COURT OF APPEAL FOR ONTARIO

CITATION: Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10

DATE: 20160106

DOCKET: C60444

Cronk, Tulloch and van Rensburg JJ.A.

BETWEEN

Sherriene Hawthorne and Povell Tyrell

Plaintiffs/Appellants

and

Markham Stouffville Hospital, York Central Hospital, Dr. Ademilola Oyenubi, Dr. Joanne Lewtas, Dr. Partha Datta, Dr. Andrew Arcand, Dr. Arthur Bookman, Dr. Caroline Geenen, Dr. Solow, Dr. A. Ing, Dr. Lola, Dr. Bansal, Dr. Gernin, Dr. David Weizman, Dr. Larry Grossman, Dr. M. Sugai, Dr. Andre F. Charest, Dr. Aviv S. Gladman, Dr. Allan Kagal, Dr. Seyed Ali Ghafouri, Dr. Prince S. Aujla

Defendants/Respondents

Prakash Pooran, for the appellants

Meredith E. Jones, for the respondents

Heard: January 4, 2016

On appeal from the judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated April 13, 2015.

ENDORSEMENT

[1] The appellants appeal from an order dismissing their action as against the respondents on a summary judgment motion.

[2] The appellants claimed damages for medical malpractice, as a result of the appellant Sherriene Hawthorne’s treatment between October 2009 and March 2010, initially for a urinary tract infection. Ms. Hawthorne asserted that high doses of steroids were administered to her without her consent, which made her slip into a coma and suffer loss of memory and vision, and paralysis. Her son claimed damages under the Family Law Act, R.S.O. 1990, c. F.3. The action against the defendant hospitals was dismissed on consent.

[3] Ms. Hawthorne had commenced three actions in respect of the alleged medical malpractice. The first was initiated in November 2011 by notice of action. There is no evidence as to what happened to this action. The second, commenced in March 2012, also by notice of action, was dismissed as abandoned by the registrar in November 2012. The third action, which was the subject of the summary dismissal, was commenced on October 26, 2012. The appellants were self-represented when they filed their claims, and represented by counsel in responding to the motion for summary judgment.

[4] In the statement of claim in the third action, the appellants pleaded that Ms. Hawthorne became aware of the malpractice when she retrieved her medical records from two of the defendant hospitals in October and November 2011. The respondents brought a motion, among other things, to dismiss the action, relying on the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[5] The motion judge granted the motion on the basis that the statutory presumption in s. 5(2) of the Limitations Act, 2002 applied: that is, that the claim was presumed to have been discovered on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[6] The evidence was that Ms. Hawthorne had been discharged from the hospital in March 2010. The appellants offered no evidence, however, relating to discoverability in response to the motion. There were inconsistencies between the second notice of action and the statement of claim in the third action with respect to the date Ms. Hawthorne claimed to have discovered her claim against these respondents. In the second action, the notice of action pleaded that the claim was discovered when Ms. Hawthorne retrieved her medical records around September 2010 (the pleading stated “2009”, but it is agreed that was a typographical error). In contrast, in their pleading in the third action, the appellants alleged that the records were retrieved in October and November 2011. According to the motion judge, this unexplained inconsistency made the discovery date pleaded in the current action unworthy of belief.

[7] On appeal, the appellants assert that the motion judge erred by failing to give effect to evidence that was available in the motion record, but not referred to in argument. The evidence consists of receipts for payment for medical records by Ms. Hawthorne, dated October 28 and November 1, 2011, which would suggest that that was the time Ms. Hawthorne discovered the act or omission on which the claim was based.

[8] We do not give effect to this argument. The failure of the appellants to respond to the summary judgment motion with evidence to rebut the presumption in s. 5(2) of the Limitations Act, 2002 is fatal. Pleadings are not evidence. The appellants could not rest on the pleading of a timely discovery date in their third action, when confronted by a motion for summary dismissal based on the limitations argument.

[9] The two receipts that were in the record (as part of the respondents’ materials), even if drawn to the attention of the motion judge, without any further evidence or explanation, could not have affected the result. Even if it might be reasonable to conclude that the appellants received medical records on the dates shown in the receipts for payment, this was not sufficient to overcome the statutory presumption. The receipts alone do not advance the appellants’ discoverability argument, in the absence of any explanation by Ms. Hawthorne linking what was in the records to the discovery of her claim.

[10] For these reasons, the appeal is dismissed. The respondents are entitled to their costs of the appeal, if requested, fixed in the amount of $7,000, inclusive of applicable taxes and disbursements.

“E.A. Cronk J.A.”

“M. Tulloch J.A.”

“K. van Rensburg J.A.”