Rebizant v. Greenwood et al., (1998) 127 Man.R.(2d) 35 (QB)

• Judge: Steel, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 25, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 127 Man.R.(2d) 35 (QB)

Rebizant v. Greenwood (1998), 127 Man.R.(2d) 35 (QB)

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. AP.010

Deborah Rebizant (plaintiff) v. Richard Greenwood, The Health Sciences Centre and La Corporation Instrumentarium Inc. (defendants)

(File No. CI 96-01-95966)

Claire Capner (plaintiff) v. Richard Greenwood, The Health Sciences Centre and La Corporation Instrumentarium Inc. (defendants)

(File No. CI 96-01-96385)

Carla Pindera (plaintiff) v. Richard Greenwood, The Health Sciences Centre and La Corporation Instrumentarium Inc. (defendants)

(File No. CI-96-01-96386)

Wendy Beaulieu (plaintiff) v. Richard Greenwood, The Health Sciences Centre and La Corporation Instrumentarium Inc. (defendants)

(File No. 96-01-96464)

Irene Ledoyen (plaintiff) v. Richard Greenwood, The Health Sciences Centre and La Corporation Instrumentarium Inc. (defendants)

(File No. 96-01-97311)

Indexed As: Rebizant v. Greenwood et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Steel, J.

March 25, 1998.

Summary:

Between 1984 and 1986, Greenwood, an oral surgeon, surgically implanted a tempo­mandibular joint implant in the jaw of each of the plaintiffs. In 1996, the plaintiffs com­menced actions against Greenwood, alleging that he was negligent in failing to warn them of the risks of the procedure or the implant itself, in failing to follow up on the implants and in using an implant that was never approved for use in Canada. Greenwood submitted that as the professional services rendered by him terminated more than two years before the issuance of the statements of claim, the actions were barred by s. 44 of the Dental Association Act. The plaintiffs applied under s. 14 of the Limitation of Actions Act for leave to continue the actions. Greenwood brought a motion for summary judgment or, alternatively, for an order striking out the statements of claim on the ground that they were statute barred.

The Manitoba Court of Queen's Bench dismissed the plaintiffs' application and granted Greenwood's motion for summary judgment.

Limitation of Actions - Topic 15

Discoverability rule - Application of - [See Medicine - Topic 7203 ].

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - Between 1984 and 1986, Greenwood, an oral surgeon, surgi­cally implanted a tempomandibular joint implant in each of the plaintiffs' jaws - In 1996, the plaintiffs commenced actions against Greenwood, alleging negligence in failing to warn of the risks of the pro­cedure or the implant, in failing to follow up and in using an implant not approved for use in Canada - Greenwood submitted that the actions were barred by the limita­tion period in s. 44 of the Dental Associ­ation Act - The plaintiffs applied under s. 14 of the Limitation of Actions Act (the Act) for leave to continue the actions - The Manitoba Court of Queen's Bench dis­missed the application - The plaintiffs did not comply with s. 15(3) of the Act, which required that leave to commence the actions be requested prior to filing the statements of claim - Nor did they comply with s. 15(2), which required that they satisfy the court that the actions had a reasonable chance of success.

Limitation of Actions - Topic 9613

Enlargement of time period - Application for - Time for application - [See Limita­tion of Actions - Topic 9612 ].

Limitation of Actions - Topic 9615

Enlargement of time period - Application for - Bars - [See Limitation of Actions - Topic 9612 ].

Medicine - Topic 7203

Dentists - Limitation periods - Section 44 of the Dental Association Act provided that no member of the association was liable in an action for negligence or mal­practice unless the action was commenced within two years from the date when the professional services rendered terminated - The Manitoba Court of Queen's Bench held that "when dealing with a limitation period such as s. 44 ... which is fixed by reference to a specific time from the hap­pening of a specific event, an event which occurs without regard to the plaintiff's knowledge of the injury, the discoverabil­ity rule has no application. Rather, resort must be had to s. 14 of the Limitation of Actions Act" - See paragraphs 14 to 22.

Cases Noticed:

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63 (C.A.), refd to. [para. 18].

Peixeiro v. Haberman (1997), 217 N.R. 371; 103 O.A.C. 161 (S.C.C.), refd to. [para. 20].

Justice v. Cairnie Estate et al., [1993] 6 W.W.R. 305; 88 Man.R.(2d) 43; 51 W.A.C. 43 (C.A.), refd to. [para. 21].

Einarsson et al. v. Adi's Video Shop et al. (1992), 76 Man.R.(2d) 218; 10 W.A.C. 218 (C.A.), consd. [para. 25].

Manning v. Nassar, [1991] 1 W.W.R. 37; 70 Man.R.(2d) 310 (C.A.), refd to. [para. 26].

Budd v. Cardoso (1996), 113 Man.R.(2d) 101; 131 W.A.C. 101 (C.A.), consd. [para. 30].

Weselak v. Beausejour District Hospital No. 29 (1987), 49 Man.R.(2d) 86 (C.A.), consd. [para. 37].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 38].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; [1995] 1 W.W.R. 609, refd to. [para. 48].

Steffensen v. Canadian Tire Corp. (1996), 109 Man.R.(2d) 143 (Q.B.), refd to. [para. 51].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al. (1996), 112 Man.R.(2d) 174 (Q.B.), refd to. [para. 135].

Lexogest Inc. et al. v. Manitoba (Attorney General) et al. (1990), 66 Man.R.(2d) 227 (Q.B.), refd to. [para. 135].

Beatty v. Megill-Stephenson Co. (1993), 86 Man.R.(2d) 40 (Q.B.), refd to. [para. 135].

Evans v. Holroyd (1988), 31 C.P.C.(2d) 48 (Ont. H.C.), refd to. [para. 137].

Becker, Re (1986), 57 O.R.(2d) 495 (Surr. Ct.), refd to. [para. 138].

Griffin Steel Foundries v. Canadian Asso­ciation of Industrial Workers, Mechanical and Allied Workers, [1978] 1 W.W.R. 35 (Man. C.A.), refd to. [para. 141].

Statutes Noticed:

Dental Association Act, R.S.M. 1987, c. D-30; C.C.S.M., c. D-30, sect. 44 [para. 14].

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 14(1) [para. 28]; sect. 15(2) [para. 39]; sect. 15(3) [para. 24].

Counsel:

Robert Tapper, Q.C., and Sandra Chapman, for the plaintiffs;

Richard Handlon and Elizabeth Beaupre, for the defendants.

These applications and motions were heard before Steel, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 25, 1998.