St. Jean, a Party under Disability by his Litigation Guardian, St. Jean, et al v. Cheung et al.

[Indexed as: St. Jean (Litigation Guardian of) v. Cheung]

94 O.R. (3d) 359

Court of Appeal for Ontario,

Rosenberg, Borins and Gillese JJ.A.

December 3, 2008

Limitations -- Transition provisions -- Plaintiff born with severe brain damage in 1982 and mentally incompetent -- Action commenced against hospital and mother's obstetrician/ gynaecologist in 2002 -- Another action being commenced in 2006 against doctors who treated plaintiff after his birth -- Second action not statute-barred -- Conditions of s. 24(2) of new Limitations Act met as no proceeding had been commenced in respect of claim against new defendants before effective date of new Act -- Section 24(5) of new Act applying -- Claim against new defendants having been discovered by plaintiff's litigation guardian before effective date of new Act -- Rule 2 of s. 24(5) applying -- Former limitation period applying -- "Former limitation period" including postponement or suspension of limitation period pursuant to s. 47 of former Limitations Act -- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 24(2), 24(5) -- Limitations Act, R.S.O. 1990, c. L.15, s. 47.

S was born in November 1982. He was severely hypoglycaemic and suffered serious brain injury. As a result, he was mentally incompetent. A medical malpractice action was commenced on S's behalf in November 2002, naming as defendants S's mother's obstetrician and gynaecologist and the hospital where S was born. On January 1, 2004, the Limitations Act, 2002 (the "new Act") came into effect. In May 2006, a second lawsuit was commenced on R's behalf, this one against the doctors who treated S after his birth while he was at the hospital. The plaintiffs' motion to consolidate the two actions was dismissed and the second action was struck as statute-barred. The plaintiffs appealed. [page360]

Held, the appeal should be allowed.

Both conditions of s. 24(2) of the new Act were met in respect of the new claim. It was based on acts or omissions that took place before January 1, 2004, and no proceeding had been commenced before that date. "Proceeding" in s. 24(2) cannot be sensibly interpreted without reference to the party or parties against whom an action is brought. Before the second action was commenced, there was no proceeding based on the acts or omissions of the new defendants in 1982. Accordingly, s. 24 of the new Act applied to the second claim. The first condition in s. 24(5) was met. The former limitation period did not expire before January 1, 2004, as the applicable one-year limitation period relating to conduct of physicians did not run against an incompetent plaintiff so long as he or she remained incompetent. The second condition in s. 24(5) was also met. By virtue of the new Act, had S's claim been based on an act or omission that took place after January 1, 2004, the new Act would apply. Section 4 of the new Act establishes the basic two-year limitation period following discovery of a claim and s. 15 contains an ultimate limitation period of 15 years. The claim was discovered before January 1, 2004, as S's litigation guardian was treated as having discovered the claim against the new defendants when she obtained hospital records in February 2003. Her knowledge was acquired in her capacity as S's litigation guardian and, therefore, could be imputed to S, but not for the purposes of triggering the running of the limitation period. The fact that the running of the limitation period was suspended during the period of incapacity did not mean the claim could not have been discovered by the litigation guardian. Accordingly, rule 2 of s. 24(5) was operative and the former limitation period applied. The former limitation period in s. 24 includes the postponement or suspension of a limitation period pursuant to s. 47 of the former Limitations Act. Thus, the running of the limitation period continued to be suspended due to S's mental incapacity.

APPEAL from the order of J.C. Murray J. (2007), 2007 8025 (ON SC), 85 O.R. (3d) 275, [2007] O.J. No. 992 (S.C.J.) and (2007), 2007 38579 (ON SC), 87 O.R. (3d) 711, [2007] O.J. No. 3562 (S.C.J.) striking an action as statute- barred.

Cases referred to Meady v. Greyhound Canada Transportation Corp. (2008), 90 O.R. (3d) 774, [2008] O.J. No. 2338, 2008 ONCA 468, 53 C.P.C. (6th) 1, 61 M.V.R. (5th) 195, 294 D.L.R. (4th) 152, 166 A.C.W.S. (3d) 763, 240 O.A.C. 188, folld Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648, [2006] O.J. No. 5042, 278 D.L.R. (4th) 175, 39 C.P.C. (6th) 81, 154 A.C.W.S. (3d) 336 (C.A.), not folld Other cases referred to Camilli v. Guardian Insurance, [2008] O.J. No. 1171, 2008 ONCA 219, [2008] I.L.R. I-4686, 61 C.C.L.I. (4th) 182; Épiciers Unis Métro-Richelieu Inc., division "Éconogros" v. Collin, [2004] 3 S.C.R. 257, [2004] S.C.J. No. 55, 2004 SCC 59, 244 D.L.R. (4th) 1, 326 N.R. 89, J.E. 2004-1885, 133 A.C.W.S. (3d) 1036; Guillemette v. Doucet (2007), 88 O.R. (3d) 90, [2007] O.J. No. 4172, 2007 ONCA 743, 48 C.P.C. (6th) 17, 287 D.L.R. (4th) 522; Gustavson Drilling (1964) Ltd. v. M.N.R., 1975 4 (SCC), [1977] 1 S.C.R. 271, [1975] S.C.J. No. 116, 66 D.L.R. (3d) 449, 7 N.R. 401, [1976] C.T.C. 1, 75 D.T.C. 5451; Hare v. Hare (2006), 2006 41650 (ON CA), 83 O.R. (3d) 766, [2006] O.J. No. 4955, 277 D.L.R. (4th) 236, 218 O.A.C. 164, 24 B.L.R. (4th) 230, 153 A.C.W.S. (3d) 1243 (C.A.); Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469, 294 D.L.R. (4th) 141, 56 C.P.C. (6th) 14, 166 A.C.W.S. (3d) 762, 241 O.A.C. 29; Martin v. Perrie, 1986 73 (SCC), [1986] 1 S.C.R. 41, [1986] S.C.J. No. 1, 24 D.L.R. (4th) 1, 64 N.R. 195, 12 O.A.C. 269, 36 C.C.L.T. 36, 34 A.C.W.S. (2d) 380; Maxwell v. Murphy (1957), 96 C.L.R. 261 (Aust. H.C.); Murphy v. Welsh; Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83, 106 D.L.R. (4th) 404, 156 N.R. 263, 65 O.A.C. 103, 18 C.C.L.T. (2d) 101, 18 C.P.C. (3d) 137, 47 M.V.R. (2d) 1, 42 A.C.W.S. (3d) 509; [page361] Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Philion (Litigation Guardian of) v. Lemieux (Estate of) (2007), 85 O.R. (3d) 1, [2007] O.J. No. 1405, 2007 ONCA 281, 223 O.A.C. 267, 46 C.P.C. (6th) 203, 156 A.C.W.S. (3d) 916; Rothwell v. Raes (1990), 1990 6610 (ON CA), 2 O.R. (3d) 332, [1990] O.J. No. 2298, 76 D.L.R. (4th) 280, 24 A.C.W.S. (3d) 708 (C.A.), affg (1988), 1988 4636 (ON SC), 66 O.R. (2d) 449, 69 O.R. (2d) 62 (H.C.J.) (supp. reasons), [1988] O.J. No. 1847, 54 D.L.R. (4th) 193, 12 A.C.W.S. (3d) 231 (H.C.J.) [Leave to appeal to S.C.C. refused (1991), 2 O.R. (3d) xii, [1991] 1 S.C.R. xiii, [1991] S.C.C.A. No. 58, 79 D.L.R. (4th) vii, 135 N.R. 78n, 49 O.A.C. 398n]

Statutes referred to Health Disciplines Act, R.S.O. 1990, c. H.4, s. 17 [rep. S.O. 1991, c. 18, s. 47(1)] Health Professions Procedural Code, S.O. 1991, c. 18, Sch. 2, s. 89 [rep. S.O. 2002, c. 24, Sched. B, s. 25] Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 2, (1), 4, 5(1), 8, 15, 21, (1), 24, (2), (5) Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 47 [rep. S.O. 2002, c. 24, Sched. B, s. 26] Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 4

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Authorities referred to Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Butterworths, 2008)

Christine Fotopoulos and Robin Squires, for appellants. Sarit E. Batner and Kenneth Morris, for respondents.

The judgment of the court was delivered by

[1] GILLESE J.A.: -- This appeal -- like a surprising number that go before it -- is largely dependent on the transition provisions in s. 24 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "new Limitations Act"). To decide the appeal, the court must draw together its previous jurisprudence and articulate the principles which guide the interpretation of the new Limitations Act and, particularly, s. 24.

Overview

[2] A chronology of the major events in this litigation provides a useful overview. [page362] November 13, 1982 -- Robert St. Jean was born in the North York General Hospital (the "Hospital"). He was severely hypoglycaemic and suffered serious brain injury. As a result, he is mentally incompetent. November 13, 2002 -- a medical malpractice lawsuit was started on Robert's behalf. The defendants are Dr. Makkay, the obstetrician and gynaecologist who provided Robert's mother with medical care during her pregnancy, and the Hospital. The running of the limitation period was suspended in respect of Robert's claim because of his mental incapacity. January 1, 2004 -- the new Limitations Act came into effect. May 17, 2006 -- a second lawsuit was commenced on Robert's behalf. The doctors who treated Robert after his birth, while he was in the Hospital, were named as defendants. Spring 2007 -- the plaintiffs moved to consolidate the two actions. Some of the defendants in the second action moved to have it struck. December 18, 2007 -- based on the provisions of the new Limitations Act, the second action was found to have been commenced outside the limitation period. Consequently, the plaintiffs' motion was dismissed and the second action was struck.

[3] At its heart, this appeal revolves around a single question: in respect of limitation periods, what provisions apply to a claim pursued in the court for an act or omission that occurred prior to January 1, 2004 -- those that governed prior to January 1, 2004, or those contained in the new Limitations Act? The answer to that question depends primarily on the transition provisions in s. 24 of the new Limitations Act. As I explain, a proper application of s. 24 leads to the conclusion that the second action is governed by the provisions that operated prior to January 1, 2004. Accordingly, it was brought in time with the result that I would allow the appeal.

The Background

[4] Robert St. Jean was born on November 13, 1982. Shortly after birth, he became severely hypoglycaemic. Allegedly as a result of a failure to properly treat the hypoglycaemia, Robert suffered severe brain damage that rendered him a mental incompetent.

[5] In November 2002, Robert's mother, Jennifer St. Jean, consulted Justin Linden, a lawyer. On November 13, 2002, Robert's [page363] 20th birthday, Mr. Linden commenced a medical malpractice lawsuit (the "first action"). The plaintiffs in the first action are Robert, by his litigation guardian, and Jennifer. The defendants in the first action are Dr. Zoltan Makkay and the Hospital.

[6] In the first action, the plaintiffs allege that Dr. Makkay and the Hospital were negligent in the medical care provided to Jennifer before, during and after Robert's birth. The primary allegation is that as a result of the failure to diagnose and treat Jennifer's gestational diabetes, Robert was born severely hypoglycaemic. However, the claim also alleges a failure on the part of Dr. Makkay and the Hospital to test Robert's blood sugar levels after he was born and to monitor and treat him appropriately. None of the three individual doctors who treated Robert after his birth while he was in the Hospital -- Dr. Wai Ming Cheung, Dr. John Murray and Dr. Rosalind Curtis (the "new defendants") -- were named as defendants in the first action.

[7] Christine Parnell, a law clerk in Mr. Linden's office, was Robert's litigation guardian. Mr. Linden and Robert's then litigation guardian received the complete hospital chart in relation to Robert's birth by February 2003. It is undisputed that a review of the chart would have disclosed the postnatal care that Robert received from each of Drs. Cheung, Murray and Curtis.

[8] In the summer of 2005, Gary Will, another lawyer, assumed carriage of this matter. On receiving the file, Mr. Will retained a neonatologist to provide an opinion on the likely cause of Robert's brain injury. The neonatologist opined that the likely cause of Robert's injury was the protracted hypoglycaemia that followed his birth which was inadequately treated. In his view, had Robert's hypoglycaemia been treated more aggressively, Robert would not have suffered injury.

[9] On May 17, 2006, Mr. Will commenced an action (the "second action") against the new defendants, Dr. John Doe, the Hospital and Nurse Jane Doe. The plaintiffs in the second action are Robert by his litigation guardian, Jennifer, Jennifer personally and Nicole St. Jean, Robert's sister (the "appellants").

[10] The appellants brought a motion for an order consolidating the two actions or, alternatively, adding the defendants in the second action to the first action. [See Note 1 below] The new defendants brought a counter-motion to strike the second action on the basis that it was statute-barred. [page364]

[11] By order dated December 18, 2007, the motion judge dismissed the appellants' motion and struck the statement of claim in the second action (the "Order").

The Motion Judge's Decision

[12] The reasons of the motion judge are contained in two endorsements, dated March 19, 2007 and August 10, 2007, respectively.

[13] In the first endorsement, the motion judge began by considering the limitations provisions that governed Robert's claim prior to January 1, 2004, the effective date of the new Limitations Act. He concluded that because Robert is mentally incompetent, the one-year limitation period prescribed by s. 17 of the Health Disciplines Act, R.S.O. 1990, c. H.4 [See Note 2 below] (the applicable provision at the time of Robert's birth but repealed and replaced by an equivalent provision in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18), [See Note 3 below] is suspended by virtue of s. 47 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 [See Note 4 below] (the "former Limitations Act"). Under s. 47 of the former Limitations Act, the running of the limitation period is postponed or suspended where the plaintiff is "a mental defective, mental incompetent or of unsound mind" and does not begin to run until the person is of sound [page365] mind. As Robert is mentally incompetent, time had not begun to run. Further, the motion judge held that the appointment of a litigation guardian did not trigger the running of the limitation period. He concluded that the former limitation period had not expired.

[14] The motion judge noted that it was common ground between the parties that the transition provisions in s. 24 of the new Limitations Act applied. He also observed that the claim against the new defendants was based on acts or omissions that took place prior to January 1, 2004, and that no proceedings had been commenced in respect of the claim against the new defendants prior to that date.

[15] The motion judge then considered whether s. 24(5)2 of the new Limitations Act applied. He viewed two conditions as necessary for it to apply: (1) the former limitation period could not have expired; and (2) the claim against the new defendants must have been discovered prior to January 1, 2004.

[16] Based on his earlier conclusion that the former limitation period had not expired, the motion judge found that the first condition had been met. In respect of the second condition, however, he found that the claim against the new defendants had not been discovered before January 1, 2004. Although the litigation guardian in the first action knew the material facts relating to the claim against the new defendants before January 1, 2004, the motion judge was of the view that it was not until January 1, 2004 that a litigation guardian could discover a claim on behalf of a person with a legal disability. Thus, he held that for the purposes of s. 24 of the new Limitations Act, the litigation guardian became aware of the material facts on January 1, 2004. As a result of this determination, the motion judge was of the view that s. 24(5)1 -- rather than s. 24(5)2 -- of the new Limitations Act applied. Consequently, the two-year limitation period established by s. 4 of the new Limitations Act operated. That period expired on the second anniversary of the day on which the claim was discovered, that is, January 1, 2006. As the second claim was brought after January 1, 2006, the motion judge found that the claim was commenced outside the limitation period established by the new Limitations Act.

[17] In the second endorsement, the motion judge held that as a result of s. 21(1) of the new Limitations Act, the court had no discretion to add parties after the expiration of the limitation period. In any event, he found that there were no special circumstances that justified the addition of the new defendants as parties to the first action or to permit the commencement of the second action. [page366]

The Issues

[18] The primary issue on appeal is whether the motion judge erred in his application of s. 24 to the instant case. (For convenience, the full text of s. 24 is appended to these reasons as Schedule "A".)

[19] As well, the appellants ask this court to determine whether the motion judge erred in his application of s. 21 of the new Limitations Act or, alternatively, in failing to properly consider the existence of special circumstances.

Section 24 of the New Limitations Act

Section 24(2) -- The starting point

[20] Section 24(2) of the new Limitations Act determines whether the transition provisions in s. 24 apply to a claim based on acts or omissions that took place before January 1, 2004. [See Note 5 below] Section 24(2) reads as follows:

24(2) This section applies to claims based on acts or omissions that took place before the effective date and in respect of which no proceeding has been commenced before the effective date.

[21] There are two conditions in s. 24(2) which, if met, lead to the result that the section applies to the claim. First, the claim must be based on an act or omission that took place before January 1, 2004; and, second, no proceeding can have been commenced in respect of the claim before January 1, 2004. [See Note 6 below]

[22] Here it is clear that the first condition is met. The appellants' claim is based on acts or omissions that took place in November 1982, at Robert's birth and shortly thereafter, long before January 1, 2004.

[23] There is a dispute, however, about whether the second condition has been met, that is, whether a proceeding had been commenced in respect of the claim before January 1, 2004. The appellants say that the first action is such a proceeding and, therefore, the second condition is not met. They rely on Pepper v. Zellers Inc. (2006), 2006 42355 (ON CA), 83 O.R. (3d) 648, [2006] O.J. No. 5042 (C.A.), a decision of this court, in support of their contention that the first action amounted to a proceeding that had been commenced before January 1, 2004.

[24] The relevant facts of Pepper v. Zellers are these. Ms. Pepper alleged that in August 2002, her pharmacy and pharmacist [page367] mislabelled her medication, as a result of which she suffered harm requiring hospital care. In October 2002, the plaintiffs started an action in negligence and breach of contract based on the mislabelling of the medication. The pharmacy that dispensed the medication was named as the defendant in the action. After January 1, 2004, the plaintiffs attempted to add the dispensing pharmacist as a defendant. The motion to add the pharmacist was dismissed on the basis that the plaintiffs had failed to exercise due diligence in ascertaining the identity of the dispensing pharmacist.

[25] On appeal, this court held that the new Limitations Act did not apply to extend the one-year limitation period against the dispensing pharmacist because the second condition in s. 24(2) had not been met. At para. 26, the court stated that s. 24(2) only applied if no proceeding had been commenced before January 1, 2004, and "a proceeding with respect to this incident was commenced in 2002".

[26] The new defendants argue that the first action does not amount to a proceeding for the purposes of s. 24(2). They rely on this court's decision in Meady v. Greyhound Canada Transportation Corp. (2008), 2008 ONCA 468, 90 O.R. (3d) 774, [2008] O.J. No. 2338 (C.A.), which was released after the Order was made.

[27] In Meady, the plaintiffs were injured in a bus collision that occurred on December 23, 2000. They alleged that the collision was caused by the defendant, Shaun Davis, who seized the steering wheel of the bus while it was moving, causing it to crash. The plaintiffs started separate actions against Davis and various others in June 2001.

[28] Before the expiry of the relevant limitation period, one of the defendants added Dr. James as a third party to the action. The allegation in the third-party claim was that Dr. James had been negligent in failing to provide proper medical care for Davis and that Dr. James' negligence caused or contributed to Davis's actions which caused the accident. In December 2004, all the actions, including the third-party claims, were ordered to be consolidated.

[29] The limitation period expired in December 2002. In October 2006, the plaintiffs sought to add Dr. James as a party defendant to the action. The motion judge held that s. 21(1) of the new Limitations Act applied and that it precluded the addition of Dr. James as a defendant.

[30] On appeal, this court held that the motion judge erred in applying s. 21 of the new Limitations Act. In reaching this determination, it was necessary to determine whether the conditions in s. 24(2) had been met. Justice Feldman, writing on behalf of [page368] the court, concluded that although the plaintiffs had commenced a proceeding before January 1, 2004, it was not a proceeding in respect of acts or omissions of Dr. James and, therefore, it was not a proceeding within the meaning of s. 24(2). At para. 11 of the reasons, she explains:

The term "claim" is defined in s. 1 of the new Act as "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission". This definition focuses on particular acts or omissions, even if more than one act or omission by more than one party contributed to the same injury. The term "proceeding" is not defined in the new Act. However, it is defined in rule 1.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as "an action or application". Thus, the words "claims . . . in respect of which no proceeding has been commenced" in s. 24(2) refer to claims resulting from particular acts or omissions by a particular party for which no court action has been commenced. This interpretation has been applied in several decisions of the Superior Court of Justice, including Pallotta v. Marks, [2005] O.J. No. 2963 (S.C.J.), in which Hoy J. noted at para. 23 that it would be inconsistent with the scheme of the new Act "for 'proceeding' in section 24(2) to be interpreted without reference to the person against whom the proceeding is made". Accordingly, although the plaintiffs commenced a proceeding within the limitation period against certain defendants in respect of their acts or omissions, no proceeding was commenced by the plaintiffs in respect of the acts or omissions of Dr. James. Consequently, the transition provision, s. 24 of the new Act, applies.

[31] In my view, Pepper has been overtaken by the more nuanced approach in Meady. The word "proceeding" in s. 24(2) cannot be sensibly interpreted without reference to the party or parties against whom an action is brought. The acts or omissions had to have been performed by someone. Before the second action was commenced, there had been no proceeding based on the acts or omissions of the new defendants in 1982. In the first action, it was the acts or omissions of Dr. Makkay and the Hospital which were the basis of the claim.

[32] Thus, I conclude that no proceeding had been commenced prior to January 1, 2004, for the purposes of s. 24(2). Accordingly, both conditions in s. 24(2) are met and "this section" -- that is, s. 24 -- applies to the second claim.

[33] Before turning to s. 24(5), which is the applicable part of s. 24 for the present appeal, I wish to comment on the new defendants' contention that if the court determined that a proceeding had been commenced prior to January 1, 2004, the provisions in the new Limitations Act would nonetheless apply. This submission flows from the new defendants' approach to the new Limitations Act as a whole, which is that its provisions govern any claim that is proceeding in the courts after January 1, 2004, unless the transition provisions dictate that the claim is to be governed by the former limitation period. Even in that instance, the new [page369] defendants contend, all of the provisions of the new Limitations Act apply with the exception of the limitation period.

[34] For a number of reasons, I do not accept this submission. First, this court has made it clear that where a claim is based on an act or omission that took place before January 1, 2004, and a proceeding based on the claim was commenced prior to that date, the new Limitations Act does not govern the claim: see Pepper v. Zellers, at para. 26, and Camilli v. Guardian Insurance, 2008 ONCA 219, [2008] O.J. No. 1171, 61 C.C.L.I. (4th) 182 (C.A.), at para. 2.

[35] Second, the new defendants' view is based largely on s. 2(1) of the new Limitations Act. Section 2(1) reads as follows:

2(1) This Act applies to claims pursued in court proceedings other than, (a) proceedings to which the Real Property Limitations Act applies; (b) proceedings in the nature of an appeal, if the time for commencing them is governed by an Act or rule of court; (c) proceedings under the Judicial Review Procedure Act; (d) proceedings to which the Provincial Offences Act applies; (e) proceedings based on the existing aboriginal and treaty rights of the aboriginal peoples of Canada which are recognized and affirmed in section 35 of the Constitution Act, 1982; and (f) proceedings based on equitable claims by aboriginal peoples against the Crown.

[36] I do not read s. 2(1) as purporting to govern all claims being pursued in the courts after January 1, 2004, regardless of when the acts or omissions on which the claim is founded took place or whether a proceeding had been commenced prior to that date. The purpose of s. 2 is to establish that the Act applies to claims pursued in court proceedings with certain exceptions, which are listed in paras. (a) through (f). Guillemette v. Doucet (2007), 2007 ONCA 743, 88 O.R. (3d) 90, [2007] O.J. No. 4172 (C.A.), relied on by the new defendants as support for their view, does not suggest otherwise. In Guillemette, Doherty J.A., writing for the court, considered s. 2 for exactly that purpose. He first determined whether the claim in question was being pursued in court proceedings and then he looked to see whether it fell within one of the exceptions. [See Note 7 below] He then proceeded to deal with the matter by means of the transition provisions. [See Note 8 below] [page370]

[37] Furthermore, s. 2 provides that "the Act" applies to claims pursued in court proceedings. The Act includes the transition provisions in s. 24, the purpose of which is to determine whether its provisions or the former limitation provisions apply to claims based on acts or omissions that took place before January 1, 2004.

[38] Finally, I reject the argument because to find that the new Limitations Act applies even if a proceeding has been commenced prior to January 1, 2004 would be to give the Act retroactive effect.

[39] Legislation has retroactive application when the effect of applying it to particular facts is to deem the law to have been different from what it actually was when the facts occurred. [See Note 9 below] The rationale that underlies the presumption against retroactive application is explained in Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis Butterworths, 2008), at p. 677:

It is obvious that reaching into the past and declaring the law to be different from what it was is a serious violation of the rule of law. As Raz points out, the fundamental principle on which [the] rule of law is built is advance knowledge of the law. No matter how reasonable or benevolent retroactive legislation may be, it is inherently arbitrary for those who could not know its content when acting or making their plans. And when retroactive legislation results in a loss or disadvantage for those who relied on the previous law, it is unfair as well as arbitrary. . . . . .

For these reasons it is strongly presumed that legislation is not intended to be retroactive. (Footnotes omitted)

[40] To accept that the new Limitations Act applies even if a proceeding has been commenced before January 1, 2004 amounts to a retroactive application of its provisions because such an interpretation would have the effect of deeming the law to be different from what it was when the facts occurred. If Robert's lawsuit against the new defendants had been commenced prior to [page371] January 1, 2004, the running of the former limitation period would have been suspended by virtue of s. 47 of the former Limitations Act. If the new Limitations Act were held to apply, it would operate backwards and impose a two-year limitation period on Robert's claim. That is, it would deem the law on limitation periods to be different from what it was at the time the proceeding was commenced.

[41] The presumption against retroactive application means that statutes are not to be construed as having retroactive operation unless such a construction is expressly, or by necessary implication, required by the language of the legislation. There is nothing in the scheme or purpose of the new Limitations Act that would overcome the application of the presumption.

[42] Having said that, I would observe that procedural legislation is presumed to have immediate application -- that is, it is assumed to apply to both ongoing and future proceedings. In that sense, it may be regarded as having retrospective effect as it will apply to ongoing litigation that was commenced under prior procedural rules. As previously indicated, a statute is retrospective -- as opposed to retroactive -- when it operates in a forward fashion to attach new legal consequences to an event that took place before the statute was enacted. Whether a statutory provision is purely procedural and, accordingly, has retrospective application is a matter that must be determined on the facts of each case. To be considered purely procedural, the application of the provision to the specific facts must not result in the interference with any substantive rights or liabilities of the parties or produce other unjust results: see Sullivan, at pp. 696-98.

[43] While the new Limitations Act may have retrospective application in respect of purely procedural matters, extinguishing the right to pursue a claim is not purely procedural as it would alter substantive rights. In Martin v. Perrie, 1986 73 (SCC), [1986] 1 S.C.R. 41, [1986] S.C.J. No. 1, at para. 17, the Supreme Court of Canada quoted with approval the following extract from the decision of the High Court of Australia in Maxwell v. Murphy (1957), 96 C.L.R. 261 (Aust. H.C.), at pp. 277-78:

Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which the proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute may well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the [page372] time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by the lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights. (Emphasis added)

[44] At p. 700 of Sullivan, these notions are succinctly summarized in the following terms:

When a new limitation of action provision comes into force, it may extend or shorten the period within which an action must be commenced. If the provision comes into force before the period has lapsed, and if applying it would not have the effect of extinguishing the right of action, then its application to those facts is said to be purely procedural. In such a case, for both parties, the only thing that is lost or gained is time. However, when the effect of applying the new provision is either to extinguish an action that was still viable when the provision came into force, or to revive an action that was barred, more than time is at stake. In such a case, the provision affects the substantive rights of the parties and cannot be considered purely procedural.

[45] In conclusion on this point, the transition provisions in s. 24 are the express means provided by the new Limitations Act to determine when it applies to a claim based on acts or omissions that took place prior to January 1, 2004. Section 24(2) provides that "its" provisions (i.e., s. 24) only apply if both conditions are met. If a proceeding has been commenced prior to the effective date, the conditions in s. 24(2) will not have been met and s. 24 cannot apply. The result is that the substantive aspects of the claim continue to be governed by the law as it existed prior to January 1, 2004.

Section 24(5)

[46] Section 24(5) reads as follows:

24(5) If the former limitation period did not expire before the effective date and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, the following rules apply:

1. If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date.
2. If the claim was discovered before the effective date, the former limitation period applies. [page373]

[47] On a plain reading of s. 24(5), it applies if two conditions are met: (1) the former limitation period did not expire before January 1, 2004; and (2) a limitation period under the new Limitations Act would apply if the claim were based on an act or omission that took place on or after January 1, 2004. [See Note 10 below]

[48] As the motion judge explained, before January 1, 2004, the applicable one-year limitation period relating to conduct of physicians did not run against an incompetent plaintiff so long as he or she remained incompetent because s. 47 of the former Limitations Act suspended or postponed the running of the limitation period. [See Note 11 below] Consequently, the first condition is met as the former limitation period did not expire before January 1, 2004.

[49] By virtue of s. 2 of the new Limitations Act, had Robert's claim been based on an act or omission that took place after January 1, 2004, the new Limitations Act would apply. Section 4 of the new Limitations Act establishes the basic two- year limitation period following discovery of a claim and s. 15 contains an ultimate limitation period of 15 years. Thus, the second condition is met.

[50] As both conditions in s. 24(5) are met, this subsection applies. The question that divides the parties is whether rule 1 or rule 2 of s. 24(5) applies. If rule 1 applies, the new Limitations Act applies as if the act or omission had taken place on January 1, 2004. If rule 2 applies, however, the former limitation period governs. Which of rule 1 or 2 applies depends on whether the claim was "discovered" before January 1, 2004.

[51] The appellants argue that the claim was discovered before January 1, 2004. They submit that the motion judge erred when he held that the litigation guardian appointed in the first action could not "discover" the existence of a claim until January 1, 2004. They contend that a claim is discovered when the material facts on which it is based have been, or ought to have been, discovered by the exercise of reasonable diligence. In making this submission, they rely on the common- law meaning of discoverability. As the litigation guardian in the first action had knowledge of all the material facts giving rise to the claim in the second action by no later than February 2003, the claim was discovered at that time.

[52] The new defendants argue that the motion judge correctly found that Robert's claim against them was not "discovered" before January 1, 2004. They say that Robert's claim against them was not discovered before January 1, 2004 because before [page374] that time, only he, as the person with the claim, was capable of discovering it. Thus, whether or not he had a litigation guardian who knew all the material facts on which to base a claim, the limitation clock did not start to run because the claim was not "discoverable". They argue that because Robert's mental incompetence prevented him from discovering his claim, the claim could not have been discovered before January 1, 2004. While the new Limitations Act changed the law so that discovery of a claim by a litigation guardian is now deemed to be discovery of the claim by the person under a disability, where the litigation guardian acquired the knowledge before January 1, 2004, January 1, 2004 is deemed to be the day of discovery.

[53] I do not accept the new defendants' submission. It is correct that prior to January 1, 2004, the appointment of a litigation guardian for a minor (or incompetent) plaintiff did not have the effect of "crystallizing" a claim and thereby cause the limitation period to begin to run: see Rothwell v. Raes (1988), 1988 4636 (ON SC), 66 O.R. (2d) 449, 69 O.R. (2d) 62 (H.C.J.) (supp. reasons), [1988] O.J. No. 1847 54 D.L.R. (4th) 193 (H.C.J.), affd on appeal (1990), 1990 6610 (ON CA), 2 O.R. (3d) 332, [1990] O.J. No. 2298 (C.A.), leave to appeal to S.C.C. refused (1991), 2 O.R. (3d) xii, [1991] 1 S.C.R. xiii, [1991] S.C.C.A. No. 58. However, the reason is not, as the new defendants contend, because the claim could not be discovered by anyone other than the person with the claim. In Rothwell, at pp. 266-68 D.L.R., Osler J. referred to the well-settled principle of law that the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 may not be permitted to conflict with an Act of the legislature. He noted that it was the Rules of Civil Procedure that created the mechanism by which a litigation guardian could be appointed to pursue a claim by a person under a disability. Accordingly, he concluded that appointment of a litigation guardian pursuant to the Rules of Civil Procedure could not overcome the "absolute protection" given to the person with the disability provided by s. 47 of the former Limitations Act. [See Note 12 below]

[54] Similarly, Murphy v. Welsh; Stoddard v. Watson, 1993 59 (SCC), [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83 does not stand for the proposition that only the person with the claim could discover the claim. In Murphy v. Welsh, at p. 1080 S.C.R., the Supreme Court of Canada explained that the reasonable discovery rule was fashioned in incest cases to prevent the injustice of a claim becoming [page375] statute-barred before the plaintiff became aware of its existence. There is nothing in the reasoning to suggest that the claim could not be discovered by anyone other than the person with the claim.

[55] I accept the appellants' submission on this matter. In my view, the claim was discovered prior to January 1, 2004. Robert's litigation guardian is treated as having discovered the claim against the new defendants when she obtained the hospital records in February 2003. Her knowledge was acquired in her capacity as Robert's litigation guardian and, therefore, in law can be imputed to Robert but not for the purposes of triggering the running of the limitation period. The fact that the running of the limitation period was suspended during the period of incapacity does not mean the claim could not have been discovered by the litigation guardian. The two notions are different, but related, and should not be conflated. The decision of the Supreme Court of Canada in Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31 supports this view. In Peixeiro, the Supreme Court stated, at para. 41, "There is no conflict between the rule in s. 47 of the [former] Ontario Limitations Act (which merely codifies the common law rules against allowing time to run against those under a legal disability) and the discoverability principle."

[56] I would add that the normal meaning of the word "discovered" accords with this view. Think of the many lawsuits that are started while a person is in a period of incapacity. Although the limitation period does not run during the incapacity, the act or omission that founds the claim must have been discovered as it is the basis for the lawsuit.

[57] In addition, interpreting "discovered" in this way is consistent with the meaning given to that word elsewhere in the new Limitations Act. Section 5(1) of the new Limitations Act provides that a claim is discovered on the earlier of (a) the day on which the person with the claim first knew certain things and (b) "the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)". Section 8 of the new Limitations Act provides that "[i]f a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim".

[58] Accordingly, to the extent that ss. 5 and 8 of the new Limitations Act guide the interpretation to be given to the word "discovered" in s. 24(5)1 and 2, Robert discovered the claim in February 2003, when his litigation guardian received the hospital records. [page376]

[59] It was suggested that to interpret "discovered" by reference to ss. 5 and 8 for events that predate January 1, 2004 amounts to giving the legislation retroactive effect. I disagree. Interpreting the word "discovered" in that manner does not have the effect of deeming the law to be different from what it was prior to January 1, 2004. Rather, this approach enables the court to apply the word "discovered" in s. 24(5) in the manner intended by the legislature. It is a basic tenet of statutory interpretation that language in a piece of legislation is used consistently. As Ruth Sullivan states in Sullivan on the Construction of Statutes, 5th ed., at p. 361: "[I]t is assumed that language is used consistently, that tautology is avoided, that the provisions of an Act all fit together to form a coherent and workable scheme" (footnotes omitted). As the meaning of the word "discovered", for the purposes of the new Limitations Act, is contained in s. 5, following this tenet of statutory construction, one would apply that same meaning to the word throughout the legislation.

[60] In conclusion on this point, rule 2 of s. 24(5) is operative and the former limitation period applies. The former limitation period in s. 24 includes the postponement or suspension of a limitation period pursuant to s. 47 of the former Limitations Act: see Philion (Litigation Guardian of) v. Lemieux (Estate of) (2007), 2007 ONCA 281, 85 O.R. (3d) 1, [2007] O.J. No. 1405 (C.A.), at paras. 18-21. Thus, the running of the limitation period continues to be suspended due to Robert's mental incapacity and the second action was brought in time.

Section 21 of the New Limitations Act

[61] Section 21(1) of the new Limitations Act reads as follows:

21(1) 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.

[62] The new defendants argue that s. 21 operates to preclude them from being added to the first action. I disagree for two reasons.

[63] First, while this court has concluded that s. 21 removes any discretion from the court to add a party to an action after the expiry of the applicable limitation period, [See Note 13 below] by its terms, s. 21 only applies where a limitation period has expired. As I have [page377] explained, the former limitation period applies in the present case and it has not expired. Thus, s. 21 does not apply to the second action.

[64] This court's decision in Meady provides the second reason. In Meady, the court found that the "former limitation period", as that term is used in s. 24 of the new Limitations Act, includes "all aspects of the operation of that period, including extensions based on special circumstances". [See Note 14 below] Accordingly, in deciding whether the former limitation period could be extended, the court held that the doctrine of special circumstances was applicable and s. 21 of the new Limitations Act was inapplicable.

[65] I would add one caution in respect of the expression of this point made in Meady, at para. 12, where Feldman J.A. states:

The motion judge applied s. 21(1) of the new Act. However, that section only applies to claims based on acts or omissions that occurred after January 1, 2004, the effective date of the new Act. It does not apply to claims governed by the transition provisions in s. 24.

[66] The last sentence in the above quotation must be read in context. Read in isolation, it suggests that s. 21 cannot apply to claims that predate January 1, 2004, nor to claims governed by the transition provisions in s. 24. A reading of the full judgment, however, shows that what is meant is that for claims based on acts or omissions that occurred before January 1, 2004, if the application of the transition provisions in s. 24 leads to the conclusion that the provisions of the new Limitations Act apply, such provisions -- including s. 21 -- apply. If the application of the transition provisions leads to the conclusion that the claims are governed by the former limitation period, then the former limitation period, including all aspects of the operation of that period, apply.

[67] In the present case, the former limitation period applies. As I have already explained, s. 47 of the former Limitations Act is one aspect of the operation of the former limitation period. Section 47 suspended the running of the limitation period, thus, the appellants have the right to add the new defendants to the first action as the claim against those defendants was not statute-barred. [page378]

Special Circumstances

[68] As the former limitation period applies to the second action, all aspects of that period apply, including the ability to extend the limitation period if there are special circumstances: see Meady, at para. 22. However, as the relevant limitation period has not expired, it is unnecessary to decide whether the motion judge failed to properly consider the existence of special circumstances.

Disposition

[69] Accordingly, I would set aside the Order and order that the first and second actions be consolidated. I would order costs of the appeal to the appellants fixed at $30,000. They are entitled to the costs of the motions below, as well, which I would fix at $40,000. Both sums are inclusive of disbursements and GST.

Appeal allowed.

SCHEDULE "A"

Transition

Definitions

24(1) In this section,

"effective date" means the day on which this Act comes into force;

"former limitation period" means the limitation period that applied in respect of the claim before the coming into force of this Act.

Application

(2) This section applies to claims based on acts or omissions that took place before the effective date and in respect of which no proceeding has been commenced before the effective date.

Former limitation period expired

(3) If the former limitation period expired before the effective date, no proceeding shall be commenced in respect of the claim.

Former limitation period unexpired

(4) If the former limitation period did not expire before the effective date and if no limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, there is no limitation period.

Same

(5) If the former limitation period did not expire before the effective date and if a limitation period under this Act would apply were the claim based [page379] on an act or omission that took place on or after the effective date, the following rules apply:

1. If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date.
2. If the claim was discovered before the effective date, the former limitation period applies.

No former limitation period

(6) If there was no former limitation period and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after the effective date, the following rules apply:

1. If the claim was not discovered before the effective date, this Act applies as if the act or omission had taken place on the effective date.
2. If the claim was discovered before the effective date, there is no limitation period.

Assault and sexual assault

(7) In the case of a claim based on an assault or sexual assault that the defendant committed, knowingly aided or encouraged, or knowingly permitted the defendant's agent or employee to commit, the following rules apply, even if the former limitation period expired before the effective date:

1. If section 10 would apply were the claim based on an assault or sexual assault that took place on or after the effective date, section 10 applies to the claim, with necessary modifications.
2. If no limitation period under this Act would apply were the claim based on a sexual assault that took place on or after the effective date, there is no limitation period.

Agreements

(8) This section is subject to any agreement to vary or exclude a limitation period that was made before the day this Act comes into force.

Notes

Note 1: The motion also sought to have Jennifer appointed as Robert's litigation guardian.

Note 2: Section 17 of the Health Disciplines Act reads as follows:

17. No duly registered member of a College is liable to any action arising out of negligence or malpractice in respect of professional services requested or rendered unless such action is commenced within one year from the date when the person commencing the action knew or ought to have known the fact or facts upon which the person alleges negligence or malpractice.

Note 3: Section 4 of the Regulated Health Professions Act deemed the Health Professions Procedural Code, Sch. 2, to be part of the Act. The relevant provision of the Code, since repealed (S.O. 2002, c. 24, Sch. B, s. 25), provided:

89(1) No person who is or was a member is liable to any action arising out of negligence or malpractice in respect of professional services requested or rendered by the person unless the action is commenced within one year after the date when the person commencing the action knew or ought to have known the fact or facts upon which the negligence or malpractice is alleged.

Note 4: Section 47 of the former Limitations Act reads as follows:

47. Where a person entitled to bring an action mentioned in section 45 or 46 is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such a person became of full age or of sound mind.

Note 5: Hare v. Hare (2006), 2006 41650 (ON CA), 83 O.R. (3d) 766, [2006] O.J. No. 4955 (C.A.), at para. 13.

Note 6: Hare, at para. 15.

Note 7: At para. 19.

Note 8: At paras. 26 and following.

Note 9: Gustavson Drilling (1964) Ltd. v. M.N.R., 1975 4 (SCC), [1977] 1 S.C.R. 271, [1975] S.C.J. No. 116, at p. 279 S.C.R. As the Supreme Court of Canada cautioned in Epiciers Unis Métro- Richelieu Inc., division "Econogros" v. Collin, 2004 SCC 59, [2004] 3 S.C.R. 257, [2004] S.C.J. No. 55, at paras. 46-48, the principles of retroactivity and retrospectivity must not be confused with one another. A statute has retroactive application when it operates backward to change the law from what it was before the statute came into effect. A statute has retrospective application when it operates in a forward fashion to attach new legal consequences to an event that took place before the statute was enacted.

Note 10: Hare, at para. 18.

Note 11: Both parties concede this.

Note 12: [Rothwell], at p. 268 D.L.R., he offered an additional rationale based on the wording of the relevant rule in the Rules of Civil Procedure. However, that analysis is not germane to the matters in issue in this appeal.

Note 13: Joseph v. Paramount Canada's Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401, [2008] O.J. No. 2339 (C.A.), at para. 25.

Note 14: At para. 23. Under the doctrine of special circumstances, the court retained the discretion to relieve against the strict application of limitation periods when considering the addition of new parties.