SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 08-CV-362248
MOTION HEARD: December 20, 2011 and May 8, 2012

RE: Kim Viney

v.

John Cameron, John Doe 1, John Doe 2
Jane Doe 1 and Jane Doe 2

BEFORE: Master Thomas Hawkins

COUNSEL:
Brian A. Pickard,
for moving plaintiff
Fax No.: 416-591-0710

Sarah R. Shody
for responding defendant John Cameron
Fax No.: 416-868-0673

No one for John and Jane Doe defendants

REASONS FOR DECISION

[ 1 ] This is a motion by the plaintiff in part for an order setting aside the order of the registrar dated November 5, 2010 dismissing this action for medical malpractice as abandoned. The registrar’s order was made pursuant to subrule 48.15(1).

[ 2 ] Subrule 48.15(1) provides as follows.

(1) The registrar shall make an order dismissing an action as abandoned if the following conditions are satisfied, unless the court orders otherwise:

1. More than 180 days have passed since the date the originating process was issued.

2. None of the following has been filed:

i. A statement of defence.

ii. A notice of intent to defend.

iii. A notice of motion in response to an action, other than a motion challenging the court’s jurisdiction.

3. The action has not been disposed of by final order or judgment.

4. The action has not been set down for trial.

5. The registrar has given 45 days notice in Form 48E that the action will be dismissed as abandoned.

[ 3 ] The defendant Dr. Cameron was served with the notice of action and statement of claim in this action on October 22, 2010, and with a notice of change of lawyer on October 27, 2010. However, he never filed a notice of intent to defend or a statement of defence. As a result, the registrar dismissed this action as abandoned on November 5, 2010.

[ 4 ] The plaintiff brings this motion under subrules 37.14(1) and (2). These subrules provide as follows.

(1) A party or other person who,

(a) is affected by an order obtained on motion without notice;

(b) fails to appear on a motion through accident, mistake or insufficient notice; or

(c) is affected by an order of a registrar,

may move to set aside or vary the order, by a notice of motion that is served forthwith after the order comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or vary the order on such terms as are just.

[ 5 ] The plaintiff is a party affected by an order of a registrar within the meaning of subrule 37.14(1).

[ 6 ] Subrule 37.14(2) confers upon the court a discretion as to whether to set aside the registrar’s dismissal order. If the court does set aside the registrar’s dismissal order, the court may impose such terms as are just.

[ 7 ] In K. Laboratories v. Highland Export Inc., [2010] O.J.No. 3116, 2010 ONSC 4032 , MacLeod M. summarized the jurisprudence on setting aside a registrar’s order dismissing an action. He said the following (at paragraph 4, footnotes omitted).

Several decisions were cited to me in regard to the test for setting aside a registrar’s order. While they are of assistance, the most authoritative pronouncements on the subject are the decisions of the Court of Appeal which has been quite active on the subject in recent years. I summarized this jurisprudence in early May in a decision under the family law rules. See Williams v. Williams 2010 ONSC 2636 . Subsequently the Court of Appeal released yet another decision, Wellwood v. Ontario (Provincial Police) 2010 ONCA 386 . Not all of the factors discussed in those cases are relevant here but for the purpose of completeness, the law on the subject may be summarized as follows:

a. An order dismissing an action for delay made by the Registrar is an order of the court. A party having notice of the order must treat it as valid and move promptly to set it aside. Technical deficiencies do not render the order a nullity.

b. The objective of the court reviewing the Registrar’s order is not to punish a party for technical non compliance with the rules but to determine whether or not it is just to set aside the dismissal order under all of the circumstances.

c. The court should consider the four Reid factors which may be summarized as:

i. explanation of the litigation delay which led to the dismissal notice and order in the first place;

ii. inadvertence in missing the deadline set out in the notice;

iii. promptly moving to set aside the order once it comes to the attention of the moving party; and

iv. prejudice or lack of prejudice to the defendant.

d. All of these factors will be important but prejudice will be the key consideration. Prejudice to the defendant may be presumed particularly if time has passed since the order was granted and a limitation period has passed. In the latter case the defendant need not prove prejudice and the onus is on the plaintiff to rebut the presumption.

e. Prejudice to the defendant is not the prejudice inherent in facing the action in the first place but prejudice in reviving the action after it has been dismissed. This could be prejudice caused by delay in the conduct of the action that would itself support dismissal under Rule 24 or it could be prejudice that has arisen post dismissal because of reliance on the finality of the order.

f. In conducting the analysis as to whether or not it is just to relieve against the consequences of the registrar’s order, the court should be mindful that the party who commences litigation bears the primary responsibility under our rules for the progress of the action. Thus the burden is on the plaintiff to explain delay.

g. In weighing the relevant factors, the court should not engage in speculation concerning rights of action against a lawyer or former lawyer and should focus on the rights of the parties rather than on the conduct of counsel.

[ 8 ] In K. Laboratories MacLeod M. referred to a registrar’s order dismissing an action for delay under rule 48.14. Here, the registrar dismissed this action as abandoned under subrule 48.15(1). Nevertheless, the principles which MacLeod M. summarized apply to this motion.

[ 9 ] The reference to the four Reid factors is a reference to the decision of Dash M. in Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5 th ) 80 at paragraph 41 .

[ 10 ] In Scaini v. Prochnicki (2007), 2007 ONCA 63 , 85 O.R. (3d) 179 (C.A.) Goudge J.A. said (at paragraph 24) that the following was the approach to take on motions like the present one.

The key point is that the court consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case.

[ 11 ] Because Goudge J.A. also said (at paragraphs 19 and 24) that the four Reid criteria were likely to be of central importance in most cases, I will proceed to consider those four criteria, using a contextual approach.

[ 12 ] The first Reid criterion is whether the plaintiff has provided an adequate explanation for the litigation delay which led the registrar to send out a notice (Form 48E) that the action will be dismissed as abandoned unless certain steps set out in subrule 48.15(1) were taken.

[ 13 ] The present action was commenced on September 10, 2008 when the plaintiff’s then lawyer, Michael Gould, had a notice of action issued. On October 10, 2008 Mr. Gould had a statement of claim issued.

[ 14 ] At all material times Mr. Gould was a sole practitioner.

[ 15 ] Mr. Gould did not arrange for immediate service of notice of action and statement of claim on the defendant surgeon Dr. John Cameron because he (Mr. Gould) needed to obtain complete medical records on the plaintiff and arrange for an expert witness.

[ 16 ] Under subrule 14.08(2) the notice of action and statement of claim had to be served within six months after the notice of action was issued. Here that six month period expired on March 9, 2009. In fact Dr. Cameron was not served until October 22, 2010.

[ 17 ] In an affidavit filed in support of this motion Mr. Gould has provided the following explanation for his failure to prosecute this action properly.

[ 18 ] In late December 2008 (when the time for service of the notice of action and statement of claim had yet to expire) the first in a series of personal tragedies befell Mr. Gould. At that time Mr. Gould and his wife learned that their son-in-law was ill with cancer. Their son-in-law and daughter lived in New York state with two young children.

[ 19 ] Their son-in-law died of his cancer on March 10, 2009. Mr. Gould spent considerable time providing emotional and other support to his daughter and his two very young grandchildren, both before and after the death of his son-in-law. His wife was unable to do so.

[ 20 ] In March 2009 a second personal tragedy befell Mr. Gould. He then learned that his wife had cancer. Her oncologist recommended surgery on an urgent basis. Because of radiation therapy which his wife received in the course of an earlier battle with cancer, his wife had extensive scarring in the immediate vicinity of her 2009 cancer. Her oncologist felt that there was only one surgeon with the skills necessary to treat Mrs. Gould. Despite entreaties from Mr. Gould, his wife and her oncologist, this surgeon was not able to operate on Mrs. Gould for some three months. By then her cancer had spread. The surgery was not successful, nor were other forms of treatment. Mrs. Gould died on August 21, 2010. Mr. Gould spent a great deal of time providing support to his wife in 2009 and 2010.

[ 21 ] Mr. Gould describes this period of time in his life as very painful for him to the point where he was almost totally unable to practice law and to function rationally.

[ 22 ] Mr. Gould failed to inform the plaintiff that he was not prosecuting her action until September of 2010. The plaintiff never advised Mr. Gould to delay this action or to cease prosecution of it.

[ 23 ] In September of 2010 the plaintiff contacted the Law Society of Upper Canada. She then learned that Mr. Gould had ceased practice and that the Law Society was winding up his practice. The Law Society advised the plaintiff to retain a new lawyer and sent her Mr. Gould’s file on this action.

[ 24 ] The plaintiff retained her present lawyers on or about October 20, 2010. On or about October 27, 2010 they served and filed a notice of change of lawyer.

[ 25 ] On or about September 13, 2010 the registrar sent Mr. Gould a notice (Form 48E) warning that unless certain steps were taken, the action would be dismissed. At that time the plaintiff had not yet retained her present lawyers.

[ 26 ] In an attempt to prevent the action from being dismissed, the plaintiff’s present lawyers had Dr. Cameron served with the notice of action and the statement of claim on October 22, 2010. However, as I have indicated, Dr. Cameron did not respond to the notice of action and statement of claim. As a result, the registrar dismissed this action as abandoned on November 5, 2010.

[ 27 ] Defence counsel submits that the plaintiff must accept personal responsibility for the dismissal of her action because she did not monitor the progress of her action more closely and did not dismiss Mr. Gould and retain new lawyers long before October 2010. Defence counsel also submits that the plaintiff failed to put pressure on Mr. Gould to get on with the action.

[ 28 ] It seems to me that the plaintiff was in a delicate situation in dealing with Mr. Gould. He told her that his wife was ill with cancer, that she was undergoing chemotherapy and radiation therapy and that latterly he was taking care of his wife at home.

[ 29 ] In an affidavit sworn in support of this motion the plaintiff states that between March and September of 2010, she did not pressure Mr. Gould about her action because she was aware of how seriously ill Mrs. Gould was.

[ 30 ] The plaintiff also states that she instructed Mr. Gould to serve the statement of claim. Because this was a medical malpractice action, the plaintiff says that she expected it would take a long time to resolve. She has always instructed Mr. Gould to pursue the action and was not aware before September 2010 of any delay in the prosecution of this action. She was not aware before late September 2010 that the registrar was threatening to dismiss her action as abandoned.

[ 31 ] In my view, the evidence which I have summarized above is such that the plaintiff has provided an adequate explanation for the litigation delay. Mr. Gould’s conduct in 2009 and 2010 was not a deliberate attempt to delay this action. I accept Mr. Gould’s evidence that he was overwhelmed by the tragedies which befell him to the point where he was almost completely unable to practice law and to function rationally. Given what the plaintiff knew about Mrs. Gould’s battle with cancer and the fact that until September 2010 the plaintiff was unaware that Mr. Gould had not been prosecuting her action after December 2008 and was not aware until late September 2010 that the registrar was threatening to dismiss her action as abandoned, I do not fault the plaintiff for not putting pressure on Mr. Gould and not sooner dismissing Mr. Gould as her lawyer and retaining new counsel.

[ 32 ] I therefore conclude that the plaintiff has met the first Reid criterion.

[ 33 ] The second Reid criterion is whether or not the failure of the plaintiff and her new lawyers to meet the deadline in the registrar’s Form 48E notice that this action would be dismissed as abandoned was the result of inadvertence.

[ 34 ] The purpose of the second Reid criterion or factor is to identify those situations in which a litigant or the litigant’s lawyers are deliberately flouting orders of the court or the Rules of Civil Procedure or both.

[ 35 ] On or about September 13, 2010 the registrar sent Mr. Gould (presumably by mail) a Form 48E notice that this action would be dismissed as abandoned unless (amongst other things) a defence were filed within 45 days.

[ 36 ] Mr. Gould notified the lawyer for the Law Society assisting in the winding up of Mr. Gould’s law practice that he had received the Form 48E notice from the registrar. The Law Society sent the plaintiff a copy of the Form 48E notice along with Mr. Gould’s file on this action under cover of a letter dated September 21, 2010.

[ 37 ] The evidence does not indicate whether the plaintiff gave her new lawyers a copy of the Form 48E notice and, if so, when she did that.

[ 38 ] The evidence does indicate that almost immediately after the plaintiff retained her new lawyers on October 20, 2010 they were concerned that the registrar would dismiss her action as abandoned. In an attempt to prevent this from happening, they had the notice of action and statement of claim served on Dr. Cameron on October 22, 2010 as I have said. I assume they hoped that Dr. Cameron would respond promptly to this action and file a defence, thereby preventing the registrar from dismissing this action as abandoned. As I have also said, Dr. Cameron did not do so, with the result that the registrar dismissed this action as abandoned on November 5, 2010.

[ 39 ] Cases of inadvertence within the meaning of the second Reid criterion often involve a lawyer who receives a notice from the registrar that an action will be dismissed as abandoned or for delay unless certain steps are taken within a time frame stated in the notice and the lawyer either fails to diarise the deadline for action or simply forgets about the deadline altogether. This is not such a case.

[ 40 ] The plaintiff and her new lawyers were aware in October 2010 that there was a danger that the registrar would soon dismiss this action as abandoned. The registrar sent the Form 48E notice to Mr. Gould presumably by mail. Under subrule 16.06(2) service of a document by mail on the lawyer of record for a party (such as Mr. Gould) is effective five days after the date of mailing. The evidence does not indicate just when the registrar mailed the Form 48E notice to Mr. Gould. The 45 day period for acting upon that notice began to run five days after the date of mailing. The plaintiff’s new lawyers acted as if they knew they had a very limited time to prevent a dismissal of her action.

[ 41 ] The plaintiff’s new lawyers were not inadvertent in that they forgot to deal with the Form 48E notice. However it seems to me that the plaintiff’s new lawyers were inadvertent in the following way.

[ 42 ] In October 2010, once they had received Mr. Gould’s rather thin file on this action, the plaintiff’s new lawyers should immediately have brought a motion on notice to Dr. Cameron (and perhaps short notice) for an order directing the registrar not to dismiss this action as abandoned for a stated period of time to enable the plaintiff’s new lawyers to bring a motion for an order extending the time for service of the notice of action and statement of claim on Dr. Cameron or validating late service of those documents on Dr. Cameron. They did not do so.

[ 43 ] The plaintiff’s new lawyers did not deliberately ignore the threat of a registrar’s dismissal order. They took action but the action which they took was not sufficient to prevent the registrar from dismissing this action as abandoned.

[ 44 ] It is clear that neither the plaintiff nor her lawyers including Mr. Gould were consciously and deliberately delaying this action, or flouting orders of this court or the Rules of Civil Procedure.

[ 45 ] I therefore conclude that the plaintiff has met the second Reid criterion.

[ 46 ] The third Reid criterion is whether the motion to set aside the registrar’s dismissal order was brought promptly after the plaintiff or her lawyers were first aware of the registrar’s dismissal order.

[ 47 ] The registrar sent a copy of the November 5, 2010 dismissal order to the plaintiff’s new lawyers. The evidence does not indicate just when that order first came to their attention. I assume that the order came to their notice shortly after its date. They do not suggest otherwise.

[ 48 ] The main motion record in support of this motion was served on Dr. Cameron on July 12, 2011, just over eight months after the date of the registrar’s dismissal order. Other materials much more brief than the main motion record were served more recently.

[ 49 ] The Law Society reported this action to LawPRO, the professional liability insurers for Ontario lawyers, in December 2010. LawPRO took until February 1, 2011 to appoint repair counsel. Repair counsel spent from then until early July 2011 preparing the main materials used in support of this motion.

[ 50 ] This motion was originally returnable on August 15, 2011. It was adjourned presumably to allow for cross examination and to give Dr. Cameron’s lawyers more time to prepare responding materials. In any event, defence counsel does not complain about delay in bringing this motion after July 2011. The motion came before me for argument on December 20, 2011. Argument was completed on May 8, 2012 at which time I reserved judgment.

[ 51 ] Since my appointment as a case management master in 2001, I have heard a considerable number of motions to set aside registrar’s dismissal orders. I have to say that the materials which repair counsel have prepared with assistance from the plaintiff’s new lawyers are the most thorough I have yet to see.

[ 52 ] The materials prepared in support of this motion include the following:

(a) two affidavits from the plaintiff;

(b) two affidavits from Mark Johnston, the lawyer at the plaintiff’s new law firm chiefly responsible for carriage of this action;

(c) one affidavit from Elaine Simas, a legal assistant to chief repair counsel;

(d) one affidavit from Santina Catalano, another legal assistant to chief repair counsel;

(e) one affidavit from Brett Stephenson, a lawyer assisting chief repair counsel; and

(f) a 52 paragraph affidavit from Mr. Gould.

[ 53 ] Preparation of Mr. Gould’s affidavit was delayed by one factor beyond the control of repair counsel. Chief repair counsel learned that Mr. Gould had provided the Law Society with a detailed affidavit which set out all the dates and events leading to the breakdown of his law practice including details of the illness, treatment and death of his wife and son-in-law. Unfortunately the Law Society was unable to locate this affidavit. Repair counsel had to prepare the affidavit which Mr. Gould swore in support of this motion without the assistance of Mr. Gould’s earlier affidavit.

[ 54 ] Apart from Mr. Gould’s affidavit, the affidavits filed in support of this motion describe efforts taken to locate potential witnesses and relevant health care records. The plaintiff’s new lawyer Mr. Johnston, repair counsel and assistants to repair counsel were all involved in these efforts.

[ 55 ] Mr. Johnston obtained a decoded OHIP personal claim history for the plaintiff. This history goes back to May 1, 2004, over one year prior to the surgical procedure which Dr. Cameron performed on the plaintiff on July 21, 2005. This is the procedure which gave rise to this action. Mr. Johnston also obtained the clinical notes and records of Dr. Jamieson, the plaintiff’s family physician. Dr. Jamieson’s records on the plaintiff go back to 1992. Finally, he obtained Dr. Cameron’s operative notes and records of his treatment of the plaintiff and the related records of Sunnybrook & Women’s College Health Sciences Centre where Dr. Cameron operated on and treated the plaintiff.

[ 56 ] The plaintiff’s legal advisors and their assistants then identified those additional health care professionals and facilities which provided relevant treatment to the plaintiff and confirmed that they were all still practicing or in operation and that their records on the plaintiff were still available. They obtained many of those records and sent copies to defence counsel.

[ 57 ] Having regard to the involvement of LawPRO, which delayed matters somewhat, and the extensive work done by the plaintiff’s legal advisors and their assistants in gathering the necessary information and documents for use on this motion, I am satisfied that this motion was brought reasonably promptly. The plaintiff has therefore met the third Reid criterion.

[ 58 ] The fourth Reid criterion is whether the defendant has suffered prejudice owing to the litigation delay. To my mind, this is the most important Reid criterion.

[ 59 ] As I have said, on July 21, 2005 Dr. Cameron performed the surgery on the plaintiff which is the basis for this action. Dr. Cameron was not aware until October 22, 2010 that the plaintiff was pursuing a claim against him. That was when he was served with the notice of action and statement of claim in this action.

[ 60 ] By October 22, 2010 Dr. Cameron had no recollection of the surgery he performed on the plaintiff independent of the records he has on the plaintiff. This loss of memory is one reason why Dr. Cameron says that he has been prejudiced by the litigation delay.

[ 61 ] In my view, this is not prejudice sufficient to render it just to dismiss this motion.

[ 62 ] Dr. Cameron made a contemporaneous memorandom on the surgery he performed on the plaintiff. One of the reasons why surgeons prepare such memoranda is because their memories of the surgeries they perform fade over time, particularly if, as is the case here, things appear to have gone in a routine manner. Dr. Cameron does not claim that his memorandum on the surgery he performed on the plaintiff and the other records he has on the plaintiff are in some way flawed and do not compensate for his loss of memory.

[ 63 ] In an affidavit which Dr. Cameron swore in response to this motion he does not claim that any witness helpful to his defence of this action has died or disappeared, nor does he claim in his affidavit that any records helpful to his defence are now missing.

[ 64 ] The plaintiff claims that all relevant material records are available. The affidavits which I have described in my discussion of the third Reid criterion deal with the subject of available medical records at considerable length.

[ 65 ] Defence counsel’s submission that the available medical records are incomplete is speculation. For example, she submits that the plaintiff’s affidavit material is silent on the subject of what has happened to certain records on the plaintiff created at Toronto Western Hospital.

[ 66 ] The first affidavit of Mr. Johnston includes as an exhibit records on the plaintiff from Toronto Western Hospital and states that those records are preserved in the files of Dr. Jamieson, the plaintiff’s family physician. The defence material does not include any affidavit or other evidence that the lawyers defending this action or those assisting them have contacted this hospital directly and determined first that the records from Toronto Western Hospital which are preserved in Dr. Jamieson’s files are incomplete and secondly, that additional relevant records on the plaintiff are no longer available. Since Mr. Johnston’s first affidavit and exhibits were served on Dr. Cameron on July 12, 2011, the defence lawyers know exactly what Toronto Western Hospital records on the plaintiff Mr. Johnston refers to in his affidavit.

[ 67 ] There are other examples of defence counsel’s submission that relevant medical records on the plaintiff are missing being a speculative submission which is not supported by evidence before me.

[ 68 ] In summary, I reject defence counsel’s submission that Dr. Cameron has been prejudiced because medical records on the plaintiff helpful to his defence are no longer available. The evidence before me does not support that submission.

[ 69 ] Dr. Cameron also claims that this motion should not be granted because this action is statute barred. Defence counsel submits that Dr. Cameron will be prejudiced if he is forced to defend an action which is bound to fail on limitation of action grounds.

[ 70 ] The relevant limitation period is found in sections four and five of the Limitations Act, 2002, S.O. 2002 c.24 Schedule “B ”. Those sections provide 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 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).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[ 71 ] The key issue here is when the plaintiff first discovered or ought to have discovered that she had a claim against Dr. Cameron based on the surgery which he performed on her on July 21, 2005. If the plaintiff actually discovered or ought to have discovered this more than two years before this action was commenced on September 10, 2008, this action is indeed statute barred. (Section four of the Limitations Act 2002 , does not refer to two years. It refers to the second anniversary of the day on which the claim is discovered.)

[ 72 ] The plaintiff’s evidence is that it was not until she saw a Dr. Harrison on September 11, 2006 that she was advised that the surgery which Dr. Cameron performed on her caused damage to a nerve in one of her legs. Until then, she says, she was not aware that Dr. Cameron’s surgery had damaged a nerve in her leg.

[ 73 ] This action was commenced the day before the second anniversary of September 11, 2006. The plaintiff’s evidence is in essence that she first discovered that she had a claim against Dr. Cameron on September 11, 2006. If this evidence is accepted this action is not statute barred.

[ 74 ] Defence counsel submits that the plaintiff discovered that she had a claim against Dr. Cameron before September 11, 2006. She points to evidence in the medical records attached to Mr. Johnston’s first affidavit to the effect that the plaintiff’s physiotherapist made a note in his records dated August 11, 2006 that the plaintiff suffered from a nerve dysfunction. The plaintiff’s physiotherapist does not state what he thought caused the nerve dysfunction.

[ 75 ] There is no evidence that this information was communicated the plaintiff before September 11, 2006.

[ 76 ] Defence counsel also points out that the medical records from Dr. Jamieson also attached to Mr. Johnston’s first affidavit indicate that on August 29, 2006 Dr. Jamieson made a diagnosis that the plaintiff suffered from a failed high tibial osteotomy and nerve damage. Since an osteotomy is a surgical procedure, this is a reference to Dr. Cameron’s July 21, 2005 operation on the plaintiff.

[ 77 ] There is no evidence that this information was communicated to the plaintiff before September 11, 2006.

[ 78 ] The affidavit of Ms. Simas includes as an exhibit a memorandum dated August 23, 2008 from Mr. Gould’s file on this action. In this memorandum Mr. Gould states in effect that the plaintiff’s family doctor (that is, Dr. Jamieson) told her that Dr. Cameron had messed up. There is no evidence as to when Dr. Jamieson told the plaintiff this.

[ 79 ] In summary, these three items of evidence do not contradict the plaintiff’s evidence that she first discovered that she had a claim against Dr. Cameron on September 11, 2006.

[ 80 ] The result of all this is that on the evidence before me, it is not clear that the plaintiff’s action is statute barred. Indeed, the evidence before me is to the opposite effect: namely that her action is not statute barred.

[ 81 ] I therefore reject the defence submission that Dr. Cameron would be prejudiced if this motion were granted because he would be forced to defend a statute barred action.

[ 82 ] Throughout my consideration of the limitation of action issue I have been mindful of the fact that in Trajkovski v. Toronto Transit Commission , 2010 ONSC 4809 Glustein M. said as follows (at paragraph 75).

A motion to set aside a dismissal order should not be transformed into a motion for summary judgment in which the court must determine whether there is a genuine issue requiring a trial.

[ 83 ] For all the above reasons, I have come to the conclusion that the just order in the circumstances is an order setting aside the registrar’s dismissal order of November 5, 2010. This part of the plaintiff’s motion is therefore granted.

[ 84 ] In the second part of this motion the plaintiff seeks an order extending the time for service of the notice of action and statement of claim on Dr. Cameron to October 22, 2010 and validating service of those documents on him as of that date.

[ 85 ] The same arguments respecting prejudice to Dr. Cameron and lack of such prejudice made in the course of the plaintiff’s motion to set aside the registrar’s dismissal order are relevant to this part of the plaintiff’s motion.

[ 86 ] Since I have rejected Dr. Cameron’s prejudice arguments, this part of the plaintiff’s motion is also granted. The time for service on Dr. Cameron of the notice of action and statement of claim in this action is extended to October 22, 2010 and service of those documents on Dr. Cameron on that date is hereby validated.

[ 87 ] In his first affidavit filed in support of this motion Mr. Johnston has stated that if this motion is granted he will diligently pursue this action to a conclusion. I expect him to fulfill that commitment.

[ 88 ] Plaintiff’s counsel is content that the time for delivery of the statement of defence be extended to 60 days from the date of final disposition of this motion. So ordered. The registrar is not to dismiss this action as abandoned prior to 90 days from the date of final disposition of this motion.

[ 89 ] My disposition of this motion is without prejudice to the right of the defendant Dr. Cameron to bring a motion for summary judgment or a motion before the trial judge for judgment dismissing this action on the basis that it is statute barred.

[ 90 ] The plaintiff has been successful on this motion but is not seeking costs. Dr. Cameron was not successful. There will therefore be no order as to costs.

____ (original signed) _______________________
Master Thomas Hawkins

DATE: August 2, 2012