Macksoud, by his Litigation Guardian Macksoud, et al. v. Carroll et al. [Indexed as: Macksoud (Litigation Guardian of) v. Carroll]
104 O.R. (3d) 700
2011 ONCA 108
Court of Appeal for Ontario,
Goudge, Feldman and Watt JJ.A.
February 9, 2011
Limitations -- Discoverability -- Infant plaintiff suffering severe brain injury at birth in May 2001 -- Plaintiffs bringing timely action for damages -- Plaintiffs retaining specialist in neonatal care in 2007 -- Specialist advising counsel for plaintiffs for first time in October 2009 that he had concerns with care infant received while he was transferred to intensive care unit after his birth and while in that unit -- Plaintiffs' motion to add additional defendants who were involved in infant's postnatal care dismissed -- Plaintiffs' appeal allowed -- Motion judge erred in treating issue of whether claim was discovered or discoverable before January 1, 2004 as question of fact to be determined on basis of evidence of counsel for plaintiffs and in failing to consider s. 5(2) of Limitations Act, 2002 -- Proposed new claims discoverable before January 1, 2004 -- Paragraph 2 of s. 24(5) of Act applying and making former limitation period applicable -- Proposed new claims not statute-barred -- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 5(2), 24(5).
The infant plaintiff suffered severe brain injury at birth in May 2001. The plaintiffs brought a timely action for damages against a number of health practitioners. Counsel for the plaintiffs retained an expert in neonatal care in March 2007. [page701] That expert advised counsel for the first time in October 2009 that he had concerns with the care the infant received while being transferred to a neonatal intensive care unit in another hospital and while in that unit. Counsel brought a motion to add claims against a number of additional defendants who were involved in the infant's postnatal care. The motion judge applied s. 24(5) of the Limitations Act, 2002 and found that the former limitation period did not apply as the claim was not discovered or discoverable before January 1, 2004. As a result, the new two-year limitation period applied and ran from January 1, 2004. The trial judge found that the claim was discoverable, at the latest, six months after March 2007, and was statute-barred two years after that. The plaintiffs appealed.
Held, the appeal should be allowed.
The motion judge erred in treating the question of whether the claim was discovered or discoverable before January 1, 2004 as a question of fact to be determined based primarily on the evidence of counsel for the plaintiffs as to what he did and did not do, without considering [s. 5(2)](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24