MacMillan v. McDermid

70 O.R. (3d) 252

[2004] O.J. No. 937

Docket No. C40694

Court of Appeal for Ontario

Labrosse, Laskin and Goudge JJ.A.

March 11, 2004

Civil procedure -- Summary judgment -- Genuine issue for trial -- Granting of summary judgment not generally appropriate when discoverability is central to resolution of limitation issue.

Professions -- Physicians and surgeons -- Limitation of actions -- Claim of breach of fiduciary duty not related to claim for malpractice in respect of professional services -- Claim not subject to limitation period in Regulated Health Professions Act -- Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

The defendant doctor moved successfully for summary judgment dismissing the plaintiff's action. The plaintiff appealed.

Held, the appeal should be allowed.

It is generally not appropriate to grant summary judgment when the rule of discoverability is central to the resolution of a limitation issue. In this case, there were facts in dispute that constituted a genuine issue for trial.

A claim of breach of fiduciary duty is not related to a claim for malpractice in respect of professional services and is not subject to the limitation period in the Regulated Health Professions Act, 1991.

APPEAL by the plaintiff from a judgment of MacKenzie J. (2003), 2003 43319 (ON SC), 66 O.R. (3d) 632 (S.C.J.) dismissing an action.

Statutes referred to Regulated Health Professions Act, 1991, S.O. 1991, c. 18

Doron J. Gold, for plaintiff/appellant. W. Niels Ortved and W. Grant Worden, for defendant/ respondent.

[1] Endorsement BY THE COURT: -- This court has made it clear that it is generally not appropriate to grant summary judgment when the rule of discoverability is central to the resolution of the limitation issue. In our view, the evidence is not clear. There are facts in dispute that constitute a genuine issue for trial.

[2] The trial judge did not deal with the issue of fiduciary duty. This claim is not related to a claim for malpractice in respect of professional services and cannot be subject to limitation in the RHPA [Regulated Health Professions Act, 1991, S.O. 1991, c. 18].

[3] The appeal is allowed with costs fixed for the motion for summary judgment and the appeal, at $12,000 all inclusive.

Appeal allowed. [page253]