COURT OF APPEAL FOR ONTARIO
Rouleau, Lauwers and Miller JJ.A.
BETWEEN
William Allyn Wiebe
Plaintiff (Appellant)
and
Johnson & Johnson Inc., Johnson & Johnson and Ethicon LLC/Ethicon Inc.
Defendants (Respondents)
AND BETWEEN
Robert Allan Pelletier
Plaintiff (Appellant)
and
Johnson & Johnson Inc., Johnson & Johnson Medical Companies, Johnson & Johnson International, Ethicon Inc., Ethicon LLC and Johnson & Johnson
Defendants (Respondents)
AND BETWEEN
Sergio Fappiano
Plaintiff (Appellant)
and
Johnson & Johnson Inc., Johnson & Johnson Medical Companies, Johnson & Johnson International, Johnson & Johnson, Ethicon LLC and Ethicon Inc.
Defendants (Respondents)
Russell Howe and Abiodun Adekunle-Fatokun, for the appellants
Robin D. Linley and Leah Kelley, for the respondents
Heard: June 8, 2026
On appeal from the orders of Justice R. Lee Akazaki of the Superior Court of Justice, dated July 15, 2025, with reasons reported at 2025 ONSC 3958.
I. Overview
[1] The appellants, Mr. Wiebe, Mr. Fappiano and Mr. Pelletier, appeal from the dismissal of their actions as statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[2] The claims were related to polypropylene mesh products manufactured by the respondents (collectively, “Johnson & Johnson”) that were implanted in each of the appellants during hernia repair surgeries. Each appellant experienced significant complications following the surgery requiring one or more revision surgeries to remove the mesh and repair the hernia. In each case the appellants commenced their action more than three years after the final revision surgery and removal of the mesh.
[3] On the motion for summary judgment, the motion judge found that within months of the final revision surgery and removal of the mesh, each appellant knew or ought to have known the material facts necessary to commence a claim. They knew or ought to have known that they had suffered a post-surgical complication or “injury”, that the injury was associated with the implanted mesh, that the mesh required removal, and that the manufacturer of the mesh could be identified by reviewing available medical records. Even allowing for a reasonable period post-removal of the mesh to make inquiries, it was apparent to the motion judge that the claims were commenced well outside of the two-year limitation period set by the Limitations Act, 2002.
[4] In the court below, the appellants had argued that their claims were not discoverable until they consulted legal counsel at Preszler Injury Lawyers and learned (1) the identity of the manufacturer of the mesh and (2) that the mesh products involved in their surgeries were included in a list of devices that Preszler believed were defective such that litigation had a reasonable prospect of success. The motion judge rejected this argument, finding that discoverability does not hinge on when a plaintiff consults a lawyer or when counsel concludes that litigation has a reasonable prospect of success. To hold otherwise would effectively render the statutory limitation period meaningless. He also held that the appellants could have ascertained the identity of the mesh manufacturer by obtaining their medical records after their revision surgeries.
[5] On appeal, the appellants advance essentially the same argument and maintain that the motion judge erred in rejecting it. For the reasons that follow I would dismiss the appeal.
II. facts
[6] The relevant facts are not in dispute. I will briefly summarize the facts relevant to each of the three appellants.
A. The claim of Mr. Wiebe
[7] Mr. Wiebe underwent surgery for repair of his recurrent right inguinal hernia on March 15, 2010. Johnson & Johnson’s mesh was implanted in Mr. Wiebe as part of the repair. Sometime over the next year, Mr. Wiebe experienced pain which prompted him to follow up with his doctor, who advised him that he required revision surgery. On May 2, 2011, he underwent a revision surgery. His operative report states that the surgery was for “exploration of the right groin and removal of mesh” and notes that “the mesh was then dissected from around the cord and removed”. After the revision surgery, Mr. Wiebe was told that nerve tissue had grown around the mesh and that this was causing his pain.
[8] Approximately nine years after his revision surgery, Mr. Wiebe saw an advertisement from Preszler “discussing cases that arise from people having problems with mesh they were implanted with.” He retained counsel on February 18, 2020, and issued his claim over 21 months later on December 7, 2021.
B. The claim of Mr. Fappiano
[9] On June 23, 2009, Mr. Fappiano underwent hernia repair surgery involving Johnson & Johnson’s mesh to repair his umbilical hernia. After this surgery, Mr. Fappiano experienced “nausea and pain with digestion and troubles moving around a lot”. On March 31, 2011, he underwent revision surgery to repair his hernia recurrence.
[10] On March 7, 2015, Mr. Fappiano underwent a second revision surgery during which he understands that “some or all of the mesh was removed”. As Mr. Fappiano describes “[a]t that time, I was told that there had been an adhesion of the mesh to my bowels.”
[11] Mr. Fappiano took no steps to investigate what happened until around March 2021 when his friend “saw something about [the mesh] on the internet.” Mr. Fappiano then retained counsel on April 5, 2021, and four months later on August 11, 2021, he issued his claim.
C. The claim of Mr. Pelletier
[12] On May 22, 2012, Mr. Pelletier underwent hernia repair surgery using Johnson & Johnson’s mesh to repair his “massive ventral hernia”. Following that surgery, he underwent a series of revision surgeries as follows:
to repair recurrence of his hernia on September 17, 2013, as the mesh had come unfixed causing recurrence of the hernia;
to be treated with a second mesh for a repair of the same recurrent hernia on February 17, 2015;
to irrigate and debride an infection in the abdominal wall mesh on April 30, 2016;
to repair a “massive abdominal hernia” on January 25, 2018.
Mr. Pelletier understood from his healthcare providers that during this final surgery, the previously implanted meshes were removed as his body had rejected the mesh.
[13] On April 23, 2019, Mr. Pelletier retained counsel but has provided no information to explain what prompted him to retain counsel at that time. On April 21, 2021, almost two years after retaining counsel and over three years after the mesh was removed, Mr. Pelletier issued his claim.
D. Johnson & Johnson’s motion for summary judgment
[14] On the motion for summary judgment, the appellants argued that the two-year limitation period only started to run when they learnt the identity of the manufacturer and that the mesh used for their surgeries appeared on Preszler’s list of products which counsel “believe are defective and thus the litigation would have merit and a reasonable chance of success.”
[15] The motion judge dismissed this argument. He found that by the time of the final revision surgery and removal of the mesh, each appellant knew or ought to know all of the elements necessary to institute a claim with the exception of the identity of the manufacturer of the mesh. As for the identity of the manufacturer, he determined that the medical records were available to the appellants within months of their revision surgery and mesh removal allowing them to identify the appropriate defendants and issue their claim. The motion judge held that the appellants’ “discovery” that the meshes were on Preszler's list could not postpone the running of the limitation period:
Finding out that a product is on a law firm’s list, whatever one makes of that fact, cannot revive a limitation period that has expired because of the injured party’s failure to take any steps to find out what happened, how the defendant’s product could have caused the injury, and whether a lawsuit for compensation was the way to obtain justice.
The inclusion of the mesh products in the list, to the extent the lawyers feel the claim is more viable against the ones on the list, is not a change that postpones discovery of the claim[.]
[16] The motion judge therefore concluded that the claims were statute-barred on limitation grounds. He determined that all three appellants knew or ought to have known the material facts necessary to commence their claims within several months of their final revision surgery and, for purposes of the Limitations Act, 2002, are deemed to have “discovered” their claims more than two years before the claims were issued.
III. Issue
[17] The only issue on appeal is whether the motion judge erred in finding that the limitation period in each of the appellants’ claims had expired prior to their issuance.
[18] Below, I explain why:
(1) the motion judge correctly found that with due diligence, the appellants ought to have discovered their claim shortly after removal of the mesh; and
(2) the motion judge was not required to make a specific finding as to when the claim was discovered.
IV. Analysis
A. The Law
[19] In Ontario, the basic limitation period beyond which a proceeding may not be commenced in respect of a claim is two years from the day on which the claim is discovered: Limitations Act, 2002, at s. 5(1). The Limitations Act, 2002, provides that 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).
[20] As explained in Clemens v. Brown and International Nickel Co. of Canada Ltd. (1958), 1958 CanLII 331 (ON CA), 13 D.L.R. (2d) 488 (Ont. C.A.), at p. 491, aff’d 1960 CanLII 425 (SCC), 22 D.L.R. (2d) 545 (S.C.C.), once a defendant pleads a limitations defence, the onus to show that the claim was issued within the limitation period shifts to the plaintiff.
[21] The determination of when the requirements of s. 5(1) are met and the cause of action arises for purposes of the Limitations Act, 2002, is a fact driven inquiry. As explained in Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at paras. 23 and 28:
The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run[.]
[W]hat a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in.
[22] The case law provides that due diligence is part of the evaluation in s. 5(1)(b) of when reasonable persons “first ought to have known” that they had a claim. Although due diligence is not referred to in the Limitations Act, 2002, it is a principle that underlies and informs limitation periods. As noted in the Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 42, a plaintiff is required to act with due diligence in determining if he has a claim, and the limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a). See also Fennell v. Deol, 2016 ONCA 249, 97 M.V.R. (6th) 1, at para. 23.
B. Discussion
- The motion judge correctly found that with due diligence, the appellants ought to have discovered their claim shortly after removal of the mesh
[23] The appellants argue that, following their revision surgeries, they did not know or suspect that the mesh that had been installed and later removed was or might have been defective. It was only after counsel reviewed their medical records and advised them that the mesh they had been implanted with might have been defective that they came to know that the elements in s. 5(1)(a) were satisfied. In their submission, the motion judge ought to have found that it was only upon receiving this information that the limitation period began to run. They maintain that the motion judge's failure to do so is due to several errors in his analysis. Specifically, he failed to apply each element in s. 5(1)(a), erred in finding that the problems encountered with the mesh and its removal triggered the running of the limitation period, and he over relied on the requirement of due diligence rather than on the evidence of the appellants.
[24] I disagree. Each of the appellants was treated with Johnson & Johnson’s hernia mesh product and later developed pain which necessitated one or more revision surgeries and unfortunately, removal of the mesh. In each case, the removal and revision surgery appeared to resolve the problems they were experiencing. At this point, each appellant knew or ought to have known:
(1) that they had suffered “injury, loss or damage”;
(2) that this injury loss or damage might well have been caused by or contributed to by the mesh;
(3) that the manufacturer of the mesh might well be responsible for its failure to perform as required; and
(4) that a proceeding would be the appropriate means to seek a remedy should they so wish.
[25] Therefore, they had “the evidentiary basis to believe that [Johnson & Johnson] did an act or made an omission that caused a loss for which a court proceeding is appropriate to obtain a remedy – the basis of a plausible inference of liability”: Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681, 21 C.L.R. (5th) 1, at para. 36. Of course, the plaintiff will not know for certain if a defendant is liable until a judgment is rendered. The “plausible inference of liability” standard does not require the plaintiff to be certain: Gordon Dunk, at para. 31. Rather, to discover a claim, “the plaintiff need only have in her possession sufficient facts upon which she could allege negligence”: Lawless, at para. 36.
[26] Although the appellants might not have known the identity of the manufacturer of the mesh at the time of the revision surgery, they could, by accessing their hospital records, easily have discovered the name of the manufacturer of the mesh and therefore the appropriate defendant.
[27] The motion judge correctly determined therefore that each appellant could, within a short time following their revision surgery, have had in hand all of the facts required to institute a claim. All of the requirements of s. 5(1) were met thereby triggering the running of the two-year limitation period. Even allowing for a few months to obtain the records that would show the supplier of the mesh, all three claims were initiated outside of the two-year limitation period. From the motion judge’s reasons, it is apparent that he considered and applied each step in s. 5(1)(a). I see no error in his finding that each of the appellants knew or ought to have known all of the material facts underlying their claim more than two years before their statement of claim was issued.
[28] Nothing in the evidence filed by the appellants points to new material information not previously available to them that was later discovered and that would extend the limitation period. Mr. Wiebe’s evidence was that “[t]he idea that defects with my mesh had caused my poor outcome did not cross my mind until I saw an advertisement from my counsel discussing cases that arise from people having problems with mesh they were implanted with”. It was only then that he reached out to Preszler’s to explore the possibility of a claim.
[29] Mr. Pelletier’s evidence was that after the mesh was removed, he was told that his body had rejected the mesh but was not told that there was “anything defective about the mesh”. He provides no explanation as to what led him to contact Preszler’s and initiate a claim.
[30] Finally, Mr. Fappiano states that he was never told about any defects in the implanted mesh and that he “began to think the mesh might be the problem when a friend of [his] saw something about it on the internet.” He contacted Preszler’s shortly after that.
[31] It is apparent from a review of the record and the quotations set out above that each appellant knew he had suffered injury or damage and that the mesh had not performed as expected and had to be removed. However, the appellants took no steps to consider or explore whether anyone, be it one of the physicians who installed the mesh or the mesh manufacturers, was responsible for the bad outcome of their hernia repairs. Nothing in the record suggests that anything other than their delay in making inquiries explains why the claim was not instituted within the limitation period. There is no indication that some previously unknown fact or information became available after the appellants’ revision surgeries that identified the mesh as being responsible for or having contributed to the injury that they suffered.
[32] The affidavit of counsel filed in response to Johnson & Johnson’s motion for summary judgment provides little assistance. It simply indicates that the mesh involved in the injuries suffered by each of the appellants was “on a list of products that we have compiled that we believe are defective and thus the litigation would have merit and a reasonable chance of success.”
[33] There is no indication from the law firm that some clinical fact, evidence of defect, regulatory decision or other event triggered their belief in the mesh being defective nor when they developed this view. There is no evidence filed on the summary judgment motion suggesting that Johnson & Johnson suppressed information concerning the meshes in question to federal health regulators. There is no indication that the mesh has been recalled. In fact, evidence filed on the summary judgment motion is that the mesh was still authorized by Health Canada and in use at that time.
[34] In other words, the appellants knew or ought reasonably to have known all the material facts on which their claims are based more than two years prior to the date each statement of claim was issued. The only recent “fact” that the appellants point to that they say they needed to know in order to initiate their claim was being advised by a lawyer that the lawyer believed the mesh was defective and that a lawsuit was appropriate.
[35] Simply being advised by a lawyer that a claim is appropriate cannot, without more, constitute a “material fact” that a plaintiff must know before the limitation begins to run. If this were so, virtually all limitation periods would not be triggered until legal advice was sought and obtained. This cannot be the law.
[36] I agree with the motion judge’s conclusion that all of the facts upon which the appellants’ claims are based were known or with reasonable diligence were discoverable by the appellants before they consulted their counsel. Seeing an advertisement and being advised by counsel of their opinion that the mesh was defective are not new facts that reset the running of the limitation period.
[37] In effect, the appellants are arguing that, as was argued in Dale v. Frank, 2017 ONCA 32, 136 O.R. (3d) 315, leave to appeal refused, [2017] S.C.C.A. No. 90, they had to know that the “acts or omissions in question are culpable ones”: at para. 6. In that case, the appellants were patients of Dr. Frank. They brought claims against Dr. Frank for performing various medical procedures below the standard of care causing them injury. The respondents in that case brought motions for summary judgment on the basis that the claims were brought outside of the two-year limitation period. The appellants conceded that the claims were not commenced within two years of the medical procedures that caused the injuries. However, they relied on discoverability to defend the motion for summary judgment. They argued that they only discovered that they had a cause of action when Legate & Associates LLP issued a press release indicating that Dr. Frank was being sued and the news media reported allegations of Dr. Frank’s poor technical skills and restrictions on her licence. The motion judge rejected this submission and dismissed the claims. The dismissal was confirmed by this court explaining, at para. 7:
[A] plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered. To require a plaintiff to know with certainty that her injuries were caused by the fault of the defendant would require her to have come to a legal conclusion as to the defendant’s liability to her. This is too high a bar for a plaintiff to have to meet[.]
[38] This court in Dale went on to explain, at paras. 12-13:
In the end, the appellant’s core submission is that the November 2011 press release by Legate & Associates LLP was a game-changer on the issue of discoverability.
We do not accept this submission. The discovery of a new fact, unrelated to the specific medical procedure provided by a specific doctor to a specific patient, does not restart the limitation period[.]
[39] The situation in the present case is analogous. The advertisement seen by Mr. Wiebe, the friend who told Mr. Fappiano about something he saw on the Internet and the advice from Preszler’s that the mesh was on one of their lists are, in essence, no different than the press release referenced in Dale. They are not new facts necessary for each of the appellants to discover their claim.
[40] The only new “fact” each appellant discovered in the two-year period prior to issuing his claim is the presence of Johnson & Johnson’s mesh on Preszler’s product list, indicating that the law firm believed the mesh to be defective and that litigation on this basis would have merit. This is not a material fact. It forms no part of the appellants’ claim. In short, the appellants learned nothing new of legal significance in the two-year period before each claim was issued. The appellants were or reasonably ought to have been aware of all the material facts on which they based their claims at the time of their revision surgeries or shortly thereafter.
- The motion judge was not required to make a specific finding as to when the claim was discovered
[41] The appellants argued that the motion judge committed a reviewable error by failing to make specific findings as to precisely when each element of the s. 5(1) test of the Limitations Act, 2002 was met. In support of that submission, the appellants rely on Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, where this court found that the motion judge had erred as 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”: at para. 3.
[42] In my view, Morrison does not stand for the proposition that the appellants advance. The underlying concern in Morrisonwas that the motion judge did not explain the basis for finding that a reasonable person ought to have discovered the claim more than two years before the issuance of the claim. This court held that “[i]t is not sufficient for the court to say that the claim was discoverable ‘before the expiry of the limitation period’, without explaining why”: at para 30. The essence of the error in Morrison therefore was not the absence of a precise date but the lack of any evidence suggesting “how the potentially relevant information about suspected diagnoses could reasonably have been obtained before it was in fact discovered”: at para. 62.
[43] This is to be contrasted with the present case, in which the motion judge explained what each appellant knew or ought to have known within months of their revision surgery and that the claims were issued well beyond the two-year limitation period. At the time of their final revision surgeries, the only material fact then unknown was the identity of the manufacturer of the mesh. The motion judge made specific findings with respect to each of the three appellants that the medical records could, with reasonable diligence, have been obtained within a few months and, as a result, all of the s. 5(1)(a) elements were, or with reasonable diligence ought to have been known more than two years prior to the issuance of their claims. In the circumstances of these cases, this was sufficient.
V. Conclusion
[44] Based on the record before him, the motion judge made reasonable assumptions and reached the reasonable conclusion that the appellants knew or with reasonable diligence could have known all of the facts necessary to discover their claim over two years before the claim was issued. As a result, I would dismiss the appeals. I would award costs fixed in the amount of $20,000 to Johnson & Johnson and make the appellants severally liable for its payment.
Released: August 26, 2026 “P.R.”
“Paul Rouleau J.A.”
“I agree. P. Lauwers J.A.”
“I agree. B.W. Miller J.A.”