Gilles Gauvin Claimant v. Dr. Carl Boucher, 2016 NBQB 98

2016 NBQB 098 B/C/23/2016 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: Gilles Gauvin Claimant -and- Dr. Carl Boucher Defendant BEFORE: The Honourable Mr. Justice Larry Landry AT: Bathurst, N.B. DATE OF HEARING: April 22, 2016 DATE OF DECISION: May 24, 2016 APPEARANCES: Gilles Gauvin, per se; Renée M. Fontaine, for Dr. Carl Boucher. [TRANSLATION] DECISION Landry, J.

[ 1 ] Gilles Gauvin brought an action under the Small Claims Act alleging that Dr. Carl Boucher, an otorhinolaryngologist, was negligent. He is claiming $12 500 in damages from Dr. Boucher, the maximum allowed under the regulation. On December 29 of last year, an adjudicator dismissed Mr. Gauvin’s claim. He is now exercising his right to appeal the adjudicator’s decision pursuant to

section 20 of the Small Claims Act , S.N.B. 2012, c. 15 (the Act ), and

section 39 of the regulation adopted under the Act . [ 2 ] The regulation provides that such an appeal is to be heard by way of a new hearing. Therefore, this is not a judicial review of the adjudicator’s decision, but rather a new hearing on the substance of the claim. [ 3 ] The parties agreed to introduce into evidence all of the exhibits that were provided to the adjudicator. Some new documents were also received into evidence by the Court during the appeal hearing. Moreover, the parties to the hearing were the only witnesses. BRIEF

SUMMARY OF THE FACTS [ 4 ] Gilles Gauvin suffers from kidney problems for which he must undergo hemodialysis. He also wears hearing aids because he has difficulty hearing. The nephrologists who treated him for his renal failure are the ones who referred Mr. Gauvin to Dr. Carl Boucher so that he could assess his hearing problems. [ 5 ] The claimant worked on fishing boats for many years, in an environment where there was a lot of noise. He maintains that his current hearing problems are the result of the intense noise coming from the boat engines.

Therefore, he made a claim to WorkSafeNB requesting payment of his hearing aids. WorkSafeNB, however, denied Mr. Gauvin’s claim in a decision rendered on October 13, 2009. The main thrust of the decision is as follows: [TRANSLATION] We regret to inform you that we are denying your claim, given that it is not consistent with noise-related hearing loss. The type of hearing loss that you are currently experiencing is often associated with chronic renal failure.

After reviewing your case with our medical advisor, it was determined that your condition is not consistent with the information on file . [ 6 ] The claimant challenged this decision for nearly five years. It was always upheld until an Appeals Tribunal, in a decision rendered on August 27, 2014, ruled in his favour. WorkSafeNB had always considered that Mr. Gauvin’s progressive deafness was related to his renal failure or family history, not to the excessive noise he was exposed to while at work.

However, the Appeals Tribunal ultimately determined that his hearing problems were in fact the result of the noise on the boats. [ 7 ] Dr. Boucher was not aware of Mr. Gauvin’s claim with WorkSafeNB until he was asked to provide a copy of the claimant’s medical records. Mr. Gauvin had never spoken with Dr. Boucher about his claim with WorkSafeNB. [ 8 ] Dr. Carl Boucher saw Gilles Gauvin as a patient at various times between 2001 and 2010, while Mr. Gauvin’s claims with WorkSafeNB spanned five years, from 2009 to 2014. [ 9 ] As stated above, Dr.

Boucher’s involvement in the dispute between Gilles Gauvin and WorkSafeNB was limited to answering the request for information and sending a copy of Mr. Gauvin’s medical records. Even though Dr. Boucher’s reports concerning Gilles Gauvin, refer to his patient’s chronic renal failure, the otorhinolaryngologist never indicated that Mr. Gauvin’s hearing problems were a direct result of this condition. For example, in his report dated November 2, 2001, to Dr. Yves Thibeault, a nephrologist, Dr. Boucher wrote: [TRANSLATION] “ Impressions : moderate bilateral sensorineural hypoacusis, probably hereditary ”.

CLAIMANT’S ALLEGATIONS AGAINST DOCTOR BOUCHER [ 10 ] Gilles Gauvin argues that his request for payment of his hearing aids was denied because of the notation [TRANSLATION] “ chronic renal failure ” made by Dr. Boucher in the reports which were included in the medical records submitted to WorkSafeNB. It is only after five years of efforts by Mr. Gauvin that WorkSafeNB’s initial decision was overturned by an Appeals Tribunal. Thus, the payment was made for his hearing aids.

[ 11 ] He claims that during those five years, when he did not have the financial means to purchase hearing aids and while he was waiting for the Appeals Tribunal to rule in his favour, he lost some of the enjoyment of life. Mr. Gauvin blames Dr. Boucher for this and maintains that, given the latter’s negligence, he is entitled to damages. ISSUES [ 12 ] The issues, as set out by the defendant Boucher, are as follows: (

a) Has the limitation period expired? (

b) Was Dr. Boucher negligent? (

i) Is Dr. Boucher entitled to immunity against Mr. Gauvin’s claim? (ii) If Dr. Boucher is not entitled to immunity: (

A) did he fail to exercise the standard of care of a reasonably prudent doctor? (

B) did a failure to meet the standard of care cause the damages claimed? (

c) If Dr. Boucher was negligent, to what damages is Mr. Gauvin entitled to? [ 13 ] Gilles Gauvin’s initial claim does not clearly describe what he is seeking to obtain. However, after hearing both parties, I accept the manner in which the issues were framed by the defendant. LIMITATION OF ACTIONS [ 14 ] Dr. Carl Boucher denies any negligence in relation to this matter. However, he also adds that, regardless, Mr. Gauvin’s claim is statute-barred. [ 15 ]

Section 5 of the Limitation of Actions Act , S.N.B. 2009, c. L-8.5, establishes the limitation periods that apply to most negligence claims in New Brunswick: 5

(1) Unless otherwise provided in this Act , no claim shall be brought after the earlier of: (

a) two years from the day on which the claim is discovered, and (

b) fifteen years from the day on which the act or omission on which the claim is based occurred. 5

(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (

a) that the injury, loss or damage had occurred, (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission, and (

c) that the act or omission was that of the defendant. [ 16 ] Since this Act came into effect on May 1, 2010, the following provisions may also be relevant: 2

(1) This Act applies to any claim brought after the commencement of this Act, including a claim that is added to a proceeding commenced before the commencement of this Act. 2 7

(3) During the first 2 years after the effective date, a claim may be brought after the new limitation period has expired if the former limitation period has not expired.

[ 17 ] Let me reiterate that all meetings between Dr. Boucher and Mr. Gauvin took place between 2001 and 2010, the year that Dr. Boucher closed his practice in New Brunswick and moved to Quebec. Furthermore, it was on October 13, 2009, that WorkSafeNB first denied Mr. Gauvin’s claim, citing his chronic renal failure as the cause of his hearing loss. Dr. Boucher maintains that it was at this point that Mr. Gauvin should have discovered the facts which the latter considers to be the basis of his claim. The medical records, prepared by Dr.

Boucher, were already in WorkSafeNB’s possession and had been taken into consideration during the decision-making process. [ 18 ] Gilles Gauvin claims that it is only after having discussions with his nephrologist, Dr. Sylvie Robichaud, that he became aware of what he considers to be a misdiagnosis by Dr. Boucher. Dr. Robichaud’s letter dated June 18, 2013, was submitted to the Appeals Tribunal and it is based on this letter that the Tribunal overturned WorkSafeNB’s decision.

However, on February 13, 2013, the Appeals Tribunal had received a letter from Gilles Gauvin, dated February 7, 2013, in which he wrote: [TRANSLATION] I met with my nephrologist. She confirmed to me that my illness is not the cause of my hearing problem. When Dr. Boucher diagnosed me, he did not consult with my doctor. I found out about a month ago. She referred me to another audiologist, Dr. Marie France Stephenson. Please contact her. She has the doctor’s report. [ 19 ] If Mr. Gauvin had exercised due diligence, he could have discovered the facts that he considers to be the basis of his claim against Dr.

Boucher as soon as WorkSafeNB issued its first refusal letter, on October 13, 2009. If he had examined his medical records in their entirety, he would have come across the documentation Dr. Boucher had sent to WorkSafeNB. As was already stated, WorkSafeNB’s decision was based on Mr. Gauvin’s chronic renal failure. It is at this point that the limitation period would have started to run and therefore it would have expired on May 1, 2012, pursuant to

section 5 and subsection 27(3) of the Limitation of Actions Act . Even if we take into account the letter Mr. Gauvin sent to the Appeals Tribunal, which was received on February 13, 2013, the limitation period would have then expired at the beginning of 2015, before February 13 th . Gilles Gauvin filed his claim with the Small Claims Court on March 27, 2015. [ 20 ] This court cannot extend limitation periods, except when very special circumstances exist, which is not the case in the instant case: Lévesque and BMG Farming Ltd. v.

Province of New Brunswick and New Brunswick Crop Insurance Commission , 2011 NBCA 48 , also cited in McHugh et al. v. Regional Health Authority B et al. , 2014 NBQB 217 . [ 21 ] Dr. Sylvie Robichaud’s June 18, 2013, report was obtained for the purpose of a hearing before WorkSafeNB’s Appeals Tribunal and does not extend the limitation period in the matter between Mr. Gauvin and Dr. Boucher. Dr. Robichaud’s report only confirmed an opinion that Mr.

Gauvin had been aware of since at least January 2013, based on the letter he wrote to the Appeals Tribunal dated February 7, 2013. [ 22 ] I find that the limitation period had expired May 1, 2012. Yet, even in the event that I am wrong, the most favourable

interpretation of this matter for Mr. Gauvin would be that the limitation period would have been extended until January 2015, two years after he spoke with his nephrologist. This is when he discovered the facts that he considers to be the basis of his claim. Yet, he only filed his small claim on March 27, 2015, more than two months too late, at best. In actual fact, the limitation period on his claim had expired almost three years prior. [ 23 ] For all these reasons, I must dismiss the appeal and Mr. Gauvin’s claim. [ 24 ] Nevertheless, I will still briefly examine the remaining issues. DR. BOUCHER’S IMMUNITY [ 25 ] Dr. Boucher argues that pursuant to

section 14 of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act , S.N.B. 1994, c. W-14 , he cannot be held liable in negligence for the alleged losses suffered by Mr. Gauvin. I am of the view that this

section applies mainly to WorkSafeNB’s employees and management and that, in this matter, immunity, as it is set out in

section 14, does not apply to Dr. Boucher, as all he did was respond to a request for medical records.

[ 26 ] Dr. Boucher was not involved in Mr. Gauvin’s claim with WorkSafeNB and he did not participate in the process in any way. This immunity defence would have been summarily dismissed. NEGLIGENCE [ 27 ] Gilles Gauvin, as the claimant in these proceedings, had the burden of showing on a balance of probabilities that Dr. Carl Boucher did not exercise the standard of care that one would expect from a reasonably prudent otorhinolaryngologist. But we must first determine the nature of the allegations brought against Dr.

Boucher by the claimant. [ 28 ] In essence, Gilles Gauvin contends that his request for payment of his hearing aids was denied by WorkSafeNB because Dr. Boucher indicated [TRANSLATION] “chronic renal failure” in his medical records. As was stated earlier, the 2009 decision was based on Mr. Gauvin’s chronic renal failure and the finding that his hearing loss was therefore not related to his work as a deckhand on the fishing boats. I note that both in the written documentation and in his testimony, Dr. Boucher never concluded that Mr. Gauvin’s hearing problems were linked to his kidney problems. [ 29 ] However, Dr.

Boucher does mention that Mr. Gauvin’s problems could be hereditary. In a subsequent dismissal of the claim by WorkSafeNB, heredity was also mentioned as the basis for refusing Mr. Gauvin’s request for payment of his hearing aids. Another otorhinolaryngologist, Dr. Guy-L. Tremblay, also concluded in a report dated August 30, 2011, that the claimant’s hearing problems were [TRANSLATION] “hereditary or metabolic”. Dr. Boucher also admitted that certain hearing problems can be caused by kidney disease. [ 30 ] In any event, the claimant relies extensively on Dr. Sylvie Robichaud’s report. She concluded that Mr.

Gauvin’s hearing problems were not the result of renal failure and that they were probably work related. However, we must bear in mind that Dr. Robichaud is a nephrologist, which is a kidney specialist, and that she is not a recognized expert in the field of otorhinolaryngology and hearing problems. She was not called to testify. [ 31 ] As for Dr. Boucher, he never gave a definite diagnosis. Moreover, he was never asked to provide one. Ultimately, he stated his opinion that Mr. Gauvin’s hearing problems were probably hereditary. This is no way, however, affected Dr.

Boucher’s assessment or the treatments he would recommend to Mr. Gauvin. The use of hearing aids was discussed very early on between the doctor and the patient. Could Dr. Boucher have reasonably foreseen that the impressions that he wrote down in his reports, which were intended for Mr. Gauvin’s medical records or for other doctors treating Mr. Gauvin, could one day influence the outcome of a WorkSafeNB claim that he was not even aware of and that Mr. Gauvin had never even discussed with him? I am of the view that his duty of care towards his patient was not that far-reaching.

Therefore, notwithstanding the question of the limitation period, I find that Mr. Gauvin did not discharge the burden of proving by a preponderance of evidence that Dr. Boucher was negligent in the handling of his medical records. [ 32 ] It is therefore not the actions or omissions of Dr. Boucher that caused the loss of enjoyment that Mr. Gauvin complains of. DAMAGES [ 33 ] I will nonetheless provisionally assess the damages to which Mr. Gauvin would have been entitled to, had he been able to establish that the defendant was responsible for his loss of enjoyment and had his claim not been statute- barred. As Mr.

Gauvin explained, he had to cope with his hearing problems for approximately five years, without the use of hearing aids which would have enabled him to hear better. The evidence shows that these particular devices, which were eventually paid for by WorkSafeNB, cost $5 590. Mr. Gauvin testified that he did not have the financial means to purchase these hearing devices. [ 34 ] He did not present any evidence, however, to show the extent of his hearing problems, nor to show how these problems affected his life.

Yet, one can assume that the fact that a person can’t hear very well would, to a certain degree, affect that person’s quality of life. Under the circumstances, I would have awarded Mr. Gauvin general damages in the amount of $7 500. CONCLUSION [ 35 ] Gilles Gauvin’s claim against Dr. Carl Boucher is dismissed because it is statute-barred. In other words, Mr. Gauvin waited too long before filing his claim with the Small Claims Court.

[ 36 ] The defendant asks that I impose costs of $500, the maximum allowed under the Small Claims Act . To do so, he asks that I refer to the adjudicator’s decision, rendered on December 29 of last year, as provided in the Act . [ 37 ] Despite the fact that Mr. Gauvin appeared ill-prepared for the hearing and was unable to find the report that formed the basis of his claim, the adjudicator did not impose costs. During the appeal by way of a new hearing, however, Mr. Gauvin was apparently better prepared. Under the circumstances, I do not see the necessity of imposing costs on Mr. Gauvin. May 24, 2016 Bathurst, N.B. Larry Landry, J.C.Q.B.