Dale v. Frank et al. Gladkowski v. Frank et al. Lesak v. Frank et al. Pettit v. Frank et al. Poff v. Frank et al.
[Indexed as: Dale v. Frank]
Ontario Reports
Court of Appeal for Ontario
Strathy C.J.O., MacPherson and Hourigan JJ.A.
January 17, 2017
136 O.R. (3d) 315 | 2017 ONCA 32
Case Summary
Limitations — Discoverability — Subsections 5(1)(a)(ii) and (iii) of Limitations Act not requiring plaintiff to know that act or omission was culpable in order for claim to be discovered — Limitation period not restarted by discovery of new fact unrelated to act or omission on which claim is based — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5(1)(a)(ii), (iii).
Between September 2012 and August 2013, the plaintiffs commenced actions for medical negligence and breach of fiduciary duty. The actions were not commenced before the second anniversary of the medical procedures that caused the plaintiffs' injuries. The defendants moved for summary judgment dismissing the actions as statute-barred. The plaintiffs relied on the discoverability principle. The motion judge granted the summary judgment motions. The plaintiffs appealed.
Held, the appeals should be dismissed.
The motion judge correctly held that s. 5(1)(a)(ii) and (iii) of the Limitations Act, 2002 do not require a plaintiff to have knowledge that an act or omission causing injury is culpable in order for a claim to be discovered.
The plaintiffs' argument that the motion judge erred by ignoring their breach of fiduciary claims was without merit. The breach of fiduciary duty claims were not stand-alone claims, but rather were explicitly linked to and virtually identical with the negligence claims. They did not introduce a different analysis into the limitation period issue.
A press release by counsel for the plaintiffs in November 2011 indicating that the defendants were being sued by other patients for medical negligence and that a complaint had been filed with the College of Physicians and Surgeons had no effect on the running of the limitation period. The discovery of a new fact, unrelated to the specific medical procedure provided by a specific doctor to a specific patient, does not restart the limitation period.
Cases Referred To
- Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291
- Investment Administration Solution Inc. v. Silver Gold Glatt & Grosman LLP (2011), 107 O.R. (3d) 795, 2011 ONCA 658 (Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 543)
- Kowal v. Shyiak, [2012] O.J. No. 3420, 2012 ONCA 512, 296 O.A.C. 352
- Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 81 C.C.L.T. (3d) 220
Statutes Referred To
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 5(1)(a), (ii), (iii), (iv)
APPEALS
From the summary judgments of Gorman J., [2016] O.J. No. 2661, 2016 ONSC 3211 (S.C.J.) dismissing actions.
Counsel:
Joni Dobson and Danielle Douek, for appellants.
Carolyn Brandow and Jacob Damstra, for respondents.
Decision
[1] Background
The appellants were patients of the respondent Dr. Cathy Frank, a medical doctor who carried on a practice as an obstetrician and gynecologist at St. Thomas Elgin General Hospital. Between September 2012 and August 2013, all of the appellants, in separate actions, brought claims against Dr. Frank and related medical parties, personal and institutional, for negligence and breach of fiduciary duty. The essential claim was that Dr. Frank performed various medical procedures below the standard of care, thus injuring the appellants.
[2] Motion for Summary Judgment
The respondents brought motions for summary judgment on the basis that all of the actions were brought outside the relevant two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the "Act").
[3] Discoverability Argument
The appellants conceded that they had not commenced their proceedings before the second anniversary of the medical procedures that had caused their injuries. However, they relied on the principle of discoverability to resist the motions for summary judgment. Counsel for the appellants, Legate & Associates LLP, had issued a press release on November 4, 2011 indicating that the respondents were being sued by other patients for medical negligence and that a complaint against the respondents had been filed with the College of Physicians and Surgeons.
[4] Motion Judge's Decision
The motion judge granted the motions for summary judgment. She reviewed the facts relating to each appellant and in every case concluded that, "[b]ased on the objective standard of assessing due diligence, the Plaintiffs have not demonstrated that they acted with reasonable diligence to discover their claims".
[5] Appeal
The appellants appeal from the motion judge's decision.
[6] First Ground of Appeal: Knowledge of Culpability
The appellants contend that the motion judge erred in holding that s. 5(1)(a)(ii) and (iii) of the Act do not require a plaintiff to have knowledge that an act or omission causing injury is wrongful for a claim to be discovered. To discover a claim, say the appellants, a plaintiff must know that the acts or omissions in question are culpable ones.
We do not accept this submission. In our view, the motion judge was correct to hold that a plaintiff need not know that a defendant's act or omission was culpable in order for the loss it causes to be discovered. To require a plaintiff to know with certainty that her injuries were caused by the fault of the defendant would require her to have come to a legal conclusion as to the defendant's liability to her. This is too high a bar for a plaintiff to have to meet: see Kowal v. Shyiak, [2012] O.J. No. 3420, 2012 ONCA 512, 296 O.A.C. 352, at para. 18. The proper test, as applied by the motion judge, is Rouleau J.A.'s formulation in Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75, at paras. 23 and 28:
Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been "discovered", and the limitation begins to run: see Soper v. Southcott (1998), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 132 O.A.C. 304 (C.A.).
[W]hat a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in.
(Emphasis in original)
[7] Second Ground of Appeal: Section 5(1)(a)(iv)
The appellants submit that the motion judge erred by failing to consider the test for discoverability in s. 5(1)(a)(iv) of the Act.
We are not persuaded by this submission. Although the motion judge did not undertake a distinct analysis under this provision, her conclusion that each of the appellants knew or ought to have known of the other elements in s. 5(1)(a) was sufficient to infer that she also concluded that the appellants knew or ought to have known that a proceeding would be an appropriate means to seek a remedy for their losses even before the 2011 press release about Dr. Frank.
[8] Third Ground of Appeal: Breach of Fiduciary Duty Claims
The appellants assert that the motion judge focused exclusively on the respondent's negligence claims against them and ignored their breach of fiduciary duty claims, especially against Dr. Frank.
We disagree. The essence of the claims against the respondents is negligence. In the various statements of claim, the pleaded particulars grounding the negligence and fiduciary duty claims are explicitly linked and virtually identical. The breach of fiduciary duty claims are not stand-alone claims and, therefore, do not introduce a different analysis into the limitation period issue.
[9] Fourth Ground of Appeal: The November 2011 Press Release
In the end, the appellant's core submission is that the November 2011 press release by Legate & Associates LLP was a game-changer on the issue of discoverability.
We do not accept this submission. The discovery of a new fact, unrelated to the specific medical procedure provided by a specific doctor to a specific patient, does not restart the limitation period: see Investment Administration Solution Inc. v. Silver Gold Glatt & Grosman LLP (2011), 107 O.R. (3d) 795, [2011] O.J. No. 4665, 2011 ONCA 658, at paras. 14-15, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 543.
[10] Costs Appeal
Finally, the appellants seek leave to appeal the motion judge's costs award of approximately $78,000 (for five summary judgment motions and five actions).
The respondents sought cumulative costs of approximately $117,000 on a partial indemnity basis. Although the motion judge's costs endorsements did not explain precisely how she calculated the costs in each case, she made reference to the applicable authorities and we see no basis for interfering with this discretionary order. The appellants' costs position on the summary judgment motions was almost identical to the respondents' position and the motion judge made an award about one-third below the amount sought by the respondents. We cannot say that the costs award was outside the reasonable expectations of the parties: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291.
[11] Disposition
The appeals are dismissed. Leave to appeal costs is granted, but the costs appeals are dismissed. The respondents are entitled to their costs of the appeals fixed at $10,000 (in total), inclusive of disbursements and HST.
Appeals dismissed.
End of Document
