Winter v. Pollock Date:, 2015 BCPC 425

Citation: Winter v. Pollock Date: 20150722 2015 BCPC 0425 File No: 4577 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA SMALL CLAIMS BETWEEN: DENNIS WINTER CLAIMANT AND: GORDON POLLOCK DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE R. CUTLER Appearing on their own behalf: D. Winter Counsel for the Defendant: M. Willcock Place of Hearing: Duncan , B.C. Date of Hearing: June 4 and July 7, 2015 Date of Judgment: July 22, 2015

[ 1 ] This is an application by the defendant dentist to have claims brought against him by a former patient dismissed for being statute-barred.

The Limitation Act , R.S.B.C. 1996, c.266 (‘the Act ’) was the applicable statute at the relevant time. [ 2 ] The claims relate to dental services provided by the defendant to the claimant and allege that the defendant failed to obtain the requisite informed consent from the claimant for a dental procedure provided and that the defendant breached the standard of care owed to the claimant in performing the dental procedure. [ 3 ] The consent was provided and the impugned procedure was performed on June 20, 2008.

The claims were filed by the claimant in this court on August 22, 2013, over five years after the procedure was performed. The limitation period for claims of this nature, as set out by the Act (s. 3(2)(a)), is two years after the date in which the right to bring an action arose.

The central issue before the court is when did the claimant’s right to bring an action arise? [ 4 ] The professional relationship between the parties endured almost 5 years with the significant dates as follows: June 20, 2008 - the claimant attended at the defendant’s dental office where a dental procedure was performed by the defendant involving the claimant’s front teeth. During and after the procedure the claimant experienced pain. He attended a few days later for a follow-up appointment.

The Claimant indicates he was advised by the defendant on numerous occasions that the pain would eventually subside; March 15, 23, and May 21, 2010 - the claimant did not attend again at the defendant’s office until the spring of 2010 when the defendant fitted the claimant with a bruxing guard. November 4, 2010 - the claimant attended upon another dentist, Dr. J. Benham. While Dr. Benham has no record of discussing with the claimant the June 20, 2008 procedure performed by the defendant, the claimant recalls he was advised by Dr. Benham to use Sensodyne and the pain would subside. Dr.

Benham also made some comments with respect to his upper teeth not being pushed up far enough to the gum line. The claimant’s mother in her will-say statement indicates that her recollection after the claimant’s visit to Dr. Benham was that she was told the claimant was advised the work on his teeth was inappropriate and it was not going to be an easy fix; June 21, 2011 - March 25, 2013 - the claimant received dental treatment from the defendant for numerous issues including pain experienced as a result of the procedure performed by the defendant on June 20, 2008.

On the last visit the claimant indicated his displeasure with the treatment received from the defendant and wanted the defendant to adjust the teeth to relieve the discomfort. The defendant explained that he was against adjusting the teeth despite the claimant’s insistence.

The claimant at that time requested copies of his records and the defendant explained that he had provided the claimant with the best care that he could to correct his complex bite; August 22, 2013 - the claimant filed a Notice of Claim against the defendant in this court. [ 5 ] Sections 6(4), (5), and (6) of the Act are the applicable provisions:

(4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff's or claimant's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (

a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (

b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action.

(5) For the purpose of subsection (4), (a) "appropriate advice" , in relation to facts, means the advice of competent persons, qualified in their respective fields, to advise on the medical, legal and other aspects of the facts, as the case may require, (b) "facts" include (

i) the existence of a duty owed to the plaintiff or claimant by the defendant or respondent, and (ii) that a breach of a duty caused injury, damage or loss to the plaintiff or claimant, (

c) if a person claims through a predecessor in right, title or interest, the knowledge or means of knowledge of the predecessor before the right, title or interest passed is that of the first mentioned person, and (

d) if a question arises about the knowledge or means of knowledge of a deceased person, the court may have regard to the conduct and statements of the deceased person.

(6) The burden of proving that the running of time has been postponed under subsections (3) and (4) is on the person claiming the benefit of the postponement. [ 6 ] The jurisprudence ( Ounjian v. St. Paul Hospital , 2002 BCSC 104 ) has established that there are four criteria under section 6(4) of the Act : 1. the identity of the defendant is known to the plaintiff;

2. the plaintiff has certain facts (including the facts set out in section 6 (5)(b)) within his means of knowledge; 3. a reasonable person knowing those facts and having taken the appropriate advice a reasonable person would seek on those factswould regard the facts as showing that an action would have a reasonable prospect of success; 4. a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts,would regard the facts as showing that the plaintiff ought, in his own interest in taking his circumstances into account, to be able to bringan action. [7] All four components must be satisfied before time begins to run on a cause of action.

The burden of proving the running oftime has been postponed is on the person claiming the benefit of the postponement; in this case, the claimant. [8] The claimant is self-represented and accordingly his pleadings lack the precision which otherwise might be expected in claimsof this nature. I am satisfied, and the defendant concurs, that the notice of claim sets out two separate claims, or causes of action, relatingto the defendant’s conduct on June 20, 2008: failure to obtain the claimant’s informed consent to perform the procedure and a breach ofthe standard of care in performing the procedure.

These are two distinct causes of action (Karsanjii Estate v. Roque [1990] B.C.J. No.279 (BCCA). [9] With respect to the claim alleging the defendant’s failure to obtain the claimant’s informed consent, the claimant states in hisnotice of claim that the defendant changed the procedure to be performed on June 20, 2008 without the proper and informed consent ofthe claimant.

It is evident in reviewing the claimant’s position that if indeed the procedure was altered contrary to the claimant’s wishesand absent his informed consent the claimant was fully aware of the defendant’s conduct and all the facts supporting a cause of actionwhen the procedure was performed on June 20, 2008. [10] The claimant states in his will-say statement that when he attended at the defendant’s office on June 20, 2008 he learned that thedefendant had changed the design of the dental work to be performed without his consent. The claimant was upset with this and voicedhis concern at that time.

Despite his misgivings the claimant proceeded with the procedure. [11] I have no difficulty concluding based on the circumstances of the allegations advanced by the claimant that all four of thecomponents required to commence the running of the limitation period were satisfied on June 20, 2008.

Accordingly, the limitationperiod for the claim for failure to obtain the claimant’s informed consent commenced on June 20, 2008 and was statute-barred at thetime the notice of claim was filed on August 22, 2013. [12] Resolution of this application with respect to the claimant’s second claim, alleging breach of the standard of care by thedefendant, is not as simple given the nature and contents of the evidence before the court.

In this regard, the court is placed in anawkward position on this application as this is not a trial of the matter and the anticipated evidence has not been tested, and is conflicting. [13] Upon reviewing the material before the court, I am satisfied that the application to dismiss the claim for breach of the standardof care may be resolved through the application of section 6 (4)(

a) of the Act. According to section 6 (4)(

a) the limitation period willcommence when, inter alia, the facts within the claimant’s means of knowledge are such that a reasonable person, knowing those factsand having taken the appropriate advice a reasonable person would seek on those facts, would regard an action or the cause of action ashaving a reasonable prospect of success.

Facts falling within the claimant’s means of knowledge are those known to the claimant andthose which would become known if he took such steps as would have been reasonable for him to take in his circumstances (Levitt v.Carr (1992), (BC CA), 66 B.C.L.R. (2d) 58 (B.C.C.A.)). [14] Section 6(5)(b)(ii) indicates the “facts” include that a breach of a duty caused the injury to the claimant. The fact injury hasbeen suffered and is known to the claimant is not sufficient.

A reasonable person in his position would also have to appreciate that theinjury may have reasonably resulted from a breach of duty on the part of the person whose identity is known to the claimant (KarsanjiiEstate v. Roque (1990), (BC CA), 43 B.C.L.R. (2d) 234 (B.C.C.A.). Recently, in Blok v.

Mathew, 2013 BCCA 319,Madam Justice Newbury, writing for the court, addressed the focus of the statute and succinctly stated “It focuses on the discoverabilityof a course of action” (at para. 25). [15] In reviewing the claimant’s pleadings and the material currently before the court, I am satisfied that the facts within theclaimant’s means of knowledge were such that a reasonable person, knowing those facts, and having taken appropriate advice areasonable person would have sought on those facts, would not have concluded that an action for a breach of duty would have areasonable prospect of success until sometime in 2013. [16] Before commencing my analysis some general observations may assist.

It is trite that in an action for alleged dentalmalpractice the onus is on the plaintiff to prove that the defendant doctor’s conduct fell below the required standard of care. In assessingthe claimant’s conduct in pursuing a claim one must be mindful that dental malpractice cases are often complicated and that questions ofcausality and standards of care can be difficult to assess. As well, the doctor-patient relationship is one of special reliance.

The doctorhas an expertise in the area and the patient must trust and rely on the doctor’s expert advice and skills. [17] The defendant submits that the facts supporting the claim for breach of a duty of care were in the claimant’s means ofknowledge as of the date of the procedure, June 20, 2008. According to the position advanced by the defendant, the limitation periodconcluded two years later in June 2010. Alternatively, the defendant submits that the absolute latest date that the claimant would haveknown of the facts was November 4, 2010 when he was advised by another dentist, Dr.

Benham, that the defendants work was notappropriate. That being the case, the limitation period, according to the defendant, necessarily would have concluded in November2012, approximately 9 months before the claim was filed. [18] I am unable to accept the submission advanced by the defendant that the limitation period commenced the day of the procedure. Counsel for the defendant submits the limitation period commenced on that date because the claimant experienced pain during theprocedure and pain when he left the defendant’s office that day and thereafter.

Experiencing pain during and after a dental procedure isnot uncommon which is why anesthetics are often administered during dental procedures and painkillers are often prescribed

subsequently. It is a trite reality that a patient is likely to experience pain during and as a result of a dental procedure. This should not result in the patient contemplating a cause of action. Such a policy would not be in the patient’s or profession’s best interests. [ 19 ] Further concern with this submission is that the pleadings and material suggest that subsequent to the procedure the claimant spoke to the defendant about the pain and was advised that the pain was normal and may take years to subside but it would subside eventually.

Accordingly, even if the claimant had concerns immediately after the procedure due to the pain experienced, he was dissuaded from concluding any fault on the part of the defendant by professional advice from the defendant. This is a significant factor in this case. [ 20 ] In reviewing this matter one must remain cognizant of the nature of the relationship between a dentist and their patient wherein the dentist possesses the expertise and the patient is reliant on this expertise.

As well, it must be remembered that a dentist does not guarantee a patient a certain result but only that proper standards and procedures are employed to attempt to obtain the result. The fact the claimant did not obtain the result sought from the procedure should not lead the patient to conclude that there was a breach of duty. [ 21 ] In Karsanjii Estate v. Roque [1998] B.C.J.

No. 608 (B.C.S.C.) Southin J. (as she then was) provided some practical insight into the doctor-patient relationship: If one looks at the matter from the patient's point of view, he does not ordinarily know, if he is no better after the surgery, which, if any, of these caused the poor result. He may conclude, in the absence of any other professional advice, that he was simply unlucky - not that the surgeon was in breach of his duty. Even more so if the surgeon tells him beforehand that the surgery may fail or that he may be worse off or that the benefit of surgery will take time to manifest itself.

And again, if after the surgery the surgeon tells him that it will take time for him to be better, the patient having the right to trust his surgeon, may well not take any other advice. I digress here to say that it is right that a patient should, not only for his own sake, but also for the sake of his surgeon, trust his surgeon.

It would not be in anyone's interests to apply the Limitation Act in such a way as to oblige a patient to distrust his medical adviser (paras.14 and 15). [ 22 ] And later in Her Ladyship’s reasons: To become aware of a breach of duty, one must be aware not only that something is wrong but also that it is the result of some act or omission not in accordance with, in this case, the standard of care and skill required of an orthopaedic surgeon (para. 20) [ 23 ] As alluded to earlier in these reasons, the doctor-patient relationship is unique to the extent that the patient relies heavily on the doctor’s expert advice.

The proposed evidence in this matter suggests that the defendant continuously advised the claimant that his pain was normal and would relieve itself or be remedied through further procedures. The defendant continued to work with the claimant to resolve the issues up until a few months before the claim was filed. [ 24 ] Supporting the claimant’s position that the defendant repeatedly told him that the issues would eventually subside is similar advice provided in an email authored by the defendant and forwarded to the claimant on July 25, 2013, a few weeks before the claim was filed.

In that email the defendant provides advice to the claimant with respect to future procedures to address the claimant’s sensitive bottom teeth and states “It will take some time, but the sensitivity will settle down”. [ 25 ] There is evidence suggesting the defendant contributed to the complainant’s inability to accurately gather and assess the facts supporting the cause of action. There is evidence indicating the defendant provided advice to the claimant contributing to the claimant's (mis)understanding of the facts within his means of knowledge.

Again, it is important to emphasize the nature of the doctor-patient relationship that enhances the impact and influence any such advice would have on the claimant's assessment of the situation and whether there exists a breach of duty and a cause of action. I do not suggest the advice was provided by the defendant with the intention to mislead the claimant and promote the expiration of the limitation period. In my view it is of little moment in this case whether the advice was provided with a nefarious motive.

Regardless of the intent, it had the effect of postponing the claimant’s consideration and potential conclusion that a breach of duty had occurred.

It would not serve the interests of justice to allow such advice to work to the benefit of the defendant and to the detriment of the claimant. [ 26 ] In the result, I am unable to accept the proposition that the claimant was aware or should have recognized at the time of the procedure that a cause of action arose as a result of the pain he experienced at the time of the procedure or shortly thereafter. [ 27 ] The alternative argument advanced by counsel for the defendant was that the claimant must have known the facts supporting a cause of action no later than November 4, 2010 when he visited Dr.

Benham. [ 28 ] The available evidence with respect to the advice provided by Dr. Benham varies and ranges anywhere from no advice being provided according to Dr. Benham, to the claimant’s mother indicating Dr. Benham advised the claimant that the defendant had not done a good job but it could be fixed. According to the claimant, Dr. Benham simply told him that his teeth were not pushed up far enough to the gum line so he decided to continue seeing the defendant to resolve his issues after the advice from Dr. Benham. Subsequent to the claimant’s visit to Dr.

Benham the claimant had various work performed by the defendant including work to remedy the difficulties experienced as a result of the June 20, 2008 procedure. The defendant continued to provide advice and treatment, and worked with the claimant to resolve the issues including the pain related to the procedure.

There is evidence supporting the proposition that the claimant believed his difficulties could be corrected by further treatment and he pursued same until such time as he lost confidence in the defendant in the spring of 2013. [ 29 ] I am satisfied after reviewing the material available on this application that the information provided to the claimant in 2010 from Dr. Benham was not sufficient to indicate to the claimant that the defendant had breached a duty owed to the claimant.

There is insufficient evidence before me indicating that the claimant was aware or should have been aware that a breach of duty had occurred. [ 30 ] I am satisfied that the claimant did not recognize a breach of duty may have occurred until the spring of 2013 and he commenced the action that summer. I do not believe that a patient in the claimant’s position would have recognized a breach of duty had

occurred based on the facts within his means of knowledge or that a reasonable person, receiving appropriate advice that a reasonable person would have sought on those facts, would regard the facts as showing that an action against the defendant would have a reasonable prospect of success. [ 31 ] In the result I am satisfied that the commencement of the two-year limitation period with respect to the claim for the June 20, 2008 procedure was postponed until 2013 the same year the claim was filed.

Accordingly the application by the defendant to dismiss the claimant’s claim for breach of duty is dismissed. [ 32 ] In conclusion I am ruling that the claimant’s claim against the defendant for failure to obtain an informed consent is statute- barred and the claim for breach of duty in the defendant’s performance of the procedure of June 20, 2008 may proceed to trial. R. Cutler Provincial Court Judge