2010 ONSC 6435, 2010 ONSC 6435

CITATION : Cassibo v. Bacso, 2010 ONSC 6435 COURT FILE NO.: 2866/06 DATE: 2010-11-30 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CINDY CASSIBO, Plaintiff AND: DR. EMERIC BACSO, Defendant BEFORE: HOURIGAN J. COUNSEL: Robert N. Kostyniuk, Counsel, for the Plaintiff Susanne Ilic, Counsel, for the Defendant HEARD: November 9, 2010 ENDORSEMENT Introduction [ 1 ] The defendant brings this motion for

summary judgment on grounds that there is no evidence to support the plaintiff’s claim that he breached the relevant standard of care and therefore no genuine issue requiring a trial. In the alternative, the defendant moves for an order dismissing the action for delay. Background [ 2 ] This action arises out of a claim for professional negligence against the defendant dentist Dr. Emeric Bacso. Dr. Bacso provided dental services to the plaintiff between July 4, 2002 and June 22, 2004. [ 3 ] In 2002 the plaintiff was treated by Dr. Bacso on three occasions. During these treatments Dr.

Bacso extracted a total of three teeth. [ 4 ] In and around June 2004, the plaintiff attended at Dr. Bacsco’s dental office complaining of pain in her lower right side. Over the course of two visits, Dr. Bacso took x-rays and extracted two teeth. Following both procedures, Dr. Bacso provided post- operative instructions and prescribed a painkiller. [ 5 ] There appears to have been a dispute between the parties regarding the appropriate pain medication. The plaintiff on more than one occasion requested Percocet. Dr.

Bacso declined to prescribe that medication based on the possibility of an allergic reaction and his concern that the plaintiff was exhibiting narcotic-seeking behaviour. [ 6 ] On June 25, 2004 the plaintiff threatened to sue Dr. Bacso if he did not prescribe Percocet. Dr. Bacso suggested that the plaintiff follow up with her family doctor regarding her request for the medication. The plaintiff was scheduled to attend for an appointment the next day. She did not attend and Dr.

Bacso did not provide any further treatment to her. [ 7 ] In a statement of claim issued June 19, 2006 ,the plaintiff alleges that after her treatments she continued to suffer pain in her jaw and that eventually she was required to have surgery on her right mandible. She alleges that during that surgery it was determined her mental nerve was tethered to a sharp spinicule of bone. The plaintiff says that despite the fact that the nerve was dissected off the bone in surgery her symptoms did not improve.

Specifically she alleges that she suffers from severe parasthesia and neuropathic pain involving the right CN V-3 nerve distribution, as well as inflamed bone and soft tissues of her right mandible. [ 8 ] The plaintiff alleges in the statement of claim that Dr. Bacso failed to meet the standard of care of a competent dental surgeon. This allegation is denied in the statement of defence filed by Dr. Bacso. [ 9 ] The examinations for discovery of both parties took place on March 31, 2008. The defendant brought a motion to compel answers to undertakings on November 27, 2008.

Justice Clarke ordered the plaintiff to provide answers to the outstanding undertakings within 30 days of the order. The plaintiff did not comply with the timelines in the order, but instead answered the undertakings on or about June 25, 2009. [ 10 ] At the examinations for discovery, counsel for the plaintiff advised that he had attempted to obtain an expert report from Dr. Jack Gryfe but that Dr. Gryfe was not prepared to provide a report without a retainer.

There was a further discussion on the subject of an expert report between counsel on or about November 30, 2009 wherein counsel for the plaintiff advised that he was seeking to have Legal Aid fund an expert report and that he would know by the end of January 2010 whether the plaintiff would receive the required funding.

[11] To date, the plaintiff has failed to deliver any expert report. It appears that Legal Aid Ontario has denied the request made bythe plaintiff to fund the cost of such a report. [12] The pleadings in this action closed on January 13, 2007. The plaintiff has yet to set this mater down for trial. Analysis (

i) Summary Judgment [13] In a malpractice case the issue for determination is whether the care provided fell below the standard of care required in thecircumstances. The plaintiff must establish that the relevant standard of care was breached and that the breach caused or contributed tohis/her damages. [14] The case law is clear that in a medical malpractice case where the matters in issue are technical and not within the ordinaryknowledge and experience of the trier of fact, a court cannot make a finding of a breach of the standard of care or a finding of causationwithout expert opinion evidence. There is a long line of cases wherein malpractice defendants have successfully moved for

summaryjudgment on the grounds that the plaintiff has failed to provide an expert report on an issue outside the expertise of the trier of fact (seeClaus v. Wolman (1999), (ON SC), 52 O.R. (3d) 673 (Ont. S.C.J.), Samuel v. Ho 2009 CarswellOnt 169 (Ont.S.C.J.), Lozowy v. Trillium Health Centre 2007 CarswellOnt 2049 (Ont. S.C.J.), and McNeil v. Easterbrook 2004 CarswellOnt 3926(Ont. S.C.J.) and Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318 , 99 O.R. (3d) 596 (Ont.

S.C.J.)). [15] There is, however, another line of cases wherein courts have held that an expert report is not necessary where an inference of abreach of care or causation can be made without the necessity of expert evidence. One example is the decision of Justice Paisley inSchmidt v. Gollish, [2000] O.J. No. 944 (Ont. S.C.J.): On the issue of negligence, the plaintiff has not filed an expert medical opinion in support of her claim, although one has been requestedby the defence. Rule 53.03 requires production of expert reports not less than 90 days before the trial.

Regardless of whether a medicalreport is available, the case of Snell v. Farrell supports the plaintiff's position that there is a triable issue on negligence. There, theplaintiff had sued in negligence and battery, Although neither of the expert witnesses called by the parties could say whether the operation caused the injury, the trial judge wassatisfied that the facts of the case brought it within an emerging branch of the law of causation, whereby the onus to disprove causationshifts to the defendant in certain circumstances ....

Proof of causation in medical malpractice cases is often difficult for the patient. Thephysician is usually in a better position to know the cause of the injury than the patient .... In many malpractice cases, the facts lieparticularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence, on the part of the plaintiff,will justify the drawing of an inference of causation in the absence of evidence to the contrary. (SCC), [1990] 2 S.C.R.311 (S.C.C.) @ pp. 318, 328 and 329 per Sopinka J.

Notwithstanding the cases cited by the applicant to support the argument that a medical report is required to respond to a motion forsummary judgment, see Barber v. Mustard (November 25, 1993), Doc. 3607/85 (Ont. Gen. Div.), Claus v. Wolfman (December 22,1999), Doc. 93-CU-074221 (Ont. S.C.J.), and Ngo v. Toronto Western Hospital (February 4, 1994), Doc. 306794/87 (Ont. Gen. Div.). Iam satisfied on the authority of Snell v. Farrell, supra, that there is a genuine issue for trial on the facts of this case.

Given the plaintiff'sagreement to this effect, the action is to be set down for trial forthwith. [16] Unfortunately, the endorsement in that case does not specify the precise nature of the alleged negligence.

Certainly it is notdifficult to imagine cases where the plaintiff will have a diminished evidentiary burden such that the filing of an expert report isunnecessary. [17] However, I do not interpret the comments of the Supreme Court of Canada in Snell to mean that a plaintiff in a medicalmalpractice suit can, as a matter of course, allege negligence and then simply allege that only the defendant has the requisite knowledge. In a limited class of very clear cases an inference of a breach of care can be made.

Even in these cases, the burden of proof is not negatedcompletely; it is only reduced in those circumstances such that expert evidence is not necessary. As Justice Conway notes in Lozowy, theburden of proving causation ultimately rests with the plaintiff and it is only in the clearest of cases where an inference of causation can bedrawn without an expert opinion. [18] In my view, this is not a case where the trier of fact can, without the benefit of an expert report, determine whether thestandard of care has been breached and whether the breach caused or contributed to the plaintiff’s damages.

This it is a technical areathat is not within the ordinary knowledge and experience of a trier of fact. In the absence of an expert opinion it would not be possible forthe trier of fact to determine the appropriate standard of care, let alone whether the defendant’s actions caused or contributed to anydamages suffered by the plaintiff. [19] It is no answer to say that such expert evidence might yet be produced. The time to lead trump is at the

summary judgmentstage. The mere hope of obtaining a sufficient evidentiary record is not enough to justify permitting a matter to proceed to trial. [20] The plaintiff notes that the defendant has not filed an expert report and relies upon this fact to resist the motion for

summaryjudgement. Such an argument if accepted would effectively reverse the evidentiary burden. It would also as a practical matter lead to adifficult situation for defendants who would be forced to obtain costly expert opinions to respond to a case which has not been fullyarticulated by the plaintiff. [21] I am satisfied that there is no genuine issue requiring a trial. The defendant’s

summary judgment motion is granted. (ii) Dismissal for Delay

[22] I turn now to the defendant’s alternative argument that the action should be dismissed for delay. [23] An action will not be dismissed for delay unless it has been established that the default is intentional and contumelious or thedelay caused by the action or inaction of the plaintiff gives rise to a substantial risk that a fair trial might not be possible (see WoodheathDevelopments Ltd. v. Goldman (2003), (ON SCDC), 66 O.R. (3d) 731 (Ont. Div. Ct.)). [24] In this context the term contumelious means reproachful, insulting or insolent conduct (see Saikaley v.

CommonwealthInsurance Co. (1978), (ON SC), 21 O.R. (2d) 629 (Ont. Sup. Ct.)). [25] I am not satisfied that the delay is either intentional or contumelious. The plaintiff and her counsel have been diligentlyfollowing the necessary application process in an effort to obtain funding from Legal Aid Ontario. There have been delays in that processwhich are not the responsibility of the plaintiff. For example, it would appear that the original application for funding was misplaced anda new application had to be submitted under new more stringent funding criteria.

While there is no doubt that the Legal Aid Ontariofunding application process has delayed the prosecution of this case, that delay was not intentional and certainly cannot be considered tobe contumelious. [26] The next consideration is whether the delay gives rise to a substantial risk that a fair trial might not be possible. In Saikaley,Justice Hollingworth relied upon the decision of Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons [1968] 1 All E.R. 543: In order for such an application to succeed the defendant must show first that there has been inordinate delay.

It would be highlyundesirable indeed impossible to attempt to lay down a tariff so many years or more on one side of the line on the lesser pay than theother. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case but aninordinate delay should not be too difficult to recognize when it occurs. Second that this inordinate delay is inexcusable as a rule until acreditable excuse is made out that natural inference would be that it is inexcusable. Three, that the defendants are likely to be seriouslyprejudiced by the delay.

This may be prejudice at the trial of the issue between themselves and the plaintiff or between each other orbetween themselves and the third party. In addition to any inference that may properly be drawn from the delay of self-prejudice cansomehow, sometimes be directly proved. As a rule the longer the delay the greater the likelihood of serious prejudices at the trial. [27] Looking at the facts of this case of this case, I do not find that the delay has been inordinate. The statement of claim wasissued in June of 2006 and the motion was brought in April of 2010.

While the case is not exactly burning its way through the courtsystem, such timing is not out of the ordinary. [28] I am also not satisfied that the delay was inexcusable. As noted above, the record establishes that the plaintiff has beenattempting for some time to obtain Legal Aid Ontario funding.

The plaintiff has offered a credible explanation for her delay in setting thematter down for trial. [29] Given that I have found that the delay is not inordinate or inexcusable, it is unnecessary to consider the issue of prejudice. [30] I find that the defendant has not met his onus and that are no grounds to dismiss the action for delay. Disposition [31] The defendant’s motion for

summary judgment is granted and his motion to dismiss the action for delay is denied. [32] If the parties cannot agree on the issue of costs, I will entertain brief written submissions. Costs submissions are due fromthe defendant within ten days and are not to exceed five pages. The plaintiff may file responding submissions not to exceed three pageswithin seven days of the receipt of the plaintiff’s submissions. Any reply submissions shall be filed within three days of the receipt of theresponding submissions and shall not exceed two pages. HOURIGAN J. Date: November 30, 2010