Kenneth Wilson Plaintiff – v. –, 2017 ONSC 4682

CITATION : Wilson v. Dakin, 2017 ONSC 4682 COURT FILE NO. 308/08 DATE : 20170801 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Kenneth Wilson Plaintiff – and – Edward Dakin Defendant Jeffrey Lanctot and Catharine Blastorah, for the plaintiff Shauna Powell and Brendan Farrer, for the defendant Heard: November 28, 2016 B ALE J.: [ 1 ] This action was commenced on October 29, 2008. On this motion for judgment, the defendant argues that the plaintiff’s claim was discovered no later than October 13, 2006, and that as a result, the limitation period had expired, and the action should be dismissed.

Background facts [ 2 ] On October 30, 2003, the defendant performed bilateral carpal tunnel release surgery on the plaintiff. [ 3 ] Following the surgery, the plaintiff continued to suffer pain in his hands. However, the defendant advised him that his condition would improve. [ 4 ] In April 2006, the plaintiff was referred to Dr. Dvali at the WSIB hand clinic for further assessment, and on October 2, 2006, Dr. Dvali performed exploratory surgery to investigate the cause of the continuing impairment. [ 5 ] The plaintiff then had two post-operative appointments at Dr.

Dvali’s clinic: October 13, 2006 and November 10, 2006. In between those appointments, on November 8, 2006, the plaintiff completed a report for WSIB in which he was asked to provide details, if a further incident had aggravated his condition. In response, he wrote (referring to the surgery performed by the defendant): “The first surgery – nerve in my wrist was cut.” [ 6 ] The plaintiff was examined for discovery on July 16, 2012. During the examination, he said that the information contained in the WSIB report was based upon information given to him by Dr.

Dvali, and that his belief that the defendant had “performed the surgery wrong,” and not in accordance with the standard expected of him, was based upon the same information. [ 7 ] The defendant commenced this motion for judgment in February 2016. Relying upon the plaintiff’s admission that he knew by November 8, 2006 that he had received substandard care, the defendant took the position that the action was statute-barred. Since the plaintiff had not seen Dr.

Dvali between October 13 and November 8, the information that he had on the latter date must have dated back to the former. [ 8 ] However, in March 2016, plaintiff’s counsel wrote to defendant’s counsel, and advised her that certain answers given by the plaintiff on his discovery had been incorrect. In particular, although he knew on October 13, 2006 that a nerve had been cut, he was not aware until a consultation with Dr. Dvali on November 10, 2006 that he had received substandard care from the defendant. [ 9 ] The plaintiff swore an affidavit in support of his change of evidence, and was crossexamined.

When asked what additional information he received from Dr. Dvali on November 10, 2006, he said that until then, he had been under the impression that a cut nerve is something that can just happen during surgery, but that he learned on November 10: “That my hand was a mess. There was scar tissue, there was nerve damage. Scar tissue that shouldn’t be there.” It was only then, he said, that he realized that the defendant may have been negligent.

Discussion [ 10 ] The primary issue on this motion is whether the plaintiff’s knowledge on October 13, 2006 that the defendant had cut a nerve in his left hand was, in itself, sufficient to start the running of the limitation period. The defendant argues that it was. [ 11 ] A secondary issue is whether, in the event that knowledge of the cut nerve was not, in itself, sufficient, I can be satisfied that the claim had not expired. The defendant argues that there is evidence to support a finding that the plaintiff received additional information from Dr.

Dvali on October 13, 2006, and that based upon the evidentiary record on this motion, the court is not in a position to find that the action was commenced within the limitation period.

Whether knowledge of cut nerve was in itself sufficient to commence running oflimitation period [12] The defendant argues that the plaintiff’s knowledge on October 13, 2006 that the defendant had cut a nerve in his left handwas, in itself, sufficient to start the running of the limitation period. In doing so, he relies primarily upon Lawless v. Anderson, 2011ONCA 102, and Dale v. Frank, 2017 ONCA 32, aff’g [2016] ONSC 3211. [13] In response, the plaintiff argues that a limitation period does not begin to run until the plaintiff has knowledge of an error onthe part of the defendant – a culpable act.

In doing so, he relies primarily upon Zurba v. Lakeridge Health Corp. (2010), 2010 ONSC 318, 99 O.R. (3d) 596 (S.C.J.), and Oakley v. Guirguis, 2014 ONSC 6529. [14] In Lawless, the court held that determining whether a claim has been discovered is a factbased analysis. The question iswhether the plaintiff knew sufficient facts on which to base a claim of negligence against the defendant. In that case, the defendant hadperformed breast augmentation surgery on the plaintiff.

When complications arose following the surgery, the plaintiff met with Dr.Weinberg, a plastic surgeon who regularly acted as a medico-legal expert, and was advised that she had been “disfigured”, and that herbreasts were “deformed”. Specific problems with how the defendant had performed the surgery were identified, and she was advised tocontact a lawyer, and to make a complaint to the College of Physicians and Surgeons. On the defendant’s motion for judgment, theplaintiff argued that obtaining this information from Dr.

Weinberg was not sufficient to start the limitation period running, and that it didnot begin to run until she obtained a written opinion from another specialist. In rejecting this argument, the Court of Appeal held, at para.30, that following her meeting with Dr. Weinberg, the defendant had all of the material facts necessary to determine that she had primafacie grounds for inferring that the respondent had been negligent, and that it was clear to her that she had suffered more than anunfortunate and unsatisfactory outcome.

She was aware of what was wrong, why it was wrong, what would have to be done to correct it,and who was responsible. [15] Using the same fact-based analysis in the present case, yields a different result. Mr. Wilson’s evidence is that when he learnedon October 13, 2006 that his nerve had been cut, he did not understand a cut nerve to be more than an unfortunate and unsatisfactoryoutcome of carpal tunnel release surgery.

This understanding is supported by the fact that he had been made aware before undergoing theoriginal surgery that there were inherent risks in doing so, and that before commencing her exploratory surgery, Dr. Dvali advised himthat his symptoms could get better, worse, or stay the same, as a result of the surgery. [16] In Frank, eight plaintiffs unsuccessfully argued that their claims were not discoverable until they read a lawyer’s press releaseoutlining three existing law suits against the defendant doctor.

However, in that case, unlike the present one, the surgical outcomes foreach of the eight were so bad that it could not reasonably be argued that they had no reason to believe that their injuries occurred withoutfault on the part of the defendant. [17] On appeal, the court held, at para. 7: “a plaintiff need not know that a defendant’s act or omission was culpable in order forthe loss it causes to be discovered.

To require a plaintiff to know with certainty that her injuries were caused by the fault of the defendantwould require her to have come to a legal conclusion as to the defendant’s liability to her.” [18] However, there is a difference between “knowing with certainty that … injuries were caused by the fault of the defendant,”requiring a legal conclusion, and having some reason to believe that the injury, loss or damage was other than an unfortunate andunsatisfactory outcome of the surgery.

I do not read the decision to say otherwise. [19] The Court of Appeal in Frank, at para. 7, approved the statement in Lawless that “the question to be posed is whether theprospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant.” It is difficult to understandhow a plaintiff, who has no reason to believe that his unsatisfactory surgical outcome is other than the manifestation of an inherent riskof the surgery performed, can be said to have had knowledge of the required facts to base a claim of negligence.

In my view, it is inherentin the concept of “injury loss or damage,” “caused by or contributed to by

an act or omission” of a defendant, that the plaintiff must havesome reason to believe that what happened should not have happened. Or, as the motion judge put it in Frank, at para. 115: “Where theplaintiff is aware of sufficient particulars to reasonably call into question the conduct of the defendant, the limitation period begins torun.” [20] In Zurba, the plaintiff, after falling from a ladder and fracturing his ankle, was treated by the defendant doctor. On a motionfor

summary judgment, the plaintiff gave evidence that: “Neither the fact of the infection, or the potential loss of a part of my leg, norany other difficulties I was experiencing were at any time associated by me with any potential shortcomings in any treatment followingmy injury. Quite the contrary, I understood those to be potential consequences of my injury.” During the course of his decisiondismissing the motion for

summary judgment, Lauwers J. said the following, at para. 36: “It is therefore quite clear that an element ofthe cause of action for discoverability purposes is knowledge that someone erred. In some cases, this knowledge will be obvious, forexample, where it is the right knee and not the left knee on which surgery was to occur. In other cases, however, the situation is morenuanced and will require medical opinion.” [21] In Guirguis, the plaintiff developed lymphedema, a permanent and disabling condition, following surgery to remove anabscess.

During the surgery, the defendant doctor also dissected several lymph nodes. It was not until more than two years later that theplaintiff was advised that she had lymphedema, and that the defendant should not have removed non-cancerous lymph nodes. Indismissing the defendants’ motion for judgment, the motion judge held, at para. 63ff., that it is not sufficient that a plaintiff know thatshe had an unfortunate outcome, but that in addition, as in Lawless, the plaintiff must know what was wrong, why it was wrong, and whowas responsible. [22] The defendant argues that the plaintiff did not learn anything from Dr.

Dvali on November 10, 2006 that would be the basis ofthe commencement of the limitation period, because the description of his hand as “a mess” was not an opinion that the defendant haderred, or that he had committed a culpable act. However, the message that the defendant took, from whatever words Dr. Dvali actuallyused, was that the defendant had “performed the surgery wrong”, and not in accordance with the required standard. In any event, the

defendant’s argument on this point would, at best, be an argument that the claim had not, in fact, been discovered as of November 10, 2006. [ 23 ] In the result, I find that knowledge of the cut nerve on October 13, 2006 was not, in itself, sufficient to commence the running of the limitation period. Whether the plaintiff received additional information on October 13, 2006 [ 24 ] An affidavit sworn by Dr. Dvali was filed on the motion. On cross-examination, she stated that she had no independent recollection of a meaningful conversation with the plaintiff on October 13, 2006.

However, she also said that if she had told him that day that a nerve had been cut, she would have gone on to explain the implications. Based upon this evidence, and the plaintiff’s evidence that he was told of the cut nerve on October 13, the defendant argues that the implications of a cut nerve must have been explained to him on that date. However, given the fact that Dr.

Dvali has no recollection of any such conversation, and the fact that there is no evidence of what implications “would have been” discussed, I am left with, and accept, the plaintiff’s evidence that the only information he received was that he had a cut nerve. Whether based upon the record on this motion, the court is in a position to make a positive finding that the action was commenced in time [ 25 ] The defendant asked for, and received, his day in court, on his limitation period defence. [26] Under rule 20.04(2) of the Rules of Civil Procedure, “the court shall grant

summary judgment, if the court is satisfied that there is no genuine issue requiring a trial, with respect to a claim or defence.” In the present case, I am satisfied that there is no genuine issue requiring a trial of the limitation period defence. [27] All of the persons who would be expected to have knowledge of the material facts related to this issue have provided affidavits, and have been fully cross-examined on those affidavits. The issue raised on the motion was primarily a question of law, and there are no material conflicts in the evidence.

In these circumstances, I am satisfied that I have been provided with all of the evidence necessary to fairly and justly adjudicate the limitation period defence. There would be no advantage, and obvious disadvantage, to leaving the issue for decision by the jury. Disposition [28] In the result, the defendant’s motion for

summary judgment is dismissed, and the plaintiff is granted partial

summary judgment dismissing the limitation period defence. [29] If the parties are unable to agree on costs, I will consider brief written argument, provided that it is delivered to my assistant at Judges’ Reception, Durham Region Courthouse, Sixth Floor, no later than August 31, 2017. “Bale J.” Released: August 1, 2017 CITATION : Wilson v. Dakin, 2017 ONSC 4682 COURT FILE NO. 308/08 DATE : 20170801 ONTARIO SUPERIOR COURT OF JUSTICE (Action commenced at Peterborough) BETWEEN: Kenneth Wilson Plaintiff – and – Edward Dakin

Defendant REASONS FOR DECISION B ALE J. Released: August 1, 2017