Court of Appeal for Ontario

DATE: 20220308 DOCKET: C69474

van Rensburg, Nordheimer and Harvison Young JJ.A.

BETWEEN

Andrea Theresa Taylor and Andre Coream Mattrasingh Plaintiffs (Appellants)

and

Dr. Lesley A. David, Dr. Joanne E. Collins and Dr. Larry Raley Defendants (Respondents)

Counsel: Ikenna Aniekwe, for the appellants Eric S. Baum, for the respondents

Heard: March 7, 2022 by video conference

On appeal from the order of Justice James F. Diamond of the Superior Court of Justice, dated May 3, 2021, with reasons reported at 2021 ONSC 3264.

Reasons for Decision

[1] Andrea Theresa Taylor and her son, Andre Coream Mattrasingh, appeal from the summary judgment granted by the motion judge which dismissed their action on the basis that it was statute-barred by virtue of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., specifically s. 15 which establishes an ultimate 15‑year limitation period. At the conclusion of the hearing, we dismissed the appeal for reasons to follow. We now provide our reasons.

[2] The background facts may be stated briefly. On or about September 2, 2004, the appellant Taylor underwent jaw surgery performed by Dr. David and Dr. Raley at the Trillium Health Centre. Dr. Collins is the orthodontist who referred Taylor to Dr. David for the surgery.

[3] The appellants seek damages arising from Taylor's surgery which the appellants claim was performed negligently and without Taylor's informed consent. At the time of the surgery, the appellant Mattrasingh was a minor. He did not reach the age of majority until December 2008.

[4] The statement of claim was issued on February 27, 2020, more than 15 years after the surgery. That fact meant that the appellants would have to establish one of the exceptions set out in s. 15(4), which reads:

The limitation period established by subsection (2) does not run during any time in which,

(a) the person with the claim,

(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and

(ii) is not represented by a litigation guardian in relation to the claim;

(b) the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim; or

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

[5] The appellants rely first on s. 15(4)(c) on the basis that the respondents concealed information from them by failing to disclose Taylor’s medical records. The motion judge rejected this contention, as do we. There is no evidence that the appellants ever asked for Taylor’s medical records or took any other steps to obtain them. The appellants’ reliance on various directives from the Royal College of Dental Surgeons of Ontario is misplaced. Assuming that there was any failure by the respondents to provide medical reports or records to other physicians, it would not affect the knowledge of the appellants in terms of whether Taylor had injury, loss or damage. Nor would the suggestion, made on appeal, that Dr. David told Taylor that her pain “was all in her head” (which he denied), without more, amount to a concealment of relevant facts.

[6] The appellants also rely on Taylor’s asserted incapacity under s. 15(4)(a). The motion judge noted that there was no independent medical or psychological evidence to support the assertion of incapacity. At most, Taylor attached some medical records to her affidavit on which she relied for this assertion. The motion judge rejected that evidence as being insufficient to establish incapacity. Again, we agree with the motion judge. If the appellants intended to rely on Taylor’s asserted incapacity as a reason for the failure to institute the action before the expiration of 15 years, they bore the burden of providing sufficient evidence to support that claim. They did not do so.

[7] The appellants submit that the motion judge failed to consider the physical conditions that affected Taylor. We do not accept that criticism. The motion judge referred, more than once, to the “medical or psychological” evidence. The former addresses the physical conditions. In addition, the medical evidence, such as it was, does not explain why Taylor was not physically able to commence a proceeding within the limitation period.

[8] Finally, the appellants attempt to separately support the claim by Mattrasingh for his derivative claim under s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3. The appellants assert that the law that holds that such claims are not independent claims, but rather have their existence tied to the principal claim, is “both wrong and wrongful.”

[9] We do not accept the appellants’ challenge to the nature of dependants’ claims under s. 61(1). The wording of that section is clear. It begins, “If a person is injured or killed by the fault or neglect of another”, then dependants “are entitled to recover their pecuniary loss resulting from the injury or death”. The derivative nature of those claims is established by the clear language of the section. The appellants’ submissions for a contrary interpretation are unpersuasive. It is not for this court to re-write the legislation.

[10] The appellants failed to bring themselves within the exceptions to the 15‑year ultimate limitation period. The claim is statute-barred as found by the motion judge.

[11] It is for these reasons that the appeal was dismissed. The respondents are entitled to their costs of the appeal which we fix at $7,500 inclusive of disbursements and H.S.T.

“K. van Rensburg J.A.”

“I.V.B. Nordheimer J.A.”

“Harvison Young J.A.”