DATE: 20040617

DOCKET: C40724

COURT OF APPEAL FOR ONTARIO

RE:

NATASHA LALOVA PAGOUROV and DIMITRE IVANOV PAGOUROV (Plaintiffs/Appellants) – and – PHARMX REXALL DRUG STORES LTD., and ‘JANE DOE”, PHARMACIST (Defendants/Respondents)

BEFORE:

MCMURTRY C.J.O., GILLESE and BLAIR JJ.A.

COUNSEL:

Dimitre Pagourov – in-person

for the appellants

Seth J. Kornblum

for the respondents

HEARD:

June 15, 2004

On appeal from the judgment of Justice Thomas M. Dunn of the Superior Court of Justice dated September 3, 2003.

E N D O R S E M E N T

Released Orally: June 15, 2004

[1] The appellants seek to set aside the summary judgment granted by Dunn J. on September 3, 2003, dismissing their action as statute barred by operation of the one-year limitation period in s. 89(1) of the Regulated Health Professions Act, 1991, S.O., c. 18. The action is based on the admitted negligence of Ms. Mary Worry, a pharmacist employed by the corporate defendant.

[2] The respondents failed to plead the material facts necessary to support the contention that the individual defendant was a member of the Ontario College of Pharmacists and therefore entitled to the protection of the limitation period in s. 89 of the Regulated Health Protection Act. This defect was not remedied by the affidavit filed in support of the summary judgment motion. There being no evidence before the motions judge that the individual defendant was a member of the College, there was no basis upon which the motions judge could conclude that the limitation period applied to the individual defendant.

[3] The motions judge gave no reasons for concluding that the corporate defendant was entitled to the protection of the limitation period in s. 89. It is clear that there is a live issue as to what limitation period applies to the corporate defendant and whether it can claim the protection of s. 89. As a consequence, the motions judge could not have properly concluded that there was no genuine issue for trial in respect of the corporate defendant.

[4] Accordingly, the appeal is allowed and the judgment below is set aside with costs to the appellant fixed in the sum of $350.00 inclusive.

“R. Roy McMurtry C.J.O.’

“E. E. Gillese J.A.”

“R. A. Blair J.A.”