COURT FILE NO.: 06-CV-310993
DATE: 20120306
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: ESTHER MARCOVITCH , Plaintiff/Respondent
AND:
Dr. peter john Kertes and THE SUNNYBROOK AND WOMEN'S COLLEGE HEALTH SCIENCES CENTRE, Defendants
AND:
THE SUNNYBROOK HOSPITAL UNIVERSITY OF TORONTO CLINIC, Non-Party/Appellant
BEFORE: Stinson J.
COUNSEL:
Derrick M. Fulton, for the Plaintiff/Respondent, Esther Marcovitch
Christopher Wirth and Justin Safayeni , for the Appellant, The Sunnybrook Hospital University of Toronto Clinic
No one for the defendants Kertes and The Sunnybrook and Women's College Health Sciences Centre
HEARD: February 1, 2012
On appeal from the decision of Master Hawkins dated June 21, 2011
ENDORSEMENT
[ 1 ] This is an appeal by The Sunnybrook Hospital University of Toronto Clinic ("SHUTC") from the order of Master Hawkins dated June 21, 2011 in which he granted the plaintiff/respondent Esther Marcovitch leave to amend her notice of action and statement of claim to add SHUTC as a defendant to this medical malpractice action, while granting SHUTC leave to raise a limitation defence in its statement of defence. The Master granted leave to amend to add SHUTC as a defendant despite a two year limitation period having prima facie expired, because he concluded that the plaintiff and her lawyer had shown sufficient evidence of due diligence to grant leave to amend on terms.
[ 2 ] The appellant submits that in doing so the Master erred in his application of the discoverability principle and, specifically, by failing to conclude that the limitation period started to run upon delivery of the statement of defence and cross-claim of the defendant Sunnybrook and Women's College Health Sciences Centre (the "Hospital") in February 2007. In its defence and cross-claim, the Hospital pleaded that the medical procedure in question had been performed at a private clinic located in the Hospital. In the alternative, the appellant submits that the Master erred in failing to find that the limitation period started to run on October 15, 2007, when counsel for the Hospital wrote to the plaintiff's lawyer again raising the issue of the private clinic.
[ 3 ] The appellant submits that either of these events was a so-called "triggering event" that commenced the running of the two year limitation period. Since the motion to amend the statement of claim to add SHUTC as a co-defendant was not served until October 27, 2009, the appellant argues that the limitation period had expired. The appellant further submits that the Master erred by not holding the plaintiff to the due diligence standard and the requirement of a reasonable explanation on proper evidence as to why due diligence could not produce the identity of SHUTC.
factual background
[ 4 ] The medical procedure that is the subject of this malpractice action took place on April 15, 2004. It was performed in an ophthalmology clinic that is located within a building that is part of the Hospital complex. The position of the Hospital is that it has no responsibility for the malpractice claim, since it was performed by the defendant doctor in a private clinic that was operated in the Hospital premises pursuant to a lease. The evidence of the plaintiff is that she was unaware of the existence of SHUTC and had no reason to believe that she was being treated in a private clinic at any time, until she was advised of this fact by her lawyer in January 2009.
[ 5 ] This action was commenced on May 8, 2006, more than two years after the date of the plaintiff's procedure. The initial defendants were Dr. Kertes and the Hospital. In his statement of defence and cross-claim, delivered in October 2006, Dr. Kertes made passing references to "his clinic" at the Hospital but made no express reference to the existence of SHUTC as a separate legal entity. Dr. Kertes denied liability and, without specifying any grounds for doing so, asserted a cross-claim against the Hospital.
[ 6 ] The defence and cross-claim of the Hospital was delivered on February 27, 2007. It disputed liability and asserted that Dr. Kertes was an independent medical practitioner for whom the Hospital is not responsible in law. The pleading went on to make the following specific allegations:
On March 25, 2004, Ms. Marcovitch attended Dr. Kertes' private clinic which is located at the Hospital and had a consultation with Dr. Kertes.
On April 7 and 15, 2004, Ms. Marcovitch re-attended Dr. Kertes' clinic for further consultations and treatment.
At all material times, Ms. Marcovitch's care and treatment was provided in the private clinic of and by or under the direction of an independent medical practitioners [sic] with privileges at the hospital and for whom the Hospital is not responsible in law.
The Hospital states that Ms. Marcovitch's nursing care was at all material times provided by a nurse employed by Dr. Kertes who was not an employee of the Hospital.
[ 7 ] Following delivery of the Hospital's defence and cross-claim, no steps were taken in the proceeding for many months. In a letter dated October 15, 2007, counsel for the Hospital wrote to the plaintiff's lawyer (who is not counsel on this motion) stating, in part, as follows:
As you know, we are of the firm view that this matter should be dismissed as against the Hospital, as the alleged incident which forms the basis for the claim took place at a private clinic at the Hospital. The nurse involved in the procedure was not a Hospital employee, but rather employed privately by the defendant physician, and as such the Hospital would not be found vicariously liable for her actions.
[ 8 ] Some five months later, on March 17, 2008, having had no response to the October 15, 2007 letter, counsel for the Hospital left a voice mail message at the office of the plaintiff's lawyer, following up on the letter and enquiring as to the status of the plaintiff's claim against the Hospital. No response was received to the voice mail message. As a result, on April 14, 2008, counsel for the Hospital wrote a follow-up letter to the plaintiff's lawyer to determine whether the plaintiff intended to pursue her claim against the Hospital. That letter stated in full as follows:
I write further to my letter dated October 15, 2007, and my phone call to your office of March 17, 2008, both of which have gone unanswered, to enquire as to the status of this action.
Do you intend to continue this action as against the Hospital? If so, have examinations for discovery been scheduled, or taken place?
Please advise.
Once again, no reply was forthcoming from the plaintiff's lawyer.
[ 9 ] On July 15, 2008, counsel for the Hospital wrote yet another follow-up letter to the plaintiff's lawyer reiterating the same message as in her earlier letters and voice mail. Again no response was received.
[ 10 ] On August 11, 2008, having still not received any response from the plaintiff's lawyer, counsel for the Hospital made a further follow-up effort by leaving a telephone message for another lawyer in the same office. That lawyer did respond, marking the first time that anyone at the office of the plaintiff's lawyer had contacted anyone at the office of counsel for the Hospital in response to their multiple inquiries. On August 15, 2008, that lawyer sent a letter to counsel for the Hospital requesting information about the "name of the private clinic to which you refer in your letter" and details regarding the management of the clinic.
[ 11 ] By letter dated September 4, 2008, counsel for the Hospital responded, in part, as follows:
In response to your letter dated August 15, 2008, we have received clarification from our client regarding the management and operation of the clinic located at Sunnybrook Hospital.
The clinic is called the Opthamology [sic] Clinic.
It is privately managed and all paper work is managed by the "Academic Clinicians Management Services" ("ACMS"). Staff members employed within the clinic are hired on an independent basis.
The nurse who participated in the procedure was employed by the Hospital on a causal basis until November 12, 2003. She was not a Hospital employee on the date of the alleged incident.
[Emphasis in original.]
[ 12 ] ACMS was the business name under which the clinic operated. It was not the registered legal name of the enterprise. Ultimately, the plaintiff's lawyer was able to determine the correct legal name of the private clinic at the Hospital (the Sunnybrook Hospital University of Toronto Clinic) through a simple business name and corporate profile search.
[ 13 ] There were no further communications from the plaintiff's lawyer to counsel for the Hospital in response to the September 2008 letter. The record contains no evidence that the September 2008 letter (or any of the previous letters) prompted the plaintiff's lawyer to make any enquiries regarding the identity of the private clinic apart from the communications in mid-August 2008. Instead, the plaintiff's lawyer proceeded to examinations for discovery that were held commencing January 13, 2009. On January 14, 2009, the Hospital served the plaintiff with its document brief and affidavit of documents and the examination for discovery of a representative of the Hospital took place. The plaintiff asserts that this was the point at which she first became aware that the appellant was, in fact, the "private clinic".
[ 14 ] On October 27, 2009, more than nine months after the examination for discovery of the Hospital representative, the plaintiff served a notice of motion seeking to amend her notice of action and statement of claim to add as defendants, among others, SHUTC. In reasons released December 23, 2009, that motion was dismissed by Master Hawkins. The Master held that the plaintiff's motion to add SHUTC as the defendant was statute barred because the two year limitation period had expired. He further held that, based on the evidence before him, the motion should be dismissed without prejudice to a second motion to add SHUTC, based on proper material. The plaintiff unsuccessfully appealed the original decision of the Master to the Divisional Court.
[ 15 ] Subsequently, on November 18, 2010, the plaintiff served her current (second) notice of motion for leave to amend her notice of action and statement of claim to add SHUTC as a co-defendant. The second motion was heard on March 16, 2011, again before Master Hawkins. In reasons released June 21, 2011, the Master granted the plaintiff leave to amend her notice of action and statement of claim to add SHUTC as a defendant. The Master further granted SHUTC leave to raise a limitation defence in its statement of defence.
the decision of the master
[ 16 ] The Master held that, in order to defeat the presumptive running of the two year limitation period from the date of the medical procedure, the plaintiff must prove that she "neither knew nor ought to have known that she has a claim against SHUTC and neither knew nor ought to have known the identity of [SHUTC] until some point after October 27, 2007." (The motion before the Master, and the appeal before me, both proceeded on the basis that the date of service of the original notice of motion – October 27, 2009 – should be treated as the date of commencement of proceedings against SHUTC for purposes of determining whether the claim was commenced within the limitation period.)
[ 17 ] The Master framed the issue before him as follows (in para. 10 of his reasons):
In the language of subsection 5(1) of the Limitations Act, 2002 , the issue becomes one of when the plaintiff first knew she had a claim against [SHUTC] or when a reasonable person with the plaintiff’s abilities and in the plaintiff’s circumstances first ought to have known, that the plaintiff had a claim against a natural person or corporation whose identity is known, here [SHUTC].
[ 18 ] The Master referenced the defence and cross-claim served by the Hospital in which Dr. Kertes' private clinic was mentioned (as quoted above). He also mentioned Dr. Kertes' statement of defence, observing that Dr. Kertes' pleading "does not make it clear that 'his clinic' had a legal identity separate and apart from that of the Hospital."
[ 19 ] The Master commented as follows (at paras. 19 and 20):
[19] The material before me includes an affidavit of Jeffrey Strype, lead counsel for the plaintiff. In his affidavit he does not state how he interpreted the Hospital’s statement of defence, and in particular the paragraphs of that pleading quoted above.
[20] In my view, the Hospital’s statement of defence hints at there being an entity (the “private clinic”) with a legal identity separate and apart from that of the Hospital but, read as a whole, it sends a confusing message on this point.
The Master went on to observe that "[a]lthough I have described the Hospital’s statement of defence as confusing, Mr. Strype does not complain that he found it confusing." He went on to note that he received no evidence that receipt of the Hospital's statement of defence prompted the plaintiff's lawyer to conduct searches or make enquiries about the private clinic.
[20] The Master went on to record the next event of significance as being the letter of October 15, 2007. In paras. 29 and 30 of his reasons he stated:
[29] I do not know just when the plaintiff’s lawyers received this letter. Someone has written on the second page of this letter “name of private clinic[,] need representative[,] need to amend claim” and “need details who runs clinic etc”. I do not know by whom or when this note was made.
[30] By the time that note was made, the plaintiff’s lawyers were aware that it was advisable to amend the pleadings by adding the private clinic as a defendant and that they needed more information about the private clinic in order to do so.
(On the argument of the appeal before me, counsel clarified that the handwritten notation on the letter was made by someone within the office of the plaintiff's lawyer, at an unknown time. As a result, the notation should not be treated as having been made in October 2007, since the evidence does not show this one way or the other; it may well have been made following the telephone discussion between the lawyers in August 2008.)
[ 21 ] The Master made no finding whether the October 15, 2007 letter was or was not "confusing" or a "triggering event". He merely observed that the plaintiff's lawyer did not respond to it despite subsequent reminder letters and a telephone message.
[ 22 ] In relation to the September 4, 2008 letter from counsel for the Hospital, the Master observed that the name provided was not the correct legal name of the private clinic, but that he had no evidence that this letter prompted plaintiff's lawyer to conduct any searches with respect to the private clinic, such as a name search. He further noted that nothing further happened until plaintiff's lawyer received the Hospital document brief which contained documents identifying the private clinic, which led the next day to a corporate profile search.
[ 23 ] The Master summarized as follows (at para. 38):
In summary, by January 15, 2009 the plaintiff’s lawyers knew the identity of the private clinic and were in a position to bring a motion to amend the notice of action and statement of claim to add as a defendant [SHUTC] carrying on business as ACMS. Nevertheless, this motion was not brought until October 27, 2009. I do not know why this motion was not brought promptly after January 15, 2009.
[ 24 ] The Master went on to categorize this motion to add a party as falling into the category of those situations where it is unclear whether or not a limitation period had expired when the motion was brought because of the operation of the discoverability principle codified in s. 5(1) of the Limitations Act , 2002, S.O. 2002, c. 24, Sched. B. He went on to conclude as follows (at paras. 51 and 52):
[51] The plaintiff’s lawyers have proffered some evidence of due diligence. They received some information about the clinic that was to my mind confusing, and some information about the clinic that was wrong. They have explained some of the delay. However there were steps they could have taken to clear up the mystery about the private clinic long ago which they did not take. They have not explained all the delay .
[52] For all these reasons, I have come to the conclusion that the plaintiff’s lawyers have shown sufficient evidence of due diligence that I should grant the plaintiff leave to amend the notice of action and statement of claim …. I give [SHUTC] leave to raise a limitation of action defence in its statement of defence. I leave to the trial judge or to the judge hearing any summary judgment motion by [SHUTC] the ultimate decision as to whether that limitation of action defence should succeed.
[Emphasis added.]
issues and analysis
[ 25 ] The issues raised on this appeal are:
(a) What is the proper standard of review of the Master's decision?
(b) Did the Master err by failing to apply the correct legal principles regarding discoverability in order to conclude that the delivery of the Hospital's defence and cross-claim or, in the alternative, the October 15, 2007 letter constituted a triggering event sufficient to begin the running of the limitation period?
(c) Did the Master err by failing to apply the correct legal principles regarding reasonable diligence in order to conclude that the plaintiff had failed to
(i) demonstrate due diligence; and
(ii) provide a reasonable explanation on proper evidence as to why due diligence would not disclose the necessary facts?
(a) Standard of Review
[ 26 ] The appropriate standard of review was summarized by Allen J. in Sloan v. Sauve Heating Ltd. et al. 2010 ONSC 3871 at para. 12 (S.C.J.) as follows:
The principles governing the review of a Master's decision are well established. An appellate court should not interfere with a Master's determination unless the party objecting to the decision can demonstrate there has been an error in principle demonstrated by the reasons of the Master, a lack of jurisdiction or a patent misapprehension of the evidence. The appellate court is justified in interfering where there is an error of law and should only intervene on the Master's factual findings if an unreasonable inference was drawn from the evidence, there was a finding not reasonably supported by the evidence, or there was a failure to appreciate the relevant evidence or relevant evidence was disregarded. The standard of review on a question of fact is palpable and overriding error. Findings of fact must be accepted except where a palpable and overriding [error] is found. [Citations omitted.]
[ 27 ] The appellant submits that the Master failed to appreciate the legal effect of his factual findings by failing to properly apply the principles regarding the discoverability and reasonable diligence to the facts before him. In my view, such questions are matters of law. Accordingly, a correctness standard applies.
(b) Did the Master err by failing to apply the correct legal principles regarding discoverability in order to conclude that the delivery of the Hospital's defence and cross-claim or the October 15, 2007 letter constituted a triggering event sufficient to begin the running of the limitation period?
(c) Did the Master err by failing to apply the correct legal principles regarding reasonable diligence in order to conclude that the plaintiff had failed to
(i) demonstrate due diligence; and
(ii) provide a reasonable explanation on proper evidence as to why due diligence would not disclose the necessary facts?
[ 28 ] I will consider these issues jointly in the analysis that follows.
[ 29 ] A claim cannot be brought after the two year anniversary of the day the person seeking to delay the running of the limitation period first knew or to have known the material facts of their claim. The relevant statutory language is contained in s. 5 of the Limitations Act , 2002, which provides:
- (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).
Subsection 5(2) provides that a person advancing the claim is presumed to have known of the material facts of their claim on the day it occurred. That presumption is rebuttable by the party by means of reliance on the so-called discoverability principle.
[ 30 ] In the present case, the plaintiff's surgery was performed on April 15, 2004. As a result, the presumptive limitation period expired on April 15, 2006, before the action was initially commenced against the doctor and the Hospital. As Allen J. observed in Sloan, supra, (at para. 18):
Subsection 5(2) and the case authorities interpreting that provision require the plaintiff to satisfy the court as to her diligent efforts to discover the identity [of the person sought to be added] during the two year period after the incident and if there is a triggering event after the incident, her efforts during the two year period following that event.
[ 31 ] In Sloan , in dismissing the appeal from the decision of Allen J. setting aside the decision of the Master that had granted leave to add a party, the Court of Appeal said at para. 5 of 2011 ONCA 91 :
While the threshold on a motion to add a party is low, it was not open to the Master on the available evidence to find that the plaintiff had provided a reasonable explanation as to why the proposed defendants were not identifiable and therefore not named as parties prior to the expiry of the limitation period under s. 4 of the Limitations Act, 2002 .
[ 32 ] In the present case, the appellant argues that the plaintiff failed to provide a reasonable explanation as to why the proposed defendant was not identifiable and therefore not named as the party prior to the expiration of the limitation period. The appellant therefore argues that the Master erred in reaching the conclusion that he did. With the greatest respect to the Master, I agree with that submission.
[ 33 ] The present case is analogous to Sloan . In Sloan , the plaintiff sued for damages arising from the negligent delivery of fuel oil. The statement of defence pleaded that the delivery had been made by an unnamed subcontractor. Despite that plea, the plaintiff did not move to add the subcontractor as a co-defendant for some three and a half years. The Master granted that relief. Allen J. reversed that decision and was upheld by the Court of Appeal.
[ 34 ] In the present case, the defence and cross-claim of the Hospital pleaded that the plaintiff's surgery was performed at an unnamed private clinic. That pleading was delivered on February 27, 2007. In his reasons, the Master observed that the pleading of the Hospital sends a confusing message "on the question whether the private clinic was or was not a separate legal entity". With respect, I disagree. In my view, the pleading clearly states that the surgery was performed in a private clinic, and on this basis, the Hospital has no legal responsibility. By means of that allegation, the Hospital "pointed the litigation finger" at another party, thereby putting the plaintiff on notice of the existence of a potential claim against another legal entity.
[ 35 ] Additionally, while the Master (erroneously in my view), concluded that confusion arose from the pleading, the plaintiff's lawyer made no such assertion in his affidavit. Rather, in his affidavit he merely stated as follows:
(9) Paragraph 8 of the statement of defence and cross-claim of the defendant Sunnybrook Hospital stated that the plaintiff's treatment was in a "private clinic".
(10) The name of the said clinic was not mentioned nor provided at this time.
Thus, the evidence from the lawyer who had carriage of the matter contained no suggestion of confusion. Rather, the only concern he raised was that the Hospital's pleading did not identify the name of the clinic.
[ 36 ] Despite the foregoing, no efforts were undertaken by plaintiff's lawyer until August 2008 – more than eighteen months later – to determine the name of the clinic, and then only after repeated importuning by counsel for the Hospital. There is no evidence of due diligence by plaintiff's lawyer during that entire period; to the contrary, the evidence indicates complete inaction on the part of the plaintiff's lawyer.
[ 37 ] When information was finally sought and provided in September 2008 (albeit incomplete) no further steps were taken until examinations for discovery were conducted in January 2009.
[ 38 ] By mid-January 2009, the plaintiff's lawyer had production and discovery and was fully aware of the name of the private clinic. This was prior to the two year anniversary of the delivery of the Hospital's defence and cross-claim in which the existence of the private clinic had first been mentioned, and also well prior to the two year anniversary of the October 15, 2007 letter from counsel for the Hospital. Despite this information, however, the plaintiff's lawyer did not initiate the motion to amend until October 27, 2009, more than nine months later. No reason was given by plaintiff's lawyer for this additional delay.
[ 39 ] As the foregoing analysis indicates, in my view, the delivery of the Hospital's defence and cross-claim in which it disclosed the existence of the private clinic was a so-called "triggering event" that put the plaintiff on notice of the existence of another legal entity against whom she had a potential cause of action. Having received that knowledge, in order for her stop the running of the two year limitation period from that date forward, she had the burden to demonstrate that, with reasonable diligence, she was unable to determine the identity of the party she needed to add as a co-defendant. Absent proof that, despite such reasonable diligence, she was unable to determine the identity of that party, the limitation period cannot be extended past the two year anniversary date.
[ 40 ] I adopt what was said by the Court of Appeal in Sloan, supra, (at para. 5): in the present case "it was not open to the Master on the available evidence to find that the plaintiff had provided a reasonable explanation as to why the proposed [defendant was] not identifiable and therefore not named as [a party] prior to the expiry of the limitation period …."
[ 41 ] If I am in error with respect to my analysis of the significance of the contents of the defence and cross-claim of the Hospital, and in my conclusion that the delivery of that pleading was a "triggering event", there remains the letter of October 15, 2007. The Master made no comment or finding whether this letter constituted a "triggering event". With respect, in my view, the Master erred by failing to make such a finding.
[ 42 ] Unlike his comments with respect to the pleadings, nowhere in his reasons did the Master conduct an analysis of the significance of the October 15, 2007 letter. He made no finding that the contents of the letter resulted in confusion. Indeed, there is no evidence from the plaintiff's lawyer to suggest any confusion on his part arising from this letter. His only comment in his affidavit was to note that "the name of the 'private clinic' was not provided by the defendant Sunnybrook Hospital." As noted previously, there is no evidence of any efforts by the plaintiff's lawyer to find out anything more about the private clinic until some ten months later, in August 2008. Put another way, the evidence fails to establish that, through the exercise of reasonable diligence, the plaintiff was unable to determine the identity of the proposed defendant during the timeframe.
[ 43 ] The letter of October 15, 2007 clearly raised the issue of the lack of liability on the part of the Hospital by reason of the fact that the treatment was provided in a private clinic. Although SHUTC was not expressly named, there was no ambiguity about the position of the Hospital that, by reason of this fact, liability did not attach to it. Plainly, by means of this letter, the Hospital "pointed the litigation finger" at the private clinic.
[ 44 ] In the face of this triggering event, the plaintiff bore the onus of establishing that she could not, within the succeeding two year period, determine the identity of the correct party to sue. In my view, the Master erred in failing to reach this conclusion. Had he done so, I am confident that he would have dismissed the motion to amend.
[ 45 ] The record demonstrates that it was within the power of the plaintiff to determine the identity of the party she sought to add within two years of the delivery of the statement of defence and counterclaim of the Hospital (February 27, 2007) and certainly within two years following the October 15, 2007 letter. The true legal identity of the private clinic was determined by the plaintiff in January 2009, prior to the two year anniversary of either of the foregoing triggering events. Notwithstanding that information was known by the plaintiff's lawyer prior to the end of January 2009, the motion to amend was not brought until October 27, 2009, subsequent to the second anniversary of each of the triggering events. This plainly demonstrates that, by reasonable diligence, the requisite information was discoverable within the two year period, because, in fact, it was.
[ 46 ] In Zapfe v. Barnes (2003), 66 O.R. (3d) 397 (Ont. C.A.), the Court of Appeal stated (at para. 35):
In most cases one would expect to find, as part of a solicitor's affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent.
In this case, the lawyer's affidavit contains a paucity of information about the efforts made and instead confirms a lack of efforts to pursue the information that was available in any meaningful way.
[ 47 ] In Pepper v. Zellers Inc. , [2006] O.J. No. 5042 (Ont. C.A.), the Court of Appeal noted that in that case the appellant plaintiffs had raised no credibility issue or issue of fact that would merit consideration at a summary judgment motion or a trial. In my view, the same holds true in the present case. It follows that, in my view, the Master erred when he disposed of the matter by granting the plaintiff leave to amend, subject to the right of SHUTC to raise a limitation defence in its statement of defence. It was unnecessary to leave to the trial judge or the judge hearing any summary judgment motion the ultimate decision as to whether the limitation defence should succeed. Having failed to demonstrate due diligence in the wake of both the statement of defence and cross-claim of the Hospital and the October 15, 2007 letter, the plaintiff is not entitled to the benefit of the extension of the limitation period provided by s. 5(1) of the Limitations Act , 2002 .
conclusion and dispostion
[ 48 ] For these reasons, I set aside the Master's order dated June 21, 2011. In its place, I substitute an order dismissing the motion of the plaintiff to add the Sunnybrook Hospital University of Toronto Clinic as a co-defendant.
[ 49 ] In relation to costs, if the parties are unable to agree, I direct the following process:
The appellant shall serve its bills of costs on the plaintiff, accompanied by written submissions within fifteen days of the release of these reasons.
The plaintiff shall serve her response to the appellant within fifteen days thereafter.
The appellant shall serve its reply, if any, within ten days thereafter.
In all cases, the written submissions shall be limited to three pages, plus bills of costs.
I direct that counsel for the appellant shall collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for the appellant will assemble a single package for delivery as described above.
Stinson J.
Date: March 6, 2012