This sad case involves two of the public’s least favourite professionals- dentists and lawyers. Although I try to make clear that my columns are not legal advice and no legal retainer has been created, I am hoping that my comments at the end will help people in their discussions with their litigation lawyers at the first meeting stage. I do not want to leave a bad taste in people’s mouths on behalf of my m profession.
In the Brown v Wahl case a woman had dental implants put in by her first dentist. There either were problems with them or she perceived there were problems with them so she went to see a second dentist. He advised that he would have done the implant procedure differently.
The woman thus sued the first dentist for negligence.
The merits of that case were never heard, because that dentist, or his insurer brought a motion to dismiss the lawsuit for being time barred under the new Limitations Act. That legislation came into force in 2004 and we are only now getting Ontario appeal level decisions interpreting it. The motions court judge dismissed the lawsuit and the woman appealed.
The Limitations Act provides that you must sue within two years- within two years of what, you may ask.
Well, that involves the concept of “discoverability.”
The Limitations Act has a whole section devoted to that topic, with 5 sub paragraphs- which basically say it is the day you first knew that the injury occurred and that it was caused by a certain person or company and that it was worth suing about (i.e. worth more than a few dollars and a defendant that is not bankrupt etc).
In the case the lady was complaining about serious pain and went to her new dentist on December 13, 2011. The new dentist explained how he would have done the procedure differently and explained what the problem was and explained the cause of the breakage in her dentures.
Although it is not clear from the reported judgment I bet that the lady and her negligence lawyer waited until they had a written opinion from an expert dentist before starting her lawsuit- they probably started it within two years of receiving that opinion.
The Ontario Court of Appeal dismissed the woman’s appeal and held that the Limitation Clock started to tick on December 13, 2011. The court reasoned that there was a difference between the degree of proof needed to start the limitation clock and the degree of proof needed to win the lawsuit, (an expert testifying in support of his report)).
Given the time and money it takes to hire experts and obtain their reports, this case will cause real problems for injured people and their lawyers.
I suggest that people issue their claim with the court and then use the six month period before the defendant has to be served as the time to see if their case is worth pursuing- if it is not, then let it die a natural death by not serving it within that mandatory time.