IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Between November 2017 and May 2018, the defendant, Dr. Joosung Kang, a Coquitlam dentist, performed a dental implant procedure for the claimant, Jason Bak, to replace four teeth, including three molars.

[2]         In Mr. Bak’s one paragraph, handwritten Notice of Claim, he alleges that all four implants “make pain when I drink, eat and runing (sic) on the road” and that Dr. Kang refuses to speak to him or refund the fee for the implants. In substance, Mr. Bak alleges dental malpractice and claims $9,000 for the amount Dr. Kang charged him and $1,595.60 for fees other dental specialists have charged him.

[3]         In his Reply, Dr. Kang denies that Mr. Bak’s implants malfunctioned and alleges that Mr. Bak failed to take proper care of his teeth.

[4]         The matter is before me today for a second pre-trial conference. For the reasons discussed below, I am dismissing Mr. Bak’s claim.

[5]         Mr. Bak filed his Notice of Claim on October 21, 2022. On December 7, 2022, he filed his Certificate of Readiness as required for personal injury claims.

[6]         The documents attached to his Certificate of Readiness include:

[7]         The Certificate of Readiness does not include a standard of care opinion from a qualified dental professional, and none has been filed or provided to Dr. Kang as of today. Further, Mr. Bak informed the Court today that he does not intend to produce any other documents at trial.

[8]         On September 7, 2023, Mr. Bak and Dr. Kang appeared before me for a settlement conference. At the end of the settlement conference, I set the case down for a two-day trial on June 6 and 7, 2024. I also warned Mr. Bak that he had not provided the evidence a trial judge would need to allow his claim. I emphasized that a “standard of care” opinion was necessary and that a judge cannot conclude Dr. Kang was negligent based only on Mr. Bak’s testimony and the dental X-rays and other documents attached to the Certificate of Readiness. I told him the assistance of an expert was needed.

[9]         Pursuant to Rule 7(14)(l), I ordered Mr. Bak to file an expert report on or before January 31, 2024, on whether the standard of care required of a dentist performing dental implant procedures in British Columbia was met by Dr. Kang. Mr. Bak did not comply with my order. I also ordered Mr. Bak to attend the pre-trial conference on January 31, 2024 with a certified Korean-English interpreter. Mr. Bak did not comply with that order either.

[10]      When I asked Mr. Bak on January 31, 2024 why he had not produced a medical-legal report, he claimed not to have understood that he was required to do so and handed me some documents that appeared to be X-rays and receipts that were attached to his Certificate of Readiness together with a photograph of his mouth. He then started explaining that he had an appointment of some kind the next day. As to why he did not have an interpreter with him, he said he had been in the hospital until the day before and did not have time to arrange for one.

[11]      I do not accept Mr. Bak’s explanation for not producing a medical-legal report or attending Court without an interpreter. He received a copy of the Settlement Conference Record more than four months before the pre-trial conference on January 31, 2024 and he clearly understood that he was supposed to attend Court on January 31, 2024 with an interpreter. He had ample opportunity to find someone to interpret the Settlement Conference Record if he was unsure about any of the terms of the order set out in that document, including the order to produce a standard of care opinion.

[12]      I made it clear to Mr. Bak on January 31, 2024 that I was giving him one last chance to produce a standard of care opinion. Further, I explicitly warned him that I would dismiss his claim if he did not produce an opinion by April 5, 2024. I cancelled the June 6 and 7, 2024 trial dates, ordered him to produce an opinion by April 5, 2024, and scheduled a pre-trial conference for today.

[13]      Mr. Bak attended Court today having filed two documents since I made my order on January 31, 2024. The first is a handwritten letter by Mr. Bak filed April 4, 2024, in which he expresses the “need to criticize” a dentist who allegedly refused to provide a standard of care opinion because he is a friend of Dr. Kang. The letter states that this dentist told Mr. Bak to complain to the “BC Dental Association.” The second is a letter dated March 28, 2024 from a dentist at Vancouver Implant Perio Centre addressed to Rise Dental. It was filed April 4, 2024 and provides a diagnosis for Mr. Bak’s complaints, an evaluation of his existing implants and the viability of an implant in another area, and recommendations for treatment. The letter is not a standard of care opinion and does not address whether Dr. Kang’s work is the cause of Mr. Bak’s problems. In brief submissions made today through his interpreter, Mr. Bak informed me that he asked the dentist at Vancouver Implant Perio Centre to prepare a report as required by my order. I do not accept that he did, as my order clearly states that Mr. Bak must file a “medical legal opinion from a qualified dentist on whether the standard of care required of a dentist performing dental implant procedures in British Columbia was met by Dr. Kang in providing implants for Mr. Bak.” I do not believe that the dentist who prepared Vancouver Implant Perio Centre’s letter would have suggested that the letter he delivered was responsive to my order.

[14]      As neither document filed by Mr. Bak since January 31, 2024 is a standard of care opinion, Mr. Bak is in breach of my order. He did, however, comply with my order to attend with a certified interpreter, for which I am grateful. To further assist Mr. Bak, the Registry will provide a copy of these Reasons to him in a few days.

[15]      I am dismissing Mr. Bak’s claim pursuant to the authority I have under Rules 16(6)(o) and 7(14)(i) of the Small Claims Rules and s. 2 of the Small Claims Act, RSBC 1996, c. 430 [Small Claims Act].

[16]      The power of a judge under Rule 7(14)(i) to dismiss a claim at a settlement conference has been relied upon by judges of this Court outside of settlement conferences to dismiss a claim under Rule 16(6)(o). In Treminio v. Aveda Institute, 2017 BCPC 348 at paras 19 to 22 [Treminio], Judge Mrozinski reviews the exercise of that power:

[17]      Mr. Bak’s claim suffers from two critical flaws, each of which is fatal by itself.

[18]      Mr. Bak’s claim against Dr. Kang lies in negligence, which the Continuing Legal Education Society of British Columbia’s Civil Jury Instructions [CIVJI] describes as follows:

[19]      As summarized in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para 3, a successful claimant in negligence must prove:

[20]      The first element – that Dr. Kang owed Mr. Bak a duty of care – is a question of law and not contentious. There is no question that a dentist owes a patient a duty of care, and I do not need an expert to assist me in making that finding.

[21]      The other three elements, however, cannot be proven without expert evidence. While there are rare cases of dental malpractice that can be proven without tendering an expert report or calling an expert to testify – a recent example is Harrison v. Nawrot, 2024 BCPC 22 – such cases will be exceedingly rare and Mr. Bak’s is not one of them.

[22]      I can make only two findings on the evidence Mr. Bak plans to present at trial: I can find that Mr. Bak had four dental implants and is experiencing pain and discomfort around them. Without expert evidence, it is impossible to make further findings; in particular, I cannot find that Dr. Kang made a mistake or that any mistake he made is the cause of Mr. Bak’s pain and discomfort.

[23]      The evidence that Mr. Bak has provided – X-rays and other documents attached to his Certificate of Readiness and the letter dated March 28, 2024 from Vancouver Perio Centre – and his expected testimony at trial cannot fill the evidentiary gaps. For example, I am not qualified to interpret X-rays and draw any conclusions from them, nor can I even find that the X-rays are of Mr. Bak’s dental work. Similarly, Mr. Bak’s quotes from other dentists for remedial work or replacement of implants and Vancouver Implant Perio Centre’s letter dated March 28, 2024 do not assist me in determining whether Dr. Kang made a mistake or whether the work is necessary because of mistakes made by Dr. Kang or complications that arise through no fault of the dentist.

[24]      While s. 16 of the Small Claims Act allows me to admit as evidence “any oral or written testimony, record or other thing” that I consider “credible or trustworthy” even though it would not normally be admissible under the laws of evidence, I have no evidence that meets that criteria with respect to the proper procedure for performing dental implants, the degree, if any, to which Dr. Kang did not follow the proper procedure, and whether Dr. Kang’s acts or omissions caused Mr. Bak’s problems. Further, I have no such evidence as to whether unrelated medical or dental problems, including Mr. Bak’s failure to properly care for his teeth as alleged by Dr. Kang, caused his problems.

[25]      For the above reasons, Mr. Bak’s claim is bound to fail. I acknowledge that dismissing a claim at this stage should be done with caution and only in clear cases.  That said, I find that it should be dismissed because Mr. Bak has had more than a reasonable opportunity to provide the necessary evidence. Nearly 18 months have passed since Mr. Bak filed his Notice of Claim on October 21, 2022, and I have urged him on two separate occasions – first on September 7, 2023 and again on January 31, 2024 – to obtain the necessary evidence. I also have warned him explicitly that without the necessary evidence, his claim would be dismissed. Twice he has failed to comply with my orders to produce the evidence and one set of trial dates has already been struck. To set aside court time for a trial in these circumstances would be pointless.

[26]      The passage of time is also fatal to Mr. Bak’s claim. Under the Limitation Act, S.B.C. 2012, c. 13 [Limitation Act], Mr. Bak had two years to commence a claim in negligence or contract. The dental services in question were provided from November 2017 to May 2018. Assuming the work was completed by May 31, 2018, Mr. Bak’s limitation date would arguably be May 31, 2021, which is actually three rather than two years after the events in question because of the COVID-19 suspension of limitation periods. However, the limitation date is subject to whether Mr. Bak can successfully argue that he did not “discover” his claim until after May 31, 2021.

[27]      From the quotes attached to the Certificate of Readiness, it is obvious that Mr. Bak was seeking advice and treatment from other dentists as early as January 30, 2019, which is the date on 123 Kerrisdale Dental Centre’s “Estimate.” There is also an “Estimate” from Vancouver Implant Perio Centre dated August 1, 2019, which expressly refers to “Implant Removal, complic” (presumably, “complic” means complications).

[28]      The evidence in the materials filed by Mr. Bak establishes that he discovered his claim by August 1, 2019 at the latest. Accounting for the COVID-19 suspension of limitation periods, that would put his limitation date at August 1, 2022. Mr. Bak’s Notice of Claim was filed on October 21, 2022, which is past the deadline.

[29]      Accordingly, Mr. Bak’s claim is barred by the Limitation Act and must be dismissed for that reason as well.

[30]      Mr. Bak’s claim is dismissed.