Date Issued: September 18, 2023

File: SC-2022-004872

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Macdonald v. Schmidt, 2023 BCCRT 785

Between:

DAVID MURRAY MACDONALD

Applicant

And:

NANCY SCHMIDT

Respondent

REASONS FOR DECISION
Tribunal Member:	Nav Shukla

INTRODUCTION

1.      This dispute is about dental services. The applicant, David Murray Macdonald, claims the respondent, Nancy Schmidt, provided substandard dental services between October 2019 and July 2020. Mr. Macdonald alleges that as a result of Dr. Schmidt’s alleged negligence, he required extensive dental work after he obtained a new dentist in September 2020. Mr. Macdonald also alleges Dr. Schmidt negligently failed to provide him with copies of his dental records, despite his requests. Mr. Macdonald seeks an order that Dr. Schmidt pay him $3,600, broken down as follows:

a.    $1,900 for costs incurred for the later dental work,

b.    $500 for the alleged pain and discomfort endured during the later dental work, and

c.    $1,200 in damages for Dr. Schmidt’s allegedly negligent failure to provide dental records, with $300 of that amount being for the “considerable research” Mr. Macdonald says he conducted to decipher his dental records.

2.      Dr. Schmidt denies she provided negligent dental services or that she negligently failed to provide the requested records. She says she owes nothing.

3.      Mr. Macdonald is self-represented. Dr. Schmidt is represented by a representative of her insurer.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). In resolving disputes, the CRT must apply principles of law and fairness.

5.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me and that an oral hearing is not necessary.

6.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law.

Preliminary Issue

7.      Both parties argue that some evidence provided by the other is not admissible. Dr. Schmidt takes issue with communications Mr. Macdonald disclosed between himself and the College of Dental Surgeons of British Columbia (CDSBC) about his requests for his dental records. Dr. Schmidt sent Mr. Macdonald’s dental records to the CDSBC in September 2020, at the CDSBC’s request, after Mr. Macdonald filed a complaint against her. Dr. Schmidt says that the communications Mr. Macdonald sent or received from the CDSBC about his records request are not admissible in this dispute under section 53 of the Health Professions Act (HPA). Similarly, Mr. Macdonald says that Dr. Schmidt’s evidence in this dispute includes 3 documents that were provided by Dr. Schmidt as evidence in the CDSBC’s investigation of Mr. Macdonald’s complaint that are also not admissible under HPA section 53. For the reasons that follow, I disagree with the parties and find the disputed documents are admissible in this CRT proceeding.

8.      Section 53(1) of the HPA requires a person to “preserve confidentiality with respect to all matters or things that come to the person’s knowledge while exercising a power or performing a duty under” the HPA, subject to some exceptions that do not apply here (my bold emphasis added). Section 53(3) says the “records relating to the exercise of a power or the performance of a duty under Part 2.1 or Part 3 are not compellable in a court or proceedings of a judicial nature”. Section 53(3) also contains some exceptions that I find do not apply here.

9.      I find neither party was exercising a power or performing a duty under the HPA when they acquired the disputed documents and the information contained therein. Rather, it was the CDSBC that was exercising its powers and duties under the HPA. Further, the parties do not seek an order to compel the CDSBC to produce documents, the documents have already been produced by the parties. So, I find HPA section 53 has no application here. The parties do not argue any other basis on which the disputed documents may be inadmissible in this dispute. I find the disputed documents are relevant, are not subject to any confidentiality provisions, and are not otherwise privileged. So, I find the disputed documents are admissible.

ISSUES

10.   The issues in this dispute are:

a.    Did Dr. Schmidt provide negligent dental services or negligently fail to provide Mr. Macdonald his requested dental records?

b.    If so, what remedies are appropriate?

EVIDENCE AND ANALYSIS

11.   As the applicant in this civil proceeding, Mr. Macdonald must prove his claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties’ submitted evidence and argument but refer only to what I find relevant to provide context for my decision.

12.   The following background facts are undisputed. In the fall of 2019, Mr. Macdonald’s former dentist, Dr. R, retired. Dr. Schmidt took over Dr. R’s patient load, including Mr. Macdonald. Mr. Macdonald attended Dr. Schmidt’s office for dental services on October 15, 2019, February 13, 2020 and July 22, 2020. At each appointment, Mr. Macdonald received a routine dental cleaning from Dr. Schmidt’s dental hygienist, CK. During the October 15, 2019 appointment Dr. Schmidt briefly met Mr. Macdonald but she did not do a dental exam herself on this day or during the February 13, 2020 appointment. During the July 22, 2020 appointment, after CK completed the dental cleaning, CK moved Mr. Macdonald to a different room to wait for Dr. Schmidt to conduct a dental exam. Mr. Macdonald felt the wait was too long and got up to leave and pay his bill. Before leaving, Mr. Macdonald and Dr. Schmidt had a brief discussion, following which Mr. Macdonald left, without having had a dental exam by Dr. Schmidt.

Alleged Professional Negligence

13.   Mr. Macdonald says that Dr. Schmidt should have, but failed to, conduct a dental exam herself, order x-rays of his teeth, or discuss a treatment plan for him at the October 15, 2019 and February 13, 2020 appointments. Mr. Macdonald also alleges that Dr. Schmidt did not view any of his most recent x-rays taken by Dr. R. Mr. Macdonald says Dr. Schmidt was negligent in failing to do these things. Mr. Macdonald says when he found a new dentist in September 2020, he was shocked to learn that he needed approximately $7,800 in dental work, including 2 crown replacements and a likely root canal. Mr. Macdonald alleges that had Dr. Schmidt conducted a dental exam and ordered x-rays at one of his appointments with her, she would have caught some or all of his emerging dental issues at an earlier stage, reducing the costs he incurred for the later dental work and the associated pain and discomfort.

14.   To prove negligence, Mr. Macdonald must show that Dr. Schmidt owed him a duty of care, she breached the standard of care, Mr. Macdonald sustained damage, and the damage was caused by Dr. Schmidt’s breach (Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraph 33). It is undisputed Dr. Schmidt owed her patient, Mr. Macdonald, a duty of care. The issue in this dispute is the relevant standard of care and whether Dr. Schmidt breached it, causing Mr. Macdonald the claimed damages.

15.   Mr. Macdonald’s allegations concern professional negligence in that he says that Dr. Schmidt’s services fell below the standard of a reasonably competent dentist. Such cases generally require an applicant to prove a breach of the applicable standard of care with expert evidence as this is outside the knowledge or expertise of an ordinary person (see, for example, ter Neuzen v. Korn, 1995 CanLII 72 (SCC) and Bergen v. Guliker, 2015 BCCA 283). There are exceptions where the breach of standard of care is obvious.

16.   Dr. Schmidt says expert evidence is required here, and since Mr. Macdonald did not provide any, this claim should be dismissed. In contrast, Mr. Macdonald says expert evidence is not required. He relies on various website screenshots to show what standard of care he says applied. The first is a screenshot from the Canadian Dental Association’s (CDA) website. In this screenshot of “Dental Care FAQs”, in response to the question “Do I really have to go to the dentist every six months?”, the CDA says that how often you go for dental exams depends on your oral health needs, and that for many people, this means a dental exam every 6 months. Mr. Macdonald also relies on screenshots from various dental offices’ websites that similarly recommend visits every 6 months. He relies on further screenshots from various dental office’s website to say that most of these dentists specify that during a first visit, a new patient will receive a dental inspection by a dentist, x-rays, and a conversation with the dentist about a proposed treatment plan. Mr. Macdonald says that given his age, and his genetic propensity for plaque buildup and caries, Dr. R had him come in for dental visits every 4 months, something Dr. Schmidt also did once Dr. R retired. So, Mr. Macdonald says Dr. Schmidt should have known that it was important for her to conduct a dental exam herself and order x-rays to avoid or catch potential dental problems.

17.   I find this is not the type of case where I can find Dr. Schmidt negligent in the absence of expert evidence that she was. While I accept that other dental offices advertise that they typically have a dentist conduct an exam, x-rays, and discuss treatment plants with new patients, without expert evidence, I am unable to find that this is what Dr. Schmidt should have done with Mr. Macdonald. Mr. Macdonald had undisputedly been receiving regular dental services from Dr. R. up until June 2019. So, while Mr. Macdonald was a new patient at Dr. Schmidt’s office, he was not a new patient who had gone without dental services for any extended period of time. Without expert evidence saying otherwise, I am unable to conclude that Dr. Schmidt’s decision not to personally examine Mr. Macdonald before July 22, 2020, based on the information that was available to her at that time, fell below the applicable standard of care of a reasonably competent dentist. This is because I find Dr. Schmidt’s decision on whether or not to conduct a dental exam herself and to order x-rays involves knowledge and skills which an ordinary person cannot pass judgment on. As there is no expert evidence before me, I find Mr. Macdonald has failed to establish the standard of care that applies here, or that Dr. Schmidt breached that standard of care. I also find it unproven on the evidence before me that Dr. Schmidt failed to view Mr. Macdonald’s x-rays taken by Dr. R. In any event, I find expert evidence would also be required to prove that such failure fell below the applicable standard of care of a reasonably competent dentist.

18.   Even if I had found that Mr. Macdonald had established the applicable standard of care, and that Dr. Schmidt breached it, I would have still dismissed Mr. Macdonald’s malpractice claim. This is because I find he has also failed to prove a causal connection between Dr. Schmidt’s actions and the harm he says he suffered. I find the evidence before me does not establish on a balance of probabilities that the dental work Mr. Macdonald subsequently required resulted from a lack of appropriate care on Dr. Schmidt’s part. For those reasons, I dismiss Mr. Macdonald’s dental malpractice claim. I turn now to Mr. Macdonald’s claim that Dr. Schmidt negligently failed to provide him with his requested dental records.

Failure to Provide Dental Records

19.   Mr. Macdonald argues that Dr. Schmidt was negligent and breached the applicable standard of care by failing to provide him with his full dental records. Mr. Macdonald says he sent a November 20, 2020 letter to Dr. Schmidt requesting his records from June 2014 to July 2020, but Dr. Schmidt never responded. Dr. Schmidt says that she never received this letter. I note the November 20, 2020 letter in evidence is not addressed to anyone in particular. While Mr. Macdonald says he sent the letter by registered mail, he provided no evidence to confirm the letter was delivered to Dr. Schmidt. So, I find it unproven that Mr. Macdonald delivered this letter to Dr. Schmidt. As a result, I also find it unproven that Dr. Schmidt failed to respond to the November 20 letter and provide Mr. Macdonald with the requested records.

20.   It is undisputed that Mr. Macdonald has since obtained his records from the CDSBC, aside from a few that he says are still missing. However, Mr. Macdonald argues that he should not have had to ask the CDSBC for the records and that Dr. Schmidt had a legal obligation to provide him with his dental records herself. I find it unproven on the evidence before me that there was anything improper about Dr. Schmidt providing the requested records through the CDSBC, instead of providing them personally to Mr. Macdonald. So, I find any negligence on Dr. Schmidt’s part with respect to Mr. Macdonald’s request for records unproven.

21.   Even if Mr. Macdonald had proven that Dr. Schmidt acted negligently with respect to his records requests, I would have dismissed this claim in any event as I find Mr. Macdonald has not proven any damages resulting from the alleged negligence. While Mr. Macdonald alleges that the delay in receiving his records denied his new dentist of the records’ use, he provided no evidence that the new dentist required these records in order to diagnose him, proceed with his treatment, or that he incurred extra expense as a result. I also would not have awarded Mr. Macdonald the damages he claims for the inconvenience he says experienced in trying to obtain the records, or for the time he says he spent deciphering the records to determine what x-rays were missing.  

22.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Since Mr. Macdonald was unsuccessful, I dismiss his claim for reimbursement of his paid CRT fees. Dr. Schmidt did not pay any CRT fees but claims $0.60 in photocopying charges as dispute-related expenses. Since the CRT is an online tribunal, it does not typically award reimbursement for photocopying expenses, absent unusual circumstances and sufficient explanation, which are not present here. So, I decline to award any reimbursement.

ORDER

23.   I dismiss Mr. Macdonald’s claims and this dispute.