Aletkina v. Hospital for Sick Children, 2014 ONSC 6263

CITATION: Aletkina v. Hospital for Sick Children, 2014 ONSC 6263

COURT FILE NO.: 402/13

DATE: 20141027

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN: NADEJDA ALETKINA, Plaintiff

- and -

HOSPITAL FOR SICK CHILDREN, Defendant

BEFORE: D.L. CORBETT J.

COUNSEL: Ms Aletkina, on her own behalf

Melanie A. Warner, for the Defendant

HEARD: July 16, 2014, at Toronto

ENDORSEMENT

[1] Ms Aletkina appeals the decision of Master McAffee dismissing her motion to amend her statement of claim, to add new claims and new defendants, and in respect to refusals and undertakings given on the examination for discovery of the defendant. Ms Aletkina also brings two motions to adduce fresh evidence.

[2] For the reasons that follow the motions to adduce fresh evidence are dismissed and the appeal is dismissed with costs.

Jurisdiction

[3] The portion of the order refusing leave to add new claims and parties is a final order of the Master. Appeal from that portion of the order lies to a single judge of the Divisional Court.

[4] The portions of the order refusing amendments to the statement of claim that do not assert new claims or claims against new parties, and dismissing the motion respecting undertakings and refusals, is an interlocutory decision of the Master. Appeal from those portions of the order lies to a single judge of the Superior Court.

[5] Where a decision contains elements that are both final and interlocutory, the court having jurisdiction over the appeal from the final order may decide the entire appeal. I exercise my discretion to hear the entire appeal in my capacity as a single judge of the Divisional Court in the interests of economy of judicial resources.

Standard of Review

[6] Issues of fact are reviewable on the standard of “palpable and overriding error”. Matters of discretion should not be overturned unless the Master is “clearly wrong” or has proceeded on a wrong principle. Questions of law are reviewable on a standard of correctness.[^1]

The Action

[7] Ms Aletkina was employed by Hospital for Sick Children as a lab technician at a salary of $35,000 per annum for about eleven months, from May 9, 2002 to April 30, 2003. HSC voluntarily paid Ms Aletkina one month’s salary on termination of her employment. No release was provided by Ms Aletkina in exchange for this payment.

[8] Almost six years later, on April 27, 2009, Ms Aletkina sued HSC for wrongful dismissal, seeking $750,000 damages including punitive and exemplary damages. Now, more than five years later, the action has not been scheduled for trial, and Ms Aletkina seeks to expand the litigation by adding parties and claims. These amendments, if permitted, would have the effect of reopening documentary and oral disclosure and would place the parties virtually back at the beginning of the litigation process.

Proposed New Claims and the Limitations Period

[9] Ms Aletkina wishes to assert new claims arising from the termination of her employment. She alleges that false statements were made about her as part of an unlawful conspiracy among HSC personnel to bring about the wrongful termination of her employment.

[10] The Limitations Act was amended in 2002 to reduce the applicable limitations period to two years. The limitation period begins to run on the “date of discoverability”. HSC agrees that for the purposes of the motion before the Master, the limitation period started for these proposed new causes of action when HSC served its affidavit of documents on February 18, 2012. Ms Aletkina first advised of her intention to seek to pursue her new claims on April 14, 2012, more than two years after receiving disclosure from HSC.

[11] Ms Aletkina argues that the running of the limitation period was suspended to 2011 because of her mental illness. HSC argues that Ms Aletkina was not under a legal disability and thus the limitations period was not suspended and the proposed new claims are out of time.

[12] The Master took a good, hard look at Ms Aletkina’s claim that she was under a legal disability that suspended the running of the limitations period. The voluminous materials filed on the motion establish clearly that Ms Aletkina does suffer from a mental illness, and one that has been described as “severe” by her treating psychiatrist. Nowhere in the volumes of material is there an opinion that this mental illness renders her under a legal disability. And while it may be true that Ms Aletkina was slow taking steps related to this litigation because of her mental health issues, receiving accommodation for health reasons is not the same thing as being unable to appreciate that she had the claims she now wishes to assert.

[13] The Master’s reasons on this point are as follows:

Ms Aletkina argues that due to her incapacity, the applicable limitations period did not begin to run until November 15, 2011. The medical and other evidence before me does not satisfy me that Ms Aletkina’s medical condition would have prevented her from appreciating that she had an alleged cause of action. I am not satisfied that Ms Aletkina was incapable such that the limitation period did not run. Ms Aletkina has not met the burden of establishing incapacity….[^2]

[14] In the respondent’s factum, Ms Aletkina’s history of seeking delays and accommodations in this litigation is summarized in detail, leading to the following concluding argument:

… [Ms Aletkina] was regularly pursuing doctor’s notes to further prolong and delay this litigation. It is significant that [Ms Aletkina] specifically requested a letter indicating she lacked capacity, and in July 2012, a physician specifically refused to provide such an opinion.[^3]

[15] The Master did not erroneously apply the test for summary judgment. Rather, the Master took a hard look at the evidence filed on the motion and concluded that there is no arguable basis that the trial judge could conclude that the running of the limitations period was suspended until 2011.[^4] I see no error.

No Estoppel

[16] Ms Aletkina also argued that HSC is estopped from its limitations defence as a result of its repeated accommodation of Ms Aletkina’s requests for delays in other steps in the proceeding. This argument is without merit. First, this argument would have no application to the claims against the proposed new defendants, who were not parties to any of the arrangements between Ms Aletkina and HSC. Second, an agreement to defer steps within an action does not imply waiver of limitation periods for other causes of action. Waiver of a limitation period must be clear and unambiguous to have effect. There is no evidence of such a waiver here.

Alleged Fraudulent Concealment Irrelevant to Limitations Issue

[17] Ms Aletkina also argued that HSC fraudulently concealed the information upon which her proposed additional claims are based. This argument is irrelevant to this appeal. HSC does not admit fraudulent concealment, but for the purposes of this motion proceeds on the basis of the date on which the allegedly concealed information was disclosed to Ms Aletkina. Its alleged prior concealment does not bear on the running of the limitation period after it was disclosed.

The Proposed New Evidence

[18] The proposed new evidence does not satisfy the Palmer test and really offers no new insights into the limitations issue. It reinforces points clear on the record before the Master: Ms Aletkina does suffer from a mental illness, but not one that has rendered her legally disabled.

Proposed New Statement of Claim

[19] Ms Aletkina sought leave to amend her statement of claim in accordance with a draft amended claim. The original statement of claim was 25 paragraphs on less than six pages of double-spaced text. The proposed fresh amended statement of claim is 119 paragraphs long on 44 pages.

[20] The Master refused most of the proposed amendments because they asserted claims that are now barred by the Limitations Act. The Master concluded that the balance of the proposed amendments ought not be permitted because of substantial drafting deficiencies. The Master correctly stated the proper legal tests and exercised her discretion accordingly. In reviewing the proposed pleading, I agree with the Master’s assessment.

Undertakings and Objections

[21] The Master summarized correctly the state of the undertakings and refusals based on the charts before her. Most of the undertakings had been answered by the time of the motion. Of the five remaining issues, the Master declined to order further answers on the basis that: (i) the questions were hypothetical; (ii) the questions had already been answered fully; or (iii) the questions were not relevant. These are correct criteria to apply. The Master’s application of the criteria to the circumstances of this case discloses no error in principle and no palpable and overriding error of fact. I see no basis for this court to intervene.

Subsequent Communications from Ms Aletkina

[22] Ms Aletkina wrote a 32 page letter to the court on October 7, 2014. The letter is a comprehensive re-argument of her appeal. Ms Warner wrote to Ms Aletkina, advising her that it was not proper to communicate with a judge about a case under reserve. Ms Aletkina responded on October 8, 2014.

[23] Ms Warner was correct; Ms Aletkina’s letter of October 7^th^ was an improper re-argument of the appeal. I did not find it necessary to invite Ms Warner to provide a substantive reply to Ms Aletkina’s letters.

Disposition and Setting the Action Down for Trial

[24] The appeal is dismissed, with costs of the appeal and the motions for fresh evidence fixed at $10,000, inclusive, payable by Ms Aletkina to HSC within thirty days.

[25] Master Dash previously ordered that this action be set down for trial by August 28, 2014. I set that order aside pending release of my decision on this appeal and indicated that I would establish a new timetable depending on the results of this appeal. I indicated to the parties that they should not expect a decision from me before October, given my schedule.

[26] This matter should now be set down for trial without further delay. This is a simple task of filing a trial record. Ms Aletkina shall list the action for trial by November 30, 2014, failing which the action shall be dismissed.

D.L. CORBETT J.

Date: October 28, 2014

[^1]: See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Zeitoun v. Economical Insurance Group, 2009 ONCA 415, 96 O.R. (3d) 639; Geographic Resources Integrated Data Solutions Inc. v. Peterson, 2012 ONSC 7182 (Div. Ct.).

[^2]: Aletkina v. Hospital for Sick Children, 2013 ONSC 4709 (Master), at para. 25 (authorities omitted).

[^3]: Factum of the Respondent dated January 17, 2014, para. 81.

[^4]: See Hussaini v. Freedman, 2013 ONSC 779; Deck International Inc. v. Manufacturer’s Life Insurance Co., 2012 ONCA 309.