Court of Appeal for Ontario

Date: 2019-03-07 Docket: C65609

Judges: Feldman, Roberts and Fairburn JJ.A.

Between

Deborah Hopley Plaintiff (Appellant)

and

Health One Physio Inc. and Moshin Abdullah Patel Defendants (Respondent)

Counsel

Jillian Van Allen, for the appellant

Jessica DiFederico, for the respondent

Heard and released orally: March 4, 2019

On appeal from: the order of Justice A. Sosna of the Superior Court of Justice, dated June 5, 2018.

Oral Endorsement

[1] The appellant submits the motion judge erred in dismissing as statute-barred her action in negligence against the defendant, Moshin Abdullah Patel, the physiotherapist who treated her for injuries arising out of a motor vehicle accident. The motion judge determined that she could reasonably have discovered his identity through the exercise of due diligence more than two years prior to the commencement of this action.

[2] The appellant alleges that she was injured by Mr. Patel on August 12, 2011, but that she did not know his correct name. She argues that, under s. 5(2) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch B, the earliest date she could reasonably have discovered his identity was on September 12, 2013, when counsel for Health One Physio Inc. identified him as the physiotherapist who treated her and as an independent contractor. Moreover, she says that her counsel's July 22, 2012 inquiry of Toronto Poly Clinic met the reasonable diligence requirement and that Toronto Poly Clinic's July 25, 2012 response that no one from that clinic treated her on August 12, 2011, was disingenuous and ambiguous.

[3] We are not persuaded by these submissions. We see no error in the motion judge's conclusion that, at a minimum, the appellant could have discovered the identity of Mr. Patel through the exercise of reasonable diligence more than two years before the claim was commenced.

[4] In particular, the motion judge pointed to the information provided in Toronto Poly Clinic's July 25, 2012 letter, that no one from that clinic had treated her on August 12, 2011, as a trigger for the appellant or her counsel to make inquiries as to the identity of the physiotherapist who did treat her. The uncontroverted evidence is that following the July 25th letter, neither the appellant nor her counsel made any further meaningful inquiry to ascertain the identity of the physiotherapist who had treated her.

[5] The motion judge made no error in his conclusions that it was unreasonable for the appellant to take no further steps following the July 25th letter to ascertain the identity of the defendant, Mr. Patel, and that she therefore failed to exercise due diligence.

[6] As a result, the appeal is dismissed.

[7] Costs are to the respondent, fixed in the amount of $10,000, inclusive of disbursements and HST.

K. Feldman J.A.

L.B. Roberts J.A.

Fairburn J.A.