Rumsam v. Pakes

[Indexed as: Rumsam v. Pakes]

Ontario Reports

Court of Appeal for Ontario

Doherty, Harvison Young and Thorburn JJ.A.

September 24, 2019

148 O.R. (3d) 388 | 2019 ONCA 748

Case Summary

Limitations — Discoverability — Reasonable diligence

Plaintiff suing clinic and doctor who treated her for wrist injury for negligence in failing to advise her that follow-up x-ray was required. Plaintiff discovering by August 2013 at latest that x-ray report that recommended follow-up x-ray was reviewed by unidentified clinic doctor and not by defendant. Plaintiff moving to add that doctor as defendant in January 2017. Motion judge erring in granting motion. Plaintiff not exercising reasonable diligence after discovering claim against unidentified doctor as she took no steps to determine doctor's identity for one year.

The plaintiff attended an urgent care clinic with a wrist injury in July 2007. She was assessed by Dr. P, who ordered an x-ray. Later that month, the clinic received a mailed copy of the x-ray report, which recommended a follow-up x-ray. That recommendation was not communicated to the plaintiff. Her pain worsened, and she required two surgeries. She reached the age of majority in June 2010. In May 2012, she commenced an action against the clinic and Dr. P claiming damages for negligence in failing to advise her of the recommendation for a follow-up x-ray. By August 29, 2013 at the latest, the plaintiff was aware that the x-ray report had been reviewed by an unidentified clinic doctor, and not by Dr. P. In January 2017, she moved to add Dr. K as a defendant on the basis that Dr. K had reviewed the x-ray report and had failed to advise and treat her. The motion judge found that the claim against Dr. K was not statute-barred and granted the motion. The defendants appealed.

Held, the appeal should be allowed.

The presumptive limitation period did not begin to run until the plaintiff turned 18 in June 2010, and would have expired in June 2012, but for the discoverability principle. By August 29, 2013 at the latest, the plaintiff knew that a second clinic doctor was involved in her care; the second clinic doctor knew about her x-ray findings; that doctor did not inform her of the recommendation to undergo a second x-ray; and as a result, she required two surgeries and suffered damages. The only thing she did not know by August 29, 2013 was the name of the second doctor. As of August 29, 2013, she was obliged to exercise reasonable diligence to secure the name of the second doctor in order to comply with s. 5(1)(b) of the Limitation Act, 2002, S.O. 2002, c. 24, Sch. B. She failed to do so, as she did not make any inquiries to determine the identity of the doctor from August 29, 2013, when the limitation period began to run, until Dr. P's examination for discovery in August 2014. Her claim against Dr. K was statute-barred.

Cases Referred To

• Brown v. Wahl (2015), 128 O.R. (3d) 588, 2015 ONCA 778
• Coutanche v. Napoleon Delicatessen (2004), 72 O.R. (3d) 122
• Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33
• Klein v. G4S Secure Solutions (Canada) Ltd., [2016] O.J. No. 2750, 2016 ONSC 1930 (Div. Ct.)
• Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102
• Mark v. Guelph (City) (2010), 104 O.R. (3d) 471, 2010 ONSC 6034
• Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648
• Safai (Litigation guardian of) v. Bruce N. Huntley Contracting Ltd., [2010] O.J. No. 3338, 2010 ONCA 545
• Sloan v. Ultramar Ltd., [2011] O.J. No. 402, 2011 ONCA 91
• Zurba v. Lakeridge Health Corp. (2010), 99 O.R. (3d) 596, 2010 ONSC 318

Statutes Referred To

Limitation Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5

Counsel

Andrew Kalamut and Scott Robinson, for appellants.

Kristian Bonn, for respondent.

Appeal

APPEAL from the order of Abrams J. of the Superior Court of Justice dated January 11, 2018 granting a motion to add a defendant.

Judgment

The judgment of the court was delivered by

THORBURN J.A.:

Overview

[1] Dr. Barry Pakes and Huronia Urgent Care Clinic ("Huronia") appeal from an order made on January 11, 2019. The motion judge granted Ms. Rachel Rumsam's motion to add Dr. Caroline Kargel as a defendant in the underlying action on the ground that the claim against Dr. Kargel was not statute-barred. Dr. Pakes and Huronia claim the motion judge

(a) failed to apply the correct test for discoverability under the Limitation Act, 2002, S.O. 2002, c. 24, Sch. B, s. 5(1) which provides that a claim is discoverable when the plaintiff has or ought to have knowledge of the material facts of the claim, not when the plaintiff discovers potential liability; and

(b) erred in his application of the principle in Sloan v. Ultramar Ltd., [2011] O.J. No. 402, 2011 ONCA 91 that a plaintiff must exercise reasonable diligence to discover a claim after being advised of a "triggering event".

Factual Background

[2] On July 11, 2007, Ms. Rumsam attended Huronia for treatment of a wrist injury. Dr. Pakes assessed her wrist and ordered an x-ray.

[3] Dr. Pakes reviewed the film and pointed out to Ms. Rumsam the indication of a possible hairline fracture of the scaphoid bone. He then discharged her with advice that she immobilize, rest, ice and compress the wrist.

[4] On July 16, 2007, Huronia received a mailed copy of the x-ray report prepared by a radiologist. The report confirmed a "suspected displaced scaphoid fracture" and recommended a follow up x-ray. In the bottom right hand corner, there is handwriting that says "dx scaphoid #" and underneath that notation, "N/A". There is no signature. A physician at Huronia reviewed the report but Ms. Rumsam did not receive a phone call or letter that indicated that further follow up was required.

[5] After the pain in her wrist worsened, Ms. Rumsam visited her family doctor who referred her to an orthopaedic surgeon. She had surgery in April 2008 and again in August 2008.

[6] Ms. Rumsam reached the age of majority on June 4, 2010. She commenced an action in negligence against Dr. Pakes and Huronia on May 3, 2012. She claimed that Dr. Pakes and Huronia failed to advise her that follow up medical consultation was required and failed to notify her of the x-ray which indicated that a follow up x-ray should be done, resulting in the need for further surgeries for which she sought damages.

[7] On December 17, 2012, Huronia and Dr. Pakes filed the statement of defence, which alleged that:

The report [confirming the scaphoid fracture] was reviewed by a physician at the Clinic, who then attempted to contact the Plaintiff at the telephone number provided by the Plaintiff in order to advise her of the findings.

[8] In response to a motion brought by Dr. Pakes and Huronia, Ms. Rumsam served a responding factum dated August 29, 2013. In the factum, Ms. Rumsam makes the following statement:

On July 12 [2007] (the following day), a clinic physician other than Dr. Pake [sic] placed a telephone call to Rachel's home number to advise her about the x-ray findings and the radiologist's recommendation for a follow up x-ray.

(Emphasis added)

[9] During the examination for discovery of Dr. Pakes on August 7, 2014, the radiologist's report was produced. Dr. Pakes interpreted the note "dx scaphoid fracture N/A" to indicate a diagnosis ("dx") of scaphoid fracture, and that the call to the patient was not answered ("N/A"). He was not able to say who wrote the note. Counsel for Dr. Pakes gave an undertaking to advise who wrote the note.

[10] On February 17, 2016, 18 months later, counsel for Dr. Pakes and Huronia complied with the undertaking, advising that Dr. Kargel wrote the note, except for the "N/A".

[11] On November 15, 2016, counsel for Dr. Pakes and Huronia advised Ms. Rumsam's counsel that, contrary to Dr. Pakes' earlier statement, there was no evidence that anyone had ever attempted to call Ms. Rumsam.

[12] On January 18, 2017, Ms. Rumsam moved to add Dr. Kargel as a defendant on the basis that Dr. Kargel reviewed the x-ray report which indicated a potential scaphoid fracture, but she failed to advise and treat her, and this resulted in delayed treatment of the fracture making surgeries necessary.

[13] Dr. Pakes and Huronia opposed the motion to add Dr. Kargel as a defendant, arguing that the claim against Dr. Kargel was statute-barred pursuant to the Limitations Act.

Analysis and Conclusion

A. Relevant Provisions of the Limitations Act

[14] The Limitations Act provides as follows:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

B. The Motion Judge's Decision

[15] The motion judge concluded that the claim against Dr. Kargel was not statute-barred.

[16] At para. 70 of the ruling on motion, he correctly identified s. 5 of the Limitations Act as the relevant codification of discoverability and he recognized that "the Limitations Act imposes a presumptive two-year limitation period during which a plaintiff may commence an action . . . a person with a claim is presumed to have known of that claim on the day the act or omission took place, unless the contrary is proved". (It is agreed that the presumptive limitation period did not begin to run until June 4, 2010, when Ms. Rumsam reached the age of majority.)

[17] He also recognized that a plaintiff has "a positive obligation to exercise reasonable diligence in discovering the material facts upon which her cause of action is founded" as set out in this court's decision in Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648.

[18] The motion judge held, however, that the reference in the statement of defence to the fact that "[t]he report was reviewed by a physician at the Clinic" was not sufficient to alert Ms. Rumsam to a claim against another doctor since Dr. Pakes was himself a "physician at the Clinic" and the appellants "were collectively unable to answer the more important aspect of the notation: who was the author of 'N/A'". The motion judge concluded that:

Query then how a reasonable person with the Plaintiff's abilities and in her circumstances ought to have discovered Dr. Kargel's identity within the presumptive limitation period, when it took two physicians, who are presumably intimately aware of the documentary procedures, processes and staff at the Huronia Clinic, 23 months to answer only the most obvious aspect of the notation "dx scaphoid fracture N/A": that she suffered a broken wrist. Yet the same two physicians are unable to identify who it was that failed to communicate with the Plaintiff in respect of the report, if not Dr. Kargel.

[19] He held that it was reasonable to conclude that Ms. Rumsam was unable to identify Dr. Kargel as the physician who wrote the handwritten note and thus, arguably failed to communicate with her until November 15, 2016, when counsel for Dr. Pakes and Huronia complied with the undertaking, advising that no one from the clinic had called Ms. Rumsam. He therefore held that the claim against Dr. Kargel was not statute-barred.

C. Analysis

[20] The test to determine whether the limitation period has expired on a particular set of facts is a question of mixed fact and law which attracts a standard of palpable and overriding error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 36.

[21] Section 5(1)(b) of the Limitations Act provides that a "cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence": Lawless v. Anderson, [2011] O.J. No. 519, 2011 ONCA 102, 276 O.A.C. 75, at para. 22 (emphasis added).

[22] The identity and culpable acts of the wrongdoer must be known or knowable with reasonable diligence: Mark v. Guelph (City) (2010), 104 O.R. (3d) 471, 2010 ONSC 6034 (S.C.J.); and Zurba v. Lakeridge Health Corp. (2010), 99 O.R. (3d) 596, 2010 ONSC 318 (S.C.J.).

[23] However, the law does not require that a prospective plaintiff know the exact extent or type of harm suffered, or the precise cause of the injury: Brown v. Wahl (2015), 128 O.R. (3d) 588, 2015 ONCA 778, at para. 15.

[24] Nor is it necessary to determine which of several persons is responsible. It is enough that there is a possible claim against them. In Coutanche v. Napoleon Delicatessen (2004), 72 O.R. (3d) 122, [2004] O.J. No. 2746 (C.A.), at para. 26, Lane J. for the court held that:

As to the two drivers, Orsini and Palmer, it is clear that all the information about their identities and the statements made to the police, plus the latter's report, were readily available with any degree of diligence, and were actually obtained by solicitor Kirkland, by early 1999. It is not necessary to answer the question of how and why the deceased went to the highway and walked on it in order to decide if there was a cause of action against one or both of these drivers for running him down. Nor was it necessary to determine which driver did it. It is highly likely that only a trial could answer that question. Perfect certainty is not necessary. The reasonable person would have known by the receipt of the police information in early 1999, or at the latest by the time Mrs. Coutanche reviewed the police report in September 1999, that there was a possible claim against these drivers. There is no room on the record before us for the application of discoverability to delay the commencement of the running of the limitation against the drivers for a sufficient period to bring the start of the limitation to February 22, 2000, two years before the commencement of the action.

(Emphasis added)

[25] Moreover, in Safai (Litigation guardian of) v. Bruce N. Huntley Contracting Ltd., [2010] O.J. No. 3338, 2010 ONCA 545, 322 D.L.R. (4th) 1, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 365, Armstrong J.A. for the court clarified that having the precise name of a defendant is not required as long as the name can be ascertained by exercising reasonable diligence [at para. 19]:

On February 17, 2000, Ms. Safai knew that she had fallen and injured her ankle. She knew that she likely had a claim for her injuries against the owner of the property. As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.

(Emphasis added)

[26] The due diligence requirement is not satisfied by waiting for someone else to advise who the correct defendant is: Klein v. G4S Secure Solutions (Canada) Ltd., [2016] O.J. No. 2750, 2016 ONSC 1930 (Div. Ct.), at para. 23.

[27] In this case, on August 29, 2013, Ms. Rumsam advised in writing that:

On July 12 [2007] (the following day), a clinic physician other than Dr. Pake [sic] placed a telephone call to Rachel's home number to advise her about the x-ray findings and the radiologist's recommendation for a follow up x-ray.

(Emphasis added)

[28] As such, at least by that date, Ms. Rumsam knew that

(1) there was a second clinic physician involved in her care;

(2) the second clinic physician knew about her x-ray findings;

(3) that physician did not inform her of the x-ray findings and the recommendation to undergo a second x-ray; and as a result

(4) she required two surgeries and suffered damages.

[29] The only thing Ms. Rumsam did not know by August 29, 2013, was the name of the second clinic physician.

[30] As of August 29, 2013, Ms. Rumsam was obliged to exercise reasonable diligence to secure the name of the second doctor to satisfy the requirement in s. 5(1)(b) of the Limitations Act that a "cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence": Lawless, at para. 22 (emphasis added).

[31] Ms. Rumsam did not make any inquires to determine the author of the note or her involvement in Ms. Rumsam's care from August 29, 2013, when the limitation period began, until Dr. Pakes' examination for discovery on August 7, 2014.

[32] In any event, there is no reason to extend the two-year limitation period beyond August 29, 2015, as Ms. Rumsam has failed to provide evidence that she would not have identified Dr. Kargel earlier had she exercised reasonable diligence after becoming aware of the information by August 29, 2013. On the contrary, Ms. Rumsam did receive the information that identified Dr. Kargel, albeit it took approximately 18 months once the request was made. Even the undertaking regarding who wrote the "N/A" portion of the note was fulfilled within 23 months.

D. Summary of Conclusions

[33] In conclusion:

(1) A claim must be brought within two years of a claim being "discovered".

(2) A claim is discovered when the claimant first knew the injury occurred, that it was caused by an act or omission, that the act or omission was caused by the person against whom the claim is made, and that there was loss.

(3) The injury was sustained on July 11, 2007, so normally the limitation period would have expired on July 11, 2009.

(4) Given that Ms. Rumsam did not turn 18 until June 4, 2010, the presumptive limitation period did not begin to run until that date.

(5) The limitation period would have expired on June 4, 2012, but for the discoverability principle.

(6) By August 29, 2013 at the latest, Ms. Rumsam knew all of the material facts except the name of the "second clinic physician" in question.

(7) By August 29, 2013 at the latest, she was required to exercise reasonable diligence to get the name within the two-year period as she knew she likely had a claim against this person for her injuries, and August 29, 2013 was "the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to" as set out in s. 5(1)(b) of the Limitations Act.

(8) The onus to prove reasonable diligence is on Ms. Rumsam.

(9) She failed to exercise reasonable diligence as no steps were taken for at least a year.

(10) As such, as the court held in Safai, there is no basis to extend the limitation period for more than two years as, from August 29, 2013, Ms. Rumsam knew of the likely claims and was in a position to ascertain the name by reasonable diligence.

[34] There was a palpable and overriding error in the motion judge's finding of mixed fact and law as

(a) he did not address the fact that as of August 29, 2013, in her own materials, Ms. Rumsam provided evidence that she had knowledge of the material facts of the claim other than the name of the second clinic doctor;

(b) he erred in his application of s. 5(1)(b) of the Limitations Act, as he did not address the fact that Ms. Rumsam had an obligation to exercise reasonable diligence to obtain the name as of August 29, 2013 at the latest; and

(c) he did not address the fact that as of August 29, 2013, Ms. Rumsam failed to exercise reasonable diligence to obtain Dr. Kargel's name.

[35] For these reasons, the appeal is granted. On the consent of both parties, costs of this appeal to Dr. Pakes and Huronia in the amount of $15,000.

Appeal Allowed

End of Document