Marcovitch v. Kertes, 2010 ONSC 6062

CITATION: Marcovitch v. Kertes, 2010 ONSC 6062

DIVISIONAL COURT FILE NO.: DC-48/10

DATE: 20101105

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY J.

BETWEEN:

ESTHER MARCOVITCH

Plaintiff/Appellant

– and –

DR. PETER JOHN KERTES and THE SUNNYBROOK AND WOMEN’S COLLEGE HEALTH SCIENCES CENTRE

Defendants/Respondents

Derrick M. Fulton and Erin M. Neal, for the Appellant

Anna Marrison, for the Respondents (other than Dr. Kertes)

– and –

SUNNYBROOK HOSPITAL UNIVERSITY OF TORONTO CLINIC carrying on business as ACADEMIC CLINICIAN’S MANAGEMENT SERVICES and NURSE NARGIS MITHA

Intervenors/Respondents

HEARD: September 27, 2010

MOLLOY J.:

REASONS FOR DECISION

The Appeal

1This is an appeal and cross-appeal from the decision of Master Hawkins dated December 23, 2009 in a medical malpractice action.

2Master Hawkins declined to add Nurse Margis Mitha as a defendant, essentially because the limitation period had expired. The plaintiff appeals from that decision. Master Hawkins also dismissed the plaintiff’s motion to add the Sunnybrook Hospital University of Toronto Clinic (“the Clinic”) as a defendant, but without prejudice to the plaintiff’s right to bring the same motion again “on proper material.” The plaintiff also appeals from that decision on the basis that the Master should have added the Clinic as a party based on the material before him. The Clinic cross-appeals the portion of the decision that permits the plaintiff to bring her motion again on new material, arguing that the motion should simply have been dismissed.

Background Facts

3In 2004, the plaintiff Esther Marcovitch was being treated by Dr. Peter Kertes for an eye condition known as macular degeneration. On April 15, 2004, she was admitted as a patient at the Sunnybrook Hospital, where Dr. Kertes is on staff, for a procedure involving the intravenous administration of a dye through a catheter in her hand, followed by laser eye surgery. She alleges that the dye was negligently injected as a result of which she suffered permanent scarring and some paralysis of her hand.

4The procedure was performed at the Clinic, which is on the grounds of the Sunnybrook Hospital, but which is actually a privately owned and administered facility.

5This action was commenced by Notice of Action on May 8, 2006, slightly more than two years after the alleged negligent treatment. Dr. Kertes and Sunnybrook Hospital were the only named defendants.

6Dr. Kertes delivered a statement of defence on October 5, 2006. He stated that Nurse Nargis Mitha had inserted the catheter and administered the dye. He also crossclaimed against Sunnybrook Hospital for contribution and indemnity, without pleading any further particulars with respect to the basis for the crossclaim.

7Sunnybrook Hospital delivered its statement of defence on February 27, 2007. It pleaded that the plaintiff’s treatment was in a private clinic, without providing the name of the clinic, and also that the care was provided by a nurse who was not employed by Sunnybrook Hospital.

8On October 15, 2007, counsel for Sunnybrook Hospital wrote to the plaintiff’s counsel and stated that the action should be dismissed against the hospital because the incident took place at a private clinic and involved a nurse who was not a hospital employee. Despite several follow-up telephone calls and letters, the first response from counsel for the plaintiff was a letter dated August 15, 2008 in which he requested the name of the clinic and details with respect to its management.

9Counsel for Sunnybrook Hospital responded by letter dated September 4, 2008 that the clinic “is called the ophthalmology clinic” and that “it is privately managed and all paperwork is managed by the Academic Clinician’s Management Services.” The letter further advised that staff members within the clinic are hired independently and that the nurse who was involved was not an employee of Sunnybrook Hospital on the date of the incident. Plaintiff’s counsel took no steps based on that information.

10On January 14, 2009, Sunnybrook Hospital delivered its affidavit of documents and document brief. Included in those documents was a contract between Sunnybrook Hospital and Sunnybrook Hospital University of Toronto Clinic, operating as Academic Clinicians Management Services. Counsel for the plaintiff states that this was the first time he knew the correct legal name of the Clinic. The next day, plaintiff’s counsel conducted a corporate search with respect to the Clinic, and a business names search with respect to Academic Clinicians Management Services.

11On October 23, 2009, the plaintiff brought a motion to add the Clinic and Nurse Mitha as defendants. In support of that motion, the plaintiff filed an affidavit of an associate with the law firm representing the plaintiff.

The Decision of the Master

12The Master ruled that Nurse Mitha could not be added as a party because the applicable two-year limitation had expired. The Master noted the absence of any evidence from the plaintiff herself as to when she knew or could have known about her potential claim against Nurse Mitha. However, he found that at least by October 5, 2006 (when Dr. Kertes delivered his statement of defence naming Nurse Mitha as the person responsible for the negligence), this knowledge was discoverable by the plaintiff. The motion to add Nurse Mitha was not delivered until over three years later, when the limitation period had expired. Therefore, the Master refused to add Nurse Mitha as a party.

13The Master also ruled that on the evidence before him on the motion, the limitation period for the claim against the Clinic had expired by the time the motion was brought. Again, the Master noted the absence of any evidence from the plaintiff. He stated that although the plaintiff’s solicitors knew about the Clinic by January 14, 2009 when it received the Sunnybrook Hospital’s documents, he could not determine whether they knew or ought to have known earlier than that. The Master also noted that under the applicable legislation, the plaintiff is presumed to have known about the Clinic and its role as of April 15, 2004 when the procedure was conducted, unless the contrary is proved. He held that, “The evidence before me is so lacking in information that the plaintiff and her solicitors neither knew or ought to have known that the plaintiff had a claim against [the Clinic] until less than two years before this motion was brought. The master therefore held that the motion to add the Clinic “is dismissed, but without prejudice to a second motion to add [the Clinic] on proper material.”

The Standard of Review

14The standard of review on appeal from the decision of a master is now well-settled – it is the same standard as would be applied by an appellate court reviewing the decision of a trial judge. A master’s decision is entitled to deference. The reviewing judge is not entitled to retry the motion or substitute her own views for the views of the master. Rather, the reviewing judge may only interfere with the master’s decision where there has been an error of law, or an exercise of discretion on wrong principles or a misapprehension of the evidence creating a palpable and overriding error.¹

Analysis: No Error of Law

15The Master held that under the applicable law, the defendants could not be added if a limitation period had expired. This is correct. It is common ground between the parties that the applicable limitation period arises under the Limitations Act, 2002² (“the Act”). Section 21(1) of the Act states, “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.”

16The applicable limitation provision under the Act stipulates that no action can be commenced after the second anniversary of the day on which the claim was discovered.³ Section 5(1) of the Act stipulates the time at which a claim is discovered. For purposes of this claim, the discovery of the cause of action against the proposed defendants is the earlier of: (a) the day the plaintiff knew the identity of Nurse Mitha and the Clinic as parties responsible for her injury, and (b) the date upon which a reasonable person with the abilities and in the circumstances of the plaintiff first ought to have known that. The Master clearly stated these legal principles.

17The Master also correctly ruled that there is a presumption under the Act that the plaintiff knew everything required to commence her claim as of the date of the incident, unless the contrary is proved.⁴

18The Master held that the only issue before him was whether the expiry of the limitation period prevented the addition of the proposed defendants. Again, I agree. Counsel for the plaintiff, relying upon the Court of Appeal decision in Mazzuca v. Silvercreek Pharmacy Ltd.,⁵ argues that the Master erred by failing to consider that there had been no alleged prejudice to the proposed defendants if added as a party, since they could still plead and rely upon the limitations period in their defences. Counsel argues that “special circumstances” exist in this case such that adding parties even after the expiry of the limitation period is warranted.

19The Mazzuca case was decided under the old limitation period regime and prior to the addition of the express prohibition against adding a party after the expiry of a limitation period as set out in s. 21(1) of the Act. There are numerous other cases under the old regime that have applied the “special circumstances” criteria to add a defendant after the expiry of the limitations period. Those cases are no longer applicable in the face of the explicit language of ss. 20 and 21 of the Act, as has been determined in the more recent Court of Appeal decision in Joseph v. Paramount Canada’s Wonderland.⁶ Accordingly, the Master’s approach on this issue was correct in law.

Analysis: Refusal to Add Nurse Mitha as a Party

20It is clear that at least by October 5, 2006 the plaintiff knew of the existence of Nurse Mitha, knew her name, and knew her involvement in the procedure. Counsel for the plaintiff argues that there was confusion as to the identity of Nurse Mitha’s employer, stating they believed she was employed by Sunnybrook Hospital and were reinforced in that belief by the fact that Dr. Kertes, having pleaded that Nurse Mitha was responsible for the mishap, then asserted a crossclaim against the Hospital. Since the Hospital would be legally responsible for the negligence of its employees, and the Hospital was already a party, counsel for the plaintiff saw no need to add her as a personal defendant. Counsel reasoned that the only advantage to having Nurse Mitha as a personal defendant would be to obtain oral discovery of her, which would not be necessary since they believed they could require her to be produced as a representative of the hospital.

21Thus, it appears that a deliberate decision was made not to add Nurse Mitha as a party on the basis that oral discovery would be available in any event. By the time of the motion, Nurse Mitha was no longer employed by either the Clinic or the Hospital. It is clear, therefore, that even if the plaintiff had correctly named Nurse Mitha’s employer as a party, there would be no right to examine her for discovery because she was no longer an employee of the Clinic.

22I agree with the Master that the plaintiff had all the information she needed to assert a claim against Nurse Mitha within the limitation period and failed to do so. The plaintiff took no steps to verify Nurse Mitha’s employment status, although it would have been an easy matter to ascertain. I see no error by the Master in refusing to add Nurse Mitha as a party once the limitation period had expired.

Analysis: Exercise of Discretion re the Clinic

23There is no indication in the evidence that the plaintiff’s lawyers did anything to ascertain the name of the private clinic referred to in the statement of defence of Sunnybrook Hospital until August 2008. That was over four years after the alleged negligent treatment and over two years since the delivery of the notice of action. On those facts, I see no basis for interfering with the Master’s conclusion that, on the evidence before him, the plaintiff had failed to establish that neither she nor her lawyers knew the identity of the Clinic within the limitation period, or could have discovered it with reasonable diligence.

24The respondent argues that the Master erred in giving the plaintiff a further opportunity to make a case for adding the Clinic as a party. This was an exercise of discretion by the Master and one that is entitled to considerable deference. The inability to assert a claim against the Clinic is a matter of enormous significance to the plaintiff. There is no prejudice to the Clinic if a further opportunity is given to the plaintiff to bring forward further evidence, if it is available. The Sunnybrook Hospital has been a party defendant from the outset of the action. Counsel for the Hospital would have had an opportunity to investigate the circumstances of the incident at that point. Both the Hospital and the Clinic are represented by the same counsel and have the same insurer. It is difficult to see how the Clinic is in a different position if a further motion is brought in a timely way, apart from the expense of a second motion, which is compensable in costs.

25The Master was not required to permit the plaintiff another opportunity to establish the viability of her claim against the Clinic. However, his decision to do so was discretionary and I cannot say that such discretion was exercised on wrong principles. The one difficulty I have with the Master’s decision is his failure to place any time limit on the right to bring a further motion. In my view, a completely open-ended right to bring the motion back on is an error in principle, particularly where the issue involved is the expiry of a limitation period. However, this is not a problem that warrants setting aside the Master’s decision; it can be resolved by a variation imposing a time limit.

26In my view, 30 days or so is a reasonable period of time for the plaintiff to prepare additional material, if indeed further evidence is available to support her position.

Conclusion and Order

27In the result, the plaintiff’s appeal is dismissed. The respondent’s cross-appeal is allowed in part and paragraph 2 of the Order of the Master is varied by adding after the word “material” in the last line, the words “such material to be delivered by no later than December 10, 2010, or such later date as may be consented to by counsel for SHUTC, failing which the motion to add SHUTC as a defendant is dismissed.”

28The parties agreed that if either of them was wholly successful, costs should be awarded in favour of that party, fixed at $5000. The respondent has been almost entirely successful, except for the fact that on the cross-appeal I varied the Master’s decision to allow a further motion rather than striking that provision altogether. I see no basis upon which the plaintiff would be entitled to any costs for this appeal and no basis to reduce the costs payable to the successful party. Accordingly, costs are payable by the appellant to the respondents, fixed at $5000 payable forthwith.

Footnotes

1. 1Zeitoun v. Economical Insurance Group (2008), 2008 20996 (ON SCDC), 91 O.R. (3d) 131, 292 D.L.R. (4th) 313 at para 40-41(Div.Ct.), aff’d 2009 ONCA 415, 96 O.R. (3d) 639 (C.A.); Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.).
2. 2S.O. 2002. c. 24, Sched. B
3. 3Ibid. s. 4
4. 4Ibid. s. 5(2)
5. 52001 8620 (ON CA), [2001] O.J. No. 4567 (C.A.)
6. 62008 ONCA 469, 90 O.R. (3d) 401, 294 D.L.R. (4th) 141.