Antepyan-Ruckenstein v Cadili: A Foreign Expert, a Video Blog, and a Claim Dismissed

Most medical malpractice trials turn on documents the patient never expected to be read back to them. Usually those documents are clinical records. In Antepyan-Ruckenstein v Cadili, 2026 BCSC 1715, the most damaging record was one the plaintiff created himself: a seven-hour video log he posted online before and after his surgery, in which he described the operation he was about to receive in terms that contradicted the case he later put to the court.

The plaintiff, a pharmacist, was diagnosed with obstructive sleep apnea and underwent maxillomandibular advancement surgery performed by Dr. Fahad Cadili, an oral and maxillofacial surgeon, at UBC Hospital on June 27, 2022. He alleged that the surgery Dr. Cadili actually performed was not the surgery they had agreed on, and he advanced claims in negligence, lack of informed consent, battery, breach of contract, and negligent misrepresentation. He represented himself at an eight-day trial in Victoria in April and May 2026. On September 9, 2026, Justice Gottardi dismissed the action in its entirety.

The decision is worth the attention of Ontario malpractice counsel for three reasons that have nothing to do with jaw surgery: what happens when a plaintiff’s expert cannot speak to the Canadian standard of care, how a court treats contemporaneous statements that conflict with trial testimony, and how a judge manages the tension between accommodating a self-represented litigant and holding them to the burden of proof.

How a British Columbia Decision Bears on Ontario Law

Antepyan-Ruckenstein is a trial decision of the Supreme Court of British Columbia. In Ontario it is persuasive only, not binding. Some of its machinery is genuinely provincial: the expert report requirements the defence invoked come from British Columbia’s Supreme Court Civil Rules, R. 11-6, and the clinical records were tendered under s. 42 of the British Columbia Evidence Act. Ontario counsel work under Rule 53.03 and s. 35 of the Ontario Evidence Act instead.

The substantive law, however, is the same law that governs in Ontario. The standard of care analysis rests on Sylvester v Crits, [1956] O.R. 132 (C.A.), aff’d [1956] S.C.R. 991, on the warning in Lapointe v Hôpital Le Gardeur, [1992] 1 S.C.R. 351 against judging physicians with hindsight, and on Ter Neuzen v Korn, [1995] 3 S.C.R. 674 for the proposition that a specialist is measured against other ordinary specialists in the field and that expert evidence is required on technical matters. The informed consent framework is Reibl v Hughes, [1980] 2 S.C.R. 880. All of these bind Ontario courts directly. The reasoning carries over even though the decision does not.

The Expert Who Could Not Speak to the Canadian Standard

The plaintiff tendered four expert reports: one from a semi-retired American oral and maxillofacial surgeon, Dr. Michael Lee, and three from Brazilian oral and maxillofacial surgeons. The defence objected to all four.

Justice Gottardi excluded the three Brazilian reports after a voir dire, finding them unnecessary and unhelpful, and holding that none of those experts was qualified to opine on standards of care in Canada. As drafted, the court found, the reports carried the potential to “distort the fact-finding process.”

Dr. Lee’s report was admitted, subject to weight. Two representations in it mattered at the admissibility stage: that he had considered authoritative Canadian and American textbooks, and that he was sufficiently familiar with Canadian oral and maxillofacial surgery practice expectations to assist the court and would identify material jurisdictional differences.

Cross-examination dismantled both. Dr. Lee had no Canadian academic or work experience, had practised exclusively in the United States, and acknowledged that he had not educated himself on the relevant Canadian guidelines and standards. He could not identify the Royal College of Dentists of Canada as the certifying body for dental specialists, could not identify the governing body for dental professionals in British Columbia, and could not describe what an American oral surgeon would need to do to qualify in Canada. Justice Gottardi found that his opinions on the Canadian standard of care were entitled to no weight.

Two further problems compounded this. Dr. Lee had been given only the initial consultation note and the operative report, despite the plaintiff holding the complete clinical record; he had not seen the second consultation note or any post-operative follow-up. And his opinion rested on two assumptions, that the plan was for a counterclockwise advancement and that three-dimensional imaging would be used, neither of which the court found proven. Dr. Lee conceded in cross-examination that his opinion would change if the plan had been for a straight advancement and surgical splints were properly used, and that splints, cephalometric imaging and trace modelling would otherwise meet the standard of care.

The defence expert, Dr. Richard Bell, was the only Canadian physician to give evidence. The court preferred his opinion wherever it conflicted with Dr. Lee’s and gave it significant weight. That outcome is a familiar one for anyone who has watched a qualification fight go badly. The lesson translates without modification to Ontario: an expert who cannot ground an opinion in the practice expectations of the jurisdiction where the care was delivered is vulnerable long before the merits are reached, and finding the right expert is not a step that can be salvaged later.

Contemporaneous Statements Against Trial Testimony

Justice Gottardi found the plaintiff sincere about his symptoms but had significant concerns about the reliability of his testimony, describing evidence that was somewhat rehearsed, thematic, and delivered as narrative rather than recitation of fact.

The contradictions came largely from the plaintiff’s own material. He testified that he and Dr. Cadili had agreed on a counterclockwise rotation; in his video log, recorded before the surgery, he said his surgeon was doing the straight one. He testified that Dr. Cadili was to use three-dimensional surgical planning; in the video log he described Dr. Cadili as more of an analog guy who used two-dimensional methods. He testified that there had been no discussion of a genial tubercle advancement; the court pointed to a June 5, 2022 email in which he circulated a systematic review on that very procedure to his family and asked what they thought, and to a video recorded on the day of surgery showing that he understood he could choose it.

The plaintiff’s testimony about his pre-surgical function met the same fate. He said he had been functioning well and had no significant mental health issues. Employment records, a 2021 WorkSafe BC application, psychiatric and counselling records, and his own written summary of the video log described something quite different, including sustained workplace conflict, multiple emergency department visits, and a period in early 2022 when he was unable to work at all. In September 2022, roughly ten weeks after the operation, he posted a five-star review of Dr. Cadili describing the result as procedurally and aesthetically perfect.

Three lay witnesses called to support the plaintiff’s account of his function did not survive cross-examination either. One had been out of the country for five years and had seen the plaintiff three times since returning. One recalled that the plaintiff could not exercise after surgery, a recollection the court contrasted with the plaintiff’s own videos of free-weight workouts two weeks post-operatively, and with disclosed Strava and gym logs.

Consent, Battery, and the Modified Objective Test

The court applied the three-part informed consent test as set out in Igboji v Garbuz, 2022 BCSC 2008 at para. 15: that the patient was not fully informed of a material or unusual risk, that a reasonable person in the patient’s position would not have proceeded if properly informed, and that the undisclosed risk materialized and caused damage. The assessment is modified objective, from the perspective of a reasonable patient in the plaintiff’s circumstances, per Reibl.

Justice Gottardi found it more likely than not that the risks of the different forms of genioplasty had been discussed. He then made the alternative finding that matters most for pleading strategy: even if the specific risks of a genial tubercle advancement versus a sliding genioplasty had not been canvassed, a reasonable patient in this plaintiff’s circumstances would have proceeded and would have elected the genial tubercle advancement anyway. By the time of surgery the plaintiff had consulted four oral and maxillofacial surgeons, three of whom were prepared to operate, and had catalogued the risks of the procedure in his own video log.

The battery claim failed on the factual findings. Following Liu v Chuo, 2019 BCSC 109 at para. 80, citing Reibl, a failure to obtain informed consent sounds in negligence; battery arises only where the procedure performed was different from the one consented to, or where the nature of the procedure was misrepresented. The court found the procedure performed was the procedure discussed and agreed. That mirrors the analysis Ontario courts apply, as in the birth injury context in Noel v Hawrylyshyn.

The negligent misrepresentation claim, built on an alleged overstatement of the number of surgeries Dr. Cadili had performed, failed on two branches of Queen v Cognos Inc., [1993] 1 S.C.R. 87. The court could not find the statement untrue, given Dr. Cadili’s evidence of 284 orthognathic surgeries in his residency year alone and a continuing volume since 2015. And the plaintiff’s own contemporaneous statements identified cost and wait time, not surgical experience, as the drivers of his choice.

Causation, and the Adverse Inference Not Drawn

Justice Gottardi went on to decide causation, describing it as equally dispositive. The plaintiff called no expert evidence on causation at all. Dr. Isabel Schultz, the neuropsychologist he tendered, was clear that her report had not been prepared as a medico-legal report and that she had elected not to opine on causation. The defence forensic psychiatrist, Dr. Paul Janke, opined that the plaintiff’s presentation was consistent with severe somatic symptom disorder that preceded the surgery, and that he had experienced neither deterioration nor sustained improvement in function following it.

The defence asked the court to draw an adverse inference, relying on Mohamud v Yu, 2016 BCSC 1138, from the plaintiff’s failure to call his long-standing family physician and his clinical counsellors. Justice Gottardi described the omission as inexplicable and said the inference was open to him, then declined to draw it because the plaintiff was self-represented and living with several mental health diagnoses. The concession changed nothing. The burden of proving causation remained, and it was not met.

The court also accepted, on Dr. Bell’s evidence, that the surgery produced an objective airway benefit: an apnea-hypopnea index that fell from 21.9 before surgery to 8.4 by August 2022, with a later study in the normal range. Three subsequent procedures, including a second jaw advancement in Brazil in November 2024, were found capable of affecting the plaintiff’s pre-existing condition in their own right, engaging the intervening event principles summarized in Bernatchez v Chisholm, 2022 BCSC 105.

What Plaintiff Counsel Should Take From This

Nothing in these reasons suggests the plaintiff was insincere. Justice Gottardi went out of his way to say otherwise, about the plaintiff and about his mother. The case failed on proof.

Three points are worth carrying forward. First, expert qualification is jurisdictional, and a foreign expert who has not done the work of understanding Canadian practice is a liability rather than an asset. Second, a plaintiff’s own contemporaneous record, whether it is a text message, an email to family, a review, or a video posted to the internet, will be obtained and will be put to them; counsel who has not read all of it before examination for discovery is not ready. Third, a bad outcome, or an outcome that falls short of what a patient hoped for, is not a breach of the standard of care and not proof of causation. Both still require expert evidence from a qualified witness, as any medical malpractice claim in Ontario does.

The pattern here is not unusual. It appears in Reistad v La Berge, where a British Columbia plaintiff who led no expert evidence of her own tried to build a case by cross-examining the defence, and it appears whenever a genuine injury and a genuine sense of grievance are not matched by the evidence the law requires.

Antepyan-Ruckenstein v Cadili, 2026 BCSC 1715 (Gottardi J.). British Columbia decision, persuasive only in Ontario.