Morrison v. Barzo, 2018 ONCA 979

Morrison et al. v. Barzo D.C. et al.; Edwards et al., Third Parties

[Indexed as: Morrison v. Barzo]

Ontario Reports

Court of Appeal for Ontario

van Rensburg, D.M. Brown and B.W. Miller JJ.A.

December 5, 2018

144 O.R. (3d) 600 | 2018 ONCA 979

Case Summary

Limitations — Discoverability — Plaintiff suing chiropractor in June 2013 for damages for injuries allegedly suffered during chiropractic treatment in June 2011 — Defendant third partying two health care providers who treated plaintiff in days following original injury — Plaintiff moving to add third parties and another health care provider as defendants in May 2016 — Plaintiff claiming that he was unaware that he had claims against proposed defendants until third parties were examined for discovery in 2015 — Motion judge erring in finding that proposed claims were statute-barred — Motion judge failing to make findings of fact as to when plaintiff actually discovered claims against proposed defendants or ought reasonably have done so — Motion judge erring in treating lack of due diligence as stand-alone ground for finding claim statute-barred — Evidence on motion not supporting conclusion that plaintiff ought reasonably to have discovered claim against proposed defendants before third parties were examined for discovery.

The plaintiff commenced an action against a chiropractor in June 2013, claiming that he suffered injuries during a chiropractic treatment in June 2011 as a result of the defendant's negligence. The defendant third partied two health care providers who had treated the plaintiff in the days following the original injury -- the plaintiff's family doctor and a registered massage therapist -- in May 2014. The third parties were examined for discovery in May and June of 2015. The plaintiff brought a motion in May 2016 to add those third parties and a nurse practitioner in his family doctor's practice as defendants. He claimed that he only discovered that he had a claim against the proposed defendants when the two third parties were examined for discovery. The motion judge dismissed the motion on the basis that the claims were statute-barred. The plaintiff appealed.

Held, the appeal should be allowed.

The motion judge applied the wrong test in dismissing the motion. First, she did not make findings of fact as to when the plaintiff knew of the matters listed in s. 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B in relation to the claims against the proposed defendants, or under s. 5(1)(b) as to when he ought reasonably to have known of such matters. She was required to make those findings on the evidentiary record before concluding that the plaintiff's claims against the proposed defendants had been discovered more than two years before the motion was brought. Second, she pointed to the plaintiff's failure to explain the steps he had taken to investigate the potential claims against the proposed defendants and concluded that the plaintiff had not discharged his burden to establish due diligence. While a plaintiff's due diligence is potentially relevant to the question under s. 5(1)(b) of the Limitations Act as to when a claim ought reasonably to have been discovered, the failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground for finding that a claim is out of time. The motion judge erred in failing to identify the key difference between the plaintiff's claims against the defendant and his claims against the proposed defendants. The claim against the former was that he caused an injury during a chiropractic treatment, which resulted in the plaintiff ultimately being diagnosed with cauda equina syndrome ("CES"). The core of the claim against the proposed defendants was that, after that traumatic injury had already occurred, and before the plaintiff received the CES diagnosis and emergency surgery, they contributed to or exacerbated the plaintiff's injuries in their approach to treating him and/or by failing to take more immediate action to respond to the original traumatic injury. The plaintiff alleged that the obligation to take immediate action arose when the proposed defendants suspected CES or, in the case of the massage therapist, a spinal nerve injury. He claimed that he was unaware that the proposed defendants suspected CES or a spinal nerve injury until the 2015 examinations for discovery. The evidence on the motion did not support a conclusion that the plaintiff ought reasonably to have discovered the claims against the proposed defendants before the examinations for discovery.

Cases Referred To

• Arcari v. Dawson (2016), 134 O.R. (3d) 36, 2016 ONCA 715
• Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1
• Galota v. Festival Hall Developments Ltd. (2016), 133 O.R. (3d) 35, 2016 ONCA 585
• Lawless v. Anderson, 2011 ONCA 102, 81 C.C.L.T. (3d) 220
• Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, 24 C.P.C. (8th) 1
• Thompson v. Dr. Sehgal, 2012 ONSC 3258

Statutes Referred To

• Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5(1)(a), (ii), (iii), (b), (2), 21(1)

Rules and Regulations Referred To

• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 5.04(2)

Procedural History

APPEAL from the judgment of Mullins J., 2017 ONSC 4919 dismissing a motion to add defendants.

Counsel

Joseph Obagi and Elizabeth Quigley, for appellants.

Avi Sharabi, for respondent Cristina Edwards.

Meredith Jones and Nada Nicola-Howorth, for respondent Charles Murphy.

Andrew Faith and Eric Brousseau, for respondent Susan Boulanger.

Judgment

The judgment of the court was delivered by VAN RENSBURG J.A.:

Overview

1The appellants brought a motion to add defendants to a medical malpractice action. They appeal the dismissal of their motion.

2Jeffrey Morrison was injured allegedly in the course of a chiropractic treatment. He and his family members started an action against the chiropractor, Dr. Michael Barzo. Two years later the appellants sought to add as defendants to the action, the three respondents, who are also health care providers who treated Mr. Morrison in the days following his original injury. The motion was dismissed on the basis that the limitation period had expired against the proposed defendants. For the reasons that follow, I would allow the appeal.

3Briefly, in my view the motion judge applied the wrong test in dismissing the motion. First, she did not make findings of fact as to when the appellants knew of the matters listed in s. 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Limitations Act") in relation to their claims against the respondents, or under s. 5(1)(b) as to when they ought reasonably to have known of such matters. She was required to make these findings on the evidentiary record before concluding that the appellants' claim against the respondents had been "discovered" more than two years before the motion was brought and that the limitation period had already expired against the respondents.

4Second, the motion judge pointed to the appellants' failure to explain the steps they had taken to investigate the potential claims against the respondents, and concluded that the appellants had not discharged their burden to establish due diligence. While a plaintiff's due diligence is potentially relevant to the question under s. 5(1)(b) of the Limitations Act as to when a claim ought reasonably to have been discovered, the failure to take reasonable steps to investigate a claim is not a stand-alone or independent ground to find a claim out of time. The motion judge erred in dismissing the motion on this basis.

5Applying the correct test, and on the evidence before the court at this stage, it is not clear that the appellant's claims against any of the respondents ought reasonably to have been discovered by the appellants more than two years before they moved to join the respondents as defendants to the action.

6I would therefore allow the appeal, grant leave to the appellants to add the respondents as defendants to the action and permit the respondents to plead the expiry of a limitation period in their defence.

Facts

7The appellants started their action on June 24, 2013, claiming that the defendant Dr. Barzo was negligent in his treatment of Mr. Morrison. The essence of the claim is that on June 23, 2011, during a chiropractic treatment, Dr. Barzo forcefully "twisted" Mr. Morrison's spine, causing a lumbar disc protrusion and cauda equina syndrome ("CES"). Mr. Morrison was diagnosed with CES on July 14, 2011 and required emergency surgery the next day.

8Dr. Barzo's statement of defence was delivered on May 6, 2014. On May 13, 2014, he third partied two of the three respondents: Cristina Edwards, a registered massage therapist, and Charles Murphy, a family doctor. The third party claim asserts that Mr. Morrison's alleged lumbar disc injury and CES resulted from circumstances occurring subsequent to the June 28, 2011 chiropractic treatment. It also asserts that both third parties were negligent in their treatment of Mr. Morrison between the date of the chiropractic treatment and the referral on July 14 for emergency surgery.

9The third parties defended the main action and the third party claim. Examinations for discovery took place in May and June 2015.

10On May 11, 2016, and just less than two years after the third party claim was issued, the appellants moved to add as defendants to the action, Ms. Edwards, Dr. Murphy, as well as Susan Boulanger, a nurse practitioner in Dr. Murphy's medical office. The draft amended statement of claim alleges that certain acts and omissions of the respondents between the date of the chiropractic treatment and when Mr. Morrison received emergency surgery were negligent. The allegations against Ms. Edwards and Dr. Murphy track the allegations set out in Dr. Barzo's third party claim. The allegations against nurse-practitioner Ms. Boulanger are in essence that she neglected to respond in a timely way to Mr. Morrison's complaints with referrals and diagnostic tests.

11The appellants' motion was supported by an affidavit of their counsel, Ms. Oakley. The affidavit explained that it was not until certain information was provided at the examinations for discovery that she concluded that there were grounds to add the respondents as defendants. In fact, in June 2014, after receiving the third party claim, the appellants' counsel had advised Dr. Murphy's counsel that she did not believe that a claim against Dr. Murphy was appropriate.

12The respondents' counsel cross-examined Ms. Oakley and Mr. Morrison. At the conclusion of her cross-examination, Ms. Oakley provided three schedules setting out the new facts she had discovered in relation to each respondent at the time of the third parties' examinations for discovery, which led her to believe that they ought to be added as defendants. Her counsel indicated that she was willing to answer questions about these documents, which were made lettered exhibits to the cross-examination. Examining counsel reserved their right to ask Ms. Oakley questions about the summaries; however, there was no further examination on this information. Ms. Oakley delivered an affidavit following her examination attaching the same documents. Although this procedure was irregular, in that Ms. Oakley ought to have included the schedules in her original affidavit before she was cross-examined, and she ought not, without leave, to have filed an affidavit after she had been cross-examined, it appears that all of this material was before the motion judge. No argument was made to this court that the schedules prepared by Ms. Oakley were inadmissible on the motion; indeed, they were relied on in argument.

13For their part, the respondents did not file any evidence, other than an affidavit of counsel setting out certain communications between Ms. Oakley, Dr. Barzo's counsel and Dr. Murphy's counsel, before and at the time the third party claim was issued. In these, Ms. Oakley expressed her belief that there was no basis for a claim against Dr. Murphy. The clinical notes and records of the respondents, which had been received by the appellants' counsel at the latest by October 2013, were included in the record that was before the motion judge.

The Motion Judge's Decision

14The motion judge noted that the appellants' position was that they were unaware of the respondents' negligent acts and omissions until the spring of 2015, when the third parties were examined for discovery. She set out their position that it was only at that point that the appellants discovered that:

(a) Ms. Edwards had realized Mr. Morrison's symptoms might indicate a spinal nerve impingement or herniated disc, but she never alerted Mr. Morrison or his other health care providers to this fact;

(b) Ms. Boulanger ordered Mr. Morrison's x-rays but failed to call for them on an urgent basis or to follow up, and she gave Mr. Morrison inadequate discharge instructions; and

(c) Dr. Murphy provided consultation in Mr. Morrison's care on July 6, 2011. He failed to perform a rectal exam and to follow up in a timely manner when he became aware Mr. Morrison exhibited symptoms indicating CES.

15The motion judge did not review or assess the evidence about when the appellants knew or ought to have known the facts that were material to their claims of negligence against each respondent. She concluded, however, at para. 35 of her reasons, that the appellants "must reasonably be taken to know whether the proposed defendants received and acted upon Jeffrey Morrison's complaints of back pain between June 28 and July 15, 2011". She noted that Mr. Morrison had met with and was treated by each, and that he was aware of his alleged injury and its consequences immediately.

16The motion judge stated, at para. 36, that "the joinder of parties outside of a limitation period gives rise to a presumption of prejudice that the plaintiffs have the burden of displacing with evidence of some diligence in discovering their claims". She also noted, at para. 39, that the plaintiffs had the burden to lead evidence of the steps they took to discover the necessary information.

17Referring to the proposed amendments to the statement of claim, the motion judge observed that the allegations of negligence were virtually identical against all parties, and that there was little evidence of the moving parties' having proactively taken steps to discover their claims against the proposed defendants. She concluded, at para. 41:

I find as fact that the plaintiffs were as reasonably capable of discovering any wrongful nature of the proposed defendants' acts and their nexus to Mr. Morrison's alleged injury at virtually the same time as they discovered their alleged claims against Dr. Barzo. The plaintiffs have not discharged the burden of having exercised reasonable diligence in the discovery of facts necessary to found a pleading of medical malpractice in these circumstances.

18Accordingly, the motion judge dismissed the motion to add the respondents as defendants to the action.

Positions of the Parties

19The appellants contend that the motion judge erred in two ways. First, she failed to make any finding on the evidence as to when they ought reasonably to have known about their claims against the respondents (except to say that it was at the same time as they knew about their claims against Dr. Barzo). The appellants say that the evidence does not support a finding that they ought reasonably to have known that the three respondents caused or contributed to Mr. Morrison's injuries more than two years before they sought to add them as defendants to the action. Second, the appellants assert that the motion judge erred in dismissing their motion based on her conclusion that they did not demonstrate due diligence.

20Although there are differences between the positions of the respondents on appeal, essentially they all assert that the motion judge's dismissal of the motion was properly based on her finding, which was supported by the evidence, that the appellants ought reasonably to have discovered their claims against the respondents at the same time as they discovered their claims against the chiropractor. The respondents Ms. Boulanger and Ms. Edwards continue to assert that the motion judge properly took into consideration the appellants' failure to adduce evidence of the steps they took to investigate the respondents' potential negligence, and they contend that lack of due diligence is a proper factor in motions of this sort, to rebut the "presumption of prejudice". Alternatively, if the motion judge erred in the test she applied, the respondents ask that this court, applying the correct test, uphold the decision dismissing the motion. They rely on the information contained in the clinical records, as well as the proposed amended pleading, and assert that the allegations against the respondents contain no new material facts, and that substantially all of what is alleged ought to have been known to the appellants around the time Mr. Morrison was diagnosed with CES.

Analysis

21As I will explain, the motion judge erred when she diverged from the clear scheme of the Limitations Act to decide whether the limitation period had expired.

22First, the motion judge proceeded on the basis that there was a "presumption of prejudice", when a party is added to litigation after the expiry of a limitation period, that the appellants had to overcome by establishing due diligence. This is inconsistent with the framework under the Limitations Act, where "due diligence" is now part of the determination of a claim's discoverability under s. 5(1)(b), and s. 21 prohibits the addition of a party to an action where a limitation period has expired, whether or not there is prejudice to the defendant.

23Second, the motion judge did not make findings of fact as to when the appellants actually discovered the claim or when they ought reasonably to have done so (other than to say that it was at "virtually the same time" as they discovered their claims against Dr. Barzo).

24Third, the motion judge made her determination that the limitation period had already expired in reliance on the broad allegations contained in the draft amended statement of claim, and without having identified and considered the appellants' core claims against the respondents, and the evidence in relation to when such claims were or ought reasonably to have been discovered. The motion judge, pointing only to Mr. Morrison's treatment dates, concluded that the claims against the respondents ought to have been discovered around the same time the appellants discovered their claims against Dr. Barzo. When the claims against the respondents are properly considered, however, the evidence on the motion does not support the conclusion that the appellants ought reasonably to have discovered all of the respondents' potentially negligent acts or omissions before the third party examinations for discovery.

(1) Where a Limitation Period May Have Expired, the Limitations Act Establishes the Test for Adding Parties

25Subrule 5.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides for the addition of parties during a proceeding:

5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

26At the same time, s. 21(1) of the Limitations Act prohibits the addition of a party to a proceeding where the limitation period has expired:

21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

27In Arcari v. Dawson (2016), 134 O.R. (3d) 36, 2016 ONCA 715, at para. 7, this court observed that the effect of s. 21(1) is that "the clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing action".

28Under the current Limitations Act, the date of "discovery" is key to assessing whether the limitation period in respect of a claim has expired. Sections 4 and 5 provide as follows:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

29Where there is a question as to whether claims covered by the basic two-year limitation period are statute-barred, such that parties cannot be added pursuant to s. 21(1) of the Limitations Act, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the date of actual discovery, as determined by the court, would bring the claim within the limitation period, and the proposed defendant relies on "reasonable discoverability" to contend the claim was brought outside the prescription period, the court must go on to determine under s. 5(1)(b) when "a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)". While a plaintiff's due diligence is relevant to the finding under 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred: see Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at paras. 18 and 24; Galota v. Festival Hall Developments Ltd. (2016), 133 O.R. (3d) 35, 2016 ONCA 585, at para. 23. This is the case whether expiry of the limitation period is at issue in a motion for summary judgment or in a motion to add a defendant: Mancinelli v. Royal Bank of Canada, 2018 ONCA 544, 24 C.P.C. (8th) 1, at para. 30.

30Reasonable discoverability of a claim under s. 5(1)(b) that precludes adding a party contrary to s. 21(1) requires an evidentiary foundation. The court must be satisfied that a reasonable person in the plaintiff's circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined. It is not sufficient for the court to say that the claim was discoverable "before the expiry of the limitation period", without explaining why. It may be that the date of reasonable discoverability can only be determined at a later stage in the proceedings, at trial or on a summary judgment motion. In such a case, the motion to add the defendant should be granted, with leave for the defendant to plead a limitation defence: Mancinelli, at paras. 31 and 34.

31The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant). The presumption is displaced by the court's finding as to when the plaintiff subjectively knew he had a claim against the defendants: Mancinelli, at para. 18. To overcome the presumption, the plaintiff needs to prove only that the actual discovery of the claim was not on the date the events giving rise to the claim took place. It is therefore wrong to say that a plaintiff has an onus to show due diligence to rebut the presumption under s. 5(2): Fennell, at para. 26.

32Second, the plaintiff must offer a "reasonable explanation on proper evidence" as to why the claim could not have been discovered through the exercise of reasonable diligence. The evidentiary threshold here is low, and the plaintiff's explanation should be given a "generous reading", and considered in the context of the claim: Mancinelli, at paras. 20 and 24.

(2) The Application of the Test Requires That the Claims Be Defined and the Evidence Considered

33Section 5(1)(a) of the Limitations Act sets out the elements that must be known to a plaintiff before a claim is discovered. The issue here is not (as in many other cases) the identification of the respondents' involvement in the matters at issue. Rather, the discoverability issue in this case relates to when the appellants discovered the facts relating to the respondents' negligence in Mr. Morrison's care; more specifically, when, under s. 5(1)(a)(ii) and (iii), the appellants knew or ought reasonably to have known that an act or omission of each respondent caused or contributed to Mr. Morrison's injuries.

34In a medical malpractice action, a claim is discovered when the claimant knows the facts that form "the core of [the plaintiff's] claim of substandard medical treatment": Lawless v. Anderson, 2011 ONCA 102, 81 C.C.L.T. (3d) 220, at para. 26. As M.G.J. Quigley J. observed in Thompson v. Dr. Sehgal, 2012 ONSC 3258, at para. 42:

The material facts of which the plaintiff must be aware before the limitation period can commence to run are those which would constitute negligence. Negligence itself is composed not only of the breach of an applicable standard of care, but also the causation to give rise to a cause of action.

35As I will explain, in my view, the motion judge erred in failing to identify the key difference between the appellants' claims against Dr. Barzo and their claims against the respondents. The claim against Dr. Barzo is that he caused an injury during a chiropractic treatment. The core of the claim against all three respondents, by contrast, is that, after this traumatic injury had already occurred, and between June 28, 2011 and July 15, 2011 when Mr. Morrison had emergency surgery, they contributed to or exacerbated Mr. Morrison's injuries in their approach to treating him and/or by failing to take more immediate action to respond to the original traumatic injury. And if it turns out, as the appellants assert, that the obligation to take certain immediate action only arose if and when the respondents suspected CES, or in the case of Ms. Edwards, a spinal nerve injury, then this affects the date of reasonable discovery.

36I turn to examine the specific allegations against each respondent, and the evidence that was before the motion judge.

(i) The Claim Against Dr. Murphy

37Dr. Murphy's involvement in Mr. Morrison's care was at the medical clinic where both Ms. Boulanger and Dr. Murphy worked. The records of the clinic indicate that Ms. Boulanger provided treatment to Mr. Morrison on June 28, 2011 and July 6, 2011. A note dated July 6, 2011 by Ms. Boulanger states that she would consult Dr. Murphy regarding a prescription for narcotics and x-rays. A lumbar spine x-ray was ordered the same day. There is also a note on the same day from Ms. Boulanger saying "To Emerg if pain gets unbearable". On July 11, 2011, Dr. Murphy saw Mr. Morrison and ordered an urgent CT scan. After receipt of the CT scan, he advised Mr. Morrison to urgently attend to see a neurosurgical specialist.

38On his examination for discovery, Dr. Murphy recounted having spoken with Ms. Boulanger on July 6 about Mr. Morrison's symptoms, which included a positive neurological sign, and that, as a result he ordered an urgent CT scan. Dr. Murphy also recalled that he had ordered an x-ray as a preliminary step in order to secure a CT scan appointment to rule in or out the top two conditions that he was investigating (one of which was CES). He agreed that it was important to rule out nerve impingement, nerve involvement or CES as quickly as possible.

39The appellants contend that, prior to the examinations for discovery, they were unaware that Dr. Murphy had been involved in Mr. Morrison's care other than in consultation with Ms. Boulanger, or that CES was part of Dr. Murphy's differential diagnosis. It was only when they learned these facts that they could conclude that Dr. Murphy ought to have undertaken a rectal examination. According to the appellants, the fact that a rectal examination was not done is significant only in conjunction with the knowledge that Dr. Murphy was actively looking to rule in or out CES.

(ii) The Claim Against Susan Boulanger

40Susan Boulanger, a nurse practitioner, was responsible for Mr. Morrison's care on June 28, 2011 and July 6, 2011. The records indicate that she recorded his symptoms, assessed his lower back pain, ordered an x-ray and provided prescriptions for medication and physiotherapy.

41The core allegations against Ms. Boulanger are that she did not order x-rays on a "stat" or urgent basis, that she did not follow up on the x-rays within 24 to 48 hours, and that she gave the wrong discharge instructions to Mr. Morrison, instructing him to go to the hospital only if his pain became "unbearable".

42Ms. Boulanger's counsel contends that all of the new facts allegedly discovered from Dr. Murphy's examination for discovery were contained in the clinical notes and records that were in appellants' counsel's hands at the latest by October 2013. The fact that Ms. Boulanger was the person who ordered the x-ray but not urgently is apparent in the clinical notes and records. It was also clear from the records that no one followed up or received the x-ray results within 24 to 48 hours. It was also clear what discharge instructions were given.

43As is the case with Dr. Murphy, the important information the appellants say they only obtained at the examinations for discovery was that both Dr. Murphy and Ms. Boulanger were considering CES as part of their differential diagnosis. This fact was not recorded in the clinical notes, and this is what made their subsequent delay in investigating the condition negligent. It was only revealed in Dr. Murphy's examination for discovery that Mr. Morrison's x-ray was ordered as a stepping stone for a CT scan or MRI which was urgently required to rule out or in CES. As such, it was only in that context that Ms. Boulanger's failure to mark the x-rays as urgent or to follow up on the x-rays demonstrated negligence. The appellants also contend that, without Dr. Murphy's evidence, they would not have known that there was a problem with Ms. Boulanger's discharge instructions -- and that she had not followed Dr. Murphy's directions to instruct Mr. Morrison to go to the hospital if the pain got worse or was not controlled by pain medication.

44In oral argument on the appeal, Ms. Boulanger's counsel argued that there was no evidence that Ms. Boulanger was considering a potential diagnosis of CES, which is the context in which the appellants say that her failure to order the x-rays "stat" and to follow up on the results were negligent. This is incorrect. In his examination for discovery, Dr. Murphy testified that both he and Ms. Boulanger were proceeding on the assumption that the cause of Mr. Morrison's back pain might have been CES.

(iii) The Claim Against Cristina Edwards

45Cristina Edwards was a massage therapist who treated Mr. Morrison on two occasions: June 28 and June 30, 2011. Her treatment notes indicated only the dates of treatment and that the treatments provided Mr. Morrison with temporary relief.

46The appellants point to the fact that, at her examination for discovery, Ms. Edwards testified that she modified her massage treatments on the basis that she thought that Mr. Morrison might have a spinal nerve impingement. She also noticed that his gait was altered. She testified that she never told Mr. Morrison that she was considering the possibility that he had sustained a serious or significant nerve injury in the spine, nor did she record these observations in her notes.

(iv) The Core of the Allegations Against All Three Respondents

47The details of each respondent's involvement in Mr. Morrison's treatment make clear that the nature of the claims against all the respondents differs from the claim against Dr. Barzo. That is, in relation to all of the respondents, but not Dr. Barzo, it is alleged that they may only have failed to meet the standard of care by failing to take immediate action once CES and/or spinal nerve injury was suspected.

48At the root of the appellants' argument about discoverability of the claims against the respondents in this case is that CES is a relatively rare diagnosis. The respondents do not suggest otherwise. The appellants contend that it was only when it became apparent that Dr. Murphy and Ms. Boulanger were actually considering and attempting to rule out CES that their failure to conduct the necessary investigations on an urgent basis revealed negligence. Similarly, it is alleged that Ms. Edwards' treatment would only have been negligent if she was considering the possibility that Mr. Morrison had sustained a serious spine injury. That the respondents Dr. Murphy and Ms. Boulanger actually turned their minds to the possibility of CES, and that Ms. Edwards suspected a spinal nerve injury, is the new information that the appellants assert was revealed during the examinations for discovery.

(3) The Application of the Test

(i) Section 5(1)(a): When the Appellants Knew of Their Claims Against the Respondents

49After identifying the core claim or claims in question, s. 5(1)(a) requires a finding as to when the claim was actually discovered.

50The appellants knew of Mr. Morrison's primary injury, allegedly caused by the chiropractic treatment, at the time that Mr. Morrison was diagnosed with CES. They knew that Ms. Edwards and Ms. Boulanger were involved in Mr. Morrison's treatment shortly after the chiropractic treatment, but assert that they did not know of Dr. Murphy's consultative involvement. They also assert that they did not know that the respondents contributed to the injury until they discovered that the respondents suspected CES but took no urgent action.

51I agree with the appellants that there is no evidence on this record that they had any actual knowledge, prior to 2015, that the treatment provided to Mr. Morrison by the respondents caused or contributed to his injuries. To the contrary, the appellants' position is that Mr. Morrison's chiropractic treatment on June 24, 2013 caused a traumatic injury that led to his diagnosis of CES. The only information relevant to the respondents' involvement in his care that was available to the appellants, prior to the examinations for discovery, was in their clinical notes. These notes, however, contain no indication that any of the respondents suspected that Mr. Morrison might be suffering from a serious condition or traumatic injury that required urgent care.

52It was only at the examinations for discovery that the appellants became aware of Dr. Murphy's involvement -- consulting behind the scenes with Ms. Boulanger -- prior to July 11, 2011. It was also at the examinations for discovery that the appellants first discovered that Dr. Murphy and Ms. Boulanger were working with two differential diagnoses, one of which was CES.

53Similarly, at her examination for discovery, Ms. Edwards testified that she never told Mr. Morrison that she was considering the possibility that he had sustained a serious or significant nerve injury in the spine, and she did not record these observations in her notes.

54In my view, the record before us is sufficient to conclude that the appellants did not have actual knowledge of the elements of their claims against the respondents until they learned, during the examinations for discovery, that all three respondents had suspected spinal injury at the time of treatment.

(ii) Section 5(1)(b): When a Reasonable Person Ought to Have Known of the Claim Against the Respondents

55The key question in this case remains, then, on what day "a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)". Unfortunately, this question was never directly answered by the motion judge.

56Instead, the motion judge stated, at para. 40, that the pleadings "do not discernibly relate or rely upon facts the plaintiffs say they discovered at Ms. Edwards' and Dr. Murphy's discoveries". Rather, the pleadings rely only on the defendants' identities, their medical qualifications, and the fact they treated Mr. Morrison for his back complaints.

57The motion judge also asserted, at para. 40, that "[t]he allegations of negligence are virtually identical against all of the parties" and that "[t]here is little evidence of the plaintiffs proactively taking any steps to discover any claims against these proposed defendants".

58This analysis unfortunately overlooks the important difference between the claims against the respondents and the claim against Dr. Barzo, as I have outlined above.

59And while due diligence is relevant to when a reasonable person ought to have discovered a claim -- demonstrating due diligence as well as no actual knowledge of all elements of the claim can certainly provide strong evidence that a reasonable person could not have discovered the claim sooner -- the absence of due diligence does not necessarily establish that the two-year period has run out.

60Instead, the motion judge was required, after clearly defining the nature of the claims against the respondents on the evidence, and after finding no actual knowledge of the claims, to make a specific finding of fact as to when a reasonable person "with the abilities and in the circumstances" of the appellants "first ought to have known of the matters referred to in clause (a)".

61As Mancinelli states, at para. 31, where s. 5(1)(b) is in issue in a motion to add a defendant, the motion should not be dismissed "in the absence of evidence that the plaintiff could have obtained the requisite information with due diligence . . . such that there is no issue of credibility or fact warranting a trial or summary judgment motion".

62Such evidence was absent here. There was no evidence to suggest how the potentially relevant information about suspected diagnoses could reasonably have been obtained before it was in fact discovered.

63Finally, the respondents argue that, at the latest, the appellants' claims against them were reasonably discoverable when the appellants were served with Dr. Barzo's third party claim, which set out specific allegations against Dr. Murphy and Ms. Edwards. The respondents contend that the appellants ought reasonably to have discovered their claims against the respondents when they obtained this information.

64If this is the case, however, and the claims against the respondents were reasonably discoverable at or around the time the third party claim was issued, the claims are not statute-barred. The third party claim was issued on May 13, 2014 and the motion to add defendants was brought on May 11, 2016, which is still within the applicable two-year limitation period.

65Accordingly, the appropriate disposition is to permit the addition of all three respondents to the action, with leave for the respondents to plead the expiry of the limitation period in their defence.

Conclusion and Disposition

66For these reasons, I would allow the appeal. I would set aside the order of the motion judge, and order that the appellants are permitted to join the respondents as defendants to the action, and that the respondents are at liberty to plead the expiry of the limitation period as a defence. I would award the appellants costs of the appeal fixed at $23,000, and of the motion in the Superior Court fixed at $20,000, both amounts inclusive of disbursements and HST and payable jointly and severally by the respondents.

Appeal allowed.

End of Document