The appellant appealed a summary judgment dismissing a medical malpractice action on limitation grounds arising from an oesophageal dilation that allegedly caused a rupture.
The court held that the governing statutory limitation provisions incorporated the discoverability rule and that the record raised a factual issue as to when the appellant knew or ought to have known the material facts underlying the negligence claim.
Because that fact-based issue could not properly be resolved on summary judgment, the appeal was allowed and the action was restored for trial.
The court further held that the respondent's summary judgment motion was unreasonable within rule 20.06(1) and awarded the appellant solicitor and client costs of both the motion and the appeal.
