Kenneth Morris

Following a successful appeal, the respondents requested to make submissions on the costs of the lower court proceeding, arguing the motion judge made no costs award due to the novelty of the issues.

The Court of Appeal affirmed its decision to award the appellants costs of both the appeal and the lower court motion, applying the general principle that costs follow the event and noting that the appellants were entirely successful in being permitted to continue their actions against new defendants.

The plaintiff, who suffered severe brain damage at birth rendering him mentally incompetent, commenced a medical malpractice action in 2002 against his mother's obstetrician and the hospital.

In 2006, a second action was commenced against the doctors who treated him post-birth.

The motion judge struck the second action as statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that under the transition provisions in s. 24, the former limitation period applied because the claim was discovered by the litigation guardian before January 1, 2004.

Under the former Limitations Act, the limitation period was suspended due to the plaintiff's mental incompetence, meaning the second action was commenced in time.