Court File and Parties

Court of Appeal for Ontario Date: 20220401 Docket: C69720

Before: Doherty, Huscroft and Harvison Young JJ.A.

Between: Amanda Jane Andrews and Keri Ann Baker, personally and as Estate Trustees of the Estate of Linda Gordon, Willow May Baker, Tobin Bryon Baker and Violet Grace Baker, all by their Litigation Guardian Jeffrey Robert Baker, Sara Nicole Andrews and Emily Lyn Andrews Plaintiffs (Appellants)

And: Dr. Leslie Pattison Defendant (Respondent)

Counsel: Bronwyn M. Martin, B. Robin Moodie and Joni Dobson, for the appellants Andrea H. Plumb and John A. M. Petrella, for the respondent

Heard: March 28, 2021 by video conference

On appeal from the judgment of Justice John R. McCarthy of the Superior Court of Justice, dated July 5, 2021, with reasons at 2021 ONSC 4757.

Reasons for Decision

[1] The appellants appeal from a summary judgment dismissing their action on the basis that their claim was statute barred. The action arose from allegations of medical malpractice. The circumstances may be briefly summarized. Ms. Linda Gorton was diagnosed with terminal lung cancer in late spring 2013, and unfortunately died in April 2014. She had received medical attention and treatment from the respondent doctor between 2008 and 2013, having complained of shortness of breath and chest pain. The respondent ordered a chest x-ray late in 2008 but discovered no anomalies. No further chest x-rays were ordered until May 2013. It was a result of that x-ray that the cancer was diagnosed. The appellants issued their statement of claim on April 11, 2016.

[2] The appeal rests on the argument that the motion judge erred in conducting his analysis under section 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, rather than s. 5(1)(b). Section 5(1)(b) addresses discoverability, i.e., when a person “ought” to have known than an action could lie. Section 5(1)(a) addresses actual knowledge.

[3] The appellants submit that the limitation period did not begin to run until they received expert reports on the standard of care and causation in August and December 2015 respectively. The appellants also submit that the motion judge fell into palpable and overriding error in finding that the deceased and her family had actual knowledge of the facts upon which the allegations of negligence could be based as early as May 30, 2013, the date of the deceased’s diagnosis, and no later than February 6, 2014 when they met with a medical malpractice lawyer. At that time, the lawyers explained the factor necessary to establish a breach of a standard of care and causation. The plaintiffs subsequently ordered expert reports on the standard of care and causation which were received in August and December 2015 respectively. Both reports supported the appellants’ position that they had a viable cause of action.

[4] We do not agree with the appellants’ submission that the limitation period did not begin to run until they had received the expert reports.

[5] The parties agree on the test to be applied. As set out by the Supreme Court of Canada at para. 48 of Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts on which a plausible inference of liability on the defendant’s part can be drawn.” A plausible inference lies along a spectrum, ranging from mere suspicion to certainty: at para. 46. The parties also agree that the determination of where a particular case falls on this spectrum is a fact-based inquiry: Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 23.

[6] The appellants argue that the trial judge fell into palpable and overriding error in applying the test to these facts, particularly in failing to find that the receipt of expert reports was necessary to the appellants having sufficient material facts to satisfy the “plausible inference” that they had a potential negligence claim.

[7] We disagree. The motion judge set out the evidence before him upon which he based his conclusion. The material facts upon which he relied include the undisputed facts that:

• the deceased had been under the defendant’s care throughout the entire period between 2008 and 2013, during which she had complained repeatedly about shortness of breath, but the defendant had not ordered a chest x-ray between 2009 and May, 2013;
• this x-ray lead immediately to the biopsy which resulted in the diagnosis of advanced, terminal lung cancer shortly thereafter;
• the deceased and her family were immediately concerned about the fact that a chest x-ray had not been previously ordered and whether an earlier x-ray might have led to a different outcome;
• after obtaining complete medical records, by the fall of 2013, they sought legal advice almost immediately, and through to her death in April 2014, the deceased indicated to her family that she wished to pursue the matter; and
• the expert reports on standard of care and causation, received in August and December, 2015, did not disclose any additional material facts.

[8] The motion judge specifically addressed and rejected the appellant’s argument that the potential negligence claim was not discoverable until the receipt of the expert reports. In particular, he noted that the determination of when a potential plaintiff has sufficient material facts is not to be conflated with the question of the discovery of the merits of the potential action, stating that “the Act does not distinguish between meritorious and non-meritorious claims”. This was a fact-based inquiry as the motion judge recognized in citing paras. 22-23 of Lawless.

[9] We see no reason to interfere with the motion judge’s findings that the latest date upon which the action was discoverable was the date of the meeting with the medical malpractice lawyer on February 6, 2014 and was therefore out of time when the claim was issued on April 11, 2016.

[10] We also reject the appellant’s argument that they did not have knowledge, actual or otherwise, of the potential claim in May 2013 as the respondent had told them that an earlier x-ray would not have affected the prognosis. The motion judge found that the deceased and her family intended to pursue the matter immediately following the deceased’s diagnosis until the time of her death. Accordingly, the appellants did not rely on the respondent’s representations. Further, the appellants’ point on this issue does not address the finding that in any event the appellants had actual knowledge no later than February 6, 2014. The constructive knowledge in s. 5(1)(b) can have no application to this case: Dass v. Kay, 2021 ONCA 565, at para. 54.

[11] The appeal is dismissed. Costs of this appeal are payable by the appellants to the respondent in the amount, as agreed, of $15,000 within 30 days.

“Doherty J.A.”

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”