Chelli-Greco v. Rizk, 2015 ONSC 6963

The defendant, Dr. Rizk brought a motion for summary judgement to dismiss the claim, on the basis that his former patient commenced the action after the two year limitation period had expired. The plaintiff was treated by the defendant from 2005-2012. She claimed that the action was commenced in time because the limitation period began to run on or about her last visit on October 23, 2012. It is the defendant’s position that the limitation period commenced at the time of the patients visit on Sept. 21, 2011, approximately 11 months before the dentist-patient relationship ended.

The plaintiff was treated for complex pre-existing problems and had to undergo “complex major restorative treatment.” As part of the treatment, the defendant installed a bridge in the lower right jaw and an upper implant that supported the bridge in the plaintiff’s upper right jaw. The bridges ultimately failed and for the last year of treatment the defendant was attempting to treat and mitigate the problems. Of particular importance, in Justice Hackland’s view, was that the defendant’s treatment was negligent.

Justice Hackland engaged in a section 5(1)(a)(iv) discovery analysis to ultimately conclude that it did not become legally appropriate for the plaintiff to discover her claim against her dentist until their dentist-patient relationship ended and therefore the plaintiff’s action was not statute barred.

In coming to this conclusion, it was held that the defendant did not establish on a balance of probabilities that the plaintiff’s claim was discovered on Sept. 21, 2011 because:

1. The plaintiff did not appreciate that the failure of her dental work was caused by or contributed to by an action or omission of the defendant. In fact, the defendant’s clinical notes indicated that he continuously told the plaintiff that the problems resulted from the fact she had a heavy bite, she had traumatized her teeth and had poor dental hygiene and that it was the plaintiff’s belief that the defendant would repair the damage;
2. Under cross-examination, the defendant accepted criticisms from the plaintiff’s expert that he was negligent in the last year of the plaintiff’s treatments, that treatments were not in compliance with the standard of care and he did not obtain informed consent form the plaintiff. Justice Hacklack concluded that the plaintiff could not have discovered her claim on Sept. 21, 2011 before the period of negligent treatment had begun. For the purposes of s. 5 of the Limitations Act, negligence cannot be discovered before it occurs. This is confirmed by s.5(2) of the Limitations Act which creates a presumption that a claim is discovered by the plaintiff at the time the act or omission complained of occurred, unless the contrary is proven. The defendant failed to rebut this presumption as it pertained to the ongoing negligence which continued until the end of the dentist-patient relationship; and
3. n regard to the requirement in s.5(1) of the Limitations Act which stipulates that in order for the claim to be discovered, the person must know “(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it…”

Justice Hackland noted that in this case, rather than seek legal remedies, the plaintiff decided to accept the dentist’s proposal that he continue to treat her and he did so for the next year. However, the plaintiff’s action was not discovered until the dentist-patient relationship had ended. It would not fairly be said that the plaintiff should have considered it appropriate to commence proceedings against her dentist while he was attempting to remediate her problems which she was led to believe was the result of the poor health of her teeth. The plaintiff remained under the defendant’s influence and professional guidance, without proper advice, for the duration of the dentist-patient relationship and therefore it would not be appropriate for the plaintiff to begin legal proceedings as opposed to seeking remediation by continuing to seek treatment from the defendant.

What the Insurer Should Know

Where the plaintiff is told by a negligent professional that he did not cause the alleged damage, the limitation period will not start until that relationship is ended and the plaintiff has had an opportunity to get another opinion.

Mitch Kitagawa	Kristina Kang