John A. M. Petrella

The Court of Appeal for Ontario considered the issue of costs following an appeal between the Township of Adelaide Metcalfe and the Municipality of Strathroy-Caradoc.

The court determined that there would be no costs of the appeal, as the determinative issue was not raised before the Divisional Court.

The costs previously ordered by the Divisional Court were set aside.

The appellants appealed a summary judgment dismissing their medical malpractice action as statute-barred.

The Court of Appeal affirmed the motion judge's finding that the claim was discoverable no later than February 6, 2014, when the family met with a medical malpractice lawyer, and therefore the action, issued on April 11, 2016, was out of time.

The court rejected the argument that expert reports were necessary for discoverability, emphasizing that a claim is discovered when a plaintiff has knowledge of material facts for a plausible inference of liability, not necessarily when the merits are confirmed by expert opinion.

The defendant doctor brought a motion for summary judgment to dismiss the plaintiffs' delayed diagnosis medical malpractice claim on the basis that it was statute-barred.

The deceased was diagnosed with lung cancer in May 2013 after the defendant ordered a chest x-ray, and the family immediately expressed concern that an x-ray had not been ordered earlier despite her symptoms.

The family obtained the medical chart and consulted a medical malpractice lawyer by early 2014, but the statement of claim was not issued until April 2016.

The court found that the plaintiffs had actual knowledge of the material facts upon which to base an allegation of negligence by no later than February 2014, meaning the two-year limitation period had expired before the claim was issued.

The motion for summary judgment was granted and the action was dismissed.