligent. She only succeeded in finding Dr. Kellen days before the
    scheduled summary judgment motion. Once she located him, she followed up to
    ensure that his report was completed promptly, within approximately two months
    of the hearing date.

[17]

There is no dispute that the second factor is
    satisfied. The expert evidence is clearly relevant to the issue that was before
    the motion judge.

[18]

As to the third factor, the respondents say that
    the fresh evidence is not credible because Dr. Kellens report is not
    accompanied by an assurance of his objectivity, in the form of an
    acknowledgment of the experts duty (Form 53), signed by Dr. Kellen, as
    required by r. 53.03(2.1) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. Further, they say that Dr. Kellen makes groundless assumptions
    and assertions about Dr. Rajanna, which should lead this court to conclude
    he cannot meet his obligation to provide the court with a fair, objective and
    non-partisan opinion.

[19]

The respondents are correct that the report is
    not accompanied by a Form 53 and, in portions of his report, Dr. Kellen made
    certain assumptions which he characterized as a couple of unsubstantiated
    theorizations because of large information gaps and things that do not fit.

[20]

To the extent there are deficiencies in Dr.
    Kellens report, they may speak to a lack of experience as an expert witness or
    the preparation of the report without input by counsel. We view them more as
    deficiencies that go to the fourth
Palmer
factor, and that could prove
    fatal if not rectified before trial or a further summary judgment motion.
    Nonetheless, in our view, Dr. Kellens evidence is reasonably capable of
    belief.

[21]

Turning to the fourth
Palmer
factor,
    the respondents argue that Dr. Kellens report suffers from a further,
    fundamental deficiency: it fails to definitively opine on both standard of care
    and causation. Dr. Kellen could have expressed his opinions with greater
    clarity. But, contrary to the respondents assertion, his opinions, summarized
    above, address both standard of care and causation.

[22]

In our view, if the motion judge had the benefit
    of Dr. Kellens affidavit and report he would not have granted summary judgment
    in favour of the respondents.

[23]

As the respondents argue, there are problems
    with the report Dr. Kellen prepared. And we note the lengthy history of this
    matter, the reminders to the appellant about the necessity of an expert report,
    and the peremptory timetable in place. We appreciate that there was in
    important interest in finality in this case.

[24]

However, the respondents were seeking a summary
    dismissal of the appellants action and had the onus of establishing there was
    no genuine issue requiring a trial. There appears to be no dispute that the
    appellant suffers from a real injury  numbness in the lower left side of her
    mouth and tongue  as a result of the dental procedure performed. Further, the
    transcript reveals that the motion judge made inquiries of the appellant when
    she handed up the letter. Unfortunately, the appellant did not specifically
    request an adjournment or clearly advise that she had retained an expert. The motion
    judge would not have appreciated from her submissions that, at the time the
    motion was heard, she had retained Dr. Kellen to provide an expert report and
    he had requested more time to complete his report.

[25]

We are persuaded that, faced with a 77 year-old
    self-represented party, seemingly of limited means, who suffered injury as a
    result of a dental procedure, who had struggled to secure an expert, who had
    retained an expert at the time she appeared before him, and who then secured a
    supportive expert report, the motion judge would have concluded that it was in
    the interests of justice to adjourn the motion to provide the appellant with an
    opportunity to cure the deficiencies in the expert report.

Disposition

[26]

Accordingly, we allow the appeal and set aside
    the dismissal of the appellants action and the costs below, without prejudice
    to the respondents right to bring a further summary judgment motion. Should
    the respondents elect to bring a further summary judgment motion, the
    privileged materials included in the motion record below and in the responding
    materials on this appeal should not form part of the motion record.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

K.
    van Rensburg J.A.


