2017 QCCQ 1753, 2017 QCCQ 1753

Kuzina c. Gutin 2017 QCCQ 1753 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146042-157 DATE: February 14, 2017 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ VICTORIA KUZINA -and- Centre dentaire Dre Victoria Kuzina Plaintiffs v. ANATOLI GUTIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Dr.

Victoria Kuzina, dentist, is suing Anatoli Gutin for outstanding amounts due for dental services rendered for the period from January 16, 2013 to November 20, 2014. She claims $14,999.99. [ 2 ] Mr. Gutin is claiming, by Cross-Application against Dr. Kuzina, damages in the amount of $30,065.80. In order to sue in the Small Claims Division of the Court of Quebec, Mr. Gutin reduces his claim to $15,000. [ 3 ] Unfortunately, there was no written agreement regarding the services to be rendered and amounts to be paid. Dr. Kuzina refers to $22,000 as the agreed amount.

In a video recording of a meeting between the parties, Mr. Gutin acknowledges that number. [ 4 ] Dr. Kuzina and Mr. Gutin disagree on most factual aspects that took place, including amounts agreed for charges for particular services. [ 5 ] For Dr. Kuzina, the Court heard her testimony as well as that from her dental assistant and her husband, who acts as her office manager. [ 6 ] For Mr. Gutin, the Court heard from Mr. Gutin, Dr. Igor Proskurovsky, Dr. Gina Kano and Ms. Irena Gutin. [ 7 ] The Court also heard from Dr. Jacques A.

Boileau, a dentist, inspector and analyst with the Insurance Fund of the Order of Dentists of Quebec (IFODQ). He prepared and filed a report (Exhibit P-28).

[ 8 ] The Court also heard from Dr. René Caissie, who was hired by the IFODQ to examine Mr. Gutin after his complaint to the Order of Dentists. [ 9 ] Dr. Boileau and Dr. Caissie appeared generally neutral. They presented their views of the facts and their observations. They appeared to avoid taking position in favour of either one or the other party. [ 10 ] The report of Dr. Boileau is detailed and contains thirteen (13) pages. It describes the dental treatment of Mr. Gutin while a patient of Dr. Kuzina up to November 20, 2014. It also chronicles the treatment of Mr.

Gutin by various other dental professionals, including Dr. Proskurovsky and Dr. Kano for almost two (2) years after the termination of services with Dr. Kuzina, namely up to July 2016. The claims in numbers [ 11 ] The trial showed that Dr. Kuzina’s numbers are unfortunately not accurate or reliable. The numbers presented by her appear to have evolved throughout the file. [ 12 ] At the beginning of the trial, Dr. Kuzina again amended her claim to revise her numbers. According to Dr. Kuzina’s final numbers, the remaining amount claimed for her dental services is $6,656, as detailed at page 5 of Exhibit P-21.

She reduced the cost of the Invisalign treatment from $6,500 to $3,995. [ 13 ] Dr. Kuzina also claims $1,123 for various other amounts including: 1. Disruption of clinic of November 20, 2014 $935.00 2. Registered mail costs ($25 + $11.50 + $11.50) $48.00 3. Collection agency opening charge $34.49 4. Attorneys’ demand letter $106.36 Total: $1,123.85 [ 14 ] For item 1 above, the Court had the opportunity to see a video recorded by Mr. Gutin at the meeting on November 10, 2014. The Court will comment further on the video later. However, the Court does not find that the behaviour of Mr.

Gutin constituted a fault on his part which would require him to pay the amount claimed. [ 15 ] It is clear that Mr. Gutin and his wife were upset. They used very strong language to express their discontent and dissatisfaction as patients. But Mr. Gutin’s conduct did not constitute a fault under

Article 1457 of the Civil Code of Quebec ( C.C.Q. ) that would render him liable for damages towards Dr. Kuzina. Therefore, the claim for that amount is dismissed. [ 16 ] For item 2, this is an amount only claimable as part of legal costs. [ 17 ] Items 3 and 4 are legal fees and, as such, are not claimable and not subject to recovery except for “exceptional circumstances” [1] not present here. [ 18 ] With regard to amounts claimed for unpaid treatments, these have also been revised by Dr. Kuzina at the beginning of the trial.

She claims a revised amount of $6,656 as detailed at page 5 of Exhibit P-21. This amount is calculated as follows: Surgical Guide $498 Post & Crown $1,813 Invisalign and follow up of treatments $1,995 Prepared but unplaced crowns (including lab costs) $1,800 Additional Lab Fee $550 Total: $6,656 [ 19 ] The total amount of damages and treatment are $7,779.85. Dr.

Kuzina mentions her overall claim for $14,999 and claims the difference as damages. [ 20 ] However, she does not explain or justify that claim for remaining damages. [ 21 ] Furthermore, as a result of the lack of evidence, the Court does not consider that there is any claim for treatment or costs that took place in 2013. In particular, there is no invoice for such services. [ 22 ] Mr. Gutin’s claim for damages of $30,065.80 is as follows: Dental expenses to correct faults of Dr. Kuzina $4,065.80 Anticipated dental expenses to correct faults of Dr.

Kuzina $6,000.00 Pain and suffering $20,000.00 Total: $30,065.80 Analysis and Decision [ 23 ] Mr. Gutin has not filed an expertise to establish a professional fault, as a dentist, on the part of Dr. Kuzina. [ 24 ] The first question to answer is whether the termination by Dr. Kuzina of her mandate was lawful in the circumstances. [ 25 ] The applicable grounds are found at Articles 3.03.03 and 3.03.04 of the Code of Ethics of Dentists [2] of the Order of Dentists of Quebec.

These articles state that for a dentist to terminate his or her mandate, there must be a reasonable and just ground. [ 26 ] These grounds are detailed at Exhibit P-13, which is a document from the Order of Dentists of Quebec. They include the loss of confidence in the patient-dentist relationship, including agressivity of the patient and lack of respect or acceptable behaviour by the patient. [ 27 ] As already noted, the Court had an opportunity to view the video recording of a meeting on November 20, 2014. It is clear that Mr. Gutin and his wife were angry with the dentist. They raised their voices.

The dentist asked them to calm down and to treat her as a professional. The situation got out of control. The tension was high and Dr. Kuzina was on the defensive. She felt attacked and not treated as a professional. [ 28 ] In the circumstances, it is clear that there was a major loss of confidence between the patient and the doctor. It is not a question of who was right or who was wrong. Mr. Gutin and his wife no longer respected the professional role and position of Dr. Kuzina. They regularly dismissed her comments as unworthy of merit.

[ 29 ] In the circumstances, the Court concludes that there was a reasonable, just and sufficient ground for Dr. Kuzina to terminate the professional relationship. As a professional, after that meeting, she could no longer treat Mr. Gutin. [ 30 ] Upon the termination, it is to be noted that Dr. Kuzina acted professionally in notifying Mr. Gutin immediately and advising him to have his dental treatments continued and followed up. She had also already given him sufficient supplies to continue his Invisalign treatment to February 2015. [ 31 ] Mr. Boileau’s report and Dr.

Kano’s testimony indicate that certain implants done by Dr. Kuzina do not conform to proper dental practice. They were not properly positioned. These are implants 31, 35 and 36. The report also indicates that the failure of these implants was aggravated by Mr. Gutin’s negligence and lack of proper dental hygiene. However, that factor appears accessory in light of the evidence. [ 32 ] However, Mr.

Gutin’s demands for compensation to the Court are excessive in light of the evidence. [ 33 ] At one and the same time, he refuses to pay the remaining charges for the work done and he claims for the costs to redo that work. He cannot have it both ways. [ 34 ] Another issue to be taken into account for the evaluation of damages is that many of the amounts claimed by Mr. Gutin in his Cross-Application relate to ongoing work that Dr. Kuzina would have done had she continued her treatments and dental services. In the circumstances, it is other dentists who are doing that work. But Mr. Gutin has not paid yet for Dr.

Kuzina to carry out that work and therefore cannot claim amounts back for refund of such work. [ 35 ] Dr. Gina Kano, a periodontist, testified before the Court. She was severely critical of the treatment given by Dr. Kuzina. In particular, she felt that the implant at position 31 was wrongly positioned. For implants at positions 35 and 36, she stated that they were incorrectly placed and the incorrect size was used.

She also felt that it was counter-indicated to carry out orthodontic treatment involving movement of teeth since bone loss was already present for the patient and such treatment often accelerates bone loss. She stated that Dr. Kuzina omitted to perform sufficient pre-treatment analysis, including a scan. [ 36 ] Dr. Kusina responded that, in her professional opinion, the position of the implants could have eventually led to a satisfactory result through restoration and further planned dental services to complete her intended treatment. Dr.

Kuzina also states that the orthodontic treatment could have been successful as she felt that she had improved the oral hygiene of Mr. Gutin to make it possible. [ 37 ] She contends that she should not be blamed for improper treatment since her treatment was unfinished and she was unable to complete it because of the hostile and aggressive conduct of Mr. Gutin. [ 38 ] In light of the above, the Court will arbitrate each party’s respective claims as follows: 1) The Court will reduce Dr. Kuzina’s claim for treatment from $6,656 to $2,000; 2) With regard to Mr.

Gutin’s Cross-Application, the Court has already reduced Mr. Gutin’s liability towards Dr. Kuzina in the amount of $4,656. That amount also compensates in part for the dental treatments required to correct Dr. Kuzina’s mistakes. The Court will not grant a further amount because the evidence indicates that at least part of the cause of the failure of the treatment was related to the negligence of Mr. Gutin in his oral hygiene;

3) The reduction of $4,656 also denies Dr. Kuzina in part the right to claim for laboratory costs incurred to prepare two (2) crowns that were never used. When Dr. Kuzina put an end to the patient relationship, before these crowns were attached, she should have realized that she would lose her right to claim for these expenses. [ 39 ] With regard to Mr. Gutin’s claim for $6,000 for future dental expenses, the Court considers that it is unfounded. Future treatments are the responsibility of Mr. Gutin, especially more than two years after the termination of the patient-dentist relationship.

Any damage resulting from improper acts of Dr. Kuzina have already been indemnified, as indicated above. [ 40 ] Lastly, Mr. Gutin claims $20,000 for pain and suffering endured as a result of the improper dental treatment and care of Dr. Kuzina. He explained that he has always had a fear of dentists and dental treatments. He claims that the redoing of faulty work has caused him much pain and anguish. The Court believes him but feels that the amount claimed is exaggerated. The Court will award him $1,000 in this regard. [ 41 ] The Court will apply and set off that amount against the amount owed to Dr.

Kuzina, therefore rendering the latter amount $1,000. [ 42 ] As both parties’ positions have been validated in

part in the present judgment, the Court will not order either party to pay legal costs. FOR THESE REASONS, THE COURT: CONDEMNS Mr. Anatoli Gutin to pay Dr. Victoria Kuzina and Centre Dentaire Dre Victoria Kuzina Inc. the amount of $2,000; CONDEMNS Dr. Victoria Kuzina and Centre Dentaire Dre Victoria Kuzina Inc. to pay Mr. Anatoli Gutin the amount of $1,000; Operating compensation between the respective amounts owed, the Court: CONDEMNS Mr. Anatoli Gutin to pay Dr. Victoria Kuzina and Centre Dentaire Dre Victoria Kuzina Inc. the amount of $1,000 with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the date of the demand letter (Exhibit P-9) dated December 15, 2014; WITHOUT LEGAL COSTS for either party. __________________________________ Jeffrey Edwards, J.C.Q. Dates of hearing: February 7 and 14, 2017