Informed Consent (Dental)

Guerrero v Trillium Dental Centre, 2014 ONSC 3871

[18] The informed consent issue is a genuine issue for trial that cannot be fairly determined on the basis of the documentary record alone, even with the assistance of the new fact-finding powers contained in rule 20.04. The interests of justice require that the forensic machinery of the trial process be engaged to resolve conflicts in the evidence and to make the necessary findings of fact.

[19] The failure of the duty to disclose in the context of obtaining informed consent was addressed in Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 where Laskin J. sought to explain the implications of the term in relation to the tort of battery and the law of negligence. He concluded that it was generally preferable to treat the duty to disclose as an aspect of negligence. For the purposes of this case I would differentiate the duty to disclose from the obligation to perform the procedure with reasonable competence. While both may belong in the realm of negligence, it is my view that on these facts the former does not require expert evidence while the latter does.