CITATION: Castronovo v. Sunnybrook & Women's College Health Sciences Centre, 2008 ONCA 655
DATE: 20080930
DOCKET: C48340
COURT OF APPEAL FOR ONTARIO
Moldaver, Armstrong and Blair JJ.A.
BETWEEN:
Calogero Castronovo, Liberata Castronovo and Pasquale Castronovo
Plaintiffs (Appellants)
and
Sunnybrook & Women’s College Health Sciences Centre, Dr. Peter Chu, Dr. Tulin Deniz Cil, Ms. L. Chow, Jane Doe and/or John Doe, Dr. Albert Yee, Dr. Joel Finkelstein and Dr. S. Hopyan
Defendants (Respondents)
Donald H. Rogers, Q.C. and Anita M. Varjacic for the appellants
Kenneth J. Morris for the respondents Drs. Chu, Cil, Yee and Finkelstein
Heard: September 23, 2008
On appeal from the order of Justice Beth A. Allen of the Superior Court of Justice dated January 18, 2008.
ENDORSEMENT
[1] The appellants appeal from the order of Allen J., dismissing their action against the respondents on a motion for summary judgment by reason of the appellants’ failure to commence their action within the one-year limitation period prescribed by s. 89(1) of the Health Professions Procedure Code. Their chief ground of appeal is that the motion judge erred in law by refusing to consider evidence acquired by the appellant Calogero Castronovo, relevant to the cause of his left wrist injuries, after the action was commenced. Secondarily, the appellants submit that the motion judge erred in granting summary judgment in respect of a “fictitious cause of action” and that she also erred in her application of the doctrine of discoverability.
[2] We would not give effect to any of the grounds of appeal. In our view, the motion judge’s reasons reveal no errors, either factual or legal.
[3] In particular, we agree with the motion judge that the medical evidence obtained after the action against the respondents had been commenced was “[not] relevant to the question” the court had to decide on the motion. As the motion judge observed, “the relevant period of inquiry on the application of the discoverability doctrine is the period before the action is commenced since the limitation period ceases to run once the claim is issued. The appropriate place to use that [newly discovered] evidence would be at trial.”
[4] In so concluding, the motion judge followed the principles enunciated by Feldman J.A. (for the majority) in McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 187 D.L.R. (4th) 446 at para. 51 as follows:
To say that a plaintiff must know the precise cause of her injury before the limitation period starts to run, in my view places the bar too high. Both the one-year limitation period itself, as well as the production and discovery process and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants. In order to come within s. 17 of the Act, it is sufficient if the plaintiff knows enough facts to base her allegation of negligence against the defendant.
[5] In the present case, the motion judge correctly determined that Calogero knew, or should have known, by no later than his April 22, 2002 examination by Dr. Axelrod, all of the material facts needed to commence an action for medical malpractice against the respondents, and in particular, Dr. Finkelstein, for injuries occasioned to his left wrist during treatment. In so concluding, the motion judge relied primarily on evidence from Calogero himself, as well as other undisputed evidence. As such, she did not impermissibly weigh evidence; nor in our view, did she err in concluding that the appellants had failed to show that a genuine issue for trial remained on the question of discoverability.
[6] Accordingly, we would dismiss the appeal with costs to the respondents in the amount of $10,000 inclusive of G.S.T. and disbursements.
Signed: “M. J. Moldaver J.A.”
“Robert P. Armstrong J.A.”
“R. A. Blair J.A.”