COURT OF APPEAL FOR ONTARIO

CITATION: Liu v. Wong, 2016 ONCA 366

DATE: 20160512

DOCKET: C61371

Blair, MacFarland and Lauwers JJ.A.

BETWEEN

Songyuan Liu

Plaintiff/Appellant

and

Dr. Stephen Sik-Hong Wong and The College of Physicians and Surgeons of Ontario

Defendants/Respondents

Songyan Liu, in person

Cynthia Kuehl and Stephen Ronan, for the respondent Dr. Wong

Heard and released orally: May 9, 2016

On appeal from the order of Justice J.F. Diamond of the Superior Court of Justice, dated October 26, 2015.

ENDORSEMENT

[1] Mr. Liu seeks to set aside the summary judgment granted by Diamond J. dated October 26, 2015, dismissing his medical malpractice action against the defendant Dr. Wong. He argues that the motion judge erred in holding that:

(i) his action was statute barred by a 2-year limitation period provided for in the Limitations Act, 2002, S.O. 2002, c.24, Sched. B, s.4; and

(ii) this was not one of “the clearest of cases” in which no expert’s report is required to support the plaintiff’s malpractice allegations.

[2] Mr. Liu sustained a serious knee injury in motor vehicle accident on August 25, 2011. The next day, he had surgery to repair the knee – involving the insertion of 19 staples. Approximately two weeks later, the staples were removed by his then family doctor, Dr. Wong. Mr. Liu asserts that Dr. Wong did a poor job of removing the staples, breaking one of them in the process, causing him to suffer great pain and bleeding, and resulting in his knee becoming permanently injured.

[3] About a year later, on October 9, 2012, Mr. Liu was assessed by a different doctor at the behest of the lawyer representing him in his tort claim arising out of the accident. On October 19, 2012, that doctor delivered his assessment concluding that Mr. Liu’s knee was permanently injured and “cannot return to normal”. The doctor was not asked to, and did not provide an opinion with respect to any injury that may have arisen as a result of the removal of the staples.

[4] On October 9, 2014 – more than three years after the removal of the staples and a follow up appointment with another doctor, Mr. Liu commenced this action for negligence against Dr. Wong.

Discussion

[5] Although Mr. Liu has worked very hard on this matter, and supplied us with many authorities dealing with limitation periods and requirements for expert reports in medical malpractice cases, we do not agree that the motion judge erred in coming to either conclusions referred to above.

The Limitation Period Defence

[6] Section 4 of the Limitations Act, 2002 provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered”. Section 5(1) sets out the circumstances in which a claim will be taken to have been “discovered”. Section 5(2) provides that the claimant is presumed to know the matters giving rise to discoverability – unless the contrary is shown –“on the day the act or omission on which the claim is based took place”.

[7] Mr. Liu claims that he did not know he had a cause of action – a claim – until he received the doctor’s report following the tort claim assessment respecting the car accident in which he first injured his knee, on October 19, 2012. The report did not address any injury related to his treatment by Dr. Wong. However, the law is quite well established that it is knowledge of the material facts necessary to support the cause of action that triggers the commencement of the litigation period. Knowledge of the extent of the damages is not necessary. As the Supreme Court of Canada has said in Peixero v. Haberman, [1997] 3 S.C.R [Page 557], at para. 18:

[O]nce the plaintiff knows that some damage has occurred and has identified the torfeasor, the cause of action has accrued. Neither the extent of damage nor the type of damage need be known. To hold otherwise would inject too much uncertainty in the cases where the full scope of the damages may not be ascertained for an extended time beyond the general limitation period.

[8] In Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, at para 32, this Court affirmed these principles in stating that “a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered by the plaintiff by the exercise of reasonable diligence.”

[9] This is precisely the analysis the motion judge carried out here. On Mr. Liu’s own evidence, it is clear that he was fully aware that he had problems with his knee immediately following – if not during – the removal of the staples by Dr. Wong in September 2012. He says he thought that Dr. Wong had “botched the job”, that he experienced sharp pain and called an ambulance later that same evening. He told the attending physician during a follow-up appointment on September 16, that Dr. Wong had caused the injury to his knee.

[10] Mr. Liu relies on jurisprudence relating to the concept of discoverability in cases governed by the Insurance Act where some statutory threshold or requirement must be met before an action can be commenced. There are no such conditions precedent or thresholds to be met in a claim for negligence against a doctor. Those authorities do not assist Mr. Liu, in our opinion.

[11] Nor do we think the decision of this court in Brown v. Baum 2016 ONCA 325 – referred to us by Mr. Liu this morning – assists. That case featured continuing treatment by the defendant physician in circumstances where the plaintiff could not have known that it was legally appropriate to sue her doctor until efforts to correct the problem had ended. Mr. Liu’s case does not fall under that category.

[12] Accordingly, the motion judge was correct in dismissing the claim on the basis that it was statute barred.

No Expert Opinion

[13] While it is strictly unnecessary to deal with the issue concerning Mr. Liu’s lack of an expert opinion in view of the foregoing, we also agree with the disposition of the motion judge in that regard.

[14] Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of an expert evidence in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

[15] We agree with the motion judge that this is not one of those “clearest of cases”. Contrary to Mr. Liu’s view, the complex issues of liability which concerned the application of clinical and medicals skills cannot be determined by looking at what he refers to as a simple “chain of evidence”.

Disposition

[16] The appeal is accordingly dismissed.

[17] Costs to the respondents fixed in the amount of $3467.74, all inclusive.

“R.A. Blair J.A.”

“J. MacFarland J.A.”

“P. Lauwers J.A.”