Court File and Parties

Citation: Dhaliwal v. Lindsay, 2010 ONCA 493

Date: 2010-07-09

Docket: C51341

Court of Appeal for Ontario

Before: MacPherson, Cronk and Karakatsanis JJ.A.

Between:

Gurbaksh Kaur Dhaliwal, Devinder Kaur Dhaliwal, Harcharan Singh Dhaliwal, Gurmeet Singh Dhaliwal, and Jagtar Singh Dhaliwal Plaintiffs (Appellants)

and

David Ross Lindsay, Richard Steven Hart, Lloyd Colin Smith, Athanasios Harmantas, Jamie Stephen Cyriac and St. Joseph’s Health Centre Defendants (Respondents)

Counsel:

Susan Chapman, for the appellants

David Leonard and Keary F. Grace, for the respondents

Heard and released orally: July 7, 2010

On appeal from the summary judgment of Justice Alison Harvison Young of the Superior Court of Justice, dated November 2, 2009.

Endorsement

[1] The appellants appeal from the order of Harvison Young J. granting summary judgment to the respondents and dismissing the appellants’ action in a medical malpractice case on the basis of a two-year limitation period in s. 4 of the Limitation Act.

[2] The appellants contend that the motion judge erred by conflating the equitable principle of fraudulent concealment with the distinct doctrine of discoverability.

[3] We do not accept this submission. In our view, the motion judge’s analysis of the intersection of these two principles in this case was entirely consistent with the current governing case law, including M.(K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6 at paras. 58-61, Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335 at para. 115, and Giroux Estate v. Trillium Health Centre (2005), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341 (C.A.), at para. 28.

[4] The possibility of a cause of action against the respondents with respect to Mrs. Dhaliwal’s treatment was discoverable when their counsel received the OHIP reports on December 7, 2005. Between that date and filing their statement of claim 28 months later on April 24, 2008, they did nothing, on the basis of the record before the motion judge, to investigate this potential cause of action. In these circumstances, the motion judge was correct to conclude that s. 4 of the Limitation Act applied.

[5] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $5000 inclusive of disbursements and GST, if sought.

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”

“Karakatsanis J.A.”