Sztuczka v. Knebel, 2012 ABQB 72

Court of Queen ’ s Bench of Alberta Citation: Sztuczka v. Knebel, 2012 ABQB 72 Date: 20120126 Docket: 1001 08259 Registry: Calgary Between: Miroslawa Sztuczka Plaintiff - and - Murray Knebel Defendant _______________________________________________________ Memorandum of Decision of Jodi L. Mason, Master in Chambers _______________________________________________________ Introduction [ 1 ] The plaintiff, Miroslawa Sztuczka received dental services from the defendant, Murray Knebel between April 26, 2007 and January 30, 2008. Ms.

Sztuczka sent letters of complaint dated February 3, 2008 and April 1, 2008 to the Alberta Dental Association and College (“ ADA & C”) regarding Dr. Knebel’s services. On October 3, 2008 the ADA & C moderated an alternate complaint resolution process, which did not resolve the complaint as hoped. Ms. Sztuczka’s complaint was referred back to the Complaints Director of the ADA & C for further investigation. On May 1, 2009, the complaint was dismissed. Ms. Sztuczka did not pursue a review of this decision. [ 2 ] Ms. Sztuczka commenced this action for damages against Dr. Knebel on June 3, 2010.

[ 3 ] Dr. Knebel applies to summarily dismiss the action pursuant to section 3(1) (

a) of the Limitations Act , R.S.A. 2000, c. L -12. [ 4 ] Ms. Sztuczka submits that she did not know that Dr. Knebel was responsible for her injuries until she received a diagnosis in this regard on June 12, 2008, while she was waiting for the outcome of the ADA & C proceedings. She argues that it was not until after the hearing and the ultimate dismissal of her complaint that she had the necessary knowledge to commence her claim. [ 5 ] The following issues are raised: Is there a genuine issue for trial as to whether Ms. Sztuczka knew or ought to have known she was injured, prior to June 3, 2008?

Is there a genuine issue for trial as to whether Ms. Sztuczka knew or ought to have known her injuries were attributable to Dr. Knebel, prior to June 3, 2008? Is there a genuine issue for trial as to whether Ms. Sztuczka knew or ought to have known her injuries warranted bringing a proceeding prior to June 3, 2008? [ 6 ] For the reasons that follow, the application for

summary dismissal is granted. The evidence is clear that Ms. Sztuczka knew or ought to have known prior to June 3, 2008 that she was injured, that those injuries were attributable to Dr. Knebel, and that her injuries warranted bringing a proceeding. There are no genuine issues requiring trial. The test for

summary judgment [ 7 ] Rule 7.3 provides that a party may apply to the court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: there is no defence to a claim or part of it; there is no merit to a claim or part of it; or the only real issue is the amount to be awarded. [ 8 ] In an application for

summary judgment, the applicant must establish it is beyond doubt there is no genuine issue requiring trial: Eng v. Eng , 2010 ABCA 19 , [2010] 6 W.W.R. 29 at paragraph 5 , citing Pioneer Exploration Inc. (Trustee of) v. Euro-Am Pacific Enterprises Ltd. , 2003 ABCA 298 , 339 A.R. 165 at paragraphs 15-19 ; Balm v. Aikens , 2011 ABQB 650 at paragraph 10 , citing Canada (Attorney General) v. Lameman , 2008 SCC 14 , [2008] 1 S.C.R. 372 at paragraph 11 . In the context of this application, Dr. Knebel must establish that it is beyond doubt that Ms.

Sztuczka knew or ought to have known by June 3, 2008 that an action against Dr. Knebel was warranted. [ 9 ] In Canada (Attorney General) v. Lameman , the Supreme Court was dealing with an application for

summary judgment based on an expired limitation and stated at paragraphs 10 and 11 that: ...The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. For this reason, the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears the evidentiary burden of showing that there is “no genuine issue of material fact requiring trial” ...The defendant must prove this; it cannot rely on mere allegations or the pleadings...If the defendant does prove this, the plaintiff must either refute or counter the defendant`s evidence, or risk

summary dismissal...Each side must put its “best foot forward” with respect to the existence or non-existence of material issues to be tried...The chambers judge may make inferences of fact based on the undisputed facts before the court, so long as the inferences are

strongly supported by the facts... Section 3(1) of the Limitations Act [10] Section 3(1) of the Limitations Act provides that a claimant is required to seek a remedial order within: (a) 2 years after the date on which the claimant first knew, or in the circumstances, ought to have known, (

I) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant warrants bringing a proceeding. Principles of discoverability [11] Counsel for Dr. Knebel submitted numerous cases addressing discoverability of claims. Counsel for Ms. Sztuczka did not takeissue with the principles contained in these cases, paraphrased as follows: 1. Discoverability means knowledge of the facts (acts or omissions), that may give rise to a claim against a tortfeasor: Dickieson v.

Dickieson, 2010 ABQB 227, 28 Alta. L.R. (5th) 310 at paragraph 21, citing Burtch v. Barnes Estate (2006), (ONCA), 80 O.R. (3d) 365 (Ont. C.A.) at paragraph 24. It does not require a legal opinion as to the validity of the claim: Dickieson v.Dickieson at paragraph 21, citing Hill v. Alberta (South Alberta Land Registration District) (1993), 1993 ABCA 75 , 100 D.L.R. (4th) 331 (Alta. C.A.) 2. It is a question of fact as to when the plaintiff acquired sufficient knowledge of the material facts to trigger the running of thelimitation period: Kydd v. Abolarin, 2011 ABQB 690 at paragraph 39; 3.

The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge: Kydd v. Abolarin atparagraphs 35-39, citing Nasrin Karim Professional Corp. v. Bank of Nova Scotia, 2007 ABCA 10, 404 A.R. 303; 4. In some cases, the plaintiff will require an expert medical opinion in order to determine whether to commence an action. In othercases, the plaintiff will have knowledge of material facts and the expert medical opinion will only be required as evidence to support theclaim: Kydd v. Abolarin at paragraphs 36-39.

Injuries that manifest immediately are more likely not to require an expert opinion, forcausation can easily be inferred. Cases where the injury does not manifest itself until much later and has more than one potential cause,will likely require an expert opinion to trigger the running of the limitation period: Guay v. Wong, 2008 ABQB 638 at paragraph 81; 5. A plaintiff need not know precisely what went wrong during treatment before the limitation commences; section 3(1)(a)(ii) speaksmerely to the “injury being attributable to the conduct of the defendant”: Carreno v. Park, 2010 ABQB 36 at paragraphs 28-34; 6.

The subjective test and the objective test in the Limitations Act are alternatives; time starts to run as soon as one of them is met:Gayton v. Lacasse, 2010 ABCA 123, 482 A.R. 179 at paragraph 61; Gratton v. Shaw, 2011 ABCA 340, 505 A.R. 340. Once the plaintiffsubjectively knows that she has a claim, it is irrelevant whether a reasonable person “ought to have known”; and

7. Error, ignorance or uncertainty of the law, which may require a potential claimant to diligently obtain legal or other expertise to interpret the facts, does not postpone any limitation period: Dickieson v. Dickieson at paragraph 21 , citing Waap v. Alberta , 2008 ABQB 544 at paragraph 126 . [ 12 ] With these principles in mind, I turn to the evidence before the court on this application. Diagnosis of infection [ 13 ] Ms. Sztuczka pleads in her statement of claim that on June 12, 2008, she received a diagnosis that Dr. Knebel’s dental services caused infection.

She submits that only then did she have the necessary knowledge to commence this action. [ 14 ] There is no evidence of this diagnosis before the court. As emphasized in Canada (Attorney General) v. Lameman , the court must determine applications for

summary judgment based on the evidence before it, and both parties must put their “best foot forward” in regard to the existence or non-existence of a genuine issue to be tried. The complaint letters [ 15 ] Ms. Sztuczka further submits that her letters of complaint to the ADA & C were to seek assistance due to Dr. Knebel’s failure to address her pain on a timely basis, and did not address his negligence in provision of the services. [ 16 ] A review of the letters suggests otherwise. Ms. Sztuczka’s February 3, 2008 letter states in part: I am writing you this complaint regarding Dr.

Murray Knebel because I am appalled at his professional conduct...I have tried to resolve these issues with Dr. Knebel on several occasions by means of phone calls, many of which were unanswered, as well as subsequent visits, but I am still not satisfied and I am still suffering from the damages caused by Dr. Knebel’s poor dentistry... [after visits in April and September 2007] I had some initially [sic] concerns.

I was experiencing burning under my tongue, persistent headaches, as well as episodes of insomnia...I voiced my concerns to him...my calls [were] unanswered and not returned...the pain worsened daily...I was literally bed-ridden from pain because my whole neck and face were painfully sore...he prescribed me with an antibiotic...On Sunday, October 21, 2007...[h]e proceeded to drill into the bottom fourth tooth...I voiced to him that I believed the source of the pain was in the fifth tooth...he told me he was removing the right fifth tooth which he realized was the problem tooth...I could instantly smell the rot of infection...The last time I saw Dr.

Knebel was on January 30, 2008,...he scheduled me to see him next on March 24, 2008...I couldn’t wait nearly two months to get something done when I was in such terrible pain...This is truly where my complaints begin to get serious. Am I supposed to wait two months with incapacitating pains to have my tooth fixed which he drilled into in the first place by mistake and didn’t fix at the time and still pay for the procedure?...Today, I am left with all my lower teeth at different heights and I can’t even chew on the right side of my mouth because of the pain in my fourth right tooth.

The tooth is still open and the pulsing pain continues, as well as the continuing headaches and insomnia. I’m also worried I might have sustained some nerve damage because I get pains in my shoulders and underneath my jaw quite frequently. Lastly, I risk [sic] that fourth tooth becoming infected and I even think I smell infection sometimes...I am continuously in pain and I can’t seem to get this problem resolved by talking with Dr.

Knebel...quite frankly I do not wish to return to him to have my teeth repaired because I am afraid of him causing more harm and damage... [ 17 ] The April 1, 2008 letter states in part: ...my dental problems persist, I still have pain and severe discomfort...these problems are medical in nature...Am I supposed to go see another dentist to have this fixed, even though I have already paid for the procedures to be done and some of which I don’t believe I should pay for because they were not my fault but that of Dr. Knebel... [ 18 ] Quite apart from Ms.

Sztuczka’s purported reason for writing the letters, the fact remains that they disclose her knowledge of the material facts comprising her negligence claim against him.

[ 19 ] Ms. Sztuczka`s February 3, 2008 letter was written within days of her last visit to Dr. Knebel. It is clear from this letter that Ms. Sztuczka knew that her injuries had occurred within a short period of time of the provision of Dr. Knebel’s services. Further, this letter and her subsequent letter confirm that as at the dates of those letters, she had attributed her injuries to Dr. Knebel. Her affidavit confirms that Dr. Knebel “alone” looked after her teeth. In the circumstances of this case, Ms. Sztuczka did not require an expert opinion in order to ascertain the material facts. I am satisfied that the first and second elements required under section 3(1) (a)(

I) and (ii) of the Limitations Act are met. Further, Ms. Sztuczka details the severity of her injuries in both letters. This meets the third requirement of knowledge that proceedings are warranted under section 3(1) (iii). [ 20 ] Ms. Sztuczka also submits that she did not have the necessary knowledge that Dr. Knebel was responsible for her injuries or that a proceeding was warranted, until she obtained the determination of her complaints by the ADA & C. She deposes in her affidavit that she sent the February 3, 2008 letter and the April 1, 2008 letter in an attempt to determine if Dr.

Knebel “did anything wrong”, in other words, if he was the cause. She says at the conclusion of the ADA & C hearing on October 1, 2008, Dr. Knebel’s “failures were confirmed to her satisfaction” and she terminated his services. [ 21 ] Canadian courts have considered limitations arguments in the context of professional negligence claims involving prior proceedings with the applicable governing body. The cases emphasize that the governing factor is the timing of the acquisition of the material facts giving rise to the cause of action. [ 22 ] In Davidoff v.

Alberta , 2004 ABQB 181 , the plaintiff’s counsel wrote a letter dated May 31, 1999 to the Chief of Police, setting out wrongful police and prosecutorial misconduct and requesting an investigation. Burrows J. held that a comparison of the allegations made in the statement of claim filed on August 21, 2001 to this letter demonstrated that the plaintiff had acquired knowledge of the material facts giving rise to the causes of action by May 31, 1999 at the latest. [ 23 ] In Berger v. Benchitrit , [2002] O.J.

No. 2857 (S.C.J.) , the plaintiff argued that until the College of Physicians and Surgeons of Ontario had rendered a decision in regard to the defendant psychiatrist, the plaintiff did not have all the necessary facts to commence the running of the limitation period. The Court commented on the plaintiff’s evidence that the College decision confirmed what the plaintiff already believed or suspected when he made his formal complaint, and concluded that he knew enough facts at the date of complaint to bring his action within the one year limitation period thereafter. See also Bochyn v Abbey , [2001] O.J.

No. 4503 (S.C.J.) ; Vrooman v. Taylor , [2007] O.J. No. 370 (S.C.J.) ; Zwaigenbaum v. Scher , 2010 ONCA 507 . [ 24 ] Further, the British Columbia Court of Appeal confirmed in Evaniuk v. Duvall , [1990] B.C.J. No. 606 that r eporting to the professional governing body and commencing legal proceedings are not alternative courses available to a plaintiff, but rather both can be pursued. [ 25 ] In

summary, Ms. Sztuczka claims that she was not certain her injuries were caused by Dr. Knebel and was waiting to hear what the ADA & C had to say about it. Her own letters belie her position, as does the ultimate dismissal of her complaints by the ADA & C. In any case, the letters clearly demonstrate that she knew shortly following the services performed by Dr. Knebel that she was experiencing pain and injuries. In her letters she attributed the injuries to Dr. Knebel’s acts and omissions and she deposed that he “alone” looked after her teeth.

She did not require an expert opinion or a decision from the ADA & C to perfect her knowledge for the purposes of section 3(1) of the Limitations Act . She was aware by February 3, 2008 at the latest that the injuries had occurred, that they were attributable to Dr. Knebel and that they warranted bringing a proceeding. The statement of claim was filed more than two years after this and is out of time. Conclusion [ 26 ] The application to summarily dismiss Ms. Sztuczka’s action is granted. It was commenced more than two years after Ms.

Sztuczka knew or ought to have known that the injuries had occurred, that the injuries were attributable to Dr. Knebel and that the injuries warranted bringing a proceeding. [ 27 ] If the parties cannot agree as to costs, they can approach me.

Heard on the 23 rd day of January, 2012. Dated at the City of Calgary, Alberta this 26 th day of January, 2012. Jodi L. Mason M.C.C.Q.B.A. Appearances: Norton Rose Canada LLP D. Aaron Stephenson for the Defendant Scott Law Firm Thomas H. Scott for the Plaintiff